CLC 2024 Judgments

2024 C L C 37

[High Court (AJ&K)]

Before Sadaqat Hussain Raja, CJ and Syed Shahid Bahar, J

Messrs TELENOR PAKISTAN (PVT.) LIMITED through Manager Legal Affairs----Appellant

Versus

PAKISTAN TELECOMMUNICATION AUTHORITY through Chairman--- Respondent

Civil Appeal No.231 of 2021, decided on 16th June, 2023.

(a) Azad Jammu and Kashmir Council Adaptation of Pakistan Telecommunication (Re-Organization) Act (I of 2005)---

----S.23---Pakistan Telecommunication (Re-Organization) Act, 1996 , Ss.4 (1) (c), 6(f), 21 (4) (a) & 7---Telecom Consumers Protection Regulations, 2009, Regln.5(1), 5 (2), 7(2) & 19---Illegal disruption/interruption in providing telecommunication services---Protection of the interests of the consumers by the Pakistan Telecommunication Authority---Scope---Force Majeure---Scope---Abrupt service breakdown was allegedly caused by the mobile/cellular /telecommunication providing company ('licensee')---Pakistan Telecommunication Authority('PTA') imposed penalty upon the mobile company/Licensee for the illegal disruption /interruption in providing services causing loss to the consumers---Appellant/Licensee contended that abrupt breakdown was actually outcome of the unwarranted actions(interfering with telecommunication equipments etc.) on the part of the Tax Authorities, whereas appellant/licensee had adopted legal recourse to challenge tax demands raised by the very Tax Authorities under purported discharge of their official duties, therefore, breakdown was beyond the appellant's reasonable control---Validity---Record revealed that the appellant/licensee had already challenged the tax assessment/ demand leveled by the Tax Authorities before the appellate fora which were pending adjudication, however, the Tax Authorities , in furtherance of the tax demands, attached the licensees BTs Towers and Switched off the BTs towers in the territory---Nothing adverse pertaining to the previous track record of the appellant/licensee was on record which could establish that appellant / licensee had deliberately failed to provide communication services to the consumers---Abrupt breakdown was outcome of attachment of BTs Towers and switching off on account of relevant quarters, thus, appellant/licensee could not be blamed for the same, particularly prior to adjudications of his claim from appellate forum; even by the said angle impugned proceedings were premature---Order of switching off public switch network deployed by the licensee was harsh and not warranted by law as the Consumers suffered a lot for no fault at their end---Provisions of Telecom Consumers Protection Regulations, 2009, and Pakistan Telecommunication (Re-Organization) Act, 1996, were not attracted pertaining to the present controversy and the Authority (PTA) had misconstrued the aforesaid law---Circumstances pertaining to break down were beyond control of the appellant, thus, relevant clause of the licensee qua notice to the consumers was also not attracted---Where evasion of duty was not wilful and deliberate then imposition of penalty was illegal---Where the appellant did not act with mala-fide with the intention to evade the tax the imposition of penalty of additional tax and surcharge was not justified---Findings of the authority were findings of fact which were not based on material available on record, thus findings were perverse---Every quasi-judicial or akin to quasi-judicial findings has to be based on reasons which contain the justification for the findings in the order itself---No penalty can be imposed caused due to force majeure---Authority had failed to attend the very spirit and plain language of the law governing the matter, particularly Regln. 19 of the Telecom Consumers Protection Regulations, 2009---Non observance of force majeure clause was suffice to annul the impugned decision---High Court set-aside the penalty imposed by the Authority (Pakistan Telecommunication Authority)---Appeal filed by the mobile company (licensee) was allowed, in circumstances.

PLD 1991 SC 963; PTCL 1995 CL. 415; PLD 1970 SC 158-173; 1984 SCMR 1014; PLD 1995 SC 272 and 2012 CLC 1145 ref.

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

----S. 24-A---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Art. 19---Azad Jammu and Kashmir Council Adaptation of Pakistan Telecommunication (Re-Organization) Act (I of 2005), S.23---Pakistan Telecommunication (Re-Organization) Act, 1996, Ss.4 (1) (c), 6(f), 21 (4) (a) & 7---Telecom Consumers Protection Regulations, 2009, Regln. 5(1), 5(2), 7(2) & 19---Order to be passed with reasoning---Fair trial---Scope---Illegal disruption/interruption in providing telecommunication services---Scope---Protection of the interests of the consumers by the Pakistan telecommunication Authority---Scope---Force majeure---Scope---Abrupt service breakdown was allegedly caused by the mobile /cellular /telecommunication providing company ('licensee')---Pakistan Telecommunication Authority ('PTA') imposed penalty upon the mobile company/licensee for the illegal disruption /interruption in providing services causing loss to the consumers---Appellant/licensee contended that abrupt breakdown was actually outcome of unwarranted actions (interfering with telecommunication equipments etc.) on the part of the Tax Authorities , whereas appellant/licensee had adopted legal recourse to challenge tax demands raised by the very Tax Authorities under purported discharge of their official duties, therefore, breakdown was beyond the appellant's reasonable control---Validity---Each and every order was required to be commanded with rational and reasoning as envisaged under S.24-A of the General Clauses Act, 1897, particularly where it carried penal consequences---Such like order must adonize itself with fairness and solid grounds, in order to qualify the test of fairness embedded in the fundamental guaranteed right i.e. right to fair trial---Irrespective of factum of tax liabilities of the appellant and regardless of the consequences of a breakdown, it was a stark fact oozing from record that appellant could not be blamed for the break down---In view of S.24-A of the General Clauses Act, 1897 read with Fundamental Right of fair trial, it was incumbent upon the Authority to adjudicate the matter fairly and in judicious manner---High Court set-aside penalty imposed by the Authority (Pakistan Telecommunication Authority)---Appeal filed by the mobile company (licensee) was allowed, in circumstances.

2003 YLR 2736; 2004 YLR 1689 and 2008 MLD 1377 ref.

(c) Interpretation of statutes---

----Maxim: Sensus verborum ex causa decendi accipiendus est, et sermones semper accipiendi sunt secundum subjectam materiam---Said maxim denotes that sense of words is to be taken from the occasion of speaking them, and discourses are always to be interpreted according to the subject matter---In interpreting, the context must always be looked to.

Barrister Humayun Nawaz Khan for Appellant.

2024 C L C 381

[High Court (AJ&K)]

Before Mian Arif Hussain, J

JAMROZ KHAN and another----Appellants

Versus

SHUJAT KHAN and others----Respondents

Civil Appeal No.62 of 2018, decided on 7th April, 2023.

Specific Relief Act (I of 1877)---

----S. 54---Suit for permanent injunction---Non-description of the suit-property---Scope and effect---Civil Court decreed the suit as prayed for, however, the Appellate Court disagreed with the findings of the Trial Court on the ground that the plaintiffs had failed to establish the description of the suit-property---Question was that as to whether the plaintiffs/appellant had succeeded to prove their stance raised in the plaint or not; and whether due to non-description of the suit-property, no effective decree of perpetual injunction could be granted---Held, that relevant Jamabandi, exhibited by the plaintiffs / appellants, showed that in the column of cultivation, the possession of plaintiffs / appellant and of proforma defendant/ respondent was recorded as purchaser, regarding a piece of land measuring 07 Marlas falling in relevant survey number; said survey number had an independent and separate identity---Such entry was also available in relevant Girdawri register and although the names of a few other persons were also recorded in said column, however, they admittedly appeared as seller/co-sharer in the Khewat but so far as question of possession was concerned, the said document spoke volume that plaintiffs/ appellants and proforma defendant/respondent were sole possessor of said survey numbers as purchasers/vendees and said position was even admitted by one of the defendant/ respondent---Moreover, the witnesses of the parties also corroborated the said version of the plaintiffs / appellants---Defendants/respondents admittedly claimed that they had purchased the suit-property from the disputed khewat, so the question of apprehension of interference in the light of evidence could not be ruled out---Appellate Court fell in error while evaluating the evidence adduced in the present case---High Court set aside the judgment and decree passed by the Appellate Court and restored the judgment passed by the Civil Court; consequently the suit filed by the plaintiff/appellant stood decreed---Appeal preferred by the plaintiff was allowed, in circumstances.

Rafiullah Sultani for Appellants.

2024 C L C 693

[High Court (AJ&K)]

Before Sardar Liaqat Hussain, J

ANSER MEHMOOD AWAN and 4 others----Appellants

Versus

MUJAHID HUSSAIN NAQVI and 8 others----Respondents

Civil Appeal No.157 of 2020, decided on 1st June, 2023.

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

----O. XII & O. X---Admission on the basis of mere pleadings made by a party---Scope---Examination of such party, not conducted---Effect---Suit filed by the plaintiff was decreed by considering written statement as admission because in the verification (of the written-statement as well as amended written-statement filed by the defendant/appellant ) the word "suit" was written and admitting the same (word "suit") as correct , Trial Court considered as if defendants had made admission to the averments in the plaint---Validity---Written-statement as well as amended written-statement filed by the appellants/defendants transpired that averments made in the plaint were specifically denied , however by a clerical mistake ,in the verification the word "suit" had been written instead of "written-statement"---Thus, the appellants/ defendants had specifically denied the claim of the respondent / plaintiff, therefore, the Trial Court considered their written-statement as admission illegally and had erroneously decreed the suit by the same as admission which was actually a detailed deny of contents of plaint---Mere pleadings which amounts to admission cannot be believed until the concerned party is examined by the Court---High Court set-aside the impugned judgment and decree passed by the Trial/District Court and remanded the matter for decision on merits---Appeal filed by the defendants was allowed, under circumstances.

2000 SCMR 1391 ref.

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

----O.VIII, R.1---Officer / Official of the Court---Functions and responsibilities ---Fault of the Reader of the Court---Scope--- Contention of the respondent/plaintiff was that application for correction/amendment of written-statement was allowed subject to payment of costs which was not tendered by the appellants / defendants---Validity---Record revealed that while accepting the application for correction of written-statement, subject to payment of Rs. 1000/= as costs, the Reader of Court was directed to correct the clerical mistake sought to be corrected, hence it was responsibility of the Reader to make correction as was ordered by the Presiding Officer---As the appellants / defendants had taken stand that they had deposited the costs, then on said ground it could not be said that the order had not been complied with---It was the fault on the part of the Officer / Officer of the Court that in compliance with relevant order, correction had not been made in the "verification" , therefore, appellants / defendants could not be penalized for the fault of an authority---High Court set-aside the impugned judgment and decree passed by the Trial /District Court and remanded the matter for decision on merits---Appeal filed by the defendants was allowed, in circumstances.

2003 SCR 450; 2011 SCR 273 and 2016 SCR 714 ref.

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

----O. VI, R. 15---Verification of pleadings---Requirement of signing by a party---Failure to sign---Effect---Trial Court decreed the suit, inter alia, on the basis that verification was not signed by any of the appellants / defendants---Contention of the respondent/plaintiff was that such signing was a necessary requirement---Held, that contention of the respondent /plaintiff had no force because non-compliance of provision of R. 15 of O. VI of the Civil Procedure Code, 1908 was not mandatory in nature rather was directory as no penal clause was provided in the statute and non-compliance of said provision could be cured at any stage even at appeal stage---High Court set-aside the impugned judgment and decree passed by the Trial /District Court and remanded the matter for decision on merits---Appeal filed by the defendants was allowed, in circumstances.

1981 SCMR 687 ref.

Chaudhary Shoukat Aziz for Appellants.

2024 C L C 125

[Islamabad]

Before Mohsin Akhtar Kiyani, J

Raja TAHIR MAHMOOD----Petitioner

Versus

CHIEF COMMISSIONER, ISLAMABAD and another---Respondents

Writ Petition No. 2921 of 2019, decided on 20th March, 2023.

West Pakistan Land Revenue Act (XVII of 1967)---

----S.42---Shamlat deh land---Shart Wajib ul Arz---Land mafia restrained from changing the nature of land---Petitioner alleged that grazing land, as a common land reserved for firewood, animal Chiragah etc. was being changed for development of illegal housing society---Validity---Any land which had been declared as Chiragah was not permitted to be changed for its character, nor 'notore' was permissible and District Administration was bound to implement and protect its character as defined in Shart Wajib-ul-Arz---In such circumstances, the claim submitted by the petitioner qua khasra numbers which had allegedly been converted by different housing schemes and individuals, shall be dealt by the Member Board of Revenue/Chief Commissioner, Islamabad, and all kinds of Chiragah should have been given protection---Chief Commissioner, Islamabad, could exercise its powers to protect such land and any housing scheme which encroached upon the Chiragah, action should have been taken against such individual or housing society under law---Chief Commissioner, Islamabad, was expected to restore the status of Chiragah by all means---Similarly Board of Revenue shall issue Notification of Abadi-Deh within Islamabad Territory after adopting procedure under the law---Petition was disposed of with said observations and other relevant directions.

Syed Azhar Hussain Shah v. Member Board of Revenue, KP 2016 YLR 1489; Muhammad Nazeer v. Ameer Jan 2016 MLD 568; Dilawar Khan v. Sana Ullah 2016 YLR Note 30; Muzaffar ul Malik Khan alias Kaki Khan v. Jamshaid Zada and 16 others 2016 CLC Note 79; Safdar Hussain v. Muhammad Azam PLD 2009 Lah. 347; Abdul Hameed v. Nek Muhammad 1994 SCMR 2255; Government of the Punjab through Secretary, Schools Education Department, Lahore v. Abdur Rehman 2022 SCMR 25; Dr. Jalal Khan v. Qazi Naseer Ahmed, District Deputy Officer, (Revenue), Kharian, District Gujrat 2005 MLD 814; Muhammad Muneer v. Member Board of Revenue, Punjab, Lahore 2009 MLD 930; Parvez Ahmad Burki v. Assistant Commissioner PLD 1999 Lah. 31; Muhammad Ramzan and others vs. Member (Rev.)/CSS and others 1997 SCMR 1635; Muhammad Sharif v. Settlement Commissioner and others 2007 SCMR 707 and Muhammad Ishaq v. Member (consolidation), Board of Revenue, Punjab 2004 YLR 834 rel.

Nemo for Petitioner.

Ms. Khadija Ali, State Counsel, Naseem Ahmed, Naib Tehsildar and Abbas, Halqa Patwari for Respondents.

2024 C L C 274

[Islamabad]

Before Mohsin Akhtar Kayani, J

MUHAMMAD SHAHBAZ----Petitioner

Versus

DISTRICT AND SESSIONS JUDGE (EAST), ISLAMABAD and 7 others----Respondents

Writ Petition No.1154 of 2019, decided on 12th January, 2023.

(a) Words and phrases---

----'Urban area'---Definition---Urban area ordinarily means city or town based upon buildings, metropolitan areas, where population beyond 50,000 or more was settled for on account of provision, trade and community services were provided in the area---Such are the features of urban concept generally and widely used in common parlance.

Chairman, Pakistan Railway, Government of Pakistan, Islamabad and others v. Shah Jehan Shah PLD 2016 SC 534; Blacks Law Dictionary (11th Edition) Bryan A. Garner; Oxford Advanced Learner's Dictionary (9th Edition); Chamber Dictionary (10th Edition) and Wolters Kluwer Bouvier Law Dictionary (Desk Edition Volume-2 by Stephen Michael Sheppared rel.

(b) Interpretation of Constitution---

----Object, purpose and scope---Constitution is an organic document, which covers day to day affairs and needs of the people in the framework of Principles of Policy enshrined in the Constitution---Constitution provides due protection to citizen of Pakistan while considering legitimate needs, so they should not be exposed or harmed or be placed under legal hardships qua their legal rights by not extending benefits of law.

(c) Interpretation of statutes---

----Expression "notwithstanding anything contained in any other law"---Applicability---Expression "notwithstanding anything contained in any other law" indicates that the provision should prevail despite anything contrary to any provision and would prevail over other clause as well as the laws in case of any inconsistency.

E.F.U General Insurance Company Ltd. v. Federation of Pakistan PLD 1997 SC 700 and Hakim Ali Zardari v. The State PLD 2002 Kar. 374 rel.

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

----Ss.1(2) & 2(k)---Notification SRO 83(K)/2012, dated 01-08-2002---Ejectment of tenant---Urban area---Scope---Petitioner was owner of immovable property which was not notified as urban area for the purposes of Islamabad Rent Restriction Ordinance, 2001---Validity---Term "urban area" under S.2(k) of Islamabad Rent Restriction Ordinance, 2001, was silent about any character, principle, or explanation to understand which areas were called urban area with reference to Islamabad Rent Restriction Ordinance, 2001---Term "urban area" was dependent upon notification of Federal Government in Official Gazette without any parameters on which Federal Government could select area, though through the previous two SROs notified by Federal Government under the said provision, those areas were included, which were duly recognized under Capital Development Authority Ordinance, 1960, which was not the mandate of law in Islamabad Rent Restriction Ordinance, 2001---Such technical defect had never been explained on any yardstick, as to how and on what parameters, Federal Government could choose and select the area in such disputed position---Doctrine of "pith and substance" as well as doctrine of "incidental encroachments and occupied field" came into play, though in such case, there was no other competitive legislation which effected Islamabad Rent Restriction Ordinance, 2001, directly, but the mode and manner in which Federal Government was exercising its authority by denying application of Islamabad Rent Restriction Ordinance, 2001, in Islamabad Capital Territory areas should have been settled in the light of Preamble of Islamabad Rent Restriction Ordinance, 2001, however, more population of Islamabad Capital Territory had been excluded to get benefit of Islamabad Rent Restriction Ordinance, 2001---High Court was bound to consider the legislative intent of the parliament by examining Preamble to understand real spirit and domain as well as occupied field of Islamabad Rent Restriction Ordinance, 2001, which only had given simple and straight meaning to resolve the issues between landlord and tenant without any discrimination of properties recognized by Capital Development Authority or not recognized by Capital Development Authority---High Court declared not only the area of petitioner as "urban area" under S.2(k) of Islamabad Rent Restriction Ordinance, 2001, rather included entire Islamabad Capital Territory notwithstanding registered, approved or unapproved society of CDA or any other area acquired or non-acquired or even constructed in any part of ICT beyond the zoning limit, whereby any land or house which had been rented out to a tenant by a landlord was required to be regulated through Rent Controller in terms of Islamabad Rent Restriction Ordinance, 2001, without any discrimination---High Court directed Federal Government to issue necessary notification accordingly for application of Islamabad Rent Restriction Ordinance, 2001, in the entire Islamabad Capital Territory, though the same was ministerial work, especially when there was no criteria for exclusion or inclusion of particular territory in the notification---Constitutional petition was allowed accordingly.

Privatization Commission v. Aftab Hussain PLD 2022 SC 267; State Bank of Pakistan v. Federation of Pakistan PLD 2022 Pesh. 46; (Human Rights Case No.69229-P of 2018) PLD 2019 SC 297; Mustafa Impex, Karachi v. The Government of Pakistan through Secretary, Finance, Islamabad PLD 2016 SC 808; Malik Munsif Awan, Advocate, Chairman, Pakistan Justice Party, Lahore v. Federation of Pakistan through Secretary, Law and Justice, Islamabad and others PLD 2021 SC 379; Tariq Aziz-ud-Din and others in re Human Rights case 2010 SCMR 1301; Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Moazzam Habib and others v. Federation of Pakistan and others 2018 YLR 222 and Saleem Ullah Khan v. Federation of Pakistan through Ministry of Interior and Narcotics Control, Interior Division, Islamabad 2017 YLR 1224 ref.

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

----S.17---Diplomatic enclave---Rent Controller, jurisdiction of---Scope---Relationship of landlord and tenant in Diplomatic Enclave between private individuals could not be considered excluded from legal cover of Islamabad Rent Restriction Ordinance, 2001.

Petitioner in person.

Usman Rasool Ghuman, A.A.G., Muhammad Nasim Saqlain, A.A.G., Ms. Khadija Ali, State Counsel and Ch. Muhammad Asif Khan for Respondents.

2024 C L C 321

[Islamabad]

Before Miangul Hassan Aurangzeb, J

SANGHOL ENGINEERING SERVICES (PVT.) LTD. through Chief Executive Officer----Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman and 2 others----Respondents

Writ Petition No.947 of 2021, decided on 26th July, 2021.

Public Procurement Rules, 2004---

----R.19---Public procurement---Tender documents, non-issuance of---Petitioner company was aggrieved of refusal of Capital Development Authority to issue tender documents---Validity---Capital Development Authority could not refuse to issue tender documents to an applicant on the ground that it would not satisfy criteria for award of contract---No evaluation of petitioner's credentials took place at the stage when it approached Capital Development Authority for purchase of tender documents---Petitioner company had not been adjudged defaulter or a bad performer of its contractual obligations---Petitioner company was also not blacklisted by Capital Development Authority or any other government department or autonomous body in accordance with requirements of R.19 of Public Procurement Rules, 2004---High Court declared refusal on the part of Capital Development Authority to issue tender documents to petitioner company, as without lawful authority and of no legal effect---Constitutional petition was allowed, in circumstances.

7C's Corporate Services v. Oil and Gas Development Company Ltd. PLD 2017 Isl. 115 rel.

Mian Sahir Sadhla for Petitioner.

Hafiz Arfat Ahmed Ch., Tariq Zaman Ch. for C.D.A. and Muhammad Khurshid, Deputy Director, P.P.R.A. for Respondents.

2024 C L C 419

[Islamabad]

Before Miangul Hassan Aurangzeb, J

UMER PERWAIZ and 4 others----Petitioners

Versus

CAPITAL DEVELOPMENT AUTHORITY (CDA) through Chairman, CDA and another----Respondents

Writ Petition No.772 of 2019, decided on 15th November, 2023.

Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Contractual liability---Scope---Petitioners / allottees were aggrieved of adjustment of amount deposited by their predecessor-in-interest for one plot towards balance payment of other allotted plot---Validity---High Court, in exercise of its Constitutional jurisdiction, can go into questions of fact capable of being decided on the basis of documents on record and do not involve recording of evidence---When questions of fact of complex nature are raised, which may for their determination require oral evidence to be taken, and on that account High Court is of the view that the dispute may not appropriately be tried in constitutional petition, High Court may decline to entertain such petition---Capital Development Authority, instead of acceding to request of predecessor-in-interest of petitioners to refund entire amount deposited for two plots, had adjusted balance amount payable by predecessor-in-interest of petitioners for other plot from the amount that he had deposited---If C.D.A. had acceded to request of predecessor-in-interest of petitioners to refund amount deposited by him for other plot, his legal heirs would have had no legal foundation to seek allotment of either of the plots---High Court declared that predecessor-in-interest of petitioners had acquired ownership rights with respect to one plot on account of adjustment of liability for remaining 60% amount for other plot from the payment that had already been made by predecessor-in-interest of petitioners---High Court directed C.D.A. to issue allotment letter for one plot to petitioners after payment of all outstanding fees and taxes---Constitutional petition was allowed accordingly.

Saad Muhammad Shaheen Al-Soofi v. Principle and Chairman, Academic Council, Sindh Medical College 1982 CLC 805 and Shamim Khan v. Pakistan Defence Officers Housing Authority 1999 YLR 410 rel.

Sher Afzal Khan and Ch. Usama Tariq for Petitioners.

Amir Latif Gill and Rizwan Ahmed for CDA/Respondents.

2024 C L C 479

[Islamabad]

Before Miangul Hassan Aurangzeb, J

The COMMUNICATORS (PVT.) LTD.----Petitioner

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY---Respondent

Writ Petition No.3745 of 2020, decided on 28th March, 2022.

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

----Ss.4(3) & 24(4)---Pakistan Electronic Media Regulatory Authority (Radio Broadcast Station Operations) Regulations, 2012, Reglns.4 & 9---Radio broadcasting licence---Renewal---Categorization of licences---Petitioner company was operating three FM Radio Broadcasting Stations in three different cities---Petitioner company was aggrieved of demand of licence renewal fee by Pakistan Electronic Media Regulatory Authority before process for categorization of licences was carried out as required by Regln. 9(2) of Pakistan Electronic Media Regulatory Authority (Radio Broadcast Station Operations) Regulations, 2012---Validity---Category of licences granted to petitioner company was commercial and non-exclusive in nature---Neither Pakistan Electronic Media Regulatory Authority Ordinance, 2002, nor Pakistan Electronic Media Regulatory Authority (Radio Broadcast Station Operations) Regulations, 2012, prohibited P.E.M.R.A. from demanding licence renewal fee without having carried out categorization of licences---There was no legal infirmity in P.E.M.R.A.'s demand for payment of licence renewal fee---In the event petitioner did not pay licence renewal fee, consequences set out in public notice issued by P.E.M.R.A. would ensue---Pakistan Electronic Media Regulatory Authority (P.E.M.R.A.) ratified Pakistan Electronic Media Regulatory Authority (Radio Broadcast Station Operations) Regulations, 2012, at the time when Chairman P.E.M.R.A. had been appointed---Thereafter, P.E.M.R.A. made "Pakistan Electronic Media Regulatory Authority (Radio Broadcast Station Operations) Regulations, 2012, as amended in 2019, the vires whereof was not challenged by petitioner company---Constitutional petition was dismissed, in circumstances.

Pakistan Electronic Media Regulatory Authority v. Trade Serve International (Pvt.) Ltd. 2020 SCMR 206 and Hamid Mir v. Federation of Pakistan PLD 2013 SC 244 ref.

Ch. Haseeb Muhammad and Muhammad Bilal Ibrahim for Petitioner.

Malik Manzoor Hussain and Mazhar Akram for Appellants.

Ch. Muhammad Tahir Mehmood, Assistant Attorney-General, Barrister Ehsaan Ali Qazi, Muhammad Jalal Haider, Usama Akbar and Tahir Farooq Tarar for P.E.M.R.A.

Sahibzad Sheikh, Deputy Director (Legal), P.E.M.R.A.

2024 C L C 529

[Islamabad]

Before Aamer Farooq, CJ

Mst. NASREEN BIBI and others----Appellants

Versus

AHBAB AGRO FARMS (PVT.) LTD. through Chairman and MD, Lahore and others----Respondents

R.F.A. No.660 of 2021, decided on 19th September, 2023.

Civil Procedure Code (V of 1908)---

----Ss. 24, 96 & 159 [as amended by the Code of Civil Procedure (Amendment) Act (XIX of 2023)]---Civil Courts Ordinance (II of 1962), S. 18---Transfer/transmission of the appeal to the District Court from the High Court---Plea of the appellant was that the matter/appeal be transmitted/transfered to the District Court while respondents conceded the same---Validity---Section 96 of the Civil Procedure Code, 1908 was amended by the Code of Civil Procedure (Amendment) Act, 2023, ('Act of 2023') on 03.05.2023 and the District Courts were granted jurisdiction again under S. 18 of the Civil Courts Ordinance, 1962, to the extent of pecuniary matters not exceeding Rs.25,00,000/-, however, when the present appeal was preferred, S.96 of the C.P.C., 1908, at relevant time, stipulated that High Court was the exclusive forum for hearing and deciding appeals against judgment and decree passed by the Courts of plenary jurisdiction---In the present matter, pecuniary jurisdiction was, admittedly, less than Rs.25,00,000/- and if such claim/appeal were to be preferred today, the matter would be agitated in the relevant District Court---Section 16 of the Act of 2023 had amended S.159 of the Code of Civil Procedure, 1908 and its amended form showed that all proceedings commenced before the Act of 2023 were considered to be the proceedings of and dealt in accordance with the provisions of the Code which existed prior to the commencement of the Act of 2023---In the explanation to the said Section, it was provided that proceedings included appeal, review, revision, execution applications and/or all incidental matters thereto--Outcome of the amended S. 159, C.P.C. was that appeals or a suit filed prior to the Act of 2023 would continue to be treated as matters agitated under amended S. 96, C.P.C., or other similar provisions pursuant to the amendments made through Code of Civil Procedure (Amendment) Act, 2020---In other words, the amendment made in Act of 2023 shall not disturb the appeals/suits etc. by virtue of change in law---In view of referred provision of law, High Court continued to have jurisdiction to decide the present appeal, however, since a specific request had been made by all the parties present in the Court to transmit the matter to the District Court so that another forum of appeal/revision remained available to the aggrieved party, High Court directed that the order be passed under S. 24, C.P.C., 1908---Section 24 of the C.P.C, 1908, showed that High Court had the jurisdiction to transfer any proceedings including appeals pending before it for trial or disposal to any court subordinate to it and competent to try and dispose of the same---Under the said provision, as the present appeal was pending before the High Court, it certainly had jurisdiction to transfer the same to the court of competent jurisdiction which was District Court as well---A counter argument with respect to transfer of the appeal from High Court to the court of District Court could be that the legislature did not want the proceedings to be disturbed, hence amendment in S.159, C.P.C., was made, however, that argument has little or no substance, as if that was to prevail, S.24, C.P.C., 1908, would become redundant with respect to all proceedings including appeals and suits filed between the year 2020 to 03.05.2023---At present, relevant District Court does have jurisdiction to hear the present appeal pursuant to amendment made in S.96 by Act of 2023---Therefore, High Court transferred/transmitted the appeal to the relevant District Court---Matter was disposed of accordingly.

Wajid Hussain Mughal and M. Izzat Khan for Appellants.

Ahmed Shahzad Awan for Respondent No.1.

2024 C L C 638

[Islamabad]

Before Miangul Hassan Aurangzeb and Lubna Saleem Pervez, JJ

MUHAMMAD AKRAM----Appellant

Versus

LIAQAT ALI KHAN and another----Respondents

R.F.A. No.163 of 2018, decided on 10th March, 2021.

Specific Relief Act (I of 1877)---

----Ss. 12 & 54---Suit for specific performance and permanent injunction---Transfer of suit-house---Time as the essence of the contract---Contractual obligations, breach of---Vendor or vendee---Determination---Vendee's inability for preparation (of cheque etc.) for payment of balance consideration---Effect---Suit for specific performance was decreed in favour of plaintiff/vendee---Claim of the respondent/plaintiff was that appellant/ defendant had backed out of his contractual obligation as he had not taken preparatory steps for the transfer of suit-house like not obtaining a No Demand Certificate from the concerned Authority (C.D.A.) being a pre-requisite for the transfer of any property---Validity---Pleadings in the written statement were silent as to the stage when the appellant/defendant decided to back out from his obligations under the agreements---Where agreements for the transfer of immovable property for consideration as huge as Rs.1,00,00,000/- are to be made, the parties generally interact for making arrangements for the transfer and payment of the remaining sale consideration prior to the target date fixed in the agreements---No documentary evidence was brought on the record by respondent /plaintiff to demonstrate that he had the requisite funds to pay the balance sale consideration of Rs.50,00,000/- by the target date---Generally pay orders or demand drafts are made prior to or by the target date fixed in the agreements to sell---In the present case, admittedly, no pay order or demand draft or cheque for an amount of Rs.50,00,000/- had been prepared by respondent / plaintiff by the target date---Agreements to sell, duly exhibited by the respondent / plaintiff, explicitly provided a specific date (10.06.2016) for the payment of the remaining sale consideration amounting to Rs.50,00,000/---Consequences for the non-payment of the balance sale consideration by said date were also clearly set out in the said agreements, i.e. the forfeiture of the amount already paid---An amount of Rs.50,00,000/- had admittedly been paid by respondent / plaintiff to the appellant when the said agreement was executed---Therefore, it would be safe to hold that time was agreed by the said parties to be of the essence---Even otherwise, given the rapidly increasing prices of real estate, if the balance sale consideration is not paid by an agreed date, an agreement to sell loses its efficacy---Respondent (plaintiff/vendee) claimed to have issued a legal notice to the appellant(defendant/vendor) on 14.06.2016 requiring the latter to obtain an N.O.C. from the C.D.A. and transfer the suit house to the former failing which legal proceedings would be initiated---Appellant denied having received the said legal notice; he has put forth such denial as an excuse for not responding to the said legal notice---Since the appellant in relevant paragraph of the written statement had explicitly denied having received a legal notice from respondent, it became incumbent on the latter to prove that such a legal notice was issued by producing its scribe, which respondent failed to do---On the other hand, respondent as PW, in his cross-examination, admitted having received legal notice dated 18.06.2016 wherein the appellant informed respondent that the agreement dated 10.02.2016 stood cancelled due to the non-payment of the remaining sale consideration, and that the payment already made stood forfeited---Respondent did not give any reply to the said legal notice---A legal notice to which reply was given was a material document to show the conduct of the parties after the execution of the agreement and before filing the suit for specific performance---In the present case, the Civil Court did not refer to any provision of the law or a clause in the agreements to sell which obligated the appellant(vendor/defendant) to obtain a No Demand Certificate before the transfer could be made---However, the appellant had already (on 19.04.2016 i.e. before the specific/target date (10.06.2016), obtained a No Demand Certificate from the concerned Authority (C.D.A.) regarding property tax, water and allied charges---Suit for specific performance instituted by respondent /plaintiff ought not to have been decreed---Since the appellant had remained in possession of the suit-house which had increased in value over the past few years, it would not be equitable for the appellant to retain the advance payment---In said view, subject to the return of Rs.50,00,000/- by the appellant to respondent, High Court set aside impugned judgment and decree; and suit for specific performance instituted by respondent No.1 was dismissed---Appeal was allowed, in circumstances.

Muhammad Abdur Rehman Qureshi v. Sagheer Ahmed 2017 SCMR 1696; Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwalla PLD 1962 SC 1; Muhammad Taj v. Arshad Mehmood 2009 SCMR 114 and Liaqat Ali Khan v. Falak Sher PLD 2014 SC 506 ref.

Syed Javid Akbar for Appellant.

Raja Yasir Yousaf Abbasi for Respondent No.1.

Misbah-ul-Mustafa for Respondent No.2.

2024 C L C 678

[Islamabad]

Before Tariq Mehmood Jahangiri, J

EJAZ MANZOOR CHAUDHARY----Petitioner

Versus

FAUZIA VIQAR and 4 others----Respondents

Writ Petition No.1487 of 2023, decided on 14th December, 2023.

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

----S.21---Protection Against Harassment of Women at the Workplace Act (IV of 2010), S.7---Constitution of Pakistan, Art. 199---Constitutional petition---Quo warranto, writ of---Ombudsman, appointment of---Petitioner assailed appointment of respondent as Federal Ombudsperson for protection against harassment of women at workplace---Validity---Respondent was appointed as Federal Ombudsperson for protection against harassment of women at workplace under S. 21 of Federal Ombudsmen Institutional Reforms Act, 2013, for a period of four years with effect from the date of taking oath of that office---No violation of any law was committed by appointing respondent under S. 21 of Federal Ombudsmen Institutional Reforms Act, 2013---High Court declined to interfere in the appointment as there was no illegality / violation of law and rules regarding appointment in question---Constitutional petition was dismissed, in circumstances.

Jawad Ahmad Mir v. Prof Dr. Imtiaz Ali Khan, Vice Chancellor, University of Swabi, District Swabi, Khyber Pakhtunkhwa and others 2023 SCMR 162; Ayaz Ahmed Khan v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and 4 others 2021 PLC (C.S.) 1394 and Dr. Muhammad Naseem Khan v. Dr. Shahzad Ali Khan and 3 others 2023 PLC (C.S.) Note 8 rel.

Muhammad Ramzan Khan for Petitioner.

Jawad Khurshid for Respondents Nos.1 and 4.

Munawar Iqbal Duggal, Additional Attorney General.

Malik Muhammad Iqbal Kallue, Assistant Attorney General.

Rehman Shahzad, Registrar, FOSPAH.

2024 C L C 857

[Islamabad]

Before Miangul Hassan Aurangzeb, J

PAKISTAN B. TECH HONORS ENGINEERS ASSOCIATION through Muhammad Khursheed Shinwari----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice, Islamabad and 4 others----Respondents

Writ Petition No.3163 of 2020, decided on 19th January, 2024.

National University of Technology Act (VI of 2018)---

----S. 4(1)---Rules of Procedure and Conduct of Business in the National Assembly, 2007, R. 261---Constitution of Pakistan, Arts. 70 & 199---Constitutional petition---Locus standi---Legislative procedure---Amendment through corrigendum---Scope---Petitioner was aggrieved of inserting a "comma" in between words "engineering" and "technologies" appearing in S.4(1) of National University of Technology Act, 2018 through corrigendum issued by National Assembly Secretariat---Validity---Procedure under R. 261 of Rules of Procedure and Conduct of Business in the National Assembly, 2007, can be invoked only to give effect to amendments in a Bill accepted by the House and not otherwise---Amendment brought about in S.4(1) of National University of Technology Act, 2018, by insertion of a comma between the words "engineering" and "technologies" had at no material stage been subjected to a legislative process or accepted by the Parliament---Amendments in a statute no matter how insignificant made through a process other than the legislative process prescribed in the Constitution is a matter of public importance and could be judicially reviewed at the instance of a public interest litigant---It is the fundamental right of every citizen to ensure that legislation is carried out strictly in accordance with the procedure prescribed in the Constitution---Petitioner might not be personally aggrieved by corrigendum in question but when subjected to a challenge and given the fact that it was issued in order to amend S.4(1) of National University of Technology Act, 2018, without resort to the legislative process envisaged by the Constitution, High Court was left with no option but to declare it as without lawful authority and of no legal effect---High Court declared that corrigendum in question was issued without lawful authority and of no legal effect---Constitutional petition was allowed accordingly.

Muhammad Rafique v. Muhammad Ismail PLD 2008 Kar. 260; Khan Gul Khan v. Daraz Khan 2010 SCMR 539 and Commissioner Inland Revenue v. Muhammad Mustafa Gigi PLD 2022 SC 420 rel.

Raheel Azam Khan Niazi for Petitioner.

Arshid Mehmood Kiani, Deputy Attorney General for Pakistan.

Barrister Muhammad Usama Rauf for Respondent No.4.

Armaghan Saqib Khan for Respondent No.5.

Muhammad Ghias, Deputy Secretary (Legislation) and Muhammad Waqar Ch., DPS (Litigation), National Assembly Secretariat for Respondents Nos.2 and 3.

2024 C L C 871

[Islamabad]

Before Arbab Muhammad Tahir, J

PAKISTAN BROADCASTERS ASSOCIATION through Executive Director----Petitioner

Versus

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

Writ Petition No.3423 of 2017, decided on 5th December, 2023.

(a) Interpretation of statutes---

----Delegated legislation---Scope---(i) Delegated legislation must be within the permissible limits of parent statute; (ii) It must not travel beyond the mandate of parent statute; (iii) It must not be in excess of jurisdiction conferred by the parent statute; (iv) It must not be in conflict with parent statute or the Constitution; and (v) while framing rules / regulations in exercise of authority conferred by parent statute, the rules / regulations framing authority should not assume role of Parliament and attempt to amend provisions of parent statute through delegated legislation.

Lahore Development Authority through D.G. and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739; Khawaja Ahmad Hassan v. Government of Punjab and others 2005 SCMR 186; Farrukh Raza Sheikh v. The Appellate Tribunal Inland Revenue and others 2022 SCMR 1787; Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642; Suo Motu Case No.11/2011, in the matter of National Police Foundation Land PLD 2014 SC 389 and Mian Zaiuddin v. Punjab Local Government and others 1985 SCMR 365 rel.

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

----Ss. 25 & 32---Direct to Home (DTH) Distribution Service Licensing Regulations, 2016, Reglns. 2.5 & 7---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Vires of law---Petitioner was Pakistan Broadcasting Association and assailed vires of Reglns. 2.5 & 7 of Direct to Home (DTH) Distribution Service Licensing Regulations, 2016, being ultra vires to Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Validity---Provision of Regln. 2.5 of Direct to Home (DTH) Distribution Service Licensing Regulations, 2016, to the extent of allowing companies controlled or managed by foreign nationals / companies to apply for grant of license was framed beyond the permissible statutory mandate and was transgression of delegated authority---High Court struck down the provisions of Regln. 2.5 of Direct to Home (DTH) Distribution Service Licensing Regulations, 2016, as words 'with or' used after words 'if any' and before 'without' therein were in conflict with the provision of S.25(c) of Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Pakistan Electronic Media Regulatory Authority was not vested with any power to grant exemption in vacuum in exercise of powers vested in it under S. 32 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002---Such powers were to be exercised on case to case basis, after recording of reasons in writing in compliance with criteria and guidelines identified by notified Rules that too in conformity with the principles of equality and equity enshrined in the Constitution keeping n view 'public interest' involved in a particular case---High Court declined to micromanage affairs of PEMRA and re-determine provisions of Regln. 7 of Direct to Home (DTH) Distribution Service Licensing Regulations, 2016, as the same was not in contravention of fundamental rights of petitioner / Association, provisions of the Constitution or the parent statute---Pakistan Electronic Media Regulatory Authority was a statutory regulatory authority vested with power to regulate affairs of licenses and petitioner / Association could approach the Authority for redressal of grievance if any---Constitutional petition was allowed accordingly.

MAG Entertainment (Pvt.) Ltd. and others v. Independent Newspapers Corporation (Pvt.) Ltd. and others 2018 SCMR 1807 and M/s Leo Communications (Pvt.) Ltd. and others v. The Federation of Pakistan and others PLD 2017 Lah. 709 ref.

Faisal Iqbal Khan and Ms. Farzana Faisal Khan for Petitioner.

Khalid Mehmood Dhoon, Asstt. Attorney General for Pakistan.

Barrister Qasim Duggal, Advocate for PEMRA.

Tahir Farooq Tarar, Head (Legal), PEMRA.

Ch. Sajjad Hussain, Law Officer, PEMRA.

2024 C L C 928

[Islamabad]

Before Aamer Farooq, CJ

C.M. PAK. LIMITED through duly authorized Attorney----Appellant

Versus

PAKISTAN TELECOMMUNICATION AUTHORITY (PTA) through Chairman and another----Respondents

F.A.O. No.108 of 2021, decided on 20th November, 2023.

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

----Ss. 7(1) & 23---Constitution of Pakistan, Art. 10A---Charging of tariff---Inquiry---Due process and fair trial---Non-providing of documents collected during inquiry---Appellant company was aggrieved of order passed by Pakistan Telecommunication Authority in consequence of show cause notice---Validity---Appellant company did not have advantage of material / evidence collected by the Authority during visit to the office of appellant company---If such material was inculpatory or had information against appellant company, it was of utmost importance that it should have been confronted to appellant company---Failure on the part of Pakistan Telecommunication Authority to share such material and passing decision on the basis thereof had defeated ends of justice---Proceedings before Pakistan Telecommunication Authority were in the nature of quasi-judicial and it was of paramount importance that tenets of justice should have been adhered to---High Court set aside order passed by Pakistan Telecommunication Authority as the act of not sharing material gathered during visit of office of appellant company violated basic principle of justice viz due process and fair trial---High Court remanded the matter to Pakistan Telecommunication Authority for decision afresh---Appeal was allowed accordingly.

Taimoor Aslam Khan for Appellant.

Salman Mansoor along with Adil Javed, AD (Legal), PTA.

2024 C L C 937

[Islamabad]

Before Aamer Farooq, CJ

WI-TRIBE (PVT.) LTD. through Head of Legal and Regulatory Affairs----Appellant

Versus

PAKISTAN TELECOMMUNICATION AUTHORITY through Chairman---Respondent

C.M.A. No.153 of 2022, decided on 21st December, 2023.

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

----S. 7---Appeal---Contract, interpretation of---Term inter-operator charges---Scope---Bystanders test---Applicability---Appellant company was licensee of respondent / Pakistan Telecommunication Authority and had entered into Tower Sharing Agreement with third party---Appellant company was aggrieved of notice issued with regard to payments made towards annual regulatory fee after deducting payments made to third party---Validity---Test of bystanders is one of objectivity---Contractual terms should be understood or interpreted to mean that which a by stander to the contract, when asked about such a term, would ascribe to it---Test of objective interpretation is also referred to as reasonable man's test where meaning ascribed to a term is that, which a reasonable man, who is not party to the contract, could derive from bare reading of that term---Term inter-operator charges, as used in license agreement would mean the charges paid by one operator to another towards licensed activity of providing telecommunication services---Such term does not extend to all or any other payment made by one operator to another---High Court declined to interfere in the matter as the same did not suffer from any legal or factual infirmity---Appeal was dismissed, in circumstances.

Islamia University Bahawalpur v. Muhammad Hameed Bhatti 2004 SCMR 649; Additional Collector Sales Tax v. Messrs Abdullah Sugar Mills Limited 2003 SCMR 1026 and Masud Humayun v. Federal Public Service Commission 2016 PLC (C.S.) 1091 ref.

Rainy Sky SA v. Kookmin Bank (2011) 1 WLR 2900; Arnold v. Britton (2015) AC 1619 and Wood v. Capita Insurance Services Limited (2017) UKSC 24, rel.

Syed Hasnain Ibrahim Kazmi and Saleem Iqbal Janjua for Appellant.

Salman Mansoor Siddiqui for Respondent.

2024 C L C 953

[Islamabad]

Before Babar Sattar, J

SALEEM AHMED JAN----Petitioner

Versus

DEPUTY COMMISSIONER, ISLAMABAD and 6 others----Respondents

Writ Petition No.529 of 2021, decided on 1st March, 2023.

(a) Judicial review---

----Law making authority---Scope---In a polity governed by a written Constitution, all power flows from the Constitution being the fundamental law---Such Constitution while determining respective scope of authority of institutions incorporates doctrine of limited powers by design---Legislature is sovereign for it is vested with the power to write laws and also amend the Constitution, which is the supreme law---Judiciary is final for it is vested with the authority to declare what the law and the Constitution mean and how they are to be enforced---In such a scheme, the matter of interpretation and enforcement of law and Constitution falls within the province of the Judiciary---It, therefore, falls upon the Courts to determine and declare what institutional limits prescribed by the Constitution are and when an institution transgresses them---It is while determining such limits that the Judiciary often exercises self-restraint and stays its hands in various matters where it is asked to intervene, if it comes to the conclusion that a decision on the matter has been placed by the Constitution within the realm of another institution.

Marbury v. Madison (5 U.S. (1 Cranch) 137 (1803)) rel.

(b) Interpretation of Constitution---

----Written Constitution---Scope---Written Constitution is often a largely procedural document that contains bare essentials to guide functioning of the State and is unlike a very detailed substantive law or procedural code, which is why courts have to rely on the concept of implied, incidental and ancillary powers to fill in the gaps as and when required, based on the decipherable intent of the lawmaker.

The Fundamental Law of Pakistan (p. 17) By AK Brohi; McCulloch v. Maryland (17 U.S. 316 (1819)); The Constitutional Law of the United States by Willoughby; Huddart, Parker and Co. v. Moorehead (1909) 8 CLR 330, 357) and Sheikh Riaz-ul-Haq v. Federation of Pakistan PLD 2013 SC 501 rel.

(c) Administration of justice---

----Judge, role of---Scope---Judge is a neutral arbiter of law by virtue of his independence from his peers and from other branches of government i.e. the Executive and the Legislature---In exercise of his authority, Judge is bound by the Constitution, relevant statutes, relevant case law under the stare decisis principle and technical rules of interpretation of law---Judge is not free to decide cases as he pleases---While being an interpreter and enforcer of the law, a Judge is also a creation of the law---Judicial power entails power to interpret law in relation to facts of dispute before Court to render a binding decision and comes along with the power to enforce such decision---Authority to interpret law, authority to render binding decisions regarding rights and obligations of citizens and authority to enforce binding decisions are quintessential judicial functions---Function of interpreting law, rendering binding decisions, affecting rights of citizens or imposing penalties on them and powers to enforce such decisions cannot be vested in legislative committees or executive functionaries or usurped by executive authorities claiming to exercise quasi-judicial powers.

(d) Constitution of Pakistan---

----Art. 175---Courts and administrative bodies---Jurisdiction---Judicial control and oversight of all courts and tribunals that exercise judicial powers and dispense judicial functions is a salient feature of the Constitution that is often referred to as independence of the Judiciary within the larger framework of separation of powers---Any forum exercising judicial powers and dispensing judicial functions falls within the exclusive domain of the Judiciary and is independent of the authority and power exercised by other constitutional pillars of the state i.e. the Executive and the Legislature---Clear separation between the Executive and the Judiciary did not exist in 1973 at the time of adoption of the Constitution, which was why Art. 175(3) of the Constitution provided that such separation was to be brought about within a period of five years (which period was subsequently extended to fourteen years and had since elapsed)---Any executive authority exercising judicial power is anathema to the Constitution---To allow an administrative body to exercise judicial power and discharge judicial functions places at risk the rights of citizens, whose rights and obligations are adjudicated by a body that is not vested with requisite independence, is not bound by judicial method, does not fall within the control or supervision of a High Court, and against wrongful decision of which the citizen is not afforded effective judicial remedies.

Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Sheikh Riaz-ul-Haq v. Federation of Pakistan PLD 2013 SC 501; Spirit Law (1748) by Montesquieu; Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457; Government of Sindh v. Sharaf Faridi PLD 1994 SC 105; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341; Sheikh Liaquat Hussain v. Federation PLD 1999 SC 504 and United Bank Limited v. Federation of Pakistan PLD 2018 Lah. 322 rel.

(e) Constitution of Pakistan---

----Arts. 189 & 201---Decisions of Supreme Court and High Courts---Scope---By virtue of Arts. 189 & 201 of the Constitution the rule of law regime under the Constitution acquires consistency, certainty and predictability---In the event that the complaints and disputes are settled by quasi-judicial bodies, the decisions of such bodies are not legal precedents and have no binding character---While such bodies are public authorities and are obliged to act in a just, fair and reasonable manner pursuant to S. 24A of the General Clause Act, 1897, their decisions are not covered by the doctrine of stare decisis.

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

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

----Ss. 3, 4, 5, 6, 7, 8, 9 & 11---Federal Ombudsman Institutional Reforms Act (XIV of 2013), Ss. 10 (ii) & 12---Constitution of Pakistan, Arts. 8, 9, 10A, 23, 24, 175, 199, 202, 203 & 204---Constitutional petition---Vires of law---Ombudsperson, powers of---Property rights---Petitioner was aggrieved of sale of his vehicle and removal of air conditioners by respondent authorities in execution of orders passed by Ombudsman---Validity---Ombudsman, conceptually, is a part of the Executive and is vested with authority by the Executive to review exercise of authority by executive functionaries and determine whether or not such exercise amounts to maladministration---Where an act or omission amounts to maladministration, Ombudsman makes recommendation to relevant executive authority and as a matter of propriety, policy and practice the recommendation is given effect---High Court declared that provision of Ss. 3, 4, 5, 6, 7, 8, 9 & 11 of Enforcement of Women's Property Rights Act, 2020 and Ss. 10(ii) & 12 of Federal Ombudsman Institutional Reforms Act, 2013, were ultra vires Arts. 8, 9, 10A, 23, 24, 175, 202, 203 and 204 of the Constitution and were void ab initio---When provisions were declared un-constitutional, there was nothing that remained within Enforcement of Women's Property Rights Act, 2020 that could be preserved to enable the Ombudsman to continue to discharge any useful function under Enforcement of Women's Property Rights Act, 2020, in a constitutional manner---High Court directed that all matters already decided by Ombudsman pursuant to provisions of Enforcement of Women's Property Rights Act, 2020, against which no representations were filed before the President and all matters in which representations were filed and decided, such that the matters had attained finality would be treated as past and closed transactions---High Court directed that all matters which were pending before Ombudsman pursuant to Enforcement of Women's Property Rights Act, 2020, and in which decisions of Ombudsman were challenged through representations filed before the President and which representations had not been decided, shall be returned to complainants who filed complaints before Ombudsman, while issuing notice to the contesting party; and the complainants would be free to initiate legal proceedings in relation to their complaints before courts of competent jurisdiction---High Court declared that the manner in which auction of petitioner's vehicle was undertaken by the Office of Deputy Commissioner was devoid of legal authority and stood annulled---High Court directed Office of Excise and Taxation Department to revert title of the vehicle in the name of petitioner---High Court further directed respondent / auction purchaser to return the vehicle to petitioner subject to return of amount paid as consideration for the vehicle and further paid by the Office of Deputy Commissioner to respondent / complainant---As the petitioner was in wrongful possession of property of respondent / complainant, the amount generated by auction of vehicle paid by office of Deputy Commissioner to respondent / complainant in lieu of rent for possession of respondent / complainant's property by petitioner shall be treated as a past and closed transaction on grounds of equity---High Court further directed Office of Deputy Commissioner to hand over to petitioner forthwith any other electronic devices such as air conditioners owned by petitioner and taken into possession by the Office of Deputy Commissioner pursuant to orders and directions of Ombudsman---Constitutional petition was allowed accordingly.

Messrs Muslim Commercial Bank Ltd. v. Federation of Pakistan through Director, (Legal-II), President's Secretariat and 2 others 2020 CLD 829; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341, Government of Sindh v. Sharaf Faridi PLD 1994 SC 105; Sindh High Court Bar Association through Secretary v. Federation of Pakistan PLD 2009 SC 789; Muhammad Hanif Abbasi v. Jahangir Khan Tareen PLD 2018 SC 114; The Judge in a Democracy (pp. 76/77 by Aharon Barak; Princeton University Press, 2006); (118 Law Quarterly Rev 382, 388 (2002)); (cited in Judicial Independence: the Contemporary debate by Simon Shetreet and Jules Deschenes Eds. 1985); The Law of Judicial Precedent, Bryan A. Garner (Thomas Reuters, 2016, pp.5/pp.16) and Holdsworth's English Law" (Collected Legal Papers; pp 285, 290) ref.

(g) Constitution of Pakistan---

----Art. 204---Contempt of Court---Object, purpose and scope---Power to punish for contempt is part of the mechanism created by the Constitution for enforcement of law and fundamental rights guaranteed by it---Such power is a tool to protect independence of the Judiciary and to ensure that those exercising judicial powers are able to discharge their function without being influenced by considerations of fear or favour---Any provision of statute pursuant to which such judicial power is vested in an administrative body or tribunal that forms part of the Executive falls foul of Art. 204 of the Constitution---Power to punish for contempt results in a conviction and a citizen can only be convicted through exercise of judicial power---Such power is to be exercised in accordance with Art. 10A of the Constitution and adjudication required for purposes of imposition of a criminal penalty can only be undertaken by a court and not an administrative body exercising quasi-judicial authority.

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

----Preamble---Constitution of Pakistan, Art. 10A---Property rights---Scope---Dispute regarding ownership and possession of property, even when involving rights of a woman, entails adjudication of legal rights and obligations which can only be undertaken by a Court exercising judicial powers in compliance with the requirement of Art. 10A of the Constitution---It is only a Court and not a quasi-judicial authority that can issue binding decisions determining civil rights of citizens or imposing penalties on them---It is only Courts that can seek enforcement of their decisions through exercise of coercive authority of the State.

Raja Ghaneem Aabir Khan and Muhammad Ilyas Khan for Petitioner.

Farrukh Shahzad Dall, Assistant Attorney General.

Shahryar Gondal, State Counsel.

Ansar Mehmood Kiani for Respondent No. 7.

Almas Ali Jovinda, Legal Advisor, Federal Tax Ombudsman.

Saleem Akhtar, Senior Legal Advisor, Banking Mohtasib Pakistan.

Asim Shahbaz Malik, Senior Law Officer, Wafaqi Mohtasib's Secretariat.

2024 C L C 988

[Islamabad]

Before Miangul Hassan Aurangzeb, J

OIL AND GAS DEVELOPMENT COMPANY LIMITED----Appellant

Versus

MUHAMMAD NAZIR KHAN (DECEASED) and others----Respondents

F.A.O. No.40 of 2013, decided on 21st March, 2024.

Arbitration Act (X of 1940)---

----Ss. 14(2) & 38(1)---Arbitration award---Filing in Court---Procedure---Appellant company was aggrieved of dismissal of its application by Trial Court to make award the rule of the Court---Validity---Arbitrator, whose fee / dues have been cleared is not prevented under Arbitration Act, 1940, to provide the parties with signed copies of award or original award in duplicate---Where arbitrator does not provide parties with such award on the ground that his fee / dues have not been cleared, provision of S. 38(1) of Arbitration Act, 1940, entitles a party to apply to Court, which can order arbitrator to deliver award to the applicant on payment into Court by applicant of fees / dues demanded---Where an award is delivered to party either by adopting process envisaged by S.38(1) of Arbitration Act, 1940, or otherwise, the party can file such award in Court and the Court thereupon gives notice to other party of filing of the award---Provision of S. 14 (2) of Arbitration Act, 1940, applies to a case where help of Court is sought for getting award filed in Court by calling upon arbitrator to file it---High Court set aside order passed by Trial Court and remanded the matter for further proceedings on appellant's application under S. 14 of Arbitration Act, 1940, praying for award to be made the rule of the Court---Appeal was allowed accordingly.

National Logistic Cell v. Hakas (Pvt.) Limited 2010 YLR 1448; Puppalla Ramulu v. Nagidi Appalaswami AIR 1957 Andhra Paradesh 11; Syed Ziauddin v. Syed Roze-ud-Din 1999 YLR 978; Mrs. Keaye Byrne v. M. Obaidullah Khan PLD 1959 Lah. 146; Province of the Punjab v. M.A. Rashid Said Alam Khan PLD 1990 Lah. 25; Ganga Ram v. Radha Kishen AIR 1955 Punjab 145; Jai Kishen v. Ram Lal Gupta AIR 1944 Lah. 398 and Radha Kishen v. Madho Krishna AIR 1952 Allahabad 856 rel.

Khalil-ur-Rehman Abbasi for Appellant.

Ex-parte for Respondents.

2024 C L C 1002

[Islamabad]

Before Babar Sattar, J

Messrs AMAL STEEL through duly Authorized Attorney----Appellant

Versus

ANTI-DUMPING APPELLATE TRIBUNAL and 2 others----Respondents

C.M.A. No.125 of 2023 and other connected matters decided on 19th March, 2024.

Anti-Dumping Duties Act (XIV of 2015)---

----S. 70 (13)---Appeal---Locus standi---Stranger to proceedings---Condonation of delay---Appellant company was not party to proceedings before authorities nor before Anti-Dumping Appellate Tribunal---Appellant company after the period of limitation had filed appeal before High Court directly---Validity---Stranger to a suit can file appeal if he is aggrieved by decision in suit notwithstanding the fact that he was not a party to the suit---Appellant company had no standing before High Court as it had not availed right to file first appeal before Anti-Dumping Appellate Tribunal or where such appeal was dismissed on grounds of limitation---Affording such right to appellant company would render redundant the period of limitation prescribed by Anti-Dumping Duties Act, 2015 for the purposes of filing an appeal before Anti-Dumping Appellate Tribunal---Any party then could choose not to file appeal before Anti-Dumping Appellate Tribunal in the event that period of limitation had passed and would come to High Court which was second appellate forum, to avail their first right of appeal---Scheme of Anti-Dumping Duties Act, 2015 did not permit the same---Party who did not timely avail right of appeal before Anti-Dumping Appellate Tribunal could not be entertained by High Court by stepping into the shoes of First Appellate Court---Scope of appeal before High Court as second appellate forum was much more limited---High Court declined to become an instrument in altering adjudicatory scheme prescribed by Anti-Dumping Duties Act, 2015, creating Anti-Dumping Appellate Tribunal as the primary appellate forum----Appeals were dismissed, in circumstances.

Mohammad Ashraf and others v. UBL and others 2019 SCMR 1004; M/s. Spirit Industries (Pvt.) Ltd. through authorized representative v. National Tariff Commission, Islamabad and 2 others 2021 PTD 647; M/s. Al-Ahad Steel v. National Tariff Commission and others (C.M.A. No.64/2023); Khushi Mohammad through LRs. and others v. Mst. Fazal Bibi and others PLD 2016 SC 872; Taufiq Asif v. General (Retd.) Pervez Musharaf and others (Civil Petition No.3797 of 2020); Mohammad Hussain v. Walayat Shah PLD 1959 Lhr. 526; Al­-Kisan Transport v. Regional Transport Authority Lahore PLD 1961 Lah. 723; H.M. Saya & Co. Karachi v. Wazir Ali Industries Ltd. Karachi and another PLD 1969 SC 65; Sh. Mohammad Rashid v. Majid Nizami, Editor-in-Chief, The Nation and Nawa-e-Waqt, Lahore and another PLD 2002 SC 514; Government of Balochistan through Chief Secretary Quetta v. Dr. Mohammad Tariq Jafar 2020 SCMR 1689 and Hameed Akhtar Niazi v. Secretary, Establishment Division Government of Pakistan 1996 SCMR 1185 rel.

Abdul Moiz Jafferi and Salman K. Haider, Asad Ladha and Basil Nabi Malik for Appellant (in C.M.A. No.24 of 2021).

Mohammad Afzal Awan and Nazima Parveen for Appellant (in F.A.O. No.50 of 2021).

Naveed Zafar Khan for Appellant (in F.A.O. No.63 of 2021).

Waqas Amir and Abu Mohammad Azfar for National Tariff Commission (NTC).

Saif Ullah Khan for Respondent No.3 (in C.M.A. No.117 of 2023).

Ahmad Sheraz, Asad Ahmed Ghani and Mohammad Rizwan Rasheed for Respondents Nos.1 and 2, (in C.M.A. No.24 of 2021).

2024 C L C 1236

[Islamabad]

Before Babar Sattar, J

Messrs SECO SAFE WORKS through Owner / Proprietor----Appellant

Versus

The CAPITAL DEVELOPMENT AUTHORITY through Chairman----Respondent

R.F.A. No.93 of 2013, decided on 19th June, 2023.

Civil Procedure Code (V of 1908)---

----S. 34---Specific Relief Act (I of 1877), S.12---Suit for recovery of contractual amount along with interest---Payment of interest---Scope---Discretionary powers of the Court---Scope---Appellant (plaintiff / contractor) impugned judgment of Civil Court whereby his suit was decreed without interest---Validity---Section 34 of the Civil Procedure Code, 1908, provides that where a decree is for payment of money, the Court may "order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the Court deems reasonable on the aggregate sum so adjudged, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit"---In the present case, though it was correctly held by the Civil Court that defendant /respondent (Capital Development Authority) was in breach of its contractual obligation, however, it (Civil Court) erred in not considering that the appellant was entitled to payment of interest on the outstanding amount due and payable as of 25.04.1997 i.e. ten days from the expiry of the 30-day period for submission of invoice after the date fixed for completion of work, which was 15.03.1997---Failure to pay such consideration at the time fixed in accordance with the contract established that respondent/CDA was in breach of its obligation to make such payment---Appellant was out of pocket for over a decade during which period respondent /CDA continued to benefit from goods and services supplied by the appellant without having paid for such goods and services in accordance with the terms of the contract---After the appellant had established as a plaintiff that he was not in default of his obligations under the contract and had completed the supply of goods and services in the period prescribed in the contract i.e. 15.03.1997, and the respondent / CDA on the other hand was in default of its obligation to pay consideration by the period fixed within the contract i.e. 25.04.1997, the appellant was entitled to payment of interest on the amount as well as for monetary award in view of breach of contract on part of CDA---Once the Civil Court had concluded that the appellant was not a defaulting party and CDA was the defaulting party and had withheld payments to the appellant in breach of the provisions of the contract, it ought to have granted interest on the outstanding payments from date from which payment of consideration had become due, as under S. 34 of Civil Procedure Code, 1908, the Court is empowered to grant interest on payments even for a period prior to the institution of the suit---Grant or refusal of interest is a discretion vesting in court exercisable on the basis of known principles of administration of justice---Just as discretion vested in executive authorities cannot be exercised arbitrarily, the discretion vested in the court must be structured and exercised in a manner guided by principles of equity and fair administration of justice---Payment of the entire consideration under the contract became due on date fixed for completion of work (25.04.1997)---Appellant was entitled to interest on the outstanding amount of consideration from such date till the time that the amount had been paid at average bank rate of interest---Therefore, CDA would pay interest, in addition to the decretal amount, calculated on the total consideration payable starting from date fixed for completion of work (25.04.1997)---Appeal was allowed to the said extent.

Najm Koreshi v. Chase Manhattan Bank now Muslim Commercial Limited, Lahore and others 2015 SCMR 1461; Lahore Development Authority v. M/s Faisal International Construction Corporation Limited 2004 CLC 1879 and Federation of Pakistan v. M/s Aalme Engineers (Pvt.) Ltd. 2015 CLC 1273 ref.

Muhammad Safdar Ali Bhatti and Raja Muhammad Tariq Khan for Appellant.

Amir Latif Gill for Respondent.

2024 C L C 1265

[Islamabad]

Before Saman Rafat Imtiaz, J

UMAIR WASI CHAUDHARY----Petitioner

Versus

The ELECTION COMMISSION OF PAKISTAN and others----Respondents

Writ Petition No.824 of 2024, decided on 5th April, 2024.

Elections Act (XXXIII of 2017)---

----S. 95(5)(a)---Civil Procedure Code (V of 1908), O.VIII, R.5---Constitution of Pakistan, Art.199---Constitutional petition---Election dispute---Consolidation of result---Recounting of ballot papers---Victory margin less than 5% of ballot papers---Petitioner was declared as returned candidate after initial counting of votes but on recount of ballot papers, respondent was declared as returned candidate---Validity---Petitioner did not deny that the margin of victory between him and respondent candidate was less than 5% of total votes polled in concerned constituency---Such difference of votes satisfied the condition stipulated in S. 95(5)(a) of Elections Act, 2017, for Returning Officer to recount ballot papers of one or more polling stations upon request---Liberal construction of law warranted to hold that Returning Officer's failure to recount ballot papers or to pass an order in respect of respondent candidate's application despite such application meeting the prescribed threshold amounted to rejection of such application---High Court declined to interfere in the matter as petitioner failed to point out any illegality or infirmity or jurisdictional defect in the order passed by Election Commission of Pakistan resulting in miscarriage of justice---Recount had taken place since filing of petition before High Court and petitioner had invoked equitable jurisdiction but did not point out any error in result of such recount whereby respondent candidate was declared successful candidate---Petitioner did not institute any legal proceedings before any other forum to challenge the order passed by Election Commission of Pakistan---Constitutional petition was dismissed, in circumstances.

Rana Muhammad Faraz Noon v. Election Commission of Pakistan and others (W.P. No. 1333/2024); Aliya Hamza Malik v. The Returning Officer NA-118 Lahore, Case No.7 (166)/2024-Law-III (GE); Mir Mujib-ur-Rehman Muhammad Hassani v. Returning Officer, PB-41 Washuk, PLD 2020 SC 718; Zia-ul-Hassan Lanjar v. Election Commission of Pakistan PLD 2019 Sindh 163; Moulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq PLD 2008 SC 663; Aftab Shahban Mirani v. Muhammad Ibrahim Jatoi 2016 CLC 222; Maulvi Abdul Ghani v. Election Tribunal, Balochistan 1999 SCMR 1 and Let. Gen. (R) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 208 SC 735 ref.

Imtiaz Rashid Siddiqui for Petitioner.

Barrister Saman Mamoon for Respondent No.1.

Zaigham Anees, Law Officer, Election Commission of Pakistan.

Ch. Sultan Mehmood, Muhammad Ahsan Bhoon, Ch. Muhammad Yar Gondal, Ch. Hafeez ur Rehman, Shaharyar Tariq and Taimur Khan for Respondent No.3.

2024 C L C 1299

[Islamabad]

Before Aamer Farooq, CJ

MAEMONA AZHAR and others----Petitioners

Versus

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

Writ Petition No.3272 of 2016, decided on 17th May, 2024.

(a) Islamabad Capital Territory Residential Sectors Zoning (Building Control) Regulations, 2020---

----Regln. 2.17---Ban on non-confirming use---Residential plot, use of---Residential plots are authorized to be used for residential occupancy by one or more families---Renting out individual rooms to students on shared accommodation basis, does not fulfill criteria for residential use---Use of "Residential Building" as hostels or lodging houses or guest houses has been clearly and specifically excluded.

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

----S.49C---Islamabad Capital Territory Residential Sectors Zoning (Building Control) Regulations, 2020, Regln. 2.17---Constitution of Pakistan, Arts. 24 & 199---Use of building---Non-confirming use of building---Notice issued by Capital Development Authority challenged by way of writ petition---Petitioners were using their residential buildings as hostels, lodges or guest houses---Respondent / Capital Development Authority after issuing show cause notices initiated proceedings against petitioners by imposing fines and sealing of their properties---Validity---Powers conferred upon respondent / Authority by legislature in Capital Development Authority Ordinance, 1960, were justified by the purpose for which those had been conferred---There was no question of competence of Capital Development Authority or of vires of Islamabad Capital Territory Residential Sectors Zoning (Building Control) Regulations, 2020, where the Authority had exercised its powers in accordance with law and had only done so in furtherance of its mandate as the prescribed regulator---Notices issued in compliance with the procedure could not be challenged in constitutional jurisdiction as there was no adverse action taken nor order was issued whereby questions of vires and infringement of rights could arise---Issuance of show cause notice was merely a procedural requirement to provide time and an opportunity of being heard---Petitioners should have responded to notices of non-conforming use and should have stated their case before the Authority instead of skipping the prescribed procedure and directly invoking constitutional jurisdiction of High Court---Notices were issued in compliance with prescribed procedure and were intra vires and thus could not be challenged through constitutional petition---Provisions of Islamabad Capital Territory Residential Sectors Zoning (Building Control) Regulations, 2020, were intra vires the Constitution and did not infringe fundamental rights---Authority had followed prescribed procedure in letter and spirit, therefore, action of sealing premises could not be challenged on grounds of vires---High Court declined to interfere in the matter as the Authority was well within its powers while determining certain use of a premises to be non-conforming under Islamabad Capital Territory Residential Sectors Zoning (Building Control) Regulations, 2020---Constitutional petition was dismissed, in circumstances.

Col. (R.) Javed Agha and 31 others v. Arshad Mahmud and 4 others 2017 MLD 627; Mrs. Shamshad Butt v. Deputy Commissioner CDA, Islamabad and 3 others 2023 CLC 304 and Lahore Development Authority through D.V. and others v. Imrana Tiwana and others 2015 SCMR 1739 rel.

Ms. Natalya Kamal, Dr. G.M. Chaudhry, Raja Muhammad Shafait Abbasi, Awais Haider Malik, Mir Afzal Malik, Zohaib Hassan Gondal, Syed Kazim Raza Naqvi, Safraz Hussain, Rashid Hafeez, Shafiq-ur-Rehman Dab, Malik Huzaifa, Zia ul Haq, Khurram Ibrahim Baig for Petitioners (in their respective writ petitions).

Shaharyar Tariq, Ch. Haseeb Muhammad (L.A.), CDA, Muhammad Taimoor Khan, Mushtaq Ahmed Awan, Muhammad Akram Shaheen, Syed Ghulam Mustafa, G. Shabbir Akbar, Jam Mati Ullah Bobra, Uzma Aslam Mughal, Zafar Hussain Ahmed, Khurram Mehmood Qureshi, Faisal Bin Khurshid, Ch. Muhammad Asif Khan, Ch. Aziz ur Rehman Zia, Surriya Marriam Khaleeq, Amir Latif Gill, Wasim Abid, Husnain Haider Thaheem, Ms. Mahnoor, Sajida Khanum, Babar Saeed Butt, Sajid Mehmood Abbasi, Naveed Akhtar Joiya, Kalsoom Rafique, Ms. Hadiya Tayyaba, Syed Masood Hussain, Muhammad Anwar Dar, Samar Anwar Dar, Mian Haseeb Ali Bhatti, Usman Ahmad Ranjha, M. Naeem Siddique Bhatti, Muhammad Akhtar Awan, Ms. Mehwish Riffat and Faisal Nawaz for Respondents.

Nisar Ali Shah, D.D. (BCS), CDA.

Assisted by: Ms. Maheen Zeeshan (Law Clerk).

2024 C L C 1340

[Islamabad]

Before Miangul Hassan Aurangzeb and Arbab Muhammad Tahir, JJ

PAK-TELECOM MOBILE LIMITED through Head of Legal Affairs----Petitioner

Versus

Messrs DYNAMIC ENGINEERING SERVICES through Chief Executive----Respondent

R.F.A. No.145 of 2016, decided on 16th April, 2024.

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

----O.VI, R.4---Fraud, undue influence and coercion---Pleadings---Necessary ingredients---Scope---In cases of fraud, undue influence and coercion, parties' pleadings must set forth full particulars and the case can only be decided on such particulars---Mere allegation of fraud, misrepresentation and coercion not supported by any material does not invariably warrant inquiry or investigation in each case.

Messrs Dadabhay Cement Industries Ltd. v. National Development Finance Corporation, Karachi PLD 2002 SC 500 rel.

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

----Ss. 10, 42 & 54---Contract Act (IX of 1872), Ss. 15 & 16---Civil Procedure Code (V of 1908), O.VI, R.4---Suit for recovery of money, declaration and injunction---Coercion and fraud---Proof---Respondent / plaintiff filed suit against appellant / defendant on the plea that agreements in question were signed by fraud, undue influence and coercion---Suit was decreed by Trial Court in favour of respondent / plaintiff---Validity---Party complaining of having executed an agreement as a consequence of coercion or undue influence exerted by beneficiary of such agreement is expected to lose no time in seeking its cancellation---Though suit for declaration and recovery was filed by respondent / plaintiff within limitation period prescribed by law but no plausible explanation was presented by respondent / plaintiff for two-month delay in filing the suit---Such delay was of significant importance as respondent / plaintiff was seeking declaration, which was an equitable remedy---If a party claims that he entered into an agreement as a result of coercion and undue influence, then he should immediately file suit for cancellation of such agreement---Respondent / plaintiff was unable to prove coercion, undue pressure or absence of free will in signing the agreement, undertaking and modification deed---Prayer of declaration made by respondent / plaintiff with respect to modification deed and recovery of Rs.75,377,250/- could not have been allowed by Trial Court, in circumstances---High Court set aside the judgment and decree passed by Trial Court in favour of respondent / plaintiff---Appeal was allowed, in circumstances.

Dilber Hussain Hashmi v. Muslim Commercial Bank 2001 SCMR 265; Faisal Fabrics Limited v. Town Committee, Khurrianwala 2000 CLC 4; Hamida Begum v. Murad Begum PLD 1975 SC 624; Federation of Pakistan v. Javaid Nasim PLD 1994 Lah. 303; Ijaz Ahmed Khan v. Jahanzeb Khan 2016 CLC Note 128; Sardar Ahmad Hayat v. Member (Colonies) Board of Revenue 2020 CLC 31; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Munir Alam v. Mehboob Alam 2015 YLR 500; Abbas Ali Shah v. Ghulam Ali 2004 SCMR 1342; Rahim Dad v. Hamayun Shah 2020 MLD 103; Hafiz Tassaduq Hussain v. Lal Khatoon PLD 2011 SC 296; Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 SC 61; Raja Hamayun v. Sarfraz Khan Noor Muhammad 2007 SCMR 307; Muhammad Rasheed Khan v. Mst. Mehr-un-Nisa 2009 SCMR 740; Wali Muhammad v. Muhammad Ibrahim PLD 1989 Lah. 440; Haji Muhammad Sarwar Khan v. Abdul Khaliq 2013 CLC 1850; Sikandar Hayat v. Sughran Bibi 2020 SCMR 214; Ch. Iftikhar Ahmad v. The State 2018 SCMR 1385; Abdullah v. Amjad Ali Shah 2003 SCMR 894 and Nasir Ali v. Muhammad Asghar 2022 SCMR 1054 ref.

Khawaja Hasan Riaz, Jamil Ahmad Abbasi and Malik Talat Hussain for Appellant.

Ch. Mushtaq Hussain, Muhammad Azam Khan Niazi and Raheel Azam Khan Niazi for Respondent.

2024 C L C 1370

[Islamabad]

Before Miangul Hassan Aurangzeb, J

HAFEEZ ULLAH LEHRI and another----Petitioners

Versus

NATIONAL HIGHWAY AUTHORITY and others----Respondents

Writ Petition No.2101 of 2023, decided on 21st February, 2024.

Public Procurement Rules, 2004---

----Rr. 31(1) & 40---Constitution of Pakistan, Art. 199---Constitutional petition---Public procurement---Bidding process---Clarifications---New fact, introducing of---Scope---Negotiating with successful bidder---Petitioners were aggrieved of dismissal of their bid documents for not incorporating correct details---Plea raised by petitioners was that such details could be introduced while providing clarifications to procuring agency---Validity---Incorrect entries made in Certificate Form IT-1 by petitioners were such that they had a bearing on the contract price and therefore, could not have been changed in the process of providing clarifications---Allowing a negligent bidder to make amendments in his bidding documents would amount to conferring an undue advantage and preferential treatment to such bidder and a reciprocal disadvantage to other competing bidders---National Highway Authority did not commit any illegality by rejecting petitioners' bid document as non-responsive on the basis of incorrect entries made in Certificate Form IT-1 submitted by them along with their bid---Once a bidder was declared as the most responsive bidder in terms of evaluation report issued by procuring agency, there was nothing preventing procuring agency from negotiating contract price with such bidder prior to award of contract---Such negotiation was permissible within the parameters set out in R. 40 of Public Procurement Rules, 2004---High Court declined to interfere in bidding process---Constitutional petition was dismissed, in circumstances.

Gamalto Middle East FZ-LLC v. Federation of Pakistan 2020 CLD 151 and National Institutional Facilitation Technologies (Pvt.) Ltd. v. The Federal Board of Revenue PLD 2020 Isl. 378 ref.

Muhammad Masood Khan and Syed Faisal Hussain Shah for Petitioners.

Wasim Abid and Mohammad Ahmad for NHA.

Barrister Ibrahim Shahid and Hammad Rohila for Respondent No.5.

Muhammad Waqar Rana for the Applicant (in C.M. No.2711 of 2023).

2024 C L C 1394

[Islamabad]

Before Miangul Hassan Aurangzeb and Arbab Muhammad Tahir, JJ

Messrs MUHAMMAD RAMZAN & COMPANY----Petitioner

Versus

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

I.C.A. No.80 of 2022, decided on 8th April, 2024.

Public Procurement Rules, 2004---

----R.25---Public procurement---Judicial review---Contractual liability---Principle---Bid security, forfeiture of---Appellant was successful bidder who submitted bid security but due to non-filing of performance security, respondent / authority forfeited its bid security---Validity---Principle of judicial review cannot be denied so far as exercise of contractual powers of government bodies are concerned but it is intended to prevent arbitrariness or favouritism and is exercised in the larger public interest or if it is brought to the notice of the Court that in the matter of award of a contract power has been exercised for any collateral purpose---Government undertakings and statutory bodies should have free hand while framing terms and conditions of tender and Courts ought not to interfere with the same unless there is material on the record to demonstrate that they are arbitrary, discriminatory, mala fide or actuated by bias---Court cannot interfere with terms and conditions of a tender because it feels that some other term in the tender would have been fair, wiser or logical---Courts should normally not interfere in the contractual matters in exercise of powers of judicial review and it can only be exercised in case it is satisfied that the process adopted was mala fide or made to favour someone or the process adopted or decision made is so arbitrary that no man of ordinary prudence could have reached---There was no arbitrariness, favouritism or exercise of power for any collateral purpose by respondent / National Highway Authority in annulling bidding process and forfeiting bid security furnished by appellant / bidder---It was appellant's / bidder's obligation to submit its bid in conformity with the requirements of bidding document ITB (Instructions to Bidders)---Respondent / authority did not commit any illegality by not entertaining appellant's / bidder's belated request to treat its financial bid as Rs.260,772,272/- instead of Rs.4,082,400,000/---If Division Bench of High Court were to hold otherwise, it would amount to rewriting the terms of bidding documents---Annulment of award and forfeiture of bid security furnished by appellant / bidder was done by National Highway Authority in conformity with the requirements of relevant clauses of ITB---High Court declined to interfere in judgment passed by Judge in Chambers of High Court in exercise of constitutional jurisdiction---Intra Court Appeal was dismissed in, circumstances.

National Institutional Facilitation Technologies (Pvt.) Ltd. v. The Federal Board of Revenue PLD 2020 Isl. 378; Tez Gas (Private) Ltd. v. Oil and Gas Regulatory Authority PLD 2017 Lah. 111 and Tata Cellular v. Union of India AIR 1996 SC 11 ref.

Malik Muhammad Rafique Rajwana for Appellant.

Barrister Muhammad Hassan Alam for NHA.

Ms. Asia Batool, Assistant Attorney-General for Respondents.

2024 C L C 1407

[Islamabad]

Before Miangul Hassan Aurangzeb, J

PAKISTAN HOUSING AUTHORITY FOUNDATION through Managing Director----Petitioner

Versus

FEDERATION OF PAKISTAN through President and 2 others----Respondents

Writ Petition No.2383 of 2020, decided on 16th September, 2022.

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

----S.14---Constitution of Pakistan, Art. 25---Mal-administration---Intelligible differentia, classification of---Applicability---Delayed Payment Charges (DPC)---Petitioner / Pakistan Housing Authority Foundation was aggrieved of order passed by Federal Ombudsman directing to refund delayed payment charges imposed upon respondent / allottee for the period when development work remained suspended---Validity---Decision of petitioner Foundation's Board of Directors not to charge delayed payment charges from allottees for period during which work remained suspended was neither recalled at any material stage nor was diluted by decision taken by Public Accounts Committee (P.A.C.)---To deprive an allottee from refund of delayed payment charges paid for the period during which work remained suspended was irrational and discriminatory---Petitioner / Foundation placed no restriction on an allottee to sell house allotted to him---Purchaser of a house stepped into the shoes of allottee/seller and was entitled to all those privileges/concessions and was subject to all those restrictions/liabilities that the original allottee had---Classification drawn between allottees who had sold their houses and those that had not,was neither reasonable nor based on intelligible differentia---Such classification had no rational nexus to the object i.e., whether an allottee was exempt from payment of delayed payment charges for the period during which work on project remained suspended---Allottee who had not sold his house was exempted from payment of delayed payment charges for period during which work remained suspended and if such allottee had paid delayed payment charges for such period, he was entitled to refund or adjustment of that amount---High Court declined to interfere in the order passed by Federal Ombudsman---Constitutional petition was dismissed, in circumstances.

C.D.A. v. Zahid Iqbal PLD 2004 SC 99 rel.

Muhammad Nazir Jawad for Petitioner.

Arshid Mehmood Kiani, Deputy Attorney-General.

Aamir Rehman Mughal for Respondent No.2.

Respondent No.2 in person.

2024 C L C 1478

[Islamabad]

Before Mohsin Akhtar Kayani and Sardar Ijaz Ishaq Khan, JJ

CIRCLENET COMMUNICATIONS PAKISTAN (PRIVATE) LIMITED through Muhammad Wajahat Zeeshan Shah---Appellant

Versus

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through General Manager---Respondent

Regular First Appeals Nos.66 of 2013 and 55 and 56 of 2015, decided on 20th February, 2024.

Contract Act (IX of 1872)---

----S. 62---Suit for recovery of damages---Novation of contract---Effect---Respondent / plaintiff company filed suit for recovery of damages against appellant / defendant company---Trial Court decreed the suit in favour of respondent / plaintiff company---Validity---Discharge of original contract under S. 62 of Contract Act, 1872, was only to the extent it was novated, rescinded or altered---Such novated contract did not override intention of parties to novate original contract only partially---Original contract to the extent it was not novated or altered remained binding and operative---For novation excusing performance of previous agreements, it first needed to be established that parties agreed to substitute new contract wholly for the earlier one but it could not be so if accrued obligations under previous contract were kept alive in express terms despite new contract, all the more so where new contract was occasioned due to breach of first contract and injured party included a term in new contract that its claims under the old contract would remain alive---High Court declined to interfere in judgment and decree passed by Trial Court as novation did not excuse performance of accrued obligations under previous settlement agreements---Appeal was dismissed, in circumstances.

Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715; Muhammad Farooq and others v. Javed Khan and others PLD 2022 SC 73; BP Refinery (Westernport) Pty Ltd. v. Shire of Hastings (1977) 16 ALR 363 at 376; The Moorcock (1889) 14 PD 64; West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi PLD 1973 SC 222; House Building Finance Corporation v. Shahinshah Humayun Cooperative House Building Society 1992 SCMR 19; Philips Electronique v. British Sky Broadcasting [1995] EMLR 472 at 482 and Karachi Municipal Corporation v. Nawabuddin PLD 1961 (W.P.) Kar. 599 ref.

Malik Qamar Afzal for Appellant.

Tariq Aziz for Respondent.

2024 C L C 1514

[Islamabad]

Before Miangul Hassan Aurangzeb, J

NATIONAL HIGHWAY AUTHORITY---Appellant

Versus

Messrs KAC-UCC JV and others---Respondents

F.A.O. No.141 of 2023, decided on 2nd May, 2024.

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---Performance guarantee---Encashment---Principle---Respondent / plaintiff was aggrieved of encashing of Performance Guarantee issued on its behalf in favour of appellant / defendant---Trial Court allowed interim injunction restraining encashment of Performance Guarantee furnished on behalf of respondent / plaintiff by insurance company---Validity---Rights and liabilities of parties in a contract of guarantee have to be determined strictly in accordance with terms and conditions of guarantee without recourse to underlined contract---Guarantee, whether captioned as a "bank guarantee" or "performance bond" or "performance security" issued by a bank or an insurance company, is an autonomous contract and imposes an absolute obligation on guarantor to fulfill its terms---It is the language of contract of guarantee that reveals intention of parties---Where a bank / insurance company gives a guarantee in absolute and unconditional terms and where payment is to be made on demand irrespective of the dispute and differences between parties to underlying contract, bank / insurance company is duty bound to honour its obligation and it cannot be prevented by an injunction from honouring such obligation---Irrevocable commitment in the form of irrevocable bank guarantee cannot be interfered with by Courts, except where a case of fraud or irretrievable injustice has been made out---Terms of Performance Security do not defer a claim for its encashment until the resolution of disputes between the parties to underlined contract---Courts do their utmost to enforce a guarantee according to its terms and do not interfere by way of an injunction to prevent its enforcement---High Court set aside interim injunction issued by Trial Courts in favour of respondent / plaintiff restraining encashment of Performance Security in question---Appeal was allowed, in circumstances.

Sambo Construction Co. Ltd. v. Laraib Energy Limited 2021 CLC 1914; Montage Design Build v. Republic of Tajikistan 2015 CLD 8; Standard Construction Company (Pvt.) Limited v. Pakistan through Secretary Ministry of Communications 2010 SCMR 524; Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191; Pak Consulting and Engineering (Pvt.) Ltd. v. Pakistan Steel Mills 2002 SCMR 1781; National Construction Ltd. v. Aiwan-e-Iqbal Authority PLD 1994 SC 311; Pakistan Real Estate Investment and Management Company Private Limited v. M/s Sky Blue Builders 2021 CLD 518; Husein Industries Ltd. v. Sui Southern Gas Company Ltd. PLD 2020 Sindh 551; Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Limited 2003 CLD 1 and Sirafi Trading Establishment v. Trading Corporation of Pakistan Ltd. 1984 CLC 381 rel.

Malik Muhammad Tariq Rajwana for Appellant.

Sahibzada Uzair Hashim, Ali Ahmad Shah and Raja Hamza Tahir for Respondent No.1.

Malik Zaheer Abbas Tipu, representative for Respondent No.3.

2024 C L C 1604

[Islamabad]

Before Aamer Farooq, CJ

Messrs FLYING PAPER INDUSTRIES, LTD. through Authorized Representative----Appellant

Versus

FEDERATION OF PAKISTAN through Ministry of Energy, Power Division, Pak Secretariat Islamabad and 6 others----Respondents

C.M.A. No.08 of 2024 (with other connected appeals), decided on 26th June, 2024.

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

----Ss. 3 & 12-G(6)---Appeal---Maintainability---Fuel Price Adjustment (FPA) and Quarterly Tariff Adjustment (QTA)---Determinations---Appellants were end-users of electricity and were aggrieved of Determinations of FPA as well as QTA---Plea raised by appellants was that while setting aside Determinations, Tribunal did not set aside the notifications of those Determinations---Appellants raised further plea that since Determinations, which led to the notifications, were set aside, no FPA and QTA could be demanded on the basis thereof---Validity---Determinations in question of FPA and QTA had economic impact and/or implications---No vacuum could exist in so far as charges in question were concerned---Determinations in question were set aside, but the notification based on them, should hold the field till such time that new Determinations were made and notified---After Determinations were made, relevant adjustments could always be made and notified accordingly and in case National Electric Power Regulatory Authority / Federal Government was to refund amount to users, this could be done or vice versa---Tribunal ordered fresh Determinations to be made, which naturally would be done, after inviting public objections and such proceedings would be open---No prejudice would be caused to appellants or any member of the public inasmuch as they could voice their grievance before National Electric Power Regulatory Authority prior to determination of FPA and QTA---Supreme Court while setting aside decision of another High Court had remanded the matter purely on the same principles---High Court declined to interfere in judgment passed by Tribunal as the same did not suffer from any material error of law or fact warranting interference---Appeal was dismissed accordingly.

C.P. No.491-L of 2023 fol.

Saeed Ahmed v. The State PLD 1964 SC 266; M. Saif v. Lahore Development Authority and others PLD 2021 Lah. 168; Institute of Architects, Pakistan (Lahore Chapter) v. Province of Punjab 2016 PTD 1103; Pakistan Telecommunication Employees Trust v. Federation of Pakistan and others PLD 2017 SC 718; M/s Pakistan Television Corporation Limited v. Federation of Pakistan and others 2017 SCMR 1136; Dr. Raja Aamer Zaman v. Umer Ayub Khan and others 2015 SCMR 1303; Commissioner Inland Revenue Rawalpindi v. Sarwaq Traders Rawalpindi 2022 SCMR 1333; The Collector of Sales Tax v. M/s Super Asia 2017 SCMR 1427 = 2017 PTD 1756; Mirpur Khas Sugar Mills Limited through Wasif Khalid v. Federation of Pakistan through Secretary, Cabinet Division, Islamabad PLD 2021 Sindh 418; Fazal Shafique Textile Mills Limited v. Rehmat Khan PLD 1972 Kar. 397; Tri Star Industries (Pvt.) Ltd. v. Trisa Burstenfabrik AG Triengen 2023 SCMR 1502; PLD 1964 SC 266; Qazi Tahir v. Secretary, Pakistan Medical Commission 2022 PLC (C.S.) 805; Shamroz Khan v. Muhammad Amin PLD 1978 SC 89; Flying Board and Paper Products Ltd. v. Government of Pakistan through Secretary, Cabinet Division 2010 SCMR 517; Ghani Global Glass Limited v. Federation of Pakistan through Secretary Energy (Power Division), Islamabad PLD 2020 Lah. 167 and ICC Textile Limited through Authorized Representative v. Water and Power Development Authority (WAPDA), Lahore through Chairman 2009 CLC 1343 ref.

Faisal Zafar, Arsalan Riaz, Khawaja Ahmed Tariq Rahim, Advocate Supreme Court through video link, Qamar Uz Zaman Cheema, Barrister Momin Malik, Ahmed Ijaz Yousaf, Hissam Tariq Rahim, Hashim Tariq Rahim, Abdul Qadus, Rana Sajid Rasool, Syed Tasadduq Musatafa Naqvi, Syed Tassadaq Murtaza Naqvi, Muhammad Adnan Awan, Mian Mahmud ur Rasheed, M. Siddique Qazi, Abdul Rehman Qadir, Barrister Hassan Qadir Khan, Barrister Asghar Khan, Sajid Chohan, Habza Shah, Nida Aftab, Jawad Khurshid Warriach, Dil Nawaz A. Cheema, Rana Ali Akbar Khan, Abdul Samad Khan, Ali Raza, Muhammad Shafique, Nida Aftab, Hassan Qadir Khan, Naeem Arif, Haq Nawaz Chatta and Syed Hassan Ali Raza for Appellants (in their respective appeals).

Munawwar us Salam, Iftikhar Riaz Ud Din, Barrister Asghar Khan, Atif Waheed, Taimur Aslam Khan, Mudassar Abbas, Raza ur Rehman Asad, Barrister Ummar Zia Ud Din, Sh. Muhammad Ali, Faisal Bin Khurshid, Barrister Qasim Arif Duggal, Muhammad Azam Malik, Wasim Abid, Waqar A. Sheikh, M. Azeem Daniyal, Barrister Ahsan Hameed Dogar, Barrister Asghar Khan, Barrister Umar Zia Ud Din, Muhammad Rizwan Nazar, Abdul Hafeez Dhiloon, Barrister Malik Kashif Rafique Rijwana, Malik Ghulam Sabir, Shoaib Rashid, Saeed Khan Akhunzada, Abdul Hameed for Respondents (in their respective appeals).

Shoaib Rashid and Anique Salman Malik for Applicant (in Cross Objection No.04-2024).

Sabir Hussain, Legal Advisor, CM Pak Limited.

Mian Ahmed Ibrahim, Legal Advisor, NEPRA with Hassan Wasim Bhinder, AD (Legal), NEPRA, Saif Suhail Younas, DGM (Legal Affairs), K Electric.

Hafiz Ansar Ali, Superintendent (Legal) and Anis ur Rehman, AD (Litigation), Zulfiqar Chaddar, DD (Commercial), FESCO HQ Faisalabad, Mehfooz Bhatti, Joint Secretary and Muhammad Asad Saleem, Section Officer (Law), Power Division, Hisham Humayun, Senior Manager (Legal), Nooren Iqbal, Fakhra Bashir Raja, Deputy Manager (Legal) and Muhammad Zunair Seemab, A.D. (Legal), CPPA-G., Ansar Mehmood, Chief Law Officer (GEPCO), Faizan Ullah, RO, FESCO, Jauharabad, M. Ayaz Haider Malik, RO, FESCO Kalabagh.

Assisted by Ms. Maheen Zeeshan (Law Clerk).

2024 C L C 1720

[Islamabad]

Before Miangul Hassan Aurangzeb, J

SURIYA ALTAF and another----Petitioners

Versus

MUHAMMAD WAZIR----Respondent

Civil Revision No.148 of 2024, decided on 7th May, 2024.

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

----O. XXXIX, R. 2(3) & S. 151---Specific Relief Act (I of 1877), Ss.42, 12 & 54---Suit for declaration, possession and permanent injunction---Injunction order, violation of---Sealing order passed on report of bailiff---Proceedings in application under O. XXXIX, R.2(3), C.P.C.---Powers of the Court---Scope---Plaintiff, while claiming to be the owner of suit-property pursuant to sale deed/mutation, alleged that the defendants had dispossessed him from the suit-property---Trial Court granted ad-interim injunction directing the defendants to maintain status quo; which injunctive order was later confirmed---Thereafter, the plaintiff filed an application under O.XXXIX, R. 2(3), C.P.C., alleging that in violation of the injunctive order, the defendants were raising construction over the suit -property; the Trial Court, in view of spot inspection report by Court's bailiff, while allowing the said application, directed for the suit property to be sealed ('the sealing order')---Defendants filed revision petition as their assailing the said sealing order but to no avail---Question was whether the Civil Court, while deciding the application under O.XXXIX, R.2(3), C.P.C., was competent to have passed the order for sealing the suit property---Contention of the petitioners / defendants was that sealing of the suit property was without jurisdiction as while deciding the application under O. XXXIX, R. 2(3), C.P.C., the Trial Court had to either punish the alleged contemnors or acquit them---Validity---Petitioners / defendants had not denied that the ad-interim injunctive order was in the favour of respondent / plaintiff---Admittedly, the said injunctive relief was confirmed after an inter-partes hearing---Vide the said injunction, the petitioners / defendants were directed to maintain status quo with regard to the suit property---In his application under O.XXXIX, R. 2(3), C.P.C., the respondent / plaintiff had alleged that despite the temporary injunction in the field, the petitioners / defendants, in violation of the said injunction, were raising construction over the suit property---Vide the sealing order, the Civil Court directed the bailiff to visit the spot, enforce the injunctive order with the assistance of the local police and submit a report regarding the suit property---Sealing order passed by the Civil Court referred to the report of the bailiff and observed the same to be affirmative with respect to construction on the suit property---It was in said backdrop that vide sealing order the Civil Court directed for the suit property to be sealed in view of S.151, C.P.C.---Record revealed that after the confirmation of the injunctive order , the contempt petition was filed by the respondent/plaintiff alleging violation of the injunctive order at the hands of the petitioners / defendants by raising construction despite knowledge of the injunctive order---As it was confirmed by the bailiff in his report that the construction was raised on the suit property, the Civil Court did not commit any illegality by sealing the suit property---Indisputably, the act of blatant disregard of an injunctive order was akin to over-reaching the process of law and it was the duty of the Civil Court to protect the rights of the parties as they existed on the date of the filing of the suit and the grant of an injunction---Hence, the impugned orders declining to recall the sealing order passed by the Civil Court did not call for interference---Revision petition filed by the defendants, being merit-less, was dismissed in limine.

Bakhtawar v. Amin 1980 SCMR 89; Hazara (Hill Tract) Improvement Trust v. Qaisera Ellahi 2005 SCMR 678; Saleem-ud-Din v. Municipal Committee 2000 SCMR 460; Mayo Khan v. Bashir Ahmad 2007 MLD 588; Hameeda Akhtar v. Nazir Muhammad 1995 CLC 2020 and Akbar Ali v. Muhammad Sabir 1989 MLD 92 ref.

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

----S. 151 & O. XXXIX, R.2(3)---Specific Relief Act (I of 1877), Ss.42, 12 & 54---Suit for declaration, possession and permanent injunction---Inherit powers of the Court---Injunction order, violation of---Scope and effect---Plaintiff, while claiming to be the owner of suit-property pursuant to sale deed/mutation, alleged that the defendants had dispossessed him from the suit-property ---Trial Court granted ad-interim injunction order directing the defendants to maintain status quo; which injunctive order was later confirmed---Thereafter, the plaintiff filed an application under O.XXXIX, R.2(3), C.P.C., alleging that in violation of the injunctive order, the defendants were raising construction over the suit-property ; the Trial Court, in view of spot inspection report by Court's bailiff, while allowing the said application, directed for the suit property to be sealed ('the sealing order')---Defendants filed revision petition assailing the said sealing order but to no avail---Validity---Section 151, C.P.C., should be invoked to give effect to an order validly passed by a Court of competent jurisdiction---When unlawful measures are adopted by a party, it is the responsibility of the Court to invoke S.151, C.P.C., to secure the ends of justice, or to prevent abuse of the process of the Court---That is what, in the present case, the Civil Court did by passing the sealing order and that is what the Court was required to do---Hence, the impugned orders declining to recall the sealing order passed by the Civil Court did not call for interference---Revision petition filed by the defendants, being merit-less, was dismissed in limine.

Ch. Abdul Rehman Hur Bajwa for Petitioners.

2024 C L C 1753

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Dr. FARAH SOHAIL----Appellant

Versus

Dr. FOUZIA HUMAYUN and others----Respondents

Regular First Appeal No.479 of 2023, decided on 21st June, 2024.

Partition Act (IV of 1893)---

----S.4---Civil Procedure Code (V of 1908), S. 35(1)(iii) [as amended by Costs of Litigation Act, 2017]---Specific Relief Act (I of 1877), Ss. 42 & 54---Capital Development Authority Property Manual, Chapter-VI, Clause 9---Suit for declaration, injunction and partition of dwelling house---Joint property---Auction of shares---Appellant / defendant assailed preliminary decree passed by Trial Court on the plea that shares in suit property could not be auctioned---Validity---Jointly owned property can be transferred by one of the co-allottees under Clause 9 in Chapter-VI of Capital Development Authority Property Manual, to the extent of his share without consent of other co-allottees---Even if suit houses were considered as an indivisible whole, the transfer of shares of appellant and respondents was permissible and transfer of such shares was also permissible---There was no lawful impediment for transfer of shares through auction---Auction purchaser of shares of respondents in suit house, which was over 50% of suit property, was bound by private partition carried out and acted upon by predecessor-in-interest of parties---High Court imposed special costs upon appellant under S.35(1)(iii),C.P.C., as amended by Costs of Litigation Act, 2017, for his conduct, which was inequitable in denying possession of suit property to its co-owners who happened to be her real sisters and embroiling them in litigation---Appeal was dismissed, in circumstances.

Ghulam Rasool v. Muhammad Khalid 2006 YLR 2289; Azhar Hussain Shah v. Member Board of Revenue, Khyber Pakhtunkhwa 2016 YLR 1489 and Mazullah Khan v. Taraja Begum 2020 YLR 2206 distinguished.

Zafar Kundi for Appellant.

Kashif Ali Malik and Qaiser Abbas Gondal for Respondents Nos.1 to 3.

Rubina Saeed, Humaira S. Masihuddin and Sagheer Ahmed Bhatti for Respondents Nos.4 and 5.

Barrister Bilal Naseer and Ms. Meraj Tareen for Respondent No.6/CDA.

2024 C L C 1801

[Islamabad]

Before Mohsin Akhtar Kayani, J

SUMAIRA SHAHEEN and 2 others---Petitioners

Versus

JUDGE FAMILY COURT ISLAMABAD (EAST) and another---Respondents

Writ Petition No.1972 of 2024, decided on 12th July, 2024.

Family Courts Act (XXXV of 1964)---

----S.5, Sched. & S.12-A---Constitution of Pakistan, Arts.4, 9, 33, 35 & 37---Constitutional petition---Delay in resolving the family disputes---Casual attitude of Judge Family Court ignoring the timeline given in S.12-A of Family Courts Act, 1964---Effect---Multiple directions were issued to Judge Family Court for expeditious disposal of the matter highlighting noticeable delay in the proceedings---It is the most sacred duty of Judge Family Court to resolve the family issues in line with the mandate of Family Courts Act, 1964 ('Act') as well as to strictly adhere to the legislative intent in terms of S.12-A of the Act---In multiple cases Family Courts proceedings linger on either due to the conduct of the parties or due to some other factors including but not limited to sluggish approach adopted by the Judges of Family Courts as well as by the lawyers in family cases without realizing the concepts as enshrined in the Constitution for protection of families, children and marriages---High Court after going through all the concepts given in the Constitution was of the view that certain directions are required to resolve all such practices in which women of Pakistan stand negated or deprived from their right to life or are treated with biases in which they cannot get their legal relief within the time frame provided in statute, therefore, it is responsibility of the State as well as of the High Court to draw such a mechanism and procedure to eliminate the delays and provide speedy mechanism of dispensation of justice in family cases to every woman and child---No doubt men will also be beneficiary of such directions, therefore, High Court while formulating certain directions disposed of the constitutional petition.

Ali Adnan Dar v. Judge Family Court PLD 2016 Lah. 73; Muhammad Naveed Akhtar v. Mst. Ghazala Batool PLJ 2022 Lah. 744; Ghafoor Ahmed Butt v. Mst. Iram Butt PLD 2011 Lah. 610; Shah Maqsood v. Khair-un-Nisa 2021 CLC 561; Aamir Munir Puri v. Mst. Saima Naeem and others 2021 YLR 2166; Tahir Ayub v. Miss Atia Anwar 2015 YLR 2364; Muhammad Shahbaz Khalid v. Judge Family Court PLD 2013 Lah. 64; Mst. Sitwat Chughtai v. Judge Family Court, Lahore PLD 2009 Lah. 18; Muhammad Asim v. Mst. Samro Begum PLD 2018 SC 819; Dr. Aqeel Waris v. Ibrahim Aqeel 2020 CLC 131 and Tauqeer Ahmad Qureshi v. Additional District Judge Lahore PLD 2009 SC 760 rel.

Saira Khalid Rajput, Saiqa Azam, Shazia Saleem and Saima Yasmin Awan for Petitioners.

2024 C L C 1838

[Islamabad]

Before Aamer Farooq, CJ and Miangul Hassan Aurangzeb, J

MUHAMMAD HANIF QURESHI---Appellant

Versus

MUHAMMAD AYUB and another---Respondents

Regular First Appeal No.84 of 2016, decided on 2nd December, 2019.

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

----Ss. 42, 39 & 54---Suit for declaration, cancellation, recovery, permanent and mandatory injunction---Official documents, presumption of---Fraud, allegation of---Proof---Claim in the suit was that exchange agreement executed between the plaintiff and original owner of the suit-plot had entitled him to be its sole owner; that defendant was merely one of the two attesting witnesses of the said agreement, who was unlawfully claiming 50% share in the suit property---Stance of the defendant was that he and plaintiff had jointly purchased the suit property---Suit was dismissed by the Trial Court---Validity---Record revealed that the original owner of the suit -property submitted an application (having been exhibited by the respondent/defendant) before the Capital Development Authority (C.D.A.) for the transfer of the suit-property in favour of (both ) the appellant/plaintiff and respondent / defendant---Respondent/defendant also got exhibited a declaration to the C.D.A. admitting the contents of original owner's said application for the transfer of the suit property; they had also submitted bank draft for an amount in favour of the C.D.A. for the transfer of the suit property---Appellant and respondent jointly swore an affidavit undertaking to indemnify the C.D.A. against all losses and damages that might be occasioned by the transfer of the suit property in their favour---It was not disputed that the appellant /plaintiff appearedbefore the C.D.A. along with respondent / defendant for the transfer of the suit property and, vide a transfer letter, the suit property was transferred jointly to the appellant and respondent---Documentary evidence especially the "declaration of transferee" and the affidavit/undertaking were of crucial importance since these documents bearing the appellant's signatures showed that the suit property was to be jointly transferred in the names of the appellant and respondent as the purchasers of the suit- property---Appellant appeared as a witness and admitted his signatures on the said documents ; he, being an educated person, could not claim to be ignorant as to the contents of said documents---Relevant Transfer Letter (duly exhibited) could be equated with a title document ; since it was an official document, a presumption of correctness was attached to it---Heavy burden rested on the appellant to prove that the said document was obtained through fraud---All said exhibited documents (Transfer Letter, application for the transfer of allotment of the suit property submitted by original owner, the "declaration of transferee" and the affidavit/undertaking submitted jointly by the appellant and respondent), held that the process leading to the issuance of the Transfer Letter in favour of the appellant and respondent did not suffer from any illegality---Transfers of immovable properties made before the C.D.A. had to be given due sanctity and could not be interfered with unless clear fraud was proved by the party impeaching such a transfer---Claim of the appellant / plaintiff (regarding transfer of the suit property due to alleged exchange agreement) was not sufficient to interfere with the impugned judgment and decree passed by the Civil Court dismissing his suit---Appeal filed by the plaintiff was dismissed, in circumstances.

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

----Ss.42, 39 & 54---Suit for declaration, cancellation, recovery, permanent and mandatory injunction---Cancellation of title documents---Fraud, assertion of---Knowledge of fraud not specifically pleaded---Claim of the plaintiff was that exchange agreement executed between the plaintiff and original owner of the suit-plot had entitled him to be its sole owner; that defendant was merely one of the two attesting witnesses of the said agreement, who (defendant) was unlawfully claiming 50% share in the suit property---Stance of the defendant was that he and plaintiff had jointly purchased the suit property---Suit was dismissed by the Trial Court---Validity---Appellant/plaintiff claimed to be unaware of the transfer of the suit property in the joint names of the appellant and respondent until a few days before the institution of the suit; which (claim) was explicitly pleaded in relevant paragraph of the suit---However, in the (plaint of) suit, the appellant did not plead as to how he came to know about the transfer of the suit property in the joint names of the appellant and respondent, and why he had remained unaware of the said transfer for years after the same had been made---Claim of the appellant / plaintiff (regarding transfer of the suit property due to alleged exchange agreement) was not sufficient to interfere with the impugned judgment and decree passed by the Civil Court dismissing his suit---Appeal filed by the plaintiff was dismissed, in circumstances.

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

----Ss. 42, 39 & 54---Suit for declaration, cancellation, recovery, permanent and mandatory injunction---Fraud and professional breach of trust, assertion of---Proof---Claim of the plaintiff was that exchange agreement was executed between the plaintiff and original owner of the suit-plot had entitled him to be its sole owner; that defendant was merely one of the two attesting witnesses of the said agreement, who was unlawfully claiming 50% share in the suit property---Stance of the defendant was that he and plaintiff had jointly purchased the suit property---Suit was dismissed by the Trial Court---Validity---Appellant/plaintiff was seeking to undo the transfer of the 50% share in the suit property in favour of respondent by alleging "professional breach of trust" and "fraud"---Appellant had given no particulars of fraud in the suit---It was only vaguely pleaded that respondent/defendant had mentioned his own residential address as that of the appellant in the records of the C.D.A. during the transfer process--- Although the (exhibited) transfer letter had been addressed to the original owner, but its (letter's) copies had also been dispatched to the appellant and respondent showing their address, which was the same very address which was given by the appellant and respondent as their address in the "declaration of transferee" (exhibited by the defendant) as well as the affidavit/undertaking (exhibited by defendant) sworn by the appellant and respondent---Thus, the appellant could not complain about the transfer letter being sent to an address that the appellant had himself provided in the said (exhibited) documents---Additionally, that was the very same address which had been provided by the original owner in his application form (duly exhibited by the defendant) as the appellant and respondent's address---Appellant being an educated person could not claim to be unaware about the contents of the said documents---No plausible explanation was presented by the appellant as to why the appellant waited for more than four years before instituting the suit for, inter alia, the cancellation of the relevant transfer letter---Claim of the appellant / plaintiff (regarding transfer of the suit property due to alleged exchange agreement) was not sufficient to interfere with the impugned judgment and decree passed by the Civil Court dismissing his suit---Appeal filed by the plaintiff was dismissed, in circumstances.

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

----Art. 129(g)---Specific Relief Act (I of 1877), Ss. 42, 39 & 54---Suit for declaration, cancellation, recovery, permanent and mandatory injunction---Title documents, challenging of---Best evidence, withholding of---Adverse presumption claim of the plaintiff was that exchange agreement executed between the plaintiff and original owner of the suit-plot had entitled him to be its sole owner; that defendant was merely one of the two attesting witnesses of the said agreement, who was unlawfully claiming 50% share in the suit property---Stance of the defendant was that he and plaintiff had jointly purchased the suit property---Suit was dismissed by the Trial Court---Validity---Since the appellant / plaintiff asserted that the suit property was only purchased by him from the original owner and that respondent had not paid any sale consideration for the suit property, the person whose testimony would have been most crucial in determining whether the suit property was purchased jointly by the appellant and respondent or singly by the appellant would have been the original owner--- If there was any truth to the appellant's assertion that the suit-property had only been purchased by him, he would have lost no time in producing original owner as a witness so that he could give testimony in consonance with his( appellant's) case; which, the appellant did not do---Appellant's failure to produce the original owner would give rise to a presumption under Art. 129(g) of the Qanun-e-Shahadat, 1984 that the evidence which could be but was not produced, would, if produced, be unfavourable to the person withholding it---Even the appellant failed to produce the second attesting witness of the said agreement in order to prove that it was executed in accordance with the law---Claim of the appellant / plaintiff (regarding transfer of the suit property due to alleged exchange agreement) was not sufficient to interfere with the impugned judgment and decree passed by the Civil Court dismissing his suit---Appeal filed by the plaintiff was dismissed, in circumstances.

Muhammad Ilyas Sheikh, Talha Ilyas Sheikh and Muhammad Javeid Iqbal Malik for Appellant.

Barrister Umer Aslam Khan and Tariq Mehmood Mirza for Respondent No.1.

2024 C L C 1881

[Islamabad]

Before Babar Sattar, J

MUHAMMAD RAMZAN KHOKHAR---Appellant

Versus

MUHAMMAD RIAZ and others---Respondents

Regular First Appeal No.298 of 2021, decided on 14th June, 2024.

Specific Relief Act (I of 1877)---

----Ss.12 & 54---Civil Procedure Code (V of 1908), S. 96 & O.XXIII, R.3---Suit for specific performance of agreement to sell and injunction---Consent decree---Appeal---Maintainability---Appellant / defendant assailed consent decree on the plea that he had not given any authority to his counsel to give conceding statement to decree the suit on the basis of compromise---Plea raised by respondent / plaintiff was that no appeal could be filed against consent decree---Validity---Where there exists an order recording consent by parties, any party can challenge such order on the basis that no consent was given for purposes of passing of order on the basis of a compromise, which then led to issuance of a decree---Where such ground is raised, the appeal cannot be dismissed out of hand in terms of S. 96(3) of C.P.C.---Appeal filed by appellant / defendant was maintainable and it was for appellant / defendant to establish that the order recording consent was not sustainable as no consent had been given or no statement had been made before the Court---Clear authority vested in the counsel to affect a compromise, which compromise was affected by the counsel in the interest of appellant / defendant and accordingly order in question was passed recording such compromise---Appellant/ defendant failed to establish that the compromise was not duly authorized or that his counsel did not have authority to enter into a compromise---High Court declined to interfere in order recording such compromise, as the same suffered from no infirmity---Appeal was dismissed in circumstances.

Siraj Din v. Mohammad Yousaf and others 1982 SCMR 539; Mohammad Ejaz and 18 others v. Noor Khan and 03 others 2018 CLC 75; Aamir Abbas and 02 others v. Yasmeen Haider and 03 others 2018 CLC 1482; Mohammad Ali v. Mohammad Ishaq 1992 MLD 741; Hassan Akhtar v. Azhar Hameed PLD 2010 SC 657; Mohammad Bashir v. Election Tribunal PLD 1992 Lah. 432; Mohammad Saeed v. Mohammad Akram Munir 2001 YLR 919; Sourendra Nath Mitra and others v. Tarubala Dasi AIR 1930 PC 158; Dr. Ansar Hassan Rizvi v. Syed Mazahir Hussain Zaidi and 03 others 1971 SCMR 634; M/s Arokey Limited and another v. Munir Ahmad Mughal and 03 others PLD 1982 SC 204; Mst. Noor Jahan Farooqi v. Azmat Hussain Farooqi and another 1992 SCMR 876; Fazal Mehdi and others v. Allah Ditta PLD 2007 SC 343 and Mohammad Riaz Hussain v. Zahoor-ul-Hassan 2021 SCMR 431 ref.

Malik Tanveer-ul-Hassan for Appellant.

Gul Hussain Jadoon for Respondent No.1.

Hasan Raza Khan and Yasmeem Yasin Sandhu and Ms. Saba Mohsin, Ex-Oath Commissioner for Respondents.

2024 C L C 1941

[Islamabad]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD WAQAR AZEEM and another---Appellants

Versus

Dr. KARTAR LAL PIRWANI and others---Respondents

Regular First Appeal No.190 of 2021, decided on 12th July, 2023.

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

----O. XXIII, R. 1(3)---Withdrawal of suit simpliciter---Scope---Fresh/second suit, filing of---Maintainability----Second suit filed by the appellant/plaintiff was not entertained by the Trial Court---Validity---Relevant Civil Court's order whereby the earlier suit was withdrawn showed that counsel of the plaintiff/appellant had recorded a statement to the effect that the suit was being withdrawn due to a compromise arrived at between the parties---Neither were the terms of the compromise brought on record nor was the suit decided in terms of any compromise---However, plaintiff instituted a second suit for specific performance of the agreements against the vendor---Though there was reference to a compromise in (plaint of) second suit, on the basis of which the earlier suit was withdrawn but there was no mention as to the terms of the compromise---In relevant paragraph of plaint the said suit, there was a bald assertion that Defendant/vendor had violated the terms of the compromise---Therefore, the withdrawal of the first suit instituted by plaintiff/appellant would be treated as a withdrawal simpliciter having the consequences envisaged by O.XXIII, R.1(3) of the Civil Procedure Code, 1908, as said Rule, inter alia, mandates that where a plaintiff withdraws from a suit without the permission of the Court to file a fresh suit on the same subject matter, he shall be precluded from instituting any fresh suit in respect of such subject matter---Plaint in the second suit for specific performance instituted by plaintiff/appellant was rightly rejected by the Civil Court because O.XXIII, R.1(3), C.P.C., precluded him from instituting the suit on the same subject matter as the earlier suit instituted by him---Said (withdrawal) order was accepted by the plaintiff himself as he never challenged the same before a higher forum---Appeal was dismissed, in circumstances.

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

----Ss. 12, 18 & 54---Suit for specific performance of agreements to sell, permanent injunction and compensation / damages---First purchaser entering into agreement to sell with third party purchaser without acquiring rights from original owner---Scope and effect---Civil Court, allowed/decreed the suit instituted by third party purchaser to the extent of relevant prayer in the said suit i.e. "the recovery of an amount as compensation along with mesne profit @ 15% per annum w.e.f agreed date of payment till final realization of the amount"---Appellants (two in number), who were defendants in suit being first purchasers (vendees), assailed the said judgment and decree---Plea of the appellants (vendees/first purchasers) was that the terms of the first agreement authorized them to resell the suit plot at any price and to any person; that it was also agreed that in the event they resell the suit-plot before its transfer in their name, vendor (original owner) would have no objection and would execute such documents as they might require---Validity---Record revealed that in furtherance of the terms of the First Agreement, appellants had paid Rs.20,00,000/- to vendor (original owner ) and the remaining amount of Rs.1,20,00,000/- was to be paid within one month of date of execution of (first) agreement with a grace period of one week---There was nothing on the record to show that appellants had paid the remaining sale consideration to the vendor (original owner) or were in a position to make such a payment---Vendor (original owner) forfeited Rs.20,00,000/- which had been paid as earnest money by them (appellants /vendees)---Despite the First Agreement, the fact remained that the ownership of the suit-plot at all relevant times remained with the vendor (original owner), due to which, appellants(defendants / first vendees) were in no position to transfer title in the suit plot in favour of plaintiff (third party purchaser) under the terms of the Second Agreement---Appellants represented, by executing the Second Agreement with plaintiff (third party purchaser), that they were authorized to transfer the suit-plot and professed to transfer the same for consideration mentioned in the said agreement---Since the Second Agreement had no reference to the First Agreement, they (appellants) fraudulently (not erroneously) represented to plaintiff that they were authorized to sell the suit-plot---Even if it was assumed that they did so erroneously, the fact remained that they did not acquire ownership in the suit plot by the date stipulated in the Second Agreement for the transfer of the suit plot---However, plaintiff (respondent/third party purchaser) could not expect the Court to pass a decree for specific performance of the Second Agreement in his favour---Civil Court was wise in turning down plaintiff's prayer for a decree for specific performance of the Second Agreement and allowing his prayer for compensation---No illegality or infirmity had been noticed in the impugned judgment and decree passed by the Trial Court---Appeal, filed by the defendants, was dismissed with costs throughout.

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

----Ss. 12 , 18 & 54---Suit for specific performance of agreements to sell, permanent injunction and compensation / damages---First purchaser entering into agreement to sell with third party purchaser without acquiring rights from original owner---Scope and effect---Civil Court, allowed/decreed the suit instituted by third party purchaser to the extent of relevant prayer in the said suit i.e. "the recovery of an amount as compensation along with mesne profit @ 15% per annum w.e.f agreed date of payment till final realization of the amount"---Appellants (two in number), who were defendants in suit being first purchasers (vendees), assailed the said judgment and decree---Validity---It has become common place these days that when the value of real estate increases by the day people execute agreements to purchase immovable property having no resources to pay the sale consideration but soon after executing such agreements they start searching for third party purchasers so as to generate funds to pay the sale consideration to the original owners---In said process, they aim to make a quick profit by selling the immovable property to third-party purchasers at a rate higher than the sale consideration agreed with the original owner and that too within the period stipulated for the performance of the agreement with the original owner---It is also not unusual that such people are not able to generate funds within the period stipulated in the agreement to sell executed with the original owner for the payment of the sale consideration---This scenario leads to multiplicity of litigation not just between the original owner and the person who claims a right in the immovable property on the basis of an agreement to sell but also between such person and the third party purchaser---Thus, plaintiff/ respondent could not expect the Court to pass a decree for the specific performance of the Second Agreement in his favour---Civil Court was wise in turning down plaintiff's prayer for a decree for specific performance of the Second Agreement and allowing his prayer for compensation---Appeal, filed by the defendants, was dismissed with costs throughout.

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

----Ss. 12, 18 & 54---Suit for specific performance of agreements to sell, permanent injunction and compensation / damages---First purchaser Entering into agreement to sell with third party purchaser without acquiring rights from original owner---Scope and effect---Third party purchaser, entitlement of---Civil Court allowed/decreed the suit instituted by third party purchaser to the extent of relevant prayer in the said suit i.e. "the recovery of an amount as compensation along with mesne profit @ 15% per annum w.e.f agreed date of payment till final realization of the amount"---Appellants (two in number), who were defendants in suit being first purchasers (vendees), assailed the said judgment and decree---Validity---A third party purchaser has no right under the law to seek the specific performance of the agreement to sell between the original owner and the first purchaser---This is because he is not privy to the agreement to sell between the original owner and the first purchaser---A third party purchaser can also not enforce an agreement to sell against a party who does not have title in the immovable property with respect to which such an agreement is executed, but such a third party purchaser cannot be denied the right to be refunded the amount paid as earnest money where the seller is unable to transfer title in the property to him---It is only when the original owner transfers title in the immovable property to the first purchaser that the latter will be in a position to transfer title in the property to the third party purchaser---A transferee stepping in the shoes of a transferor who was not a lawful owner of the property would not get a better title---When a person has no title in an immovable property, he could not enter into an agreement for the transfer of such property---Thus, plaintiff/ respondent could not expect the Court to pass a decree for the specific performance of the second agreement in his favour---Civil Court was wise in turning down plaintiff's prayer for a decree for specific performance of the Second Agreement and allowing his prayer for compensation---Appeal, filed by the defendants, was dismissed with costs throughout.

Abdul Hameed v. Shamasuddin PLD 2008 SC 140 and Nadeem Sadiq v. Dewan Masih Gulraiz 2022 YLR 2151 ref.

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

----Ss. 12, 18 & 54---Suit for specific performance of agreements to sell, permanent injunction and compensation / damages---First purchaser entering into agreement to sell with third party purchaser without acquiring rights from original owner---Scope and effect---Agreement to sell---Scope---Civil Court allowed/decreed the suit instituted by third party purchaser to the extent of relevant prayer in the said suit i.e. "the recovery of an amount as compensation along with mesne profit @ 15% per annum w.e.f agreed date of payment till final realization of the amount"---Appellants ( two in number), who were defendants in suit being first purchasers (vendees), assailed the said judgment and decree---Validity---Mere agreement to sell does not invest a purchaser with title in the property so as to enable him to sell it further---It is only when a document of title / sale deed / allotment letter is executed in a purchaser's favour that he is empowered to convey title---An agreement to sell is not a document which, by itself, creates a title in the immovable property---Agreement to sell only creates a right to obtain another document i.e., a sale deed in favour of the person in whose favour the agreement to sell is executed---Practice of selling immovable property by persons who neither have title in such property nor are in a legal position to have title in such property transferred in their favour, needs to be deprecated in the strongest terms---Such transactions lead to wasteful litigation and consume the Courts' public time---Thus, plaintiff/ respondent could not expect the Court to pass a decree for the specific performance of the Second Agreement in his favour---Civil Court was wise in turning down plaintiff's prayer for a decree for specific performance of the second agreement and allowing his prayer for compensation---Appeal, filed by the defendants, was dismissed with costs throughout.

Rasheeda Begum v. Muhammad Yousuf 2002 SCMR 1089; Shah Muhammad v. Atta Muhammad 2005 SCMR 969 and Muhammad Ibrahim v. Fateh Ali 2005 SCMR 1061 ref.

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

----S. 43---Specific Relief Act (I of 1877), Ss. 12, 18 & 54---Suit for specific performance of agreements to sell, permanent injunction and compensation / damages---First purchaser entering into agreement to sell with third party purchaser without acquiring rights from original owner---Scope and effect---Civil Court allowed/decreed the suit instituted by third party purchaser to the extent of relevant prayer in the said suit i.e. "the recovery of an amount as compensation along with mesne profit @ 15% per annum w.e.f agreed date of payment till final realization of the amount"---Appellants (two in number), who were defendants in suit being first purchasers (vendees), assailed the said judgment and decree---Held, that a person who has not acquired title in the immovable property cannot transfer the same to a third party purchaser by executing an agreement to sell with him---But the law does not prohibit a person who has entered into an agreement to purchase immovable property to enter into another agreement for the sale of such property to a third party purchaser---Where such a person does enter into an agreement to sell with a third party purchaser, the latter's right to seek the specific performance of the agreement to sell in his favour is postponed until proprietary rights in the immovable property are acquired by the person who executes the agreement to sell---Because S. 43 of the Transfer of Property Act, 1882, provides that where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists---Thus, plaintiff/ respondent could not expect the Court to pass a decree for the specific performance of the Second Agreement in his favour---Civil Court was wise in turning down plaintiff's prayer for a decree for specific performance of the second agreement and allowing his prayer for compensation---Appeal, filed by the defendants, was dismissed with costs throughout.

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

----Ss. 12, 18 & 54---Suit for specific performance of agreements to sell, permanent injunction and compensation / damages---First purchaser entering into agreement to sell with third party purchaser without acquiring rights from original owner---Agreement to transfer land before proprietary rights conferred on the vendor---Enforceability of---Civil Court allowed/decreed the suit instituted by third party purchaser to the extent of relevant prayer in the said suit i.e. "the recovery of an amount as compensation along with mesne profit @ 15% per annum w.e.f agreed date of payment till final realization of the amount"---Appellants (two in number), who were defendants in suit being first purchasers (vendees), assailed the said judgment and decree---Validity---An agreement to transfer land before proprietary rights have been conferred on the vendor cannot be enforced where a person executes an agreement to sell immovable property to a third party purchaser at a stage when the seller in such an agreement has not acquired title in the immovable property from the original owner---Thus, plaintiff/ respondent could not expect the Court to pass a decree for the specific performance of the second agreement in his favour---Civil Court was wise in turning down plaintiff's prayer for a decree for specific performance of the second agreement and allowing his prayer for compensation---Appeal, filed by the defendants, was dismissed with costs throughout.

Muhammad Iqbal v. Muhammad Hussain PLD 1986 SC 70; Muhammad Sadiq v. Muhammad Ramzan 2002 SCMR 1821 and Arbab Ali v. Noor Bakhsh 2003 CLC 1670 ref.

Sajjad Haider Malik, Naheed Iqbal Awan and Ambreen Anwer for Appellants.

Rana Shahid Hussain Khan for Respondent No.1.

Muhammad Amin for Respondent No.2.

Saqib Ali Mumtaz for Respondent No.3/CDA.

2024 C L C 2002

[Islamabad]

Before Aamer Farooq, CJ

Messrs PAKISTAN TELECOMMUNICATION COMPANY LIMITED---Appellant

Versus

UNIVERSAL SERVICE FUND, ISLAMABAD through Chief Executive Officer and another---Respondent

F.A.Os. Nos. 139, 140 and 141 of 2021, decided on 16th May, 2024.

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

----S. 124---Performance guarantee---Scope---Bank guarantee / performance guarantee operates independently of agreement between parties---Guarantor / promisor is bound to honour the same as and when the beneficiary wishes to encash the same---Guarantor is not to go into the agreement between parties.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Interpretation of document---Judicial review---Scope Courts generally do not rewrite agreement by taking over the role of one party but examine whether decision made is reasonable, rationale and proper in the facts and circumstances which are broadly the parameters, in which judicial review is made.

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

----S. 124---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---Performance guarantee---Encashment---Force majeure clause---Scope---Appellant / plaintiff company sought restraining order against encashing of performance guarantee executed in favour of respondent / defendant---Validity---Respondent / defendant was the sole judge of whether there was delay in implementation of agreement and that penalty clause could be invoked---Such clause could only be excluded if there was force majeure clause---There was no force majeure and on the basis thereof, respondent / defendant sought encashing of bank guarantees issued in its favour due to delay as penalty---Whether there was delay or not, was a question of fact which could only be decided on the basis of evidence led and on the basis of documents---There was no prima facie case in favour of appellant / plaintiff and as it was a money matter there was no question of irreparable loss and balance of convenience was also in favour of respondent / defendant---In case, if eventually the suit filed by appellant / plaintiff was decided in its favour, return of money could always be ordered by Court---High Court declined to interfere in the order passed by Trial Court refusing to issue interim injunction against encashing of performance guarantee---Appeal was dismissed in circumstances.

Messrs Mehboob Enterprises v. Karachi Development Authority and another 1997 MLD 3085; Messrs Mercury Corporation v. Messrs Pakistan Steel Mills Corporation (Pvt.) Ltd. 2000 YLR 734; Atlas Cables (Pvt.) Ltd. v. Islamabad Electric Supply Company Limited and another 2016 CLD 1833; Pakistan Real Estate Investment and Management Company (Pvt.) Ltd. v. Messrs Sky Blue Builders and another 2021 CLC 488; Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191; Braganza v. BP Shipping Limited and another 2015 SCMR 742; Atif Mehmood Kayani and another v. Messrs Sukh Chayn Private Limited, Royal Plaza, Blue Area, Islamabad and another 2021 SCMR 1446 and Oasis Travels (Pvt.) Limited v. Donvand Limited and others 2020 CLC 1128 rel.

Saudi Pak Industrial and Agricultural Investment Company (Pvt.) Ltd. Islamabad v. Messrs Allied Bank of Pakistan and another PLD 2003 SC 215; Messrs Jamia Industries Limited v. Messrs Pakistan Refinery Ltd. Karachi PLD 1976 Kar. 644; Pakistan Engineering Consultants v. Pakistan International Airlines Corporation and another 1989 SCMR 379; Messrs National Construction Ltd. v. Aiwan-e-Iqbal Authority PLD 1994 SC 311 and Hyundai Corporation v. Sui Northern Gas Pipelines Limited and 3 others 2015 CLC 1216 ref.

Abdullah Alim Qureshi, Malik Omair Saleem and Barrister Khush Bakht with Irtazaa Ifzaal Group Director (Legal), PTCL and Obaid Lodhi, Manager (Legal), PTCL for Appellants.

Faisal Fareed for Respondent.

2024 C L C 18

[Sindh]

Before Muhammad Shafi Siddiqui, J

ALI MUSHTAQ and others----Plaintiffs

Versus

FEDERATION OF PAKISTAN and others----Defendants

Suit No.02 of 2016, decided on, 19th January, 2023.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S. 10 & O.VII, R. 11---Suit for declaration---Stay of suit---Object, purpose and scope---Rejection of plaint---Suit filed by plaintiff in year 2016 was on the same subject matter in which an earlier suit filed in year 2009 was pending adjudication---Defendant / Federation of Pakistan sought rejection of plaint---Validity---Object of S. 10, C.P.C., is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of same matter in issue---Insertion of S. 10, C.P.C., is to avoid two parallel trials on same issues---Even if cause of action and some consequential relief prayed for is added and/or some of the issues in a former and subsequent suits may differ, that may not be a ground for non-application of S. 10, C.P.C., if it is being observed that the final decision in earlier suit may either operate as res judicata or would materially affect proceedings and trial of subsequent suit---Legislature has purposely carved out language of S. 10, C.P.C., to include all those issues which are directly and substantially in issue in previously instituted suit and does not talk about identical and similar nature of issues and reliefs---Relief claimed in subsequent suit was somehow directly and substantially linked with earlier one---Any formal or informal addition of a party having no substantial effect to proceedings and relief claimed, would not materially affect operation of S.10, C.P.C.---High Court stayed trial of the suit till decision of connected suit filed earlier in year 2009 by invoking provision of S. 10, C.P.C.---Application was disposed of accordingly.

Shri Ram Tiwari v. Bholi Devi AIR 1994 Patna 76 and S.K. Rangta Et Co. v. Nawal Kishore Debi Prasad AIR 1964 Calcutta 373. rel.

Sarmad Hani for Plaintiffs.

Qazi Ayazuddin Qureshi, Assistant Attorney General for Defendant No.1.

Suresh Kumar, Assistant Advocate General for Respondents Nos.2 and 3.

Muhammad Vawda for Pak PWD Karachi.

Shoaib Khatyan for Defendant No.4.

2024 C L C 53\

[Sindh]

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

PAKISTAN MEDICAL COMMISSION----Petitioner

Versus

PROVINCE OF SINDH and others----Respondents

Constitution Petition No.D-949 of 2022, decided on 24th March, 2022.

Per Yousuf Ali Sayeed, J; agreeing with Muhammad Iqbal Kalhoro, J

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

----S. 8 (2)(f)---Constitution of Pakistan, Arts. 142 & 143---Admission policy and criteria for Medical and Dental Colleges made by the Pakistan Medical Commission---Changes to the policy made by the Provincial Government---Legality and Constitutionality---Petitioner, Pakistan Medical Commission ("PMC"), impugned four purported Notifications, through which the Government of Sindh had essentially sought to reduce the passing marks of the Medical and Dental Colleges Admission Test ("MDCAT") from 65% to 50% for the admission session 2021-22 for the candidates of the Province---Held, that power must be exercised only with appropriate lawful authority---No executive authority can take any executive action without the backing and support of a valid law, else such exercise will be void and liable to be struck down as such---Impugned Notifications were issued in a legal vacuum with such reckless abandon---As per the criteria set for admissions, the weightage attached to the MDCAT score was 50% whereas the weightage of the HSSC/FSC and SSC/Matric or Equivalent were 40% and 10% respectively---Therefore, if the arbitrary measure seeking to supplant the standard of the PMC with the lesser one of the Provincial Government were allowed to sustain, it would enable candidates scoring between the range of 50% to 64.99% in the MDCAT, who otherwise would not have qualified, to nonetheless be considered for admission---That, in turn, would give rise to the prospect and likelihood of distortion of the eventual admission results to the detriment of those who had attained the higher standard set by the PMC, so as to deprive them of their due right to admission---For this reason too, the impugned Notifications could not stand---Constitutional petition was allowed.

Case of Proclamations (1611) Co. Rep 74; Attorney-General v. De Keyser's Royal Hotel [1920] AC 508; Miller No.1 [2017] UKSC 5; Pakistan Muslim League (N) v. Federation of Pakistan PLD 2007 SC 642; Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 and Controller of Patents and Designs v. Muhammad Quadir 1995 SCMR 529 ref.

Additional Note

YOUSUF ALI SAYEED, J.----The captioned Petition preferred by the Pakistan Medical Commission (the "PMC") impugned four purported Notifications dated 07.12.2021 and 31.12.2021, through which the Government of Sindh had essentially sought to reduce the passing marks of the Medical and Dental Colleges Admission Test ("MDCAT") from 65% to 50% for the admission session 2021-22 for the candidates of the Province.

1. The crux of the challenge was that the subject of those Notifications fell squarely within the PMC's domain in terms of the Pakistan Medical Commission Act, 2020 and regulations framed thereunder, and the Provincial Government completely lacked competence in that regard. That aspect has already been addressed at length with great eloquence in the main Order authored by my learned brother, Muhammad Iqbal Kalhoro, J, setting out the minutiae of the case and reasons for the short order dated 18.03.2022, whereby the Petition was allowed with the impugned Notifications being declared to be void ab initio and of no legal effect. Whilst I concur with the main Order, however, without undue reiteration, I propose to record certain further observations on the matter.

2. As far back as the Case of Proclamations (1611) Co Rep 74, Sir Edward Coke, as Chief Justice of the Common Pleas, opined that "the King hath no prerogative but that which the law of the land allows him". What may well have been regarded as a radical statement over four centuries ago has since come to be established as a grundnorm of constitutional law-that power must be exercised only with appropriate lawful authority. The case continues to be referred, in the twentieth century by the House of Lords in Attorney-General v. De Keyser's Royal Hotel [1920] AC 508, and more recently and perhaps even more famously by the Supreme Court in Miller (No. 1) [2017] UKSC 5.

3. To that extent, the position under our Constitutional dispensation is analogous, with Article 4 guaranteeing due process and the rule of law, mandating that the 'law' is the sole source of executive power and state institutions can only exercise such power as is vested in them.

4. Indeed, it has been observed by the Honourable Supreme Court in the case reported as Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 SC 642) that:

"It may not be out of place to mention here that "there is no inherent power in the executive, except what has been vested in it by law, and that law is the source of power and duty. The structure of the machinery of government, and the regulation of the powers and duties which belong to the different parts of this structure are defined by the law, which also prescribes, to some extent the mode in which these powers are to be exercised or those duties performed. From the all-pervading presence of law, as the sole source of governmental powers and duties, there follows the consequence that the existence or non-existence of a power or duty is a matter of law and not of fact, and so must be determined by reference to some enactment or reported case. Consequently, there are no powers or duties inseparably annexed to the executive Government. It cannot be argued that a vague, indefinite and wide power has been vested in the executive to invade upon the proprietary rights of citizens and that such invasion cannot be subjected to judicial scrutiny if it is claimed that it is a mere executive order. This is not the position in law. Any invasion upon the rights of citizens by anybody no matter whether by a private individual or by a public official or body, must be justified with reference to some law of the country. Therefore, executive action would necessarily have to be such that it could not possibly violate a Fundamental Right. The only power of the executive to take action would have to be derived from law and the law itself would not be able to confer upon the executive any power to deal with a citizen or other persons in Pakistan in contravention of a Fundamental Right. Functionaries of State, are to function strictly within the sphere allotted to them and in accordance with law. No Court or Authority is entitled to exercise power not vested in it and all citizens have an inalienable right to be treated in accordance with law. Therefore, an action of an Authority admitted to be derogatory to law and Constitution, is liable to be struck down."

1. In the same vein, a Full Bench of the Honourable Supreme Court had observed in the case of Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 that:

"In a Constitution contained in a written document wherein the powers and duties of the various agencies established by it are formulated with precision, it is the wording of the Constitution itself that is enforced and applied and this wording can never be overridden or supplemented by extraneous principles or non-specified enabling powers not explicitly incorporated in the Constitution itself. In view of the express provisions of our written Constitution detailing with fullness, the powers and duties of the various agencies of the Government that it holds in balance there is no room of any residual or enabling powers inhering in any authority established by it besides those conferred upon it by specific words."

2024 C L C 95

[Sindh]

Before Zulfiqar Ahmad Khan, J

HABIBA MEHMOOD ALI KHAN----Plaintiff

Versus

Syed MASOOD MEHMOOD and others----Defendants

Suit No.1691 of 2010, decided on 9th June, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and injunction---Benami transaction---Proof---Plaintiffs claimed transfer of suit property to their names as per their shares on the plea that their deceased mother was the real owner of suit property while predecessor-in-interest of defendants was only Benamidar---Validity---Burden of proving whether a particular person is a Benamidar lies upon the person alleging it---Main consideration, as one would expect boils down to the source of funds but source of funds are not always conclusive and significant factor to prove real ownership, though it may prima facie show that the person who provided money did not intend to relinquish or give up the beneficial interest in the property---Some additional factors are also needed to be considered i.e. possession of title documents; conduct of the parties concerned in dealing with the property once it is purchased; who administers and oversees the property; and who is recognized as title holder in general---Plot was transferred in the name of predecessor-in-interest of defendants who on the very next day communicated to the Housing Society that predecessor-in-interest of plaintiffs was lawful owner of the plot---Predecessor-in-interest of defendants also addressed different letters to predecessor-in-interest of plaintiffs for payment of development charges, ground rent and such other ancillaries which were paid by herself---Such letters along with payment receipts were exhibited in evidence by plaintiffs, who turned out to be the lawful owner of suit plot after the demise of the original plaintiff by way of inheritance---High Court directed the Housing Society to transfer/mutate plot in question in the names of the legal heirs of deceased plaintiff---Suit was decreed accordingly.

Ch. Ghulam Rasool v. Nusrat Rasool PLD 2008 SC 146 and Abdul Majeed v. Amir Muhammad 2005 SCMR 577 rel.

Ijaz Ahmed for Plaintiff.

Defendants Nos.1 to 5 are ex parte.

Asif Rasheed for Defendant No.6.

2024 C L C 151

[Sindh]

Before Zulfiqar Ahmad Khan, J

Maulana IBADUR REHMAN ABBASI----Applicant

Versus

JEHANGIR ADAM and others----Respondents

J.M. 41 of 1999 in Suit 1571 of 1998, decided on 7th June, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908),Ss. 12(2), 92 & O.XXIII, R.3---Suit for declaration and injunction---Public charities---Judgment, setting aside of---Plea of fraud and misrepresentation---Compromise of suit---One of the parties to suit was a charitable trust---Suit was disposed of on the basis of compromise between the parties---In another suit judgment and decree passed on same subject was challenged by residents of the locality admitting that Mosque/Madrassa was built by the finances provided by a foreign (UAE) national through one of the defendants---Judgment and decree passed in other suit was dismissed by Division Bench of High Court on the ground that the other suit was not-maintainable as suit filed under S.92, C.P.C. relating to Public Trust could not have been allowed to be compromised---Compromise was in violation of the requirement of S.92, C.P.C.---Parties aimed to prejudice the interests of the applicant and their act was not devoid of any misrepresentation---High Court in exercise of jurisdiction under S. 12(2), C.P.C. set aside judgment and decree passed on the basis of compromise---Application was allowed, in circumstances.

Khawaja Shamsul Islam along with Khalid Iqbal for Applicant.

Iftikhar Javed Qazi for Respondents.

2024 C L C 215

[Sindh (Sukkur Bench)]

Before Muhammad Junaid Ghaffar, J

KHADIM HUSSAIN RAJPAR and another----Applicants

Versus

MUHAMMAD IBRAHIM RAJPAR and others----Respondents

Civil Revision Nos.S-40 and S-41 of 2006, decided on 22nd February, 2022.

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

----S. 14 & Preamble---Colonization of Government Lands (Sindh) Act (V of 1912), S.19---Specific Relief Act (I of 877), Ss.42 & 39---Suit for declaration and cancellation of mutation transferring rights of occupancy---Sale-agreement between the allottee/tenant and the (proposed) buyer---Limitation---Cause of action---Scope---Both the parties instituted their respective suits, which litigation resulted in decreeing the suit of the respondents and dismissing the suit of the petitioners on the point of limitation---Suit-land was allotted ,as a tenant, to petitioners' father, the brother of father of respondents ('the predecessor') under the Colonization of Government Lands Act, 1912 ("the Act 1912")---Claim of the respondents was that the predecessor had sold the property to their father (brother of the predecessor) by way of an oral sale by appearing before the concerned Mukhtiarkar---Validity---Any cause of action for the petitioners could only have accrued from the date when finally, the matter of they being legal heirs of the predecessor was decided---It was immaterial that as to when the oral sale had taken place---From day one, the claim of the petitioners as being legal heirs of the predecessor had been continuously denied; rather the father of respondents even filed a suit seeking such declaration and ultimately lost his claim up to the level of the Supreme Court---It was only thereafter that the petitioners kept on searching about the properties of their father and as soon as they were issued a T.O. Form by the Colonization Officer in 1995, they initiated proceedings and were even successful up to the level of Member, Board of Revenue, in the year 2001---Present suit filed by the petitioners in 2001 was within limitation and could not have been non-suited as held by the Courts below--Even otherwise, if the petitioners had approached the Court belatedly, the time consumed by them before the Colonization Officer and the Revenue Authorities could be looked into and benefit of S. 14 of the Limitation Act ought to have been granted; therefore, High Court held that the Suit was within limitation---High Court set aside impugned judgments and decrees passed by both the Courts below and declared the suit filed by the petitioners decreed---Revision was allowed, in circumstances.

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

----Ss. 17 & 19---Specific Relief Act (I of 877), Ss.42 & 39 ---Rights of occupancy, transfer of---Sale-agreement between the allottee/tenant and the (proposed) buyer---Conditions---Both the parties instituted their respective suits, which litigation resulted in decreeing the suit of the respondents and dismissing the suit of the petitioners---Suit-land was allotted, as a tenant, to petitioners' father, the brother of father of respondents ('the predecessor') under the Colonization of Government Lands Act, 1912 ("the Act 1912")---Claim of the respondents was that the predecessor had sold the property to their father (brother of the predecessor) by way of an oral sale by appearing before the concerned Mukhtiarkar---Validity---In terms of S. 19 of the Act, 1912, which stipulated that no such sale between a tenant and a buyer could be held to be absolute and immediate until the mandatory period as prescribed therein had been completed and the entire instalments had been paid and right of occupancy had been made absolute in the name of the tenant by concerned Authority and the same could only be materialized after the allottee had acquired a permanent right of occupancy---Though such a sale could be entered into by two private parties and there was no legal bar on such a sale; however, the same could only be a deferred sale and as and when the owner / seller had become its absolute owner first by making payment of all instalments and then by completing the minimum mandatory period as a tenant, only then the property could be sold and a transfer could be affected---Any transfer before acquiring of such right would be void and could not be acted upon---Any sale entered into by a tenant who had been allotted a land under the Act, 1912, to a proposed buyer, would not ipso facto be void or hit by S. 19 of the Act, 1912, if two basic conditions were met; first being, it had to be admitted by the parties that the same was merely a private sale, though possession was being handed over; however, it was a deferred sale and land could not be conveyed or transferred; and second, the sale would only be complete or performed when the tenant / seller had acquired his rights of occupation after payment of instalments and completion of period as provided therein---For a sale to be valid of such a land, these two conditions were to be met and had to be part of the agreement between the parties---In the present case, the question was not that whether the sale by itself was void for having been entered into by violating the express terms of S. 19 of the Act, 1912; but the real question was as to how on the same date when land was allotted to the predecessor an oral sale was entered into as claimed; and even if so how and in what manner the land could have been conveyed or transferred by way of a mutation entry by the concerned Mukhtiarkar---At the most it could have remained as an agreement of sale; but in no manner it could have materialized into a sale deed or for that matter transfer of the same by way of a mutation entry---When considered that from day one the father of respondent (buyer) had denied the petitioners being legal heirs of his brother (predecessor) and the manner in which he had claimed sale of the land and its subsequent transfer in his name, all appeared to be a sham---It was but a managed transaction with no legal basis as the Mukhtiarkar was not authorized to record the mutation entry---Even otherwise, a mutation entry by itself was not a title document and was merely a record of fiscal purpose, which by itself did not confer any right, title or interest and the burden of proof lay upon the person, in whose favor it was mutated to establish the validity and genuineness of transfer in his/her favor---If the foundation was illegal and defective then entire structure built on such foundation, having no value in the eyes of law, would fall on the ground---Mutation confered no title, whereas, once a mutation was challenged, the party that relied on such mutation(s) was bound to revert to the original transaction and to prove such original transaction which resulted in the entry or attestation of such mutation in dispute---High Court set aside impugned judgments and decrees passed by both the Courts below and declared the suit filed by the petitioners as decreed---Revision was allowed, in circumstances.

Hakim Ali and another v. Atta Muhammad and another 1981 SCMR 993; Daulat Ali through Legal Heirs and 2 others v. Ahmad through Legal Heirs and 2 others PLD 2000 SC 792; Mst. Rehmat Bibi and others v. Mst. Jhando Bibi and others 1992 SCMR 1510; Abdul Jabbar and others v. Mst. Maqbool Jan and others 2012 SCMR 947; Syed Hussain Naqvi and others v. Mst. Begum Zakara Chatha through LRs and others 2015 SCMR 1081; Muhammad Sadiq v. Muhammad Ramzan and 8 others 2002 SCMR 1821; Nasir Rahim v Province of Sindh 2021 CLC 579; Muhammad Akram v Altaf Ahmed PLD 2003 SC 688 and Ahmed v. Nazir Ahmed 2019 CLC 1841 ref.

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

----S.19---Limitation Act (IX of 1908 ), S. 14 & preamble---Specific Relief Act ( I of 877) , Ss.42 & 39---Civil Procedure Code (V of 1908), S.115---Suit for declaration and cancellation of mutation transferring rights of occupancy---Revisional jurisdiction of the High Court---Scope---Both the parties instituted their respective suits, which litigation resulted in decreeing the suit of the respondents and dismissing the suit of the petitioners on the point of limitation---Suit-land was allotted, as a tenant, to petitioners' father, the brother of father of respondents ('the predecessor') under the Colonization of Government Lands Act, 1812 ("the Act 1912")---Claim of the respondents was that the predecessor had sold the property to their father (brother of the predecessor) by way of an oral sale by appearing before the concerned Mukhtiarkar---Validity---Perusal of the record revealed that both the Courts below had miserably failed to appreciate the evidence properly and it was a fit case of misreading and non-reading of evidence led by the parties, whereas, the Courts below were misdirected to hold that the suit of the petitioners was time barred; and such question of limitation went to the root cause and improper exercise of jurisdiction, and therefore required interference by the High Court while exercising its revisional jurisdiction---High Court set aside impugned judgments and decrees passed by both the Courts below and declared the suit filed by the petitioners as decreed---Revision was allowed, in circumstances.

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.

Sardar Akbar F. Ujjan for Applicants.

Abdul Qadir Shaikh for Respondents.

Ahmed Ali Shahani, Assistant Advocate General Sindh.

2024 C L C 239

[Sindh (Sukkur Bench)]

Before Muhammad Junaid Ghaffar and Zulfiqar Ali Sangi, JJ

ASAD ALI KHAN and others----Appellants

Versus

The CONSERVATOR OF FOREST and others----Respondents

First Civil Appeals Nos.D-6, D-7 and D-11 of 2005, decided on 11th May, 2022.

Land Acquisition Act (I of 1894)---

----Ss. 18, 23 & 30---Land Acquisition------Reference to Court---Claim of compensation---Failure to prove ownership over acquired land---Referee Judge declined the claim of the appellant as the land was not owned by him---Collector referred the matter under S.30 of Land Acquisition Act, 1894 to District Judge for the determination of ownership of land---Validity---Claim of the present appellant was that an area of approximately 2.60 acres owned by his father was acquired by WAPDA for which no compensation was paid---Record showed that the father of appellant expired in the year 1996, whereas, admittedly, the land was acquired in the years 1974, 1985 and 1989---Moot question would be as to why his father, who was alive at the relevant time, never came forward to claim any compensation for the acquired land---Appellant never lodged any claim nor came forward before any of the authorities including the Land Acquisition Officer during the entire proceedings, and instead had chosen to avail the remedy of a complaint before the Ombudsman which otherwise, covered by a special law, was never available---Mere statement to the effect that no notice was ever served would not suffice---Appellant had though deposed that he even objected to the amount of compensation and availed the remedy of a Reference under S.18 of the Act, before the Land Acquisition Officer; however, nothing had been placed on record to justify such factual assertion---How such a Reference was filed and what happened in those proceedings, the entire record was silent, whereas, appellant had also failed to assist in any manner on such aspect of the matter---Deposition of appellant reflected that he was not even aware that as to when and from whom the land in question was purchased by his father---Further, whether the seller was by himself a bona fide allottee or not was also unclear---Admittedly, the entire piece of land, the one which had been acquired, and even the remaining which had not been acquired was owned by Agricultural Department---Though a claim had been made that it was allotted by the Colonization Officer; however, no allotment papers had been produced in evidence---Even in the documents referred in the examination in chief which were purportedly filed with the Land Acquisition Officer in its reference under S.18 of the Act, there was no mention of any allotment of the land---In fact the appellant's case was that it was a purchased land, whereas, reliance had been placed on a mutation entry dated 6.3.1990---Per settled law the original ownership of the person from whom the title was being derived had to be proved and only then the subsequent ownership or for that matter the mutation entries could be looked into---Mutation entry was not a document of title, and it by itself did not confer any right, title or interest, and the burden of proof laid upon the person, in whose favor it was mutated to establish the validity and genuineness of transfer in his/her favor---If the foundation was illegal and defective then entire structure built on such foundation, having no value in the eyes of law, would fall on the ground---Moreover, the mutation entry in question was of the year 1990, whereas, as per the award, the land in Survey No.158 was acquired on 1.3.1974; in Survey No. 160 on 12.10.1989 and in Survey No.199 on 28.10.1985; hence, the same was even of no help to the case of the appellant---Per settled law when Government acquired immovable property under the Land Acquisition Act, it was for the person claiming compensation to establish his title affirmatively---To support claims to lands acquired under S.30 of the Act, the claimants must show title or in the absence of title deeds effective occupation---Nothing to that effect had been placed on record in the present case---Record showed that the entire land was in the name of Agriculture Department, and even if it was allotted to someone, that was without any No Objection Certificate from them, whereas, since the first acquisition in 1974 till the year 2000, the appellant was in deep sleep and never contested the matter at any forum until he approached the office of the Ombudsman---In that case the claim, if any, was too late in the day, even if no limitation applied; whereas, the father, the actual purchaser of the land as claimed, never came forward to seek any compensation, though at that point of time he was alive---Appellant had failed to establish and prove his claim regarding ownership of land in question---Appeal was dismissed, accordingly.

Ghulam Muhammad v. Government of West Pakistan PLD 1967 SC 191; Khadi Khan v. Mst. Resham Jan 1983 CLC 57; Nasir Rahim v. Province of Sindh 2021 CLC 579; Muhammad Akram v. Altaf Ahmed PLD 2003 SC 688; Ahmed v. Nazir Ahmed 2019 CLC 1841 and Secretary, Cantonment Committee, Barrackoore v. Satish Chandra Sen AIR 1931 PC 1 rel

Rafique Ahmed Baloch for Appellants (1st Appeal No.D-07 of 2005).

Ahmed Ali Shahani, Assistant Advocate General.

Nemo for the Appellants as well as for Respondents in (1st Appeals Nos.D-07 and D-11 of 2005.

2024 C L C 311

[Sindh (Larkana Bench)]

Before Arbab Ali Hakro, J

REHMATULLAH and others----Applicants

Versus

INAYAT KHOSO and others----Respondents

Civil Revision No.S-42 of 2022, decided on 11th May, 2023.

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

----S.172---Jurisdiction of Civil Court---Scope---Dispute over ownership of agriculture land---There was no complete bar against civil Courts to entertain matters relating to agriculture land dispute---Sindh Land Revenue Act, 1967 ('Act') did not prohibit the Civil Court from determining the title of the plaintiff/respondent No. 1 to all land held jointly or from granting a declaration of joint ownership in disputed agricultural land---Plaintiff/respondent No. 1 was seeking relief for declaration regarding his share to the extent of 14-00 Acres from the suit land being the son of deceased and partition and separate possession of his share from the suit land---Applicants had denied his share in the suit land and refused to give him a share of the produce, therefore, the provisions of the Act did not support the disputation of the applicants that the suit of respondent No. 1 was barred---Apparently, Revenue Courts did not confer jurisdiction in partition proceedings where question of title was involved amongst the parties as envisaged in the provision of the Act---Suit of the respondent No. 1 was rightly decreed---Revision petition was accordingly dismissed.

Nazir Ahmad and another v. Maula Bakhsh 1987 SCMR 61 and Messrs Sui Northern Gas Pipelines Limited (SNGPL) v. Messrs Noor CNG Filling Station 2022 SCMR 1501 rel.

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

----Ss. 8 & 42---Suit for declaration and partition---Gift/hiba---Relinquishment of share---Proof---Father of the respondent No. 1 and applicants was owner of land measuring 92 acres (suit land), who passed away---Respondent No. 1 had claimed that applicants 1 and 2 were in possession of suit land, cultivating and enjoying the yield from the suit land, without paying respondent No. 1 his rightful share---Suit was decreed by the Trial Court in favour of respondent No. 1---Applicants filed appeal against the judgment and decree passed by the trial Court but same was also dismissed---Validity---Record showed that the findings of the appellate Court were based on the oral evidence of Revenue Officials and produced documentary evidence viz: mutation entries in the record of rights of respective Dehs---Applicants were unable to point out any illegality committed by the appellate Court in exercising its jurisdiction vested under the law---Only contention was that respondent No. 1 had already received his due Shariah share from the estate of deceased by way of Hiba/Gift during his lifetime, thus he was not entitled to any share as claimed in the suit---In that regard, the applicants had failed to produce pictorial evidence to show that the respondent No. 1/plaintiff relinquished his Shariah share in the suit land through Gift/Hiba in the residual estate left by the deceased---Diversely, scanning of the documentary evidence i.e. mutation entries did not reflect that respondent No. 1 had abdicated his share in suit land on the basis of said Gift/Hiba---In absence of a valid gift or relinquishment of lawful share in an inheritance under Muslim Personal Law, it could not be said whether the respondent No. 1/plaintiff relinquished his share in subject property---Suit of the respondent No. 1 was rightly decreed---Revision petition was accordingly dismissed.

Noor Muhammad and others v. Allah Ditta and others PLD 2009 SC 198; Khamiso Khan and 6 others v. Jamaluddin 2015 MLD 356; Qamar Sultan and others v. Mst.Bibi Sufaidan and others 2012 SCMR 695; Jamaluddin and 3 others vs. Haji Gul Khan and 6 others 2012 CLC 353; Irshad alias Abdul Rahim and 2 others v. Ashiq Hussain PLD 2007 Kar. 421; Naveed Ahmad v. Iqbal Begum and others 2006 YLR 2341 and Syed Musarrat Shah and another v. Syed Ahmed Shah alias Lal Bacha and 8 others PLD 2012 Pesh. 151 ref.

Mst. Parveen (Deceased) through LRs v. Muhammad Pervaiz and others 2022 SCMR 64 ref.

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

----S.115---Revisional jurisdiction---Concurrent findings---Scope---Concurrent findings of two courts below supporting all a preponderance of claims were not to be interfered in revisional jurisdiction, unless extraordinary circumstances were demonstrated by the applicants---Revisional Court did not sit in reappraisal of the evidence and was thus distinguishable from a Court of the appellate jurisdiction.

Waqar Ahmed Chandio for Applicants.

Rajesh Naraindas D. Kapoor for Respondent No.1.

Abdul Waris Bhutto, Assistant Advocate General for Respondents Nos.2 and 3.

2024 C L C 347

[Sindh]

Before Aqeel Ahmed Abbasi and Abdul Mobeen Lakho, JJ

Shaikh MUHAMMAD SABIR----Appellant

Versus

Messrs K.K. BUILDERS (PVT.) LIMITED and others----Respondents

High Court Appeal No.75 of 2012, decided on 20th April, 2022.

Civil Procedure Code (V of 1908)---

----O.VII, Rr. 6, 11---Limitation Act (IX of 1908), S.3 & Art.113---Specific Relief Act (I of 1877), Ss. 8, 42 & 54---Suit for specific performance of agreement, possession and injunction---Limitation---Rejecting of plaint---Scope---Respondents entered into agreement for sale cum transfer of partially completed building project with the appellant, who paid entire sale consideration to the respondents----Due to ailment of the appellant, respondents occupied the suit property---Appellant filed a suit for specific performance, possession, rendition of accounts and injunction---Trial Court rejected the plaint on the ground that the suit filed by the appellant was barred by limitation---Validity---Appellant had averred in the plaint that on 01.03.2007, he suffered brain hemorrhage and remained in hospital and was under treatment for a period of about 2½ years, however, it appeared that nothing was produced or attached with the plaint to support such fact---According to appellant, on or about 10.04.2007, respondent No.2 with the help of his persons removed his staff from the premises and illegally took over all record and account books and controlled possession of the project---However, when the respondents failed to perform their part of the contract to handover the possession of the subject property, the appellant filed the subject suit seeking specific performance---It was claimed by the appellant that cause of action first accrued on 10.04.2007 when the respondents allegedly dispossessed the appellant from the subject property, and for all practical purposes refused performance of the agreement between the parties---As such, it could safely be concluded that the performance of contract was refused on 10.04.2007, thus time began to run from that date under Art. 113 of Limitation Act, 1908---However, admittedly the appellant did not file the suit for specific performance within the period of limitation as provided under law i.e. three years, nor took any steps or even took a plea that appellant was prevented by sufficient cause to file the Suit within the period of limitation, whereas, no application seeking condonation of delay had been filed---In a case, where it was evident from the averments of the plaint that the suit was filed beyond the period of limitation prescribed under Art. 113 of the Limitation Act, 1908 the Trial Court was not required to frame issues and record evidence---Appellant had not referred to any ground for exemption or seeking condonation of delay in terms of O.VII, R. 6, C.P.C.---In any event, structure of law is founded upon legal maxim that delay defeats equity, time and tide wait for none---Law helped the vigilant and not the indolent---Limitation created a substantial right in favour of succeeding party and against the defaulting party, which could not be taken away casually on inconsistent pleas or lame excuses---Plea of the appellant that law of limitation was a mixed question of law and fact, therefore, when there were allegations in the plaint, it required an enquiry and recording of evidence, was misconceived for the reason that the question of limitation was floating on the record based on the averments in plaint, whereas, there was no dispute relating to date of refusal i.e. 10.04.2007---Law of limitation is not merely a matter of technicality, but is a foundation of law, hence if the facts and circumstances particularly of the plaint, on perusal, bring no other conclusion but that of suit being barred by law of limitation, then the Court has no option but to reject the plaint under O. VII, R.11(d), C.P.C. for being barred by law---Appeal was dismissed, in circumstances.

Muhammad Khan v. Muhammad Amin through LRs and others 2008 SCMR 913; Haji Abdul Karim and others v. Florida Builders (Pvt.) Ltd. PLD 2012 SC 247 and Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153 rel.

Saad Fayyaz for Appellant.

Muniruddin Ahmed for Respondents.

2024 C L C 371

[Sindh (Hyderabad Bench)]

Before Muhammad Shafi Siddiqui and Irshad Ali Shah, JJ

MUHAMMAD SHARIF and others----Petitioners

Versus

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

Constitutional Petition No.D-1616 of 2019, decided on 24th May, 2022.

Constitution of Pakistan---

----Art. 199---Water quality of Lakes, decrease in---Hatching/feeding of fish (fry)---Scheme/tender---Environmental effects---Petitioners/citizens of the locality invoked constitutional jurisdiction of the High Court challenging different schemes/tenders of the respondents (provincial government/departments) specially in relation to feeding (fish) fry [commonly called seed] in Manchar Lake---Contention of the petitioners was that since the water of Manchar Lake had been polluted, because of being fed through MNV canal, the water quality was decreasing day by day and was hazardous for any kind of growth therein including fish---Plea of the respondents was that every year the fish fry /seed in the shape of different species (of fish) were being passed on and fed to the lake for the purposes of human consumption and there was nothing of the nature which could harm a human on account of consumption of such water breathing animals (aquatic animals)---Validity---Since water quality plays significant role for aquatic life---pH and TDS play a significant role in determining the quality of water and its conduciveness for fish growth---It is very alarming that these tenders could be awarded without water assessment and thus would be a futile attempt for such purpose and may have a financial catch for some individual[s]---pH is a measurement of concentration of hydrogen ions in water---Lower pH means more hydrogen ions and higher pH means fewer hydrogen ions; pH has a scale from 1-14 which measures acidity and alkalinity of water, anything above 7 in an alkaline based water whereas less than 7 is acidic---Similarly TDS is actually total dissolved solids in water which included both organic and inorganic substance---Research showing the effect of varying pH value on different commodity reveals that fish cannot survive at 4.2 pH and unless water test of lake is undertaken by the Fisheries Department, feeding of fry to these lakes would be a futile attempt and could only be a monitory gain for individuals having no interest in aquatic life and its actual benefits---Impartial departments may draw samples of the water from Manchar Lake on their own, independently and submit their lab analysis as to its conduciveness for the growth and production of different varieties of fish (fry) and as to whether such fish stock on its maturity could be fit for human consumption---Efforts should be put by the "Hatchery Department" who are responsible for feeding the lakes with such seeds, instead of achieving such object through tenders by outsourcing it---At one hand huge amount is being spent in maintaining Hatchery Department and on the other its benefit is being drawn by its employees---High Court had already passed an interim order, in the present proceedings, and the tender process was halted, which (order) was operating---Immediate steps were to be taken for the assessment of the water condition of Manchar Lake---Notices be also issued to all three impartial departments i.e. (i) Chairman, Department of Fresh Water Biology and Fisheries University of Sindh Jamshoro, (ii) Vice Chancellor, Karachi University, for referring the matter to the appropriate faculty having interest in the subject issue and (iii) Chairman Department of Land and Water Management, Agriculture University of Tando Jam, enabling them to draw samples independently in presence of petitioners as well as official respondents and examine them in terms of the above as to water conduciveness, and report be submitted to High court before the next date of hearing so that the issue of tender be decided one way or the other---Petition for hearing of main case (constitutional petition) was disposed of accordingly.

Nouman Sahito for Petitioners.

Fazal Hussain Jamali for Applicant/intervenors.

2024 C L C 394

[Sindh]

Before Irfan Saadat Khan and Zulfiqar Ahmad Khan, JJ

K.M. AWAN----Petitioner

Versus

GOVERNMENT OF SINDH through Secretary Home, Karachi and others---Respondent

Constitutional Petitions Nos.D-1928 of 2016, D-8044 of 2017, D-2028 of 2021, 1459, 1460 and 1461 of 2022, decided on 15th December, 2022.

Karachi Building and Town Planning Regulations, 2002---

----R. 18.3.1.3---Constitution of Pakistan, Art. 199---Constitutional petition---Sub-division of plot---Public interest litigation---Petitioner claimed to be a social worker and assailed sub-divisions of plot in respondent housing society and illegal constructions thereon---Validity---After sub-division of plot in question area would come to 425 square yards, which was within the permissible limit as mentioned under R.18-3-1.3 of Karachi Buildings and Town Planning Regulations, 2002---High Court declined to draw any adverse inference against owners of plot as division of plot was within the permissible limit---From location of plots in question it could neither be pleaded nor averred that plots were in the vicinity of petitioner's property and their construction would affect property of petitioner---Constitutional petition was disposed of accordingly.

Muhammad Maqsood Sabir Ansari v. District Returning Officer, Kasur and others PLD 2009 SC 28; Muhammad Sharif v. Mst. Zubaida Begum and others 1983 SCMR 1197; Sardar Muhammad v. Deputy Administrator, Residual Property and another 1981 SCMR 738; Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423; Nighat Jamal v. Province of Sindh and others 2010 YLR 2624; Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2883 and Standard Chartered Bank Limited through Constituted Attorney v. Karachi Municipal Corporation through Administrator and 9 others 2015 YLR 1303 ref.

Muhammad Mansoor Mir, Faran Sardar and Faizan Mansoor for Petitioners.

Saifullah, Assistant Advocate General Sindh (AAG) and Dhani Bux Lashari for Official Respondents.

Muhammad Nouman Jamali, Abdul Razzaq and Muhammad Ahmer for Private Respondents.

Nemo for Respondents KMC, KAECHS, SSGC and K-Electric.

2024 C L C 428

[Sindh (Larkana Bench)]

Before Arbab Ali Hakro, J

HUSSAIN AHMED and 3 others through Attorney----Applicants

Versus

PROVINCE OF SINDH through Secretary/Senior Member Board of Revenue Sindh and 2 others----Respondents

Civil Revision No.S-11 of 2016, decided on 28th August, 2023.

Specific Relief Act (I of 1877)---

----Ss. 42, 43 & 54---Suit for declaration and injunction---Declaratory decree---Applicability---Concurrent findings of facts by two Courts below---Applicants on the basis of power of attorney in their favour claimed their right in suit property---Trial Court decreed the suit against the person who executed power of attorney in favour of applicants---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court---Plea raised by applicants was that judgments and decrees were not binding on them as they were not party to the suit---Validity---No judgment and decree, by virtue of S.43 of Specific Relief Act, 1877, passed in a suit would be binding on a person unless such person is a party to the suit or is claiming through any party to the suit---Claim of applicants was based on having acquired right in suit land by way of a registered sale deed through power of attorney which had been declared as illegal, forged and fabricated in judgment and decree passed by Trial Court, therefore, the decree was binding on applicants---High Court declined to interfere in concurrent findings of facts by two Courts below as the same did not suffer from jurisdictional defect nor there was any infirmity or illegality---Revision was dismissed in circumstances.

Muhammad Saleem and others v. Muhammad Rashid and others 2004 SCMR 1144 and Ch. Riaz Ahmed Khan v. Muhammad Anwar Khan and others PLD 2003 SC 484 ref.

Haji Wajdad v. Provincial Government through Secretary Board of Revenue Government of Balochistan and others 2020 SCMR 2046 rel.

Abdul Rehman Bhutto for Applicants.

Abdul Hamid, Additional Advocate General for Respondents.

2024 C L C 468

[Sindh]

Before Salahuddin Panhwar, J

MUHAMMAD ISMAIL and others----Plaintiffs

Versus

MUHAMMAD AHMED and 2 others----Defendants

Civil Suit No.746 of 1998 and 645 of 2014, decided on 12th April, 2016.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Succession Act (XXXIX of 1925), S.278---Oral gift---Proof---Suit for declaration, partition, administration and permanent injunction---Plaintiffs claimed that defendant No. 1 being owner of suit property gifted the same orally in favour of his mother, who accepted the same, however gift could not be mutated in record, being maintained by the Karachi Development Authority (KDA), because she was simple, old and sick lady---Later, donee died leaving behind plaintiffs and private defendants as surviving legal heirs entitled to inherit the property as per Muslim Hanfi Law---Plaintiffs asked defendant No. 1 to settle share but he refused---Defendants contested the suit and alleged that donee did not accept the gift as such plaintiffs were not entitled to get any share from the suit property---Validity---Defendant No. 1/donor in his affidavit in evidence admitted that the gift deed duly signed by him, was handed over to his late mother as token of love and gratitude in 1989 which she had refused to accept---From said admission, it remained no more disputed that there was a valid, legal and bona fide offer by the donor/defendant No.1 to which the donor at no material time claimed to be under any duress, coercion or result of fraud, therefore, it could safely be concluded that there was a valid declaration of gift by the donor/defendant No. 1---Admittedly the status and relation of the donor and donee was that of son and mother and at relevant time both were residing in the subject property---In such eventuality, requirement of delivery of possession stood completed only by mere assertions and recital thereof in that regard---Normally, the onus probandi was upon the beneficiary/donee but where the donor admitted bona fide offer but denied acceptance thereof by the donee then position changed because in such eventuality the donor would be beneficiary of proving refusal/denial of offer---Evidently, donee had active knowledge and notice of gift and preparation of such gift deed hence the act of the donee receiving the gift deed and keeping it (original) with her gave rise to nothing but a conclusion that donee had not refused, as claimed by the defendant No. 1/donor---Had donee refused to accept the gift then she would not have received the gift deed nor would have kept the same with her---Further, it was a matter of record that the defendant No. 1/donor at no material times attempted to get the same back or to revoke it either by way of any notice or gesture even though donor was in active knowledge of the fact that he had, to his extent at least, made a bona fide gift---Donor was an educated person hence his subsequent acts/omissions and intentional silence in letting the document stay alive least to his extent might well be taken into account in drawing an inference against the stand of the donor---Gift deed was on a stamp paper dated 5th September 1989 while thumb mark of the donee was claimed by plaintiffs to be marked on 15.11.1995 but in continuation of oral gift hence, mere delayed thumb mark would not bring any effect upon the validity of acceptance which otherwise appeared to have been accepted from all facts, circumstances and even conduct of the parties---Suit of plaintiff was decreed accordingly.

Aurangzeb through L.Rs and others v. Muhammad Jaffar and another 2007 SCMR 236 and Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another 2010 SCMR 342 rel.

Ms. Naila Tabassum for Plaintiffs.

Ehsanullah Khan for Defendant No.2.

Defendant No.1 present in person.

2024 C L C 500

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

SHAKEEL AHMED----Appellant

Versus

GULZAR and others----Respondents

IInd Appeals Nos.45 and 46 of 2019, decided on 12th May, 2022.

Specific Relief Act (I of 1877)---

----Ss.8, 39, 42 & 54---Suit for possession, cancellation of document, declaration and injunction---Concurrent findings of facts by two Courts below---Principal and attorney---Relationship---Transfer of property in the name of relative of attorney---Appellant / defendant resisted suit filed by respondent / plaintiff on the plea that suit property had already been sold to him by the attorney of previous owner---Both the Courts below concurrently decided the suit and appeal in favour of respondent / plaintiff---Validity---Property changed hand through attorney by previous owner for the benefit of appellant / defendant, who was his brother, therefore, transaction could not escape from requirement of special permission from principal---Sanctity of the Iqrarnama presented after seven years of filing of written statement was shrouded in doubt by the testimony of witnesses---Trial Court rightly concluded that such Iqrarnama was nullity in the eye of law---Both the Courts below rightly held that the attorney was incompetent in making sale of subject property to his own brother appellant / defendant---High Court declined to interfere in judgments and decrees passed by two Courts below who had dealt with the matter meticulously and rendered well-reasoned judgments---Second appeal was dismissed in circumstances.

Mst. Anwari v. Abdul Waheed and another 2019 MLD 701 and Bilal Hussain Shah and another v. Dilawar Shah PLD 2018 SC 698 ref.

Muhammad Taj v. Arshad Mehmood and 3 others 2009 SCMR 114 and Muhammad Yakoob Brohi v. Ministry of Housing and Works and 2 others s2017 CLC 369 rel.

Ghulam Sarwar Baloch for Appellants.

Noor Ahmed Memon for Respondents (in IInd Appeal No.46 of 2019).

2024 C L C 534

[Sindh]

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

JAAG BROADCASTING (PRIVATE) LIMITED----Petitioner

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY (PEMRA) and another----Respondents

Constitution Petitions Nos.D-2518 of 2016, D-2064 and 7798 of 2017 and D-3499, 3500 and 3783 of 2018, heard on 16th January, 2023.

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

----S.26---Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules, 2010, Rr. 8 & 10---Complaint---Adjudication---Petitioner / Broadcasting company was aggrieved of Letters issued by Pakistan Electronic Media Regulatory Authority (PEMRA) approving recommendations made by Council of Complaints (COC)---Validity---Mere narration in letters in question that recommendations of COC were approved by competent authority did not suffice for purpose of compliance with R.10 of Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules, 2010---Minutes of various meetings of PEMRA where recommendations of COC underpinning each of the letters in question had been considered were also placed on record under cover of a statement to reinforce contention regarding compliance with codal requirements---Such statements did not serve to advance the case of PEMRA as those did not reflect any value judgment or application of mind---Leave refusing order relied upon by authorities was of no avail, since it addressed only a question of delegation and the subject of R.10 of Pakistan Electronic Media Regulatory Authority (Council of Complaints) Rules, 2010 was not a point under discussion---High Court set aside letters in question issued against petitioner / broadcasting company---Constitutional petition was allowed, in circumstances.

AYR Communications Limited through duly Authorized Officer v. Council of Complaints, Islamabad through Secretary and 2 others PLD 2022 Sindh 552 rel.

Messrs Labbaik (Pvt.) Ltd. v. Pakistan Electronic Media Regulator Authority (CPLA Nos. 3046 to 3052 of 2022) distinguished.

Muhammad Vawda for Petitioner.

Kashif Hanif and Sarmad Ali for Respondent No.1.

Khaleeq Ahmed, D.A.G for Respondent No.2.

2024 C L C 568

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar and Omer Sial, JJ

PROVINCE OF SINDH through Secretary Works and Service Department

and another----Appellants

Versus

LAND ACQUISITION OFFICER (B&R) HYDERABAD and another--- Respondents

1st Appeal No.D-11 of 2016, decided on 9th March, 2022.

Land Acquisition Act (I of 1894)---

----Ss. 4, 18 & 54---Acquisition of land---Compensation---Determination---Appellants/land owners being aggrieved of compensation determined by Land Acquisition Officer filed an appeal before the Referee Court but the same was dismissed by holding that the award passed by Land Acquisition Officer was according to law---Validity---Nothing on record was available to show that any notice was ever issued by the Collector before proceedings in the matter for determining the award/compensation ex-parte against the appellants---Said fact clearly deprived the appellants to rebut the case of the respondents---However, even in ex-parte proceedings the claimant was not absolved from proving his case as he was required to stand on his own legs---Land Acquisition Officer had used very fanciful wording in the Award wherein he said that "one had to offer gold for gold and not copper for gold to landowners"---However, Land Acquisition Officer completely failed to appreciate that he could not evaluate the land on the basis of future or expected improvements in the land---First and foremost consideration before the Land Acquisition Officer had to be the market value of the land as envisaged under subsection (1) of S. 23 of the Act---Land Acquisition Officer, who issued the Award impugned before the Referee Court as well as the Mukhtiarkar, who issued the valuation certificate, both were not examined by the Court---Land Acquisition Officer was a material witness and was to recognize the award issued by him before the Referee Court and he was also to be confronted with regard to the material on the basis of which he passed the award by fixing the rate of the land at Rs.450,000/- per acre---Similarly, the Mukhtiarkar was also required to step into the witness box to satisfy the Court about the correctness of the valuation certificate and his competence to issue the valuation certificate---Referee Court observed that "Land Acquisition Officer, (who passed the award), neither appeared in the witness box nor filed any written statement as per record, therefore, the burden laid upon the appellants as to whether rate given by respondent No.1/ Land Acquisition Officer in his award was not according to law---Initial burden was on the Land Acquisition Officer to show that the award was in accordance with law and the rate of land per acre was in conformity with the prevailing market rate of the land---Non-appearance of the Land Acquisition Officer as a witness was being made a ground to shift the burden on the appellants---Witness of the appellants claimed that the acquired land was situated about eight to ten KMs away from city while the respondent No.2 claimed that the acquired land fell within the city---Nothing was on record as to how that dispute was resolved by the Land Acquisition Officer and in whose favour---Land Acquisition Officer had observed that in order to avoid litigation, he had allowed rate of Rs.450,000/- per acre---Once again, avoidance of litigation was not a ground to be taken into consideration---Respondent No.2 had made a bald statement regarding the rate of land without any supporting evidence, which could not be accepted---Appeal was accordingly accepted by setting aside the impugned judgment passed by the Referee Court and the case was remanded to the Referee Court for decision afresh after recording evidence.

Messrs Rabia Rana and Company v. Province of Sindh and others 2016 YLR 2286; Land Acquisition Collector Sargodha and another v. Muhammad Sultan and another PLD 2014 SC 696; Land Acquisition Collector and others v. Muhammad Nawaz and others PLD 2010 SC 745; Hyderabad Development Authority v. Abdul Majeed NLR 2002 Revenue 01 and Zulqernain Khurram and another v. Punjab Healthcare Commission and 4 others 2022 CLC 61 ref.

Land Acquisition Collector Sargodha and another v. Muhammad Sultan and another PLD 2014 SC 696 rel.

Allah Bachayo Soomro, Additional Advocate General Sindh for Appellants.

Nemo for Respondent No.1.

Barrister Jawad Ahmed Qureshi for Respondent No.2.

2024 C L C 580

[Sindh (Hyderabad Bench)]

Before Muhammad Shafi Siddiqui, J

MUHAMMAD HAROON through L.Rs.----Applicant

Versus

ALI ASGHAR and others----Respondents

Civil Revision Application No.113 of 1995, decided on 28th September, 2023.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Suit for specific performance of agreement to sell---Judgment at variance---Lower Appellate Court, findings of---Withholding of best evidence--- Presumption---Suit filed by petitioners / plaintiffs was decreed by Trial Court but Lower Appellate Court dismissed the same---Validity---Receipt of partial payment was subsequent to the agreement, which amount was not shown as part of sale consideration in the agreement---Receipt did not show that the amount was paid earlier and was acknowledged later in time---If some of the respondents / defendants who executed agreement did not file written statement, there was nothing to prevent petitioners / plaintiffs from summoning them and examining them on oath---Scribe of agreement was not summoned by petitioners / plaintiffs---Agreement of sale was not proved through evidence which could have been brought / provided and the best evidence was kept away---High Court declined to stretch jurisdiction to form a view other than by Lower Appellate Court which was based on the evidence and material available on record---Limited scope was provided under S.115, C.P.C., which could only be exercised if a clear case of misreading and non-reading of evidence was made out---Revision was dismissed, in circumstances.

Parkash Kumar for Applicant.

Pir Bux Bhurgari for Respondent No.1.

Hakim Ali Siddiqui for Respondents Nos.2, 7 to 9.

Rafique Ahmed Dahri, Asst. A.G. for Province of Sindh.

2024 C L C 593

[Sindh]

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

CYRUS R. COWASJEE----Petitioner

Versus

IIIRD ADDITIONAL DISTRICT JUDGE, KARACHI WEST and others---Respondents

Constitution Petition No.3257 of 2015, decided on 7th April, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42, 8 & 54---Suit for declaration, possession and mense profit---Right of appeal not availed---Effect---Petitioner filed a suit for declaration, possession and mense profit on the ground of being a co-owner of the suit property and seeking declaration that the respondent No. 3 being a trespasser was in illegal occupation thereof and recovery of its possession from him along with mense profit---Suit was dismissed as it was held that the petitioner could not prove its ownership or otherwise demonstrate his claim---Petitioner did not prefer an appeal, instead moved an application under S.151, C.P.C., after lapse of the period of limitation prescribed for availing the remedy of appeal, seeking that the judgment be reviewed---Said application was dismissed concurrently by the Trial Court and appellate Court---Validity---Petitioner was the architect of his own misery for if he felt aggrieved by the judgment rendered in the suit, he ought to have availed the right of appeal provided under the law rather than squandering that opportunity and belatedly resorting to an application under S.151, C.P.C., which inevitably met its fate---No reasonable ground had been advanced to show why the appellate remedy was not availed and the plea taken reflected nothing but neglect and indolence on the part of the petitioner in pursuing his claim---Petition stood dismissed accordingly.

R.F Virjee for Petitioner.

Tariq Khan for Respondent No.3 in person.

Muhammad Shahyar Mahar, A.A.G.

2024 C L C 610

[Sindh]

Before Muhammad Shafi Siddiqui and Jawad Akbar Sarwana, JJ

MUHAMMAD MUZAMMIL through Attorney---Appellant

Versus

KHURRAM SAEED---Respondent

First Appeal No. 61 of 2023, heard decided on 14th November, 2023.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 1 & 2---Negotiable Instruments Act (XXVI of 1881), S. 118---Suit for recovery of money on the basis of negotiable instrument---Leave to defend the suit---Conditional order---Non-compliance---Tampering of cheques---Proof---Appellant/defendant was granted leave to defend the suit subject to furnishing solvent surety---Appellant/defendant failed to furnish the surety, resultantly the suit was decreed against him---Contention of appellant/defendant was that the cheques were tampered---Validity---There was no documentary evidence to corroborate such position---Appellant/defendant sought cancellation of underlying agreement which was the basis of his suit for cancellation but such plea did not lie in summary suit---High Court declined to interfere in judgment and decree passed by Trial Court as the same was well-reasoned and proof of dishonored cheques was annexed with plaint---Trial Court rightly observed that presumption regarding cheques in question under S. 118 of Negotiable Instruments Act, 1881, was to be admitted---Appeal was dismissed, in circumstances.

Sardar Sher Afzal for Appellant.

Sardar Abdul Hameed for Respondent.

2024 C L C 655

[Sindh (Hyderabad Bench)]

Before Muhammad Faisal Kamal Alam, J

MUHAMMAD YASEEN----Appellant

Versus

MUHAMMAD ASLAM----Respondent

IInd Appeal No.08 of 2020, Constitution Petition No.S-167 of 2021 and Constitution Petition No.S-826 of 2022, decided on 27th November, 2023.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), S.100, O.XX, R.5 & O.XLI, R. 31---Suit for specific performance of agreement to sell---Second appeal---Misreading and non-reading of evidence---Points for consideration in judgment---Judgments at variance---Scope---Respondent / plaintiff claimed that appellant / defendant executed agreement to sell a house owned by him---Suit was dismissed by Trial Court but Lower Appellate Court decreed the same in favour of respondent / plaintiff---Validity---Lower Appellate Court had given its judgment without appraisal of evidence, and it was also contrary to record---Finding of Lower Appellate Court in its judgment about "admission" regarding payment of substantial amount of sale consideration, was a complete misreading of evidence and was illegal---If Lower Appellate Court was to disagree with findings of Trial Court, which handed down its judgment while discussing issues framed in accordance with O. XX, R. 5, C.P.C., then Lower Appellate Court [Court of Final Facts], had to do issue-wise discussion, which had not been done---At least points for consideration as required under O. XLI, R. 31, C.P.C. should have been framed for giving decision accordingly---Only a formal point for determination was framed that whether judgment of Trial Court called for interference or not---High Court set aside the judgment passed by Lower Appellate Court as it was in violation of principle settled by Supreme Court and was given in a slip shod manner, without application of judicial mind, that included, element of visible fairness in a decision---Second Appeal was allowed, in circumstances.

Ahmad Ali alias Ali Ahmad v. Nasar-Ud-Din and another PLD 2009 SC 453 rel.

Abdul Malik Shaikh for Appellant (in IInd Appeal No.08 of 2020).

Mrs. Razia Ali Zaman Khan Patoli for Respondent (in IInd Appeal No.08 of 2020).

Mrs. Razia Ali Zaman Khan Patoli for Petitioner (in C.P. No.S-826 of 2022).

Abdul Malik Shaikh along with his Associate Jahangzeb Laghari for Respondent (in C.P. No.S-826 of 2022).

2024 C L C 672

[Sindh (Hyderabad Bench)]

Before Agha Faisal, J

Messrs HAIDER BUILDERS AND DEVELOPERS through Managing Director----Appellant

Versus

PARKASH KUMAR and 2 others----Respondents

IInd Appeal No.S-09 of 2022, decided on 28th November, 2023.

Specific Relief Act (I of 1877)---

----Ss. 12 & 54---Civil Procedure Code (V of 1908), Ss. 100 & 101---Suit for specific performance of agreement and injunction---Second appeal---Maintainability---Appellant / defendant was aggrieved of order passed by Lower Appellate Court setting aside additional amount of consideration imposed by Trial Court in decree passed in favour of respondent / plaintiff---Validity---Second appeal does not ordinarily disturb findings of fact supported by evidence on record---High Court may remit to examine whether there exists proper material to support the findings under S. 103, C.P.C., if evidence on record is sufficient to determine any issue of fact necessary for the disposal of appeal, which has not been determined by Lower Appellate Court or which has been wrongly determined by such Court; by reason of any illegality, omission, error or defect---High Court in exercise of jurisdiction under S.100, C.P.C., declined to interfere in judgment passed by Lower Appellate Court, as the appellant / defendant failed to identify any infirmity in judgment and points framed for determination---Second appeal could only lie if a decision was demonstrated to be contrary to the law; a decision having failed to determine some material issues; and / or a substantial error in the procedure was pointed out---None of these ingredients had been identified by appellant / defendant---Even under S. 101, C.P.C., no appeal could be filed except on the grounds mentioned in S. 100, C.P.C.---Second appeal was dismissed, in circumstances.

Muhammad Siddique v. Muhammad Akram 2000 SCMR 533 and Muhammad Saleh and another v. Muhammad Amin and others 2021 YLR Note 23. ref.

Sohail Ahmed v. Pakistan 2023 SCMR 1387; Muhammad Farooq v. Javed Khan PLD 2022 SC 73; Muhammad Saleh and another v. Muhammad Amin and others 2021 YLR Note 23; PLD 1969 SC 617; 2015 MLD 1605; PLD 2007 SC 27; 1986 SCMR 1814; 2012 MLD 1697; 1988 MLD 937 and 2004 SCMR 1342 rel.

Imdad Ali R Unar for Appellant.

Wali M. Jamari, A.A.G. and Parkash Kumar for Respondents.

2024 C L C 900

[Sindh]

Before Muhammad Shafi Siddiqui and Jawad Akbar Sarwana JJ

Syed MUHAMMAD GHOUS----Petitioner

Versus

Mst. NAJMA and 7 others----Respondents

C.P. No.D-4795 of 2023, decided on 17th October, 2023.

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

----S. 12(2)---Fraud and misrepresentation---Non-impleadment of a party---Petitioner (who asserted himself as bona fide purchaser) filed an application under S. 12(2) of the Civil Procedure Code, 1908, (C.P.C) alleging that lady plaintiff (vendee) did not implead him as a necessary party in her suit against defendants/vendors regarding the flat (suit-property) and obtained a decree in her favour by playing fraud and misrepresentation on the Court---Trial Court, after recording evidence, dismissed the said application under S.12(2), C.P.C., which order was maintained by the District Court---Validity---Burden of proof was on the Petitioner (applicant under S.12(2) of the Civil Procedure Code, 1908), who led evidence through eight witnesses---Most of the witnesses of the petitioner were his relatives (his son-in-law, blood brothers, and son), his estate agent, and one (witness) was called from Quetta just because the petitioner asked him to come from Quetta---According to the testimonies of witnesses, almost all of them, during cross-examination, for the majority of the questions put to them claimed lack of knowledge; they conceded they did not prepare the affidavits; only signed affidavits because they were told to do so and admitted that they were illiterate/did not understand English---Finally, no-one from any of the legal heirs of alleged vendors/respondents stepped into the witness box---Further, the petitioner also did not bother to move the Trial court to summon and compel the attendance of said crucial witnesses---Petitioner was to prove that fraud / misrepresentation / concealment of material facts had been played on the Court when Civil Suit was filed in the year 2012, even though the petitioner executed the Sale Agreement with Respondent (Defendant / vendor ) almost three years later---Petitioner/Applicant pointed out no substantial evidence to establish the factum or element of fraud and misrepresentation or concealment of facts by respondent No.1/plaintiff in obtaining the decree---Mere assertion of fraud in the S.12(2), C.P.C., application without proof was not sufficient to set aside the decree---No illegality or material irregularity had been noticed in the impugned orders passed by both the Courts below---Constitution petition was dismissed, in circumstances.

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

----S.12(2)---Fraud and misrepresentation---Non-impleadment of a party---Petitioner (who asserted himself as bona fide purchaser) filed an application under S. 12(2) of the Civil Procedure Code, 1908, (C.P.C) alleging that lady plaintiff (vendee) did not implead him as a necessary party in her suit against defendants/vendors regarding the flat (suit-property) and obtained a decree in her favour by playing fraud and misrepresentation on the Court---Trial court, after recording evidence , dismissed the said application under S.12(2), C.P.C., which order was maintained by the District Court---Validity---There was no reason for respondent No.1/plaintiff to implead the petitioner/applicant for the reason that petitioner/applicant neither had nor could establish legal character or right on the basis of the Sale Agreement---Sale Agreement by itself could not confer any title on the petitioner/applicant also because the same was not a title deed, and such agreement did not confer any proprietary right---Thus, impleading petitioner/applicant before he had established his right in the flat would have been meaningless---No illegality or material irregularity had been noticed in the impugned orders passed by both the Courts below---Constitution petition was dismissed, in circumstances.

Muhammad Iqbal v. Nasrullah, 2023 SCMR 273 and Muhammad Yousaf v. Munawar Hussain and others 2000 SCMR 204 ref.

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

----S. 41, Proviso---Specific Relief Act (I of 1877), S. 27(b)---Civil Procedure Code (V of 1908), S. 12 (2)---Fraud and misrepresentation---Non-impleadment of a party---Petitioner (who asserted himself as bona fide purchaser) filed an application under S. 12(2) of the Civil Procedure Code, 1908 (C.P.C), alleging that lady plaintiff (vendee) did not implead him as a necessary party in her suit against defendants/vendors regarding the flat (suit-property) and obtained a decree in her favour by playing fraud and misrepresentation on the Court---Trial Court, after recording evidence , dismissed the said application under S.12(2), C.P.C., which order was maintained by the District Court---Validity---Record revealed that the petitioner entered into a sale agreement with respondents/vendors who was located on the ground floor of the Apartments (building) while respondents, at the same time, resided on the fourth floor of the same building---Yet the petitioner did not bother to check in with any of them before entering into a sale agreement---Petitioner took no steps to safeguard his interest, and he now had to live with the consequences of the risk he took---In the said circumstances, the petitioner could neither take benefit of proviso to S.41 of the Transfer of Property Act, 1882, nor he was able to establish that he was a bona fide purchaser for valuable consideration without notice under S. 27(b) of the Specific Relief Act, 1877---Petitioner/applicant did not act prudently---Petitioner had remedies available to him for the redressal of his grievance, including filing a suit for specific performance, yet he took the path less travelled by attempting to prove his title by filing a S.12(2), C.P.C., application---No illegality or material irregularity had been noticed in the impugned Orders passed by both the Courts below---Constitution petition was dismissed, in circumstances.

Aamir Nawaz Warraich for Petitioner.

Nemo. for Respondents Nos.1 to 5.

Abdul Jalal Zaidi, A.A.G. for Respondent No.6.

2024 C L C 914

[Sindh]

Before Zulfiqar Ahmad Khan, J

Mrs. SHAHINA SHAHID----Appellant

Versus

Messrs QAMRAN CONSTRUCTION (PVT.) LTD and another----Respondents

2nd Appeal No.28 of 2007, decided on 27th November, 2023.

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

----S.12---Specific performance of agreement to sell---Cancellation of allotment---Subsequent vendee---Bona fide purchase---Proof---Appellant / plaintiff got an apartment booked with respondent / defendant who despite receiving a substantial amount had cancelled the booking---Contention of respondent / defendant was that the apartment had further been sold to a third party---Trial Court decreed the suit in favour of appellant / plaintiff but Lower Appellate Court dismissed the same---Validity---Person seeking specific performance has to establish that he is enthusiastic and vehement to act upon his obligations as per the contract whereas the opponent is refusing or delaying its execution---Valid contract between the parties has an essential condition of consensus ad idem for settling all the terms of contract---Both the parties had consented to the terms and conditions of application form---Witness produced by respondent / defendant admitted to have not exhibited any original document regarding allotment of apartment in question to third party---Respondent / defendant did not receive any payment from third party in installment, whereas third party admitted to have paid price in lump sum---Such fact created serious doubts in the version of respondent / defendant and Trial Court considered such fact but Lower Appellate Court ignored the same---Subsequent vendee avowing bona fide intention could not be absolved from the duty of making investigations as to title of vendor, which inquiries included but were not limited to inviting objections through public notices in order to determine that there was no deception or foul intentions in transactions and he / she acted in good faith and with bona fide intention without knowledge or notice of earlier sale agreement at the time of his transaction and proceeded in the matter as a person of ordinary prudence before signing on the dotted line---High Court set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Second appeal was allowed accordingly.

Hafiz Tassaduq Hussain v. Lal Khatoon PLD 2011 SC 296 rel.

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

----O. VI, Rr. 1 & 2---Pleadings---Scope---Written statement by itself has no evidentiary value unless deponent of pleadings (plaint or written statement) enters into witness box to lead evidence.

Abdul Succor Shaikh v. Adeel Zohoor Malik 2020 CLC 984 rel.

Muhammad Jamil and Sarosh Jamil for Appellant.

Mian Mushtaq Ahmed for Respondent No.1.

Nemo for Respondent No.2.

2024 C L C 1033

[Sindh]

Before Mohammad Abdur Rahman, J

OMER BIN MEHMOOD----Petitioner

Versus

COURT OF IIIrd ADDITIONAL DISTRICT AND SESSIONS JUDGE SOUTH, KARACHI and 3 others----Respondents

C.Ps. Nos.S-922 and S-923 of 2019, decided on 30th August, 2023.

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

----S. 14(1)---Family Courts Rules, 1965, R.22 (1) & proviso---Limitation Act (IX of 1908), S. 5---Appeal---Condonation of delay---Application under S. 5 of Limitation Act, 1908---Maintainability---Application under S. 5 of Limitation Act, 1908 technically is not applicable to appeal maintained under R.22(1) of Family Courts Rules, 1965 read with S.14(1) of Family Court Act, 1964---When such application is placed before Appellate Court it should not be dismissed on such technical ground of having been filed under incorrect provision of law and for all intents and purposes must be treated as an application filed under the proviso to R.22(1) of Family Courts Rules and adjudicated as against the same criteria as would be applied to application under S.5 of Limitation Act, 1908, on "sufficient cause".

Muhammad Aslam v. Zainab Bibi 1990 CLC 934; Jameela Begum v. Additional District Judge 2005 MLD 376; Anar Mamana v. Misal Gul PLD 2005 Pesh 194; Rasheed Ahmed v. Shamshad Begum 2007 CLC 656; Ali Muhammad and another v. Fazal Hussain and others 1983 SCMR 1239; Masserat Bibi v. Muhammad Bashir 1996 MLD 692; Muhammad Maqsood v. Kousar Nisar 2000 YLR 2698; Muhammad Arshad Khan v. Muhammad Kaleem Khan PLD 2007 SC AJK 14 and 1995 SCMR 1419 rel.

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

----S. 12---Exclusion of time for obtaining certified copy---Principle---If a party does not pay costs on application for certified copy of order to be assailed, time does not stop.

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

----S. 25---Constitution of Pakistan, Art. 199---Constitutional petition---Guardianship of minor---Welfare of minor---Inability to maintain minor---Petitioner was father of minor son whereas respondents were relatives of mother of the minor who had adopted the minor---Petitioner was aggrieved of judgment passed by Family Court appointing respondents as guardians of the minor---Validity---Whatever the relationship could have been with the mother of the minor, petitioner / father had abandoned the minor at the time of his birth---Petitioner / father had complete lack of involvement, either financially or emotionally, with the child who had special needs---Family Court had rightly recorded findings that petitioner / father was an unfit person to be a guardian of minor and that such role was best assumed by respondents---High Court declined to interfere in judgment passed by Family Court appointing respondents as guardians as there was no illegality or infirmity in it---Constitutional petitions dismissed, in circumstances.

Zahoor Ahmad v. Mst. Rukhsana Kausar 2000 SCMR 707 and Mst. Rasheedan Bibi v. Additional District Judge and 2 others 2012 CLC 784 ref.

Khan Muhammad v. Mst. Surayya Bibi 2008 SCMR 480; Mehmood Akhtar v. District Judge, Attock 2004 SCM 1839; Mst. Shahista Naz v. Muhammad Naeem Ahmed 2004 SCMR 990; Mst Khalida Parveen v. Muhammad Sultan Mehmood PLD 2004 SC 1; Badruddin Roshan v. Mst Razia Sultana 2002 SCMR 371; Firdous Iqbal v. Shifaat Ali 2000 SCMR 838; Zahoor Ahmed v. Rukhsana Kausar 2000 SCMR 707; Rubia Jilani v. Zahoor Akhtar Raja 1999 SCMR 1834; Nighat Firdous v. Khadim Hussain 1998 SCMR 1593; Zafar Iqbal v. Rehmat Jan 1994 SCMR 339 and Nasir Raza v. Additional District Judge, Jhelum 2018 SCMR 590 rel.

Muhammad Altaf for Petitioner (in C.P. No.922 of 2019).

Nemo. for Respondent No.1 (in C.P. No.922 of 2019).

Arshad Tayebaly and Farjad Ali Khan for Respondent No.2 (in C.P. No.922 of 2019).

Arshad Tayebay and Farjad Ali Khan Respondent No.3 (in C.P. No.922 of 2019).

Nemo for Respondent No.4. (in C.P. No.922 of 2019).

Muhammad Altaf for Petitioner (in C.P. No.923 of 2019).

Nemo for Respondent No.1 (in C.P. No.923 of 2019).

Arshad Tayebaly and Farjad Ali Khan for Respondent No.2 (in C.P. No.923 of 2019).

Arshad Tayebaly and Farjad Ali Khan for Respondent No.2 (in C.P. No.923 of 2019).

Nemo for Respondent No.3 (in C.P. No.923 of 2019).

2024 C L C 1054

[Sindh]

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

MAHFOOZ AKHTAR and 18 others----Petitioners

Versus

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

C.P. No.D-2067 of 2022, decided on 13th June, 2023.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Contractual relations---Non-renewal of license---Effect---Petitioners were licensees and their contractual services were dispensed with by respondent company after change in Customer Service Manual and resultantly their licenses were not renewed---Validity---Petitioners as licensees could not claim renewal as a matter of right so as to maintain a petition for issuance of a writ under Art. 199 of the Constitution---Decision made by Oil and Gas Regulatory Authority did not serve to advance case of petitioners, as such decision did not require respondent company to renew license agreements---Effect of impugned order of Oil and Gas Regulatory Authority vis-à-vis Customer Service Manual rendered was also rendered moot by subsequent approval accorded to the amendments---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Faraz Ahmed v. Federation of Pakistan through Secretary, Ministry of Communication, Government of Pakistan, Islamabad and others 2022 PLC 198 and Umer Gul v. Government of Sindh 2007 YLR 3191 rel.

G.N. Qureshi, Ahsan Hassan Joya and Samiullah for Petitioners.

Ghazi Khan Khalil, Abdul Hakeem Junejo and Abdul Razzak and Khaleeque Ahmed, DAG for Respondents Nos.1 to 4.

2024 C L C 1068

[Sindh]

Before Muhammad Shafi Siddiqui and Omar Sial, JJ

ZAFAR HASAN KHAN and 2 others---Appellants

Versus

Messrs HABIB BANK LIMITED---Respondent

First Appeal No.25 of 2016, decided on 15th March, 2024.

Civil Procedure Code (V of 1908)---

----S. 51, proviso & O.XXI, R. 40---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss. 19 & 22---Issuance of arrest-warrant---Scope---Decree-holder/bank filed application before the Banking Court seeking issuance of arrest warrant of the customer/judgment-debtor on the ground that as the decree had not materialized as yet, hence the warrants were inevitable---Customer/judgment-debtor preferred appeal against acceptance of said application contenting that ground taken by the decree-holder was not enough for issuance of such warrants---Validity---Issuance of warrant in respect of decrees, which were unaccomplished, is not a routine matter---Section 51 of the Civil Procedure Code, 1908, provides for execution of a decree though arrest and detention of the judgment-debtor and the proviso thereof furnishes certain safeguards against the deprivation of liberty and contemplates that such power can only be exercised under certain given situations---In the present case, such situations were not considered prior to the issuance of warrants---High Court set aside impugned judgment and remanded the matter to the Banking Court, observing that unless the requirement of S. 51 & O.XXI, R. 40 of the Civil Procedure Code, 1908, are fulfilled, the ultimate recourse to arrest of the judgment-debtor may not be made---Appeal filed by the judgment-debtor was disposed of accordingly.

Khaleeq Ahmed for Appellants.

Zamir Ahmed Kalhoro for Respondent.

2024 C L C 1081

[Sindh]

Before Nadeem Akhtar and Yousuf Ali Sayeed, JJ

MARKET COMMITTEE, KARACHI through Secretary----Petitioner

Versus

Haji AMIR MUHAMMAD KHAN and 3 others----Respondents

H.C.A. No.327 of 2023, decided on 3rd October, 2023.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1, 2, 3 & 4---Specific Relief Act (I of 1877), Ss. 42, 12 & 54---Suit for declaration, possession and permanent injunction---Ad-interim order, violation of---Restoration of possession---Allottee filed suit against the Market Committee on the basis of a registered sale deed executed by the Nazir of Single Judge of the High Court (Trial/Executing Court) by virtue of a previous decree in his favour---Appellant/defendant (Market Committee) was directed by the Court to restore possession of the suit-plot to the respondent / plaintiff (allotee)---Plea of the appellant/defendant was that neither the number of the suit plot was correct nor such plot physically existed and it was also not traceable in layout plan, and decree had already been assailed by filing an application under S.12(2), C.P.C---Validity---Site Plan attached to the registered sale deed executed by the Nazir of the Court in favour of the allottee and the Layout Plan of the subject market, prima facie, showed that the suit property was shown and described therein---Question as to whether the suit property did not exist and the plot claimed by respondent/plaintiff fell within the amenity plot / parking area, as alleged by the appellant, or was available and was situated elsewhere, as claimed by respondent /plaintiff, could be decided in the Suit only after examining the evidence led by the parties---Thus, the dispute relating to the location and title of the piece of land in dispute was yet to be decided in the Suit---Regarding possession of the suit property, the record showed that inspection thereof was ordered in the respondent /plaintiff's (previous) suit by appointing the Nazir of High Court as Commissioner who submitted his report stating that respondent No.1 was in possession---Perusal of the impugned order showed that the above factors were taken into account by the Single Judge of the High Court while directing the defendants to restore the possession of respondent /plaintiff as, admittedly, an ad-interim order, securing the latter's possession, was in the field at the relevant time---Therefore, the impugned order did not require any interference to the extent of restoration of the respondent/ plaintiff possession---It was an admitted position that the decree in respect of the suit property passed in favour of the allottee and the registered sale deeds executed in pursuance thereof in favour of the allottee and respondent / plaintiff were still in the field---However, the dispute involved in the suit relating to the location and title of the piece of land in dispute was yet to be decided---Due to said reason, the finding in the impugned order that respondent No.1 / plaintiff was apparently the lawful transferee of the suit property, was premature and could at best be tentative---If the subject matter of the lis was not preserved till the final disposal of the suit, not only would the purpose of filing the suit be defeated, but there would also be multiplicity of proceedings between the parties---Respondent / plaintiff had given an undertaking before the High Court that if possession of the suit property was restored to him, he shall construct a boundary wall around it at his own cost to save it from encroachment, and shall not raise any other construction thereon till the final disposal of his suit---Said undertaking appeared to be reasonable and suitable for preserving the subject matter of the lis and equitable for protecting the interest of the contesting parties during pendency of the suit---High Court modified the impugned order in terms of the said undertaking---Appeal stand disposed of accordingly.

Shafiq Ahmed Lanjar for Appellant.

2024 C L C 1105

[Sindh (Larkana Bench)]

Before Irshad Ali Shah and Arbab Ali Hakro, JJ

GULSHAN BIBI and another----Petitioners

Versus

SADDAR DIN and others----Respondents

Constitutional Petition No.D-62 of 2023, decided on 23rd May, 2023.

Civil Procedure Code (V of 1908)---

----O. IX, R. 7---Limitation Act (IX of 1908), Art. 181---Constitution of Pakistan, Art. 10-A---Ex-parte order against the defendants---Failure to file written statement within time---Application under O.IX, R. 7, C.P.C., by the defendant filing of---Limitation---Right to fair trial---Defendants were proceeded ex-parte and debarred from filing their written statement by the Civil Court---Defendants filed an application under O. IX, R.7 of Civil Procedure Code, 1908, seeking to set aside ex-parte / debarring order---Said application was dismissed by the Civil Court and the Revisional Court maintained the dismissal order--- Grounds against the petitioners / defendants were that they failed to file their written statement within time prescribed by law and the very application for setting aside of ex-parte order was time barred---Validity---Admittedly, the suit was still pending before the Trial Court; the valuable rights of the petitioners were said to be involved in the subject litigation, therefore, in such a situation, it would be unjustified to dislodge them from the active contest on basis of technicalities, which obviously was against the mandate contained in Art. 10-A of the Constitution, which prescribed right to fair trial for everyone---If the petitioners were permitted to file written statement then it would not only meet the ends of justice but would help the Trial Court to arrive at the right conclusion---Even otherwise, no time had been prescribed either in Civil Procedure Code or Limitation Act, 1908 for setting aside of the ex-parte order, therefore, the same was to be governed by Art. 181 of Limitation Act, 1908, which prescribes period of three years for filing such application when the right to apply occurs---High Court set-aside the impugned order; consequently, the petitioners were permitted to file their written statement in the suit before the Trial Court within 30 days, after making payment of Rs.10,000/- to the plaintiff as costs---Constitutional petition was disposed of accordingly.

Wali Muhammad v. Hakeem Muhammad Khan and others 1993 MLD 1101 ref.

Aftab Ahmed Channa for Petitioners.

None for Respondents Nos.1 and 4.

Ayaz Ali Noorani for rest of private Respondents.

2024 C L C 1112

[Sindh]

Before Mohammad Abdur Rehman, J

MUHAMMAD FAIZAN SAMAD through lawfully constituted attorney----Applicant

Versus

XIth ADDITIONAL DISTRICT AND SESSIONS JUDGE (SOUTH), KARACHI and 3 others----Respondents

Revision Application No.175 of 2022, decided on 1st August, 2023.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr. 1, 2 & 3---Limitation Act (IX of 1908), First Sched., Art. 159---Suit for recovery of money---Dishonored cheque---Ex-parte proceedings---Application of defend the suit---Limitation not extended--Applicant / defendant was declared ex-parte by Trial Court who was barred from filing application for leave to appear and defend the suit---Validity---First time copies of the plaint of summary suit were handed over to applicant / defendant and time was given to him to file application under O. XXXVII, R. 3, C.P.C. for leave to appear and defend summary suit---In absence of any proof of summons having been served before that date, the summons was deemed to have been served on the applicant / defendant on the date when copy of plaint of summary suit was provided to him giving him 10 days from that date to file his application for Leave to Appear and Defend summary suit---Trial Court rightly held that it did not have jurisdiction to enhance time prescribed in Art. 159 of First Sched. to Limitation Act, 1908---High Court declined to interfere in order passed by Trial Court although there were some irregularities which were not material in nature---Revision dismissed was, in circumstances.

Muhammad Nadeem Amin v. Ch. Farast Ullah PLD 2006 Lah. 32; Ghulam Rasool v. Abdullah 1991 SCMR 1964; Mst. Banori v. Jilani through Legal Heirs and others PLD 2010 SC 1196 and Syed Azhar Hussain Raizvi v. Irfan Umar 2020 CLC 1514 ref.

Ghulam Asghar Pathan for Applicant.

Respondents Nos.1 3 and 4 Called absent.

Ms. Arjumand Khan for Respondent No.2.

2024 C L C 1135

[Sindh]

Before Nadeem Akhtar and Yousuf Ali Sayeed, JJ

KHALIL AHMED through Attorney----Appellant

Versus

DISTRICT REGISTRAR FOR REGISTRATION and 4 others----Respondents

High Court Appeal No.178 of 2021, decided on 6th October, 2023.

Limitation Act (IX of 1908)---

----S. 5---Filing of appeal, delay in---Condonation---Sufficient cause---Scope---Sole ground on which the delay was sought to be condoned was that due to some symptoms of Covid-19, the attorney had been advised by his doctor to observe quarantine, not permitting him to enter the premises of the court---Attorney, in support of his contention, had filed a medical certificate purportedly issued to him, however, neither the name of the Attorney was mentioned in said certificate nor period / dates of quarantine had been mentioned---Moreover, the application for condonation of delay and its supporting affidavit were silent as to why the appellant himself was unable to present the appeal while his Attorney was observing quarantine---Appellant had not even filed his own affidavit explaining his disability for filing the appeal within time, therefore, the burden to explain the delay of each and every day had not been discharged by the appellant and/or his Attorney---Thus, the delay of four days in filing the appeal could not be condoned, for having been filed after the prescribed period of limitation, meanwhile valuable right had been created in favour of the respondents, and no sufficient cause was found for filing the appeal beyond the period of limitation---Application for condonation of delay was dismissed, resultantly the appeal was also dismissed.

Imtiaz Ali v. Atta Muhammad and another PLD 2008 SC 462 ref.

Badar Alam for Appellant.

2024 C L C 1146

[Sindh]

Before Muhammad Shafi Siddiqui and Jawad Akbar Sarwana, JJ

Dr. NAFEES ZUBAIR and others----Appellants

Versus

SAEEDA BANO and others----Respondents

High Court Appeals Nos.34, 35 and 44 of 2023, decided on 29th November, 2023.

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

----S.123---Oral gift---Validity---Transfer can only be effected in pursuance of a gift of any immovable property by registering an instrument duly signed by or on behalf of donor and attested by at least two witnesses.

Allah Diwaya v. Ghulam Sher and others PLD 2008 SC 73 rel.

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

----Ss.12 & 39---Suit for specific performance of sale agreement and cancellation of agreement---Balance consideration---Non-payment---Earnest money---Respondents / plaintiffs filed suit for cancellation of agreement to sell and the same was decreed in their favour for non-payment of balance consideration amount by appellant / defendant---Validity---Specific performance of an agreement of immoveable property is an equitable relief based on equity---Appellant / defendant, who had to show that he performed equity to claim equity from the Court, failed to discharge such burden as he had not paid or deposited balance sale consideration at the time when the suit was filed---It was not equity if appellant / defendant was allowed specific performance realizing that no efforts were made to deposit balance amount at the time when injunction was sought and/or when suit was filed, since doctrine of lis pendens was also an obstacle for seller---Division Bench of High Court declined to interfere in judgment and decree passed in favour of respondents / plaintiffs---Amount that was extended/paid at the time of execution of agreement which was not disputed, was rightly ordered to be returned along with profit accrued thereon along with damages and compensation extended to appellant / defendant, which discretion was lawfully exercised by Judge in Chambers of High Court as the amount was retained for a number of years---Intra Court Appeals were dismissed in circumstances.

Muhammad Farrukh Iqbal v. Mrs. Ayesha Iram and others 2021 SCMR 1341 ref.

Arshad Tayebaly along with Talha Javed for Appellant (in H.C.As. Nos.34 and 35 of 2023).

Ikram Ahmed Ansari and Ayaz Ahmed Ansari for Respondents Nos.2 and 3 (in H.C.As. Nos.34 and 35 of 2023).

Ikram Ahmed Ansari and Ayaz Ahmed Ansari for Appellants (in H.C.A. No.44 of 2023).

Arshad Tayebaly along with Talha Javed for Respondents (in H.C.A. No.44 of 2023).

2024 C L C 1158

[Sindh (Larkana Bench)]

Before Arbab Ali Hakro, J

REHMATULLAH BROHI----Petitioner

Versus

GHULAM SARWAR and 2 others----Respondents

Constitutional Petition No.S-401 of 2022, decided on 18th May, 2023.

(a) Sindh Waqf Properties Act (XXVII of 2020)---

----S. 3(f)---Muslim Waqf---Object, purpose and scope---Once Waqif creates Waqf, it gets tied up forever and becomes non-transferable---Main objective behind creating Waqf is that its usufruct is made available for purposes that are valid under Muslim Law---For creating a Waqf, there are certain essentials that need to be followed:- (i) Waqf should be for religious, pious, and/or charitable purposes; (ii) It should be of permanent nature, i.e., absolute, irrevocable, non-transferable, and unconditional and (iii) Once Waqf is created, ownership vests in the name of Almighty Allah, i.e., detention of thing, is implied ownership of the Almighty---Usufruct that is obtained from Waqf property is for the benefit of mankind---Waqf cannot be created by every person---There are only certain people who can create a Waqf---It can be created by a major person, with no fraud, undue influence or coercion, or any deadly illness---There are only certain things that can be made, Waqf like the Koran, swords, war camels and horses, shares in companies, and money for loans to the poor---Waqf, under Muslim Law, is created by Waqif orally or in writing and then Almighty Allah becomes the owner of the property, which is irrevocable and later cannot be transferred back---Waqf can only be of those objects that are considered valid under Muslim law.

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

----S. 15---Sindh Waqf Properties Act (XXVII of 2020), Ss.10 & 11---Ejectment of tenant---Concurrent findings of facts by two Courts below---Petitioner / tenant was aggrieved of eviction order passed against him by two Courts below---Plea raised by petitioner / tenant was that demised premises was Waqf property and provisions of Sindh Waqf Properties Act, 2020, were applicable---Validity---Interconnection of landlord and tenant among respondent and petitioner, coupled with unfolding of chronological process and passing of their respective fathers, resulted in manifestation of a statutory tenancy---Conclusions drawn by Revisional Court regarding applicability of Ss. 10 & 11 of Sindh Waqf Properties Act, 2020, were valid in instances where demised premises had been duly registered or had undergone transfer of possession under the purview of the Chief Administrator---High Court declined to preclude jurisdiction of Rent Controller---In the hierarchy contemplated under Sindh Rented Premises Ordinance, 1979, the "Appellate Court" is the final authority---High Court cannot interfere in well-reasoned orders and findings of the Rent Controller and Lower Appellate Court unless there is grave miscarriage of justice, misreading, non-reading of evidence available on record or error of jurisdiction was caused by the Rent Controller or Lower Appellate Authority---High Court in Constitutional jurisdiction declined to interfere in eviction orders passed by Courts below, as the same did not suffer from any illegality or jurisdictional error---Constitutional petition was dismissed, in circumstances.

Mst. Shahana Jawed v. Haroon 1991 MLD 1914; Mohammad Ibrahim v. Zeenat Bibi and others 1991 CLC 1967 and Abdul Hussain and 2 others v. The Fourth Rent Controller, South Karachi and 2 others 1993 CLC 1809 distinguished.

Manager Auqaf and another v. Mazhar Ali 1985 CLC 1794; Yousaf and another v. Muhammad Zubair and another PLD 1986 SC 154; Muhammad Bashir v. Yaseen and others 2011 CLC 1464 and Hanif and others v. Malik Armed Shah and another 2001 SCMR 577 ref.

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

----S. 21---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Interim order---Object, purpose and scope---Right of appeal, absence of---Purpose of not providing appeal from interim orders is to avoid piecemeal decision and to ensure expeditious disposal of matters under Sindh Rented Premises Ordinance, 1979---This object cannot be allowed to be defeated by device of challenging interim orders in Constitutional jurisdiction.

Mst. Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45 rel.

Mohammad Ibrahim Lashari for Petitioner.

Abdul Rehman Mughal for Respondent No.1.

2024 C L C 1177

[Sindh]

Before Mohammad Abdur Rehman, J

Shaikh SULTAN AHMED----Applicant

Versus

IFTIKHARUDDIN PARACHA----Respondent

Revision Application No.169 of 2021, decided on 22nd August, 2023.

Civil Procedure Code (V of 1908)---

----Ss. 24A, 115 & O. IX, R.13---Transfer of case---Notice, non-issuance of---Effect---Suit filed against applicant / defendant was decreed ex-parte and Trial Court as well as Lower Appellate Court declined to set aside the decree---Plea raised by applicant / defendant was that the suit was transferred from one Civil Court to the other and the transferee Court did not issue notice of proceedings---Validity---Trial Court did not commit any irregularity or illegality in not issuing a Court motion notice, when suit was transferred to it from the other Court---High Court in exercise of revisional jurisdiction declined to interfere as applicant / defendant was correctly declared ex-parte by Court after complying the process of service and could not in any manner be considered to have acted illegally or irregularly---Revision was dismissed, in circumstances.

S. Irshad Hussain v. Azizullah Khan 1987 SCMR 150 rel.

Azhar Hussain Shah v. Harat Management (Pvt.) Ltd. PLD 2009 Kar. 148 and Saifullah Siddiqui v. Karachi Electricity Supply Corporation Limited 1997 SCMR 926 ref.

Naveed Mushtaq for Petitioner.

Zafar Iqbal Dutt for Respondent.

2024 C L C 1190

[Sindh]

Before Yousuf Ali Sayeed, J

Syed FEROZE ALI----Plaintiff

Versus

Messrs AURORA BROADCASTING SERVICE (PVT.) LTD. and 7 others----Defendants

Suit No.2320 of 2016, decided on 2nd April 2024.

Limitation Act (IX of 1908)---

----Sched. 1, Arts. 23, 24 & 25---Suit for damages for malicious prosecution, filing of---Limitation---Plaintiff claimed damages against various sets of defendants including four broadcasting companies running their respective television channels on the assertion that he was wrongly arrested in pursuance of FIR at the behest of the defendant (citizen /complainant), and subsequently he (plaintiff) was acquitted by the Court---Validity---From a perusal of the plaint, it was apparent that the plaintiff had conflated a claim for malicious prosecution against the defendant/complainant with a claim for defamation, which encompassed the defendants (broadcasting companies)---Both said torts are separate from one another, having distinct elements and presenting unique causes of action with different periods of limitation, as prescribed under Arts. 23, 24 & 25 of Sched. 1 to the Limitation Act, 1908---Said Articles stipulate that the period of limitation for every description of suit (for compensation for malicious prosecution, for compensation for libel or for compensation for slander) is one year---In the present case, admittedly, a legal notice was sent to the defendants on behalf of the plaintiff after about two months of the news complained of being broadcast by the defendants / (broadcasting companies / television channels), which (notice) was replied to after two months or so---Whereas, the suit was filed by the plaintiff after more than 3 years and 3 months from the date of broadcast---Thus, claim advanced by the plaintiff against such defendants was time barred, thus it was unnecessary to dwell further on whether the claims could have been intertwined as claimed---Suit was dismissed on point of limitation, in circumstances.

Fahad Mushafay for Plaintiff.

Tariq A. Memon for Defendants Nos.1 to 4.

Farhat Gul Malik for Defendant No.8.

2024 C L C 1206

[Sindh]

Before Salahuddin Panhwar, J

Messrs MEERUT COOPERATIVE HOUSING SOCIETY LTD. through Honorary Secretary----Appellant

Versus

SHAHID AKHTAR QURESHI and 3 others----Respondents

Miscellaneous Appeal No.69 of 2022, decided on 14th November, 2023.

Sindh Co-operative Societies Act (XXVIII of 2020)---

----S. 53(2)---Cooperative Housing Societies---Purpose and benefits---Establishment of cooperative societies in Pakistan and South Asia, as in many parts of the world, is rooted in the fundamental essence of fostering socio-economic development, community empowerment and equitable distribution of resources---Primary purposes and essence of cooperatives societies stated:

Primary Purposes and essence of cooperative societies are as follows:

i. Poverty Alleviation: Cooperative societies aim to address poverty by providing marginalized and economically disadvantaged communities with access to resources and opportunities. By pooling resources and collectively engaging in economic activities, cooperatives can help uplift living standards of their members.

ii. Empowerment of Marginalized Communities: In Pakistan and South Asia, where socio-economic disparities are prevalent, cooperatives play vital role in empowering marginalized and underprivileged communities. They offer a platform for individuals, especially those in rural areas, to access resources, financial services, education, and markets that might otherwise be out of reach.

iii. Agricultural Development: Given predominance of agriculture in these regions, agricultural cooperatives are central to boosting agricultural sector. They provide small-scale farmers with means to share resources, modernize their farming techniques, and access markets, leading to increased productivity and income.

iv. Rural and Urban Development: Cooperative societies are instrumental in both rural and urban development. In rural areas, they help in infrastructure development, education, healthcare, and access to clean energy. In urban centers, cooperative housing societies provide affordable and organized housing solutions.

v. Financial Inclusion: Credit and savings cooperatives promote financial inclusion by offering members access to affordable loans and secure savings options. As such the same empowers individuals to invest in their businesses, education, and healthcare.

vi. Collective Bargaining Power: Cooperative societies, particularly in agricultural sector, provide farmers with collective bargaining power. As such the same enables them to negotiate better prices for their produce and purchase agricultural inputs at lower costs.

vii. Community Building and Social Cohesion: Cooperatives promote community building and social cohesion by bringing people together with common interests. Members collaborate, share knowledge, and support one another, creating strong bonds within the community.

viii. Sustainable Practices: Cooperative societies often emphasize sustainable and environmentally friendly practices. By promoting responsible resource management and eco-friendly techniques, they contribute to environmental preservation and sustainable development.

ix. Economic Self-Reliance: Essence of cooperative societies in South Asia, particularly in countries with agrarian economies, is to reduce dependency on external entities and promote economic self-reliance. By working together, members aim to meet their needs and reduce reliance on intermediaries or external providers.

x. Social Justice and Equity: Cooperatives operate on democratic principles, ensuring that each member has an equal voice and equal benefits. As such they strive to create a more just and equitable society by reducing income inequality and addressing social disparities.

High Court directed Provincial Government through its Chief Secretary to constitute a high-level committee comprising of prominent Economists, Agriculturist, Philanthropist, Bankers and persons from development sector to ensure implementation of Sindh Co-operative Societies Act, 2020 in its letter and spirit and amend Sindh Co-operative Societies Rules, 2020, in view of the observations made by High Court in order to meet the main objects, scheme and purposes of Sindh Co-operative Societies Act, 2020, for the promotion of thrift, self-help and mutual aid amongst agriculturists, small farmers, labourers and poor people with common economic needs so as to bring about better living, better business and better methods of production. High Court recommended that model adopted by Punjab Province was be taken as an example in the first phase. High Court directed Provincial Government through its Secretary Cooperative Department to ensure that Sindh Co-operative Societies Act, 2020 and present judgment were widely circulated enabling the deserved persons to have fruits of Sindh Co-operative Societies Act, 2020 as the same was not received by the persons for whom Co-operative Societies Act, 1925, was promulgated. Appeal was disposed of accordingly.

PLD 1979 BJ 1; Military Accounts Cooperative Housing Society v. Secretary to Government of the Punjab PLD 2016 Lah. 223 and (Qur'an, 59:9) rel.

Aziz-ur-Rehman Akhund for Appellant.

Zafar Imam for Respondent.

Ali Zardari, A.A.G. along with Syed Ali Shah, Deputy Registrar, (Legal) Cooperative Societies, Sindh.

Abbadul Hasnain, Muzamil Hussain Jalbani, Akash Gehani, Muhammad Hanif Samma, Ms. Sara Malkani and Ms. Saira Shaikh, Amici Curiae.

2024 C L C 1253

[Sindh]

Before Aqeel Ahmed Abbasi, CJ and Abdul Mobeen Lakho, J

Dr. FAHMIDA MIRZA and another----Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN and others----Respondents

Constitution Petitions Nos.D-213, D-214, D-215, D-216 and D-217 of 2024, decided on 18th January, 2024.

Elections Act (XXXIII of 2017)---

----S. 60 (2)(d) & Form B---Constitution of Pakistan, Arts. 63(1)(n) &199---Constitutional petition---Nomination for election---Statements of assets and liabilities---Principle---Petitioner / candidate was aggrieved of rejecting of her nomination papers for not disclosing her liability as Guarantor to a Sugar Mill---Validity---Wording of S.60(2)(d) of Elections Act, 2017, is monosemous---Petitioner / candidates was required to declare her assets and liabilities and of her spouse and dependent children as on 30th day of June, 2023---Wordings of Form-B duly issued by Election Commission of Pakistan were unequivocal/unambiguous as well casting no doubt as to the cut-off date being 30-06-2023 for the declaration of assets and liabilities---Provision of Art.63(1)(n) of the Constitutional was conclusive to the extent that it did not talk about liability of business/company or liability of guarantors---Petitioner candidate did not obtain any personal loan, whereas, loan was obtained by Public Limited Company in the name of Mirza Sugar Mills Limited---Any different interpretation apart from simple wordings of Art. 63(1)(n) of the Constitution would amount to reading into the Constitution, which was disapproved by the Supreme Court---Petitioner candidate was sued in her capacity as an indemnifier and in such capacity recovery against her had to wait until all assets of the liquidated company were sold---High Court set aside orders passed by Returning Officer and Election Tribunal rejecting nomination papers of petitioner / candidate---Constitutional petition was allowed, in circumstances.

Rana Muhammad Asif Tauseef v. Election Commission of Pakistan and others 2022 SCMR 1344; Haji Fazal Elahi and Sons v. Bank of Punjab and another 2004 CLD 162; Abdul Ghaffar Adamjee and others v. National Investment Trust Limited and another 2019 SCMR 812; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer NA 158 Naushero Feroze and others 1994 SCMR 1299; Sardar Sarfraz Ahmad Cheema v. Returning Officer and others 2013 CLC 1088; Amjad Hussain Khokhar v. District and Sessions Judge, Tando Allahyar and others 2016 YLR 1401; Muhammad Yaqoob Sheikh v. Election Appellate Tribunal Lahore and others PLD 2018 Lah. 795; Abdul Sattar Bachani v. Returning Officer and others 2019 MLD 541; Ch. Muhammad Yousaf Kaselia v. Peer Ghulam Mohy-ud-din Chishti and others PLD 2016 SC 689; Khawaja Muhammad Daud Sulaimani v. Election Tribunal and others PLD 2003 Lah. 106; Rao Tariq Mehmood v. Election Tribunal Punjab, Lahore and another PLD 2003 Lah. 169; Ch. Mubashar Hussain v. Returning Officer, Kharian, District Gujrat and others PLD 2008 Lah. 134; Khayal Ahmed v. Election Tribunal Punjab, Lahore and others PLD 2008 SC 326; Rashid v. Returning Officer, Nankana Sahib PLD 2013 Lah. 509; Muhammad Zia-ur-Rehman and others v. University of Engineering and Technology and others 2013 CLC 512; Rao Tariq Mehmood v. Election Commission of Pakistan, Islamabad and another PLD 2003 Lah. 165; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 284; M/s. State Engineering Corporation Limited, Islamabad v. National Development Finance Corporation and another 2004 CLD 1344 and Ch. Muhammad Yousaf Kaselia v. Peer Ghulam Mohy-Ud-Din Chishti and others PLD 2016 SC 689 ref.

Civil Appeal No.982 of 2018 and others and Abdul Ghaffar Adamjee and others v. National Investment Trust Limited and another 2019 SCMR 812 rel.

Shahab Sarki, Wahaj Ali Khan, Zulfiqar Ali Langah, Meraj Soomro, Abdul Rashid Rajar and Taj Muhammad Jamali for Petitioners (in all petitions).

Haider Waheed, Zoha Sirhindhi, Mir Moula Bux and Eshal Khurram for Respondent No.5 (objector) (in all petitions).

Hassan Akbar, Advocate General Sindh.

Saifullah, A.A.G.

Naeem Akhtar Talpur, A.A.G.

Ms. Saima Imdad, A.A.G.

Irshad Ali, Assistant Attorney General.

Hamid Ali Shah and Muneer Ahmed for M.C.B. (Respondent).

Abdullah Hanjrah, Deputy Director (Law), and Sarmad Sarwar, Assistant Director (Law), E.C.P., present in person.

M. Nawaz Kalwar, Returning Officer NA 223 Badin, present in person.

2024 C L C 1279

[Sindh]

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

USUF PAKISTAN (PVT.) LTD.----Appellant

Versus

MUHAMMAD SABIR CHIPPA and another----Respondents

High Court Appeal No.317 of 2022, decided on 21st February, 2023.

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

----S.54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of an agreement to sell---Balance consideration amount, non-payment / depositing of---Appellant (plaintiff / vendee) assailed order passed by the Civil Court whereby stay having been granted in favor of the appellant/ plaintiff had been vacated by dismissing the application under O. XXXIX of the Civil Procedure Code, 1908---Validity---Record revealed that the sale agreement was made between parties on 03.01.2016 who agreed on the sale consideration of Rs.22,500,000/- and at the time of signing the agreement, the vendor had received 10% part payment of the total sale consideration---As per relevant clause of the said agreement, the remaining amount of Rs.20,250,000/- was required to be paid by the vendee to the vendor on or before 13.01.2016 with the grace period of 30 days, and as per the record, the appellant failed to pay the balance sale consideration to the respondent within time as required in the sale agreement---Primarily, the issue involved in the proceedings was simple for the reason that agreement to sell comprises of reciprocal promises and corresponding obligations to be performed in the manner provided for---Vendee cannot seek enforcement of reciprocal obligation on the part of the vendor to execute the sale deed unless he demonstrates that he not only has the financial capacity but he was and is also always willing and ready to meet the same---Promisor/vendor need not perform his part of the promise or obligation to execute conveyance, unless the promisor/respondent (the vendee) is ready and willing to perform his reciprocal promise---It is mandatory for such party that on first appearance before the court or on the date of institution of the suit, it shall apply to the Court for permission to deposit the balance amount---Any omission in such regard would entail the dismissal of the suit or decretal of the suit if it was filed by the other side---In the present case, obligation was not fulfilled by the appellant / plaintiff---If a buyer does not fulfill his primary obligation to secure/tender the sale consideration and files suit and does so without depositing the sale consideration in court at the first opportunity, the buyer is placed in an advantageous position---Without prejudice to the rights of parties in pending litigation, High/Appellate Court did not find any illegality in the impugned order of dismissal of stay application---Appeal filed by the plaintiff was dismissed, in circumstances.

Space Telecommunication (Pvt.) Ltd. v. Pakistan Telecommunication Authority 2019 SCMR 101 and Mst. Samina Riffat and others v. Rohail Asghar and others 2021 SCMR 7 ref.

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

----S. 55---Specific Relief Act (I of 1877), S. 12---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for specific performance of an agreement to sell---Time as essence of the contract---Scope---Appellant ( plaintiff / vendee) assailed order passed by the Civil Court whereby stay having been granted in favor of the appellant/ plaintiff had been vacated by dismissing the application under O. XXXIX of the Civil Procedure Code, 1908---Validity---Often it is misconstrued that time is not the essence of the contract in cases of specific performance, in respect of the immovable property, and generally, reliance is placed on S. 55 of the Contract Act, 1872---Archaic rule that, generally, time is not of the essence in contracts involving the sale/purchase of immoveable property, could not be used as a ground to grant or otherwise refuse specific performance unless the circumstances that prove otherwise are highlighted and proved by the vendor and or vendee as the case may be---In the present case, obligation was not fulfilled by the appellant / plaintiff---If a buyer does not fulfill his primary obligation to secure/tender the sale consideration and files suit and does so without depositing the sale consideration in court at the first opportunity, the buyer is placed in an advantageous position---Without prejudice to the rights of parties in pending litigation, High/Appellate Court did not find any illegality in the impugned order of dismissal of stay application---Appeal filed by the plaintiff was dismissed, in circumstances.

Muhammad Jamil and others v. Muhammad Arif 2021 SCMR 1108; Malik Bahadur Sher Khan v. Haji Shah Alam 2017 SCMR 902 and Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad 2017 SCMR 1696 ref.

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

----S. 12---Suit for specific performance---Specific performance, grant or refusal of---Discretion of the Court ---Scope---Jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; however the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.

Liaqat Khan v. Falak Sher PLD 2014 SC 506 ref.

Muhammad Kamran Mirza for Appellant.

Merajuddin for Respondent No.1.

Ms. Lubna for Respondent No.2.

2024 C L C 1460

[Sindh (Sukkur Bench)]

Before Arbab Ali Hakro, J

EXECUTIVE ENGINEER IRRIGATION ROHRI DIVISION MORO and 4 others----Applicants

Versus

GUL MOHAMMAD----Respondent

Civil Revision Application No.S-31 of 2018, decided on 3rd May, 2024.

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

----Art. 114---Estoppel, principle of---Object, purpose and scope---Law of estoppel, as provided under Art. 114 of Qanun-e-Shahadat, 1984 prevents a party from denying truth of a fact it previously admitted---Principle in question is based on the premise that a person should not be allowed to contradict his previous statement or action if another person has relied on that statement or action to their detriment.

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

----O. VI, R. 1---Pleadings---New plea---Scope---No party can deviate from its pleadings---Pleadings are formal statements made by parties of their respective claims and defenses for the purpose of determining issues to be adjudicated---Court cannot set up a different plea for a party and decide the case on that basis.

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

----Ss. 8, 42 & 54---Civil Procedure Code (V of 1908), S.115---Suit for recovery of possession, declaration and injunction---Concurrent findings of facts by two Courts below---Concealment of material fact---Material irregularity---Scope---Suit filed by respondent / plaintiff was decreed in his favour and Lower Appellate Court dismissed appeal filed by petitioner / defendant---Plea raised by petitioner / defendant was that respondent / plaintiff concealed filing of an earlier suit on same cause of action which had been dismissed---Validity---Concealment of material fact from Court is a serious matter that not only amounts to thwarting but also hoodwinking process of law---Such actions are unacceptable under any circumstances---Court operates on the principle of transparency and full disclosure, and any deviation from such principle can have severe consequences---Respondent / plaintiff had a duty to disclose pendency of earlier suit while filing subsequent suit---Failure to do so constituted concealment of material fact, leading to entire proceedings conducted by Trial Court being tainted with material irregularities and illegalities, rendering them unsustainable---Concurrent findings of both the Courts and the judgments and decrees passed by them were not beyond the purview of High Court's interference---High Court can invoke its revisional jurisdiction under S.115, C.P.C. if it is found that the judgments and decrees result from concealment of fact, misreading, or non-reading of the record or if the suit was not filed with clean hands---If judgments and decrees result from concealment of fact, misreading, or non-reading of the record, or if the suit was not filed with clean hands, it constitutes a material irregularity---Such irregularities are precisely the kind of situations that S. 115, C.P.C. is designed to rectify---High Court in exercise of revisional jurisdiction set aside concurrent findings of two Courts below and suit was dismissed---Revision was allowed, in circumstances.

2000 MLD 1537; 2000 CLC 1107; 2012 YLR 156; 2010 SCMR 17(3); 2015 CLC 393; 2005 YLR 2608; 1999 SCMR 2167; PLD 2009 Kar. 373; 2002 YLR 989; 1992 SCMR 786; 2020 CLC 583; 2011 SCMR 837; 1986 CLC 770; 2003 SCMR 501; 2021 SCMR 305; 2020 CLC 1219 and 2016 CLC 1090 ref.

Ahmed Ali Shahani, Assistant Advocate General for Applicants.

Abdul Qadir Shikh for Respondent.

2024 C L C 1549

[Sindh]

Before Ahmed Ali M. Shaikh, CJ and Adnan Iqbal Chaudhry, J

SPEC ENERGY DMCC----Appellant

Versus

PAKISTAN PETROLEUM LIMITED and another----Respondents

High Court Appeals Nos.28 and 29 of 2021, decided on 18 September, 2023.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 12, 21(a) & 56(f)---Intra Court Appeal---Specific performance of agreement---Interim injunction, refusal of---Pecuniary compensation---Agreement not enforceable---Effect---Appellant / plaintiff company was awarded contract who failed to complete the project---Respondent / defendant company terminated the contract and did not allow appellant / plaintiff company to remove it's equipment from the site---Judge in Chambers of High Court dismissed applications moved by appellant / plaintiff company and restrained it from interfering with completion of works at the site---Validity---Contract had specified and fixed price payable to appellant / plaintiff company for performing works---Stages of payments to appellant / plaintiff company were pinned to milestones which too were identified in the contract---Standard existed in the contract for ascertaining actual damage caused to appellant / plaintiff company by its non-performance so as to attract S.12(b) of Specific Relief Act, 1877---Appellant / plaintiff company was to design and build a gas processing facility for respondent / defendant---Contract did not award any concession to appellant / plaintiff company so as to raise any issue of operating profits for appellant / plaintiff company---Pecuniary compensation for its non-performance would afford adequate relief so as to attract S.12(c) of Specific Relief Act, 1877---Appellant / plaintiff company did not plead special circumstances to demonstrate otherwise, as a consequence, the contract was hit by S.21(a) of Specific Relief Act, 1877, which stipulated that a contract for non-performance of which compensation in money was an adequate relief, could not be specifically enforced---When subject contract was not specifically enforceable, the relief sought in the suit for incidental injunctions were barred by S. 56(f) of Specific Relief Act, 1877, which stipulated that injunction could not be granted to prevent breach of a contract, the performance of which would not be specifically enforced---Division Bench of High Court declined to interfere in orders passed by Judge in Chambers of High Court---Intra Court Appeal was dismissed, in circumstances.

Co-operative Insurance Society Ltd v. Argyll Stores (Holdings) Ltd. [1998] A.C. 1; Bolan Beverages (Pvt.) Ltd. v. Pepsico Inc. 2004 CLD 1530 and Pakistan Associated Construction Ltd., v. Asif H. Kazi 1986 SCMR 820 rel.

Arshad M. Tayebaly, Omer Memon and Talha Javed for Appellant (in High Court Appeal No.28 of 2021).

Makhdoom Ali Khan, Ali Almani, Ghulam Hussain Shah and Sami-ur-Rehman along with Ms. Shanza Baig, Head Legal, Azam Shahani and Sayyed Tauqeer Hussain, Law Officers, PPL for Respondent No.1 (in High Court Appeal No.28 of 2021).

Nemo for Respondent No.2 (in High Court Appeal No.28 of 2021).

Arshad M. Tayebaly, Omer Memon and Talha Javed for Appellants (in High Court Appeal No.29 of 2021).

Makhdoom Ali Khan, Ali Almani, Ghulam Hussain Shah and Sami-ur-Rehman along with Ms. Shanza Baig, Head Legal, Azam Shahani and Sayyed Tauqeer Hussain, Law Officers, PPL for Respondent No.1 (in High Court Appeal No.29 of 2021).

Nemo for Respondent No.2 (in High Court Appeal No.29 of 2021).

2024 C L C 1645

[Sindh (Larkana Bench)]

Before Jawad Akbar Sarwana, J

CHAKAR BIJARANI and 2 others---Applicants

Versus

ABDUL RASOOL BIJARANI and others---Respondents

Civil Revision Applications No.S-33 of 2023, decided on 18th January, 2024.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), S.115---Suit for declaration, possession and injunction---Specific performance as defence---Scope---Lack of counter claim and preservation of rights---Effect---Non-execution of private agreement (Faisla)---Effect---Concurrent findings of trial and appellate courts---Scope---Joint owner of the suit land with 1/3 share---Petitioners claimed to have purchased suit land from the respondent---Contention of the petitioners was that courts below erred in law in giving decision in favour of the respondent in oblivion of the private agreement, which was made with the consent of the parties---Validity---Petitioners were pleading specific performance as a defence, which would always be an uphill task being implead as defendants---Petitioners had not raised a counter claim in the suit and did not take any other action to agitate and preserve their rights as purchasers, therefore, their defence always stood on thin ice, particularly at the belated stage of revision---Private agreement was not signed by the respondent and witnesses and suit land was not conveyed by a registered sale deed, therefore, it did not help the cause of the petitioners---No jurisdictional error or irregularity in the concurrent findings of facts recorded by the courts of competent jurisdiction or on the point of law had been identified in the judgments and decrees of the courts below that could justify interference by the Revisional Court under S.115, C.P.C---Civil Revision was dismissed accordingly.

Abdul Rehman Bhutto for Applicants Nos.1 to 3.

Nemo for Respondent No.1.

Nemo for Respondent No.2.

2024 C L C 1740

[Sindh (Larkana Bench)]

Before Shamsuddin Abbasi and Agha Faisal, JJ

AZIZULLAH SOOMRO and another----Petitioners

Versus

MUZAFAR HUSSAIN and 2 others----Respondents

Constitutional Petition No.D-241 of 2024, decided on 24th April, 2024.

(a) Constitution of Pakistan---

----Art. 199---Concurrent findings, assailing of---Constitutional jurisdiction of the High Court, invoking of---Scope---Ambit of a constitution petition is not that of a forum of appeal, nor does it automatically become such a forum in instances where no further legal recourse is provided or precluded by the law, and is restricted, inter alia, to appreciate whether any manifest illegality is apparent from the order impugned.

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

----S.115---Constitution of Pakistan, Art. 199---Judgment passed by the District Court in its revisional jurisdiction---Constitutional jurisdiction of the High Court, invoking of---Scope and effect---Section 115 of the Civil Procedure Code, 1908, provides for the remedy of revision and subsection (2) thereof empowers the District Court to exercise power of revision in respect of any case decided by a subordinate Court---Subsection (4) of S. 115 of the Civil Procedure Code, 1908, clearly explicates that no proceedings in revision shall be entertained by the High Court against an order made under said subsection by the District Court---Prima facie, there is a statutory bar upon further escalation in the High Court of a matter determined per the said provision---Impugned Order had admittedly been rendered per S. 115(2), C.P.C. and petitioner had remained unable to advance any argument as to how ( present ) constitutional petition could be entertained in view of the statutory bar contained in S. 115(4), C.P.C.---Constitutional jurisdiction is equitable and discretionary in nature and should not be exercised to defeat or bypass the purpose of a validly enacted statutory provision---Invocation of constitutional jurisdiction in view of the bar contained in S. 115(4), C.P.C. would prima facie disturb the conclusiveness ascribed to the finality of orders per S. 115(2), C.P.C. and unwarranted interference could be construed as defeating manifest legislative intent---Constitutional petition was dismissed, in circumstances.

President All Pakistan Women Association v. Muhammad Akbar Awan 2020 SCMR 260 ref.

(c) Constitution of Pakistan---

----Art. 199---Concurrent findings, assailing of---Constitutional jurisdiction of the High Court, invoking of---Scope---Objective of Arti.199 of the Constitution is to foster justice, protect rights and correct any wrongs, for which, it empowers the High Court to rectify wrongful or excessive exercise of jurisdiction by lower courts and address procedural illegality or irregularity that may have prejudiced a case---However, it is emphasized that the High Court, in its capacity under Art. 199, lacks the jurisdiction to re-examine or reconsider the facts of a case already decided by lower courts---It is impermissible for constitutional jurisdiction to be substituted for revisionary jurisdiction--No jurisdictional defect had been demonstrated by the petitioner in the impugned orders, therefore, no case for invocation of constitutional jurisdiction was made out---Constitutional petition was dismissed, in circumstances.

Arif Fareed v. Bibi Sara and others 2023 SCMR 413 and

M. Hamad Hassan v. Mst. Isma Bukhari and others 2023 SCMR 1434 ref.

Naushad Ali Tagar for Petitioner.

Abdul Hamid Bhurgi, Additional Advocate General along with for official Respondents.

Abdul Waris Bhutto, Assistant Advocate-General.

2024 C L C 1785

[Sindh]

Before Muhammad Shafi Siddiqui and Jawad Akbar Sarwana, JJ

Haji MOOSA KHAN through Legal Heirs ----Petitioner

Versus

Mst. NAZIA BIBI and others----Respondents

C.P. D-3179 of 2019, decided on 3rd November, 2023.

Constitution of Pakistan---

----Art.199---Constitutional Jurisdiction of High Court---Scope---Alternate statutory/legal remedies having been availed/exhausted by the petitioners---Effect---Reappraisal of evidence and factual controversy recorded and resolved by revisional court in writ jurisdiction---Scope---Last court to appraise and reappraise a factual controversy with the support of evidence recorded was the Revisional/Appellate Court---High Court was not the Appellate Court, which could exercise such jurisdiction---Revisional Court had since exercised the jurisdiction vested in it that included misreading and non-reading of evidence; it cannot be yet again re-appreciated by invoking the jurisdiction of High Court under Art.199 of Constitution for redetermination of facts---High Court under Art.199 of the Constitution cannot assume the jurisdiction which is otherwise not vested in it i.e. reappraisal of evidence recorded by the Revisional Court, which is last fact finding Court---High Court can only intervene where the jurisdiction has been exercised, which is not vested, and/or vested but not exercised---Constitution petition was dismissed accordingly.

Dilawar Hussain Khattana and S. Tanveer Hussain for Petitioners.

Muhammad Nazir Tanoli for Respondents Nos.1 to 5.

2024 C L C 1824

[Sindh]

Before Yousuf Ali Sayeed, J

AMEET KUMAR ESSARANI---Plaintiff

Versus

PAKISTAN CIVIL AVIATION AUTHORITY through Director General and 3 others---Defendants

Suit No.2118 of 2023, decided on 19th April, 2024.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Auction---Bidder, rights of---Plaintiff (proprietor of a concern) filed suit against Procuring Agency (Civil Aviation Authority) for the award of a contract for the collection of car parking fees at an airport---Plaintiff filed interlocutory applications eliciting interim relief seeking suspension of the Tender Notice inviting bids as well as further auction proceedings so as to restrain the award of any contract to a party other than the plaintiff---Plea of the applicant / plaintiff was that as the plaintiff had met the relevant criteria and also had offered the highest bid, a legal right had thus been created in favour of the plaintiff for the award of a contract---Argument of the respondent (defendant / procuring agency ) was that by mere participation in bidding process a vested right to the applicant / plaintiff does not accrue---Held, that a bid is only an offer and the mere submission of a bid, even if it is the highest or the lowest, as the case may be, does not create any vested right in favour of a bidder and that no rights accrue in favour of a bidder till such time the bid is accepted and a contract was concluded---By virtue of being a participant in the tender process, no vested rights accrued in favour of the petitioner entitling it to the award of the procurement contract---Plea of the applicant / plaintiff was misconceived---Interlocutory applications, filed by the plaintiff, were dismissed, in circumstances.

Guinault SA PA Orleans Sologne v. Federation of Pakistan and others 2021 YLR 692; Muhammad Khalil v. Faisal M.B. Corporation and others 2019 SCMR 321; Babu Parvez Qureshi v. Settlement Commissioner Multan and Bahawalpur Divisions and others 1997 SCMR 337; Munshi Muhammad and another v. Faizanul Haq and another 1971 SCMR 533 and Mandokhail Brothers Commercial Trading and Government Contractor v. Chairman Civil Aviation and others 2017 CLC 221 ref.

Khalid Javed for Plaintiff.

Khalid Mehmood Siddiqui for Defendant No.1.

2024 C L C 1846

[Sindh (Hyderabad Bench)]

Before Yousuf Ali Sayeed, J

OIL AND GAS DEVELOPMENT COMPANY LTD.---Applicant

Versus

Messrs SHAH LATIF CNG---Respondent

Revision Application No.335 of 2023, decided on 14th May, 2024.

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---Contractual liability---Plaintiff sought stay of auction proceedings to preserve continuation of its business activities---Trial Court declined to issue interim injunction but Lower Appellate Court allowed the same---Validity---On a consideration of respective cases of parties and documents laid before it, Trial Court refused injunction; the Lower Appellate Court should not have interfered with the exercise of discretion unless such exercise was found to be palpably incorrect or untenable---General assertion in plaint was regarding a substantial investment made by respondent / plaintiff for the purposes of Agreement---This would be imperiled if the arrangements thereby put in place were to be discontinued---No details were set out as to the nature of such investment in the form of plant and machinery beyond a generalized reference to installation of compressors, generators, pipe lines and civil works, etc. and the same did not entirely represent a sunk cost---This aspect was within the contemplation of respondent / plaintiff when entering into initial Agreement and should have been borne in mind at the time of executing Addendum---Order passed by Lower Appellate Court reflected a flawed approach on its part---Lower Appellate Court failed to properly consider and apply the principles laid down by Superior Courts relating to temporary injunctions, hence committed material irregularity in exercise of jurisdiction---High Court set aside interim injunction issued by Lower Appellate Court---Revision was allowed, in circumstances.

Roomi Enterprises (Pvt.) Ltd. v. Stafford Miller Ltd. and others 2005 CLD 1805; Hadmor Productions Ltd. v. Hamilton [1983] 1 A.C. 191 and Garden Cottage Ltd. v. Milk Marketing Board (1984) 1 A.C. 130 ref.

Muhammad Hashim Leghari for Applicant.

Zubair Ahmed and Ayatullah Khowaja for Respondent No.1.

Ali Akbar Junejo for Intervener (in M.A. No.899 of 2024).

Muhammad Arshad S. Pathan for Intervener (in M.A. No.1654 of 2024).

2024 C L C 1862

[Sindh]

Before Muhammad Shafi Siddiqui and Ms. Sana Akram Minhas, JJ

TRUSTEES OF PORT OF KARACHI and others----Petitioners

Versus

MUHAMMAD ZAHIR SHAH and others----Respondents

High Court Appeals Nos.82-87 of 2007, 215-222, 243-250 of 2010, decided on 30th July, 2024.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Karachi Port Trust Act (VI of 1886),Ss. 3 & 25---Constitution of Pakistan, Art. 172---Law Reforms Ordinance (XII of 1972), S. 3---Intra Court Appeal---Ownerless land---Determination---Possession of Karachi Port Trust---Effect---Dispute was with regard to ownership of suit land claimed by respondents / plaintiffs---Validity---Vesting of lands in Board of Trustees of appellant / Karachi Port Trust, did not mean that the Board, either for the purposes mentioned in the statute or otherwise, was to be considered as "owner" of subject lands---There were two notifications, the prior one was dated 02-05-1940 and the subsequent was dated 05-10-1991---Notification of year 1940 was issued by the Government of India under S. 3 of Karachi Port Trust Act, 1886, whereas the subsequent one of year 1991 superseded the earlier one---None of the two notifications bestowed upon Karachi Port Trust any proprietary right nor empowered Karachi Port Trust to consider themselves as undisputed owner of subject lands---Karachi Port Trust was a statutory and regulatory body governed by statute and nothing else---Provisions of Karachi Port Trust Act, 1886 enabled it to deal with its affairs while remaining within the frame of the statute---Argument that Federal Government was empowered to take and demarcate port area was of no consequence as the rights of Karachi Port Trust were to be navigated within the scope of Karachi Port Trust Act, 1886---Division Bench of High Court declined to interfere in judgment and decree passed by Judge in Chambers of High Court, as Trial Court---Intra Court Appeal was dismissed in circumstances.

Naimatullah Khan Advocate v. Federation of Pakistan 2020 SCMR 513; Metatex's case PLD 2010 Kar. 414; The Member (L.U) Board of Revenue Sindh v. KPT Officer Cooperative Housing Society Ltd. and others (High Court Appeal No.236 of 2009); State of Gujrat v. The Board of Trustees of Port of Kandla (1979) 1 GLR 732; KPT Officers Cooperative Housing Society Limited Karachi v. Government of Sindh 2019 YLR 1671 and Modern Terminal Operators v. City District Government 2004 YLR 1161 ref.

Mushtaq A. Memon along with Shahid Ali and Ishtiaq Memon for Appellants (in H.C.A. No.215 of 2010).

Ms. Nasima Mangrio for Appellants (in H.C.As. Nos.82 to 87 of 2007).

Muhammad Sarfaraz Sulehri for Appellants (in H.C.As. Nos.216 to 222 of 2010).

Karim Abbasi along with Muhammad Zeeshan Naeem for Appellants (in H.C.As. Nos.246 and 247 of 2010).

Farhatullah Yasin Kalwar along with Amjad Ali and Safeer Ali for Appellants (in H.C.As. Nos.248 to 250 of 2010).

Ms. Wajiha Mehdi, Deputy Attorney General for Federation of Pakistan.

Abdul Jaleel Zubedi, Assistant Advocate General for Province of Sindh.

Abid S. Zuberi along with Hidayatullah Mangrio, Muhammad Wasay Noor, Tarawish Javaid Chhatari and Ms. Hira Ahmed for Respondent No.1 (in H.C.As. 82, 84 and 85 of 2007 and H.C.A. No.215 of 2010).

2024 C L C 1896

[Sindh]

Before Agha Faisal, J

Malik PANJWANI and others---Plaintiffs

Versus

FAROOQ NASIR and others---Defendants

Suit Nos.1921, 2031 of 2023 and 211, 355 of 2024, decided on 17th April, 2024.

Specific Relief Act (I of 1877)---

----Ss.12, 42 & 54---Civil Procedure Code (V of 1908), O.XL, R.1---Suit for specific performance of agreement to sell, declaration, injunction and recovery of damages---Receiver, appointment of---Principle---Multiple claims---Creating third party claims---Application for appointment of receiver was filed to secure the status of suit property---Validity---Registered title to suit property was admitted and despite such factum the party remained dispossessed therefrom---No rights / title had crystallized in favor of another party who not only gained possession of suit property but prima facie had created unjustifiable third party interests therein---There were three conflicting claims to suit property and it was imperative for the lis to be preserved pending adjudication of respective claims---Purported tenants had notice of proceedings who opted to refrain from presenting their case---There was no arguable sanction for possession of suit property by the party creating interest of tenants---Prima facie defendants' collution to deprive plaintiff of his property was borne from record and the conduct of relevant parties---Suit property was in imminent danger of possibly irreparable dissipation through creation of further third party interests---High Court appointed the receiver of suit property with the direction that same shall remain in his exclusive possession and custody---High Court directed the receiver to cause suit property to be vacated and in such regard could obtain assistance of any law enforcement agency / regulatory body deemed expedient---High Court further directed that vacated suit property would be sealed pending further orders of High Court---Application was allowed accordingly.

Saeed ur Rehman v. Ehsanullah Khan Afridi PLD 2007 Kar. 527; Asadullah Mirbahar v. Ayesha Muzahir PLD 2011 Kar. 151; Zamir Ahmed Khan v. Muhammad Hassan Chiniyoon 2020 CLC 1189 and PLD 2023 SC 506 rel.

Muhammad Arif Shaikh for Plaintiff (in Suit No.211 of 2024).

Jaffar Raza for Plaintiff (in Suits Nos.1921 and 2031 of 2023).

Ehtesham Zia for Plaintiff (in Suit No.355 of 2024).

Jaffar Raza for Defendants (in Suit No.211 of 2024).

Muhammad Arif Shaikh for Defendants (in Suit No.1921 of 2023).

Adil Khan Abbasi and Ehtesham Zia for Defendants (in Suit No.211 of 2024).

2024 C L C 1917

[Sindh]

Before Salahuddin Panhwar and Khadim Hussain Soomro, JJ

MUSHTAQ AHMED through duly Constituted Attorney---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Religious Affairs and Interfaith Harmony, Islamabad and 2 others---Respondents

C.P. No.D-1937 of 2024, decided on 3rd May, 2024.

(a) Constitution of Pakistan---

----Art.199---Qanun-e-Shahadat (10 of 1984), Art.114---Civil Procedure Code (V of 1908), O.II R.2---Constitutional jurisdiction of High Court---Scope---Alternate remedy, availing of---Principles of exhaustion and election of remedy---Scope---Principles of estoppel and res judicata, applicability of---Issuance of notice on account of default in payment of rent of shops purchased by petitioner---Upon filing a suit, injunctive order was passed by Civil Court---Contention of the petitioner was that respondents were trying to dispossess the petitioner from the shops, therefore, he sought implementation of injunctive order of Civil Court through constitutional petition---Validity---If petitioner was dispossessed from the subject property, then he might have filed a contempt petition before the Court that had passed the restraining order, or a suit under S.9 of the Specific Relief Act, 1877, instead of filing a constitutional petition under Art.199 of the Constitution---Principle of exhaustion is not merely a procedural formality but a mandatory rule of jurisdictive prudence, which falls under Art.199 of the Constitution---Once an election is made and a judicial path is chosen a litigant is precluded from initiating subsequent proceedings to seek relief or remedy that contradicts the claims or remedies that could have been pursued through the initial action---Such principle is known in jurisprudence as the 'Doctrine of Election', which is extrapolated from the established legal tenets of waiver or the voluntary relinquishment of a known right, claim, privilege or relief, as encapsulated in O.II, R.2, C.P.C., the doctrine of estoppel as enshrined in Art.114 of the Qanun-e Shahadat, 1984, and the doctrine of res judicata as enunciated in S.11, C.P.C. and its accompanying explanations---Constitutional petition was dismissed accordingly.

Government of Punjab through the Secretary, Schools Education Department, Lahore and others v. Abdur Rehman and others 2022 SCMR 25 and Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others PLD 2018 SC 828 rel.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Principle of exhaustion of remedies---Scope---Principle of exhaustion of remedies imposes a restriction on a litigant from seeking a remedy in the constitutional jurisdiction---It also dictates that a litigant must not pursue a remedy in a different court or jurisdiction until the remedy prescribed by law has been fully exhausted.

(c) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Adequate remedy---Scope---Exclusion of protracted inquiry---Exceptional jurisdiction conferred by Art.199 of the Constitution is fundamentally designed to provide a specific remedy, when the illegality and impropriety of an action by an executive or other governmental authority can be demonstrated without protracted inquiry---Term 'adequate remedy' denotes a remedy that is effective, attainable, accessible, advantageous and expeditious, which the petitioner had exhausted by filing a suit.

(d) Constitution of Pakistan---

----Arts.175(2) & 199---Constitutional jurisdiction of High Court---Scope---Proceedings under Art.199 of the Constitution are oriented towards enforcing a right rather than establishing a legal right, therefore, the right asserted by petitioner must not only be clear and complete but straightforward, and there must be an actual infringement of that right.

Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 rel.

Shahzaib Akhtar for Petitioner.

2024 C L C 1957

[Sindh (Sukkur Bench)]

Before Arbab Ali Hakro, J

BIBI IMDAD KHATOON and others---Applicants

Versus

Syed BAHAR ALI SHAH and others---Respondents

Civil Revision Application No.S-130 of 2015, decided on 19th April, 2024.

Arbitration Act (X of 1940)---

----Ss. 17 & 26-A---Specific Relief Act (I of 1877), Ss.8, 42 & 54---Civil Procedure Code (V of 1908), S.115---Suit for declaration, injunction and recovery of mesne profits and possession---Award made rule of Court--- Non-providing of reasons---Petitioners / plaintiffs were aggrieved of judgment and decree passed by Lower Appellate Court making award as rule of the Court--- Validity--- Arbitrator was obligated to provide sufficient detail in the reasoning for the award to enable Court to consider any question of law arising out of the award and failure to do so necessitated setting aside of the award---Lower Appellate Court confirmed the award as a rule of the Court, pursuant to Ss. 17 & 26-A of Arbitration Act, 1940--- Award was short of detailed reasoning required by S. 26-A of Arbitration Act, 1940--- In addressing objections submitted by petitioners / plaintiffs, Lower Appellate Court summarily dismissed them without a substantive judicial evaluation---Lower Appellate Court neglected its obligation under S.17 of Arbitration Act, 1940 to judiciously scrutinize the award, which was a departure from expected standard of judicial scrutiny---Lower Appellate Court transgressed legal boundaries by confirming Arbitrator's award as a rule of the Court---When judgment and decree was marred by legal defects specified in S. 115, C.P.C. it was imperative duty of High Court to rectify such deficiencies---High Court in exercise of revisional jurisdiction declared award rendered by Arbitrator as illegal and invalid and judgment and decree issued by Lower Appellate Court was set aside--- High Court remanded the matter to Lower Appellate Court to decide appeal preferred by respondents / defendants afresh--- Revision was allowed accordingly.

2023 SCMR 344; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Muhammad Ahmad Chatta v. Iftikhar Ahmad Cheema and others 2016 SCMR 763; 2020 SCMR 601; 2008 SCMR 521; Umar Din through L.Rs. v. Mst. Shakeela Bibi and others 2009 SCMR 29; 2023 SCMR 1901; 2022 SCMR 1810 and A. Qutubuddin Khan v. CHEC Mill Wala Dredging Co. (Pvt.) Ltd. 2014 SCMR 1268 ref.

Kalandar Bux Phulpoto for Applicants.

Nemo for Respondents.

Ghulam Abbas Kubar Assistant Advocate General for the State.

2024 C L C 1976

[Sindh]

Before Yousuf Ali Sayeed, J

Mrs. RIFFAT SIRAJ MUNIR---Plaintiff

Versus

Messrs MOOMAL PRODUCTION (PVT.) LIMITED---Defendant

Suit No.788 of 2012, decided on 19th April, 2024.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Limitation Act (IX of 1908), S.23---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration, injunction and recovery of damages---Infringement of copyright---Continuing breach---Recurring cause of action---Plaintiff claimed to be author of novels in question and sought recovery of damages as well cessation of contract with defendant to use novel in question---Defendant sought rejection of plaint on the plea that suit was barred by limitation---Validity---Question as to whether suit encapsulated fresh claim and had been brought within the applicable period of limitation, merited consideration---Claim was essentially one for infringement of copyright and damages flowing therefrom, for which period of limitation was three years from the date of such infringement---Plaint alluded to acts of alleged infringement of at least one novel, up to 22-07-2010---Acts of infringement constituted a recurring cause of action, providing a fresh period of limitation for filing an action---Whether or not the suit as a whole or certain claims advanced thereunder were barred by limitation remained a mixed question of law and fact, for the determination of which a specific issue was to be framed---Suit might eventually come to be dismissed on such score but it could not be said that the same had to be terminated at an early stage via rejection of plaint---Application was dismissed accordingly.

Mst. Hawabai and 6 others v. Abdus Shakoor and 8 others PLD 1970 Kar. 367; Mst. Hawabai and 6 others v. Abdus Shakoor and 8 others PLD 1981 Kar. 277; Abdus Shakoor and others v. Mst. Hawabai and others 1982 SCMR 867 and Messrs Bengal Waterproof Ltd. v. Messrs Bombay Waterproof Manufacturing Company and another AIR 1997 SC 1398 rel.

Muhammad Akbar for Plaintiff.

Waqar Ahmed and Sameera Iqbal for Defendant.

2024 C L C 2020

[Sindh]

Before Yousuf Ali Sayeed, J

Messrs POPULAR INTERNATIONAL (PVT.) LTD., through CEO---Plaintiff

Versus

Messrs ETISALAT GROUP through Chief Executive Officer---Defendant

Civil Suit No.110 of 2022, decided on 23rd April, 2024.

Civil Procedure Code (V of 1908)---

----O. VII, R. 10---Suit filed in Pakistan---Territorial jurisdiction---Scope---Return of plaint---Plaintiff (private limited company incorporated in Pakistan) filed suit for damages against the defendant which was a telecommunications company based in the United Arab Emirates---Claim of the plaintiff's Chief Executive Officer was that he was arrested when he landed at Dubai Airport due to a criminal case registered for fraudulent misuse of a SIM card issued by the defendant---Defendant filed an application under O. VII, R. 10 of the Civil Procedure Code, 1908---Validity---Suit was misconceived, for having been brought in the name of the wrong plaintiff as the cause of action, if any, accrued in favour of the Chief Executive Officer in his individual capacity rather than the company, and that too beyond the territorial jurisdiction of the Court---Application under O.VII, R. 10 of the Civil Procedure Code, 1908, filed by the defendant, was allowed, in circumstances, and the original plaint was returned.

Aamir Raza for Plaintiff.

Mansoor Hassan Khan for Defendant.

2024 C L C 2044

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Kalhoro and Arbab Ali Hakro, JJ

NAZEER AHMED and others---Petitioners

Versus

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

C.Ps. Nos.D-2406, D-2507 of 2014 and D-1766 of 2018, decided on 24th April, 2024.

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

----Ss. 42 & 161---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Entries in Record of Rights---Alternate and efficacious remedy, non-availing of---Petitioners assailed entries made by revenue authorities in Record of Rights---Validity---Provision of S.161 of Sindh Land Revenue Act, 1967 provides a clear path for appeals , ensuring that aggrieved parties can seek redressal accordingly---Certain restrictions are also placed to prevent misuse of appeal process and to ensure finality of decisions---Instead of questioning order in question within the hierarchy of Sindh Land Revenue Act, 1967, the petitioners filed Constitutional petition seeking a declaration against orders in question---Orders in question might not have been in accordance with law or incorrect and void but were not passed without jurisdiction---High Court declined to interfere in the orders passed by revenue authorities as the petitioners were obliged to first undertake available recourse delineated within the structured echelons of Revenue Forums as stipulated by Sindh Land Revenue Act, 1967---Constitutional petition was dismissed in circumstances.

Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 SC 246; Mumtaz Ahmed and another v. The Assistant Commissioner and another PLD 1990 SC 1195 and Jamil Qadir and another v. Government of Balochistan, Local Government, Rural Development and Agrovilles Department, Quetta through Secretary and others 2023 SCMR 1919 rel.

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

----Ss. 42 & 53---Mutation entries, assailing of---Procedure---Mutation proceedings are summary in character and do not provide ample opportunity to litigants claiming title in land---Revenue Officer in summary proceedings has a limited scope in the matter, as it requires elaborate inquiry and evidence---Such proceedings can only be adjudicated by Civil Courts as provided under S. 53 of Sindh Land Revenue Act, 1967.

Muhammad Faraz and others v. Abdul Rashid Khan and others 1984 SCMR 724 rel.

Sarfraz A. Akhund for Petitioners (in C.P. No.D-2406 of 2014).

Ahmed Ali Shahani, Assistant Advocate General for Respondents Nos.1 and 2 (in C.P. No.D-2406 of 2014).

Rafiq Ahmed Baloch for Petitioners (in C.P. No.D-2507 of 2014).

Ahmed Ali Shahani, Assistant Advocate General for Respondents Nos.1 and 2 (in C.P. No.D-2507 of 2014).

Tariq G. Hanif Mangi for Petitioner (in C.P. No.D-1766 of 2018).

Ahmed Ali Shahani, Assistant Advocate General for Respondents Nos.1 to 3 (in C.P. No.D-1766 of 2018).

2024 C L C 2077

[Sindh]

Before Muhammad Junaid Ghaffar and Jawad Akbar Sarwana, JJ

Sheikh ALI BAAKZA---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of National Food Security and Research Department of Plant Protection, Government of Pakistan

and 5 others---Respondents

Constitutional Petition No.D-2091 of 2024, decided on 14th May, 2024.

Constitution of Pakistan---

----Art. 199---Memorandum F.No.1-1/2020/DFSC-11/Senate dated 01-05-2024---Constitutional petition---Import of wheat---Cut off date for off-loading imported wheat---Applicability---Petitioner / importer was aggrieved of notification issued by authorities imposing restriction on off-loading imported wheat after cut-off date---Plea raised by petitioner / importer was that wheat had been imported prior to cutoff date and was in the process of off-loading---Validity---Vessel had already arrived before cutoff date and had been duly inspected and fumigated by Plant Protection Department---Off-loading of cargo was merely a procedural event which naturally had to take time and could not be stopped in between in the manner as was attempted by authorities through impugned Memorandum F.No.1-1/2020/DFSC-11/Senate dated 01-05-2024---When it was decided that "imports" would not be allowed after 31-03-2024, then there was no occasion to make an attempt to substitute or replace it with "offloading" or "discharge" of cargo---Use of the word "imports" in earlier decision was clear and petitioner / importer's vessel had arrived and would mean that it had been imported---High Court set aside Office Memorandum F.No.1-1/2020/DFSC-11/Senate dated 01-5-2024 and other communications and directions issued to authorities to the extent of petitioner / importer---High Court directed the authorities that goods of petitioner / importer should be allowed to be discharged / offloaded and cleared from the port---Constitutional petition was allowed, in circumstances.

Hussain Ali Almani and Akbar Sohail for Petitioner.

Sardar Zafar Hussain for Respondent along with Hubban Appraising Officer (East).

Kashif Nazeer, Assistant Attorney General along with Nasir Ahmed, Deputy Director (Quarantine), Department of Plant Protection for the Respondent.

Asim Iqbal along with Farmanullah and Azhar Ali Channa for Respondent No.4.

Maqsoom-ul-Hakim for Respondent No.5.

2024 C L C 2108

[Sindh (Hyderabad Bench)]

Before Muhammad Shafi Siddiqui and Arshad Hussain Khan JJ

ABDUL SATTAR through Legal Heirs and others----Petitioners

Versus

SECRETARY, MINISTRY OF RELIGIOUS AFFAIRS AND INTERFAITH HARMONY, ISLAMABAD and others----Respondents

Constitution Petition No.D-109 of 2022, decided on 11th September, 2023.

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss.8 & 10---Evacuee trust property---Declaration of property as evacuee trust property only on the basis of reference filed by Evacuee Trust Property Board and reply thereto by the petitioner without recording evidence of both sides---Legality---Decision of the Chairman Evacuee Trust Property Board concluding that the property in question was an evacuee trust property was solely based on a reference and its reply---Entries in the revenue record, allegedly based on a will, were considered a primary reason for the impugned decision, however, the absence of the attached will to establish the property's religious, educational, or charitable nature weakened the claim---Petitioner's claim that the property was acquired through a public auction was deemed significant, as S.10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, provided prima facie protection for bona fide transfers made by authority against verified claims---Both parties were entitled to a fair opportunity to establish their respective stances regarding the property's status, whether it was an evacuee trust property or an evacuee property---Impugned orders were set aside, and the case was remanded to the Chairman Evacuee Trust Property Board for further proceedings to decide the issues involved---Constitutional petition was disposed of, in circumstances.

Muhammad Arshad S. Pathan and Safdar Hussain Laghari for Petitioners.

Atta Hussain Gaddi Pathan for Respondents Nos.2 to 4.

Shamas Din Rajper, Deputy Attorney General for Pakistan.

2024 C L C 2134

[Sindh]

Before Muhammad Shafi Siddiqui and Sana Akram Minhas, JJ

NASIR HUSSAIN through Attorney---Appellant

Versus

Mst. SHAHNAWAZ BEGUM and 2 others---Respondents

High Court Appeal No.197 of 2023, decided on 13th May, 2024.

Specific Relief Act (I of 1877)---

----Ss. 12 & 27---Transfer of Property Act (IV of 1882), S.41 ---Civil Procedure Code (V of 1908), O.VII, R. 11---Suit for specific performance of agreement to sell---Rejection of plaint---Principle---Subsequent buyer, rights of---Principle of part performance---Bona fide purchaser for valuable consideration---Appellant / plaintiff was aggrieved of rejection of his plaint for absence of cause of action---Validity---In rejecting plaint while considering application under O.VII, R.11, C.P.C., all that matters is the contents of plaint---New facts disclosed in the plaint constituted novation of earlier agreement and had given fresh cause---Appellant / plaintiff had to establish such novation as burden was on him and that called for a trial and not summary rejection of plaint---Vendor of appellant / plaintiff had entered into a transaction with subsequent buyer, who was a proper and necessary party---Subsequent purchaser could plead his case before Trial Court, if he was a bona fide purchaser in terms of S. 27 of Specific Relief Act, 1877 and S. 41 of Transfer of Property Act, 1882, and could participate in trial of suit filed by appellant / plaintiff---Intra Court Appeal was allowed accordingly.

Abdul Hakim and others v. Saadullah Khan and others PLD 1970 SC 63 distinguished.

Raj Ali Wahid Kunwar for Appellant.

Amir Saleem for Respondent No.1.

2024 C L C 1

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf and Jawad Hassan, JJ

NATIONAL COMMAND AUTHORITY through D.G. SPD, Rawalpindi and others----Appellants

Versus

ZAHOOR AZAM and others----Respondents

R.F.A. No.83 of 2014, decided on 14th June, 2023.

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

----O. VIII, R. 5---Written statement---Evasive denial---Scope---Evasive denial in written statement is nothing but an admission of fact on the part of defendant.

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

----Ss. 23 & 28---Constitution of Pakistan, Art.25---Valuation of land---Potential value and market value---Principle---Price Assessment Committee---Value determination---Potential value of land a dominant factor---Appellant/Authority was aggrieved of enhancement of compensation by Referee Court---Validity---Market value is only one of such factors to be considered for the purpose of award of compensation to the land owners---Location, neighborhood, potentiality or other benefits, which may ensue from the land in future cannot be ignored---Most dominant and guiding factor will be that the compensation should be determined at the price, which a willing buyer will pay to a seller as per his satisfaction---Compensation cannot be awarded to the "land owners" as a bounty of State---Fair compensation for acquired land was that which a willing vendor would accept on account of sale of his property---It was bounden duty of Land Acquisition Collector to take into consideration all relevant factors, while determining amount of compensation instead of relying upon compensation assessed by Price Assessment Committee or the Board of Revenue---Land owners were entitled for compensation at the rate of Rs.20,00,000/- (twenty lacs) per Kanal but Referee Court held them entitled to compensation at the rate of Rs.60,00,000/- per Kanal without properly evaluating the evidence---Land in question was situated in the proximity of other acquired land and could not be bifurcated---Law did not allow any discrimination amongst the equal---There were though no distinctive features in the case of respondent / land owners but another land owner was treated in a discriminatory manner, which had offended mandate of Art.25 of the Constitution---Appeal was disposed of accordingly.

Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604; Askari Cement Limited (Formerly Associated Cement Limited) through Chief Executive v. Land Acquisition Collector (Industries) Punjab and others 2013 SCMR 1644; Manzoor Hussain (deceased) through L.Rs. v. Misri Khan PLD 2020 SC 749; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Gulzar Hussain v. Abdur Rehman and another 1985 SCMR 301; Pervaiz Akhtar and others v. Land Acquisition Collector and others PLD 2022 Lah. 730; Federal Government of Pakistan through Ministry of Defence Rawalpindi and others v. Mst. Zakia Begum and others PLD 2023 SC 277; Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715; Air Weapon Complex through DG v. Muhammad Aslam and others 2018 SCMR 779; Province of Punjab through Land Acquisition Collector and another v. Begum Aziza 2014 SCMR 75 and Land Acquisition Collector, G.S.C., N.T.D.C., (WAPDA), Lahore and another v. Mst. Surraya Behmood Jan 2015 SCMR 28 rel.

(c) Limitation---

----Time barred appeal---Pendency of appeals---Principle---If more than one appeals arise out of a common judgment and if one or more of those appeals are even barred by time, same cannot be dismissed on account of limitation.

Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397 and Principal Public School Sangota, Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Sarbiland and others 2022 SCMR 189 rel.

Usman Jillani and Waseem Doga for Appellants (in R.F.As. Nos. 83, 84 of 2014, Respondent No.3 in R.F.A. No.53 of 2014 and Respondent No.2. in R.F.A. No.155 of 2016).

Tanvir Iqbal Khan for Appellants (in R.F.A. No.53 of 2014).

Muhammad Asif Ch. for Appellants (in R.F.A. No.155 of 2016).

Ch. Imran Hassan Ali for Respondents Nos.1 to 5 and 8

(in R.F.A. No.83 of 2014).

Muhammad Siddique Awan, Additional Attorney General for Pakistan for Respondents No.6 (in R.F.A. No.83, Respondent No.3 in R.F.A. No.84 and Respondent No.2 in R.F.A. No.53 of 2014).

Malik Amjad Ali, Additional Advocate General for Punjab for Respondent No.7 (in R.F.A. No.83, Respondent No.4 in R.F.A. No.84 and Respondent No.1 in R.F.As. Nos.53 of 2014 and 155 of 2016).

Tanvir Iqbal Khan for Respondents Nos.1 and 2 (in R.F.A. No.84 of 2014).

2024 C L C 29

[Lahore (Bahawalpur Bench)]

Before Sultan Tanvir Ahmad, J

ATTA ELAHI----Petitioner

Versus

ALLAH BACHAYA and others----Respondents

Civil Revision No.544-D of 2020, heard on 1st April, 2022.

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3---Specific Relief Act (I of 1877), S. 42---Party failing to produce evidence after availing numerous opportunities---Suit of the petitioner was dismissed concurrently by the Trial Court as well as by the Appellate Court under O. XVII, R. 3 of C.P.C---Validity---Order sheet reflected that the issues were framed on 15.04.2017 and the provisions of O. XVII, R. 3, C.P.C. were invoked on 24.06.2019---In that period, spreading over two years, the case was fixed for numerous dates of hearing, out of which about seventeen adjournments were sought by the petitioner's side for the purposes of examination of their witnesses---Hardly, any adjournment was sought by the respondent side---On several hearings not just warnings were given but thrice the cost was imposed on the petitioner for failure to examine the witnesses---To delay the matter the petitioner and her lawyer had adopted a strategy whereby on some dates of hearing the counsel absented himself and whenever he was available, the witnesses were not present---Said fact left the Trial Court with barely any alternative but to proceed and decide the case as per law---Trial Court before invoking the provisions of O.XVII, R.3 of the Code and passing the judgment had already taken excessive precautions and granted more than essential opportunities to the petitioner---Petitioner failed to make out any case of want of exercise of jurisdiction or excess of jurisdiction or illegality requiring interference---Civil revision petition was dismissed, in circumstances.

Syed Tasleem Ahmad Shah v. Sajwala Khan and others 1985 SCMR 585; Muhammad Aslam v. Nazir Ahmad 2008 SCMR 942; Rana Tanveer Khan v. Naseer-ud-Din and others 2015 SCMR 1401; Mst. Sadia Jamshaid v. Province of Punjab and another 2020 CLC 1972 and Brojendra Nath Ganguly v. Promatha Bhusan Dev and 3 others AIR 1933 Calcutta 412 ref.

Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaquat Ali and others 2014 SCMR 637; Moon Enterprises CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi and another 2020 SCMR 300 Rana Tanveer Khan v. Naseer-ud-Din and others 2015 SCMR 1401 rel.

Sardar Muhammad Akram Balouch for Petitioner.

Ahmad Mansoor Chishti for Respondent.

2024 C L C 49

[Lahore]

Before Shahid Bilal Hassan, J

MUHAMMAD YAQOOB and others----Petitioners

Versus

RAHEELA YOUSAF and others----Respondents

Civil Revision No.18764 of 2022, heard on 11th October, 2022.

(a) High Court (Lahore) Rules and Orders---

----Vol. I ,Chap. XIII, Para. 6---Civil Procedure Code ( V of 1908), S. 24-A(2) & O. XVII, R. 3---Transfer of case under administrative order---Scope---Civil Court dismissed suit of the petitioners for want of evidence under O. XVII, R. 3, Code of Civil Procedure, 1908, which judgment and decree was maintained by the Appellate Court---Validity---Record (order-sheet)revealed that the case was transferred from one Court to the other Court under administrative order passed by the concerned District Judge, however, no notice 'parvee' was issued by the Transferee Court to the parties or their counsel, whereas on said date (of being transferred)the Advocates were observing strike, but the Trial Court adjourned the case by giving absolute last opportunity for evidence of the plaintiffs---Instead of passing an order of giving absolute last opportunity, the Trial Court ought to have issued notices 'parvee' to the parties, because the case was transferred under administrative order and not under S. 24-A(2) of the Code of Civil Procedure, 1908, where the parties would have been directed to appear before the Transferee Court, failing which penal order could be passed against such party; however, in the present case, none of the requirements enunciated in the Para 6 of the Chapter XIII, Volume I of the High Court (Lahore) Rules and Orders had been adhered to because nothing was on record to suggest that the Court from which the case was transferred ever informed the parties to appear before the Transferee Court on such and such date---Thus, a penal order could not be passed without putting the petitioners/plaintiffs on caution---Impugned order/judgment and decree, dismissing the suit for want of evidence, was harsh in nature---Cases should be decided on merits and technicalities should not be allowed to hinder the administration of justice---High Court set-aside the judgments and decrees passed by both the Courts below and case was remanded to the Trial Court with a direction to afford two clear opportunities to the petitioners for production of their complete set of evidence---Revision was allowed, in circumstances.

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

----Ss. 115, 24-A(2) & O. XVII, R. 3---High Court (Lahore) Rules and Orders, Vol.I, Chap. XIII, Para. 6---Revisional jurisdiction of the High Court---Civil suit was transferred to another Civil Court under an administrative order---Notice 'parvee' was not issued to the party/plaintiff by the Transferee Court---Civil Court dismissed suit of the petitioners for want of evidence under Order XVII, Rule 3, Code of Civil Procedure, 1908, which judgment and decree was maintained by the Appellate Court---Validity---High Court while exercising revisional jurisdiction under S. 115 of the Code of Civil Procedure, 1908, had ample power to correct the illegality and irregularity committed by the Courts below---High Court set-aside the judgments and decrees passed by both the Courts below and case was remanded to the Trial Court with a direction to afford two clear opportunities to the petitioners for production of their complete set of evidence---Revision filed by the plaintiffs was allowed, in circumstances.

Mian Zaffar Iqbal Kalanauri for Petitioner.

Basharat Ali Gill, Additional Advocate General Punjab for Respondents Nos.2 and 3.

Respondents Nos.1 to 4 ex parte.

2024 C L C 57

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

ATTA MUHAMMAD----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.25275 of 2022, heard on 11th May, 2023.

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

----Art. 132---Cross-examination of a witness, right of---Scope---Adverse party---Scope---Article 132(2) of the Qanun-e-Shahadat, 1984 describes that the examination of a witness by the adverse party shall be called his cross-examination---Expression "adverse party" is defined as "a party to an action whose interests are opposed to or opposite the interest of another party to the action"---In general, an adverse party is an opposing party in a lawsuit.

Black's Law Dictionary, Sixth Edition at page 53 ref.

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

----Arts. 132 & 150---Cross-examination of a witness, right of---Conflict of interest---Adverse party---Scope---Powers of the Court---Scope---Question "whether a defendant has right to cross-examine the co-defendant?" If so, in what circumstances---In the suit filed by plaintiff, the petitioner was one of the defendants and so was a lady, however, said lady endorsed the claim of plaintiff and in her evidence as one of the defence witnesses supported his (plaintiff's) version, unlike other defendants who supported the stance of petitioner---Petitioner's/defendant's request to cross-examine defendant-in-question was turned down by the Trial Court, which order was maintained by the Appellate Court---Validity---There is no specific provision in the Qanun-e-Shahadat Order, 1984, providing opportunity to a defendant to cross-examine a co-defendant; however having regard to the object and scope of cross-examination, it is settled principle of law that when a statement is made against the interest of a party to the proceedings, before that evidence could be acted upon, the party should have an ample opportunity to cross-examine the witness, who had given the evidence against him---It is only after such an opportunity is given and the witness is cross-examined that the evidence becomes admissible---Evidence becomes admissible after only it passes through the process of cross-examination by the adverse party regardless of the fact that the adverse party is a plaintiff or co-defendant, however, the condition precedent is the conflict of interest---There is another eventuality where a witness can be declared hostile when he resiles from earlier statement or material part thereof which may also be in the form of joint pleadings or examination-in-chief---Permission to cross-examine the witness would also be granted where the statement is contrary to the evidence which the witness was expected to give---Right to allow a party to cross-examine a witness of his own is discretionary with the Court and this discretion is to be exercised judiciously---Article 150 of the Qanun-e-Shahadat Order, 1984, confers on the Court a wide discretion in allowing a party calling a witness to put such questions to him as might be put in cross-examination by the adverse party, where the evidence given by the witness is unfavourable to the party calling him, or is contrary to the evidence which the witness was expected to give---In such a case, the Judge should permit such statements to be tested by cross-examination if the evidence is to be relied upon---Undeniably, a party is bound by the evidence it produces i.e. party producing a witness is bound by whatever statement the witness makes, however when an adverse statement is made by a witness the party producing the witness may get the witness declared hostile and seek permission from the Court to cross-examine him for getting rid of his adverse testimony---However, there is one exception that such permission should not be allowed by the Court if it reaches to the conclusion that the object of such cross-examination is to cover up the lacuna in the evidence---In the present case while submitting written statement, recording examination-in-chief as defence witness and even during cross-examination conducted by plaintiff, and the stance of defendant in question remained adverse to the interest of the other defendants and defence witness---From the facts of the (present) case, it cannot be inferred that the said witness came from petitioner's side because as per record, the counsel of petitioner had concluded his (petitioner's) oral and documentary evidence---However, after more than a month of said conclusion, statement of defendant-in-question as a defence witness was recorded ;and even in presence of written statement of defendant-in-question, there was no hope that said witness would depose in favour of petitioner---In these circumstances, it cannot be presumed that declaring said witness hostile and allowing to be cross-examined by a co-defendant would be an attempt to fill the lacuna---High Court set-aside impugned decisions passed by the Courts below declaring the same having been passed without lawful authority and Trial Court was directed to allow the petitioner to cross-examine defendant-in-question---Constitutional petition was allowed, in circumstances.

Muhammad Imran Khan and 4 others v. Haji Muhammad Akhtar and others PLD 2021 Sindh 510; Gulzar Mehmood Khan v. Abdul Waheed 2016 CLC 848 and Inayat Ullah v. Riaz Ahmad 1998 CLC 1148 ref.

Zafar Abbas Khan for Petitioner.

Asif Ali Kahloon for Respondent No.7.

2024 C L C 71

[Lahore (Multan Bench)]

Before Ch. Muhammad Masood Jahangir and Anwaar Hussain, JJ

CHIEF OFFICER, TEHSIL MUNICIPAL ADMINISTRATION, VEHARI----Applicant

Versus

ABDUL JABBAR and 88 others----Respondents

Review Application No.24 of 2019, heard on 5th October, 2021.

Civil Procedure Code (V of 1908)---

----Ss.47 & 114---Limitation Act (IX of 1908), Art. 162---Notification No.F. 5(2)/2003-AGP, dated 27-05-2003---Constitution of Pakistan, Art. 199---Constitutional petition---Review of judgment---Delay condoning of---Consenting statement---Law Officer, authority of---Applicant / Tehsil Municipal Administration was aggrieved of decision of constitutional petition on the basis of consenting statement made by Law Officer and sought review of that judgment---Plea raised by respondents was that review application was barred by 48 days---Validity---Law Officer was debarred from making a conceding statement before Court, unless written instructions were available with him but it was also mandatory to produce an officer not below the rank of Grade-17 to appear before the Court and verify and reiterate the same---Consent recorded, in the order under review, was detrimental to State exchequer---Such facts escaped notice of High Court and State exchequer was likely to suffer loss---High Court in its inherent jurisdiction could overlook and condone delay to rectify the wrong---Even if there was delay the same was condoned in view of the fact that the Court did not look into the lawful authority of the Legal Advisor to make a conceding statement---High Court set aside judgment passed on the basis of consenting statement of Law Officer---High Court directed the office to fix Constitutional petition for decision afresh on merits---Review application was allowed accordingly.

Faisalabad Development Authority v. Raja Jahangir Nasir and others 2004 SCMR 1247; Chairman/Secretary, Pakistan Railways, Ministry of Railways, Government of Pakistan, Islamabad and others v. Muhammad Sharif Javaid Warsi PLD 2003 SC 6; PLD 2003 Journal 95; Pakistan through Ministry of Finance Economic Affairs and another v. FECTO Belarus Tractors Limited PLD 2002 SC 208 and Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 SCMR 648 ref.

Abdul Salam Alvi for Applicant.

Mughees Aslam Malik for Respondent.

2024 C L C 85

[Lahore (Bahawalpur Bench)]

Before Jawad Hassan, J

Malik FAHIM ULLAH KHAN----Appellant

Versus

The DISTRICT RETURNING OFFICER and another----Respondents

Election Appeal No.03 of 2022/BWP, decided on 18th August, 2022.

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

----S.60(2)(d)---Nomination papers, rejection of---Non-submission of statement of net assets and tax return---Scope---Nomination papers of candidate were rejected by Returning Officer on the ground of non-enclosing statement of net assets and tax return---Plea of candidate was that non-annexing/enclosing tax return under the Elections Act, 2017 (Act) and Election Rules, 2017 (Rules) was not mandatory to be filed with nomination papers---Validity---Clause 2(d) of S. 60 of the Act only demonstrated about nomination papers to be filed through Form-B by mentioning statement of assets and liabilities of a candidate, his spouse and dependent children on the preceding thirtieth day of June which the appellant submitted before the Returning Officer and was not disputed by the Election Commission---However, the Returning Officer rejected appellant's nomination papers on the ground of non-filing of income tax return which was beyond the scope of said section---Words statement of assets and liabilities were mentioned in Form-B and S.60(2)(d) of the Act dealt it according to which the candidate/voter was only required to annex/enclose statement of assets and liabilities of his own or of her spouse and dependent children on the preceding day of Thirtieth June---When S.60(2)(d) of the Act and the Rules did not put any restriction of filing income tax return with the nomination papers, then the observation given by the Returning Officer in the impugned order was unwarranted and unjustified---By examining the original record of Election Commission, Form-B mentioned the list of assets wherein it was mentioned in Column No.2 that the appellant had attached with it the list of assets---List of assets filed by the appellant with Form-B mentioned the agricultural land and its value, house, his bank account, car and other items---Said fact had also been verified by the Law Officer of Election Commission that the list was properly filed by the appellant at the time of submission of his nomination papers---Thus, in view of the provisions of the Act, the income tax return did not fall within the definition of assets and liabilities as per Section 60(2)(d) of the Act and the Rules, hence, the observation given by the Returning Officer was unwarranted and uncalled for---Appeal was allowed by setting-aside the impugned order, in circumstances.

P.I.C.I.C. v. Fazal Corporation (Pvt.) Ltd. and another PLD 1993 Kar. 671; Messrs I.C.C. Textile Ltd. and others v. Federation of Pakistan and others 2001 SCMR 1208 and Marhaba Pakistan International and others v. Habib Bank Limited and another 2017 CLD 995 ref.

Messrs I.C.C. Textile Ltd. and others v. Federation of Pakistan and others 2001 SCMR 1208; Khawaja Muhamamd Asif v. Muhammad Usman Dar and others 2018 SCMR 2128 and Rai Hassan Nawaz v. Haji Muhammad Ayub and others PLD 2017 SC 70 rel.

(b) Administration of justice---

----When a law requires an act to be done in a particular manner and after fulfillment of certain requirements then it must be done in the very manner and after fulfillment of the very conditions as imposed by the law.

Muhammad Hanif Abbasi Imran v. Khan Niazi and others PLD 2018 SC 189; The Collector of Sales Tax, Gujranwala v. Messrs Super Asia Mohammad Din and Sons 2017 SCMR 1427 and Zia ur Rehman v. Syed Ahmed Hussain 2014 SCMR 1015 rel.

Muhammad Sarwar Ch., Advocate Supreme Court with Sultan Qadir Altaf and Makhdoom Kaleem Ullah Hashmi, Ch. Dilshad Ahmad for Appellants.

Naved Khalil Ch., Additional Advocate General.

Muhammad Arshad Ali, Assistant Attorney General for Pakistan.

Muhammad Jafar, Law Officer for Respondent/ECP with Irfan, District Election Commissioner.

2024 C L C 106

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

ALLAH DITTA----Petitioner

Versus

ALI SHAH (DECEASED) through Legal Heirs and others----Respondents

Civil Revision No.1095-D of 2010, decided on 8th December, 2022.

Islamic law---

----Inheritance, right of---Limitation---Revenue entries, rectification / correction of---Recurring cause of action---Scope---Plaintiff claimed his share being real son and sole legal heir of his late mother out of her(mother's) share from the estate of her brother (deceased) by specifically challenging relevant mutations and Shajrah-e-Nasb---Suit for declaration filed by the petitioner/plaintiff was concurrently dismissed---Validity---Record revealed that the petitioner/plaintiff , in his evidence, had duly exhibited a document(which was the succession certificate for receipt of due debts of another late brother of petitioner's mother) and the name of petitioner/plaintiff was reflecting in said document (certificate)---Jamabandi for the relevant year regarding land / estate left by petitioner's late mother also showed his name as owner of said land / estate (left by his late mother)---Petitioner could not have been deprived of his lawful share out of the share of his mother from the estate of her deceased brother ---No one could be allowed to approbate reprobate, or otherwise blow hot and cold in one breath---In said circumstances, claim of petitioner/plaintiff was required to be determined by taking into consideration all relevant facts and documents brought on record rather than deciding the lis on technical grounds---Suit of the petitioner being a matter of inheritance was within time---No illegal act or wrong entry could be legitimized with efflux of time, howsoever long it might be---Mother of the petitioner/plaintiff was real sister of her deceased brother and petitioner /plaintiff being real son and sole legal heir of said lady had claimed his share in said capacity in the inheritance left by his maternal uncle---No limitation would run in the matter of inheritance having recurring cause of action---Party having its right in the inherited property could claim the same at any time---Any transaction found to be result of misrepresentation could not be protected on the sole score of limitation as the same did not apply in the case of inheritance as barrier of limitation was no more a hurdle in the enforcement of rights of inheritance unless a party was shown to be guilty of gross negligence and abandonment of his / her rights---Entries in the revenue record had afforded fresh cause of action to the plaintiff and adverse entries if allowed to remain unchallenged did not extinguish right of a party against whom such entry had been made---Courts below had not kept in view the above material aspects of the matter while dismissing the suit of the petitioner/plaintiff---High Court set aside the impugned judgments and decrees and consequently, the suit filed by the petitioner/plaintiff stood decreed---Revision was allowed, in circumstances.

Mst. Janat Bibi through L.Rs. v. Aslam Khan and 13 others 2017 CLC 436; Nusrat Abbas v. Nighat Parveen and others 2018 CLC 1115 and Muhammad Amin through Legal Heirs and 2 others v. Mst. Ashraf Bibi through Legal Heirs and another 2018 YLR 2524 ref.

Mian Muhammad Akram and Rai Mueen-ud-Din for Petitioner.

Mian Mumtaz Ahmad Zahid for Respondent No.1.

Ex parte for Respondents Nos.1B and 3.

Nemo for remaining Respondents.

2024 C L C 114

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf and Ahmad Nadeem Arshad, JJ

REHAM DAD----Appellant

Versus

PROVINCE OF PUNJAB through Chief Secretary and others----Respondents

I.C.A. No.13 of 2021 in Writ Petition No.2907 of 2018, decided on 24th March, 2022.

(a) Legislation---

----Delegated legislation---Applicability---Rules are progeny of a statute, which are made by competent authority in exercise of its delegated legislative power under such Act and application thereof is empowered, confined and limited to the law under which those are framed.

Province of Punjab v. Rana Zaildar Khan 2013 SCMR 219 rel.

(b) Punjab Land Acquisition Rules, 1983---

----Rr.14 & 15---Punjab Board of Revenue Act (XI of 1957), Ss. 6 & 8---Acquired land, return of---Principle---Appellant sought return of land acquired from him, however his application was dismissed---Validity---Member (Colonies), Board of Revenue, Punjab, dismissed the application of appellant---Board of Revenue was established and constituted under Punjab Board of Revenue Act, 1957, and any order passed by its Member was a judicial order for all intents and was deemed to be order of the Board under S.6(2) of Punjab Board of Revenue Act, 1957---Remedy of review under S. 8 of Punjab Board of Revenue Act, 1957 was provided with regard to order passed by Member, Board of Revenue, Punjab---Division Bench of High Court declined to interfere in judgment passed by Judge in Chambers of High Court---Intra Court Appeal was dismissed, in circumstances.

Mst. Karim Bibi and others v. Hussain Baksh and another PLD 1984 SC 344 and Secretary to the Government of Punjab, Revenue Department and others v. Sajjad Ahmad and another 2012 SCMR 114 ref.

Syed Arif Raza Rizvi v. Messrs Pakistan International Airlines through Chairman/MD., Karachi PLD 2001 SC 182; Mst. Karim Bibi and others v. Hussain Baksh and another PLD 1984 SC 344 and Province of Punjab v. Rana Zaildar Khan 2013 SCMR 219 rel.

(c) Constitution of Pakistan---

----Art. 189---Decision of Supreme Court---Conflict in judgments---Principle---In case of conflict between judgments of Supreme Court on a point of law, the judgment of larger Bench prevails.

Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 284; National Bank of Pakistan through Chairman v. Nasim Arif Abbasi and others 2011 SCMR 446; Messrs Wak Limited Multan Road, Lahore v. Collector Central Excise and Sales Tax, Lahore (now Commissioner Inland Revenue, LTU Lahore) and others 2018 SCMR 1474 and Messrs Al-Mahmudia (Pvt.) Ltd. v. Pakistan through Secretary, Ministry of Housing and Works, Islamabad and others PLD 2007 SC 79 rel.

Ch. Afrasiab Khan for Appellant.

Aamir Azad Khan for Respondents.

2024 C L C 141

[Lahore]

Before Sultan Tanvir Ahmad, J

AYESHA HASHMAT KAMAL and 2 others----Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and 2 others----Respondents

Writ Petition No.27381 of 2023, decided on 1st November, 2023.

(a) Islamic law---

----Maintenance of minor children---Grandfather, responsibility of---Principle---Where grandfather is affluent, then obligation to maintain children lies on him but only when father is poor, infirm and incapable of earning by his own labour and mother is also poor.

Paragraph No.370 by D.F. Mulla's rel.

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

----S.5, Sched.---Maintenance of minor children---Grandfather, responsibility of---Suit filed by petitioner / mother of two minors was decreed by Trial Court against respondent / grandfather of minors fixing maintenance of Rs.40,000/- per child per month---Lower Appellate Court reduced the maintenance to Rs.30,000/- per child per month---Validity---Fixing quantum of maintenance always required striking a balance between needs of minors and earnings of a father as well as his other sources---Award in favour of minors should not be incompatible or inconsistent with financial conditions of father or the one who was held to be obliged by law to take care of children---Trial Court was to consider education, medical, food expenses and other day to day needs of minors on one hand and on the other hand, Courts were required to determine financial status of father---Lower Appellate Court did not maintain requisite equilibrium while fixing quantum of maintenance for the minors and several parts of evidence were unduly ignored---Status of parties and available sources were overlooked by Lower Appellate Court---High Court set aside maintenance fixed by Lower Appellate Court and restored that of Trial Court, with 10% annual increase---Constitutional petition was allowed in circumstances.

Nazia Bibi and others v. Additional District Judge, Ferozewala and others PLD 2018 Lah. 916; Humayun Hassan v. Arslan Humayun and another PLD 2013 SC 557; Shaikh Farrukh Hussain v. Mst. Farah Nishat and others 2021 YLR 1363; Manzoor Ahmed v. Hamad Raza and others 2003 SCMR 1836; Khalid Mahmood v. Naseem Akhtar and others 2019 MLD 820; Syed Najmul Hassan v. Mst. Nabeela Tabassum and 3 others 2001 CLC 78 and Hanzla Khalid and others v. Khalid Parvaiz and others 2019 MLD 1128 ref.

Ghulam Nabi v. Muhammad Asghar and 3 others PLD 1991 SC 543; Muhammad Asim and others v. Mst. Samro Begum and others PLD 2018 SC 819; Marriam Bibi and others v. Azhar Iqbal and others PLD 2022 Lah. 840; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Bahar Shah and others v. Manzoor Ahmad 2022 SCMR 284 and Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others PLD 2009 SC 760 rel.

Malik Noor Muhammad Awan and Ejaz Khalid Khan Niazi for Petitioners.

Muhammad Ayyaz Butt and Muhammad Sajid Chaudhry for Respondent No.3.

2024 C L C 164

[Lahore]

Before Shahid Jamil Khan, J

SUI NORTHERN GAS PIPE LINES LIMITED and others----Appellants

Versus

FARMAN ALI and others----Respondents

R.F.A. No.51 934 of 2022, decided on 7th September, 2022.

(a) Gas (Theft Control and Recovery) Act (XI of 2016)---

----S. 13---Judgment passed by the Gas Utility Court---Appeal---Admission by means of a reasoned order---Statutory requirement---Appellate Court, jurisdiction of---Scope---Consumer ,having domestic connection, filed suit against Sui Northern Gas Pipelines Company ('Gas Company') for charging him commercial tariff through detection bill---Gas Utility Court decreed the suit against the Gas Company---Assertion of the appellant (Gas Company) was that difference between consumption of gas in various months and amount of bills reflected that purpose of connection was being misused---Validity---Record revealed that excessive consumption amounting to bill of Rs. 17,092/= related to one month only, which was not a conclusive proof to establish that the connection was being used for commercial purpose---Appellant (Gas Company) could not show independent evidence to establish its assertion and exhibiting a mere report by an official was not conclusive unless the allegation was supported with other evidence after inquiry into the matter---Witnesses produced by the appellant were not found conversant with the dispute; even the person who prepared the Meter Inspection Report (MIR) was not produced as a witness for examination and cross-examination---Perusal of impugned judgment showed that the evidence produced by the appellant was carefully examined by the Trial Court and reasons for inadmissibility of the evidence were found cogent and pragmatic---No ground or reason of admission of appeal, in part or in whole, was made out---Regular first appeal was dismissed in limine, in circumstances.

(b) Gas (Theft Control and Recovery) Act (XI of 2016)---

----Ss. 13 & 5(3)---Civil Procedure Code (V of 1908), O.XLI, R. 11---Judgment passed by the Gas Utility Court---Appeal---Special provisions for admission---Phrase "In part or in whole"---Scope---Provisions of S.13 of the Gas (Theft Control and Recovery) Act, 2016 ('the Act, 2016') are special to override the general provisions, conferring jurisdiction of appeal to the High Court---Rule 11 of O. XLI of the Civil Procedure Code (V of 1908) envisages dismissal of appeal without sending notice to the lower Court, however, the special provisions under S.13 of the Act, 2016 are more stringent, as assumption of jurisdiction is stipulated with a reasoned order for admission of appeal and that too, only to the extent of admitted ground of appeal, because phrase "in part or in whole" narrows the scope of appeal further---Since special procedure for admission of appeal is provided in section of the Act, 2016, therefore, under S. 5(3) of the Act, 2016 general provision under Civil Procedure Code, 1908, contrary to special procedure for admission of appeal shall not be applicable.

Nadeem Butt for Appellants.

Nemo. for Respondents.

2024 C L C 171

[Lahore (Rawalpindi Bench)]

Before Shahid Jamil Khan, J

NAVEED MUSHTAQ ABBASI----Petitioner

Versus

FEDERATION OF PAKISTAN and others----Respondents

Writ Petition No.2376 of 2023, decided on 19th July, 2023.

Sports (Development and Control) Ordinance (XVI of 1962)---

----S. 3(1)---Constitution of Pakistan Cricket Board, 2014, Paragraphs 38 & 48---Constitution of Pakistan, Art. 199---Constitutional petition---Pakistan Cricket Board---Election---Policy decision---Interference---Scope---Petitioner was representative of Rawalpindi Region and was notified as Member of Board of Governors---Petitioner was aggrieved of change in composition of the Board and fixing of date and place for Chairman's election by Election Commission of Pakistan---Validity---Purpose of election was representation of Regions for effective policy making and not to get a person of Government's choice elected as Chairman---Constitutional Courts could not and should not interfere in policy making which was exclusive domain of elected Government (executive), but Courts could interfere or at least observe, where policy making infringed fundamental right guaranteed under the Constitution---Bedrock of the Constitution was exercise of sovereignty through elected representatives---Chairman of Cricket Board was elected from two members nominated by the Patron because the Government was always in a position to influence representatives of Service Organizations and Departments---Notification for appointment of Management Committee did not suffer from any illegality or lack of authority---Federal Government was competent under S. 3 of Sports (Development and Control) Ordinance, 1962, read with paragraphs 38 and 48 of the Constitution of Pakistan Cricket Board, 2014, to renotify and change composition of Management Committee---High Court directed to notify Board of Governors, following the relevant provisions of Pakistan Cricket Board Constitution, 2014, as the existing Management was competent to run the affairs and complete the task assigned in notifications in question, whereafter election of the Chairman would be conducted within 07-days---Constitutional petition was allowed accordingly.

Saeed Yousaf Khan and Khawaja Javed Iqbal for Petitioner.

Arshad Mehmood Malik, Assistant Attorney General for Pakistan assisted by Qaiser Masood, Deputy Legal Advisor, Ministry of IPC, Government of Pakistan, Islamabad for Respondents Nos.1, 2, 3 and 15.

Imtiaz Rashid Siddiqui, Shehryar Kasuri, Muhammad Hamzah, Bilal Raza and Rana Mohsin Rabbani for Respondents Nos.4 to 12 and 14.

Akbar Khan and Rashid Hafeez for Respondent No.13.

2024 C L C 187

[Lahore]

Before Abid Aziz Sheikh, J

Raja IBADAT SAJJAD KHAN----Petitioner

Versus

Mst. SHEHNAZ KOUSAR and others----Respondents

Writ Petition No.13531 of 2022, heard on 21st November, 2022.

Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. 8(2) & 9(1)---Civil Procedure Code (V of 1908), O.VIII, R. 10---Family suit---Right of defendants to submit written statement, closing of---Powers of the Family Court---Scope---Contention of the petitioner / defendant was that there was no provision in the Family Courts Act, 1964, to close defendant's right to file his written statement---Validly---Section 8 of the Family Courts Act ('the Act 1964') stipulates the issuance of summons in prescribed manner and S.9(1) of the Act, 1964, stipulates filing of written statement in prescribed manner on the next date of hearing---In case the written statement is not filed on that date, the Family Court may, for any sufficient reason, allow the defendant to file written statement on the next date not exceeding 15 days---Although there was no specific provision under the Act, 1964 for failure to file written statement, however, failure of a defendant to file written statement within stipulated time period entailed striking off his defence in terms of O.VIII, R.10 of the Civil Procedure Code, 1908---In absence of written statement, the defendant could still cross-examine the plaintiff's witnesses, lead evidence to disprove the facts averred in the plaint and also take part in the arguments---Record revealed that the petitioner/defendant did not challenge the order of the Court closing the right of written statement before the Family Court or at the higher forum---When the evidence of the plaintiff was concluded, the Family Court fixed the case for final arguments, however, the petitioner agitated before the Court contending that his right to defence was still intact; then the Court passed a specific written order by virtue of which petitioner was given opportunity only to cross-examine the witnesses produced by the respondent/ plaintiff but not allowed to produce his evidence---Petitioner did not challenge the said order even , rather accepted the same by cross-examining the plaintiff's witnesses, which showed that he had no intention to lead his evidence to disprove the facts stated in plaint---Petitioner/ defendant was estopped by his own conduct and could not agitate his contention/ ground for the first time while invoking constitutional jurisdiction of the High Court---No illegality or infirmity having been found in the findings of both the Courts below---Constitutional petition was dismissed, in circumstances.

Khalil-ur-Rehman Bhutta v. Razia Naz and another 1984 CLC 890; Fakhar Abbas v. Additional District Judge Tandlianwala District Faisalabad and 3 others 2017 CLC Note 22; Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others 2014 SCMR 1365; National Logistic Cell (N.L.C.) v. Hazrat Ali and others 2010 SCMR 970; Mehar and others v. Province of Sindh through District Government Pleader, Khairpur and 4 others 2020 MLD 371; Mrs. Rubina Ali through Special Attorney v. Ayesha Kamal through Legal heir and 4 others 2014 MLD 750; Muhammad Nadeem v. Judge Family Court and 2 others 2012 CLC 1361; Messrs Ravi Enterprises through Proprietor and another v. Allied Bank of Pakistan through Provincial Chief and 3 others 2005 CLD 1425 and Mst. Bushra Bano Shirani and another v. Muhammad Hassan and another 1992 MLD 1116 ref.

Qamar Shahzad v. Judge Family Court, Ferozewala and 4 others 2021 MLD 1859 distinguished.

Ali Rana and Khawaja Haseeb Ahmad for Petitioner.

Ch. Zaheer Abbas for Respondents Nos.1 to 3.

2024 C L C 205

[Lahore (Multan Bench)]

Before Sultan Tanvir Ahmad, J

Malik MUHAMMAD ALTAF----Appellant

Versus

MUHAMMAD ASHRAF (deceased) through Legal Heirs and another--- Respondents

R.S.A. No.226 of 2016, heard on 10th November, 2021.

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

----O.VI, R.17 & O.VIII, R.9---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of an agreement to sell---Amended written statement, alterations in---Permission of Court---Suit was decreed by the Trial Court but the appellate Court while accepting the appeal set aside the judgment and decree passed by the Trial Court---Validity---Record showed that a direction to file amended plaint was passed on the application filed by respondent No.1, himself---After direction of the Trial Court, appellant amended the heading, paragraphs Nos.1 and 2 of the plaint to the effect that the claimed property was reduced from 21-marlas to 17-marlas---However, while filing the amended written statement, preliminary objection No.3 was added in the amended written statement taking a somersault and in deviation of earlier stance, where respondent conceded that he was willing to perform agreement and pass on 17-Marlas, another stance had been adopted that he was ready to transfer 17-Marlas earlier but now he did not want to perform the agreement---Reply to paragraph No. 3 was also altered to the effect that since last date of performance of agreement was 30.10.2006 which had elapsed, therefore, he was not willing to perform the agreement and the suit property had already been transferred by respondent No. 1 to his wife/respondent No.2---Respondent No. 1 had not just resiled from his original stance but at the same time he had failed to seek any permission or leave from the Trial Court, while making alterations in the amended written statement, which was not permissible by law---Appellant in his pleadings and evidence asserted that he remained ready to pay the remaining consideration whereas the respondent No.1 had refused to accept the same---Against the said stance, defendant had also taken a specific plea that the appellant did not have the capacity or willingness to pay the remaining consideration but his own conduct during trial suggested other way of around---Firstly, respondent took the stance that he was willing to perform agreement dated 23.06.2006 even after filing the suit, later he resiled from the said stance---Secondly, respondent No. 1 very cleverly transferred the suit property to his wife/respondent No.2, when the suit remained dismissed for non-prosecution for a while---Said conduct itself was sufficient to suggest that respondent No.1 was avoiding to perform his obligations as per the agreement---Trial Court also reached to the logical finding that the appellant had supported the version in the plaint, regarding his willingness and readiness to perform that argument, by documentary evidence and presence in the office of Sub-Registrar---Said fact was further supported from the fact that appellant when directed by Trial Court to deposit remaining consideration, wasted no time to deposit said amount---Said finding of the trial Court had been brushed aside on the reasoning which was not appealing---Respondent No.1 during his cross-examination admitted that during the pendency of the suit he kept making alteration in the suit property---Said improvements in the suit property which were followed by transfer of the property to his wife were sufficient to show the ill intention of respondent No.1, who had also failed to produce any witness or document in support of his specific stance and failed to prove his version taken in the written statement---Appeal was allowed, in circumstances.

Muhammad Rafique and others v. Manzoor Ahmad and others 2020 SCMR 496 ref.

Haji Suleman Ali Muhammad (Represented by His Legal Heirs) v. Ahmed Ali and another PLD 1982 Kar. 11 and Abdul Rasheed through L.Rs. and 7 others v. Muhammad Akhtar and another 2018 YLR 2482 rel.

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

----O.VI, R.17 & O.VIII, R.9---Amendment of pleadings---Scope---Order VIII, R.9 of the Code, 1908, restricts filing of further pleading, subsequent to written statement without leave of the Court, unless the written statement contains a set-off---Order VI, R. 17 of the Code, 1908, empowers the Court to permit amendment on the terms that are just.

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

----O.VIII, R.1---Written statement---Amendment---Through amendment in written statement one cannot resile from the admission if made earlier in his written statement.

Mst. Hajiani Hajrabai v. Afzal Ali and 2 others 1992 MLD 453 rel.

Manzoor Hussain Bhutta for Appellant.

Malik Muhammad Akbar Bhutta for Respondents.

2024 C L C 230

[Lahore]

Before Sultan Tanvir Ahmad, J

NASIRA BIBI----Petitioner

Versus

SPECIAL JUDGE RENT, LAHORE and another----Respondents

Writ Petition No.80035 of 2022, decided on 5th July, 2023.

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

----Ss. 15, 19, 22, 25, 27 & 34---Qanun-e-Shahadat (10 of 1984), Art.164---Eviction petition---Documents relied upon by an ejectment petitioner to be appended with the ejectment petition---Non-compliance---Inadvertent defect---Scope---Principles of fairness and equity---Production of evidence having been made available because of modern device---Landlord, after having closed his oral evidence, filed an application for producing further oral evidence and certain additional documents including a DVD allegedly containing voice recording of telephonic conversation between the respondent and the petitioner as well as her husband promising to pay rent ('the voice recording')---Rent Tribunal partially allowed the application---Petitioner (lady/tenant) invoked constitutional jurisdiction of the High Court to impugn said order to the extent of permission to produce the voice recording---Contention of the petitioner/tenant was that impugned order was passed without any sufficient cause in violation of S.19(3) of Punjab Rented Premises Act, 2009 ('the Act, 2009')---Contention of the respondent/landlord was that S.19(3) or 22(3) were not mandatory provisions of law; while S.34 of the Act 2009 did not oust the principles of fairness and equity to completely preclude the ejectment petitioners from producing documents, which are not appended with the ejectment petition---Validity---Mandatory enactments required strict compliance; an act or thing in non-adherence of the mandatory enactments was invalid--A provision of law which was determined as directory, its substantial compliance was obligatory---When needed, in the interest of justice minor deviations from directory laws could be overlooked provided that there was substantial compliance---It was duty of the Courts to attend to the scheme of Act, 2009 and then to carefully examine the concerned provisions to reach the intent of legislature and to give effect to the same---Provisions of Ss. 19, 22, 25 and 27 of the Act 2009, and keeping in view the object as well as the scheme of the Act, lead to irresistible conclusion that the Legislature has intended that in order to resolve dispute of landlords and tenants in quick, expeditious and cost-effective manner the litigants should provide copies of all documents in their possession that they want to rely upon, at initial stage, by appending them with ejectment petition or leave petition, as the case may be---Time period is provided for almost every step of the proceedings and it was expected from Rent Tribunals to dispose of such cases as expeditiously as possible---Any inadvertent defect in said provisions (Ss. 19, 22, 25 & 27) could be cured exceptionally, when explanation was available to the satisfaction of the Rent Tribunals, which could give permission in compelling needs to safeguard the interest of justice that too after recording reasons for grant of such permission---Litigant to proceeding under the Act, 2009 was not allowed to adduce evidence in non-adherence of said provisions, as a right or matter of course or in routine---Admittedly, entire oral evidence from the respondent's side had been completed and dismissal for request to produce additional oral evidence had attained finality---Aspect as to how the voice recording would have been produced also remained ambiguous---Reason that prevailed with the Rent Tribunal to give permission to produce voice recording was reliance upon Art. 164 of the Qanun-e-Shahadat, 1984---Whereas in the application moved by the respondent/landlord ground vis-à-vis production of the voice recording set-up in relevant para, did not disclose the date of such recording; and there was no reason given in the application regarding failure to provide the voice recording at initial stage as well as non-compliance of law---Apparently, it also escaped view of the Rent Tribunal that before adverting to the question of admissibility, it was essential to state reasons for departure from the provisions of law or failure in substantial compliance---Respondent had to satisfy the Rent Tribunal as to those grounds on the basis of which he remained unable to produce that evidence or give notice in said regard at the previous stages of trial, which started almost three years ago---It was also incumbent to satisfy the Rent Tribunal as to how it was in interest of equity and fairness to permit the petitioner to produce the particular document at the belated stage---High Court observed that the application filed after about three years of ejectment petition for producing the voice recording lacked sufficient grounds to permit the same---High Court set aside the impugned order passed by the Rent Tribunal, to the extent of permission to produce the voice recording---Constitutional petition was allowed, in circumstances.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Mafizullah v. Manai Ullah and others PLD 1963 Dacca 318; S.N. Nagaraja Rao v. Chikkachennappa and others 1981 (1) Kar LJ 201; Shri Harish. Chandra Mishra and others v. The Hon'ble Mr. Justice S. Ali Ahmed, Opposite Party AIR 1986 PATNA 65 and Khalil-ur-Rehman and another v. Dr. Manzoor Ahmed and others PLD 2011 SC 512 ref.

Muhammad Iqbal Ghani for Petitioner.

Atiq-ur-Rehman Mughal for Respondent No.2.

2024 C L C 251

[Lahore]

Before Sultan Tanvir Ahmad, J

AWAIS GOHAR----Petitioner

Versus

SUMAIRA ADNAN and others----Respondents

Writ Petition No.65237 of 2023, decided on 5th October, 2023.

(a) Punjab Partition of Immovable Property Act, 2012 (IV of 2013)---

----Ss. 10, 11 & 14---Suit for possession through partition---Suit property, disposal of---Internal auction proceedings---External/open auction---Scope---Civil Court declared that the internal auction had failed and started proceedings for the external auction, which decision was assailed by the petitioner (defendant/co-owner) before District Court, however, the same was dismissed---Contention of the petitioner was that internal auction has been declared as unsuccessful in haste and without observing the requirement of law---Validity---Record revealed that the Trial Court passed order for holding internal auction, after reaching to the conclusion that there was no dispute as to the ownership of the suit property---In pursuance of S. 10(2) of the Punjab Partition of Immovable Property Act, 2012 ('the Act, 2012'), the parties were directed to appear in person---Evaluation report of the suit property was submitted and the petitioner was directed to appear on next date, when the respondent-lady remained present but the petitioner failed to appear---Even thereafter, petitioner kept seeking adjournments on different pretexts (like suffering from COVID-19, or out of the Country etc.)---Ultimately, in view of the conduct of the petitioner, the Trial Court after proceedings had spanned for about nine months, concluded that he was not interested in the internal auction and closed proceedings relating to internal auction by declaring the same as unsuccessful---Section 11(1) of the Act, 2012 reflected that if the co-owners had refused to participate in internal auction, or only one co-owner had showed willingness to participate in such auction and other(s) were not willing or when the internal auction under section 10 of the Act had failed, then the Court could proceed with open auction and fix the reserve price---In the present case, the Trial Court initiated the proceedings for internal auction but the petitioner failed to appear or to make any offer for the progress in the internal auction; he continued to be absent from the Court and his counsel kept seeking adjournments on one or the other pretext for more than nine months---No illegality or irregularity had been noticed in the impugned judgments and orders passed by both the Court below---Constitutional petition was dismissed in limine, in circumstances.

(b) Punjab Partition of Immovable Property Act, 2012 (IV of 2013)---

----S.14---Suit for possession through partition---Time-period to decide the case---Civil Court declared that the internal auction had failed and started proceedings for the external auction, which decision was assailed by the petitioner (defendant/co-owner) before District Court, however, the same was dismissed---Section 14 of the Act, 2012 provides specific period of six months to complete the proceedings in such suits from their date of institution---Process of internal auction was initiated after about eleven months of filing of the present case and the petitioner had already gained about nine months for making a suitable offer or properly assisting the Trial Court in the proceedings of internal auction or showing willingness to participate---By various means and adopting different tactics the petitioner defeated the very purpose of the Act, 2012 which had been enacted for the purposes of expeditious partition of immovable properties and to provide remedy for ancillary matters---Respondent-lady throughout the proceedings kept appearing, whereas, the petitioner had even avoided to appear in person and his lawyer had shown no interest in the progress of the case or the internal auction---No illegality or infirmity had been noticed in the impugned judgments and orders passed by both the Courts below---Constitutional petition filed by the defendant/co-owner was dismissed, in circumstances.

(c) Punjab Partition of Immovable Property Act, 2012 (IV of 2013)---

----Ss. 10, 11 & 14---Suit for possession through partition---Internal /external auction proceedings---"Willingness" of the party---Scope and meaning---Civil Court declared that the internal auction had failed and started proceedings for the external auction, which decision was assailed by the petitioner/defendant before District Court, however, the same was dismissed---Validity---Word "willing" was defined as "eager, co-operative, ready and prompt to act; voluntary; chosen; intentional"---Word "willingness" meant "ready to do something" which word ("willingness") also denoted the conduct of a relevant party---In the present case, the petitioner, instead of willingly participate in the proceedings remained extremely disinclined---Conduct of the petitioner had shown that he was not prepared or ready for the internal auction; he kept wasting the time of the Trial Court and caused delay of about 9 months in just one step of the case (i.e. internal auction), entirely contrary to the intent of legislature reflected from the Preamble and S. 14 of the Act, 2012---No illegality or irregularity had been noticed in the impugned judgments and orders passed by both the Court below---Constitutional petition was dismissed in limine, in circumstances.

Ms. Sara Bibi v. Muhammad Saleem and others PLD 2021 Isl. 236 ref.

2024 C L C 268

[Lahore]

Before Raheel Kamran, J

NASIR ABBAS BHATTI----Petitioner

Versus

ABID HUSSAIN and others----Respondents

Civil Revision No.9463 of 2022, decided on 10th August, 2023.

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

----Ss. 12 & 22---Suit for specific performance of agreement to sell---Remaining sale consideration, depositing of---Readiness and willingness of vendee---Scope---Discretionary powers of the Court---There is no provision, undoubtedly, in the Specific Relief Act, 1877 requiring the vendee to deposit the remaining sale consideration upon filing of the suit for specific performance of contract, however, as the relief of specific performance is discretionary in nature and cannot be claimed as a matter of right, therefore, the vendee must state that he has performed all the conditions which under the agreement he was bound to perform and right from the date of execution of the agreement till filing of the suit he had been ready and willing to perform his part of the contract; he is not only required to state in the plaint his readiness and willingness to perform his part of the contract but also establish through supporting evidence like pay order, bank statement or other material, his ability to perform his part, leaving no doubt in the mind of the Court that the proceedings seeking specific performance have not been initiated to cover up his default or to gain time to generate resources---It is in said context, the Court in order to weigh his (vendee's) capacity to perform and intention to purchase may direct the vendee to deposit the balance sale consideration---Readiness and willingness on the part of the vendee to perform his part of the obligation also prima facie demonstrates that non-completion of the contract was not the fault of the vendee and the contract would have been completed if it has not been renounced by the vendor---No illegality or infirmity had been noticed in the impugned judgments and orders passed by both the Courts below, dismissing the suit filed by the petitioner/plaintiff for non-depositing of remaining consideration---Revision was dismissed, in circumstances.

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

----Ss. 12 & 22---Suit for specific performance of agreement to sell---Equity and fairness in the contract---Remaining sale consideration, non-deposit of---Readiness and willingness of the plaintiff/vendee---Scope---Discretionary powers of the Court---Suit filed by the petitioner/plaintiff for specific performance of agreement to sell was dismissed due to non-deposit of remaining sale consideration and appeal preferred there-against was also dismissed---Contention of the petitioner was that since the respondents/ defendants had disputed the execution of agreement to sell in question, therefore, the petitioner was not liable to pay the remaining sale consideration---Validity---Trial Court, after recording oral evidence of the plaintiff/petitioner, in order to evaluate his bona fide and readiness, directed him to deposit the remaining sale consideration but he, despite availing two opportunities, failed to comply with the said order---There are many instances in which though there is nothing that actually amounts to fraud, nevertheless there is a want of equity and fairness in the contract which are essential in order that the Court may exercise its extraordinary jurisdiction in specific performance---In judging the fairness of a contract the Court looks not merely on the terms of the contract but all the surrounding circumstances---Position that emerged in the present case was that specific performance of an agreement executed in the year 2013 for a consideration of a Rs.8,000,000/- was being sought only after paying an amount of Rs.400,000/- as earnest money when the value of the property-in-dispute had multiplied exponentially, as claimed by the respondents while value of the local currency had remarkably depreciated, and that too despite failure of the petitioner to deposit the remaining sale consideration on order passed by the Trial Court---Conduct of the petitioner/plaintiff manifestly showed non-seriousness and unwillingness on his part---Such exercise of jurisdiction might lead to miscarriage of justice and unfair advantage to the petitioner who, by merely paying a meager amount, had bound down the respondents for a number of years---Trial Court's order clearly specified that in case of failure to deposit the balance sale price, suit of the plaintiff would be dismissed---No illegality or infirmity had been noticed in the impugned judgments and orders passed by both the Courts below, dismissing the suit filed by the petitioner/ plaintiff for non-depositing of remaining consideration---Revision was dismissed, in circumstances.

Rab Nawaz v. Mustaqeem Khan 1999 SCMR 1362; Muhammad Abdul Rehman Qureshi v. Sagheer Ahmad 2017 SCMR 1696 and Anayat Ullah Khan and others v. Shabbir Ahmad Khan 2021 SCMR 686 ref.

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

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

----Ss. 12 & 22---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.23---Suit for specific performance of a agreement to sell---Remaining sale consideration, non-deposit of ---Principles governing equity of redemption---Trial Court ordered the plaintiff/vendee to deposit remaining consideration amount or his case would be dismissed, however, he moved an application for extension of time till decision of the Banking Court wherein proceedings involving suit property were allegedly pending---Validity---Any transfer of the property subject matter of proceedings before a Banking Court were subject to the provisions of S. 23 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and principles governing equity of redemption, however, the same did not absolve a plaintiff seeking specific performance of an agreement of his equitable burden to establish readiness and willingness to perform his part of the agreement---No illegality or infirmity had been noticed in the impugned judgments and orders passed by both the Courts below, dismissing the suit filed by the petitioner/ plaintiff for non-depositing of remaining consideration---Revision was dismissed, in circumstances.

Ch. Fiaz Ahmad Singhairah for Petitioner.

Shahbaz Ahmad Khan Yousafzai for Respondents.

2024 C L C 301

[Lahore (Bahawalpur Bench)]

Before Sultan Tanvir Ahmad, J

Mian ABDUL GHAFFAR----Petitioner

Versus

Mst. KISHWAR IQBAL and 5 others----Respondents

Civil Revision No.369 of 2021/BWP, heard on 16th May, 2022.

Specific Relief Act (I of 1877)---

----Ss. 12, 14, 15 & 16---Suit for specific performance of agreement to sell, severability of---Part performance---Specific enforceability---Scope---Bar contained under S. 17 of the Specific Relief Act, 1877 ('Act, 1877')---Right of specific execution of contract---Discretion of the Court---Scope---Claim of the plaintiff was that he and two defendants/ vendees entered into agreement with the defendants (four in number) being the owners-in-possession of property out of which almost fifth of the suit-property was purchased by him (plaintiff), thus he sought the defendants/owners to perform the sale agreement to the extent of part/portion of suit-property for which he entered into the agreement---Suit was dismissed by the Civil Court, which judgment and decree was maintained by the Appellate Court---Contention of the petitioner/ plaintiff was that the Courts below fell into error while reaching to the conclusion that the agreement between the parties was not severable and the same could not be specifically enforced---Plea of the respondents ( defendants/owners)was that they had sold the suit- property to the petitioner as well as two others (defendants/respondents) as single unit and the same could not be enforced by the petitioner alone as the suit-property, being inherited, fell in common Khatas/Khasras while the sale agreement did not contain any stipulation, thus the case clearly attracted the bar under S. 17 of the Act, 1877---Validity---Pivotal question was as to whether or not the sale agreement could have been partially enforced against respondents (defendants / owners) and in favour of the petitioner/plaintiff---Section 17 of the Act, 1877, prohibited decree of performance of part of the contract, unless the case fell under Ss. 14 to 16 of Act 1877---Splitting up of the contract was not permissible and the contracts were to be performed in their entirety---Admittedly, Ss. 14 & 15 of the Act, 1877 had hardly any relevance with the present case---Petitioner had primarily relied upon S. 16 of the Act, 1877 to bring his case in the exception to S. 17 of the Act, 1877, however, the same provided that to direct performance of part of the contract, the said part had to "stand on a separate and independent footing from another part"---Though the respective shares of the purchasers were specified from whole lot (as 5058/6230 and 1172/6230) but there was no mention in the sale agreement as to which share out of the joint property inherited by the respondents/owners was to be transferred to any specific purchaser---No part of the sale agreement was "standing on separate and independent footing" or stood in isolation from the other part---There was no stipulation in the sale agreement as to khasra or Khata number(s) from which about one-fifth share (58-Kanals and 12-Marlas) out of the joint shares and / or the whole property were to be given to the petitioner, if such situation arose---Even the petitioner while appearing as a witness admitted of not having any bargain or mutual understanding between the parties regarding transfer of property from any specific Khata or extent or piece of land to which the two set of purchasers were entitled to transfer in case of independent/separate performance---Similarly, one of the defendants / owners being witness (lady), during cross-examination stood by her pleadings and statements given in the examination-in-chief, and no deal or arrangement to sell the suit property in the parts, could come out during her cross-examination--- Perusal of the sale agreement in the light of evidence further revealed that there was no intention of the parties at the time of execution of the sale agreement as to the separate sale or passing on the title of the property in parts---Only severable/separable element in the contract was that when the entire suit property were to be transferred, the same would be passed on to the petitioner to the extent of his share in the suit-property and respondents (defendants /other vendees) would have been entitled to their share in the joint whole, upon complete payment of the entire sale consideration---Record (documents duly exhibited by the defendants/owners) also revealed that one respondent/vendee (out of other set of purchasers) filed first suit and then again filed suit after about five years; and in response to each suit, respondents /owners offered said respondent/vendee to pay the entire amount against the transfer of suit property but he failed to accept the offer(s) and both the suits were dismissed---Said fate of previous suits lead to two clear inferences; (i) respondents/owners remained willing to perform their part of obligation and they were not defaulters of the sale agreement and, (ii) both set of purchasers were not in the position to purchase the whole property, therefore, they decided to contribute to purchase the whole property in terms of respective shares, hence, there was no understanding on either side to purchase the property in piecemeal or independent of each other---Both the Courts below had used their discretion in a judicious manner and as per the established principle of law and equity---Right of specific execution of contract was not absolute and its enforcement rested on the discretion of the Court---No mistake, infirmity or illegality had been noticed in the impugned orders, judgments and decrees passed by both the Courts below---Revision filed by the plaintiff was dismissed, in circumstances.

Karim Nawaz and another v. Habib Ullah Khan 2013 SCMR 1408; Wali and 2 others v. Manak Ali and 2 others PLD 1965 SC 651 and Abdul Rahim and others v. Tufan Gazi and others AIR 1928 Calcutta 584 ref.

Muhammad Tayyab Zameer Khan for Petitioner.

Nadeem Akhtar Ch. and Malik Qasim Awan for Respondents.

2024 C L C 325

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

MUHAMMAD AZHAR ABBASI AND MASOOD AHMAD ABBASI---Petitioners

Versus

MUNICIPAL CORPORATION and others----Respondents

Writ Petition No.3222 of 2021, heard on 11th September, 2023.

(a) Punjab Local Government (Legal Advisers) Rules, 2003---

----R.4---Legal adviser of Local Government on regular basis, appointment of---Procedure---Under Rule 4(1) of the Punjab Local Governments (Legal Advisers) Rules, 2003 ('the Rules'), a local government desirous to engage a legal adviser on regular basis shall invite applications through advertisement at least in two national daily newspapers indicating the requisite qualifications, experience, standing of the advocate and minimum remuneration offered, while under R.4(2) of the Rules the candidates are advised to address their applications to the local government concerned and also forward a copy thereof along with annexures to the Government as defined under R.2(b) of the Rules which means the Government of the Punjab in the Law and Parliamentary Affairs Department---In terms of R. 4(3) of the Rules, the local government as defined under R.2(c) of the Rules shall forward to Government all applications of the candidates along with its recommendations which are placed before the Selection Committee constituted under R. 4(4) of the Rules---Rule 4(5) of the Rules provides that the committee shall approve the name of advocate to be appointed as legal adviser and the remuneration to be paid to him and the said approved advocate by the committee is appointed by the local government concerned on the terms and conditions fixed by the Government.

(b) Punjab Local Government (Legal Advisers) Rules, 2003---

----R. 4---Constitution of Pakistan, Arts. 4 & 5---Legal adviser of Local Government on regular basis, appointment of---Procedure, non-observance of---Right of individuals to be dealt with in accordance with law, but subject to obedience to the Constitution and law---Scope and effect---Petitioners (practicing advocates) invoked constitutional jurisdiction of the High Court with prayer that the respondents (Administrator Municipal Corporation ) be directed to pay arrear as well as current retainership/professional fee to them---Stance of the respondent (Secretary Law and Parliamentary Affairs Department)was that no department/body could engage a private advocate without due procedure and in case, an officer had appointed any private advocate, such officer shall be responsible to pay the professional fee from his own pocket and shall also be liable to disciplinary action as per law---Validity ---Admittedly, the appointments of the petitioners had already ended almost two years ago and the same were not formally extended by the authority---Two letters, on the basis of which the petitioners were claiming to be the appointees, as well as other documents revealed that the respondent (Municipal Corporation) invited applications in terms of R. 4(1) of the Punjab Local Government (Legal Advisers) Rules, 2003 ('the Rules') and forwarded the same along with recommendations as per R. 4(3) of the Rules but said recommendations were required to be placed before the Selection Committee in terms of R. 4(4) of the Rules for approval as per R. 4(5)---Pertinently, the respondent (Municipal Corporation) appointed the petitioners at its own without following the procedure provided under the Rules and getting approval from the Competent Authority while he was well aware of the instructions contained in relevant letter (of the year 2016) followed by instructions (issued in the year 2018) issued by the Secretary to Government of Punjab, Law and Parliamentary Department---Article 4 of the Constitution guaranteed right of individuals to be dealt with in accordance with law, but at the same pedestal Art. 5(2) thereof required obedience to the Constitution and law, being the inviolable obligation of every citizen---Record revealed that the petitioners were not ever appointed in due course of law and the letters relied upon by them to establish their alleged appointment at the most might be taken up as only nomination/recommendation for relevant job---When a law described or required a thing to be done in a particular manner, it should be done in that manner or not at all---Recommendation or nomination for appointment did not create any vested right until it had been done through proper procedure/mechanism provided under the law which, admittedly in the present case, had not been adopted---High Court passed instruction to the concerned department to initiate disciplinary actions against the respondent (Municipal Corporation Administrator) for giving appointments to the petitioners of his own without following the procedure provided under Punjab Local Governments (Legal Advisers) Rules, 2003---Constitutional petition was dismissed, in circumstances.

Muhammad Akbar v. Federation of Pakistan, Ministry of Law and Justice (Justice Division), Islamabad through Secretary and another 1996 SCMR 1017; Nazir A. Khan Swati v. Ministry of Law and Justice and others 1998 PLC (C.S) 372; Hadayat Ullah and others v. Federation of Pakistan and others 2022 SCMR 1991 and Attaullah Khan v. Ali Azam Afridi and others 2023 PLC (C.S) 182 ref.

Petitioner in person.

Ch. Sarfraz Ahmad Chadhar for Respondents Nos.1 and 2.

Malik Amjad Ali, Additional Advocate General for Respondent No.3 with Abid Aziz, Assistant Advocate General.

Malik Muhammad Siddique Awan, Additional Attorney General with Arshad Mehmood Malik, Assistant Attorney General.

2024 C L C 357

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf and Sultan Tanvir Ahmad, JJ

AYAZ MEHMOOD----Appellant

Versus

MUSADAQ RIAZ and 2 others----Respondents

R.F.A. No.51 of 2023, decided on 13th February, 2023.

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

----Ss. 5 & 14---Civil Procedure Code (V of 1908), O.VII, R. 10---Pursuing case before wrong forum/Court---Condonation of delay---"Sufficient cause"---Due diligence and good faith---Initial burden---Scope---Suit instituted by the plaintiff (appellant) was dismissed by the Civil Court, however, Instead of filing appeal before the High Court, he filed appeal before the District Court which remained pending for about one year and finally the appeal was returned under O.VII, R.10 of C.P.C.---Appellant/plaintiff while preferring appeal before the High / Appellate Court also moved an application for excluding the period of pursing the remedy before the District Court---Validity ---Where the plaint was returned under O.VII, R. 10 of the Civil Procedure Code, 1908, for its representation before the Court of competent jurisdiction, for all intent and purposes, it would be treated as a fresh institution---Application for excluding the period of pursing the remedy before the Court lacking jurisdiction, in the present case, was instituted under S.5 of the Limitation Act, 1908 ('the Limitation Act') which required a litigant to satisfy the Court that he had sufficient cause for not preferring the appeal or making the application within the stipulated time period--- In order to establish "sufficient cause", there was no mathematical formula or hard and fast rule that could be followed, however, although S.14 of the Limitation Act had no direct application to the appeals but the principles enumerated therein could be taken into the consideration by the (Appellate) Court while ascertaining the availability of 'sufficient cause' for condonation of delay---Section 14 of the Limitation Act reflected that it was incumbent upon the litigant, seeking exclusion of time period for pursuing remedy in forum without jurisdiction, to plead the facts to justify the grant of relief and by reasonably demonstrating due diligence and good faith in pursuing the matter before the Court having no jurisdiction to adjudicate---Initial burden, to show the said elements for seeking to exclude the period consumed in prosecuting case before the forum without jurisdiction, was on the applicant pleading such relief---Applicant / appellant miserably failed to plead the elements of S. 14 of the Limitation Act---No plea as to the bona fide on the part of the applicant / appellant or any due diligence on his part had been taken in the application ---Applicant / appellant had failed to give any justification or to argue as to due diligence adopted by the appellant for about one year of pursuing the remedy in wrong forum---Conduct of the applicant / appellant depicted carelessness, lack of required diligence and callous approach on the basis of which condonation of delay under S. 5 of the Limitation Act was sought, without even discharging the initial burden or even pleading necessary ingredients---Application for enlargement of time by excluding the time period of about one year for pursuing remedy before wrong forum, filed by the appellant, had no substance, therefore, the same was dismissed---Appeal was dismissed in limine, in circumstances.

Khushi Muhammad through L.Rs. and others v. Mst. Fazal Bibi and others PLD 2016 SC 872; Monazah Parveen v. Bashir Ahmad and 6 others 2003 SCMR 1300; Abdul Ghani v. Mst. Mussarat Rehana 1985 CLC 2529; Sarmukh Singh v. Channan Singh and others AIR 1960 PH 512 and Munshi v. Punna Ram AIR 1974 Punjab and Haryana 229 ref.

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

----Ss. 5 & 14---Civil Procedure Code (V of 1908), O.VII, R. 10---Application for enlargement of time by excluding the time period of pursuing the case before wrong forum /Court---Condonation of delay---"Sufficient cause"---Suit instituted by the plaintiff (appellant) was dismissed by the Civil Court, however, Instead of filing appeal before the High Court, he filed appeal before the District Court which remained pending for about one year and finally the appeal was returned under O.VII, R.10 of the C.P.C.---Appellant/plaintiff while preferring appeal before the High / Appellate Court also moved an application for excluding the period of pursing the remedy before the District Court ---Contention of the applicant / appellant that the cases should be decided on the basis of merits rather than technicalities---Held, that the contention of the applicant / appellant was misconceived as availing the remedy within the period provided by law was not merely a technicality---Section 5 or S.14 of the Limitation Act, 1908, was not intended to add premium to the carelessness or to validate lack of vigilance and required caution by a litigant ---Application for enlargement of time by excluding the time period of about one year for pursuing remedy before wrong forum,filed by the appellant, had no substance, therefore, the same was dismissed ---Appeal was dismissed in limine, in circumstances.

2024 C L C 375

[Lahore]

Before Raheel Kamran, J

MUHAMMAD NAWAZ----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, HAFIZABAD and others----Respondents

Writ Petition No.65227 of 2023, decided on 5th October, 2023.

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

----Ss.5, 9 & 12-A---Failure of the defendant to attach document(s) along with written-statement---Belated filing and production of document---Provisions of family laws---Principle of purposive interpretation---Section 9(2) of the Family Courts Act, 1964 ('the Act, 1964') clearly provides that where a defendant relies upon a document in his possession or power, he shall produce it or copy thereof in the Court along with the written statement---Subsection (4) of S.9 of the Act, 1964 requires copies of the documents referred to in subsection (2) to be given to the plaintiff along with the written statement on the date fixed for that purpose---Although the word "shall" has been used in subsections (2) & (4) of S.9 of the Act 1964, however, that does not make said provisions mandatory thereby rendering non-compliance thereof absolutely fatal so as to prevent a defendant from belatedly filing and producing in evidence any document that was not filed along with the written statement; the same is primarily for the reason that no such penal consequences have been specified by the Legislature in Section 9 of the Act 1964---It, thus, remains discretionary for the Family Court to permit a defendant to file any document, deliver a copy thereof to the plaintiff that was not filed along with the written statement and produce the same in evidence in a suit---Question then arises what are the principles governing the exercise of such discretion by the Family Court---A purposive rather than literal approach to the interpretation is to be adopted while interpreting provisions of the Act, 1964, therefore, an interpretation which advances purpose of the Act, 1964 is to be preferred over an interpretation which defeats its object---Special forum of the Family Court has been created by the Legislature for expeditious settlement and disposal of disputes relating to marriage and family affairs, as manifest from Preamble of the Act---Section 12A of the Act, 1964 has specified a period within which such cases have to be disposed of by a Family Court---It is a quasi-judicial forum which can draw and follow its own procedure provided such procedure is not against the principles of fair hearing and trial---In the present case, exercise of discretion on part of both Courts below, declining the petitioner/defendant to produce document at belated stage, was not arbitrary, capricious or whimsical but manifestly based on valid reasons which did not warrant interference by High Court---No illegality or jurisdictional error had been noticed in the impugned judgments and orders passed by both the Courts below---Constitutional petition was dismissed in limine, in circumstances.

Saif Ur Rehman v. Additional District Judge, Toba Tek Singh 2018 SCMR 1885; Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others 2014 SCMR 1365; Muhammad Asim and others v. Mst. Samro Begum and others PLD 2018 SC 819 and Abid Hussain v. Additional District Judge Alipur, District Muzaffargarh and another 2006 SCMR 100 ref.

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

----Preamble & S.9---Failure of the defendant to attach document(s) along with written-statement---Belated filing and production of document---Discretion of the Family Court---Scope---Family Court dismissed an application filed by the petitioner/defendant seeking permission to produce additional evidence (the document/receipt of return of dowry articles), which judgment was maintained by the District Court---Contention of the petitioner was that the document (receipt of return of dowry articles) sought to be produced was relevant/ admissible in evidence, but the same was not available to him at the time of recording of evidence---Validity---Permission for belated filing and production of a document in evidence could not be granted as a matter of routine keeping in view the principle of purposive interpretation as well as the object of the Family Courts Act, 1964 ('Act, 1964')---Discretion should be exercised by the Family Court through a speaking order keeping in view the facts and circumstances in each case---Relevant considerations for the Family Court in this regard included the stage of proceedings at which the permission was sought, reason furnished by a defendant that prevented him from filing and producing the document at the relevant time, nature of the document sought to be filed and produced (such as admissible per se or otherwise required to be proved), delay in conclusion of the proceedings likely to be occasioned by the permission and likelihood of any other prejudice to the plaintiff if the permission sought was granted---In the present case, permission to produce additional evidence had been denied to the petitioner for having been made at the fag end of proceedings in the suit after recording of evidence by the parties and that too to adduce a private document which was not admissible per se---No valid reason preventing the petitioner from filing and producing the document sought to be tendered in evidence at the relevant time had been advanced and it had been rightly found to be an attempt to fill in lacuna after evidence of the parties had been recorded---Permission sought, if granted, would have not only caused serious prejudice to the case of the respondent/plaintiff but would have also defeated the object of the Act 1964 i.e. expeditious disposal of the dispute--- Therefore, the exercise of discretion on part of the Courts below was not arbitrary, capricious or whimsical but manifestly based on valid reasons which did not warrant interference by High Court---No illegality or jurisdictional error had been noticed in the impugned judgments and orders passed by both the Courts below---Constitutional petition was dismissed in limine, in circumstances.

2024 C L C 385

[Lahore]

Before Safdar Saleem Shahid, J

IMRAN ABBAS BHATTI----Petitioner

Versus

GOVERNMENT OF PUNJAB and others----Respondents

Writ Petition No.31899 of 2023, decided on 23rd May, 2023.

(a) Constitution of Pakistan---

----Art.199---Constitutional petition---Alternate remedy, availability of---Effect---If procedure for obtaining relief through some other proceedings is too cumbersome or relief cannot be obtained without delay and expense, or delay makes grant of relief meaningless, High Court would not hesitate to issue a writ, if party applying for it is found entitled to it, simply because the party could have chosen another course to obtain the relief which is due.

(b) Punjab Maintenance of Public Order Ordinance (XXXI of 1960)---

----S.3---Constitution of Pakistan, Art. 199---Constitutional petition---Preventive detention---Necessary material---Petitioners were detained by authorities on the plea that their conduct was prejudicial to public peace---Validity---For the purpose of passing an order for protective detention there should be sound material showing that individual/detenu was busy in any activity prejudicial to public safety or maintenance of public order, in any of documentary forms like SMS/voice messages, WhatsApp messages, social media accounts, pamphlets/handouts, posters, play cards, photographs, paintings, caricatures, books/literature, newspapers, audio/video CDs, Electronic and digital material, wall chalking, banners/pena flex, recording of demonstrations in rallies, material on Facebook, Twitter or any other social media account, call records, geo-fencing through CDR, speeches in public meetings, Radio and T.V. shows, surveillance report in any form, reports from international agencies, suspicious transaction report from any financial institution, membership record of affiliated association or political party etc.---No such record was brought on record or even referred by authorities against petitioners---Orders assailed were bereft of any supportive material---High Court declared detention orders to have been passed in flagrant violation of S.3 of West Pakistan Maintenance of Public Order Ordinance, 1960---High Court directed the authorities to release petitioners and set aside preventive detentions---Constitutional petition was allowed, in circumstances.

Federation of Pakistan through Secretary, Ministry of Interior, Islamabad v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442; Muhammad Abdaal alias Abdali v. Government of Punjab and others PLD 2020 Lah. 471; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813; Hafiz Ali Raza v. Deputy Commissioner, Lahore and others 2023 LHC 1304; Muhammad Irshad v. Government of the Punjab and others 2020 PCr.LJ 206 and Shahid Rasool v. Government of the Punjab through Secretary Home Department, Lahore and 6 others 2023 YLR 333 rel.

Muhammad Azhar Sulehria, Rana Naveed Khalid, Rana Ashiq Ali and Mudassar Naveed Chatha for Petitioners.

Asad Abbas Dhother, Assistant Advocate General Punjab, Waqar Abid Bhatti, Deputy Prosecutor General Punjab for Respondents.

2024 C L C 406

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

RIZWAN ALI SAYAL and others----Petitioners

Versus

FEDERATION OF PAKISTAN and others----Respondents

Writ Petitions Nos.3344-R, 3099-R and 1531-R of 2023, decided on 1st November, 2023.

(a) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss. 8 & 10---Evacuee property---Determination---Question as to status of a property is dealt under S. 8 of Evacuee Trust Properties (Management and Disposal) Act, 1975---If there is some dispute regarding actual status of the property, it is the Chairman, who is competent to decide such question and to declare such property as evacuee trust property---On the other hand, provision of S.10 of Evacuee Trust Properties (Management and Disposal) Act, 1975, presupposes that property in question is evacuee trust property and it empowers the Chairman in case a question arises as to whether a transaction referred to in S. 10(1) of Evacuee Trust Properties (Management and Disposal) Act, 1975, is bona fide or not to decide the same---Provision of S. 10(3) of Evacuee Trust Properties (Management and Disposal) Act, 1975, ordains that if transaction is not bona fide, Chairman may pass an order cancelling allotment or transfer of such property---Such decision either under S. 10(2) or order under S.10(3) of Evacuee Trust Properties (Management and Disposal) Act, 1975, in respect of property has to be passed after affording reasonable opportunity of hearing to the affected person.

Assistant Administrator, Evacuee Trust Property v. Muhammad Ayub and others 2003 SCMR 841; Izhar Alam Farooqi, Advocate v. Sheikh Abdul Sattar Lasi and others 2008 SCMR 240; Mst. Rehmat Bibi and others v. Federal Secretary, Government of Pakistan, Ministry of Minorities and 3 others 2020 MLD 440; Muhammad Sadiq Khan v. Secretary to Government of Pakistan, Ministry of Minorities (Minorities Affairs Division), Islamabad and others 2014 SCMR 478; Secretary to the Government of Pakistan, Minorities Affairs Division, Islamabad and 2 others v. Mst. Shah Jehan Bano and others 2005 SCMR 907; Fayyazuddin Khan v. Federal Government of Pakistan through Secretary to the Government of Pakistan, Minorities Affairs Division, Islamabad and others 2009 SCMR 362; Sana Jamali v. Mujeeb Qamar and another 2023 SCMR 316; Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400; Federal Government of Pakistan and another v. Khurshid Zaman Khan and others 1999 SCMR 1007 and Kuldip Chand and another v. Advocate General to Government of Himachal Pradesh and others AIR 2003 SC 1685 ref.

(b) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss.8, 10 & 21---Constitution of Pakistan, Art. 199---Constitutional petition---Evacuee property---Determination---Principle of natural justice---Applicability---Petitioner was aggrieved of order passed by Chairman Evacuee Trust Properties Board (ETPB), without affording him proper opportunity of hearing and directing the Administrator, ETPB, to take over management and control of the property---Validity---Chairman has the exclusive authority to determine questions relating to status of the property as evacuee trust property and to pass a decision about validation of certain transfers relating to evacuee trust property---If reference before Chairman involves intricacy of facts, same cannot be decided in a summary and slipshod manner, as per requirements of S. 21 of Evacuee Trust Properties (Management and Disposal) Act, 1975---Power of a civil court has been bestowed upon Federal Government or any person authorized by it, the Chairman and every Officer appointed under Evacuee Trust Properties (Management and Disposal) Act, 1975, for the purposes of making any inquiry or hearing in appeal or revision under Evacuee Trust Properties (Management and Disposal) Act, 1975 for the matters mentioned therein---In the present petition various substantial questions including the question relating to competency of Chairman to proceed with the reference were raised---High Court directed Chairman ETPB to decide reference under Ss.8 & 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975, afresh after holding thorough inquiry and probe and affording reasonable opportunity of hearing to petitioner---Constitutional petition was allowed accordingly.

Federation of Pakistan through Secretary, Ministry of Religious Affairs/Minority Affairs, Government of Pakistan, Islamabad v. Mufti Iftikhar-ud-Din and another 2000 SCMR 1; Secretary to the Government of Punjab, Irrigation and Power Department, Irrigation Secretariat, Lahore v. Abdul Hamid Arif and others 1991 SCMR 628 and Muhammad Saleem v. Federal Public Service Commission and others 2020 SCMR 221 rel.

Sardar Abdul Raziq Khan for Petitioners (in Writ Petitions Nos.3344-R, 3099-R and 1531-R of 2023).

Hafiz Ehsan Ahmad Khokhar, Legal Advisor with Asif Khan, Deputy Administrator ETPB for Respondents Nos. 1 to 3 (in Writ Petitions Nos.3344-R, 3099-R and 1531-R of 2023).

Muhammad Siddique Awan, Additional Attorney General for Pakistan and Tahir Raheel Awan Assistant Attorney General for Respondent No.4 (in Writ Petitions Nos.3344-R, 3099-R and 1531-R of 2023).

Muhammad Shahid Munir, Assistant Advocate General for Punjab for Respondents Nos.5 to 7 (in Writ Petition No.3344 of 2023).

Ch. Imran Hassan Ali, Amicus Curiae.

2024 C L C 437

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz, J

Mst. QAISRA ELAHI and another----Appellants

Versus

RETURNING OFFICERS and others----Respondents

Election Appeals Nos.87, 89, 90 and 91 of 2024, heard on 8th January, 2024.

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

----Ss.132 & 133---Election expenses---Exclusive bank account---Object---Separate account for election expenditure is the only way out for examining expenses incurred by a candidate during his campaign---Words "exclusive" and "dedication" towards opening of accounts further manifest the intention of Legislature aimed at keeping a watch over the wasteful election expenses.

(b) Interpretation of statutes---

----Rules of interpretation---Scope---Legal provision can be scanned through four rules of interpretation which are classified as literal rule, golden rule, mischief rule and purposive rule---If literal interpretation of a legal provision gives rise to an irrationality, the golden rule of interpretation can be used for ascertaining legislative intent to give it a practical effect.

Nadeem Sultan and another v. Hamza Shamim and 2 others PLD 2023 Lah. 334 rel.

(c) Words and phrases---

----Exclusive---Meaning.

Black's Law Dictionary Tenth Edition rel.

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

----Ss. 60 &62---Election dispute---Concealing of facts---Incorrect declaration of assets and foreign trips---Appellants / candidates were aggrieved of rejection of their nomination papers by Returning Officer---Validity---Lahore Modern Flour Mills (Pvt.) Limited was incorporated under Companies Ordinance, 1984, with Security and Exchange Commission of Pakistan on 16-12-2008 and appellant / candidate had about 49% of its shares---Appellant / candidate was legally obliged to mention his shares of Lahore Modern Flour Mills (Pvt.) Limited in his nomination papers but he omitted to do so---Appellant / candidate had four foreign trips, out of which three were of UAE and one of Turkey, which foreign trips were declared to have incurred a cost of Rs.1,501,450/- but in her Tax Returns for year 2023, she mentioned her total personal expenses as Rs.2,477,050/- out of which Rs.1,501,450/- were described as having been paid as electricity charges and Rs.975,600/- as household expenses---Appellant / candidate mentioned nothing about expenses incurred on her foreign tours in Tax Return for year 2023 nor described any source in such regard---Such omission gained significance when seen in the context that the information about the cost incurred on foreign trips was required to be submitted according to the Format of Declaration of Assets and Liabilities---High Court declined to interfere in the order passed by Returning Officer---Appeal was dismissed, in circumstances.

Habib Akram v. Federation of Pakistan through Ministry of Parliamentary Affairs, Islamabad and others PLD 2018 Lah. 641 and Speaker, National Assembly of Pakistan, Islamabad and others v. Habib Akram and others PLD 2018 SC 678 rel.

Sardar Abdul Raziq Khan for Appellants.

Hassan Raza Pasha for Respondents.

Tayyab Bilal Pakhral, Assistant Attorney General for Pakistan on Court's call.

Falak Sher Khokhar, Legal Consultant for ECP.

2024 C L C 462

[Lahore]

Before Asim Hafeez, J

Mst. SUGHRAN BIBI----Petitioner

Versus

ABDUL SATTAR and others----Respondents

Civil Revision No.2194 of 2011, decided on 30th December, 2022.

Contract Act (IX of 1872)---

----Ss.214 & 215----Specific Relief Act (I of 1877), Ss.42, 39 & 54---Transfer of Property Act (IV of 1882), S.54---Obligations of attorney---Principal's consent---Scope---Contract for sale---Suit for declaration and suit for specific performance of agreement to sell---Suit of the petitioner for declaration, claiming therein that her attorney/father through agreement to sell alienated her property without her permission, was dismissed and suit for specific performance filed by respondent on the basis of agreement to sell was decreed---Petitioner preferred an appeal against the dismissal of her suit, which was also dismissed---Validity---Attorney had to prove that transaction was not for his benefit, which material issue was not proved and instead it was established that suit property was sold in return of the services rendered by the respondent No.1, which convincingly proved that attorney sold suit property for his own benefit---Evidently the transaction carried out secured by attorney for his comfort, residence, food and care extended by the respondent No.1, which influenced the attorney and led to compromising his duties, responsibilities and obligations towards the principal---Advantages/ benefits drawn by the attorney, at the expense of the principal, were established---Said admitted facts constituted provisioning of tangible benefits and called for the necessity of prior permission from the principal---No evidence was led to prove that money allegedly received was paid to the principal---Attorney not even alleged such fact---Hence, requirements of Ss. 214 & 215 of the Contract Act, 1872, were not met---Both the Courts had failed to advert to that material question, which, if considered would have impacted the inferences drawn, found to be erroneous, irrational, where father would deprive his daughter of her property, almost 20 years after the execution of the power of attorney---Apparently, petty family disputes, where the daughter had not invited father to the wedding of her son, had estranged the father---Conduct of transaction with respondent No.1 was an outcome of personal anger/displeasure, which led to non-performance of obligations by the attorney---Said fact did not absolve attorney from performance of obligations as agent---Respondent No. 1 was privy to all that acrimony or bitterness and was aware that no permission was solicited from the principal---Respondent No.1 could not claim benefit of being a bona fide purchaser for value, who was actually a collaborator---Revision petition was allowed, in circumstances.

Muhammad Akbar Khan and others v. Atta Ullah Khan and 11 others 2009 YLR 1640 ref.

Fida Muhammad v. Pir Muhammad Khan (deceased) through legal heirs and others PLD 1985 SC 341; Haq Nawaz and others v. Banaras and others 2022 SCMR 1068; Muhammad Yasin and another v. Dost Muhammad through legal heirs and another PLD 2002 SC 71; Maqsood Ahmad and others v. Salman Ali PLD 2003 SC 31; Syed Atif Raza Shah v. Syed Fida Hussain Shah and another 2022 SCMR 1262; Mst. Shahnaz Akhtar and another v. Syed Ehsan ur Rehman and others 2022 SCMR 1398; Mst. Naila Kausar and another v. Sardar Muhammad bakhsh and others 2016 SCMR 1781 and Muhammad Akbar Khan and others v. Atta Ullah Khan and 11 others 2009 YLR 1640 rel.

Saqib Hussain Gujjar for Petitioner.

Malik Arshad Awan and Mohsin Hanif for Respondents.

2024 C L C 486

[Lahore]

Before Rasaal Hasan Syed, J

ISRAR HUSSAIN----Petitioner

Versus

IMTIAZ AHMAD SHEIKH and 2 others----Respondents

Writ Petition No.18754 of 2021, decided on 8th October 2021.

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

----Ss. 13, 15 & 19---Eviction of tenant---Default in payment of rent---Expiry of lease---Verbal extension in lease and deposit of additional security alleged by the tenant---Special Judge (Rent), inherent jurisdiction of---Scope---Application for the eviction of petitioner/tenant was allowed and appeal filed by him was dismissed---Contention of the petitioner /tenant was that respondent /landlord had not claimed eviction on the expiry of lease or default in payment of rent specifically, so eviction passed on said two counts was illegal---Validity---Lease agreement, in the present case, showed that amongst other grounds of its terms and conditions, the reasons on which the eviction could be solicited was the breach of terms and conditions of the rent agreement, and a request was made by the respondent /landlord before the Tribunal that the petitioner/ tenant be directed to handover the vacant possession of the rented premises---Relevant clause of the rent agreement showed that, the period of lease , from the date of commencement of tenancy, was 11 months which was renewable with mutual consent of the parties, and one of the other commitments made therein was to vacate the premises and deliver it to the landlord on the expiry of lease period which was obviously 11 months---The same (vacation on the expiry of lease ) was one of the obligations as provided under S. 13(1)(d) of the Punjab Rented Premises Act, 2009 (Act, 2009) whereas S.15(a) of the Act, 2009 provided for the right of eviction on the expiry of lease while S.15(d) of the Act, 2009 entailed eviction of tenant due to violation of an obligation under S.13---Even otherwise, no receipt or document was produced on record by the petitioner / tenant in support of his plea of payment of additional security nor any written agreement of renewal of tenancy was adduced---Lease agreement was, admittedly, unregistered which automatically lapsed on 11 months---Creation of lease or renewal thereof for more than one year could not be accepted without a registered document which was not the case in the present case---Record revealed that the Appellate Court took note of the fact that while admitting the appeal for regular hearing, it was directed that the petitioner should deposit monthly rent with annual increase on or before 10th of each month regularly but the petitioner deposited the rent after 10th of each month which was evident from the receipts ,and which was not only a violation of the agreement of tenancy but also the order of the Appellate Court---Petitioner / tenant could not avoid the consequences of default committed in payment of rent and the ground of violation of the tenancy agreement as well---It was thus obvious that the question pertaining to payment of rent was only considered for the purposes of observing the violation of the order of the court, the terms of agreement of tenancy and also the violation of law---Objection raised by the petitioner was, therefore, devoid of any legal substance---Considering the facts as they emerged on record, where the expiry of lease was evident, the Special Judge (Rent) had the inherent jurisdiction to mould the relief according to altered circumstances in the larger interest of justice---Both the Courts below had rightly passed eviction orders against the petitioner/tenant---Constitutional petition was dismissed, in circumstances.

Rana Abdul Hameed Talib v. Additional District Judge, Lahore and others PLD 2013 SC 775; Waqar Zafar Bakhtawari and 6 others v. Haji Mazhar Hussain Shah and others PLD 2018 SC 81; Habib Bank Limited v. Dr. Munawar Ali Siddiqui 1991 SCMR 1185; Government of Sind through Secretary and Director General, Excise and Taxation and another v. Muhammad Shafi and others PLD 2015 SC 380; Mirza Book Agency through Managing Partner and others v. Additional District Judge, Lahore and others 2013 SCMR 1520 and Mst. Amina Begum and others v. Mehar Ghulam Dastagir PLD 1978 SC 220 ref.

Muhammad Tahir Chaudhry for Petitioner.

M. Riaz Malik for Respondent No.1.

2024 C L C 513

[Lahore]

Before Shahid Jamil Khan, J

MAHNOOR SHABBIR----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.62482 of 2022, heard on 12th December, 2023.

Islamic law---

----Maintenance---Poor distant relative---Paternal uncle, obligation of---Scope---Petitioner lady sought recovery of maintenance allowance against her grandfather and after his death she incorporated her uncle as defendant on the plea of poor distant relative---Trial Court decreed the suit against respondent / uncle in view of provision of S.337 of Muhammdan Law by D.F. Mullah---Lower Appellate Court set aside decree passed by Family Court---Validity---D.F. Mulla's Muhammadan Law was just a text book, which could be referred or relied upon by Courts like any other text book---It was neither a statute nor a custom or usage and opinion of author of the book was not binding---High Court declined to interfere in findings given by Lower Appellate Court as the same were factual and based on S.373 of Muhammdan Law, holding that conditions of the section of that text book were not met---Petitioner lady could not establish before Lower Appellate Court that she would get inheritance from the estate of respondent/uncle on his death---Lower Appellate Court also determined that petitioner lady could not prove herself to be poor distant relative---Reasons for claiming maintenance from grandfather in absence of father were on different premises whereas claim of maintenance from a relative under S. 373 of Muhammadan Law was under different principles of Islamic jurisprudence---If suit was filed to claim maintenance from grandfather after death of father, paternal uncle could not have been replaced as defendant in the shoes of grandfather---High Court declined to interfere in judgment and decree passed by Lower Appellate Court---Constitutional petition was dismissed, in circumstances.

Messrs Najaat Welfare Foundation through General Secretary v Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and four others PLD 2021 FSC 1 rel.

Waqas Umer Sial, Ch. Muslim Abbas and Abbas Sheheryar Chaudri for Petitioner.

Nemo for Respondents.

2024 C L C 524

[Lahore]

Before Shahid Bilal Hassan, J

MUHAMMAD NAWAZ and others----Petitioners

Versus

PROVINCE OF PUNJAB through Additional Collector and others----Respondents

Civil Revision No.176407 of 2018, heard on 24th October, 2023.

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

----O.VI, R.17---Amendment of pleadings---Principle---Where defect can be remedied by allowing amendments, Court should liberally exercise such powers but within the parameters prescribed by O.VI, R.17, C.P.C.---While exercising such powers Court must identify defect and record its satisfaction that the defect is formal and does not go to root of the case.

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

----O.XXIII, Rr. 1 & 2---Limitation Act (IX of 1908), S. 3---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Withdrawal of suit---Filing of fresh suit---Principle---Limitation, principle of---Applicability---Suit filed earlier by petitioner / plaintiff was withdrawn with permission to file fresh suit---Subsequent suit filed by petitioner / plaintiff was rejected by Trial Court as well as by Lower Appellate Court as the same was barred by limitation---Validity---If permission was granted for filing a fresh suit under O. XXIII, R.1, C.P.C., then, pursuant to O. XXIII, R. 2, petitioner / plaintiff was bound by law of limitation in the same manner as if the first suit had not been filed---No fresh cause of action would accrue from the date when such permission was granted by the Court---Language used in S. 3 of Limitation Act, 1908 was mandatory in nature and had imposed duty upon Court to dismiss suit instituted after expiry of period provided unless plaintiff seeked exclusion of time by pleading in plaint one of the grounds provided in Ss. 4 to 25 of Limitation Act, 1908---High Court in exercise of revisional jurisdiction declined to interfere in judgments and decrees passed by two Courts below---Revision was dismissed, in circumstances.

Muhammad Saeed Bacha and another v. Late Badshah Amir and others 2011 SCMR 345; Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247; Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Ahsan Ali and others v. District Judge and others PLD 1969 SC 167; Asad Ali v. Bank of Punjab PLD 2020 SC 736; Ghulam Qadir v. Abdul Wadood PLD 2016 SC 712; Abdul Sattar v. Federation of Pakistan 2013 SCMR 911; Muhammad Islam v. Inspector-General of Police 2011 SCMR 8 and Muhammad Anwar (deceased) through L.Rs. and others v. Essa and others PLD 2022 SC 716 rel.

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

----S.5---Limitation---Delay, condoning of---Principle---Provision of S.5 of Limitation Act, 1908 vests Court with vast discretion of condoning delay in cases where Court is satisfied that application seeking condonation of delay discloses "sufficient cause" by accounting for each day of delay occasioned in filing application, appeal, review or revision.

Rana Muhammad Naeem Khan for Petitioners.

Muhammad Imran Bhatti for Respondents Nos.2(i) to 2(vi), 3 and 6.

Ansar Mehdi Qureshi for Respondent No.4.

Qamar Zaman Qureshi, Additional Advocate General Punjab.

2024 C L C 550

[Lahore]

Before Abid Aziz Sheikh, J

Mst. SANA ASLAM through Special Power of Attorney----Applicant

Versus

ALI IMRAN and 4 others----Respondents

Review Application No.18987 of 2022 in Writ Petition No.54935 of 2020, decided on 5th April, 2022.

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

----O.III, Rr.1, 2 & 4---Recognized agents---Right to audience---Scope---According to O.III, R.1, C.P.C., a recognized agent could appear, file applications or act in or to any Court on behalf of any party---Rule 2 of O.III C.P.C. referred to class of persons, who could be treated as recognized agents of parties, which included person holding power of attorney authorizing him to make and do such appearance, application and act on behalf of the parties---Words "appearance", "application" and "act" used in Rr.1 & 2 of O. III, C.P.C. are not defined therein---However, applying ordinary meaning to those words, the word "appear" means, to be present and to represent the party at various stages of litigation---Words "application" or "act" means necessary steps, which could be taken on behalf of the parties in the Court or in the offices of the Court in the course of litigation---However, the words "appearance", "application" and "act" under Rr. 1 & 2 do not include pleadings---Thus, the recognize agent is entitled to appear, file application and act for party but he is not entitled to plead in Court---Such right is only available to pleader under O. III, R. 4, C.P.C.---When right of pleading is not available to a recognized agent, it follows that he has no right of audience in Court, as such right is a natural and necessary concomitant of the right to plead.

Jogesh Chandra Mukherjee PLD 1953 Dacca 104; Abdul Wadud v. The State PLD 1964 Dacca 543 and Hari Om Rajender Kumar and others v. Chief Rationing Officer of Civil Supplies, A.P., Hyderabad 1990 AIR (A.P.) 340 rel.

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

----S.5, Sched.---Civil Procedure Code (V of 1908), S.114 & O.XLVII, R. 1---Review---Scope---In family matter, the Court vide consolidated judgment upheld the concurrent findings of the two Courts below and consequently dismissed writ petitions---Applicant being aggrieved had filed review application through her attorney---Validity---Though the Attorney of the applicant had no right of audience or to plead before High Court, however, High Court had carefully examined the contents of the review application---On merits it had been noted that High Court vide consolidated judgment dated 08.03.2022 held that claim of the applicant in the suit for recovery of dowry articles was that dowry articles were in the custody of the respondents---In written statement, the respondents claimed that as a result of settlement between the parties through agreement dated 11.06.2017, dowry articles were returned---Respondents also produced an agreement dated 11.06.2017---Applicant during cross-examination denied the said agreement, however, in her separate suit for dissolution of marriage, she herself produced agreement dated 11.06.2017 as additional evidence during the appeal to claim that no dower was paid at the time of marriage---In said document, it was also recorded that dowry articles were already received back and there was nothing due between the parties in that regard---Mere fact that the agreement dated 11.06.2017 was not the certified copy but copy of a document would not change the fate of the case, as in said document, it was recorded that dowry articles were received back with no claim outstanding in that regard---No doubt the agreement dated 11.06.2017, produced by applicant was not signed by her but under the principle of estoppel when she herself produced said agreement in support of her claim for dower, the other part of the same agreement could not be denied by her, which supported claim of respondent in agreement dated 11.06.2017, according to which dowry articles were returned and nothing was due between the parties in that behalf---Thus, there was no error apparent on the face of record to review the impugned judgment dated 08.03.2022---Review application being meritless was dismissed.

Saleem Khan, Special Attorney of Applicant in person.

2024 C L C 563

[Lahore]

Before Rasaal Hasan Syed, J

Rana KARAMAT----Petitioner

Versus

FARHAN HAIDER and 6 others----Respondents

Writ Petition No.53269 of 2021, decided on 10th May, 2022.

Civil Procedure Code (V of 1908)---

----O. IX, R. 7---Limitation Act (IX of 1908), Art. 181---Ex-parte proceeding, setting aside of---Limitation---Respondents instituted suit for declaration with permanent injunction against the petitioner, claiming ownership of two plots---Petitioner filed written statement wherein facts were controverted and counter legal and factual objections were raised---At the stage when the suit was fixed for evidence of respondents the petitioner was proceeded against ex-parte on 17.10.2019 and the case was adjourned for ex-parte statement and proof of respondents---Petitioner moved an application dated 13.02.2020 for setting aside ex parte proceedings, which was dismissed being time barred---Petitioner filed civil revision before Appellant Court, which too was dismissed---Validity---As regarding "sufficient reasons" for setting aside of the ex parte proceedings order, the courts below rightly observed that the petitioner did not prove the existence of any "good cause" to set aside the ex parte proceeding order. Plea taken was that the petitioner was seriously indisposed and could not appear in court on the fixed date---In law the petitioner was supposed to explain his own non-appearance as also the non-appearance of his counsel who used to represent him in the suit---If the petitioner was indisposed, his counsel could have appeared in the court and informed about the illness of petitioner---No explanation was given for the non-appearance of counsel, nor any medical certificate was produced to support the plea of illness or to prove the time during which he allegedly remained indisposed---Courts below had rightly observed that no "sufficient ground" was made out for setting aside the ex parte order---There was another aspect of the matter which was overlooked by the trial court as well the revisional Court---It was not a case in which an ex parte decree was passed against the petitioner; rather it was an instance in which ex parte proceedings order simpliciter had been made and the petitioner joined the proceedings at the stage of evidence by filing an application for setting aside of ex parte proceedings order against him---It has been consistently ruled that in case the defendant is proceeded against ex parte he/she cannot be deemed to be a dead person for future proceedings and in fact he/she can appear and join the proceedings from the stage at which he/she appeared in the suit---In case he/she does not apply for setting aside of ex parte proceeding order or if the ex parte proceeding order is not set aside, still she can join the proceedings from the stage of his/her appearance and if the case is at evidence stage, he/she could cross-examine the witnesses and produce own evidence in rebuttal---In the instant case it appeared that written statement had already come on record, the case was set up for respondents' evidence at which stage the petitioner was proceeded against ex parte and the case was adjourned for the ex parte evidence of respondents---It had not been argued or shown that any ex parte evidence was recorded in the absence of the petitioner and if it was so the petitioner having joined the proceedings, might cross-examine the witnesses---In the given circumstances, the petitioner would not be entitled to get the proceedings which were recorded in his absence set aside as he could not show any "sufficient cause"; but he would be entitled to join the proceedings from the stage he had appeared in the suit for setting aside of ex parte proceedings order and shall be entitled to cross-examine the witnesses of the opposite side if their statements had not been recorded by then and would also be entitled to produce his own evidence in defene---Petition was allowed in the above terms.

Ch. Muhammad Saeed Gujjar for Petitioner.

Ch. M. Naseer Gujjar for Respondents.

2024 C L C 577

[Lahore]

Before Muzamil Akhtar Shabir, J

Hafiz MUHAMMAD OWAIS----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Diary No.106921 of 2022 in Writ Petition No.Nil of 2022, decided on 20th July, 2022.

Civil Procedure Code (V of 1908)---

----Ss. 104, 115, O.XXXVII, R.1, 2, 4 & O. XLII, R.1---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Alternate remedy---Office objection---Petitioner / defendant was aggrieved of order passed by Trial Court setting aside ex-parte decree on the condition of submitting bank guarantee and surety bond---Petitioner / defendant assailed order of Trial Court in Constitutional petition but High Court office raised objection against maintainability of petition to avail alternate remedy---Validity---Order in question was not made appealable either under S. 104, C.P.C. nor the order amounted to a case decided to be revisable---Provision of S.115, C.P.C. provided that where appeal was not maintainable, revision would lie against decision of the case---For revision to be maintainable, finality was to be attached to the order assailed and the same was missing---Neither appeal nor revision was maintainable against interlocutory order requiring petitioner / defendant to deposit bank guarantee and surety bond for suspension of ex parte decree---Constitutional petition could be filed due to non-availability of equally efficacious alternate remedy and objection raised to avail appropriate remedy was misconceived---Office objection was over ruled, in circumstances.

Muhammad Khalil Ahmad v. Shabbir Ahmad 2013 CLC 1121 ref.

Abdul Razzak and others v. Muhammad Ajmal Khan PLD 2008 Lah. 491; Nestle Milkpak Limited v. Classic Needs Pakistan (Pvt.) Ltd. and 3 others 2006 SCMR 21 and Mian Muhammad Luqman and 5 others v. Farida Khanum and another 1994 SCMR 1991 rel.

2024 C L C 584

[Lahore]

Before Shams Mehmood Mirza, J

IMRAN AHMAD KHAN NIAZI----Petitioner

Versus

PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY and others----Respondents

Writ Petition No.32142 of 2023, decided on 4th January, 2024.

(a) Constitution of Pakistan---

----Arts. 17(2), 15, 16, 19 & 19A---Electronic Media (Programmes and Advertisements) Code of Conduct, 2015, Cls. 4(2), 4(7)(a) & 4(7)(b)---General Elections, 2024---Pre-election period---Coverage of candidates and political parties---Censorship of head of a political party on electronic media---Constitutionality---Informed citizenry, significance of---Ex-Prime Minister and former Chairman of one of the leading political parties was being censored on electronic media---Election processes must contribute to a level playing field in which all the political parties and the candidates feel enabled to communicate their message to the people through all the available medium of communication---If the parties and candidates in the run up to the elections are not provided free and fair entrée to the available public forums the resultant choice expressed by the people shall not fairly reflect the free formation of voter preference---Government has no right to prevent the media from covering certain candidates or political parties---Free and fair election requires freedom of speech, assembly, movement, and information through an independent media---Without these freedoms, no election can be called free, fair and democratic---High Court directed PEMRA to strictly ensure that the petitioner and candidates of all the political parties are given free and unrestricted access to media platforms/channels without any constraints from any quarter.

The issue raised in this petition of electronic media censorship of the petitioner, who is a ex-Prime Minister and former Chairman of one of the leading political parties, has assumed great significance as the general elections for the National Assembly and the four Provincial Assemblies are on the horizon. It is through the mechanism of elections that the people exercise their sovereign right to choose the agents who will hold and manage governmental power. The election thus ensures that the elected government reflects the will of the people. In as much as the adherence or otherwise to the electoral laws and the processes determine the extent to which the election results reflect the consent of the citizens, the elections and governmental legitimacy are closely connected. As the legitimacy of the elected representatives rests on peoples' choice, it is self-evident that they must be provided with best and accurate information about the candidates and political parties they are likely to make the choice from. In other words, any meaningful participation in democratic processes in the run up to the elections requires informed citizenry. Election processes must contribute to a level playing field in which all the political parties and the candidates feel enabled to communicate their message to the people through all the available medium of communication. The space and freedom available to a political party or its leader and the candidates in the pre-election period is, therefore, of paramount importance for the acceptability of a fair and free election.

The idea of a free and fair election assumes the existence of certain democratic norms underpinning the process which are required to be realized before an independent and neutral observer could make any conclusion thereto. These democratic norms and standards envision the citizens as holding the right and freedom to elect the legislators from a wide array of choices without any coercion and political engineering by the manipulative State institutions which may make attempts to narrow down the list of candidates. In order to make informed choices, the citizens must be able to access multiple sources of information. If the parties and candidates in the run up to the elections are not provided free and fair entrée to the available public forums the resultant choice expressed by the people shall not fairly reflect the free formation of voter preference.

Elections Without Democracy by Andreas Schedler, Journal of Democracy, John Hopkins University Press Volume 13 Number 2, April 2002 and The Rise of Election Monitoring What makes Election Free and Fair? by J Elklit and Palle Svensson, Journal of Democracy, John Hopkins University Press, Volume 8, Number 3, July 1997 ref.

Government or its instrumentalities in order to provide a conducive environment for holding free and fair elections cannot prevent the media from extending coverage to political parties or candidates. An independent and diverse media which is free from Government control and performing its functions in an objective manner in providing information to the people guarantees freedom of expression which is a fundamental right under the Constitution. The Government has no right to prevent the media from covering certain candidates or political parties. Similarly, the media platforms must be able to provide unconstrained access to candidates belonging to all political parties to transmit their opinions and manifestos to the public enabling them to make informed choices. Any restrictions on public rallies must be uniformly applied to all the candidates/political parties thereby ensuring consistent and impartial application of regulations.

Pakistan Electronic Media Regulatory Authority (PEMRA) being a regulator through its actions or inaction cannot deny to the people and the political parties the basic fundamental rights guaranteed to them by the Constitution i.e. freedom of speech (Article 19); freedom of assembly (Article 16); and, right to information (Article 19A).

The necessary pre-conditions of an election campaign which is both open and fair require an opportunity for all the candidates and their supporters belonging to whichever party to promote their manifesto, to have access to and hold meetings at the venue of their choice and to travel freely around the country. In short, a free and fair election requires freedom of speech, assembly, movement, information through an independent media. Without these freedoms, no election can be called free, fair and democratic.

(Briefing Paper 48, April 2014 Democracy Reporting International) ref.

Keeping in view the upcoming general elections, High Court directed PEMRA to strictly ensure that the petitioner and candidates of all the political parties are given free and unrestricted access to media platforms/channels without any constraints from any quarter.

(b) Constitution of Pakistan---

----Arts. 17(2), 15, 16 & 19---Political parties---Electoral rights and freedoms---Common election symbol, right to---Political party once formed under Art. 17 of the Constitution has available to it the other fundamental rights relating to freedom of speech, freedom of assembly, freedom of movement etc and the right to obtain a common election symbol which cannot be curtailed under any law except in the case of restrictions mentioned in Art. 17 of the Constitution---Electoral rights and guarantees by the Constitution are framed around the right to form and be a member of a political party and all the rights that are collaterally connected thereto including the individual right to vote and the right to stand as candidates in elections---Rights endowed to a political party thus not only include the right to form and function but also all the concomitant rights that those right entail----Rights that are collaterally attached to the right to form or be a member of a political party thus enjoy the same status as the fundamental right under Art. 17 itself---Any law that curtails those rights is a fortiori unconstitutional and void ab initio.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Benazir Bhutto and another v. Federation of Pakistan PLD 1989 SC 66 ref.

(c) Constitution of Pakistan---

----Art. 17(2)---Political parties---Right to freely contest elections---Election symbol, right to---Free media---Electoral guarantees the Constitution provides require the Court to interpret the electoral laws in a manner, even where diverse interpretations of a law are put forward, so as to uphold the right to freely contest the elections by a political party and its candidates under the banner of the political party and on its symbol and in an arena where multiple forums of media freely operate without government constraints.

Barrister Ahmad Pansota for Petitioner.

Barrister Haroon Dugal, Fatima Zahid and Sheikh Nadeem Arshad for Respondent/PEMRA.

Waqas Ahmad Mir and Anas Irtiza Awan for Respondents Nos.2, 3, 5, 6, 7, 8, 10, 11, 16, 18, 19 and 20.

Umair Ahmad and Haris Irfan for Respondents Nos.12 and 15.

Umar Khatab Deputy Director Legal PEMRA.

2024 C L C 597

[Lahore]

Before Shams Mehmood Mirza, J

MUSLIM COMMERCIAL BANK LIMITED and others----Petitioners

Versus

The PROVINCE OF PUNJAB and others----Respondents

Writ Petition No.366 of 2022, heard on 20th October, 2023.

(a) Interpretation of statutes---

----Federal and Provincial statutes---Conflict between---In case of conflict between federal and provincial law on same subject, the federal law overrides the provincial law or the part of provincial law that is inconsistent with it.

(b) Parks and Horticulture Authority Act (XLVII of 2012)---

----S.12(8)---Companies Act (XIX of 2017), S.22(a)---Financial institutions and other companies---Bill boards and sign boards---Charging of fee---Petitioner companies were aggrieved of notice of demand issued by respondent Authority to recover fee for installing their bill boards, sky boards and advertisements---Validity---Notices in question delivered to petitioners by Parks and Horticulture Authority did not contain specific particulars regarding nature of product which was advertised and the date, time and place it was installed / erected---Such generic notices were vague and simply mentioned various categories of outdoor advertisements directing petitioners to pay fee---Due process requirements would be fulfilled after it had afforded opportunity to petitioners to respond to such notices by taking any and all objections available to them for assailed levy of advertisement fee---High Court set aside notices issued to petitioner companies and directed Parks and Horticulture Authority that if fresh notices were to be issued, directions given by High Court in Writ Petition No.208309 of 2018 titled Meezan Bank Limited and others v. The Province of Punjab should be followed---Constitutional petition was allowed accordingly.

The Bank of Khyber v. Municipal Corporation Gujrat PLD 2021 Lah. 108 distinguished.

Meezan Bank Limited and others v. The Province of Punjab and others (Writ Petition No.208309 of 2018) fol.

Soneri Bank Limited v. Province of Punjab and others PLJ 2020 Lah. 239; Government of Pakistan and others v. Messrs Hashwani Hotel Limited PLD 1990 SC 68; Ameer Nawaz Khan Niazi and another v. Member Board of Revenue Punjab, Lahore and others 2015 CLC 439 and Commissioner Inland Revenue v. MCB Bank Limited 2021 SCMR 1325 rel.

Abdul Muqtadir Khan for Petitioners (in the present Writ Petition and in Crl. Org. No.53313 of 2023).

Abad ur Rehman for Petitioners (in W.P. Nos. 40071 of 2022 and 40569 of 2023).

Muhammad Yousaf Chudhary-I and Samra Malik for Petitioners (in W.Ps. Nos.41185 of 2021, 34969 of 2022,35919 of 2021, 48563 of 2022, 48455 of 2022, 24634 of 2021, 22719 of 2021, 58394 of 2021, 8995 of 2022, Cr. Org. No.52719 of 2022, Cr. Org. No.8972 of 2022, Cr. Org. No.18140 of 2023, Cr. Org. No.18124 of 2023).

Shezada Mazhar and Rizwan Rasool for Petitioners (in W.P. No.48733 of 2021, 19400 of 2021, 31310 of 2022, 22755 of 2022, 21886 of 2022).

Mian Asghar Ali for Petitioner (in W.P. No.47699 of 2021).

Zeeshan Hussain Adil and Haider Ali Khan for Petitioners (in W.Ps. Nos.47243 of 2021, 64348 of 2021, Cr. Org. No.76877 of 2021, Cr. Org. No.46878 of 2020).

Kashif Ali Chaudhary and Usman Haider Toor for Petitioners (In W.P. No.33403 of 2022, 65585 of 2020, 25050, 28552 and 26425 of 2022).

Muhammad Asif Ismail for Petitioners (in W.P. No.67304 of 2021, 1881 of 2021, 34303 of 2019, 36182 of 2019, 32901 of 2020, 17224 of 2020, 34304-D of 2019, Cr. Org. No.7049 of 2021).

Usman Ejaz Malik for Petitioners (in W.P. Nos.28864 of 2021 and 34979 of 2022).

Sajjad Haider Rizvi for Petitioner (in W.P. No.48798 of 2021, Cr. Org. No.74982 of 2021).

Ehsan Ahmad Munir for Petitioner (in W.P. No.45285 of 2021, 20222 of 2023, 34204 of 2023).

Muhammad Mustafa Khalid and Muhammad Gul Nawaz for Petitioners (in W.P. No.67386 of 2021).

Syed Hoor Ali Shah for Petitioner (in W.P. No.76002 of 2021).

Abdur Rehman Bajwa for Petitioners (in W.P. No.40569, 27784, 27533, 12304, 75280 of 2020, 40530 and 62923 of 2021, 56061 of 2022 and Crl. Org. No.30097 of 2023).

Syed Sajid Ali Shah Bokhari for Petitioners (in W.P. No.65261 of 2023, 4675 of 2021, 60784 of 2021, 16705 of 2022, 24515 of 2022).

Rai Ali Shan Marth for Petitioner (in W.P. No.51800 of 2023).

Muhammad Yousaf Sabir Chohan for Petitioner (in W.P. No.48715 of 2022).

Ahmad Khamal Khan for Petitioner (in W.P. No.1599 of 2016).

Ashar Elahi and Usman Nawaz Butt for Petitioner (in W.P. No.5536 of 2021).

Akhtar Hussain Bhatti for Petitioner (in W.P. No.33456 of 2020).

Reza ur Rehman Asad for Petitioner (in W.P. No.65261 of 2023).

Haris Azmat, Waqar A. Sheikh, Barrister Hamza Amjad for the Respondent/PHA.

Ali Imran Bhutta for Advertisement Contractor PHA Faisalabad, Gujranwala and Multan.

Ms. Shazia Khakil Advocate for Respondent No.5.

Ms. Sana Iqbal (in W.P.No.18881, 62987 of 2021 and 13310 of 2022 for PHA Gujranwala).

2024 C L C 615

[Lahore]

Before Jawad Hassan, J

Ch. UMER AFTAB DHILLU and another----Petitioners

Versus

ELECTION COMMISSION OF PAKISTAN and 5 others----Respondents

Writ Petition No.287 of 2024, heard on 3rd January, 2024.

(a) Constitution of Pakistan---

----Art..17---Freedom of association---Principle---Fundamental right of freedom of association under Art. 17 of the Constitution is subject to reasonable restrictions imposed by law.

Suo Motu Case No.7 of 2017 (PLD 2019 SC 318) rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Vires of law---Interim relief---Principle---When vires of law is challenged interim relief cannot be granted.

Dr. Mubashir Hassan and others v. Federation of Pakistan and others PLD 2008 SC 80; Federation of Pakistan v. Aitzaz Ahsan and another PLD 1989 SC 61; Azee Securities (Pvt.) Ltd. through Authorized Officer v. Federation of Pakistan through Secretary of Finance, Revenue Division and 3 others 2019 PTD 903 and Chempak (Pvt.) Limited and another v. Sindh Employees' Social Security Institution (SESSI) and another 2003 PLC 380 rel.

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

----Ss.202, 206, 209, 210 & 215(5)---Constitution of Pakistan, Art.199---Constitutional petition---Election symbol---Party affiliation---Administration of justice---Pendency of matter before other Courts---Petitioners were aggrieved of non-allotting of one election symbol to candidates claiming to be from one political party---Validity---Order in question had already been suspended by another Court of competent jurisdiction wherein all major stakeholders were party to the proceedings---High Court declined to take up such matter which had already been suspended by another Court of competent jurisdiction as the same would be against judicial propriety having potential to result in conflicting judgments on particular matter---Same matter had already been assailed before another Bench of High Court and judgment was reserved therein while the case was also fixed for regular hearing before Division Bench of same High Court---Order passed by High Court in another province could only be implemented by that High Court---High Court declined to implement / execute judgment passed by High Court of another province---Constitutional petition was dismissed, in circumstances.

Supreme Court Bar Association of Pakistan through its Secretary, Islamabad and others v. Federation of Pakistan through Secretary, Cabinet Division, Islamabad and others PLD 2024 SC 1; Election Commission of Pakistan through its Secretary, Islamabad and another v. Barrister Umair Khan Niazi and others (Civil Petition No.4365 of 2023); Gul Khan and others v. Saeed ur Rehman and others 2023 SCP 394; Gohar Ali Khan v. Federation of Pakistan and others (Constitutional Petition No.47/2023); Mubashir Javed and others v. Province of Punjab and others PLD 2022 Lah. 817 and Water and Sanitation Agency, Lahore through M.D. v. Lottee Akhtar Beverages (Pvt.) Ltd. Lahore and others and 2019 SCMR 1146 ref.

Asif Saleem v. Chairman BOG University of Lahore and others" 2019 PLD Lah. 407 rel.

Muhammad Wasim Sandhu along with for Petitioner No.2. Bilal Nazir Cheema, in person.

Asad Ali Bajwa, Deputy Attorney General for Pakistan with Ijaz Rehmat Basra, Assistant Attorney General for Federation of Pakistan.

Khurram Shehzad Chughtai, Assistant Advocate General for Respondent No.4/Government of Punjab.

2024 C L C 630

[Lahore]

Before Anwaar Hussain, J

Mst. KANEEZ BATOOL----Petitioner

Versus

ALLAH BUKHSH and another----Respondents

Civil Revision No.40110 of 2022, heard on 16th March, 2023.

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), S. 47---Suit for recovery of possession---Execution proceedings, objection to---Respondents / judgment debtors filed objection against execution proceedings on the ground that they had become co-sharers in suit property---Executing Court dismissed the objection but Lower Appellate Court allowed the same---Validity---By leading credible evidence, petitioner / decree holder validly proved her entitlement in respect of property in dispute clearly described in plaint and falling in a particular Khata/Khewat---Petitioner / decree holder proved unlawful occupation thereof by respondents/judgment debtors and such findings were upheld by Lower Appellate Court as well as High Court---Such findings during trial could not be brushed aside in execution proceedings as Executing Court could not go beyond the decree---Petitioner / decree holder could not be compelled to approach relevant forum for partition of joint Khata/Khewaton the basis of changed circumstances---Suit property was purchased by respondents/judgment debtors through registered document and the same would amount to adding to agony of a litigant/decree holder who successfully proved her title against an illegal occupant, i.e., respondents/judgment debtors---Respondents / judgment debtors, after purchase of some share/property through registered sale deed in joint Khata/Khewat, stepped into the shoes of vendor---Even if the vendor was acknowledged as co-sharer in Khata/Khewat, he could not transfer a better title then he himself had---Vendor or his mother were not in possession of suit property when the suit was instituted by petitioner / decree holder or even subsequent thereto---High Court set aside the order passed by Lower Appellate Court and that of Lower Appellate Court was restored---Revision was allowed, in circumstances.

Allah Ditta v. Ahmed Ali Shah and others 2003 SCMR 1202; Abdul Ghani v. Ghulam Abbas Tamanna and others 2015 CLC 89; Muhammad Aslam (Through his L.R.) v. Wazir Muhammad PLD 1985 SC 46 and Dilshad Begum v. Mst. Nisar Akhtar 2012 SCMR 1106 ref.

Nazir Ahmed v. Mst. Sardar Bibi and others 1989 SCMR 913; Ramdas v. Sitabai and others (2009) 7 SCC 444 and Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192 rel.

Muhammad Yasrab Hunjra for Petitioner.

Ch. Rab Nawaz for Respondents.

2024 C L C 648

[Lahore]

Before Rasaal Hasan Syed, J

MUHAMMAD YAQOOB----Petitioner

Versus

MUHAMMAD ASHIQ----Respondent

Civil Revision No.29162 of 2019, decided on 21st April, 2022.

Civil Procedure Code (V of 1908)---

----O. IX, R. 13---Ex-parte decree---Setting aside of---Limitation---Petitioner/defendant was proceeded ex-parte and suit filed by respondent/plaintiff was decreed---In appeal Trial Court order declining the application under O.IX, R.13, C.P.C., was set aside, and resultantly, the ex-parte proceedings order and also the ex-parte decree were set-aside---Validity---Record showed that the order of the Trial Court dismissing the application under O.IX, R.13, C.P.C., was on the face of it legally untenable inasmuch as without framing any issue, recording any evidence or adopting proper procedure the application was straight away dismissed as serious factual controversy was raised as to the service of notice as according to the respondent he was never served by any process by the Transferee Court and that the ex-parte proceedings order was legally unsustainable---Where the service was disputed the person claiming service needed to prove the same through affirmative evidence, more particularly by producing the process server which exercise was never done in the present case---Order-sheet also indicated that the ordinary requirements of law and the procedure prescribed in Rr.16 to 19 of O.V, C.P.C. were never strictly followed---Trial Court did not record any statement of the process server to satisfy as to how and in what manner the service was effected, upon whom the service was made and as to whether there was any plausible reason for the process server to deliver a notice to a third person instead of the party himself, rather than making repeated efforts by visiting the house of defendant to procure his personal service and whether in the given circumstances it could be considered to be a case of due diligence on the part of process server as required in law---As per order sheet, the trial Court had fixed the case for arguments on the application for stay of the execution and for that purpose the case was adjourned from 12.10.2018 to 26.10.2018, 22.11.2018 and 24.11.2018; on which dates instead of confining his order to the stay matter the trial Court firstly dismissed the main application under O.IX, R.12, C.P.C., and thereafter, dismissed the stay application with the observation that it could not proceed because of the dismissal of main application, which was not fixed for arguments nor any evidence was recorded----Thus, Trial Court committed a serious error of jurisdiction in law in dismissing the same---Respondent after acquiring knowledge of the attachment of property, immediately moved the application for setting of ex-parte decree, which was within time from the date of knowledge---In the given circumstances, the view taken by Appellate Court was correct that the application was within time and that there were sufficient reasons for decision of suit on merits and that technicalities ought not be allowed to prevent the Courts from doing justice by giving fair and proper opportunity of evidence to the parties---Order passed by the Appellate Court being in accordance with law did not call for any interference---Petition being without substance was dismissed, in circumstances.

Siraj Din v. Mst. Iqbal Begum PLD 1968 Lah. 639 and Syed Muhammad Anwar Advocate v. Sh. Abdul Haq 1985 SCMR 1228 rel

Rai Imran Khan for Petitioner.

Rao Hamid Hussain Khan for Respondent.

2024 C L C 664

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

MUHAMMAD YOUSAF ZAHEER----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.61 of 2021, heard on 28th September, 2023.

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

----S. 13---Civil Procedure Code (V of 1908), O.XXI---Enforcement of family decree---Execution petition---Attachment of immoveable properties vehicle(s)/car(s) owned by the judgment-debtor---Auction proceedings---Mode and procedure---Scope---When car was not found for attachment, the petitioner was directed by the Executing Court to produce said vehicle, failing which, Robkar was directed to be issued to the concerned In-charge Anti-Car Lifting Cell for locating whereabouts of said car and to take over possession thereof---Later, not only concerned SHO was directed to produce said car, but warrants of attachment of another owned car were also issued---Petitioner / judgment-debtor agitated the mode and procedure adopted by the Executing Court for satisfaction of the decree---Validity---Section 13 of the Family Courts Act, 1964, deals with enforcement of decree passed by the Family Court---Family Court and the Civil Court are at the same pedestal for the purpose of execution of decree, so in that capacity a "Family" or "Civil" Court enjoys all powers of the executing court vested in Part II as well as O.XXI of the Civil Procedure Code, 1908---Petitioner by his own conduct, was delaying the satisfaction of the decree to deprive his ex-wife and his kids of the fruits of the decree---Executing Court was justified to pass the orders which were rightly maintained by the Appellate Court---Constitutional petition was dismissed, in circumstances.

Amjad Iqbal v. Mst. Nida Sohail and others 2015 SCMR 128; Mst. Amman Gul v. Judge Family Court, Rawalpindi and 2 others 2023 CLC 1300 and Muhammad Amin v. Judge, Family Court, Sahiwal and 3 others 2015 YLR 316 ref.

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

----S.13---Civil Procedure Code (V of 1908), O.XXI---Enforcement of family decree---Execution petition---Attachment of immoveable properties vehicle(s)/car(s) owned by the judgment-debtor---Auction proceedings---Mode and procedure---Conduct of the judgment-debtor---Relevance---When car was not found for attachment, the petitioner was directed to produce said vehicle, failing which, Robkar was directed by the Executing Court to be issued to the concerned In-charge Anti Car Lifting Cell for locating whereabouts of said car and to take over possession thereof---Later, not only concerned SHO was directed to produce said car, but warrants of attachment of another owned car were also issued---Petitioner / judgment-debtor agitated the mode and procedure adopted by the Executing Court for satisfaction of the decree---Validity---Conduct of the petitioner was very much relevant in the controversy in hand---Decree involved maintenance allowance of petitioner's own kids and pertained to the year 2012 but he had not bothered to satisfy the same on his own, rather he had been consistenly made efforts to frustrate execution proceedings to avoid satisfaction thereof---Petitioner time and again choose to set in field tactics to handicap proceedings conducted for auction of his immoveable property and had not even hesitated to put up every effort for bringing even custody of his attached vehicles in absolute disguise---Thereafter, the Executing Court initiated process for attachment and auction of his aforementioned immoveable property and vehicles---Said circumstances existing in the present case lead to an irresistible conclusion that the petitioner was capable of satisfying the subject decree, but he deliberately and intentionally was avoiding to do so, forcing even his own kids to starve---Person showing such a callous attitude, in particular, towards discharge of his parental obligation was not entitled for any discretionary relief and so was the case with a person who himself was not ready to follow and comply with the law---Executing Court was justified to pass the orders which were rightly maintained by the Appellate Court---Constitutional petition was dismissed, in circumstances.

Muhammad Arif v. Uzma Afzal and others 2011 SCMR 374 ref.

Mian Muhammad Salman Idrees for Petitioner.

Abid Hussain Kiyani for Respondent No.1.

2024 C L C 682

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

SAMINA NAZ and 5 others----Petitioners

Versus

EVACUEE TRUST PROPERTIES BOARD through Administrator Northern Zone, Evacuee Trust Properties Board, 7th Road, Rawalpindi and another----Respondents

Writ Petition No.2826-R of 2022, heard on 11th October, 2023.

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----S. 25---Scheme for Management and Disposal of Urban Evacuee Trust Properties, 1977, Chapter VI-A, Cl. 18-A(5)---Constitution of Pakistan, Art. 199---Constitutional petition---Evacuee property, status of---Recovery of possession---Building structure---Entitlement structure vests in the Board---Petitioners after remaining unsuccessful till Supreme Court assailed act of recovery of possession of "subject property" by respondent Board---Validity---Petitioners could not take refuge under the doctrine of election to protect their possession, which was not only unauthorized but illegal---Petitioners being not entitled for superstructure built upon "subject property", as in terms of Cl. 18-A(5) Chapter VI-A of Scheme for Management and Disposal of Urban Evacuee Trust Properties, 1977, structure raised on evacuee trust property vested in respondent Board---Petitioners after being unsuccessful in first round arising from civil suit had devised mechanism to protect their illegal and unauthorized possession upon "subject property" by filing a Constitutional petition---Petitioners did not have any right in "subject property" and filing of Constitutional petition was nothing but to thwart and circumvent process of law---Constitutional jurisdiction was not meant to provide aid to a party, who was adamant to grab property of State---On account of unauthorized possession, petitioners had already earned a lot of money through rent received from tenants of shops constructed on "subject property"---High Court declined to interfere in matter as it was not only frivolous but vexatious---Constitutional petition was dismissed, in circumstances.

Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others PLD 2018 SC 828; Liaqat Ali Khan and 10 others v. Chief Settlement Commissioner, Member (Judicial-V) and 6 others 2021 YLR 349; Irfan Ullah Khan v. Province of the Punjab and others 2020 CLC 594 and Atif Riaz v. Federation of Pakistan through Secretary Ministry of Religious Affairs, Islamabad and 6 others PLD 2023 Lah. 536 ref.

Arshad Ali and 3 others v. Sartaj and 8 others 2016 YLR 127; Anjum and 2 others v. Mst. Sufaidan and 3 others PLD 1989 Lah. 103; Mst. Hussain Bibi v. Siraj Din PLD 1998 Lah. 548; Muhammad Latif v. Bashir Ahmad and 7 others 2004 CLC 1010 and Ali Ahmad and another v. Muhammad Fazal and another 1972 SCMR 322 rel.

Mujeeb ur Rehman Kiani for Petitioners.

Muhammad Siddique Awan, Additional Attorney General for Pakistan, Hafiz Ahsan Ahmed Khokhar, Sh. Iftikhar Ahmad and Syed Najam ul Hassan Hashmi, Advocates/Legal Advisors for Respondent No.1.

Nemo for Respondents No.2.

2024 C L C 699

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

FAZAL KARIM and 2 others----Petitioners

Versus

MEHBOOB KHAN (Deceased) through his Legal Heirs----Respondent

Civil Revision No.212-D of 2018, decided on 31st March, 2023.

Specific Relief Act (I of 1877)---

----Ss.54 & 19---Civil Procedure Code (V of 1908) , O. VII, R. 11---Suit for permanent injunction filed by co-owner / co-sharer of suit-property---Maintainability---Whether a suit for injunction simpliciter inter-se co-sharers/co-owners was proceedable or otherwise---Civil Court dismissed the suit instituted by petitioners by invoking the provisions of O. VII, R. 11 of the Civil Procedure Code, 1908 and the Appellate Court affirmed the said order---Validity---Question was as to whether a co-sharer/ co-owner could institute a suit for injunction for the protection of his rights without seeking partition---Every co-sharer/co-owner was owner in each and every inch of the joint property until it was partitioned by metes and bounds---Co-sharer/co-owner could not change the nature of the joint property or raise construction without consent of the other co-sharers/co-owners---If a co-sharer was dispossessed from the joint property in his/her possession by any other co-sharer, the remedy lay for regaining his/her possession either in a suit under S.9 of the Specific Relief Act, 1877, or by way of a suit for partition---Matter, however, would become different in a case when a co-sharer intended to change the nature of the joint holding or threatened the other co-sharers to divest them from their right in the joint property as co-owner; in such a case, such co-owner could institute a suit for injunction restraining the former from changing the nature of the joint land or raising any construction upon the same---In the said eventuality, it was for the former to first of all get the joint land partitioned---In the present case, as such the Trial Court as well as the Appellate Court had erred in law while dismissing the suit being not maintainable and barred by law---High Court set-aside impugned orders passed by both the Courts below and remanded the case before the Civil Court for its adjudication on merits---Revision was allowed, in circumstances.

Ali Gohar Khan v. Sher Ayaz and others 1989 SCMR 130; Muhammad Rafiq and others v. Sardar and others 2004 SCMR 1036; Ashiq Hussain v. Prof. Muhammad Aslam and 9 others 2004 MLD 1844; Mst. Roshan Ara Begum and 8 others v. Muhammad Banaras and another 2016 YLR 1300 and Fazal and others v. Ghulam Muhammad and others 2003 SCMR 999 ref.

Sardar Asmat Ullah Khan for Petitioners.

Mirza Saqlain Abid for Respondents.

2024 C L C 716

[Lahore]

Before Abid Hussain Chattha, J

Rana ABDUL BASIT KHAN----Petitioner

Versus

PROVINCE OF PUNJAB and 3 others----Respondents

Writ Petition No.81071 of 2022, heard on 27th December, 2022.

Punjab Foodstuffs (Control) Act (XX of 1958)---

----S. 3---Constitution of Pakistan, Arts. 18 & 25---Notification No. SO (F-1) 3-46/2020(W.E) dated 19.05.2022, Cl. VII---Vires of---New flour mill(s) , rights of---Supply of wheat stock to flour mills, regulation of---Discrimination---Notification No. SO (F-1) 3-46/2020 (W.E) dated 19.05.2022 was issued purportedly (‘the Notification’) to ensure uninterrupted supply of wheat to flour mills and to stabilize its price in the market---Clause VII of the Notification stated that no new flour mill getting a license during the current release season shall be issued wheat from public stock for the purpose of grinding---Petitioners were flour mills owners who contended that the Cl. VII of the Notification was beyond the powers conferred under S.3 of the Punjab Foodstuffs (Control) Act, 1958 (‘the Act 1958’) and the restriction contained therein offended Arts. 8, 18 & 25 of the Constitution---Validity---Notification-in-question was primarily issued to ensure uninterrupted supply of wheat stock to the flour mills in order to stabilize the prices of flour in the market---Mandatory condition prescribed in this behalf was that wheat could be supplied to the approved functional flour mills having valid food-grains license---Said mandatory condition was fulfilled by the Petitioners---Grinding capacity had been duly determined by the department as per prescribed standard operating procedures---Clause IV of the policy contained in the Notification-in-question unequivocally stipulated that the Policy was subject to review after a period of one month, which indicated the need for periodic adjustment to cater the ever-changing market conditions---In said context, the only justification of imposing the impugned restriction appeared to be the convenience of the Department so that it might not have to frequently redistribute wheat quotas amongst the eligible flour mills---By doing so, the department had created two distinct classes of flour mills in terms of existing flour mills and newly established flour mills although both types of flour mills were otherwise eligible to receive the wheat quotas from public stock from the department in terms of their functionality and licenses---Thus, newly established flour mills as a class had been discriminated vis-a-vis the existing flour mills without any rational or intelligible criteria that could withstand the test of permissible classifications in terms of Art. 25 of the Constitution---Though the department had the right to regulate the release of wheat from public stock under Art. 18 of the Constitution and the provisions of the Act, 1958 but at the same time, the power to regulate was subject to law and structured discretion which in turn must be just, equitable and transparent---Impugned restriction contained in Cl. VII of the Notification prohibiting the supply of wheat to newly functional mills having valid licenses granted by the Food Department was unreasonable, arbitrary and capricious and was not based on any intelligible criteria, which did not withstand the test of structured discretion and therefore, in order to correct the legality in procedural impropriety, in exercise of judicial review, Cl. VII of the Notification was struck down and was declared as unconstitutional and unlawful---Constitutional petitions were allowed, in circumstances.

Government of N.W.F.P. through Secretary and 3 others v. Mejee Flour and General Mills (Pvt.) Ltd., Mardan and others 1997 SCMR 1804; Director Food, N.-W.F.P. and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1; Ibrahim Flour and General Mills, District Sheikhupura through Chief Executive v. Government of Punjab through Secretary to the Government of the Punjab, Food Department, Lahore and another PLD 2008 Lah. 184 and Messrs Ibrar Flour Mills (Pvt.) Ltd., Multan through Chief Executive v. Province of Punjab through Secretary to Government of Punjab, Food Department, Lahore and 3 others 1997 MLD 2184 ref.

Sardar Akbar Ali Dogar for Petitioner.

Barrister Lehrasip Hayat Dahar, Assistant Advocate General for Respondents.

Date of hearing: 27th December, 2022.

2024 C L C 744

[Lahore]

Before Ali Baqar Najafi, J

MUHAMMAD AZHAR SIDDIQUE and others----Petitioners

Versus

FEDERATION OF PAKISTAN and others----Respondents

Writ Petition No.50725 of 2002 (and others connected petitions), decided on 6th February, 2023.

(a) Interpretation of statutes---

----Proviso---Scope---Proviso is intended to qualify main part of the provision and cannot carve out an exception from the same---Such provision does not operate independently.

Collector of Customs Appraisement, Collectorate, Customs House, Karachi v. Messrs Gul Rehman, Proprietor Messrs G. Kin Enterprises, Ghazali Street, Nasir Road, Sialkot 2017 SCMR 339 rel.

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

----O. XXVII---Notice to Authorities---Principle---When neither any legislative provision is under challenge nor interpretation of any constitutional provision is sought from High Court, then there is no legal justification for such notice.

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

----Ss. 3 & 31---[Constitution (Eighteenth Amendment) Act (X of 2010)]---National Electric Power Regulatory Authority---Object, purpose and scope---Provincial autonomy---Under 18th Amendment of the Constitution, the Provinces have been given authority in the field of Electricity Generation to adopt different modes and maintain their independence at different levels---Such platform is the NEPRA constituted in S. 3 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, under which each province has to nominate one member to make it fully functional---Purpose is to provide opportunity to the federating units to sit and discuss on the issue and to evolve a policy with a participatory approval if not on consensus---Such unity in decision not only increases confidence of citizens of the country living in their respective provinces but also strengthens the Federation to determine and collect tariff with power and confidence---There is necessity of full strength of NEPRA---In determination, modification or revisions of rates, charges and other terms and conditions for the provision of electric power services, the Authority is guided by National Electricity Policy, the National Electricity Plan and such guidelines as may be issued by Federal Government in order to give effect to National Electricity Policy and National Electric Plan.

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

----S. 3---Constitution of Pakistan, Arts. 184 (3) & 199---Fuel Cost Component and Fuel Cost Adjustment---Judicial review---Scope---Judicial review is conferred only upon High Courts and Supreme Court by virtue of the Constitution---Special Tribunals constituted to settle different matters between governmental departments do not have authority to exercise such power---Unfair regulations, bad workings and illegal / irregular proceedings of NEPRA and other Government institutions can be challenged before High Court also on the basis of mala fide---Process, methodology, assessment, observations, calculations of Fuel Cost Component (FCC) and claim of Fuel Cost Adjustment (FCA) in electricity bills which has been carried out without observance of procedure required by law deserve attention of High Court.

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

----Ss. 3 & 31---Constitution of Pakistan, Art. 199---Constitutional petition---National Electric Power Regulatory Authority---Fuel Cost Component and Fuel Cost Adjustment---Principle---Circular debts---Reasons and causes---Petitioners assailed imposition of Fuel Price Adjustment and Quarter Tariff Adjustment---Validity---Tariff structure in Pakistan is not based on regional and consumer-specific long-run marginal costs---As such it is used as an instrument to achieve political and socio-economic objectives---Instead of regulating DISCOs, the burden is transferred to consumers---In NEPRA there is an abundance of lack of interest to fix the problem also due to engraved inadequate capabilities that do not match with the role of a good regulator---Regulator makes serious effort to minimize, if not eliminate, inefficiencies in public sector generation (GENCOs) and distribution companies (DISCOs)---Performance of GENCOs remained lacking in terms of all Key Performance Indicators (KPI) for the past many years---GENCOs are running below their net available capacities because desired maintenance and scheduled outages over the years (as per standard industry practices) are not in place---Lack of maintenance has increased their cost of generation---Such power plants have not only poor operational results, but also workforce, which is already on higher side on a per MW basis, and remained idle due to their closure and non-operation, contributing towards higher cost of generation---Framework of Economic Growth by PIDE (2020) reports a loss of Rs.251.6 billions due to inefficiency in public sector generation companies---National Electric Power Regulatory Authority’s job as a regulator was to resolve all power sector problems, including system losses, rising costs, high tariffs, and generation capacity challenges---Outcome of regulatory oversight is that the circular debt emerged for the first time in 2006, since then, it has been there and rising---National Electric Power Regulatory Authority has not done anything to control this debt from rising in so many years---Increasing costs of generation and sector inefficiencies, anomalies in tariff methods and delays in tariff determinations are responsible for circular debt issue---If NEPRA had played an effective role, the power sector scenario could have been different---Overall assessment of NEPRA regulatory performance and its effectiveness indicates that its de jure performance is high; a regulatory system having many necessary requirements for power sector---However, de facto performance highlights a significantly poor regulatory functioning in practice---Regulatory reform required to transition towards competitive market has historically been resisted in Pakistan---National Electric Power Regulatory Authority, an autonomous organization (by law), has not made serious efforts to improve regulatory infrastructure in power sector---National Electric Power Regulatory Authority has been unsuccessful in developing and pursuing regulatory framework to guarantee reliable, efficient, and affordable electricity---Effective regulation creates a balance in the interests of all stakeholders---When investors achieve fair returns, consumers receive quality service, and governments are not allowed political exploitation---National Electric Power Regulatory Authority failed in creating such balance---Only institutional capacity of a regulator can ensure that all its’ regulatory decisions and requirements are met effectively in timely and correct manner---This is possible only when regulator has qualified staff, well-coordinated organizational setup, sufficient funds, and powers to take decisions autonomously and balance all stakeholders---Regulator should also be accountable for all its decisions---High Court declared that demand of Fuel Price Adjustment, Quarter Tariff Adjustment, Change of status of tariff from Industrial to Commercial by NEPRA not constituted fully under S. 3 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, was illegal, without lawful authority and coram non judice, having no legal effect---High Court directed NEPRA to inform consumers about charges on monthly basis and fuel price adjustment should not go beyond 07 days and Quarter Tariff Adjustment should not go beyond statutory period---High Court restrained NEPRA from charging any exorbitant tariff beyond paying capacity of domestic consumers---High Court directed NEPRA to fix responsibility of over-charging on the basis of line losses and less efficient power plants and financial burden would be shared by the companies under a rational proportion---High Court further directed the Authority to explore cheap modes of producing electricity and evolve mechanisms for its quick availability---High Court also directed to ensure smooth supply of electricity based on demand---High Court restrained the Authority from unilaterally changing type of tariff from Industrial to Commercial without hearing such consumers---High Court directed Federal Government to provide maximum subsidy to domestic consumers of 500 units per month---High Court restrained Federal Government from demanding extra ordinary taxes having no nexus with consumption of energy which could be recovered through other modes---High Court further directed Federal Government to further explore Solar, Hydal, Nuclear and Wind sources of producing electricity and arrange for cheap purchase of sources of electricity from other countries---Constitutional petition was disposed of accordingly.

Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; Messrs Noorani Steel Mills v. Federation of Pakistan 2010 YLR 2872; Pakistan Flour Mills Association (Punjab Branch) through Vice Chairman v. Water and Power Development Authority (WAPDA) and others PLD 2013 Lah. 182; Flying Board and Paper Products Ltd. and others v. Government of Pakistan through Secretary Cabinet Division and others 2010 SCMR 517; The Collector of Sales Tax, Gujranwala v. Messrs Super Asia Mohammad Din and Sons 2017 SCMR 1427; State through Regional Director ANF v. Imam Bakhsh 2018 SCMR 2039; Federation of Pakistan through Secretary Finance, Islamabad and another v. E-Movers (Pvt.) Limited and other 2022 SCMR 1021; ICC Textiles Limited through Authorized Representative and 31 others v. Water and Power Development Authority (WAPDA), WAPDA House, Lahore through Chairman and 15 others 2009 CLC 1343; Naimatullah Khan Advocate and others v. Federation of Pakistan and others 2020 SCMR 622; LESCO and others v. North Star Textile Mills 2014 CLC 28; Flying Cement Co. Ltd. and others v. Government of Pakistan through Secretary, Ministry of Water and Power and others PLD 2015 Lah. 146; Ghani Global Glass Ltd. v. Federation of Pakistan through Secretary Energy (Power Division), Islamabad and others PLD 2020 Lah. 167; Flying Cement v. Federation of Pakistan PLD 2016 Lah. 35; Lahore Electric Supply Company Limited (LESCO) and others v. National Electric Power Regulatory Authority and others PLD 2018 Isl. 20; National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited 2016 SCMR 550; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813; Syed Imran Raza Zaidi, Superintending Engineer, Public Health Engineering Circle-I Gujranwala v. Government of the Punjab through Services, General Administration and Information Department, Punjab Secretariat, Lahore and 2 others 1996 SCMR 645; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; Muhammad Younas and others v. The State PLD 2005 SC 93; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997; Alleged Corruption In Rental Power Plants and others 2012 SCMR 773; Al-Samrez Enterprise v. The Federation of Pakistan 1986 SCMR 1917; Province of Punjab through Conservator of Forest, Faisalabad and others v. Javed Iqbal 2021 SCMR 328; Commissioner Inland Revenue, Zone-II, Regional Tax Officer (RTO), Mayo Road, Rawalpindi and another v. Messrs Sarwaq Traders, 216/1-A, Adamjee Road, Rawalpindi and another 2022 SCMR 1333; Maj.-Gen. (Retd.) Mian Ghulam Jilani v. The Federal Government through the Secretary, Government of Pakistan, Interior Division, Islamabad PLD 1975 Lah. 65; Commissioner of Income Tax and others v. Mubashar Sheikh, City Towers 2017 PTD Lah. 795; West Pakistan Tanks Terminal (Pvt.) Ltd. v. Collector (Appraisement) 2007 SCMR 1318; Collector of Customs Appraisement, Collectorate, Customs House, Karachi v. Messrs Gul Rehman, Proprietor Messrs G. Kin Enterprises, Ghazali Street, Nasir Road, Sialkot 2017 SCMR 339; Habibullah Energy case reported as PLD 2014 SC 47; Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808; Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42; Sindh Petroleum and CNG Dealers’ Association and 15 others v. Federation of Pakistan through Secretary and 3 others 2020 CLC 851; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Ms. Imrana Tiwana and others v. Province of Punjab and others PLD 2015 Lah. 522; Ms. Krishna Poultry Farm v. State Of Orissa W.P. (C) No. 22202 of 2010 decided on 18.08.2015; Rajasthan Ice and Cold Storage v. The State of Rajasthan 1981 WLN 346; Commissioner of Income Tax v. Radha Nagar Cold Storage (P.) Ltd. 1980 126 ITD 66; Delhi Cold Storage Pvt. Ltd. v Commissioner of Income Tax, Delhi-1, New Dehli (1991) 4 SC 239; Commissioner of Income Tax v. Nandlal Cold Storage decided on 24.10.1991; Said Zaman Khan v. Federation of Pakistan through Secretary Ministry of Defence, Government of Pakistan Superintendent HSP, Sahiwal 2017 SCMR 1249 and Justice Qazi Faez Isa and others v. The President of Pakistan and others PLD 2021 SC 1 ref.

Muhammad Azhar Siddique, Khalil-ur-Rehman, Qamar-uz-Zaman Cheema, Mustafa Kamal, Muhammad Aslam Sheikh, Muhammad Naeem Sheikh, Adnan Tariq, Mian Ghulam Ali Chotya, Syed Tassadaq Mustafa Naqvi, Syed Tassadaq Murtaza Naqvi, Syed Ali Naqi, Barrister Muhammad Umar Riaz, Nauman Sarwar, Ahtisham-ud-Din Khan, Ch. Muhammad Ashfaq, Waqas Umar, Rana Rehan, Muhammad Amin, Maryam Sajjad, Irfan Ali Sheikh, Mian Mehmood Rashid, Miss Rohi Saleh, Mian Zulfiqar Ali, Muhammad Hassan Farooq, Abdul Hameed Tahir Kasuri, Muhammad Rizwan Ghumman, Tanzil-ur­Rehman, Muhammad Suleman, Sajid Sial, Zahid Farooq, Malik Muhammad Riaz, Muhammad Riaz, Hafiz Jamshaid Anwar, Tahir Muneer, Malik Asad Ali Awan, Ihsan-ul-Haq Sajid, Zain Sikandar, Zaman Khan Vardag, Mian Muhammad Sohail, Mushtaq Dhoon, Naila Mushtaq Dhoon, Muhammad Idrees Aslam Chohan, Raja Muhammad Faisal Ullah Khan, Amna Iqbal, Mamoon Nisar, Kamran Iftikhar, Nasir Mehmood, Falak Sher Khan, Javed Imran Ranjha, Arif Hussain Cheema, Qazi Zafar Abbas, Abdul Rehman Dar, Aetisam Ahmad, Sheraz Sultan, Shahid Mehmood Bhatti, Prince Naseem Raza, Afzal Hussain, Zahid Chaudhary, Muhammad Muzahir Chaudhary, Fateh Khan Malik, Mian Tariq Saeed Salotra, Adnan Saeed Chaudhary, Muhammad Zaheer Asghar Bhatti, Amir Aziz Khan, Maaz Sajjad, Hafeez-Ullah Gondal, Ch. Shakeel Gondal, Sardar Dilnawaz Cheema, Waqas Ahmad Aziz, Waqas Ali Bhutta, Muhammad Nauman Yahya, Muhammad Nadeem Abbasi, Mohsin Iqbal, Ch. Qamar-uz-Zaman, Muhammad Waqar Akram, Muhammad Farooq Khokhar, Rai Inam Qadir, Muhammad Khalid, Arif Munir, Zeba Munir, Ali Raza Cheema, Muhammad Bilal, Muhammad Irfan-ul-Haq, Khan Talib Hussain Baloch, Khurram Shehzad Chughtai, Muhammad Arfan Randhawa, Muhammad Umar, Saqib Haroon Chishti, Hammad Khan Babar, Adil Shabbir, Muhammad Imran Rana, Zaman Ali Dogar, Rao Muhammad Akmal, Adnan Rauf, Mahid Abdul Ghafoor, Nabeel Rafaqat, Saba Shaheen, Waqas Chaudhary, Mehar Alam Sher, Malik Asif Rafiq Rajwana, Tahir Abbas Bhatti, Sardar Muhammad Sadiq Tahir, Nasir Ali Gillani, Syed Zeeshan Hassan, Ahmad Yar Chawli, Mehar Muhammad Waqas, Jabran Ahmad Khan, Waqas Arfan Sandhu, Muhammad Shahid Iqbal Qureshi, Javed Iqbal Qureshi, Malik Muhammad Rafiq, Muhammad Anwar Khan, Aftab Hussain Qureshi, Pervaiz Ali, Abad-ur-Rehman, Umar Tariq Gill, Wajab Fareed, Haris Iftikhar, Mustafa Haroon, R.A. Majid, Muhammad Abdul Qadus, Mohib Ghazi, Mian Kashif Maqsood, Khurram Mehboob, Wajid Islam Hashmi, Muhammad Azwa Sultan, Fawad Ahmad Chishti, Muqit Ahmad Mohila, Waqar Ahmad Ranjha, Muhammad Osama Tariq, Muhammad Ahmad, Rao Javid-ul-Haq Khan, Muhammad Nauman Qazi, Raza Ahmad, Imran Malik, Aakif Majeed Butt, Hassan Ismail, Asim Tufail Farooqi, Nida Aftab, Khaliq Ishaq, Faizan Ahmad, Faheem Gondal, Usman Nasir Awan, Abid Hussain Sial, Muhammad Osama Hanif, Syed Samir Sohail, Asad Ali Gondal, Malik Muhammad Iqbal, Atif Mumtaz Bhatti, Faiz Batool, Mirza Mubashir Baig, Abdul Waheed Habib, Mirza Bilal Zafar, Faisal Rasheed, Muhammad Imran Mansha, Mian Muhammad Mubin Saeed, Sadaqat Mehmood Butt, Faran Ahmad Cheema, Ch. Waseem Ahmad, Muhammad Shahbaz Rana, Muhammad Abbas Wattoo, Syed Waseem Haider Naqvi, Barrister Muhammad Imran Chaudhary, Sh. Muhammad Rizwan, Anwar-ul-Haq, Tanvir Abbas Bhatti, Imran Anjum Alvi, Rai Muhammad Usman, Muhammad Shehzad Hussain Sangla, Gulzar Hussain Sangla, Ch. Usman Sana, Rana Nadeem Ahmad, Nadeem Qaisar, Ch. Abdul Qayyum, Allah Nawaz Khosa, Sajid Iqbal Mohal, Syed Alamdar Hussain, Muhammad Farrukh Khan, Muhammad Ijaz Ali Bhatti, Muhammad Naveed Siyan, Mian Naveed Sadiq, Muhammad Shakeel Tajwani, Ch. Mumtaz Ahmad, Muhammad Alamgir Chaudhary, Tariq Mehmood Ansari, Muhammad Irshad Ali, Malik Bashir Ahmad Khalid, Hammad-ul-Hassan Hanjra, Rana Ali Akbar Khan, Muhammad Majid Saeed, Muhammad Tahir Habibi, Sher Baz Ali, Yasir Islam Chaudhary, Saira Zaffar, Faisal Zaffar, Arfan Ahmad Chattha, Ahmad Munir Khan, Mirza Ahmad Nadir, Azeem Ullah Virk, Muhammad Ali Siddiqui, Taimoor Akhtar Nida Aftab, Khalid Ishaq, Usman Nasir Awan, Malik Riaz Awan, Muhammad Rashid, Syed Imtiaz Hussain Shah, Muhammad Zahid Rafi, Sarmad Nawaz, Dil Nawaz Ahmad Cheema, Muhammad Faizan, Sohail Asghar, Ghulam Mustafa, Amjad Iqbal, Jam Khalid Farid, Amir Sohail Bosal, Ijaz Ahmad Awan, Sultan Ali Awan, Babar Riaz Sidhu, Qaisar Mehmood Sra, Rai Rafi, Uzma Firdos, Mehboob-e-Elahi, Muhammad Tahir Muneer, Ghulam Murtaza, Muhammad Akbar, Mudassar Ijaz, Barrister Muhammad Sohaib Ahmed, Mian Mohsin Mehmood, Malik Sajjad Ashraf Alvi, Shoukat Ali Tanweer, Muhammad Rehan Sarwar, Shah Jahan Khan, Tauseef Zada Khan, Syeda Hamdia Haq, Abid Mehmood Mirza, Mirza Khalid Mehmood, Hassan Maqsood Ahmad Aujla, Azhar Yaseen Mahlra, Aftab Zafar, Muhammad Naeem Aziz, Muhammad Ilyas, Tanveer Ahmad Gill, Ch. Imran Arshad Naro, Muhammad Siddique Butt, Malik Hafiz Muhammad Arshad, Adeel Hussain Bhatti, Mian Waqas Khalid, Muhammad Irfan Liaqat, Saad Ayub Khan, Rana Qaisar Mehmood, Abdul Hanan Sarmad, Muhammad Nadeem Ashraf, Muhammad Shehzad Saleem, Ahmad Imran Ghazi, Dr. Ali Qazilbash, Ms. Nudrat B. Majeed, Ashhad Ali Azhar, Munir Ahmad, Irfan Mukhtar, Mian Shabbir Ismail, Amna Liaqat, Salma Riaz, Awais Butt, Tanveer Hussain Mirza, Barrister Zargham Lukhesar, Muhammad Hussam, Mian Asif Ali Maneka, Malik Azhar Iqbal, Waqar Hassan, Barrister Haris Azmat, Khawaja Ahmed Tariq Rahim, Hissan Tariq Rahim and Hashim Tariq Rahim for Petitioners.

Nasar Ahmad, Additional Attorney General for Pakistan, Asad Ali Bajwa, Deputy Attorney General, and Ch. Usman Ghani, Assistant Attorney General.

Shoaib Rashid, Mian Danish Quddous, Furqan Naveed, Ghulam Mujtaba, Muhammad Bilal Munir for LESCO.

Mehr Shahid Mehmood, Deputy Manager (Legal), Basharat Ali Mehmood, Deputy Manager (Legal) and Adnan Aslam Qureshi, Chief Law Officer, Yasin Badar, Legal Consultant, LESCO.

Mirza Aurangzeb for GEPCO.

Waqar A. Sheikh, Syed Faisal G. Meeran, Sarfraz Ahmad Cheema, Shehzad Ahmad Cheema, Malik Asad Akram Khan Awan for FESCO.

Barrister Malik Kashif Rafiq Rajwana and Malik Asif Rafiq Rajwana for MEPCO.

Mian Muhammad Javed for IESCO, MEPCO.

Amir Sikandar Ranjha for NEPRA.

Sh. Muhammad Ali, Muhammad Rizwan Nazar, Maryam Asad, Ali Usman, Abdul Hafeez Dhillon for CPPA.

Muhammad Saqlain Arshad and Ehsan Malik for NTDC.

Muhammad Bilal Munir and Naeem Khan, Shahjahan Khan for FBR.

Ch. Muhammad Ijaz Jamal for Model Town Society.

Dates of hearing: 30th, 31st August, 13th, 15th, 20th, 23rd, September, 3rd, 4th, 5th, 6th and 10th October, 2022.

2024 C L C 863

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

BASHIR MASIH----Petitioner

Versus

SUNEELA NADEEM and others----Respondents

Writ Petition No.38 of 2014, heard on 29th April, 2022.

Family Courts Act (XXXV of 1964)---

----Ss.17-A, 5 & Sched.---Suit for recovery of maintenance allowance for minors whose father passed away---Right of defence---Striking off---Paternal grandfather of the minors, responsibility of---Scope---Whether the grandfather could be held liable to pay maintenance allowance to his grandchildren---Family Court while fixing interim maintenance allowance, ordered the petitioner (grandfather) to pay the interim maintenance allowance---On failure by the petitioner to cross-examine the witnesses of the respondents and pay interim maintenance, his right of cross-examination was closed and defence was struck off---Validity---Record showed that though petitioner was not present on the date fixed but his counsel was in attendance---However, it could be observed with naked eyes that at the time of pre-trial proceedings due compliance was not made to S.10 Family Court Act, 1964 and even issues were not framed properly to capture the actual controversy---Suit was decreed on account of failure by the petitioner to pay the interim maintenance while invoking S.17-A of the Act, 1964---Said provision was, however, later on amended through Punjab Family Courts (Amendment) Act (XI of 2015)---From the combined analysis of old and new S. 17-A of the Act, 1964, it is manifestly clear that though in the latter, very specific and categoric consequences of failure to pay the interim maintenance had been provided but Court was also made bound to look into averments of the plaint and other supporting documents on record of the case before passing the decree---Though by virtue of S. 17-A of "the Act", Family Court was vested with the power to strike off the defence of the defendant and decree the suit on failure by him to pay the interim maintenance in terms of order of the Court but it would not equip the Court with unfettered powers to proceed mechanically---In no circumstances, a Court could abdicate its prime duty to foster justice as per canons of law---Court could not proceed in vacuum and exercised judicial powers arbitrarily and whimsically---Before invoking a penal provision like S.17-A of "the Act" the Court was supposed to consider as to whether it was vested with the power to pass the order of interim maintenance, which was not done at all---Even the appellate Court did not apply its own independent judicious mind to the facts of the case and acted merely as a post office to affix its stamp on the findings of the Trial Court in a mechanical manner---Though, there were concurrent findings of the Courts below but both the Courts below had proceeded in a casual manner and took their eyes off some very material and important aspects of the matter---Petition was allowed and case was remanded to Trial Court with the direction to decide the case afresh while commencing the proceedings from pre-trial stage as provided under S.10 of the Act, 1964.

Mst. Noreen Iqbal v. Sohail Iqbal and others 2005 CLC 1472; Jagsi v. Shr. Marwan and another PLD 2005 Kar. 334; Maqsood Pervaiz Ch. v. Mst. Nausheen Chaudhary and others PLD 2019 Lah. 102 and Abu Bakar Siddique and others v. Collector of Customs, Lahore and others 2006 SCMR 705 rel.

Faisal Altaf Chohan for Petitioner.

Ex-parte for Respondents Nos.1 to 3.

Ch. Imran Hassan Ali, Amicus Curiae.

2024 C L C 885

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz, J

WAJID UR REHMAN----Appellant

Versus

ELECTION COMMISSION OF PAKISTAN and another----Respondents

Election Appeal No.150 of 2024, decided on 4th January, 2024.

(a) Constitution of Pakistan---

----Arts. 62 & 63(1)(c)---Elections Act (XXXIII of 2017), S. 62---Pakistan Citizenship Act (II of 1951), S. 14(3)---Foreign nationality---Word 'or' used in Art. 63(1)(c) of the Constitution---Scope---Returning Officer ('RO') rejected nomination papers of the candidate contesting for seat of Provincial Assembly for having foreign nationality---Contention of the appellant (candidate) was that a foreign national would become disqualified from contesting election only if he ceased to be a citizen of Pakistan---Appellant mainly focused on the ground that the word 'or' used in Art. 63(1)(c) of the Constitution between the condition of ceasing of Pakistan nationality and accusation of foreign citizenship in fact was to be read as 'and'---Validity---Word 'or' used in Art.63(1)(c) of the Constitution was disjunctive and that a person holding a dual nationality of a foreign State though legally in view of S.14(3) of the Act of 1951, nevertheless would not be entitled to be elected or chosen as, or hold the Office of a Member of Parliament---Election appeal, being meritless, was dismissed, in circumstances.

Suo Motu case No.8 of 2018 PLD 2019 SC 201 ref.

(b) Constitution of Pakistan---

----Arts. 62 & 63(1)(c)---Elections Act (XXXIII of 2017), S.62---Pakistan Citizenship Act (II of 1951), S. 14(3)---Foreign nationality, relinquishment of---Scope---Returning Officer ('RO') rejected nomination papers of the candidate contesting for seat of Provincial Assembly for having foreign nationality---Contention of the appellant (candidate) was that he had initiated the process for the relinquishment of his foreign nationality and had moved an application in said regard---Validity---Document, presented by the appellant in support of said/such claim, only depicted that he had initiated the process of renunciation of his foreign nationality which had yet not attained finality---Inexorably, appellant was a foreign national even today as his request for relinquishment of UK nationality was still awaited---As a necessary consequence, it could unambiguously be gathered that the appellant was still enjoying his foreign nationality, thus his nomination papers were hit by the impediment contained in Art. 63(1)(c) of the Constitution---Election appeal, being meritless, was dismissed, in circumstances.

Sayed Anwar Hasanat v. Returning Officer PP-27, Jhelum(IV) 2013 CLC 1821 ref.

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

----S. 62---Nomination papers, scrutiny of---Returning Officer---Powers and duties---Scope---Primary duty of Returning Officer is to ensure that no person who by law is not eligible to contest elections is ousted from the electoral process at the very initial stage of scrutiny under S.62 of the Election Act, 2017---While scrutinizing the nomination papers the Returning Officer must make a just, fair and unbiased assessment about the credentials of the candidate for making a decision that he is qualified or not to contest the elections.

Nawabzada Iftikhar Ahmad Khan v. Chief Election Commissioner Islamabad and others PLD 2010 SC 817 ref.

Ms. Zunehra Taj for Appellant.

2024 C L C 895

[Lahore]

Before Shahid Bilal Hassan, J

Mst. NAWAB BIBI (DECEASED) through L.Rs.----Petitioner

Versus

HAKIM ALI and others----Respondents

Civil Revision No.2312 of 2014, heard on 4th October, 2023.

(a) Islamic law---

----Inheritance---Muslim sect---Presumption---Predecessor-in-interest of petitioners / plaintiffs was the only daughter of deceased owner of suit property, who claimed her father to be Shia by faith---Validity---Every Muslim in the sub-continent is presumed to belong to Sunni sect, unless 'good evidence' to the contrary is produced by the party contesting the same---Judicial determination of whether such presumption of faith of a party, positively stands rebutted, would be adjudged by the Court on the principle of preponderance of evidence produced by parties---No strict criteria can be set to determine faith of a person and therefore to pass any finding thereon---Courts are to consider surrounding circumstances i.e. way of life, parental faith and faith of other close relatives---Predecessor in interest of petitioners / plaintiffs failed to prove that deceased owner of suit property was professing Shia faith during his life time---Ultimate result would be that the deceased owner was Sunni by faith and the same was rightly determined and declared as such by the Courts below while passing judgments and decrees---Concurrent/coexisting possession of deceased predecessor-in-interest of petitioners/plaintiffs and after her demise, that of the petitioners/plaintiffs, her successors, would be considered---High Court declined to interfere in concurrent findings of facts by two Courts below as they had committed no illegality, irregularity and wrong exercise of jurisdiction, rather after evaluating evidence on record reached a just conclusion that defendants failed to prove their case through trustworthy and reliable evidence---Revision was dismissed, in circumstances.

Mst. Chanani Begum (Deceased) through LRs. v. Mst. Qamar Sultan 2020 SCMR 254; Abdul Rehman and others v. Mst. Allah Wasai and others 2022 SCMR 399; Ghulam Shabbir and others v. Mst. Bakhat Khatoon and others 2009 SCMR 644; Tahira Bibi v. Muhammad Khan and others PLD 2018 Lah. 803; Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469; Cantonment Board through Executive Officer, Cantt. Board Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161; Muhammad Farid Khan v. Muhammad Ibrahim and others 2017 SCMR 679; Muhammad Sarwar and others v. Hashmal Khan and others PLD 2022 SC 13 and Mst. Zarsheda v. Nobat Khan PLD 2022 SC 21 rel.

(b) Limitation---

----Inheritance---Fraud---Effect---Fraud vitiates the most solemn transaction and in such like position, when question of inheritance is involved, limitation does not run---When foundational transaction is based on fraud and mala fide, the subsequent superstructure built thereon cannot be allowed to stand and ultimately collapses.

Ijaz Hussain for Petitioner.

Syed Kaleem Ahmad Khurshid and Sultan Mehmood for Respondents Nos.4 to 9.

Ex parte: Respondents Nos.1 to 3.

2024 C L C 907

[Lahore]

Before Muhammad Raza Qureshi, J

REHAN IQBAL----Petitioner

Versus

ABDUL HAQ and 2 others----Respondents

Writ Petition No.70519 of 2022, heard on 22nd June, 2023.

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

----O.V, Rr.16, 17, 18, 21 & 23---Summoning of defendant(s)---Due service---Substituted service---Question was whether the petitioner/defendant was ever served in accordance with law---After receipts of registered post A.D. were presented the Trial Court ordered publication in the newspaper on the basis that he (defendant) could not be served through summons; subsequently ex-parte judgment / decree was passed against the defendant---Civil Court allowed the defendant's application for setting aside ex-parte judgment and decree, however, revision of the plaintiffs was allowed and said order passed by the Civil Court was set aside---Validity---Admittedly, in the present case, the summons issued to the petitioner/defendant was never returned with any report, whereas, though receipts of registered post A.D. were presented but the Trial Court never received back the card of A.D., therefore, the order of the Trial Court that he (petitioner/defendant) could not be served through summons appeared to have been passed in betrayal of mandate of law and it seemed that the Trial Court failed to exercise its jurisdiction in accordance with law---First obligation of the Trial Court was that if it had noticed that the petitioner/ defendant was resident of another district, the safest mode should have been to follow the provisions of O.V, Rr.21 & 23 of the Civil Procedure Code, 1908 ('C.P.C'), which provided that if defendant resides within the jurisdiction of another Court, the summons shall be sent by the Court by which it is issued either by one of its officers or by post to any Court having jurisdiction in the place where the defendant resides---Under R.23 of O. V of the C.P.C., the Court to which summons is sent under R.21 shall, upon receipt thereof, proceed as if it has been issued by such Court and shall then return the summons to the Court of issue, together with the record of its proceedings with regard thereto---Relevant order passed by the Trial Court having been analyzed in the light of said provisions of law, it was observed that while issuing the summons to the petitioner/defendant, those provisions were overlooked by the Trial Court, which upon non-return of summons sent by the issuing Court and non-receipt of A.D. was sine qua non for the service of petitioner/defendant---Failure of the Trial Court to follow the mandate contained in provisions of O. V, Rr. 21 & 23 of the C.P.C. had serious consequences and order for issuing substituted service through publication was nullity in the eyes of law---Provisions of Rr.16, 17 and 18 of O. V of the Civil Procedure Code, 1908, were also ignored by the Trial Court as the said provisions are not illusory and it is bounden duty of the Court to ensure substantial compliance of these provisions before directing substituted service as unless provisions contained in Rr. 16, 17, 18, 21 and 23 are not satisfied, the order for substituted service under O. V, R. 20 of the C.P.C. is nullity in the eyes of law as the Court for the said purpose has to satisfy itself that all the efforts to effect service in the ordinary mode have failed---Non-adherence to the mandatory provisions renders the process of service through publication invalid and edifice built upon it automatically falls down---Adherence and observance to these provisions is mandatory as due service is the first fundamental right of every litigant, who is to defend his cause before the court of law, therefore, it is not only a formality but a matter of importance that the provisions are duly complied with---District Court by reversing the Order passed by the Civil Court committed material irregularity as it failed to analyze the legal position that on account of non-adherence to the mandatory provisions of O. V of the C.P.C. in relation to service through ordinary modes, the service upon the petitioner/ defendant through substituted mode was inconsequential---High Court set-aside impugned order passed by the District Court and consequently upheld order passed by the Civil Court setting aside ex-parte judgment and decree---Constitutional petition filed by the defendant was allowed, in circumstances.

Rana Jahangir Khan v. Manzoor Ahmad PLD 2012 Lah. 204; Yaqoob Ali through L.Rs. and others v. Muhammad Ayub and others PLD 2021 Lah. 678 and Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan 2001 SCMR 99 ref.

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

----O.V, Rr.16, 17, 18, 21 & 23---Summoning of defendant(s)---Due service---Substituted service---Scope---Civil Court allowed the defendant's application for setting aside ex-parte judgment and decree, however, revision of the plaintiffs was allowed and said order passed by the Civil Court was set aside on the basis that the substituted service was as effective as personal service and the Court might on the failure of defendant to appear when the suit was called for hearing proceed with the hearing of the suit ex-parte as substituted service had always been equated with that of due service----Validity---District Court failed to advert that the effectiveness of service could only be presumed authentic if either record or order reflected that the provisions of O.V of the Civil Procedure Code, 1908, in relation to service of summons or through registered A.D. had been duly complied with---Remedy of substituted service could be resorted to only if the court was satisfied that there was a reason to believe that the other side was shying out only to avoid the service---District Court by reversing the Order passed by the Civil Court committed material irregularity as it failed to analyze the legal position that on account of non-adherence to the mandatory provisions of O.V of the C.P.C. in relation to service through ordinary modes, the service upon the petitioner/ defendant through substituted mode was inconsequential---High Court set-aside impugned order passed by the District Court and consequently upheld order passed by the Civil Court setting aside ex-parte judgment and decree---Constitutional petition filed by the defendant was allowed, in circumstances.

Sana Jamali v. Mujeeb Qamar and another 2023 SCMR 316 ref.

Moiz Tariq for Petitioner.

Syed Muhammad Shah for Respondents.

2024 C L C 922

[Lahore]

Before Shahid Bilal Hassan, J

MUHAMMAD YASIN----Petitioner

Versus

MUHAMMAD ISMAIL and others----Respondents

Civil Revision No.62703 of 2023, decided on 26th September, 2023.

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

----O. VII, R. 11(d)---Specific Relief Act (I of 1877), Ss. 42, 39 & 54---Suit for declaration, cancellation of document and permanent injunction---Rejection of plaint---Matter sub-judice---Scope and effect---Civil Court rejected the plaint of suit filed by the petitioner/plaintiff under O.VII, R. 11(d) of Civil Procedure Code, 1908 and appeal preferred by him against the same was also dismissed---Validity---Dispute in the present case was, admittedly, regarding the disputed mutation which had already been raised before the competent forum about two decades ago by way of application for inquiry which was concluded within a year or so vide an inquiry report, wherein it was determined that the disputed mutation was genuinely entered into and executed by the concerned parties; it was further determined in the said inquiry that the petitioner / plaintiff was a fake person and had no concern with the disputed property; meaning thereby the matter remained sub-judice before the competent forum and the petitioner / plaintiff was well aware of all the proceedings but he kept mum after report of the said inquiry because adverse remarks were passed against him and he did not challenge the same before any relevant forum further---Both the Courts below had accurately rejected the plaint under O. VII, R. 11 of Civil Procedure Code, 1908---Revision was dismissed, in circumstances.

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

----O. VI, R.4 & O. VII, R. 11(d) ---Specific Relief Act (I of 1877), Ss.42, 39 & 54---Suit for declaration, cancellation of document and permanent injunction---Limitation---Rejection of plaint---Date of knowledge and source of information of alleged fraud, non- disclosure of---Effect---Civil Court rejected the plaint of suit filed by the petitioner/plaintiff under O. VII, R.11(d) of Civil Procedure Code, 1908 and appeal preferred by him against the same was also dismissed---Validity---Petitioner / plaintiff did not disclose the date of knowledge and source of information of alleged fraud, which were essential and necessary to be pleaded in the plaint as required by O.VI, R. 4 of Code of Civil Procedure, 1908---Suit ought to have been filed within six years from the date of arising of cause of action or from the date of knowledge, but it had been instituted after about 21 years of inquiry proceedings, in which subject-matter(disputed mutation) was already settled against the petitioner/ plaintiff---In such scenario, the suit of the petitioner was barred by limitation---Besides, limitation runs even against a void order and if for the sake of arguments, it is admitted that the petitioner did not associate with the proceedings before the revenue hierarchy, he was bound to explicitly plead the date of his knowledge of alleged fraud, which was lacking in this case, so it could not be said that here in this case the limitation was a mixed question of law and facts---Present case had rightly been adjudged and the petitioner had rightly been non-suited---Revision was dismissed, in circumstances.

Agha Syed Mushtaque Ali Shah v. Mst. Bibi Gul Jan and others 2016 SCMR 910; Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 305 and Muhammad Sharif and others v. MCB Bank Limited and others 2021 SCMR 1158 ref.

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

----O. VII, R. 11---Application for rejection of plaint---Determination by the Court---Scope---Relevant facts that need to be looked into for deciding an application under O. VII, R.11 of Civil Procedure Code, 1908 are the averments in the plaint---However, besides averments made in the plaint other material available on record which on its own strength is legally sufficient to completely refute the claim of plaintiff can also be pondered into for the purpose of rejection of the plaint.

S.M. Sham Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs 2002 SCMR 338 ref.

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

----O. VII, R. 11---Application under O. VII, R. 11, C.P.C for rejection of plaint---Objective---Court, powers and duties of---Inherent jurisdiction---If a party who approaches the Court, with mala fide intention by concealing material facts, which if brought before the Court, the plaintiff would have been out of Court for having no cause of action and also in a situation here defendants brought any such fact in the notice of the Court, the same can also be judiciously pondered upon while deciding an application under O. VII, R. 11, C.P.C., because a plaintiff should not be allowed to grind the other party into false and frivolous litigation---Basic objective and aim of O. VII, R.11, C.P.C., is that an incompetent suit should be laid to rest at its inception so that no further time is allowed to be wasted over what is bound to collapse---Suit may be specifically barred by law and in such an event, the matter would come under the terms of clause (d) of R.11, O. VII of the Code of Civil Procedure, 1908, but even in a case where a suit is not permitted by necessary implication of law in the sense that a positive prohibition can be spelt out of legal provisions, the Court has got an inherent jurisdiction to reject the plaint at any stage of trial and in such a situation formalities should be avoided to reject it, thus, O.VII, R. 11, C.P.C., is not exhaustive---Court in exercise of inherent jurisdiction can nip frivolous litigation in the bud---It is the duty of the Court to thoroughly examine the plaint at the very inception so that the parties could be saved from the agony of frivolous litigation in order to save the precious time of the Court because a court should not behave like a silent observer and allow a party to capture the whole system of justice for an indefinite time.

Haji Muhammad and another v. Government of the Punjab through Collector, District Kasur and another 1994 CLC 1248 ref.

(e) Limitation---

----Scope---Limitation is not to be reckoned as merely a technicality, as doing so would amount to deprive the opposite party of a favour which the law has unequivocally extended to it due to prevailing of certain circumstances.

PLD 2016 SC 872; PLD 2015 SC 212; 2011 SCMR 8; 2022 CLC 178; PLD 2019 Lah. 717; 2019 CLC 497 and PLD 2018 Isl. 341 ref.

2024 C L C 932

[Lahore]

Before Ch. Muhammad Iqbal, J

KHIZAR HAYAT FAROOKA AND PROVINCE OF PUNJAB----Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Minority Affairs and 4 others----Respondents

Writ Petition No.184612 of 2018, decided on 29th February, 2024.

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss. 8 & 17---Evacuee Trust Property---Declaration---Educational Institutions, status of---Federal Government---Powers of revision---Implemention of order---Petitioner and Provincial Government sought implementation of order passed by Federal Government with regard to status of property in question---Validity---Mutation in question was incorporated in compliance of Cabinet Division decision dated 10-06-1976 which mutation was later on illegally cancelled by Chairman Evacuee Trust Property Board---Revisional authority in its order dated 04-06-2005 observed that the mutation was incorporated incompliance of the policy of Evacuee Trust Property Board, which was formulated in the light of decision of Federal Government in year 1976 and subsequent decision in year 1983 regarding possession of Educational Institutions---High Court directed Evacuee Trust Property Board to implement order passed by Federal Government / Revisional Authority in letter and spirit---Constitutional petition was allowed accordingly.

Raja Muhammad Arif, Additional Advocate General for Petitioners.

Nassir Ahmad Awan, Legal Advisor, Evacuee Trust Property Board for Respondents.

2024 C L C 947

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

PIA OFFICERS COOPERATIVE HOUSING SOCIETY LTD. through President----Petitioner

Versus

PROVINCE OF PUNJAB through Secretary to the Government of Punjab, Cooperatives Department, Lahore and 4 others----Respondents

Writ Petition No.3340 of 2023, decided on 10th October, 2023.

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

----S. 43---Constitution, working and financial condition of a Co-operative Society---Inquiry by Registrar---Powers---Petitioner (PIA Officers Cooperative Housing Society Limited) invoked constitutional jurisdiction of the High Court challenging orders passed by Registrar, Cooperative Societies and the provincial Secretary, Cooperative Department, on the application of the private persons on the issue of certain irregularities into the affairs of the Society by its Managing Committee---Validity---Section 43 of the Act, 1925 elucidated that the Respondent (Registrar Co-operative Societies) on his own motion by himself is empowered, under the law/Act, to hold an inquiry into the constitution, working and financial condition of a society, for which no procedure has been provided---In the present case, the impugned order did not reflect that the Respondent (Registrar Co-operative Societies) had exceeded his powers while dealing with the application of the private respondents on the issue of certain irregularities into the affairs of the Society by its Managing Committee---There was nothing wrong with the impugned order passed by the Respondent (Registrar Co-operative Societies) who had issued certain directions to the Inquiry Committee in consonance with the object of the Act, 1925, which had been promulgated with the only intent to facilitate formation and working of Co-operative Societies for the promotion of thrift, self-help and mutual aid among agriculturists and other persons with common economic needs so as to bring about better living specifically better business---No interference was to be made by the High Court in present matter regarding powers of the Registrar, Cooperative Societies and Secretary Cooperative Department---Constitutional petition, filed by the Co-operative Society, was dismissed in limine, in circumstances.

Shahbaz Qalandar Cooperative Housing Society Limited through Chairman v. Province of Sindh through Secretary Cooperative Department and 2 others 2011 CLC 783; Saddar Cooperative Market Ltd. through Honorary Secretary v. Province of Sindh, Department of Cooperation and 3 others 2009 CLC 143 and Pir Illahi Bukhsh Co-Operative Housing Society Ltd., Karachi v. Registrar Co-operative Societies, Karachi and others 1968 SCMR 423 ref.

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

----Ss. 64-A & 43---Punjab Government Rules of Business, 2011, R.3(3), Second Schedule, Clause 1(a) & Clause 7(i)---Constitution, working and financial condition of a Society---Inquiry by Registrar---Powers---On the application of the residents/citizens regarding the issue of certain irregularities into the affairs of the PIA Officers Cooperative Housing Society Limited ('Society'), the Registrar, Cooperative Societies inquired the matter and passed order against the PIA Officers Cooperative Housing Society Limited ('Society')---Petitioner (Society) invoked constitutional jurisdiction of the High Court challenging order passed by the Secretary, Cooperative Department, Government of the Punjab, who maintained order of the Registrar, Cooperative Societies---Impugned order had validly been passed by the Respondent (Secretary, Cooperatives Department) in terms of S. 64-A of the Act 1925 being head of the Department, strictly as per the power vested in him under the provisions of S. 64-A of the Act 1925 by rightly declaring that the impugned order of the Registrar, Cooperative Societies, was based on sound reasoning and had been passed in accordance with law---In his order, Respondent (Secretary, Cooperatives Department) had also observed that proceedings of a fresh inquiry into the affairs of the Society could not be stopped because the facts and ground realities had been changed with the afflux of time---In addition to the powers conferred upon the Respondent (Secretary, Cooperatives Department) in terms of S. 64-A of the Act, 1925, he was also empowered to take cognizance of the matter under R. 3(3) of the Punjab Government Rules of Business, 2011 (the "Rules"), which clearly stated that business of the Government had been distributed amongst several Departments in the manner indicated in the Second Schedule and functions of the Secretary were described under R. 10 of the Rules, 2011---It was clear that Secretary, Cooperatives Department, being official head of the Department, had dealt with the matter as per the functions assigned to him under S. 64A of the Act, 1925 read with Clause 1(a) and Clause 7(i) to Second Schedule of the Rules 2011 in which he/she also administered the provisions of the Cooperative Societies Act, 1925, along with R. 10 of the Rules, because he/she was responsible for efficient and smooth working of the affairs of the Society---There was no occasion for the High Court to intefer with the orders which had rightly been passed by the concerned authorities---Constitutional petition, filed by the Co-operative Society, was dismissed in limine, in circumstances.

Muhammad Yasir Ibrahim for Petitioner.

2024 C L C 979

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

Mirza MUHAMMAD AKBAR BAIG----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.6002 of 2022, decided on 9th March, 2023.

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

----S.5, Sched.---Limitation Act (IX of 1908), Art.181---Family Courts---Non-applicability of provisions of C.P.C and Limitation Act, 1908---Execution of decree---Limitation---Executing Court dismissed the execution petition being time barred---Appellate Court reversed the order in appeal---Validity---No specific period of limitation for implementation of decree of dower couldbe fixed and whenever wife moved the legal forum for satisfaction of her right, husband was under legal obligation to satisfy such decree---Postponement of recovery of dower for any consideration during subsistence of marriage would not deprive the wife from execution of the decree being barred by time---Admittedly, marriage subsisted between the parties and the nature of dower was prompt dower, which was duly recognized by the Court---Prompt dower was recoverable during subsistence of marriage on demand---Thus, no specific period of limitation for implementation of decree of such nature could be fixed---Due to subsistence of marriage, the judgment debtor, i.e. the husband acknowledged the right of his wife and he is deemed to remain under a legal obligation to satisfy the decree whenever the decree holder/wife had moved the legal forum for satisfaction of her right---Valuable rights accrued to respondent after decree of her suit for recovery of dower, therefore, it was not fair to deprive her from the benefits of decree---One who succeeded in a litigation unjustly must not retain the benefit---After acceptance of Nikah in lieu of dower and enjoying its blessings, it did not suit a husband/judgment debtor/petitioner to question the maintainability of the execution petition on the point of limitation---Constitutional petition was dismissed.

Nematullah Khan v. Additional District Judge and others 2022 YLR Note 21; Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others 2022 SCMR 933; Muhammad Sharif and others v. MCB Bank Limited and others 2021 SCMR 1158; Haji Wajdad v. Provincial Government through Secretary Board of Revenue Government of Balochistan, Quetta and others 2020 SCMR 2046; State Bank of Pakistan through Governor and another Imtiaz Ali Khan and others 2012 SCMR 280 and Lt. Col. Nasir Malik v. Additional District Judge, Lahore and others 2016 SCMR 1821 ref.

Syed Muhammad v. Mst. Zeenat and others PLD 2001 SC 128 = 2001 SCJ 297 rel.

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

----Ss. 14 & 5, Sched.---Limitation Act (IX of 1908), Art.181--- Family Courts---Execution of decree---Limitation---Executing Court dismissed the execution petition being time barred---Appellate Court reversed the order in appeal---Validity---Right of appeal is not merely a matter of procedure, rather it is a substantive right---In terms of R. 22 of the Family Courts Rules, 1965, an appeal under S. 14 of the Family Courts Act, 1964, shall be preferred within a period of 30 days of the passing of the decree or decision but appellate Court is vested with the power to condone any delay in filing the appeal on showing sufficient cause by the appellant---From perusal of record it appeared that respondent No.3 along with her appeal moved an application for extension of time/condonation of delay, and provided sufficient explanation which resulted into the delayed appeal---Said application was supported by an affidavit and no counter affidavit was filed by the petitioner in its rebuttal, therefore, the grounds urged in the application had gone unchallenged, hence, the contents of affidavit, having gone unchallenged, were deemed to be true---Constitutional petition was dismissed.

Maqsood Pervaiz Chaudhry v. Mst. Nosheen Chaudhry and others PLD 2019 Lah. 102; Province of Punjab through Collector and others v. Muhammad Farooq and others PLD 2010 SC 582; Mst. Yasmeen Bibi v. Muhammad Ghazanfar Khan and others PLD 2016 SC 613 and Civil Aviation Authority v. Providence Aviation (Pvt.) (Ltd). 2000 CLC 1722 rel.

(c) Administration of Justice---

----Technicalities---Scope---Cases must be decided on merits instead of technicalities and the technicalities should not be a hindrance in the way of justice.

Manager, Jammu and Kashmir, State Property in Pakistan v Khuda Yar PLD 1975 SC 678 rel.

Mazhar Hussain Shah for Petitioner.

Javed Abbas Sial for Respondent No.3.

2024 C L C 996

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

TAHIR JAMEEL----Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY through Director General, Lahore and 2 others----Respondents

Writ Petition No.12812 of 2019, heard on 11th May, 2023.

(a) Lahore Development Authority Act (XXX of 1975)---

----S.25-B(7) [as amended through Lahore Development Authority (Amendment) Act, 2013]---Exemption of land---Entitlement to---Petitioner (awardee) invoked constitutional jurisdiction of the High Court challenging letter / correspondence issued by the respondent (Director Land Development, Lahore Development Authority) whereby he was advised to contact his vendors in order to recover the claimed compensation---Contention of the petitioner was that he was entitled for exemption of his acquired land and the same was granted pursuant to order passed by the concerned Commissioner, but subsequently the same had been given to some other person on the basis of an ex-parte decree, which had already been set aside---Validity---It was not discernable from the record as to whether any notice was served upon the petitioner or he was associated while conducting and finalizing Exemption proceedings in favour of decree-holders of ex-parte decree, which was subsequently set-aside---It was unimaginable that when the entire process of exemption was completed, how could the Award be cancelled even without issuing any notice or affording any opportunity of hearing to the petitioner merely on the basis of an ex-parte decree ---Any order passed against an aggrieved person, without providing him/her proper hearing or giving any reasons , is un-sustainable in the eye of law as the public functionaries are obliged to follow the principles of natural justice while deciding rights of the parties ---Petitioner had paid the entire development charges as directed by the LDA in the year 1998, hence, the process of subsequent exemption in favour of another party could not have been finalized without associating the earlier exemptee---Petitioner was entitled to due process, right to be treated fairly at all times, right to procedural fairness and right to procedural propriety---Petitioner, being a citizen of the Pakistan, had the right to fair procedure guaranteed constitutionally---High Court set-aside impugned letter / correspondence, declaring the same as illegal and without lawful Authority ; and remitted the matter to the concerned respondent (Director Land Development) with direction to redress petitioner's grievance strictly in accordance with law, after appreciating the available record as well as applicable law and contentions of the petitioner---Constitutional petition was allowed, in circumstances.

Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010 ref.

(b) Constitution of Pakistan---

----Arts. 199 & 4---Constitutional powers of the High Court---Scope---High Court in view of special circumstances, has ample powers to give direction to public functionaries to act in accordance with law by virtue of Arts. 4 & 199 of the Constitution, and can set-aside an order passed by the Authorities which is not valid in the eye of law.

Muhammad Aslam v. Government of the Punjab, Services and General Administration, Punjab Civil Secretariat, Lahore through Secretary and 5 others 2003 PLC (C.S) 433 ref.

(c) Lahore Development Authority Act (XXX of 1975)---

----S.25-B (7) [as amended through Lahore Development Authority (Amendment) Act (XXVI of 2013)]---Section 25-B (7) of the Lahore Development Authority Act, 1975---No restrospective effect---Section 25-B(7), was amended vide Lahore Development Authority (Amendment) Act (XXVI of 2013), which does not have any retrospective effect---An amendment in a section or its substitution which curtails substantive right or accrued right can not itself have a retrospective effect unless the Legislature elected to give it retrospective effect---Therefore, substituted or amended section of a Statute cannot obliterate accrued or vested rights ---In the present case, as S.25-B was added through an amendment in the year 2013 whereby substantive rights of the awardees were curtailed without giving it retrospective effect, therefore, said amendment could not affect the accrued rights before the amendment---High Court set-aside impugned letter / correspondence, declaring the same as illegal and without lawful authority ; and remitted the matter to the concerned respondent ( Director Land Development) with direction to redress petitioner's grievance strictly in accordance with law, after appreciating the available record as well as applicable law and contentions of the petitioner---Constitutional petition was allowed, in circumstances.

Zakaria H.A. Sattar Bilwani and another v. Inspecting Additional Commissioner of Wealth Tax, Range-II, Karachi 2003 SCMR 271; Mst. Sarwar Jan and others v. Mukhtar Ahmad and others PLD 2012 SC 217; Muhammad Tariq Badr and another v. National Bank of Pakistan and others 2013 SCMR 314; Badshah Gul Wazir v. Government of Khyber Pakhtunkhwa through Chief Secretary and others 2015 SCMR 43; Commissioner Inland Revenue v. Messrs Olympia Chemicals Ltd., Lahore 2021 PTD 1512; Islamabad Electric Supply Company Limited Through Additional Director General Legal v. National Electric Power Regulatory Authority and others PLD 2021 Isl. 221; Kashif Mahmood v. Additional District Judge and others 2022 MLD 1762 and The Commissioner Inland Revenue, Zone-II, Regional Tax Office, Lahore v. Shazia Zafar 2022 PTD 1942 ref.

Aurangzeb Mirza and Muhammad Irfan Hanjra for Petitioner.

Barrister Hamza Amjad for Respondents.

2024 C L C 1012

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

Sheikh MUHAMMAD HAFEEZ----Petitioner

Versus

FEDERATION OF PAKISTAN and others----Respondents

Writ Petition No.3256 of 2022, decided on 8th March, 2023.

(a) Punjab Civil Administration Act (III of 2017)---

----S. 15---Police Order (22 of 2002), Art. 4---Constitution of Pakistan, Art. 16---Constitutional petition---Right of association---Long march and sit-in ---District administration and Police, duties of---Scope---Petitioner assailed role of district administration and police during long march and sit-in of a political party---Validity---Duty is bestowed under S. 15 of Punjab Civil Administration Act, 2017, upon Commissioner, Deputy Commissioner and Assistant Commissioner, as the case may be, to ensure maintenance of public order and public safety and safeguarding public or private properties in their respective jurisdictions---It is primary duty of police to protect life, property and liberty of citizens---Police has to ensure that rights and privileges of public should be protected---Though a specific and exclusive function has been assigned to traffic officers in cities but with few exceptions they failed to discharge their functions and duties as per mandate of law---Traffic Wardens only played role of silent spectators or guide instead of realizing their actual functions and duties---Performance of Traffic Wardens needed to be addressed by Chief Traffic Officer at the priority who were to be reformed into officers of a Law Enforcing Agency---Sit-in has become a common phenomenon and fusty trend in Pakistan---It has become a source / weapon not only for political parties but every segment of society having followers / members / companions to stage a sit-in for their demands so as to exert pressure upon the Executive / state to fulfill their demands, leaving aside all legal course provided under law---Such trend has led the country to destabilization---In civilized countries, nobody can be allowed to take law in his / her own hands irrespective of how worse the conditions may be---Pakistan is perhaps the only country in which law enforcing agencies / executive, instead of defending cause of the State and maintaining its writ, join hands with persons / groups who intend to erode sovereignty of the State or to create lawlessness on extraneous reasons---High Court referred the matter to Provincial Government as Commissioner, Deputy Commissioner, Regional Police Officer, City Police Officer and Chief Traffic Officer failed to discharge their official duties in terms of relevant laws and instead acted as privy to illegal acts---High Court directed Provincial Government to probe into the conduct of such officials and proceed against them strictly in accordance with law---Constitutional petition was disposed of accordingly.

Suo Motu Case No.7 of 2017 (PLD 2019 SC 318) rel.

(b) Constitution of Pakistan---

----Art. 16---Right to assemble---Scope---Right to assemble peacefully is a fundamental right of every citizen guaranteed under Art. 16 of the Constitution---Such right is neither unbridled nor unlimited and Art. 16 of the Constitution is always subject to reasonable restriction imposed by law in respect of public order---Citizen who claims right of freedom of assembly for himself / herself has to keep in mind fundamental rights of other citizens, guaranteed under the Constitution e.g. security of person, freedom of movement, trade business and profession.

Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997 rel.

Israr-ul-Haq Malik, Arsalan Rasheed Qureshi and Asad Mahmood Abbasi for Petitioner.

Malik Muhammad Siddique Awan, Additional Attorney General, Sajid Khan Tanoli, Deputy Attorney General and Arshad Mehmood Malik, Assistant Attorney General for Respondent No.1.

Malik Amjad Ali, Additional Advocate General, Mirza Asif Abbas, Assistant Advocate General and Qaiser Abbas Shah, Assistant Advocate General for Punjab with Liaqat Ali Chattha, Commissioner Rawalpindi, Syed Shahzad Nadeem Bukhari, CPO, Taimoor Khan, CTO, Ms. Zunera, S.P, Ms. Shazia, DSP (Legal) and Waqas, S.P, Potohar for Respondents Nos.2 to 7.

Faisal Fareed Ch. for Respondents Nos.8 and 9.

2024 C L C 1047

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

MUHAMMAD IBRAR and 42 others----Petitioners

Versus

GOVERNMENT OF PUNJAB through Secretary, Ministry of Food Punjab and 4 others----Respondents

Writ Petition No.940 of 2023, decided on 11th July, 2023.

(a) Punjab Foodstuffs (Control) Act (XX of 1958)---

----S. 3---Constitution of Pakistan, Art. 18---Policy, framing of---Jurisdiction---Trichotomy of power---Petitioners / flour mills owners were aggrieved of policy framed by Provincial Government regarding issuance of wheat quota to their mills for grinding---Petitioners / flour mills owners sought increase in their wheat quota---Held, that Legislature is representative of the people to enact law and law so enacted acquires legitimacy---Framing of policy with regard to a particular subject is within the exclusive domain of the Executive, which is in a better position to decide on account of its mandate, experience, wisdom and sagacity which are acquired through diverse skills---Last pillar of the trichotomy of powers is the Judiciary, which is entrusted with the task to interpret law and to play role of arbiter in cases of disputes between individuals inter se and between individuals and the State---Right of freedom of trade, business or profession is always subject to such qualifications, if any as may be prescribed by law---Such qualifications empower Government to frame a policy, which is even provided under S. 3 of Punjab Foodstuffs (Control) Act, 1958---High Court declined to annul policy framed by the Executive, as there was no illegality, perversity, arbitrariness or established mala fide---Constitutional petition was dismissed, in circumstances.

Ibrahim Flour and General Mills, District Sheikhupura through Chief Executive v. Government of Punjab through Secretary to the Government of the Punjab, Food Department, Lahore and another PLD 2008 Lah. 184 distinguished.

Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1 rel.

(b) Constitution of Pakistan---

----Art. 18---Freedom of trade, business or profession---Principle---Such freedom is not an absolute right, rather it is regulated by some restrictions.

Taufique Asif for Petitioners.

Malik Amjad Ali, Additional Advocate General for Punjab with Syed Muhammad Shah, Advocate/Legal Advisor, Muhammad Zaman Watoo, Secretary Food, Punjab and Muhammad Ramzan, District Food Controller for Respondents.

2024 C L C 1060

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

ABDUL RASHEED----Petitioner

Versus

ZAHOOR-UD-DIN (DECEASED) through Legal Heirs and others----Respondents

Regular Second Appeal No.130821 of 2018, decided on 13th October, 2022.

Specific Relief Act (I of 1877)---

----Ss.12, 42 & 54---Oral agreement to sell---Proof---Evidence beyond pleadings---Effect---Predecessor-in-interest of respondents filed suit seeking declaration and possession of suit property through specific performance of agreement to sell---Trial Court partially decreed the suit in favour of predecessor-in-interest of respondents but Lower Appellate Court decreed the suit as prayed for in the plaint---Validity---Oral agreement to sell is permissible in law, but it has to be proved through credible and un-impeachable evidence---No date, time, place and mode of payment or names of witnesses of alleged oral agreement to sell were mentioned---Such ingredients were sine qua non to prove oral sale without which decree of specific performance could not be passed---No party could lead evidence beyond pleadings---Parties were required to lead evidence in consonance with their pleadings and no evidence could be produced or looked into in support of a plea which had not been taken in the pleadings---Court was to exclude and ignore such evidence led beyond pleadings from consideration---If a party intended to prove or disprove a case and some material was to be brought on record as part of evidence, which was not covered by the pleadings, it was to first seek amendment of pleadings---High Court in exercise of appellate jurisdiction set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Second appeal was allowed accordingly.

Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300; Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74; Kamal Din v. Muhammad Sharif 2006 YLR 1200; Karamdad v. Manzoor Ahmad and 2 others 2015 CLC 157; Mst. Bushra Bibi and others v. Mst. Nasim Bibi and others 2015 MLD 335; Ch. Tariq Mehmood v. Khadim Hussain (Deceased) through L.Rs. and others 2019 CLC Note 46; Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336; Sardar Muhammad Naseem Khan v. Returning Officer, PP-12 and others 2015 SCMR 1698; Saddaruddin (since deceased) through LRs. v. Sultan Khan (since deceased) through LRs and others 2021 SCMR 642 and Muhammad Naeem Khan and another v. Muqadas Khan (decd) through L.Rs. and another PLD 2022 SC 99 rel.

Amjad Mehmood Butt for Appellant.

Ahmed Faheem Bhatti, Sardar Azeem Afrasiyab and Afzal Hussain for Respondents.

2024 C L C 1094

[Lahore]

Before Ali Baqar Najafi, J

SALMAN AKRAM RAJA----Petitioner

Versus

RETURNING OFFICER and others----Respondents

Writ Petition No.8932 of 2024, decided on 12th February, 2024.

Elections Act (XXXIII of 2017)---

----Ss. 8, 9, 15 & 95---Constitution of Pakistan, Arts. 199, 218 (3) & 224---Constitutional petition---Election dispute---Factual controversy---Form 47, authenticity of---Scope---Petitioner / candidate was aggrieved of polling results declared by Election Commission, wherein respondent was declared as returned candidate---Validity---Contesting parties had taken divergent stands in respect of associating petitioner, a candidate, in consolidation process---Whether Form 47 was manipulated or not whether consolidation of results in Form 47 was made in absence of petitioner or not; and whether or not receiving / issuing notice to petitioner was prior to the preparation of Form 47, were all disputed questions of facts and the same could not be resolved in exercise of Constitutional jurisdiction under Art. 199 of the Constitution---Petitioner could file representation under Ss. 8, 9, 15 & 95 of Elections Act, 2017, read with Art.218 (3) of the Constitution before Election Commission of Pakistan---Consolidation of result whether made in presence or absence of petitioner would be resolved by Election Commission of Pakistan while deciding the matter, if agitated before it---Prompt decision by Election Commission of Pakistan would be in the spirit of Arts. 218(3) & 224 of the Constitution by strictly complying the provisions of Elections Act, 2017---High Court in exercise of constitutional jurisdiction declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Zulflqar Ali Bhatti v. Election Commission of Pakistan and other 2024 SCMR 997; Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others 2015 SCMR 233; Aurangzeb Khan v. Election Commission of Pakistan, Islamabad through Secretary and others PLD 2010 SC 34; Muhammad Hussain Babar v. Election Commission of Pakistan, through Secretary and others reported as PLD 2008 SC 495; Jameel Qadir, Muhammad Asif Baloch v. Government of Balochistan, Local Government, Rural Development and Agrovillers Department, Quetta through its Secretary and others 2023 SCMR 1919; Ali Asjad Malhi v. Ms. Syeda Nosheen Iftikhar and others PLD 2023 SC 1; Muhammad Salman v. Election Commission of Pakistan, Islamabad and others 2019 CLC 1069; Sohail Shahzad v. Chief Election Commission of Pakistan and 4 others 2023 MLD 602 and Dr. Liaqat Ali Khan and another v. District Returning Officer, District Sargodha and 3 others 2002 SCMR 1632 rel.

Sameer Khosa, Waqas Ahmad Mir, Abuzar Salman Niazi, Banister Muhammad Ali Talib, Muhammad Hammad Amin, Ms. Ali Waqar, Syed Aun Abbas and Rai Ahmad Hayat for Petitioner.

Ghulam Sarwar Nihung, Additional Advocate General Punjab, Muhammad Farrukh Khan, Assistant Advocate General Punjab with Rai Aurangzeb, SI/SHO, PS Model Town Lahore.

Imran Arif Ranjha for ECP with Muhammad Haroon Kasi, Director Law, Ms. Bushra Rasheed, Deputy Director Law ECP and Muhammad Kamran Afzal, RO NA-128 Lahore.

2024 C L C 1108

[Lahore]

Before Shahid Karim, J

YASIR YAQOOB and another----Petitioners

Versus

GOVERNMENT OF THE PUNJAB through Secretary Provincial Assembly of the Punjab and 4 others----Respondents

Writ Petition No.67316 of 2021, decided on 27th March, 2024.

Punjab Enforcement of Women's Property Rights Act (X of 2021)---

----Ss. 3, 4, 5, 6, 7, 8, 9, & 11---Constitution of Pakistan, Arts. 199 & 201---Constitutional petition---Vires of law---Judgment of High Court of another province---Value---Petitioners assailed provisions of Punjab Enforcement of Women's Property Rights Act, 2021, on the plea of same being ultra vires the Constitution---Same provisions had already been declared ultra vires the Constitution by Islamabad High Court---Effect---Judgment of Islamabad High Court had persuasive value for Lahore High Court which had persuaded the Court to follow the judgment without need to disagree and take a different view in order to reach the same destination---High Court declared that provision of Ss.3, 4, 5, 6, 7, 8, 9, and 11 of Punjab Enforcement of Women's Property Rights Act, 2021, were un-constitutional and without lawful authority and of no legal effect---High Court directed that the decision would be applicable to all matters before it including orders passed by Ombudsperson and under challenge in some petitions but were not applicable to matters which were not brought before High Court and had attained finality and were past and closed transactions---High Court directed Provincial Government to draft fresh law as the subject matter covered under Punjab Enforcement of Women's Property Rights Act, 2021, was an important issue relating to rights of female gender---Constitutional petition was allowed accordingly.

Saleen Ahmed Jan v. Deputy Commissioner, Islamabad 2024 CLC 953 fol.

United Bank Limited v. Federation of Pakistan PLD 2018 Lah. 322 and Muslim Commercial Bank Ltd. v. Federation of Pakistan 2020 CLD 829 rel.

Mian Muhammad Hussain Chotya, Mian Aleem Latif, Barrister Taha Shaukat, Sahibzada Anwaar Hameed, S.M. Zeeshan Mirza, Inam ul Haq Buttar, Ghulam Abbas Haral, Umair Ali Amin, Syed Raza Naqvi, Tanveer Ahmad, Rana Muhammad Afzal Razzaq Khan, Nauman Qureshi, Sardar Wasim Ahmad Mohal, Sajid Naseer Chaudhry, Anwaar Hussain, Azmat Mustafa Khan and Ch. Muhammad Salman Yaqoob for Petitioners.

Mian Abdul Aziz, Anas Mashood, Zulfiqar A. Qureshi, Ishtiaq A. Mian, Maryam Najam ud Din, Abdul Razzaq Mirza and Ali Masood Hayat for Respondent.

Hassan Ijaz Cheema, A.A.G., with Muhammad Naeem Chaudhry, Law Officer for official Respondents.

2024 C L C 1126

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

MEHMOOD ALI----Petitioner

Versus

CHAIRMAN EVACUEE TRUST PROPERTY BOARD and 4 others----Respondents

Writ Petition No.1479 of 2023, decided on 26th February, 2024.

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----S.30---Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977, Cls. 3(iii)(B)(b)---Schemes for management, maintenance and disposal of evacuee trust properties---Change of tenancy---Doctrine of Textualism---Applicability---Petitioner and his deceased brother / husband of respondent, were jointly tenants in shop in question---After the death of deceased (tenant), petitioner and respondent moved applications for change of tenancy which were dismissed by concerned official but Appellate Authority directed the concerned official to process the case for change of tenancy, who changed the tenancy in favour of respondent---Petitioner sought interpretation of Cl. 3(iii)(B)(b) of Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977, on the doctrine of Textualism---Validity---High Court declined to interpret Cl. 3(iii)(B)(b) of Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977, in absence of schedule of tenancy mentioned under the clause in question---Schedule of tenancy was neither provided by either of the parties before High Court nor before the authorities at the time of passing of orders assailed---Parties did not approach concerned authorities for more than seventeen years for determination of their rights of legal heirship---High Court set aside order in question and remanded the matter to authorities to decide the issue afresh keeping in view Cl. 3(iii)(B) of Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977---Constitutional petition was allowed accordingly.

Messrs Tri-Star Industries (Pvt.) Limited v. Trisa Burstenfabrik AG Triengen and another 2023 SCMR 1502; Faiz Ullah and others v. Dilawar Hussain and others 2022 SCMR 1647 and Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Muhammad Khurshid 2021 SCMR 369 rel.

Raja Israr Ahmad Abbasi, Advocate Supreme Court with Mohammad Masood Mahmood and Raja Anwaar-ul-Hassan for Petitioner.

Syed Najam-ul-Hassan Hashmi for Respondents Nos.1 to 4.

Hafiz Ahsan Khokhar, Advocate Supreme Court for ETPB with Asif Khan, Deputy Commissioner ETPB.

Wisal Khan with Tanzeela Nazar, Sarah Khan, Afaq Masood and Ahmad Hassan for Respondent No.5.

Zeeshan Riaz Cheema, Advocate Supreme Court.

2024 C L C 1137

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

MUHAMMAD AZRAM----Petitioner

Versus

MUHAMMAD ALTAF and another----Respondents

Civil Revision No.573-D of 2014, decided on 29th February, 2024.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Judgments at variance---Declaration without possession---Effect---Petitioner / plaintiff claimed to be owner in possession of suit land and sought cancellation of mutations attested in favour of respondent / defendant---Trial Court decreed the suit in favour of plaintiff but Lower Appellate Court dismissed the same---Validity---Petitioner asserted that he was in possession of suit land but he in his statement conceded that possession of suit land was with respondent / defendant---Petitioner / plaintiff was precluded to claim decree of declaration as owner of suit land unless relief of possession was sought---Relief of declaration is an equitable and discretionary relief---Petitioner / plaintiff twisted some material facts and produced only anecdotal evidence in support thereof which made him ineligible to claim relief of declaration---Lower Appellate Court rightly interfered with judgment passed by Trial Court---High Court in exercise of revisional jurisdiction declined to interfere in the matter as petitioner / plaintiff failed to point out any illegality or material irregularity in judgment passed by Lower Appellate Court---Revision was dismissed, in circumstances.

Faqir Ali and others v. Sakina Bibi and others PLD 2022 SC 85; Ghulam Farid and another v. Sher Rehman through LRs. 2016 SCMR 862; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Salamat Ali and others v. Muhammad Din and others PLD 2022 SC 353; Haji Muhammad Yunis (deceased) through legal heirs and another v. Mst. Farukh Sultan and others 2022 SCMR 1282 and Mst. Rabia Gula and others v. Muhammad Janan and others 2022 SCMR 1009 rel.

Mst. Faheeman Begum (deceased) through L.Rs and others v. Islam-ud-Din (deceased) through L.Rs and others 2023 SCMR 1402; Muhammad Akram through L.Rs. v. Mst. Noor Begum through L.Rs. and others PLD 2019 SC 599; Muhammad Nawaz through L.Rs v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398 and Mst. Saeeda through her son Muhammad Abid v. Muhammad Naeem and 3 others PLD 2013 Sindh 39 ref.

Shahryar Tariq for Petitioners.

Muhammad Masroof Ch. for Respondent No.1.

Nemo for Respondent No.2.

2024 C L C 1151

[Lahore]

Before Shahid Bilal Hassan and Masud Abid Naqvi, JJ

Ch. MUHAMMAD ARSHAD----Petitioner

Versus

PERVEZ ELAHI and 2 others----Respondents

Writ Petition No.20729 of 2024, heard on 3rd April, 2024.

Elections Act (XXXIII of 2017)---

----S. 62(9), second proviso---Election dispute---Nomination papers, acceptance of---Defect not substantial---Petitioner was aggrieved of acceptance of nomination papers of respondent / candidate by Election Tribunal---Plea raised by petitioner was that in nomination papers respondent / candidate did not declare certain properties owned by him through inheritance and land owned by his wife as well as weapons owned by him were also not disclosed---Validity---It was duty of Returning Officer to scrutinize nomination papers in the best interest of justice and to uphold fundamental rights of individual to contest elections---Instead of rejecting nomination papers, Returning Officer could direct respondent / candidate to mention the same in statement of assets---Returning Officer, in view of second proviso to S. 62(9) of Elections Act, 2017, should not reject any nomination paper on the ground of any defect which was not of a substantial nature and may allow such defect to be remedied---There was no column in election form where a candidate could give details of his weapons but the value of weapons were duly disclosed / mentioned in statement of assets---Respondent / candidate could contest election as independent candidate or to participate with certificate of a party as candidate of such party, as there was no bar---High Court declined to interfere in order passed by Election Tribunal accepting nomination papers of respondent / candidate---Constitutional petition was dismissed, in circumstances.

C.Ps. Nos.151 and 152 of 2024; PLD 2024 SC 571 and C.P. No.183 of 2024 rel.

Muhammad Ramzan Ch. and Barrister Abdul Qudoos Sohal for Petitioner.

Barrister Haris Azmat, Maryam Hayat, Farman Manais and Mohsin Murtaza Cheema for Respondent No.1.

Imran Arif Ranjha along with Haroon Kasi, Director Law, Election Commission of Pakistan for Respondent No.3.

Tabish Mehmood Butt and Malik Ikram Hussain, Returning Officer PP-32 in person.

2024 C L C 1170

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

SONIA SHARIEF----Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE and others----Respondents

Writ Petition No.97 of 2024, decided on 25th January, 2024.

Family Courts Act (XXXV of 1964)---

----S.20---Muslim Family Laws Ordinance (VIII of 1961), S.6---Trial of offences---Jurisdiction---Polygamy---Locus standi to file complaint---Scope---Petitioner / wife filed criminal complaint through her attorney against respondent / husband for contracting second marriage without permission of petitioner---Trial Court and Lower Appellate Court dismissed complaint and appeal filed by petitioner---Validity---Family Court is empowered to take cognizance and try any offence under Muslim Family Laws Ordinance, 1961---Petitioner was precluded to file complaint through attorney---High Court declined to interfere in orders passed by two Courts below as there was no perversity or material irregularity in the orders---Constitutional petition was dismissed, in circumstances.

Muzaffar Nawaz v. Ishrat Rasool and another 2022 YLR 1920; Khalid Mehmood and 3 others v. Safdar Iqbal and another 2017 PCr.LJ 1104; Usman Saleem v. Additional District and Sessions Judge III, Karachi East and 7 others 2021 PCr.LJ Note 66 and Ghazanfar Ali v. M. Zahid Hussain and others PLD 2011 Lah. 179 rel.

Liaqat Ali Mir v. Additional Sessions Judge and others 2017 PCr.LJ 1026 and Muhammad Qasim v. Station House Officer, Police Station Khudabad, District Dadu and 7 others 2016 MLD 1238 ref.

2024 C L C 1184

[Lahore]

Before Faisal Zaman Khan, J

MUHAMMAD ALI KHALID----Appellant

Versus

MUHAMMAD TALHA----Respondent

Regular First Appeal No.6825 of 2020, heard on 12th May, 2023.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.1, 2, 3, 4 & O.V, Rr. 1, 5---Suit for recovery on the basis of negotiable instrument---Issuance of summons to the defendant---Form No. 4, Appendix-B of Civil Procedure Code, 1908, non-compliance of---Effect---Application for leave to appear and defend the suit filed by the appellant /defendant was dismissed being barred by time, and thereupon the suit filed by the respondent / plaintiff was decreed---Plea of the appellant/ defendant was that he was never served and as and when he came to know about the pendency of the suit, an application for leave to appear and defend the suit was filed---Validity---Order XXXVII of the Civil Procedure Code, 1908 ('the O. XXXVII, C.P.C.'), is a special dispensation---Under O. XXXVII, C.P.C., unlike a regular civil suit, procedure has been provided to file and proceed with the suit filed on the basis of negotiable instruments, as contemplated in the Negotiable Instruments Act, 1881---In a suit filed under O.XXXVII, C.P.C, which is summary in nature, under R.3 of the said Order, a defendant, who has been served, within stipulated time, has to seek leave to appear and defend the suit and once the leave is granted, the suit shall be converted into a regular civil suit and will be decided in accordance with the general procedure prescribed in C.P.C.---Unlike the regular civil suit where summons for service of the defendant is issued under O.V, Rr.1 & 5, C.P.C., the format of which is given in Form No. 2 Appendix-B, C.P.C., in a suit filed under O.XXXVII, C.P.C., R.2 of C.P.C. a defendant has to be issued summons in the specific format as given in Form No. 4, Appendix-B of C.P.C.---Cumulative reading of the summonses, Forms 2 & 4, Appendix-B of C.P.C., would show that unlike a regular civil suit, where defendant is called to appear in the court, either himself or through a representative in a suit filed under O. XXXVII, C.P.C., defendant can only contest the suit subject to grant of leave to appear and defend the suit, that too on an application filed by him within 10 days of his service of summons (as provided under R. 3 of O. XXXVII, C.P.C., issued in the format given in Form 4, Appendix-B of C.P.C. (see R.2 of O. XXXVII, C.P.C.)---Text of both said summons would show that unlike summons issued in Form 2, Appendix-B of C.P.C., the defendant is cautioned about the time line in which he has to file such an application and it is a sine qua non that the summons is to be accompanied by a copy of plaint---Where the summons is not issued to a defendant in Form No. 4, Appendix-B, C.P.C., it will be presumed that he has not been served and his limitation for filing the application for leave to appear and defend the suit would start from the date when he appeared before the court and filed such application---In the present case, on filing of the suit by the respondent/plaintiff against the appellant / defendant ,an order was passed that summons in the prescribed form be issued to him (appellant), yet record showed that the initial two (02) summonses issued to him for next two dates of hearings (spanning two weeks or so) were not in the prescribed manner / Form 4, Appendix-B, C.P.C. as the said summonses were ordinary summonses which were issued in Form No. 2, Appendix-B, C.P.C.---Though after said two dates of hearing, for the first (and the last) time, summons in the correct format (in Form No. 4), was issued, however the Process Server reported at the back of the summons that he had received the summons (for service) one day prior to (next/fixed) date of hearing thus the time for service might be extended---Despite the fact that Process Server never served the appellant through summons issued in accordance with Form 4, Appendix-B, C.P.C., the Trial Court passed an order that since service of the appellant had been effected (which was factually incorrect) and none had entered appearance on his behalf therefore he might be served through substituted service---Since the appellant was never served through the prescribed summons as contemplated in O.XXXVII, R.2 & Form 4, Appendix-B, C.P.C., thus publication in the newspaper could not be issued---Hence, it could not be said that he was ever served, therefore, as and when he appeared before the Trial Court with his application for leave to appear and defend the suit, his limitation for filing such an application would start from the day he entered appearance---Trial Court erred in law in dismissing the application for leave to appear and defend the suit declaring the same barred by time and decreeing the suit---High Court set-aside the impugned order and decree, and resultantly, the suit filed by the respondent would be deemed to be pending before the Trial Court, which would decide the application for leave to appear and defend the suit filed by the appellant on merits and thereupon proceed with the suit---Appeal, filed by the defendant, was allowed accordingly.

Ahmad Shah and another v. Israr-ud-Din 2016 CLC 1100; Shafqat Mehmood v. Muhammad Nazir 2014 CLC 1222; Binyameen Khalil v. Riaz Ahmad Rahi 2014 CLC 105 and Muhammad Naeem Choudhry v. Aziz-ur-Rehman and another 2013 CLC 1042 ref.

Zahoor-ul-Hassan for Appellant.

Rana Muhammad Ishaque for Respondent.

2024 C L C 1193

[Lahore]

Before Ch. Muhammad Iqbal, J

PROVINCE OF PUNJAB through District Collector, Jhang and another----Petitioners

Versus

ALLAH BAKHSH and others----Respondents

Civil Revision No.925 of 2013, heard on 19th February, 2024.

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

----Ss. 42 & 54---Punjab Land Administration Manual, Para. 774---Suit for declaration and injunction---TIRNI GUZAR---Connotation---Non-existing right---Effect---Respondents / plaintiffs were in possession of State land in their capacity of TIRNI GUZAR---Suit was decreed in favour of respondents / plaintiffs concurrently by Trial Court and Lower Appellate Court---Validity---TIRNI GUZAR is merely a lessee / tenant and is not owner of land leased out to him---In revenue record petitioner / Provincial Government was shown owner of suit land and respondents / plaintiffs were mentioned as illegal occupants upon State land---There was neither any mutation nor any order of allotment ever passed in favour of respondents / plaintiffs---Possession of respondents / plaintiffs over suit land was of an illegal nature---All ethical, moral and legal norms favour law abiding persons and lends no support to illegal occupants, usurpers, transgressors, encroachers and grabbers of State land---Through suit for declaration under S. 42 of Specific Relief Act, 1877 only a declaration is issued regarding a pre-existing right and no fresh right can be created---Any suit for declaration with non-existent right is not maintainable---High Court in exercise of revisional jurisdiction set aside judgments and decrees passed by two courts below as they were the result of misreading and non-reading of evidence and failure to apply correct law---Resultantly suit filed by respondents / plaintiff was dismissed---Revision was allowed, in circumstances.

Fazal ur Rehman and others v. Province of Punjab through District Officer (Revenue) Bhakkar and another 2014 SCMR 1351; Muhammad Sharif through L.Rs v. Province of Punjab through District Officer Revenue, Pakpattan 2014 SCMR 334; Shazia Gillani and others v. Board of Revenue, Punjab Lahore through Member Colonies and others (in C.P. No.332-L of 2016); Civil Petition No.882-L of 2015; Director Military Lands and Cantonment Quetta Cantt., Quetta and others v. Aziz Ahmed and others 2023 SCMR 860; Al-Shafique Housing Society v. P.M.A PLD 1992 SC 113; Union Council Dhabeji v. Al-Noor Textile Mills Ltd. 1993 SCMR 7; Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423; Provincial Government through Collector, Kohat and another v. Shabbir Hussain PLD 2005 SC 337; Abdul Haq Indher v. Province of Sindh 2007 SCMR 907; Taj Muhammad v. Town Committee 1994 CLC 2214; Sindh Peoples Welfare Trust v. Government of Sindh 2005 CLC 713; S.M Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs 2002 SCMR 338; Haji Farman Ullah v. Latif-ur-Rehman 2015 SCMR 1708 and Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 ref.

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

----Art. 72---Documentary evidence---Proof---Producing documents in statement of advocate---Effect---Documents relied upon should be produced in evidence by party in its own statement so that adverse party may have a fair opportunity to cross-examine authenticity or veracity of such documents---Documents produced in statement of counsel of party lack intrinsic value and they can validly be excluded from being taken into consideration.

Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715 and Rustam and Others v. Jehangir (deceased) through LRs. 2023 SCMR 730 rel.

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

----S. 36---Civil Courts---Jurisdiction---When land is in the ownership of Provincial Government, then under S. 36 of Colonization of Government Lands (Punjab) Act, 1912, the Civil Court has no jurisdiction to enter into the vested right of the Revenue hierarchy.

Muhammad Sharif v. Province of Punjab and another 1984 SCMR 1308; Abdul Hamid and others v. Province of the Punjab through Collector Faisalabad and others 1989 SCMR 1741; Alam Sher through Legal Heirs v. Muhammad Sharif and 2 others 1998 SCMR 468; Muhammad Ali v. Province of Punjab and others 2005 SCMR 1302 and Muhammad Nazir Khan v. Ahmad and 2 others 2008 SCMR 521 rel.

Raja Muhammad Arif, Additional Advocate General for Petitioners.

Sh. Naveed Shahryar, Uneza Siddiqui, Humera Bashir Chaudhary, Safina Safdar Bhatti, Bashir Ahmad Mirza for Respondents.

2024 C L C 1246

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

NATIONAL HIGHWAY AUTHORITY, ISLAMABAD through Project Director Zafar Mehmood----Petitioner

Versus

MUHAMMAD AFZAL BHATTI and another----Respondents

R.F.A. No.20881 of 2023, heard on 3rd June, 2024.

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

----Arts. 72 & 133---Documentary evidence---Exhibited through statement of counsel----Legality---Right of cross-examination, non-availability of---Effect---Concept that documents cannot be admitted into evidence solely through statement of counsel during evidence is rooted in fundamental right to cross-examination, which is an essential aspect of adversarial legal system---Right to cross-examination allows opposing party to challenge veracity, authenticity and relevance of evidence presented, including documents---Admitting documents solely on the statements of counsel, compromises right of other party to cross-examine, which is not warranted by law---Trial Courts must ensure that all documentary evidence is subject to scrutiny of cross-examination to uphold principles of fairness and due process---Documents exhibited solely through statements of counsel without opportunity for cross-examination do not meet legal standards for admissibility of evidence---This ensures the integrity of judicial process and the rights of parties involved.

Manzoor Hussain (deceased) through L.Rs. v. Misri Khan PLD 2020 SC 749; Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715 and Mst. Rasoolan Bibi v. Province of Punjab and others 2023 CLC 1171 rel.

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

----Ss. 4 & 18---Qanun-e-Shahadat (10 of 1984), Arts. 72 & 133---Acquisition of land---Compensation---Determining factors---Documents not put to cross-examination---Appellant was land acquiring authority and aggrieved of enhancing of compensation regarding acquired land owned by respondent / landowner---Plea raised by appellant / authority was that all documents relied upon by Referee Court were exhibited during statement of counsel for respondent / landowner---Validity---Respondent / landowner got exhibited as many as seventeen (17) documents during statement of his counsel---Referee Court as well as both the parties in total oblivion of legal position had allowed those documents to be exhibited---Such exercise was not permissible under well-established principles of law---Best evidence helpful to resolve the controversy was lost which had seriously affected precious rights of parties---High Court directed for strict adherence of such principle to ensure substantial justice and to save parties from substantial loss---High Court in exercise of appellate jurisdiction reduced the compensation from Rs.2,000,000/- per Acre to Rs.1,500,000/- along with 15% compulsory acquisition charges and compound interest at the rate of 8% from the date of possession of acquired land to date of payment of enhanced amount of compensation---Appeal was allowed accordingly.

Government of N.-W.F.P. and others v. Akbar Shah and others 2010 SCMR 1408; Mst. Fatima and 2 others v. Najeeb Ullah and another 2020 CLC 780; Lahore Ring Road Authority and others v. Mian Mumtaz Ahmad and others 2021 CLC 178; Muhammad Hussain and another v. Province of Punjab through District Officer Revenue, Multan and others 2021 YLR 2310; Wasab Khan and another v. Mst. Bagh Bhari and 5 others 2017 MLD 1552; Muhammad Munawar v. Abdul Razaq and 6 others 2018 CLC 1227; Usman Khan v. Mst. Shehla Gul and 2 others 2020 CLC 910; Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700; Malik Tariq Mahmood and others v. Province of Punjab and others 2023 SCMR 102; Federal Government of Pakistan through Ministry of Defence Rawalpindi and others v. Mst. Zakia Begum and others PLD 2023 SC 277; National Highway Authority v. Rai Ahmad Nawaz Khan and others 2023 SCMR 700 and Nawabzada Abdul Qadir Khan and others v. Land Acquisition Collector Mardan and others 2023 SCMR 950 ref.

Muhammad Saim Chaudhary, Dewan Zakir Hussain and Saima Safdar Chaudhary for Appellant.

Muhammad Zain Qazi, Assistant Attorney General on Court's call.

Najaf Muzammal Khan for Respondent.

Muhammad Saad Bin Ghazi, Assistant Advocate General on Court's call.

2024 C L C 1288

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

Dr. ASMA NIGHAT ZAIDI and others----Petitioners

Versus

Syeda SAFOORA BEGUM and others----Respondents

Writ Petition No.7073 of 2022, heard on 9th May, 2023.

(a) Islamic law---

----Inheritance---Tarka---Scope---Legal heirs, entitlement of----All moveable and immoveable properties owned and possessed by the deceased at the time of death, including property which is due to the deceased from any other person (though not received by the deceased during his life time, but the deceased was legally entitled to raise a claim in respect of the same in his life time), and distributable among his legal heirs as per their respective shares is called Tarka---Succession to the estate of a Muslim under the Muhammadan Law shall open the moment a person departs from this world and rest of the proceedings are mere formalities---Legal heirs, as per the Shariah, who are alive at that time, shall be entitled to inherit the estate.

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

----S. 375---Succession certificate----Bank account of the deceased---Bank account bearing characteristic of "either or survivor"---Legal heirs, entitlement of---Scope---Petitioner /widow was aggrieved of concurrent judgments by which legal heirs, besides her, were also held entitled to inherit an amount left in joint account opened by she and her husband (deceased)---Validity---Bank Account opening application / form which bears characteristic of "either or survivor", neither gives any authority to the Bank to disburse the available amount to the survivor of the joint account holder nor makes the survivor sole owner of the amount available in joint account---Said arrangement also does not get support from Muhammadan Law, especially when the Courts below after appreciating the evidence brought on record have concurrently observed that it was not established that petitioner (wife /widow of the deceased ) had any own source of income rather she was dependent upon her husband and the joint account was opened in the air of confidence for sake of domestic liabilities---Moreover, it was not stipulated in the application form that the survivor was unconditionally entitled to withdraw any amount from the said account after the death of co-account holder without adopting the due process of law---Admittedly, the amount available in the joint account was not gifted to petitioner /widow, thus, she retained no title over the same---Even otherwise, under the law with the death of one of the account holders of a joint account any authorization/authority given by the deceased co-account holder stands automatically revoked and even a validly authorized person is denuded of such power after death of the principal as all assets of the deceased by operation of law stand vested in the ownership of legal heirs of the deceased and the Bank or the joint account holder are not empowered to unilaterally operate the account or withdraw any amount until and unless as per law a declaration regarding succession or letter of administration or probate is issued by the Court of competent jurisdiction---Even in nomination cases, nominee is not entitled to receive the entire amount of deceased---Such nomination would neither be a will nor a gift nor a trust---It would merely be a mandate, the validity of which would expire with death and the amount available in the account would be undisposed estate of the deceased---Such nomination cannot override the provisions of Islamic Law of Inheritance, therefore, no legal heir could be deprived from receiving their respective share---Both the Courts below had rightly appreciated the legal perspective of the matter and impugned decisions were supported by valid lawful reasons---Petitioners had failed to point out any illegality or legal infirmity in the concurrent findings of Courts below, hence no interference was warranted in exercise of constitutional jurisdiction---Constitutional petition, being meritless, was dismissed.

Ch. Habibullah v. Sheikhupura Central Cooperative Bank Ltd. PLD 1987 SC 53; Malik Safdar Ali Khan and another v. Public-at-Large and others 2004 SCMR 1219; Syed Shah Pir Mian Kazmi v. Mst. Nelofer (Widow) and others 2012 CLD 850 and Dubai Islamic Bank Pakistan and others v. Mst. Saima Yasin and others 2020 CLD 518 ref.

Raja Muhammad Riaz Satti for Petitioners.

Syed Ali Abbas Sherazi for Respondents.

2024 C L C 1331

[Lahore]

Before Raheel Kamran, J

AUN AKHTER and another----Petitioners

Versus

AHMAD ABDUL REHMAN and others----Respondents

Civil Revision No.54194 of 2023, decided on 9th April, 2024.

Punjab Civil Courts Ordinance (II of 1962)---

----Ss.3, 12 & 15---Family Courts Act (XXXV of 1964), S. 5---Civil dispute---Distribution of work---District Judge, powers of---Petitioners assailed order passed by District Judge, declining to withdraw cases of civil nature from Family Court and transferring the same to Civil Court---Validity---Whether it was power of withdrawal and transfer under S. 12 of Punjab Civil Courts Ordinance, 1962, or power to distribute business under S. 15 of Punjab Civil Courts Ordinance, 1962, no authority was vested in District Judge to entrust any matter to and empower Civil Judge to adjudicate upon any civil claim beyond the limits of its jurisdiction, in particular over the subject matters covered by special enactments---There was no provision in Punjab Civil Courts Ordinance, 1962 or Family Courts Act, 1964 or rules made thereunder which conferred authority upon Family Courts to adjudicate upon civil disputes other than those specified in Part-I of Schedule to Family Courts Act, 1964---Family Court cannot ordinarily hear civil suits for such Courts have been established for expeditious settlement and disposal of disputes regarding marriage and family affairs and the matters connected therewith---Except for disputes having unavoidable nexus with disputes adjudicated by Family Court which, if at all could be referred to Civil Judge presiding over Family Court, it would be clearly improper exercise of discretion on the part of District Judge to entrust any ordinary civil dispute to Family Court having no nexus whatsoever with any pending family case---High Court set aside order passed by District Judge and transferred cases in question to Civil Judge competent to adjudicate upon the same seized of civil matters in accordance with law---Revision was allowed accordingly.

Mian Umar Ikram-ul-Haque v. Dr. Shahida Hasnain and another 2016 SCMR 2186; Mirza Daud Baig v. Additional District Judge, Gujranwala and others 1987 SCMR 1161; Piao Gul v. The State PLD 1960 SC (Pak.) 307; Mst. Razia Begum v. Mst. Sardar Begum and others PLD 1978 Lah. 696; Allah Jiwaya v. Judge Family Court, Ahmadpur Sharquia and another 1990 MLD 239; Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260; Mst. Mahpara v. S. Arshad Mahmood and another 1999 CLC 514; Pakistan Muslim League (N) v. Federation of Pakistan through Secretary Ministry of Interior and others PLD 2007 SC 642; Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others 2011 SCMR 1361; Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others 2014 SCMR 1365; Haji Muhammad Nawaz v. Samina Kanwal and others 2017 SCMR 321; Muhammad Asim and others v. Mst. Samro Begum and others PLD 2018 SC 819; Muhammad Arshad Anjum v. Mst. Khurshid Begum and others 2021 SCMR 1145 and Sh. Liaqat Hussain and others v. Federation of Pakistan and others PLD 1999 SC 504 ref.

Mian Muhammad Hussain Chotya for Petitioners.

Rafique Ahmad Bhatti and Shafe Munir for Respondent No.1.

Nadeem-ud-Din Malik for Respondents Nos.3 and 4.

Ms. Shaffaf Shahid Latif, Amicus Curiae.

2024 C L C 1359

[Lahore]

Before Ali Baqar Najafi, J

ARZOO TEXTILE MILLS LTD. and others----Petitioners

Versus

FEDERATION OF PAKISTAN and others----Respondents

Writ Petition No.23960 of 2023, decided on 12th July, 2023.

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

----S.31---Constitution of Pakistan, Art. 199---Constitutional petition---Policy matter---Recalling of subsidy---Alternate remedy, non-availing of---Promissory esstopel---Applicability---Petitioners / companies were industrial consumers of electricity in the category of consumers under B-3 & B-4 class tariff and were aggrieved of withdrawal of subsidy vide notification No. PF.5-(02-ZR) 2020, dated 28-02-2023 by DISCOS on the principle of Promissory estoppel---Validity---No Government could function if its policy is continuously reviewed without giving any permanence but no Government can earn a good reputation amongst its masses if it takes a decision without any economic viability---No government can survive unless it is in a position to give economic benefits to its subjects and it is equally important that no Government is acceptable unless it properly appropriates funds for the promotion of export oriented industry to compete with international commodities---Policy decisions are to be taken on the basis of hard ground realities which cannot be interfered with by High Court---Subsidy was merged into tariff before it was charged to petitioners / companies and the same could be challenged before appropriate forum---Policy decisions of Government were areas where jurisdiction under Art. 199 of the Constitution could not be exercised---Promissory estoppels were not attracted stricto sensu as Government had taken the decision not on its own but based on certain contingencies which were not in its control---Petitioners / companies did not play any fraud and decision taken by Government to offer subsidy was partially acted upon until the time when notification in question was issued---Power to take decision by Government included power to recall, therefore, recalling of subsidy was with prospective effect---Subsidies (time-bound or otherwise) was part of the tariff and could be challenged under the National Electric Power Regulatory Authority Act, 1997, through alternate remedies---Constitutional petition was dismissed, in circumstances.

K-Electric Limited through Chief Executive Officer, Karachi v. Federation of Pakistan through Secretary, Ministry of Energy and Secretary, Ministry of Finance, Islamabad and others PLD 2023 SC 412; Al-Samrez Enterprise v. The Federation of Pakistan 1986 SCMR 1917; Messrs Elahi Cotton Mills Ltd and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others PLD 1997 SC 582; National Saving Central Directorate, Islamabad through D.G. and another v. Muhammad Farooq Raja PLD 2021 SC 320; Dossani Travels (Pvt.) Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1 and Peshawar Electric Supply Company Ltd. (PESCO) and another v. SS Polypropylene (Pvt.) Ltd. Peshawar and others PLD 2023 SC 316 ref.

Mst. Fatima Faryad and others v. Government of Punjab and others 2020 CLC 836 and Dewan Salman Fiber Ltd. and others v. Federation of Pakistan, through Secretary, Ministry of Finance and others 2015 PTD 2304 distinguished.

Petitioners by

Salman Akram Raja, Arslan Riaz, Rai Amer Ijaz Kharal, Rabeel Safdar Tatla, Muhammad Omar Malik, Arslan Fazil, Mustafa Kamal, Malik Bashir Ahmad Khalid, M.A. Rizwan Kamboh, Qamar-uz-Zaman Cheema, Khalil-ur-Rehman, Hashim Aslam Butt, Naveed Khalid, Ms. Samia Aslam, Saima Safdar Chaudhary, Ms. Uzma Firdous, Malik Farrukh Khurshid, Malik Ahsan Mehmood, Hafiz Muhammad Shehzad, Ch. Iqbal Ahmad Khan Dehangal, Nauman Aziz, Abdul Rehman Qadar Khan, Barrister Hassan Qadar Khan, Rana Sohail Ashraf, Malik Imran Khan Thaheem, Muhammad Ihtisham Arshad, Mian Mehmood Rashid, Irfan Ghaus Ghumman, Irfan Dogar, Hassan Raza, S.M. Ghaffar Khan, Iftikhar Gull Khan, Muhammad Amir Masood Niazi, Barrister Muhammad Hassan Anwaar Pannun, Rana Muhammad Imran Qamar, Muhammad Tariq Bashir, Muhammad Abu Bakar, Abdul Hameed Tahir Kasuri, Ali Akbar Rana, Tanveer Ahmad Gill, Abdul Waheed Habib, Muhammad Nauman Khurshid Mayo, Waseem Ahmad, Ch. Babar Waheed, Syed Tassadaq Mustafa Naqvi, Syed Tassadaq Murtaza Naqvi, Ali Naqi Zaidi, Muhammad Anwar Khan, Muhammad Usman Latif, Muhammad Arfan Randhawa, Muhammad Umar, Syed Muhammad Ali Abdullah Mashhadi, Omer Daraz Sheikh, Sardar Jehangir Hassan Dogar, Barrister Ch. Hasnain Yunus, Mujtaba Hassan Tatla, Mian Aqeel Chaudhary, Muhammad Nadeem Abbasi, Barrister Taimoor Malik, Barrister Maleeha Bukhari, Mohsin Iqbal, Barrister Maryam Hayat, Naveed Anjum, Muhammad Irfan Khan, Fazal Elahi Akbar, Muhammad Usman Rafiq, Muhammad Imran Mansha, Moiz Tariq, Riasat Noor Zaman, Muhammad Aslam Sheikh, Muhammad Shehzad Wattoo, Muhammad Naeem, Muhammad Tahir, Haris Iftikhar, Mustafa Haroon, Mohib Ghazi, R.A. Majid, Abdul Qadus, Rana Zohaib, Anees Sherwani, Sher Baz Ali, Muhammad Imtiaz Gujjar, Muhammad Saad, Muhammad Javed Arshad, Hammad-ul-Hassan Hanjra, Malik Ghulam Hassan Ahmad, Waqar Hassan, Mian Muhammad Hussain, Nauman Azeem Butt, Abuzar Hussain, Sardar Azam Mehmood Kasana, Mian Ijaz Latif, Anees-ur-Rehman, Malik Nadir Ali Sherazi, Mehar Junaid Masood Ahmad, Faisal Zaffar, Ch. Ahsan Gujjar, Tanvir Abbas Bhatti, Muhammad Muzahir Chaudhary, Syed Alamdar Hussain, Muhammad Irfan Liaqat, Mian Subah Sadiq Klasson, Muhammad Faizan Sadiq, Syed Waqas Zafar, Aasim Sohaib, Muhammad Tahir Munir, Rana Muhammad Usama, Saad Waqas, Muhammad Imtiaz-ur-Rehman, Azeem Ullah Virk, Ch. Usman Latif, Sagheer Ahmad.

Respondents by

Nasar Ahmad, Additional Attorney General for Pakistan, Badar Munir Malik, Deputy Attorney General and Ch. Usman Ghani, Assistant Attorney General.

Shoaib Rashid, Waleed Khalid for LESCO.

Muhammad Bilal Munir for LESCO/FBR/NTDC.

Mehr Shahid Mehmood, Deputy Manager (Legal), Basharat Ali Mehmood, Deputy Manager (Legal) LESCO.

Mirza Aurangzeb and Muhammad Imran Naru for GEPCO.

Waqar A. Sheikh, Muhammad Azeem Daniyal; Syed Faisal G.Meeran, Sarfraz Ahmad Cheema and Shehzad Ahmad Cheema for FESCO.

Mian Muhammad Javed, Malik Asif Rafiq Rajwana, Barrister Kashif Rafiq Rajwana, Hammad Khan Babar, Ahtisham-ud-Din Khan, Muhammad Nauman Sarwar for MEPCO/GEPCO with Ansar Mehmood, Chief Law Officer GEPCO.

Shehzad Ahmad Cheema for Respondent (in W.P.No.27763-2023 and W.P.No.24401-2023).

Muhammad Saqlain Arshad and Ehsan Malik for NTDC.

Shahid Sarwar Chahil for FBR Faisalabad.

Barrister Pirzada Muhammad Aurangzaib for NEPRA.

Afaq Shaheen for IESCO.

Muhammad Ijaz Jamal for Model Town Society.

2024 C L C 1379

[Lahore]

Before Ch. Muhammad Iqbal, J

MUHAMMAD TANVIR----Petitioner

Versus

MUHAMMAD RAMZAN ASAD and others----Respondents

Civil Revision No.19654 of 2022, heard on 3rd May, 2024.

(a) Registration Act (XVI of 1908)---

----S.50, proviso (1) & (2)---Transfer of Property Act (IV of 1882), S.53-A---Specific Relief Act (I of 1877), Ss. 12 & 39---Suit for specific performance and cancellation of mutation---Execution of agreement to sell, denial of---Agreement to sell prior in time---Scope and effect---Appellate Court decreed the suit of the plaintiff, while setting aside judgment of Trial Court whereby it ordered the defendant to return double amount of earnest money to the plaintiff---Contention of the petitioner/defendant was that the owner of suit land (vendor/ respondent/defendant) had conceded his (petitioner's) claim (prior agreement to sell ) as well as relevant mutation having been entered in his favour whereas said owner (as a defendant in suit-in-question) had denied the execution of agreement to sell in favour of respondent/plaintiff---Validity---Evidence produced by the respondent / plaintiff revealed that one of the witnesses produced by him, during cross-examination, deposed that the mutation (sought to be cancelled) was already entered in respect of the petitioner and admitted it correct that suit-property had been transferred by owner in his (petitioner's) favour---Even, the respondent / plaintiff while appearing as witnesses admitted that prior to him, the petitioner / defendant had purchased the suit land from the real owner of the suit land( respondent /defendant) and it showed that the respondent / plaintiff knew the execution of agreement to sell by respondent/owner in favour of the petitioner---Where an agreement is admitted, possession is delivered and receipt of major portion of payment is also admitted then any subsequent agreement or even registered document, if any, cannot be considered as a superior document to that of the earlier agreement---Furthermore, under Proviso (1) & (2) to S. 50 of the Registration Act, 1908, if an unregistered document is prior in time that would be entitled to the rights under Section 53-A of the Transfer of Property Act, 1882---High Court set aside the judgment and decree passed by the Appellate Court and the judgment and decree passed by the Trial Court was upheld---Civil revision filed by the defendant was allowed.

Nawab Khan v. Raira Begum and others 2003 SCMR 1498; Mst. Jaiwanti Bai v. Messrs Amir Corporation and others PLD 2021 SC 434; Sardar Arshid Hussain v. Mst. Zenat un Nisa and another 2017 SCMR 608 and Mst. Rehmat and others v. Mst. Zubaida Begum and others 2021 SCMR 1534 ref.

(b) Registration Act (XVI of 1908)---

----S. 50, proviso (1) & (2)---Transfer of Property Act (IV of 1882), S. 53-A---Specific Relief Act (I of 1877), Ss. 12 & 39---Suit for specific performance and cancellation of mutation---Execution of agreement to sell, denial of---Agreement to sell prior in time---Burden of proof---Initial burden was on the respondent/plaintiff to prove the factum that he had no knowledge of prior agreement in favour of the petitioner / defendant, whereas in his cross-examination he admitted that he knew the same ; thus, he was not entitled for any relief.

Gulzar Ahmad others v. Muhammad Aslam and others 2022 SCMR 1433 ref.

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

----S. 53-A---Subsequent vendee, responsibilities of---A subsequent vendee is required to make inquiry as to the nature of possession or title or further interest if any of original purchaser over the suit-property at time of entering into sale transaction.

Bahar Shah and others v. Manzoor Ahmad 2022 SCMR 284 ref.

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

----Ss. 22 & 12---Suit for specific performance---Discretion / power of the Trial Court---Scope---Under S.22 of the Specific Relief Act, 1877, the grant of decree for specific performance comes within the sole discretionary power of the court which can refuse to grant the relief on the principle of equity even if the person filing the suit has proved the case.

Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others 2019 SCMR 524; Muhammad Miskeen v. District Judge Attock and others 2020 SCMR 406 and Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 ref.

Usman Nasir Awan for Petitioner.

Zafar Iqbal Chohan for Respondents.

2024 C L C 1392

[Lahore]

Before Ali Baqar Najafi, Jawad Hassan and Shahid Bilal Hassan, JJ

JAMAL NASIR CHEEMA through Special Attorney----Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, through Secretary and 3 others----Respondents

Writ Petition No.2294 of 2024, heard on 14th January, 2024.

Elections Act (XXXIII of 2017)---

----S.62---Constitution of Pakistan, Art. 199---Nomination papers, rejection of---Elections matters---Judicial review---Scope---Candidate filed the constitutional petition with prayer to set aside the judgments passed by the Election Appellate Tribunal ('the Tribunal') as well as the Returning Officer, whereby his nomination papers were rejected---Scope of judicial review of the High Court under Art. 199 of the Constitution in election matters is confined to the extent of an order passed by Election Authority unlawfully or it is coram non judice or mala fide---Such scope cannot be enlarged to cases relating to factual inquiry or in cases in which another view of the matter was also possible---Examination of the impugned judgment and order revealed that the Tribunal had duly taken into consideration all the grounds taken by the petitioner / candidate which even otherwise were based on finding of facts, after detailed discussion, deliberation and correct interpretation of provisions of the Elections Act, 2017, and the Constitution---There was no illegality or perversity in the impugned judgment and the impugned order passed by the Election Tribunal and Returning Officer warranting any interference by the High Court---Constitutional petition filed by the candidate, was dismissed, in circumstances.

Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 75 ref.

Barrister Haris Azmat for Petitioner.

Rizwan ul Hassan for Respondent No.2.

Imran Arif Ranjha with Ms. Bushra Rasheed, Deputy Director Law and Hafiz Adeel Ashraf, A.D. for Election Commission of Pakistan.

2024 C L C 1402

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

ABDUL HAMEED----Petitioner

Versus

ARIF JAVED and others----Respondents

Writ Petition No.2635 of 2022, heard on 15th April, 2024.

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

----Ss. 6(1) & 17---Punjab Rented Premises Act (VII of 2009), S. 19---Ejectment petition---Forum of filing---Rent Controller Cantonment Board---Jurisdiction---Tenant asserted that the rented premises was situated under limits of cantonment---Petitioner/tenant assailed concurrent findings whereby the Special Judge (Rent) had assumed jurisdiction qua rented premises passing eviction order against him---Validity---Record showed that the landlord/ respondent in his ejectment petition had mentioned the location of the demised premises as other than the concerned cantonment, while in application for leave to contest filed by the petitioner/tenant, it was objected that said property fell within the administration of concerned cantonment---It was evident from the record that the rented premises was in the ownership of real brother of the respondent under a duly registered sale deed and the respondent had filed ejectment petition on behalf of his real brother and executed tenancy agreement with the petitioner---Perusal of said sale deed revealed that demised premises was located within the limits of a Cantonment Board---Section 17 of the Cantonments Rent Restriction Act, 1963, provides for eviction of tenant from the premises within the limits of cantonment area by applying to the Rent Controller for an order of eviction of a tenant but, in the present case, the Special Judge (Rent), had illegally assumed jurisdiction in the matter, though, he had no power to adjudicate upon the ejectment petition, hence the findings of Special Judge (Rent) were absolutely misconceived and based upon wrong assumption of law---Respondent/landlord sought eviction of the petitioner from the demised premises for which he could have filed petition in the court of the Rent Controller Cantonment Board under S.17 of the Cantonments Rent Restriction Act, 1963, who could have exercised jurisdiction under the law---Thus, adjudication, of the ejectment petition filed by respondent, by the Special Judge (Rent), and Additional District Judge/Appellate Court was without jurisdiction which had no legal effect whatsoever---High Court set-aside the impugned orders and judgments passed by both the courts below being without jurisdiction and any lawful authority---Constitutional petition filed by the tenant was allowed accordingly.

Nasir Mehmood v. Khawar Hussain and 5 others 2014 CLC 832 and Habib Masih and another v. Additional District Judge, Lahore and another 2003 YLR 1245 ref.

(b) Interpretation of statutes---

----Preamble to a statute---Scope---Preamble to a statute is though not an operational part of the enactment but it is a gateway which opens before the Court the purpose and intent of the legislature, which necessitated the legislation on the subject and also sheds clear light on the goals which the legislator aimed to secure through the introduction of such law---Preamble of a statute, therefore holds a pivotal role for the purposes of interpretation in order to dissect the true purpose and intent of the law.

Director General, FIA and others v. Kamran Iqbal and others" 2016 SCMR 447 ref.

Zafar Abbas Mir and Ambreen Khan for Petitioner.

Syed Hameed Raza Kazmi for Respondent No.1.

2024 C L C 1415

[Lahore]

Before Mirza Viqas Rauf and Jawad Hassan, JJ

ABDUL GHAFOOR and another----Appellants

Versus

BABAR SULTAN JADOON and 3 others----Respondents

Regular First Appeal No.71 of 2021, decided on 18th April, 2024.

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

----Ss. 39 & 42---Cancellation of document and declaration---Distinction---Notable distinction between provisions of Ss. 39 & 42 of Specific Relief Act, 1877 is that the former presupposes that document whose cancellation is sought through suit is void or voidable qua plaintiff---Whereas, in terms of provisions of S. 42 of Specific Relief Act, 1877, a person entitled to any character or to any right to any property when offended from denial of such character or right or title from any other person, seeks a declaration of his status or right without asking for cancellation in furtherance of such declaration.

Muhammad Ajaib v. Mughal Hussain and 2 others 2004 YLR 690; Khalid Hussain and others v. Nazir Ahmad and others 2021 SCMR 1986 and Mst. Haliman Bibi v. Muhammad Bashir and 2 others 1989 CLC 1588 rel.

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

----Ss. 201 & 202---Power of attorney---Object, purpose and scope---Interest of agent---Primary purpose of instrument of attorney is to assign or delegate authority of principal to another person as his agent---Main object behind such document is that agent has to act in the name of principal and the principal also purports to rectify all acts and deeds of his agent done by him under the authority conferred through the instrument---Power of attorney can either be general or special but in all circumstances, it must be strictly construed in the light of its recitals to ascertain the manner of exercise of authority in relation to terms and conditions specified in the instrument---When agent has himself interest in the property, which forms subject matter of agency, the agency cannot in absence of an express contract, be terminated to the prejudice of such interest.

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

----Ss. 39, 42 & 54---Contract Act (IX of 1872), S. 202---Suit for cancellation of document, declaration and injunction---Irrevocable power of attorney---Interest of agent---Appellant / plaintiff filed suit alleging that he executed general power of attorney in favour of respondent / defendant along with an agreement to sell regarding suit property---Appellant / plaintiff sought cancellation of sale deed executed by respondent / defendant in favour of respondents / buyers---Suit filed by appellant / plaintiff was dismissed by Trial Court---Validity---Once it was established on record that deed of attorney was coupled with agreement to sell whereunder appellant / plaintiff had also received whole consideration, then deed of attorney so executed was irrevocable---There was no need for the attorney (respondent/defendant) to obtain consent of principal (appellant/plaintiff) before executing sale deed in favour of respondents/ buyers---Appellant / plaintiff was out of possession---Suit was only instituted by appellant / plaintiff while one of the other executants of power of attorney in question was amongst the defendants and had appeared as defendants' witness---Remaining executants of the deed of attorney neither challenged the same nor had come forward to question its validity---High Court declined to interfere in judgment and decree passed by Trial Court---Appeal was dismissed, in circumstances.

Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624; Muhammad Sharif and 13 others v. Inayat Ullah and 24 others 1996 SCMR 145; Muhammad Yousaf v. Mst. Azra Parveen 2012 SCMR 380; Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715; Manzoor Hussain (deceased) through L.Rs. v. Misri Khan PLD 2020 SC 749 and National Command Authority through D.G. SPD, Rawalpindi and others v. Zahoor Azam and others 2024 CLC 1 rel.

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

----Art. 72---Document---Proof---Producing document in statement of counsel---Legality---Document produced in statement of counsel for a party relying on that document is not a permissible procedure.

Dr. Mumtaz Ali Khan for Appellants.

Muhammad Faisal Butt for Respondents Nos.1 to 3.

Nemo. for Respondent No.4.

2024 C L C 1451

[Lahore]

Before Anwaar Hussain, J

MUHAMMAD RASHEED (Deceased) through his Legal Heirs and others----Petitioners

Versus

MUHAMMAD ISMAIL and others----Respondents

Civil Revision No.1090 of 2009 (and connected Civil Revision) heard on 23rd February, 2023.

(a) Gift---

----Oral gift---Mutation---Essential ingredients of a valid gift---Proof---Inquiry report by the revenue officers about the veracity of actual date of death of donor---Validity---Failure of petitioners/donees to prove actual date of death of donor after the date of sanctioning of mutation---Effect---Plea of non-production of scribe of inquiry report---Validity---Respondents/plaintiffs produced 04 witnesses, who categorically supported their version that donor expired prior to the execution of the impugned oral gift---Inquiry report also reflected that the date of death as claimed by the petitioners/donees being beneficiaries of an oral transaction, was recorded in the relevant record by the petitioners after a gap of more than 10 years challenging already existing entry related to death recorded by the respondents, which raised serious doubt about veracity thereof---In case the statement of scribe of inquiry report had not been recorded in the suit of respondents, matter could be examined from another angle without placing any reliance on the said inquiry report and taking benefit from the same that a mutation by itself does not create any title unless it can be substantiated to be backed by a valid transaction more particularly if the transaction was in the nature of Hiba depriving legal heirs of the donor---Petitioners were not real paternal grandsons of the donor---Details were conspicuously absent as neither the time of offer and acceptance of the gift had been mentioned in the written statement nor any witness had been produced in support of the said contentions---Petitioners failed to prove necessary ingredient of the oral gift depriving the respondents, who were admittedly legal heirs of the donor---Revisions were dismissed accordingly.

2003 YLR 3184; 1994 MLD 467 and PLD 1986 Lah. 194 rel.

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

----S. 42---Limitation Act (IX of 1908), First Sched., Art. 120---Suit for declaration---Oral gift---Fraud---Inheritance---Limitation---Contention of the petitioners was that the suit was time barred---Validity---Fraud vitiates the most solemn proceedings and thus period of limitation would not be an embargo upon a justifiable claim directed against fraud, more particularly if same involves right of a person to inheritance of the property.

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

----S.11---Punjab Land Revenue Act (XVII of 1967), Ss. 53 & 172---Oral gift---Mutation---Res judicata, principle of---Applicability---Jurisdiction of revenue and civil courts---Scope---Contention of the petitioners that earlier a decision was made on revenue side, therefore, subsequently civil suit could not be filed---Validity---Any decision on the revenue side, could not operate as bar on a subsequent civil suit, more particularly, when question of fraud is involved in respect of which the jurisdiction of the revenue authorities was barred, for the reason that the proceedings before the revenue officers and or the revenue courts are summarily conducted without recording of evidence---Section 11 of the C.P.C. that is based on doctrine of res judicata clearly stipulates that no subsequent suit should be entertained in which the matter is directly and substantially the same in a former suit between the same parties and decided by a court of competent jurisdiction, therefore, S.11 of the C.P.C. is applicable only where earlier as well as the subsequent proceedings are before the courts, which are competent to decide both the matters---Revenue court and civil court are not vested with the similar jurisdiction rather their jurisdiction is mutually exclusive to each other in certain matters---Jurisdiction of civil court is barred in terms of S.172 of the Land Revenue Act, 1967 only with respect to matters exclusively vested in the jurisdiction of revenue courts under the said provision and civil suit is always maintainable under S.53 of the Act to establish right or title in respect of immovable property where the revenue court lacks jurisdiction---Revision petitions were dismissed.

Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064 and Arshad Ali and 6 others v. Muhammad Tufail through L.Rs. and others 2013 CLC 632 rel.

Muhammad Sher and others v. Mst. Taj Meena and other PLD 1996 Pesh. 6 and Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160 ref.

Bashir Ahmad Qureshi-I for Petitioners.

Nauman Qureshi and Muhammad Anwar Toor for Respondents.

2024 C L C 1468

[Lahore]

Before Sultan Tanvir Ahmad, J

MUHAMMAD ZULFIQAR ALI----Appellant

Versus

RASHID MEHMOOD SIDHU----Respondent

F.A.O. No.72708 of 2023, decided on 18th April, 2024.

Civil Procedure Code (V of 1908)---

----O.II, R.2, O.XXIII, R.1(3)---Specific Relief Act (I of 1877), S.54---Intellectual Property Organization of Pakistan Act (XXII of 2012), S. 19---Suit for injunction---Withdrawal of earlier suit---Bar contained in O.XXIII, R. 1(3), C.P.C.---Applicability---Appellant assailed order passed by Intellectual Property Tribunal, whereby it declared that filing of second suit was not hit by the bar contained in O.XXIII R.1(3), C.P.C.---Validity---One of the common principles engrafted in O. II, as well as O. XXIII, C.P.C. is that unless the Court is satisfied as to the reasons given in relevant rules of the two Orders, defendants should not be subjected to more than one suits for same cause---In O.II, R.2, C.P.C., the Legislature has used words where a plaintiff omits to sue… shall not afterwards sue---Likewise, in O. II, R. 2, C.P.C. states that a person if entitled to more than one relief may sue for all or any of such relief, but if omits, except with the leave of the Court….he shall not afterwards sue for any relief so omitted---Word "afterwards", in O. II, R. 2 C.P.C. is not used with reference to decision of cases and is used with regard to the word "sue"---When pendency of earlier suit is disclosed, the Court can control the situation by taking an action, at the earliest---When it comes to the surface that filing of earlier suit is not disclosed in the subsequent suit, the Trial Courts are sufficiently empowered to curb and regulate such situation on account of non-disclosure of information---High Court declined to interfere in the order passed by Tribunal, which had adopted the correct approach in the matter---Appeal was dismissed, in circumstances.

Trustees of the Port of Karachi v. Organization of Karachi Port Trust Workers and others 2013 SCMR 238; Ghulam Abbas and others v. Mohammad Shafi through LRs and others 2016 SCMR 1403; Shahbaz Khan v. Additional District Judge, Ferozewala and others 2017 SCMR 2005; Khawaja Bashir Ahmed and Sons (Pvt.) Ltd. v. Messrs Martrade Shipping and Transport and others PLD 2021 SC 373; Malik Ehsan Ullah and others v. Province of the Punjab and others PLJ 2021 Lahore 352; Nasir Ali v. Muhammad Asghar 2022 SCMR 1054; Kamilaaamir and another v. Additional District and Sessions Judge and others PLD 2023 Lah. 601; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; The Commissioner of Income Tax N.C.A. Circle, Karachi and another v. Haji Ashfaq Ahmad Khan and 10 others PLD 1973 SC 406; Karamat Ali Khan and another v. Sardar Ali and 29 others PLD 2001 Supreme Court (AJ&K) 30; Shabina Kousar v. Nargis Khatoon and 11 others 2017 CLC 822; Naveed Rukhsar and another v. Muhammad Salim Lakhani 2018 MLD 401; Vimlesh Kumari Kulshrestha v. Sambhajirao and another AIR 2009 Supreme Court 806; Mrs. Razia Ahmed and another v. Karachi Building Control Authority through Chief Controller of Buildings, Karachi and 2 others PLD 2000 Kar. 288; Malik Zarin Khan v. Adnan Ali Malik and 2 others 2023 CLC 1368 and Virgo Industries (ENG.) Private Limited v. Venturetech Solutions Private Limited ((2013) 1 Supreme Court Cases 625 ref.

Asad Zaheer through Attorney v. Muhammad Ismail and another 2019 CLC 804 rel.

Shehzada Muhammad Zeshan Mirza, Inam ul Haq Buttar and Ms. Yamna Baig for Appellant.

Muhammad Shakeel Abid for Respondent.

2024 C L C 1486

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

Messrs AG SIGNS (PVT.) LTD.----Petitioner

Versus

GASHOO ADVERTISER----Respondent

Civil Revision No.449-D of 2017, heard on 8th May, 2024.

Civil Procedure Code (V of 1908)---

----O. XVII, Rr. 1 & 3---Suit for recovery of money---Striking of defence---Failure to produce complete evidence despite grant of several adjournments---Petitioner / defendant company was aggrieved of judgment and decree passed by Trial Court in favour of respondent / plaintiff after closing its right to produce evidence---Validity---Trial Court used discretion in favour of petitioner / defendant many a time by granting it adjournments for production of complete evidence but it failed to catch up with the leniency shown by Trial Court---Even authorized representative of petitioner / defendant did not enter into witness box so as to record his statement---Pursuing of the case in such manner showed disobedience and indifferent demeanour towards orders of Courts---Such an indolent person could not seek favour of law as the law favours the vigilant and not the indolent---High Court in exercise of revisional jurisdiction declined to interfere in judgments and decrees passed by two Courts below as the evidence was thoroughly examined by Trial Court as well as Lower Appellate Court---Revision was dismissed, in circumstances.

Hasham Khan and others v. Haroon ur Rashid and others 2022 SCMR 1793; Sheikh Khurshid Mehboob Alam v. Mirza Hashim Baig and another 2012 SCMR 361; Hamidullah Khan and another v. Ch. Muhammad Jameel and others 2003 SCMR 995; Muhammad Yaqoob and others v. Raheela Yousaf and others 2024 CLC 49; Sohail Niaz Gill v. Senior Civil Judge, Islamabad and others 2023 MLD 708 and Messrs Ijaz Nizam v. NIB Bank and others 2017 CLD 361 distinguished.

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; Cantonment Board through Executive Officer, Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161; Moon Enterpriser CNG Station, Rawalpindi, v. Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi, and another 2020 SCMR 300; Rana Tanveer Khan v. Naseer-ud-Din and others 2015 SCMR 1401; Imran Ahmad Khan Niazi v. Main Muhammad Shahbaz Sharif 2023 SCMR 636; Mst. Farzana Zia and others v. Mst. Saadia Andaleeb and others 2024 SCMR 916; Nasir Ali v. Muhammad Asghar 2022 SCMR 1054; Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others 2022 SCMR 933; Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373 and Hazara and others v. Muhammad Yar and others 2011 SCMR 758 ref.

Barrister Talha Ilyas Sheikh for Petitioner.

Ms. Elysee Nazir for Respondent.

2024 C L C 1503

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

Khawaja JAVED MEHMOOD----Petitioner

Versus

PUNJAB SMALL INDUSTRIES CORPORATION through Regional Director Rawalpindi and 2 others----Respondents

Civil Revision No.233-D of 2022, heard on 21st March, 2024.

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

----Arts. 72 & 78---Civil Procedure Code (V of 1908), S. 115---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Documentary evidence---Document tendered in evidence through statement of counsel---Legality---Misreading and non-reading of evidence---Effect---Suit filed by petitioner / plaintiff was dismissed by Trial Court on the basis of two documents produced by respondent / defendant which documents were never confronted to petitioner / plaintiff and the same were made part of record through statement of counsel---Validity---Disputed documents cannot be tendered in evidence through statement of counsel of the party producing the document---Reason for such restriction is that through such procedure opposing party becomes deprived to challenge authenticity of such document by way of cross-examination---Revisional jurisdiction is hedged in S.115, C.P.C. and though ordinarily concurrent findings of facts are not disturbed but such findings are neither sacrosanct nor it is an inflexible rule that despite observing material flaws, revisional court has to abdicate to exercise its jurisdiction---Judgments passed by two Courts below were not based on proper appraisal of evidence---Trial Court while dismissing suit of petitioner / plaintiff grossly misread the evidence---Lower Appellate Court while upholding judgment and decree of Trial Court committed material irregularity---High Court under S.115, C.P.C. was obliged and fully competent to correct such error in exercise of its revisional jurisdiction---Once it was established on record that concurrent findings were fraught with legal infirmities, it had become bounden duty of court exercising revisional powers to curb and stifle such illegalities and material irregularities---High Court set aside judgments and decrees passed by two Courts below and suit was decreed in favour of petitioner / plaintiff---Revision was allowed, in circumstances.

Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715; Manzoor Hussain (deceased) through L.Rs. v. Misri Khan PLD 2020 SC 749; National Command Authority through D.G. SPD, Rawalpindi and others v. Zahoor Azam and others 2024 CLC 1; Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others PLD 1973 SC 160; Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another 2008 SCMR 428 and Imam Din and 4 others v. Bashir Ahmed and 10 others PLD 2005 SC 418 rel.

Muhammad Taimur Malik for Petitioner.

Waqar ul Haq Sheikh for Respondents Nos.1 and 2.

2024 C L C 1520

[Lahore (Multan Bench)]

Before Raheel Kamran, J

Dr. MUHAMMAD ASIF----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAYYAH and others----Respondents

Writ Petition No.5637 of 2024, decided on 24th May, 2024.

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

----Ss. 7, 17 & 25---Application for custody of minors---Mother, entitlement of---Welfare of the minor---Family Court dismissed the application of mother for custody though formed a schedule for her meeting with the minors---Appellate Court accepted appeal filed by mother allowing her application for the custody of minors and dismissed appeal of the father, however, visitation schedule was chalked out in his favour---Contention of the petitioner /father was that respondent /mother, admittedly, had gone to her college after few days of birth of her first child and had not breastfed him, hence, she was negligent towards upbringing of her child and preferred her career over welfare of her child and that she as a working lady lived alone in Lahore, therefore, there would be no one there to look after the minors---Validity---Section 17 of the Guardians and Wards Act, 1890, reflects that welfare of the minor is the guiding factor in deciding the matter of while giving due consideration to the age, gender custody and religion of the minor and character and capacity of the proposed guardian---In the present case, although the minor, residing with his father, refused to recognize the respondent being his mother yet paramount consideration in custody cases is welfare of the minor and the other facts are subordinate to the same---Though the respondent/ mother admitted during cross-examination the assertion/contention of the petitioner/father (that she had returned to college), however, the findings of the Appellate Court in response to the said assertion were quite justified and unexceptionable as it attributed the same to compelling circumstances for the respondent / mother i.e. her incomplete medical education---Background/circumstances of the present case manifested that the respondent / mother had been intentionally kept away from one of the minors so that he might not have any interaction with his mother and he had been brainwashed too, which was reflected in the sense that he had refused to recognize respondent as his mother---Welfare of both the minors laid in their custody with their mother / respondent and the Appellate Court rightly accepted her appeal, hence, no interference was warranted in the impugned judgment---Constitutional petition was dismissed, in circumstances.

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

----Ss. 7 & 25---Application for custody of minor---Custody and guardianship---Distinction---Law maintains a distinction between custody and guardianship and respective rights and obligations in that regard under the Guardians and Wards Act, 1890 ('the Act, 1890')---Custody under the Act, 1890 involves a right to upbringing of a minor ;on the other hand, guardianship entails the concept of taking care of the minor even in situations when the guardian does not have domain over the corpus of the child---Father is considered to be a natural guardian of a minor, since even after separation with the mother and even when the mother has been granted custody of a minor, he is obligated to provide financial assistance to the minor---Liability to maintain the minor is not only religious and moral but also legal---Right of custody of minor is subordinate to the fundamental principle i.e. welfare of the minor---Maintaining the children is the duty of father which cannot be a decisive factor in custody of the minors.

Mst. Feroze Begum v. Lt-Col. Muhammad Hussain 1983 SCMR 606; Munawar Bibi v. Muhammad Amin 1995 SCMR 1206; Mst. Razia Bibi v. Riaz Ahmad and another 2004 SCMR 821; Mst. Atia Waris v. Sultan Ahmed Khan PLD 1959 Lah. 205; Sultana Begum v. Mir Afzal and others PLD 1988 Kar. 252; Mst. Kaneez Akhtar v. Abdul Qadoos and 2 others 2005 MLD 828; Nazan Bibi v. Additional District Judge, Jhang and others 2009 YLR 991; Habib-ur-Rehman v. Hina Saeed 2010 MLD 544; Masroor Hussain v. Additional District Judge, Islamabad 2011 CLC 851; Bushra Asghar v. Dr. Rehmat Ali and 3 others 2012 MLD 1755 and Ms. Shazia Akbar Ghalzai and another v. Additional District Judge, Islamabad (East) and 2 others 2021 MLD 817 ref.

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

----Ss. 7, 17 & 25---Application for custody of minors---Working mothers---Entitlement to custody of minors---Welfare of the minor---Family Court dismissed the application of mother for custody though formed a schedule for her meeting with the minors---Appellate Court accepted appeal filed by mother allowing her application for the custody of minors and dismissed appeal of the father, however, visitation schedule was chalked out in his favour---Plea of the petitioner/father being that one of the minors had been residing with him since his birth and was emotionally attached with him since respondent / mother left him at very tender age to complete her education and did not claim his custody for quite some time---Held, that plea of the petitioner/father was not valid and sufficient consideration to deprive respondent/ mother of her entitlement to custody permanently---In this day and age, when pursuit of education and career does not attract any disqualification for a father to seek custody of minor, how can a mother be discriminated on that basis---Working mothers are a reality of the day and their participation in professional life is essential for the progress of societies---It makes roles of women even harder, which needs to be recognized and appreciated rather than discouraged or made more onerous by attributing disqualifications vis-à-vis custody of the minors---Said scenario does not mean that the Courts should become insensitive to the needs of the minors merely because their mother is a working woman---Welfare of the minor remains primary consideration for determining his or her custody---It is only recognition and adjustment of expectation from a working mother in comparison to a stay-at-home mother so that the former is not unreasonably put to any disadvantage---Although the minor boy was being provided school education and religious teachings under custody of the petitioner / father yet the respondent/mother, being a doctor and serving as an officer in a Government Department, enjoyed somewhat equal status, therefore, there was is no chance that the minor would be deprived of any of the facilities being provided to him at present---Even otherwise, there is no substitute of the natural love, affection and care of an educated mother---Welfare of both the minors laid in their custody with their mother / respondent and the Appellate Court rightly accepted her appeal, hence, no interference was warranted in the impugned judgment---Constitutional petition was dismissed, in circumstances.

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

----Ss. 7 & 25---Application for custody of minors filed by mother---Mother, entitlement of---Conduct of the father---Family Court dismissed the application of mother for custody though formed a schedule for her meeting with the minors---Appellate Court accepted appeal filed by mother allowing her application for the custody of minors and dismissed appeal of the father, however, visitation schedule was chalked out in his favour---Conduct of the petitioner /father in keeping the respondent /mother away from the minor was quite evident from the record which reflected that initially respondent/mother filed an application for custody of minors before the Guardian Court, Dera Ghazi Khan about four years ago wherein the petitioner / father took the plea of lack of jurisdiction as the minors were residing in Layyah; the said application of the respondent /mother was returned to her to be presented to the Court of competent jurisdiction; thereafter, respondent / mother, having remained unsuccessful before the relevant Appellate Court and the High Court, filed custody petition before the Guardian Court, Layyah, however, the petitioner in order to defeat her legal right shifted the minors from Layyah to Lahore upon which application of respondent / mother was again returned to her for its presentation before the court having competent jurisdiction; the said order was challenged by her before the Appellate Court Layyah, which was accepted and the matter was remanded to the Guardian Court, Layyah, for regular trial---However, the said judgment was challenged by the petitioner before the High Court wherein the High Court in order to determine the ordinary place of residence of the minors at the time of filing of guardian petition, requisitioned the original record of the school concerned as well as summoned its responsible officer, upon which, the constitutional petition was withdrawn by the petitioner---However by then, the mother (respondent) had stated before the High Court that she was not allowed to meet the minors upon which petitioner was directed to produce them before the Court---Said background manifested that the respondent / mother had been intentionally kept away from one of the minors so that he might not have any interaction with his mother and he had been brainwashed too, which was reflected in the sense that he had refused to recognize respondent as his mother---Welfare of both the minors laid in their custody with their mother / respondent and the Appellate Court rightly accepted her appeal, hence, no interference was warranted in the impugned judgment---Constitutional petition was dismissed, in circumstances.

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

----Ss. 7, 17 & 25---Custody of minors---Wish / choice of the minor---Scope---Mother, entitlement of---Welfare of the minor---Family Court dismissed the application of mother for custody though formed a schedule for her meeting with the minors---Appellate Court accepted appeal filed by mother allowing her application for the custody of minors and dismissed appeal of the father, however, visitation schedule was chalked out in his favour---Plea of the petitioner / father was that that one of the minors wished to reside with him---Validity---Minor is not always the best judge of where his or her welfare lies---Minor , in the present case, was of tender age of about seven years, hence, it was not appropriate to attach much weight to his choice in order to determine where his welfare in relation to his custody laid---Moreover, the minor had not been allowed to meet his mother (respondent) for years, therefore, his mind seemed to have been tutored---Refusal of the minor to recognize and meet his real mother indeed provided evidence of improper child rearing---It established that contrary to minor's welfare, the father (petitioner) failed to prevent his misbehavior towards his mother which highlighted the value system being inculcated or allowed to be nurtured in the minor by his parent (petitioner / father)---Welfare of both the minors laid in their custody with their mother / respondent and the Appellate Court rightly accepted her appeal, hence, no interference was warranted in the impugned judgment---Constitutional petition was dismissed, in circumstances.

Mst. Aisha v. Manzoor Hussain and others PLD 1985 SC 436 ref.

Malik Sajjad Haider Maitla and Tahir Mehmood for Petitioner with Petitioner and both minors.

Waseem Sarwar Khan and Miqdad Hassan Khan for Respondent No.3 with Respondent No.3.

2024 C L C 1538

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

Mst. GHULAM FATIMA and others----Petitioners

Versus

PAHAR KHAN and others----Respondents

Civil Revision No.194-D of 2012, heard on 15th December, 2012.

Civil Procedure Code (V of 1908)---

----O. XLI, R.27---Additional evidence, application for---Miscellaneous applications to be decided before the lis---Plaintiff respondent filed a suit for declaration and cancellation of inheritance mutation on the grounds that their predecessor "HK" was owner of the suit property, who had two wives; one of his wives died during his life from whom he had three children/respondents whereas from other wife, he had petitioners Nos. 1, 2, 3 and 15---"HK" died on 25.12.1955, whereas, one of his son died in his life time on 05.10.1955---At the time of opening of inheritance and while attesting mutation, said son was shown as alive---Defendants/petitioners contested the suit by controverting the facts contained in the plaint---Trial Court decreed the suit, against which appeal was filed---During the pendency of the appeal, an application under O. XLI, R. 27, C.P.C., was moved by the petitioners seeking permission to produce additional evidence---Appellate Court dismissed the application as well as the appeal---Validity---Admittedly, whenever some miscellaneous application was pending before the Court, the same will be decided in the first instance before finalizing the lis and passing the final order/judgment---Failure to decide the miscellaneous application before passing the final verdict would render the same nullity in the eyes of law---In case of pendency of some miscellaneous application, it is incumbent upon the court to first decide the application and then advert to the merits of the case---Primary object is that a lis should be buried in all respects as per canons of justice and by deciding the miscellaneous application in the first instance, allowing parties to retrace the steps fairly and equitably---Allowing a Court to decide the application for additional evidence alongwith the appeal would amount to give a premium to decide such application in negative---Joint decision of the miscellaneous application and appeal would not be even possible, if the Court ultimately reaches at the conclusion that the application has due force and it is to be accepted---Court should first decide the miscellaneous application and then pass final order/judgment qua the lis---Resultantly, the matter was remanded to the appellate Court with the direction to first decide the application for additional evidence and thereafter advert to the merits of the appeal through a separate judgment---Petition was accepted accordingly.

Muhammad Umer v. Muhammad Qasim and another 1991 SCMR 1232; Mst. Imtiaz Begum v. Mst. Sultan Jan and others 2008 SCMR 1259; Pineen Khan v. Muhammad Anwar and others 2011 CLC 550 and Sultan Ali alias Sultan through L.Rs. and others v. Rasheed Ahmad and 45 others 2005 SCMR 1444 ref.

Mst. Umari and another v. Faqir Muhammad and another PLD 1983 Lah. 349; Muhammad Yousuf and 12 others v. Abdul Khaliq and others 1991 SCMR 1981; Mst. Imtiaz Begum v. Mst. Sultan Jan and others 2008 SCMR 1259; Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 284; Chairman, State Life Insurarnce Corporation and others v. Hamayun Irfan and 2 others 2010 SCMR 1495; Muhammad Azam v. Muhammad Abdullah through L.Rs. 2009 SCMR 326 and Abdul Jabbar Shahid and others v. National Bank of Pakistan and others PLD 2019 Lah. 76 rel.

Malik Muhammad Kabir for Petitioners.

Malik Muhammad Nawaz Khan for Respondents.

2024 C L C 1558

[Lahore]

Before Ali Baqar Najafi, J

PERVEZ AKHTAR----Appellant

Versus

ALI SALMAN and another----Respondents

Election Appeal No.24381 of 2023, decided on 14th April, 2023.

Elections Act (XXXIII of 2017)---

----S.63---Constitution of Pakistan, Art. 63 (1)(d)(e)(k) & (m)---General elections for seat of Provincial Assembly---Disqualification of candidate---Office of profit---Nomination papers, acceptance of---Appellant / candidate contented that respondent / candidate was Chairman TEVTA and without completion of two years he could not contest elections---Plea raised by respondent / candidate was that he was not holding office for profit---Validity---Any person was qualified under Art. 63 (1)(m) of the Constitution, who was not in service of Pakistan, if he had held an office which was not whole time office remunerated either by salary or by fee---If Chairman TEVTA was not drawing any salary or fee, he could contest elections---Respondent / candidate was appointed Chairman TEVTA on probono basis and was not holding office of profit i.e. not a whole time office remunerated either by salary or kind as mentioned under Art. 63 (1)(m) of the Constitution---Respondent / candidate was not disqualified under Art.63(1)(d)(e)(k) of the Constitution to contest election---High Court declined to interfere in the order passed by Returning Officer accepting nomination papers of respondent / candidate---Appeal was dismissed, in circumstances.

Mirza Muhammad Tufail v. District Returning Officer and others PLD 2007 SC 16; Shahid Nabi Malik v. Muhammad Ishaq Dar and 5 others 1996 MLD 295; Ghulam Mustafa v. A.S.J. Chunian and others PLD 2016 Lah. 25 and Ghazanfar Ali v. Appellate Authority/Additional District Judge, Sahiwal and others PLD 2016 Supreme Court 151 ref.

Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others PLD 1997 SC 32 distinguished.

Muhammad Naseem Turyali and others v. Ghulam Sarwar Khan and others PLD 2005 SC 570; Javed Ibrahim Paracha v. Federation of Pakistan and others PLD 2004 SC 482; Tariq Hussain v. Sarfraz Ahmed and 4 others 2013 CLC 1620 and Muhammad Nadeem v. Muhammad Mumtaz Akhter Kahloon and others 2013 CLC 1796 rel.

Muhammad Rizwan-ul-Hassan and Hamza Irshad for Appellant.

Abid Saqi for Respondent No.1.

2024 C L C 1569

[Lahore]

Before Shahid Jamil Khan, J

Syed QAMAR MEHDI----Petitioner

Versus

GOVERNMENT OF PUNJAB and others----Respondents

Writ Petition No.7449 of 2023, decided on 15th December, 2023.

(a) Parks and Horticulture Authority Act (XLVII of 2012)---

----Ss.2(n), 3 & 5---Punjab Special Premises (Preservation) Ordinance (XXXIV of 1985), S. 2(a)---Corrigendum Notification No.SO(Admn)5-22/2023(Misc) dated 14-12-2023 amending Notification dated 01.03.1985---Heritage Park---"Special premises" and land appurtenant thereto and the outer walls thereof---Scope---Public interest petition filed by a regular visitor of Bagh-e-Jinnah (Lawrence Garden) challenged an order by Parks and Horticulture Authority (PHA) by which it allowed skateboard park in Bagh-e-Jinnah---Contention of the petitioner was that parks having historical and cultural value were to be declared as Heritage Park---Validity---Government of Punjab/respondent apprised the High Court that Bagh-e-Jinnah is already declared as "Special Premises", through a Notification dated 01.03.1985, issued under S. 2(a) of the Punjab Special Premises (Preservation) Ordinance, 1985 (' the Ordinance 1985' ) ,however, only buildings in Bagh-e-Jinnah, like Montgomery Hall (Quaid-e-Azam Library) and Cricket Pavilion were declared as Special Premises---Land appurtenant thereto and the outer walls thereof were to be included in the Special Premises in terms of Ss. 5 & 6 of the Ordinance of 1985, which protected alteration or renovation, demolition or re-erection of Special Premises and imposed a restriction on sanction of such plan---High Court directed that a corrigendum shall be notified to include the appurtenant land and trees with the outer wall of the Bagh-e-Jinnah---It was apprised to the High Court that through Notification dated 14.12.2023 Bagh-e-Jinnah was now declared as Special Premises under the Ordinance of 1985---It was undertaken by the respondents that ongoing projects and alteration shall be placed before the Committee, constituted under S. 3 of the Ordinance of 1985---High Court directed that the concerned Committee and the Government/Agency shall preserve special premises (Bagh-e-Jinnah) strictly in accordance with the intent of the Ordinance of 1985 and pending development be placed before the Committee, which shall ensure that original shape of Bagh-e-Jinnah is not compromised; that the Committee shall ensure representation from public and of present petitioner while finally deciding the fate of pending work; that the petitioner or any other person if feels that the law is being violated or original shape of Bagh-e-Jinnah is being changed, may approach the High Court again---Constitutional petition was disposed of accordingly.

(b) Parks and Horticulture Act (XLVII of 2012)---

----Ss. 2(n), 3 & 5---Punjab Special Premises (Preservation) Ordinance (XXXIV of 1985), S. 2(a)---Corrigendum Notification No.SO(Admn)5-22/2023(Misc) dated 14-12-2023 amending Notification dated 01.03.1985---Heritage Park---"Special Premises" and land appurtenant thereto and the outer walls thereof---Scope---Interpretation of the provisions---Under the provisions of the S.5 of the Parks and Horticulture Authority Act, 2012 along with Ss. 5 & 6 of the Punjab Special Premises (Preservation) Ordinance, 1985, it is statutory duty of the Government and any statutory authority to preserve and conserve the premises (building and land appurtenant thereto) having historical and cultural value---Rationale behind these enactments is to preserve sites and premises having cultural and historical value because history lives in architecture and historical sites, besides representing culture and identity---Heritage inspires and unites generations; it helps to educate new generations about history by witnessing heritage buildings and gives awareness of the culture and its value---Section 5 of the Parks and Horticulture Authority Act, 2012, independent of the Punjab Special Premises (Preservation) Ordinance, 1985, imposes responsibility of declaring the Parks and Gardens having cultural and historical value as Heritage Park, even if it is not declared as Special Premises---But for Parks and Gardens already declared as Special Premises, power and administrative control is restricted and eclipsed by the Punjab Special Premises (Preservation) Ordinance, 1985---Punjab Horticulture Authority can only preserve and conserve "flora and fauna", but cannot develop to change its original shape---Though Notification dated 14.12.2023 was issued to include appurtenant land and walls of Bagh-e-Jinnah, still it was necessary to hold for other Special Premises also that declaring any building as Special Premises shall necessarily include the appurtenant land walls, being part of it historically---Its originality shall not be compromised on the pretext of development, or for any commercial purpose---Constitutional petition was allowed accordingly.

Ch. Ali Muhammad assisted by Hassan Safdar Khan, Ch. Zaheer Afzal Chadhar and Dabeer Ali Awan for Petitioner.

Waseem Majeed Malik, Additional Advocate General Punjab.

Haris Azmat and Maryam Hayat for Respondents-PHA.

Tipu Salman Makhdoom for Applicant in C.M. No.4.

Mirza Shehryar Beg, Muqtadir Akhtar Shabbir, Syed Ali Tarab and M. Afzal Dharala for Respondent No.4.

Waheed Ahmad for Arts Council.

Abbas Ali Sindhu, Deputy Director, Bagh-e-Jinnah on behalf of Chief Secretary Punjab.

Aasim Dogar, Assistant Director (Archeology).

2024 C L C 1580

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

Syed ZAIN MUNTAZAR MEHDI----Petitioner

Versus

Mst. SARA NAQVI and others----Respondents

Writ Petition No.370 of 2024, heard on 21st March, 2024.

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

----S.5, Sched.----Maintenance allowance to wife and children, providing of---Obligation of husband/father---Scope---Husband is under legal, moral and religious obligation to maintain his legally wedded wife---Section 272 of Mohammdan Law provides obligation of a husband to maintain his wife with certain conditions---Section 278 of Mohammdan Law postulates that if a husband refuses to maintain his wife, she may sue for maintenance---Hence, it is the obligation of husband to pay Nafqa or maintenance, if construed in accordance with the principles as laid down in "HIDAYA" translated by Charles Hamilton in Chapter XV such as "Nafqa", in the language of law, signifies all those things which are necessary to support life, such as food, clothes and lodging---In the present case, the Courts below had held the petitioner (husband) under obligation to pay maintenance allowance of the respondent/wife, which by no means was in deviation to law and Sharia---Likewise, a father is under legal, moral and religious obligation to maintain his children till the age specified by law/sharia and such obligation originates from esteemed dictates of Holy Quran---Father's obligation to maintain his children has repeatedly been recognized and emphasized.

Humayun Hassan v. Arslan Humayun and another PLD 2013 SC 557 and Syeda Farhat Jahan v. Syed Iqbal Hussain Rizvi and another 2010 YLR 3275 ref.

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

----S.5, Sched.---Suit for recovery of maintenance allowance---Maintenance allowance of the minors, quantum of---Scope---Father is obligated to maintain his children and a reasonable standard must be assumed for determining quantum of their maintenance allowance---Court while considering the quantum of maintenance will take into consideration the fundamentals of the minors education, status, general expenses---Court must also take into consideration reasonable probability of obtaining education and the ability to take care of the minors in a stable, safe and healthy environment---Without due consideration of all said factors, the Court cannot conclude positively the quantum of maintenance---There is no hard and fast formula for determining quantum of maintenance and the main consideration for the Court is the ability of the father to maintain the minors---Thus, merely stating that he is short of resources will not discharge him of his obligation---Basic objective for determining maintenance is to ensure that in all probability the minors are maintained by the father in a dignified manner with reasonable comfort and that the mother of the child is not left to bear the burden of taking care of the minors---Quantum of maintenance requires due consideration of all factors on the basis of which the court can determine the actual need of the minor---In said regard, it is important for the court to keep in consideration the expenses incurred or likely to be incurred on the minors---For the purpose of maintenance it is the obligation of the father to fulfill needs of his kids.

Nazia Bibi and others v. Additional District Judge, Ferozewala and others PLD 2018 Lah. 916 ref.

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

----S.5, Sched.---Suit for recovery of maintenance allowance---Maintenance allowance of the minors---Financial status of the father---Proof---Notwithstanding the fact that the respondent (plaintiff/mother) was unable to procure and bring on record salary slip of the petitioner, he himself was obliged to bring on record reliable and trustworthy record/documents disclosing his monthly salary---Petitioner though had produced (got exhibited) in evidence his alleged salary slip, but said salary slip by no means qualified standards to attain trustworthy status for reliance on certain counts; one that it did not conform with minimum standards of wages, and second that it was a document handed out and produced by the petitioner himself, which from the face of it appeared to be a computer generated copy lacking any sort of verification on behalf of the petitioner's employer---To prove said document (salary slip), the petitioner could have easily adduced his bank statement of the salary account, transpiring exact deposits from his company on account of his salary; he could have also produced his employer or any other authorized official of the company in support of sanctity, truthfulness and genuine status of said document (salary slip)---Petitioner's employer or his authorized official, whilst appearing in witness box, could have brought on record bank and tax record to establish and prove remittances in the petitioner's salary account on head of his salary---However, the petitioner did not do the same and only produced said two documents (salary slip and salary account opening form) for proving his salary, which attempt fells short on account of no evidentiary value attached to both said documents---Though the provisions of Qanun-e-Shahadat, 1984 are not stricto sensu applicable to family matters, but exhibited salary slip was bereft of any strength and evidentiary value---If salary slip had been an official/attested/verified document, then situation would have been different, but genuine origination and sanctity of exhibited salary slip was not of required standards for being relied upon---In the circumstances, the Courts below had no option but to believe the evidence produced by the respondent (plaintiff / mother) regarding immediate necessities of claimants of maintenance allowance and fixing up same keeping in light the petitioner's obligations as well---No ground whatsoever was available to substitute the concurrent findings of courts below---Constitutional petition, being meritless, is dismissed, in circumstances.

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

Malik Aamir Saleem for Petitioner.

Ms. Farzana Aziz for Respondent No.1.

2024 C L C 1596

[Lahore]

Before Shahid Bilal Hassan, J

Mst. SAHIB KHATOON alias SABAN----Petitioner

Versus

MUHAMMAD RAMZAN (Deceased) through L.Rs.----Respondent

Civil Revision No.1167 of 2013, heard on 29th March, 2022.

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

----Ss. 42 & 55---Limitation Act (IX of 1908), First Sched., Arts.91 & 120---Suit for declaration and permanent injunction in respect of immoveable property---Limitation---Petitioner filed a suit for declaration and permanent injunction challenging the vires of registered sale deed on the basis of fraud as the respondent/defendant was tenant over suit property and was paying share of produce---Later on defendant disclosed the factum of alleged sale deed and mutation by stating that petitioner had no concern with the suit property---Defendant/respondent contested the suit on factual and legal grounds---Trial Court decreed the suit but in appeal, the appellate Court set-aside the decree and while framing additional issues, the case was remanded to the Trial Court for decision afresh after recording evidence on additional issues---Trial Court again decreed the suit, whereas the appellate Court set aside the decree and dismissed the suit---Validity---Admittedly the suit for cancellation in the form of declaration of the disputed registered sale deed was instituted on 07.07.2001, which was after a lapse of almost 21 years, therefore, the same was not within the prescribed period of limitation of three years as required by Art. 91 of the Limitation Act, 1908 or even six years as prescribed under Art. 120 of the Act---No explanation, whatsoever had been provided by the petitioner for the delay in filing the suit before the Trial Court despite not being in possession of the suit property---Furthermore the petitioner despite being not in possession of the disputed property had failed to claim relief of possession in her plaint, which was fatal for her cause---Revision petition was accordingly dismissed.

Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167 and Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446 rel.

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

----Ss. 42 & 55---Suit for declaration and permanent injunction in respect of immoveable property---Acquiescence, principle of---Record showed that the act of the petitioner of allowing the respondents to remain in possession of the suit property attracted the principle of acquiescence on her part in the respondent's title to the suit property thereby allowing him to deal with it as exclusive owner and for developing it at his own expense over a period of time while within the knowledge of the plaintiff, because she could not bring on record anything showing that the share of produce used to be paid to her by the respondent---Another aspect in the case was that petitioner in her plaint stated that the disputed registered sale deed was attested by the respondent in his favour in connivance with revenue officials, however, no revenue official was impleaded or arrayed as defendant by the petitioner in the suit---Revision petition was accordingly dismissed.

Sikandar Hayat and another v. Sughran Bibi and 6 others 2020 SCMR 214 rel.

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

----O.II, R.2 & O.IX, R.9(1)---Qanun-e-Shahadat (10 of 1984), Art.129(e)---Specific Relief Act (I of 1877), Ss. 42 & 55---Presumption of regularity attached to official documents---Suit for declaration and permanent injunction in respect of immoveable property---Fraud---Proof---Petitioner filed a suit for declaration and permanent injunction challenging the vires of registered sale deed on the basis of fraud as the respondent/defendant was tenant over suit property and was paying share of produce---Later on defendant disclosed the factum of alleged sale deed and mutation by stating that petitioner had no concern with the suit property---Defendant/respondent contested the suit on factual and legal grounds---Principle of regularity available under Art. 129(e) of the Qanun-e-Shahadat, 1984, was attached to the registered sale deed in question as the same was executed and attested by officials in performance of their regular duty---Though, the same was rebuttable but the plaintiff had absolutely failed to rebut the presumption attached to it---Petitioner had not only failed to implead revenue officials as party to the suit but had also failed to bring evidence with regard to alleged connivance of revenue officials in respect of registered sale deed---Therefore, there was nothing before the Court in the shape of evidence or documents to overlook the act of not impleading the revenue officials---In addition to the above, the petitioner had not denied her thumb impression on the disputed sale deed and even did not move any application seeking comparison of the same with the admitted one---Petitioner had only relied upon her solitary statement and no independent witness had been produced in that regard---Moreover, mere assertion of fraud and misrepresentation is not sufficient but the same has to be proved by the person who asserts as such---Petitioner could not substantiate the stance taken up by her and could not chain the links of alleged fraud played against her---As against that, the respondents by producing the marginal witnesses and identifier had successfully fulfilled the requirement of Arts. 17 & 79 of the Qanun-e-Shahadat, 1984---Apart from the above, it had also been admitted by the petitioner that she earlier instituted a suit on the same subject matter, which was dismissed for non-prosecution, thus, in such scenario, the present suit was barred under O.II, R.2 & O. IX, R. 9(1), Code of Civil Procedure, 1908---Revision was accordingly dismissed.

(d) Appeal---

----Judgments of Trial Court and Appellate Court---Inconsistency in findings---Preference---In case of inconsistency between the findings of the Trial Court and the Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary.

Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1; Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 and Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs. and others 2013 SCMR 1300 rel.

Rana Muhammad Hayat for Petitioner.

Nemo. for Respondent.

2024 C L C 1643

[Lahore]

Before Shahid Bilal Hassan, J

MUHAMMAD AFZAL---Appellant

Versus

BINYAMEEN SAJID---Respondent

R.F.A. No.11759 of 2021, heard on 16th May, 2024.

Negotiable Instruments Act (XXVI of 1881)---

----S.56---Civil Procedure Code (V of 1908), O.XXXVII Rr.1, 2 & O.VII, R.10---Recovery suit on the basis of negotiable instrument---Part performance---Payments received by the appellant in pursuance of different cheques issued from the same cheque books---Non-adoption of procedure of endorsement on the cheque before presenting it---Effect---Section 56 of the Negotiable Instruments Act, 1881 ('Act, 1881'), specifically provides for an endorsement on a negotiable instrument with regards to part-payment and thereafter the instrument could be negotiated for the balance amount---If the drawer and the payee of the cheque adopt the procedure given in S.56 of the Act 1881, then it would be open to the payee of the cheque to present the cheque for payment of only the endorsed balance amount, due to him---Without adopting the procedure as provided in S.56 ibid, the cheque could not be presented for encashment and suit under O.XXXVII, Rr.1 & 2 of C.P.C. could not be filed, rather a suit for recovery of balance amount of cheque before a court of plenary jurisdiction has to be instituted---After receipt of part payment, appellant did not adopt the procedure as provided under S.56 of the Act, 1881, therefore, he was barred from presenting the cheque in question in the bank for its encashment and instituting suit under O.XXXVII, Rr.1 & 2 of C.P.C.---Proper forum in this regard was Court of plenary jurisdiction i.e. Civil Court for getting his grievance redressed---Trial Court should have returned the plaint under O.VII, R.10, C.P.C. for its presentation before the court of competent jurisdiction, obviously, keeping in view barricade of limitation---Appeal was allowed accordingly.

Chaudhry Mohsin Iftikhar Gujjar for Appellant.

Mehboob Rasool Awan and Imran A. Mian for Respondent.

2024 C L C 1648

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

Syed ASIF HUSSAIN SHAH----Petitioner

Versus

FEDERATION OF PAKISTAN and others----Respondents

Writ Petition No.167 of 2024, decided on 12th June, 2024.

(a) Islamic law---

----Dissolution of marriage---Procedure---Scope---Islam permits dissolution of marriage between Muslim spouses in three ways i.e. Talaq, Mubarat and Khula---Talaq is an arbitrary and unilateral act of the husband, whereby, he may divorce his wife---Mubarat on the other hand is one of the forms of dissolution of marriage whereunder spouses may agree to part their ways through mutual consent---Contrary to both, a Muslim woman is also vested with the right to obtain divorce through Court of law by instituting a suit, which is termed as "Khula".

Surah 2 Al-Baqarah, Ayat 229 rel.

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

----S. 10(4), proviso---Dissolution of Muslim Marriages Act (VIII of 1939), S. 2---Dissolution of marriage---"Khula" and "Divorce"---Distinction---"Khula" is right of a Muslim woman to seek dissolution of her marriage in which she gives or consents to give a consideration to husband for her release from marriage as determined by Court---"Khula" and dissolution of marriage under Dissolution of Muslim Marriages Act, 1939 operate under entirely different legal systems, leading to distinct outcomes.

Ibrahim Khan v. Mst. Saima Khan and others PLD 2024 SC 645 rel.

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

----Ss. 10(3) & 10(4)---Word "reconciliation"---Object, purpose and scope---Reconciliation is to bring end to differences through meaningful and concrete effort---Word "reconciliation" postulates adoption of such measures as can be proved as a factor for harmonious union between the spouses after redress of grievances which had led them to have recourse to litigation.

Surah 2 Al-Baqarah, Ayat 229; Black's Law Dictionary; Oxford, Advanced Learner's Dictionary; Cambridge Dictionary and Webster's Dictionary rel.

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

----Ss. 10(3) & 10(4)---Khula---Dissolution of marriage---Petitioner / husband was aggrieved of dissolution of marriage by Family Court on the basis of khula after reconciliation proceedings between parties had failed---Validity---Family Court under S.10(3) of Family Courts Act, 1964 may at pre-trial stage, ascertain points of controversy between parties and attempt to effect compromise between them and for such purpose neither provisions of Family Courts Act, 1964 nor the rules framed thereunder provide any procedure---It has been left to discretion of Family Court to do so, keeping in view the peculiar facts and circumstances of each case---No hard and fast rules can be laid to bind down Family Court to strictly follow the same for the purpose of effecting compromise or bringing reconciliation between parties---In the present case despite efforts, parties did not arrive at any reconciliation, and respondent / wife was not willing to reconcile with petitioner / husband at any cost---Family Court could not compel any party to effect compromise against his / her wishes instead could make a genuine effort to bring reconciliation between parties amicably---High Court declined to interfere in judgment and decree passed by Family Court as petitioner failed to point out any illegality or perversity---Constitutional petition was dismissed in circumstances.

Saleem Ahmad and others v. Government of Pakistan through Attorney General of Pakistan and 2 others PLD 2014 FSC 43; Federation of Pakistan v. Aitzaz Ahsan and another PLD 1989 SC 61; Syed Amir Raza v. Mst. Rohi Mumtaz and others 2023 SCMR 1394; Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97; Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi PLD 1959 (W.P.) Lah. 566; Dr. Mahmood-ur-Rahman Faisal v. Government of Pakistan through Secretary, Ministry of Justice, Law and Parliamentary Affairs, Islamabad PLD 1994 SC 607; Liaqat Ali v. District Collector, Gujrat and 4 others 2022 MLD 1195; Saleem Ahmad and others v. Government of Pakistan through Attorney General of Pakistan and 2 others PLD 2014 FSC 43; Abdul Rahim v. Mst. Shahida Khan PLD 1984 SC 329; Imran Anwar Khan and others v. Province of the Punjab through Secretary Ministry of Law, Lahore and others PLD 2022 FSC 25; Mst. Fazeelat Jan and others v. Sikandar through his Legal Heirs and others PLD 2003 SC 475; Hammad Hussain v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and another PLD 2022 FSC 21; Sohail Ahmed v. Mst. Samreena Rasheed Memon and another 2024 SCMR 634; Amanat Ali v. Mst. Nadia Shaukat PLD 2019 Lah. 160 and Khurram Shehzad v. Federation of Pakistan through Ministry of Law and Justice Commission of Pakistan, Islamabad and another PLD 2023 FSC 286 rel.

Ms. Afshan Ghazanfar for Petitioner.

Muhammad Sajid Ilyas Bhatti, Additional Attorney General for Pakistan for Respondents Nos.1 and 2.

Khalid Ishaq, Advocate General, Punjab for Respondent No.3.

Imran Shaukat Rao and Muhammad Shahid Munir, Assistant Advocate Generals, Punjab.

Father of Respondent No.4 in person.

2024 C L C 1703

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

RIZWAN AHMED----Applicant

Versus

FEDERATION OF PAKISTAN and others----Respondents

Review Application No.04 of 2024, decided on 20th June, 2024.

Family Courts Act (XXXV of 1964)---

----S. 5---Constitution of Pakistan, Arts.199, 260(3)(a) & 260(3)(b)---Civil Procedure Code (V of 1908), S. 114 & O.XLVII---Review of judgment---Non-Muslim view---Quadiani Group or Lahori Group---Precedent, impact of---Petitioner was aggrieved of precedent judgments relied upon in judgment under review which were passed prior to declaration of Quadiani Group or Lahori Group as non-Muslims, and the view in the said judgments did not pertain to Muslims---Held, that paragraphs in question were only reproduced as extracts from the referred judgments---With the promulgation of the Constitution of Pakistan, 1973 and more specifically by inserting definitions of "Muslim" and "non-Muslim" in Art. 260(3)(a) and (b), the observations recorded in referred judgments automatically lost their efficacy as well as status---Persons of Quadiani Group or Lahori Group who call themselves "Ahmadis" or by any other name or a Bahai, and a person belonging to any of the Scheduled Castes could not be termed as "Muslim" or class/sect of "Muslim"---High Court directed that the observations recorded in the present review application shall be treated as part of the judgment under review---Review petition was disposed of accordingly.

Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi PLD 1959 (W.P.) Lah. 566 and Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97 ref.

2024 C L C 1712

[Lahore]

Before Anwaar Hussain, J

MAQSOOD AHMAD----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, FAISALABAD and 2 others----Respondents

Writ Petition No.38539 of 2023, heard on 14th May, 2024.

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

----Ss.15 & 19(3)---Eviction of Tenant on the ground of default in payment of rent---Improvement in evidence qua period of default---Effect---Failure of the landlord to give concise statement under S.19(3) of the Punjab Rented Premises Act, 2009 ('Act, 2009') qua period of default---Effect---Eviction order on the basis of alien/innovative ground of strained and hostile relationship between the landlord and tenant owing to eviction proceedings---Legality---Contention of the petitioner was that rented premises was a vacant plot, which was developed into a marquee with certainty that tenancy would exist for the fixed period of 10 years and he would not be evicted except in accordance with tenancy agreement or the Act, 2009---Validity---Mandate of S.19(3) of the Act, 2009 was that it was obligatory for the landlord to narrate all the relevant and necessary details of default by elaborating the same with precision (in terms of the date of default and total period of default) and if he failed to do so, he could not be allowed to improve upon the same through the evidence---Section 15 of the Act, 2009 envisaged grounds of eviction and the fact that on account of litigation between the parties, relationship of landlord and tenant had become strained, was not a valid ground to seek eviction and if such like grounds for eviction were allowed to be transplanted that would amount to the Courts traversing beyond their domain of statutory adherence, hence, Appellate Court had travelled beyond the legislative wisdom while passing the eviction order---Specific insertion of duration of 10 years, as a tenancy period, revealed the intention of the parties that the tenancy was for fixed period, that is long term, with certainty that landlord would get rent during the said long term tenancy period and the tenant would get return on his investment, therefore, the premature eviction of the tenant in the absence of any contractual or statutory violation (default) would not only engender injustice, being detrimental to the commercial interest of the petitioner, but would also undermine the public trust in investment/commercial contracts and their enforcement by the Courts which could not be allowed---Constitutional petition of the tenant was allowed and that of the landlord was dismissed accordingly.

Abdul Ghani through L.Rs. v. Messrs Caltex Oil Pakistan Limited 2010 SCMR 771 rel.

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

----S.19(3)---Civil Procedure Code (V of 1908), O.VI, R.2---Term 'concise statement' mentioned in S.19(3) of the Punjab Rented Premises Act, 2009---Meaning and purpose---Term "concise statement" has not been defined by the Punjab Rented Premises Act, 2009 ('the Act') however, O.VI, R.2, C.P.C., refers to the same---In common legal parlance, concise statement indicates reciting of facts with precision that forms basis of a claim and/or underlies the accrual of cause of action---Underlying purpose is to simplify the key issues in dispute, therefore, the concise statement must contain enough details of the dispute to steer the court's focus only to the relevant issues making it easier for it to adjudicate.

Hafiz Rehman Aziz for Petitioner.

Salah-ud-Din Siddiqui for Respondent No.3.

2024 C L C 1727

[Lahore]

Before Shahid Bilal Hassan, J

ABDUL MAJID through General Attorney----Appellant

Versus

ANJUM AKHTAR----Respondent

R.F.A. No.8633 of 2020, decided on 25th March, 2024.

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

----O.XLI, R. 27 & O.VII, R.14---Additional evidence at appellate stage, production of---Scope---Appellant/plaintiff intended to produce additional evidence at appellate stage without proving that the same could not be produced due to some plausible reason and sufficient cause---Documents sought to be produced were not relied upon while presenting the plaint as per mandate of O.VII, R.14, C.P.C---Appellate court must be conscious while allowing a party to adduce additional evidence---Party which intends to bring additional evidence on record must convince the court with proof that such party could not lead the evidence at proper stage due to some plausible reasons and sufficient cause---Party, who had the opportunity to produce evidence in the Trial Court but did not avail of such opportunity, should not be allowed to improve its case by producing evidence at the appellate stage---Party cannot be allowed to fill up the lacuna at appellate stage, when it had been unsuccessful in the Trial Court---Appeal was dismissed accordingly.

Shaikh Javed and others v. Shaikh Hassan Ali 2010 SCMR 166; Kodal Khan v. Sufaid Gul and others PLD 1965 W.P. Pesh. 259; Allahditta v. Ghulam Rasool PLD 1975 Lah. 138; Messrs BATA Shoe Company and 2 others v. Muhammad Arshad Siddiqui and another 1991 SCMR 1775; Rana Abdul Aleem Khan v. Idara National Industrial Cooperative Finance Corporation Defunct through Chairman Punjab Cooperative for Liquidation, Lahore and another 2016 SCMR 2067 and Muhammad Siddique v. Gul Nawaz and others 2021 SCMR 1480 rel.

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

----O.XXXVII, Rr. 1 & 2---Qanun-e-Shahadat (10 of 1984), Arts. 59 & 84---Summary suit for recovery based on a cheque---Consideration/purpose of issuing cheque not proved---Appearance of attorney on behalf of the appellant, who deposed against the version of the appellant---Absence of independent witness---Reliance on report of Fingerprint Expert in absence of strong and confidence inspiring evidence---Effect---Though the report of the fingerprint expert cannot be relied upon only for the purpose of determining rights of the parties, but when other evidence is not strong and confidence inspiring weightage can be extended to the said report, which is corroboratory in nature.

(c) Administration of justice---

----A party has to stand on his own legs and any shortcomings in the evidence of the rival party cannot extend any benefit to such party.

Ahmad Tayyab Shahid for Appellant.

Ghulam Farid Sanotra and Sajida Kalsoom for Respondent.

2024 C L C 1735

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

IFTIKHAR AHMAD----Petitioner

Versus

MUHAMMAD ANWAR and others----Respondents

Civil Revision No.20763 of 2024, heard on 30th May, 2024.

Civil Procedure Code (V of 1908)---

----S.115 & O.VI, R.17---Specific Relief Act (I of 1877), Ss. 42 & 54---Powers of the courts to amend the pleadings qua possession at any stage---Scope---Amendments in the pleadings where possession was to be granted only as a consequential relief without altering the core facts or basis of original pleadings---Permissibility---Contention of the petitioner was that since consequential relief by way of possession had not been claimed by the respondent in his plaint, therefore, any amendment to that effect would change the nature and character of the suits and he also raised objections as to maintainability and limitation for filing the application for amendment---Validity---Addition of relief of possession in view of alleged development could not be termed as setting up of a new case---Factum of dispossession gelled well with other facts contained in the plaints and by no stretch of imagination it could be considered a change in the nature and complexion of the suit for the reason that natural result of declaration if successful would be that consequential relief had to be given by the court even if same was not claimed, and the Court in such circumstances was bound to call upon the party to amend the plaint to the extent of possession and direct him to pay the court-fee---Application under O.VI, R.17, C.P.C., can be entertained and allowed at any stage of the proceedings if the same is necessary for effective decision thereof---Amendment can be allowed while ignoring delay whatsoever, even at any stage of proceedings in the trial, and in certain cases amendments can be permitted at the stage of appeal or even in revisional jurisdiction---Keeping in view the beneficial rule, the proposed amendment was expedient for the purpose of determining the real questions involved in controversy between the parties and it did not change the nature of pleadings---Alteration in the relief does not ordinarily change the character or substance of the suit, if it is based on the same averments, and if such an amendment is allowed, no injustice can be done to the other party---Amendments to pleadings are permissible at any juncture of the legal proceedings, provided they serve to crystallize the substantive issues at hand without transmuting the fundamental character of the original pleadings---Petitioner had failed to point out any illegality in the impugned order---Revision was dismissed, in circumstances.

Mian Haseeb ul Hassan for Applicant.

Nemo for Respondent.

Muhammad Saad Bin Ghazi and Chaudhry Faza Ullah, Assistant Advocates General on Court's call.

2024 C L C 1744

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

MASOOD-UL-HASSAN----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Writ Petition No.5215 of 2022, decided on 2nd July, 2022.

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

----S.5, Sched.---Contract Act (IX of 1872), S.128---Civil Procedure Code (V of 1908), S.145---Suit for recovery of maintenance allowance and dowry article---Execution proceedings---Satisfaction of decree by grandfather of minors---Extent and scope---Surety's liability---Contention of the petitioner being surety of grandfather of minors was that he was only responsible for satisfaction of decree to the extent of his surety given for grandfather of minors, but not for the satisfaction of the whole decree---Validity---Grandfather of the minors could be bound only to the extent of maintenance of the minors being their grandfather, if he had easy circumstances to pay the same---When the courts had let off/released the grandfather from the responsibility of satisfying the decree, then how his surety (petitioner) was responsible to satisfy the same---Contract of surety provided that the maximum liability of surety was to the tune of Rs.400,000/----Orders of Executing Court did not mention that the grandfather would arrange a surety for the payment of the entire decretal amount--- Petitioner stood suretyfor a specific amount which he had paid before the Executing Court on different occasions as detailed in the application to discharge him from the liability of surety---Said fact was not denied by the respondents, therefore, the petitioner had satisfied the amount for which he stood surety---Constitutional petition was accepted accordingly.

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

----S.128---Surety's liability---Scope---Surety's liability is co-extensive with that of the judgment-debtor and he is as much bound by his undertaking as is the judgment-debtor and both are collectively and severely liable to make payment to the decree-holder---While construing the tenure and extent of surety bond, the words and recitals of the surety bond must be taken into consideration to gather the intention of the executant of said bond and the bond must be strictly construed---Surety is liable only upto the extent to which he is clearly bound.

Muhammad Afzal Chaudhary and Muhammad Akhtar Chaudhry for Petitioners.

Ejaz Hussain Mughal for Respondents Nos.2-4.

2024 C L C 1764

[Lahore]

Before Abid Hussain Chattha, J

MUHAMMAD SIDDIQUE (deceased) through L.Rs.----Petitioner

Versus

MUHAMMAD YAQOOB and others----Respondents

Civil Revision No.2168 of 2014, heard on 17th April, 2024.

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

----Ss.41 & 54---Civil Procedure Code (V of 1908), O.VI, R.7---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Specific Relief Act (I of 1877), Ss.27(b), 42 & 54---Sale deed---Proof---Non-production of stamp vender and revenue officer as witnesses to prove first sale deed---Effect---Pleadings----Scope---Non-deposit of remaining sale consideration---Effect---Execution of two sale deeds by respondent No.2 being father/natural guardian of minors---First was allegedly executed in furtherance of oral sale in favour of respondent No.1/plaintiff, which remained unregistered due to paucity of guardianship certificate---Second was executed in favour of petitioner (admittedly bona fide purchaser for value without notice), which was duly registered and possession was given to the petitioner---Suit for declaration with permanent injunction was instituted by respondent No.1 challenging he sale made in favour of the petitioner, in which respondent No.2 filed two written statements i.e. one in favour of respondent No.1 conceding his claim and other denying the same---Said suit was concurrently decreed---Contention of the petitioner was that no details of the oral transaction had been mentioned in his plaint and marginal witnesses of first sale deed were not produced by respondent No.1 in his evidence, therefore, requirement of law had not been fulfilled---Validity---There was a discrepancy between two written statements submitted by respondent No.2 that the first written statement was not verified on oath and the second written statement was verified and also challenged the authenticity of the first statement---Respondent No. 2 claimed that the first statement was neither signed nor authorized by him---Trial Court accepted said challenge and proceeded to frame issues and record evidence without relying on the first statement, consequently, it was inappropriate for the courts below to use the first statement as an admission against respondent No. 2's claim---Respondent No.1 did not list the particulars of oral transaction in the plaint and as such did not independently prove the oral transaction---Evidence qua oral sale transaction of respondent No. 1 was not only beyond the scope of pleadings but was also discrepant and contradictory particularly with respect to details of oral transaction and receipt of earnest money by respondent No. 2---No stamp vendor was produced to prove the procurement of stamp papers for the alleged draft sale deed---No revenue official was produced with respect to denial of registration of first sale deed---Second sale deed was executed and registered and there was no explanation to the effect that if the same could be registered why draft sale deed in favour of Respondent No. I was declined---There was no evidence that alleged witnesses of the draft sale deed were also witnesses of oral transaction---No target date was alleged with respect to the oral sale transaction---No effort was made to deposit balance sale consideration in Court which admittedly had not been paid till the decision of the suit to demonstrate the readiness and willingness on part of respondent No.1 to perform his part of the oral contract and his financial ability to discharge his obligation---Respondent No.1 could not prove oral sale transaction---Overwhelming evidence was on record, whereby, Respondent No. 2 admitted to have executed a registered sale deed in favour of the petitioner after receiving entire sale consideration, therefore, there was no occasion not to give preference to a valid and lawfully registered subsequent sale deed over an unproved oral sale transaction---Petitioner as bona fide purchaser for valuable consideration without notice was entitled to the protection accorded to him by S.41 of the Transfer of Property Act, 1882 and S.27(b) of the Specific Relief Act, 1877----Judgments of courts below being result of misreading and non-reading of evidence on record as well as misapplication of law could not sustain---Civil Revision was allowed accordingly.

Saddaruddin (since deceased) through LRs. v. Sultan Khan (since deceased) through LRs and others 2021 SCMR 642 and Muhammad Yousaf v. Allah Ditta and others 2021 SCMR 1241 rel.

S.M. Zeeshan Mirza and Inam ul Haq Buttar for Petitioners.

Liaqat Ali Malik for Respondent No.1.

Respondents Nos.2 to 8 Proceeded ex parte on 23rd November, 2023.

2024 C L C 1776

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

GHULAM DASTGIR SIDDIQUI and another---Appellants

Versus

Mst. ELIZBETH and another----Respondents

F.A.O. No.49 of 2017, heard on 3rd June, 2024.

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

----S. 17---Eviction of tenant---Monthly rent, rate of---Divergent stances of the parties---Rent Controller rejected eviction of the tenants sought by the ejectment petitioners / landlords---Rate of monthly rent was claimed by the appellants/landlords as Rs.6000/-, which was controverted by the respondents/tenants, while submitting their written reply wherein they asserted that in fact the rate of rent was Rs.1,200/- per month and they had already paid all the due rent---Rent Controller decided issue relating to the rate of rent and held that the rate of rent was Rs.1,200/- per month---Examining the evidence produced by both the sides to said effect revealed no material whatsoever to differ with the findings of the Rent Controller on rate of monthly rent---Appeal, filed by the landlords , was disposed of.

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

----S. 17---Eviction of tenant---Personal bona fide need of landlord---Scope---Rent Controller dismissed ejectment petition filed by the landlords for eviction of tenant from rented premises (house)---Validity---Record revealed that one of the appellants / landlords, while himself deposing as witness, during his cross examination, admitted that previously the appellants filed various ejectment petitions against their tenants on (the same ground) of personal bona fide need and obtained possession in terms of the eviction order---Though it is prerogative of the landlord to choose any of his property which in his estimation would meet his requirements but at the same time, ground of personal bona fide need cannot be made basis for eviction of the tenant when it is established on the record that the landlord has already got vacated other properties from his tenant(s) on the same ground in the near past---It was also established on the record that appellants / landlords had shifted their residence just before filing of ejectment petition and they did not plead that the accommodation where they were residing was insufficient for their need---Thus, the appellants failed to prove that the rented promises (house) was required for their personal bono-fide need---Appeal, filed by the landlords, was disposed of.

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

----S. 17---Eviction of tenant---Default in payment of rent---Onus to prove---Rent Controller dismissed ejectment petition filed by the appellants / landlords---Validity---One of the appellants / landlords ,while appearing as a witness, categorically asserted that the respondents / tenants had defaulted in payment of rent w.e.f. January, 2013---Though said assertion was refuted by the respondents / tenants in their reply but they had failed in discharging the onus---When the landlord seeks eviction of his tenant(s) on the ground of default in payment of rent, he has to only assert the factum of default supported by affidavit and the onus then would shift upon the tenant(s) to prove that he/they has/have not defaulted in payment of rent---Rent Controller founded his conclusion by wrongly relying upon evidence produced by the respondents / tenants---Thus, the appellants / landlords remained successful in proving that the respondents / tenants committed default in payment of rent---High Court set aside the impugned order passed by the Rent Controller ; consequently , the ejectment petition stood accepted and the respondents / tenants were directed to hand over the vacant possession of the rented-premises (house) to the appellants / landlord within thirty (30) days---Appeal , filed by the landlords, was allowed.

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

----Arts.70 & 89---Cantonments Rent Restrictions Act (XI of 1963), S.17---Eviction proceedings---Qanun-e-Shahadat Order ( 10 of 1984), applicability of---Scope---Documentary evidence, relevancy / admissibility of---Receipt of monthly rent, tendering of---Scope---Receipt of rent was exhibited / brought on record through the statement of counsel of the tenants---Rent Controller , while relying on said exhibited receipt dismissed ejectment petition filed by the appellants / landlords---Validity---Record revealed that in order to rebut the stance (default in payment of rent ) of the appellants/ landlords , one of the respondents/tenants appeared as sole witness in support thereof; in addition, a rent receipt was made part of record by exhibiting the same---Adverting to the validity and authenticity of exhibited rent-receipt, it was noticed that same was brought on record through the statement of counsel and it was heavily relied by the Rent Controller, while deciding the issue against the appellants / landlords---For true import of the relevant provisions of the Qanun-e-Shahadat, 1984 dealing with the relevancy and admissibility of the documentary evidence, though rigors of the Qanun-e-Shahadat, 1984, cannot be pressed into service with full force in the proceedings before the Rent Controller but cardinal principles regulating the procedure for recording of evidence cannot be kept aside totally­­­---Rent Controller founded his conclusion exclusively relying upon rent receipt-in-question which was not admissible at all and was only an anecdotal piece of evidence---Thus, the appellants / landlords remained successful in proving that the respondents / tenants committed default in payment of rent---High Court set aside the impugned order passed by the Rent Controller ; consequently , the ejectment petition stood accepted, and the respondents / tenants were directed to hand over the vacant possession of the rented-premises (house) to the appellants / landlord within thirty (30) days---Appeal, filed by the landlords, was allowed.

Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715; Manzoor Hussain (deceased) through L.Rs. v. Misri Khan PLD 2020 SC 749 and National Command Authority through D.G. SPD, Rawalpindi and others v. Zahoor Azam and others 2024 CLC 1 ref.

Muhammad Abdul Muqeet Sh. for Appellants.

Sh. Usman Ullah Waleem for Respondent No.1.

Nemo for Respondent No.2.

2024 C L C 1787

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

SUI NORTHERN GAS PIPELINES LTD.----Petitioner

Versus

WAFAQI MOHTASIB and others----Respondents

Writ Petition No.1791 of 2023, heard on 15th November, 2023.

(a) Interpretation of statutes---

----Preamble---Object, purpose and scope---Preamble to a statute is not operational part of enactment but it is a gateway, which discusses purpose and intent of the Legislature to necessitate legislation on the subject---Preamble also sheds clear light on goals that the Legislator aims to secure through introduction of such law---Preamble of a statute holds a pivotal role for the purposes of interpretation in order to dissect true purpose and intent of law.

Director General, FIA and others v. Kamran Iqbal and others 2016 SCMR 447 rel.

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

----Arts.2(1), 3 & 9---Constitution of Pakistan, Art. 199---Constitutional petition---Mal-administration---Gas connection, providing of---Payment of urgent fee before cutoff date---Petitioner / Sui Northern Gas Pipeline Company was aggrieved of direction issued by Ombudsman to provide gas connection to respondent / complainant---Validity---Matter agitated in complaint was related to non-provision of new gas connection which was denied by petitioner company---Such action of petitioner company as "Agency" was in terms of Art. 2(1) of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983---Order in question was unreasonable, unjust, oppressive and arbitrary, which amounted to mal-administration falling within the ambit of Art. 9 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 for the purpose of exercise of jurisdiction by Ombudsman in the matter to undo act of administrative excess---Ombudsman rightly observed that respondent / complainant should not be penalized of such a ban where he had paid Urgent Fee before cutoff date---High Court declined to interfere in order passed by Ombudsman as the same did not suffer from any legal infirmity or jurisdictional defect---Constitutional petition was dismissed in circumstances.

Oil and Gas Regulatory Authority through Chairperson and others v. Sui Northern Gas Company Limited through Chairperson and others 2023 SCMR 908; Wafaqi Mohtasib Secretariat, Islamabad and others v. SNGPL, Lahore and others PLD 2020 SC 586 and Messrs Rana Textiles Ltd. through Chief Executive v. Sui Northern Gas Pipelines Ltd. through Authorized Attorney and others 2016 YLR 1 distinguished.

The Managing Director, Sui Southern Gas, Co. Ltd. v. Saleem Mustafa Shaikh and others PLD 2001 SC 176; Sui Northern Gas Pipelines Limited v. Wafaqi Mohtasib and others PLD 2019 Lah. 169; Chief Executive, GEPCO and 3 others v. Asghar Ali Rana 2018 YLR 1391 and Muhammad Yousaf v. The Secretary Finance and others PLD 2021 Lah. 156 ref.

Jamal Mehmood Butt for Petitioner.

Malik Muhammad Siddique Awan, Additional Attorney General along with Arshad Mahmood Malik and Tahir Raheel Awan, Assistant Attorney Generals.

Asim Shahbaz Malik for Respondent No.1/Ombudsman.

Ahmad Nawaz Khan for Respondent No.2

Muhammad Wasiq Hassan and Hassan Mabroor for Respondent No.3.

2024 C L C 1812

[Lahore]

Before Muhammad Raza Qureshi, J

ABDUL SATTAR (Deceased) through L.Rs---Petitioners

Versus

MUHAMMAD YASEEN (Deceased) through L.Rs. and 5 others---Respondents

Civil Revision No.2592 of 2014, heard on 16th May, 2024.

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

----Ss. 12 & 29 (b)---Transfer of Property Act (IV of 1882), Ss. 52 & 58---Suit for specific performance of agreement to sell---Principle of bona fide purchaser and lis pendens---Applicability---Mortgaged property---Petitioner / plaintiff sought specific performance of agreement to sell qua suit property which was already mortgaged with a bank---Trial Court decreed the suit in favour of petitioner / plaintiff but Lower Appellate Court modified the decree and held petitioner / plaintiff only entitled to recover the amount already paid to respondent / defendant---Validity---Transaction with respect to mortgaged property in favour of any financial institution did not become void under the provisions of Transfer of Property Act, 1877---Mortgage rights of financial institution remained intact and transferee of suit property remained under obligation to pay mortgage money to creditor---Respondents / subsequent purchasers, purchased property in dispute during pendency of litigation---By getting suit property transferred in their favour during pendency of proceedings, respondents / subsequent purchasers stepped into the shoes of respondent / defendant and the subject matter agreement was specifically enforced in favour of petitioner / plaintiff against them in terms of S. 29(b) of Specific Relief Act, 1877 which ordained that not only the parties to agreement but also their successors were bound by it---Only exception in such behalf was that of bona fide purchaser for value without notice on any existing agreement---In case of conflict of two principles 'bona fide purchaser' versus 'lis pendens' the latter was to prevail---Respondents / subsequent purchasers could not use shield of bona fide purchasers as they had purchased suit property during pendency of proceedings---As successors of respondent / defendant they were bound to convey the property to petitioner / plaintiff---High Court set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court whereby suit filed by petitioner / plaintiff was decreed---Revision was allowed in circumstances.

Muhammad Mumtaz Shah (deceased) through LRs. and others v. Ghulam Hussain Shah (deceased) through LRs. and others 2023 SCMR 1155; Tassaduq Hussain Shah and others v. Allah Ditta Shah and others 2023 SCMR 1635; Muhammad Akbar and others v. Province of Punjab through DOR, Lodhran and others 2022 SCMR 1532 and Shamshad v. Arif Ashraf Khan and others 2010 SCMR 473 ref.

Citibank N.A. through Manager v. Muhammad Akbar and 3 others 2005 CLD 384; Muhammad Sadiq and others v. Muhammad Mansha and others PLD 2018 SC 692; Mst. Saima Naeem v. Habib Bank Limited through Manager/Officer/Attorney and another 2023 CLD 1244; Saif ur Rehman v. Muhammad Ayub and 2 others 1998 CLC 1872; Industrial Development Bank of Pakistan through Deputy Chief Manager v. Saadi Asmatullah and others 1999 SCMR 2874; Beliamy v. Shabine (1857) 1 De G. and J 566; Abdus Saeed Khan and 2 others v. Basharat Ali and 13 others PLD 1995 Lah. 255 and Ms. Sara Bibi v. Muhammad Saleem and others PLD 2021 Isl. 236 rel.

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

----O.XLI, R. 31---Judgment by Appellate Court---Necessary ingredients---Verdict or judgment of Appellate Court which does not contain justified reasoning to set aside judgment and decree passed by Trial Court cannot sustain in the eyes of law---Appellate Court can competently reverse findings of Trial Court but such reversal must always be backed by better and sustainable legal reasoning---Appellate Court cannot evolve findings arbitrarily and illegally on imaginary principles and cannot exercise its jurisdiction unlawfully suffering from material irregularities---Such judgment is not sustainable in the eyes of law.

Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617; Raja Hamayun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 307 and Abdul Jabbar and 8 others v. Ghulam Mustafa and 6 others 2019 CLC 704 rel.

Imran Muhammad Sarwar for Petitioner.

Ch. Masood Ahmad Zafar for Respondents Nos. 1 (A to F).

Nemo for Respondents Nos.2 to 6.

2024 C L C 1828

[Lahore]

Before Ch. Muhammad Iqbal, J

EVACUEE TRUST PROPERTY BOARD through Secretary---Petitioner

Versus

GHYAS AHMAD RANA and others---Respondents

Writ Petition No.17384 of 2000, decided on 13th December, 2023.

(a) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss. 17 & 30---Scheme for the Management and Disposal of Urban Evacuee Trust Properties, 1977, Chapter III, R.7---Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983), Art. 9---Evacuee property---Lease of open plot---Wafaqi Mohtasib (Ombudsman), jurisdiction of---Petitioner / Evacuee Trust Board was aggrieved of restoration of lease of plot in question by Wafaqi Mohtasib (Ombudsman), which plot was leased out on the recommendation of the Minister concerned---Validity---Mechanism for the management, lease and disposal of Evacuee Trust properties was provided in Evacuee Trust Properties (Management and Disposal) Act, 1975, which was a special law---No provision was available in law whereby any authority was vested with the Minister to make recommendations to petitioner / Board for lease of any plot to any individual---Lease of plot owned by petitioner / Board to respondent did not fall within the jurisdiction of Wafaqi Mohtasib as provided in Art.9 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983---There was no evidence brought on record by respondent regarding any malpractice committed by petitioner / Board and if any cancellation of plot in question was made by petitioner / Board, respondent had remedy of filing Revision before Federal Government under S. 17 of the Evacuee Trust Properties (Management and Disposal) Act, 1975---Land in question was a public asset and Courts of law were custodian of public properties public interest---While dealing with matters relating to such properties/assets or interests, it was inalienable obligation of the Courts to be very careful and cautious and assure itself to the extent of certainty that no foul was being played with the state assets---Extraordinary obligation was placed upon the Courts to keep abreast itself with law and facts of the case and when certain material facts were unearthed before it then the matter should be decided as per law without being influenced by respective pleadings of the parties---High Court set aside order passed by Wafaqi Mohtasib and lease of plot in question in favour of respondent was cancelled as the same was illegal and void ab-initio---Constitutional petition was allowed accordingly.

Ch. Munir Ahmad v. Government of Punjab through Chief Secretary, Punjab Lahore and others PLD 2022 Lah. 384; Province of Punjab through Secretary Revenue and others v. District Bar Association, Khanewal and others 2014 SCMR 1611; American International School System v. Mian Muhammad Ramzan and others 2015 SCMR 1449; Raja Ali Zaman (decd.) through L.Rs. and another v. Evacuee Trust Property Board and another PLD 2022 SC 726; Khuda Bakhsh v. Khushi Muhammad and 3 others PLD 1976 SC 208; Master Chiragh Din Vs. Abdul Hakim and another PLD 1974 Lah. 370; 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; Muhammad Arshad Khakwani v. I.U.B. and another 2011 MLD 322; Provincial Government through Collector, Kohat and another v. Shabbir Hussain PLD 2005 SC 337; Al-Shafique Housing Society v. P.M.A PLD 1992 SC 113; Union Council Dhabeji v. Al-Noor Textile Mills Ltd. 1993 SCMR 7; Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423; Abdul Haq Indher v. Province of Sindh 2007 SCMR 907; Taj Muhammad v. Town Committee 1994 CLC 2214 and Sindh Peoples Welfare Trust v. Government of Sindh 2005 CLC 713 rel.

(b) Void order---

----Any order passed by an authority without having jurisdiction is void ab-initio.

Bashir Ahmad v. Meer Aslam Jan 2007 CLC 1544; Messrs East-West Insurance Company Ltd. through Chairman and another v. Messrs Muhammad Shafi and Company through Managing Partner and 2 others 2009 CLD 960; Sultan v. Federation of Pakistan and 4 others (Writ Petition No.28756 of 2014) and Gul Zaman v. Deputy Commissioner/Collector Gwadar and others (Civil Petition No.13-Q of 2020) rel.

(c) Administration of justice---

----When basic order is passed without jurisdiction and without lawful authority, then all superstructure built on such order automatically collapses/crumbles down.

Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 rel.

Mian Abdul Sattar Ejaz for Petitioner.

Ex parte for Respondent No.1.

Masood Arshad for Respondent No.2.

Tahir Mehmood Khokhar, Deputy Attorney General for Respondent No.3.

2024 C L C 1856

[Lahore]

Before Raheel Kamran, J

TRANZUM COURIER SERVICE (TCS) PRIVATE LIMITED and another----Appellants

Versus

SAMREEN BOOTA----Respondent

F.A.O. No.39719 of 2023, decided on 20th March, 2024.

Punjab Consumer Protection Act (II of 2005)---

----Ss.28 & 33---Courier Company---Defective service---Claim of damages---Limitation---Knowledge of defective service---Appellant Courier Company / Service Provider was aggrieved of judgment passed by Trial Court imposing damages for defective service---Appellant / service provider contended that the claim was barred by limitation and no loss was caused to respondent / consumer---Validity---For the purpose of limitation under S. 28(4) of Punjab Consumer Protection Act, 2005, knowledge attributed to claimant alleging defective service was sufficient and complete enough to constitute accrual of cause of action, which had been defined to mean every fact which will be necessary for a claimant to prove, if traversed in order to support his or her right to judgment---Legal notice was issued to appellant / service provider on 03-07-2022, and the date of accrual of cause of action---Claim was to be filed on or before 20-08-2022 and the same was filed on 18-08-2022, therefore, claim of respondent / consumer was not barred by limitation---Respondent / consumer did not claim loss under any specific head---Against total claim of over four million Rupees, general damages of Rs.150,000/- was awarded under the rule of thumb and this was not arbitrary or unreasonable to compensate for the harm or mental agony suffered by respondent / consumer owing to defective quality of service provided by appellant / service provider---High Court in exercise of appellate jurisdiction declined to interfere in judgment passed by Trial Court---Appeal was dismissed, in circumstances.

Messrs Pak Suzuki Motors Company Limited through Manager v. Faisal Jameel Butt and another PLD 2023 SC 482; Muhammad Khalil Khan and others v. Mahbub Ali Mian PLD 1948 Privy Council 131 and TCS (Private) Limited v. Mst. Haseena Begum PLD 2022 Lah. 524 rel.

Shakoh Zulqarnain and Ms. Amna Iqbal for Appellants.

Majid Nadeem for Respondents.

2024 C L C 1888

[Lahore]

Before Asim Hafeez, J

Raja MUHAMMAD KHUBAIB---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents

Civil Revision No.23551 of 2023, decided on 21st June, 2024.

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

----Ss. 18 & 12---Suit for specific performance of agreement to sell---Additional payment as compensation imposed on the plaintiff (buyer)---Legality---Trial Court decreed the suit filed by the vendee /buyer but directed him to pay additional amount as compensation, over and above the consideration amount under the agreement to sell---Trial Court granted compensation on the basis that the plaintiff and defendant (vendor) were equally responsible for non-performance of the agreement to sell on agreed /stipulated date---Plaintiff filed revision before the High Court as the said grant of compensation was maintained by the Appellate / District Court---Whether imposition of compensation through additional payment was justified or not---Held, that concept of compensating, in monetary terms, is essentially a tool to recompense the party that suffers loss, injury or disadvantage---Loss caused; injury occasioned; disadvantage suffered, in contractual arrangements, would, correspondingly, be the cause and effect of default committed or failure attributable to one of the parties to the contract---Hence, before subjecting defaulting party to the obligation of compensating then on-defaulting party, it is imperative to substantiate "factum of default"---It is axiomatic that, in the present case, Trial Court reached the conclusion observing that "now the plaintiff and defendant are equally responsible for non-performance of the agreement to sell on agreed/stipulated date"---If that was the position how could the petitioner/plaintiff be penalized by subjecting it to payment of additional payment when failure was attributed to both the parties---High Court failed to identify and reject blatant discrepancy in the judgment and instead endorsed the illegality---This peculiar mistake is fatal to the sustainability of the judgments it appears that Courts misread the evidence and overlooked effect thereof---High Court set-aside judgments and decrees of the Courts below, to the extent of allowing/decreeing additional amount (Rs.6,769,350/-) as compensation against the petitioner---Revision was allowed, in circumstances.

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

----Ss. 18 & 12---Suit for specific performance of agreement to sell---Additional payment as compensation imposed on plaintiff (buyer)---Legality---Default ascertaining of---Trial Court decreed the suit filed by the vendee/buyer but directed him to pay additional amount as compensation, over and above the consideration amount under the agreement to sell---Trial Court granted compensation on the basis that the plaintiff and defendant (vendor) were equally responsible for non-performance of the agreement to sell which was maintained by the Appellate Court---Validity---Record revealed that the respondent (defendant / vendor) himself appeared as witness, admitting that he, after the agreement, remained abroad for about seven months at relevant days of the extension of time period for performance---One of the conditions of the agreement was physical presence of the respondent before Registering Agency (DHA) at the time of transfer of the suit-plot---Thus, the direction of payment of additional amount (of Rs. 6,769,350/-) was unjustified, unlawful and devoid of reasoning---High Court set-aside judgments and decrees of both the Courts to the extent of allowing/decreeing additional amount Rs.6,769,350/-as compensation against the petitioner---Revision was allowed , under circumstances.

Muhammad Siddique v. Muhammad Akram 2000 SCMR 533 ref.

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

----Ss. 12 & 18---Suit for specific performance of agreement to sell---Time as essence of the agreement---Performance within stipulated time, significance of---Additional payment as compensation, imposed on buyer---Legality---Trial Court decreed the suit filed by the vendee / buyer but directed him to pay additional amount as compensation, over and above the consideration amount under the agreement to sell---Trial Court granted compensation on the basis that the plaintiff and defendant (vendor) were equally responsible for non-performance of the agreement to sell on agreed /stipulated date which was maintained by the Appellate Court---Timelines for performance were provided in the agreement and the same were extended on two occasions---Question was whether petitioner (plaintiff / buyer) had defaulted after second extended agreed date and whether any intent of timely performance of agreement was demonstrated on the part of the respondent (defendant / seller)---Held, that there is no hard and fast rule to determine whether time is the essence of the agreement---No doubt performance timelines in the agreement had significant bearing on the question of timely performance and effect of failure, but mere lapse of cut off date, propriovigore would not non-suit the buyer---Such determination is dependent upon facts and circumstances encountered in each case---Respondent (defendant / seller) admitted absence from Pakistan during material times---Written statement was silent regarding issuing any notice of default on the part of the petitioner---No notice of cancellation was issued, let alone alleged---Respondent was the only witness who appeared---No document was brought on record to show that any authority was extended to any person to undertake process of transfer of suit-plot, in the absence of respondent---Respondent (defendant / seller) failed to prove factum of default on the part of the petitioner (plaintiff/buyer) and also failed to make out a case for cancellation of the agreement in the context of relevant condition of the agreement---Pertinently, balance consideration amount was deposited by the petitioner / plaintiff under the direction of the Court---High Court set-aside judgments and decrees of both the Courts to the extent of allowing/decreeing additional amount (Rs.6,769,350/-) as compensation against the petitioner---Civil Revision was allowed, in circumstances.

Muhammad Aslam and others v. Muhammad Anwar 2023 SCMR 1371; Asim Jamshaid v. Shahzad Iqbal Malik and others 2023 CLC 1100; Mst. Samina Riffat and others v. Rohail Asghar and others 2021 SCMR 7; Muhammad Jamil and others v. Muhammad Arif 20021 SCMR 1108; Muhammad Yousaf v. Allah Ditta and others 2021 SCMR 1241; Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad 2017 SCMR 1696; Hamood Mehmood v. Mst. Shabana Ishaque and others 2017 SCMR 2022; Muhammad Safdar Khan and another v. Muhammad Nadeem Abbasi and another 2021 MLD 617; Mirza Shafaat Ali Baig v. Wg.Cdr. (Rtd.) Khurshid Anwar and another 2020 YLR 886 and Muhammad Siddique and 6 others v. Abdul Aziz Ratalvi and 7 others 2016 YLR 612 distinguished.

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

----S. 12---Suit for specific performance of agreement to sell---Condition(s), observance of---Scope---Earnest money---Return or forfeiture---Scope---Trial Court decreed the suit filed by the vendee / buyer but directed that in case the plaintiff /buyer failed to pay balance consideration within 30 days, the seller would be bound to return earnest money---Plaintiff/buyer filed revision as said findings / observation was affirmed by the Appellate Court---Held, that such observation / findings was contrary to the terms of the agreement, which (agreement) provided that in case the buyer (petitioner) failed to pay the remaining amount, earnest money would be treated forfeited---Said agreement provided that in case the seller failed or refused to arrange for the transfer, he would be bound to return double amount of earnest money---Said (latter) condition was not applicable since the buyer had opted for enforcement of the agreement by resorting to remedy for enforcement of agreement---If the petitioner failed to pay the balance consideration within 30 days, without further ado, the earnest money had to be forfeited---High Court set-aside judgments and decrees of both the Courts below to the extent of direction that in case the plaintiff /buyer failed to pay balance consideration within 30 days, the seller would be bound to return earnest money; modifying the decree that in case of said failure petitioner's suit shall stand dismissed and consequently the paid earnest money shall stand forfeited---Suit was decreed in the above terms.

Ms. Sabahat Rizvi for Petitioner.

Maqsood Ahmad Ghuman for Respondent No.2.

Maher Abdul Shakoor for Respondent No.3.

Respondent No.4 [had no adverse interest to the petitioner].

2024 C L C 1910

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

RAZIA BEGUM and 5 others---Petitioners

Versus

MEMBER (JUDICIAL-III) BOARD OF REVENUE and 12 others---Respondents

Writ Petition No.13531 of 2018, decided on 27th June, 2024.

(a) Limitation---

----Decree, enforcement of---Limitation---Decree never dies but the restriction of limitation always becomes a barrier for the enforcement of the decree through execution after prescribed period of limitation, however, it does not extinguish the right or title based on the decree---Decree does not lose its utility for not having been effected within the period of limitation.

Ali Ahmad and another v. Muhammad Fazal and another 1972 SCMR 322 ref.

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

----S. 148---Decree passed with condition to deposit remaining consideration amount within stipulated period---Extension in stipulated time---Scope---Court, powers of---Decree passed in favour of the predecessor of the petitioners was conditional subject to payment of remaining consideration amount within a period of one month and on failure to deposit the remaining consideration amount, the suit would be deemed to have been dismissed---There was no proof/material on record which might suggest that predecessor of the petitioners fulfilled the said condition as it was not established on the record at all if such deposit was ever made---Trial Court could not enlarge the period for deposit of remaining consideration amount under section 148 of the Civil Procedure Code, 1908, after the lapse of stipulated period of one month---Jurisdiction with the Trial Court was available only within the stipulated period of one month---Moment such period of one month was over, it ceased to have jurisdiction and became functus officio, in view of the condition incorporated in the decree---In such eventuality the decree passed by the Trial Court could only have been challenged by the plaintiff in appeal and the Appellate Court was competent to allow an application seeking extension of time for deposit of balance sale consideration, if justifiable grounds were found---Petition was dismissed, in circumstances.

Muhammad Wahid and another v. Nasrullah and another 2016 SCMR 179 ref.

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

----O.XXI, R.32---Punjab Land Revenue Act (XVII of 1967), S.42(1)---Specific Relief Act (I of 1877), S. 12---Decree for specific performance, implementation of---Procedure---Execution proceedings---Revenue Authorities, powers of---Scope---Petitioners filed constitutional petition as Member Board of Revenue while accepting the revision filed by respondents setaside the order passed by the Additional Commissioner (Revenue) in their (petitioners') favour and restored the orders of review (cancellation) of mutation on the basis of decree for specific performance for having been incorporated directly by the Revenue Authorities i.e. without resorting to Executing/Civil Court---Question arose as to whether decree of specific performance could be implemented in the revenue record directly through mutation or it could be enforced only through filing of an execution petition?---Contention of the petitioners was that Revenue Officer was duty bound to incorporate said decree in the revenue record, through sanctioning of mutation---Validity---No doubt, the decree granted by the Civil Court is binding on the Revenue Authorities and they are bound by the law to give effect to the decree and change entries in the revenue record in accordance with the rights of the parties as determined by the Civil Court---However, S. 42(1) of the Punjab Land Revenue Act, 1967, provides that process of mutation would start from the time when a transaction of transfer (acquisition) of right in the property has been effected through inheritance etc. or otherwise such as decree of Civil Court---Decree for specific performance (of an agreement with regard to sale of the property) by itself does not transfer the title, as such decree only declares the right of decree-holder to have the property transferred in his favour covered by the decree, and so long as the sale- deed is not executed in his favour by the judgment-debtor or by the Court, the title of the property remains vested in the judgment-debtor---Unless the title in the immovable property is transferred by means of a registered sale deed, it cannot be deemed to have been transferred irrespective of the fact that an agreement to sell has been executed and a decree for its specific performance has also been passed---Purpose of the decree of specific performance is to get the sale-deed executed and procure possession in accordance with the condition mentioned therein, and so long as the sale deed is not executed in favour of the decree holder either by the judgment-debtor or by the Court, the title in the property vests in the judgment-debtor---Thus, in order to get title of the property on the basis of a decree for specific performance, the decree holder has to file an execution petition by invoking provision of O. XXI, R. 32 of the Code of Civil Procedure, 1908, which deals with decrees for specific performance, restitution of conjugal rights and injunction---It provides various modes and steps for execution of said types of decree---By executing the decree for specific performance not only a sale deed is executed in favour of decree-holder but the possession is delivered as well subject to conditions as mentioned in the agreement/decree---Decree for specific performance enjoins the parties to perform their part of agreement and on their failure to do so, Court itself performs those obligations by carrying out the act subject to conditions as mentioned in the agreement/decree---Decree for specific performance can not be directly implemented in the revenue record without indulgence of the executing court , who on execution of the decree shall get the sale deed executed in favour of the decree-holder and deliver the possession in accordance with the agreement/decree---Of course, after execution of sale deed , the revenue authorities would be bound to give it effect in the revenue record---Member Board of Revenue while accepting the revision filed by respondents had rightly set- aside the order passed by the Additional Commissioner (Revenue) in their (petitioners') favour, and restored the orders of review (cancellation) of mutation---Petition was dismissed, in circumstances.

Hakim Enayat Ullah v. Khalil Ullah Khan and another AIR 1938 All 438; Majid v. Nizam Din and others PLD 1959 Lah. 273; Haji Abdul Rehman and others v. Noor Ahmad and others PLD 1974 BJ 25; Muhammad Ishaq v. Muhamamd Siddique PLD 1979 Lah. 909 and Syed Manzoor Hussain Shah v. Khurshid Ahmad and 4 others 1989 CLC 1372 ref.

Sheikh Muhammad Hanif Shahid and Rizwan Ahmad Khan for Petitioners.

Kanwar Sajid Ali, Assistant Advocate General Punjab for Respondents Nos.1 to 4.

Saghir Ahmad Bhatti for Respondents Nos.5 to 12.

2024 C L C 1926

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

Shaista Jamil---Appellant

Versus

Daraz and another---Respondents

Criminal Appeal No. 559 of 2023, decided on 25th September, 2023.

Punjab Consumer Protection Act (II of 2005)---

----Ss. 23, 30 & 32---Criminal Procedure Code (V of 1898), S.410---Civil Procedure Code (V of 1908), O.VII, R.11---Appeal---Maintainability---Rejecting of complaint---Complaint of appellant / consumer was rejected by Trial Court under the provision of O. VII, R.11 C.P.C.---Appellant / consumer assailed order of Trial Court under S.410 Cr.P.C.---Office of High Court raised objection regarding maintainability of appeal---Validity---Consumer Court established under Punjab Consumer Protection Act, 2005 is a special Court with both civil and criminal jurisdiction--- Consumer Court is not a civil Court in the sense of Civil Procedure Code, 1908 because a petition, claim or complaint brought before it is not treated as suit or plaint and it does not pass a decree--- Similarly the Court cannot be termed as a pure criminal Court because of its limited criminal provisions---This indicates the uniqueness of the Consumer Court and its proceedings--- Every proceeding before Consumer Court is deemed to be a judicial proceeding under S. 30(4) of Punjab Consumer Protection Act, 2005--- Provision of Civil Procedure Code, 1908 do not strictly govern proceedings before Consumer Court and it can apply only its equitable principles---Thus, O.VII, R.11 C.P.C. was not applicable in terms but Consumer Court had authority to decide on maintainability of a claim---Consumer Court had passed order in question in exercise of civil jurisdiction, therefore, no criminal appeal was competent against such order---Office objection was maintained in circumstances.

United States v. Ward 48 U.S. 242 (1980); Kennedy v. Mendoza-Martinez 372 U.S. 144 (1963); State of Karnataka v. Vishwabharathi House Building Coop. Society and others AIR 2003 SC 1043; Ghaziabad Development Authority v. Union of India (UoI) and another 2003 (4) AWC 3078; Union of India and another v. Shardindu 2007 6 SCC 276; Reference No. 01 of 2012 PLD 2013 SC 279; New India Assurance Company Ltd. v. Srinivasan AIR 2000 SC 941; Ethiopian Airlines v. Ganesh Narain Saboo AIR 2011 SC 3495; Bambino Ltd. v. Selmor International Ltd. and another PLD 1983 SC 155; Mian Hakim Ullah and others v. Additional District Judge/Tribunal, Noewshera and others 1993 SCMR 907; Haji Khudai Nazar and another .v Haji Abdul Bari 1997 SCMR 1986 and Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others 2007 SCMR 818 rel.

Syed Fakhar Imam Bukhari for Appellant.

Sikandar Abbas, assisted by Jabran Munir Awan for Respondent No. 1.

Nemo. for Respondent No. 2.

Asim Murtaza Cheema, Research Officer, LHCRC for Research assistance.

Date of hearing: 23th June, 2023.

Judgment

Tariq Saleem Sheikh, J.---The Appellant claims that on 30.5.2022, a vendor on Daraz, who called himself "Innocent Gamer" with Facebook ID Bandex.net, persuaded her to buy a VIVO V19 cell phone online at a 20% discount. At 11:23 p.m., she remitted PKR 48,000/- for it to Daraz Wallet Account using Easypaisa (Transaction ID: 7648354737). The order was confirmed, and after 20 minutes, she received an e-mail informing her that the cell phone had been delivered to her address, which was untrue. She didn't get any. She realized it was a scam and immediately notified the Daraz Customer Care Department about it via e-mail. She also requested a return of the money she had deposited in the Daraz Wallet Account as aforesaid. The Customer Care Department sought various details from the Appellant over the next ten days, pretending to resolve the matter, but on 11.6.2020, denied the company's liability and asked her to approach the Federal Investigation Agency under the Prevention of Electronic Crimes Act, 2016 (PECA) for redress. The Appellant served Daraz with a statutory notice under the Punjab Consumer Protection Act, 2005 (the "Punjab Act"), demanding Rs. 2.00 million in compensation and Rs.27,000/- in legal fees for faulty service. On 4.7.2020, she filed a claim under section 25 of the Act with the District Consumer Court, Multan, which the Presiding Officer rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908 ("C.P.C.") by order dated 7.4.2022 (the "Impugned Order"). Hence, this appeal.

1. The office objected that a criminal appeal against the Impugned Order is not competent. This Court ordered that it would consider that objection on the judicial side and, subject to the question of maintainability, issued notice to the Respondents. Respondent No.2 (Innocent Gamer) could not be served due to non-availability of address.

2. The Appellant's counsel, Syed Fakhar Imam Bukhari, Advocate, insists that this criminal appeal is maintainable under section 33 of the Punjab Act and that the office objection is misconceived. On merits, he contends that Daraz, through its website and media campaign, offers simple and secure online shopping, safe and fast payments, money and order tracking, and hassle-free returns and refunds. However, it did not happen in the present case. The Appellant has suffered a loss due to Daraz's poor service and unfriendly customer policies. Mr Bukhari further contends that the Appellant's complaint before the Consumer Court was competent, and the judge has misapplied the provisions of Order VII Rule 11 C.P.C. to reject it.

3. The counsel for Daraz, Mr Sikandar Abbas, Advocate, has supported the office objection and defended the Impugned Order. He submits that the Appellant's complaint does not disclose a cause of action against Daraz, and the Consumer Court rightly rejected it. She was duped by a phoney Facebook Page, Bandex.net, for ordering a cell phone. Her money went into a bogus account created by the swindler. Although that account was styled as Daraz Wallet Account, Daraz did not own it and never received any money from the Appellant. Daraz has not committed any negligence and is, therefore, not liable to compensate her for the loss. The Appellant is a victim of cybercrime and should seek redress under PECA.

Opinion

1. The United Nations General Assembly, by Resolution 39/248 of 16 April 1985, adopted the U.N. Guidelines for Consumer Protection which stated:

"Taking into account the interests and needs of consumers in all countries, particularly those in developing countries, recognizing that consumers often face imbalances in economic terms, educational level, and bargaining power, and bearing in mind that consumer should have the right of access to non-hazardous products, as well as the importance of promoting just, equitable and sustainable economic and social development, these guidelines for consumer protection have the following objectives:

(a) To assist countries in achieving or maintaining adequate protection for their population as consumers;

(b) To facilitate production and distribution patterns responsible for the needs and desires of consumers;

(c) To encourage high levels of ethical conduct for those engaged in the production and distribution of goods and services to consumers;

(d) To assist countries in curbing abusive business practices by all enterprises at the national and international levels which adversely affect consumers;

(e) To facilitate the development of independent consumer groups;

(f) To further international cooperation in the field of consumer protection;

(g) To encourage the development of market conditions which provide consumers with greater choice at lower prices."

1. The Economic and Social Council expanded the 1985 Guidelines in Resolution 1999/7 on 26 July 1999, which the General Assembly revised and adopted in Resolution 70/186 of 22 December 2015. These Guidelines are valuable principles outlining the key features of effective consumer protection legislation, enforcement institutions and redress mechanisms. They help interested Member States develop and enforce domestic and regional laws, rules and regulations suitable to their economic, social and environmental conditions. They also foster international enforcement cooperation among Member States and stimulate the exchange of experiences in consumer protection.

2. The Punjab Act is a special law inspired by the above-mentioned U.N. Guidelines. Section 3 thereof stipulates that its provisions are in addition to and not in derogation of any other law for the time being in force. Part II of the Act addresses liability for defective products, while Part III discusses liability for defective and faulty services. Part IV details the obligations of manufacturers. Part V prohibits unfair practices. Part VI to VIII set out the procedure for punishing offences under the Act and disposal of claims. Part IX contains some miscellaneous provisions.

3. The Punjab Act creates two forums for dealing with matters it covers. Section 23(1) states that any person may file a complaint for violation of sections 11, 16, 18 and 19 before the Authority which may fine the offender up to Rs.50,000/- if the allegation is proven. Section 2(b) defines "Authority" as the District Coordination Officer of the relevant district or such other officer as the Government may notify. Section 23(2) stipulates that the Authority may file a claim before the Consumer Court for declaring a product defective under section 4, 5, 6, 7 or 8 or a service as faulty or defective under section 13. Section 23(3) states that the Authority may approach the Consumer Court for declaring an action of any person as being in contravention of Part IV of the Act. Section 23(4) says that the Authority may, on receipt of a complaint or reference from the Consumer Protection Council or on its own motion, hold an inquiry as to the defects in products, services or practices which contravene any of the provisions of the Act. Section 23(7) provides that any person aggrieved by the Authority's order under section 23(1) may appeal to the Government within 30 days.

4. The second forum is the Consumer Court established under section 26 of the Punjab Act, which adjudicates claims for damages arising out of contravention of any provisions of the Act (see section 25) following the procedure outlined in section 30. If it determines that the products complained about have any of the defects mentioned in the claim, or that any or all of the allegations contained in the claim against the services are true, it shall direct the defendant to take one or more of the actions listed in section 31 of the Act.

5. It is noteworthy that sections 16 and 18 appear in both sections 23(1) and 32(1). The effect of this duplication will be examined in an appropriate case.

6. The first question that requires determination is as to what is the nature of proceedings under the Punjab Act.

7. There are two broad categories of law: criminal law and civil law. In the most general sense, criminal law aims to punish, while the civil law is meant to compensate. As a result, they have different procedural rules, including those relating to evidence. This paradigm shapes legal principles and the division of authority among courts.

8. Historically, there have been different emphases in defining the purposes of criminal law, which gave rise to the theories of retribution, deterrence, prevention and reformation. However, modern legal theorists posit that criminal and civil law serve the same function of societal control. According to Kenneth Mann, punitive civil sanctions are rapidly expanding, affecting a growing segment of society in cases brought by private parties and the government. These sanctions are sometimes more severe than the corresponding criminal penalties for the same conduct. Punitive civil sanctions are replacing a significant part of criminal law in crucial areas of law enforcement, particularly in white-collar prosecutions, for two reasons: first, they carry tremendous punitive power, and second, they are more efficient than criminal penalties because the criminal procedure does not constrain them. Consequently, the jurisprudence of sanctions is undergoing a radical change. As more punishment is handed down in civil proceedings, the features distinguishing civil from criminal law become less clear. Almost every attribute associated with one paradigm appears in the other. Imprisonment, which is linked with the criminal process, also exists in the civil realm. For example, civil contempt is punishable by incarceration. Payment of money, distinctively associated with civil law, takes the form of fines in criminal law. Mann further states:

"I use the term 'middleground' to describe the jurisprudential arena of punitive civil sanctions. The middleground draws on the two basic paradigms that form the doctrinal basis for the entire field of sanctioning law: criminal law and civil law. The paradigms of criminal and civil law stem from longstanding conventions about the essential nature and function of legal sanctions. Within this paradigmatic framework, the criminal law is distinguished by its punitive purposes, its high procedural barriers to conviction, its concern with the blameworthiness of the defendant, and its particularly harsh sanctions. In contrast, the civil law is defined as a compensatory scheme, focusing on damage rather than on blameworthiness, and providing less severe sanctions and lower procedural safeguards than the criminal law. The middleground draws on these two basic paradigms to form a hybrid jurisprudence in which the sanction's purpose is punishment, but its procedure is drawn primarily from the civil law."

1. Legislatures today also give administrative bodies the authority to punish offenders in civil proceedings. In the United States, Mann writes, when the Supreme Court upheld the administrative procedure for assessing penalties, it left Congress free to expand the powers of administrative agencies and grant them additional power to impose penalties. In response to the reports that the government failed to prosecute many medicare and medicaid fraud cases, Congress empowered the Secretary of the Department of Health and Human Services to levy a civil money penalty of up to $ 2000 for each fraudulent claim plus twice the amount claimed. Congress has increased the authority of the Securities and Exchange Commission to seek punitive sentences. It has also expanded civil penalties in the False Claims Act and several other laws.

2. Notwithstanding the above developments, the distinction between civil and criminal penalties is of constitutional importance. The U.S. Supreme Court noted this fact in United States v. Ward, 48 U.S. 242 (1980), and pointed out that the Self-incrimination Clause of the Fifth Amendment, for example, is expressly limited to "any criminal case". Similarly, the Sixth Amendment safeguards are only available in criminal prosecutions. The Double Jeopardy Clause protects only against criminal punishment, and proof beyond a reasonable doubt is required only in criminal cases. The Supreme Court went on to say that whether a particular statutorily defined penalty is civil or criminal is a matter of statutory interpretation. Traditionally, the inquiry in this regard has proceeded on two levels. First, the court has to determine whether Congress expressed or implied a preference for one label or the other when establishing the penalizing mechanism. Second, whether Congress has indicated an intention to enact a civil penalty. If so, the court must then inquire whether the statutory scheme was so punitive in purpose or effect to negate that intention. The Supreme Court said that the factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), which are neither exhaustive nor dispositive, help determine whether an Act of Congress is penal or regulatory. They are as follows:

"Whether the sanction involves an affirmative disability or restraint, whether it has historically been recorded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment, retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions. Absent conclusive evidence of Congressional intent as to the penal nature of a statute, these factors must be considered in relation to the statute on its face."

1. The Punjab Act follows the modern legislative trend discussed above. It provides a remedy before the Authority, an administrative body, in some matters and before the Consumer Court in others.

2. The Punjab Act's provisions are predominantly civil in nature, but sections 23(1) and 32 require in-depth analysis. Section 23(1) empowers the Authority to impose fines for certain infractions of the Act. Section 32(1) states that when a manufacturer violates sections 4 to 8, 11, 13, 14, 16, 18 to 22, he shall be punished with imprisonment up to two years or with a fine up to a hundred thousand rupees or with both, in addition to damages or compensation as may be determined by the Consumer Court. Thus, it creates statutory offences. Section 30(2) states that where a defendant or a claimant fails or omits to comply with the Consumer Court's order, he would be punished with imprisonment and a fine. Applying the principles laid down in Kennedy's case, in my opinion, sections 23(1) and 32(2) of the Punjab Act establish civil penalties.

3. Section 32(2) of the Punjab Act is analogous to section 27 of India's repealed Consumer Protection Act of 1986 and section 72 of the Consumer Protection Act of 2019 presently in force. In State of Karnataka v. Vishwabharathi House Building Coop. Society and others (AIR 2003 SC 1043), while considering section 27 of the 1986 Act, the Indian Supreme Court held that it is an additional power for the execution of orders. The relevant excerpt is reproduced below:

"58. Furthermore, section 27 of the Act also confers an additional power upon the Forum and the Commission to execute its order. The said provision is akin to Order 39 Rule 2-A of the Civil Procedure Code or the provisions of the Contempt of Courts Act or section 51 read with Order 21 Rule 37 of the Civil Procedure Code. Section 25 should be read in conjunction with section 27. A Parliamentary statute indisputably can create a tribunal and might say that non-compliance with its order would be punishable by way of imprisonment or fine, which can be in addition to any other mode of recovery.

1. It is well settled that the cardinal principle of interpretation of statute is that courts or tribunals must be held to possess the power to execute their own order.

2. It is also well settled that a statutory tribunal which has been conferred with the power to adjudicate a dispute and pass necessary order has also the power to implement its order. Further, the Act which is a self-contained Code, even if it has not been specifically spelt out, must be deemed to have conferred upon the tribunal all powers in order to make its order effective."

3. The Allahabad High Court ruled in Ghaziabad Development Authority v. Union of India (UoI) and another, 2003 (4) AWC 3078 b), that the proceedings under section 27 of India's Consumer Protection Act of 1986 are akin to civil contempt. It stated:

"A perusal of section 27 clearly shows that the proceedings therein are in the nature of proceedings for contempt, and their object is to compel obedience of the orders of the District Forum, State Commission or the National Commission … The proceedings under section 27 are really not ordinary criminal proceedings in respect of offences under [the Indian Penal Code] or some other statute. The … only procedure required in these proceedings is that the principles of natural justice should be complied with … It appears that Parliament has specifically enacted section 27 to give teeth to the provisions of the Consumer Protection Act. Had there been no provision for enforcement of the orders of the authorities under the Act, the entire purpose of the Statute would have been frustrated as nobody would obey the orders of these authorities. Without the sanction of section 27, the entire consumer jurisdiction would only be a paper tiger lacking teeth."

1. In view of the above, it is reasonable to conclude that section 32(2) of the Punjab Act does not stricto sensu constitute a statutory offence but serves as a tool for the execution of the Consumer Court's orders.

Proceedings before the Consumer Court

1. A Consumer Court established under the Punjab Act is a special court with both civil and criminal jurisdictions. However, it is not a civil court in the sense of the Code of Civil Procedure, 1908 because a petition, claim or complaint brought before it is not treated as a suit or plaint, and it does not pass a decree. Similarly, it cannot be termed a pure criminal court because of its limited criminal provisions. This indicates the uniqueness of the Consumer Court and its proceedings. For this reason, the Legislature thought it necessary to enact section 30(4) to clarify that every proceeding before the Consumer Court shall be deemed a judicial proceeding. In the normal course, such deeming provisions are not required because pure civil and criminal processes are always judicial in nature.

2. The draftsman has interchangeably used the terms "claim" and "complaint" throughout the Punjab Act without considering that they have different legal meanings. It is, however, important to point out that he has not used them in the sense contemplated by the Code of Criminal Procedure 1898. This view finds support by the fact that Part VIII of the Punjab Act, which deals with proceedings before the Consumer Court, is titled "Disposal of Claims and Establishment of Consumer Courts." This Part begins with section 25 and is also captioned as "filing of claims." Furthermore, sections 25 to 31 deal with the civil rather than a criminal remedy.

Application of C.P.C. in proceedings before the Consumer Court

1. There is no provision in the Punjab Act which says that C.P.C. would apply to the cases before the Consumer Court. Nonetheless, section 30(3) of the Act, reproduced below, states:

(3) For the purposes of this section, the Consumer Court shall have the same powers as are vested in civil court under the Code of Civil Procedure, 1908 (Act V of 1908), while trying a suit, in respect of the following matters, namely:

(a) the summoning and enforcing attendance of any defendant or witness and examining him on oath;

(b) the discovery and production of any document or other material object which may be produced as evidence;

(c) the receiving of evidence on affidavits;

(d) issuing of any commission for the examination of any witness; and

(e) any other matter which may be prescribed.

1. Since section 30(3) of the Punjab Act grants the Consumer Court some specific powers that civil courts have under the C.P.C., the remainder are excluded by necessary implication. The following Latin legal maxims lend support to this interpretation: (i) Expressio unius est exclusio alterius (the express mention of one thing is the exclusion of the other) and (ii) Expressum facit cessare tacitum (what is expressed makes what is implied silent). In Union of India and another v. Shardindu, (2007) 6 SCC 276, the Indian Supreme Court held that when the provision's language is plain and unambiguous, the question of supplying casus omissus does not arise. The court can interpret a law but cannot legislate. In Reference No.01 of 2012 (PLD 2013 SC 279), the Supreme Court of Pakistan held:

"A casus omissus can, in no case, be supplied by the court of law as that would amount to altering the provision. 'It is not our function, as was held by Mr. Justice Walsh, in the case of Attorney General v. Bihari, re Australia Factors Limited (1966) 67 S.R. (N.S.W.) 150, to repair the blunders that are to be found in the legislation. They must be corrected by the legislator'. A court of law is not entitled to read words into the Constitution or an Act of Parliament unless clear reason is found within the four corners of either of them."

1. In India, section 13(4) of the repealed Consumer Protection Act of 1986 and section 38(9) of the Consumer Protection Act of 2019 currently in force provide for a limited application of the Indian Code of Civil Procedure, similar to section 30(3) of the Punjab Act. The Supreme Court considered section 13(4) supra in New India Assurance Company Ltd. v. Srinivasan (AIR 2000 SC 941) and ruled:

"10. We have already indicated above that the Code of Civil Procedure has been applied to the proceedings under the Consumer Protection Act only to a limited extent. If the intention of the Legislature was to apply the provisions of Order 9 also to the proceedings under the Consumer Protection Act, it would have clearly provided in the Act that the provisions of Order 9 would also be applicable to the proceedings before the District Forum or the State Commission or, for that matter, before the National Commission. If the Legislature itself did not apply the rule of prohibition contained in Order 9 Rule 9(1), it will be difficult for the Courts to extend that provision to the proceedings under the Act."

1. Reference may also be made to Ethiopian Airlines v. Ganesh Narain Saboo (AIR 2011 SC 3495) wherein the Supreme Court of India observed:

"58. However, notwithstanding the fact that proceedings of the National Commission are 'suits' under the Carriers Act, vide the expressio unius principle, the Consumer Protection Act, 1986 clearly enumerates those provisions of the C.P.C. that are applicable to proceedings before the consumer fora. Such provisions include 13(4), in which the Consumer Protection Act, 1986 vests those powers vested in a civil court under the C.P.C. to the District Forum. However, according to the principle of expressio unius, because the Legislature expressly made the aforementioned provisions of the C.P.C. applicable to the consumer proceedings, the Legislature is, therefore, deemed to have intentionally excluded all other provisions of the C.P.C. from applying to the said proceedings. This is particularly true since, as explained above, the Consumer Protection Act, 1986 sets forth an exhaustive list of procedures, distinguishable from those required under the C.P.C., that the consumer redressal fora must follow. Therefore, since the Consumer Protection Act does not state that section 86 applies to the consumer fora's proceedings, that Section of the C.P.C. should be held to be not applicable."

1. I am inclined to adopt the above interpretation for the purposes of the Punjab Act for an additional reason that its object is to settle consumer complaints as expeditiously as possible. The application of C.P.C. can delay the disposal of such complaints because technicalities complicate the trial.

2. The law in our country is well recognized that unless there is a specific provision to the contrary in any special or local law, the ordinary rules of procedure apply. In Bambino Ltd. v. Selmor International Ltd. and another (PLD 1983 SC 155), the petitioners filed an ejectment petition against respondent No.1, the tenant of Room No. 27 of their building, in which the Rent Controller passed an ex parte eviction order. Following that, they moved an execution application in which the notice was served through publication in a newspaper. They also obtained an order of police aid. However, before the eviction order could be executed, the petitioners took possession of the room. They entered into a lease agreement with respondent No. 2, admitted him as a tenant, and began collecting rent. They did all of this without withdrawing the aforementioned execution application. When respondent No. 2 came to know that the ejectment order issued by the Rent Controller would be executed against him, he obtained a stay order from him, but by the time the court official could serve it, the process of eviction had already been completed. Nonetheless, he applied under section 151, read with section 141 C.P.C., for restitution of possession of the property. The Supreme Court of Pakistan held that under section 22 of the Sindh Rented Premises Ordinance, 1979, an order passed by the Rent Controller or the appellate authority has to be executed in the manner determined by them. Consequently, the Rent Controller was competent to adopt any procedure he deemed suitable for the execution of his order. Order XXI Rules 100 and 101 C.P.C. amply empower an Executing Court to investigate and adjudicate on the issue of dispossession from immovable property by the holder of a decree for possession of such property of a person other than the judgment-debtor. If the court is satisfied after such investigation that the applicant was in possession of the property on his own account or on behalf of some one other than the judgment-debtor, the Executing Court has the jurisdiction to direct that the applicant be put into possession of the property. It is a procedural rule based on equitable principles and the canon that a decree passed by the court ordinarily binds the parties to the suit, their assignees and anyone claiming through them.

3. In Mian Hakim Ullah and others v. Additional District Judge/Tribunal, Nowshera, and others (1993 SCMR 907), the appellant challenged the SDO's notices issued under section 3(1) of the North-West Frontier Province Removal of Encroachments Act, 1997 before the tribunal established under section 12 of that Act. During the hearing of the appeal before the Supreme Court, the Advocate General contended that the rules framed under the Act merely provide for a referral to the tribunal and do not prescribe any procedure for filing a suit. Hence, it could not be brought before the tribunal directly. The Supreme Court ruled that the failure of the Government to make the necessary rules cannot render the Act inoperative and the tribunal dysfunctional. It observed that section 14(3) of the Act grants the tribunal the power of a civil court in matters such as summoning and enforcing the attendance of any person and examining him under oath, receiving evidence on affidavit, compelling production of documents and issuing commissions for examinations of witnesses or documents. Hence, the tribunal's proceedings have all the necessary attributes of the proceedings of the civil court. The Supreme Court further stated that if the existing rules do not provide for a particular procedural matter relating to the proceedings before the tribunal, it is free to follow the principles contained in the C.P.C. to the extent it deems essential.

4. In Haji Khudai Nazar and another v. Haji Abdul Bari (1997 SCMR 1986), the petitioners filed an application under Order XLI Rule 17 C.P.C in the High Court for recalling an ex parte judgment in a rent case, stating that their counsel reached the rostrum when it was being dictated and had not yet been signed. Further, the delay in getting to the Court was due to factors beyond his control. Before the Supreme Court, the question was whether C.P.C. applied to the proceedings before the Rent Controller under the West Pakistan Urban Rent Restriction Ordinance, 1959, because it does not expressly exclude it. The Supreme Court ruled that C.P.C. does not apply to such proceedings unless specifically made applicable by the rent laws. However, its principles may be applied in the facts and circumstances of the case so long as they do not conflict with the rent laws and advance the cause of justice. It further stated:

"It is now well-settled that in proceedings before Court or Tribunal of quasi-judicial nature, even if there is no provision for setting aside an ex parte order, the Court/Tribunal would be empowered to exercise such power by applying principles of natural justice. Such provisions which enshrine principles of natural justice have to be read in the statute which do not specifically debar such a remedy. Therefore, even without applying the provisions of C.P.C. in terms, the procedure provided under Order IX, Rules 9 and 13 and Order XLI, Rule 17, C.P.C. can be applied by the Controller or the High Court in rent proceedings."

1. In Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others (2007 SCMR 818), the petitioner had taken possession of the property in terms of the order of the Rent Controller. The respondents filed a petition before him against the petitioner under Order XXI, Rules 100, 101 and 103, C.P.C. on the ground that the property was allotted to their predecessor. The Supreme Court ruled that the provisions of C.P.C. are not stricto sensu applicable to the rent proceedings, but the Rent Controller may follow the equitable principles thereof. It further stated that section 144, C.P.C. contains an equitable principle which can be invoked in ejectment cases.

2. To sum up, the Code of Civil Procedure applies to the proceedings before the Consumer Court to the extent specified in section 30(3) of the Punjab Act. Nevertheless, it may also adopt its general principles insofar as they advance the interests of justice.

Procedure for trial of offences

1. The Punjab Act does not specify the procedure the Consumer Court would follow to try the offences. However, section 5 of the Code of Criminal Procedure, 1898, reproduced below, can be helpful in this regard:

2. Trial of offences under Penal Code.- (1) All offences under the Pakistan Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) Trial of offences against other laws.- All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

Appeal to the High Court

2024 C L C 2021

[Lahore]

Before Muhammad Sajid Mehmood Sethi and Asim Hafeez, JJ

EMPLOYEES OLD AGE BENEFIT INSTITUTION through Director Law EOBI---Appellant

Versus

Messrs MUGHALS PAKISTAN (PVT.) LTD. through Chief Executive Officer and others---Respondents

R.F.A. No.43092 of 2022, decided on 6th January, 2024.

Arbitration Act (X of 1940)---

----Ss. 14, 17, 20 & 30(c)---Arbitration proceedings---Party to arbitration agreement, non-impleading of---Award, setting aside of---Principal-agent relationship---Proof---Dispute between parties was referred to Arbitral Tribunnal and award was made Rule of the Court---Respondent / Company was impleaded as party to arbitration proceedings on the ground that it was a subsidiary company of appellant / Institution---Appellant / Institution assailed Rule of the Court on the plea that no proceedings could be referred to Arbitral Tribunal---Validity---Respondent / Company had an independent legal-cum-corporate existence and its claim of being a wholly owned subsidy of Appellant was clearly indicative of the distinct statuses enjoyed and claimed, respectively---Respondent / Company could not be declared or treated as party to the agreement for the purposes of proceedings under S. 20 of Arbitration Act, 1940 nor the same could be construed as an entity, which substituted or novated appellant / Institution as party to the agreement---No resolution of Board of appellant / Institution was shown or relied upon to demonstrate or establish that respondent / Company had assignment of rights and obligations of appellant / Institution or any novation took place---No person or entity, merely signatory to agreement, for and on behalf of one of the party to the agreement, was competent to file petition under S. 20 of Arbitration Act, 1940, unless its status as party to the agreement was satisfactorily established, by virtue of any law or under any contractual arrangement---Respondent / Company failed on both counts to claim any alleged assignment of rights or novation of contractual obligation---Order passed by Trial Court referring the matter to Arbitral Tribunal and proceedings conducted subsequent thereto, including arbitration proceedings and issuance of Award without appellant / Institution were unlawful and invalid---No validity could be extended to the Award in wake of an invalid order of reference---High Court in exercise of jurisdiction under S. 30(c) of Arbitration Act, 1940, declared that the Award procured was invalid and the decree, making Award rule of the Court, was also unlawful and of no legal effect, in wake of illegality of the order of reference of matter to arbitrators, in purported exercise of jurisdiction under S. 20 of Arbitration Act, 1940---Appeal was allowed in circumstances.

Federation of Pakistan through D.G. National Training Bureau v. Messrs James Construction Company (Pvt.) Ltd. PLD 2018 Isl. 1; Al-Haj Sheikh Abdul Hafeez and Another v. Suhail Zaman and 6 others 2020 CLD 505; T.M.A. Kohat v. Iftikhar Ali Shah 2020 CLC 1243; Chairman WAPDA and another v. Messrs Syed Bhais (Pvt.) Ltd. and another 2011 CLC 841; Standard Insurance Company Ltd., Multan through Manager v. Fazal Cotton Industry and others 2000 MLD 1564; Injum Aqeel v. Latif Muhammad Chaudhry and others 2023 SCMR 1361; National Insurance Property Development Company Limited v. NH International (Caribbean) Limited Claim# CV 2008-04881; National Highway Authority through Chairman, Islamabad v. Messrs Sambu Construction Co Ltd Islamabad and others 2023 SCMR 1103; Concentrate Manufacturing Company of Ireland and 3 others v. Seven-up-Bottling Company (Private) Limited and 3 others 2002 CLD 77; Abdul Hameed and others v. Abdul Baqi and others 2021 CLC 1597; Defence Housing Authority, Islamabad v. Multi-National Venture Development (Pvt.) Ltd. 2019 CLD 566; Inayatullah Khan v. Obaidullah Khan and others 1999 SCMR 2702; Sh. Muhammad Saleem v. Saadat Enterprises 2009 CLC 291; Pakistan through Ministry of Defence v. Ch. Fazal Muhammad and others 2005 YLR 2896; Pakistan through Secretary, Ministry of Religious Affairs, Government of Pakistan, Islamabad v. Dallah Real Estate and Tourism Housing Holding Company 2003 CLC 1411; Messrs K&N International v. Messrs Motorway Operations and Rehabilitation Engineering (Private) Limited 2019 CLC 1613; Kabab-Ji SAIL (Lebanon) v. Kout Food Group (Kuwait) [2021] UKSC 48 and Egiazaryan and another v. OJSC OEK Finance City of Moscow' [2015] EWHC 3532 ref.

Baqir Hussain, Mahmood Ahmad Rehan, Mustansar Ashraf and Shan Saud for the Appellant (in R.F.A No.43092 of 2022) and for Respondent No.2 (in R.F.A. No.37623 of 2022).

Umar Zia-ud-Din, Raza-ur-Rehman, Talha Asif and Sajid Hussain Qureshi for the Appellant (in R.F.A. No.37623 of 2022).

Barrister Hassan Nawaz Sheikh, Bakhtawar Bilal Soofi, Syed Shahzad Hussain Wattoo, Shamsha Ali, Muhammad Baqir Hussain and Ali Ashraf Mughal for Respondent No.1 (in Instant Appeal and R.F.A. No.37623 of 2022).

2024 C L C 2057

[Lahore]

Before Rasaal Hasan Syed, J

Mst. ALIA SEHR---Petitioner

Versus

MUSHTAQ AHMED and others---Respondents

Writ Petition No.61653 of 2020, heard on 10th October, 2022.

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

----S.25---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of minors---Welfare of minors---Mother, right of---Principle---Petitioner / mother of two minor daughters and one minor son was deprived of their custody and it was handed over to respondent / father, by Lower Appellate Court---Validity---Paramount consideration is welfare of minors when examining question of custody---Real mother of child is the pristine source of unconditional love and affection which nature has put into her heart for her children and for which there cannot be any other substitute---Daughters require company and association of their real mother for preparing their personalities to shoulder responsibilities in future---Welfare of minors plays pivotal role in determining controversy regarding question of custody---High Court set aside the order passed by Lower Appellate Court as the same was illegal and restored custody of minors to petitioner / mother---Constitutional petition was allowed, in circumstances.

Najibullah Khan and another v. Fazal Karim and 2 others 1997 SCMR 1085; Muhammad Imam-ud-Din v. Mst. Saira Bano and 2 others 2021 CLC 911; Najmuddin v. Mst. Mah-e-Talat and others 1984 CLC 657; Peggy Collin v. Muhammad Ishfaque Malik and 6 others PLD 2010 Lah. 48; Mir Bat Khan v. Mst. Sherin Bibi and others 2019 SCMR 520; Mst. Beena v. Raja Muhamad and others PLD 2020 SC 508 and Mehmood Akhtar v. District Judge, Attock and 2 others 2004 SCMR 1839 ref.

Rana Rashid Akram Khan for Petitioner.

Zulfiqar Ahmed Warraich for Respondent No.1.

2024 C L C 2084

[Lahore]

Before Shahid Bilal Hassan, J

CHANAN alias Channu and others---Petitioners

Versus

HASSAN RAZA and others---Respondents

Civil Revision No.3471 of 2016, decided on 2nd November, 2022.

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

----O.XX, R.13---Administration suit---Maintainability---In 'administrative suit' only admitted legal heirs of deceased are to be impleaded---If rights of a stranger, who is not a sharer, are involved, 'administrative suit' is not competent and such rights are to be determined through separate proceedings provided under law.

Mahbub Alam v. Razia Begum and others PLD 1949 Lah. 263 and Shakeel Aijaz v. Mst. Shakeela Naseem and 8 others 2015 MLD 1360 rel.

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

----O.XX, R.13---Administration suit---Different stances---Religious schools of thought, difference of---Effect---Before passing a determinative decree, rights of parties are to be determined, especially when different stances as to Religious school of thought of deceased were taken---In such view question of maintainability of suit has to be considered and decided at first instance before proceeding further in the case.

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

----S. 115 & O. XIV, R. 1 & O. XX, Rr.5 & 13---Administration suit---Non-framing of proper issues---Effect---Issue-wise findings---Religious schools of thought, difference of---Rights of stranger---Suit filed by petitioners / plaintiffs were preliminarily decreed in their favour but Lower Appellate Court dismissed the suit---Validity---Parties were to lead evidence keeping in mind burden of proof placed upon their shoulders while formulating issues---Issues framed by Trial Court did not cover real controversy and provisions of O. XIV, R.1, C.P.C. were defiled---Evidence was led after framing of issues---Stage of framing of issues is very important in trial of civil suit because at that stage real controversy between parties is summarized in shape of issues and area of conflict is narrowed down and determination is made regarding where parties differ and then parties are required to lead evidence on such issues---Importance of framing correct issues can be seen from the fact that parties are required to prove issues and not pleadings as provided by O.XVIII, R. 2, C.P.C.---Court is bound to give decision on each issue framed as required by O. XX, R.5, C.P.C.---Courts while framing issues should pay special attention to O. XIV, C.P.C. and give in depth consideration to pleadings etc.---If proper issues are not framed, then entire further process becomes meaningless and is a wastage of time, energy and may further delay final decision of suit---Trial Court did not ponder upon pleadings of parties while framing issues and could not sum up the real controversy into issues thus, further proceedings were of no use---High Court set aside judgments and decrees passed by both the Courts below and the matter was remanded to Trial Court---High Court directed Trial Court to frame issues, by considering pleadings of parties, especially with regards to maintainability of suit, which would be decided at first instance and then to decide the suit afresh---Revision was allowed accordingly.

Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others PLD 1962 SC 291; Muhammad Yousaf and others v. Haji Murad Muhammad and others PLD 2003 SC 184 and Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384 rel.

Syed Kaleem Ahmad Khurshid for Petitioners.

Sheikh Naveed Shehryar and Uneza Siddiqui for Respondents Nos.1, 2 and 11.

Mian Kashif Abbas and Zahir Abbas for Respondents Nos.3 to 9.

Malik Naveed Akram and Usman Azam Gondal for Respondents Nos.11, 12 and 13.

Basharat Ali Gill, Additional Advocate General Punjab for Respondent No.14.

2024 C L C 2099

[Lahore]

Before Shahid Jamil Khan, J

SAKHI MUHAMMAD (Deceased) through L.RS.---Petitioner

Versus

Mst. MARIDAN MAI and others---Respondents

Civil Revision No.4290 of 2016, decided on 18th October, 2023.

Civil Procedure Code (V of 1908)---

----O.XXIII, R.3---Arbitration Act (X of 1940), S. 21---Matter referred for arbitration during a pending suit, without obtaining an order---Scope---Suit was dismissed as withdrawn---Thereafter, the arbitrators rendered their decision in shape of award---Petitioners moved an application under Ss. 14 & 17 of the Act, 1940 for pronouncement of the judgment according to the award---On objections by the respondents, the application was dismissed by the Civil Court, declaring the arbitration agreement and consequent award as illegal for not obtaining an order for reference under S. 21 of the Act, 1940---Judgment passed by the Civil Court was upheld in appeal---Validity---Record showed that there was no application under S. 21, but the matter in the suit was referred and decided in arbitration through the award---Both the Courts, exercising jurisdiction under the Act, 1940, declared the arbitration agreement and consequential award as nullity in the eyes of law, ignoring the important fact that the suit, having been withdrawn thereafter, was not pending---Essentially the arbitration, in question, was no more during pendency of suit---However, if the suit was withdrawn after the arbitration agreement during pending suit, the question of staying the proceedings in the suit would not arise---Such arbitration agreement, with due deference, was not an unlawful agreement and consequent award would be treated under Chapter II as Arbitration without intervention of Court---Hence, the application under Ss. 14 & 17 of the Act, 1940, for judgment in terms of award could not be dismissed, simply because an order of reference under S. 21 was not obtained before entering into an arbitration agreement---If the award and arbitration proceedings were in accordance with the provisions of the Act, 1940 and there was no suit pending; the award could be filed in the Civil Court, as defined under S. 2(c) of the Act, 1940, and judgment could be pronounced in conformity with such award under S. 17---Both the impugned orders were set-aside by allowing the revision and the matter was remanded to the Civil Court for deciding the same afresh, in circumstances.

Farmers' Equity Private Limited (FEP) Multan through Chief Executive and 3 others v Mehboob Alam 2013 CLC 434 rel.

Ch. Haroon-ur-Rasheed Gujjar for Petitioners.

Muhammad Faisal Rana and Usman Haider Toor for Respondent No.1.

2024 C L C 2113

[Lahore]

Before Anwaar Hussain, J

MUHAMMAD FAISAL LABAR----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Inter Provincial Coordination, Government of Pakistan, Islamabad and 3 others----Respondents

Writ Petition No.80447 of 2023, heard on 15th December, 2023.

Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----R.108-O---Constitution of Pakistan, Art. 199---Constitutional petition---Quo warranto, writ of---Suspension of license---Powers of Regulators---Scope---Petitioner assailed appointment of respondent as Election Commissioner for holding and conducting election of Chairman of Pakistan Cricket Board---Plea raised by petitioner was that the respondent was a practicing advocate who did not get his license suspended---Validity---Respondent was required to get his license suspended within a period of one month from date of appointment and failure whereof could entail misconduct, if any---Petition was premature as period of one month had not elapsed---Proceedings on account of misconduct was the power of Bar Council concerned in terms of provisions of Legal Practitioners and Bar Councils Act, 1973---High Court was not empowered to take cognizance of such misconduct---It was the Bar Council concerned that had been armed with the power to entertain and determine cases of misconduct---Constitutional jurisdiction could not be exercised in a manner which amounted to usurpation and transgression into jurisdiction of the Regulators (i.e., Bar Council concerned)---It was the Bar Council concerned which has to first determine as to whether respondent was required to get his license to practice law suspended or not, keeping in view the nature and duration of assignment accepted by him as Election Commissioner of PCB---High Court declined to interfere in the appointment of respondent---Constitutional petition was dismissed, in circumstances.

Shazib Masud, along with Jawad Jamil Malik and Muhammad Asad Buttar for Petitioner.

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

Malik Muhammad Aslam, Manager Litigation, PCB for Respondent No.3.

Muhammad Abid Hussain Saqi for Respondent No.4.

2024 C L C 2129

[Lahore]

Before Shahid Bilal Hassan, J

MUHAMMAD AWAIS----Petitioner

Versus

ZAHIDA PARVEEN----Respondent

Civil Revision No.44034 of 2019, decided on 5th October, 2023.

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

----S.7---Nikahnama---Compensation in lieu of divorce---Legality---Petitioner/husband agreed to give 08 tolas gold ornaments and also pay Rs.500,000/- to respondent / wife as compensation in lieu of divorce as per column Nos.17 & 19 of Nikahnama---Respondent/wife instituted a suit for recovery---Courts below decreed the suit---Petitioner took a plea that he did not enter into nuptial tie with his free will, rather his thumb impression was obtained by force---Validity---Petitioner could not lead evidence as to obtaining of his thumb impression on the Nikahnama by force and undue influence by the respondent and the same even did not appeal to a prudent mind---Nikahnama was per se admissible in evidence and entries of the same had not been challenged by the petitioner before any forum---Entries of the Nikahnama had been proved by the respondent by producing oral as well as documentary evidence and petitioner could not lead evidence in rebuttal as his right to produce evidence was closed---High Court concluded that respondent had rightly been held entitled by the courts below to recover 8-tola gold ornaments from the petitioner as agreed by him at the time of Nikah with the respondent---High Court observed that in the Holy Quran in Surah Al-Baqra and Surah Talaq the delegation of right of divorce has been described in detail and S.7(1) of the Muslim Family Laws Ordinance, 1961, deals with the matter of Talaq---Husband has an absolute right to divorce his wife and in this respect, no condition is described in Shariah as well as in the codified law---Courts below had failed to adjudge the case on the point of compensation of Rs.500,000/- in lieu of divorce as per settled principles and norms---High Court in exercise of its revisional jurisdiction partially allowed the civil revision and set aside the judgments and decrees of the courts below to the extent of awarding compensation in lieu of divorce. [pp. 2132, 2133] A, B, C & D

Muhammad Bashir Ali Siddiqui v. Muhammad Sarwar Jahan Begum 2008 SCMR 186; Mst. Zeenat Bibi v. Muhammad Hayat and 2 others 2012 CLC 837; Muhammad Asif v. Mst. Nazia Riasat and 2 others 2018 CLC 1844; Muhammad Sajjad v. ADJ and others PLJ 2021 Lahore. 485; Mujahid Kamran v. Mst. Saira Aziz and 2 others 2022 CLC 24; Mst. Nazir Begum v. Muhammad Ayyub and another 1993 SCMR 321; Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630; Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001 and Muhammad Khubaib v. Ghulam Mustafa (deceased) through LRs 2020 CLC 1039 rel.

Sardar Abdul Majeed Dogar for Petitioner.

Sukrat Mir Basit for Respondent.

2024 C L C 64

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar and Shahid Khan, JJ

The DEPUTY COMMISSIONER BAJAUR and others----Petitioners

Versus

Mst. MAHI SULTAN and another----Respondents

Writ Petition No.95-M of 2023, decided on 18th May, 2023.

(a) Khyber Pakhtunkhwa Provincial Buildings (Management, Control and Allotment) Act (II of 2018)---

----Ss.7(5) & 11---Constitution of Pakistan, Art. 199---Allotment of Government accommodation---Removal of encroachments and eviction of unauthorized occupant---Scope---Allotted quarter was cancelled from the name of the respondent---Being aggrieved, she filed a declaratory suit with permanent and mandatory injunction against the Deputy Commissioner---Interim injunction was issued in favour of the respondent---Validity---Record was suggestive of the fact that suit was filed on 24.12.2022 whereas the allotment in favour of respondent/plaintiff was cancelled by the Deputy Commissioner vide order dated 13.12.2022 and as such, the date on which the suit was filed, the respondent/plaintiff was not the legal allottee of the disputed quarter---Impugned order dated 13.01.2023 was passed on the application of the respondent/plaintiff, whereby she had sought restoration of possession of the quarter in question on the plea that there was an interim injunction order in her favour---For grant of an injunction either perpetual or temporary and for that matter mandatory, the co-existence of three essential ingredients was sine qua non---Respondent/ plaintiff must place before the Court a prima facie case pertaining to her legal rights, character/status---When the allotment had been cancelled earlier to the institution of the suit then the respondent/ plaintiff even on the date of filing of the suit had no prima facie case in her favour rather it required recording of evidence, if at all, to be resolved, in favour of the respondent/plaintiff and in absence of one of the ingredient i.e., prima facie case, the other ingredients i.e., balance of convenience and irreparable loss lost its significance---Petition was allowed by setting aside the impugned order, in circumstance.

Mian Hakim Ullah and 2 others v. Additional District Judge/ Tribunal, Nowshera and 4 others 1993 SCMR 907 and Puri Terminal Ltd. v. Government of Pakistan through Secretary, Ministry of Communications and Railways, Islamabad and 2 others 2004 SCMR 1092 rel.

(b) Khyber Pakhtunkhwa Provincial Buildings (Management, Control and Allotment) Act (II of 2018)---

----Ss.7(5) & 11---Civil Procedure Code (V of 1908), Ss. 94(e) & 151---Ante status quo, issuance of---Allotment of Government Accommodation---Grant or issuance of ante status quo order/impugned order by the tribunal is very rare under the provisions of Section 94 (e) read with S. 151 of the Code of Civil Procedure, 1908 (C.P.C) for which, the existence of two essential ingredients is one of the requirements---When the order of confirmation of the ad-interim injunction was issued, admittedly, the respondent/ plaintiff was not in possession of the quarter, therefore, in no way, the respondent/plaintiff was entitled for ante status quo for lack of exceptional circumstances for the purpose of grant of extra-ordinary relief in favour of the respondent/plaintiff---Undoubtedly, the cancellation of allotment had not been disputed by the respondent/plaintiff either through appeal or through petition before the High Court and for that matter through her suit before the Tribunal, for which, an appropriate remedy had already been provided in the statute for an aggrieved person and the respondent/plaintiff might have approach the appropriate forum for redressal of her grievance---Thus, the jurisdiction exercised by the Tribunal in the matter was not legally justified and the impugned order for grant of ante status quo was not in consonance with the provision of S. 94 of C.P.C.---Hence, the impugned orders and filing of the suit before the Tribunal could not be sustainable---Petition was allowed by setting aside the impugned order, in circumstance.

Raja Al Shan v. Messrs Essem Hotel Limited and others 2007 SCMR 741 rel.

(c) Constitution of Pakistan---

----Art. 199---Writ petition---Extraordinary jurisdiction---Scope---Jurisdiction cannot be extended or inferred on a forum even with permission, no objection or acquiescence of a party.

Khawaja Salah-ud-Din, A.A.G. for Petitioners.

Muhammad Waqas and Haya Khan for Respondent No.1.

2024 C L C 109

[Peshawar]

Before Ijaz Anwar and Wiqar Ahmad, JJ

Haji NIAZ BADSHAH and others----Petitioners

Versus

Haji MIR AKBAR and others----Respondents

W.P. No.1430-P of 2013, decided on 4th May, 2023.

Constitution of Pakistan---

----Arts. 199 & 247 (since omitted)---Constitutional petition---Maintainability---Past and closed transaction---Decision by FATA Tribunal---Petitioners assailed order passed by FATA Tribunal dismissing revision petition filed against orders of Assistant Political Agent and Commissioner FCR---Validity---Dispute between the parties was duly adjudicated upon and decided finally while dismissing revision petition on 20-09-2012---At the relevant time there was no further remedy provided under the law---In terms of Art.247 of the Constitution, Constitutional petition questioning those orders was not maintainable as jurisdiction of High Court was barred under the Constitution---Merely because after 25th Constitutional Amendment, Art. 247 of the Constitution was omitted cannot entrust High Court with the jurisdiction pertaining to the matters which were past and closed transactions and decided finally in erstwhile Federally Administered Tribal Area hierarchy before 25th Constitutional Amendment---At the relevant time when constitutional petition was filed, Art. 247(7) of the Constitution was very much in the field and jurisdiction of High Court was barred pertaining to matters exclusively dealt with by Federally Administered Tribal Area hierarchy and had attained finality---After exhausting remedies available then, High Court had no jurisdiction in terms of Art. 247(7) of the Constitution---High Court declined to interfere in the order passed by FATA Tribunal---Constitutional petition was dismissed in circumstances.

Mst. Rohaifa through her sons and another v. Federation of Pakistan through Secretary, Ministry of Defense and 2 others PLD 2014 SC 174; Qaum Bangash and others v Qaum Turi and others 1991 SCMR 2400; Shaukat Khan v. Assistant political Agent, Landi Kotal, Khyber Agency and others PLD 2002 SC 526; Abdul Rahim and others v. Home Secretary, Government of West Pakistan and another PLD 1974 SC 109; Malik Taj Muhammad and another v. Bibi Jano and 25 others 1992 SCMR 1431; Muhammad Siddiq and others v. Government of Pakistan and others 1981 SCMR 1022; Manzoor Elahi v. Federation of Pakistan and others PLD 1975 SC 66; Additional Chief Secretary (FATA) and others v. Piayo Noor 2014 SCMR 17 and Hidayat Ullah v. Mohammad Younas and others PLD 2020 SC 362 ref.

Abdul Hafeez for Petitioners.

Arshad Jamal Qureshi and Clerk of Barrister Sarwar Muzafar Shah for Respondents.

2024 C L C 181

[Peshawar (D.I. Khan Bench)]

Before Muhammad Faheem Wali, J

Syed IQBAL HUSSAIN SHAH----Petitioner

Versus

Mst. KALSOOM BIBI through Legal Heirs and others----Respondents

Civil Revision No.54-D of 2020 and C.M. No.59-D of 2020, decided on 23rd February, 2023.

Specific Relief Act (I of 1877)---

----Ss. 42, 39 & 54---Suit for declaration, cancellation of document and permanent injunction---Parda Nasheen / illiterate lady, rights of---Transaction relating to such women---Requirements---Principle of caution---Scope---Beneficiary, responsibility of---Mutation was recorded by virtue of which all sisters sold out their shares to the their brother---Plaintiff (lady/sister)sought cancellation of mutation to the extent of transfer of her share on the ground that neither she sold the same nor did she appear before any Revenue Official nor impressed her thumb-impression in said regard---In the first round of litigation, the matter was remanded to the Appellate Court for fresh decision of appeal having been filed by the defendant / brother, which appeal was dismissed---Validity---Evidence was silent with regard to knowledge of the respondent about nature of transaction and consequences thereof or whether she had any independent advice particularly when she was married woman---Her husband was, admittedly, not present at the time of execution of the mutation-in-question---Payment of sale-consideration was not proved as there were contradictions in the evidence adduced by the petitioner and that of his witness whom he (petitioner) asserted to have handed over the amount for payment to the respondent---Another witness presented by the petitioner only referred to the presence of four sisters out of total five, hence the presence and actual representation of respondent could not be established through evidence---There was also contradiction regarding presence of and payment to the respondent, in statements of Halqa Patwari and Ahle-Commission appointed for recording statements of Parda Nasheen ladies---Even two witnesses of the petitioner /defendant unanimously admitted that the petitioner used to pay share of crops to the respondent till institution of the suit---Said defects cast doubt on the transactions attributed to the respondent / plaintiff---In our male dominated society where the female legal heirs have been consistently deprived of their 'sharai' shares in inheritance , the principle of caution in protecting the legitimate rights of the illiterate Parda observing lady must be applied vigorously and rigidly---Beneficiaryof any transaction involving Parda Nasheen and illiterate woman had to prove that it was executed with free consent and will of the lady , she was aware of the meaning, scope and implications of the document that she was executing; she was made to understand the implications and consequences of the same and had independent /objective advice either of a lawyer or a male member of her immediate family available to her---Record revealed that in the proceedings before the Appellate Court , fingerprint expert submitted his report wherein he affirmed that thumb-impression on mutation-in-question did not match with admitted thumb-impression of the respondent---No illegality or infirmity had been noticed in the impugned decrees and judgments passed by both the Courts below---Revision filed by the petitioner (defendant/brother) was dismissed, in circumstances.

Ghulam Farid and another v. Sher Rehman through LRs 2016 SCMR 862; Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225 and Ghulam Muhammad v. Zohran Bibi and others 2021 SCMR 19 ref.

Rustam Khan Kundi for Petitioner.

Ahmad Ali and Miss Shumaila Awan for Respondents.

2024 C L C 256

[Peshawar]

Before Syed Arshad Ali, J

Mst. SHAMEEM BEGUM and others----Petitioners

Versus

Syed QAIM SHAH BUKHARI and others----Respondents

Civil Revision No.874-P of 2022, decided on 22nd March, 2023.

Civil Procedure Code (V of 1908)---

----Ss. 48, 115 & O.XXI---Decree, execution of---Limitation---Final judgment---Scope---Petitioner / judgment debtor was aggrieved of restoration of execution petition of respondent / decree holder by Lower Appellate Court, which was dismissed earlier---Validity---Mere fact that when a decree passed by Trial Court was being executed by Executing Court and during that period, Appellate Court had reversed judgment and decree of Trial Court and as a consequence thereof, execution was dismissed and when the decree of Trial Court was ultimately restored by Revisional Court or the apex Court, the first application so dismissed followed by the second application after the final judgment passed by the Superior Court would not be regarded as fresh application---Earlier application was never decided in accordance with manner and procedure provided under O. XXI, C.P.C., for satisfaction of decree through process of execution---Application submitted by respondent / decree holder on 23-07-2019 was not to be treated as a fresh application but was an application in continuation/revival of first application---Appeal was continuation of original proceedings before higher forum for the purpose of testing soundness of decision of lower court and for the purpose of execution, it was the final decree/order of the last court in the series, even if such decree etc. was of affirmation which had to be executed---First decree was passed by Trial Court on 26-01-2010 which was set aside by Lower Appellate Court but the same was affirmed by High Court on 26-11-2012 and on further appeal, Supreme Court had finally affirmed the same on 28-05-2018---For the purpose of execution, the period of limitation would start from the final judgment of Supreme Court as judgment of final Appellate Court---High Court declined to interfere in the order passed by Lower Appellate Court as execution filed by respondent /decree holder on 23-07-2019 was within time and not open to any exception---Revision was dismissed, in circumstances.

United Bank Limited v. Fateh Hayat Khan Tawan and others 2015 SCMR 1335; Amir Begum v. Mir Fateh Shah PLD 1968 Kar. 10; Shiva Shankar Das and others v. Mufti Syed Yusuf Hasan AIR 1934 All 481; Surendra Nath Dutta v. Mohini Mohan Chakravarty AIR 1954 Cal. 73; Pentapati Chinna Venkanna and others v. Pentapati Bengararaju and others 1964 AIR 1954; 1964 SCR (6) 251; Sahabzadi Meharunisa and another v. Mst. Ghulam Sughran PLD 2016 SC 358 and Muhammad Younas v. Pakistan Post through Divisional Superintendent, Sialkot 2021 CLC 126 ref.

Khalid Mahmood for Petitioners.

Syed Naeem Shah Bukhari for Respondents.

2024 C L C 333

[Peshawar (D.I. Khan Bench)]

Before Muhammad Faheem Wali, J

ABID SHERANI----Petitioner

Versus

TAHIR SHERANI through Legal Heirs and others----Respondents

Civil Revision No.36-D of 2016, decided on 21st June, 2022.

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

----Ss. 39 & 42---Suit for declaration and cancellation of mutation entries---Gift mutations---Proof---Plaintiff filed a declaratory suit seeking therein cancellation of gift mutations of land described in the head-note of plaint, executed in favour of respondent No. 1 by the father of the parties on the ground that said transactions were based on fraud and therefore, revenue record to that extent was liable for correction---Suit was dismissed by the Trial Court, while appeal was dismissed by the appellate Court---Validity---In this case, though the beneficiary was respondent No. 1, he was under the legal obligation to prove the execution of both the gift mutations dated 13.05.1978, but as the petitioner alleged fraud, therefore initial burden laid upon the petitioner to prove that how, when and who committed the fraud and under what mode and manner---Donor of the impugned gift mutations was a literate person and remained alive till the year 2003---Donor was a man of prudent mind and he, during his life time, did not raise objection over the alienation of suit property by respondent No.1 through the mutations during the period between 1999 to 2000 and even mortgage of some of the land in favour of two banks by the respondent No.1---Silence of father over sale and mortgage of property by the son (respondent No.1) amounted to recognition of the fact that father deliberately transferred the property in favour of his elder son and therefore, the petitioner being another son could not challenge the impugned mutations---If a transaction was not challenged by the father, then his son, after his death, would lack locus standi to challenge the same---Evident from the record that after attestation of impugned mutation dated 13.05.1978, the respondent No.1 transferred an area measuring 10 Kanals in favour of the petitioner through a mutation dated 13.05.1978---Petitioner thereafter had himself sold the said landed property through various mutations and out of these mutations, vide a mutation dated 27.03.1990 petitioner sold an area measuring 01 Kanal to the respondent No.1---Said documentary evidence not only portrayed the knowledge of petitioner about the suit transactions but also that he remained silent, and after the death of his father, he filed present suit on 29.03.2011---Said fact not only constituted estoppels and waiver on the part of petitioner but also exposed him before law of limitation---Thus, both courts below had rightly non-suited the petitioner---Revision petition was dismissed.

Bal Gangadhar Tilk and others v. Shrinivas Pandi and others AIR 1915 Privy Council 7; Messrs SAZCO (Pvt.) Ltd. v. Askari Commercial Bank Limited 2021 SCMR 558; Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330; Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167 and Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446 rel.

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

----Ss. 39 & 42---Limitation Act (IX of 1908), S. 3---Suit for declaration and cancellation of mutation entries---Limitation---Respondent/plaintiff challenging mutation entries of the years 1974 and 1978 through a suit filed in 2011, had to justify such delay---Plaintiff filed a declaratory suit seeking therein cancellation of gift mutation---In the present case, two aspects which constituted knowledge of petitioner were, first, the date of attestation of mutation in favour of petitioner on 13.05.1978, and second, the date of attestation of another mutation by petitioner in favour of respondent No.1 on 27.03.1990; whereas, the suit in hand was instituted before the Civil Court on 29.03.2011, and as such, the suit was badly and hopelessly time-barred---Thus, a stale claim under the law of limitation could not be enforced legally as the passage of time sets the law of limitation in operation and there could be no exception unless the relaxation was granted by the Limitation Act, 1908, by itself---Thus, both courts below had rightly non-suited the petitioner---Revision petition was dismissed, in circumstances.

Umer Baz Khan through L.Hrs 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 rel.

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

----Ss. 39 & 42---Suit for declaration and cancellation of mutation entries---Gift mutation, execution of---Proof---Plaintiff filed a declaratory suit seeking therein cancellation of gift mutations of land described in the head-note of plaint, executed in favour of respondent No. 1 by the father of the parties on the ground that said transactions were based on fraud, and therefore, revenue record to that extent was liable for correction---Petitioner, during his evidence, categorically admitted the execution of gift mutation---Plaintiff's witness admitted that father/deceased had given his property to respondent No.1---Likewise, petitioner in his cross examination affirmed that he was in the knowledge of gift mutations---Respondent No. 1 produced and examined the alive witnesses of the suit mutations, whereas, some of the witnesses were dead, whose testimony went in line with the claim of respondent No.1---In the attending circumstances, petitioner/plaintiff failed to prove his initial burden and his claim too was hit by the law of limitation, whereas, respondent/beneficiary produced all the alive witnesses who supported the suit mutations coupled with the fact that conduct of petitioner by itself went in line with the proof of execution of mutations in question---Thus, both courts below had rightly non-suited the petitioner---Revision petition was dismissed, in circumstances.

Ahmad Ali for Appellant.

Arif Raheem Ustarana for Respondent.

2024 C L C 363

[Peshawar (Bannu Bench)]

Before Muhammad Naeem Anwar, J

SHAFQAT ULLAH----Petitioner

Versus

Mst. ANJUMAN----Respondent

Writ Petition No.1251-B of 2020, decided on 24th January, 2022.

Dissolution of Muslim Marriage Act (VIII of 1939)---

----S.2(ii)---Dissolution of marriage due to non-payment of dower amount---Neglect by husband---Suit of the respondent for dissolution of marriage was decreed whereas the suit for the recovery of maintenance allowance was also decreed @ Rs. 10,000/- per month for the last 06 years preceding the institution of the suit---Constitutional petition was filed against the decree for dissolution of marriage whereas appeal was filed against the decree for maintenance allowance---Held, that as per record, it was not in dispute that the marriage was solemnized in the year 1998; it was also admitted that the petitioner was permanently residing in Japan, it was also not denied that off and on he came to Pakistan but in the entire period of 21 years till date he remained in Pakistan for four to five months by calculating his total stay in intervals in Pakistan---Though the petitioner in his written statement had alleged that he had paid maintenance allowance to his wife but neither his attorney nor the witnesses could prove the payment of maintenance---Record reflected that no allegation of disobedience or refusal on the part of respondent was alleged by the petitioner---In such circumstances when a woman/girl remained in Nikah of a person for 21 years and in that period he attended her only for months keeping aside the maintenance for his other obligations i.e. performance of marital duties which on the other hand was the right of respondent from which she was deprived---In Islam, there were duties of husband toward his wife i.e. to pay maintenance, to pay dower, to provide accommodation and physical needs---Caring for fulfillment of marital obligation was also the duty of husband so that, wife might not commit a sin by eyeing other men in order to quench her thirst---Thus, the respondent was rightly held entitled for maintenance and the quantum of maintenance was also rightly determined---In the instant, the parties were in Nikah since 1998 and for the last 19 years the only period with which they lived together might not be more than a few months---Petitioner had himself enjoyed the life of foreign country like Japan and the respondent remained waiting for her husband for sensible and good relation with him to live in love with him---No maintenance whatsoever was ever provided by the petitioner---Precondition of payment of maintenance allowance had already been completed preceding the institution of the suit, therefore, it was a valid ground for respondent to seek her dissolution on that ground---Constitutional petition and appeal was dismissed accordingly.

Muhammad Hanif Khan v. Mst. Umar Dara and 3 others

PLD 2021 Pesh. 184 and Sher Zaman v. Mst. Mah Zari 2018 YLR 128 ref.

Muhammad Nawaz v. Mst. Khurshid Begum PLD 1972 SC 302; Ghulam Habib v. Zubaida Khatoon 1992 CLC 1926; Bushra Qassim v. Abdul Rasbeed 1993 CLC 2063; Mst.Anar Mamana v. Misal Gul PLD 2005 Pesh. 194; Farkhanda Mumtaz v. Muhammad Sharif PLD 2006 Pesh. 96; Mst. Farah Naz v. Judge Family Court, Sahiwal PLD 2006 SC 457; Rasheed Ahmad v. Mst. Shamshad Begum and 03 others 2007 CLC 656; Mst Zaibun v. Mehrban PLD 2004 SC AJK 25; Rashid Ahmad Khan v. Additional District Judge, Layyah and 02 others 2011 MLD 1012 and Sher Zaman v. Mst. Mah Zari 2018 YLR 128 rel.

Sardar Naeem Khan for Petitioner.

Hafiz Muhammad Hanif for Respondents.

2024 C L C 454

[Peshawar (Abbottabad Bench)]

Before Fazal Subhan, J

LAND ACQUISITION COLLECTOR and others----Appellants

Versus

SHAH YOUM KHAN----Respondent

R.F.A. No.171-A of 2019, decided on 30th January, 2023.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 23---Land acquisition---Dispute over quantum of compensation---Determination of compensation on one-year average sale basis---Scope---Reference filed by the objector/respondent was accepted and value of compensation amount of acquired land was enhanced with 15% compulsory acquisition charges and 6% interest from the date of taking over the possession of the land---Validity---In the present case, there was sufficient material on record which supported the contentions of the respondent that the acquired land was situated right at one side of the Highway and there were buildings like Floor Mill, Social Welfare Complex and Petrol Pump with Service Station and thus had much better future prospects and therefore, mere determination of compensation on one-year average was not a desirable yardstick for such determination---Referee Court, while enhancing the compensation through impugned judgment had relied upon valuation table issued by the Deputy Commissioner, which was also a factor to be legally considered for assessment and determination of fair compensation, keeping in view the locations of the land that it was situated right on the edge of highway, with many other commercial buildings in the vicinity---Nature of the acquired land was commercial and therefore as per valuation table, the price fixed by the Deputy Commissioner for commercial land was Rs.345,000/- per Marla and therefore, the enhancement of compensation by the Referee Court was within the mandate of law---Appeal was dismissed accordingly.

Nisar Ahmad Khan and others v. Collector Land Acquisition PLD 2002 SC 25; Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512; Land Acquisition Collector, G.S.C, N.T.D.C., (WAPDA), Lahore and another v. Mst. Surraya Mehmood Jan 2015 SCMR 28 and Province of Punjab through Land Acquisition Collector and another v. Begum Aziza 2014 SCMR 75 rel.

Sajid ur Rehman, A.A.G. for Appellants.

Muhammad Ilyas Khan for Respondent.

2024 C L C 493

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar and Shahid Khan, JJ

MUHAMMAD YASIN and 4 others----Petitioners

Versus

LOCAL GOVERNMENT through Secretary Local Government Khyber Pakhtunkhwa at Peshawar and 15 others----Respondents

Writ Petition No.666-M of 2022, decided on 2nd June 2023.

Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act (V of 1977)---

----Ss.3, 11, 12 & 13---Specific Relief Act (I of 1877), S.42---Suit for declaration---Public property, dispute over---Title or ownership, question of---Entries in the revenue record---Scope---Jurisdiction of the Tribunal constituted under Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 ('the Tribunal')---Scope---Plaintiffs were served with the eviction notices by the defendants (Provincial/District Government)---Plaintiffs, claiming themselves owners-in-possession of suit-property on the basis that their predecessor had purchased the same, filed before the Tribunal a suit for declaration which was dismissed---Said judgment had been assailed by the petitioners/ plaintiffs before the High Court---Contention of the petitioners / plaintiffs was that during the settlement the Revenue Officials had incorrectly entered suit-property in favour of the Provincial Government as Ghair Mumkin thoroughfare---Validity---Petitioners/ plaintiffs, during the trial before the Tribunal, produced the concerned Patwari who placed on record an extract from Jamabandi of relevant revenue estate for the year 1977-78 in which entries were, inter alia, shown as ownership-in-possession of the provincial government (status) being Ghair Mumkin thoroughfare---Said entries of revenue were based upon the first ever settlement of the concerned district, thus, from the very inception the suit-property was recorded in favour of respondents regarding which the petitioners/ plaintiffs had invoked jurisdiction of the Tribunal---Presumption of truth was attached with the documents (entries of Jamabandi, colourful copy of masavi and attested copy of aks-as-masavi), though the same rebuttable---Right, character and status of a person pertaining to a property could be determined (declared) in consonance with the provisions of the S.42 of the Specific Relief Act, 1877 ('the Act, 1877') when the same was denied or intended to be denied, whereas, no such declaration could be granted under provisions of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 ('the Act, 1977'), except that the Tribunal was vested with the powers to declare that any property was not a public property---Petitioners / plaintiffs could challenge the entries-in-question before the Civil Court of competent jurisdiction for proper determination and deliberation through recording of evidence and/or production of documents---Impugned judgment having been rightly passed by the Tribunal, constitutional petition was dismissed, in circumstances.

Mian Hakim Ullah and 02 others v. Additional District Judge/Tribunal Nowshera and 04 others 1993 SCMR 907 and Muhammad Farid and others v. Municipal Committee PLD 1999 SC 41 ref.

Mian Jan v. Mian Pir Jan and others 2015 SCMR 298 and Qemat Baha and another v. Government of Khyber Pakhtunkhwa through Secretary, Revenue Department and 03 others 2013 YLR 2403 distinguished.

Abdul Halim Khan for Petitioners.

Khwaja Salah-ud-Din, A.A.G. for Official Respondents.

Nemo for Private Respondents.

2024 C L C 518

[Peshawar]

Before Musarrat Hilali, CJ and Wiqar Ahmed, J

MAQBOOL KHAN and others----Petitioners

Versus

ASSISTANT COMMISSIONER, LOWER KURRAM, SADDA and others----Respondents

Writ Petition No.3587-P of 2022, decided on 16th May, 2023.

(a) Khyber Pakhtunkhwa Alternate Dispute Resolution Act (XLVIII of 2020)---

----S. 3---Referring authority or Saliseen---Exercise of powers under Khyber Pakhtunkhwa Alternate Dispute Resolution Act, 2020 ('the ADR Act, 2020')---Conditions---Order under S. 3 of the ADR Act, 2020 should be regulated and for said purpose the exercise of powers shall only be made in the following conditions and subject to the following limitations, (i) An order may only be issued when a Referring Authority is entrusted with such capacity by express consent of parties in writing, same is the situation of Saliseen, who may issue such an order after the matter is being referred to them with express consent of all the affected parties; (ii) Such order may only be passed when there is apprehension that a civil dispute is likely to result into aggression or breach of peace; (iii) Such an order cannot be given beyond scope of maintaining status quo and (iv) Such order should be time bound in nature and should be subject to final decision in the matter.

(b) Khyber Pakhtunkhwa Alternate Dispute Resolution Act (XLVIII of 2020)---

----S. 3---Referring Authority---Powers under Khyber Pakhtunkhwa Alternate Dispute Resolution Act, 2020 ('the ADR Act, 2020'), exercise of---Scope---Consent of the party, requirement of---Petitioners (inhabitants of the house-in-dispute) invoked constitutional jurisdiction of the High Court against the order passed under the provisions of Khyber Pakhtunkhwa Alternate Dispute Resolution Act, 2020, rendered by the concerned Assistant Commissioner (respondent), who directed Local Police/Officials (respondents) for dispossessing them (petitioners) from house-in-dispute and possession of the same be retained by local Police---Validity---Record revealed that on the touchstone of conditions required for the powers to be exercised under the provisions of the Khyber Pakhtunkhwa Alternate Dispute Resolution Act, 2020, the impugned order was not justified on a number of scores--- First of all, the required consent of petitioners, (whereunder respondents should have been authorized) could not be found in the case---Although it was asserted by the respondents that petitioner had earlier given his consent for private members Jirga but when matter had subsequently been taken up by respondent/Assistant Commissioner and consent of petitioners had been solicited, they had not given such consent but had asked for some time to consult the issue with other co-tribesmen---In such a situation the Assistant Commissioner (respondent) could not show that petitioners had given their consent at the time of issuance of impugned order--- Any earlier consent stately acquired from petitioners could not be deemed sufficient for authorizing respondent/Assistant Commissioner for all times to make any injunctive order in respect of disputed premises---Impugned order was also not for maintaining status quo but for altering status quo---It had been directed through impugned order that possession of the house should be taken from its inhabitants and retained by local police---An order of such nature could never be deemed authorized under S.3(5) or any other provision of the ADR Act, 2020 or other laws---Order also did not indicate how had the urgency erupted in a matter which had earlier been referred for decision of Saliseen and what particular apprehension of breach of peace was there under which even order for maintaining status quo could be issued---Impugned order had simply been issued on direction of a private member Jirga and even no unanimous decision of Jirga was there in field---On all scores the impugned order was not found justifiable, which required interference of High Court---Constitutional petition was allowed, in circumstances.

Abdul Hafeez for Petitioners.

Muhammad Moazzam Butt and Junaid Zaman, A.A.G. for Respondents.

2024 C L C 624

[Peshawar (Mingora Bench)]

Before Dr. Khurshid Iqbal, J

MUHAMMAD RAZIQ SHAH and others----Petitioners

Versus

DAWOOD SHAH----Respondent

Civil Revision No.58-M with C.M. No.272 of 2018(N), decided on 14th March, 2023.

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

----S. 42---Suit for declaration, perpetual injunction and possession of the suit-property---Agreement to sell---Proof---Claim of the petitioners (plaintiffs/ vendees) was that respondent/vendor having absconded, for being involved in a woman's abduction case, sold the suit-property through his son and son-in-law---Validity---Burden was on thepetitioners to prove sale but they failed to prove as to exactly when and where the respondent agreed to sell his land to them ---Petitioners could not furnish evidence as to when the respondent was nominated in abduction case and who the alleged abducted woman was---There were contractions in the evidence produced by the petitioners regarding alleged payment of partial sale consideration; through whom sale was agreed upon; and name of the witnesses of the agreement---Even the name of the son of the respondent was not disclosed who allegedly received partial sale consideration---It did not stand to reason that instead of his own son, son-in-law of the respondent was much worried about the sale of his land for the purpose of compromise---It was unbelievable that the son-in-law or even the son of the respondent ( alleged vendor) managed to sell the land without having been authorized by the respondent to do so---Appellate Court had rightly reversed the judgment and decree passed by the Trial Court which did not warrant interference by the High Court in its revisional jurisdiction---Revision filed by the plaintiffs was dismissed, in circumstances.

(b) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----Ss. 39 & 41---Specific Relief Act (I of 1877), Ss. 42, 12 & 54---Suit for declaration, perpetual injunction and possession of the suit-property---Agreement to sell---Entry of the vendee as possessor in Khasra Girdawri---Scope and effect---Contention of the petitioners(plaintiffs/vendees) was that they had been recorded in possession in Khasra Girdawri---Held, that an entry of possession in Khasra Girdawri could not be read as evidence of the title of the petitioners /plaintiffs, as against said entry, the respondent was recorded as owner of the suit-property in the record-of-rights---Record revealed that, on the application of the respondent, demarcation was conducted in which the petitioners were found to have encroached his (respondent's) land---Respondent had examined concerned Girdawer as one of his witnesses also---Whenever there was a conflict between the entries in Khasra Girdawri and the record of-rights, the latter would prevail---Appellate Court had rightly reversed the judgment and decree passed in favour of petitioner/plaintiffs by the Trial Court, which did not warrant interference by the High Court in its revisional jurisdiction---Revision filed by the plaintiffs was dismissed, in circumstances.

Mst. Fakhrunnisa v. Mohibullah Khan PLD 1984 Pesh. 94; Malik Sher v. Rab Nawaz and 2 others 1993 SCMR 2035 and Ghulam Muhammad v. Ellahi Bux PLD 2002 Lah. 48 ref.

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

----Ss. 53 & 54-A---Specific Relief Act (I of 1877), Ss. 42, 12 & 54---Suit for declaration, perpetual injunction and possession of the suit-property---Agreement to sell---Valid sale transaction---Vendee being possessor---Scope and effect---Four essential elements of valid sale transaction under S. 54 of Transfer of Property Act, 1882 (i.e. valid sale agreement, parties to the sale agreement, sale-consideration fixed and paid, and subject-matter of the sale transaction) are to be proved by the vendee ;and in case the vendee have been put in possession, the same is protected under S. 53-A of Transfer of Property Act, 1882---Appellate Court had rightly reversed the judgment and decree passed in favour of plaintiffs/vendees by the Trial Court which did not warrant interference by the High Court in its revisional jurisdiction---Revision filed by the plaintiffs was dismissed, in circumstances.

Muhammad Alam and others v. Qalam Badshah and others 2012 YLR 521 and Muhammad Yousaf v. Munawar Hussain and 5 others 2000 SCMR 204 ref.

Shams-ul-Hadi for Petitioners.

Naeem-ud-Din for Respondent.

Date of hearing: 14th March, 2023.

2024 C L C 707

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

RAHIM KHAN and others----Petitioners

Versus

NASIR KHAN and others----Respondents

C.R. No.03-P of 2010 with C.M. No.232-M of 2019, decided on 15th November, 2022.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Suit for pre-emption---Scope---For getting a favourable decree in a pre-emption case, a pre-emptor has to establish the performance of all the three talbs i.e. Talb-i-Muwathibat, Talb-i-Ishhad and Talb-i-Khusumat.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Suit for pre-emption---Talb-i-Ishhad---Proof---Section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987, mandates that the notice of Talb-i-Ishhad must be attested by two truthful witnesses and thus in order to prove the same a pre-emptor has to produce them in Court.

(c) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Suit for pre-emption---Talb-i-Ishhad---Non-production of witnesses---Effect---Plaintiff had produced only one out of two witnesses of the notice of Talb-i-Ishhad---Such failure was a grave and blatant violation of S. 13, of Khyber Pakhtunkhwa Pre-emption Act, 1987, therefore, such notice of Talb-i-Ishhad would not be deemed to have been proved by the plaintiff.

(d) Khyber Pakhtunkhwa Preemption Act (X of 1987)---

----S. 13---Suit for pre-emption---Talb-i-Ishhad---Scope---Pre-emptor is bound to produce both the attesting witnesses of notice of Talb-i-Ishhad.

Bilal Ahmad and another v. Abdul Hameed 2020 SCMR 445; Mst. Nusrat Bibi v. Nazir Akhtar 2015 SCMR 808 and Dawa Khan through L.Rs and others v. Muhammad Tayyab 2013 SCMR 1113 rel.

(e) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Suit for pre-emption---Talb-i-Ishhad---Proof---Notice of Talb-i-Ishhad was not exhibited in evidence by the plaintiff on the pretext that since the original notice of Talb-i-Ishhad was sent to the vendees, therefore, the same was not exhibited under the impression that a photo state copy of the same could not be exhibited---When sending of notice of Talb-i-Ishhad to vendee was the requirement of S.13(3) and notice of Talb-i-Ishhad was required to be proved then a photostat copy of the same could be produced and exhibited.

(f) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Suit for pre-emption---Talb-i-Ishhad---Burden of proof---Scope---Affirmative onus to prove the receipt of notice of Talb-i-Ishhad is on the pre-emptor---Any admission on the part of the vendee is immaterial and even thereafter it is obligatory for the pre-emptor to prove the sending of notice of Talb-i-Ishhad by leading affirmative evidence including production of the postman, who actually delivered or served the notices upon the vendee.

Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Iffat Begum and another v. Robina Shaheen 2014 CLC 1425; Ashiq Muhammad Khan v. Additional District Judge Muzaffargarh and 4 others 2013 CLC 1033 and Wazir Muhammad v. Haroon-ur-Rashid 2014 CLC 706 rel.

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

----Art. 77---Rules as to notice to produce---Scope---Article 77 of the Qanun-e-Shahadat, 1984, stipulates that a person shall not be allowed to produce secondary evidence unless he gave a notice to the person or his advocate in whose possession such document is, however, giving such notice shall not be required where the document to be proved is itself a notice.

Abdul Wadood for Petitioners.

Rashid Ali Khan for Respondents.

Date of hearing: 15th November, 2022.

2024 C L C 734

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

GHULAM BAHADAR----Petitioner

Versus

AKBAR BACHA and others----Respondents

C.M. No.12(2), 21-M of 2018 in Writ Petition No.214-M of 2015, decided on 19th October, 2022.

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

----S.12(2)---Bar to further suit---Pre-conditions---For maintaining petition under S. 12(2), C.P.C., and for setting aside an order / judgment / decree, aggrieved person has to establish elements of fraud, misrepresentation, or illegality committed in order / judgment / decree in question.

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

-----S.12(2)----Word “fraud”----Scope----Active concealment and suppression of facts in words and deeds is an essential ingredient of fraud----Fraud cannot be inferred by mere assertion, rather it must be proved through strong, independent, clear and convincing evidence----Burden is heavier in the cases in which a long period has passed since passing of degree or judgment under which valuable rights accrue in favour of opposite party.

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

-----S. 12 (2)----Judgment, setting aside of----Plea of fraud----Principal and attorney relationship----Compromise by attorney in absence of principal----Applicant was aggrieved of disposal of constitutional petition filed by respondents on the basis of compromise effected by attorney in his absence----Validity----Fraud vitiates solemn proceedings and time does not sanctify action of fraud and misrepresentation----No inference of fraud can be drawn merely on the basis of oral assertion in absence of any proof of allegation of fraud----Applicant took plea of fraud and was under heavy burden to substantiate allegation of fraud through clear and convincing evidence----Applicant was not able to discharge his onus to the satisfaction of law----Evidence recorded in civil suit and evidence brought on record in proceedings under S.12(2), C.P.C., did not suggest any concealment or suppression of material facts by respondents----Factum of fraud or misrepresentation or lack of jurisdiction were sine qua non for maintaining and allowing application under S. 12(2), C.P.C.---Mere bald submission of applicant that he was not present personally on the date fixed could not be entertained as against the law that principal was bound for the acts done by his validly appointed attorney----High Court in exercise of powers under S.12(2), C.P.C., declined to set aside order / judgment passed on the basis of compromise as the same was not result of any fraud or misrepresentation committed, nor the same was result of any jurisdictional defect or any other material irregularity----Application was dismissed, in circumstances.

Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050; Saifuddin v. Zainuddin and another 1992 MLD 631; Swat Textile Mills Limited, Haripur through Managing Director and 4 others v. Mst. Nabeela and others PLD 2021 Pesh. 146 and Imam Din and 4 others v. Bashir Ahmed and others PLD 2005 SC 418 ref.

(d) Power of attorney---

----Scope and proof---Power of attorney must be strictly construed and proved---Object and scope of power of attorney must be seen in the light of its recital to ascertain manner of exercise of authority in relation to terms and conditions specified in the instrument----Rule of construction of such document is that special powers contained therein followed by general words are to be construed as limited to what is necessary for the proper exercise of special powers----Where authority is given to do a particular act followed by general words, such authority is deemed to be restricted to what is necessary for purpose of doing the particular act----General words do not confer general power but are limited for the purpose for which the authority is given and are construed for enlarging special powers necessary for the purpose and must be construed so as to include the purpose necessary for effective execution.

Unair Ali Khan and others v. Faiz Rasool and others PLD 2013 SC 190; Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74 and Malik Tahir Ayub through Special Attorney v. Additional District Judge, Rawalpindi and 2 others PLD 7015 Lah. 57 rel.

Siraj Ali for Petitioner.

Majeed Ullah for Respondents.

Date of hearing: 19th October, 2022.

2024 C L C 890

[Peshawar]

Before S M Attique Shah, J

Haji AKBAR and others----Petitioners

Versus

JEHANGIR and others----Respondents

Civil Revision No.287-P of 2013 with C.M. Nos.287-P, 321 and 361-P of 2022, decided on 21st September, 2023.

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

----S. 18 & Art. 120---Specific Relief Act (I of 1877), Ss. 42, 12 & 54---Suit for declaration, possession and permanent injunction---Property owned by a minor---Sale-mutation regarding such property, challenging of---Limitation---Claim of the plaintiffs was that sale mutation -in-question qua their predecessor-in-interest was illegal for having been attested at the time when he (the predecessor-in-interest) was minor---Suit was concurrently dismissed---Validity---A person who is aggrieved from any transaction, which is made during his minority can challenge it within three years after getting the age of majority---However , in the present case, predecessor-in-interest of the petitioners/plaintiffs died way back in the year 1988 but he did not challenge the sale mutation-in-question in his life time before any competent Court of Law, despite having full knowledge of the same, therefore, his legal heirs were precluded to challenge its validity after his death as it is settled that the legal heirs cannot challenge the validity of a mutation , which was not questioned by their predecessor-in-interest in his / her life time---More so, the inheritance mutation of the said predecessor-in-interest was attested in favour of his legal heirs (petitioners/plaintiffs) way back in the year 1991, but even after the said date, the petitioners remained silent for long 18 years in filing civil suit, challenging therein the sale-mutation having been attested in the year 1929, which was hopelessly time-barred---No illegality or infirmity had been noticed in the impugned judgments passed by both the Courts below while non-suiting the petitioners/plaintiffs---Revision filed by the plaintiffs was dismissed, in circumstances.

Intelligence Bureau Employees Cooperative Housing Society through Secretary v. Shabbir Hussain and others 2022 SCMR 877 and Saadat Khan and others v. Shahid-ur-Rehman and others PLD 2023 SC 362 ref.

(b) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967---

----S. 52---Transfer of Property Act (IV of 1882), S.41---Specific Relief Act (I of 1877), Ss. 42, 12 & 54---Suit for declaration, possession and permanent injunction---Revenue entries, challenging of---Scope---Claim of the plaintiffs was that sale mutation -in-question qua their predecessor-in-interest was illegal for having been attested at the time when he (the predecessor-in-interest) was minor---Suit was concurrently dismissed---Validity---An attested mutation cannot be considered as a document of title, but simultaneously, when an attested mutation is properly incorporated in the revenue record in subsequent Jamabandies for a long period of time , then the presumption of truth is attached thereto unless and until rebutted through cogent, reliable and confidence inspiring evidence---Record also showed that the mutation-in-question was attested by the vendors in the year 1929, which was still intact and reflected in the revenue record---Therefore, presumption of truth was attached thereto in terms of S.52 of the Khyber Pakhtunkhwa Land Revenue Act, 1967 ---Section 41 of the Transfer of Property Act, 1882 was attracted to the case of the vendees and as such, they were entitled to the equitable protection available to them under S. 41 of the Transfer of Property Act, 1882---No illegality , material irregularity, mis-reading or non-reading of evidence warranting interference in the concurrent findings passed by both the Courts below was found in non-suiting the petitioners---Revision was dismissed, in circumstances.

Muhammad Shamitn v. Mst. Nisar Fatima 2010 SCMR 18 and Zakia Begum and others v. Nasir-ul-Islam Khan and others 2022 SCMR 2130 ref.

Liaqat Ali Khan for Petitioners.

Inayat-ur-Rehman for Respondents.

2024 C L C 1071

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali and Wiqar Ahmad, JJ

Malik MUHAMMAD TAHIR KHAN----Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Local Government and Rural Development Department, Peshawar and 5 others----Respondents

Writ Petition No.135 of 2014, decided on 14th July, 2020.

Provincial Motor Vehicles Ordinance (XIX of 1965)---

----S. 80---Motor Vehicle Rules, 1969, R. 253---Bus Stand Fee / Tax---D-Class Stand---Principle of quid pro quo---Applicability---Petitioner was plying stage carriers and had established his own D-Class Bus Stand---Grievance of petitioner was that contractor of General Bus Stand could not demand General Bus Stand Tax for his buses / vehicles on the basis of Bus Stand Bye Laws, 1999---Validity---Bye laws do not deal with establishment of other classes of Bus Stands more particularly Class-D Stand in terms of R. 253 of Motor Vehicle Rules, 1969, which envisages for establishment of a company stand issued to private person, for which a separate fee is chargeable by authority established under Motor Vehicle Rules, 1969---Application and restriction imposed by Byelaws of 1999 could not be extended to establishment of D-Class Bus Stand---Adda Fee, which District Administration was collecting, was in strict sense a "fee" and not a "tax"---Such levy was in its character object specific i.e. providing parking facilities to vehicles in its General Bus Stand by District Government whereas petitioner did not enjoy such parking facilities of District Government---Element of quid pro quo was absent in the case of petitioner---High Court declared demand of General Bus Stand fee / tax as illegal---Constitutional petition was allowed, in circumstances.

Messrs Lucky Cement Factory Limited and others v. The Government of N-W.F.P and others 2013 SCMR 1511; Muhammad Farooq v. Municipal Committee and others 2015 YLR 1128; Israr Ahmad Khan v. Secretary Local Government and 04 others 2020 YLR 197; Malik Muhammad Tahir Khan v. Government of Khyber Pakhtunkhwa through Secretary Local Government and Rural Development Department, Peshawar and 05 others (W.P 236-M/2013) and Messrs Khurshid Soap and Chemical Industries (Pvt.) Ltd. through Sheikh Muhammad Ilyas, KPK v. Federation of Pakistan through Ministry of Petroleum and Natural Resources and others (Civil Appeals Nos.1113 to 1155 of 2017 etc) rel.

Sher Muhammad Khan for Petitioner.

Wilayat Ali Khan, A.A.G for Official Respondents.

Faisal Khan Respondent/TMA.

2024 C L C 1575

[Peshawar (Abbottabad Bench)]

Before Kamran Hayat Miankhel, J

HONDA ATLAS CARS PAKISTAN LIMITED and another----Appellants

Versus

SALEEM AKHTAR FAROOQ and others----Respondents

F.A.O. No.09-A of 2021, decided on 1st November, 2022.

Khyber Pakhtunkhwa Consumers Protection Act (VI of 1997)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 91---Complaint before the Consumer Court---Genuineness of document---Presumption of correctness---Document produced as evidence admitted without any objection---Effect---Oral evidence---Scope---Claim / stance of the claimant (buyer of vehicle) before the Consumer Court, was that an extra amount was recoverable from Automobile Manufacturing Company (company) which was illegally charged to him at the time of delivery of vehicle , which amount he paid under protest---Consumer Court allowed the complaint against which judgment debtor / company preferred appeal---Validity---Record revealed that, in support of his contention, respondent/ complainant himself appeared as a witness and reiterated the stance taken by him in his complaint and only produced the concerned Manager but no other document was produced by him to substantiate his plea that the respondent could not charge him for any excess price of the vehicle at the time of its delivery---Conversely, the appellants produced one witness, who exhibited three documents i.e. authority letter, relationship contract, delivery order and one relating to Federal Excise Duty---Said witness further stated in his statement that duly exhibited relationship contract contained the signature of respondent /complainant---Said relationship contract reflected that the price prevailing at the time of delivery would be charged---Presumption of correctness was attached to the relationship contract which was duly exhibited without any objection from other side---When a document is produced and exhibited without objection, it always carries sanctity and strong evidence is required to cast an aspersion on its genuineness---Such document is binding on the parties to the lis---Under Art. 91 of the Qanun-e-Shahadat, 1984, once a document is produced as evidence and admitted in evidence without any objection, it amounts that the same has been duly proved--- While there were contradictions regarding place of agreement and handing over pay-orders etc., in oral evidence but the documentary evidence prevailed over the oral evidence---Oral evidence does not exclude documentary evidence---Document can be rebutted by a document only---Oral evidence of respondent / complainant could not rebut the documentary evidence of appellants---Respondent /complainant while examining one of the witnesses of appellants put conceding questions, thus proving that agreement took place at company (appellant's) showroom---Said conceding questions and their answers clearly depicted that the signatures on the relationship agreement were that of respondent / complainant---High Court set-aside the impugned judgment passed by the Consumer Court---Consequently, the complaint filed by the respondent stood dismissed---Appeal was allowed, in circumstances.

Sher Muhammad v. Muhammad Khaild 2004 SCMR 826 ref.

Usman Nasir Awan for Appellants.

Asad Tanveer Qureshi for Respondent No.1.

2024 C L C 1588

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar, J

Haji MAQBOOL AHMAD----Petitioner

Versus

NADAR KHAN and others----Respondents

Writ Petition No.996-M of 2021, decided on 30th November, 2023.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.V, R.17---Constitution of Pakistan, Art. 199---Constitutional petition---Substituted service---Principle---Petitioner / plaintiff filed suit for specific performance of agreement to sell and Trial Court proceeded ex-parte against respondent / defendant---Lower Appellate Court in exercise of revisional jurisdiction set aside the order on the ground that substituted service was not properly issued---Validity---Implementation of substituted service requires adherence to strict procedural requirements---Substituted service serves as an essential tool in ensuring effective communication within the legal system, as it enables progress of legal proceedings even when personal service is not possible ensuring that parties are duly informed and given an opportunity to respond---By utilizing substituted service, legal system strives to uphold principles of fairness, transparency and access to justice---Before resorting to manner of service provided under O.V, R.17, C.P.C., the Court should observe requirements regarding personal service of defendant, failing which rest of the exercise in such respect should not be considered as lawful---High Court declined to interfere in order passed by Lower Appellate Court in exercise of revisional jurisdiction as it had rightly invoked provision of O.IX, C.P.C., for providing opportunity of hearing to respondent / defendant---No prejudice was caused to petitioner / plaintiff as civil revision was pending adjudication before Lower Appellate Court---Writ of certiorari could only be issued when fora below had flagrantly disregarded law or acted against provisions of law---Constitutional petition was dismissed, in circumstances.

Syed Muhammad Anwar Advocate v. Sheikh Abdul Haq 1985 SCMR 1228; Malik Muhammad Nazir v. Mian Abdul Raheem and another PLD 1968 Lah. 792; Fazal Karim v. Hussain Din 2019 MLD 1082; Mst. Jameela Bibi (deceased) through LRs v. Mst. Fatima Bibi (deceased) through LRs 2023 SCMR 485; Hazrat Bilal through legal heirs and others v. Mst. Spownai and others PLD 2021 SC 700; Meera Shafi v. Ali Zafar PLD 2021 SC 211; Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others 2016 SCMR 1; H. M. Saya & Co. Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65 and Imtiaz Ahmed v. Ghulam Ali and others PLD 1963 SC 382 ref.

PLD 2012 SC 292; PLD 2011 SC 671; 2011 SCMR 1429; 2010 SCMR 1933; 2010 SCMR 970; 2010 SCMR 755; 2009 SCMR 808; 2008 SCMR 529; 2007 SCMR 330 and 1993 SCMR 122 rel.

Syed Fazal Rahman for Petitioner.

Yasir Umair Khan for Respondent No.1.

2024 C L C 1705

[Peshawar (Bannu Bench)]

Before Dr. Khurshid Iqbal, J

ATTA-UR-REHMAN----Petitioner

Versus

Mst. GHULAM BIBI and others----Respondents

Civil Revision No.104-B of 2018, decided on 13th November, 2023.

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

----S.25---Specific Relief Act (I of 1877), Ss. 39, 42 & 54---Release/Relinquishment deed, authenticity of---Fraud and misrepresentation by brothers to deprive their sister (Pardanashin lady) from her share in legacy---Private settlement of dispute qua partition of inherited land in a Jirga---Participation of brother and husband of respondent (sister) without any permission or authority of respondent---Effect---Execution of deed by husband of respondent without her authorization for relinquishment of her share in the remaining legacy---Effect---Inheritance is a compulsory right---No one has right to refuse from being an inheritor of his/her immediate ancestor---Due to cultural practices women and in some situations vulnerable poor amongst familial relations, are compelled on one pretext or another to relinquish their due Shari shares, or a portion thereof, when inheritance of a propositus opens for distribution---In the present case alleged Takharuj/relinquishment was not reduced into writing and even in its oral form it had not been proved---Petitioner failed to produce even a shred of evidence that proper partition had taken place amongst all the legal heirs and that the respondent had demonstrably exercised her choice to relinquish her remaining share in the legacy---Revision petition was dismissed and the judgment of the Appellate Court was upheld accordingly.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Mst. Parveen (deceased) through LRs. v. Muhammad Pervaiz and others 2022 SCMR 64 rel.

(b) Islamic Law---

----Inheritance---Takharuj, concept of---Meanings---Literal meaning of takharuj is to exclude; to abort---Given the obligatory nature of the right of inheritance which carves out no room for refusal, inheritors may distribute their respective shares in an amicable manner---In the process, an inheritor may agree to take a specific portion or kind of the inherited property and give a part or other kind to other inheritors---Having stepped down, such an inheritor stands excluded---This is called takharuj---In this perspective, the exclusion amounts to compromise (sulh) and takharuj becomes tasaluh.---In Islamic Law of inheritance, takharuj could be understood as tasaluh (sulh or compromise on something)---Takharuj as tasaluh comes into play in a situation where one of the legal heirs of a propositus voluntarily agrees on something specific from the pool of the inherited property and does not press for his/her whole share---Takharuj assumes the status of a gift in two ways---Firstly, the property from which one inheritor will stand excluded will be that of a gift of his/her remaining property to other inheritors---Takhuruj has to take place at the time of distribution by means of partition of the entire legacy, so that each inheritor is able to get possession of his/her due share first---Gift of an undivided property (musha'a) is not valid as delivery of possession is one of its essential elements.

Farooq Sabir Marwat for Petitioner.

Aslam Khan Michen Khel for Respondents.

2024 C L C 1731

[Peshawar]

Before Ijaz Anwar and Arshad Ali, JJ

WAHID KHAN and another----Petitioners

Versus

SECRETARY MINES AND MINERALS, KHYBER PAKHTUNKHWA, PESHAWAR and others----Respondents

Writ Petition No.4412-P of 2022, decided on 19th December, 2022.

Khyber Pakhtunkhwa Mines and Minerals Act (XXXVI of 2017)---

----S.78(3)---Minor mineral blocks---Granting of lease---Reserve price---Object, purpose and scope---Petitioner contractor was aggrieved of grant of lease by Khyber Pakhtunkhwa Mines and Minerals Appellate Tribunal to respondent contractor despite offering less than reserve price---Validity---Purpose of fixation of reserve price in proclamation is that the right and interest of government is safeguarded and bid has to be started from the figures mentioned in reserve price---Whatever authorities had represented to general public while putting minor minerals for auction was to be followed in letter and spirit---In case at some later stage Authorities find that reserve price is exorbitant and not reasonable then area of minor minerals should be re-auctioned, with reduced reserve price or even through open auction without mentioning reserve price if law / rules permit---High Court set aside the order passed by Khyber Pakhtunkhwa Mines and Minerals Appellate Tribunal, as the same was without jurisdiction and was passed without adhering to 'reserve price' mentioned in advertisement--Khyber Pakhtunkhwa Mines and Minerals Appellate Tribunal deviated from rules / law by allowing appeal filed by respondent contractor---High Court restored the order passed by Licensing Authority for re-auction of lease in question---Constitutional petition was allowed accordingly.

Business Dictionary.com http://Dictionary.com and Messrs Lanvin Traders, Karachi Presiding Officer, Banking Court No.2, Karachi and others 2013 SCMR 1419 ref.

Asim Khan and Farman Ullah for Petitioner.

Rab Nawaz Khan, A.A.G., Muhammad Asghar Khan Kundi and Bahadar Khan Marwat for Respondents along with Aftab Khan, AD (Lit.) Mines and Minerals Department.

2024 C L C 1772

[Peshawar (Mingora Bench)]

Before Shahid Khan, J

HAZRAT BILAL and another----Petitioners

Versus

Mst. ASMAT BIBI and 4 others----Respondents

Writ Petition No.675-M of 2023, decided on 6th June, 2023.

Family Courts Act (XXXV of 1964)---

----S.5, Sched.---Recovery of maintenance of minors---Inability of parents to maintain their children---Responsibility of financially sound grandfather to maintain his grandchildren in his life time---Scope---Petitioners belonged to a well-off family, as undisputedly fixation of 30 Tolas gold to bride/respondent as her dower spoke volume about sound financial status of the petitioners---Grandfather was admittedly a landlord of the area having sufficient resources and under the law and Sharia, if a father is unable to maintain his minor children, then the grandfather has to maintain his grandchildren---Para 370 of Principles of Muhammadan Law provides that if father and mother are poor or infirm, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances as the minors cannot be left remediless in the lifetime of a grandfather having reasonable financial resources---Constitution petition was dismissed accordingly.

Muhammad Anwar Khan v. Sabia Khanant PLD 2010 Lah. 119 and Abdullah v. Jwaria Aslam and 2 others 2004 YLR 616 rel.

Said Jamil Shah for Petitioners.

Nemo for Respondents (case being in motion)

2024 C L C 1793

[Peshawar (Bannu Bench)]

Before Fazal Subhan, J

INAYAT ULLAH and others----Appellants

Versus

Mst. SAFIA BEGUM and others----Respondents

R.F.A. No.01-B of 2022, decided on 21st June, 2023.

Khyber Pakhtunkhwa Enforcement of Women's Property Rights Act (XLIV of 2019)---

----Ss.4, 6, 7 & 8---Enforcement of womans property rights by way of partition---Complaint before Ombudsman---Decision in favour of respondent (woman)---Pendency of suit before the Civil Court on the same subject matter---Effect---Resolution of factual/disputed question by the office of Ombudsman---Scope---Under S.7(1) of the Act the Ombudsperson on gaining knowledge on its own motion or on a complaint filed by any person, may also initiate action regarding ownership or possession of property of a women, even if, proceedings are pending in the court in respect of that property---Section 6 requires an Ombudsperson to make reference of the complaint, in case, the matter requires in-depth inquiry, investigation or detailed recording of evidence or it relates to intricate matters, in which case the Ombudsperson shall forward a reference along with all the reports/ material collected and submit the same to the Civil Court of competent jurisdiction---In the present matter not only intricate question of law and facts were involved, but it also required thorough investigation and recording of pro and contra evidence from both sides, but the Ombudsperson while ignoring Ss. 4, 6 & 7 of the Act, had passed the impugned order, which in no way was sustainable---High Court accepted the appeal and remanded the matter to the Ombudsperson to decide the same in accordance with law.

Abid Anwar Khattak for Appellants.

Muhammad Waqar Alam for Respondents.

2024 C L C 1808

[Peshawar (D.I. Khan Bench)]

Before Muhammad Faheem Wali, J

MUHAMMAD AZEEM KHAN and others---Petitioners

Versus

MUHAMMAD IMRAN KHAN and others---Respondents

Civil Revision No.38-D of 2015, decided on 2nd October, 2023.

Specific Relief Act (I of 1877)---

----Ss. 39 & 42---Suit for declaration and cancellation of gift mutation---Fraud---Estoppel---Execution of gift mutation of entire estate by grandfather of the petitioners in favour of one son excluding his others sons---Locus standi of petitioners to file suit when their fathers, being the deprived sons, did not challenge the transaction in their lifetime and petitioners being legal heirs of the deprived sons also remained silent for a long time---Contention of the petitioners was that their grandfather had died before execution of the gift deed, therefore, their fathers were deprived fraudulently of their legacy---Validity---Fathers/predecessors of the petitioners were aware of the gift mutation in favour of their fourth brother but they did not challenge the same despite the fact that they remained alive for many years after the attestation of mutation---If a transaction was not challenged by the father in his lifetime despite having its knowledge, then his sons, after his death, will lack locus standi to challenge the same on behalf of their deprived father---Petitioners had not denied the knowledge of their fathers about the gift mutation---After the death of donee (benefited son) his legacy was transferred to his sons, which fact was also in the knowledge of the petitioners, but they remained silent for 34 years and filed the suit after a considerable long time, which not only constituted estoppel and waiver on the part of the petitioners, but also exposed them before law of limitation---A stale claim under the law of limitation cannot be enforced legally as the passage of time sets the law of limitation in operation and there can be no exception unless the relaxation is granted by the Limitation Act, 1908, by itself---Petitioners had failed to establish through evidence that the grand predecessor died prior to execution of the gift mutation---Petitioners of the instant petition were proforma defendants before the Trial Court and they were placed and proceeded against ex parte and after passing of the judgment and decree by the Trial Court they joined proceeding at appellate stage but did not file any appeal or application for setting aside decree, which was ex parte to their extent, before the Trial Court, which fact also estopped them to challenge the decree of Trial Court---Civil Revisions were dismissed accordingly.

Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330; Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167; Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446 and Umer Baz Khan through L.hrs v. Syed Jehanzeb and others PLD 2013 SC 268 rel.

Muhammad Yousuf Khan for Petitioners.

Salimullah Khan Ranazai and Sheikh Iftikhar ul Haq for Respondents Nos.1 to 15.

Muhammad Khalid Chaudhry for Respondents Nos.16 to 20.

2024 C L C 1876

[Peshawar]

Before S M Attique Shah, J

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Workers and Communication Department, Peshawar and another---Appellants

Versus

MUHAMMAD FAYAZ---Respondent

R.F.A. No.276-P of 2022, decided on 1st June, 2023.

Arbitration Act (X of 1940)---

----Ss. 14, 30 & 39---Civil Procedure Code (V of 1908), S.96---Limitation Act (IX of 1908), First Sched., Art.158---Construction contract---Arbitration---Award---Arbitration petition for making the award as rule of the Court---Non-filing of objections by one of the appellants and belated objections toaward by the other appellant---Powers of Civil Court while making award rule of the Court---Scope---Contention of the appellants was that the matters arising out of the award passed by the arbitrator were judicial in nature and not ministerial and mere absence or delay of objections did not absolve the Court from its responsibility to scrutinize it on merits---Validity---Such contention of the appellants was misplaced because although it was held that the objections of one of the appellants were barred by time, yet, while deciding the matter, the Trial Court had fully discussed the material available on record and decided the case on merits---Findings of Trial Court were based on proper appreciation of the material available before it, which did not require any interference---Appellate Court has a very limited jurisdiction while adjudicating an appeal arising out of the Arbitration Act, 1940, as neither it can reappraise the evidence nor can set aside an award merely on the basis of alleged irregularity committed by the Trial Court---For interference with an award and findings of the lower court there must be a patent illegality, which should be apparent on the face of award or the arbitrators have committed misconduct while passing the award which indeed was not the case of the appellants---Appeal was dismissed accordingly.

Messrs Awan Industries v. Executive Engineer Lined Channel Division 1992 SCMR 65; Muhammad Tayab v. Akhtar Hussain 1995 SCMR 73 and Qutabuddin Khan v. Chief Mill Wala Dredging Co. 2014 SCMR 1268 ref.

National Highway Authority's case 2023 SCMR 1103 rel.

Javed Akhtar A.A.G. for Appellants.

Syed Shahid Shah for Respondent.

2024 C L C 1907

[Peshawar]

Before S M Attique Shah, J

MUHAMMAD SHOAIB and others---Petitioners

Versus

Mst. SALEHA and others---Respondents

Civil Revision No.222-P of 2019, decided on 17th January, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42 & 9---Suit for declaration and possession seeking correction of wrong entries in revenue record---Concurrent findings of both the courts below---Selling of property by the vendor without any title therein---Long silence of the vendee and their predecessor-in-interest as to wrong entries in the revenue record---Effect---Vendor cannot pass on to the vendee anything better than he himself holds, thus, it is the vendee, who is to apply maximum care before entering into a transaction of sale---Vendee's right/title being dependent upon the strength or weakness of the title of the seller, he is to sail, swim and sink with the seller---Despite having knowledge that the property in dispute was in the ownership of predecessor of other respondent, neither their predecessor nor the petitioners had ever challenged the said entries for a considerably long period, thus, their suit at a belated stage was hopelessly barred by time and it was rightly so held by both the Courts below---Revenue record reflected that predecessor of the other respondents had been recorded as owner of the suit property even prior to the year of sale deed in favour of predecessor of the petitioners, which entries remained intact till the alienation of property in question in favour of other respondents through subsequent sale deed, hence, the alienation was legal and, thus, protected under the law---Petitioners failed to point out any illegality or irregularity in the impugned findings of the Courts below, which could warrant interference by the High Court in its revisional jurisdiction, which was indeed very narrow and limited in its scope---Civil revision was dismissed, in circumstances.

Muhammad Shamim through Legal Heirs v. Mst Nisar Fatima through Legal Heirs and others 2010 SCMR 18 rel.

Ahmad Ali for Petitioners.

Muhammad Humayun Khan for Respondents.

2024 C L C 1922

[Peshawar]

Before Wiqar Ahmad, J

SARFARAZ KHAN and others---Petitioners

Versus

QURESH KHAN and others---Respondents

Civil Revision No.118-P of 2021, decided on 23rd November, 2023.

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

----Ss.42 & 54---Civil Procedure Code (V of 1908), S.11---Criminal Procedure Code (V of 1898), S.133---Suit for declaration with permanent injunction---Dispute regarding obstruction in thoroughfare on the joint land being used by co-owners---Whether easement of necessity applied---Report of Local Commission qua existence of thoroughfare and obstruction by some co-owners---Trial Court dismissed the suit---Appellate Court allowed the appeal preferred by the respondents---Contention of the petitioners was that suit could not be decreed by the Appellate Court on the basis of doctrine of easement, as the parties were co-owners inter se and since earlier an application under S.133, Cr.P.C., was dismissed, therefore, suit was barred by principle of constructive res judicata---Validity---Right of easement may be exercised or claimed in respect of land owned by other persons but it is equally correct that co-owners cannot restrain another co-owner from exercise of his right in the thoroughfare, which had admittedly been existing on part of the land of co-owners---Appellate Court was not required to have travelled to the extent of decreeing the suit on easement of necessity, rather respondent was having a right over the thoroughfare because of use of same thoroughfare as well as because of being co-owner---One co-owner cannot be allowed to block way of another co-owner in joint immovable property---Conclusion drawn by Appellate Court was correct except where it had pressed in service doctrine of easement, but said findings on evidence of the case would not change nature of the relief granted by Appellant Court---Complaint under S.133, Cr.P.C., carries totally different dimensions and considerations for its decision, which inter alia also includes existence of public nuisance, while a civil suit may be brought for enforcement of claimed rights---Civil suit can be filed for enforcement of private or individual rights while petition under S.133, Cr.P.C., cannot be filed for redressal of individual grievances, thus, order of the Magistrate in criminal proceedings cannot be termed to be creating any bar before the Civil Court while exercising civil jurisdiction---Civil revision was dismissed accordingly.

(b) Appeal---

----Inconsistency between findings of Trial Court and Appellate Court---Judgments and decrees of two courts below at variance---In such situation, judgment of Appellate Court requires more deference---Normally Revisional Court is supposed to rely on the judgment of the Appellate Court if a case of non-reading and misreading of evidence is not found therein.

Madan Gopal v. Maran Bepari PLD 1969 SC 617 rel.

Muhammad Amin Khattak Lachi for Petitioners.

Momin Shah for Respondents.

2024 C L C 1966

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar, J

RAHIM ULLAH and 5 others---Petitioners

Versus

Mst. YASMEEN BIBI and 4 others---Respondents

Writ Petition No.1143-M of 2019, decided on 30th May, 2024.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13(2)(ii)(a)---Ejectment of tenants---Sub-tenant, status of---Demised property was rented out to the tenants with condition of construction, who without permission of landladies further sublet the same to first subletees and the said subletees sublet the same to second subletees---Tenants admitted subletting owing to insufficient amount for construction---Contention of the subletees was that they spent huge amount on construction of premises, thus, they could not be evicted from the premises---Validity---Undisputedly, the second subletees had got no nexus with the ownership of the property and similarly they had never entered into any agreement with the landladies---It was also an admitted fact that the second subletees were in possession of the property being the licensee of first subletees, as such, both the subletees had no nexus or relationship with the landladies and both the subletees had been given the possession of the property by the tenants, thus, any amount spent by first subletees on construction of the building as alleged by them was a matter for settlement between the tenants and both the subletees---Sub-tenant had no independent right of his own and had to stand or fall, sail or sink with the tenants and had no right to claim tenancy or pay rent or file appeal against orders of ejectment, because sub-tenant, who had taken the possession or was put in possession without the consent of landlord, was unauthorized possessor of the property---High Court maintained the eviction order passed by both the courts below and dismissed the constitutional petition accordingly.

Haji Said Wahab Khan v. Amjad Ali and others 2005 SCMR 840; Messrs Noorani Travels Karachi v. Muhammad Hanif and others 2008 SCMR 1395; Muhammad Sulleman v. Abdul Sattar 2004 SCMR 415 and State Life Insurance Corporation of Pakistan v. Sami-Ur-Rehman and others 2018 SCMR 443 rel.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13(6)---Ejectment order---Subletting---Default in payment of rent----Non-compliance of order of Rent Tribunal for deposit of monthly rent---Contention of the tenants was that since they had transferred the possession to sub-tenants, therefore, they were liable to pay rent and likewise the plea of sub-tenants were that since they were not direct tenants of landladies, thus, they were also not liable to pay rent---Validity---Failure in payment of the monthly rent even for a single day if not explained with plausible justification amounts to deliberate default in payment of the rent and in such an eventuality, the tenant could not be allowed to remain in possession of the rented premises rather he shall be directed to hand over the vacant possession along with outstanding dues to landlord---First subletees were not direct tenants of the landladies but it was an admitted position that they had entered into rented premises without the consent and permission of the landladies and it was also admitted fact that they had transferred the possession to second subletees and that too without any permission by the landladies, thus, in such circumstances both the subletees could not resist the ejectment of the creation of their tenancy with the tenants, who were the direct tenants of the landladies---Thus, the plea of the first subletees was misconceived and it was their joint liability---Outstanding rent may be paid/deposited by anyone of them in favour of the landladies---Landladies were entitled for receipt of the entire outstanding rent w.e.f. institution of the ejectment application till handing over the vacant possession of the premises to them---Constitutional petition was dismissed accordingly.

Rukhsana Begum v. TNT Express Worldwide Pakistan (Pvt.) Ltd. 2005 SCMR 1398 and Khawaja Muhammad Mughees's case 2001 SCMR 2020 rel.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.4---Constitution of Pakistan, Art.199---Civil Procedure Code (V of 1908), O.XLI, R.22---Enhanced rent, determination of---Jurisdiction of High Court---Scope---Ejectment ordered by courts below concurrently---Claim of the landladies was for payment of rent at the enhanced rate---Validity---Order of the Rent Controller and that of the Appellate Court though had been passed in favour of landladies but without any increase and they had not assailed it before the Appellate Court either through direct appeal or cross objection in terms of O.XLI, R.22, C.P.C, thus, while sitting in writ jurisdiction such prayer of the landladies was not maintainable for determination of the enhanced rent---High Court turned down the claim of the landladies accordingly.

Petitioners Nos.1, 2 and 5 in person.

Fayaz Muhammad Qazi for Petitioners Nos.3 and 4.

Nemo for Petitioner No.6.

Hazrat Rahman and Qazi Farid Ahmad for Respondents Nos.1, 2 and 3.

2024 C L C 2038

[Peshawar (D.I. Khan Bench)]

Before Muhammad Faheem Wali, J

MAHTAB HUSSAIN---Appellant

Versus

MUHAMMAD ASLAM---Respondent

R.F.A. No.62-D of 2018, decided on 25th August, 2022.

Civil Procedure Code (V of 1908)---

----S.96, O.XXXVII, Rr.1, 2(2) & 3---Recovery suit on the basis of promissory notes---Non-fulfilment of condition precedent for grant of leave to defend despite availing numerous opportunities---Effect---Suit was initially decreed ex parte---Leave to appear and defend the suit was allowed in post-remand proceedings subject to furnishing security bonds with two sureties---Contention of the appellant was that he could not furnish the sureties bonds due to strike of revenue officers as he could not get Fard of the properties of the sureties and the leave once granted could not be withheld subsequently---Validity---Court has been given discretion in the matter of attaching condition or otherwise to the grant of leave to defend---Leave granting order in favour of appellant was not a full and final order rather it was conditional and its perpetuity was subject to fulfilment of condition i.e. deposit of security bond with two sureties, therefore, order granting leave to defend the suit could only be pressed into service when imposed condition was to be fulfilled by the defendant, otherwise, it would be deemed that no leave to defend had been granted---Failure of appellant in submission of security bond, a pre-condition for leave to defend, amounts to default in obtaining leave to defend the suit and same automatically pushed the case back to the domain of R. 2(2) of O.XXXVII, C.P.C. which, in case of default of defendant in obtaining leave to defend, enabled the court to pass a decree in favour of plaintiff---There was no restriction on the appellant to present the sureties and bond before the trial court to show his bona fide and had requested for adjournment for production of property documents of sureties, however, on each date of hearing the appellant sought simple adjournments which could not justify the contention of the appellant that due to strike of Patwaris, Fard of property could not be obtained so that the same might be annexed with the bond as a proof of financial reliability of sureties---Regular First Appeal was dismissed accordingly.

Haji Ali Khan & Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited, Abbottabad PLD 1995 SC 362; Col. (Retd.) Ashfaq Ahmad and others v. Sh. Muhammad Wasim 1999 SCMR 2832 and Murtaza Haseeb Textile Mills v. Sitara Chemical Industries 2004 SCMR 882 rel.

Rizwanullah Arain for Appellant.

Muhammad Mohsin Ali for Respondent.

2024 C L C 2070

[Peshawar (Mingora Bench)]

Before Shahid Khan, J

NASEER-UD-DIN through Legal Heirs---Petitioner

Versus

GHAIRAT KHAN and others---Respondents

Civil Revision No.778-P of 2010 with C.M. No.721 of 2019, decided on 26th June, 2023.

Specific Relief Act (I of 1877)---

----Ss. 42 & 55---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Suit for declaration and permanent injunction---Property deed---Proof---Two marginal witnesses of deed not produced---Effect---Plaintiff filed a suit for declaration and permanent injunction pleading that he was ancestral owner in possession of the suit property and the defendants had no right whatsoever to interfere in the same or claim their title over it---Defendants contested the suit by filing written statement---Trial Court dismissed the suit and appeal also failed---Validity---Record showed that plaintiff claimed that he was the ancestral owner in possession of the subject property comprising of Shamilat and in that regard, he relied upon two deeds---As such, he was duty bound to prove execution of those two documents through cogent, reliable and confidence inspiring evidence as under Art. 17 read with Art. 79 of the Qanun-e-Shahadat, 1984, whenever a document is reduced into writing, then in order to use it in evidence, the beneficiary has to produce at least two marginal witnesses---As the plaintiff, predecessor in title of the petitioners, had not been able to produce marginal witnesses of the two deeds, therefore, the same could not be termed as proved documents---So far as contention of predecessor in title of the petitioners that the subject property, being Shamilat, was part of his cultivable property was concerned, his own evidence did not support his contention as he, in his examination-in-chief, had taken a new plea by stating that the subject property was his ancestral property, which had been given to his father by his grandfather vide a deed and thereafter, it came to his share through partition vide partition deed---Such fact had never been asserted by predecessor in title of the petitioners in his plaint, therefore, no issue was framed in that regard---Plaintiff disclosed such fact for the first time while appearing in Court as witness, as such, under the law the statement made by him in the Court could not be considered at all---Plaintiff had to bring on record sufficient evidence to knock out the defendants as every civil case is to be decided on the principle of preponderance of evidence, which was lacking in the subject case---Though the documents relied upon by predecessor in title of the petitioners was of thirty years old but presumption as to its genuineness could not be drawn as the same had not been produced from proper custody rather produced by predecessor in title of the petitioner himself, despite being not proved, as he had also not produced its marginal witnesses---Trial Court coupled with the appellate Court had arrived at the just conclusion of the matter in issue, as such, the impugned concurrent findings of the Courts below did not need any interference---Revision petition was accordingly dismissed.

Islam-ud-Din through L.Rs and others v. Mst. Noor Jahan through L.Rs and others 2016 SCMR 986; Messrs Choudhary Brothers Ltd. Sialkot v. The Jaranwala Central Co-Operative Bank Ltd., Jaranwala and others 1968 SCMR 804; Pakistan v. Abdul Ghani PLD 1964 SC 68; 2017 CLC 1184; 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 and Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others 2002 SCMR 933 rel.

Asghar Ali for Petitioner.

Mohammad Riaz Mohammadzai for Respondents.

2024 C L C 2110

[Peshawar]

Before S M Attique Shah, J

NASEER AHMAD----Petitioner

Versus

Mst. SUMAIRA REHMAN----Respondent

C.R. No.161-P of 2022 with C.M. No.247 of 2022, decided on 28th June, 2022.

Family Courts Act (XXXV of 1964)---

----S.12---Enforcement of decree---Objection, raising of---False and frivolous litigation---Scope and effect---Wife filed a suit for recovery of dower (house) which was decreed in her favour and she moved for its execution ---Objection was raised , on issuing of attachment notice, by petitioner (other than husband/judgment-debtor) claiming ownership of house-in-question, which objection petition was dismissed---Objection petitioner challenged order passed by the Executing /Family Court , however, the impugned findings were maintained by the Appellate Court---Stance/objection of the petitioner was that the house-in-question was originally in the ownership of respondent (husband / defendant / judgment-debtor), which was purchased from him by the petitioner in the year 2006, however, the mutation attested was on 26.09.2013, whereas the attachment notice was issued after about two months of said mutation (on 19.11.2013), therefore, the said notice was illegal---Validity---Record showed that the marriage between respondents was solemnized on 14.04.2007---During the execution proceedings, it transpired that the house-in-question given to respondent / wife as dower by respondent/husband had no existence at all---Therefore, the Executing Court issued the order of attachment of the house-in-question as an alternative---But, in order to deprive respondent (wife / decree-holder) of the fruits of the decree passed in her favour, the petitioner in collusion with respondent / husband claimed the same in his ownership, which clearly showed that a deliberate attempt had been made by the petitioner and respondent / husband to deprive the respondent / wife from the benefits of the decree granted in her favour---Moreso, it was not appealable to a prudent mind that the house-in-question was purchased by the petitioner in the year 2005 but, despite that he did not transfer the same till the year 2013, which was indeed beyond comprehension---Besides, the alleged stance also could not be proved by the petitioner through cogent, reliable and confidence-inspiring evidence---Matter between the parties was finally decided by the High Court through its judgment date 11.09.2013, whereas the alleged mutation was shown attested in favour of the petitioner on 26.09.2013 after the decision of the Supreme Court, which certainly spoke volumes qua the conduct of the petitioner and respondent / husband---Another pronounced aspect of the case was that right from the date of institution of the suit of the respondent (wife / plaintiff) i.e. 19.01.2011 till the final decision of the case by the High Court on 11.09.2013, the address of the respondent (husband) had been mentioned as that of the house-in-question---So much so that respondent / husband on the affidavit in his constitutional petition had mentioned the same address, which further belied the stance of the petitioner regarding the purchase of the house-in-question in the year 2006---It was obvious from the record that when respondent/husband failed in all his efforts to deprive respondent/wife of her dower, then, he disappeared himself and the petitioner who was his brother-in-law came forward and filed instant frivolous objection petition to create further hurdles for respondent / wife in getting benefits of the decree passed in her favour way back in the year 2011---It is certainly high time to deal with false and frivolous litigation with an iron hand as on one hand it is dragging innocent persons into the courts and on another hand, it is wasting precious time of the Courts---Indeed, Courts of law are guardians of the rights and interests of the common man and are under the bounden duty and obligation to protect the same at any cost---Revision petition, filed by objection petitioner, was dismissed with costs to be paid to respondent (decree-holder).

Naveed Maqsood Sethi for Petitioner.

Misbah Ullah for Respondent.

2024 C L C 75

[Balochistan]

Before Gul Hassan Tareen, J

NAIMATULLAH and others----Petitioners

Versus

MIR JAMAL and others----Respondents

Civil Revision No.274 of 2015, decided on 1st December, 2022.

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

----O. XLI, R. 33---Cross objection or cross appeal against a finding of Trial Court---Scope---Party cannot be allowed to object before the Appellate Court or Revisional Court upon the findings on any issue of a subordinate Court, without filing cross objections.

Khairati and 4 others v. Aleem-ud-Din and another PLD 1973 SC 295 rel.

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

----Ss.39, 42 & 54---Suit for declaration, cancellation of mutation and contract, permanent injunction and correction of entry in revenue record---Sale agreement---Proof---Predecessor of respondents filed a suit for declaration, cancellation of mutation and contract, permanent injunction, correction of entries in revenue record against the petitioners with the averments that the predecessor of the petitioner was owner of suit property and she sold out her land to the respondents in exchange of a price of Rs.100,000/- vide contract dated 09.07.2002---After the death of said vendor, her elder son/petitioner executed a confirmation deed dated 06.01.2011 whereby, he on his behalf and while acting as attorney of the remaining petitioners Nos. 12 to 15 acknowledged the contract---Respondents made an application for entering mutation entry of the suit land in their names---Said application was contested by petitioners Nos. 1 to 10 by claiming that they were the owners of the suit land on the basis of mutation---Respondents were advised to approach a Civil Court---Thus, the respondents filed a suit and prayed relief regarding declaration of their purchase of the suit land, cancellation of mutation entries and instruments, correction of revenue record in their names and perpetual injunction---Trial Court dismissed the suit, however, on appeal by the respondents, the suit was decreed by the Appellate Court---Validity---Contract, relied by the respondents, was in respect of the suit land which was recorded in the name of the petitioners Nos. 1 to 10 in the revenue record---Petitioner No. 11 was the executant of the contract---Said petitioner along with petitioners Nos. 12 to 15 were proceeded against ex-prate and the respondents had sought cancellation of the mutations of the petitioners Nos. 1 to 10 on the basis of the said contract, therefore they should have proved execution of the contract through two marginal witnesses in accordance with Art. 79 of the Qanun-e-Shahadat, 1984---Respondents merely examined the scribe and one marginal (attesting) witness of the contract of sale---In such a case, the scribe could not be considered as marginal witness as he had not stated in his examination in chief that the parties executed (put signatures) on the contract of sale in his presence---Scribe merely recognized his handwriting and signature on the contract---Hence, the scribe had not qualified the test of an attesting witness---Sole marginal witness of the contract of sale had not stated in his examination in chief that the parties executed the contract in his presence---Another witness was scribe of the confirmation deed, but he had not stated that the same was executed by petitioner No. 11 before him---Same was the position of the marginal witness of that instrument---Respondents had failed to prove execution of the contract through two marginal (attesting) witnesses, therefore, the contract executed in continuance thereof was of no legal effect---Hence, the respondents had failed to prove execution of the contract, therefore, the Appellate Court had committed material illegality by decreeing the suit on the basis of unproved documents---Revision was allowed by setting aside the judgment and decree passed by the appellate Court while restoring the judgment and decree passed by the Trial Court.

Agha Cooperative Housing Society Limited v. Syed Akhtar Ali 1994 MLD 1747; Jan Muhammad v. Abdul Rehman PLD 1998 Qta 34 and Mst. Shamim Akhtar v. Province of Punjab through Collector/DOR 2019 YLR 870 ref.

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

----Arts. 117 & 120---Plaint---Onus to prove---Scope---Statutory obligation of plaintiff is to prove his own case on the basis of his own evidence---Weaknesses of the evidence of the plaintiff does not entitle respondents for out-right decretal of their suit.

Agha Cooperative Housing Society Limited v. Syed Akhtar Ali 1994 MLD 1747 ref.

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

----S.42---Transfer of Property Act (IV of 1882), S.54---Suit for declaration---Contract of sale---Since a contract of sale does not create any right and or an interest in immovable property, therefore, suit for declaration on the basis thereof is not maintainable under S.42, the Specific Relief Act. 1877.

Shah Muhammad v. Atta Muhammad 2005 SCMR 969 rel.

Taj Muhammad Mengal and Zahoor Ahmed Mengal for Petitioners.

Muhammad Zahid Muqeem Ansari for Respondents Nos.1 to 19.

Changaiz Dashti, State Counsel for Respondent No.20.

2024 C L C 135

[Balochistan (Sibi Bench)]

Before Gul Hassan Tareen, J

ALI MURAD PIRKANI and others----Petitioners

Versus

ABDUL MALIK and others----Respondents

Civil Revision Petition No.(S) 10 of 2021, decided on 27th March, 2023.

Balochistan Tenancy Ordinance (XXIV of 1978)---

----Ss. 41 & 64(3)---Civil Procedure Code (V of 1908), S.9 & O.VII, Rr.10 & 11---Specific Relief Act (I of 1877), Ss. 42, 8 & 54---Suit for declaration and permanent injunction, wrongful dispossession or ejectment---Jurisdiction of Civil Court---Whether barred---Plaintiffs/respondents filed a suit for declaration, possession and permanent injunction against the defendants alleging therein that their predecessor was tenant of the petitioners in suit land and was in possession thereof, who used to pay the share of crops to the petitioners; after his demise, the respondents, being his successors, came in possession of the suit land and were giving share of crops to the petitioners; and four years prior to the institution of the suit, the petitioners dispossessed them from the suit land without due course of law---Plaint was rejected by the trial Court by accepting the petition filed under O. VII, R. 11, C.P.C., on the ground that the Civil Court had no jurisdiction to try the suit---Appellate Court accepted the appeal and remanded the case to the Trial Court by holding that since the petitioners had denied the relationship of landlord and tenant, therefore, the Civil Court had jurisdiction to try the suit---Validity---Admittedly, the Revenue Court shall have exclusive jurisdiction to try a suit instituted by a tenant under S.41 for recovery of his possession under S.64(3), Second Group, clauses (c) and (f) of the Balochistan Tenancy Ordinance, 1978---Under S.9, C.P.C., a Civil Court shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance was either expressly or impliedly barred---In the present case, the cognizance of a suit instituted by a tenant for restoration of his possession was expressly barred by S.64(3) of the Ordinance---Appellate Court had illegally reached at the conclusion that since the petitioners had orally denied the relationship of landlord and tenant, as such, the Civil Court had jurisdiction to try the suit---Trial Court had, however, rejected the suit under O. VII, R. 11(c) and (d), C.P.C., on the ground of jurisdiction---Trial Court should have returned the suit under O.VII, R.10, C.P.C. read with S. 64(3) proviso (i) of the Ordinance, 1978 by endorsing upon the plaint, the particulars required by O. VII, R. 10, C.P.C., and returned the plaint for presentation to the Revenue Court---Civil revision was allowed by restoring the order of Trial Court with modification that the plaint shall be returned to the respondents for its presentation to the Revenue Court having jurisdiction for decision.

Shah Muhammad and others v. Malik Abdul Rauf and others 1998 SCMR 1363 ref.

Akbar Khan and another v. Mst. Jehan Bakhta and others 1991 MLD 1859; Noor Muhammad (deceased) through L.Rs and others v. Muhammad Ashraf and others PLD 2022 SC 248 and Shah Muhammad and others v. Malik Abdul Rauf and others 1998 SCMR 1363 rel.

Abdul Sattar Kakar for Petitioner.

Ahsan Rafiq Rana and Muhammad Aslam Jamali, Asstt. A.G. for Respondent No.12.

2024 C L C 167

[Balochistan]

Before Muhammad Hashim Khan Kakar and Shoukat Ali Rakhshani, JJ

Messrs FRIENDS COAL COMPANY through Director----Petitioner

Versus

The GOVERNMENT OF BALOCHISTAN, CIVIL SECRETARIAT through Secretary Mines and another----Respondents

Constitution Petition No.335 of 2023, decided on 15th June, 2023.

(a) Balochistan Mineral Rules, 2002---

----R. 46---Mining lease, cancellation of---Opportunity of hearing not given---Effect---Mining lease for exploration of coal for period of 20 years was granted to the petitioner but the same was cancelled just after six years by the respondent (Director General Mines and Minerals) vide notification and the respondent (Secretary Mines and Minerals) also dismissed appeal preferred by the petitioner---Validity---Impugned notification/order revealed that mining lease, having been granted to the petitioner, was cancelled on account of non-submission of lease deed, exploration scheme and demarcation certificate within time---However, the impugned notification/order did not reflect that before cancellation, any notice was issued to the petitioner or any order of satisfaction under Cl. (2) of R.46 of Balochistan Mineral Rules, 2002, ('the Rules, 2002') was drawn---Clause (2) of R. 46 of the Rules, 2002 manifested that the licensing Authority had to satisfy itself that the delay in execution was nether caused by the petitioner nor was due to the circumstances beyond the control of the petitioner, which inquiry did not seem to have taken place, in the present case, before cancellation of Mining License which (non-holding of inquiry) not only offended the said provision but the principle "Audi Alteram Partem" as well as the petitioner had not been provided with an opportunity of hearing by the respondent (DG Mines and Minerals) before cancellation of Mining License---Similarly the respondent (Secretary Mines and Minerals)being appellate Authority also did not consider said aspect of the matter and endorsed the notification of cancellation of Mining License, through a non-speaking order by dismissing the appeal , which had made the same illegal and perverse---Petitioner had made out a case for the High Court to intervene by invoking jurisdiction under Art. 199 of the Constitution---High Court set aside impugned notification/ order passed by the respondents declaring the same null and void without any legal effect and remitted the case to the respondent (DG Mines and Minerals) to afford opportunity of hearing to the parties at lis and decide the case on merits---Constitutional petition was partly allowed, in circumstances.

(b) Constitution of Pakistan---

----Art. 10-A---Balochistan Mineral Rules, 2002, R. 46---Mining lease, cancellation of---Opportunity of hearing not given---Effect---Mining lease for exploration of coal for period of 20 years was granted to the petitioner but the same was cancelled just after six years by the respondent (Director General Mines and Minerals) vide notification and the respondent (Secretary Mines and Minerals) also dismissed appeal preferred by the petitioner---Validity---Impugned notification passed by the respondent (DG Mines and Minerals) had been rendered in utter violation of Art. 10-A of the Constitution, which could not in any way be allowed to hold field---High Court set aside impugned notification/ order passed by the respondents declaring the same null and void without any legal effect and remitted the case to the respondent (DG Mines and Minerals) to afford opportunity of hearing to the parties at lis and decide the case on merits---Constitutional petition was partly allowed, in circumstances.

Abdul Musavir for Petitioner.

Shai Haq Baloch, A.A.G. for Respondents.

2024 C L C 195

[Balochistan]

Before Shaukat Ali Rakhshani, J

MUHAMMAD ALAM and another----Petitioners

Versus

ABDUL KAREEM and others----Respondents

Civil Revision No.350 of 2020, decided on 18th August, 2022.

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

----Art. 79---Requirement of two witnesses---Nature of document---Document acknowledging understanding---Scope---Requirement and conditions attached to Art. 79 of Qanun-e-Shahadat, 1984, comes into only with registered sale deed but not to document or instrument of understanding acknowledgement.

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

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Suit for declaration and injunction---Proof---Onus to prove---Petitioners / plaintiffs claimed to be owners of shop in question and assailed mutation entered in the name of respondent / defendant---Judgment and decree passed by Trial Court in favour of petitioners / plaintiffs was modified by Lower Appellate Court---Validity---If any fraud was committed than in that case petitioners / plaintiffs could sue heirs for recovery of amount received from respondent / defendant for non-disbursement amongst siblings and their mother---Respondent / defendant could not be put at task or penalized as he had made payment independently to own a shop from its owners through registered sale deed and such transaction was not even questioned in the suit---Petitioners / plaintiffs were on one side and his brothers, nephews and uncles were on the other to repudiate their claim in respect of agricultural land and in particular shop in question---Such divide of family members inferred High Court to conclude that petitioners / plaintiffs did not approach Court with clean hands---Petitioners / plaintiffs failed to discharge onus of proof of issues pertaining to mutations of disputed shop as fake and product of fraud and misrepresentation---Respondent / defendant was the sole owner of suit property---High Court declined to interfere in judgment and decree passed by Lower Appellate Court directing correction of revenue record by inserting names of heirs in agriculture land with possession through partition---Revision was dismissed, in circumstances.

Irshad alias Abdul Rahim v. Ashiq Hussain PLD 2007 Kar. 421; Mehr Manzoor Hussain and others v. Muhammad Nawaz and another 2010 SCMR 1042; Para 361 of the D.F Mulla's book Principles of Islamic Law ("Muhammad Law") and Adeel Sultan v. Khalid Rasheed and 2 others PLD 2017 Lah. 590 ref.

Yar Muhammad Khan v. Sajjad Abbas 2021 SCMR 1401; Muhammad Anwar v. Khuda Yar 2008 SCMR 905; Umar Farooq v. Hamid Ali 2018 CLC 254; Ghulam Sarwar v. Ghulam Sakina 2019 SCMR 567 and Laitf Khan v. Altaf Khan 2018 CLC 608 rel.

Behlol Khan Kasi for Petitioners.

Zahid Muqeem Ansari for Respondents Nos.1 to 11-D and 14.

Muhammad Ayub Tareen, Assistant Advocate General (A.A.G) for Official Respondents.

2024 C L C 262

[Balochistan]

Before Gul Hassan Tareen, J

BISMILLAH and 2 others----Petitioners

Versus

NAIK MUHAMMAD through Legal Heirs----Respondents

Civil Revision No.813 of 2021, decided on 17th March, 2023.

Civil Procedure Code (V of 1908)---

----O. XXIII, Rr. 1 & 2 & O. XIII, R. 2---Conditional withdrawal of suit, permission of---Formal defect, absence of---Order of the Court not containing legal reasoning---Effect---Trial Court allowed application moved by the plaintiffs for conditional withdrawal with conditional cost, which order was maintained by the Appellate Court---Contention of the petitioner/ defendant was that application made by the respondents / plaintiffs did not disclose 'formal defect' as they had stated that they were not in possession of some material documents in respect of suit-property and whenever they would be in possession of said documents, they would file a fresh suit---Validity---In an application for conditional withdrawal of suit, 'formal defect' or 'any other sufficient ground' must be mentioned as per O.XXIII, R.1(2)(a) & (b) of Civil Procedure Code, 1908, whereas in the present case, respondents / plaintiffs could have collected the required documents to place the same on the record under O. XIII, R. 2 of Civil Procedure Code, 1908, thus the reason (documents not being in possession) having been mentioned by the respondent / plaintiffs in their application did not amount to 'formal defect' or 'any other sufficient ground'---Impugned order passed by the Trial Court was brief and non-speaking---Not only an application for conditional withdrawal of suit must contain 'formal defect' but the order passed by the Court must contain legal reasoning also while granting such an application---Application made by the respondents was reason and was liable to be dismissed---Trial Court completely overlooked the contents of the application and provisions of O. XXIII, R. 1 of Civil Procedure Code, 1908---Perusal of impugned order revealed that the Trial Court had not applied at all its judicious mind to the facts as well as the law on the subject; and in a slipshot manner allowed the application of the respondents / plaintiffs---Error committed by he Trial Court was not merely a material illegality but suffered from jurisdictional error and material irregularity---Petitioner assailed the impugned order in appeal; however, the Appellate Court had repeated the same illegality and failed to exercise jurisdiction vested in it by law as such, the impugned orders and judgments attracted the provisions of S.115(1) of Civil Procedure Code, 1908---High Court set-aside impugned orders and judgments passed by both the Courts below---Consequently the application made by the respondent / plaintiffs for conditional withdrawal of the suit stood rejected---Revision was allowed, in circumstances.

Muhammad Yar (Deceased) through L.Rs. and others v. Muhammad Amin (Deceased) through L.Rs. and others 2013 SCMR 464 and Sharaf-ud-Din v. Abdul Wadood and 3 others, 2022 CLC 1282 ref.

Atta Muhammad Tareen and Najeebullah Kakar for Petitioner.

Jamal Khan Lashari for Respondents Nos.1A to 1-E and 3 and Abdul Tahir, State Counsel for Respondent No.4.

2024 C L C 295

[Balochistan]

Before Gul Hassan Tareen, J

AFTAB ASHRAF----Petitioner

Versus

KHURSHEED ASHRAF and others----Respondents

Civil Revision No.294 of 2020, decided on 22nd November, 2022.

Specific Relief Act (I of 1877)---

----Ss. 8 & 54---Civil Procedure Code (V of 1908), O.XX, R.18(2)---Suit for possession, injunction and partition---Right of cross-examination, closure of---Non-payment of penalty---Suit filed by respondent / plaintiff was decreed concurrently by Trial Court and Lower Appellate Court against petitioner / defendant---Validity---Petitioner / defendant was bent upon to linger on the case for statement of respondent / plaintiff who used to come from abroad---Petitioner / defendant did not cross examine merely to linger on the case---Trial Court closed right of petitioner / defendant to cross examine on the statement of respondent / plaintiff and right of cross examination was restored by Trial Court, subject to payment of ticket expenses of respondent / plaintiff---Petitioner / respondent failed to pay ticket expenses though respondent / plaintiff had come twice from a foreign country---Petitioner / defendant despite availing countless adjournments failed to lead evidence, therefore, Trial Court rightly closed right of petitioner / defendant---High Court declined to interfere in judgments passed by two Courts below which were well reasoned---Suit property was joint and parties were entitled for possession of their respective shares in suit property through partition by metes and bounds---Revision was dismissed, in circumstances.

Tariq Mahmood Butt and Aimal Tariq Butt for Petitioner.

Syed Mumtaz Hanafi Baqri and Rasool Bakhsh Baloch for Respondents.

2024 C L C 340

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

MUHAMMAD AMIN and others----Petitioners

Versus

Haji ABDUL WAHID and others----Respondents

Civil (T) Revision No.7 and C.P. (T) No.34 of 2021, decided on 28th April, 2022.

Civil Procedure Code (V of 1908)---

----Ss.12(2), 47 & O.XXI, Rr.62, 103---Specific Relief Act (1 of 1877), Ss. 42, 12 & 54---Suit for declaration, permanent injunction and specific performance of agreement---Execution proceedings---Question relating to rights of claimant in attached property---Suit barred---Scope---Respondents/plaintiffs filed a suit for declaration, permanent injunction and specific performance of agreement against the Commissioner and others, which was decreed; appeal and civil revision thereagainst were filed but dismissed---Respondents filed execution petition which was allowed---During the execution proceedings the concerned judgment debtors on direction of Court concerned commenced realization of decree consequent whereof an application under S. 12(2), C.P.C., was filed by Mr. "A" for setting aside judgment and decree dated 18.11.2003, which was dismissed being not maintainable---Said applicant assailed the said order by filing civil revision but was dismissed---Said applicant filed a suit for declaration and permanent injunction, which was dismissed---Said applicant also filed objection pursuant to judgment/decree dated 13.02.2015, which was rejected, and appeal thereagainst was also dismissed---Pursuant to judgment/decree dated 13.02.2015, during the execution proceedings orders were passed to seize the bank account of Commissioner and Deputy Commissioner, which were also assailed---Validity---Record showed that there was no cloud with regard to ownership of the respondents/decree holders in respect of properties described in the plaints, thus the respondents/decree holders were also entitled to receive mesne profit and possession of the land in terms of the decree---Objection of the petitioner on the ground of his claim described in the application/objection had twicely been attended by the Executing Court, Appellate Court and High Court---Petitioner in view of Rr. 101, 103 of O.XXI, C.P.C. had claimed protection/restoration of possession---Said Rules in their terms were analogous to S.47 and R.62 of O. XXI, C.P.C.---Combined effect of S.47, Rr. 62 & 103 of O.XXI read with S. 12(2), C.P.C. was that all questions as to title right or interest in a possession of immovable property shall be determined by the Executing Court or by way of filing application/objection and a separate suit was barred---Court while deciding objection of the petitioner upheld the order of the Trial Court, which had not been further assailed by the petitioner and the same had taken finality---Besides suit on the same averments filed by the petitioner was also dismissed by the competent Court, thus the petitioner had failed to point out any material irregularity/illegality to warrant interference in the impugned order---Judgment debtors were liable to realize the decree in accordance with law and could not escape from their liability envisaged under the law---Petitions were dismissed, in circumstances.

Kamran Murtaza and Tahir Ali Baloch for Petitioner (in Civil (T) Revision No.7 of 2021).

Ali Ahmed Kurd for Respondent (in Civil (T) Revision No.7 of 2021).

Saifullah Sanjrani, Additional Advocate-General for Official Respondents (in Civil (T) Revision No.7 of 2021).

Saifullah Sanjrani, Additional Advocate-General for Petitioner (in C.P. No.(T) No.34 of 2021).

Ali Ahmed Kurd for Respondent (in C.P. No.(T) No.34 of 2021).

2024 C L C 449

[Balochistan]

Before Gul Hassan Tareen, J

MUHAMMAD QASIM and 2 others----Petitioners

Versus

MUHAMMAD ISMAIL and others----Respondents

Civil Revision No.148 of 2022, decided on 8th May, 2023.

Arbitration Act (X of 1940)---

----Ss. 21 & 34---Civil Procedure Code (V of 1908), O.XII, R.2---Arbitration---Petitioners were aggrieved of orders passed by Courts below rejecting application made by them under Ss. 21 & 34 of Arbitration Act, 1940---Validity---Respondents extended consent for arbitration through sole arbitrator before Revisional Court during pendency of suit before Trial Court---Such consent did not operate as estoppel against respondents when petitioners made an application before Trial Court under Ss. 21 & 34 of Arbitration Act, 1940---Legality of order made by Trial Court under O.XIII, R.2, C.P.C. was under adjudication before Lower Appellate Court, in exercise of revisional jurisdiction---Trial Court rightly rejected application of petitioners made under Ss. 21 & 34 of Arbitration Act, 1940---Provision of S. 34 of Arbitration Act, 1940 was wrongly mentioned in caption of the application---Court could only refer matter/differences without consent of all interested parties under S. 21 of Arbitration Act, 1940---Respondents did not extend consent for arbitration, therefore, Trial Court rightly exercised its jurisdiction and Lower Appellate Court rightly upheld the same---High Court declined to interfere with the orders passed by two Courts below---Revision was dismissed, in circumstances.

Project Director University of Loralai and another v. Zarif Khan Hussainzai and Brothers through Managing Director 2023 YLR 527 and The Imperial Electric Company (Private) Limited through Chief Financial Officer v. Messrs Zhongxing Telecom, Pakistan (Private) Limited through Chief Executive and 20 others 2020 CLC 760 distinguished.

Ahsan Rafiq Rana and Habib Qambrani for Petitioners.

Mir Wais Bazai for Respondents Nos.1 to 15.

Mir Wais Panezai State counsel for Respondents Nos.16 and 17.

2024 C L C 509

[Balochistan]

Before Rozi Khan Barrech, J

MUHAMMAD YAHYA KHAN and others----Petitioners

Versus

AKRAM SHAH and others----Respondents

Civil Revisions Nos.614 and 672 of 2021, decided on 14th June, 2022.

Specific Relief Act (I of 1877)---

----Ss.39, 42 & 54---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for declaration, cancellation, partition, specific performance and injunction---Cause of action---Lacking jurisdiction---Plaintiffs instituted suit for declaration, cancellation, partition, specific performance and injunction with the assertion that the property in dispute was purchased by the predecessor-in-interest of plaintiff vide agreement, however, subsequently the said agreement was not acted upon---Suit was contested by means of filing separate written statement on legal as well as factual grounds---During the pendency of suit, the petitioners applied for rejection of plaint through an application under O.VII, R.11, C.P.C., raising the plea that the so-called agreement had no connection with the property in dispute---Said application was allowed and plaint was rejected---In appeal, the order was set-aside and the case was remanded to the Trial Court for deciding in accordance with law---Validity---After going through the pleadings of the parties, it appeared that there was a title dispute between the parties and serious disputed questions of facts were involved in the matter in respect of ownership of the property in dispute---Genuineness of the alleged agreement required evidence and without recording of evidence the dispute between the parties could not be resolved---In case of the controversial question of facts or law provisions of O. VIl, R. 11, C.P.C., could not be invoked rather proper course for the Court in such cases was to frame issues on such questions and decide the same on merits in the light of the evidence---Matter with regard to the rejection of the plaint was previously raised in the first round of litigation and the application under O.VII, R.11, C.P.C., was dismissed whereafter the same was assailed before High Court by the parties in Civil Revision and thus High Court disposed of both the Civil Revisions by a common judgment---As per observations and directions of this Court, all the disputed questions of fact and law were directed to be resolved on merits, but the Trial Court had not considered that aspect of the matter and accepted the application under O.VII, R.11, C.P.C., of the defendants/petitioners---Impugned order passed by the appellate Court was not liable to be interfered with; therefore, the civil revision petitions filed by the petitioners were dismissed, in circumstances.

Muhammad Akram Shah for Petitioner (in Civil Revision Petition Nos.614 of 2021).

Mohibullah for Respondents Nos.20-C to 20-F (in Civil Revision Petition Nos.614 of 2021).

Saif-ur-Rehman for Respondents Nos.11 to 17 (in Civil Revision Petition Nos.614 of 2021).

Muhammad Ali Rukhshani, Additional Advocate General for Respondents Nos.18 and 19 (in Civil Revision Petition No.614 of 2021).

Jameel Ramzan for Petitioner (in Civil Revision Petition Nos.672 of 2021).

None present for Respondents (in Civil Revision Petition Nos.672 of 2021).

2024 C L C 556

[Balochistan]

Before Naeem Akhtar Afghan, CJ and Muhammad Aamir Nawaz Rana, J

ABDUL RASHEED----Petitioner

Versus

The SECRETARY LOCAL GOVERNMENT CIVIL SECRETARIAT, QUETTA and 4 others----Respondents

C.P. No.1895 of 2022, decided on 9th May, 2023.

Constitution of Pakistan---

----Arts.9 & 199---Constitutional petition---Life, right of---Scope---Playgrounds and sports facilities---Non-implemention of earlier decision---Petitioner was aggrieved of failure to provide playgrounds and sports facilities to the area of his locality---Validity---Word "life" used in Art. 9 of the Constitution is not restricted only to be vegetative or animal life or for that matter to mere existence from conception to death---Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally---Property belonging to Metropolitan Corporation was marked by authorities for establishing a football ground---Project of football ground was reflected in Public Sector Development Program (PSDP) for year 2021-2022---Such issue could be resolved by authorities amicably as there was no objection upon establishment of football ground---In view of such statement, subsequent excuses made by Metropolitan Corporation did not carry any weight as the Corporation was trying to frustrate orders passed by High Court by resiling from previous statement made on its behalf---High Court directed the authorities to hand over land in question for establishing football ground which was already approved in PSDP---Constitutional petition was allowed accordingly.

Watan Party v. Federation of Pakistan PLD 2012 SC 292 and Moulvi Iqbal Haider v. Capital Development Authority PLD 2006 SC 394 rel.

Abdul Razzaq Shar for Petitioner.

Zahoor Ahmed Baloch, Assistant Advocate General for Respondents Nos.1 to 4.

Muhammad Ishaq Nasar, assised by Abdullah Khilji, Law Officer, Metropolitan Corporation Quetta (MCQ) for Respondent No.5.

2024 C L C 725

[Balochistan]

Before Abdul Hameed Baloch, J

MUHAMMAD DAWOOD and others----Petitioners

Versus

KHUDAIDAD and others----Respondents

Civil Revision No.226 of 2016, decided on 31st May, 2022.

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

----Ss. 42, 39 & 54---Suit for declaration, cancellation of mutation, partition and permanent injunction---Shamilat land---Co-sharer---Scope---Plaintiffs filed a suit for declaration, cancellation of mutation, partition and permanent injunction claiming that their father had purchased land measuring 10 rods 16 poles vide a mutation along with share of water and shamilat; that defendants mutated the land in their favour without lawful authority and as such was liable to be cancelled---Suit was resisted by the defendants---Suit was decreed by the trial Court and appeal was dismissed---Validity---Record transpired that the suit property bearing khasra No. 667 was mutated as Shamilat land---Subsequently the petitioners transferred it vide a mutation in their names---Admittedly, the father of the respondents/plaintiffs purchased the land having seven khasra numbers from a private person and became owner of the property---Shamilat land did not belong to one land owner rather the land owner of the respective area---Thus, there was no valid ground for transfer of the Shamilat land in the names of petitioners---Petitioners had not disputed the document produced by the respondents---Even at the time of exhibition of document the petitioners had not objected meaning thereby that the documents were exhibited without objection---Judgment recorded had presumption of its correctness and credibility was attached to the proceeding before judicial forum---Strong and unimpeachable evidence was required to rebut the presumption which was lacking in the case in hand---Mere bald assertion without any documentary proof could not rebut the judicial proceeding---Petition being devoid of any merit was dismissed, in circumstances.

Mst. Rehmat Bibi through legal heirs v. Haji Allah Dewaya 2009 CLC 390; Ghulam Muhammad v. Qadir Khan PLD 1983 SC 68 and Muhammad Ramzan's case 2002 SCMR 1336 rel.

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

----S. 115---Revisional jurisdiction of the High Court---Scope---Revisional jurisdiction of High Court is supervisory in nature---Jurisdiction under S.115, C.P.C. cannot be invoked against the conclusion of law or fact which did not in any way affect the jurisdiction of the Court no matter however erroneous, wrong or perverse.

Muhammad Sarwar v. Hashmal Khan PLD 2022 SC 13 rel.

Muhammad Riaz Ahmed for Petitioners.

Hamayun Tareen for Respondents Nos.1 to 11, Mehboob Alam Mandokhail for Respondents Nos.12 to 139 and Muhammad Ali Rakhshani, Additional Advocate-General for Respondents.

Date of hearing: 27th May, 2022.

2024 C L C 1085

[Balochistan]

Before Abdul Hameed Baloch, J

YOUSUF ----Petitioner

Versus

MUHAMMAD AKBAR and others----Respondents

Civil Revision (T) No.04 of 2015, decided on 28th December, 2021.

(a) Limitation---

----Legal obligations---Scope---Limitation is matter of statute and is mandatory which cannot be waived---Even if parties do not raise question of limitation in pleadings, the Court should take it---Court is under obligation to look into the question of limitation without there being any objection of any party---Disposal of suit on merit alone is not sufficient to condone the delay.

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

----Ss.42 & 54---Balochistan Land Revenue Act (XVII of 1967), S.52---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Suit for declaration and injunction---Mutation---Presumption of correctness---Fact, proof of---Onus to prove---Respondents / plaintiffs assailed mutation in question on the plea that it was a result of fraud and collusion---Trial Court and Lower Appellate Court concurrently decided the matter in favour of respondents / plaintiffs---Validity---Final attestation of mutation was held in year 2001 in presence of predecessor-in-interest of respondents / plaintiffs but they did not raise any objection at the time of final attestation---Record of rights, under S. 52 of Balochistan Land Revenue Act, 1967, carried presumption of truth---Strong evidence was required to rebut the allegation and there was no evidence on record that mutation entries were made in the name of petitioner / defendant with collaboration of Revenue staff---There was no evidence brought on record that mutation entries were not conducted in accordance with law---Both the Courts below erred to draw the conclusion that burden of proof was on beneficiary of mutation on whose name entries were made---Such conclusion was against the provision of S.52 of Balochistan Land Revenue Act, 1967---Mutation entries carried presumption of correctness and could not be lightly reversed in absence of strong evidence in rebuttal---Burden of proof was on the party claiming title and possession of property---Party who desired a judgment from Court of competent jurisdiction in his favour was to discharge the burden on truthful and consistent evidence---High Court set aside concurrent findings of facts by two Courts below as the same were result of misreading and non-reading of evidence resultantly suit filed by respondents / plaintiff was dismissed---Revision was allowed, in circumstances.

Haji Wajdad v. Provencal Government through Secretary Board of Revenue, 2020 SCMR 2046; Mazloom Hussain v. Abid Hussain, PLD 2008 SC 571; Bakhat Ali v. Shah Nawaz PLD 2006 Kar. 497 and Badar-uz-Zaman case's 1996 CLC 202 and Nazir Ahmed deceased through legal heirs v. Karim Bakhsh 2017 SCMR 1934 rel.

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

----Art. 100---Thirty years old document---Presumption---Mere thirty years old document cannot be a ground to consider it as gospel truth---Mere age of document is not a yardstick of its proof---It has to be established that the document was signed or written by the person whose signatures appeared on it---Such presumption is rebuttable and cannot extend to disputed document.

Mst. Zakia Begum, 2014 YLR 1378 rel.

Nasar-ud-Din Kakar (Absent) for Petitioner.

Shay Khalid Hussain and Shahid Hussain Baloch, Additional Advocate General and Allauddin Kakar, Assistant Advocate General for Respondents.

2024 C L C 1293

[Balochistan]

Before Gul Hassan Tareen, J

DIVISIONAL SUPERINTENDENT PAKISTAN RAILWAYS, through Authority/Authorized Officer----Petitioner

Versus

TAJ MUHAMMAD KHAN----Respondent

Civil Revision No.283 of 2020, decided on 1st August, 2022.

Civil Procedure Code (V of 1908)---

----Ss.79 & O. XXVII, R. 2---Constitution of Pakistan, Art. 174---Court Fees Act (VII of 1870), S.13---Suit for recovery of damages---Suit against Federal Government---Non-impleading of Federal Government---Court fee, return of---Question of law, determining of---Principle---Respondent / plaintiff sought recovery of value of his consignment destroyed due to negligence of government officials---Suit was concurrently decreed in favour of respondent / plaintiff by Trial Court and Lower Appellate Court---Contention of petitioner / government was that Federal Government was not impleaded as party to proceedings---Validity--- Objection under S. 79, C.P.C., was raised in its memorandum of appeal, nonetheless, Lower Appellate Court overlooked the objection---Pure question of law which can be decided without any evidence can be raised at any stage of proceedings---By ignoring mandatory statutory provisions, subordinate Court committed material illegality and irregularity which went to the root of the suit---High Court set aside judgments passed by two Courts below and remanded the matter to Trial Court for trial afresh after impleading Federal Government as party in accordance with the provisions of S. 79 read with O. XXVII, C.P.C. and Art. 174 of the Constitution---High Court directed the office to issue relevant certificate to petitioner / government for return of court fee stamps as per S. 13 of Court Fees Act, 1870---Revision was allowed accordingly.

Province of Punjab through Secretary Excise and Taxation Department Lahore and others 2021 SCMR 305 and Government of Balochistan CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Magsi 2010 SCMR 115 ref.

Divisional Forest Officer, Larkana and 3 others v. Ghulam Haier and 8 others PLD 2007 Kar. 392 and Samar Gul v. Mohabat Khan 2000 SCMR 974 rel.

Mushtaq Anjum Rajput for Petitioner.

Moula Dad Barrech for Respondent.

2024 C L C 1353

[Balochistan (Sibi Bench)]

Before Gul Hassan Tareen, J

Mst. SAKINA----Petitioner

Versus

NOOR MUHAMMAD and 2 others----Respondents

Civil Revision Petition No.(S)48 of 2022, decided on 12th April, 2023.

Specific Relief Act (I of 1877)---

----Ss.39, 42, 54 & 55---Civil Procedure Code (V of 1908), O.VII, R.11---Res judicata---Scope---Rejection of plaint, application for---Maintainability of a suit envisaged by Cl.(d) of R.11 of O.VII, C.P.C.---Suit for declaration, cancellation and permanent injunction---Barred by law---Plaint of the petitioner was rejected by the Trial Court, which was affirmed by the Appellate Court---Validity---Prior to the suit of petitioner, the respondents instituted a civil suit against the petitioner for declaration, possession and perpetual injunction in respect of land bearing survey No.155 measuring 16 acres---Suit was contested by the petitioner and others---Said suit was decided in favour of respondents and it was held that the husband of the petitioner had left the suit land bearing survey No.155 in favour of Government and retained land of survey No.154---Said judgment was affirmed by the Appellate Court---Concurrent judgments were also affirmed on civil revision petition by the High Court---In her subsequent suit, the petitioner had impugned the genuineness of mutation of the respondent and claimed that her husband was the recorded owner of the suit land---Issue raised by the petitioner in her suit was, directly, substantially, collaterally and incidentally, in issue in the former civil suit of the respondent---Issue of genuineness of the impugned mutation and resumption of suit land by the Government and its subsequent transfer in the name of the respondent was finally heard and decided by a competent Court of law---Petitioner instituted her subsequent suit after decision of the Trial Court as well as Appellate Court---When she instituted her subsequent suit, the issue of genuineness of the impugned mutation entry was concurrently decided in the affirmative by the Trial Court as well as by the Appellate Court in favour of the respondent---Taking congnizance of a suit means to try a civil suit i.e. summoning defendant, framing of issues and recording of evidence; therefore, the existence of any such judgment which prevented trial of a subsequent suit is relevant and binding in a subsequent civil suit as res judicata---Production of certified copies of pleadings and former judgment were sufficient proof of existence of former judgment of a competent Court of law; therefore, principle of res judicata not only bars institution of a subsequent suit rather prevents the trial of a subsequent suit through recording of evidence---If such practice is allowed to prevail then, the principle/doctrine of res judicata would lose its legal sanctity/significance---Principle of res judicata is based on public policy that it is in the interest of State that there should be an end of litigation and no one should be vexed twice for the same cause---If it is declared that res judicata is a mixed question of law and fact, then there would be no end of subsequent litigations---Civil petition was dismissed accordingly.

Amjad Hussain Khosa for Petitioner.

Ahsan Rafiq Rana for Respondent No.1.

Muhammad Aslam Jamali, Assistant Advocate General for Respondents Nos.2 and 3.

2024 C L C 1386

[Balochistan (Sibi Bench)]

Before Sardar Ahmed Haleemi, J

MUNIR AHMED----Petitioner

Versus

ALI RAZA and 2 others----Respondents

Civil Revision Petition No.(s) 63 of 2021, decided on 5th April, 2024.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11(a) & O. XIV, Rr. 1 & 2---Specific Relief Act ( I of 1877), Ss. 42, 12 & 54---Suit for declaration, possession and permanent injunction---Rejection of plaint---Scope---Petitioner / plaintiff filed revision as his suit was rejected under O. VII, R. 11 of the Civil Procedure Code, 1908, which judgment was maintained by the District Court---Validity---It was the case of the petitioner that he was recorded owner and in possession of the land in dispute; National Highway Authorities (NHA) had constructed the road while a watercourse towards the northern side of the NHA existed---Revenue extracts appended with the plaint showed ownership of the petitioner in column 11 of relevant Khasra---Official respondents did not dispute ownership of the petitioner in the record of rights---Regarding " cause of action", contents of the plaint manifested that the petitioner had disclosed a cause of action clause, which was apparent in relevant para of the plaint, as such, the provisions of O.VII, R.11(a), Civil Procedure Code, 1908, would not be attracted in the present case---Moreover, the documents appended with the plaint reflected that the petitioner was the recorded owner of the land in dispute and the burden was upon the petitioner to substantiate his legal character and right enshrined under S. 42 of the Specific Relief Act, 1877, by adducing evidence at the Trial Court which was not a purely legal question, thus, the Courts below had erred in law while not dilating upon said aspect---Furthermore, O.XIV, R.1, Civil Procedure Code, 1908, demonstrates that it is a prime obligation of the Trial Court to frame issues of law and facts after receiving the pleadings of the parties, and thereafter decide the legal issue at first instance under sub-rule (2) of O. XIV, C.P.C., but in the present case Trial Court had not followed the mandatory provisions of the Civil Procedure Code, 1908, thus it committed an illegality and irregularity---Impugned order/judgment and decrees of the Courts below depicted that they had misinterpreted the provision of O. VII, R.11(a), Civil Procedure Code, 1908, which is a procedural provision---Trial Court had not followed the procedure provided under the Civil Procedure Code, 1908, while delivering the impugned order and decree in a cursory and mechanical manner, thus the same were not sustainable in eyes of law---High Court set-aside the impugned orders and decrees and directed that the application under O.VII, R.11, C.P.C., would be deemed pending before the Trial Court, which would frame issues of law and facts in view of the pleadings of the parties, and thereafter proceed with the matter in accordance with law---Revision filed by the plaintiff was allowed accordingly.

Pakistan Oil Company Limited v. Karachi Electric Supply Corporation Ltd., PLD 1991 Kar. 365 and Mst. Iqbal Begum v. Farooq Inayat and others PLD 1993 Lah. 183 ref.

Muhammad Nasir Marri for Petitioner.

Faheem Abro for Respondent No.1.

Muhammad Aslam Jamali, Assistant Advocate General for Respondents Nos.2 and 3.

2024 C L C 1437

[Balochistan]

Before Abdul Hameed Baloch, J

ABDUL NAFAY----Petitioner

Versus

GOVERNMENT OF BALOCHISTAN C&W DEPARTMENT through Superintending Engineering Project Circle and another----Respondents

Civil Revision No.415 of 2011, decided on 26th April of 2022.

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

----Ss. 42 & 54---Limitation Act (IX of 1908), Art.120---Qanun-e-Shahadat (10 of 1984), Arts. 79 & 117---Civil Procedure Code (V of 1908), S. 115---Suit for declaration and injunction---Revenue entries, correction of---Limitation---New documents---Petitioner / plaintiff claimed his ownership over suit property and had assailed mutations in question---Trial Court as well as Lower Appellate Court dismissed the suit---Validity---Suit land was mutated in the name of a person in the year 1980 and petitioner / plaintiff alleged that he purchased property in year 1980 but did not bother to transfer the land to his name in revenue record---Petitioner / plaintiff filed suit for correction of revenue record in the year 1995---Limitation period provided under Art.120 of Limitation Act, 1908, for correction of mutation entries was six years---Relief which petitioner / plaintiff was entitled was subject to law of limitation---Every litigant is to be vigilant in claiming his / her right within the prescribed period of limitation---Petitioner / plaintiff was not vigilant to pursue his right---There was no evidence on record that petitioner / plaintiff was not in knowledge of mutation entries---Petitioner / plaintiff filed suit after fifteen years of alleged transaction, which suit was barred by time---Documents which were neither pleaded nor part of pleading could not be allowed to be introduced during revisional jurisdiction---High Court declined to interfere in concurrent findings of facts by two Courts below as petitioner / plaintiff failed to point out any illegality and irregularity---Revision was dismissed, in circumstances.

Rozi Khan v. Nasir 1997 SCMR 1849; Chairman, WAPDA, Lahore v. Gulbat Khan 1996 SCMR 230; Manzoor Ahmad v. Government of Balochistan 1995 SCMR 221; Asif Mowjee v. Zaheer Abbas 2015 CLC 877; Azam Ali (Late) through legal heirs v. Alam Sher 2019 YLR 401; Bakhtiar v. Nasrullah 2015 CLC 395; Muhammad Iqbal's case 2015 SCMR 21 and Moiz Abbas v. Mrs. Latifa SCMR 74 rel.

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

----Art. 79---Document not attested by witnesses---Effect---Document which is required under law to be attested, such document cannot be used as evidence until two attesting witnesses have been called for the purpose of proving its execution---Provision of Art. 79 of Qanun-e-Shahadat, 1984, is mandatory in nature and non-compliance renders the document inadmissible in evidence without producing two witnesses, if alive---Court cannot rely on such document---Mere production of marginal witnesses is not enough, the witnesses in their deposition have to show signing of the document in their presence.

Sheikh Muhammad Muneer v. Mst. Feezan PLD 2021 SC 538 rel.

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

----Art. 117---Proof---Onus to prove---Plaintiff must prove the case with cogent, trustworthy and consistent evidence and cannot take advantage of shortcomings of defendant's side.

Mushtaq-ul-Haq Aarifin's case 2022 SCMR 55 rel.

Manzoor Ahmed Rehmani for Petitioner.

Muhammad Ali Rakhshani, Additional Advocate General and Allauddin Kakar, Assistant Advocate General for Respondents.

2024 C L C 1495

[Balochistan]

Before Abdullah Baloch and Muhammad Aamir Nawaz Rana, JJ

Messrs KURDISH MINING ENTERPRISES through Adnan Aziz Kurd and others----Petitioners

Versus

SECRETARY MINES AND MINERAL, GOVERNMENT OF BALOCHISTAN, QUETTA and 12 others----Respondents

C.Ps. Nos.1128, 1129 and 1130 of 2022, decided on 4th March, 2024.

Balochistan Mineral Rules, 2002---

----R. 90---Mining lease holder---Restoration of lease---Un-worked / un-utilized area---Scope---Condemned unheard---Lease in question was in favour of respondents which was cancelled under R. 90 of Balochistan Mineral Rules, 2002 by the authorities and was allotted to petitioners---Provincial Government set aside the lease cancelling order and restored it in favour of respondents---Validity---Before taking action under R.90 of Balochistan Mineral Rules, 2002, against mining lease holder on the ground of keeping mining area idle for years, opportunity had to be provided to mining lease holder to explain his position---Authorities illegally cancelled lease of respondent and allotted the same to petitioners---High Court declined to interfere in the notification passed by Provincial Government in exercise of appellate jurisdiction restoring lease of respondents---Constitutional petition was dismissed, in circumstances.

Muhammad Riaz Ahmed for Petitioners.

Nusrat Baloch, Additional Advocate General assisted by Aftab Qadir Mughal, Law Officer, Mines and Minerals Department, Government of Balochistan for Respondents Nos.1 and 2.

Talaat Waheed Khan for Respondent No.3.

Tahir Ali Baloch and Syed Saaduddin Shah along with Attorney Malik Masood Khan for Respondents Nos.4 to 9.

Syed Ayaz Zahoor for Respondents Nos.10, 11 and 13.

Noor Ahmed Kakar for Respondent No.12.

2024 C L C 1531

[Balochistan]

Before Muhammad Hashim Khan Kakar, CJ and Shaukat Ali Rakhshani, J

MUHAMMAD SIDDIQUE UMRANI and another----Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and others----Respondents

C.Ps. Nos.65(S) and 709 of 2024, decided on 21st June, 2024.

Constitution of Pakistan---

----Arts. 25 & 199---Constitutional petition---Discrimination---Procurement of wheat---Subsidy to farmers---Petitioners were aggrieved of decision of Provincial Cabinet to procure wheat from a particular area in a large quantity, for which there were no arrangement of storage---Validity---There was issue of discrimination in grant of subsidies only to the farmers of the particular area from where wheat was to be procured---Equality before law was guaranteed by the Constitution and discrimination on arbitrary grounds was prohibited---Differential treatment of farmers, where some benefited from free water for irrigation while others incurred substantial costs to access water, had raised questions of equity and fairness---Government policy must be inclusive and equitable to all farmers, irrespective of their geographical location or access to natural resources---High Court in exercise of Constitutional jurisdiction set aside decision of Provincial Cabinet to procure wheat at subsidized rates after allocating Rs. 500 million, as such decision was illegal---High Court directed Provincial Government to divert the amount towards payment of loan and establishment of technical center, town planning and supply of drinking water etc.---Constitutional petition was allowed accordingly.

Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 and I.A.Sherwani v. Government of Pakistan and others 1991 SCMR 1041 rel.

Rahib Khan Buledi, Ilyas Khosa, Kalsoom Langove, Rahat Bashir and Azam Langove for Petitioner (in C.P. No.(S)65/2024).

Muhammad Asif Reki, Advocate General and Zahoor Ahmed Baloch, Additional Advocate General (AAG), Sarfaraz Bugti, Chief Minister, Balochistan assisted by Muhammad Asghar Harifal, Secretary Food Department GoB, Zafarullah Goya, D.G. Food Department GoB and Muhammad Rahim Bangulzai, Director Food Department GoB for Official Respondents (in C.P. No.(S)65/2024).

Ahmed Bilal Kakar and Kamran Khan for Respondents Nos.6 and 7 (in C.P. No.(S)65/2024).

Pervaiz Khan for Petitioner (in C.P. No.709/2024).

Muhammad Asif Reki, Advocate General and Zahoor Ahmed Baloch, Additional Advocate General (AAG), Sarfaraz Bugti, Chief Minister, Balochistan assisted by Muhammad Asghar Harifal, Secretary Food Department GoB, Zafarullah Goya, D.G. Food Department GoB and Muhammad Rahim Bangulzai, Director Food Department GoB for Official Respondents (in C.P. No.709/2024).

2024 C L C 1565

[Balochistan]

Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ

SHER ALI BANGULZAI, GENERAL SECRETARY NATIONAL F&V COMMISSION AGENTS ASSOCIATION (REGD.), QUETTA----Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary Balochistan Quetta and 6 others----Respondents

Constitutional Petition No.917 of 2021, decided on 23rd October, 2023.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Encroaching upon property of others in the garb of business---Restoration of possession---Petitioner being general secretary of Fruit and Vegetable Commission Agents Association sought the removal of the private respondents being illegal encroachers/Mashakhors, from the two platforms Hazar Ganji Fruit and Vegetable Market, Quetta, with prayer to shift them to their allotted land---Contention of the petitioner was that due to illegal encroachments of private respondents/Mashakhors on the platforms , not only the Association's business had been damaged badly, but there was also a serious security threat---Validity---Record revealed that initially, the private respondents were doing their business on the road of two platforms meant for the auction of fruits and vegetables; however, with the passage of time, they installed their camps and fully possessed the platforms above, which created obstacles for the petitioner's Associations to run their business smoothly; the petitioner approached and apprised the private respondents of their illegal occupation and encroachments, but to no avail---In said connection, the petitioner applied to the concerned offices (Police, Civil Administration, Market Committee, etc.) to redress their grievance, but no concrete steps had been taken---Meanwhile, the Committee of respondents/Mashakhors filed a civil suit against official respondents, which was tried and finally dismissed by the Civil Court---Later, reportedly, an unfortunate bomb blast occurred in the Fruit and Vegetable Market Complex, Hazar Ganji, resulting in heavy loss of precious lives and property; after that the petitioner's Association convened various meetings with the official respondents, and in connection to that, petitioner's Association installed CCTV cameras and street lights for security, however, same could not bear results due to illegal encroachments---Unfortunately, record also showed that even the concerned official authority had approved and allotted a vast space/land to the private respondents / Mashakhors; however, they (respondents) alleged to have sold out and utilized the said land for purposes other than the purpose for which it was allocated---High Court viewed that , in any case, no person can be allowed to encroach upon property of others in the garb of his own business and said trend cannot be appreciated at all---High Court directed the official respondents to restore the possession of both the Fruit and Vegetable Market Complex Hazar Ganji platforms to the petitioner's Association after following the law---Constitutional petition was allowed accordingly.

Jahangir Khan Mandokhail and Abdul Musawir for Petitioner.

Munir Ahmed Sikandar, Additional Advocate General for Respondents Nos.1, 2, 4 to 7.

Syed Taqveem Shah and Inayat Khan Kasi for Respondent No.3.

Aminullah Amin for Respondents Nos.10 and 11.

2024 C L C 1797

[Balochistan (Turbat Bench)]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

MUHAMMAD SALEEM----Petitioner

Versus

The ASSISTANT COMMISSIONER TURBAT and another----Respondents

C.P. No.(t) 50 of 2023, decided on 15th November, 2023.

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

----S.172(2)(viii)---Civil Procedure Code (V of 1908), S.9---Dispute regarding ownership of property leased out for installation of a cell phone Tower---Allegation of fraud---Factual/disputed questions qua title, resolution of---Plenary jurisdiction of Civil Court---Scope---Civil Court is a Court of plenary jurisdiction and disputed question of facts and law regarding the title of the disputed property cannot be decided by the revenue authorities, proceedings before whom are summary in nature---In such like cases, the parties ought to approach the Civil Courts---Order passed by Assistant Commissioner was not sustainable in the eye of the law, having been passed in utter violation of the mandatory provision of the Revenue Act and the same was set aside---Constitutional petition was allowed accordingly.

Jan Muhammad through Mubarik Ali and others v. Nazir Ahmad and others 2004 SCMR 612; Muhammad Jameel Asghar v. The Improvement Trust Rawalpindi PLD 1965 SC 698 and Hafiz Kalu and others v. Muhammad Bakhsh and others 2019 YLR 1523 rel.

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

----S.172(2)(viii)---'Question of title'---Meaning and scope---Question of title is the claim of a person as to his ownership in some property and it will arise when someone denies his right or interest in his property.

Jadain Dashti for Petitioner.

Khalil Ahmed Lehri for Respondent.

Nusratullah Baloch, A.A.G and Faisal Mengal, A.A.G. for the State.

2024 C L C 1984

[Balochistan]

Before Jamal Khan Mandokhail, CJ, Naeem Akhtar Afghan, Muhammad Hashim Khan Kakar, Abdullah Baloch and Abdul Hameed Baloch, JJ

SHER ZAMAN and others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Civil Secretariat, Quetta and others---Respondents

Constitutional Petitions Nos.1269 of 2018 and 1128 of 2020, decided on 18th March, 2021.\

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

----S.39---Punjab Settlement Manual, (1930), Chapt. I, Para. 1, Chapt. VIII---Record of rights---Land settlement---Object, purpose and scope---Main objective of land settlement is to formalize and make a record of actual facts, recognizing ownership rights, title, interest and liabilities of indigenous humans over unsettled lands they physically possess, utilize and have control over---Through settlement proceedings, authorities prepare a record of right for fiscal purposes enabling government to assess revenue and taxes to be collected from the produce of land owners concerned---Process includes preparation of pedigree of tribes and sub-tribes, recognize and record water and grazing rights of tribes and sub-tribes, prepare maps and demarcate lands for public purpose, such as graveyard, mosques, educational buildings and other amenities---For the purpose of conducting settlement, the settlement authorities also follow principles reflected in Para-I of Chapter-1 (introductory) of Punjab Settlement Manual (1930)---Book-II of the Manual relates to Record of Rights and

Chapt. VIII of the Manual is about tenure and rights of land owners---Settlement Authorities follow these provisions while conducting settlement proceedings.

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

----Ss.39 & 50---Constitution of Pakistan, Art. 172---Record of rights---Land Settlement---Ownership, determination of---Mode---Petitioners sought determination of status of unsettled lands of the Province of Balochistan---Validity---After creation of Pakistan, the British Balochistan and Balochistan Agency merged its sovereignty into Pakistan and came under its administrative control but land owners did not surrender their collective or individual rights of ownership of their properties to State, that is why after creation of Pakistan, lands which were recorded by the Britishers on the names of private persons either collectively or individually, were renamed on their names, whereas only the properties recorded in the name of British Administration, were transferred on the name of Central Government and subsequently, after establishment of the Provinces, it was transferred on the name of Provincial Government, but still most of the land in the Province is unsettled---Whenever land was required for the establishment of Government buildings for amenities purpose like District Administration Offices, Courts, buildings, school buildings, hospitals and roads etc., Federal or Provincial Government used to acquire lands subject to compensation or through gift or upon certain terms and conditions from land owners concerned, considering them as owners irrespective of the fact that the lands were settled or unsettled---Provision of S.50(1) of Land Revenue Act, 1967 speaks about two specific dates i.e. 18-11-1871 and 17-07-1879 and only in respect of territories where Punjab Land Revenue Act, 1887, Bombay Land Revenue Code, 1897 and Sindh Land Revenue Code, 1879 were so enforced---Provision of Land Revenue Act, 1967, is time bound and pertains to limited areas, where the earlier enactments were so enforced---By or before 18-11-1871 and 17-07-1879 none of the three enactments were enforced in British Balochistan and Balochistan Agency, therefore, provision of S. 50(1) of Land Revenue Act, 1967, was not made applicable to the Province of Balochistan---For such reasons, while taking over charge of the two areas, the British Administration did not claim ownership of unsettled lands, rather accepted indigenous tribes as owners of the same---Most of the lands were claimed by landowners concerned as rightful owners and such lands could not be considered as ownerless properties---Inhabitants of different tribes and sub-tribes were presumed to be owners of their respective lands---Government always required land for public purposes such as education, health, research, sports, parks, dams, water supply schemes, mosques, graveyards and other amenities purposes---Government was required to earmark reasonable land only for such purposes during the course of settlement proceedings---Presumption of ownership as provided by S. 50 (2) of Land Revenue Act, 1967 with regard to unsettled land was in favour of land owners concerned---High Court asked the Government to conduct settlement proceedings to prepare record of rights and to continue settlement proceedings periodically, in accordance with law---Government could frame policies, introduce land reforms and make enactments to deal with land issues, accordingly---Constitutional petition was disposed of accordingly.

Mir Muhammad Nawaz v. Mewand Rifles Kohlu (C.P. No.90 of 1987; Deputy Commissioner cum Collecor Kalat v. Haji Baran Khan (Civil Revision Petition No.220 of 1989) and Rahim Khan v. Station Commander Zhob (Civil Miscellaneous Appeal No.18 of 2009) rel.

(c) Constitution of Pakistan---

----Art. 172---Term 'rightful owner'---Scope---Rightful owner means a person having a just or legally established claim, which can either be in the form of document or in case there is no record of right, longstanding possession or control over the land is prima facie just and legally acceptable proof of ownership.

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

----S. 50 (2)---Constitution of Pakistan, Arts, 23, 24 & 172---Unsettled Lands---No rightful owner---Determination---In presence of claimants, unsettled lands cannot be considered as ownerless property---Land owners concerned who prove their entitlement are deemed to be the rightful owners and as citizens of the country, their rights have been protected by Arts. 23 & 24 of the Constitution.

Gohar Yaqoob Yousafzai for Petitioners (in Constitutional Petition No.1269 of 2018).

Manzoor Shah, Muhammad Ishaq Nasar, Barrister Amir Muhammad Lehri, Waseem Jadoon, Zahoor Ahmed Baloch, Gulzar Kandrani and Najam-ud-Din (Amicus Curiae), (in Constitutional Petition No.1269 of 2018).

Naseebullah Tareen for Intervener (in Constitutional Petition No.1269 of 2018).

Arbab Tahir Kasi, Advocate General Balochistan, Tahir Iqbal, Khattak, Assistant Attorney General and Javed Iqbal, Legal Expert (SMBR) for Official Respondent No.1 (in Constitutional Petition No.1269 of 2018).

Ajmal Kakar and Sahibzada Nisar Ahmed (In person) for Petitioner (in Constitutional Petition No.1128 of 2020).

Manzoor Shah, Muhammad Ishaq Nasar, Barrister Amir Muhammad Lehri, Waseem Jadoon, Zahoor Ahmed Baloch, Gulzar Kandrani and Najam-ud-Din (Amicus Curiae), (in Constitutional Petition No.1128 of 2020).

Naseebullah Tareen for Intervener (in Constitutional Petition No.1128 of 2020).

Arbab Tahir Kasi, Advocate General Balochistan, Tahir Iqbal, Khattak, Assistant Attorney General and Javed Iqbal, Legal Expert (SMBR) for Official Respondent No.1 (in Constitutional Petition No.1128 of 2020).

2024 C L C 2052

[Balochistan]

Before Gul Hassan Tareen, J

NAIMAT ALI SHAH---Appellant

Versus

ANJUM SHAGUFTA and another---Respondents

F.A.O. No.54 of 2022, decided on 2nd September, 2024.

(a) Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss.13(1) & 13(3)(a)(i)(a)---Qanun-e-Shahadat (10 of 1984), Arts.115 & 125---Eviction order----Default in payment of rent---Personal bona fide need---Denial of relationship of landlord and tenant---Burden of proof---Non-mentioning of details as to purchase of property in dispute---Entering into a contract of tenancy and admission as to payment of rent---Denial of currency of tenancy---When the existence of relationship of landlord and tenant is proved or it has been shown that they have been acting as landlord and tenant, its continuance is presumed and the burden of proving the contrary lies upon the person who denies such legal relationship---Tenant in his written statement had pleaded that he had been paying the rent to the landlady and later, landlady had sold out the subject house to him---Tenant had admitted his induction in the subject house as tenant of the landlady, thus, the burden of proof was on the tenant by establishing that he had ceased to stand in the relationship of landlord and tenant---Tenant in his written statement had not pleaded the price against which he had purchased the subject house and he could not bring on record any document in proof of the pleaded sale transaction---Tenant could not produce proof of payment of the price to the landlady or to anyone else, on her behalf---Oral assertion of the tenant was found baseless and his denial of relationship of landlord and tenant was contumacious---At the beginning of tenancy, tenant came into possession of the subject house and then he, by entering into the contract of tenancy and by payment of rent, had acknowledged the title of the landlady on the subject house---Where tenant denies the title of his landlord and it is established that the landlord has inducted him in possession of the tenement, he will forfeit his tenancy and be liable to ejectment forthwith---Appeal was dismissed accordingly.

Muhammad Zubair v. Lala Rukh 2019 YLR 2121 and Muhammad Zakria Kansi v. Bashir Ahmed PLD 2001 Quetta 40 ref.

Muhammad Imran v. Muhammad Afzal 2022 CLC 1354; Muhammad Nadeem v. Anjuman-E-Nasir-Ul-Aza 2020 CLC 526; Erick v. Pethres PLD 2020 Balochistan 83; Abdul Ellah Rehmani v. Muhammad Khan 2020 YLR 2882; Muhammad Akram v. Muhammad Khalid 2020 CLC 1542; Dawood Khan v. Sultan Muhammad PLD 2019 Bal. 113 and Ahmed Ali v. Nasar-ud-Din PLD 2009 SC 453 rel.

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

----S.100---Word 'charge'---Meaning and connotation---Creation of 'charge' on the subject house---Non-mentioning of anything in written statement about 'charge'---Divergent pleadings of the tenant---Effect---'Once a tenant is always tenant', principle of---Scope---Charge on an immovable property is created to secure payment of money---In a charge, there is no transfer of any interest in favour of the charge holder, however, he is only entitled to recover his money from the property--- Under S.100 of Transfer of Property Act, 1882, it is expedient that there must be a clear intention to make a particular property a security for the payment of a debt--- Where the property is not intended to serve as a security, there can be neither a mortgage nor a charge---Tenant had not pleaded that he paid the amount to the landlady as a debt and in exchange, the landlady had created a charge on the subject house to secure repayment of the money---Tenant had pleaded contradictory stances of purchase and charge and also admitted title of the respondent and payment of rent, thus, he was neither purchaser of the subject house nor charge holder and was a tenant on the principle that, 'once a tenant is always a tenant'---Appeal was dismissed accordingly.

Sher Shah Kasi for Appellant.

Hafiz Sharifullah for Respondent No.1.

2024 C L C 2094

[Balochistan (Sibi Bench)]

Before Gul Hassan Tareen, J

MUHAMMAD AMEEN and others---Petitioners

Versus

MUNAWAR ALI and others---Respondents

Civil Revision Petition No.(s) 20 of 2023, decided on 30th April, 2024.

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

----O. XLI, Rr. 23, 24 & 25---Remand of the case by the Appellate Court---Powers---Petitioner filed revision to assail judgment passed by the District/ Appellate Court, whereby appeal preferred by the respondents was partly allowed and case was remanded to the Civil Court for adjudication afresh and to render finding on an additional issue (on mortgage relating to suit-property)---Argument of the petitioners was that since evidence on record was sufficient, therefore, Appellate Court should have itself decided the case, including the additional issue (of mortgage) instead of remanding the whole case to the Trial Court---Validity---Under R. 25 of the O.XLI of the Civil Procedure Code, 1908, (C.P.C), where the Court from whose decree the appeal is preferred omits to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court to be essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues and refer the same for trial to the Trial Court, and in such case shall direct the Trial Court to take the additional evidence required and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor---Whereas under R.23 of the O. XLI, C.P.C, the Appellate Court sends back the whole case for trial to the Trial Court but upon remand under R. 25 of the O. XLI, C.P.C., the case is sent back to the Trial Court, only for the purpose of recording evidence and the appeal remains pending before the Appellate Court---During post-remand proceeding before the Trial Court, the appeal continues to remain pending before the Appellate Court---Thus, R.25 of the O. XLI, C.P.C., would apply where the evidence on the record is not sufficient to enable the Appellate Court to pronounce the judgment---Where the entire evidence is available, remand under R. 25 of the O. XLI, C.P.C. shall not be ordered rather the Appellate Court shall itself determine the case finally under R. 24 of the O. XLI, C.P.C., instead of remanding the case to the Trial Court for mere re-writing of judgment on the issue or on an additional issue so referred---In the present case, both the parties (petitioners and respondents) had produced their respective evidence in support of what they had claimed and defended and evidence was sufficient to enable the Appellate Court to pronounce judgment, after resettling the issues if found necessary---Thus, remand of the whole case by the Appellate Court for the purpose of mere rewriting of judgment on a particular or additional issue was violation of R. 24 of the O. XLI, C.P.C.---Record revealed that the Trial Court had rendered finding on the question of mortgage in relevant paras of the its judgment---High Court set-aside the impugned appellate judgment and decree and remanded the case to the Appellate / District Court to decide the appeal and pronounce the judgment itself---Revision was allowed accordingly.

Shahida Zareen v. Iqrar Ahmed Siddiqui 2010 SCMR 1119 ref.

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

----Ss. 115(1)(a), 115(1)(b) & O. XLI, Rr.23, 24, 25---Remand of the case by the Appellate / District Court---Revisional jurisdiction of the High Court---Powers---Petitioner filed revision to assail judgment passed by the District/ Appellate Court, whereby appeal preferred by the respondents was partly allowed and case was remanded to the Civil Court for adjudication afresh and to render finding on an additional issue (of mortgage relating suit-property)---Argument of the petitioners was that since evidence on record was sufficient, therefore, Appellate Court should have itself decided the case, including the additional issue (of mortgage) instead of remanding the whole case to the Trial Court---Validity---Record revealed that the Trial Court had rendered finding on the question of mortgage in relevant paras of the its judgment---Thus, the Appellate Court had committed material illegality by remanding the case to the Trial Court vide impugned judgment and decree---Appellate Court should have itself decided the case including the additional issue under R.24 of the O. XLI, C.P.C. had committed error of jurisdiction as R.25 of the O. XLI, C.P.C., had been misinterpreted---Such error of jurisdiction attracted the provision of Ss. 115(1)(a) & 115(1)(b) of the C.P.C---Appellate Court had exercised a jurisdiction not vested in it by R. 25 of O. XLI, C.P.C. and had failed to exercise jurisdiction vested in it by R. 24 of O. XLI, C.P.C.---High Court set-aside the impugned appellate judgment and decree and remanded the case to the Appellate / District Court to decide the appeal and pronounce the judgment itself---Revision was allowed accordingly.

Anwar-ul-Haq Chaudhry for Petitioners.

Faisal Mengal, Assistant Advocate General (A.A.G.) for Respondents Nos.1 to 3.

Ghulam Hussain Lashari for Respondents Nos.4 and 5.

2024 C L C 2123

[Balochistan]

Before Abdullah Baloch and Rozi Khan Barrech, JJ

NASIR-UL-ISLAM KHAN and others----Appellants

Versus

ZAKIA BEGUM and others----Respondents

Civil Miscellaneous Appeal No.13 of 2024, decided on 6th May, 2024.

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

----Ss. 37 & 38---Execution petition, filing of---Trial Court and Appellate Court---Jurisdiction---Trial Court dismissed the suit, however, Appellate /High Court decreed the suit---Appellants (judgment-debtors) assailed order passed by the Executing / Trial Court whereby their objection regarding jurisdiction of the Court was over-ruled---Contention of the appellants was that under S. 38 of Civil procedure Code, 1908 (C.P.C.), the execution application was not maintainable before the Trial Court as the decree was passed by the Appellate (High Court) therefore the same should have been filed before the High Court---Validity---Section 38, C.P.C., cannot be read in isolation of S.37, C.P.C.; the provisions of both the sections make it clear that the decree, which is passed by the Appellate Court, can be executed by the Court of first instance i.e. Trial Court---Thus, the contention of the appellants had no force---No material illegality or irregularity had been noticed in the impugned order passed by the Executing Court to be interfered by the High Court---Appeal filed by the judgment-debtor, being merit-less, was dismissed.

Muhammad Asar Hussain v. Karachi Development Authority, Karachi 1999 CLC 1121 ref.

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

----S. 47---Execution petition---Subsequent purchaser(s), non-impleading of---Scope---After culmination of proceedings upto the Supreme Court, the decree-holders initiated execution proceedings---Appellants (judgment-debtors) assailed order passed by the Executing/Trial Court whereby their objection was over-ruled--- Contention of the appellants was that as the suit-properties had already been sold out, the decree-holders had not impleaded the bona fide purchasers---Validity---Record revealed that in the entire proceedings since filing of suit till passing of judgment passed by High Court and the Supreme Court, nowhere an objection was raised by the appellants that the suit -properties had been sold out to the bona fide purchasers rather the same was concealed by the appellants and their predecessor-in-interest---Hence, non-arraying of the strangers or so called bona fide purchasers by the respondents /(decree-holders/ execution-petitioners) had no force---Said objection / point was neither agitated nor brought in the notice during the entire proceedings before the Courts---Once objections had not been taken at the initial stage before the Trial Court they could not be taken subsequently, particularly at the time of execution of decree---No material illegality or irregularity had been noticed in the impugned order passed by the Executing Court to be interfered by the High Court---Appeal filed by the judgment-debtor, being merit-less, was dismissed.

Mst. Naseem Akhtar and others v. Shalimar General Insurance Company Limited 1994 SCMR 2022 ref.

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

----Ss. 12(2) & 47---Execution petition---Subsequent purchaser(s), entitlement of---Scope---After culmination of proceedings upto the Supreme Court, the decree-holders initiated execution proceedings---Appellants (judgment-debtors) assailed order passed by the Executing Court whereby their objection was over-ruled---Contention of the appellants was that as the suit properties had already been sold out, the decree-holders had not impleaded the bona fide purchasers---Validity---If strangers, who claimed to be bona fide purchasers of the suit properties, were not aware with regard to the proceedings pending against the suit properties between the parties, still they had alternate remedy to approach the said forum for redressal of their grievance under S. 12(2) Civil Procedure Code, 1908, but the Appellants could not be allowed to step in the shoes of so called bona fide purchasers---No material illegality or irregularity had been noticed in the impugned order passed by the Executing Court to be interfered by the High Court---Appeal filed by the judgment-debtor, being merit-less, was dismissed.

Ghulam Abbas Zehri, Habib-ur-Rehman Baloch and Siri Chand for Appellants.

Azhar Ahmed Khan, (Attorney for Respondent No.1) for Respondents.

Nusrat Baloch, Assistant A.G. for the State.