PLJ 2012 Judgments

PLJ 2012 Karachi 1 (DB)

Present: Gulzar Ahmad & Imam Bux Baloch, JJ.

DANISH KANERIA--Petitioner

versus

PAKISTAN through Secretary Ministry of Sports & Culture, Islamabad and antoher--Respondents

C.P. No. 2377 of 2011, decided on 10.11.2011.

Constitution of Pakistan, 1973--

----Art. 199(1)(a)(i)--Territorial jurisdiction of High Court--High Court has power to issue a direction to a person performing within its territorial of federation, a province or a local authority to refrain from doing anything which he is not permitted by law to do or to do anything he is required by law to do. [P. 10] A

Constitution of Pakistan, 1973--

----Art. 199(1)(a)(ii)--Territorial jurisdiction of High Court--High Court has powers to declare any act done or proceedings taken within territorial jurisdiction of the Court by a person performing functions in connection with affairs of federation, province or local authority. [P. 10] B

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Territorial jurisdiction of High Court--Petitioner was selected for national cricket squad to play test services--Attained training camp of Pakistan Cricket Board held at Ghaddafi Stadium Lahore--Two days before schedule departure petitioner received a telephone call that he was no longer required to travel with national squad--Challenged before High Court of Sindh, Karachi--Preliminary objection of jurisdiction--Impugned order was passed by PCB having central office at Lahore--Karachi High Court had no jurisdiction to entertain the instant petition--Central office of PCB was located at Lahore and petitioner had to attend central office of PCB at Lahore for appearing before integrity committee and not before sub-office at Karachi--Validity--All correspondence had taken place at Lahore--Regarding the jurisdiction of High Court of Karachi under Art. 199(1)(a)(i)(ii) of Constitution had to see what was dominant object of filing the Constitutional petition was to declare that failure of PCB to consider the petitioner for selection into national cricket team was completely without jurisdiction, mala fide, illegal, void ab initio and of no legal effect--Petitioner had to attend integrity committee at Lahore where central office of PCB was housed and all actions taken by Integrity Committee of PCB at Lahore--No action or correspondence initiated against petitioner at Karachi to confer jurisdiction on High Court of Karachi under Art. 199 of Constitution--It had become a common practice to file constitutional petition either at Karachi, Peshawar, Rawalpindi, or Multan to challenge the orders passed by an authority which was situated without jurisdiction of High Court--Such practice was to be deprecated--Karachi High Court had no jurisdiction to entertain the petition which was dismissed. [Pp. 10 & 22] C, D, E, & F

PLD 1997 SC 334, PLD 1965 SC 201, 2004 CLC 565, PLD 1986 Kar. 525, 2005 SCMR 1746, PLD 2009 Kar. 154.

Dr. Muhammad Farogh Naseem, Advocate for Petitioner.

Mr. Taffazul Hussain Rizvi, Advocate for Respondent No. 1.

Date of hearing: 20.10.2011.

Judgment

Imam Bux Baloch, J.--Brief facts of the instant petition are that the Petitioner was selected on merit by the Respondent No. 2 on account of his outclass performance in domestic cricket as a specialist leg spinner and after selection he played for the Country in test cricket, one day internationals and twenty/twenty matches and became the fourth ever highest wicket taker in the test cricket for Pakistan. The Petitioner submitted that due to his best performance the Pakistan won the matches many times for which he has been awarded "man of the match" awards many times. He claimed that due to his performance he was selected to play for the Essex County in the U.K. wherein he also performed meritoriously and his selection in both the squads i.e. Pakistan's Cricket Squad as well as the Essex County was purely on merit. He submitted that despite the fact that after the retirement of Australian Cricketer Shane Warne the petitioner is perhaps the only leg spinner of high standard in the world of cricket, the Respondents are not willing to utilize the Petitioner for Pakistan. It has been further stated that Essex County team players namely Tony Palladino and Mervyn Westfield during a night out, most probably in drunken state, talked about spot fixing, which was undertaken in a Pro 40 Match between Essex County and Durham County of September 2009. The rumour spread around and ultimately came to the notice of the management of the Essex County by way of a ridiculous complaint by one Mr. Tony Palladino. The management reported the matter to the ECB who reported the same to ICC suggesting that the matter should be given to the local Essex Police for further investigation. All the gossip mongering had taken place when the Petitioner was in Pakistan. He further submitted that when the Petitioner returned to UK to play for Essex County in April/May 2010 he was required to attend some interview with British Police, before whom he appeared and the interview was conducted on 14.05.2010, whereafter the Petitioner was required to again attend on 15.09.2010, the U.K. Police technically arrested the Petitioner and released him on police bail. The Petitioner received a letter from the England and Wales Cricket Board dated 27.05.2010 by way of a show cause notice as to why the Petitioner's registration with the Essex Country/ECB should not be suspended. On receipt of such notice the Petitioner alongwith his Lawyer and Consultant met with the Chief Executive of the ECB and explained his position as well as the actions of the authorities and urged that until the Petitioner is found guilty, his registration cannot be suspended or cancelled. The Petitioner's contentions were accepted and no further action was taken by the ECB and kept his registration intact, neither the U.K. Police nor the Essex County Cricket stopped him from playing cricket and he continued to play such county as well as for Pakistan with Australia and England in July and August, played in England, whereafter he was dropped. The Petitioner was registered with the ECB to play for the Essex Cricket County in August 2010. The Petitioner received a letter from the British Police, informing that the he is no longer required for interview scheduled on 15.09.2010 and the entire investigation against him was dropped. The Petitioner returned to Pakistan and was selected for national cricket squad to play the test series against South Africa in Dubai in October 2010 and after attaining three weeks' training camp of PCB held at Ghaddafi Stadium Lahore, just two days before the scheduled departure to Dubai the Petitioner received a telephone call from one of the officials of the PCB informing that he is no longer required to travel to Dubai with the National Squad, upon which the Petitioner made inquiries from Mr. Wasim Bari, the then Chief Executive Officer of PCB who pleaded ignorance and directed him to contact Mr. Zakir. The Petitioner contacted Mr. Zakir Khan, Director Cricket Operations (International), who informed the Petitioner that PCB has some reservations against the Petitioner but did not disclose any one of them. Thereafter, the Petitioner repeatedly requested Mr. Zakir Khan to at least divulge the reasons for dropping the Petitioner from the National Cricket, ultimately via telephone and email Mr. Zakir confirmed to the Petitioner that his clearance was required by PCB from the Essex County, English Cricket Board, the International Cricket Council and the British Police. Upon such requisition the Petitioner approached the concerned Boards and secured two letters, both of which contained no adverse allegations against the Petitioner, the same was informed to the PCB. After providing such information to the PCB the Petitioner presumed that it will essentially end the matter, however, for the reasons best known to the Respondents they did not consider the Petitioner for selection in the ensuing cricket series against South Africa, West Indies and New Zealand so also for the World Cup, all such took place in the year 2010-2011. The Petitioner addressed many letters himself and through his lawyer but no heed was paid. The Petitioner also stated in his Petition that he has attended the meetings of the Integrity Committee of the Respondent No. 2 in December 2010 and January 2011 but till filing of the Petition the fate of the Petitioner has been kept in dark. He further stated that the Respondents are demanding the police tapes, which were in possession of British Police. He further stated that the Petitioner has been referred to be a tainted player. Such demand of the Respondent No. 2 for police tapes is unreasonable.

1. The Respondent No. 2 has filed counter affidavit, and amongst other, raised preliminary objection that the order against the Petitioner was passed by the Pakistan Cricket Board, having its Central Office at Lahore, as such this Court has no jurisdiction to entertain the instant petition. By accepting the selection, unique skills and exceptional performance of the Petitioner over the years, they denied several averments made by the Petitioner in the instant petition. In parawise comments, the Respondent No. 2 submitted that events narrated in paragraphs 8 to 13 of the petition came to its knowledge through different sources and the Petitioner was asked directly to clarify his position before the Integrity Committee of Respondent No. 2 in order to avoid any misunderstanding but he is reluctant till date in providing information/material required from him. It has been further stated that cricket has become a very lucrative sport, which involves glamour and money for all the affiliated individuals including the Players. The International Cricket Council (ICC) is the regulator of cricket worldwide and has taken serious notice of the corruption in cricket and devised strict Rules and Regulations to curtail and assassinate this menace from the sport. The Respondent No. 2 being the member of ICC is bound to follow such rules and regulations and has also taken stern steps against corruption and other issues affecting the integrity of the players for which it has formulated Rules to control the same. After the unfortunate incident took place in 2010 involving three Pakistani Cricketers and attack on Sri Lankan Guest Team in Lahore and the International Teams had already refused to visit Pakistan, in consultation of and approval of ICC the Respondent No. 2 formed an Integrity Committee, whose sole function was to scrutinize the players whose integrity seems to be doubtful. After coming into the knowledge of the Respondent No. 2 the arrest of the Petitioner in UK it became necessary that he may be called by the Integrity Committee in order to examine carefully the circumstances of his arrest and the charges involving integrity. The Petitioner was required by the Integrity Committee to provide certain documents including tapes of his police interview by the British Police but he failed to do so. Respondents No. 2 admitted the selection of Petitioner for the national squad to play test series against South Africa in Dubai and after he was stopped to play he was asked to provide clearance from the Essex County and ICC, in reply to which the Petitioner through his Counsel managed to get a letter from ICC, which did not serve the purpose. After exchange of communication the Respondent No. 2 assured the Petitioner's counsel that the Petitioner will soon be called to discuss the matter. Later on, he was called on 09.12.2010 and after several discussion on the issue he was requisitioned to provide (a) transcript of police interview; (b) copy of the complaint (c) any other police document, (d) details of bank accounts (Pakistan and Abroad) and properties (moveable and immovable) during last three years; (e) details of contracts from the sponsoring party and amount received and amounts received; (f) details of agents and their terms and conditions (g) details of amount paid to the agents for the said sponsorships and other endorsement for the last three years, to which he agreed to provide the same by 13.12.2010 and he was asked to again appear before the Integrity Committee on 15.12.2010. On 13.12.2010 the Petitioner's Counsel sent an email to Respondent No. 2 stating that "those tapes are held by the Police and are only released to Mr. Kaneria's lawyer, no other person or organisation is permitted to have a copy." On 15.12.2010 the Petitioner appeared before the Committee and assured that he will approach his lawyers for the tapes but the Petitioner's counsel extended threats that the name of Respondent No. 2's Adviser had been provided to Essex Police, to which the Petitioner was asked to behave properly and provide the requisite articles. It has further been stated in the parawise comments that England and Wales Cricket Board has confirmed the Respondent No. 2 that Essex County had not issued any clearance certificate and upon such confirmation the Petitioner was again asked to provide clearance certificate, which he failed to on pretext that neither of them (Essex County and ICC) knows what the clearance certificate is and the failure and lame excuses of the Petitioner to bring on record the requisitioned documents and taps only leads to the conclusion that the Petitioner is hiding something. It has been further stated that till date no order has been passed by the Respondent No. 2 against the Petitioner and in the event of any grievance the Petitioner can avail remedy under paragraph 35 of the PCB Constitution.

2. We have heard Mr. Dr. Muhammad Farogh Naseem, learned Counsel for the Petitioner and Mr. Taffazul Hussain Rizvi, learned Counsel for the Respondent No. 2.

3. The learned Counsel for the Respondent No. 2 at the very out set contended that this Court has no jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan to entertain the instant Petition. He submitted that the Respondent No. 2 having its Central Office at Lahore and all the correspondence has taken place at Lahore, the Petitioner time and again has been called by the Respondent No. 2 is out of the jurisdiction of this Court, in such circumstances he submitted that this Court may dismiss the petition of the Petitioner on the sole ground of jurisdiction. He has placed reliance on the following case law:--

4. Sandalbar Enterprises (Pvt.) Limited versus Central Board of Revenue and others (PLD 1997 Supreme Court 334)

5. The Deputy Managing Director, National Bank of Pakistan, Principal Office, Jinnah Avenue, Dacca versus Ataul Huq (PLD 1965 Supreme Court 201)

6. Mst. Shahida Maqsoob versus President of Pakistan through Secretary, Law Justice and Human Rights Division and another (2004 CLC 565)

7. Abdul Ghaffar Lakhani versus Federal Government of Pakistan and 2 others (PLD 1986 Karachi 525)

8. R v Disciplinary Committee of the Jockey Clubm, ex parte Massingberd-Mundy (All England Law Reports Page 2007)

9. Mst. Shahida Maqsood versus President of Pakistan and another (2005 SCMR 1746)

10. M/s. Nadia Ghee Mill (Pvt.) Limited versus The Federation of Pakistan (1992 MLD 2154)

11. M/s. Ibrahim Fibers Limited versus Federation of Pakistan through Secretary/Revenue Division and 3 others (PLD 2009 Karachi 154)

12. Sabir Din versus Government of Pakistan through Secretary, Ministry of Defence and Others (1979 SCMR 555)

13. Election Commission, India versus Saka Venkata Rao (AIR 1953 Supreme Court 210)

14. Lt. Col. Khajoor Singh versus Union of India and another (AIR 1961 Supreme Court 532)

15. On the other hand the learned Counsel for the Petitioner contended that the Respondent No. 2 (PCB) having its branch at Karachi and that the Petitioner is performing throughout Pakistan and outside of Pakistan, all the High Courts of Pakistan have jurisdiction to entertain such petitions against the Pakistan Cricket Board. He contended that the Petitioner has received the letters at Karachi, hence this Court is competent under Article 199 to adjudicate the instant petition and that this Court has territorial jurisdiction. He has placed reliance on the following cases:--

16. A.R. Khan & Sons (Pvt.) Ltd. versus Federation of Pakistan (2010 CLD 1648)

17. Nawabzada Muhammad Shahabuddin versus Chairman Federal Land Commission (1996 CLC 539)

18. Mehboob Ali Malik versus The Province of West Pakistan and another (PLD 1963 (W.P.) Lahore 575.

19. Asghar Hussain versus The Election Commission of Pakistan and others (PLD 1968 Supreme Court 387)

20. Trading Corporation of Pakistan (Pvt.) Limited versus Pakistan Agro Forestry Corporation (Pvt.) Limited (2000 SCMR 1703)

21. Gulzar Ahmad Khan versus The Chief Election Commissioner of Pakistan, Islamabad (PLD 1997 Lahore 643)

22. Itehad Cargo Services, National Hotel, Lahore versus Rana Rafaqat Ali and 3 Others (PLD 2002 Karachi 420)

23. The Collector, Customs and Central Excise, Peshawar and others versus M/s. Rais Khan Limited through Muhammad Hashim (1996 SCMR 83)

24. M/s. Al-Iblagh Limited, Lahore versus The Copyright Board, Karachi and others (1985 SCMR 758)

25. Ghulam Haider Badini and 520 others versus Government of Pakistan through Ministry of Information and Broadcasting, Islamabad and another (1995 CLC 1027).

26. Hafiz Muhammad Siddique Anwar versus Faisalabad Development Authority and others (2007 SCMR 1126)

27. Chaudhry Akbar Ali versus Secretary, Ministry of Defence Rawalpindi and another (1991 SCMR 2114)

28. Secretary, Ministry of Religious Affairs and Minorities and 2 others versus Syed Abdul Majid (1993 SCMR 1171)

29. Flying Kraft Paper Mills (Pvt.) Ltd. versus Central Board of Revenue, Islamabad (1997 SCMR 1874)

30. M/s. Fecto Belarus Tractors Limited Karachi versus Federation of Pakistan through Secretary, Ministry of Industries, Production and Special Initiatives, Islamabad and others (PLD 2006 Karachi 479)

and submitted that this Court is competent to adjudicate the petition as cause of action accrued to the Petitioner at Karachi and so also at Lahore and contended that both the Courts at Karachi and Lahore have jurisdiction to entertain the Petition. He further contended that the case of the Petitioner falls within the category of judicial review of administrative/public action and that the superior Courts having jurisdiction in accordance with the concept of checks and balances, which his integral part of the separation of powers enshrined in the Constitution of Islamic Republic of Pakistan. He further contended that this Court being a constitutional Court is required to see whether the functionaries of the State in connection of the affairs of the Federation, the Provinces or the local authorities have done the things in accordance with the law or actions have been taken otherwise. In such circumstances, the learned Counsel for the Petitioner contended that the basic principles are that in the realm of public actions every thing should be done with complete transparency and the decisions should be taken objectively on the basis of criteria as already has been determined and fixed in the Constitution.

1. Before going through merits and de-merits of the instant petition we have decided to take first preliminary objection raised by the learned Counsel for the Respondent No. 2 regarding the territorial jurisdiction of this Court. Article 199 of the Constitution of Islamic Republic of Pakistan reads as under:--

199. Jurisdiction of High Court.--(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,--

(a) on the application of any aggrieved party make an order--

(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or

(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or

(b) on the application of any person, make an order--

(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or

(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or

(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II.

1. A perusal of the memo. of petition indicates that the thrust of the attack of the Petitioner was directed against the letters of Respondent No. 2 calling upon the Petitioner to appear before the Integrity Committee which is housed at Central Office of PCB, Lahore, all the correspondences were issued to the Petitioner from the Central Office of the Respondent No. 2 which is housed at Lahore. In our view this fact would not be sufficient to oust the jurisdiction of Lahore High Court within whose jurisdiction the main cause of action accrued. Article 199(1)(a)(i)(ii) of the Constitution of Islamic Republic of Pakistan, 1973 (herein after referred to as the Constitution) and that perusal of above clause (a)(i) of the above articles indicates that a High Court has power to issue a direction to a person performing within its territorial jurisdiction, functions in connection with the affairs of the Federation, a province or £ local authority to refrain from doing anything which he is not permitted by law to do or to do anything he is required by law to do. Similarly, under sub-clause (a)(ii) the High Court has powers to declare any act done or proceedings taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority.

2. We have observed that the Central Office of the Respondent No. 2 is located at Lahore and the Petitioner has to attend the Central Office of the Respondent at Lahore for appearing before the Integrity Committee and not before the sub office, which is located at Karachi. We have also observed that all the correspondences have taken place at Lahore. The arguments of the learned Counsel for the Petitioner that the Petitioner is residing at Karachi and he has received all the correspondences at Karachi, hence part of cause of action may be seemed to be taken place at Karachi is without any substance.

3. As regards the contention of the learned Counsel for the Petitioner that cause of action accrued to the Petitioner at Karachi and so also at Lahore in our view Article 199 as it stand does not refer anywhere to the accrual of cause of action and to the jurisdiction of the High Court depending on the place where the cause of action accrues being within its territorial jurisdiction. Provisions under Article 199 are not suits, they provides for extra-ordinary remedies by a special procedure and give powers of correction, to the High Court over person and authorities and these special powers have to be exercised within the limits set for them. The powers under Article 199 vis-a-vis the reach of the High Court's powers have been considered in the decisions of the Honourable Supreme Court in cases of Mst. Shahida Maqsood, Sandalbar Enterprises and Sabir Din (supra) and so also in two cases from Indian jurisdiction. Article 199 of the Constitution and Article 226 of the Indian Constitution are parallel. In case of Lt. Col. Khajoor Singh, the Indian Supreme Court has noted the following observations:--

(16) Article 226 as it stands does not refer anywhere to the accrual of cause of action and to the jurisdiction of the High Court depending on the place where the cause of action accrues being within its territorial jurisdiction. Proceedings under Article 226 are not suits; they provide for extra ordinary remedies by a special procedure and give powers of correction to the High Court over persons and authorities and these special powers have to be exercised within the limits set for them. These two limitations have already been indicated by us above and one of them is that the person or authority concerned must be within the territories over which the High Court exercises jurisdiction. It is possible then to overlook this Constitutional limitation and say that the High Court can issue a writ against a person or authority even though it may not be within its territories simply because the cause of action has arisen within those territories? It seems to us that it would be going in the face of the express provision in Article 226 and doing away within an express limitation contained therein if the concept of cause of action were to be introduced in it. Nor do we think that it is right to say that because Article 300 specifically provides for suits by and against the Government of India, the proceedings under Article 226 are also covered by Article 300. It seems to us that Article 300 which is on the same line as S. 176 of the Government of India Act 1935, dealt with suits as such and proceedings analogous to or consequent upon suits and has no reference to the extraordinary remedies provided by Article 226 of the Constitution. The concept of cause of action cannot in our opinion be introduced in Article 226, for by doing so we shall be doing away with the express provisions contained therein which requires that the person or authority to whom the writ is to be issued should be resident in or located within the territories over which the High Court has jurisdiction. It is true that this may result in some inconvenience to persons residing far away from New Delhi who are aggrieved by some order of the Government of India as such, and that may be a reason for making a suitable constitutional amendment in Article 226. But the argument of inconvenience, in our opinion, cannot affect the plain language of Article 226, nor can the concept of the place of cause of action be introduced into it for that would do away with the two limitations on the powers of the High Court contained in it.

1. Facts of the case of Shahida Maqsood case are that the Petitioner addressed a letter to the Collector Sales Tax and Central Excise Rawalpindi, informing him about the evasion of Excise Duty by Pakistan Telecommunication Company Limited, Headquarters Islamabad, while referring to the balance sheets of the Company for the years 1996-97 to 1998-1999 and made a disclosure of the fact that the PTCL was not paying central excise duty in respect of overseas calls made from Pakistan at the prescribed rate and duty, thereby causing huge loss of revenue. She filed a complaint before the Federal Tax Ombudsman, which was disposed off with the observations that the Collectorate of Sales Tax had already taken action and settled the matter upto June 1998 with the PTCL. Being dissatisfied, the Petitioner filed an appeal against it before the President of Pakistan which was entertained and lastly the Petitioner received an intimation dated 17.10.2001 from the Section Officer, Law, Justice and Human Rights Division that the President vide his order dated 11.10.2001 was pleased to reject the revision of the Petitioner. The Petitioner then filed a writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, before this Court, which was dismissed for want of territorial jurisdiction in which one of us (Gulzar Ahmad, J.), was a member. The Honourable Supreme Court while dealing with the said petition has observed in paragraph 8 as under:--

2. Upon perusal of this precedent, we find that any decision or observation relating to the maintainability of a Constitutional Petition beyond the territorial jurisdiction of a High Court on consideration of the provisions of Articles 98 and 153 of the Constitution, 1962 and Article 226 of the Indian Constitution would neither be relevant nor be of any assistance to the Petitioner in seeking extension of jurisdiction of the High Court beyond it territorial jurisdiction. The language employed in the Articles of the Constitution, which were considered in the reported cases is not on all fours with the language used in Article 199 of the Constitution 1973. Conversely, in Sabir Din v. Government of Pakistan 1979 SCMR 555 it was authoritatively held that as provided in Article 199(1)(a) of the Constitution, the impugned action of the authority making the same should be within the territorial jurisdiction of the High Court for exercise of jurisdiction thereunder. In Sandalbar Enterprise (Pvt.) Ltd. v. Central Board of Revenue PLD 1997 SC 334 while distinguishing Messers Al-Iblagh Limited, Lahore v. The Copyright Board, Karachi 1985 SCMR 758, this Court observed that a perusal of sub clauses (a)(i) of Article 199(1) indicates that a High Court has power to issue a direction to a person performing functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do or to do anything he is required by law to do within its territorial jurisdiction. This view was reaffirmed in Amin Textile Mills (Pvt.) Ltd. v. Islamic Republic of Pakistan PLD 1998 SCMR 2389 and Anoud Power Generation Limited v. Federation of Pakistan PLD 2001 SC 340.

3. In the case of Sandalbar Enterprises, which was also referred in the case of Shahida Maqsood the Honourable Supreme Court has held as under:--

4. The learned Judges of the Division Bench have pointed out the language originally employed in Article 98(2)(a)(i) of 1962 Constitution prior to the incorporation of clause (c) by the First Amendment Act, 1963, for distinguishing the case of Asghar Hussain v. Election Commission of Pakistan etc. PLD 1968 SC 387. The view found favour with the learned Judges of the Division Bench in the case in hand seems to be in consonance with Articles 199(1)(a)(i) and (ii) of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution. A perusal of the above sub clause (a)(i) of the above Articles indicates that a High Court has power to issue a direction to a person performing within its territorial jurisdiction functions in connection with the affairs of the Federation, a Province or a local authority to refrain from doing anything he is not permitted by law to do or to do anything he is required by law to do. Similarly, under sub-clauses (a) (ii) a declaration without lawful authority or of no legal effect can be given by a High Court in respect of any act done or proceeding taken with its territorial jurisdiction by a person performing functions in connection with the affairs of the Federation, a Province or a local authority.

5. The Petitioners' prayer was for a direction to the Customs Authorities at Karachi not to levy the regulatory duty. The above relief could have been granted by the High Court of Sindh within whose jurisdiction the person performing the affairs of the Federation is discharging his functions.

6. We may observe that it has become a common practice to file a writ petition either at Peshawar, or Lahore, or Rawalpindi or Multan etc. to challenge the order of assessment passed at Karachi by adding a ground for impugning the notification under which a particular levy is imposed. This practice is to be depreciated. The Court is to see, what is the dominant object of filing of the writ petition. In the present case, the dominant object was not to pay the regulatory duty assessed by a Customs official at Karachi. We are, therefore, not inclined to grant leave. Leave is refused.

7. In the case of Sabir Din, the Honourable Supreme Court has observed as under:--

"In this case the Disciplinary Committee of the respondents not only afforded more than adequate opportunity to the Appellant, as he was not only heard on two occasions to clear himself, but prior thereto was served with a proper charge sheet. In these circumstances, therefore, it is idle on the part of the appellant to contend that there was no material before the Committee to hold him guilty for his complicity in the issuance of the forged notification. We are, therefore, satisfied that the impugned judgment of the High Court is unexceptionable."

1. In the case of Deputy Managing Director, National Bank of Pakistan and others versus Ataul Huq, following observations were made by the Honourable Supreme Court:--

"The conclusion that the National Bank of Pakistan is a "local authority" in East Pakistan is one with which, speaking with respect, we find it entirely impossible to agree. The expression "local authority" has been used in statutory phraseology in the Indian sub-continent for a great many years, and is always understood to mean an authority which is entrusted with the administration of a local fund. Local authorities are bodies exercising within limited territories included a Province, powers which belong to the Province, but which by statute are delegated to the local authority. A local authority is ordinarily charged with functions of self-Government, and has power of making bye-laws, of imposing taxation, and of maintaining and administering a local fund. In fact, it is evidence from the order in which Article 98 mentions the three tiers of authorities that these are in a descending order of importance, first i.e., the Center, being the most important, a Province being next in order of importance, and a local authority being the last in that order. It is clearly impossible, in view of this clear distinction to treat the Center as being a local authority' at whichever place in Pakistan, it conducts its affairs. The National Bank of Pakistan was set up by a Central Ordinance, in order "to extend banking facilities generally and also to provide credit for agriculture and agricultural produce. It bears no resemblance to the recognized conception of alocal authority'. The further facts that the Ordinance gives power to the Central Government to appoint the Auditors, as well as the President of the Central Board, are simply sufficient to show that the National Bank of Pakistan is a body entrusted with the conduct of certain affairs appertaining to the Center. It is a body which is constituted by Section 3 of the Ordinance to be "a body corporate having perpetual succession: which may sue and shall be sued in the name of the National Bank of Pakistan. There seems no doubt whatsoever that after the Election Appeal Committee became functuous officio through pronouncing its decisions in the two appeals which had been referred to it, the record of its proceedings became records of the Bank and it is clear also that what was sought in substance in the present case was a writ of certiorari for the certification of the said record to that Court so that investigation might be made as to he propriety and regularity of the proceedings of the Committee with a view to determine whether the final decision, being in the nature of a quasi judicial decision, should be maintained. Such a writ could only issue to the National Bank of Pakistan at its head office in Karachi where also the records in question were held, and it seems clear enough from the wording of the relevant provision in Article 98 that as Karachi is outside the territorial jurisdiction of the High Court at Dacca, the writ sought could not have issued from that High Court. As has been observed already, it appears that the respondents to the petition for a writ were carefully selected and named in such a way as prima facie, to bring the action within the territorial jurisdiction of the High Court, the point that the election in question was for electing two Directors from among the Dacca registered shareholders is not relevant, since relief was sought in respect of record kept at Karachi, in the custody of the National Bank and what was at stake was a seat on the Central Board of that Bank, which sits at Karachi. The argument that a part of the enquiry was held at Dacca is equally insubstantial, for the Committee was an agency of the Central Organization of the Bank and it seems quite clear that the discovery made by the Election Appeal Committee (we do not express any opinion as to whether their conclusion was correct or not) regarding the action of the representative of the East Pakistan Branch of the Pakistan Red Cross Society in casting the votes of the Society for a person, who had not been nominated for the purpose by the Society itself, was made at one or other of the later meeting held in Karachi, where the recount was taken.

On these observations, we are satisfied that the claim of jurisdiction in the High Court of East Pakistan to issue a writ to quash the order of the Election Appeal Committee is not soundly based, and we accordingly allow this appeal and direct that the writ be recalled, but in the circumstances of the case, we leave the parties to bear their own costs."

1. Now we are adverting to the contentions raised by the learned Counsel for the Petitioner. The learned Counsel for the Petitioner has relied upon the case of LPG Association of Pakistan, authored by his lordship Justice Mian Saqib Nisar, while sitting on Single Bench and contented that the learned Single Bench of Lahore High Court after considering the case law cited by the learned Counsel for the Respondent No. 2 has come to the conclusion that the Lahore High Court having jurisdiction to entertain a writ against the Federation of Pakistan. The facts of the L.P.G. case are that the writ petition was filed to challenge the Competition Ordinance 2007 on the ground that the said Ordinance is no longer in existence as on account of Article 89 of the Constitution of Islamic Republic of Pakistan, 1973 it stands repealed four months after its promulgation i.e. 02.10.2007; the provisions of the Ordinance especially 31(a), 41 and 42 thereof are ultra vires of the Constitution, void ab initio and of no legal effect. The writ petition was admitted for regular hearing, when on 27.05.2009 an application was made on behalf of the Applicant/Respondents Nos. 3, 5 to 8 under Order VII Rule 10 CPC asking for the return of the writ petition on the ground that under Article 199(1)(a) of the Constitution, the Lahore High Court does not have the jurisdiction to entertain it for the reasons that all the Respondents except Respondent No. 9, a proforma Respondent, function at Islamabad, the impugned notice has also been issued there, and therefore, it is the Islamabad High Court, which alone has the territorial jurisdiction in the matter. The learned Single Bench of Lahore High Court after considering of the fact dismissed such application and lastly has observed as under:--

"It is obvious from the above that the show cause notice in general and because of its peculiar nature in this case shall seriously affect the person to whom it is issued and the final order based thereupon can have far reaching adverse effects, therefore, the place where it is sent, communicated, served and received has the relevance for the purposes of the concurrent jurisdiction. In the above context, it is pertinent to specify the word "affect" which according to Black's Law Dictionary, Deluxe Sixth Edition, means "to act upon; influence; change; enlarge or abridge; often used in the sense of acting injuriously upon persons and things. To lay hold of or attack (as a disease does); to act; or produce an effect or result upon; to impress or influence (the mind or feelings); to touch." I am of the view that almost all the major traits of the meaning shall apply to the petitioner and both the Islamabad and Lahore High Courts have the concurrent jurisdiction in the matter, therefore, petition at Lahore has been competently and validly filed with the consequences that CM. No. 2202 of 2009 has no merits and is hereby dismissed."

1. The learned Counsel for the Petitioner has invited our attention to the case of the M/s. Fecto Belarus Tractors in which a Division Bench of this Court has observed as under:--

"So far, jurisdiction under which the present petitions are being heard, it falls within the category of judicial review of administrative/public action. In exercise of such jurisdiction the Court is required to see whether the public functionaries have acted in accordance with the law. This jurisdiction of the Courts and particularly the superior Courts is in accordance with the concept of checks and balances which is integral part of the concept of separation of powers enshrined in the Constitution of Islamic Republic of Pakistan. In exercise of this jurisdiction, of judicial review of administrative/public action, the Court is required to see whether the functionaries of the State in connection with the affairs of Federation, province or local authorities have done the things in accordance with the law or actions have been taken otherwise than in due course of law. The basic principles in this behalf are that in the realm of public actions every thing should be done with complete transparency and the decision should be taken objectively and on the basis of criteria already determined and fixed. There is no room for subjectivity or the actions which smack of arbitrariness, favourtism or discrimination. If the yardsticks are not determined prior to the taking of decisions then the decisions are bound to be subjective and non-transparent, which are not the hallmarks of good governance. In a democratic set up the complete transparency and accessibility to the policy decision in pursuance of right of information are strictly observed. In the present case, we find that first, the modified decision of the ECC was kept secret to the extent that not only the persons from whom proposals were invited were not aware of the modified decision but the relevant officials of the Ministry of Industries, Production and Special Initiatives were also not aware of the correct position with the result that the advertisements were wrongly published giving condition of eligibility which was no more existing and omitting the eligibility condition which was holding the field. Secondly, the necessary detailed scheme was not worked out as highlighted above, with the result that the situation was uncertain and fluid which led to the subjective decisions which his reflected from the fact that some of the companies who had already existing manufacturing units were treated to be new conditions also although in the decision of ECC produced before this Court no such decision was taken by the ECC. Fourthly, the C.B.R. issues exemption notification to import of CKD condition also which is beyond the purview of decision of the ECC. Fifthly, the purpose of the scheme finds place in the advertisement only and no detailed scheme has been devised as to how this benefit shall reach the farmers. No safeguards have been provided in the absence of detailed modalities which were to be worked out by the Committee of the senior officers."

1. The facts of the case of Flying Kraft Paper Mills (Pvt.) Ltd., which was relied upon by the learned Counsel for the Petitioner are that at the first time the learned Deputy Attorney General raised question of maintainability of proceedings on the ground that the impugned order was passed by the Collector of Customs and Central Excise, functioning at Peshawar. It is noted that the proceedings came before the Honourable Supreme Court on the third round where the maintainability of the appeal was taken by the learned Deputy Attorney General and the Honourable Supreme Court was of the view that the learned Deputy Attorney General has not raised such preliminary objection during two rounds of the litigation upto the Honourable Supreme Court, hence the contention of the learned Deputy Attorney General were not considered. We have gone through the instant case, case law cited and we are of the opinion that the facts and circumstances of this case are distinguishable from the facts and circumstances of the instant case.

2. The facts of the case of Secretary, Ministry of Religious Affairs and Minorities and others, relied upon by the learned Counsel for the Petitioner are that a plot of land which was situated in Deh Thano, Tapo Malir, Karachi, according to the Petitioner belonging to the Evacuee Trust Property Board and the said property was declared by the Evacuee Trust Property Board to be the property of the Trust and its transfer to private person was illegal and ordered for the eviction of the Respondents and writ petition was filed in this Court which was dismissed being time barred. Thereafter, the Petitioner filed an application under Section 12(2) CPC claiming that the High Court has no jurisdiction in the matter as the jurisdiction as the Chairman, Evacuee Trust Property Board, Petitioner No. 2 had passed the order under MLR 57 and jurisdiction of the High Court was barred under Article 15 of the Original Constitution Order, 1981. This Court dismissed such application which was impugned in the Honourable Supreme Court where the Honourable Supreme Court has observed as under:--

"It is true that the jurisdiction of the High Court was barred under the Provincial Constitution Order, 1981 to look into the validity of the order passed under the Martial Law Regulation, but in view of the law laid down in Federation of Pakistan v. Ghulam Mustafa Khan PLD 1989 SC 26, if any order passed by any authority under the Martial Law Regulation is void, without jurisdiction, mala fide or coram non judice, the superior Courts have the jurisdiction to entertain Constitutional petition. As pointed out earlier the application of MLR 57 depends upon certain considerations, conditions and investigations. Unless all the conditions specified in Para 1 of MLR 57 have been complied with or correctly been determined the provisions of MLR 57 cannot be invoked. The moot point challenged by respondent is that the property is a Sikni land and not an agricultural land. Secondly, the property was validly transferred to Abdur Rashid by the Settlement Authorities and since then it has changed hands which was purchased by bona fide purchasers for valuable consideration without any notice or knowledge of any illegality or fraud in the transfer of the property by the Settlement Department."

We have considered the facts of the above case, which in our view are distinguishable from the facts and circumstances of the instant petition.

1. We have also examined the facts and circumstances of the case of Chaudhry Akbar Ali (supra) but we found ourselves that the facts are different from the facts of the instant petition.

2. We have examined the facts of the case of Hafiz Muhammad Siddique Anwar, which the learned Counsel for the Petitioner has relied upon and we find that the facts of the said case are totally different from the facts and circumstances of the instant petition.

3. We have also examined the case of Ghulam Haider Badini and others, the facts of which are that Petitioners were employees of the Pakistan Television Corporation Limited and working in its various sections at Quetta TV Center and are liable to be posted/transferred at all the TV Centres /Headquarters and Boosters Set up by P.T.V. The P.T.V. is a corporation performing functions of the Federation and is fully controlled by the Government. The Corporation is authorized to levy and collect fee for the use of Television in pursuance of Television Receiving Apparatus (Possession and Licensing) Rules, 1970. It is further asserted that the P.T.V. is charging Rs. 250/- per annum per television. The affairs of the Corporation are being managed by the Government of Pakistan, through Ministry of Information and Broadcasting, Islamabad through Chairman and Managing Director, respectively. The employees at present posted at Quetta T.V. Center and are under their administrative control. It is further averred that by means of an office Order No. HP/103/10683, dated 11.08.1988, issued under the instruction of Ministry of Information and Broadcasting, a Special Allowance was granted at the rate of 20% of the progressive basic pay to the following categories of employees:--

(i) P.T.V. Headquarters, Islamabad.

(ii) Television Center, Islamabad.

(iii) P.T.V. Academy, Islamabad.

However, the Federal Government vide its order dated 18.12.1988 decided that 20% Secretariat Allowance would not be admissible to the new incumbent to the Secretariat of P.T.V., Islamabad. It is asserted that while same allowance had been granted to the employees performing their duties at Lahore, Peshawar, Quetta. Being aggrieved the Petitioners have challenged such order. The learned Single Bench of Balochistan High Court has observed:

1. We have carefully examined the respective contentions as adduced on behalf of the parties in the light of relevant provisions of law and record made available. Let we make it clear at the very out set that the objection regarding jurisdiction of this Court as conferred upon it under Article 199 of the Constitution seems to be devoid of merits for the simple reasons that the Constitutional jurisdiction of this Court cannot be ousted merely on the ground that Pakistan Television Corporation is located at Islamabad and does not fall within the territorial limits of this Court. The relevant portion of Article 199 of the Constitution is reproduced hereunder for ready reference:--

"Jurisdiction of High Court.--(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,--

(a) on the application of any aggrieved party make an order--

(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or

(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; "Jurisdiction of High Court.--

The language as used is simple, plain and free from any ambiguity hence does not require any academic exercise for a scholarly interpretation. The above reproduced portion of Article 199 of the Constitution would make it abundant clear that writ can be issued against any person, who is performing in the Province any function irrespective of its nature relating to the affairs of the Federation, a Province or a Local Authority within the territorial jurisdiction of a High Court. Pakistan Television Corporation is also performing its functions in Balochistan which is an integral part of its Net Work and license fee is also being collected from Balochistan in pursuance of the Television receiving Apparatus (Possession and Licensing) Rules, 1970. The Officers of Pakistan Television Corporation are being posted and transferred inside and Outside of Balochistan by the Corporation in exercise of authority vested in it under the relevant rules, the Programmes which are being televised from Quetta Television Center are subject to the scrutiny and approval of Pakistan Television Corporation at Islamabad, as such by no stretch of imagination it can be imagined that since the Headquarters of Pakistan Television Corporation is located at Islamabad, therefore, it does not come within the purview of Constitutional jurisdiction of this Court. We would reluctant to presume such an intention as expressed by Mr. Mumtaz Ali Mirza, Deputy Attorney General on the part of the legislature unless the conclusion be inevitable or irresistible on the construction employed, which is not the case here. The jurisdiction being Constitutional cannot be taken away even by any law or enactment and where the law purports to usurp such jurisdiction then it would certainly be ineffective to that extent and subject to interpretation and scrutiny of High Court. In this regard, we are, fortified by the dictum laid down in the following authorities:--

1. Federation of Pakistan v. Saeed Ahmed (PLD 1974 SC 151)

2. Mehardad v. Settlement and Rehabilitation Commissioner (PLD 1974 SC 193)

Another important aspect of the matter is that the provision as contemplated under Article 199 of the Constitution are read together and as such the words "without lawful authority" as used in clause (ii)(a)(1) of Article 199 of the Constitution are suggestive of the fact that Article 199 of the Constitution is applicable to all persons/authorities, Tribunals, Corporations and Autonomous and Semi-Autonomous bodies subject to Constitution and thus the Constitutional jurisdiction cannot be limited within the boundaries of a Province."

1. The case of Al-Iblagh Limited, Lahore was considered by the Honourable Supreme Court of Pakistan in the case of Mst. Shahida Maqsood's case and we refrain ourselves to comment upon it but we are of the view that the facts of the said case are distinguishable from the facts and circumstances of the instant petition.

2. We have give our earnest considerations to the submissions of the learned Counsel for the parties and that the law laid down regarding the jurisdiction of this Court under Article 199(1)(a)(i)(ii) of the Constitution of Islamic Republic of Pakistan, 1973, we have to see what is the dominant object of filing this constitutional petition is to declare that failure of the Respondents to consider the Petitioner for selection into the national cricket team is completely without jurisdiction, mala fide, illegal, void ab initio and of no legal effect. In Black's Law Dictionary "dominant jurisdiction principle" has been defined as under:--

"dominant jurisdiction principle.--The rule that the Court in which a case is first filed maintains the suit, to the exclusion of all other Courts that would also have jurisdiction."

1. We have already dilated upon the jurisdiction conferred upon this Court under Article 199(1)(a)(i)(ii) and have observed that the Petitioner has to attend Integrity Committee at Lahore where the Central Office of the Respondent No. 2 is housed and all the actions taken by the Integrity Committee of Respondent No. 2 at Lahore. We have also observed that no action or correspondence initiated against the Petitioner at Karachi to confer the jurisdiction on this Court under Article 199 of the Constitution of Pakistan. We have also observed that it has become a common practice to file Constitutional Petitions either at Karachi, Peshawar, Rawalpindi or Multan to challenge the orders passed by an authority which is situated without the jurisdiction of such High Court. We are also of the view that such practice is to be deprecated.

2. For the foregoing reasons we are of the view that this Court has no jurisdiction to entertain the instant petition, which is dismissed as such alongwith listed applications.

(R.A.) Petition dismissed.

PLJ 2012 Karachi 23 (DB) [Sukkur Bench]

Present: Shahid Anwar Bajwa & Muhammad Ali Mazhar, JJ.

ABDUL RAZZAK--Petitioner

versus

LAL BUX and another--Respondents

C.P. No. D-480 of 2006, decided on 21.9.2011.

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

----S. 47--Execution application--Parameter and premise of jurisdiction in execution Court--Adverse declaration--Intent and purposes the controversy had attained finality--Revision application was allowed and execution application was dismissed--No lawful justification--All questions arising between the parties of the suit in which, decree was passed relating to execution, discharge or satisfaction of decree, would be determined by Court executing the decree and not by a separate suit--No cavil that executing Court was allowed the execution application with proper application of judicial mind and passed the order within parameter and premise of jurisdiction so vested in executing Court. [P. 28] A

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

----S. 47--Function of executing Court to execute decree--Jurisdiction--It is clear beyond any shadow that S. 47 of CPC did not bar the remedy but only regulates forum for enforcement of rights relating to execution, discharge or satisfaction of the decree--Executing Court was only empowered to exercise its jurisdiction with execution, discharge or satisfaction of an existing decree between the same parties--Function of executing Court is to execute the decree--Neither it can go behind it nor can reopen matter which had been heard and decided in proceedings in which decree had been passed. [P. 28] B

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

----S. 115--Civil revision--Jurisdiction--Revisional Court--Conditions and eventualities--Validity--Sub-ordinate Court had exercised jurisdiction not vested in it or had failed to exercise the jurisdiction so vested or had acted in exercise of its jurisdiction illegally or with material irregularity. [P. 29] C

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

----S. 115--Civil revision--Applicability of revision--If Court had jurisdiction to decide one way or other, and erroneous conclusion of law and fact can be corrected in appeal, but revision will not be competent. [P. 29] D

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

----S. 115--Civil revision--Jurisdiction--Illegal assumption--Affect the jurisdiction of Court--Validity--S. 115, CPC applied only to cases involving illegal assumption, non-exercise or irregular exercise of jurisdiction--It cannot be invoked against conclusion of law or fact which did not in any way affect the jurisdiction of Court. [P. 29] E

Revision and Appeal--

----Scope of--Revision and appeal are two different fields--Appeal is continuation of original suit and appellate Court has got ample power to thrash out entire evidence and scrutinize the available documents--Scope of revision is limited to some illegality, material irregularity or jurisdiction defect in the judgment. [P. 29] F

2009 SCMR 589, ref.

Constitutional Jurisdiction--

----High Court in its constitutional jurisdiction does not exercise its powers to interfere with revisional order but such rule is not absolute, but subject to exceptions. [P. 29] G

Dispensation of Justice--

----Gross mis-reading or non-reading of evidence--Impugned order if based on gross mis-reading or non-reading of evidence and reasons given are absolutely perverse, not supported by law or evidence, such order cannot be merely termed as erroneous on facts or law rather such order would be an order without lawful authority--Judicial forum in dispensation of justice had no authority to decide the rights of the parties according to its whims, caprice or imagination. [P. 29] H

Administration of Justice--

----Essential and primary obligation of doing justice--Court of law are supposed and duty bound to read, consider and conceive the evidence of the case available on record accurately--Court had to apply the correct and to justly administer the rights and remedies of citizens which duty is fundamental to and enshrined in concept of administration of justice. [P. 30] I

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

----Ss. 47 & 115--Constitution of Pakistan, 1973, Art. 199--Civil revision--Civil suit was decreed--Judgment and decree was attained finality--Revision was allowed and execution application was dismissed--Challenge to--Validity--If respondent felt aggrieved by judgment and decree passed in suit and due to some tangible reasons or bona-fide grounds, he was prevented or precluded to file appeal, respondent might seek appropriate remedy in accordance with law--Petition was disposed off. [P. 30] J

Mr. Ghulam Shabbir Dayo, Advocate for Petitioner.

Respondent in person.

Date of hearing: 10.8.2011.

Order

Muhammad Ali Mazhar, J.--This constitutional petition has been preferred against the order dated 11.05.2006, passed by the IIIrd learned Additional District Judge, Khairpur in Civil Revision Application No. 09 of 2002, whereby the order dated 13.06.2002 passed by the learned Civil Judge Kotdiji in Execution Application No. 08 of 2002 was set aside and the execution application was dismissed.

1. Succinctly, the facts as alleged in the memo. of petition are that Sikni Plot CS.No. 30 is owned by the petitioner while another plot C.S.No. 26 is being used as passage leads to National Highway. It is further contended that the plot C.S.No. 31 was purchased by the respondent, which is adjacent to plot C.S.No. 26. In the year 1972 petitioner's ancestor Haji Muhammad Siddique had filed a Civil Suit No. 50/72 against the respondent and some other persons for declaration and injunction with the prayer to eject the occupant from illegal possession and also restrained them from constructing the wall over the plot or to close the passage. The aforesaid suit was decreed vide judgment dated 31.10.1974 with the observation that the parties have admitted that the plot C.S.No. 26 belongs to Municipal Authority Khairpur.

2. Being aggrieved by the aforesaid judgment and decree, the ancestors of the present respondent preferred a Civil Appeal No. 15/76, but it was rejected vide order dated 21.6.1977 on the ground that Sindh public property (Removal of Encroachment) Act, 1975 has been promulgated, therefore, the appeal was abated with the directions that the aggrieved party may seek their remedy under Sections 12 & 13 of the said Act in which a Tribunal was also constituted. After rejection of appeal, the ancestors of the respondent did not challenge the order before any forum and the matter attained finality. Record further shows that the present petitioner along with three other petitioners had filed a F.C.S.No. 244 of 1986 for declaration, damages and permanent injunction against one Abdul Majeed, Municipal Committee and National Highway Department, in which the order dated 21.02.1985, passed by the Defendant No. 2 in favour of the Defendant No. 3 was challenged along with the relief of permanent injunction. This suit was dismissed vide judgment dated 03.03.1991 on the ground that the plaintiff was not owner of Plot Nos. 27, 38 and 30, therefore, he could not claim the right of easement over the government plot. This judgment was assailed by the petitioner by way of Civil Appeal No. 33 of 1991, which was dismissed on 14.09.1995 with the observation that the petitioner had filed the suit in the wrong Court, therefore, the suit could not be decreed but this judgment and decree will not take away their rights of easement granted to them by the decree of Civil Judge in Civil Suit No. 50/72. Against this concurrent findings, the same petitioner had filed a Civil Revision No. 65/1995 in this Court but did not find favour and vide order dated 10.12.1997, the revision application was also dismissed. The petitioner ultimately filed a Civil Petition for leave to Appeal No. 27-K/1998 in the honorable Supreme Court, which was also dismissed vide order dated 06.07.1998 with the observation that the judgment and decree in favour of petitioner/plaintiff in Suit No. 50/72, however, did not justify grant of relief claimed in Suit No. 244/1986, which was rightly declined by the Courts below. Since the right acquired by the petitioner under the decree of Civil Court in Suit No. 50/72 has been fully reserved/protected while dismissing their suit No. 244/1986, the learned single Judge rightly declined to interfere with the judgment and decree passed by the trial Court which was affirmed by the first appellate Court.

3. It is further contended that in the year 1986, the respondent again attempted to close the passage leading from Plot C.S. No. 26, therefore, the petitioner filed a Suit No. 08/1997 (Old No. 228/1986), for permanent injunction in the Court of Civil Judge, Kotdiji. The defendant Lal Bux had filed written statement and vide judgment dated 11.12.1997, the suit was decreed and as a result thereof, the defendant was directed to remove the wall constructed by him on Plot C.S.No. 26 within thirty days.

4. The learned counsel for the petitioner argued that the Civil Suit No. 08/1997 was decreed but no appeal was filed by the respondent, assailing the aforesaid judgment and decree in any Court of law, therefore, the aforesaid judgment and decree had attained finality. Consequently, the petitioner had filed execution application for satisfaction of decree. Notice was issued and the judgment debtor/respondent had also filed his objections, however, vide order dated 13.06.2002, the execution application was allowed by the trial Court with the direction to the judgment debtor to remove the wall constructed by him within thirty days. It was further averred by the learned counsel that after allowing the execution application, the executing Court issued a writ for the removal of the wall and in view of that, wall was removed and decree was fully satisfied. Against the aforementioned order, the respondent filed a Civil Revision No. 9/2002 in the Court of IIIrd Additional District Judge, Khairpur and vide order dated 11.05.2006, the learned appellate Court allowed the revision application on the ground that the cases between the parties went up to the High Court and Supreme Court and the matter was decided in favour of the applicant and it was held that Abdul Razzak and others are in illegal possession. It was further observed in the impugned order that in view of the orders passed by the High Court on 10.12.1997 and the honorable Supreme Court on 06.07.1998, the respondent Abdul Razzak has been declared encroacher, therefore, the execution was not maintainable, consequently the revision application was allowed and the execution application was dismissed. The learned counsel further contended that after satisfaction of decree, there was no lawful justification to allow the revision and dismiss the execution application which was already allowed and disposed of and the disputed wall was also removed. He further contended that in the year 1986 the suit was filed only for restraining the respondent not to construct the wall and it was not for any declaration as to the title but the suit for permanent injunction was filed in order to safeguard the easement rights already protected vide judgment dated 14.09.1995 passed in the Civil Appeal No. 33 of 1991 which right was further affirmed by the honorable Supreme Court in its order dated 06.07.1998. Since in the year 1986, the respondent again attempted to raise the wall, therefore, keeping in view the exigency in the matter, fresh suit for permanent injunction was filed.

5. Conversely, the respondent Lal Bux appeared in person and he simply supported the impugned order and argued that the present petitioner has no right and authority either to file the suit for permanent injunction or to move execution application for the satisfaction of decree. He however, did not controvert the right of easement granted to the petitioner Haji Muhammad Siddique, consequent to Suit No. 50/1972.

6. After hearing the pros and cons, we have reached to the irresistible conclusion that the present petitioner had filed a Civil Suit No. 08/1997 for permanent injunction with the prayer that the respondent Lal Bux be restrained from raising construction over the Plot No.

7. The respondent/defendant had filed his written statement and after recording evidence, the suit was decreed. Nothing available on the record to show that the Respondent No. 1 ever challenged or assailed the aforesaid judgment and decree before any Court of law. So in our view for all intent and purposes, the controversy has attained finality. Consequentially, the petitioner had filed execution application, which was allowed after hearing objections of the respondent and writ was also issued for removing the wall constructed on Plot No. 26 and according to the learned counsel, the decree was fully satisfied.

8. In the impugned order, the only reason for dismissal of execution application is nothing but the orders passed by this Court on 10.12.1997 in Civil Revision No. 65/1995 and the order passed by the honorable Supreme Court on 6.7.1998 in CPLA No. 27-K/1998 and the learned appellate Court went on to hold in the impugned order that the High Court and the honorable Supreme Court in the aforesaid orders have declared the respondent as encroacher.

9. We have conscientiously examined both the judgments but unable to find out any adverse declaration by which the petitioner was allegedly declared encroacher. In fact, the honorable Supreme Court has safeguarded and protected the easement rights granted earlier in the favour of petitioner's ancestors in Suit No. 50/1972. Had the respondent aggrieved by the judgment and decree which was validly passed by a competent Court of law on merits and after providing ample opportunity to the parties, he should have preferred an appeal assailing the judgment and decree which he failed to do so and the judgment and decree attained finality. The objections filed to the execution application were ought to be considered keeping in view Section 47 of the CPC, which provides that all questions arising between the parties of the suit in which, the decree was passed relating to execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. There is no cavil that the executing Court in this case allowed the execution application with proper application of judicial mind and passed the order within the parameter and premise of jurisdiction so vested in an executing Court.

10. It is clear beyond any shadow of doubt that Section 47 of CPC does not bar the remedy but only regulates forum for enforcement of rights relating to the execution, discharge or satisfaction of the decree. The executing Court is only empowered to exercise its jurisdiction on the matters concerned with the execution, discharge or satisfaction of an existing decree between the same parties, the function of the executing Court is to execute the decree as it is. Neither it can go behind it not can reopen matters which have been heard and decided in the proceedings in which, the decree has been passed.

11. At this juncture, we would like to refer to a judgment of honorable Supreme Court reported in 2007 SCMR 818 (Muhammad Tariq Khan vs. Khuwaja Muhammad Javad Asami), in which the settled law was reiterated that the decree is executable in the light of the terms and conditions mentioned in the decree and the executing Court has to confine its deliberation within the purview of the decree and not beyond that. It is the duty and obligations of the Court to dispose of the objections filed by the objectors in the light of the terms and conditions of decree. In another judgment reported in 2003 SCMR 1202 (Allah Ditta vs. Ahmed. Ali Shah), the honorable Supreme Court has held that this is an established rule that the executing Court can not extend its jurisdiction to go behind the decree and question of its correctness except in a case in which decree is silent that what property was subject matter of the execution. The executing Court can look into the judgment in order to find out that property brought for the satisfaction of decree actually belonged to the judgment debtors but can not entertain an objections relating to the dispute of title and its determination which may change and alter the terms of decree.

12. The learned appellate Court passed the impugned order in a manner and approach as if he was hearing an appeal. It is palpably manifesting from the impugned order that the appellate Court has decided the issues and the rights of the parties beyond the scope of the terms of the decree passed by the trial Court. The outcome and end result of the impugned order tantamount to set aside the judgment and decree for which an appropriate remedy was available to the respondent/J.D to file an appeal which was his statutory right but this vested right was not exercised or availed and instead of challenging the validity of judgment and decree, the respondent/JD only filed revision application against the order of the executing Court which does not seem to be rational or appropriate remedy.

13. The powers conferred upon the revisional Court under Section 115 of the CPC are confined to the conditions and eventualities where it appears that the sub-ordinate Court has exercised jurisdiction not vested in it or has failed to exercise the jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity. If the Court has jurisdiction it has jurisdiction to decide one way or the other, and erroneous conclusion of law and fact can be corrected in appeal, but revision will not be competent. Section 115 CPC applied only to cases involving illegal assumption, non-exercise or the irregular exercise of jurisdiction. It can not be invoked against conclusion of law or fact which do not in any way affect the jurisdiction of Court. Revision and appeal are two different fields. Appeal is the continuation of original suit and the appellate Court has got ample power to thrash out the entire evidence and scrutinize the available documents in the light of arguments advanced by the respective parties. On the other hand, scope of revision is limited to some illegality, material irregularity or jurisdictional defect in the impugned judgment. A bare perusal of Section 115, C.P.C., clearly shows that scope of revision is limited. Reference can be made to 2009 SCMR 589, (Gul Rehman vs. Gul Nawaz Khan).

14. Normally, this Court in its constitutional jurisdiction does not exercise its powers to interfere with revisional order but such rule is not absolute, but subject to exceptions. Impugned order, if based on gross misreading or non-reading of evidence and the reasons given are absolutely perverse, not supported by law or evidence or the material available on record, such order cannot be merely termed as erroneous on facts or law rather such order shall be an order without lawful authority. Judicial forum in the dispensation of justice has no authority to decide the rights of the parties according to its whims, caprice or imagination. In performing the essential and primary obligation of doing justice, the Courts of law are supposed and duty bound to read, consider and conceive the evidence of the case, available on the record accurately. Court has to apply the correct law and to justly administer the rights and the remedies of the citizens which duty is fundamental to and enshrined in the concept of the administration of justice.

15. The upshot of this discussion is that this Constitutional Petition is admitted to regular hearing and allowed. Consequently, the impugned order passed by the IIIrd learned Additional District and Session Judge, Khairpur on 11.5.2006 is set aside. However, if the respondent feels aggrieved by the judgment and decree passed in Suit No. 8/1997 and due to some tangible reasons or bona fide grounds, he was prevented or precluded to file appeal, the respondent may seek appropriate remedy in accordance with law. The petition is disposed off accordingly along with listed application.

(R.A.) Petition disposed off.

PLJ 2012 Karachi 30 (DB) [Sukkar Bench]

Present: Shahid Anwar Bajwa & Muhammad Ali Mazhar, JJ.

ALI ANWAR and 10 others--Petitioners

versus

GOVERNMENT OF SINDH through Secretary Revenue Department, Hyderabad and 34 others--Respondents

C.P. No. D-1284 of 2009, decided on 6.9.2011.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Land in Deh Berth and Deh Junas under Scheme of Grow More Food was granted--Govt. announced policy to grant land on tube-well scheme at rate of highest auction price--Order passed by member (Reforms Wings and Special Cell) Board of Revenue was challenged--Being not aggrieved party was not entitled to challenge the order of revenue department--Land could not be granted as he had failed to pay initial deposit--In compliance of order legal heirs of deceased had deposited the amount--Question--Whether deceased (M.A.) had any entitlement and was an aggrieved party--Clarification was not made in petition or affidavit--Validity--Most crucial aspect had not been considered by revenue department while passing the impugned order but the matter was decided in slipshod manner without adverting to relevant and critical fact of the case relating to rights and entitlement to the land in-question--High Court in exercise of Constitutional jurisdiction cannot sit as a Court of appeal but where order passed by Court, suffers from any jurisdictional defect or violates any provision of law, invocation of constitutional jurisdiction would be justified and if the error is so glaring and patent that it might not be acceptable that in such an eventuality High Courts had interfered when finding was based on in sufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of fact, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where unreasonable view on evidence had been taken--Case was remanded to M.B.R. to decide afresh. [Pp. 37, 39 & 40] A & F

Constitutional Petition--

----Attendance of the petitioner was mentioned in order alongwith his Advocate but on contrary the petitioners vehemently argued that neither any petitioner was present nor their Advocate at time of passing of the order for the reason that the petitioners were not allowed to join the proceedings, therefore, they were totally prevented and precluded to produce relevant documents substantiating their claim over the land--Case was remanded. [P. 38] B

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Wrong description of the owner of property--Mistake in the name was corrected--Validity--Neither any order of Civil Court was attached with comments nor in impugned order was taken into consideration whereby any Civil Court passed declaration that Mahmood Ahsan or Haji Mahmoodul Hassan or Muhammad Hassan were the one and same person. [P. 38] C

Constitutional Jurisdiction--

----Minutiae and factual controversy--Attention of High Court was not invited to earlier judgment--Previous litigation and material placed by parties--Minutiae and factual controversy involved in that matter cannot be thrased out or resolved in constitutional jurisdiction--Litigation between the parties cannot be set at naught unless M.B.R. properly adjudicates the matter after considering and appreciating the bone of contention of the parties and entire material on record--Not so simple to hold that right of predecessor of respondents had been established particularly in particular scenario when High Court had already considered the question of ownership--Impugned order suffers from legal infirmity as M.B.R. had failed to decide factual controversy and claim of the parties in a proper and lawful manner. [P. 38] D

Constitution of Pakistan, 1973--

----Art. 199--Constitutional jurisdiction--Govt. functionaries--Principles of natural justice--Denial of justice--To correct actions of Govt. functionaries which suffer either from lack of jurisdiction or excess of jurisdiction--Validity--If citizens of Pakistan are deprieved of guarantee given to them under constitution illegality or not in accordance with law then Art. 199 can always be invoked for redress--When impugned action was without jurisdiction, mala fide, unlawful and passed in disregard of law and principles of natural justice, same amount to denial of justice--Jurisdiction of High Court can always be invoked u/Art. 199 of Constitution to rectify the wrong and injustice occurred to a party. [P. 39] E

PLD 1997 SC 351 & 2001 SC 149, ref.

Mr. Khadim Hussain Mangi, Advocate for Petitioners.

Mr.Mukesh Kumar G. Karara, Advocate for Respondents No. 9 to 31.

Mr. A.M. Mobeen Khan, Advocate for Interveners.

Date of hearing: 6.9.2011.

Order

Muhammad Ali Mazhar J.--This constitutional petition has been brought to challenge the order dated 17-11-2009 passed by the Member (Reforms Wings and Special Cell), Board of Revenue Sindh, Hyderabad (Respondent No. 2).

1. Succinctly, the facts of the present petition are that the petitioners are in possession of agricultural land in capacity of Hari for the last 30/40 years and their names are also mentioned in the record of revenue as Haries and they are paying land revenue to the Government. In the year, 1956, one Mahmood Ahsan was granted land in Deh Berth and Deh Junas under the scheme of "Grow More Food" by the then Government of West Pakistan. Subsequently, Government announced policy to grant land permanently on tube well scheme at the rate of highest auction price. Said Mahmood Ahsan was not granted land as he failed to pay initial deposit in respect of said land. Late Mehmood Ahsan filed Constitutional Petition No. 498 of 1976 in this Court at principal seat and challenged the condition of highest auction price. The petition was heard on 26.08.1986 and dismissed on the ground that nothing was available on record that land in-question was leased out to the petitioner Mahmood Ahsan. Learned division bench in the same order further went on to hold that the learned counsel for the petitioner has not been able to point out any document from which entitlement of the petitioner to the land in-question could be established. It was further mentioned in the same order that learned counsel referred to a notice issued in respect of land but this notice was issued to Haji Mahmood-ul-Hassan and according to learned counsel, the petitioner, namely, Haji Mahmood Ahsan was the same person as Haji Mahmood-ul-Hassan but except mere oral assertion of the learned counsel, such clarification has not been made in the petition or any affidavit. Consequently, petition was dismissed with the observation that the impugned decision of the Respondent No. 1 does not relate to the property in which petitioner has interest. He is not an aggrieved party, therefore, not entitled to challenge the order of the Respondents No. 1 & 2. It was further mentioned that he has come with unclean hands by making a claim on the basis of ownership of tube well.

2. Being aggrieved by the aforesaid decision, said late Mahmood Ahsan filed special leave to appeal in the hon'ble Supreme Court of Pakistan which was also dismissed vide order dated 26.11.1986. While dismissing the appeal, the hon'ble Supreme Court again reproduced the arguments of learned counsel for the petitioners who stated before hon'ble Supreme Court that Haji Mahmood Ahsan is the same person as Haji Mahmood Hassan and Haji Mahmood-ul-Hassan and High Court had erred in reaching the conclusion to the contrary. This statement was not accepted by the hon'ble Supreme Court and order passed by this Court in Constitutional Petition No. 498 of 1976 was affirmed. After dismissal of special leave to appeal late Mahmood Ahsan had not filed any other legal proceedings and died in the year 1994 and the land was resumed by the Government of Sindh for disposal according to land grant policy. In the year 1997, legal heirs of late Mahmood Ahsan filed another Constitutional Petition No. 423 of 1997 in this Court. However, vide order dated 30-04-1997, the said petition was withdrawn.

3. It is further contended by the petitioners that the Respondents No. 9 to 31 had managed a letter dated 07.5.1997 addressed to Mukhtiarkar, Pano Akil for the mutation of land in their names. Mukhtiarkar, Pano Akil dispatched copy of letter to the Assistant Registrar of this Court for verification, thereafter, an enquiry was held and as a result thereof, letter was declared to be managed and forged and matter was placed in the Court, whereby vide order dated 25.09.2001, this Court in Constitutional Petition No. 423 of 1997 in view of the enquiry directed Mukhtiarkar to file complaint/FIR against the persons who produced forged letter in his office.

4. Again Respondent No. 3 Asadullah had filed F.C. Suit No. 133 of 1997 in the Court of 2nd Senior Civil Judge, Sukkur for declaration and permanent injunction. However, said suit was also withdrawn vide order dated 21-10-1998 in view of the order passed by the Secretary (Land Utilization) Board of Revenue Sindh, Hyderabad on the petition of Moulvi Hamadullah, brother of the plaintiff. The record further shows that Respondent No. 13 Asadullah again filed F.C. Suit No. 80 of 1999 against Government of Sindh for declaration and permanent injunction in the Court of 2nd Senior Civil Judge, Sukkur in which the present petitioners were impleaded as Defendants No. 5 to 13 by filing an application under Order I, Rule 10 C.P.C. However, vide order dated 22.09.2003, suit filed by Asadullah was dismissed. Thereafter, Asadullah filed a Civil Appeal No. 72 of 2003 in the Court of District Judge, Sukkur, but on 12.06.2004, appeal was dismissed in non prosecution.

5. The litigation did not end here as the record further shows that Respondents No. 9 to 13 again filed Constitution Petition No. 15 of 2000 in this Court and during pendency of this petition, petitioners moved an application for impleading them as party. However, the Order dated 07.09.2004 shows that on the basis of statement made by learned AAG that Member Board of Revenue will provide hearing to the petitioners and on the basis of said statement, learned counsel for the petitioners did not press the petition. So far as the interveners' application is concerned, same was dismissed with the observation that in case any party feels aggrieved they are at liberty to move an application before the concerned authorities/forum which need to be decided on merits in accordance with law.

6. It is further stated in the petition that an application was moved before the Member Board of Revenue for joining the petitioners in the matter which was allowed and after hearing parties, the Member Board of Revenue passed an order and issued directions to the District Officer (Revenue), Sukkur to dispose of land in-question in an open Katchehri in accordance with the policy. However, Respondents No. 9 to 13 were also allowed to contest/participate if they establish their eligibility before the competent authority and when the Katcheri is held. Respondents No. 9 to 13 filed another Constitution Petition No. 160 of 2005 before this Court challenging the validity of order passed by the Member Board of Revenue on 27.04.2005, in which it was observed that chapter of restoration of original grant in favour of the petitioners under "Grow More Food" scheme is closed for all the times to come in view of the decision of the apex Court and civil suit.

7. The grievance of the present petitioners is that while filing the Constitutional Petition No. 160 of 2005, they were not arrayed as party. It is further stated that in the said petition, an application under Order I, Rule 10 CPC was moved but on 20-05-2009, application was dismissed for non prosecution and after hearing the learned counsel for the petitioners, order dated 24.04.2005 and 27.04.2005 were set aside and case was remanded to the Member Board of Revenue to decide the case in accordance with law. After remanding the matter by this Court in Constitutional Petition No. 160 of 2005, the present petitioners had moved an application but the petitioners were not allowed to join as party in the matter, therefore, the petitioners had filed Constitutional Petition No. 1186 of 2009 in this Court for redress of their grievance and notices were issued and on 17-11-2009, petition was fixed in this Court, but learned counsel for the petitioners was busy in some urgent matter at principal seat and the petition could not be heard but on the very same day, the Member (Reforms Wing and Special Cell) Board of Revenue Sindh passed the impugned order.

8. The Respondents No. 9 for self and being attorney of Respondents No. 10 to 31 filed para wise comments in this petition in which they have totally denied the assertions of the petitioners and it has been stated inter alia that the petitioners have no right and authority to challenge the vested rights of the petitioners and it is further stated that impugned order dated 17.11.2009 was rightly and validly passed by the Respondent No. 2 and there is no lawful justification to interfere with the findings recorded by the Respondent No. 2 in the above order. It has been further averred that the predecessor of the answering respondents deposited the installments in favour of the revenue department, but due to mistake on the part of Barrage office Guddu at Sukkur, name was mentioned as Mahmood-ul-Hassan instead of Mahmood Ahsan, resulting the predecessor of the respondents as well as Mahmood-ul-Hassan indulged into the litigation for correction of the name which ended up to the hon'ble Supreme Court but no decision to the extent of correction of the name could be passed nor said grant of land was changed or cancelled. Thereafter, they moved an application to the Member Board of Revenue for restoration of the said grant in the name of their predecessor, namely, Mahmood Ahsan but due to mistake of name, Member Board of Revenue passed an order to dispose of above land afresh in an open Katchehri.

9. We have heard the learned counsel for the parties and also perused the record. Learned counsel for the petitioners argued that the impugned order has been passed in violation of order passed by this Court and the hon'ble Supreme Court of Pakistan. Learned counsel further argued that vide order dated 03.11.2009, Member Board of Revenue refused to join the petitioners in the proceedings and in spite of numerous efforts and payment of cost copy of order dated 03.11.2009 was not supplied to him but it is quite strange that in the impugned order Member Board of Revenue shown the presence of one of the petitioners with his counsel but as a matter of fact, nobody was present from the petitioners side at the time of alleged hearing or passing the impugned order which smacks and smear mala fide on the part of the Respondent No. 2. The learned counsel further argued that the petitioners have vested rights to be heard after providing ample opportunity to prove their entitlement but in the impugned order it is wrongly observed that the petitioners had failed to produce any document to substantiate their entitlement. In fact, the learned counsel argued that in the order dated 17.11.2009, Respondent No. 2 has reproduced the order dated 03.11.2009, whereby interveners were disallowed to join the proceedings.

10. Conversely, the learned counsel appearing for the Respondents No. 9 to 31 argued that the petitioners have no right to assert against the grant of land. The Colonization Officer, Guddu Barrage, Sukkur granted 239 Acres land in Deh Berth and Deh Junas Taluka Pano Akil, District Sukkur under tube well scheme of the Government w.e.f. 1959- 1969, thereafter said grant was converted into permanent tenure in the name of predecessor of the petitioners, namely, Mahmood Ahsan. Learned counsel further argued that in view of order dated 17.11.2009, Respondents No. 9 to 31 have already paid entire Government dues. He finally argued that the petition is not maintainable and is liable to be dismissed with costs.

11. The Respondents No. 3, 4, 7 & 8 have filed brief history of the case in which it is inter alia stated that land was leased on Yaksalo lease on "Grow More Food" during the years 1958-59 to 1965-66 as per scheme announced by the Government to Haji Mahmood Ahsan. Subsequently, Government announced policy to grant said land permanently on tube well scheme at the rate of highest auction price, but said land could not be granted in the name of Haji Mahmood Ahsan as he failed to pay initial deposit in respect to said land. He filed Constitutional Petition No. 498 of 1976, but could not prove his title, therefore, constitutional petition was dismissed on 26.08.1986 as there was mistake in his name. Thus, land in-question could not be granted to Haji Mahmood Ahsan during his life and he died in the year 1994. It is further submitted that in compliance of order dated 17.11.2009, legal heirs of Haji Mahmood Ahsan had deposited the amount. Same respondents have also filed their para wise comments in which they have fully supported the impugned order passed by the Respondent No. 2.

12. After hearing the pros and cons, we have also examined the impugned order in which the Respondent No. 2 without adverting to the crucial facts of the case simply disposed of the matter on the basis that predecessor of the Respondent No. 9 to 31 namely Mahmood Ahsan was granted Yaksalo lease during the year 1958-59 and thereafter Government announced the policy to grant land permanently on tube-well scheme for which a sum of Rs. 3080/- has already been recovered from the Petitioners/Respondents No. 9 to 31, therefore the Respondent No. 2 in the impugned order held that vested rights have been created and the claim of above respondents predecessor has been established for which they can not be ousted from the land. It appears from the impugned order that the Respondent No. 2 has decided the case simply on the record produced before him by the Respondent Nos. 9 to 31 and in order to substantiate or to verify their claim, no record was called or summoned by the Respondent No. 2 before passing the order in-question. It is also a fact which is clearly demonstrating from the impugned order that the Respondent No. 2 failed to consider the previous litigation specially judgment passed by this Court in C.P. No. D-498 of 1976 which was filed by Mehmood Ahsan, the predecessor of Respondent Nos. 9 to 31 assailing the decision of the Utilization Committee of the Board of Revenue dated 17.6.1970. While deciding the petition the first question before the bench for consideration was whether the petitioner Mahmood Ahsan had any entitlement and was an aggrieved party. Finally, the petition was dismissed on the sole ground that name of tube-well owner is mentioned as Haji Mahmood-ul-Hassan and not the petitioner. It was further observed that the impugned decision of the Respondent No. 1 did not relate to the property in which the petitioners had any interest. It is pertinent to point out that the learned counsel who was appearing for Haji Mahmood Ahsan in the above petition argued that the petitioner Haji Mahmood Ahsan is the same person as Haji Mahmood-ul-Hassan but except mere oral assertion of the learned counsel, such clarification was not made in the petition or affidavit. While in the same order it is further reflected that the counsel who was appearing for Respondents No. 4 and 5 in the said petition made statement that Haji Mahmood-ul-Hassan is the brother of the petitioner and there are several litigations between them in which he is representing Haji Mahmood-ul-Hassan. After dismissal of this petition, the same Mahmood Ahsan filed a civil petition for leave to appeal in the honorable Supreme Court in which again the learned counsel appearing for the petitioner argued that "Haji Mahmood Ahsan" is the same person as "Haji Mohmood Ahsan" and "Haji Mahmood-ul-Hassan" and the High Court had erred in reaching the conclusion to the contrary. This plea was not accepted by apex Court and finally the civil petition for leave to appeal was also dismissed vide order dated 26.11.1986.

13. We have no hesitation to hold that most crucial aspect has not been considered by the Respondent No. 2 while passing the impugned order but on remand, the matter has been decided by him in a slipshod manner without adverting to relevant and critical fact of the case relating to the rights and entitlement of the parties to the land in-question. On one hand the present petitioners have alleged that they are in possession of agricultural land which belongs to the Government in the capacity of Haries for the last 30 to 40 years and their names are also mentioned in the record of revenue as Haris and they are also paying the land revenue to the Government. On the contrary, the Respondents No. 9 to 31 are posing and claiming their vested right which they have allegedly inherited from their predecessor late Mahmood Ahsan. The impugned order does not demonstrate or divulge in any manner that the claim of the present petitioners have been examined in the light of documentary evidence. However, attendance of one petitioner is mentioned in the order along with his Advocate but on contrary, the learned counsel for the petitioners vehemently argued that neither any petitioner was present nor their Advocate at the time of passing of the impugned order for the reason that the present petitioners were not allowed to join the proceedings, therefore, they were totally prevented and precluded to produce the relevant documents substantiating their claim over the land in-question.

14. The petitioners in paragraph 26 of the petition have pointed out the judgments of this Court and the apex Court relating to the wrong description of the owner of the property and in response to Paragraph 26 the Respondent Nos.3, 4, 7 and 8 in their comments, stated that the mistake in the name of Haji Mahmood-ul-Hassan was settled in the Court of IInd Senior Civil Judge, Sukkur in his favour and after that, the mistake in his name, was corrected, therefore, the disputed land was granted in pursuance of order dated 17.11.2009. Let it be clarified that neither any order of Civil Court is attached with the comments nor in the impugned order any such order was taken into consideration whereby any civil Court passed the declaration that Haji Mahmood Ahsan or Haji Mahmood-ul-Hassan or Muhammad Hassan are the one and the same person. It makes obvious that at the time of deciding C.P.No. 160 of 2005, the attention of this Court was not invited to earlier judgment passed by this Court in C.P.No. 498 of 1976 and order of honorable Supreme Court passed in Civil Petition for Leave to Appeal No. 372-K/1986 and on the basis of comments filed by the Respondents No. 2, 3, 4 and 6, the matter was remanded and orders dated 24.04.2005 and 27.04.2005 were set aside accordingly with the directions to the Member Board of Revenue to decide the matter after considering the material brought by both the parties on record.

15. If the entire previous litigation and the material placed by the parties on record is considered in its true perspective, it is irresistibly comprehensible that the minutiae and factual controversy involved in this matter can not be thrashed out or resolved in the constitutional jurisdiction. The litigation between the parties can not be set at naught unless the Respondent No. 2 properly adjudicates the matter after considering and appreciating the bone of contention of the parties and entire material available on record. It is not so simple to hold that the right of the predecessor of Respondent Nos. 9 to 31 has been established particularly in the particular scenario when this Court as well as the apex Court had already considered the question of ownership therefore, we hold that the impugned order suffers from legal infirmity as the Respondent No. 2 has failed to decide the factual controversy and claim of the parties in a proper and lawful manner.

16. Article 199 of the Constitution has been introduced to correct the actions of the Government functionaries which suffer either from the lack of jurisdiction or excess of jurisdiction. If the citizens of this country are deprived of the guarantee given to them under the Constitution illegally or not in accordance with law then Article 199 can always be invoked for redress. When impugned action is without jurisdiction, mala fide, unlawful and passed in disregard of law and the principles of natural justice, the same amount to denial of justice. When any finding of fact is based of no evidence at all or ignoring material evidence or on consideration of inadmissible evidence or exercise of jurisdiction perversely or illegally causing palpable injustice, the jurisdiction of this Court can always be invoked under Article 199 of the Constitution to rectify the wrong and injustice occurred to a party.

17. We are fortified by the dictum laid down by the Supreme Court in its judgment reported in PLD 1997 SC 351 (Province of Punjab vs. S.Muhammad Zafar Bukhari), in which, it was held that the object of the superior Courts while exercising its discretionary jurisdiction is to foster justice, preserve rights and to right a wrong and keeping this object in view it may in equity set aside or annul the void judgment. In another judgment reported in 2001 SC 149 (Dilawar Jan vs. Gul Rehman), the honorable Supreme Court has held that failure on the part of statutory functionary or a Court to make a visible effort with diligent application of mind to adjective assertion or to strive in search of truth for dispensing justice would tantamount to failure to exercise jurisdiction in the eye of law. In the same judgment while considering the wisdom of Article 199 of the Constitution, the honorable Supreme Court went on to hold that it is an omnibus Article under which relief can be granted to the citizens of the country against infringement of any provision of law or of the Constitution. The reason is that beyond a certain point of lack of care and understanding in respect of facts, negligence and misunderstanding became question of law and jurisdiction, because no authority is expected to exercise jurisdiction in such a manner as to make it a farce. High Court in exercise of Constitutional jurisdiction cannot sit as a Court of appeal but where Order passed by Court, suffers from any jurisdictional defect or violates any provision of law, invocation of Constitutional jurisdiction would be justified and if the error is so glaring and patent that it may not be acceptable that in such an eventuality the High Courts have interfered when finding is based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of fact, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where unreasonable view on evidence has been taken.

18. By consent of the learned counsel, this constitutional petition was heard on 6.9.2011 at katcha peshi stage for final disposal along with listed applications and after hearing the arguments, the petition was disposed of. The impugned order dated 17.11.2009 was set aside and matter was remanded to Member Board of Revenue to decide afresh in the light of observations to be made in the detailed order.

19. In the light of our short order, the Member Board of Revenue is directed to decide the controversy between the parties in the following terms :--

(I) The petitioners are allowed to join the proceedings with the right to produce all the relevant documents before the Respondent No. 2 relating to their claim and entitlement. The Respondent No. 2 shall provide ample right of audience to the petitioners and also consider and verify their documents if any in support of their claim.

(II) Ample opportunity will also be provided to Respondent Nos.9 to 31 (legal heirs of Mehmood Ahsan) to substantiate and prove their entitlement and if any order or any declaration was granted by any competent Court of law whereby it was held that late Mehmood Ahsan or Mahmood-ul-Hassan was one or the same person, then the Respondent No. 2 will also consider the Court order if any keeping in view the order passed by this Court in C.P. No. 498/1976 which was affirmed by the honorable Supreme Court in CPLA No. 372-K/1986.

(III) The Respondent No. 2 shall decide the matter after due notice to the parties including the present petitioners and after summoning the relevant record and examining the entire material produced by the parties shall pass a speaking order within two months.

(R.A.) Petition disposed of.

PLJ 2012 Karachi 41 (DB) [Sukkur Bench]

Present: Shahid Anwar Bajwa & Muhammad Ali Mazhar, JJ.

Moulvi SHAHZADO DREHO--Petitioner

versus

Syed KHURSHEED AHMED SHAH and 8 others--Respondents

C.P. No. D-850 of 2004, decided on 14.12.2011.

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

----Ss. 149 & 151, O. VII, R. 11 & O. XXXIII, R. 3--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Suit for damages on account of malicious prosecution--Unable to pay Court fee--Moved an application to sue as forma pauperis--Application was dismissed by Courts below--Application u/Ss. 149 and 151, CPC was filed to trial Court to grant some time to deposit Court fee--Time was allowed to pay proper Court fee--Suit was admitted--Challenge to--Question of--Whether rejection of application to sue as forma pauperis amounts of extinguishment of cause of action on basis of which he had instituted an application--Validity--Permission to sue as forma pauperis was only conflict to seek exemption for payment of Court fee on certain conditions which were more particularly prescribed in explanation while, expression cause of action referred to facts which gave occasion to and form the foundation of the suit--Cause of action means every fact which will be necessary for plaintiff to prove if traversed in order to support his right to judgment for purpose of rejection of plaint u/O. VII, R. 11, CPC--Accrual of cause of action and payment of Court fee were two separate rudiments required to be fulfilled while instituting plaint in Court and such position was manifesting from O.VII, R. 11, CPC--Plaint can only be rejected when it does not disclose a cause of action and or relief claimed was under valued, or relief claimed was properly valued but plaint was written upon paper insufficiently stamped or where suit appeared from statement in plaint to be barred by any law--Payment of Court fee could not be linked with cause of action but both were two different mandatory requirements which were to be fulfilled prior admission of suit to regular file--Though petitioner attempted to seek exemption of Court fee under O. 33, CPC but after rejection of his application, rightly sought extension from trial Court to make-up deficiency in Court fee, so that suit might be admitted--Where the whole or any part of fee prescribed for any document by law for time being in force relating to Court fee had not been paid, Court might in its discretion, at any stage, allow the person, by whom such fee was payable to pay the whole or part, as case might be of such Court fee and upon such payment the document, since petitioner was already allowed to make-up deficiency in Court fee, suit was rightly admitted--Held: Cause of action was extinguished was misconceived and not maintainable, therefore, it was rightly rejected by trial Court but revisional Court without considering provisions of law, allowed revision application and rejected plaint on wrong nation that after dismissal of application as forma pauperis, cause of action was also vanished, which was wrong approach--Case was remanded. [Pp. 45, 46 & 47] A, B, C, D, E, F, H & K

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

----O. VII, R. 11--Rejection of plaint on ground of deficiency in Court fee--Validity--It is well settled principle that under O. VII, R. 11, CPC it is not lawful for Court to reject plaint on ground of deficiency in Court fee without first granting time to plaintiff to supply deficient Court fee--Plaint could not be rejected unless first amount of Court fee payable was determined by Court and at least one opportunity was afforded to plaintiff to make good deficiency. [P. 46] G

Revisional Order--

----Where revisional order suffers from legal defect, High Court was competent to set aside the same because litigant who was victim of injustice could not be left without remedy. [P. 46] I

Constitutional Jurisdiction--

----Scope of--Expeditious and efficacious remedy--Where illegally, impropriety and flagrant violation of law regarding impugned action of authority was apparent and could be established without any comprehensive inquiry into complicated, ticklish, controversial and disputed facts. [P. 46] J

2001 SCMR 1493 ref.

Petitioner in person.

Nemo for Respondent No. 1.

Mr. Imtiaz Ali Soomro, Assistant A.G. for Respondents No. 2 to 9.

Date of hearing: 11.10.2011.

Order

Muhammad Ali Mazhar, J.--By this constitutional petition, the petitioner has challenged the order dated 21.6.2004, passed by the Respondent No.9 (District & Session Judge Sukkur) in Civil Revision No.3/2004, whereby the plaint of the petitioner in FCS No.46/2000 was rejected under Order 7 Rule 11, C.P.C.

1. Succinctly, the facts as narrated in the memo. of petition are that the petitioner is social worker and convener of Sukkur Bachoo Itehad Tahreek, who had been falsely implicated in a criminal case in which he was honorably acquitted and after his acquittal, he filed a suit for damages on account of malicious prosecution and since he was unable to pay Court fee, therefore, he had moved an application under Order XXXIII, Rule 3 C.P.C to sue as forma pauperis.

2. The petitioner in person argued that application moved by him under Order XXXIII Rule 3 CPC was dismissed by the learned 1st. Senior Civil Judge, vide order dated 25.4.2001 which was assailed by him in this Court by way of Civil Revision No. 42 of 2001 which was also dismissed vide order dated 16.8.2001, thereafter, he moved a review petition but its fate was same. However, after dismissal of aforesaid proceedings, he moved an application under Sections 149 and 151 CPC and prayed to the trial Court to grant him sometime to deposit Court fee so that his suit may be admitted for further proceedings. On this application, the learned 1st. Senior Civil Judge allowed time to pay proper Court fee and thereafter the suit was admitted. He further argued that the respondents never raised any objection before the trial Court and after admitting the suit, an application was moved under Order VII, Rule 11 CPC on the ground that after rejecting the application by the Court, to sue as forma pauperis, the petitioner had no cause of action. The leaned trial Court heard the application under Order VII, Rule 11 CPC and vide order dated 15.12.2003, this application was dismissed. Against the order, the Respondent No. 1 filed a Civil Revision in the Court of District & Session Judge, Sukkur which was allowed vide order dated 21.6.2004 with the observation that since the application to sue as forma pauperis was dismissed hence there was no plaint in existence, therefore, he allowed the revision and plaint in F.C. Suit No. 46/2000 was rejected. The petitioner argued that since Court fee had already been paid and the suit was admitted, therefore, the trial Court had rightly rejected the application moved by the Respondent No. 1 under Order VII, Rule 11 CPC, but the revisional Court, instead of considering the applicable law in its right perspective, allowed the revision application and upset the order of the trial Court which seriously prejudiced the case of petitioner.

3. This matter is pending since 2004 and in spite of sending various notices to the Respondents No. 1 through different modes including courier service, T.C.S, and registered post, nobody appeared to represent him. However, the learned AAG on behalf of the official respondents and Govt. of Sindh argued that the plaint was rightly rejected by the revisional Court and since vide order dated 25.4.2001, application moved by the petitioner under Order XXXIII Rule 3 CPC was dismissed, therefore, he had no cause of action to continue his suit and mere payment of Court fee did not validate conversion from an application of forma pauperis to a regular suit.

4. So far as Order XXXIII of Civil Procedure Code is concerned, it pertains to the suits instituted by paupers and according to the explanation attached to Rule 1 of Order XXXIII, CPC, a person is a pauper when he has not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed, when he is not entitled to property worth rupees one thousand other than his necessary wearing apparel and the subject matter of the suit. The phrase "sufficient means" refers to all kind of assets which can be realized and converted into cash for the purpose of paying Court fee. According to Rule 2, such application must contain the particulars required in regard to plaints in suits; a schedule of any movable or immovable property belongings to the applicant with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings.

5. Similarly, Order XXXIII Rule 3, C.P.C provides presentation of application in the Court so that examination of applicant under Rule 4 can take place. Under Rule 4, the powers are vested in Court to examine the applicant with respects to his pauperism as well as for the purpose of determining whether a cause of action exists or not. Likewise, Rule 5 of same order pertains to the rejection of application and lays down the circumstances in which the application for permission to sue for forma pauperis may be rejected. Under Rule 8 of Order XXXIII, C.P.C, it is provided that if the application is granted it shall be numbered, registered and shall be deemed the plaint in the suit and the suit shall proceed in all other respects as a suit instituted in the ordinary manner except that the plaintiff shall not be liable to pay any Court fee.

6. It is clear from the available record produced by the petitioner that the petitioner had submitted an application under Order XXXIII Rule 3 C.P.C along with the plaint and in the plaint, petitioner himself mentioned that he was drawing pay in the sum of Rs.6500/- at the relevant time and in the schedule attached to the plaint, he further mentioned the value of a residential house owned by him, therefore, in our view, vide order dated 25.4.2001, his application under Order XXXIII C.P.C was rightly dismissed by the trial Court.

7. Now the next question which requires consideration is whether rejection of his application to sue as forma pauperis amounts to extinguishment of cause of action on the basis of which he instituted an application. The bare bones of the matter shows that the suit was instituted for damages on account of malicious prosecution. The petitioner was acquitted in Criminal Case No. 25 of 1999, (Crime No. 47 of 1996, P.S. Site area, Sukkur under Section 13 (d) Pakistan Arms Ordinance) vide judgment dated 26.11.1999, passed by 1st. Judicial Magistrate, Sukkur. In the same acquittal order, the learned Judicial Magistrate went on to hold that "the accused/petitioner has suffered mentally, physically and financially by rotting in jail and attending the Courts right from 28.7.1996 and the case has been proved as false, therefore, it needs an action against the wrong act of complainant, therefore, accused is at liberty to file suit for damages against the complainant". After acquittal, the petitioner had filed suit for damages and since he was not in a position to pay Court fee, therefore, he attempted to seek exemption by filing an application under Order XXXIII to sue as forma pauperis.

8. The cause of action for institution of the suit and allowance or disallowance of an application under Order XXXIII, CPC, both have distinct features. The permission to sue as forma pauperis is only confined to seek exemption for the payment of Court fee on certain conditions which are more particularly prescribed in the explanation attached to Rule 1 and the conditions mentioned in Rule 5 of Order XXXIII CPC, while, the expression cause of action refers to the facts which give occasion to and form the foundation of the suit. The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to judgment for the purposes of rejection of plaint under Order VII, Rule 11 CPC. Word "cause of action" would mean a bundle of facts, which if traversed, a suit for claiming relief was required to prove for obtaining judgment. Totality of the facts must co-exist and, if anything was wanting, the claim would be incompetent. One part could be included in the whole, but the whole could never be equal to the part. Not only the party seeking relief should have a cause of action when the transaction or the alleged act was done, but also at the time of the institution of the claim. Suitor is required to show that not only a right had been infringed in a manner to entitle him to a relief, but also that when he approached the Court, the right to seek the relief, was in existence. Cause of action had no relation to the defence, that could be set up nor it depended upon the character of the relief prayed. Reference can be made to a judgment reported in 2010 CLC 1968 (Badal and another vs. Mansoor Ahmed Awan) authored by one of us (Muhammad Ali Mazhar-J).

9. It is clear beyond any shadow of doubt that the accrual of cause of action and payment of Court fee are two separate rudiments required to be fulfilled while instituting plaint in the Court and this position is also manifesting from Order VII, Rule 1, CPC which lays down what particulars are to be contained in the plaint including the facts constituting the cause of action, statement of value of the subject matter of the suit for the purposes of jurisdiction and Court fee. Even under Order VII, Rule 11, C.P.C, the plaint can only be rejected when it does not disclose a cause of action and or the relief claimed is under valued, or the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped or where the suit appears from the statement in the plaint to be barred by any law, therefore, in our view, it is undoubtedly clear that the payment of Court fee cannot be linked with cause of action but both are two different mandatory requirements which are to be fulfilled prior admission of suit to regular file.

10. In the present case, though the petitioner attempted to seek exemption of Court fee under Order XXXIII CPC but after rejection of his application, he rightly sought extension from the trial Court to makeup deficiency in the Court fee so that his suit may be admitted. It is clearly provided under Section 149, CPC that where the whole or any part of fee prescribed for any document by the law for the time being in force relating to the Court fees has not been paid, the Court may in its discretion, at any stage, allow the person, by whom such fee is payable to pay the whole or part, as the case may be, of such Court fee and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance. Since the petitioner was already allowed to make up deficiency in the Court fee, therefore, the suit was rightly admitted. It is well settled principle that under Order VII, Rule 11, CPC it is not lawful for the Court to reject the plaint on the ground of deficiency in the Court fee without first granting time to the plaintiff to supply the deficient Court fee. The plaint cannot be rejected unless first the amount of Court fee payable is determined by the Court and at least one opportunity is afforded to the plaintiff to make good the deficiency. In this case, the plaint was rightly admitted and an application moved by the Respondent No. 1 under Order VII, Rule 11, C.P.C on the ground that since the application to sue as forma pauperis is dismissed, therefore the cause of action was also extinguished was misconceived and not maintainable, therefore, it was rightly rejected by the trial Court but the revisional Court without considering the relevant provisions of law, allowed the revision application and rejected the plaint on the wrong notion that after dismissal of application as forma pauperis, the cause of action was also vanished, which was a wrong approach.

11. Where the revisional order suffers from the legal defect, this Court is competent to set aside the same because a litigant who is victim of injustice cannot be left without remedy. The constitutional jurisdiction is primarily meant to provide expeditious and efficacious remedy in a case where illegality, impropriety and flagrant violation of law regarding impugned action of the authority is apparent and can be established without any comprehensive inquiry into complicated, ticklish, controversial and disputed facts. Reference can be made to 2001 SCMR 1493. The object of the writs is to curb excess of jurisdiction, to keep inferior Courts and tribunals within their bonds, the writ jurisdiction is appropriate only in all such cases where "substantial right" of a person has been so far invaded as to prejudicially affect him if the proceeding or judgment remains un-revised.

12. The upshot of this discussion is that the impugned order dated 21.06.2004 passed by the learned District & Sessions Judge, Sukkur is set aside and F.C.S No.46/2000 is restored to its original position with the direction to the learned trial Court to decide the suit on merits in, accordance with National Judicial Policy after notice to the parties. Petition stands disposed of in above terms.

(R.A.) Petition disposed of

PLJ 2012 Karachi 47

Present: Syed Hasan Azhar Rizvi, J.

FAISAL through others legal heris--Plaintiffs

versus

Mrs. KHALIDA BANO and 2 others--Defendants

Suit No. 1316 of 2004 and CMA No. 735 of 2006, decided on 6.11.2011.

Inadvertent Mistake--

----Insurance policy was issued in name of deceased Hashmatullah and not Hashmat-un-nisa--Mistake was occurred due to resemblance in names of deceased--Error was crept into assessment of shares of legal heirs of deceased--Held: It is settled proposition of law that no one shall suffer on account of error of Court--Court was obliged to look after and protect interest of minor on its own--Error being apparent was liable to be corrected--In interest of justice to direct issuance of notice to all legal heirs of deceased. [P. 49] A

Mr. Abdus Salam Baloch, Advocate for Plaintiffs.

Ms. Shabana Ishaq, Advocate for Defendant No. 1.

Date of hearing: 6.10.2011.

Order

While dictating the order it is revealed that an inadvertent mistake has occurred in the order dated 22.11.2005, whereby suit has been disposed of. In the order it has been noted that "this suit has been filed by the deceased in respect of the Insurance Policy issued in the name of deceased Hashmat-un-Nisa." The correct position is that the Insurance Policy was issued in the name of deceased Hashmatullah and not Hashmat-un-Nisa, who was the nominee and mother of deceased Hashmatullah. Such mistake had occurred due to resemblance in the names of deceased Hashmatullah and nominee Hashmat-un-Nisa. Therefore, the Court while decreeing the suit directed the Nazir to collect the amount of Insurance Policy No.501576318-2 from the State Life Insurance Corporation and disburse the same among the legal heirs of the deceased according to their respective shares after proper identification and to invest the amount of minor in some profit bearing scheme. The Court while giving directions to the Nazir to disburse the amount of Insurance Policy among the legal heirs of `deceased' (without mentioning the name of deceased as Hashmatullah or Hashmat-un-Nisa). Both Hashmatullah and his mother Hashmat-un-Nisa have died. The Nazir has complied with the order and disbursed the amount so collected from State Life Insurance Corporation among the legal heirs of deceased Hashmat-un-Nisa instead of the legal heirs of deceased Hashmatullah and submitted his report. All the plaintiffs have received their shares from the Nazir except the Defendant No. 1 i.e. widow of deceased Hashmatullah and the share of Defendant No. 3 Baby Sumaiya daughter of deceased Hashmatullah has been invested in Special Saving Certificate Scheme. In the process however, the share of minor Sumaiya (only child of deceased Hashmatullah appears to have reduced drastically.

Scrutiny of record further reveals that Defendant No. 2 State Life Insurance Corporation has filed written statement in this case on 08.4.2005 much before the suit was decreed and this fact was also not brought to the notice of the Court at the time of passing of the decree. In para (05) of the said written statement the Defendant No. 2 categorically submitted that at the time of purchasing Life Insurance Policy and before marriage of deceased he nominated his mother Mst. Hashmat-un-Nisa his nominee in the said Life Insurance Policy but after his marriage he cancelled/changed his nomination as provided under Section 72 of Insurance Ordinance 2000 and he nominated his wife Mst. Khilda Bano as his nominee instead of his mother Mst. Hashmat-un-Nisa by submitting prescribed form for change of his nomination dated 02.4.2003 duly signed by the deceased and his wife Mst. Khalida Bano and witnessed by Mr. Mohsin Raza the securing Area Manager of the Policy Channel as required under Insurance Law.

Be that as it may, neither the above fact of filing of written statement by State Life Insurance Corporation was brought to the notice of the Court nor any application for rectification/recalling of the order dated 22.11.2005 has been filed. The counsel for the defendants objected the distribution and filed the instant application seeking re-assessment and distribution of Insurance Policy Bearing No. 501576318-2.

Tentatively speaking, thus, an error has apparently crept into the assessment of shares of legal heirs of deceased Hashmatullah. It is settled proposition of law that no one shall suffer on account of error of Court. Moreover, the Court is obliged to look after and protect interest of a minor on its own. The error being apparent is liable to be corrected. For such purpose, I deem it appropriate and in the interest of justice to direct issuance of notice to all the legal heirs of deceased Hashmatullah.

To come-up on 28.11.2011.

(R.A.) Order accordingly

PLJ 2012 Karachi 49 [Sukkur Bench]

Present: Muhammad Ali Mazhar, J.

GUL MUHAMMAD--Applicant

versus

KAIMUDDIN--Respondent

R.A. No. S-87 of 2009 and CMA No. 698 of 2010, decided on 21.10.2011.

Limitation Act, 1908 (IX of 1908)--

----Art. 10--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Limitation--Dismissal of appeal at admission stage that suit was time barred--Challenged proprietary of an order--Cause of action accrued on 31.7.2008 when he had gained knowledge regarding sale transaction--Limitation was a mix question of law and facts--Validity--Without admitting appeal or even without calling R & P and or appreciating evidence Appellate Court had decided the point of limitation which in the instant case was a mix question of law and fact which could not be decided without examining the evidence with regard to alleged cause of action--Order passed by appellate Court was set aside. [Pp. 52 & 54] A & F

Punjab Preemption Act, 1991 (IX of 1991)--

----S. 13--Limitation Act, (IX of 1908), Art. 10--Memo of appeal--One year limitation to enforce a right of pre-emption--Question of--Whether right was founded on law or general usage, or on special contract--Time begins to run when purchaser takes under sale sought to be impeached, physical possession of the whole of property sold, or where subject of sale does not admit of physical possession, when instrument of sale was registered. [P. 52] B

Constitution of Pakistan, 1973--

----Art. 203-D--Limitation Act, (IX of 1908), Art. 10--Law of limitation is against injunction of Islam--Reason of dismissal of appeal in limine--Whether or not any law or provision of law is repugnant to injunctions of Islam--Co-sharer of undivided land--In memo. of appeal no such ground was taken by appellant and if it was orally argued by applicant who was appearing in person even then, that cannot absolve appellate Court from his duty to decide the question of limitation whether claim of plaintiff was justified or not keeping in view the date of knowledge of sale transaction pleaded in plaint and provided him a right to apply which could only be judged from evidence. [P. 53] C

Right of Appeal--

----Right of rehearing the whole dispute unless expressly restricted in its scope and appellate Court is not confined--Validity--Right of appeal is a substantive and vested right and not as a matter of mere procedure. [P. 53] D

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

----O. XLI, R. 31--Appeal was dismissed in limine--Without examining the evidence dismissal of appeal--Caused injustice and hardship--Validity--Judgment passed by appellate Court would state the points for determination, the decision, reasons for decision and where decree appealed from was reversed or varied, relief to which appellant was entitled--Appellate Court would state the points for determination and apply its independent judicial mind to controversy involved between parties and also examine record for purpose of pronouncing its judgment. [P. 53] E

Applicant in person.

Mr. Shaikh Abdul Rehman, Advocate for Respondent.

Date of hearing: 26.9.2011.

Order

By this Civil Revision Application, the applicant has challenged the proprietary of an order passed by the Additional District Judge, Sukkur on 03.6.2009 in Civil Appeal No. Nil of 2009 "Gul Muhammad vs. Kaimuddin". The appeal was dismissed at admission stage in limine on the sole ground that the transaction in connection with the suit property was concluded on 25.9.2006 and the suit for pre-emption was filed on 01.8.2008, therefore, under Article 10 of Limitation Act, the suit was time barred.

1. The short and snappy facts of the case are that the applicant had filed a Civil Suit No. 19/2008 against the respondent for pre-emption/Haq-e-Shufaa and in Paragraph No. 9 of the plaint, it was alleged that the cause of action accrued to the plaintiff on 31.7.2008 when he gained the knowledge regarding the sale transaction which was fraudulently concealed by the respondent. The evidence of the plaintiff was recorded by the trial Court on 10.11.2008 in which, he reiterated the same facts that he came to know about the alleged transaction on 31.7.2008 and since the transaction was concealed by the respondent, therefore, he could not file suit earlier.

2. The applicant Gul Muhammad argued that the suit was rightly filed within prescribed period of limitation but the learned appellate Court without examining the evidence dismissed the appeal merely on the basis of findings given by the trial Court in its judgment. He further averred that in his evidence, he satisfactorily explained the entire facts that as soon as he came to know as regards the sale transaction, he filed the suit instantaneously but without adverting to the question of limitation in its right perspective, the suit was dismissed but on appeal also, the appellate Court had dismissed the appeal in limine on the sole ground of limitation without examining the R & P and evidence adduced by the parties in the trial Court which caused grave injustice and hardship to the applicant.

3. The learned counsel for the respondent argued that while dismissing the appeal at admission stage the learned appellate Court has rightly considered the question of limitation and he further argued that the applicant is habital in filing frivolous litigation without any lawful justification, therefore, the revision application is not maintainable and is liable to be dismissed. He further argued that under the revisional powers, this Court can not upset the concurrent findings arrived at by the two Courts below with proper application of mind.

4. The applicant and the learned counsel for the respondent both had mutually agreed that let this revision application be heard and disposed of at katacha peshi stage. In order to sift grain from the chaff, I have examined the judgment passed by the trial Court and the evidence adduced by the parties. The trial Court had settled six issues including the limitation but the suit was dismissed vide judgment dated 21.4.2009 on the sole ground of limitation. The point of limitation in this case is a mix question of law and facts. To decide the matter properly, it is necessary to examine the evidence led by the parties including the bone of contention as to when the applicant had first time acquired the knowledge of alleged sale and what he pleaded in relation to the accrual of his cause of action in the plaint.

5. The impugned order makes it obvious that without admitting the appeal or even without calling the R&P and or appreciating the evidence, the appellate Court has decided the point of limitation which in this case is a mix question of law and fact which could not be decided without examining the evidence available on record with regards to the alleged cause of action. The learned appellate Court should have considered the evidence available on record in which the plaintiff clearly asserted that he came to know about the alleged transaction in the year 2008. The statutory right of appeal confers the right of hearing of whole dispute and appellate Court ought to consider the entire controversy as regards to the facts and law. While deciding the appeal, the appellate Court placed reliance on the judgment reported in 2009 SCMR 630 which in this case is distinguishable and not germane to the issue of limitation but only relevant to Section 13 of Punjab pre-emption Act.

6. I have examined the memo. of appeal in which the appellant in Ground No. 5 has alleged as under:

"That the Issue No. 3 is in respect of limitation, it is well settled law that limitation is a mixed question of law and facts can be decided on the evidence of the parties, the opponent party did not say any single word rather admitted that he did not inform the pre-emptor even not identified him, the decision of lower Court without evidence and brushing aside the evidence of plaintiff and decision on the mere argument is not justified, the suit is well within limitation, the Article 10 of the Limitation Act can be applied where right is found on law or general usage or on special contract, but in this case there is no special law, nor general usage nor special contract....... The decision of lower Court is wrong, illegal, and null and void."

1. Article 10 of the Limitation Act provides one year limitation to enforce a right of pre-emption whether the right is founded on law, or general usage, or on special contract. Time begins to run when the purchaser takes, under the sale sought to be impeached, physical possession of the whole of the property sold, or where the subject of the sale does not admit of physical possession, when the instrument of sale is registered. It is clearly transpiring from the contents of the plaint that the plaintiff filed the suit for pre-emption under Mahomedan Law on the ground that he is co-sharer of undivided land Bearing S. No. 859, admeasuring 3.04 Acres and the vendor Abdul Karim fraudulently managed to transfer his 20 paisa share of undivided property in favour of vendee Kaimuddin, (Respondent) without notice and knowledge of pre-emptor and other co-sharers. First time it came into the knowledge of applicant when he disclosed this fact and wanted to secure the possession. It is further alleged by the plaintiff in the plaint that he immediately expressed his Haq-e-Shufaa and made Tlab-i-Mowasibat and in presence of witnesses also fulfilled the formality of Tlab-i-Ishad. The bone of contention between the parties can not be resolved unless the evidence led in the trial Court is properly appreciated which has not been done by the learned appellate Court in this case. Another reason of dismissal of appeal in limine is that the appellant argued that law of limitation is against the injunction of Islam. No doubt under Article 203D of the Constitution of Pakistan, the honorable Federal Shariat Court has jurisdiction to examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam. In the memo. of appeal no such ground was taken by the appellant and if it was orally argued by the applicant who was appearing in person even then, this can not absolve the appellate Court from his duty to decide the question of limitation whether the claim of plaintiff was justified or not keeping in view the date of knowledge of sale transaction pleaded in the plaint and provided him a right to apply which could only be judged from evidence.

2. The statutory right of appeal confers the right of rehearing the whole dispute unless expressly restricted in its scope and the appellate Court, is not confined to the reasons which have been given by the subordinate Court or the grounds for its decision. The right of appeal is a substantive and vested right and not as a matter of mere procedure. According to Order XLI, Rule 31 CPC, it is mandatory that judgment passed by the appellate Court shall state the points for determination, the decision thereon, the reasons for the decision and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. This rule makes it apparent that for just and proper decision, the appellate Court should state the points for determination and apply its independent judicial mind to the controversy involved between the parties and also examine the record for the purposes of pronouncing its judgment. The phrase "points for determination" refers to all important questions involved in the case, therefore, this rule has been incorporated in the Code for framing the points for determination so that the judgment should be self explanatory, illuminative and in the nature of a speaking order.

3. Every finding of fact is not immune from interference in revision jurisdiction when the Courts below commit jurisdictional illegality and this concept of jurisdictional illegality has been considered by the honourable Supreme Court in the case of Kanwal Nain PLD 1983 SC 53 and held that to cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result, revisional jurisdiction is justified when the findings are based on conjectural presumptions, erroneous assumptions of facts and wrong proposition of law and where unreasonable view on evidence has been taken. In 2010 SCMR 786, Brig. (R) Sher Afghan vs. Mst. Sheeren Tahira and others, it was held thar by now a well settled principle of exercise of revisional jurisdiction under Section 115, C.P.C. is that if a finding of first Court of Appeal is based on no evidence or is arbitrary and fallacious, the Revisional Court is not denuded of its power to interfere with such a finding. This view was reiterated in Naziran Begum v. Khurshid Begum 1999 SCMR 1171 wherein it was held a finding on a question of fact arrived at by the First Appellate Court which is based on no evidence or is the result of conjectures or fallacious appraisal of evidence on record is not immune from scrutiny by the High Court in exercise of its power under Section 100 or 115, C.P.C. In 2008 SCMR 1454, (Nabi Bakhsh vs Fazal Hussain), it was held that no exception could be taken to the exercise of revisional powers and setting aside of the findings of the lower Courts even if they be concurrent if it had found that the said findings were based on misreading or non-reading of the material available on record. Similarly, in 2007 SCMR 838, (Ch. Muhammad Shafi vs. Shamim Khanum, it was held that First Appellate Court has a right to reverse the finding/conclusions of the trial Court while exercising power under Section 96 of the C.P.C. subject to the condition that First Appellate Court has to meet the reasoning of the trial Court in the first instance and thereafter reappraise the evidence on record while reversing the finding of the trial Court as law laid down by this Court in Madan Gopal's case PLD 1969 SC 617. The High Court has wide power to reverse the finding of the First Appellate Court while exercising power under Section 115, C.P.C. having supervisory jurisdiction.

4. As a result of above discussion, the impugned order dated 03.06.2009 passed by the appellate Court is set aside and case is remanded with the directions to decide the appeal within two months after hearing the parties and considering the evidence available on record which is otherwise necessary for the appellate Court even for deciding the issue of limitation whether for claiming right of pre-emption under the Islamic Law, the plaintiff/applicant being shafi-i-sharik had fulfilled all requisite formalities within the prescribed period of limitation which includes his intention to assert the right immediately on receiving information of sale which is called tlab-i-mowasibat and also fulfilled another formality of Tlab-i-Ishhad.

(R.A.) Case remanded

PLJ 2012 Karachi 55 (DB)

Present: Shahid Anwar Bajwa & Muhammad Ali Mazhar, JJ.

GHULAM ABBAS & 9 others--Petitioners

versus

DILSHAD AHMED & 5 others--Respondents

C.P. No. D-69 of 2009, decided on 24.11.2011.

West Pakistan Land Revenue Act, 1967 (XVII of 196)--

----S. 161--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Challenged order passed by DDO Revenue--During pendency of civil suit after remanded by High Court, impugned order was passed--Appeal was filed before DDO Revenue was not maintainable during pendency of civil suit--Without waiting the decision of Civil Court exercised power the decision of Civil Court exercised power unlawfully and even order passed by DDOR was in violation of Land Revenue Act--Validity--Neither any original order was in field nor any appellate order but without adverting to crucial question of law and maintainability of appeal without any original or appellate order not only appeal was entertained by DDOR u/S. 161, Land Revenue Act, but also passed an order in appellate jurisdiction, which was totally against provision of law--Since an appeal u/S. 161 can only lie from an original or appellate order of revenue officer and there was no original or appellate order before DDOR, therefore, he wrongly exercised his jurisdiction in matter--Proper exercise of jurisdiction by DDOR would be to simply issue directions to decide the pending appeal and not pass any order by his own--Impugned order passed by DDOR was set aside. [P. 58] A & B

M/s. Ghulam Dastagir A. Shahani & Ghayoor A. Shahani, Advocates for Petitioners.

Mr. Kashif Noor Khan Pathan, Advocate for Respondent No. 1.

Mr. Aziz-ul-Solangi, A.A.G. for Respondents.

Date of hearing: 27.10.2011.

Judgment

Muhammad Ali Mazhar, J.--This constitutional petition has been brought to challenge an order dated 2.12.2008 passed by D.D.O. (Revenue) Kamber, Shahdadkot (Respondent No. 5) in Appeal No. Nil of 2008, whereby, he cancelled the Entry No. 171 dated 16-02-1993 with all its subsequent transactions and further directed the Mukhtiarkar (Revenue) Nasirabad to effect the mutation of the original plot Un-City Survey Deputy Settlement No. 64 measuring 450 sq.yards situated in Nasirabad Town in TF-11 in favour of the title holders i.e. original auction purchaser and subsequent vendees, who acquired the right of ownership through registered sale deeds.

1. Succinctly, the facts of the case are that a Sikni plot Un-City Survey Deputy Settlement No. 64 measuring 450 sq.yards was originally an evacuee property, which was auctioned in favour of Niaz Muhammad, who surrendered the same in favour of Muhammad Sardar Khan. The said property was purchased by Syed Waqad Raza and thereafter, the it was purchased by Ghulam Nabi, Ghulam Rasool and Khalid Waheed.

2. The Petitioner Nos. 1 to 10 are the legal heirs of Ghulam Nabi. In the year 1994 the respondent Khalid Waheed and Ghulam Rasool (co-sharer) had filed a Suit No. 21/1994 for settlement of accounts against Ghulam Nabi. The suit was decreed on 21.5.1998. Ghulam Nabi expired and his legal heirs (Petitioner Nos. 1 to 10) challenged the decree in Civil Appeal No. 51/1998, which was dismissed and subsequently, the said petitioners filed Civil Revision No. 17/2005 in this Court, whereby the judgment in appeal was set-aside and matter was remanded to Senior Civil Judge with the direction to decide the additional issues framed by this Court.

3. The grievance of the petitioners is that during pendency of this suit after remand by this Court, the impugned order was passed by the Respondent No. 5.

4. The learned counsel for the petitioners argued that appeal filed by the Respondent Nos. 1 and 2 before Respondent No. 5 was not maintainable during the pendency of Civil Suit. He further argued that the impugned order has been passed in slipshod manner without adverting to the crucial facts involved in the case and no ample opportunity was provided to the petitioners in the matter. He further argued that the matter was sub judice before the Civil Court for deciding the case afresh in the light of additional issues framed by this Court in the revision application, but in spite of clear knowledge, the Respondent No. 5 without waiting the decision of Civil Court exercised his powers unlawfully and even the order passed by the Respondent No. 5 is also in violation of Land Revenue Act.

5. The learned counsel for the Respondent Nos. 1 and 2 argued that the petitioners have not approached this Court with clean hands and want to usurp the plot of Respondent Nos. 1 and 2. In fact, the correct position is that the Respondent Nos. 1 and 2 and the father of the petitioners had purchased the property in question. He further argued that the said plot was sold out by the Petitioner No. 10 to Petitioner No. 1 without permission and knowledge of Respondent Nos. 1 and 2, therefore, the Respondent Nos. 1 and 2 had filed application for cancellation of Entry of the plot in question. He further argued that there is no plot No. 171 and instead of Entry No. 171 in the additional issues framed by the Court in the revision application, the plot No. 171 has been wrongly mentioned and the petitioners had made no effort or attempt for the rectification of this typing error. He further argued that in the year 2007, the Respondent Nos. 1 and 2 filed an appeal before D.D.O. (Revenue) Taluka Nasirabad for the cancellation of Entry No. 171, which is still pending without any decision, therefore, the Respondent Nos. 1 and 2 filed second appeal before D.O. (Revenue) (Respondent No. 5), who after hearing the parties passed the order and cancelled the Entry No. 171 rightly and the petitioners have no justifiable reason to challenge the order.

6. The learned AAG supported the impugned order and argued that Respondent No. 5 has rightly issued direction to the Mukhtiarkar (Revenue) Nasirabad to effect the mutation of the original plot Un-City Survey Deputy Settlement No. 64 measuring 450 sq.yards situated in Nasirabad Town in TF-11 in favour of the title holders i.e. original auction purchaser and subsequent vendees, who acquired the right of ownership through registered sale deeds.

7. We have examined Section 161 of the Land Revenue Act, in which, the provisions for appeals against original or appellate Order of the revenue officer are provided. For the convenience and ready reference, Section 161 of the Land Revenue Act is reproduced as under;--

161. Appeals.--(1) Save as otherwise provided by this Act, an appeal shall lie from an original or appellate order of Revenue Officer as follows, namely--

(a) to the Collector, when the order is made by an Assistant Collector, of either grade;

(b) to the Commissioner, when the order is made by a Collector;

(c) to the Board of Revenue only on a point of law, when the order is made by a Commissioner;

Provided that--

(i) when an original order is confirmed on first appeal, a further appeal shall not lie;

(ii) when any such order is modified or reversed on appeal by the Collector, the order made by the Commissioner or further appeal, if any, to him shall be final.

1. It is an admitted fact that neither any original order was in field nor any appellate order but without adverting to this crucial question of law and maintainability of appeal without any original or appellate order, not only the appeal was entertained by the Respondent No. 5 under Section 161 of the Land Revenue Act but he also passed an order in his appellate jurisdiction, which is totally against the provisions of law. The Respondent Nos. 1 and 2 in the memo. of appeal had clearly mentioned that earlier appeal filed by them before the Respondent No. 4 is pending adjudication without any order. Instead of simply issuing the directions to the Respondent No. 4 to decide the pending appeal, the Respondent No. 5 himself assumed the jurisdiction, entertained the second appeal and allowed the same in contravention of law while, he himself observed in the impugned order that an appeal is pending before Respondent No. 4 who did not pass any order.

2. If there is any error on the point of law by the Courts below or tribunal and the decision is based in violation of the provisions of law or is based on misreading or insufficient or inadmissible evidence, then in order to advance the cause of justice, superior Courts have jurisdiction to come rescue to an aggrieved party. Failure on the part of statutory functionary or a Court to make a visible effect with diligent application of mind to adjective assertion or to strive in search of truth for a sake of jurisdiction, the same tantamount failure to exercise jurisdiction in the eye of law. Where the order passed suffers from any jurisdictional defect or violates any provisions of law and if the error if so glaring and patent that the same may not be acceptable, invocation constitutional jurisdiction is justified. Reference can be made to PLD 2001 SC 149.

3. Since an appeal under Section 161 can only lie from an original or appellate Order of the revenue officer and there was no original or appellate order before the Respondent No. 5 therefore, he wrongly exercised his jurisdiction in the matter. Proper exercise of jurisdiction by Respondent No. 5 would be to simply issue directions to Respondent No. 4 to decide the pending appeal and not to pass any order by his own.

4. For the foregoing reason, the impugned order dated 02.12.2008 passed by the District Officer (Revenue), Kamber Shahdadkot at Kamber is set aside and Respondent No. 4 is directed to decide the appeal filed by Respondent Nos. 1 and 2 against the Petitioner No. 1 under Section 161 of the Land Revenue Act within one month. The petitioner shall be at liberty to take all pleas in his defence including the pendency of proceedings in the civil Court. Petition stands disposed of in the above terms.

(R.A.) Petition disposed of

PLJ 2012 Karachi 64 (DB)

Present: Gulzar Ahmed & Muhammad Ali Mazhar, JJ.

SAUD NASIR QURESHI--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Ministry of Industries & Production, Islamabad and another--Respondents

C.P. No. D-2761 of 2010, decided on 10.11.2011.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Civil servant--No penalty can be imposed for indefinite period--Punishment was imposed to reduce one stage lower in pay grade for imprecise and indefinite period--Not permissible--Validity--No doubt that competent authority was vested with power under R.S.O. 2000 to award punishment in accordance with law but in cases of penalties imposed for demotion or reduction to lower grade, reasonable period of time in which incumbent had to being about suffer under demotion would have been specified in reversion/demotion order and punishment cannot be awarded in vacuum for an indefinite period to continue without its culmination which had been precisely done in case in hand. [P. 67] A

Minor Punishment--

----Concept of retribution--Philosophy of punishment--Administration of justice--Bad faith and willfulness may bring an act of negligence within purview of misconduct but lack of proper care and vigilance might not always be willful inviting severe punishment--Philosophy retribution, which might be either through method of deterrence or reformation--Purpose of deterrent punishment was not only to maintain balance with gravity of wrong done by a person but also to make an example for other as preventive measure for reformation of society--Concept of minor punishment in law is to make an attempt to reform individual wrong doer--Extreme penalty for minor acts depriving a person from right of earning would definitely defeat reformatory concept of punishment in administration of justice. [P. 68] B

2006 SCMR 60.

Civil Servant--

----Reversion/demotion order--Penalty for reversion had been imposed for an indefinite period--Validity--Penalty for an indefinite period was not provided under law--Penalty awarded to civil servant for reduction to lower stage was hereby modified and reduced for a period of two years only. [P. 68] C

Mr. Mugees Ahmed Samdani, Advocate for Petitioner.

Mr. Mazhar Jafri, Advocate for Respondent No. 2.

Date of hearing: 10.11.2011.

Order

Muhammad Ali Mazhar, J.--The petitioner has challenged the order dated 27th October, 2003, whereby the competent authority of the Respondent No. 2 after examination of inquiry report and reply to the show cause notice decided to reduce the petitioner to one stage lower in the pay grade i.e. demotion to the position of Junior Officer PSF-I(b).

1. The brief facts as stated in the petition are that the petitioner was issued statement of allegations and charges on 08.09.2003 under the Removal From Service (Special Powers) Ordinance, 2000. The charges against the petitioner in the statement of allegations dated 08.09.2003 were as under:--

"Mr. Rasheed Ahmed, Manager (PDN) booked Quaid-i-Azam Park Lawn for the wedding ceremony of his daughter on 23.8.2003 and made requisite payment/charges.

On the day of function at about 0005 hours, you came to the above officer on the lawn where he was sitting with his guests and demanded Rs.1000/- as "midnight charges". You were asked by the above officer to get all the payment whatsoever payable as per rule at the end of function. But you insisted for immediate payment and threatened that in case otherwise electric supply will be switched off and the function spoiled.

Due to late arrival of guests on account of some unavoidable the function was delayed and finished at 0115 hours. You again demanded additional amount of Rs.1000/- in a rude and humiliating manner from Mr. Rasheed Ahmed, Manager (PDN).

Your above acts of demanding additional charges and using harsh and humiliating language in presence of the guests of the party amount to bringing had name to Pakistan Steel and being detrimental to the interest of the Organization are prejudicial to good service discipline".

1. The petitioner had submitted his reply, thereafter inquiry was conducted and he was found guilty, therefore, vide order dated 27th October, 2003, he was reduced to one grade and demoted to the position of junior officer.

2. After awarding the aforesaid penalty, the petitioner had moved a departmental appeal under the provisions of R.S.O. 2000 which was declined/rejected by the competent authority, hence he preferred an appeal to the Federal Services Tribunal which was finally disposed of vide order dated 26.5.2010 on the ground that Pakistan Steel does not have backing of statutory rules and the petitioner was advised to seek remedy before the appropriate forum.

3. The learned counsel for the petitioner argued that the petitioner was deputed for collecting midnight charges at the rate of Rs.1000/- per hour for the use of electricity. He further argued that during inquiry, the charges were not proved against the petitioner. He further argued that no witness was produced to substantiate that the petitioner ever demanded the midnight charges in front of any guest or misbehaved with Mr. Rasheed Ahmed, who lodged the complaint. He further argued that complainant Rasheed Ahmed, Manager Power Distribution Network had booked Quaid-e-Azam Park lawn owned and operated by Respondent No. 2 and since the petitioner was deputed for collecting midnight charges, therefore he simply performed his official responsibilities and after the incident, he approached the complainant and tendered his regret. The learned counsel further argued that no penalty can be imposed for an indefinite period.

4. The learned counsel for the Respondent No. 2 argued that the action against the petitioner was taken purely in accordance with law and since the charges against him were proved in the inquiry, therefore instead of awarding the punishment of removal from service, the petitioner was demoted to lower stage. He further argued that though the petitioner was deputed to collect the midnight charges, but he was not supposed to misbehave with the complainant Rasheed Ahmed. Such behaviour was highly objectionable. He further argued that proceedings were initiated against the petitioner under the RSO 2000. The duly appointed inquiry officer conducted the inquiry proceedings and after providing ample opportunity to the petitioner, the inquiry proceedings were concluded and he was found guilty. Learned counsel further averred that the petitioner has failed to show that the impugned action taken against him is violative of any law and since the factual controversy is involved and punishment/penalty was awarded under the provisions of R.S.O 2000, therefore constitutional petition is not maintainable.

5. In so far as, the question of maintainability is concerned, In the judgment reported in 2010 PLC (C.S.) 1360, (Shahid Mehmood Versus House Building Finance Corporation), the divisional bench of this Court in which one of us (Gulzar Ahmed. J) was member has already held that if an employee of a State owned/controlled organization is proceeded against under the provisions of the Removal from Service (Special Powers) Ordinance, 2000 and if no other remedy is available to him, he shall be entitled to maintain a constitutional petition under Article 199 of the Constitution for the purpose of scrutinizing as to whether the action taken by the departmental authorities is in accordance with the provisions contained in the RSO. The dictum laid down by this Court supra is equally applicable to Pakistan Steel (Respondent No. 2), hence this Constitutional Petition is maintainable.

6. We have also examined the inquiry proceedings and found that the inquiry was conducted in accordance with law and ample opportunity was also provided to the petitioner therefore, the petitioner was rightly awarded the punishment but at the same time, it cannot be overlooked or ignored that vide impugned order dated 27th October, 2003, the petitioner was reduced to one stage lower in the pay grade i.e. demotion to the position of junior officer but this penalty has been imposed for an imprecise and indefinite period, which is not permissible. No doubt that the competent authority is vested with the powers under R.S.O 2000 to award punishment in accordance with law but in the cases of penalties imposed for demotion or reduction to lower grade, a reasonable period of time in which the incumbent has to hang about/suffer under demotion should have been specified/mentioned in the reversion/demotion order and the punishment cannot be awarded in vacuum for an indefinite period to continue without its culmination which has been precisely done in the case in hand.

7. In the case reported in 2008 SCMR 1165 (Member (A.C.E. & S.T.), Federal Board of Revenue, Islamabad versus Muhammad Ashraf), the petitioner FBR had challenged the judgment passed by Federal Service Tribunal in the case of four employees. In this case, the competent authority awarded the punishment to the employees of reduction to five stage in time-scale and this punishment was assailed in the Federal Service Tribunal by the aggrieved employees. The learned Federal Service Tribunal in the appeal of Muhammad Ashraf and Dilawar Hussain modified the sentence and reduced the same to two stages in time-scale for a period of two years. Similarly, the penalty awarded to Mushtaq Ahmed and Shahid Mahmood was ordered to be effective only for a period of two years whereafter they shall stand restored to their original ranks. The judgment of learned Federal Service Tribunal was assailed in the Hon'ble Supreme Court in which while refusing the leave, the Hon'ble Supreme Court held that admittedly the penalties imposed by the authority upon respondents do not specify the length of time. The penalty for indefinite period is not provided in law as such the impugned judgment whereby penalties awarded to the respondents were modified and reduced to time as mentioned above was proper in law.

8. Bad faith and willfulness may bring an act of negligence within the purview of misconduct but lack of proper care and vigilance may not always be willful to make it a case of grave negligence inviting severe punishment. The philosophy of punishment is based on the concept of retribution, which may be either through the method of deterrence or reformation. The purpose of deterrent punishment is not only to maintain balance with the gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of the society, whereas the concept of minor punishment in the law is to make an attempt to reform the individual wrong doer. In service matters, the extreme penalty for minor acts depriving a person from right of earning would definitely defeat the reformatory concept of punishment in administration of justice. Reference can be made to 2006 SCMR 60.

9. Though we are not convinced or inclined to set aside the reversion/demotion order dated 27.10.2003 in its entirety, which has been passed after proper inquiry but since the penalty for reversion has been imposed for an indefinite period, therefore, being fortified by the dictum laid down by the Hon'ble Supreme Court (supra), we have no hesitation to hold that penalty for an indefinite period is not provided under the law, consequently, the penalty awarded to the petitioner for reduction to lower stage is hereby modified and reduced for a period of two years only. The petition is disposed of in the above terms.

(R.A.) Petition disposed of

--

PLJ 2012 Karachi 69 (DB) [Sukkur Bench]

Present: Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ.

MUMTAZ ALI JAHANGIR and another--Petitioners

versus

PROVINCE OF SINDH through Secretary (Revenue) Karachi and 5 others--Respondents

C.P. No. D-1273 of 2010 and C.M.As. Nos. 264, 265 of 2011, decided on 19.10.2011.

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

----Ss. 3 & 5--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Petitioner was residing in bungalow belongs to defunct District Council--Without show-cause notice Sindh Govt. could not force petitioner to vacate bungalow--Forged and fabricated document--Question of--Whether petitioner had any locus standi to invoke extraordinary jurisdiction of High Court--Validity--Person sought judicial review of administrative or quasi judicial action must show that he was trying personal interest--An application in representative capacity was not maintainable--Initially instant petition was moved by petitioner who had no legal character or locus standi to challenge action of department on sole ground that bungalow was never allotted to petitioner--It was sine non for invoking jurisdiction of High Court through constitutional petition that petitioner must be an aggrieved person and he must have locus standi for availing jurisdiction--Petition was dismissed. [Pp. 75 & 78] A & H

2011 SCMR 848.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Right which was foundation of an application was personal and individual right--Legal right might be statutory right or right recognized by law--Justiciable right in existence to give jurisdiction to High Court--Validity--Petitioner was not an aggrieved person and he could not maintain the instant petition--Since petitioner had already been arrayed by order of High Court who had allegedly issued allotment order in his favor, therefore, he could maintain petition being an aggrieved person but off course subject to an undisputed proof of denial of his some legal right by someone which was not based on factual controversy or requiring evidence. [P. 76] B

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

----S. 3--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Unlawful possession--Allotment order produced by petitioner alongwith memo of petition was forged and fabricated document--Question of--Whether allotment order was genuine document or it was engineered or fabricated by petitioner--Validity--Departments produced many letters including notices which were conveyed to alleged encroachers under provisions of Act, 1975 and in few notices time was granted to vacate the premises--Contentions of parties could not be decided without evidence and there was serious controversy between parties for which High Court could not enter into factual realm--High Court had no jurisdiction to embark upon an exercise to determine intricate contested and complicated question of facts--Resolution of such like controverted issues was ordinarily left to proper forums, indulgences in such exercise would have effect of preempting and enforcing upon jurisdiction vested in competent Court--Such controversy could not be decided in writ jurisdiction, where equally efficacious, adequate and alternate remedies were straight forwardly accessible to petitioner such as to file complainant under Illegal Dispossession Act or file a civil suit for possession if he was dispossessed from the property--Petition was dismissed. [Pp. 76, 77 & 78] C, D & G

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Disputed facts and thwarts procedural law--Constitutional petition would not be competent and relief in constitutional jurisdiction being discretionary would not be granted to hold retention of ill-gotton gains--Validity--It is mandatory and obligatory for a party invoking constitutional jurisdiction to establish a clear legal right which would be beyond any doubt and controversy--Disputed questions of fact could not be decided in constitutional jurisdiction--Constitutional jurisdiction of High Court would be declined where petitioner had not exhausted all remedies available before filing of constitutional petition. [P. 77] E & F

2011 SCMR 279, ref.

Mr. Sarfraz Ali Akhund, Advocate for Petitioners.

Mr. Abdul Qadir Shaikh, Advocate for Respondent Nos. 2, 3 & 4.

Mr. Imtiaz Ali Soomro, Asstt.A.G. for Respondents Nos. 1, 5 and 6.

Date of hearing: 14.9.2011.

Order

Muhammad Ali Mazhar, J.--This constitutional petition has been brought by the petitioners with the following prayer:--

"(a) That this Honourable Court may be pleased to declare that the act of the Respondents No. 2, 4, 5 & 6 regarding forcible ejectment of the petitioner, so also his brother-in-law with their family members despite legal allotment (as stated above) appears to be illegal, mala fide, ultra vires, without lawful authority so also in violation of fundamental rights as guaranteed under the Constitution of Pakistan, 1973.

(b) That this Honorable Court may be pleased to direct the Respondents No. 2, 4, 5 & 6 to remove the police force from inside and outside the said bungalow and to allow the petitioner so also his brother-in-law and their family to enter and occupy the same without any fear, till disposal of the petition, so also direct the said respondents to disclose whereabouts of two relatives/detenues of the petitioner namely Javed and Junaid.

(c) To award the costs of the petition.

(d) Any other relief which this Honorable Court deems fit and proper under the circumstances of the case".

1. The facts forming the background of this case are that petitioner Mumtaz Ali Jehangir filed this petition in which it is inter alia stated that he was residing as a joint family with his brother-in-law Nizamuddin who is working as Supervisor in Health department. Local Government Bungalow No. 3 belongs to defunct District Council, Khairpur which was allotted to his brother-in-law by the then Zila Nazim, Khairpur vide Order No. ZN/KHP/510, dated 12.12.2009. Since the date of allotment, petitioner along with his brother-in-law and other family members were residing in the bungalow. It is further stated that the Respondents No. 2 to 4 were trying to evict the petitioner, on which he responded that bungalow was allotted to them lawfully and without show cause notice, the respondents cannot force the petitioner to vacate the bungalow. It is further contended that against highhandedness of Respondents No. 2 to 4, petitioner had moved an application under Section 22-A & B Cr.P.C to the Justice of the Peace and on its reaction, the Respondent No. 5 had deployed police force under the instructions of Respondents No. 2 to 4 and police officials trespassed into the bungalow on 13.6.2010 and thereafter, the petitioner was not allowed to enter into bungalow. The Respondents No. 2, 4, 5 & 6 have acted illegally without lawful authority and without issuing show cause notice for cancellation of allotment they are not competent to oust the petitioner from the house at their own will. Due to threats and harassment, the brother-in-law of the petitioner had gone underground, hence legal remedy is being exhausted by the petitioner.

2. This petition was filed in this Court on 14.6.2010 without impleading Nizamuddin who is alleged allottee of the bungalow. However, the order dated 16.6.2010, shows that the petitioner had filed an application under Order I, Rule 10 CPC for making party to Nizamuddin on the ground that the bungalow was allotted in his name and by consent of AAG, this application was allowed and Nizamuddin was impleaded as Petitioner No. 2 and on 17.6.2010, amended title was filed. Along with the petition, the petitioner has filed an order issued by Pir Niaz Hussain Shah, Zila Nazim Khairpur on 12.12.2009 in which it has been stated that Bungalow No. 3 of defunct District Council Khairpur previously known as community/emergency response centre is hereby allotted to Mr. Nizamuddin, Malaria Supervisor.

3. On 14.6.2010, commissioner was appointed by this Court to visit the premises and prepare the report whether petitioner was residing in the bungalow and he has been unlawfully dispossessed. In compliance of the order, commissioner submitted his report on 16.6.2010 in which he has inter alia contended that he visited the bungalow in question and came to know that DDO (Revenue) Khairpur and Mukhtiarkar (Estate) Khairpur with the police assistance have obtained possession of premises on 13.6.2010. On 2.8.2010, again commissioner was appointed by this Court to visit the house and prepare inventory of belongings of the petitioner and keep the house in custodia legis by putting his locks and seal. In compliance of the Court order, same commissioner again visited the house and prepared inventory and sealed all the rooms including main gate.

4. The Respondents No. 2 to 4 have filed their joint comments in which they have stated that the petitioners illegally occupied the bungalow. Zila Nazim issued many letters from time to time to DCO, Khairpur, Sindh Bar and Chief Minister Sindh but the petitioners did not evict the bungalow though notice under Sections 3 & 5 of the Sindh Public Property (Removal of Encroachment) Act, 1975 was served upon him on 26.9.2009 and 7.10.2009. It is further stated that the petitioners have forged and fabricated the document. The alleged allotment order does not bear the signature of the then Zila Nazim. The outward No. 510 dated 12.12.2009 on so called allotment order is bogus for the reason that against this outward number in the record, the date is 31.10.2009 and not 12.12.2009. The outward number was issued to Taluka Nazim Mirwah regarding an application of Wali Muhammad Phul. In order to prove the contention, a certificate dated 15.6.2010, issued by Administrative Officer, District government Khairpur has been attached which shows that bungalow in question was not allotted to Petitioner No. 2 and in the same certificate it is further stated that allotment order produced by the petitioner is fake and fabricated document and it does not bear the signature of the then Nazim. Not only this, it is further submitted in the same certificate that outward No. 510 relates to a letter issued to Taluka Nazim, Mirwah regarding application of Wali Muhammad Phul. The answering respondents further submitted that the news regarding illegal encroachment of the petitioners was also flashed in the newspaper Kawish on 24.2.2009 and 25.5.2009. They further submitted that bungalow in question is A-category house which can only be allotted to officers of BPS 18-19, whereas the Petitioner No. 2 is the employee of Grade-05. Along with reply, said respondents have attached at least 13 letters and notices written from time to time regarding illegal encroachment including notices issued under Section 3 of the Sindh Public Property (Removal of Encroachment) Act, 1975. Besides that EDO (H) Khairpur, vide letter dated 15.6.2010 intimated to the D.O (Revenue) Khairpur that the Petitioner No. 2 is drawing house rent allowance in monthly pay slip and also attached copy of salary slip. In addition to the aforesaid comments, few more documents were brought on record through separate statement filed by learned advocate for the Respondents No. 2 to 4 with which a letter of Pir Syed Niaz Hussain Shah, Ex-Zila Nazim is attached which he wrote to DCO Khairpur in connection with verification of allotment Order No. 510 dated 12.12.2009. In this letter, Ex-Zila Nazim has confirmed that no allotment order was ever signed or issued by him in favour of Petitioner No. 2 and his signature on the allotment order is fake and false. In order to strengthen his contentions more, a copy of work register, district council Khairpur has also been filed which shows that Outward No. 510 was issued to Taluka Nazim, Mirwah. Again a notice dated 24.9.2009 has been filed with the statement which was issued to the Petitioner No. 1 under Section 3 of the Sindh Public Property (Removal of Encroachment) Act, 1975 with the directions to remove the encroachment within a period of three days failing which the encroachment will be removed under Section 5 of the aforesaid Act.

5. We have heard the arguments of learned counsel appearing for the parties and also examined the entire material placed on record. On 14.9.2011, CMA 264/2011 and CMA 265/2011 were fixed for hearing. Court file shows that on 9.12.2010 this petition was dismissed for non prosecution, therefore, petitioners filed CMA No. 264/2011 for restoration of petition while CMA 265/2011 was filed by the respondents for de-sealing the property in question. By consent of learned counsel, on 14.9.2011, we had heard not only restoration application but the main case also and all the learned counsel agreed to this proposal and argued restoration application as well as main case.

6. The restoration application is supported by personal affidavit of Petitioner No. 1, who is also an advocate by profession and in support of restoration application, it was argued by his counsel that matter was fixed in this Court on 9.12.2010 on which date, the counsel for the petitioner was out of station, therefore, Mr. Qurban Ali Malano advocate had obtained signature of petitioners on Vakalatnama with this assurance that he will file the same in the Court but due to his preoccupation in some other cases, he could not appear when the matter was called and the petition was dismissed for non prosecution. On this application, Gulsher Solangi, DDO (Revenue) filed his counter-affidavit in which he mentioned that application is time barred for three days and on 9.12.2010, he had seen the petitioner in the Court premises and his advocate was also standing outside the Court and immediately after dismissal of petition, his advocate entered into Court room. In the counter-affidavit, he has also shown details of previous advocates appeared in this matter to represent the petitioners. Since plea has been taken by the petitioners that on the day when the petition was dismissed in non prosecution, their advocate was out of station and due to pre-occupation of Mr. Qurban Ali Malano, he could not file Vakalatnama on their behalf, therefore, in the interest of justice, we are of the view that instead of dismissing restoration application on mere technicalities, it would be appropriate to decide bone of contention on merits. Consequently, the restoration application is allowed and petition is restored to its original position.

7. Now we would like to advert to the arguments advanced by the learned counsel for the parties in support of their case. The learned counsel for the petitioner argued that allotment order is a genuine document and the respondents have unlawfully dispossessed the petitioners on 13.6.2010. He further argued that no notice was issued under the Sindh Public Property (Removal of Encroachment) Act, 1975. The learned counsel denied the documents produced by the respondents along with their comments and statement and he argued that all the documents produced by the respondents are false, fabricated and bogus documents and the same have been filed to simply cover up illegalities committed by the respondents by unlawfully dispossessing the petitioners from their lawful abode. On query of this Court, whether, after alleged unlawful dispossession, the petitioners had filed any suit for recovery of possession or complaint under the Illegal Dispossession Act, 2005, the petitioners' counsel replied in negative.

8. Conversely, the learned counsel for the Respondents No. 2 to 4 argued that the allotment order produced by the petitioners along with memo. of petition is forged and fabricated document and it is evident from various documents filed by the respondents along with their comments and by way of separate statement that the petitioners were under unlawful possession and after applying proper procedure envisaged under the Sindh Public Property (Removal of Encroachment) Act, 1975, action was taken against the petitioners with due process of law. He further argued that Ex-Zila Nazim has himself admitted in his letter that he has never signed any allotment order in favour of the Petitioner No. 2 and even it is a matter of record that outward number assigned to the so called allotment order was also fake. He further pointed out that pay slip of the Petitioner No. 2 shows that he was enjoying house rent allowance and it is quite strange that on one hand he was allegedly allotted accommodation by the government while on the other hand he was also drawing house rent allowance which is totally inconsistent with the plea of petitioners.

9. The learned AAG adopted the arguments advanced by the learned counsel for the Respondents No. 2 to 4. He also asserted that property in question is owned by the government and the encroachment was lawfully removed and the possession was lawfully recovered under the provisions of the Sindh Public Property (Removal of Encroachment) Act, 1975.

10. The foremost question which is to be considered first by us is whether Petitioner No. 1 has any locus standi to invoke, the extraordinary jurisdiction of this Court. It is a basic principle that person seeking judicial review of the administrative or quasi judicial action must show that he is trying personal interest in the Act. An application in a representative capacity is not maintainable. It is a matter of record that initially this petition was moved by the Petitioner No. 1, who had no legal character or locus standi to challenge the action of the respondents on the sole ground that bungalow in question was never allotted to the Petitioner No.

11. However, after institution of the petition, an application was moved by the Petitioner No. 1 to join Nizamuddin as Petitioner No. 2, in whose favour allotment order was allegedly issued. It is sine qua non for invoking the jurisdiction of this Court through Constitutional Petition that the petitioner must be an aggrieved person and he must have locus standi for availing such jurisdiction. The honorable Supreme Court in its judgment reported in PLD 2007 SC 52 (Hafiz Hamadullah vs. Saifullah Khan and others) has held that constitutional jurisdiction of High Court can be invoked by an aggrieved person, which denotes a person who has suffered a legal grievance, against whom a decision has been pronounced which has wrongfully deprived him or wrongfully refused him something which he was legally entitled to. It is to say requirement that the person invoking constitution jurisdiction under Article 199 of the Constitution has to establish that any of his legal or fundamental rights guaranteed under the constitution has been violated resulting in legal loss.

12. In another Judgment reported in PLD 2007 SC 386 (Province of Balochistan vs. Murree Brewery Company Ltd.), it was held that word aggrieved or aggrieved party has not been defined in the constitution, however, from time to time which has been interpreted by the superior Courts in the given circumstances of the case. The honorable Supreme Court in this judgment quoted its various pronouncements wherein it was observed that writ petition can be maintained by a person provided he be an aggrieved person and in order to be an aggrieved person it is imperative to show any of his property or personal right as recognized by law, to be invaded or denied. Person unable to show any of his right as recognized by law to be invaded or denied has no cause of action to seek any relief. In the judgment reported in 2011 SCMR 848, (N.W.F.P. Public Service Commission vs. Muhammad Arif), the honorable Supreme Court has held that it is well settled by now that the right which is the foundation of an application under Article 199 is a personal and individual right. The legal right may be a statutory right or a right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence to give jurisdiction to the High Court in the matter. Unless whatever right, personal or otherwise, on which the application is based is established, no order can issue under Article 199 of the Constitution. Keeping in view the aforesaid dictum laid down by the honorable Supreme Court, we have no hesitation to hold that the Petitioner No. 1 is not an aggrieved person and he cannot maintain this petition. However, since Petitioner No. 2 has already been arrayed by the order of this Court who was allegedly issued allotment order in his favour, therefore, at the best, he can maintain petition being an aggrieved person but off course subject to an undisputed proof of the denial of his some legal right by someone which is not based on factual controversy or requiring evidence.

13. The main controversy which is revolving around the parties which is in fact the only bone of contention between them is whether allotment order dated 12.12.2009 is a genuine document or it was engineered or fabricated by the petitioners. In rebuttal of this order, Respondents No. 2 to 4 along with their comments have produced many documents to show that the allotment order is forged document. In fact, Respondents No. 2 to 4 produced many letters including notices which were conveyed by them to the alleged encroachers under the provisions of the Sindh Public Property (Removal of Encroachment) Act, 1975 and in few notices time was also granted to vacate the premises in question. Comments of the respondents further disclosed that bungalow in question is A-Class category which can only be allotted to officers of BPS-18-19 while it is further submitted in the said comments that the Petitioner No. 2 is an employee of BPS-05. It has been further contended that Ex-Zila Nazim denied to have issued any allotment order in favour of the Petitioner No. 2 and in the same letter, he further denied outward number which was in fact allotted to some other letter communicated to some other person and it has been stated that the petitioners have encroached upon the government property for which action was taken under the Sindh Public Property (Removal of Encroachment) Act, 1975.

14. After examining the entire material, we have reached to an irresistible conclusion that the contentions of the parties cannot be decided without evidence and there is serious controversy between the parties for which this Court cannot enter into factual realm. This Court has no jurisdiction to embark upon an exercise to determine intricate, contested and complicated question of facts. The resolution of such like controverted issues is ordinarily left to the proper forums, prescribed by law, indulgence in such exercise would have the effect of pre-empting and enforcing upon the jurisdiction lawfully vested in the competent Courts.

15. Article 199 of the Constitution is not intended for deciding the disputed facts and thwarts the procedural law. At this juncture, we would like to refer to the judgment reported in 2001 SCMR 1493 (Mst. Kaniz Fatima vs. Muhammad Salim), in which, the honorable Supreme Court has held that controverted question of fact, adjudication of which is possible only after obtaining all types of evidence having by the parties can be determined only by forums concerned and in such like cases, constitutional petition would not be competent and the relief in constitutional jurisdiction being discretionary should not be granted to hold retention of ill-gotten gains. It is mandatory and obligatory for a party invoking constitutional jurisdiction to establish a clear legal right which should be beyond any doubt and controversy. Disputed questions of fact could not be decided in constitutional jurisdiction. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. It is mandatory and obligatory for a party invoking the Constitutional jurisdiction to establish a clear legal right which should be beyond any doubt and controversy. The constitutional jurisdiction of High Court, would be declined where the petitioner has not exhausted all remedies available to him before filing of constitutional petition. In this regard reference can be made to 2011 SCMR 279, (Anjuman Fruit Arhtian vs. Deputy Commissioner, Faisalabad).

16. In the case in hand, serious disputed questions of facts are involved and the claim of the petitioner is that the allotment order was genuine. On contrary, the respondents have pleaded that it is a forged and fabricated document and in support of their contention, various documents were placed on record. This controversy can not be decided in the writ jurisdiction, in particular where equally efficacious, adequate and alternate remedies are straightforwardly accessible to the petitioner such as to file the complainant under Illegal Dispossession Act or file a civil suit for possession if he was dispossessed from the property in question by the respondents without due process of law. Since, the respondents have come forward with an unequivocal plea that they have removed the encroachment from government property with due process of law under the provisions of Sindh Public Property (Removal of Encroachment) Act 1975, therefore, the petitioner has another option at his ease and leisure to seek appropriate remedy provided under the aforementioned Act itself for the protection of his alleged right and entitlement.

17. In sequel to above discussion, this petition being meritless is dismissed in limine. So far as CM.A No. 265/2011 is concerned, the order passed by this Court on 2.8.2010, whereby the property in question was taken into custodia legis is hereby vacated/recalled and the keys are directed to be handed over/released forthwith to the authorized representative of District Government, Khairpur after proper verification and documentation. However, the Petitioner No. 2 may immediately approach to the Respondent No. 2 to 4 for the return of his household articles which are more particularly described in the inventory dated 4.8.2010 prepared by the commissioner in pursuance of an order dated 2.8.2010. It is further directed that when the Petitioner No. 2 will approach the Respondent No. 2 to 4 for the return of his aforesaid articles, same shall be returned back to him forthwith after necessary documentation.

(R.A.) Petition dismissed

PLJ 2012 Karachi 78 (DB)

Present: Muhammad Athar Saeed & Irfan Saadat Khan, JJ.

SAEED ABBAS--Appellant

versus

AGAR INTERNATIONAL (PVT.) LTD., KARACHI through its Director--Respondent

H.C.A. No. 192 of 2010, heard on 30.5.2011.

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

----Ss. 123-A, 124, 129 & 130--Civil Procedure Code, (V of 1908)--O.XXXXVII--Law Reforms Ordinance, (XII of 1972), S. 3--Intra Court Appeal--Cross cheque--Cheque was negotiable instrument--Duty of Bank to place into account of payee the amount--Cheques were dishonored--Appellant had failed to pay disputed amount--Single Bench was quite justified in passing the decree--Validity--When a cheque was dishonored the payee could sue for an action for payment of amount of cheque from its drawer--If a person gave a cheque for amount due to be presented at a bank on certain date and if a cheque was dishonored on presentation a person could sue for consideration and get decree for recovery of that amount in his favour--Cheque was a negotiable instrument resembling a bill of exchange but entirely different in ordinary course, it was not intended for a circulation but it was meant for payment to the person on whose name the cheque was made--When a cheque was crossed account payee it would cease to be negotiable and it will be duty of the banker collecting payment of cheque to put the same in account of payee--However, S. 123-A of Act r/w. O. 37, CPC which applies to all bills of exchange whether negotiable or not suit upon a crossed cheque account payee only was maintainable--Provisions of O. 37, CPC are not only relevant to negotiable instruments only but applies to crossed cheque--Appellant had in consideration of their business dealings, handed over cheques to respondents to be encashed and by dishonoring of cheques, the appellant had exposed himself to legal action against him--Intra Court Appeal was dismissed. [Pp. 84, 85 & 88] A, C & F

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

----S. 6--Cheque--Cheque as a bill of exchange drawn on a specific bank and not expressed to be payable otherwise than on demand--Drawer must be a person who entered into contract and would not be pointed out with certainly and his signatures on cheque had to be obtained--Whenever a cheque was dishonored then in such cases execution had been admitted and it was presumed that the cheque was executed for consideration and drawer could hardly wriggle out of situation that cross cheque was meant for any other consideration other than mentioned on the cheque--Onus in that regard sequarely lies on drawer. [Pp. 84 & 85] B

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

----Ss. 4, 5, 6, 118 & 123-A--Dishonoured of cheque--Number of cheques were dishonoured on presentation--Specific notices were given in suit proceedings to file leave to defend application which remained unattended--Cheques were issued in name of Agar Corporation and not in name of Agar International Ltd.--Mala fide on part of appellant addressed by appellant requesting to hold cheques till specific date--Validity--No leave to defend application was filed by appellant and only when suit came up for final disposal objections were raised that cheques were issued in name of Agar Corporation whereas the suit had been filed by Agar International Ltd. little realizing the fact that in past appellant had been issuing cheques to respondent in name of Agar Corporation Ltd. which aspect had not been denied by representing appellant--Appellant had not denied the fact that bills had been issued in past by appellant in the name and style Agar Corporation fully admitting the fact that bills and cheques were issued--Cheques were issued in name of Agar Corporation and not in name of Agar International was unwarranted--Pleadings of the appellant that they were mindful of fact that Agar Corporation and Agar International were same entity and only took such plea just to wriggle out of present situation--Cheque issued by him were not in name of Agar International and were in name of Agar Corporation and both companies were distinct entities whereas on other hand he requested to hold the cheques till date and apologized for inconvenience. [Pp. 87 & 88] D & E

Syed Hassan Ali, Advocate for Appellant.

Mr. Kazi Abdul Hameed Siddiqui, Advocate for Respondent

Date of hearing: 30.5.2011.

Judgment

Irfan Saadat Khan, J.--This High Court Appeal has been filed against the judgment dated 02.06.2010 passed by the learned Single Judge in Suit No. 1438/2006.

1. Briefly stated the facts of the case are that the Respondent is a private limited company duly registered with the Security and Exchange Commission of Pakistan incorporated under the Companies Ordinance, 1984 having its registered office at House of Agar Boulton Market Road, Karachi 74000 and is engaged in the business of import and export of vegetables and pulses etc. The appellant is a local wholesaler buyer at the wholesale vegetable and fruit market New Sabzi Mandi, Karachi. The appellant and the Respondent entered into a business deal by which the Respondent was to supply garlic and ginger to the appellant and the appellant had in turn to make the payment thereof. The appellant used to pay the amounts to the Respondent through cross cheques. In the beginning the relations between the parties were good and the business transactions entered between them were going on quite smoothly. However differences arose between them and their relations started to get worse. Thereafter both the parties started leveling allegations upon each other for not fulfilling their part of the promise and the payment matters started to delay.

2. The applicant issued 48 cheques to the Respondent which were presented in the bank but to the utter surprise of the Respondent all these cheques were dishonored with the result that the total payment of these 48 cheques of Rs. 20,597,047/- became outstanding against them. After the said cheques were dishonored the respondent approached the appellant for payment of the same but as per the respondent the appellant delayed the payment on one pretext or the other. The Respondent came to the conclusion that the appellant did not seem to be sincere in making the payment and thereafter made a complaint to the area police who registered an FIR against the appellant. When the appellant came to know that the Respondent had approached the police and lodged a FIR against him he thereafter filed two cases Bearing Nos. 1016/2006 and 1050/2006 before this Court which are pending. The Respondent also filed a suit Bearing No. 1438/2006 against the appellant with the prayer that the disputed amount of Rs. 20,597,046/- be recovered from the appellant alongwilh the mark-up etc. This suit Bearing No. 1438/2006 came up for hearing before the learned Single Judge who decreed the same in favour of the Respondent with the following observations:

"Hence the plaintiff is entitled for a decree of unpaid cheques amounting to Rs. 205,970,46/-. The suit is therefore decree in a sum of Rs. 205,970,46/- alongwith interest at the rate of 10% per annum payable from the date of filing of this suit till recovery of the entire decretal amount."

It is against this order that the present High Court Appeal has been filed.

1. Mr. Syed Hassan Ali Advocate appeared on behalf of the appellant and submitted that the order passed by the learned Single Judge is not in accordance with the settled principles of law. While elaborating his arguments he submitted that the learned Single Judge has not taken into consideration that the cheques annexed with the plaint were not in the name of the Respondent, moreover the bills annexed in this regard also do not bear the name of the Respondent. He submitted that this important aspect has not been considered by the learned Single Judge while granting the decree in favour of the Respondent. He in this regard invited our attention of Section 123-A of the Negotiable Instruments Act. He stated that as could be seen from the cheques the name of the Respondent is Agar International (Pvt) Limited whereas the cheques and the bills clearly show the name as that of Agar Corporation. According to the learned Counsel the bank should not have honored these cheques issued as Agar Corporation and Agar International are two separate entities. In support of his above contentions the learned Counsel relied upon the decisions reported as Muhammad Tariq Khan v/s Khawaja Muhammad Javed Ansari (2007 SCMR 818), Muhammad Ayub v/s Barkat Ali Shah (2011 CLC 349) and M/s. C.M. Textile Mills (Pvt.) Ltd. V/s ICP (2004 CLD 587).

2. Mr. Qazi Abdul Hameed Advocate appeared on behalf of the Respondent and at the very outset submitted that the appellant has approached the Court with unclean hands. He stated that the business transaction was carried out between the parties without any hindrance, however subsequently their relations started to aggravate. He submitted that the contention of the learned Counsel for the appellant that Agar Corporation and Agar International are two different entities is belied from the assertion of the appellant himself that he had issued cheques and bills in the name of the Agar Corporation and no problem arose in this regard but however due to reasons best known to the appellant the disputed 48 cheques were dishonored on the flimsy stance taken by the appellant that Agar Corporation and Agar International are two different entities. He submitted that this indifferent altitude of the appellant is so obvious from the fact that when the respondent approached the appellant informing him about the dishonoring of the said cheques, he went on lingering the matter by promising to the respondent that payment will be made in a short span of time. However when the Respondent came to the conclusion that no fruitful result will be achieved, he filed a complaint to the area police and approached this Court. The learned Counsel kept on to argue that the appellant deliberately and willfully failed to pay the disputed amount of Rs. 20,597,046/- and the learned Single Judge was quite justified in passing the decree against the appellant. The learned Counsel also invited our attention to Sections 4, 5 & 6 of the Negotiable Instruments Act by stating that a cheque is a Negotiable Instrument and dishonoring of the same would entail not only lodging of appropriate action as provided under criminal law but also claim of which under civil law as well. He stated that the case of the Respondent is a simple case of mis-naming only as the appellant had not only issued the present disputed 48 cheques but previously had issued a number of cheques in the same name which were encashed by the Bank of the appellant and he had never objected to such encashment. The learned Counsel invited our attention to 118 of the Negotiable Instruments Act also and stated that the present High Court Appeal has been filed with a malafide intention and hence the same is liable to be dismissed with cost. In support of his above contentions the learned Counsel has relied upon the cases reported as Ponnuswami Chetiar v/s P. Velai Muthu Chetiar (AIR 1957 Mad 355), Zujya Pascol Damel v/s Manmohandas Lalubhai Partap (AIR 1940 Bombay 164), Karachi Road Transport Corporation v/s Fazal Brother Limited and another (PLD 1971 Karachi 583), M. Muhammad Shafi and Co v/s A.Rehman Enterprises and others (2010 CLD 920) and Muhammad Sultan v/s The Slate (2010 SCMR 806).

3. We have heard both the learned Counsel at length and have also perused the record and the decisions relied upon. We also sought assistance of Dr. Muhammad Farogh Naseem, who was present in the Court in some other cases and are grateful to him for providing us his opinion.

In order to reach to a final conclusion, it is expedient to first discuss the relevant law in this regard as relied upon by the learned Counsel. Sections 4, 5, 118 & 123-A of Negotiable Instrument Act are reproduced as under:--

"4. "Promissory note".

"Promissory note" is an instrument in writing (not being a bank-note or a currency-note) containing an unconditional undertaking, signed by the maker, to pay certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument".

1. "Bill of exchange".

"Bill of exchange". A "bill of exchange" is an instrument in writing, containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of a certain person or to the bearer of the instrument.

1. "Cheque"

"cheque" is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand.

118. Presumptions as to negotiable instruments--

Presumptions as to negotiable instruments--Until the contrary is proved, the following presumptions shall be made:--

(a) of consideration; that every negotiable instrument was made or drawn for consideration, and that every such instrument, when if has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration ;

(b) as to date; that every negotiable instrument bearing a date was made or drawn on such date ;

(c) as to time of acceptance; that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;

(d) as to time of transfer; that every transfer of a negotiable instrument was made before its maturity;

(e) as to order of indorsements; that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;

(f) as to stamp; that a lost promissory note, bill of exchange or cheque was duly stamped;

(g) that holder is a holder in due course; that the holder of a negotiable instrument is a holder in due course: provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof by means of an SP offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burthen of proving that the holder is a holder in due course lies upon him.

1. Cheque crossed generally.

Cheque crossed generally. Where a cheque bears across its face an addition of the words "and company" or any abbreviation thereof between two parallel transverse lines, or of two parallel transverse lines simply, either with or without the words "not negotiable," that addition shall be deemed a crossing, and the cheque shall be deemed to be crossed generally".

1. Reading of the above sections would reveal that a cheque is a negotiable instrument which may be negotiated and the bank has the duty to place into the account of payee the amount indicated on the cheque when collected and not into any other account. However so far as cross cheque is concerned the same is to be dealt with under specific provisions like Sections 123-A, 124, 129 and 130 of the Act. When a cheque is dishonored the payee could sue for an action for the payment of amount of cheque from its drawer, meaning thereby that if a person gives a cheque for the amount due to be presented at a certain bank on a certain date and if a cheque is dishonored on presentation a person can sue for consideration and get the decree for recovery of that amount in his favour. A cheque is a negotiable instrument resembling a bill of exchange but entirely different, in the ordinary course, it is not intended for a circulation but it is meant for the payment to the person on whose name the said cheque was made. Section 6 defines the cheque as a bill of exchange drawn on a specific bank and not expressed to be payable otherwise than on demand. The drawer must be a person who enters into the contract and should be pointed out with certainty and his signatures on the cheque has to be obtained. Whenever a cheque is dishonored then in such cases execution has been admitted and it is presumed that the said cheque was executed for the consideration mentioned therein and the drawer could hardly wriggle out of the situation that the said cross cheque was meant for any other consideration other than mentioned on the said cheque. The onus in this regard squarely lies on the drawer. Even on reading of Section 123-A of the Act, it is clear that when a cheque is crossed account payee it will cease to be negotiable and it will be the duty of the banker collecting payment of cheque to put the same in the account of the payee mentioned in the said cheque. However if the said Section 123-A of the Act is read with Order XXXVII CPC which applies to all bills of exchange whether negotiable or not a suit upon a crossed cheque account payee only is maintainable. The provisions of Order XXXVII CPC are not only relevant to negotiable instruments only but applies to crossed cheques also.

2. We will now discuss the decisions relied upon by the learned Counsel for the appellant. In the first decision relied upon by him that of Mr. Muhammad Tariq Khan it was held by the Hon'ble Supreme Court of Pakistan that "when the basic order is without lawful authority then the super structure shall have to fall on the ground automatically". In the next decision relied upon by him authored by one of us namely Irfan Saadat Khan. J, a similar view has been reiterated. In the third judgment it was held by a Divisional Bench of Lahore High Court that the Court is bound to consider and examine the plaint as well as the documents relied upon by the plaintiff forming basis of the pleadings before deciding the suit, as a decree could not be passed by the Court in a routine or in cursory manner just because the defendant failed to file a written statement in this regard.

3. The learned Counsel for the Respondent has relied upon the judgments mentioned supra wherein in the case of Poonaswami, quoted supra, it was held as under:--

"The main point of law is whether the absence of the name of the payee in a promissory note will make the note invalid, though the payee was known with certainty even at execution.

Though the name of the plaintiff was not mentioned (perhaps by sheer slip or accident), the lender and borrower knew it, and there was the description. To say that the name must always be mentioned to make a promissory note valid is, in my opinion, not sustainable in any modern Court of justice, equity and good conscience, though such a plea might have been allowed in a Court, like the old Auglo-saxon. Courts deciding on outworn formulate without reference to living facts".

In the case of Zujya it was held as under:--

"(d) Negotiable Instruments Act (1881), S.8-Words "in his own name"--

Scope. The words "in his own name" in S.8 do not and cannot mean

the personal name of the person, and there is no reason to suppose that any 'alias' or assumed trade name would not fall within the meaning of those words".

In the case of Karachi Road it was held as under:--

"But, for my part, the rule which is really applicable to the point at issue is laid down by the English Court of Appeal in Alexander Mountain and Co. vs. Rumere Ltd. (7). In this case, one Alexander Mountain carried business in the name of "Alexander Mountain & Co. " and during his life time entered into a contract under this name. After his death, his executrix brought an action but she sued in the name of Alexander Mountain & Co., which was only a trade name of a sole proprietor who was already dead. It was contended that the action brought by the executrix was bad as the person in whose name the action was brought was already deed. But the Court of Appeal held that the mistake was of misnomer only and allowed the executrix to be substituted as plaintiff. Thus, I find no weight in the objections raised with regard to limitation".

In the case of M. Muhammad Shafi it was held as under:--

"The course of procedure under summary chapter was converted into one applicable to an ordinary Civil Suit and the appellant was not afforded proper opportunity to lead evidence in the sense it ought to have been provided. The respondents were twice granted time to furnish surety but they failed to comply. On the whole the procedure adopted was highly prejudiced to the interest of the appellant. Instead of suit being decreed on failure of the respondents to furnish surety which was a condition precedent to put forth any defence the respondents were allowed to cross-examine the appellant whereas the respondents themselves did not volunteer to subject themselves to the test of cross-examination on the affidavits filed by them in support of application for leave to defend".

In the case of Muhammad Sultan the Hon'ble Supreme Court of Pakistan observed as under:--

"Thus the appellant has not disputed the signature on the cheques in question. It is against the natural conduct that a person would keep a blank signed cheque in the cheque book. Furthermore, D.W.1 has stated that on 26-01-2005 an application was filed by the appellant for stopping the payment of the cheque and that at that time the balance in the account of the appellant was Rs. 300 only. We have perused the said application from which we find that the appellant did not take, the plea that his cheque book was stolen or that a cheque from the cheque book was missing. It appears that balance in the account of the appellant was Rs. 300 only at the time when the application was moved as such it does not appeal the common sense that the appellant would request the bank to stop the transaction when there was meager amount lying in the account.

After considering the material available on record, we are of the considered view that the concurrent findings of the Courts below do not call for interference. The appeal has no merits, therefore, the same is dismissed".

1. Perusal of the above law and the decisions cited supra would leave no room of doubt that a number of cheques were issued by the appellant to the Respondent which were dishonored on presentation. Specific notices were given to the appellant in the suit proceedings to file leave to defend application, which remained unattended. It is clear from the record that no leave to defend application was filed by the appellant and only when the suit came up for final disposal objections were raised that the cheques were issued in the name of Agar Corporation whereas the present suit has been filed by Agar International Limited, little realizing the fact that in the past the appellant had been issuing cheques to the respondent in the name of Agar Corporation limited which aspect has not been denied by the learned Counsel representing the appellant. The learned Counsel for the appellant has also not denied the fact that bills pertaining to the Respondent i.e. Agar International Limited had been issued in the past by the appellant in the name and style Agar Corporation, fully admitting the fact that the bills and cheques were issued in the regard pertains to the present Respondent. Hence taking a somersault now by stating that the cheques were issued by him in the name of Agar Corporation and not in the name of Agar International Limited is unwarranted. It is clear from the pleadings of the appellant that they were mindful of the fact that Agar Corporation and Agar International were the same entity and only took this plea just to wriggle out of the present situation.

2. In our view the learned Single Judge had rightly come to the conclusion and had rightly decreed the suit in favour of Respondent by thrashing out the case in detail and not only examining the material facts going to the roots of the case but also examining the bank statements fully depicting that all the cheques issued by the appellant were deposited in the account of Agar International Limited which subsequently were dishonored. It is evident from the record that all the previous bills were in the name of Agar Corporation and cheques also were in the name of Agar Corporation which were not only deposited timely but were also encashed except the present 48 cheques, which were dishonored with the specific remark of the bank "due to insufficient funds". The malafide on the part of the appellant is also evident from the letter dated 19.06.2006 addressed by the appellant to Abdul Majeed Agar requesting to hold the cheques till July 2006 as due to summer and slow down of season the recovery was very slow. In the said letter it has categorically been mentioned that the present cheques be submitted after July 5th 2006. In the said letter the appellant had categorically apologized to the respondent about the sad/unhappy/embarrassed reason. This above specific letter fully controverts the contention raised by the appellant as on one hand he states that the cheques issued by him were not in the name of Agar International and were in the name of Agar Corporation and these two companies are distinct entities whereas on the other hand he requested to hold the cheques till certain date and apologized for the inconvenience.

3. It is also seen from the record that after dishonoring the cheques, a complaint was filed by way of lodging FIR Bearing No. 215/06 at P.S. Kharadar u/S. 489-F and the Vth Civil Judge/Judicial Magistrate Karachi (South) in the Criminal Case No. 1176/2010 found the appellant to be guilty of charges and liable to be punished for R.I. of three years and a fine of Rs. 45000/- and in case of default of payment of fine to further suffer R.I. for 2 months, vide order dated 28.01.2011.

4. It is also seen from the audited report of the Respondent company of June 2006 that they have duly shown in their list of traders debtors an amount of Rs. 205,970,46/- to be outstanding against the appellant, which also proves that they have claimed the said amount outstanding against the appellant.

5. We, therefore, in view of the uncontroverted facts have come to the conclusion that the appellant had, in consideration of their business dealings, handed over 48 cheques to the Respondent to be encashed as per past practice and by dishonoring of these cheques the appellant has exposed himself to legal action against him. Hence the learned Single Judge was quite justified in decreeing the suit in the amount of Rs. 205,970,46/- alongwith an interest of 10% per annum from the date of filing of suit till the recovery of entire decretal amount. This High Court Appeal thus being bereft of any merit is hereby dismissed.

(R.A.) Appeal dismissed

PLJ 2012 Karachi 89

Present: Muhammad Ali Mazhar, J.

ILYAS AHMED--Plaintiff

versus

MUHAMMAD MUNIR & 10 others--Defendants

Suit No. 628 and C.M.As. Nos. 5702, 4502, 5703 of 2009, decided on 17.11.2011.

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

----S. 4--Partition Act, (V of 1893)--S. 4--Muhammadan Law--Ss. 280 & 231--Sale of undivided part of the property--Co-sharer of property was owner of every inch and cannot be transferred to outsider unless join property was properly partitioned--Co-sharer cannot sell out their share without the consent other co-sharer--Pleas were not raised in plaint--Validity--It is settled principle of law that parties are bound by their pleadings and the plea which has not been raised cannot be taken subsequently in arguments--Nothing had said in plaint that property was a dwelling house, same could not be transferred/sold out by co-sharers unless partition was made--High Court had no hesitation to hold in absence of pleadings, no such plea could be raised or argued--Even if evidence was allowed to be led, no issue could be framed by Court beyond scope of pleadings of the parties--Transferee of a share of dwelling house belonging to a undivided family and rider had been added that if transferee of a share in dwelling house was not a member of undivided family nothing in S. 44 would be deemed to entitle to joint possession or common enjoyment of house--Transferee of a share of dwelling house belonging to undivided family, who was not a member of family would not be entitled to joint possession--Plaint had not been drafted in such a way to bring the suit within parameters and ambit of S. 44 of T.P.A, where Court could grant any appropriate relief--Plaint was rejected. [Pp. 101, 102, 104 & 106] A, B, E, F, L & P

Muhammadan Law--

----S. 235--Claiming right of pre-emption--Requisite conditions under Muhammadan Law, demand for pre-emption can only be made after complying with requisite conditions provided under S. 235 which imposes pre-condition that no person is entitled to right of pre-emption unless he had declared his intention to assert his right immediately on receiving information of sale which formality is called talab-i-muwashibat--Nothing were mentioned in plaint that plaintiff ever expressed his demand and even fulfilled talb-e-muwashibat on receiving information of sale--Talab-i-muwashibat is spoken of first demand and talab-i-ishhad is second demand and third demand consists of institution of suit for pre-emption which was lack in instant case--Omission of pre-emptor to make express reference of talb-i-muwashibat at time of making talab-i-ishhad is fatal to claim of pre-emption--Muwashibat or jumping demand must be as soon as pre-emptor was informed of the fact that property in which he was claiming right of pre-emption has been sold away and has been followed by talab-i-ishhad. [Pp. 101 & 102] C & D

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

----S. 44--Scope--Transfer of share in property by one of two or more co-owners of immoveable property--Proviso in absence of any statutory bar co-owners cannot restrain other co-owner from selling, transferring their respective share in property--No substantive law was shown by which restriction was imposed upon co-sharer of the property from selling their sharers without consent of other co-owners. [P. 103] G

Partition Act, 1893 (IV of 1893)--

----S. 4--Share of dwelling house--Transfer of share in property by one of two or more co-owners of immoveable property--Validity--Where a share of dwelling house belonging to an undivided family had been transferred to a person, who was not a member of such family being share-holder would undertake to buy share of such transferee, make valuation of such share in holder and might give all necessary and proper directions in that behalf--But again no relief had been claimed that plaintiff was ready to buy out the share of transferee. [P. 103] H

Limitation Act, 1908 (V of 1908)--

----Arts. 91 & 120--Cancellation of documents three years of limitation is provided--Limitation of six years begins when right to sue accrues--Art. 120 is residuary article for suit for which no period of limitation is provided elsewhere in schedule of limitation is provided elsewhere in schedule of Limitation Act, and limitation of six years begins when right to sue accrues--Relief claimed in suit for cancellation of sale deed absolutely comes within ambit of Art. 91 of Limitation Act, hence present suit was time barred under Art. 91 of Limitation Act. [P. 103] I

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

----S. 42--Suit for declaration--Right to property--Entitlement was denied--Maintainability of suit--Validity--In even of non-creation of any vested right no relief could be sought u/S. 42 of Act--A person was entitled to any legal character or to any right to property could institute a suit for declaratory relief--Where a person filed a suit claiming entitlement to any right to property which entitlement was denied by defendants or in denying which defendants were interested--It could not apply to a case where plaintiffs did not allege entitlement to any legal character or any right to property--S. 42 does not permit an unrestricted right of instituting all kinds of declaratory suit at will and pleasure of the parties, right was strictly limited--Suit for declaration aliunde was not permissible under law, except in S. 42, therefore, suit was not barred by S. 42 of Specific Relief Act. [P. 104] J & K

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

----O. VII, R. 11--Rejection of plaint--An incompetent suit would be laid at rest at earliest moment so that no further time was wasted over what was bound to collapse not being permitted by law. [P. 105] M

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

----O. VII, R. 11--Rejection of plaint--Inherent powers--While deciding an application u/O. 7, R. 11, CPC, besides, averments made in plaint other material available which on its strength is legally sufficient to completely refute claim of plaintiff, can also be looked into for purpose of rejection of plaint. [P. 105] N

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

----O. VII, R. 11--Rejection of plaint--Contents of written statement--Concealed the material facts from Court--Validity--Where plaintiff concealed material facts from the Court in contents of plaint, in that events material produced by way of filing written statement or along with application u/O. 7, R. 11, CPC could also be kept in mind for rejecting plaint--Court has to consider averments made in plaint while rejecting such plaint it can also look into contents of written statement and other material on record and reject plaint to secure ends of justice or to prevent abuse of process of Court. [P. 105] O

2002 SCMR 338, 2000 CLC 1633, 1989 CLC 15, 1994 MLD 207, 1994 SCMR 826 & 2011 SCJ 1530, ref.

Mr. Asim Iqbal, Advocate for Plaintiff.

Mr. Nadeem Akhtar, Advocate for Defendant No. 1.

Mr. Naeem Iqbal, Advocate for Defendants No. 5 to 11.

Dates of hearing: 18.7.2011, 3.8.2011 & 11.11.2011.

Order

This is a Suit for Declaration, Cancellation and Injunction. The plaintiff has prayed as under:--

(a) "Declaration that the Defendants No. 1 and 4 to 11 have no rights or entitlement in the said Property namely plot bearing Survey No. 4, Survey Sheet No. SB-6 (old Survey No. 9, Survey Sheet No. F-16) admeasuring 1410 Square Yards with building thereon situated on Abdullah Haroon Road, Karachi.

(b) Declaration that the Defendants No. 1 has no right/entitlement to receive any income or benefit whatsoever from the said Property.

(c) Cancellation of conveyance deed dated April, 2005 executed between the Defendant No. 1 and defendants' No. 4 to 11 registered with the Sub-Registrar T-Div-1-A Karachi at Registered No. 1268, Book No. 1, Dated 08.04.2005.

(d) Cancellation and removal of mutation entry in the name of Defendant No. 1 and Defendants No. 4 to 11 from the Registrar of Properties maintained by the Mukhtiarkar, Saddar Town, Karachi.

(e) Injunction restraining the Defendant No. 1 from representing himself to have any right or entitlement in the said Property or any part thereof and claiming any income, rent or benefit therefrom and from transferring any right in the said property to any other person".

1. The facts forming the back ground of this case are that the plaintiffs father Shaikh Fazal Ellahi, the plaintiff and his step brother Saeed Ahmed had jointly purchased a plot Survey No. 4 Survey Sheet No. SB-6 admeasuring 1,410 Sq.yards vide registered conveyance deed dated 22.07.1959. It is further contended that the said property was purchased with the intention that it would be the foundation stone of unity and harmony between the children of Shaikh Fazal Ellahi.

2. It is further stated that after the death of Saeed Ahmed, the Defendant No. 1, who is a stranger attempted to intrude into the plaintiff's family and incited the Defendant No. 4 and Defendant No. 5 to 11, who are mother, sons and daughters of late Saeed, Ahmed to sell out their 1/3rd share to the Defendant No. 1 against the sale consideration of Rs.50 (M) and also executed registered conveyance deed on 08.04.2005. The said sale transaction was also mutated in the record of rights of Mukhtarkar, Saddar Town, Karachi. Just after six months of the execution of conveyance deed, the Defendant No. 1 entered into an agreement to sell with the sons of plaintiff namely Tariq Ilyas, Khalid Ilyas and Sajid Ilyas for the sale of same undivided 1/3rd part of the said property in the sum of Rs. 17,00,00,000/-.

3. It is further asserted that the plaintiff came to know about the conveyance deed when he was served with a notice of Suit No. 1422/2006 filed by the Defendant No. 1 in this Court for declaration and specific performance against co-owners including plaintiff, which was withdrawn, thereafter, he instituted another Suit No. 259/2007, which is pending in this Court. The cause of action is stated to be accrued in the month of November, 2006 when the Defendant No. 1 instituted Suit No. 1422/2006.

4. The Defendant No. 1 has filed this Application (C.M.A No. 5702/2009) under Order VII, Rule 11, CPC for the rejection of plaint on the ground that the plaintiff has sought cancellation of conveyance deed executed in favour of Defendant No. 1 on 08.04.2005 but the suit has been filed in the month of May, 2009, which is time barred. It is further contended that the Defendant No. 1 is the lawful owner of 1/3rd undivided share in the property in question and the plaintiff has no legal character to challenge the Defendant No. 1 undivided share, therefore the suit is also barred under Section 42 of the Specific Relief Act.

5. In response to this application, plaintiff has filed objections, in which he reiterated that he came to know about the conveyance deed in the month of November, 2006. It was further stated that Haji Fazal Ellahi purchased the suit property with his own money. The property was purchased by him in his name and in the name of his two sons i.e. the plaintiff and deceased Saeed Ahmed and entire sale consideration was paid by Haji Fazal Ellahi. In the same objections it was stated that deceased Saeed Ahmed was only entitled to the share of 14/122 which was devolved upon the Defendant Nos. 5 to 11. He further submitted in the objections that co-sharer is the owner of every inch of the property in question and the same can not be transferred to an outsider. The suit is not barred under Section 42 of the Specific Relief Act.

6. It is pertinent to point out that on 16.09.2010, the Advocate for the plaintiff had also filed a statement along with which he filed three affidavits of Defendant No. 4 (Jameela Khatoon) in which she stated that whatever acts done by Defendant No. 5 and other heirs of late Saeed Ahmed with regard to the assets/properties/share, left by late Saeed Ahmed has been done by obtaining her signature on blank documents by way of misrepresentation and concealment of fact. Defendant No. 1 has filed his objections to the affidavits of Jameela Khatoon and stated that two affidavits are only in respect of Aluminum Company of Pakistan Industries (Pvt.) Ltd. and third one is in respect of Kushtiwala Agricultural Farm which was allegedly filed in Suit 1178/2006. No affidavit was filed in relation to any alleged fraud in connection with the property in question. On the contrary, it was stated by the Defendant No. 1 that Jameela Khatoon herself appeared in person before the Sub-Registrar and executed the conveyance deed along with other legal heirs of Saeed Ahmed. I have seen the affidavits filed by Mst. Jamila Khatoon (Defendant No. 5) but in the affidavits, nothing has been said in relation to the property in question rather the conveyance deed executed in favour of Defendant No. 1 clearly shows her signature and photograph that she appeared before the sub-registrar along with other vendors and also endorsed her thumb impression in presence of witnesses. Even otherwise, nothing has been said in the plaint that she did not appear before the sub-registrar at the time of execution and registration of conveyance deed nor does any case appear to have been filed by Jamila Khatoon for the redress of her alleged grievance in relation to her share in the property in question.

7. In order to thrash out the bone of contention, it would be advantageous to refer to other pending suits, which have direct impact and germane not only to the parties but also to the property in question. One Suit No. 259/2007 has been filed by Muhammad Muneer (who is Defendant No. 1 in the present suit) against Ilyas Ahmed (who is plaintiff in the present Suit) and others. Suit No. 259/2007 is for Partition, Rendition of Accounts, Mesne Profits, Damages and Injunction in which Muhammad Muneer has prayed for a decree for partition of the property in question, he has also prayed for the appointment of receiver, preliminary decree, mesne profits, damages and permanent injunction. In Suit No. 259/2007, the Defendant Nos. 1, 2, 3 and 10 have filed their written statement and in Paragraph No. 2 of the written statement, the defendants have admitted that the plaintiff is entitled to l/3rd undivided share in the suit property and the same defendants further stated that the plaintiff has neither requested them to pay their 1/3rd rents being received by owner of the suit property more particularly the plaintiff has agreed to sell and transfer his l/3rd interest in the suit property in favour of Mr.Tariq Ilyas, Mr.Khalid Ilyas and Mr.Sajid Ilyas for valuable consideration in terms of the agreement to sale dated 28.10.2005. The plaintiff in the present suit has prayed for cancellation of conveyance deed while the same person being Defendant No. 1 in Suit No. 259/2007 has admitted in his written statement that Muhammad Muneer is the owner of l/3rd undivided share in the suit property and he came to know about the conveyance deed in the month of June/July 2005.

8. Suit No. 582/2009 has been filed by Tariq Ilyas, Khalid Ilyas and Sajid Ilyas, all sons of Ilyas Ahmed for Specific Performance, Declaration and Injunction against Muhammad Muneer. The gist of this suit is that vide agreement to sale dated 28.10.2005, the Defendant No. 1 (Muhammad Muneer) had agreed to sell out his 1/3rd undivided share in the property in question to the Plaintiffs against the sale consideration of Rs.170 (M). In this suit, the defendant Muhammad Muneer has filed an Application under Section 151 CPC (CMA No. 4635/2009), in which he agreed to perform and undertook to execute the sale deed in favour of plaintiffs subject to payment of balance sale consideration.

9. The learned counsel for the Defendant No. 1 argued that under Article 91 of the Limitation Act, for the purpose of cancellation of instrument under Section 39 of the Specific Relief Act, limitation is three years when the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him. The conveyance deed was registered in the year, 2005 and the Suit was filed in the year, 2009, therefore, it is time barred. He further referred to a certified true copy of written statement filed by the plaintiff in Suit No. 259/2007 which is available on record, in which, the present plaintiff himself admitted that he came to know the registration of conveyance deed in the month of June/July, 2005. The learned counsel argued that the plaintiff has admitted in Paragraph No. 2 of the written statement in Suit No. 259/2007 that the Defendant No. 1 is the owner of 1/3rd undivided share of the property in question, therefore, the plaintiff is estopped to challenge the conveyance deed. He further argued that the suit is also barred under Section 42 of the Specific Relief Act as plaintiff has no right or legal character to challenge the sale of 1/3rd undivided share of the property in favour of Defendant No. 1. The persons who have sold their share to the Defendant No. 1 have no grievance against the Defendant No. 1. In support of his arguments, the learned counsel for the Defendant No. 1 relied upon the following case law:--

(a) PLD 1978 Lahore 113 (Abdur Rehman Mobashir v Syed Amir Ali Shah Bukhari).--In this case the learned division bench of Lahore High Court discussed in detail the applicability of Section 42 of the Specific Relief Act and held that Section 42 of the Specific Relief Act applies only to a case where a person files a suit claiming entitlement to any legal character or any right to property which entitlement is denied by the defendants or in denying which the defendants are interested. It cannot apply to a case where the plaintiffs do not allege their entitlement to any legal character or any right to property or its denial by the defendants. As a necessary corollary it can not apply to a case where only the entitlement to the legal character or the property of the defendant is denied by the plaintiff. Section 42 would be attracted to a case in which the plaintiff approaches the Court for the safeguard of his right to legal character or property but where right to his own legal character or property is not involved the Suit is not maintainable. The Suit must be one which must bring benefit to him in regard to these two rights, no suit involving any other right, hypothetical or abstract would be competent under that Section. The Court will not therefore entertain Suits in which no benefit accrues to the plaintiff or where the plaintiff sets-up, merely an abstract right to satisfy his ego or satisfy his grudge against another person. Section 42 can not be invoked in the matters of mere sentiments which have no concern with the vindication of the plaintiff's title to status and property.

(b) AIR 1961 Calcutta 411 (Sanat Kumar Mitra v. Hem Chundra and Dey). In this case it was held that where a suit is instituted by the plaintiff not for a declaration or of his own right to property or his right to a legal character but to challenge the defendant pretension to a legal character and to right to property. Such a suit does not come under Section 42.

(c) 2003 SCMR 50 (Rehmatullah Khan v. Government of Pakistan). In this case, the honorable Supreme Court held that in the event of non-creation of any vested right no relief can be sought under Section 42 of the Specific Relief Act. In the circumstances the petitioners were rightly non-suited by the two Courts below.

(d) PLD 1965 SC 83 (M.A. Naser v. Chairman Pakistan Eastern Railways). In this case while dilating upon Section 42 of the Specific Relief Act the honorable Supreme Court held that under the provisions of Section 42 of the Specific Relief Act a person entitled to any legal character or to any right to property can institute a Suit for declaratory relief in respect of his title to such legal character or right to property. Section 42 does not contemplate a Suit for declaration that a catering, contract between contractors and Railway administration to supply refreshments in refreshment room of the Railway and to run their buffet cars was still subsisting.

(e) PLD 1967 Dhaka 190 (Burmah Eastern Limited v. Burmah Eastern Employees Union). In this case the Court while considering Order VII, Rule 11 CPC held that it is the duty of the Court to reject the plaint if on a perusal thereof, it appears that the suit is incompetent, the parties to the suit are at liberty to draw Courts' attention to the same by way of an application. The principles involved are two-fold. In the first place it contemplates that a still born suit should be properly buried, at its inception so that no further time is consumed on a fruitless litigation. Secondly it gives plaintiff a chance to retrace his steps at the earliest possible moment, so that, if permissible under law, he may found a properly constituted the case. Order VII, Rule 11 CPC enumerates certain categories under which the Court is called upon to reject a plaint but it is obvious that they are not exhaustive. It appears from the language of Rule 11 of Order VII, that it requires that an incompetent suit should be laid at rest at the earliest moment so far no further time is wasted over what is bound to collapse as not being permitted by law. In the same judgment the learned bench has also discussed Section 42 of the Specific Relief Act and held that a suit for mere declaration aliunde is not permissible under the law except in the circumstances mentioned in Section 42 of the Specific Relief Act. Thus a mere declaration can be asked for breach of proprietary right or for declaration of legal character. The expression, legal character has been understood as synonymous with the expression status. Section 42 does not permit an unrestricted right of instituting all kinds of declaratory suit at the will and pleasure of the parties, right is strictly limited.

(f) 2007 SCMR 85 (Rasool Bux v Muhammad Ramzan). In this case it was held that under Section 49 of the Registration Act, the registered document has sanctity attached to it and stronger evidence is required to cast aspersion on its genuineness. Such document is not only binding on the parties in the documents but is equally applicable to third party.

1. On the contrary, the learned counsel for the plaintiff argued that the plaintiff came to know about conveyance deed in November, 2006 when the Defendant No. 1 instituted Suit No. 1422/2006, therefore, the suit was instituted within time. He further argued that Haji Fazal Ellahi purchased the property in question from his own money and it is no where stated that any amount was contributed by the plaintiff or the deceased Saeed Ahmed nor any specific partition of share was made. It was further averred that the co-sharer of the property is the owner of every inch and the same can not be transferred to an outsider unless the joint property is properly partitioned. He further argued that under Section 44 of the Transfer of Property Act, co-sharer can not sell out their share without the consent plaintiff and since the plaintiff is co-sharer, therefore, he has legal character to challenge the conveyance deed in question.

2. The learned counsel referred to one of the clauses of conveyance deed in question and argued that it is mentioned in it that possession of the alleged 1/3rd share has been delivered to the Defendant No. 1, which is a wrong statement. According to the learned counsel, it is a case of ostensible ownership and entire sale consideration of the property was paid by Haji Fazal Ellahi, therefore, the legal heirs of deceased Saeed Ahmed would only be entitled to share of 14/112 in the suit property and not the l/3rd share. The learned counsel also referred to Section 4 of the Partition Act, 1893, which provides that where a share of dwelling house belonging to an undivided family, has been transferred to a person, who is not a member of such family, the transferee sue for partition, Court shall if any member of the family being a share-holder, shall undertake to buy the share of such transferee, make valuation of such share in such manner as thinks fit and direct sale of such share to such share-holder and may give all necessary and proper directions in that behalf. He further referred to Section 44 of the Transfer of Property Act and argued that without the consent of plaintiff/co-sharers, other co-owner/co-sharer could not sell the property to the Defendant No. 1.

3. The learned counsel further argued that under Section 231 of Mohammadan Law, plaintiff being a co-owner can claim pre-emption as the right of pre-emption rises out of a valid, complete and bona fide sale and he further referred to Section 230 of Mohammadan Law, which provides three classes of persons who are entitled to claim pre-emption out of which the first category relates to a co-sharer of the property who is called Shafi-i-Sharik. So far as the question of limitation is concerned, the learned counsel argued that since he has challenged the sale transaction and sought the declaration, therefore, Article 120 of the Limitation Act is applicable, which provides six years limitation for filing the Suit. In support of his contention, the learned counsel referred to following case law:--

(i) AIR 1990 SC 867 (Dorab Cawasji Warden v. Coomi Sorab Wardon). In this case Section 44 of the Transfer of Property Act was discussed and held the appellant/plaintiff and his brother holding disputed dwelling house belonged to an undivided family. Property not divided by metes and bounds. Appellant's brother dying intestate. Transfer of brother's share by a widow and sons, would come within mischief of second paragraph of Section 44. Vendee taking possession of house. Irreparable injury likely to be caused, to the plaintiff. Interim injunction against the vendors and vendees regarding possession can be issued.

(ii) AIR 1958 Calcutta 614 (Paresh Nath Biswas v Katnal Kirishna Choudhury). In this case also Section 44 was under discussion and the Court went on to hold that upon a transfer to stranger of an undivided share of family dwelling house by a co-sharer of it, the other co-sharer can maintain a suit for injunction for restraining the stranger transferee from exercising any act of joint possession in respect of the share transferred.

(iii) AIR 1971 Orissa 198 (Bhim Singh v. Ratnakar). In this case again Section 44 of the Transfer of Property Act was discussed and the Court held that this Section prevents intrusion of strangers into the family residence, which is to be enjoyed by members of the family alone in spite of transfer of share therein to stranger. Stranger transferees who are thus debarred by law from exercising right to joint possession should therefore be kept out.

(iv) 2000 CLC 1138 (Noor Rehman v. Muhammad Yousuf). In this matter the Court discussed the partition of joint property and held that where no regular partition has taken place between the contesting parties, co-sharer has a right in each and every number of the Khasra of the suit land irrespective of quantity and quality. Co-sharer who is in exclusive possession of the specific portion of a joint property can not alienate, transfer, or change the same unless a regular partition takes place between the co-sharer.

(v) 1989 SCMR 130 (Ali Gohar Khan v. Sher Ayaz). In this matter, it was held that in case of joint immovable property, each co-sharer deemed to be interested in every inch of subject matter irrespective of quantity of his interest. Co-sharer in possession cannot change nature of property in his possession unless partition takes place.

(vi) 2001 SCMR 1062 (Sarfraz v. Muhammad Aslam). In this case, it was held that claimants would be entitled for the enforcement of their rights under the Mohammedan Law, like the provinces of Sindh and Balochistan where no statutory laws governing pre-emption suits are applicable.

(vii) 1989 CLC 1922 (Maulaedino and others v. Matloob Hussain). In this case, it was held that in the province of Sindh unlike the provinces of Punjab and NWFP in absence of any statute on pre-emption, right of pre-emption was enforceable under the Muhammedan Law through civil Courts of competent jurisdiction.

(viii) PLD 1995 Karachi 608 (Iftikharuddin v. Jamshed K.A. Marker). In this case it was held that while there is no statutory law on pre-emption as far as provinces of Baluchistan and Sindh are concerned, therefore, in those provinces including Karachi law of pre-emption would be governed, if there was an established custom, of according to Islamic Law.

(ix) 2000 SCMR 1058 (Laloo v. Ghulaman). In this case, it was held that under Article 120 of the Limitation Act, one can challenge the transaction of sale within six years of the sale of the land, which of course is the date of knowledge thereof.

(x) 2004 SCMR 1502 (Rehman v. Yara). In this case, it was held that provision of Section 42 of the Specific Relief Act and Article 120 of Limitation Act would be applicable whereby the suit for declaration as to the right or interest in immovable property and suit could be filed within six years from the date on which right to sue accrued.

(xi) 2006 VLR 599 (Kaleem Haider Zaidi v. Mahmooda Begum). In this case, it was held that suit for declaration with regard to an exclusive claim to a property on the basis that it was purchased as benami was to be brought in Court within six years.

(xii) 2007 YLR 2134 (Dhani Bux v. Ali Sher). In this case, it was held that in the suit for declaration, right to sue accrues when the right in respect of which the declaration is sought is denied or challenged by the defendants and the time would only start running when such rights are actually interfered with.

(xiii) 2006 MLD 1429 (Mst. Sara Bai v. Iqbal). It was held that suit for which no period of limitation is provide elsewhere in the schedule can be filed under Article 120 of the Limitation Act within six years when the right to sue accrues.

(xiv) 2009 CLC 39 (Dr. Khusro Kamal Zia v. Dr. Zehra). In this case, office had raised the objection that suit was barred under Article 91 of the Limitation Act as the same was filed after lapse of three years. Said objection was resisted by the plaintiff on the ground that documents pertaining to the suit property having been sought to be declared as benamdar therefore Article 120 of the Limitation would be applicable in the case.

(xv) 2009 CLC 824 (Farooq Inayat v. Haji Abdul Sattar). It was held that plaintiff relied upon applicability of Article 120 and not Article 91 of the Limitation Act on the premises that he came to know about order regarding cancellation of PTD in some proceedings before Evacuee Trust Board. Applicability of question of limitation being mix question of law and facts and which required evidence.

1. Malik Naeem Iqbal Advocate appeared and filed a statement on behalf of Defendants No. 5 to 11, he supported the Defendant No. 1 and also adopted the arguments of Mr. Nadeem Akhtar Advocate advanced by him in support of his application moved under Order VII, Rule 11 C.P.C. He further argued that Defendants No. 5 to 11 have lawfully, executed the conveyance deed in favour of Defendant No. 1 and the plaintiff has no right and authority to challenge the conveyance deed in question.

2. The learned counsel for the plaintiff raised many pleas, which have not been raised or set up in the plaint such as plea of pre-emption, Shafi-i-Sharik, ostensible ownership and or relief within the ambit or parameters of Section 44 of the Transfer of Property Act or Section 4 of the Partition Act. It is settled principle of law that the parties are bound by their pleadings and the plea which has not been raised, can not be taken subsequently in the arguments. Reference can be made to PLD 2007 SC 460 (Fateh Muhammad v. Muhammad Adil), in which, the Honorable Supreme Court held that the parties are bound by their pleadings. In PLD 2007 SC 582 (Zulfiquar v. Shahadat Khan), the Honorable Supreme Court held that unless a case is set up in the pleadings, the decision of the case can not based on such plea. This has been the consistent law with a rational that other party is not to be taken by surprise. In this case also the plaintiff can not substantiate and prove a case beyond the scope of pleadings and even if any evidence is brought on the record outside the purview thereof, this can be ignored and overlooked by the Court. It is manifestly clear that this is not a suit for pre-emption and plaintiff has not claimed any relief in connection with his alleged right of pre-emption as provided under Sections 230 and 231 of Mohammadan Law, or within the scope and ambit of Section 44 of the Transfer of Property Act or Section 4 of the Partition Act. Nothing has said in the plaint that the property in question is a dwelling house, therefore, the same can not be transferred/sold out by the co-sharers, unless partition is made. I have no hesitation to hold in absence of pleadings, no such plea can be raised or argued. Even if the evidence is allowed to be led, no issue can be framed by the Court beyond the scope of pleadings of the parties.

3. It is another important aspect that under the Mohammadan Law, the demand for pre-emption can only be made after complying with the requisite conditions provided under Section 235 which imposes a pre-condition that no person is entitled to the right of pre-emption unless he has declared his intention to assert his right immediately on receiving information of sale which formality is called the Tlab-i-Mowasibat. Nothing has been mentioned in the plaint that the plaintiff ever expressed his demand and even fulfilled the Tlab-i-Mowasibat on receiving information of the sale. The Tlab-e-Mowasibat is spoken of first demand and Tlab-i-Ishhad is the second demand and the third demand consists of institution of the suit for pre-emption which lacks in this case. The Tlab-i-Mowasibat and Tlab-i-Ishhad are conditions precedent to exercise of the right of pre-emption. It is stated in the Hedaya (Page-550) that the right of Shuffa (pre-emption) is but feeble right as it is the disseizing of another of his property merely in order to prevent apprehended inconveniences hence the formalities must be strictly observed, and there must be a clear proof of their observance. Omission of pre-emptor to make express reference of Tlab-i-Mowasibat at time of making Tlab-i-Ishhad is fatal to claim of pre-emption. Mowasibat or jumping demand must be as soon as pre-emptor was informed of the fact that the property in which he was claiming right of pre-emption has been sold away and has been followed by Tlab-i-Ishhad. (Reference can be made to principle of Mohammadan Law authored by Sir Dinshah Fardunji Mulla, revised by M. Hidayatullah, Pakistan Edition 2007, Mansoor Book House Page 372 and 373).

4. Though the applicability or implication of Section 44 of the Transfer of Property Act or Section 4 of the Partition Act is not a part of pleadings, even then, I would like to point out that later part of Section 44 of the Transfer of Property Act provides that where transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section, shall be deemed to entitle him to join possession or other common or part enjoyment of the house. This particular Section does not impose any condition by itself restraining the co-owners to transfer their share of such property or any interest therein but the condition imposed in the later part only relates to a transferee of a share of a dwelling house belonging to a undivided family and rider has been added that if a transferee of a share in dwelling house is not a member of undivided family nothing in this section shall be deemed to entitle him to joint possession or common enjoyment of the house. The true and proper construction of second paragraph of Section 44 of Transfer of Property Act is that the transferee of a share of a dwelling house belonging to a undivided family, who is not a member of the family shall not be entitled to joint possession. The dwelling house is one which is being used or is capable of being used as a dwelling house. The plaintiff in Paragraph 2 of the plaint has himself provided the particulars of various tenants operating their business in the building which clearly shows that building in question is commercial property, and not a dwelling house. The plaintiff in the same paragraph mentioned the rental income and further stated that entire property is fully occupied by the tenants and never been in a physical vacant possession of the parties. Section 44 permits transfer of share in the property by one of two or more co-owners of immoveable property subject to the conditions mentioned in the section and its Proviso in absence of any statutory bar the co-owners can not restrain other co-owner from selling, transferring their respective share in the property. No substantive law was shown by which the restriction is imposed upon the co-sharer of the property from selling their respective shares without the consent of other co-owners.

5. So far as Section 4 of the Partition Act is concerned, it also speaks about that where a share of a dwelling house belonging to an undivided family has been transferred to a person, who is not a member of such family and such transferee sue for partition, the Court shall if any member of the family being share-holder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as thinks fit and direct sale of such share to such share-holder and may give all necessary and proper directions in that behalf. But again no relief has been claimed that the plaintiff is ready to buy out the share of transferee. In Paragraph No. 11 of the plaint, it is stated that the property is un-partitioned and in order to keep the said property intact and to keep interest of family integrated the plaintiff and other family members are ready and willing to refund, re-pay to Defendant No. 1, the amount if paid by him to the Defendant Nos. 4 to 11 which plea could be taken by the plaintiff in the Suit No. 259/2007 filed by the Defendant No. 1 against the plaintiff and other co-sharers for partition of his 1/3rd share. Even otherwise, no undertaking or willingness has been shown by the plaintiff in the present suit that he is interested to buy the 1/3rd share transferred to Defendant No. 1.

6. It is an admitted position that the plaintiff came to know about the conveyance deed in the month of June/July, 2005 and the present suit for cancellation has been filed in the month of May 2009 which is beyond the period of three years. For the purposes of cancellation of documents three years of limitation is provided under Article 91 of the Limitation Act and time begins to ran when the fact entitling the Plaintiff to have instruments cancelled or set-aside become known to him. The argument of the learned counsel for the plaintiff that in this case Article 120 of the Limitation Act applies is without any force. Article 120 is a residuary Article for the Suits for which no period of limitation is provided elsewhere in the Schedule of Limitation Act and limitation of six years begins when the right to sue accrues. The relief claimed in the suit for cancellation of sale-deed absolutely comes within the ambit and scope of Article 91 of the Limitation Act, hence the present suit is time barred under Article 91 of the Limitation Act.

7. So far as the relief of declaration is concerned, it has been claimed by the plaintiff in a negative form and not to safeguard his legal character or right to property, which entitlement is denied by the defendant but the plaintiff has prayed for declaration that the Defendants No. 1 and 4 to 11 have no right or entitlement in the suit property, which is not permissible. Being fortified by the dictums referred to by the learned counsel for the Defendant No. 1 supra, I have reached to an irresistible conclusion that in the event of non-creation of any vested right no relief can be sought under Section 42 of the Specific Relief Act. Under the provisions of Section 42 of the Specific Relief Act a person entitled to any legal character or to any right to property can institute a suit for declaratory relief in respect of his title to such legal character or right to property. The expression, legal character has been understood as synonymous with the expression status. Section 42 of the Specific Relief Act applies only to a case where a person files a suit claiming entitlement to any legal character or any right to property which entitlement is denied by the defendants or in denying which the defendants are interested. It cannot apply to a case where the plaintiffs do not allege their entitlement to any legal character or any right to property or its denial by the defendants. As a necessary corollary it can not apply to a case where only the entitlement to the legal character or the property of the defendant is denied by the plaintiff. Section 42 would be attracted to a case in which the plaintiff approaches the Court for the safeguard of his right to legal character or property but where right to his own legal character or property is not involved the suit is not maintainable. In the present suit, the plaintiff has not approach this Court for a declaration of his own right to property or his right to a legal character but has challenged the defendant pretension to a legal character and to right to property. Section 42 does not permit an unrestricted right of instituting all kinds of declaratory suit at the will and pleasure of the parties, right is strictly limited. Suit for mere declaration aliunde is not permissible under the law, except in the circumstances mentioned in Section 42, therefore, the suit in question is also barred by Section 42 of the Specific Relief Act.

8. The case law relied upon by the learned counsel for the plaintiff are distinguishable to the facts and circumstances of the case. Mostly focused and related to right of pre-emption and or applicability of Section 44 of the Transfer of Property Act. Neither the prerequisites required to be fulfilled prior filing suit for pre-emption have been fulfilled as discussed supra nor it is a case for pre-emption. So far as the applicability of Section 44 of the Transfer of Property Act or Partition Act is concerned, the points raised orally are beyond the pleadings. Even otherwise, the plaint has not been drafted in such a way to bring the suit within the parameters and ambit of aforesaid sections where the Court can grant any appropriate relief. So far as case law related to Limitation Act is concerned, the same are also not helpful to the case of the plaintiff as in most of the cases, limitation of suit for declaration had been discussed and not the cancellation of document under Article 91, except in one case reported in 2000 SCMR 1058 in which only mutation entry was challenged on the ground of fraud and misrepresentation and Honorable Supreme Court held that transaction can be challenged within a period of six years. No case of cancellation of registered indenture of conveyance deed was involved in the case before Honorable Supreme Court. In the judgment reported in 2009 CLC 824, the learned division bench of this Court held that applicability of Article 91 or Article 120 is a mix question of law and fact hence requires evidence. This observation was made because in this case, a plea was taken that plaintiffs came to know about the cancellation of PTD in some proceedings before Evacuee Trust Board. This case is distinguishable. In the case in hand, certified true copy of written statement filed by the plaintiff in Suit No. 259/2007 clearly shows that he came to know the factum of sale-deed in the month of June/July 2005, therefore, on the basis of firm admission, the question of limitation in this case is not a mix question of law and facts and no evidence is required to be recorded. On the contrary, the case law referred to by the learned counsel for the Defendant No. 1 in relation to the guiding principles to claim and award declaratory relief and the rejection of plaint are attracted and germane to the facts and circumstances of this case.

9. Order VII, Rule 11 CPC enumerates certain categories under which the Court is called upon to reject a plaint but it is obvious that they are not exhaustive. It appears from the language that an incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what is bound to collapse not being permitted by law. It is necessary incidence that in the trial of judicial issues i.e. suit which is on the face of it incompetent not because of any formal, technical or curable defect but because of any express or implied embargo imposed upon it by or under law should not be allowed to further encumber legal proceedings. If as a result of proceedings of law, the suit is barred, it would be based under the law, although, strictly speaking, it may not be specifically barred by law in excess terms. The Court should in such a case reject the plaint under its inherent powers. While deciding an application under Order VII, Rule 11 C.P.C, 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 the plaintiff, can also be looked into for the purpose of rejection of the plaint. It does not necessarily mean that the other material shall be taken as conclusive proof of the facts stated therein, but it actually moderates that other material on its own intrinsic value be considered alone with the averments made in the plaint. It is also settled proposition of law where the plaintiff concealed the material facts from the Court in the contents of the plaint, in that events material produced by way of filing written statement or along with application under Order VII, Rule 11, C.P.C could also be kept in mind for rejecting the plaint. Generally, Court has to consider averments made in plaint while rejecting such plaint, however, it can also look into the contents of written statement and other material on record and reject plaint summarily to secure ends of justice or to prevent abuse of the process of Court. Apart from contents of plaint, material produced in defence can also be kept in mind for rejecting a plaint. Reference can be made to PLD 1967 Dhaka 190, 2002 SCMR 338, 2000 CLC 1633, 1989 CLC 15, 1994 MLD 207, 1994 SCMR 826 and 2011 SLJ 1530.

10. For the foregoing reasons, Civil Misc. Application No. 5702/2009, moved under Order VII, Rule 11 C.P.C. is allowed. Plaint is rejected. Since the plaint has been rejected, all other pending applications are dismissed being infructuous.

(R.A.) Plaint rejected

PLJ 2012 Karachi 106 [Sukkur Bench]

Present: Muhammad Ali Mazhar, J.

MOAR through his Legal Heirs--Applicant

versus

MEMBER BAORD OF REVENUE, SINDH and others--Respondents

R.A. No. 132 of 2004, decided on 21.11.2011.

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

----O. XLI, R. 31, S. 115--Land Revenue Act, 1967, S. 164(4)--Validity and proprietary of order passed by Board of Revenue--Appellate Court without examining evidence or any policy documents affirmed order BOR--Question of--Judgment of appellate Court would state points for determination, decision and reasons for decision--Validity--Where appellate Court overlooks ignored failed to consider evidence or order of appellate Court lacks application of mind, it would amount to failure to comply with mandatory provisions of the Rule 31 of CPC--It had made sincere endeavor to make proper appraisement of merits of case put forward by parties--Concurrent findings could not be considered sacrosanct or sacred in a situation where rights of the parties were not determined in accordance with law and judgment of the Courts below were perversed or based on mis-reading or non-reading of evidence--Revisional jurisdiction as a matter of fact was meant to rectify errors made by sub-ordinate Courts--Matter was remanded to decide appeal afresh. [Pp. 110 & 111] A & C

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

----O. XLI, R. 31--Scope of--Objection of Order 41, Rule 31, CPC is to focus the attention of Court and parties on specific rival contentions--Appellate Court would discuss evidence on record and its judgment must be supported by reasons. [P. 110] B

Mr. David Lawrence, Advocate for Applicant.

Mr. Gianchand Keswani, Advocate for Respondents.

Mr. Imtiaz Ali Soomro, AAG.

Date of hearing: 6.10.2011.

Order

By this revision application, the applicant has challenged the judgment and decree dated 28.08.2003, passed in F.C. Suit No. 47/95 and judgment dated 27.08.2004 and decree passed by the IVth Additional District and Session Judge, Mirpur Mathelo in Civil Appeal No. 69/2003.

1. Succinctly the facts are that the applicant had filed a suit for declaration and permanent injunction that the land S. No. 678(4-05) of Deh Jarwar was State land falling within the territorial limits of Taluka Mirpur Mathelo, District Ghotki, which was placed in schedule for disposal to Haris/Small Khatedars, which was granted to one Matoo S/o Attal by the Colonization Officers, Guddu Barrage, Sukkur on permanent tenure for Kharif 1975-1976. Being aggrieved by this transfer, the applicant moved an appeal to Respondent No. 2. During pendency of appeal, the original grantee realized the right of plaintiff/ applicant and filed a compromise statement, whereby the land was surrendered in favour of applicant before the Defendant/Respondent No. 2. The compromise, was allowed and Colonization Officer, Guddu Barrage was directed to make necessary changes in the record vide order dated 21.01.1979. Since the date of order, the applicant was peacefully enjoying the possession over the said land. After at least 18 years, the Defendant/Respondent No. 1 initiated Suo Moto revisional powers under the Land Revenue Act and issued notice. On 07.12.1994, when the plaintiff/applicant was confined to bed and even he could not inform his counsel, the Respondent No. 1, taking an undue advantage of the plaintiffs absence, without providing any opportunity passed the order and revoked the grant of land and directed the Defendant/Respondent No. 3 to take further action in the matter.

2. The Defendants No. 6 and 7 filed their written statement while Defendant No. 5 adopted the same written statement. The trial Court framed seven issues and recorded the evidence. The plaintiff/ applicant adduced evidence through his attorney Piyaro and except Defendant/Respondent No. 5, no further party had adduced any evidence. After recording the evidence, the suit was dismissed and appeal filed by the applicant was also dismissed.

3. The learned counsel for the applicant argued that the trial Court framed the issue regarding the validity and proprietary of the impugned order passed by the Member, Board of Revenue but the finding on this issue is contrary to the law and the evidence available on the record. He further argued that no opportunity of hearing was provided to the applicant to place his point of view before the Member, Board of Revenue. In the impugned order, it was wrongly observed that the land in question lying within 20 chains of the village stands disposed of to the respondents by Colonization Officer, Guddu Barrage, Sukkur, which is against the provisions of the land grant policy vide condition No. 9 of Harap grant policy notified on 20.11.1972 and since the show-cause notice was, un-rebutted, therefore, in exercise of his power vested under Section 164(4) of the Land Revenue Act, the Colonization Officer was directed to take further necessary action in the matter. The learned counsel further argued that since 1979 when the applicant acquired the land by way of compromise statement/surrender, he was in continuous peaceful possession and also paying land revenue regularly and promptly. The learned counsel further argued that the learned Appellate Court has not considered the crucial question involved in the matter and appeal was dismissed without framing the points for determination, which is against the provisions of Order XLI, Rule 31, CPC, therefore he argued that the judgment passed by the Appellate Court is liable to be set aside. He further argued that besides considering the illegality in the impugned order which was passed without affording any opportunity of hearing to the applicant, it was also necessary for the Appellate Court to look into the other important aspects on which the impugned order is based upon including the matter whether the land in question is lying within 20 chains of the village or not, which important and crucial aspect was also overlooked and appeal was dismissed. In support of his arguments, the learned counsel referred to 2010 CLC 1931 (Allahyar and others v. Jiand and others) in which it was held that the provisions of Order XLI, Rule 31, CPC are mandatory in nature and the Appellate Court cannot dispose of an appeal without following the above mentioned provisions and without framing points for determination. He next relied upon 2001 SCMR 772 (Mst. Sughran Bibi and others v. Mst. Jameela Begum and others) in which it was held that the issues framed by the Court should correctly reflect the controversies arising from the pleadings of the parties so that effective judgment could be rendered on the disputed facts and the parties should know as to on what facts the evidence was to be led. Learned counsel further relied upon 2002 CLC 1049 (Muhammad Sadiq v. Secretary to the Government of Pakistan, Ministry of Religious Affairs Zakat and Ushr and Minority Affairs) in which it was held that public functionaries are duty bound to decide the controversy with reasons as provided by Section 24-A, General Clauses Act, 1897 and where the order does not contain any reason, such order is not sustainable in the eyes of law. The learned counsel lastly relied upon an unreported judgment of this Court passed in Civil Revision No. 43/2006 (Ghulam Mustafa v. Mst. Hanifan and others) in which the matter was remanded to the trial Court with an additional issue to decide whether the suit land is situated within 20 chains of an existing village or not.

4. The learned counsel representing the Respondent No. 6 and L.Rs. of Respondents No. 5 and 7 argued that the learned trial Court had rightly dismissed the suit as the applicant failed to prove his title to the land in question and he further argued that while passing the impugned order the Respondent No. 1 rightly held that the land in question is lying within 20 chains of the village, which was disposed of by the Colonization Officer, Guddu Barrage against the provisions of land grant policy, therefore, the impugned order does not call for any interference which was passed in accordance with law.

5. The learned AAG supported the order passed by the Respondent No. 1 on 01.12.1994 and argued that proper opportunity was afforded to the applicant but he failed to file reply to the show-cause notice and also his advocate did not argue the matter and pleaded no instructions before Member, BOR, therefore, the trial Court rightly dismissed the suit and the appellate Court has rightly affirmed the judgment and decree of the trial Court.

6. After hearing the arguments of the learned counsel, I have reached to an irresistible conclusion that while hearing appeal, the learned Court instead of framing the points for determination only reproduced the issues framed by the trial Court. Although, in the impugned judgment, the appellate Court has recognized the grant in favour of Matoo and then in favour of applicant but the appellate Court without examining evidence or any policy document, simply affirmed the order of Member BOR that the land in question was within 20 chains of the village and the same was disposed of against the land grant policy. The order of Member BOR was upheld by the appellate Court for the reason that the order was passed under the Land Revenue Act, therefore the order will deem to be a judicial order and could not be deemed to be illegal, this approach of the Court is not correct. Nothing has been said in the appellate judgment that the learned appellate Court has examined the legality, validity and proprietary of the impugned judgment. The learned appellate Court further observed that under Section 161 of the Land Revenue Act, there is a procedure in which notice is not necessary to be issued to the appellant by the Revenue Officer while hearing appeal and there is no obligation upon the Revenue Officer to serve the notice upon the appellant but in spite of that the appellant was admittedly called absent. The Member, Board of Revenue had passed the order under Section 164 of the Land Revenue Act and though notice was served but the advocate representing the applicant simply pleaded no instructions and on the basis of his statement, the matter was decided ex parte. Let it be clarified first that Section 161 is only relevant to appeals and it has nothing to do with the provision of Revision provided under Section 164 of the Land Revenue Act. The applicant claims to be in possession for a considerable time, therefore keeping in view the principle of natural justice especially in the circumstances when the learned advocate allegedly pleaded no instructions, at least a further notice was required to be served upon the applicant in order to prove his title and take all necessary steps to defend the proceedings. Though in the order, the Member Board of Revenue observed that the land is lying within 20 chains of the village, but the order does not speak as to how he has arrived this finding. No efforts are shown to have been made to reconcile with cogent evidence or reasoning that the property in question is lying within 20 chains and mere mentioning the grant policy without discussing its relevant conditions is not sufficient to prove that the property in question falls within 20 chains of the village. It also appears from the impugned appellate judgment that while deciding the appeal, the documents produced in the evidence have not been considered but it was observed that since the land in question was meant for "Asaish" purpose of village Muhammad Azeem, therefore, the grant was rightly revoked by the Respondent No. 1. The function of the appellate Court is to examine the legality and proprietary of the impugned judgment and the decree passed by the trial Court and pass the judgment keeping in view the law, evidence recorded and documents produced, which have not been done in this case.

7. The expression "points for determination" refers to all the questions involved in the case including question of jurisdiction. While considering the provisions of Order XLI, Rule 31, CPC, it is clear beyond any shadow of doubt that the judgment of the appellate Court shall state the points for determination, decision thereon and the reasons for decision. The above rule is mandatory in nature and should be followed to enable the appellate Court to decide the matter in accordance with law. Where appellate Court overlooks, ignores, fails to consider evidence on record or order of appellate Court lacks application of mind, it would amount to failure to comply with the mandatory provisions of the above rule. Perusal of the judgment passed by lower appellate Court must show that it has made a sincere endeavor to make proper appraisement of merits of case put forward by the parties. The object of Order XLI, Rule 31, CPC is to focus the attention of Court and parties on specific rival contentions. Appellate Court should discuss evidence on record and its judgment must be supported by reasons.

8. The concurrent findings cannot be considered sacrosanct or sacred in a situation where the rights of the parties are not determined in accordance with law and the judgment of the Court below are perverse or based on misreading or non-reading of evidence. The revisional jurisdiction as a matter of fact is meant to rectify the errors made by subordinate Courts.

9. As a result of above discussion, the impugned judgment dated 27.08.2004, passed by IVth Additional District Judge, Mirpur Mathelo in Civil Appeal No. 69/2003 and the appellate decree dated 02.09.2004 are set aside. Matter is remanded to the appellate Court to decide the appeal afresh after hearing the parties and if deem fit, the appellate Court may also record the additional evidence.

(R.A.)

PLJ 2012 Karachi 111 (DB)

Present: Munib Akhtar and Syed Hasan Azhar Rizvi, JJ

Mst. FARZANA and another--Petitioners

versus

Mst. SEHTI and 3 others--Respondents

C.P. No. 1820 of 2011, decided on 3.2.2012.

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

----Ss. 139, 140, 141 & 142--Partition proceedings--Right of appeal--Jurisdiction--Powers of Revenue Officer to award any amount by way of compensation--Scope--Revenue-Officers could decide himself only question of title in property to be partitioned while acting as a civil Court of competent jurisdiction, but could not decide all other questions falling within jurisdiction of civil Court--Revenue Officer while deciding questions as to property to be partitioned or mode of its partition would act only as Revenue Officer, but not as a revenue Court or civil Court--Revenue Officer while acting as such could not award to party/parties any amount by way of compensation, which being in the nature of a civil dispute would require adjudication by civil Court of competent jurisdiction. [Pp. 116, 117 & 118] A, B, C & E

Constitution of Pakistan, 1973--

----Art. 199--Constitutional jurisdiction--Scope--Order made without jurisdiction--Challengeable by means of proceedings under Art. 199 of the Constitution, 1973. [P. 118] D

Mr. Amjad Ali Sahito, Advocate for Petitioners.

Mr. Ejaz Ali Hakro, Advocate for Respondents Nos. 1 and 2.

Mr. Allah Bachayo Soomro, Addl. A.G. along with Naeem Akhtar Vistro, Muktiarkar Dadu.

Date of hearing: 17.1.2012.

Order

Munib Akhtar, J.--By means of the present petition the order of the EDO (Revenue) Dadu dated 5-11-2011 is impugned by the petitioners in circumstances presently to be described. The impugned order is concerned with the partition of a portion of the estate of late Mr.Muhammad Jumman (hereinafter referred to as the "deceased"), which partition was to be carried out in terms of an order of this Court dated 10-12-2010 explained in detail herein below. The legal heirs of the deceased are two widows, a daughter and a sister. One of the widows and the daughter by her are the present petitioners whereas the other widow and the sister are the Respondents Nos. 1 and 2 (herein after referred to as the "contesting respondents"). It is not in dispute that the respective shares of the legal heirs in the estate are such that the daughter is entitled to inherit 50%, the sister 37.5% and each of the widows 6.25%. The estate of the deceased comprised of various properties some of which were urban in nature while the remaining were agricultural. The agricultural properties were situated in different villages and in different survey numbers within each village. The present petition is concerned only with the agricultural properties. For convenience, each property in each survey number is thereby referred to as a "lot".

1. It appears that certain disputes arose among the legal heirs and there was an earlier round of litigation which went all the way to the Supreme Court. It is not necessary to refer to this round of litigation in any detail; it suffices to note that it appears that the Supreme Court directed that the dispute between the parties be settled by litigation in the civil Courts. This led to the filing of F.C. Suit No. 53 of 2007 by the present contesting respondents as plaintiffs and the present petitioners as the defendants. An application under Order VII, Rule 11, C.P.C. was filed seeking rejection of the plaint, which was accepted and allowed by the learned trial Court. An appeal was preferred against this order but was dismissed by the learned appellate Court. Against these decisions a revision application was filed in this Court being R.A. 116 of 2010. This matter came up for hearing and was disposed of by a learned Division Bench of this Court by the aforementioned order dated 10-12-2010. It appears that prior to making this order the Court had directed the concerned Mukhtiarkar to provide details of the properties that comprised the estate of the deceased and the details of the various lots in which the agricultural properties fell were placed on record. By the order aforesaid (herein after referred to as the "Earlier Order"), the learned Division Bench was pleased to dispose of the matter in, inter alia, the following terms. The orders of the Courts below were set aside and insofar as the urban properties were concerned, the matter was remanded to the learned trial Court for decision in accordance with law after giving an opportunity to the parties to lead evidence. Insofar as the agricultural properties were concerned, the EDO (Revenue) Dadu was directed to "demarcate and partition the undivided shares in the aforesaid dehs and hand it over to the respective owners".

2. There was however, one problem. One lot, comprising of 25 ghuntas which was located in survey number 112/1 of deh Markhpur, had apparently been disposed of earlier by some of the legal heirs. The learned Division Bench-therefore directed as follows:--

"It is an admitted position that the Respondents Nos.l and 2 have sold out 25 ghuntas from the Survey No. 112/1 of Deh Markhpur in such an eventuality after partitioning and demarcation of the agricultural land, the EDO (Revenue) Dadu in the aforesaid proportion, he shall deduct the share of the Respondents' land from the proposed proportion which we have referred to hereinabove while partitioning the agricultural land as per the share of parties."

(The aforesaid lot of 25 ghuntas is hereinafter referred to as the "disposed of lot".)

1. The matter came up before the EDO (R) Dadu for compliance of the Earlier Order, and it is in purported compliance thereof that the impugned order was made. In considering how to deal with the disposed of lot, the EDO observed that this lot, though originally agricultural land, in fact was situated in the area of Dadu Town, and as a result had become residential urban property in nature. Therefore, it had acquired a value that was much greater than the other lots which were purely agricultural in nature. On this basis the EDO concluded that it would be inequitable and contrary to the Earlier Order (that he had been directed to implement) to make the partition purely in terms of area or acreage. He therefore set about discovering the value of the disposed of lot for which purpose a report was summoned from the Mukhtiarkar (R) Dadu. After ascertaining the market value of the disposed of lot, he determined the shares of the legal heirs in terms of its monetary value, as ascertained by him. In the Earlier Order, in the passage reproduced above, it had been observed that the lot of 25 ghuntas had been disposed of by the present petitioners (who were the respondents before the Court in R.A. 116 of 2010). Accordingly, after deducting the share of the present petitioners from the monetary value of the disposed of lot as ascertained by him, the EDO concluded that an amount of Rs. 37,37,700 was payable by the present petitioners to the present contesting respondents and the EDO made a direction accordingly. The operative part of the impugned order is contained in para-10 thereof, which is as follows:--

"(10) Looking to the old dispute between the parties and to implement the directions of the honourable High Court of Sindh, Circuit Court Hyderabad I have fixed the value of area of Mst. Sehti and Mst. Zainab to be inherited by them from S.No. 1 12/1 of Deh Markhpur which is Residential area of Rs. 700 per Sq.Ft. and accordingly the value of their share of an area of 11911 Sq. Ft. will come to the extent of Rs. 83,37,700. Now the value of the land inherited by Mst. Farzana and Zaib-un-Nisa as already discussed at the rate of Rs. 300,000 per acres will come Rs. 46,00,000 this amount being the price of 15-12 1/4 Acres being share of Mst. Farzana and Mst. Zaib-un-Nisa is deducted from the above mentioned amount of Rs. 83,37,700 being share of Mst. Sehti and Zainab from S.Nos. 112/1 of Deh Markhpur there remain Rs. 37,37,700 which amount is to be paid by.Mst. Farzana and Mst. Zaib-un-Nisa to Mst. Sehti and Mst. Zainab, who have already sold and enjoyed the value of share of inherited by Mst. Sehti and Mst. Zainab from S.Nos. 112/1 of deh Markhpur as discussed above."

1. Learned counsel for the present petitioners, on whom the EDO has placed the burden of paying the aforesaid compensation, submitted that the impugned order was illegal and without jurisdiction. He submitted that the EDO had travelled beyond the four corners of the Earlier Order, which is all that he had been directed to implement, and that the exercise carried out by him was therefore entirely illegal. He pointed out that in fact the present petitioners had taken the objection before the EDO that computation of the monetary value of the already disposed of lot was neither called for nor permissible but that the EDO had wrongly overruled this objection. In other words, the case of learned counsel for the present petitioners was that the compensation required to be made for the disposed of lot, as contemplated by the Earlier Order, was only in terms of area or acreage. Thus, all that the EDO was required to do was to proportionately deduct the relevant area from the shares of the present petitioners in the other lots of agricultural properties and allocate the same to the present contesting respondents. He prayed that the impugned order be set aside.

2. Learned counsel for the present contesting respondents opposed the present petition and supported the impugned order. He submitted firstly that the petition was not maintainable. The impugned order had been made in partition proceedings and learned counsel submitted that Section 142 of the Land Revenue Act, 1967 expressly conferred a right of appeal against an order in partition of a Revenue Officer. Since a statutory remedy was available, that ought to have been availed. Secondly, learned counsel submitted that the approach taken by the EDO in computing the value of the disposed of lot was perfectly in consonance with the Earlier Order, and that the EDO had the jurisdiction to award compensation if the facts and circumstances of the case before him so warranted. He contended that the present petitioners had obtained the exclusive benefit of the 25 ghuntas comprising the disposed of lot, since this entire area had been sold off by them, although they were only entitled to a portion thereof (being in total 56.25% of the same). Thus the contesting respondents had been deprived of the benefit that ought to have accrued to them and this situation had been duly rectified in the impugned order.

3. Learned A.A.-G., assisting the Court, submitted that he could not defend the impugned order, which according to him was unlawful. The mukhtiarkar concerned was in attendance and had brought the record, with him. Examining the same, learned A.A.-G. pointed out that the disposed of lot had in fact been sold out as long ago as 7-3-1998 by means of a registered sale deed and the relevant entry mutating the property in favour of the transferee, one Mr. Raees Nabi Bux, had been made on 14-7-1998. This entry revealed not merely that the sale consideration was a mere Rs. 15,000 But also noted that the transferors were not only the present petitioners but also the present Respondent No. l. He submitted that the EDO had wrongly transmuted property that was worth a mere Rs. 15,000 into a claim of Rs. 37,37,700. Learned A.A.-G. submitted that this was completely contrary to law.

4. We have heard learned counsel as above as also learned A.A.-G. and have seen the record with their assistance including in particular the relevant extract from the record of the mukhtiarkar regarding the entry whereby the 25 ghuntas were disposed of in 1998. A certified copy of this extract has been placed on the record by the mukhtiarkar. We first take up the objection regarding the maintainability of the petition. With respect, we cannot accept this objection. This is so for two reasons. Firstly, it is to be noted that what the EDO was doing was implementing the order of the High Court in the aforesaid Revision Application 116 of 2010 (i.e., the Earlier Order) and was doing so on the specific directions of the High Court itself. In other words, the exercise being carried out by him was not in the nature of partition proceedings simpliciter under Chapter-XI of the Land Revenue Act. Rather, he was simply performing a ministerial act intended to give effect to the decision of the High Court, which decision itself arose not by way of revenue proceedings but as a result of civil litigation. The fact therefore that Section 142 confers a right of appeal in respect of partition proceedings is, in the facts and circumstances of the present case, not relevant. Secondly, we are of the view that in any case a revenue officer, while dealing with an application for partition under the aforesaid Chapter-XI of the Land Revenue Act, has no jurisdiction to award a sum of money by way of compensation. In this regard, we would refer to Sections 140 to 142 of the Land Revenue Act which, insofar as is presently relevant, provide as follows:--

5. Procedure on admission of application.--If the Revenue Officer does not reject the application under Section 139, he shall ascertain the questions, if any, in dispute between any of the persons interested, distinguishing between--

(a) questions as to title in the property of which partition is sought; and

(b) questions as to property to be divided, or the mode of making the partition.

1. Disposal of questions as to title in the property to be divided.--(1) When there is a question as to title in any property of which partition is sought, the Revenue Officer may decline to grant the application for partition until the question has been determined by a competent Court, or he may himself proceed to determine the question as though he were such a Court.

............

(5) Where the Revenue Officer himself proceeds to determine the question, the following rules shall apply, namely:--

(a) if the question is one over which a Revenue Court has jurisdiction, the Revenue Officer shall proceed as a Revenue Court under the law for the time being in force.

(b) if the question is one over which a civil Court has jurisdiction, the procedure of the Revenue Officer shall be that applicable to the trial of an original suit by a civil Court and he shall record a judgment and a decree containing the particulars required by the Code of Civil Procedure, 1908 (Act V of 1908) to be specified therein.

(c) An appeal shall lie from the decree of the Revenue Officer under clause (b) as though that decree were a decree of a civil Judge in an original suit....

1. Disposal of other question.--(1) When there is a question as to the property to be divided, or the mode of making a partition, the Revenue Officer shall, after such inquiry as he deems necessary, record an order stating his decision on the question and his reasons for the decision.

(2) An appeal may be preferred from an order under sub-section (1) within thirty days from the date thereof, and, when such an appeal is preferred and the institution thereof has been certified to the Revenue Officer by the authority to whom the appeal has been preferred, the Revenue Officer shall stay further proceedings pending the disposal of the appeal....

1. We (sic) will be seen from the foregoing that the questions that a revenue officer can deal with in partition proceedings fall into two separate categories. The first, and primary, category is questions as to the title in the property sought to be partitioned. This category is dealt with in Section 141. It will be seen from this section that the revenue officer has a choice. He may either decide the question himself or decline to do so and require the parties to have it determined by a civil Court of competent jurisdiction. But, and this is crucial for present purposes, if he chooses to decide the question himself, he does so not as a revenue officer but as though he were himself a civil Court of competent jurisdiction (unless it is a matter within the jurisdiction of revenue Court, in which case he acts as such Court). This is clear from the various subSections of Section 141, and in particular sub-section (5) which lays down certain rules that apply if the question of title is determined by the revenue officer himself. If his decision, is as though he was acting as a civil Court of competent jurisdiction then sub-section (5) expressly requires him to make judgment and decree after following the procedure applicable to the trial of a original suit by a civil suit and an appeal lies from the decree of the revenue officer in the same manner as an appeal against the decree of a civil judge in an ordinary suit.

2. The position as regards the second category of questions which the revenue officer can decide is entirely different. First of all, this category, which is dealt with in sub-section (1) of Section 142, is limited to questions as to the property to be divided or the mode of making the partition. The revenue officer, in determining these questions should they arise before him, acts only as a revenue officer and not as a Court (whether a revenue Court or a civil Court). He is empowered to make an inquiry in such manner as he may deem necessary and thereafter, to make an appropriate order giving his reasons for the same. In our view, the scope of the second category of questions is quite limited and is concerned essentially with the modes and modalities of how the partition is to be carried out or given effect. It is difficult to see how a revenue officer, acting as such, can be regarded as having the jurisdiction to award compensation in facts and circumstances similar to those at hand. This is so especially when his decision is to be based on a mere inquiry, whereas the question of compensation inter se the parties, if in issue, would be in the nature of a civil dispute requiring adjudication by a civil Court of competent jurisdiction. In other words, by expressly empowering a revenue officer to act as a civil Court only when determining the questions of title in terms of Section 141, the law has necessarily excluded from his domain and jurisdiction all other questions which ought properly to fall within the jurisdiction of a civil Court and require adjudication by such Court. We are, therefore of the view that in awarding the compensation of a sum of money by means of the impugned order, the EDO overstepped the bounds of his statutory powers. Section 142 did not empower him to decide or settle any amount by way of compensation, and this is all the more so when apparently this point was taken up by the EDO himself. He therefore acted without jurisdiction. It is well settled that an order made without jurisdiction can always be challenged by means of proceedings under Article 199 and therefore the objection regarding maintainability cannot be sustained.

3. Before proceeding further we would like to clarify one point which may otherwise cause confusion. Our foregoing observations with regard to the jurisdiction of the revenue officer are only to the extent that such officer does not have the jurisdiction to award a sum of money to any one or more of the parties to the partition proceedings. However, that does not mean that the revenue officer, in carrying out the partition exercise, cannot take the value of the land into consideration at all. It may well be the case that the partition proceedings before a revenue officer may involve two or more different properties which have (widely) different values. It may be that in an appropriate case, while ascertaining what portions of the different properties are to be assigned to which of the parties, the revenue officer may have to determine the values of the respective properties. However, in the end he can only make an order that partitions the properties into different portions which are to be assigned or allocated to different persons and that is all. If he concludes that no matter how the partition is carried out one or more of the parties would not be properly compensated, then he cannot take it upon himself to award a sum of money to the party or parties that he may regard to be in deficit. That is a matter that must be left to the decision of a civil Court of competent jurisdiction. At the most, the revenue officer can draw attention or advert to this point in his ordes, and then leave it to the aggrieved party to seek its appropriate remedy in a Court of law.

4. We now turn to consider the impugned order itself. The EDO has sought to give effect what can be described as the spirit of the Earlier Order. He sought to act in an equitable manner and it is clear that he believed that in making the impugned order, he was giving effect to what had been intended by this Court. In other words, since some of the legal heirs had been deprived of the benefit of the disposed of lot by an act of the other legal heirs, the EDO attempted to redress the balance and place all the legal heirs on the same footing. We are of the view that, once the Earlier Order is read as a whole and in particular, when the portion thereof as reproduced above are kept in mind, it is clear that this Court did intend that all four of the legal heirs be placed on the same footing in terms of their respective shares in the estate of the deceased so that no one legal heir could gain an advantage over the others. However, where the EDO has fundamentally fallen into error, which is fatal for the impugned order, is to take the present day value of the disposed of lot. This is not valid. As correctly pointed out by learned A.A.-G., the 25 ghuntas were in fact disposed of in 1998, i.e. about 14 years ago. It is but obvious that the present day value of the disposed of lot would be quite different from, and almost inevitably much higher than, the value in 1998. A computation made on the basis of the present day value is therefore entirely incorrect. If at all the EDO were so minded he ought to have attempted to ascertain the value as it prevailed in 1998. An indication of the huge discrepancy, and the enormous increase in the value, is given by the fact that in 1998 the 25 ghuntas were disposed of for a sum of Rs. 15,000 only. It would seem that this was an entirely adequate and appropriate valuation at that time. On the other hand, the present day value has been determined as running into tens of lacs of rupees. It is quite clear that in 1998 the disposed of lot was agricultural land, or even if it could be regarded as having already come within the bounds of Dadu Town, its value was much less than what it is today. The order of the EDO awarding compensation cannot therefore be sustained both because it is beyond his jurisdiction for the reasons already explained and also because the basis on which the EDO has proceeded, and the values used by him, are in any case entirely inappropriate.

5. The second point that must be kept in mind is that it is clear from the relevant entry in the record that the 25 ghuntas were disposed of not merely by the present petitioners but also by the present Respondent No. 1. It appears that this aspect of the matter was not brought to the attention of this Court when the Earlier Order was made, and it seems that it is for this reason that it was directed, in the passage reproduced above, that both the present contesting respondents were to be compensated. The entry regarding the disposal of the 25 ghuntas does not appear to have been challenged at any stage. If therefore compensation is made in favour of- the present Respondent No. 1, she will obtain a double, benefit in having received proportionately her share from the sale consideration when the 25 ghuntas were disposed of in 1998 and now also compensation in terms of the Earlier Order. This would clearly be inequitable and such a result could not have been intended by the learned Division Bench had the correct factual position been placed before it.

6. We are aware that the foregoing observations and the conclusion that we are about to draw from them may well be in the nature of a review of the Earlier Order. However, the present petition is being contested by the same parties and impugns an order made on the basis of the Earlier Order itself. We also note that at present neither of the learned Judges who comprised the Division Bench which made the Earlier Order is available in this Court, and we therefore are of the view that this point can and ought to be taken up by this Bench. An error to the extent of Respondent No. 1 being compensated is apparent on the face of the record and in our respectful view such error ought not to be allowed to remain.

7. In view of what has been stated above we conclude that the impugned order was without jurisdiction and it is therefore hereby set aside. The matter is remanded to the EDO concerned for implementation of the Earlier Order in light of what has been stated herein above. In other words, the matter of compensating the legal heirs of the deceased on account of the prior disposal of the lot of 25 ghuntas is confined only to the present Respondent No. 2 since the present Respondent No. 1 was herself party to the transaction whereby the lot was disposed of. Furthermore, since the disposal took place in 1998 when the property was agricultural in nature, the present Respondent No. 2 shall (relative to her share in the 25 ghuntas) be compensated proportionately from the shares of the other three legal heirs in terms of acreage alone and such area (or areas) shall be taken from the other lots of agricultural property which formed part of the estate of the deceased. The choice in this regard shall be that of the present Respondent No. 2 subject to any objections taken by the other legal heirs before the EDO. The EDO (or equivalent revenue officer, howsoever designated) shall now dispose of the entire matter within a period of forty five (45) days from today, but shall proceed after giving due notice to the legal heirs. However, should any legal heir fail to appear before him either herself or through duly instructed counsel the EDO shall nonetheless proceed with the exercise to ensure expeditious disposal in light of what has been stated herein above.

8. Petition stands disposed of in the above terms.

(R.A.) Orders accordingly

PLJ 2012 Karachi 121 (DB)

Present: Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ.

SAJADULLAH QURESHI--Petitioner

versus

TALUKA MUNICIPAL OFFICER, SUKKUR and 3 others--Respondents

C.P. No. D-754 of 2008, decided on 22.2.2012.

Public Street--

----Purpose--Powers of Municipal Administration--Not authorized to allotment of public street--Municipality could neither allot any portion of Public Street to a private person nor allow construction to be raised thereon to cause inconvenience to public--Municipality cannot allot any portion of street to any private person nor can any construction be allowed to be raised on street to cause inconvenience to the public--Public streets are meant to provide comforts and convenience to the public and no private person can be allowed to utilize the public amenity by raising un-authorized construction on it to the disadvantage of the public-at-large. [P. 127] A

Public Street--

----Scope--Power of administration--Allotment of public amenities--Town Municipal Administration and Union Council in their respective domain are not only required to remove encroachment, but also to improve and maintain public open spaces--Public streets are meant to provide comfort and convenience to the public and no public functionary in law has any authority to allot and/or tease out any portion of it in any manner as these are public amenities--No private person can be allowed to utilize public amenities by raising unauthorized construction on it to the disadvantage of the public-at-large. [P. 128] B

2006 YLR 1471 and PLD 2009 Kar. 309 fol.

Mr. Manoj Kumar, Advocate for Petitioner.

Mr. Khuda Bux Chohan, Advocate for Respondent No. 1.

Shaikh Amanullah, Advocate for Respondent No. 4.

Mr. Imtiaz Ali Soomro, A.A.G.

Date of hearing: 22.11.2011.

Judgment

Muhammad Ali Mazhar, J.--This constitutional petition has been brought to seek following relief(s):--

(a) Declare that the act of Respondent No. 1 avoiding to remove the encroachment made by Respondent No. 4 on public streets/ place around his property/ plot bearing C.S. No. C-581/18, Minara Road Sukkur, as illegal, mala fide and without lawful authority.

(b) Direct the Respondent No. 1 to remove the encroachment made by the Respondent No. 4 forthwith and in such action he can get assistance of the District Police.

(c) Restrain the Respondent No. 4 from carrying out further work of structure of CNG Station over his plot/ property bearing C.S. No. C-581/18, Minara Road Sukkur, by himself, through his, subordinates/servants and/or through any other agency by granting ad interim injunction.

(d) Grant compensatory cost of this petition.

(e) Grant any other relief(s) as deem fit in the circumstances of this case.

1. The brief facts of the case as narrated in the memo. of petition are that the petitioner is lawful owner of Plots No. C.S. 581/15, ad-measuring 271 sq. yds., C.S. No. 581/16 ad-measuring 223 sq. yds and C.S. No. 581/20 ad-measuring 140 sq. yds. situated at Minara Road, opposite UBL Regional Office Sukkur. Adjacent to the plots of the petitioner, there is plot of Respondent No. 4 bearing C.S. No. 581/18 ad-measuring 271 sq. yds. It is further stated by the petitioner that a common 15 feet vide street exists in between the plots of the petitioner and the Respondent No. 4, connecting the Minara Road Sukkur.

2. The grievance of the petitioner is that the Respondent No. 4 was constructing CNG station on his plot under the name and style of "Capri CNG Station". The Respondent No. 4 had encroached upon a sufficient area of public streets on northern and eastern sides, therefore, the petitioner earlier filed C.P. No. D-288/2005 and during pendency of the petition, Additional Registrar of this Court was appointed Commissioner to inspect the site and submit the report and after hearing the parties, this Court vide order dated 22-9-2005, allowed C.P. No. D-288/2005 filed by the same petitioner and dismissed the C.P. No. D-151/2005 filed by the Respondent No. 4. The C.P. No-.D-288/2005 was disposed of with the following direction:--

"The Respondent No. 5 shall confine his construction activity within plot line of CS No. 581/18 and construction beyond that shall be removed by him within the stipulated time given in our short order, failing which the T.M.O. Sukkur Municipal Corporation (Respondent No. 2) is directed to remove the construction/ encroachment within 2 days thereafter and if need be may seek assistance of police, which the DPO Sukkur shall provide to them, and report compliance of the order of this Court through Additional Registrar."

1. Against the aforesaid order, the Respondent No. 4 had preferred an appeal in the hon'ble Supreme Court, which was dismissed with special cost of Rs. 50,000/- with the direction to the Respondent No. 4 to remove the encroachment forthwith, failing which the I.G. Sindh was directed to register a criminal case against him and after conducting investigation challan was directed to be submitted in the Court of law for disposal within a period of six weeks.

2. Since the Respondent No. 4 failed to obey the order, hence, F.I.R. No. 1/2006 was lodged against him and 1st Judicial Magistrate sentenced him till rising of the Court and imposed fine of Rs. 500/-. Against the said order, Cr. Appeal No. 15/ 2006 was preferred, which was also dismissed by the learned Sessions Judge, Sukkur.

3. It is further contended that in spite of first round of litigation in which not only the directions were issued to the Respondent No. 4 to remove the encroachment but he was also convicted but he again encroached the same street from western side and installed heavy gas boiler and also constructed and installed iron staircase in the street by which a sufficient portion of street has been encroached upon. It is further stated that the Respondent No. 4 also encroached upon the street from the northern side by installing heavy gas Cylinder and also encroached sufficient portion of the Minara Road, which is in front of his plot The petitioner approached the Respondent No. 1 for redress but no action was taken against the Respondent No. 4.

4. The Respondent No. 1 filed the comments in which it was stated that as per City Survey record, there is a common street in between the petitioner's plot and Respondent No. 4's plot. It was further stated that the Respondent No. 4 had taken approval of building plan Taluka Municipal Administration, Sukkur and raised construction of Capri CNG station. It was further stated that on 13-10-2006, permission was allowed to Respondent No. 4 by the TMA Sukkur City, which is available in the Court file and shows that the Respondent No. 4 was allowed to use the space in front of petrol pump (eastern side) with the condition that he should not erect any structure and will maintain the drain at his own expenses. It was further stated in the same letter that the TMA reserves the right to use the same space for their own purpose at any time. In the comments, reference to a report of Commissioner appointed by this Court was also mentioned and Respondent No. 1 stated that there is no encroachment on main Minara Road, Sukkur, however, in the same comments it was also stated that the action for removing the encroachment, if any will be taken in accordance with law.

5. The Respondent No. 2 has also filed its comments but nothing was mentioned except that there is a street in between the plot of petitioner and Respondent No. 4.

6. The Respondent No. 4 also filed his comments in which, it was, inter alia contended that he has not encroached any area and all encroachments shown by the Commissioner in his report have been removed and all the orders of this Court as well as Supreme Court have been complied with. The Respondent No. 4 also referred to a report of Respondent No. 1 in which it was mentioned that the owner of plot No. C.S. 581/18 has neither drawn boundary line (wall) of his petrol pump premises nor he has closed the streets, however rickshaws/cars and other vehicles are parked.

7. The learned counsel for the petitioner argued that in pursuance of an order dated 7-5-2009, the Additional Registrar of this Court was appointed Commissioner who submitted his report on 25.5.2009 in which it was reported that the total area of the plot from south to north granted to the Respondent No. 4 is 45 feet but he has encroached upon 31/2 inches from southern side and 2 inches from the northern side of the streets. Likewise the northern side street was measured which also found to have been encroached upon by the Respondent No. 4 up to 3 inches. It was further reported that Respondent No. 4 has installed a heavy duty generator, an iron staircase and a gas boiler in the street of western side.

8. Again on 9-2-2011, Mr. Abdul Rahim Memon, Reader of this Court was appointed Commissioner to inspect the site and in pursuance thereof fresh report was submitted on 21-2-2011. The learned counsel further submits that in view of this report, it is clear that the Respondent No. 4 has encroached upon the public street but the Respondent No. 1 has not taken any action. It was further averred that Respondent No. 1 has failed to perform his duty and also failed to remove the encroachments.

9. The learned counsel for the Respondent No. 1 argued that the space in front of petrol pump was allowed with the condition that the Respondent No. 4 will not erect any structure and will maintain the drain etc. at his own expenses with further rider that TMA reserves the right to use the same for their own purpose at any time. The learned counsel further referred to the comments filed by the Respondent No. 1 and stated that action of removing the encroachment, if any will be taken in accordance with law and the Respondent No. 1 shall comply with the orders of this Court, if any passed regarding the removal of encroachment or otherwise.

10. The learned counsel for the Respondent No. 4 argued that the petitioner has filed this petition with mala fide intention and ulterior motive. Respondent No. 4 has not encroached any portion or land of TMA but he is operating his business on is own plot strictly in accordance with law. He further argued that in the earlier Commissioner's report only minor encroachment was said to have been made with further report that Respondent No. 4 has installed heavy duty generator and an iron staircase along with gas boiler in the street on the western side. So far as the Commissioner's report submitted on 21-2-2011, the learned counsel referred to the objections dated 26.4.2011. He argued that as far as western street is concerned, it is clear that there is no encroachment as the iron staircase, generator, boiler and cylinder are put behind the wall of CNG station in the street, which is not common and the said installation is not creating any hindrance or difficulty. He further argued that so far as the encroachment of an area of 185 sq, yds. is concerned, the same was allowed to the Respondent No. 4 on Muhag right and the Respondent No. 4 has obtained the valid permission to use the same and the said area is being used to facilitate the vehicles to approach for fuel therefore the same does not come within the ambit of encroachment or in illegal occupation. The learned counsel further referred to few Rezzki receipt issued by TMA Sukkur City on the basis of which the Respondent No. 4 is claiming Mohag right.

11. Heard the arguments of the learned counsel. It is an admitted position that this Court appointed Commissioner for inspection of site and the last report was submitted in this Court on 21-2-2011 in which following encroachments have been reported by Commissioner on the plot of Respondent No. 4:

"From perusal of sketch/ map it is crystal clear that area of C.S. No. C-581/ 18 in blue colour is legally owned by Respondent No. 4 and the area as shown in red colour from southern side from 0'-4" to 2'-8" ft. and also big portion from eastern side of CNG Station between C.S. No. C-581/18 and Minara Road also in red colour is illegally occupied by Respondent No. 4. With regard to the ownership of the existing big portion of an area in red colour from eastern side of the CNG station which is in his possession, the undersigned made query from Respondent No. 4, he disclosed that it is TMA property and he has applied for its allotment on Muhag right basis but matter has not yet been finalized.

ENCROACHMENT ON STREETS:

1. EASTERN STREET. This is main Minara Road whereon no encroachment.

2. WESTERN STREET. This street is leading to the plot bearing C.S. No. 0-581/ 15, owned by petitioner Sajadullah. Qureshi from the back of CNG Station, existing CC topping which is encroached by Respondent No. 4 by installing one iron stair, heavy duty generator (4'-8" x 14'-9"), one vessel/ boiler (2'-8" dia) and one overstep cylinder (l'-0" dia) for 3'-8" ft. in the street.

3. NORTHERN STREET. This is street between CNG station and plot C.S.No. C-581/ 15 whereon no encroachment but CC topping exists.

4. SOUTHERN STREET. This is a street between CNG station and Shalimar Complex. As per sketch, from southern side of CNG station encroachment starts by 0'-4" ft. to 2'-8" ft. Not only this but a slope from road/street of CNG station also exists, which is said to have been constructed by Respondent No. 4 to facilitate the vehicles to approach for fuel".

5. Along with the report, Commissioner has also submitted sketch/map in which portion of 185 square yards is marked which is TMA property. The Respondent No. 4 had allegedly applied the said land on Mohag but his matter has not been finalized and this portion was illegally occupied by the Respondent No. 4. Between the same parties in the earlier round of litigation when the Respondent No. 4 challenged the order of this Court in the hon'ble Supreme Court, the hon'ble Supreme Court dismissed the appeal with cost of Rs. 50,000/- and affirmed the judgment passed by this Court in C.P. No. D-288/2005. The judgment passed by the learned Divisional Bench of this Court is reported in 2006 YLR 1471 in which it was held as under:--

"We on careful examination of the inspection report of the Additional Registrar coupled with the material placed by the City Surveyor, have found that in fact on the western side of the plot C.S.No. C-581/ 18, here is a street having width of 20 feet and an area of 40 sq. yard (360 sq. feet) of the street has been unauthorizedly leased out by the Respondent No. 2 to the Respondent No. 5 by allotting it Plot No. C.S.581/35. The Sukkur Municipality in law cannot allot any portion of street to any private person nor can any construction be allowed to be raised on street to cause inconvenience to the public. Public streets are meant to provide comfort and convenience to the public and no public functionary in law has any authority to allot and or lease out any portion of it, in any manner, as these are public amenities. No private person could be allowed to utilize public amenities by raising unauthorized construction on it to the disadvantage of the public at large."

1. The contention of the learned counsel for the Respondent No. 4 that the Respondent No. 4 has applied for the Mohag right, therefore the Respondent No. 4 cannot be held liable for any encroachment is a misconceived argument. Along with the objection, the Respondent No. 4 has himself attached a copy of letter dated 13-10-2006 issued by TMA Sukkur City in which it is clearly mentioned that the Respondent No. 4 was not allowed to erect any structure while using the front space of the petrol pump and the TMA reserved its right to use the same space for their own purpose at any time. The Commissioner in his report has besides mentioning various encroachments on Western street and southern street also attached a sketch/map which shows at least a portion of 185 sq.yds. land under the illegal occupation of Respondent No. 4. The Commissioner has also attached the photographs and in one photograph, the yellow measurement tape has been shown which is clearly bifurcating the portion in lawful possession and portion in unlawful possession of the Respondent No. 4, which is in fact the same portion which has been earmarked in red in the sketch/map submitted by the Commissioner. The Divisional Bench of this Court (supra) has already held that Sukkur Municipality cannot allot any portion of street to any private person nor can any construction be allowed to be raised on street to cause inconvenience to the public. Public streets are meant to provide comforts and convenience to the public and no private person can be allowed to utilize the public amenity by raising unauthorized construction on it to the disadvantage of die public-at-large.

2. At this juncture, we would like to refer to a judgment of learned Divisional Bench of this Court reported in PLD 2009 Karachi 309 (Madina Electric Market v. City District Government, Karachi), in which it was held as under: --

"On perusal of above provisions, it is clear that Town Municipal. Administration and Union Council in their respective domain are not only required to prevent to remove encroachment but also to improve and maintain public open spaces, public gardens and playgrounds. It is the responsibility of Union Council to mobilize the community involvement in maintenance of public ways, public streets, culverts, bridges and public buildings, de-silting of canals and other development pursuit. It may be observed that there is general slackness rather negligence on the part of functionaries under SLGO to discharge their obligation. It is not that they lack in resources, it is the will and determination that is often found lacking. It was further held if the menace of encroachment is not nipped in the bud, it grows out of the proportion, that requires substantial resources to remove it and at the same time it creates law and order situation."

1. The whys and wherefores lead us to an irresistible conclusion that the Respondent No. 4 has failed to establish or produce any lease or license or alleged mohag right under which he is entitled to occupy any fortified by the views of the learned Divisional Bench of this Court supra that Town Municipal Administration and Union Council in their respective domain are not only required to remove encroachment but also to improve and maintain public open spaces but in this case, they failed to perform their statutory duties and obligations. In earlier petition between the same parties, this Court has already held that Public streets are meant to provide comfort and convenience to the public and no public functionary in law has any authority to allot and or lease out any portion of it, in any manner, as these are public amenities. No private person could be allowed to utilize public amenities by raising unauthorized construction on it to the disadvantage of the public-at-large.

2. As a result of above discussion, this constitutional petition is allowed. The Respondent No. 1 is directed to inspect the Plot No. C-581/18, Minara Road, Sukkur and remove all the encroachment raised by the Respondent No. 4 and also clear the portion of public streets/road illegally and unlawfully occupied by Respondent No. 4 within fifteen days positively and submit the compliance report to the Additional Registrar of this Court. Petition is disposed of along with pending application.

(R.A.) Petition accepted

PLJ 2012 Karachi 128

Present: Salman Hamid, J

Mst. AMINA BAI--Plaintiff

versus

Mrs. NAFISA ZAKARIA and 2 others--Defendants

Civil Suit No. 726 of 2008 and C.M.A. No. 4938 of 2010, decided on 12.8.2011.

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

----Art. 163--Oaths Act, (X of 1873), Ss. 8 & 9--Disposal of case on special oath proposed by Court prior to framing of consent issues and reference of case to local commission with parties' consent for recording evidence--Validity--Plaintiff after filing affidavit-in-evidence before commission had been partly cross-examined by defendant--Such offer having been made by Court and not by any party to lis came to an end and was frustrated when consent issues were framed and case was referred to Commissioner--High Court dismissed defendant's application seeking disposal of case on special oath. [Pp. 129 & 130] A, B, C & D

1981 SCMR 162 and 1984 CLC 2658 ref.

Mr. Masood Khan Ghory, Advocate for Plaintiff.

Mr. M. Farooque Hashim, Advocate for Defendant No. 1.

Mr. Hassan Shah, Advocate for Defendant No. 2.

Date of hearing: 12.8.2011.

Order

It seems that this report of the Commissioner dated 18-5-2010 has been wrongly filed in present case inasmuch as it pertains to Suit No. 627 of 2006. Office is directed to take out this report and file it in the correct file.

1. Through this report dated 10-6-2011, the Commissioner has reported that on 9-6-2011 examination in chief and part cross-examination of the plaintiff was recorded and the matter was adjourned to 8-9-2011 by consent of all the parties/advocates when the learned counsel for Defendant No. 1 (Mr. Farooq Hashim) wanted to avail summer vacations of two months and that even the learned Commissioner was on general adjournment w.e.f. 11-6-2011 to 30.7.2011. The plaintiff also requested that owing to the holy month of Ramazan she would not be available for her cross-examination. With consent of the learned counsel appearing for the parties, the matter was adjourned to 8-9-2011 (a date yet to arrive). Mr. Farooq Hashim, learned counsel for Defendant No. 1, despite the above exposition, has objected to the grant of further time to the Commissioner in concluding the evidence. Looking at the above, the objection of the learned counsel for Defendant No. 1 is uncalled for. The Commissioner is allowed further 60 days' time to conclude evidence of the parties, to be reckoned from 8.9.2011. The report of the Commissioner is disposed of in terms of the above.

2. Order dated 23-2-2010 would disclose that the parties to the lis in the first instance had agreed to the proposal made by the Court for disposal of the case on special oath when the case was called in the morning on that date. It would also be evident that when the matter was again called in the latter part of the day on that date the learned counsel for the plaintiff and defendants agreed that the matter be referred to the learned Commissioner for recording evidence. Consent issues were framed on that day and Syed Iqbal Rizvi, advocate was appointed Commissioner. Subsequently upon Defendant No. 1's request on 13.5.2011 Mr. Feroze K. Allana was appointed Commissioner (a name suggested by Mr. Farooq Hashim, advocate) for recording evidence of the parties as in Mr. Rizvi he expressed his no confidence. It is evident that the parties appeared before the Commissioner. The plaintiff filed affidavit in evidence whereafter she was partly cross-examined by the learned counsel for the Defendant No. 1. It is also patent from the record that despite above Orders whereby the learned Commissioners were appointed and re-appointed to record evidence of the parties, present CMA was filed by Defendant No. 1 with the prayer that prior in time since the parties had agreed for disposal of the case on special oath, such application should take preference. Learned counsel for the Defendant No. 1 in support of his arguments relied upon the case of Atiqullah v. Kifayatullah (1981 SCMR 162) and Nazir Ahmed v. Muhammad Ahmed and others (1984 CLC 2658) to contend that once the parties have agreed for decision and/or disposal of the case on special oath, they cannot rescind from the same. However, gauging the two precedents from the facts and circumstances of the present case, it would be evident that on 23-2-2010 the parties consented to lead evidence in the case and also consent issues were framed on that date and the matter was referred to the learned Commissioner for such purpose. In the case of Atiqullah (supra) the Hon'ble Supreme Court held that once party undertaking to be bound by evidence given on special oath by opposite-party could not back out of such agreement unless contract void or frustrated. In the present case it would be evident that the parties agreed to have the matter decided after leading evidence and in such respect also consented to the appointment of Commissioner and the plaintiff has been partly cross-examined by the learned counsel for the Defendant No. 1 shows that the proposal made by the Court frustrated. In the case of Nazir Ahmad also it was held by the Lahore High Court that agreement of a decision of a case would hold ground as long as the agreement was rendered void or frustrated. Again the act of the parties to the present case would show that the offer that was made by the Court (not by any of the parties to the lis) came to an end and/or frustrated when by consent it was agreed that the matter be referred to the commissioner for evidence. The case-law relied upon by the learned counsel for the Defendant No. 1 does not further his case. Needless to mention that the Defendant No. 1 was not aggrieved by Order dated 23-2-2010 inasmuch as apparently no appeal was preferred there against.

For what has been observed above, this application is meritless and is, therefore, accordingly dismissed.

(R.A.) Application dismissed

PLJ 2012 Karachi 131 (DB)

Present: Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ.

SAJID HUSSAIN--Petitioner

versus

SHAH ABDUL LATIF UNIVERSITY, KHAIRPUR through Registrar and 4 others--Respondents

C.P. No. D-12 of 2012, decided on 17.1.2012.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition seeking, writs in the nature of ceriorari, mandamus or prohibition by a person not claiming any relief for him or not being an aggrieved person--Maintainability--Such petition would not be maintainable as relief of kind stipulated in Art. l99 (1)(a)(i) & (2) of the Constitution could not be granted to such person. [Pp. 134 & 135] A

Constitution of Pakistan, 1973--

----Art. 199(1)(b)(ii)--Writ of quo warranto, issuance of--Scope--Essential--Writ of quo warranto can only be issued in respect of a public office--Public office means an office which involves delegation of some of the sovereign functions of the Government either executive, legislative or judicial to be exercised by the holder for the public benefit--Unless he has powers of this nature he is not a `public officer'--Both at the time of institution of the writ petition and on the date of decision it must be shown that the holder suffered from any disqualification to hold the public office--The Court may test bona fides of the relator to see if he has come with clean hands--A writ of quo warranto is not to be issued as a matter of course on sheer technicalities on a doctrinaire approach--Even civil servant or every person in the service of Pakistan does not necessarily hold a public office--If the office is of a very petty nature the Court may refuse to grant the writ--In order to maintain a writ of quo warranto the petitioner need not to be an aggrieved person. [P. 138] B

PLD 1975 SC 244; PLD 1966 (W.P.) Lah. 770; PLD 1963 SC 203; PLD 1986 Lah. 310; AIR 1952 Nag. 330 and 2004 SCMR 1299 rel.

Constitution of Pakistan, 1973--

----Art. 199(l)(b)(ii)--Writ of quo warranto--Scope--Introduction of scholarship scheme in University to strengthen its infrastructure-- Selection of lecturer for awarding him scholarship for undertaking studies leading to acquisition of degree of Ph.D.--Petitioner-lecturer claiming to be' better qualified for having better academic record challenged award of such scholarship to lecturer--Validity--Writ of quo warranto would not be a remedy for a person to air his private grievance--Such writ could be issued in respect of a public office--Award of scholarship for studies was not a public office as no exercise of sovereign powers would involve by incumbent while he would undertake such studies--Wrong denial of admission to a student in a college could not be subject of such writ as one just studying would not be exercising any part of sovereign power--Petitioner was availing scholarship but had not disclosed such fact, thus he had not come to Court with clean hands--High Court declined to issue the writ in circumstances. [Pp. 138 & 139] C & D

2011 SCMR 551 ; 2011 SCMR 1926 and PLD 2010 SC 759 ref.

2004 SCMR 1299 rel.

Mr. Mukesh Kumar Karara, Advocate for Petitioner.

Mr. Abdul Qayyoom Shaikh, Advocate for Respondent Nos. 1 and 2.

Mr. Ghulam Shabir Shar, Advocate for Respondent No. 5.

Mr. Safdar Ali Bhutto, D.A.G. for Official Respondent.

Date of hearing: 17.1.2012.

Order

Shahid Anwar Bajwa, J.--The petitioner is a Lecturer in the Department of a Public Administration in the Respondent No. 1 University (hereinafter called the University). It is stated in the petition that in order to strengthen infrastructure of the University a scholarship scheme was introduced and 26 scholarships for the discipline as far leading to Ph.D degree in various disciplines including two scholarships in the discipline of Public Administration and two scholarships in the discipline of Business Administration were advertised on 15th May, 2009. Some of the scholarships were availed while others were not. Again advertisement for seven scholarships was placed in newspaper in January 2010. The relevant fact is that this advertisement carried one scholarship for Business Administration but had no scholarship in Public Administration. Vide order dated 22-11-2011, Respondent No. 5, another lecturer in the Department of Public Administration was informed that he had been provisionally selected for scholarship under the programme titled Strengthening of Infrastructure of the University. Ultimately subsequent order also passed in November 2011 and final offer of scholarship was made to Respondent No. 5. This constitutional petition has been filed by the petitioner and the following prayers have been made:--

"(a) To declare the impugned letters dated 22-11-2011 followed by Final Offer Letter (Annexures-B and B-1) issued by the Respondent No. 1 in favour of the Respondent No. 5 are illegal, unlawful without any lawful authority and a seoret one, based upon discrimination and without fulfillment of the legal and codal formalities hence without any legal consequences.

(b) To direct the Respondents Nos. 1 to 4 to act in accordance with law and advertise the process for selection of the scholars to H.E.C. Criteria in the leading newspaper and so also on NTS Website by providing the downloadable version of the application forms so as to maintain the fairness and transparency amongst the qualifying candidates.

(c) To suspend the operation of the impugned letters dated 22.11.2011 followed by the Final Offer Letter (Annexures-B and B-1) in favour of the Respondent No. 5 and restrain the Respondents Nos. 1 to 4 from sending the Respondent No. 5 abroad under the impugned scholarship, till the final decision of the main petition, by granting appropriate injunction.

(d) To grant any other just and equitable relief, which has not been specifically prayed for, under the circumstances of the present matter and for the just decision of the present petition and in the interest of justice."

1. Learned counsel for the petitioner made the following submissions: --

(i) Respondent No. 5 qualified his NTS examination in 2010 and therefore, was not eligible for scholarship under the advertisement of 2009 and under the advertisement of 2010 he in any case could not have been given the scholarship because there was no scholarship for Public Administration though there was a scholarship for Business Management.

(ii) Learned counsel submitted that the petitioner had higher NTS score and was also senior to Respondent No. 5.

(iii) Learned counsel next submitted that on 25-10-2011 the Higher Education Commission ordered change of discipline and created 12 scholarships for Public Administration. His submission was that since this was done by the Higher Education Commission on October 25th, 2011, Respondent No. 5 could only have been selected after advertisement and transparent process after October 25th, 2011 and no such advertisement was placed in the newspapers. Learned counsel relied upon Malik Shahid Mehmood v. Malik Afzal Mehmood and others (2011 SCMR 551), Mukhtar Hussain and others v. Sohbat Ali and another (2011 SCMR 1926) and In the matter of Human Rights Cases Nos.4668 of 2006, 1111 of 2007 and 15283-G of 2010 (PLD 2010 Supreme Court 759). Before concluding his arguments learned counsel stated that he did not press any relief for himself and stated that he was merely challenging the process through which Respondent No. 5 was selected.

1. Mr. Abdul Qayyoom Shaikh learned counsel for the University submitted that as far as eligibility of Respondent No. 5 is concerned it is not disputed by the petitioner. He submitted that if the petitioner is not seeking relief for himself he cannot be said to be an aggrieved person in order to be able to maintain this grievance petition. Learned counsel referred to para (c) of the comments filed by Respondents Nos. 1 and 2, where it is stated that the petitioner has already been granted a scholarship for MS leading to Ph.D and is presently under going that programme at Mehran University of Engineering and Technology since 3-1-2011. It is also stated that the petitioner also applied for scholarship but his application was turned down for the reasons that he was already availing a scholarship. Mr.Ghulam Shabbir Shar substantially adopted arguments of Mr. Abdul Qayyoom Shaikh.

2. We have considered the submissions made by the learned counsel and have also gone through the record.

3. In Malik Shahid Mehmood's case supra which arose of a suit in respect of a gift deed it was observed that a person cannot be allowed to do indirectly what the law bars him from doing directly. In Mukhtiar Hussain's case (supra) which is a case arising out of pre-emption matter it was observed that concession given in law could not be accepted as a valid concession. In Human Rights case (supra) it was a case regarding McDonald restaurant in F-9 Park Islamabad. It was observed that things are required to be done strictly accordance to the law or they should not be done at all. Though principle enumerated in all three cases are unexceptionable, they are of no help to the petitioner in the context of the present case.

4. Learned counsel for the petitioner very candidly stated that the petitioner is not claiming any relief for himself and is merely pressing this petition to challenge award of scholarship to Respondent No. 5. He submitted that therefore his petition is in the nature of petition for a writ of quo warranto. Since the petitioner is not claiming any relief for himself and since it is necessary for a petition in the nature of certiorari, mandamus or prohibition for a petitioner to be an aggrieved person, no relief of the kind stipulated in Article 199(1)(a)(i) and (2) can be granted and no petition for such a nature would be maintainable. This leaves us with the petition in the nature stated in Article 199(1)(b)(ii) which provides that the High Court may require "a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office." The word public office came up for consideration before the Supreme Court in Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Tokht Bhai and 10 others (PLD 1975 SC 244) and the honourable Supreme Court observed as under:--

"The term public office' is defined in Article 290 of the Interim Constitution as including any office in the Service of Pakistan and membership of an Assembly. The phraseService of Pakistan' is defined, in the same Article, as meaning any service, post or office in connection with the affairs of the Federation or of a Province and includes an All-Pakistan Service, any defence service and any other service declared to be a Service of Pakistan by or under Act of the Federal Legislature or a Provincial Legislature but does not include service as a Speaker, Deputy Speaker or other member of an Assembly. Reading the two definitions together, it becomes clear that the term public office', as used in the Interim Constitution, is much wider than the phraseService of Pakistan', and although it includes any office in the Service of Pakistan, it could not really refer to the large number of posts or appointments held by State functionaries at various levels in the hierarchy of Government. As early as 1846, the House of Lords in Henry Farran Darley v. Reg. (1846) 8 ER 520, expressed the view that a proceeding by information in the nature of quo warranto will lie for usurping any office, whether created by Charter of the Crown alone, or by the Crown with the consent of Parliament, provided the office be of a public nature and a substantive office, and not merely the function or employment of a deputy or servant held at the will and pleasure of others". Their Lordships held the office of Treasurer of the public money of the county of the city of Dublin to be an office for which an information in the nature of a quo warranto would lie. In other words, their Lordships excluded, from the purview of the termpublic office', the large number of servants of the Crown who were not holding any statutory, representative or elective office.

This view seems to have held the ground throughout. As summed up by Ferris (Extraordinary Legal Remedies, 1962 Edition, p. 145), " a public office is the right, authority and duty created and conferred by law, by which an individual is vested with some portion of the sovereign function of the Government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law. It implies a delegation of a portion of the sovereign power. It is a trust conferred by public authority for a public purpose, embracing the ideas of tenure, duration, emolument and duties. A public officer is thus to be distinguished from a mere employment or agency resting on contract, to which such powers and functions are not attached ...... The determining factor, the test, is whether the office involves a delegation of some of the sovereign functions of Government, either exclusive, legislative or judicial, to be exercised by the holder of the public benefit. Unless his powers are of this nature, he is not a public officer". (underlining added)

1. It may be pointed out that the phrase "public office" is no longer defined in Article 260 of the Constitution of Islamic Republic of Pakistan (1973) as it was defined under the Interim Constitution (1972). Irrespective of this, the determining factors and the test stated by the Supreme Court will hold field and they are: the office must involves delegation of some of the sovereign function of Government either executive legislative a judicial to be exercised by the holder for the public benefit.

2. In Allah Ditta v. Muhammad Munir and others (PLD 1966 (W.P.) Lahore 770). The office that was involved was that of a member of Electoral College and before a Division Bench of Lahore High Court, it was contended that member of Electoral College does not hold a public office. The Division Bench held as under:--

"The definition of public office quoted with approval, is "a right, authority and duty created and conferred by law, by which an individual is invested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public. It implies a delegation of a portion of the sovereign power to and in possession of it by the person filling the office". This case was decided on the 11th of February, 1965, but since then the members of the Electoral College have actually been conferred functions under Basic Democracies Act and have become members of the Basic Democracies. The argument, which was formerly open, that members of the Electoral College merely performed elective functions and not any portion of sovereign Government (and, therefore, did not hold a public office) is not now open, since the members of the Electoral College have been entrusted with some of the executive functions of the Government as members of the Basic Democracies. We would, therefore, respectfully agree with the above decision that at any rate now the members of the Electoral College hold public office. The effect of reaching this conclusion is that a person holding such public office can be required to show under what authority of law he claims to hold that office under Article 98(2)(b)(ii), which in olden times was issued in the form of a writ of quo warranto. Such an application can be made by any person and not necessarily by a person aggrieved, though it cannot be said in the present case that a person who was a rival candidate, is a person who was not aggrieved by the election of the respondent." (underlining added.)

1. In Masudul Hassan v. Khadim Hussain (PLD 1963 SC 203). It was held that writ of quo warranto can only be maintained on grounds of public nature of office. In Sardar Asseff Ahmed Ali v. Mr.Muhammad Khan Junejo and others (PLD 1986 Lahore 310). The following principles were laid down.

"In the light of this dictum, we have been unable to discover any principle of law whereby the High Court in exercise of the constitutional jurisdiction can order the removal of a person from a public office despite the patent and admitted position that both at the time of the institution of the writ petition and on the date of the decision Respondents Nos. 1 and 2 did not suffer from any disqualification to hold a public office or to warrant removal from such office by way of issuance of a direction in the nature of writ of quo warranto.

In Hari Shankar Prasad Gupta v. Sukhdeo Prasad and another (AIR 1954 All. 227) a Full Bench of the Allahabad High Court, refused to entertain an application under Article 226 of the Constitution of India for grant of information in the nature of quo warranto to invalidate the constitution of the Election Tribunal on the ground, that one of the members was not qualified to act since such member, at the date of the hearing of the petition, had become so qualified.

We also find support from the case reported as Kamal Hussain v. Sirajul Islam (PLD 1969 SC 42), wherein it has been held that the grant of relief in writ jurisdiction is a matter of discretion and it was quite legitimate on the part of the High Court to test bona fide of the relator to see if he has come with clean hands. A writ in the nature of quo warranto in particular is not to issue as a matter of course, on sheer technicalities on a doctrinaire approach. The case in hand stands on no better footing". (Emphasis added).

1. In the principle deducible from the above judgments appear to be a writ of quo warranto can only be issued in respect of a public office:--

(i) Public office means an office which involves delegation of some of the sovereign functions of the Government either executive, legislative or judicial to be exercised by the holder for the public benefit. Unless his powers of this nature he is not a public officer.

(ii) Both at the time of institution of the writ petition and on the date of decision it must be shown that the holder suffered from any disqualification to hold the public office.

(iii) The Court may test bona fides of the relator to see if he has come with clean hands. Reference may be made to 2009 SCMR 1299.

(iv) A writ of quo warranto is not to be issued as a matter of course on sheer technicalities on a doctrinaire approach.

(v) Every civil servant or every person in the service of Pakistan does not necessarily hold a public office. If the office is of a very petty nature like that of a considerable the Court may refuse to grant the writ (AIR 1952 Nagpur 330).

(vi) In order to maintain a writ of quo warranto the petitioner needed not to be an aggrieved person.

1. What has been done through the impugned order is that Respondent No. 5 has been conferred a scholarship for undertaking studies leading to acquisition of degree of Ph.D. A scholarship for studies is not a public office because no exercise of sovereign powers is involved by the incumbent when he undertakes such studies, therefore, this petition must failed on this ground. If a student is wrongfully admitted in a college it may furnish ground to a student denied admission become in certiorari but cannot be subject to writ of quo warranto because one just studying is not exercising any part of sovereign power.

2. Besides the petitioner though he is already availing a scholarship has failed to disclose such fact in the petition and he therefore, has come to this Court with unclean hands. He has clearly stated in his petition that he is aggrieved because, according to him, he is better qualified and has a better academic record. Therefore, it is his personal grievance. A writ in the nature of quo warranto is not a forum for the employees for civil servants or anyone else to air his private grievance. If any authority is needed one may refer to Dr.Azim-ur-Rehman Khan Meo v. Government of Sindh and another (2004 SCMR 1299). There is a third reason for which this petition must also fail. Discipline of Public Administration and Business Management may have many overlapping areas where one subject is covered by both disciplines: subjects such as Organization Planning, Organization Behaviors, Personal Management and many others. Therefore, it cannot be said that if the petitioner has been granted a Ph.D scholarship, his scholarship would not cover the subject of Business Administration. Besides when the scholarship was awarded, petitioner on that date possessed the requisite qualification and the Higher Education Commission had permitted change of discipline.

12A. Result of the above discussion is that this Constitutional Petition is dismissed. Above are our reasons for short order dictated in open Court on 17-1-2012.

(R.A.) Petition dismissed

PLJ 2012 Karachi 139

Present: Shahid Anwar Bajwa, J

Dr. AISHA YOUSUF--Petitioner

versus

KHALID MUNEER and 2 others--Respondents

C.P. No. S-927 of 2010, decided on 14.12.2011.

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

----Ss. 12 & 25--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Custody of minor daughter--Dispute between father having second wife and real/divorced mother of minor--Absolute visitation right of father--Order of Family Court leaving custody of minor with mother, but prohibiting removal of minor from jurisdiction of Court without its permission while allowing father to have custody of minor on alternate Saturday in evening till next day evening, on second day of Eid during day time, in summer vacation for one month, in winter vacation for seven days and on birthday--Order of Family Court was upheld with modification allowing custody of minor to father for a fortnight during summer vacation instead of one month--Mother's plea was that she being a Doctor by profession had got a job in Dubai and would like to take minor with her; that she would come back to Pakistan with minor every month and give full opportunity to father to meet minor; and that she was ready to give reasonable guarantee for such purpose--Validity--Father had not challenged concurrent findings of it Courts below allowing mother to have custody of minor-- Female had absolute right to roam in search of career and livelihood wherever she found same more apt and could not be deprived of custody of children if she wanted to serve abroad--Just as a father could not be asked to abandon his career if he wanted custody of minor, a mother could not be asked to forsake her career, if she wanted custody of minor--Mother in view of her career requirements had wanted permission and not a simple permission to go abroad--Purpose of a guarantee would be to act as deterrent--High Court allowed mother to take minor with her abroad subject to furnishing P.R. Bond for Rs. l million with one surety in like amount to the satisfaction of Nazir of the Court. [Pp. 145, 146 & 147] A, B & C

PLD 2009 Kar. 50; 2003 YLR 1067; 2007 MLD 1692; PLD 2008 Kar. 499; 2003 CLC 1265; PLD 2004 SC 357 and 2000 SCMR 838 ref.

Mr. Zia Ahmed Awan, Advocate for Petitioner.

Mr. Muhammad Khalid, Advocate for Respondent No. 1.

Date of hearing: 10.11.2011.

Judgment

The petitioner was wife and Respondent No. 1 was the husband. Husband filed an application under Section 25 of the Guardians and Wards Act stating that he was married to the wife and out of this wedlock one female child, baby Fasiha, was born on 2nd February, 2006. The marriage broke up in 2008 resulting in divorce. Learned Family Judge dismissed the application under Section 25 of the Guardians and Wards Act and in conclusion observed as under:--

"The respondent has levelled several allegations upon the character, attitude and health upon applicant but failed to prove a single one. The attitude of respondent shows that she only wants to keep away child from her father due to her wrong presumptions and shows that she wants to deprive the applicant from his right to meet his daughter which is absolute right of father. The permanent custody of minor is disallowed to applicant as it is on record that he has got second marriage and step mother and other relatives cannot look after child like real mother and minor is in the care and custody of her mother since her birth and she is looking after her.

The applicant being father has right to meet minor and no one can deprived him for visitation rights as minor should be familiar with her father. The sufficient time has to be given to father for meeting with his children, hence respondent is directed to handover custody of minor to the applicant on alternate Saturday in the evening at 6-00 p.m. and taken back on next day i.e. Sunday in the evening at 6-00 p.m. it is also directed that on the Eid occasions, the custody of minors be handed over to applicant on second day of Eid in the morning at 10-00 a.m. and returned back in the evening at 7-00 p.m. on the same day. In the school summer vacations the custody of minor be handed over for one month to applicant and in the winter vacation the custody of minor be handed over for 7 days to the applicant on birthday meeting will be held on at 6-00 p.m. to 8-00 p.m. but both will not remove the custody of minor from the jurisdiction of this Court and if so desire they can take them with the permission of the Court. The respondent will inform regarding progress of education of minor to the applicant time to time."

1. Thus, the custody of child was left with the mother and following visitation rights were allowed:--

(1) Alternate Saturday from 6-00 p.m. to 6-00 p.m. of following Sunday.

(2) On second day of every Eid custody of minor be handed over to applicant from 10-00 a.m. to 7-00 p.m.

(3) During summer vacations custody of minor be handed over for one month to the applicant and in the winter vacation custody of minor be handed over for 7 days to the applicant.

(4) Meeting on Birthday from 6.00 p.m. to 8.00 p.m.

(5) Child is not to be removed from jurisdiction of the Court except with the permission of the Court.

1. It is also stated that child maintenance at the rate of Rs. 10,000 was allowed with 20% annual increase. It is no body's case that this is not being regularly followed. This order was challenged in appeal and the Appellate Court maintained custody with the mother but modified visitation rights by directing custody during summer vacations from one month to a fortnight."

2. This Constitutional Petition has been filed by the mother claiming that she is doctor by profession and she has got a job at Dubai. The following prayer has been made in the petition:--

"(a) A writ in nature of mandamus may be issued thereby declare that the directions contained in the Judgment and Order of learned Respondents Nos. 2 and 3 for handing over the custody of the minor to Respondent No. 1 are without lawful authority and of no legal effects.

(b) Consequently the impugned directions in the judgment passed by the learned Respondent No. 2 be declared illegal and the same may be deleted, being the negation of Issues Nos. 1 and 2 answered in favour of the petitioner."

1. Learned counsel for the petitioner submitted that the petitioner has got a job in Dubai and she would like to take her daughter with her. Learned counsel stated that the petitioner will come back to Pakistan with the child every month and shall give full opportunity to the husband to meet the child. Learned counsel stated that petitioner is willing to give all reasonable guarantees in this regard. Learned counsel relied upon Mst. Nasima v. Hanif and 2 others PLD 2009 Karachi 50, Syed Tahseen Razi v. Dr. Farhana Shaheen and another, 2003 YLR 1067.

2. Learned counsel for the respondent submitted that in the order passed by the trial Court as maintained by the Appellate Court the petitioner is permitted to take the minor out of Pakistan only with the permission of the trial Court and she has remedy to approach the trial Court but she has chosen not to avail that remedy. He submitted that there cannot be any guarantee sufficient enough guaranteeing that a child will be allowed to spend time with the father. He submitted that welfare of the child is in giving equal opportunity to both the parents. Learned counsel submitted that there have been concurrent findings by the Court below which cannot be disturbed in exercise of constitutional jurisdiction. He relied upon Khalid Mahmood v. Tahira Yasmin and 2 others, 2007 MLD 1692. He submitted that law favours regular visitation rights and in this regard relied upon Saad Amanullah Khan v. IVth Senior Civil Judge, (South) Karachi and 3 others, PLD 2008 Karachi 499. He also relied upon Muhammad Latif v. Additional District Judge, Shorkot, District Jhang and another, 2003 CLC 1265.

3. Mr. Zia Ahmed Awan while exercising his right of reply, relied upon Sardar Hussain and others v. Mst. Parveen Umer and others PLD 2004 SC 357 and Firdous Iqbal v. Shifaat Ali and others 2000 SCMR 838.

4. I have considered the submissions made by the learned counsel and have also gone through the record.

5. It may be appropriate at this stage to refer to the case-law relied upon by the learned counsel. First the case-law relied upon by the learned counsel for the petitioner. Facts of Mst. Nasima's case were that at the time of decision, age of the baby was four years. Child was a Canadian National having Canadian passport. The mother after birth of the child went to Tanzania where father was residing. Divorce took place in Tanzania. Memo. of Understanding was arrived at under the aegis of Ismaili Conciliation and Arbitration Board and such memo. was submitted to a Court in Tanzania which passed order accordingly. Under that order joint custody of the child was given to the parents. Day to day care of the child was given to the mother till the child attains the age of 7 years. Mother was also allowed to move the child to Pakistan. It was stated by the petitioner that though Tanzanian Court had ordered payment of maintenance of the child by father but father did not pay any such maintenance. The petitioner stated that she wanted to move to Australia and for obtaining Australian Visa she need NOC from her husband but her husband was deliberately withholding such NOC. She approached the Family Judge; such application was dismissed by the Family Court and it has observed that father was defaulting in payment under an order passed by a Tanzanian Court and therefore, the petitioner should approach the Tanzanian Court. Appeal was dismissed. A Single Judge of this Court framed the question whether order of the Tanzanian Court comes in the way of order appointing petitioner a sole guardian for the purpose of getting visa for Australia. Single Judge after observing that the order of the Tanzania Court has already been flouted by the father by not supporting the child financially, allowed the petition and permitted the mother to take the child to Australia.

6. In Tahseen Razi's case (supra) there were two minor sons in custody of mother, the respondent. Father filed application before the Guardian Judge for custody of the minors. Family Court handed over custody of the minors to father which was challenged in writ petition and by consent matter was remanded to the Appellate Court. Mother was granted custody with the condition that mother would bring children with her from Karachi on the next date of hearing. The Appellate Court accepted the appeal and dismissed application of the father. The High Court observed that "the minors (had) lived with their mother since their birth. If they are given to the father, naturally it will affect the minors. Respondent is doctor by profession and is educated having her source of income and imparting good education to the children. No doubt, personal law of the parties to be considered while deciding the question of custody of minors as stated, the paramount consideration is the welfare of the minors. The petitioner has stated before this Court that he is unable to bring the children from Karachi by air every month as he is getting Rs. 6,000 per month (the father was living in Islamabad). This also shows that the welfare of the minors demands that they should remain in custody of the mother." Expenses of a alternate monthly meeting at Islamabad was ordered to be borne by the father and other monthly meeting at Karachi was ordered. The third case relied upon by learned counsel for the petitioner was Sardar Hussain's case (supra). During subsistence of marriage parents resided in United States. In 1995 due to strained relations mother came to Pakistan along with minors and settled at Peshawar. Father divorced the mother and also subsequently married. Application under Section 25 of the Guardians and Wards Act was allowed by the Family Court. Appellate Court allowed the appeal. Writ Petition was dismissed by the High Court. The Supreme Court did not interfere with the order passed by the High Court. However, it observed that if father wants visitation rights, he may approach the proper forum. In Firdous Iqbal's case (supra) the child was a boy of more than 10 years. Marriage took place in 1989 and divorce occurred in 1990 and child was left with the mother. Application under 25 of the Guardian and Wards Act was filed by the father. It was claimed by the father that since by that time the child had attained age of 7 years he was entitled to the custody. Family Court observed that the parties had separated in 1990 and since then the minor was living with the mother and it was therefore in the welfare of the minor that he should continue living with the respondent and dismissed the application. Appeal was dismissed by the Family Court but writ petition was allowed by the High Court. The Supreme Court observed as under:--

"The welfare of the minor, however, remains the paramount consideration in determining the custody of a minor notwithstanding the fight of the father to get the custody after seven years of age of the male minor child. The custody of a minor can, however, be delivered by the Court only in the interest of the welfare of the minor and not the so-called right of the one parent or another. It is true that a Muslim father is the lawful guardian of his minor child and is ordinarily entitled to his custody provided it is for the welfare of the minor. It would, thus, be noticed that right of the father to claim the custody of a minor son is not an absolute right, in that, the father may disentitle himself to custody on account of his conduct in the light of the facts and the circumstances of each case. In the instant case, the evidence on the record showed that the respondent father who sought custody of the minor neglected the child since the separation of the spouses inter se and had voluntarily left the custody to the petitioner-mother. She had brought him up and educated him till she had to opt for her second marriage. Even then she had not been negligent in the care of her minor son. She had entrusted that duty to her mother and father and minor is being properly educated till date in a local school. All along this entire period, the father never bothered even to go to meet the minor muchless than providing maintenance to him, when the petitioner-mother sued him for providing maintenance allowance to the minor. It is only then that he had made an application for custody of the minor. Again the respondent father has also taken another wife who has got one or two children out of the wedlock. The second wife of the respondent is living in the village of the respondent whereas the respondent himself is an Army Personnel in service of Pakistan Army and remains under posting from one cantonment to another. Consequently, he would also not be present in the house where he proposed to lodge his son. The minor would be exposed to the onslaughts of the step-motherly treatment of his second wife. There would be no one to stop the step mother from the well known step motherly treatment. It was in these circumstances that the learned Courts below had concurrently found as a fact that the welfare of the minor lay in leaving him to the custody of the real mother through her parents rather than giving him to the respondent who is himself away from his household which had been left to the charge of the step mother."

1. On the other hand, learned counsel for the Respondent No. 1 relied upon Khalid Mahmood's case (supra). It is a case relating to dowry and writ petition was dismissed on the ground that where the facts have been correctly discussed and appraised by the Courts below the High Court cannot interfere in its constitutional jurisdiction. In Saad Amanullah Khan's case (supra) baby girl was born in 1991 and a boy in 1993. After relationship soured application under Section 25 of the Guardians and Wards Act was filed by the father. The application was allowed ex parte. Mother filed application for setting aside ex parte decree which application was allowed. Such order was challenged in Constitutional Petition and this Court allowed the custody to remain with the father. The Appellate Court dismissed the appeal filed by the father, allowed him custody once a week from 9-00 a.m. to 6-00 p.m. and for 14 days during summer vacation. In Civil Revision this Court increased the visitation from one day per week to two days. Matter was taken to Supreme Court and the CPLA was disposed of on the basis of a compromise which included custody of the children with the father for two days each week and 14 days during summer vacations dissolution of marriage and dismissal of suit for restitution of conjugal rights. It was alleged by the petitioner that suddenly in March, 1997 the mother refused the petitioner to see or meet the children. A contempt application was filed in the Supreme Court. In the meanwhile the mother had filed an application alleging sexual abuse of the baby girl by the father. The Supreme Court disposed of contempt application and did not modify its earlier order. The case therefore clearly turns on different facts. In Muhammad Latif's case (supra) a Single Judge of Lahore High Court observed that the father and mother after divorce were living in the same neighborhood and held that father of the minor should have access to the minor son and contribute in his bringing up.

2. In the present case two Court below have concurrently held that the custody shall remain with the mother and father has not challenged such findings. Therefore, as far as question of custody of the minor is concerned there does not appear to be any dispute between the parties. Regarding visitation rights the two Courts below have concurrently held that from 6-00 p.m. of alternate Saturday to 6-00 p.m. of following Sunday baby girl will be with the father. It is stated by learned counsel for the petitioner that mother is doctor by profession and she has obtained a job in Dubai and therefore prayed that she be allowed to take the baby to Dubai. The requests seems to be perfectly reasonable. Just as a father cannot be asked to abandon his career if he wants custody of a child, a mother cannot be asked to forsake her career if she wants custody of the child. In these days a woman is equally entitled to pursue a fruitful rewarding and satisfying career. Gone are the day when social norms used to be that a woman is expected to remain within four walls of a house and bring up children and father was free to roam the world in search of livelihood. Mandate of the Constitution as contained in Article 25 is that the State can make law for the protection and welfare of women and children. The Supreme Court has in Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and another, PLD 1990 SC (sic) held that while it is permissible to practice discrimination in favour of women and children but it is forbidden against them. Therefore spirit underlining all the legislation has to be that if anything the Court should lean in favour of weaker Sections of society and it does not need any sophistry of arguments to see that women in this society, besides others, are certainly weaker section. Therefore, a female has as much right to roam in search of career and livelihood ( ) wherever she finds it more apt and she cannot be deprived of custody of the children for mere reason that she wants to serve abroad. Therefore, in my opinion it would be fair and reasonable to permit the mother to take the child out of Pakistan along with her when she goes to Dubai for her employment.

3. However, it would not be fair to expect her to bring the child to Karachi every fortnight. Mr. Zia Ahmed Awan, stated that she is prepared to do it once every month. The statement seems to be fair and reasonable. However in that event she will have do it once every month but for two days every month. Moreover she will be required to execute P.R. bond for Rupees One Million with one surety in the like amount to the satisfaction of the Nazir of this Court and if she fails to honour her commitment or any part of this order she should remain on notice that the bond and surety may be forfeited.

4. As far as allowing the child with the father for 14 days during summer vacations and 7 days during winter vacation is concerned no interference with that aspect of the order is called for. As far as, allowing father custody on the day next to Eid and meeting on birthday of the child is concerned they also do not require any interference. However parties may, by mutual consent combine such visitations with monthly visits.

5. Contention of the learned counsel for the respondent that there could not be any guarantee enough sufficient guaranteeing that the child will be allowed to spend time with the lather cannot be disputed but this is clearly true even if a guarantee is taken while the child is still in Pakistan. Purpose of a guarantee is to act as deterrent and one should not say anything more about a guarantee than that it has effect of being that a deterrent. Nothing can be an absolute bar: humans are too creative to claim so tight.

6. Contention of the learned counsel for the Respondent No. 1 that application for permission to take the child abroad should have been filed before the Family Court is not relevant here. The petitioner in view of her career requirements wants the permission and not a simple permission to go abroad.

7. Result of the above discussion is that this Constitutional Petition is disposed by permitting the mother to take the child out of the country subject to her furnishing P.R. bond and surety as stated above and visitation rights are modified from one day in a fortnight to two days every month while maintaining other visitation rights as discussed above.

(R.A.) Order accordingly

PLJ 2012 Karachi 147

Present: Shahid Anwar Bajwa, J

Messrs WESTERN SHOES COMPANY through Partners and 2 others--Applicants

versus

Messrs SEVEN STAR GOODS TRANSPORT COMPANY through Proprietor--Respondent

C. Rev. Appl. No. 13 of 2008, decided on 2.1.2012.

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

----S. 34 & O. VII, R.2--Suit for recovery of money with interest @ 75% from filing of suit and cost--Passing of decree as prayed for in suit except cost--Application by decree holder during execution proceedings for addition of further interest in decretal amount--Validity--Court under S.34(1), C.P.C. could grant interest either firstly from date of suit to date of decree or secondly from period prior to suit or thirdly from period after date of decree--Provision of S. 34(2), C.P.C. could not be made applicable to such first two situations i.e. interest from date of suit to date of decree or interest for any period prior to suit, rather same would apply to such third situation if decree was silent about interest, then same would be deemed to have been refused by Court--Decree holder had prayed for interest @ 15% from date of filing of suit, which had been decreed as prayed for--Silence in last part of decree would not attract provision of S. 34(2), C.P.C. in respect of period from date of suit to date of decree--Decree holder had not been ordered further interest for any period after date of decree, thus, he was entitled to simple interest @ 15% from date of suit to date of decree--Application was dismissed. [P. 151] A & B

2001 SCMR 396 and 1980 CLC 1636 ref.

Mr. Muhammad Sadiq, Advocate for Applicants.

Mr. Amir Malik, Advocate for Respondent.

Date of hearing: 14.11.2011.

Judgment

The applicant is a partnership firm (hereinafter referred to as the plaintiff) filed a suit for recovery of Rs. 94,660.50 on 2-7-1987 against the present respondent (hereinafter called the defendant). The plaintiff firm dealt with selling of shoes on wholesale basis to various parties in Pakistan as well as Karachi. It delivered goods to defendant and plaintiff alleged that at the time of delivery of goods to defendant full particulars of goods and their value were disclosed and defendant was required to deliver goods to a branch of bank in Gujranwala. The consignment did not reach the consignee. Defendant made part payment and suit with the following prayers was filed:--

(i) A decree for a sum of Rs. 94,660.50

(ii) For interest at the rate of 15% from the filing of this suit.

(iii) Cost of the suit.

(iv) Any other relief under the circumstances of the case.

1. Vide judgment dated 23-12-2000 and decree dated 26-12-2000 the suit was decreed. The entire decree read as under:--

"SUIT FOR RECOVERY OF RS.94,660.50

Plaint presented on 23-7-1987. Prayer as under:--

(i) A decree for a sum of Rs. 94,660.50.

(ii) For interest at the rate of 15% from the filing of this suit.

(iii) Cost of the suit.

(iv) Any other relief under the circumstances of the case.

This suit is coming for final disposal on 23-12-2000 before Miss. Akhtar Sultana, 1st Senior Civil Judge Karachi (South), in the presence of advocate for the parties. It is ORDERED that the suit of the plaintiff be and the same is hereby decreed with no order as to costs."

1. Being aggrieved by the decree, appeal was filed by the defendant being Civil Appeal No. 99 of 2001. It was dismissed vide judgment dated 24-1-2004. Civil Revision was filed in this Court which was disposed of vide order dated 27-10-2004 and the matter was remanded to the Appellate Court for decision on merits. Order of this Court was assailed before the Supreme Court in C.P.L.A. No. 890-K of 2004. The Supreme Court set aside the order of this Court and restored judgment of the trial Court as that of the First Appellate Court. Thereafter an application was filed in the Execution Application. The application is in the following words:--

"It is prayed on behalf of the Decree Holder that this honourable Court may be pleased to add further interest of Rs. 42,594 in the amount shown in the said execution application being Rs. 345,510 total decretal amount comes to Rs. 384,104.00 as per judgment announced on 19-7-2006 by the Hon'ble Supreme Court of Pakistan in Petition No. 890-K of 2004."

This application was allowed by the trial Court vide order dated 23-12-2006. In conclusion the trial Court observed as under:--

"I have considered above submissions, perused the record and the case-law referred to Perusal of the judgment and decree dated 23-12-2000 passed in Civil Suit No. 1582 of 1987 shows that the Civil Suit No. 1502 of 1987 was decreed with no order as to costs, meaning thereby that whatever was prayed in the said civil suit was decreed except the cost, accordingly the instant application, filed by the D/H is allowed. There is no order as to costs."

1. An appeal under Section 104, C.P.C. was filed by the defendant and while concluding the Appellate Court observed as under:-

"Since the judgment and decree of trial Court is silent about the interest as such the same is deemed to have been refused. The order passed by the trial Court allowing the application under Section 151, C.P.C. read with Order VI Rule 17, C.P.C. is without any justification. The judgment and decree would not to modified/altered by the above impugned order. I, therefore, allow this appeal and set aside the impugned order dated 23.12.2004, thereby dismissing application under Section 151, C.P.C. read with Order VI Rule 17, C.P.C. allowing the interest which was not mentioned in the judgment and decree. However, no order as to costs."

This Revision Application has been filed to challenge that order.

1. Learned counsel for the applicant submitted that the interest is included in the decree and therefore perforce to the interest has to be paid.

2. On the other hand, Mr. Amir Malik, learned counsel for the defendant referred to Section 34(2), C.P.C. and submitted that where decree is silent with respect to the payment of interest it is deemed to have been refused. He relied upon Province of Punjab through Secretary Industries, Government of Punjab, Civil Secretariat, Lahore v. Burewala Textile Mills Limited 2001 SCMR 396 and Syed Ghulam Abbas and others v. Mst. Khurshid Begum 1980 CLC 1636.

7. I have considered the submissions made by the learned counsel and have also gone through the record. Since the entire case turns on Section 34, C.P.C, for case of reference the same is reproduced below;

34. Interest.--(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, 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.

(2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from, the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie."

1. Section 34, C.P.C. is in two parts. The first part provide that the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged:--

(a) from the date of suit to the date of the decree;

(b) for any period prior to institution of the suit;

(c) further interest at such rate as the Court deems reasonable from the date of decree to the date of payment or to such earlier date as the Court thinks fit.

As can be seen from, it this provision i.e. sub-section (1) of Section 34, C.P.C., deals with three periods. Firstly, between date of institution of suit and date of decree; secondly period prior to institution of suit and thirdly period after the date of decree. Thereafter comes sub-section (2). It deal with only further interest from the date of decree to the date of payment or an earlier date. It is only the third of the above two situations that sub-section (2) of Section 34, C.P.C. is applicable to. Therefore sub-section (2) of Section 34, C.P.C. cannot be made applicable to the first two situations i.e. interest from the date of institution of suit to the date of decree or interest for any period prior to institution of the suit. Thereafter it is provided in sub-section (2) that for the situation contemplated in sub-section (2) i.e. in third situation contemplated in sub-section (1), if the Court is silent about interest it shall be deemed to have refused such interest. Certainly the Court in its decree has been silent about the rate of interest or payment of interest and therefore perforce it has to be accepted that it has not ordered further interest or any period after the date of decree.

1. But what is the position in respect of the period between the date of institution of the suit and the date of decree. (The second situation i.e. period prior to institution of suit was not even prayed for in the suit and therefore is not at all a question up for consideration). In the suit interest at the rate of 15% from the date of filing of the suit was prayed. The suit was decreed on 26-12-2000. Silence in the last part of the decree does not attract the provisions of sub-section (2) of Section 34, C.P.C. in respect of the period from the date of institution to date of decree. The suit was decreed. The only conclusion that one can arrive at is that it was decreed as prayed. Consequently the applicant is entitled to simple interest at the rate of 15% from the date of institution of the suit to the date of decree.

2. In Burewala Textile Mills Limited's case (supra), it was a question relating to future interest after date of award and in Ghulam Abbas's case (supra), it was observed that the executing Court cannot go beyond the decree. Obviously there cannot be any cavil, with these propositions.

3. Result of the above discussion is that this Revision Application is allowed and the applicant is held entitled to payment of simple interest at the rate of 15% from the date of institution of suit to the date of decree.

(R.A.) Revision accepted

PLJ 2012 Karachi 152

Present: Munib Akhtar, J

M.S. PORT SERVICES (PVT.) LTD.--Plaintiff

versus

PORT QASIM AUTHORITY--Defendant

Suit No. 535 and C.M.A. No. 4243 of 2008, decided on 10.1.2012.

Limitation Act, 1908 (IX of 1908)--

----S. 19--Acknowledgment of liability in writing made after expiry of period of limitation--Validity--Such acknowledgment would be irrelevant and would not come within ambit of S.19 of Limitation Act, 1908 and could not give fresh start to period of limitation and save matter from being time barred. [Pp. 163 & 164] A

AIR 1931 Bom. 561; AIR 1969 Cal. 374 and 1970 Ch.85 ref.

Mr. Khalid Mehmood Siddiqui, Advocate for Plaintiff.

Mr. M.A. Essani, Advocate for Defendant/Port Qasim Authority.

Dates of hearing: 6 & 20.9.2011, 4 & 20.10.2011.

Order

These proceedings are by way of an award dated 5-4-2008 made by a learned single arbitrator, which has been filed pursuant to Section 14 of the Arbitration Act, 1940. The learned arbitrator has awarded a sum of Rs. 23.847 million along with interest against the defendant in this suit, which is the Port Qasim Authority (hereinafter referred to as "PQA"). Notices were issued and PQA has filed its objections to the award and it is these objections that fall for consideration. Briefly stated, the award arises out of the following circumstances. On or about 15.5.1993, PQA awarded a contract for dredging services to be provided in order to clean up the port area. It appears that sometime in 1994 the contract was terminated and it was claimed by the service provider that a large sum of money was due and payable by PQA in respect of the dredging services. The contract provided for recourse to arbitration and it seems that these provisions were in fact invoked sometime in 1994. However it appears that no progress was made and the arbitration proceedings were abandoned. Thereafter the matter lingered for several years until finally a recovery suit was filed in this Court against PQA, being Suit No. 1156 of 2003. PQA filed an application, being C.M.A. 1015 of 2004, under Section 34 of the Arbitration Act. For reasons that will presently become clear this application will have to be considered in some detail in this decision. For present purposes, it suffices to note that by order dated 5-4-2005 the application was allowed by consent and the dispute referred to arbitration before a learned single arbitrator. That reference culminated in the award hereinabove mentioned.

1. The learned arbitrator framed three substantive issues that had to be decided by him and it will be convenient to take up these issues in seriatim and to consider the objections taken by learned counsel for PQA along with each issue as decided by the learned arbitrator. It may be noted that all three issues were decided against PQA. The issues as framed were as follows:--

(1) Whether the PSL is M.S. Port Services (Pvt.) Ltd. or Port Services (Pvt.) Ltd., If is former, is there any privity of contract with the PQA.

(2) Whether the Claim made in the Statement of Claim is barred under Section 3 of Limitation Act.

(3) Whether any payment under the Contract dated 15-5-1993 is due from the PQA to the PSL, if so to what extent.

(4) What should the Award be?

1. The first issue, which is rather unusual, arose in the following circumstances. The dredging contract referred to above on the face of it stated that it had been entered into between PQA and a company by name Port Services (Pvt.) Ltd. (hereinafter referred to as "PSL"). All the relevant correspondence between PQA in relation to the dredging contract is addressed to PSL. PQA's case is that it subsequently discovered, after having communicated with the Securities and Exchange Commission of Pakistan (SECP), that in fact, as relevant for its contract, there was no such entity as PSL which had been registered by and with SECP under the Companies Ordinance 1984. It will be recalled that registration under the Companies Ordinance is by way of a certificate of incorporation issued thereunder and it is this certificate that legally establishes and, as it were, brings to life a corporate entity under the Companies Ordinance. SECP did indicate that there was a company registered with it under the name Port Services (Pvt.) Ltd., but it is clear from the record that that company (which was registered with the Registrar of Companies at Lahore and has its offices at Sialkot), could not possibly be the company relevant for present purposes. Thus, PQA's case is that there was no legal entity with which it had entered into the dredging contract.

2. Now, the claimant before the learned arbitrator, which was the plaintiff in the aforesaid Suit 1156 of 2003, was a company registered under the Companies Ordinance under the name M.S. Port Services (Pvt.) Ltd. (hereinafter "MSPSL"). The award that has been made by the learned arbitrator is in favour of this entity and this is the entity that is the plaintiff in the present suit. Learned counsel for this entity states that this is the very same entity that entered into the dredging contract with PQA, provided all the services thereunder and is therefore entitled to payment of the amounts due and payable under the contract. Thus, the case put forward by learned counsel for this claimant is that whatever the record, including the dredging contract itself, may appear or purport to show or state, MSPSL and PSL are but one and the-same entity. In other words, wherever in the record the name PSL appears, that should be read as meaning and indicating MSPSL. As to this claim learned counsel for PQA contended that MSPSL was a separate and distinct legal entity in its own right and that the record, which admittedly did not at all refer to this entity, had to be read and applied as its stood, namely as referring to PSL and not MSPSL. Thus, his case was that whoever, may have provided dredging services and therefore may (or may not) be entitled to payments in respect thereof, that person or entity was definitely not MSPSL and that therefore, the award made by the learned arbitrator was a nullity and could not be given effect to.

3. Now the record indicates that PQA was aware of the foregoing position by the time that it made its application under Section 34 of the Arbitration Act in Suit 1156 of 2003. That suit showed MSPSL as the plaintiff in the title. The question that naturally arises is why did PQA make an application at all seeking to refer the matter to arbitration when its view was that there was not, as such, any legal entry which had entered into the dredging contract, and hence the arbitration agreement as embodied in the arbitration clause thereof? As to this, learned counsel for PQA drew attention to the manner in which the application under Section 34 was framed, which was as follows:--

"It is humbly submitted on behalf of the defendant that the plaintiff above named has no privity of contract with the Agreement dated 15-5-1993. The distinction between the name of the plaintiff and the party entering into the Agreement dated 15-5-1993 is legally significant.

Notwithstanding the above, Condition 67 of the Conditions of Contract in the Agreement dated 15-5-1993, relied upon by the plaintiff contains an arbitration clause and it is therefore prayed that this Suit may be stayed and the parties be directed to proceed to arbitration."

Learned counsel contended that PQA had reserved its right to contest MSPSL making any claim of any nature whatsoever in respect of the dredging contract or any amount payable thereunder.

1. The learned arbitrator disposed of the issue that had been framed on this point (i.e., Issue No. 1) as follows:--

"In the present proceedings, it is the PQA who had applied for stay of the suit and the reference to the arbitration the PSL has agreed for reference, the direction has been given and the arbitrator has been appointed by the Court. In these circumstances, the PQA cannot dispute the identity of the PSL. Merely by pleading that the Application was subject to proof of identity, such plea has no force. Once a party has acted on the assertion of the other party then such party cannot be back out from its assertion on the principle of estoppel. Secondly, the PQA's contention was that Port Services Limited is a registered Company with SECP at its Lahore office and not at Karachi address. The PSL had provided the Letter of Incorporation as well as Memorandum and Articles of Association. Such documents are admitted by the PQA through statement of admission and denial dated 11th November 2004. Sections 32 and 33 of Companies Ordinance make the certificate of registration of a company as conclusive proof of incorporation of the Company. In my view, confusion has been created by the use of the words "M.S" and "M/s" during the correspondence. Certificate of incorporation is on record and it is "M.S Port Services (Pvt) Ltd", the PSL is incorporated by said name, perhaps the PQA while corresponding addressed the PSL instead of "M.S" by "M/S". At the most it could be a case of registration of two Companies in the same name. It could have been rectified even by Registrar in terms of Section 38 of Companies Ordinance but two Companies are separate legal entity having separate registered office. None has come forward till date to claim any interest in the dredging work contract, the PSL was paid part of the contract money. Right from the day of prequalification till filing the objections no such plea was even raised. The arbitration clause was previously invoked by PSL and Mr. Abdul Kalam and Mr. S.T. Ghani were appointed arbitrators respectively by the parties. It is unfortunate that the arbitrators failed to enter the reference in spite of substitution of the arbitrator by the PQA themselves, no plea with regard to the PSL identity or absence of privity of contract was raised, therefore, I am of the view that the identity plea has no force and, therefore it is decided in favour of the PSL."

1. Learned counsel for PQA contended that the learned arbitrator had erred materially and come to a conclusion contrary to law. He submitted that no representation within the meaning of Article 114 of the Qanun-e-Shahadat Order 1984 had been made, such as could constitute an estoppel against PQA. He submitted that the manner in which the Section 34 application had been framed clearly indicated that PQA had not given up its right to challenge and dispute the issue of the legal entity (if any) which was entitled to press the claim under the dredging contract and invoke and sustain any sort of proceedings in this regard, whether by way of a civil suit or arbitration proceedings. Learned counsel further contended that assuming without conceding that an estoppel did arise in the facts and circumstances of the present case, the question of whether the entity referred to in the record as PSL was in fact the entity registered under the Companies Ordinance as MSPSL was a matter of the legal status of the entity concerned. He contended that an issue of status could not be decided by means of an estoppel. He relied on Gadigeppa Bhimappa Meti v. Balagowda Bhimangowda AIR 1931 Bombay 561 to contend that legal status or capacity of a person was a matter of substantive law. If such status did not or could not exist as a matter of substantive law, the position could not be altered by sheltering behind a representation, even if it amounted to an estoppel. Learned counsel contended that if at all MSPSL could have any rights against PQA that could only be by way of novation of the dredging contract but such novation never came about. He contended that the mere filing of the Section 34 application was not fatal to the stand taken by PQA and submitted that in any case, the substantive rights in dispute could not be decided by any such application. In this regard he placed reliance on Asiatic Shipping Co. (Pvt.) Ltd. v. P.N. Djakarta Lloyd and another AIR 1969 Calcutta 374 and submitted that the objection taken in this regard by PQA was very much alive before the learned arbitrator, who had however decided it erroneously.

2. Learned counsel for MSPSL strongly contested the various grounds taken by learned counsel for PQA in respect of Issue No. 1 and supported the conclusion arrived at by the learned arbitrator. He submitted that at no stage prior to the proceedings before the learned arbitrator had PQA raised such an objection. He submitted that PQA had accepted at all material times that PSL was a legal entity that was validly in existence and this was demonstrated by the entire record that had been placed before the learned arbitrator by the parties. The dredging contract itself had been duly entered into, correspondence had been addressed and even payments had been made to PSL by PQA without any objection, protest or demur whatsoever. Thus it was not permissible for PQA to raise any belated objection in this regard. Learned counsel contented, as noted above, that MSPSL and PSL were in fact one and the same entity. He submitted that the certificate of incorporation that had been issued in this regard by the Registrar of Companies showed that MSPSL had come into existence sometime in 1992, i.e., before the dredging contract had been entered into and that therefore there could be no doubt whatsoever that that contract had been entered into by a duly constituted legal entity. As to the discrepancy between the name appearing on the record, i.e. PSL, and the actual name of the entity concerned, i.e. MSPSL, learned counsel submitted that it had been the practice and want of MSPSL to use an abbreviated form of its full name, and the shortened version was of course, PSL. This was the reason why the name PSL appeared on the record instead of MSPSL. Learned counsel contended that this practice even extended to MSPSL using a company stamp that showed the abbreviated name and this was the reason why the stamp used to execute the dredging contract referred to PSL. He further contended that this was in fact the trade name of MSPSL and that therefore it was entitled to use the same. Learned counsel also referred to F. Goldsmith (Sicklemere) Ltd. v. Baxter [1970] Ch 85, a decision of the English High Court. In that case, the real and correct name of the company concerned was F.Goldsmith (Sicklesmere) Ltd., but the name that appeared on the relevant contract was Goldsmith Coaches (Sicklesmere) Ltd. When the company sought to enforce the contract, the other party claimed that it had no obligation thereunder since admittedly there was no such entity by the latter name, which had entered into the contract. This objection was overruled by the High Court which held as follows (the findings of the High Court being, in my view, accurately stated in the head note reproduced below):--

"Held, that applying the rule that a contract was to be construed by reference to the surrounding circumstances or in the light of the known facts, it was clear that Goldsmith Coaches (Sicklesmere) Ltd. was an inaccurate description of the plaintiff company; that a limited company, like a natural person, had characteristics other than its name, such as a business, a place of business, shareholders and directors, by which it could be identified; and that it was not essential to the validity of a contract made on behalf of a limited company that the company should be described with precision. Accordingly, the plaintiff company was entitled to an order for specific performance."

Learned counsel for MSPSL contended that his case came squarely within the law laid down in the aforesaid decision. The entire record indicated that PSL was at best an inaccurate description of MSPSL and since all the relevant characteristics of MSPSL were the same as those attributed to PSL, in law it was MSPSL that had entered into the dredging contract and was entitled to the benefit thereof and to raise the claim thereunder.

1. I have carefully considered the reasoning that found favour with the learned arbitrator on the issue under consideration. With respect, I am unable to agree with the same. Two points appear to have satisfied the learned arbitrator. One is that there was some confusion between the letters "M.S", which were an integral part of the name of entity, and "M/s", which of course is an abbreviated form of "Messrs". Messrs is simply the plural of "Mr.". The learned arbitrator appears to have concluded that the record indicated that either one or other of the parties (or both) had mistakenly used "M/s" instead of the letters "M.S", and this created the resulting confusion. However, it is clear from the record that "M/S" is not always used along with PSL. Most importantly, it is not used in the letterhead of the entity, which simply reads "Port Services (Pvt.) Ltd". It is also not used in the stamp affixed to the dredging contract or in the name of the entity as specified there (at the place where the parties have appended their signatures). Thus, it cannot simply be stated that the matter involved only confusion between "M.S." and "M/S". The other point that found favour with the learned arbitrator was that PQA was estopped from raising this issue since the other party had acted on its representation. I must confess, with respect, that during the course of the hearing, I was rather puzzled as to the representation that PQA was supposed to have made, which would allow an estoppel to be raised against it, and having gone through the record both with the assistance of learned counsel for the parties as also on my own after the hearing, my puzzlement has not abated. Learned counsel for MSPSL contended that the representation was to the effect that there was a contract in existence and that in terms thereof, PQA had itself filed an application under Section 34 and had agreed to arbitrate the matter. I may note that in the award the learned arbitrator does not state with specificity as to what was the nature of the representation that, according to him, raised the estoppel. I am unable to agree with learned counsel for MSPSL that there was any representation of the nature as contended by him. In my view, learned counsel for PQA is correct in asserting that the legal existence or otherwise of a corporate entity like a company in a matter of status which cannot be grounded in any estoppel. Either a company exists (or existed at the material time) or it does not. Simply because a person thinks or agrees that it exists or represented at the material time that it existed or acts in a manner that is only consistent with his believing that the company exists (or existed) when in fact it did not cannot alter the position and, as it were, conjure up a company which does not or did not exist. The fact therefore that PQA entered into the dredging contract believing that there was such an entity as PSL, corresponded with this entity, issued cheques which were apparently encashed by someone, and even entered into arbitration proceedings on the basis of such a contract, cannot create an entity if it did not otherwise exist. I must therefore, with respect, conclude that the reasoning that found favour with the learned arbitrator cannot be sustained in law.

2. Nonetheless, after having considered the matter at some length, I am of the view that the conclusion arrived at by the learned arbitrator in deciding Issue No. 1 against PQA was correct. This is so because of the decision of the English High Court cited by learned counsel for MSPSL referred to above. Cases where a company, though in existence, has been wrongly identified in the record, including the contract in question are described as cases of misnomer. It appears to me that when the record is examined in its entirety, it is quite obvious that PQA regarded itself as having contracted with someone, who performed under the dredging contract and provided the services required thereunder. Payments were being made by it to this entity. Thus, the only conclusion possible is that PQA regarded itself as being in a contractual relationship with someone. PQA asserts that that some one could not possibly be PSL since there was no such entity and that therefore, whoever may have been the other party, it was not MSPSL. However, in my view this stand has negated a matter of law by the decision cited by learned counsel for MSPSL. In my view, there was only one entity that could possibly have been the person with whom PQA could have contracted, and it is amply clear from the record that that entity could only be MSPSL. While I do not find the other submissions made by learned counsel for MSPSL, such as the use of an abbreviated or trade name, convincing or satisfactory, in the end I conclude that when the record as a whole is examined, it does point conclusively in one direction alone, which is that the contracting party was MSPSL. Accordingly, though for reasons different from those that found favour with the learned arbitrator I would overrule the objections that have been raised by PQA with regard to issue No. 1. That issue was, in my view, correctly decided against PQA.

3. I now turn to consider the second issue that was before the learned arbitrator, which is that the claim was barred by limitation. As noted above, the learned arbitrator also decided this issue against PQA. Now, it appears to be common ground that the dredging contract was terminated on 18-5-1994 and that this is the starting point for computing limitation. Learned counsel for PQA referred to Section 65 of the Port Qasim Authority Act, 1973 ("1973 Act") to contend that that Act provided for its own period of limitation which was six months, and he contended on this basis that the suit was hopelessly barred by limitation. Learned counsel submitted in the alternative that while the learned arbitrator was of the view that the period of limitation was three years, his decision was not sustainable in law even on that basis. Learned counsel contended that the learned arbitrator had concluded that there were a series of acknowledgments of liability made by PQA by reason of which fresh periods of limitation had begun from time to time and that therefore, the claim was within limitation. Learned counsel submitted that the documents relied upon in this regard, and referred to by the learned arbitrator, had been improperly procured and/or stolen and could not therefore be considered. He contended that the learned arbitrator had erred materially in placing reliance on these documents. Insofar as learned counsel for MSPSL was concerned, he was content to rest his case on the findings as recorded by the learned arbitrator in relation to Issue No. 2

4. An examination of the award shows that the learned arbitrator relied on four documents to conclude that the claim was not barred by limitation. In the words of the learned arbitrator these documents were as follows:

"In the present case the documents referred to above are before expiry of period of limitation i.e. brief dated 15-6-1996, draft audit report ending 30-6-1998, certificate of payment dated 22.3.2001 and minutes of Board meeting dated 24-4-2003 signed by the officer of the PQA and the contents thereof fulfilled the requirements of Section 19 of Limitation Act which extend the period limitation in terms of Section 19 from time to time."

1. After having carefully considered the submissions made by learned counsel as above and the findings recorded in the award, I have come to the conclusion that, with respect, the learned arbitrator has erred as a matter of law in concluding that the claim was within limitation. In my view, for the reasons hereinafter stated, the claim was time barred. I start with the common ground between the parties, namely that the dredging contract was terminated on 18-5-1994 and that therefore, time began to run from this date. Section 37 of the Arbitration Act, insofar as is presently relevant, provides as follows:--

"37. Limitation Act IX of 1908.--(1) All the provisions of the Limitation Act, 1908 shall apply to arbitrations as they apply to proceedings in Court.

(2) ... a cause of action shall, for the purpose of limitation, be deemed to have accrued in respect of any ... matter at the time when it would have accrued ....

(3) For the purposes of this section and of the Limitation Act, 1908, an arbitration shall be deemed to be commenced when one party to the arbitration agreement serves on the other parties thereto a notice requiring the appointment of an arbitrator, or where the arbitration agreement provides that the reference shall be to a person named or designated in the agreement, requiring that the difference be submitted to the person so named or designated."

It will be seen that sub-section (1) makes all the provisions of the Limitation Act applicable to arbitration proceedings in the same manner as they apply to proceedings in Court. For purposes of computing limitation in a civil suit, the relevant date is the date on which the plaint is presented. If the suit is not barred by limitation as on that date, it is within time; otherwise it has to be dismissed under Section 3 regardless of whether limitation has been raised as a defense or not. The date equivalent to the foregoing (i.e., for purposes of determining whether the matter is time barred or not) in arbitration proceedings is set by Section 37(3) as the date on which notice is given by a party requiring the appointment of an arbitrator. This is deemed to be the date on which arbitration is supposed to have commenced. In the present case, it appears that notice was given to PQA by the claimant by means of letter dated 15-12-1994, whereby the claimant appointed one Mr. A. Kalam as its arbitrator. Thus, this is the relevant date for purposes of sub-section (3). It will be noted that a period of almost seven months had already expired by the time that the aforesaid notice was given, and sub-section (3) became applicable. From the record it appears that although PQA also nominated an arbitrator, the reference did not as such commence and the arbitration proceedings were thereafter effectively abandoned. Section 37 is itself, in terms, silent as to what happens if arbitration proceedings fail for any reason and/or are abandoned. In my view, in such a situation, limitation or rather the balance period of the time remaining, would begin to run from the date on which the arbitration proceedings are abandoned. It is not clear from the record as to the date on which the arbitration proceedings were abandoned in the present case. However, I will assume in favour of the claimant and proceed on the basis that the arbitration proceedings stood abandoned for purposes of limitation from the date of the first document relied upon by the learned arbitrator. This, as clear from the extract reproduced in Para. 12 above, is a brief dated 15-6-1996 that was prepared by the General Manager (Engineering) of PQA with regard to the dispute concerning the dredging contract. This brief was apparently forwarded to the Secretary, Ministry of Communication, Government of Pakistan under cover of a letter dated 12-3-1997. Thus, on the view that I take of the matter, time once again began to run from 15-6-1996 and since about seven months had already elapsed, there was a balance period of about two years and five months remaining. This is on the basis taken by the learned arbitrator, which I accept for the moment, that the period of limitation was three years and not six months pursuant to Section 65 of the 1973-Act as contended by learned counsel for PQA.

1. The learned arbitrator however went further, and concluded that the document dated 15-6-1996 was an acknowledgment of liability by PQA within the meaning of Section 19 of the Limitation Act and that therefore, as therein provided, a fresh period of limitation began from that date. Again, for the moment I assume that the learned arbitrator was correct and that a fresh period of three years started from that date. If so, that period came to an end on 14-6-1999. The learned arbitrator however concluded that there was in between another acknowledgment of liability in terms of a draft audit report prepared by the auditors of PQA for the year 1997-98, i.e. the financial year ending on 30-6-1998. Although the learned arbitrator does not expressly so state, it is clear that he has concluded that in terms of Section 19, a fresh period of limitation began from the last date of the financial year for which the draft audit report had been prepared, i.e., 30-6-1998, on account of the acknowledgment of liability that the learned arbitrator concluded was made in the draft audit report. If so, then the period of limitation would be computed afresh from the date last mentioned and would thus end on 29-6-2001. The learned arbitrator then referred to a third document (see Para. 12 above), which was a certificate dated 22-3-2001 issued by PQA and he concluded that this certificate also amounted to an admission of a liability in terms of Section 19 of the Limitation Act. Thus, the record as read by the learned arbitrator indicated that yet another period of limitation started from 22-3-2001 and on this basis, the limitation would end on 21-3-2004. The plaint in Suit 1156 of 2003 was presented on 20-10-2003 which would in any case be within the period of limitation as computed by the learned arbitrator. However, he concluded also that there was yet another (fourth) document, being the minutes of the meeting of the PQA Board dated 24-4-2003 which constituted yet another admission of liability in terms of Section 19. Thus according to the learned arbitrator Suit 1156 of 2003 was within limitation and since the arbitration proceedings before him arose out of the aforesaid suit, the claim made against PQA was within time.

2. I have carefully considered the chain of acknowledgments of liability as stated by the learned arbitrator. As noted, I have assumed (without deciding) that the learned arbitrator was correct in concluding that each of the four documents that constituted that chain was an acknowledgment of liability in terms of Section 19 of the Limitation Act. Even on that basis, in my view, the chain, contrary to what has been held in the award, in fact broke at the first link. It will be recalled that according to the learned arbitrator the document of 15-6-1996 started the period of limitation afresh, which would have ended on 14-6-1999 but that in between there was an admission of liability in terms of the draft audit report for the year 1997-1998, i.e. for the year ending on 30.6.1998. As noted, the learned arbitrator appears to have proceeded on the basis that a fresh period of limitation commenced from the date last mentioned. In my view however, with respect, the record cannot and does not sustain any such conclusion and there has therefore been a complete misreading of the relevant documents. The record indicates that on 18-12-2000 PQA's Deputy General Manager (FA) wrote to the General Manager (Engineering) with specific reference to the audit report being prepared for the year 1997-1998 by the external auditors. The Deputy General Manager enclosed the relevant extract from the draft audit report and asked the General Manager (Engineering) to provide the latest status of the matter relating to the dredging contract. The relevant extract from the draft audit report, as enclosed by the Deputy General Manager, was as follows:--

"Out of 62,728,350 in 1993-94 PQA has withheld a payment of Rs. 29,000,000 to Messrs. Port Services for channel dredging work. The matter has gone into litigation and remained undecided during the year.

We could not see any comments from the legal advisor. This point is being repeatedly raised. The progress may kindly be communicated to us."

It is therefore quite clear that as on 8-12-2000, there was no audit report as such that had been prepared for the year 1997-98. In my view, the learned arbitrator has confused two separate and distinct matters and dates. One is the end-date of the financial year in respect of which an audit report was being prepared, and the other is the date on which the audit report for that year was actually prepared. The first date was 30.6.1998 since that was the last date of the financial year 1997-1998 for which the audit report was being prepared. However, for purposes of limitation it is not that date which is relevant, but rather the date on which the audit report was actually prepared and issued. As it quite obvious, that date was much later than 30-6-1998 and had not come about on 8-12-2000. This is so because on that date, the Deputy General Manager was still querying the General Manager (Engineering) about a query received from the auditors. Now, by 8-12-2000 the period of limitation had already long expired even on the basis taken by learned arbitrator. Thus, in my view, the aforementioned extract from the draft audit report is of no avail to the claimant. This is so because the acknowledgment of liability pursuant to Section 19 has to be made within the period of limitation and it is only then that a fresh period of limitation begins. If the period of limitation have already expired and there is an acknowledgment of liability thereafter, that does not come within the ambit of Section 19 and no fresh period of limitation can be said to begin from such acknowledgment. Thus in my view there was no acknowledgment of liability for purposes of Section 19 (even assuming that the draft audit report was tantamount to such) before 14-6-1999 when the period of limitation expired even on the basis taken by the learned arbitrator. Since the period already stood expired, any and all acknowledgments of liability made subsequent thereto were irrelevant and could not save the matter from being time barred. In other words in my view, the record clearly established that the claimant ought to have filed a civil suit, or perhaps restarted arbitration proceedings by or before 14-6-1999 at the very latest. Since this was admittedly not done, the claim became barred by limitation.

1. In this context it is also pertinent to note that learned counsel for PQA placed before the learned arbitrator the actual audited accounts for the years 1995 to 2000 to show that in fact there had not been any admission of liability at all by PQA. The learned arbitrator dealt with this matter in the following terms:

"The learned counsel for the PQA referred the copies of annual accounts for the years 1995 to 2000 to show that the liability has not been shown in the said accounting years pertaining to PSL. It would not be proper to comment on the copies of annual accounts, but on one hand, the PQA remained preparing the briefs for different committees and for board meetings showing the liability and also seeking the legal advice from their advocate and ultimately Board in its 49th meeting decided to pay the claim of the PSL. The decision taken on 24-4-2003 for payment of Rs. 18.677 millions to PSL as full and final settlement subject to undertaking. Such a decision is not possible unless the liability is reflected in the annual accounts of the PQA under head "accounts payable". Therefore, I am of the view that the PSL has demonstrated acknowledgment in terms of Section 19, as such the claim is not barred by time."

In my view and with respect, the learned arbitrator has erred materially in coming to the forgoing conclusion. I can find no warrant for the learned arbitrator having accepted an extract from the draft audit report which was still under preparation in preference over the actual audited accounts for the relevant periods. While the learned arbitrator regarded the draft audit report (under preparation even as a draft) as an acknowledgement of liability under Section 19, he regarded it as improper to even "comment" on the actual audited accounts. Indeed, the latter part of the passage cited above would seem to suggest that the learned arbitrator concluded that the liability under the dredging contract ought to have been shown in the annual accounts even though it was, in fact, not so shown. I have not, with respect, been able to find any basis that could legally sustain such an approach. The learned arbitrator appears to have been impressed by the decision subsequently taken at the meeting of the Board of Directors of PQA but for the reason already stated, that decision is of no relevance with regard to the issue of limitation since it was taken long after the period of limitation had already expired. It is also to be noted that the learned arbitrator, in my view correctly, concluded that Section 25(3) of the Contract Act, 1872 had no application to the facts and circumstances of the present case. Therefore, I am of the view that the second issue regarding limitation ought to have been decided in favour of PQA and the claim ought to have been dismissed as barred by limitation. In my view, the learned arbitrator erred materially in coming to the contrary conclusion.

1. In view of forgoing discussion, it is not necessary for me to consider the ground taken by learned counsel for PQA, namely that the period of limitation was six months by reason of Section 65 of the 1973 Act. Likewise, it is not necessary for me to consider the correctness or otherwise of the decision of the learned arbitrator with regard to the third issue that was raised before him in the arbitration proceedings.

2. Accordingly, I uphold and sustain the objections taken by learned counsel for PQA on the second issue with regard to the matter of limitation and conclude that the claim was barred by limitation and ought to have been dismissed as such. Therefore, the award as filed by the learned arbitrator cannot be made rule of the Court and must be, and hereby is, set aside. As a result, this suit fails and is hereby dismissed. All pending applications stand disposed of accordingly.

(R.A.) Suit dismissed

PLJ 2012 Karachi 165 (DB)

Present: Mushir Alam, C.J. and Salman Hamid, J

RAJA QURESHI--Petitioner

versus

CHAIRMAN, ARBITRATION COUNCIL, CANTONMENT BOARD, KARACHI and 2 others--Respondents

C.P. No. D-1222 of 2011, decided on 25.11.2011.

Muslim Family Laws Ordinance, 1961 (VII of 1961)--

----5. 7(3)--Destiny of divorce or allusion of its revocation--Pre-conditions--Talaq can be revoked which can either be express or otherwise--Other condition which is required to be made is that such express or otherwise revocation of Talaq be within a period of 90 days to be reckoned from the date of receipt of notice of Talaq by the Chairman Arbitration Council. [P. 169] A

Muslim Family Laws Ordinance, 1961 (VII of 1961)--

----S. 7(3)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Talaq--Revocation--Petitioner divorced his wife on 28.12.2010 and Arbitration Council issued notice under S. 7 of Muslim Family Laws Ordinance, 1961, for reconciliation/confirmation of divorce--Plea raised by petitioner was that he had revoked divorce, therefore, Arbitration Council could not proceed in the matter--Validity--After letter dated 24-3-2011, was sent by petitioner, Arbitration Council had no jurisdiction or authority to proceed further into the matter either in confirming divorce dated 28-12-2010, or embark upon in reconciliation of marriage contracted between the parties--High Court restricted Arbitration Council to act further in the matter after letter dated 24.3.2011 was sent by petitioner--Petition was allowed accordingly. [P. 172] B

PLD 2005 Kar. 358; 2004 CLC 652; 2007 CLC 1047; 2001 CLC 330; 1990 ALD 702; PLD 1989 Lah. 490; PLD 1993 SC 901; 1992 SCMR 1273 and 1997 PCr.LJ 1655 ref.

Mr. Agha Zafar, Advocate for Petitioner.

Mrs. Rehmatunnisa, Advocate for Respondent No. 1.

Nemo for Respondent No. 2.

Kh. Shamsul Islam and Zohaib Sarki, Advocates for Respondent No. 3.

Mr. Abdul Fateh Malik, Advocate-General, Sindh on Court notice.

Dates of hearing: 17, 19.5.2011 & 21.11.2011.

Judgment

Salman Hamid, J.--It is the case of the petitioner that by means of divorce deed dated 28-12-2010, he set free Respondent No. 3 from the knot and also intimated the Respondent No. 1 of such let off, which earlier in time was tied between him (petitioner) and the Respondent No. 3 in June, 2000 in the serenity of Paraweat, Bangkok, Thailand. The Respondent No. 1 on its turn, upon receipt of above divorce deed dated 28-12-2010 and the notice under Section 7 of the Muslim Family Laws Ordinance, 1961 (1961 Ordinance) issued a notice to the petitioner and the Respondent No. 3 to cause their appearance before him on 15-2-2011 at 1230 hours for reconciliation/confirmation of above event. In response, the petitioner addressed a letter dated 24-3-2011 to convey that the notice of divorce dated 28-12-2010 has been withdrawn which was within the stipulation of the expiration period of 90 days, envisaged by Section 7 of 1961 Ordinance. Proceedings for reconciliation/confirmation of divorce, were thus prayed to be terminated.

1. It was asserted by the petitioner that despite letter dated 24.3.2011 for revocation of divorce dated 28-12-2010, the Respondent No. 2 purportedly sent a communication dated 15-4-2011 to the petitioner, seeking confirmation, whether he (petitioner) had revoked divorce, pronounced by him on Respondent No. 3? This petition followed thereafter with following prayers:--

"(i) Declare that the proceedings between the petitioner and the Respondent No. 3 before the Respondent No. 1 having been terminated upon the withdrawal of the notice of divorce prior to the expiry of 90 days and the order of termination of proceedings is within the prescription of law.

(ii) Declare that the Respondent No. 1 and Respondent No. 2 cannot take any further steps after having terminated the proceedings upon receipt of notice from the petitioner seeking withdrawal of the divorce and thus issuance of notice by the Respondent No. 2 asking for interpretation and assistance from the petitioner is unwarranted by law and circumstances.

(iii) Restrain the Respondents Nos. 1 and 2 from proceeding between the petitioner and the Respondent No. 3 which have already been terminated and further not to issue a certificate of confirmation of divorce or take any further steps whatsoever in accordance with the mandate of law pending disposal of the petition.

(iv) Call for Record and Proceedings from the office of the Respondent No. 1 and upon examining the same be pleased to pass any appropriate order as deem fit and proper in the circumstances.

(v) Grant any other relief/reliefs as deem fit and proper in the circumstances of the case."

1. Skirmishing, learned counsel for Respondent No. 3 opposed the implore. It was argued that the question of revocation of divorce dated 28-12-2010 does not arise inasmuch as that it has become final. It was urged that even otherwise the petitioner did not, by means of letter dated 24-3-2011 asked for revocation of divorce - it was a letter simply for revocation of notice of divorce; then avowed that the petition is not maintainable under the 1961 Ordinance as there is no provision for withdrawal of Talaq. It was also stressed that the petitioner's approach to this Court was mala fide and only aimed at to drag on the miseries of Respondent No. 3. It was also brought-up that the petition is hit by Article 2-A of Constitution of Islamic Republic of Pakistan, 1973.

2. Tracing the milieu of the divorce dated 28-12-2010, it was strenuously mentioned that pungent litigation ensued between the petitioner and the Respondent No. 3. In due course a compromise decree dated 13-12-2009 was passed in the suit, followed by execution proceedings and then contempt action by the Respondent No. 3 against the petitioner for despoliation of Court's order(s). It was also averred that after divorce on 28-12-2010, the petitioner also caused a public notice in respect thereof on 23-1-2011 and that in various affidavits, filed by the petitioner in the suit and the execution application, the divorce of 28-12-2010, announced by him against Respondent No. 3, fortified. It was argued that since the public notice of divorce and the affidavits sworn by the petitioner, reflecting the fact of divorce had not been revoked, the divorce after expiration of 90 days' period became final.

3. Point of view of learned Advocate General, Sindh was also heard. More or less the learned AG supported the case of the petitioner. Arguments of the erudite counsel of the petitioner were reinforced by urging that the Respondent No. 2 or for that matter, the Respondent No. 1, looking at the scheme of Section 7 of the 1961 Ordinance and after receiving letter dated 24-3-2011 before expiration of the threshold of 90 days time from the side of the petitioner for termination of confirmation of divorce dated 28-12-2009, such respondents cannot further into the matter and ought to have pulled out themselves.

4. Heard.

5. At the very beginning we may observe that via this handing down we only intend to decide if the Respondent No. 1 and/or Respondent No. 2 under the rations of Section 7 of 1961 Ordinance were empowered or competent to advance further into the substance, once notice for withdrawal of divorce, announced by mate, (petitioner in the present dealings) was revoked/recalled within a period of 90 days from the date of notice, as mentioned therein? By no elongate we are to decide the destiny of divorce dated 28-12-2010 or allusion of its revocation by the petitioner. We are also not going into the direction and/or it is not prayed by the petitioner to speak out the provision of Section 7 of 1961 Ordinance or any other provision thereof to be un-Islamic or in breach of the principles of the Holy Quran or the Sunnah.

6. Section 7 of 1961 Ordinance provides as under:--

"(7) `Talaq'. (J) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of Talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.

(2) Whoever contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both.

(3) Save as provided in sub-section (5), a talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.

(4) Within thirty days of the receipt of notice under sub-section (1) the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.

(5) If the wife be pregnant at the time of talaq is pronounced, talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy whichever be later, ends.

(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective."

1. Bare checking of sub-section (3) of Section 7 of 1961 Ordinance would show that a Talaq unless revoked earlier, expressly or otherwise (emphasis abounded), shall not be effective until the expiration of 90 days from the day on which notice under sub-section (1) was delivered to the Chairman. It, therefore, becomes lucid, at least to our minds, that a Talaq can be revoked past which can either be express or otherwise. The other condition which is required to be made is that such express or otherwise revocation of Talaq be within a period of 90 days to be reckoned from the date of receipt of notice of Talaq by the Chairman. Looking at these provisions in the manner discussed above, the letter dated 24-3-2011, sent by the petitioner to the Respondent No. 1 seemingly fulfils the two requirements i.e. it was well before expiration of 90 days period--it gives and/or spells out express revocation of Talaq dated 28-12-2010. Therefore, in our opinion the criteria having been met by the petitioner, the Respondent No. 3 and/or the Respondent No. 2 cannot proceed further into the matter either to confirm and/or enter into reconciliation of marriage between the petitioner and Respondent No. 3.

2. Contention of Mr. Islam, learned counsel for the Respondent No. 3 that the public notice and the affidavits of the petitioner augmenting the divorce dated 28-12-2010 having not been withdrawn and even the letter dated 24-3-2011 no where, in clear terms spoken about the revocation of the divorce under-point, it (divorce) after determination of 90 days became final for more than a solitary reason does not hold ground. First of all public notice and the affidavit seemingly are of the date(s) prior in time to the letter dated 24-3-2011. Second of all even if such were after in time to letter under point, the same were of no consequence as the letter was sent to the Respondent No. 1 in terms of Section 7 of 1961 Ordinance and had to be dealt with under such Section and/or under the provisions of 1961 Ordinance alone. Third of all as we have already mentioned above that we would not embark on the path to decide the fate of the divorce itself inasmuch as it would be within the domain of the Family Court where the petitioner and/or Respondent No. 3 would agitate their claim vis-a-vis on the part of the petitioner: revocation of divorce and on the part of Respondent No. 3: confirmation of divorce.

3. Above unfolding has brought us to the analysis of the various case-law relied upon by the petitioner, the Respondent No. 3 and the learned A.G. We would take up first the precedents cited by the learned counsel for the petitioner and the learned A.G. Sindh inasmuch as that these two learned representatives of their clients were at par with each other and also cited and relied upon, somewhat, same precedents, first of which was the case of Batool Tahir v. Province of Sindh (PLD 2005 Karachi 358), a decision of a Division Bench of this Court wherein essentially it was held in Paragraph 13 that "the Respondent No. 2 [councillor] under the provisions of Section 7 of 1961 Ordinance could only record the contention of both the parties before him and then merely state whether he could bring about reconciliation between the parties or whether the reconciliation efforts failed. He has, therefore, no authority to declare whether divorce has become effective or otherwise. The validity or otherwise of a Talaq can only be examined by a Court of competent jurisdiction under the Family law". The next case was that of Alia Parveen v. Executive District Officer (Revenue) Sheikhupura and 3 others (2004 CLC 652) wherein a single Judge of the Lahore High Court in Paragraph 11 of the citation observed that, "the dispute regarding determination or legality/validity of the marriage or genuineness/ingeniousness of Nikahnama cannot be questioned before the Arbitration Council. It shall have the jurisdiction only to those matters mentioned in the above-referred sections. For proceedings under these Sections the legislature has framed Rules under the Muslim Family Laws Ordinance, 1961". The learned single Judge of the Lahore High Court made above observations when he came to the conclusion that the Assistant Director, Local Government, Shekhupura had no authority to inquire into the validity of Nikahnama of the petitioner with deceased Malik Riaz and further that even if the permission at the time of marriage by deceased Malik Riaz with the petitioner was not obtained, the arbitration council had no authority to declare such marriage illegal or invalidate it. The third precedent that was cited was of Rana Zulfiqar v. Mariam Rafiq (2007 CLC 1047), wherein it was observed by the learned single Judge of the Lahore High Court that, "Husband could revoke divorce before expiry of 90 days from the date when he delivered notice to the Chairman" and that, "where the Chairman declares the divorce effective despite the fact that according to his own order husband has withdrawn/revoked notice within the period of 90 days, order declaring divorce effective by the Chairman was illegal and liable to be set aside". The learned single Judge of Lahore High Court made such observations in the case in hand when it was found that the arbitration council declared the reunion of the husband and wife therein after divorce but before expiration of 90 days period, as mentioned in 1961 Ordinance and that the order which was passed by the arbitration council, declaring the marriage null and void was set aside. Then the case of Mst. Sadia Khan v. Muhammad Asim Khan and another (2001 CLC 330) was cited, wherein the learned single judge of the Lahore High Court in penultimate paragraph of the judgment observed that, "therefore, the question as to whether the Talaq was revocable or irrevocable or that the same was with mutual consent and accepted by the parties as claimed by the petitioner will be determined by the Court where the suit is pending for adjudication. Petitioner is well within his right to rebut the same by filing written statement in the said suit or to file independent suit. Even otherwise the nature of controversy between the parties to the petition by itself for factual controversies which cannot be resolved in Constitutional jurisdiction of the High Court." This observation was made by the learned single judge of the Lahore High Court in the cited case upon coming to the conclusion that once the notice, sent by the husband under Section 7 of 1961 Ordinance to the Chairman, arbitration council and its subsequent withdrawal within a period of 90 days, the arbitration council ought not to have proceeded further into the matter, regarding confirmation or otherwise of the divorce. In the last paragraph of the judgment under discussion, it was observed that, "in view of what has been discussed above, I am not inclined to give my opinion qua the contention of the learned counsel for the parties so that the cases of the either party shall not be prejudiced." In the case of Ayaz Aslam v. Chairman Arbitration Council and others 1990 ALD 702 a Single Judge of the Lahore High Court held that Talaq becomes effective on the expiry of 90 days from the date on which notice under sub-section (1) of Section 7 of 1961 Ordinance is delivered to the Chairman if the same was not revoked earlier, expressly or otherwise and that the Talaq was held to be revoked by the husband through telegram, which was within a period of 90 days of notice of Talaq and the action. Under the circumstance action of the Chairman was declared to be absolutely without jurisdiction in proceeding further into the matter.

4. In the cited case objections had been raised by the respondents of the nature which were raised in the present petition as well i.e. that the telegram and/or notice did not specifically mentioned revocation of Talaq and that since the parties were Hanafi by faith and that the marriage has been dissolved by pronouncing Talaq by the husband therein earlier in time, the same stood dissolved and that the wife in that case ceased to be as such and that the provisions of Section 7 of 1961 Ordinance, as also argued by the learned counsel for the Respondent No. 3 herein, are contrary to the injunctions of Islam and the Holy Quran, which was dealt with by the Court by observing that since the validity/legality of the provisions of Section 7 of 1961 Ordinance were not in question, the same were left untouched. The case of Mst. Kaneez Fatima v. Wali Muhammad and others (PLD 1989 Lahore 490) subsequently upheld by the Hon'ble Supreme Court of Pakistan reported as PLD 1993 SC 9011 was relied upon and it was mentioned that in such case a contrary view was taken i.e. that provisions of Section 7 and/or the provision of the 1961 Ordinance are not in conflict with the Holy Quran and the Sunnah. The last case which was cited was Mst. Kaneez Fatima v. Wali Muhammad and another (PLD 1993 SC 901) to show that the provisions of Section 7 and/or other provisions of 1961 Ordinance are not contrary to the Holy Quran and Sunnah. We having already mentioned above that we would not go into the validity and/or legality of such provisions which are not before us, we would for such purpose would not look it this citation.

5. However, the other citations, relied upon by the learned counsel for the petitioner and also by the learned A.G. have been looked into and discussed, evident from the above. Our view and the view taken is such citation is in harmony. We therefore hold that after letter dated 24-3-2011, sent by the petitioner to Respondent No. 1, the Respondent No. 1 or the Respondent No. 2 had no jurisdiction or authority to proceed further into the matter either in confirming the divorce dated 28-12-2010 or embark upon in reconciliation of the marriage, contracted between the petitioner and the Respondent No. 3 on 9-6-2009 in Thailand. We may again emphasise and observe specifically that this decision is only confined and restricted to the acting of Respondents Nos. 1 and 2 further in to the matter after letter dated 24-3-2011, sent by the petitioner to such respondents and would not in any way affect the rights of the petitioner and/or the Respondent No. 3 vis-a-vis revocation of divorce dated 28-12-2010 on one hand and confirmation thereof on the other.

6. Learned counsel for Respondent No. 3 also relied upon PLD 1993 SC 901 supra and stated that the decision therein was per incurium. Since we have not once but more than that have observed that we are not here to decide the validity or otherwise of the provisions of Ordinance, 2001 would not look into the same. The other cases those were relied upon by Mr. Islam were Allah Dad v. Mukhtar and another (1992 SCMR 1273) to contend that divorce would become effective even in the absence of notice to the Chairman under Section 7 of 1961 Ordinance and that ineffectiveness of divorce in absence of notice to the Chairman as envisaged by Section 7 of 1961 Ordinance was against the injunctions of Islam. For what has been observed above regarding the validity or otherwise of the provisions of 1961 Ordinance, we need not require to look in this citation. The last case that was cited by learned counsel for Respondent No. 3 was Muhammad Siddique and another v. The State (1997 PCr.LJ 1655 Federal Shariat Court) which says that in case of clash between an existing law and the injunctions of Islam with regard to the validity of marriage, injunctions of Islam shall prevail for the purposes of 1961 Ordinance. Yet again we may observe and ignore the citation inasmuch as we are not here by way of this decision to decide whether the divorce dated 28-12-2010 has become final or otherwise, keeping in view the provisions of Section 7 of 1961 Ordinance at one end and on the other the injunctions of Islam.

7. For what has been observed hereinabove, this petition is allowed to the extent of prayers (i), (ii) and (iii) and is disposed of accordingly.

(R.A.) Order accordingly

PLJ 2012 Karachi 173

Present: Salman Hamid, J.

REHAN AHMED--Petitioner

versus

Mrs. NADRA ISRAR and 2 others--Respondents

C.P. No. S-963 of 2010, decided on 22.11.2011.

Constitution of Pakistan, 1973--

----Art. 199--Sindh Rented Premises Ordinance, (XVII of 1979), S. 15(2)(vii)--Constitutional petition--Ejectment of tenant--Bona fide personal need--Change in circumstances--Death of landlord--Effect--Tenant assailed eviction order on the ground that after death of landlord, plea of bona fide need had extinguished--Validity--Ejectment application was filed only on the ground that shop in question was required for the use of landlord--Record showed through evidence that need of the shop was not that of two sons of landlord, who were earning their livelihood in Dubai and Karachi respectively--Personal bona fide need of shop that was existing remained as such till the death of landlord--Need of the shop had extinguished because of demise of landlord as the circumstances had changed altogether--Under the altered and changed circumstances, the decisions handed down by Rent Controller and Lower Appellate Court were set aside and ejectment application filed by landlord was dismissed--Petition was allowed in circumstances. [P. 177] A

Mr. Muhammad Adnan, Advocate for Petitioner.

Mr. Manzoor Ahmed, Advocate for Respondent No. 1.

Date of hearing: 16.11.2011.

Judgment

Through the present petition, Rehan Ahmed (the Petitioner) has questioned the two decisions made by the IIIrd Senior Civil Judge and Rent Controller, Karachi, Central (Rent Controller) and by the IV-Additional District Judge, Karachi Central (IV ADJ), passed in Rent Case No. 618 of 2007, (Rent Case) and First Rent Appeal No. 178 of 2009 (FRA) respectively.

1. Encapsulating the background of the case, precisely, is that Mrs.Nadra Israr, then wife of Israr Ali, now his widow (Respondent No. 1) filed the Rent Case against the petitioner for eviction on the ground of personal bona fide need inasmuch as it was stipulated that her deceased husband after retirement on 27-2-2007 from City District Government Karachi (Revenue Group) upon attaining age of superannuation was to commence business in the Shop No. 2 of Plot/Property No. 2/133, Commercial Area Liaquatabad, Karachi, Rauf Market (Shop) which was/is under tenancy of the petitioner. It was also mentioned in the Rent Case that before filing it, Notice dated 18-6-2007 for eviction on the ground aforementioned was also sent and he (Petitioner) was also approached through other persons of the vicinity for the needful but in vain. Rent Case also narrated that son of the Respondent No. 1, Rehan Ahmed earning his livelihood in Dubai, UAE and because of Government Policy of UAE most of the Pakistanis are returning back to Pakistan permanently and that Rehan after return would join his father (now deceased) in earning livelihood for which purpose as well the Shop was required.

2. The petitioner contested the Rent Case by raising that it (Rent Case) was not maintainable inasmuch as that the Shop was bartered in lieu of pugree amount of Rs. 575,000 in terms of agreement dated 4-9-1986. It was also denied that Rehan Ahmed because of UAE Government Policy had to return back to Pakistan and to commence business in the Shop with his father (now deceased). It was urged that now deceased husband of the Respondent No. 1 was already engaged in real estate business with his other son namely M. Kashan Ahmed who has two real estate businesses at two different places. Therefore personal need was declared as sham and not even remote. Next it was implored that in Rauf Market where the Shop is located and owned by Respondent No. 1 one Shop No. 4 earlier in time got vacated from one Mr. Salahuddin but no business was commenced therein. Receipt of Notice and urging to vacate the Shop through other people was disputed and denied. Having asserted as much, the Rent Case was urged to be dismissed.

3. Rent Case proceeded and in terms of Order dated 7-10-2009 Rent Controller ordered eviction of petitioner from the Shop. FRA was filed which remained fruitless when Judgment dated 31-7-2010 was delivered upholding eviction. Present petition followed thereafter.

4. It was argued by learned counsel for the petitioner that in view of the above stated affairs, and the evidence that was brought before the Rent Controller, the Rent Case ought to have been dismissed and/or FRA ought to have been allowed inasmuch as in evidence it clearly came on record and/or the evidence that was led gone unrebutted as it was established to the hilt that the requirement of Respondent No. 1 of the Shop was not bona fide and patently mala fide. It was also mentioned that in the Rent Case so also in reply to the FRA it was asserted by the Respondent No. 1 that the personal need of the Shop was that of deceased husband who was to commence business therein. It was pointed out that while the proceedings for eviction on the ground of personal need were still pending before the Rent Controller, Rehan who is pursing his living in Dubai came to Pakistan, got married and went back to Dubai along with his wife and still carrying on his abode and earnings there and that Kashan is also well established in his real estate businesses. It was argued that this position is clearly established from the evidence/cross-examination available on record. It was then argued that Israr Ali, the husband of Respondent No. 1, for whose personal need the Shop was required and Rent Case was filed, has died now and therefore the cause of action/personal need extinguished and is no more alive. Circumstances, being such, it was asserted that the decisions of two Courts below set aside.

5. The Respondent No. 1 contested the petition vigorously. It was asserted that though Respondent No. 1's husband's demise is not disputed personal need still subsists inasmuch as that Rehan still-wants to commence his business in the Shop upon return from Dubai, alternatively Kashan can also start his own business therein (Shop). It was also urged that the cause of action is subsisting and unless the Shop is handed over, the same would continue. Nothing else was asserted.

6. I have heard the learned counsel on either side and have gone through the record. It is an admitted position that Respondent No. 1's husband for whose personal bona fide need the Shop was required is not alive. It is also evident from the evidence/cross-examination of deceased Israr Ahmed, husband of Respondent No. 1 who was the only witness put forward to prove the Rent Case admitted that he was not authorized to give evidence on behalf of Respondent No. 1 by admitting that, "It is correct that my son went to Dubai in July 2005" ..... "It is correct that in Exh.A/2 I was not authorized to give evidence before the rent Controller." ...... "It is incorrect that no power of attorney had been given to me and although [that] I am not authorize to give evidence in the instant Rent Cases (as) a witness." In addition to this precarious legal position against the Respondent No. 1, it was further evident from the cross-examination of Israr that he admitted that "Vol: says that my son went to Dubai in July, 2005. It is correct that I did not file any documentary proof regarding policy of Dubai Govt., related to personal working there. It is correct that I did not file any documentary proof regarding the miseries of working person at Dubai. My son is Computer Operator in Dubai. His wife is also residing with him at Dubai. My son had married on 25.12.2007 after the institution of ejectment application. It is correct that I did not file any proof regarding his intention to return to Pakistan permanently." ........ "It is correct that I did not mention in main ejectment application in Para 7 regarding personal need of my son." It is also a matter of record that despite petitioners allegation in his evidence that Kashan, the other son of Respondent No. 1 is engaged in real estate business (for whose need the Shop was not required) nothing in cross-examination was suggested that such is not the case or that the suggestion of the petitioner was untrue. There are documents/exhibits (Annexure D/1 to D/6) on record to substantiate the fact that Kashan Ahmed is doing real estate business and that therefore it is also established that the requirement of the Shop was not his. Since the two sons of the Respondent No. 1 are well established in their own business/works and also the fact that in the Rent Case as well only the personal need was stated to be of deceased husband of Respondent No. 1 and that he is no more alive, the reason for which the Rent Case was filed, elapsed and/or the personal need of deceased husband is no more subsisting. All that came in rebuttal was that son of Respondent No. 1 would come back from Dubai to Pakistan and would commence his business without any substantiation. Nothing else was agitated by Respondent No. 1.

7. Looking at the above situation i.e. that Kashan is already established in his real estate business elsewhere and for his personal need Rent Case was not filed and that Rehan is also earning his livelihood in Dubai and that he came to Pakistan during Rent Case, got married and went back to Dubai shows that he has no intentions to come back to Pakistan, (may be because of unstable economic and political condition of the country) and that it was never a case of Respondent No. 1 that she would do the business in the Shop herself and also the fact that Israr Ahmed, the husband of Respondent No. 1 is no more alive, for whose personal need Rent Case was filed is no more subsisting, the case needs to be looked dynamically. The scheme of Section 15 of the Sindh Rented Premises Ordinance, 1979 by way of Sub-Clause VII of sub-section (2) would show and stipulate that if the landlord requires the premises (in the present case Shop) in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children, and such having been established, the Rent Controller shall make an order, directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order. It has amply come on record that the rent case only stipulated the requirement of Shop for the use of Respondent No. 1's deceased husband and that it has also come on record, through evidence that the need of the Shop was not that of the sons of the Respondent No. 1 who are earning their livelihood in Dubai and in Karachi respectively. The personal bona fide need of the Shop that was existing remained as such till the death of Respondent No. 1's husband. Now that it has extinguished because of sad demise of Respondent No. 1's husband, the circumstances have changed and/or altered altogether. Under these altered and changed circumstances where the bona fide personal need of Respondent No. 1's husband is no more subsisting because of his demise, this petition is allowed and because of such altered and changed circumstances, the decisions handed down by the Rent Controller and by the IVth ADJ are set aside.

8. This petition is disposed of in the above terms.

(R.A.) Petition allowed

PLJ 2012 Karachi 177

Present: Salman Hamid, J

Mrs. INGRID PEREIRA and another--Petitioners

versus

VITH ADDITIONAL DISTRICT JUDGE, KARACHI SOUTH and 2 others--Respondents

C.P. No. S-762 of 2011, decided on 16.11.2011.

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

----S. 7, 10 & 26--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Appointment of guardian--Christian religious--Adoption--Petitioners were close relatives of father of minor children and were settled abroad--Petitioners had adopted the minors with the consent of their father and sought guardianship certificate for taking the minors abroad--Family Court and Lower Appellate Court declined to issue guardianship certificate in favour of petitioners--Validity--Interest and welfare of two minors had been properly safeguarded and father of minors fortified the fact of adoption by giving his no objection affidavit to such an extent--Held: Record showed that well being of two minors, who were Roman Catholic Christian, was with petitioners who were living in better financial and social conditions in U.S.A.--Both the minors were Roman Catholic, so were the petitioners who wanted to adopt them and therefore, they were not governed by Muslim Personal Law--High Court keeping in view the welfare of the minors and fact that orders of two Courts below were based on conjectures and surmises and without appreciation of legal position, allowed the petitioners to take two minors outside the jurisdiction of competent authority for the purposes of adoption in U.S.A. and orders passed by two Courts below were set aside--Petition was allowed. [Pp. 180 & 181] A, B & D

Adoption--

----Connotation--Adoption is defined as a judicial or administrative act which establishes a permanent legal parent and child relationship between a minor and an adult who is not already the minor's legal parent and terminates legal parent-child relationship between the adoptive child and any former parent. [P. 181] C

Mr. Muhammad Umer Lakhani, Advocate for Petitioners.

Respondent No. 3 in person.

Miss Haleema Khan, A.A.G. (On Court Notice).

Date of hearing: 16.11.2011.

Judgment

Mrs. Ingrid Preira, wife of Mr. Terence Preira and Mr. Terence Preira, (the Petitioners), real sister and brother-in-law of late Carol Bob through their attorney namely Mrs.Lilly Rose Francis, applied under Sections 7, 10 and 26 of the Guardians and Wards Act, 1890 to the Family Judge, Karachi South, through Guardian and Ward Application No. 275 of 2010 (the Application) for their appointment as legal guardian of the two minors, namely Whitney Ingrid Lourdes Bob and Britney Davina Mary Bob (Two Minors), which application in terms of Order dated 11-8-2010 was dismissed on the ground that the father of the Two Minors is alive and there was no sufficient or cogent reason for appointment of the petitioners as their (Two Minors') guardian. Aggrieved by such an Order, Family Appeal No. 92 of 2010 was filed, which, too was dismissed by the IV-Additional District Judge, Karachi South in terms of Order dated 29-3-2011 upholding the Order of the Family Judge Karachi South. Through present petition both the above Orders have been questioned.

1. It was asserted by the learned counsel for the petitioners that the two Courts below gravely erred in not appreciating that the welfare of two Minors laid with the petitioners and that father of the two Minors (Respondent No. 3) having accorded no objection to the grant of the application, there was no reason available for dismissal thereof; the Orders passed by the two Courts below were mechanical. It was further argued that the Orders of the two Courts below were based on conjectures and surmises and that the welfare of the Two Minors could not have been determined on such basis. It was implored that the two Courts below failed to appreciate the fact that the Petitioner No. 1 is a real aunt of the Two Minors and was also their God Mother. It was also not appreciated by the two Courts below that the petitioners initiated process for adoption of the Two Minors in the United States of America and followed the rigorous procedure required by the USA Immigration Law who on their turn extensively examined the case of adoption of the Two Minors and carried out thorough studies before allowing the adoption process. It was, therefore, asserted that the present petition be granted by declaring the Orders of the two Courts below to be contrary to law.

2. I have heard the learned counsel for the petitioners and learned A.A.-G. It is a matter of record that the father of the Two Minors has no objection to the grant of the petition and that he had also given his affidavit of no objection before the Courts below wherein it was categorically mentioned that he or any other family member of the Two Minors have no objection to the adoption of the Two Minors by the petitioners and that in such affidavit it was further mentioned that the welfare of Two Minors is that the petitioners who are willing to adopt the Two Minors adopt them more particularly when the Petitioner No. 1 is the God Mother of the Two Minors. It was also stated that it was the wish of deceased mother of the Two Minors that the Petitioner No. 1 should adopt the Two Minors and take care of them. It was urged by the Respondent No. 3 in his affidavit of no objection that he will continue to perform all moral and religious duties towards the Two Minors and for better prospects and better future of the Two Minors in terms of education, health and their future life and also female guidance for upbringing the Two Minors the Petitioner No. 1 be allowed to adopt the Two Minors.

3. It is a matter of record that the petitioners followed, the U.S Citizenship and Immigration Services process for adopting the child (Two Minors). To substantiate following such process, the petitioners filed various documents with the petition, marked as Annexure "A" to Annexure "A/7". Annexure A spoke about the meaning of orphan which amongst others also had a meaning to the effect that an orphan is a foreign born child who has sole or surviving parent who is unable to care for the child, consistent with the local standard of foreign sending country, and who has in writing, irrevocably released the child for immigration and adoption (Emphasis provided). Annexure A/1 filed to the petition was a copy of international adoptive home study, which is a requirement by the U.S immigration and citizenship services before approval can be granted, which included a detailed study of the petitioners' home environment, finances, list of criminal background checks, doctors and psychologist's names, if any, who have evaluated the petitioners for the purpose of adoption and also details of training that they have taken for the adoption. Annexure A/2 was a document/undertaking by the petitioners that they are Roman Catholics and also that they will facilitate the meeting of the two Minors with their father namely Fabien Bob (Respondent No. 3) (emphasis provided), which undertaking also confirmed the fact that the authorities in the USA have been informed of the fact that the father of the two Minors is still alive and that the two Minors are Roman Catholics. The birth certificates of two Minors were filed as Annexure A/3 and A/4 respectively. These documents also included proof of address of the petitioners in the USA and the proof that tax payment of the above property was made and that the petitioners are residing in USA since 2003. Annexure A/6 was a document in respect of financial details and other related sources, pertaining to petitioners' financial standing. Photographs of the layout of the residence where the two Minors would live with the Petitioners were also filed to show the standard of living they will have.

4. All the above would show that the interest and welfare of two Minors have been properly safeguarded and that the father of the two Minors has fortified the fact of adoption by giving his no objection affidavit to such an extent. In all the cases of the minors, be it the custody or adoption or guardianship the predominant factor is their welfare. It amply came on record that the well being of the two Minors who are Roman Catholic Christian lay with the petitioners who are living in better financial and social conditions in USA which the father of the two Minors wants to extend to them and for such purpose, he also filed affidavit of no objection, wherein amongst others, it was specifically mentioned that he would continue to meet with the two Minors regularly either in Pakistan or in USA.

5. It is an admitted position that two Minors are Roman Catholic so also the petitioners who want to adopt them and therefore they are not governed by Muslim Personal Law. It may be noted that in Pakistan there is no law for adoption inasmuch as that Islam does not recognize adoption. However, in United States of America, where the proposed adoption of the Two Minors is to take place has adoption laws; also evident from Annexure A to A/7 for which purpose the petitioners have also put into action the machinery available therefor. Hague Adoption Convention recognizes that a child should grow up in a family environment and in an atmosphere conducive to happiness and understanding which Convention has been adopted by USA with effect from 1-4-2008. Adoption is defined as a judicial or administrative act which establishes a permanent legal parent and child relationship between a minor and an adult who is not already the minor's legal parent and terminates the legal parent-child relationship between the adoptive child and any former parent. The U.S. Child Citizenship Act, 2000 allows a new child to acquire American Citizenship automatically when he or she enters the U.S as lawful permanent resident. Since in Pakistan there is no adoption law and there is no adoption authority and that Pakistan is also not a Hague Adoption country and no child is adopted in Pakistan, therefore, under such situation and circumstances guardianship proceedings become inevitable. Such. proceedings were therefore also initiated in the case in hand which were dismissed by the two Courts below.

6. Looking to the above factors and the paramount consideration i.e. the welfare of the Two Minors and also the fact that the orders of the two Courts below primarily based on conjectures and surmises and without appreciation of the legal position, this petition is allowed and the petitioners are allowed to take the Two Minors outside the jurisdiction of the competent authority for the purposes of adoption in the United States of America and that under the circumstances, the orders passed by the two Courts below are set aside.

7. This petition is disposed of in terms hereof. Needless to mention that the learned A.A.-G. also accorded her consent to the grant of this petition after receiving the copy of the statement and affidavit from the petitioners counsel.

(R.A.) Petition allowed

PLJ 2012 Karachi 182 (DB) [Bench at Sukkur]

Present: Shahid Anwar Bajwa & Muhammad Ali Mazhar, JJ.

MEHAR ALI MEMON--Petitioner

versus

FEDERATION OF PAKISTAN through Chairman Pakistan Railways, Islamabad and 14 others--Respondents

C.P. No. D-1110 of 2009, decided on 30.5.2012.

Co-operative Societies Act, 1925--

----S. 25--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Object to provide shelter to retired employees--Claimed right into land as bona-fide member--Legal character and locus standi--Petitioner was retired railway employee and bona fide member of railway employee Cooperative Housing Society--Construction of overhead bridge and paid as compensation--Society did not accept compensation and requested for alternate piece of land but not alternate land was allotted--Validity--If petition had been moved as bona fide member of society then being bona fide member of society petitioner could have easily approached to Registrar, if any dispute touching business of a society arises between member or past member of society or persons claiming through a member or past member it shall be referred to Registrar for decision by himself or his nominee--If question at issue between society and claimant or between different claimant involving complicated question of law and fact, Registrar might if he thinks fit suspend the proceedings in matter until the question had been tried by a regular suit instituted by one of the parties or by a society. [P. 187] A & B

Co-operative Societies Act, 1925--

----S. 70--Railway retired employee--No suit shall be instituted against society in respect of any act touching business of society until expiration of two months next after notice in writing delivered to registrar or left at his office stating cause of action, name, description and place of residence of plaintiff--Validity--For any act touching the business of society a civil suit can be filed on tendering notice to registrar whilst if any dispute touching the business of a society between member and society, dispute may be referred to Registrar Cooperative. [P. 187] C

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Rights of Cooperative Housing Society--Remedy to safeguard his interest and rights under Cooperative Housing Societies Act--Pakistan Railway Employees Cooperative Housing Society was neither petitioner nor respondent in the petition nor Pakistan Railway had filed any petition to espouse cause of its employees who opted membership in society for allotment of plot in their favour. [P. 188] D

Co-operative Societies Act, 1925--

----S. 23--Scope of--Registration of society--Legal proceedings and to do all things necessary for purposes of its constitution--Validity--If land was allotted to society for its members, which was subsequently cancelled then society could have availed remedy of filing appeal under Land Revenue Act or file a civil suit or other proceedings in accordance with law for removal of encroachment and possession or even for allowing alternate land to society if land was unlawfully cancelled but no efforts were seen to have been made by society--Neither society had come forward to lodge any claim of alternate land as alleged in petition nor claimed any amount of compensation which was allegedly paid by NHA or deposited with Mukhtiarkar. [P. 188] E

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Controversial facts between the parties--Question of fact, which cannot be resolved under constitutional jurisdiction--Validity--High Court has no jurisdiction to embark upon an exercise to determine intricate, contested and complicated question of facts--Resolution of such like controverted issue is ordinarily left to proper forum, indulgence in such exercise would have affect of preempting and enforcing upon jurisdiction vested in competent Court, such controversy could not be decided in writ jurisdiction where equally efficacious, adequate and alternate remedies are straight forwardly accessible to petitioner. [P. 189] F

PLJ 2012 Kar. 69, ref.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Legal right may be statutory right or right recognized by law--A person can be said to be aggrieved only when a person is denied a legal right by someone who has legal duty to perform relating to right--There must not only be a right but justiciable right in existence, to give jurisdiction to High Court in the matter. [P. 190] G

Extraordinary Jurisdiction--

----Constitutional jurisdiction--Court does not go into question involving minute, details nor can it decide facts of which no foundation is laid--Controversy was devoid of record--Such extraordinary jurisdiction is intended primarily for providing an expeditious remedy in a case where illegality of the action of executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. [P. 190] H

Mr. M. A. Hakeem, Advocate for Petitioner.

Mr. A.M. Mubeen Khan, Advocate for Respondent No. 11.

Mr. Qurban Ali Malano, Advocate for Respondent No. 13.

Respondent No. 14 in person.

Mr. Safdar Ali Bhutto, DAG.

Mr. Imtiaz Ali Soomro, AAG.

Date of hearing: 8.5.2012.

Order

Muhammad Ali Mazhar, J.--The petitioner has filed this petition for seeking following relief(s):--

1. The honourable High Court may be pleased to direct the Respondents 1 to 9 to hand-over physical possession of remaining 10.87 Acres of land allocated to Co-operative society, by dispossessing the encroachers by initiating legal steps and mobilizing available resources, so that poor shelterless employees (Retired) may construct their shelters for hiding their heads, by enjoying their rights.

2. The Revenue Department, collected Rs. 60,00,000/- in the year 1994 from National Highway as a compensation of land utilized for over-Head Bridge, but failed to provide alternate land be asked to provide the land in addition to disclose the profits of amount with him from 1994.

3. Any suitable relief which the honourable High Court deems fit along with costs of this petition.

4. Concisely the facts of this petition are that the petitioner is retired Railway employee and he is bona fide member of Pakistan Railway Employees Co-operative Housing Society, Sukkur, which was formed in the year 1980 and registered under the Co-operative Housing Societies Act. The object of Co-operative Housing Society was to provide shelter to the retired employees. It is further contended that an area of 24.57 acres land was acquired by the Society in Deh Saeedabad Jagir and Deh Arain, Taluka Sukkur for the purpose of providing plots to its members. It is further contended that the Respondent No. 3 is controlling officer of the Railway lands and plans were furnished to him for final approval in the year 1981-82 but the physical possession of the land in question, was kept in abeyance on the plea that ban has been imposed upon grant of railway lands. It is further stated that National Highway authority utilized 13.87 acres of land from Railway Employees Co-operative Housing Society for the construction of overhead bridge and paid Rs. 60,00,000/- as compensation. The Society did not accept the compensation and requested for alternate piece of land but no alternate land was allotted till date. The Railway employees Union submitted large number of representations for finalization the subject matter but Respondents No. 1 to 4 failed to provide any positive response. It is further stated that now the major portion of the land has been encroached by IBA and Respondent Nos. 6 to 8 are supporting the encroachment and no efforts have been made to dispossess the encroachers.

5. The Respondent No. 5 submitted comments for self and on behalf of Respondent Nos. 2 to 4, in which it was stated that the ban was imposed by the Ministry of Railway. It is further stated that Master Plan was not approved by the Town Planning Division Hyderabad. It was further stated that Divisional Superintendent Pakistan Railways has tried his level best for lifting of ban as well as demarcation of remaining land admeasuring 10.67 acres for handing over the possession to the members of Railway Employees Co-operative Housing Society.

6. The Respondent No. 11 filed the comments in which it was stated that instead of filing the petition by the Pakistan Railways Co-operative Housing Society, the petitioner has individually filed this petition which is not maintainable. The allegation of encroachment against the Respondent No. 11 has been made against an unspecified land. It was further stated that Respondent No. 11 is not in occupation of any land allegedly allotted to Pakistan Railways Employees Co-operative Housing Society. It was further contended that alternate remedy was available to the petitioner which he has failed to avail.

7. The Mukhtarkar (Revenue), Respondent No. 8 filed his comments, in which he mentioned various Survey Numbers and according to him Respondent No. 11 has purchased the land from Memon Co-operative Housing Society Limited and other Survey Numbers were purchased from Dehli Co-operative Housing Society, Sukur through land acquisition proceedings. The crux of the comments filed by the Mukhtarkar that IBA has lawfully purchased the land. It is further stated in the comments that Sukkur Co-operative Housing Society limited, leased out the land to Pakistan Railway Employees Co-operative Housing Society vide Entry No. 228 dated 26.11.1996 but according to Mukhtarkar the aforesaid Entry was cancelled by the Defunct Assistant Commissioner, Sukkur in Appeal filed by Bahadur Khoso vide Order No. AC/536 dated 5.4.1999.

8. The learned counsel for the petitioner argued that the petitioner is bona fide member of Pakistan Railway Employees Co-operative Housing Society and in order to establish his membership, he pointed out page 35 of the petition, which is an undated Provisional Allotment Order in the name of petitioner issued by the Society. He further argued that despite clear allotment letter, the possession of the plot was not handed over to him. He further argued that the Respondent Nos. 1 to 9 be directed to hand over physical possession of 10.8 acres of land allotted to the Railway Employees Co-operative Housing Society. He further argued that Respondent Nos. 11 to 13 have encroached upon the land of Society and it was the responsibility of Respondent Nos. 1 to 9 to remove the encroachment but they have not taken any action.

9. The learned counsel for the Respondent No. 11 argued that no encroachment has been made by the IBA, Sukkur, He further argued that various disputed questions of fact have been raised, which cannot be resolved in the constitutional petition. He further argued that IBA has purchased the land lawfully and it has nothing to do with encroachment upon the land of Pakistan Railway Employees Housing Society, Sukkur.

10. The learned counsel for the Respondent No. 13 argued that his client Shaharyar Khan Mahar purchased the land from Respondent No. 14 by virtue of registered sale deed. He has also filed a statement along with which, a copy of conveyance deed for the land ad measuring 1.19 acres is attached which is showing the Survey Numbers 40/ 1, 40/2 and 40/3, situated at Deh Arain, Tapo Arain, Taluka New Sukkur. He referred to a letter written by EDO (Revenue), Sukur in which, E.D.O intimated that Mukhtiarkar (Revenue) sent the report in which, it is stated that the Entry No. 228 by virtue of which the land granted to Pakistan Railway Employees Co-operative Housing Society was cancelled by the Assistant Commissioner, Sukkur vide Order dated 5.4.1999 on the appeal filed by Bahadur Khoso and others. The learned counsel further referred to another letter dated 11.8.2010, which was written by Divisional Superintendent Pakistan Railways, Sukkur to Joint Director Property and Land Pakistan Railways Head Office, Lahore whereby it was intimated that during the year 1993 NHA constructed northern Bypass and NHA occupied 13.86 acres land and later on paid compensation to the Land Collector/Sukkur. However, the Society refused to accept the compensation and insisted that Government of Sindh must allot an equivalent area of land for the development of Housing Society but Sindh Government did not accede to this proposal and cost of land still lying with the Land Collector Sindh.

11. The learned DAG argued that NHA occupied the plots of Railways Employees Cooperative Housing Society for construction of Bypass. He further argued that master plan was not approved by Planning Division, Hyderabad. It was further averred that in view of the representation made by the Railway Employees Union, Pakistan Railways, Sukkur tried its level best for lifting of ban as well as demarcation of 10.6 acres land for handing over its possession to the members. However, he did not controvert the comments of Mukhtiarkar Revenue in which it was stated that Entry No. 228 dated 26.11.1996 was cancelled by the defunct Assistant Commissioner in Appeal filed by Respondent No. 14, Bahadur Khoso vide Order No. AC/536 dated 5.4.1999.

12. Heard the arguments of the learned counsel for the parties. The petitioner has filed the petition in his individual capacity and claimed the right into land as bona fide member and also attached a copy of Provisional Allotment Order, which was issued in his name for the Plot No. 33 admeasuring 240 Sq.Yrds situated in Pakistan Railway Employees Cooperative Housing Society Limited, Sukkur.

13. First of all we would like to examine the legal character and locus standi of the petitioner. If the petition has been moved as bona fide member of the society then being a bona fide member of the society, the petitioner could have easily approached to the Registrar Cooperative Housing Society under Section 54 of the Co-operative Societies Act, 1925, which pertains to the Arbitration proceedings and clearly provides that if any dispute touching the business of a society arises between the member or past member of the society or persons, claiming through a member or past member, it shall be referred to the Registrar for decision by himself or his nominee. In the Proviso attached with Section 54 of the aforesaid Act, it is further provided that if the question at issue between the society and a claimant or between different claimant involving complicated question of law and fact, the Registrar may if he thinks fit suspend the proceedings in the matter until the question has been tried by a regular suit instituted by one of the parties or by a society.

14. Under Section 70 of the Co-operative Societies Act, it is provided that no suit shall be instituted against society in respect of any act touching the business of society until expiration of two months next after notice in writing delivered to the Registrar or left at his Office stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims and the plaint shall contain a statement that such notice has been so delivered or left. If we reconcile both the aforesaid sections, it is clear that for any act touching the business of society a civil suit can be filed on tendering notice to the Registrar whilst if any dispute touching the business of a society between member and society, the dispute may also be referred to the Registrar Co-operative.

15. The petitioner has sought the directions against the Respondent Nos. 1 to 9 to hand over physical possession of 10.6 acres of land allotted to the Co-operative Society but it is strange that Pakistan Railway Employees Co-operative Housing Society, Sukkur has not been arrayed in the petition which was proper and necessary party. From the contents of the petition, the stake of the present petitioner is only confined and related to his own Plot No. 33 admeasuring 240 Sq.yrd. Nothing has been placed on record or argued that in any case, the petitioner was authorized by the Society to file the petition or the other affected members allowed the petitioner to file the petition in the representative capacity. If the matter relates to the several or large numbers of society's members then it was the responsibility of the said society to take all appropriate remedial measures to get the land restored to the society for allotment amongst its members if the land was under unlawful occupation or possession or under encroachment which is not perceptible or discernible from Mukhtiarkar report who clearly stated that Entry No. 228 dated 26.11.1996 was cancelled by the Assistant Commissioner, Sukkur.

16. In view of the aforesaid facts, the petitioner may avail remedy to safeguard his interest and rights under the Cooperative Housing Societies Act and if the Registrar will feel that issue is one involving complicated question of law and fact, he may ask the parties to get it resolved by a regular suit. So far as rights of Co-operative Housing Society is concerned, we reiterate that the Pakistan Railway Employees Co-operative Housing Society is neither the petitioner nor the respondent in the petition nor Pakistan Railways has filed any petition to espouse the cause of its employees who opted membership in the society for allotment of plot in their favour.

17. Under Section 23 of the Co-operative Societies Act, 1925, it is provided that registration of society shall render it a body corporate by the name under which it is registered with perpetual succession and a common seal with power to institute and defend suit and other legal proceedings and to do all things necessary for the purposes of its constitution. If the land was allotted to the society for its members, which was subsequently cancelled then the society could have availed a remedy of filing appeal under the Land Revenue Act or file a civil suit or other proceedings in accordance with law for removal of encroachment and possession or even for allowing alternate land to the society if the land was unlawfully cancelled but no efforts are seen to have been made by the society. It is also noteworthy that neither the Society has come forward to lodge any claim of any alternate land as alleged in the petition nor claimed any amount of compensation which is allegedly paid by NHA or deposited with Mukhtiarkar. If the petitioner being a bona fide member has any right of plot, he has this right or claim against the Pakistan Railways Co-operative Housing Society and not against the other respondents. May be he was the president of society as claimed by him but nothing is placed on record to show that the Society being a juristic person ever authorized the petitioner to agitate this issue before this Court on their behalf so legal character and or locus standi of the present petitioner is also doubtful for maintaining this petition being president of society.

18. We further like to hold that the present constitutional petition is full of disputed and complicated questions of fact, which cannot be resolved under the constitutional jurisdiction. There is serious controversial facts between the parties for which this Court cannot enter into a factual realm. Under the constitutional jurisdiction, this Court has no jurisdiction to embark upon an exercise to determine intricate, contested and complicated question of facts. Resolution of such like controverted issue is ordinarily left to proper forum, indulgence in such exercise would have affect of preempting and enforcing upon jurisdiction vested in competent Court, such controversy could not be decided in writ jurisdiction where equally efficacious, adequate and alternate remedies are straight forwardly accessible to the petitioner. Reference can be made to our own judgment authored by one of us (Muhammad Ali Mazhar-J) reported in PLJ 2012 Karachi 69 Mumtaz Ali Jehangir v. Province of Sindh.

19. At this juncture we would further like to refer to PLD 1983 SCMR 280 "State Life Insurance Corporation v. Pakistan Tobacco Company", in which it was held that controverted question of facts adjudication of which possible only after obtaining all types of evidence in power and possession of the parties can be determined only by Courts having plenary jurisdiction in matter and on such ground constitutional petition was incompetent. In another judgment reported in 2001 SCMR 1493 "Mst. Kaniz Fatima v. Muhammad Salim", it was held by the honourable apex Court that where a particular statute provides self contained machinery for determination of question arising under the statute and law provides a remedy by Appeal or revision to another tribunal fully competent to give any relief, any indulgence to the contrary by the High Court is bound to produce a sense of distrust in statutory tribunal. Constitutional petition without exhausting remedy provided by statute did not lie in circumstances. In another judgment reported in 2011 SCMR 279 Anjuman Fruit Arhtian v. Deputy Commissioner Faislabad, again the honourable apex Court held that disputed question of fact could not be decided in constitutional jurisdiction. High Court rightly declined to exercise its constitutional jurisdiction in view of various controversial question of fact which could only be resolved on the basis of evidence which could not be recorded in exercise of constitutional jurisdiction.

20. The right which is the foundation of an application, under Article 199 of the Constitution is a personal and individual right. The legal right may be a statutory right or a right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence, to give jurisdiction to the High Court in the matter. Unless whatever right personal or otherwise, on which the application is based is established, no order can be issued under Art. 199. It is incumbent upon party seeking constitutional remedy to show that such party had a clear legal right and that such right is so clear as not to admit of a reasonable doubt or controversy. Constitutional jurisdiction of High Court cannot converted into that of an Appellate Court. Disputed questions of fact cannot be entertained or allowed to be re-agitated in writ jurisdiction, when the relevant law provides other forums for the purpose. In constitutional jurisdiction, Court does not go into a question involving minute, details nor can it decide facts of which no foundation is laid, unless it is shown that such controversy is devoid of supporting record or perverse. This extraordinary jurisdiction is intended primarily for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. The words "adequate remedy" connotes an efficacious, convenient, beneficial, effective and speedy remedy. It should be equally inexpensive and expeditious. To effectively bar the jurisdiction of the High Court under Article 199 of the Constitution the remedy available under the law must be able to accomplish the same purpose which is sought to be achieved through a petition under Article 199. The other remedy in order to be adequate must be equally convenient, beneficial and effective. The relief afforded by the ordinary law must not be less efficacious, more expensive and cumbersome to achieve as compared to that provided under the Article. Reference can be made to 2011 SCMR 848 & 2011 SCMR 1813.

21. As we said earlier, effective remedies are accessible to the petitioner or even to Pakistan Railway Employees Co-operative Housing Society, Sukkur including those provided under the Co-operative Societies Act, Land Revenue Act or a civil suit against the alleged wrong doers. In view of the fact that the adequate remedies provided under the law are profusely convenient, beneficial and cumbersome to achieve the purpose, this petition is not maintainable.

22. As a result of our above discussion, the petition is dismissed along with pending applications. However, it is clarified that in order to redress the grievances the petitioner may avail appropriate remedy in accordance with the law.

(R.A.) Petition dismissed

PLJ 2012 Karachi 191

Present: Muhammad Ali Mazhar, J.

Mst. FARASA AIJAZ through her Attorney--Applicant

versus

M/s. QAMRAN CONSTRUCTION (PVT.) LTD. through Authorized Officer and another--Respondents

C.R. Appln. No. 262 of 2010, decided on 19.4.2012.

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

----O. 1, R. 10--Necessary and proper party--Only those persons are necessary and proper party to proceedings, whose interest are under challenge in the suit and without their presence matter could not be decided on merits--Necessary party is one who ought to have joined and in whose absence no effective decision can take place. [P. 194] A

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

----O. 1, R. 10--Scope of--Object to avoid multiplicity of proceedings and litigation and to ensure that all proper parties are before Court for proper adjudication on merits--Validity--Court is empowered under such provision to add any person as plaintiff or defendant in suit at any stage and even in appeals--Joining of party at any stage is binding in all subsequent proceedings until set-aside in legal manner. [P. 194] B

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

----S. 107 & O. 1, R. 10--Applicable to appeals--Order 1, Rule 10 of CPC r/w S. 107, CPC is applicable to appeals and appellate Court has discretion to substitute or add any person as appellant or respondent provided they are proper and necessary party to proceedings. [P. 194] C

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

----O. 1, R. 10--Power upon the Court--Gist of right--Applicant was neither necessary party nor a proper party--Validity--If presence of party is necessary to effectually and completely adjudicate upon and settle questions involved--Mere delay in making application is not sufficient to dismiss the application without examining gist of right or claim compelled a party to move application for becoming party to safeguard his right and interest. [P. 194] D

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

----O. 1, R. 10--Applicant was not proper and necessary party--Court might at any stage of proceedings either upon or without application of either party join any person as plaintiff or defendant whose presence before Court might be necessary in order to enable it effectually and completely to adjudicate upon all questions involved in suit. [P. 195] E

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

----O. 1, R. 10--Claim to be proper and necessary party on basis of document--Validity--It would be in interest of justice that a chance be afforded to submit the documents before appellate Court to decide application under Order 1, R. 10 of CPC afresh after considering entire material produced by applicant and objection raised by respondent. [P. 195] F

Mr. Waseem Akhtar, Advocate for Applicant.

Mr. Dildar M.S. Shaikh, Advocate for Respondent No. 1.

Mr. Muhammad Khalid Akhtar, Advocate for Respondent No. 2.

Date of hearing: 19.4.2012.

Order

Muhammad Ali Mazhar, J.--This Revision Application has been preferred against the order dated 05.10.2010, passed by 1st learned Additional Sessions Judge, Karachi, East in Civil Appeal No. 224 of 2009.

1. Concisely, the facts of the case are that the applicant claims to be the owner of Apartment No. 502, City View, Saddar, Karachi. Respondent No. 2 filed a Suit No. 572 of 2001 (New No. 1535/2002) in this Court, which was subsequently transferred due to enhancement in the pecuniary limits of the civil Court jurisdiction. The suit was decreed on 30.9.2009 in favour of Respondent No. 2. The defendant M/S Qamran Construction (Pvt) Ltd. filed appeal against the said judgment and decree, which is pending, meanwhile the applicant came to know about judgment and decree passed in aforesaid suit and moved an application in the Appellate Court under Order I, Rule 10 CPC for becoming party. The same applicant also filed an application under Section 12(2), CPC in the Trial Court, which is also pending and at page 59 of this Revision Application the order passed by learned VII Senior Civil Judge is available which shows that R&P was sent to the Appellate Court therefore the application under Section 12(2), CPC was ordered to be fixed after returning back the R&P from the Appellate Court. The main reason for not impleading the applicant in the Civil Appeal was that the applicant failed to file any documentary proof regarding ownership of said flat and it is further observed in the impugned order that the applicant also failed to file application under Section 12(2), CPC. So far as the institution of an application under Section 12(2), CPC is concerned, it is clear that the applicant has already filed application under Section 12(2), CPC in the Trial Court. However, this Court raised a query whether any document was filed alongwith application under Order I, Rule 10, CPC in the Appellate Court to show the ownership or title of intervene the learned counsel submits that document was filed but same was not considered by the learned Appellate Court.

2. On the other hand, the learned counsel for the Respondent No. 2 argued that no such document was ever filed in the Appellate Court. He further argued that suit in the trial Court remained pending for a long time and in spite of having knowledge, the applicant never approached and failed to file application in the trial Court for becoming party and after lapse of considerable period of time, application was moved in the appellate Court without any proof of ownership which was rightly dismissed. The learned counsel for the Respondent No. 1, who filed appeal against the judgment and decree of the trial Court, endorsed his no objection if the applicant is impleaded as proper and necessary party in the appeal.

3. In support of his arguments, learned counsel for the applicant relied upon case of Khalid Mahmood vs. Asghar Ali Bhatti, reported in 2005 CLC 1821, in which, it was held that Court had ample powers to implead a party whose presence is necessary to effectually and completely adjudicate upon all the questions involved in the suit. In the same judgment the learned division bench also discussed the powers of Appellate Court provided under Order XLI, Rule 33, CPC and held that appeal is continuation of suit and Appellate Court in exercise of its powers can pass any order which ought to have been passed as the case might have required. Once the Appellate Court had come to the conclusion that a person was a necessary party then the Judge ought to pass order directing such person to join as a party. He further relied upon case of Hazrat Khan vs. Amanullah Khan & others, reported in NLR 1995 Civil 402, in which, the hon'ble Supreme Court held that the person who is found to be a necessary party would be entitled to be joined as party to suit at appellate stage of the suit. His joinder as party at appellate stage would ensure for purpose of trial of suit because appeal is continuation of suit.

4. On the other hand, the learned counsel for Respondent No. 2 relied upon the case of Miss Shazia Ashraf vs. Municipal Committee, Sahiwal & Another (2006 CLC 1018), Mst. Marium & others vs. Haji Ali & Others (PLD 1985 Karachi 705) and Abdullah & others vs. Muhammad Haroon & others (2010 CLC 14). All aforesaid judgments are distinguishable and not attracted to the facts and circumstances of the case in hand. The case of Miss Shazia (supra) pertains to Section 12(2), C.P.C., in which it was held that limitation for setting aside the order obtained through fraud and misrepresentation would start from the day of knowledge and three years limitation is provided for setting aside the judgment under Section 12(2), CPC. In case of Mst. Marium (supra), the learned single judge held that declaratory decree would not be binding against the strangers to the suit. In the third case also, the learned single judge only discussed Order XLI Rules 30 & 31, CPC and held that though the Appellate Court not formulated the points in controversy for determination but addressed such points and recorded findings.

5. At this juncture, I would like to avow that only those persons are necessary and proper party to the proceedings, whose interest are under challenge in the suit and without their presence matter could not be decided on merits. The necessary party is one who ought to have been joined and in whose absence no effective decision can take placed. The object of Order I, Rule 10, CPC is to avoid multiplicity of proceedings and litigation and to ensure that all proper parties are before Court for proper adjudication on merits. Once the Court comes to the conclusion that a person applies for becoming a party is a necessary part then the Court ought to pass an order directing such person to be impleaded as party in the proceedings. It is well settled proposition of law that Court is empowered under this provision to add any person as plaintiff or defendant in the suit at any stage and even in appeals. Joining of party at any stage is binding in all subsequent proceedings until set-aside in legal manner. Order I, Rule 10, CPC read with Section 107, CPC is applicable to appeals and the appellate Court has discretion to substitute or add any person as appellant or respondent provided they are proper and necessary party to the proceedings.

6. In the case of Hazrat Khan supra the hon'ble Supreme Court has held that person who is found to be necessary party would be entitled to be joined as party to suit at appellate stage of suit. His joinder as party at appellate stage would ensure for the purpose of trial of suit because appeal is continuation of suit.

7. The powers conferred upon the Court under Order I, Rule 10, CPC can be exercised by the Court at any time and any stage of proceedings if the presence of party is necessary to effectually and completely adjudicate upon and settle the questions involved. Mere delay in making application is not sufficient to dismiss the application without examining the gist of right or claim compelled a party to move application for becoming a party to safeguard his right and interest. The learned appellate Court while dismissing the application stated in the order that the applicant failed to file any prove of purchase of the property in question from the Defendant No. 1 and the another reason was that the application has been filed at belated stage when the judgment has already been passed, therefore, the applicant is neither a necessary party nor a proper party.

8. I have gone through the judgment passed by the trial Court in Suit No. 1535 of 2002 on 30.09.2009, which shows that the witness of Qamran Construction Company Private Ltd. appeared and he submitted a copy of allotment letter of the flat in question, which was issued by the aforesaid construction company in the name of applicant and even during the course of arguments also it was repeatedly argued that the flat in question is in the name of applicant. Though the applicant failed to apply to trial Court for becoming a party in the suit, but at the same time it is also a fact that the witness of construction company brought in the knowledge of trial Court that the flat in question is in the name of applicant and in order to resolve this controversy, the learned trial Court in exercise of powers conferred upon it under the provision of Order I, Rule 10, CPC ought to issue notice to the applicant to avoid multiplicity of proceedings and when the applicant moved the application in the appellate Court to safeguard her interest, the appellate Court dismissed the application merely on the ground that the judgment has already been passed and the applicant is not proper and necessary party, which approach of the appellate Court is not in consonance with the provision of Order I, Rule 10, C.P.C, which provides that the Court may at any stage of proceedings either upon or without the application of either party join any person as plaintiff or defendant, whose presence before the Court may be necessary in order to enable it effectually and completely to adjudicate upon all questions involved in the suit.

9. In order to satisfy this Court, the learned counsel for the applicant filed copy of letter dated 25.11.1997, issued by Respondent No. 1, confirming the allotment of Apartment No. 502, City View along with eight paid receipts issued by Qamran Construction (Pvt.) Ltd in favour of the applicant. Since the applicant claims to be proper and necessary party on the basis of above documents, it would be in the interest of justice that a chance be afforded to the applicant to submit aforesaid documents before the Appellate Court to decide the application under Order I, Rule 10, CPC afresh after considering the entire material produced by the applicant and the objection raised by respondent Mst. Meer Khatoon.

10. As a result of above discussion, the impugned order dated 05.10.2010, passed by learned Appellate Court in Civil Appeal No. 224 of 2009 is set aside with the directions to decide the application filed by the applicant under Order I, Rule 10, CPC afresh and pass speaking order. The learned Appellate Court shall decide this application within fifteen days. This Revision Application stands disposed of in the above terms.

(R.A.) Case remanded

PLJ 2012 Karachi 196

Present: M. Shafi Shabbir, J.

AGHA ZARAR JAN--Petitioner

versus

FEDERATION OF PAKISTAN through its Secretary of Interior Office, Islamabad and 3 others--Respondents

C.P. No. D-554 of 2012 and Misc. No. 3010/2012, decided on 27.4.2012.

Constitution of Pakistan, 1973--

----Art. 199--Federal Investigation Agency Act, 1975, S. 5(5)--Constitutional petition--Defreezing his amount lying with NICL--No objection to release of amount--Validity--Petitioner's amount was lying with NICL was admittedly not a case property and belongs to petitioner--High Court allowed to withdraw the amount accordance with law. [P. 197] A

M/s. Faisal Kamal & Haq Dad Khoso, Advocates for Petitioner.

Mr. Muhammad Ashraf Mughal, D.A.G along with Mr. Israr Ahmed Addl. Director FIA for Respondents.

Mr. M. Arif Khan along with Liaquat Hussain Advocate for Respondent No. 4.

Date of hearing: 27.4.2012.

Order

In the comments filed on behalf of Respondents No. 1 to 3 it is clearly stated that the petitioner is a prosecution witness in FIR No. 21/2010 registered at FIA Commercial Banking Circle, Karachi against accused Ayaz Khan Niazi & others of NICL. It is further stated that the petitioner may approach the trial Court for defreezing his amount lying with the NICL which has been freezed under Section 5(5) of the FIA Act. Mr. Israr Ahmed Additional Director (Law) as well as Mr. Arif Khan candidly concede that the amount freezed, as noted above, is not a case property and belongs to the petitioner and that FIA and so also the NICL have no objection to the release of the amount in favour of the petitioner as per law. Mr. Israr further submits that FIA has already submitted to the Ministry of Interior for removal of the petitioner's name from the Exit Control List.

We would, therefore, dispose of this petition by directing the Ministry of Interior to process the request of the FIA at the earliest and to remove the name of the petitioner from the Exit Control List at the earliest but not later than a week from today. Such is being directed in respect of this case also.

Since as noted above, the petitioner's amount is lying with the NICL is admittedly not a case property and belongs to the petitioner, we would allow the petitioner to withdraw the same in accordance with law.

A copy of this order may be sent to the Ministry of Interior, Government of Pakistan to ensure compliance. A copy may also be provided to the learned D.A.G to ensure compliance.

(R.A.) Order accordingly

PLJ 2012 Karachi 197 (DB) [Bench at Sukkur]

Present: Shahid Anwar Bajwa & Muhammad Ali Mazhar, JJ.

IKRAMUL HAQ and 11 others--Petitioners

versus

PROVINCE OF SINDH through its Secretary Revenue Department, Sindh at Sukkur & 3 others--Respondents

C.P. No. D-115 of 2008, decided on 30.11.2011.

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

----S. 18--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Compensation amount to petitioners--Land was acquired by NHA for construction of additional carriage way--Second award was passed after lapse of 14 years of acquisition--NHA cannot be held liable for payment of exorbitant price of land--Award was not accepted--Challenge to--Using delaying tactics for non payment of award money on different pretexts--Price fixed in award had attained finality cannot be reopened--No alternate remedy for implementation of award--NHA without any lawful reason and or justification was delaying the payment--Petitioners were deprived from their legitimate right of compensation--No concrete or cogent reason had been assigned which might give good reason for non implementing award--Art. 199 of Constitution casts on obligation upon High Court to act in aid of law, protect rights of citizens within framework of constitution against infringement of law and constitution by executive authority, strike rational compromise and fair balance between rights of citizens and actions of state functionaries, claimed to be in larger interest of society--Whenever executive acts in violation of law, an appropriate order can granted which can relieve citizen of effects of illegal action--Where statutory functionary acts mala fide or in partial, unjust and oppressive manner, High Court in exercise of its constitutional jurisdiction has ample power to grant relief to aggrieved party--Petition was allowed. [P. 203] A

PLD 2004 SC 271, ref.

Mr. Jamshed Ahmed Faiz, Advocate for Petitioner.

Mr. A.M. Mobeen Khan, Advocate for Respondents Nos. 3 & 4.

Mr. Imtiaz Ali Soomro, A.A.G. for State.

Date of hearing: 20.9.2011.

Order

Muhammad Ali Mazhar, J.--This constitution petition has been filed by the petitioners for seeking directions against the Respondents No. 2 & 3 to pay the compensation/award amount to the petitioners which they have failed to pay.

1. Concisely, the facts of the case are that the petitioners are the owners of Survey Nos. 91/2 (0-16), 92/1 (0-03), 92/2 (0-27), 92/3 (0-11), 93/1 (0-12), 93/2 (0-20), 93/3 (0-05), 93/4 (0-12), 94/5 (0-15), 96/6 (0-35), 95/4 (0-26) ad-measuring 04-22 acres, situated in deh Pano Khaslo, taluka Ghotki. It is further contended that in the month of March, 1993, the Respondents No. 1 & 2 acquired the aforesaid land for the construction of additional carriage way Sarhad bypass by the Respondent No. 3 (National Highway Authority of Pakistan) and possession of land was taken over in the year 1993 in view of special powers conferred upon the authority under Section 17 of the Land Acquisition Act to deal the cases of urgency. It is further stated that Notifications under Sections 4 & 6 were accordingly issued in official gazette and after complying with all codal formalities, an award was delivered on 10.7.2007 under Section 11 of the Land Acquisition Act and consequently, the said award was filed in the office of Respondent No. 2 but when the petitioners approached for receiving award money, Respondent No. 2 replied that funds are not available in his account and letter has been forwarded to the Respondent No. 4 for release of funds but in spite of all efforts, non-payment has been made to the petitioners so far.

2. The Respondent No. 2, DDO (Revenue) filed brief history of the case in which he admitted that the land in question was acquired by NHA in the year 1993 for construction of additional carriage way. He further submitted that main award of the project was passed on 19.11.1995 but B-Form of the above land was not received from survey department, hence land could not be included in the main award and after receiving B-Form of the land in question award was passed in connection with aforesaid land on 10.7.2007. The Deputy Director (Maintenance) NHA, Sukkur was not agreed with the award and reported vide letter dated 15.8.2007 that the award is against provisions of Land Acquisition Act, 1894 and in reply to this letter, the Deputy Director (Maintenance), NHA was advised to file an appeal before proper forum against the award passed by the Respondent No. 2. In separate comments, Respondent No. 2 has reiterated the similar facts.

3. The Respondents No. 3 & 4 have also filed their comments in which they admitted that they had acquired land in question along with other land with possession for construction of additional carriage way from Sukkur and the initial award was passed on 19.11.1995, but the land in question was not included in the award as B-form in respect of above land was not received by the Land Acquisition Officer from Survey Superintendent. However, vide award dated 10.7.2007, Respondent No. 2 illegally and exorbitantly fixed very high rate and failed to consider the price of land prevailing in the area at the time of acquiring possession in the year 1993, but the price was fixed in the subsequent award on the basis of price of land prevailing in the year 2007 when the second award was delivered. It is further contended that at the time of acquiring land in the year 1993, price of land was Rs. 70,000/- to Rs. 80,000/- per acre which was also confirmed by the Assistant Mukhtiarkar (Revenue) and the Sub-Registrar. It is further stated in the comments that second award dated 10.7.2007 was passed by Land Acquisition Officer after lapse of 14 years of acquisition, therefore, Respondents No. 3 & 4 cannot be held liable for the payment of exorbitant price of land. Since the award was not accepted, Respondent No. 4 challenged the second award vide letter dated 10.7.2007 but Respondent No. 2 failed to exercise his powers under Section 18 of the Land Acquisition Act and simply advised the Respondent No. 4 to file an appeal.

4. By consent of all the learned counsel, the matter was heard for final disposal at katacha peshi stage. The learned counsel for the petitioners argued that valuation of property in question has already been resolved and the Respondent No. 2 in the award has already considered the price of land properly and after due deliberation award was delivered. He further argued that the respondents are using delaying tactics for non payment of award money on different pretexts. It was further averred that after delivering the award, respondents have not challenged the same in Court of law nor filed any appeal, therefore, price fixed in the award has attained finality and same cannot be reopened and he finally argued that since there is no alternate remedy available to the petitioners for the implementation of award, therefore, petitioners have opted to prefer this petition in this Court for the recovery of compensation and the execution of award.

5. Conversely, the learned counsel for the Respondents No. 3 & 4 argued that it is an admitted fact that the land in question was not included in the award dated 19.11.1995 due to non availability of B-form of land in question and thereafter Respondent No. 2 passed the award after delay of at least 14 years from the date of land acquisition and in spite of deciding the price of land prevailing in the year 1993, an exorbitant amount has been fixed which is in contravention of provisions of Land Acquisition Act. Learned counsel further argued that it is also a matter of record that being dissatisfied with the award dated 10.7.2007, Respondent No. 4 forwarded a letter in which serious exceptions were shown against the award in question but Respondent No. 2 instead of considering the objections raised in the letter and to deal the objections under the provisions of Section 18 of the Land Acquisition Act, he simply ignored the objections and vide letter dated 21.8.2007, informed the Respondent No. 4 to file appeal against the award before the proper forum under the provisions of Land Acquisition Act.

6. The learned AAG argued that notification under Section 4 of the Land Acquisition Act was published in official gazette on 20.2.2007, and the Notification under Section 6 of the Land Acquisition Act was gazetted on 9.3.2007. He further argued that National Highway Authority failed to deposit the amount of compensation, therefore, amount was not paid. A letter was issued to them but they did not release funds for onward payment. He further argued that possession of the acquired land was handed over to NHA in the year 1993.

7. The main thrust of the arguments of learned counsel appearing for the Respondents No. 3 & 4 is that a letter was written to the DDO (Revenue) on 15.8.2007 in which it was stated that the market rate of the land in question in the year 1993 was Rs. 70,000 or 80,000/- per acre, therefore, rate should have been fixed on the basis of price prevailing in the year 1993 when the land was handed over.

8. In order to appreciate the contention raised by learned counsel, it would be expedient to reproduce Section 18 of the Land Acquisition Act as under:

"18. Reference to Court.--(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.

(2) The application shall state the grounds on which objection to the award is taken:

Provided that every such application shall be made--

(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award ;

(b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 12, sub-section (2) or within six months from the date of the Collector's award, whichever period shall first expire".

1. It is clear from the above provision that any person who has not accepted the award, may by written application to the Collector require that the matter be referred to for the determination of Court on the basis of objection in relation to measurement of land, amount of compensation, the person to whom it payable or apportionment of compensation among the person entrusted. It is further provided in Sub-section (2) that the application shall state the grounds on which objection to the award is taken. Firstly, let it be clarified that in the letter dated 15.8.2007, purported to have been sent under Section 18 simply raised a ground that the amount of land should have been determined on the basis of date of compensation of land in the year 1993. In this very letter it is no where stated or requested by the Deputy Director, NHA, Sukkur for making any reference by the DDO to the Court for determination of any objection and instead of making clear statement or request, in the end of letter, it was simply stated that the letter may be kept on record.

2. Under Section 23 of the Land Acquisition Act, it is provided that at the time of determining the amount of compensation, the foremost consideration would be the value of land on the date of publication of the Notification under Section 4, sub-section (1) of the Land Acquisition Act. Since the Notification under Section 4 of the land in question was issued in the month of February, 2007, therefore, DDO who delivered the award could have easily taken into consideration the price of land prevailing at the time of issuing Notification, but the award shows that he determined Rs. 2,45,000/- per acre on the basis of rate of land fixed during year 2002 in the same project. The DDO in his award also stated that Assistant Mukhtiarkar Revenue, Ghotki and representative of Sub-Registrar informed that no doubt price of land was not above one lac in the year 1993 but at present price of land is very high and the present value of land in Deh Pano Khaslo and adjoining Dehs in between Rs. 5 lacs to 7 lacs per acre. It shows from the award that after taking into consideration all material aspects in the matter, the rate of land was fixed by the DDO in his award, therefore, objections raised by the Respondents No. 3 & 4 in their letter dated 15.8.2007 that rate should have been fixed as prevailing in the year 1993 are misconceived as there was no hindrances or obstructions for the award making authority to consider the rate on the basis of date when Notification under Section 4 was issued, but instead of allowing compensation on that rate, he after due deliberation and hearing the parties fixed rate at Rs. 2,45,000/- per acre, to which petitioners have not challenged in any Court of law and they accepted the award without any objection or reservation. The learned counsel for the Respondents No. 3 & 4 referred to 2001 SCMR 794 and PLD 2002 SC 84, but in both cases it was held that crucial factor for determination of market value of the acquired land would be the date on which the Notification under Section 4 sub-section (1) of the Land Acquisition Act, 1894 was issued. The case law relied upon by the learned counsel are not helpful to his case, but in fact this gives a right to the petitioners to claim amount of compensation of the land in question on the basis of Notification which was issued in the year 2007, but they have accepted the award without any objection or protest and it is highly unjustified that instead of making payment by the acquiring agency they are delaying the matter and depriving the petitioners from their lawful amount of compensation.

3. Another important aspect which can not be ignored that the Respondents No. 3 and 4 have not challenged the award in any Court of law. First of all neither any case of reference was made out nor any request for reference was made. Notwithstanding, If reference on their letter was not made by the DDO, they could have promptly initiated appropriate legal proceedings for seeking directions against him but no proceedings were initiated by them and it seems from their conduct that they were waiting to take this plea at belated stage when the petitioners will approach this Court as a last resort for execution/implementation of award. This is all delaying tactics to frustrate the legitimate claim of the petitioners who handed over the possession of land in good faith on the hopes that adequate compensation will be paid to them swiftly in accordance with law.

4. At this point in time, we would like to refer to a judgment reported in PLD 2010 Supreme Court 719 (Land Acquisition Collector Versus Mst. Iqbal Begum), in which, the honorable Supreme Court held that potentiality of land should not be determined merely at the time of issuance of notification under S.4 of the Land Acquisition Act, 1894, but it should also be with reference to the use to which land is reasonably capable of being put in future. Potentiality of land cannot be determined without examining its future prospects, therefore, compensation cannot be based merely on basis of "past sales". Object of Land Acquisition Act, 1894 was to provide complete indemnity to owner and not to allow acquisition of land without proper and adequate compensation. Gold be given for gold and not copper for gold. To determine compensation, the Court must ascertain the value on the date of notification, considering various factors including nature and location of acquired land and sale price of adjoining lands. In assessing market value of land, its location, potentiality and price evidence by transactions of similar land at the time of notification are factors, which should be kept in view. One year's average of sales taking place before publication of notification under Section 4 Land Acquisition Act, 1894 of similar land is merely one of the modes for ascertaining market value and is not an absolute yardstick for assessment of compensation. Moreover, status of acquired land, its potentialities and its likelihood of development and improvement would be necessary factors for determining rate of compensation. Market value would mean what a willing purchaser would have paid for acquired land. In another judgment reported in PLD 2009 Supreme Court 16 (Province of Punjab Versus Sh. Hassan Ali & others), criteria for determination of compensation of land has been laid down in Section 23 of the Land Acquisition Act and it includes, inter alia, the market value of the land on the date of publication of notification under Section 4(1) of the Act, the damage sustained by the persons interested by reasons of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession, or by reasons of severing such land from his other land, or by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings, or if a person interested is compelled to change his residence or place of business, and it, also includes the damages from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector's taking possession of the land, etc., meaning thereby that it is cumulative effect of all the factors involved and compensation cannot be assessed solely on the basis of the entries in the mutation effected at the relevant time.

5. We have no ambiguity in our mind to hold that the Respondent No. 3 without any lawful reason and or justification is delaying the payment and since 10.7.2007, the petitioners are deprived from their legitimate right of compensation. No concrete or cogent reason has been assigned which might give good reason for non-implementing the award. Article 199 of the Constitution casts an obligation upon this Court to act in aid of law, protect the rights of citizens within the framework of the Constitution against infringement of law and Constitution by the Executive Authorities, strike a rational compromise and a fair balance between the rights of citizens and actions of State functionaries, claimed to be in the larger interest of Society. Whenever the executive acts in violation of law, an appropriate order can be granted which can relieve the citizen of the effects of illegal action. Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, this Court in exercise of its Constitutional jurisdiction has ample power to grant relief to the aggrieved party. Reference can be made to PLD 2004 SC 271.

6. As a result of above discussion, this petition is allowed. The Respondent No. 3 is directed to make payment of compensation to the petitioners within a period of one month in terms of award dated 10.7.2007.

(R.A.) Petition allowed

PLJ 2012 Karachi 204 (DB) [Bench at Sukkur]

Present: Shahid Anwar Bajwa & Muhammad Ali Mazhar, JJ.

Ms. FATIMA--Petitioner

versus

PRINCIPAL & CHAIRMAN ADMISSION COMMITTEE, G.M.M., MEDICAL COLLEGE, SUKKUR and another--Respondents

C.P. No. D-3345 of 2011, heard on 17.1.2012.

Educational Institution--

----Admission in MBBS on Self Finance Basis--Application for mutual transfer--Mutual transfer or migration was only within competence of V.C. and principal was not competent to accord mutual transfer--No violation was committed--Principal who was Chairman Admission Committee but neither P.M.C. had been arrayed as necessary party nor V.C. who was competent to accord transfer on mutual basis or migration of student from one college to another--Validity--In order to provide fair right of representation, principal was directed by High Court to prepare a reference and submit to V.C. with all necessary facts and V.C. was directed to decide reference and petitioner might be allowed to attend classes at Sukkur, therefore, students both with consent of principals were allowed to attend classes at Sukkur--Accommodation in Medical College Sukkur keeping in view her option but petitioner had failed to point out any violation of prospectus or policy--Though at time of her admission under Self Finance Scheme she might have placed option as matter of right--Unless some vested right shown to have been violated--It is well settled that for purpose of maintaining constitutional petition, it is duty and obligation of petitioner to show that action of the authorities was in derogation of some law, rules or regulation--Petitioner had failed to demonstrate violation or infringement of any legal right or contravention of prospectus policy--V.C. was directed to pass an appropriate order on reference which did not warrant any interference by High Court in its constitutional jurisdiction where factual controversy and disputed question of fact were involved--Petition was dismissed. [Pp. 209, 210, 211 & 212] A, B, C & F

Constitution of Pakistan, 1973--

----Art. 199--Constitutional jurisdiction--Mutual transfer--Existence of clear legal right--Maintainability--Such legal right must be personal and individual right and that is must be statutory right or right recognized by law--Jurisdiction of High Court can be invoked only by an aggrieved person and a person can be said to be aggrieved only when he was denied a legal right by some one who has a legal duty to perform relating to right. [P. 211] D

Constitution of Pakistan, 1973--

----Art. 199--Invocation of constitutional jurisdiction of High Court--Aggrieved party has to establish not only legal right but a right which was justiciable in Court of law, in absence of which no order can be issued u/Art. 199 of Constitution--It is incumbent upon the party invoking of jurisdiction of High Court u/Art. 199 to satisfy that some illegal wrong had been inflicted or was about to be inflicted on petitioner. [P. 211] E

Mr. Maqbool Ahmed Awan, Advocate for Petitioner.

Mr. Ghulam Ali A. Samtio, Advocate and Mr. Imtiaz Ali Soomro, AAG for Respondents.

Date of hearing: 17.1.2012.

Order

Muhammad Ali Mazhar, J.--The petitioner has filed this constitution petition with the following prayers:--

(a) "To declare that the order dated 24.11.2011 and 10.12.2011 which have been passed without application of judicial mind and are illegal, nullity ab initio in the eye of law.

(b) To restrain the Respondent No. 1, sending the petitioner to Nawabshah PMC which is against the option given by the petitioner as well as Respondent No. 2.

(c) To pass an order for suspension of the impugned order till decision of this petition.

(d) To declare the Respondent No. 1 to allow the petitioner so also the Respondent No. 2 for admissions on Mutual basis as per their policy and precedents.

(e) To grant any other relief, which deems to fit and proper under the circumstances of the case.

(f) Cost of proceedings."

1. The case of the petitioner is that she and Respondent No. 2 in the month of September, 2011 applied for admission in MBBS in Ghulam Muhammad Mahar Medical College, Sukkur. The petitioner and Respondent No. 2 both cleared medical entry test 2011-12 but due to limited seats, they were directed to apply under the University Education Assistance Program (Self Finance) in the month of October, 2011. Consequently, in the aforesaid scheme their Forms were accepted and they were offered admission on the allocated seats of their respective Districts. The name of petitioner is at Serial Number 12 of the Provisional Merit List of candidates applied for MBBS/BDS on Self Finance basis for Session 2011-12 for District Khairpur while the name of Respondent No. 2 is appearing at Serial Number 4 of the Provisional Merit List for District Ghotki.

2. The grievance of the petitioner is that she was allowed admission in Peoples Medical College, Nawabshah against her option i.e. Ghulam Muhammad Mahar Medical College, Sukkur. The petitioner filed an application on 22.11.2011 in which it was reiterated that she had given an option for Ghulam Muhammad Mahar Medical College, Sukkur on the ground that her elder brother is already getting education in the said College and her mother is also ailing and her father is stationed at Karachi, therefore, it was convenient for her to get education in Ghulam Muhammad Mahar Medical College, Sukkur. It was further averred that the Respondent No. 1 after examining the application directed the petitioner to bring another student who willing to accept admission in Peoples Medical College, Nawabshah on mutual basis. The Respondent No. 2 according to the petitioner also opted admission in Peoples Medical College, Nawabshah but she was allowed to be admitted at Ghulam Muhammad Mahar Medical College, Sukkur, therefore, on 23.11.2011 the petitioner along with Respondent No. 2 moved an application for mutual transfer. The Respondent No. 1 informed them that this application will be put-up before the Admission Committee and the decision will be conveyed later on. On 24.11.2011 the Respondent No. 1 conveyed the decision to Vice Chancellor Shaheed Muhtarma Benazir Bhutto Medical University, Larkana, in which, it was stated that meeting was convened under his Chairmanship along with five other members to discuss the request of Mr.Ubedullah regarding his daughter's admission in Peoples Medical College, Nawabshah on Self Finance basis, was scrutinized and fully discussed as per prospectus and the petitioner's position for Peoples Medical College as per previous decision, was upheld. The Respondent No. 2 has also filed her affidavit in support of petition and she stated that she has no objection if the petition is allowed as prayed.

3. The Respondent No. 1 filed his comments, in which, it was stated that the petitioner and Respondent No. 2 applied for admission of regular seats but could not secure the marks, thereafter they applied for admission in Self Finance. As per merit cum-choice basis mentioned in the prospectus for the Session 2011-12, the petitioner was placed at Merit No. 12 of District Khairpur, which was the last one as the seats under the scheme for District Khairpur, are only 12, therefore, she was rightly nominated for admission at Peoples Medical College, Nawabshah in accordance with the policy laid down in prospectus. Likewise, the Respondent No. 2 is placed at Serial Number 4 for District Ghotki, therefore, she was rightly nominated for admission in Ghulam Muhammad Mahar Medical College, Sukkur according to the policy laid down in the prospectus though the petitioner had opted for Ghulam Muhammad Mahar Medical College, Sukkur, but she could not be accommodated as per her own choice but she was to be accommodated according to the policy, therefore she was rightly nominated for Peoples Medical College, Nawabshah and there is no fault of College administration or Admission Committee. It is further stated that the Respondent No. 1 never directed the petitioner to bring another student for admission at Peoples Medical College, Nawabshah on mutual basis. It is further stated that Respondent No. 2 never appeared before the Respondent No. 1 with any application for mutual transfer. Annexure-B attached to the petition, does not speak about any mutual transfer between the petitioner and Respondent No. 2 even in another application dated 23.11.2011 nothing has been mentioned for the mutual transfer with the Respondent No. 2. It is further stated that Annexure-C attached to the petition, seems to be a forged document as it was never presented before the Respondent No. 1. However, the application moved by the petitioner on 23.11.2011 was under consideration for her admission at Ghulam Muhammad Mahar Medical College, Sukkur, but no application was received from Respondent No. 2 and Admission Committee unanimously decided in its meeting held on 24.11.2011 that the policy laid down in the prospectus is to be adhered to therefore, the previous decision was upheld after scrutinizing the record. It was further stated by Respondent No. 1 in his comments that he is not competent to entertain and allow the mutual transfer of admission between two candidates in two different Colleges and it is only the Vice Chancellor of the University, therefore, there was no question of deciding or allowing mutual transfer to the petitioner and Respondent No. 2 as in the order dated 24.11.2011 only the question of accepting the choice of petitioner for her admission at Ghulam Muhammad Mahar Medical College, Sukkur, was considered and declined in view of the policy laid down in the prospectus. It is further contended that there is no order dated 10.12.2011, which has been impugned in the petition. However, Annexure-H attached to the petition, is only a letter addressed to Vice Chancellor, Peoples Medical College, Nawabshah nominating five girls for admission at Peoples Medical College.

4. The learned counsel for the petitioner argued that Respondent No. 1 acted contrary to law and they have violated their policy and the order dated 24.11.2011 is based on mala fide. He further argued that it is well settled law and policy of the Colleges and Universities to give preference to the option of girls candidates for admission but the Respondent No. 1 failed to consider and passed a non-speaking order dated 24.11.2011 whereby he declined the request of the petitioner. He further argued that at no point of time, the Respondent No. 1 called the Respondent No. 2 for explaining her position and her no objection to the request of the petitioner and that the act of Respondent No. 1 is discriminatory. Since there was no efficacious and adequate remedy available, therefore this constitutional petition has been filed for seeking relief against the Respondent No. 1 to allow the petitioner for admission on mutual basis.

5. On the contrary, the learned counsel for the Respondent No. 1 argued that mutual transfer or migration is only within the competence of Vice Chancellor and the Respondent No. 1 is not competent to accord any mutual transfer to the petitioner or the Respondent No. 2. He further argued that the admission to the petitioner and Respondent No. 2 was granted on Self Finance basis in accordance with the policy and prospectus and no violation was committed by the Respondent No. 1. He also contended that many controversial questions of fact have been raised by the petitioner, which cannot be resolved under the constitutional jurisdiction of this Court. The learned counsel further disputed that at no point of time, the petitioner was directed by the Respondent No. 1 to bring another student showing willingness for admission at Peoples Medical College, Nawabshah on mutual basis. It was further averred that the Respondent No. 2 never appeared before the Respondent No. 1 with any application duly signed by her for mutual transfer and the Respondent No. 1 was never told the petitioner or the Respondent No. 2 that their application will be put-up before Admission Committee. The application submitted by the petitioner on 23.11.2011 was placed before the Admission Committee but her request was declined and the decision was conveyed to the Vice Chancellor Shaheed Mohtarma Benazir Bhutto University, Larkana on 24.11.2011. The learned counsel also invited our attention to Annexure-II of their comments, which is relevant to allocation of seats and Clause 5(i) of prospectus 2011-12 relates to District-wise MBBS and BDS General merit and UEAP seats, which shows 9 seats for Ghulam Muhammad Mahar Medical College, Sukkur and 3 seats for Peoples Medical College, Nawabshah under the classification of UEAP for District Khairpur. The learned counsel finally argued that there is no illegality or any mala fide on the part of Respondent No. 1, who is otherwise not competent to allow transfer on mutual basis and he further argued that there is no case of any discrimination.

6. After hearing the learned counsel, we have reached to the conclusion that the petitioner has only arrayed the Principal of Ghulam Muhammad Mahar Medical College, Sukkur, who is also a Chairman Admission Committee but neither Peoples Medical College has been arrayed as necessary party nor the Vice Chancellor who is competent to accord the transfer on mutual basis or the migration of the student from one Institution/College to another. On 21.12.2011 parawise comments were filed by Respondent No. 1 and he was also present in person and he categorically stated that the only Vice Chancellor is competent to allow the transfer, therefore, in order to provide a fair right of representation to the petitioner, the Respondent No. 1 was directed by this Court to prepare a reference and submit to the learned Vice Chancellor with all necessary facts and the Vice Chancellor was directed to decide the reference within ten days and since the petitioner requested that she may be allowed to attend the classes at Sukkur, therefore, the petitioner and Respondent No. 2 both with the consent of Professor Doctor Qarib Abbass Shah Principal Ghulam Muhammad Mahar Medical College, Sukkur and Chairman Admission Committee (Respondent No. 1), were allowed to attend the classes at Sukkur. The learned counsel for the Respondent No. 1 submitted the order passed by the Professor Akbar Haider Soomro Vice Chancellor SMBBMU, Larkana on 31.12.2011, which shows that the petitioner, Respondent No. 2 both were present before the Vice Chancellor with their fathers and Principal GMMMC, Sukkur was also present and the Vice Chancellor after hearing them passed the order. In the order the Vice Chancellor concluded as under:--

"The Principal GMMMC Sukkur was directed by the honorable Court to prepare and submit Reference in the matter, as such, the Reference is received from Principal concerned for decision.

Admittedly the case of admission of both applicants was considered by the Admission Committee under the Chairmanship of Principal GMMMC Sukkur against the category of UEAP (Self Finance) and finalized in accordance with relevant Rules and no violation of and deviation from the same in such decision of Admission Committee has been found. The admission has been granted to both of them and their files have also been sent to concerned Colleges. They have been allowed to attend classes at Sukkur by the Honorable Court at their request. At this stage the case of applicants clearly falls within the purview of Migration from one College to another College, which is governed by Rule 13.1 of the Prospectus Session 2011-12. It will be advantageous to reproduce Rule 13.1 (i) of the Prospectus for the sake of convenience, which reads as under:--

"The following categories of students shall not be allowed migration.

(i) Those who are admitted against:

(a) Reserve Seats

(b) Special Seats

(c) UEAP Seats".

A bare reading of the rule cited supra, reveals that there is restriction on the migration of students admitted against UEAP seats. Since both the applicants have been granted admission under the category of UEAP seats, hence their request for transfer/migration can not be accepted, thus the same is hereby declined and the Reference in hand is disposed of accordingly.

Announced on 31-12-2011.

Sd/-31.12.11

(PROF.AKBAR HAIDER SOOMRO)

VICE CHANCELLOR

SMBBMU Larkana".

1. The whole thrust of the petitioner is that she should be accommodated in Ghulam Muhammad Mahar Medical College, Sukkur keeping in view her option but the petitioner has failed to point out any violation of prospectus or the policy of Ghulam Muhammad Mahar Medical College, Sukkur. Though at the time of her admission under Self Finance Scheme she might have placed an option for admission at Ghulam Muhammad Mahar Medical College, Sukkur but she can not claim transfer and or acceptance of her option as a matter of right unless some vested right shown to have been violated. In the memo. of petition she pleads mala fide but no specific instances or details have been shown, which may substantiate her plea of mala fide against the Respondent No. 1. It is also a fact that in the memo. of petition numerous controversial and disputed questions of fact have been raised and in the comments filed by the Respondent No. 1 most of the allegations have been denied. The petitioner has also failed to demonstrate any lawful right which should have been accommodated by Respondent No. 1. It is well settled that for the purpose of maintaining constitutional petition, it is the duty and obligation of the petitioner to show that action of the authorities was in derogation of some law, rules and or regulations.

2. In the case reported in 2010 MLD 103 (Ms.Faiqa Ali v. Vice Chancellor, Government College University Lahore and others), the petitioner in that case had filed the petition alleging therein that the papers were not checked properly and syllabus was not considered at the time of rechecking of papers. The learned bench held that factual controversies could not be resolved by High Court in constitutional jurisdiction. General allegations of mala fide levelled but no specific mala fide against the University was shown, therefore the High Court declined to issue writ against the University on the basis of general allegations and petition was dismissed.

3. The learned division bench of this Court in the case reported in 2002 CLC 147 (Zaheeruddin Sheikh and 30 others v. United Bank Limited) held that party invoking constitutional jurisdiction has to establish the existence of a clear legal right and further that such legal right must be so clear so as not to admit of a reasonable doubt or a controversy. Such legal right must be a personal and individual right and that it must be statutory right or a right recognized by law. The jurisdiction of this Court under Article 199 of the Constitution can be invoked only by an aggrieved person and a person can be said to be aggrieved only when he is denied a legal right by someone, who has a legal duty to perform relating to the right. It is also to be noted that for invocation of constitutional jurisdiction of this Court, the aggrieved party has to establish not only a legal right but a right which is justiciable in a Court of law, in absence of which no order can be issued under Article 199 of the Constitution of Pakistan. It is incumbent upon the party invoking of jurisdiction of this Court under Article 199 of the Constitution to satisfy that some illegal wrong had been inflicted or was about to be inflicted on the petitioner.

4. In another judgment reported in SBLR 2011 1393 (Miss Javaria v. Mehran University of Engineering & Technology), the divisional bench of this Court in which, one of us (Muhammad Ali Mazhar-J) has authored the judgment and held that the controversy which entirely revolving around the question of fact and needed elaborate enquiry could not be undertaken by High Court under Article 199 of the Constitution. In the same judgment, the dictum of honorable Supreme Court reported in 2000 SCMR 1222 in case of Dow Medical College was also referred to in which, it was held that right to seek admission in an Educational Institution and to continue studies therein is always subject to the rules of the discipline prescribed by the Institution and therefore, student who intends to pursue his studies in the Institution is bound by such rules. In another CP.No. D-523/2000, it was held by the learned division bench of this Court in the case of Mehran University of Engineering and Technology, Jamshoro, in which the petitioner Farhan Kareem Mahar in spite of his short attendance claimed the right to appear in the examination, this Court dismissed the petition and held that the exercise of discretion in favour of the petitioner will amount to unnecessary interference in the working of an Educational Institution.

5. The whys and wherefores lead us to an irresistible conclusion that the petitioner has failed to demonstrate violation or infringement of any legal right or the contravention of prospectus/policy. The Vice Chancellor was directed to pass an appropriate order on the reference of Respondent No. 1, which has been answered after hearing the petitioner and Respondent No. 2 and reasons have been assigned in the order, which does not warrant any interference by this Court in its constitutional jurisdiction, especially, in the circumstances, where factual controversy and disputed question of fact are involved. The petitioner has attached a letter dated 13.11.2010, allowing provisional admission to one student Ali Haider in 1st MBBS Class at Chandka Medical College, Larkana and another letter of the same student dated 23.12.2010, which was issued by the Registrar of the same University to the same student on mutual basis. First of all no credentials of student Ali Haider have been provided in the petition to show his number in the merit list in his District. Secondly, Shaheed Mohtarma Benazir Bhutto University, Larkana is not party to the petition and the letter issued to Ali Haider showing the category of seats "District Merits" and not of "UBAP", therefore, his case is distinguishable. In the case of Bahauddin Zakaria University Multan, the honorable supreme Court in its judgment reported in 2005 SCMR 961, held that Rules and Regulations framed by the University were required to be interpreted by them and Courts should avoid to interpret the same unless a case of grave injustice is made out. Mr.Maqbool Awan, learned counsel for the petitioner shown us a letter issued by Respondent No. 1 on 11.1.2012 to VC in which due to voluntarily withdrawn of student Yassen Ali from his seat of Self finance from district Khairpur, one more candidate is to be accommodated and inducted to complete 12 seats of District Khairpur and he requested the Vice Chancellor to return the file of petitioner. Let it be decided by the institution by their own according to their rules and prospectus.

6. For the foregoing reasons, this constitution petition is dismissed. Interim orders are recalled.

(R.A.) Petition dismissed

PLJ 2012 Karachi 213

Present: Muhammad Ali Mazhar, J.

JAHANGIR SIDDIQUI--Plaintiff

versus

NOMAN ABID, INVESTMENT MANAGEMENT LIMITED, KARACHI and 3 others--Defendants

Suit No. 1731 of 2009 and C.M.A. Nos. 10987 of 2009, 78, 10054 of 2010, decided on 29.5.2012.

Securities and Exchange Commission of Pakistan Act, 1997--

----S. 33(1)(a)--Appeal against administrative direction--Appeal lies to appellate bench of commission against an order of commission passed by commissioner--Validity--No appeal shall lie against an administrative directions given by commissioner or an officer of commission. [P. 226] A

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

----S. 9--Jurisdiction of Civil Court to try all suits of civil nature--Civil Courts were competent u/S. 9, CPC, to try all suits of civil nature--Provisions in statute ousting jurisdiction of Courts of general jurisdiction should be construed very strictly and unless case fell within letter and spirit of barring section, no effect should be given thereto. [P. 229] B

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

----O. XXXIX, Rr. 1 & 2--Non-Banking Finance Company Regulations, 2007--Regl. 66(5)--Request for redemption of units--Direction to deposit balance redemption amount--Existence of prima facie--While deciding injunction application such as prima facie existence of right in plaintiff and its infringement or existence of prima facie case in favour of plaintiff, an irreparable loss, damages or injuries which might occur to plaintiff, if injunction was not granted inconvenience which plaintiff will be comparatively greater than that which other words balance of convenience should be in favour of plaintiff--Existence of prima facie case is to be judged or made out on basis of evidence on record at time of hearing of injunction application and such evidence of material should be of nature that by considering same, Court should or ought to be of view that plaintiff applying for injunction was in all probability likely to succeed in suits by having decision in his favor. [Pp. 236 & 237] C

Balance of Convenience--

----If an injunction was not granted and suit was ultimately decided in favor of plaintiff, inconvenience caused to plaintiff would be greater than that would be caused to defendant if injunction was granted. [P. 237] D

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

----O. XXXIX, Rr. 1, 2 & O. XL--Temporary injunction--Inherent jurisdiction--Where there are compelling reasons and interest of justice require or demand the Courts were neither helpless nor where they fettered by specific--Provisions of Order XXXIX or Order XL and in exercise of their inherent jurisdiction will grant relief by way of temporary injunction or through appointment of receiver to protect rights of citizens. [Pp. 237 & 238] E

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

----Ss. 94, 151 & O. XXXIX Rr. 1, 2--Inherent power of Courts--Question of--Whether in interest of justice inherent powers are to be exercised--Validity--It is not possible to lay down specific principles restricting the power of Courts to exercise inherent jurisdiction in specified situations--If such were done, it would only impede administration of justice and restrict the development of law. [P. 238] F

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

----Ss. 94(e), 151 & O. XXXIX, Rr. 1, 2--Interlocutory order--Power to grant relief--Passing of an interim order is on part of working of judicial system and no separate or specific provision was necessary to empower a Court to issue an interim order--Power to grant interim relief vests in a Court as necessary corollary to power to grant main relief--Not only under O. 39, Rules 1 & 2, CPC injunction can also be granted u/S. 94 & 151, CPC. [P. 238] G

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

----O. XXXIX, Rr. 1, 2 & O. VII, Rr. 10, 11--Suit for declaration, recovery and damages--Request for redemption--Application for rejection of plaint or in alternate return plaint--Redemption request was to be honored within six days--If NBFC will operate affairs in such a way and fail to comply with specific regulations to honor and redeem suits within specific period of time, there will be serious chaos and turmoil and confidence reposed by public-at-large on financial institutions will prejudiced and their money will be on stake--Once redemption request was made, it was responsibility of NBFC to honor without delay or excise--A person who purchased units from NBFC on hopes that he will have reasonable profit and returns in his investments of funds, has to face serious hardship and problems to get back his money on actual net assets value prevailing on date of lodging his request but he has to wait for long time for redemption at the will and leisure of NBFC. [P. 239] H

Mr. Khalid Javed Khan, Advocate for Plaintiff.

M/s. Muhammad Anwar Tariq & Mr. Obaid-ur-Rehman, Advocates for Defendants Nos. 1. & 2.

Mr. Ijaz Shirazi, Advocate for Defendant No. 3.

Date of hearing: 25.2.2012.

Order

By this order, I intend to dispose of CMA No. 10987/2009 filed by the plaintiff under Order XXXIX, Rules 1 & 2, CPC read with Section 151, CPC and CMA No. 78/2010 filed by the Defendants No. 1 & 2 under Order VII, Rule 11, CPC.

1. The plaintiff has filed this suit for declaration, recovery and damages with the following prayers:--

(a) Declare that the plaintiff was entitled to redemption of 466,343.0867 Units of RIF within six working days of the request of redemption and the Defendant No. 1 is liable to pay the plaintiff NAV of Units at the rate as on 22.10.2008.

(b) Declare that failure of the Defendant No. 1 to redeem the units of the plaintiff as per his request as NAV as on 22.10.2008 is illegal, malicious, fraudulent and in contravention of the provisions of law.

(c) Pass judgment and decree against the Defendants No. 1, 2 and 3 jointly and severally for an amount of Rs.24,233,917/- in favour of the plaintiff being the redemption amount of the Units and mark up @ 18 % w.e.f 30.10.2008 till the date of payment.

(d) Award a sum of Rs.20 Million to the plaintiff by way of compensation/ damages against the Defendant No. 1.

(e) Direct the Defendant No. 4 to initiate appropriate proceedings against the Defendant No. 1 and take strict penal action against the Defendant No. 1, its Chief Executive, Directors, officers etc. in accordance with law.

(f) Direct the Defendants No. 1 to 3 to deposit the sum of Rs.24,233,917/- along with mark up @ 18 % w.e.f. 30.10.2009 till date with the Nazir of the Court during the pendency of the case.

(g) Prohibit the Defendant No. 1 from receiving any further investment in the Units of RIF i.e. Defendant No. 2 till the payment of Rs.24,233,917/- with mark up is made to the plaintiff.

(h) Grant such relief which may be deemed fit and proper in the circumstances of the case.

(i) Grant costs of the suit.

1. Brief facts as narrated in the plaint are that the plaintiff is a businessman and the Defendant No. 1 is a Non-Banking Finance Company (NBFC) under license from the Defendant No. 4, to function/operate as an Asset Management Company. The Defendant No. 1 is managing the Defendant No. 2 i.e. Reliance Income Fund (RIF). The plaintiff made investment in RIF and purchased 466,343.0867 Units of RIF on 27.06.2008 and the plaintiff was allocated Account No. 146 by Defendant No. 1. The plaintiff submitted his request for redemption of above Units on 22.10.2008 and under Regulation 66(5) of the NBFC Regulations, 2007, which was in field when the plaintiffs redemption request was submitted, the Defendant No. 1 was liable to redeem the Units and make payment within a period of six working days of the request for redemption by the plaintiff as a Unit Holder. The NBFC Regulations, 2007 were repealed and substituted by the NBFC Regulations, 2008 in which also, the Defendant No. 1 was liable to redeem the Units and make payment within a period of six working days at a prevalent Net Asset Value (NAV), however instead of discharging its statutory obligation by making payment within the stipulated period, the Defendant No. 1 vide letter dated 30.10.2008 informed the plaintiff that they have come to know that the plaintiff has withdrawn his request for redemption of Units and the Defendant No. 1 would treat the request as cancelled, which letter was completely false, fabricated and misleading as the plaintiff never agreed to withdraw the redemption request. The plaintiff replied the letter on 31.10.2008 and clearly stated that there was no withdrawal of the request. Vide letter dated 31.01.2008, the Defendant No. 1 informed that it was under tremendous pressure for redemption of Units from different Unit Holders and requested the plaintiff to get redeemed 50 per cent Units immediately and the remaining Units would be redeemed within two weeks. The Defendant No. 1 requested for bifurcation of the plaintiffs redemption request into two portions to which the plaintiff reluctantly agreed, however the plaintiff clearly informed the Defendant No. 1 that he is ready to accept redemption payment in two installments as indicated above, the NAV of all the units should be on the rate existed at the time of initial request of redemption. The plaintiff sent two blank undated redemption forms for redemption but the Defendant No. 1 once again defaulted in redeeming the Units as per its commitment.

2. The plaintiff has filed application under Order XXXIX, Rules 1 & 2, CPC whereas the Defendant No. 1 & 2 have filed application under Order VII, Rule 11 C.P.C for rejection of plaint or in alternate return the plaint under Order VII, Rule 10 C.P.C. Since, the Defendant No. 1 & 2 claimed the rejection of plaint, hence, I would like to take-up and decide CMA No. 78/2010 first.

3. The Defendant No. 1 & 2 in their application under Order VII, Rule 11, CPC pleaded that the dispute pertains to "Mutual Funds" and its redemption which is exclusively to be dealt with by Defendant No. 4, hence this Court has no jurisdiction to entertain the suit. The Defendant No. 4 denied the relief to the plaintiff in its order that on the basis of available information the matter cannot be concluded, meaning thereby that the claim of the plaintiffs lacks evidence.

4. Although no counter affidavit has been filed by the plaintiff to the CMA No. 78/2010, however, the learned counsel for the plaintiff requested that the averments made in the plaint may be considered for deciding the instant application.

5. The learned counsel for the Defendant Nos. 1 & 2 argued that the matter of redemption of units is highly technical in nature and this matter falls squarely within the powers and ambit of Securities Exchange Commission of Pakistan. He further argued that in the light of SECP's Notification Bearing No. 1061(1)/dated 18.10.2005, various powers including those listed below emerging from Companies Ordinance, 1984 have been delegated to the Executive Director (NBFCs Department). The relevant Sections of Companies Ordinance 1984 relied upon by the learned counsel of Defendants No. 1 & 2 are as under:

| | | | | --- | --- | --- | | Sr. No | Section of Companies Ordinance, 1984 | Nature of Power/Function | | 24. | Section 282D (1) | To issue direction to NBFCs. | | 25. | Section 282D (2) | To modify or cancel the directions issue and impose conditions. | | 26. | Section 282H(1) | To monitor financial position of an NBFC and to order special audit. | | 27. | Section 282I | To cause inquiry or inspection and to exercise other related powers. | | 28. | Section 282J(1) | Impose fine on the NBFC and its officers (including auditors). | | 29. | Section 282J(3) | Cancellation of Licence |

1. He further argued that right of appeal under Section 33 of Securities & Exchange Commission of Pakistan Act, 1997 was available to the plaintiff in the special jurisdiction which the plaintiff failed to avail and he rushed to this Court seeking reliefs on the disputed claim raised by him. Lastly, it was contended that this Court has no jurisdiction to entertain and adjudicate the suit and the plaint is liable to be rejected. In support of his arguments, the learned counsel for the Defendant No. 1 & 2 referred to following case law:

2. 2009 SCMR 1392 (Securities and Exchange Commission of Pakistan v. Mian Nisar Elahi). In this matter, the honourable Supreme Court held that before approaching High Court the respondents should have exercised alternate remedies available under Sections 33 and 34 of the Act. The dispute is highly technical in nature and can amicably be resolved only through special expertise, High Court itself observed that "the SECP would be more appropriate forum, to pass such interim order". The very object of the Act would be frustrated, if for one reason or the other, the initial orders of the SECP are directly challenged before the High Court.

3. PLD 2001 Karachi 256 (National Accountability Bureau v. Zahida Sattar). In this matter, it was held that assumption of jurisdiction by the learned Single Judge specifically militates against the Scheme of the Ordinance which provides for a procedure whereby Accountability Courts have been established throughout the country to bring corrupt persons to book and the moneys which they have made unlawfully recovered, for the general good of the country. Such a procedure essentially contemplates the eradication of corruption and corrupt practices and as provided in Section 12 of the Ordinance gives the power to the Chairman of the National Accountability Bureau or the Accountability Court to freeze the property of any person being tried for an offence before it.

4. PLD 1969 SC 187 (Adnan Afzal v. Capt. Sher Afzal). In this matter, it was held that a comparison of these provisions thus indicates that the provisions of the West Pakistan Family Courts Act are of a more beneficial nature which enlarge not only the scope of the enquiry but also vest the Court with powers of giving greater relief with a right of appeal either to the District Court or to the High Court. Furthermore, the combined effect of Sections 5 and 20 of the Act is clearly to give exclusive jurisdiction to the Family Courts.

5. 2009 CLD 1537 (Fouzia Begum v. Govt. of Pakistan through Secretary, Ministry of Finance, Islamabad). In this case, it was held that as far as second prayer for direction to NAB for holding of any inquiry against Respondents Nos.4 and 5 is concerned SECP which is Regulatory Body of Respondent No. 7 has already seized of the matter which after holding the inquiry has removed certain, irregularities and in order to safeguard the interest of the depositors has arranged the sale of bank in open bidding whereupon Respondent No. 9 has purchased the bank on 26-6-2007. It is felt appropriate that the bank should continue to work in order to revive the confidence of general public in the bank. In such circumstances if any direction is issued to Respondent No. 8/NAB it will not only hamper the progress and the working of the bank but it will also ruin the business of bank as confidence of general public will be shaken.

6. PLD 2002 SC 408 (Mst. Zahida Sattar v. Federation of Pakistan). In this case, it was held that the question arises whether a Civil Court is vested with the jurisdiction to entertain a suit to try an issue which is subject-matter of a criminal charge for which an accused is being tried in a Criminal Court under special law i.e. NAB Ordinance. The answer: to this question revolves around the decision on the question whether the Civil Court can try a criminal charge which is exclusively triable by a criminal Court under the special law. The answer cannot be, but in the negative. In a case where accused holder of public office is being tried for accumulation of wealth acquired, by him by illegal and corrupt practices by misusing his official capacity in the name of his spouses and other relatives, the dispute is not of a civil nature between two private parties.

7. 2003 CLD 1185 (M. Waqar Monnoo, Member Central Managing Committee v. All Pakistan Textile Mills Association through C.E.O). In this case, it was held that the contention that the plaint cannot be rejected in part under Order VII, Rule 11, C.P.C. is not material as a perusal of the prayer clauses show that all of them are hit by Section 12 ibid and Section 32 ibid; the question of rejecting the plaint in part does not arise as in the present form the plaintiff is seeking reliefs which are dependent on and connected with each other.

8. PLD 1997 Peshawar 72 (Qayyum Nawaz Khan v. Regional Manager, Agricultural Development Bank of Pakistan, Dera Ismail Khan). In this case it was held that the trial Court on the one hand came to the conclusion that he has got no jurisdiction and returned the plaint under Order VII, Rule 10, C.P.C. for presentation before the proper forum, but at the same time allowed the appellants to amend their plaint. The dispute between the parties relates to the recovery of Advance and the Banking Tribunal has the exclusive jurisdiction, therefore, the learned trial Court was right in returning the plaint to the appellants under Order VII, Rule 10, C.P.C. for presentation before the proper forum.

9. On the other hand, the learned counsel for the plaintiff argued that the plaintiff made an investment in RIF (Reliance Income Fund) and purchased units from Defendant No. 1 on 27.6.2008. He further argued that under Rule 57 (4) of the NBFC & National Entities, Regulations, 2008, the Defendant No. 1 was liable to redeem the units and make payment within a period of six working days of the request, for redemption by the unit holder. He further argued that the Defendant No. 1 has not referred to any provision of either the Act, 1997 or Ordinance, 1984 which provides any specific remedy to the plaintiff for redemption of amount nor any provision barring jurisdiction of this Court. So far as contention of Defendant No. 1 that letter dated 25.8.2009 was an order appealable under Section 33 of the Act, 1997, the learned counsel for the plaintiff contended that the Defendant No. 1 has failed to show under what provision of law this order was passed in the first instance, secondly, it must show that it was such an order which could be appealed against. He further argued that Section 33 of the Act, 1997 provides appeals against orders passed by the Commission/ Commissioner. By no stretch of imagination, the letter dated 25.8.2009 can be treated as an order passed by Commission or the Commissioner. An order must decide or dispose of the case and not merely advise the party to amicably settle the matter or approach the appropriate forum. The Defendant No. 1 has also failed to point out as to what was the forum under the law which the plaintiff was required to approach. He further contended that where rights are exclusively created by statute and specific remedies are also provided under that statute only then jurisdiction of civil Court could be ousted and that too when the order is passed in accordance with law and in good faith, otherwise, the jurisdiction of civil Court is never ousted. He further submitted that all the powers delegated to Executive Director under SRO 1061(I)/2005 are relatable to executive functions and not powers of adjudication which may be the subject matter of appeal under Section 33. In support of his arguments, the learned counsel relied upon the following case law:

10. PLD 1997 SC 3 (Abbasia Cooperative Bank (Now Punjab Provincial Cooperative Bank Ltd. V. Hakeem Hafiz Muhammad Ghaus). In this case the honorable Supreme Court held that civil Courts under S.9, C.P.C. were competent to try all suits of civil nature except those which were ousted from their jurisdiction either expressly or by necessary implication. Provisions contained in statute ousting Jurisdiction of Courts of general jurisdiction should be construed very strictly and unless case fell within letter and spirit of barring section, no effect should be given thereto. Where jurisdiction of civil Courts to examine validity of any action or order of Executive Authority or Special-Tribunal was challenged on ground of ouster of jurisdiction of civil Court, it must be shown; that Authority or Tribunal was validly constituted under the Act; that order passed or action taken by Authority of Tribunal was not mala fide; that order passed or action taken was such which could be passed or taken under law which conferred exclusive jurisdiction on Authority or Tribunal; and that in passing order or taking action, principles of natural justice were not violated. Unless all such conditions were satisfied, order or action of Authority or Tribunal would not be immune from being challenged before civil Court. Where, therefore, Authority or Tribunal had acted in violation of provisions of Statutes which conferred jurisdiction on them or such action or order was made in excess or in absence of jurisdiction or mala fide or was passed in violation of principles of natural justice, such order could be challenged before civil Court in spite of provision in Statute barring jurisdiction of civil Court.

11. PLD 1968 Karachi 797 (Amin Cotton Company v. Karachi Cotton Association Ltd.). In this case, learned single judge of this Court held that when rights created by a statute are required by statute to be adjudicated only by a Tribunal to be set up under that statute, then the civil Courts have no jurisdiction to grant relief. But where, a statute confers exclusive jurisdiction on a tribunal for determining claims in respect of common law rights, then the jurisdiction of the Courts will not be excluded until the tribunal required by the statute is set up.

12. 1986 CLC 2561 (Shah Muhammad v. Mst. Resham Bibi). In this case, learned single judge of this Court held that although one of allegations in plaint was action of Martial Law Authorities against plaintiff on basis of which land was transferred to defendants, and such action was described to be mala fide and without lawful authority, yet no relief was claimed in suit to declare orders of Martial Law Authorities as without lawful authority. Defendant making application for rejection of plaint. Only appropriate course for trial Court, held, was to frame issue with regard to jurisdiction of Court on base of averments made in application for rejection of plaint, and after allowing parties to lead evidence thereon should have considered question of jurisdiction of Court.

13. 2006 PTD 219 (Collectorate of Central Excise Karachi v. Syed Muzakkar Hussain). In this judgment, learned divisional bench of this Court held that jurisdiction of civil Court, invoking of, even where barred by statute. Suit for declaration and permanent injunction was filed by the respondent in order to challenge the notices issued to him by the Authority for the deposit of excise duty in respect of excisable services which were provided. High Court (Single Judge) decreed the suit. Appeal was filed by the Authority against the decision of the Single Judge. Contention of the Appellant/Authority was that the suit was not maintainable as the jurisdiction of the Court was barred under S.40 of the Central Excise Act, 1944, and secondly, even if the plaintiff had felt aggrieved by the notices, then the remedy available to him was under the hierarchy of the Central Excise Act, 1944 itself and the same could not have been questioned by filing a suit. Plaintiff had not filed the suit calling in question any order passed under the Act or questioned any assessment or levy or collection of any duty under it, but had only questioned the notice issued by the Authority on the ground that the same had been issued mala fide without any jurisdiction or lawful authority. When special law provided hierarchy for redress of grievance, then one could not normally be allowed to circumvent the same by invoking jurisdiction of civil Court, however, if prima facie any mala fide could be shown on the part of the authority, or illegality, which was floating on the surface, and or absence of jurisdiction, then the jurisdiction of civil Court could be invoked in the matter. Plea as to bar of jurisdiction could only by sustained if it could be shown that the impugned order was passed in the bona fide exercise of powers under the statute. When it was established that the very act questioned was without lawful authority and jurisdiction, then instead of asking a party to go under agony of lengthy departmental proceedings where possibility of getting relief were limited, civil Court could grant relief to deserving party by holding that the act was without lawful authority. Jurisdiction of civil Court can be excluded by the Legislature by special Acts which deal with the special subject but the statutory provision must expressly provide for such exclusion or must necessarily and inevitably lead to such inference. Bar created by the relevant provision of statute excluding jurisdiction of civil Court cannot operate in cases, where the plea before the civil Court goes to the root of the matter and would, if upheld, lead to conclusion that the impugned order is nullity. Even where the jurisdiction of civil Court is barred and conferred upon special Tribunal, civil Court being Court of ultimate jurisdiction will have the power to examine the acts of such forums to see whether their acts axe in accordance with law or are illegal or even mala fide.

14. PLD 2009 Karachi 38 (Attaullah v. Sanaullah). In this matter, learned single judge of this Court held that plaint could only be rejected under Cl. (d) of Order VII, R.11, C.P.C. if from the statement in the plaint Court came to the conclusion that the same was barred by any law. For deciding an application under O. VII, R.11, C.P.C. the contents of the plaint had to be taken as true on its face value and the pleas raised in defence could not be looked into. Jurisdiction of civil Courts is ousted only in cases where statutory functionaries have jurisdiction to entertain, adjudicate and dispose of or determine any matter, under Cooperative Societies Act, 1925. If dispute is of such nature that the same cannot be referred to arbitration under S.54 of Cooperative Societies Act, 1925, for adjudication and decision, then S.70-A of Cooperative Societies Act, 1925, would not bar jurisdiction of Civil Courts.

15. The crux of the arguments advanced by learned counsel for the Defendants No. 1 & 2 that lis pertains to mutual funds, therefore, matter relating to mutual funds can be dealt with exclusively by the Defendant No. 4, which is Securities and Exchange Commission of Pakistan. The learned counsel further argued that instead of filing present suit in this Court, remedy was available to the plaintiff to file appeal under Section 33 of the Securities and Exchange Commission of Pakistan Act, 1997 which enjoys special jurisdiction which has not been availed by the plaintiff. The learned counsel made much emphasis on the Notification issued by Securities and Exchange Commission of Pakistan on 18th October, 2005, SRO No. 1061(I)/2005 which was issued in exercise of powers conferred by Section 10 of the Securities and Exchange Commission of Pakistan Act, 1997, whereby several powers provided under numerous Sections of Companies Ordinance, 1984 were delegated to its Commissioners and Officers. Paragraph No. 4 of the aforesaid Notification mentions powers vested in the Executive Director, NBFC. The powers to deal the Sections 282D(1), 282D(2), 282H(1) and 2821 and 282J(2) have been granted to the Executive Director who can deal and exercise aforesaid powers and decide the matter accordingly. The Sections reproduced hereinabove shows that Section 282D pertains to the powers of Commission to issue directions to NBFC. Section 282H provides that Commission shall monitor general financial condition of NBFC and at its discretion may order special audit and an Auditor to carry out detailed scrutiny of the affairs of NBFC. Section 282I gives powers to the Commission to Cause enquiry or inspection to be made by any person appointed in this behalf into the affairs of the NBFC. Section 282J is related to the penalty in case NBFC fails or refuses to comply with any provisions contained in part-VIII of the Companies Ordinance, 1984 or any of the provisions or rules or regulations made under Section 282B or regulations, circulars or directives or any directions or order passed by the Commission and sub-section (2) of the same section pertains to issuance of show-cause notice in case of contravention of any provisions of the Ordinance or rules or regulations or non compliance of any directions given or order passed by the Commission, while sub-section (3) of Section 282J pertains to cancellation of license of Non-Banking Finance Companies.

16. According to the learned counsel, the Executive Director passed the order against which the plaintiff should have availed the remedy of appeal under Section 33 of the Securities and Exchange Commission of Pakistan Act, 1997. For the convenience and ready reference, Section 33 of the Securities and Exchange Commission of Pakistan Act, 1997 is reproduced as under:--

17. Appeal to the Appellate Bench of the Commission.--[(1) Except as otherwise provided any person aggrieved by an order of the Commission passed by one Commissioner or an officer authorized in this behalf by the Commission, may within thirty days of the order, prefer an appeal to an Appellate Bench of the Commission constituted under sub-section (2):

Provided that no appeal shall lie against------------

(a) an administrative direction given by a Commissioner or an officer of the Commission;

(b) an order passed in exercise of the powers of revision or review;

(c) a sanction provided or decision made by a Commissioner or an officer of the Commission to commence legal proceedings [ ]; and

(d) an interim order which does not dispose of the entire matter.]

(2) The Commission shall constitute an Appellate Bench of the Commission comprising not less than two Commissioners to hear appeals under sub-section (1).

(3) If any Commissioner who is included in the Appellate Bench has participated or been concerned in the decision being appealed against the Chairman shall nominate another Commissioner to sit in the Bench to hear that appeal.

(4) The form in which an appeal is to be filed and the fees to be paid therefor and other related matters shall be prescribed by rules.

1. Section 33 reproduced above makes it clear that the appeal lies to the appellate bench of the Commission against an order of the Commission passed by Commissioner or an Officer authorized in this behalf by the Commission. However, clause (a) of the proviso attached to sub-section (1) of Section 33 of Securities and Exchange Commission of Pakistan Act, 1997 clearly provides that no appeal shall lie against an administrative directions given by the Commissioner or an Officer of the Commission. The plaintiff has attached copy of representation dated 8th August, 2009 which was written to the Executive Director, Securities and Exchange Commission of Pakistan, in which after mentioning entire grievances it was requested to the Commission to look into the matter and direct the Defendant No. 1 to make payment to the plaintiff along with compensation. However, vide letter dated 25th August, 2009, the Executive Director of Securities and Exchange Commission of Pakistan, Specialized Companies Division informed the plaintiff as under:

"Mr. Jahangir Siddiqui, 7/F, The Forum Block-9, Clifton, Karachi.

Dear Sir, SUBJECT: Complaint for Non-Payment of Redemption Money for units of Reliance Income Fund by Noman Abid Investment Management Limited (NAIML)

This is with reference to our letters dated June 22, 2009, August 06, 2009 and August 08, 2009 on the above subject.

We had taken up the matter with Noman Abid Investment Management Limited and a copy of the letters (dated July 09, 2009 and August 18, 2009) received from NAIML in this respect, is attached herewith for your information and record.

After going through the correspondence received from both side, it emerges that the redemption of units was delayed/ withheld due to some commitment/ understanding (as per NAIML) between NAIML and your office. Since this understanding between both the parties was not recorded/documented, we therefore cannot conclude this matter on the basis of available information.

You are therefore advised to arrive at some amicable settlement or approach the appropriate forum for resolution of your dispute.

Yours truly, Shahid Nasim (Executive Director)"

1. The aforesaid communication to the plaintiff clearly shows that Executive Director could not conclude the matter and he advised the plaintiff to approach appropriate forum for resolution of his dispute. The language of the letter unequivocally shows that neither this letter can be treated as an order nor any rights of the parties were decided but an advise was given to the plaintiff to seek appropriate remedy in the appropriate forum which makes it clear that in fact there was no order in field which might be appealable to the appellate bench of the Commission. At the best, this can be treated as an "administrative directions" given by the Executive Director under his delegated powers which is not appealable in view of the conditions laid down under proviso attached with sub-section (1) of Section 33 of the Securities and Exchange Commission of Pakistan Act, 1997. It is also pertinent to point out that the Executive Director granted no relief to the plaintiff, neither any show-cause notice was issued to the Defendant No. 1 nor any order was passed. The plaintiff has attached a copy of order dated 12th August, 2009 passed by Securities and Exchange Commission of Pakistan against the Defendant No. 1 in an identical matter and directions were issued to pay the compensation to the complainant Ms. Nasreen with the payment of differential amount of Net Assets Value (NAV). May be this is a reason that the plaintiff has also sought directions against the Defendant No. 4 to initiate appropriate proceedings against the Defendant No. 1 and take strict penal action against the Defendant No. 1, its Chief Executive, Directors, officers etc. in accordance with law.

2. The word "Order" has been defined under the Black's Law Dictionary and Judicial Dictionary by K.J. Alyar 13th Edition as under:

Black's Law Dictionary

"Order. A mandate; precept; command or direction authoritatively given; rule or regulation. Brady v. Interstate Commerce Commission, D.C.W. Va., 43 F.2d 847, 850. direction of a Court or Judge made or entered in writing, and not included in a judgment, which determines some point or directs some step in the proceedings."

Judicial Dictionary by K.J. AIYAR 13th Edition

"Order' as a noun, has been held equivalent to or synonymous withdecision' [see 26 CJS, 767, Note 72; regulation',rule', resolution',shipment' and warrant', as has been compared with, distinguished from,regulation' and `warrant']

Reference can be made to 2011 PLC (C.S.) 203, Deedar Hussain Jakhrani versus Federation of Pakistan.

1. In my own judgment reported in 2010 Y L R 3313, "Sabir Hussain versus Board of Trustees Karachi". It was held that plaint cannot be rejected in piecemeal. This is a settled principle of law that in case of controversial questions of facts or law the provision of Order VII, Rule 11, C.P.C. cannot be invoked rather the proper course for the Court in such cases is to frame issue on such question and decide the same on merits in the light of evidence. While rejecting the plaint, contents of the plaint would be read as a whole and presumption of correctness would be attached to averments made therein. Plaint in suit could not be rejected in part. It is further pertinent to mention that Jurisdiction of civil Court can be excluded by the Legislature by special Acts which deal with the special subject but the statutory provision must expressly provide for such exclusion or must necessarily and inevitably lead to such inference.

2. As I said earlier that there was no order in field, therefore, mere advisory directions issued by the Executive Director cannot be considered as an order of the Commission or the authorized officer. The learned counsel for the Defendant No. 1 failed to plead any specific bar in which no civil suit can be filed for the redress of grievance shown by the plaintiff in this suit except reliance of Section 33 which in my view and understanding of law is not applicable in the present controversy. Section 9 of Civil Procedure Code clearly provides that civil Courts have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Wherever there is a right, there is a remedy which is a well known maxim `ubi jus ibi remedium'. Section 9, C.P.C granted general jurisdiction to try all suits of civil nature and jurisdiction of a Court is to be determined initially by recitals in the plaint and since there is no specific bar under Securities and Exchange Commission of Pakistan Act, 1997, therefore, in all fairness, the suit is maintainable. I am fortified by the judgment in the case of Abbasia Co-operative Bank (supra) in which it was held that civil Courts are competent under Section 9 of C.P.C. to try all suits of civil nature. Provisions contained in statute ousting jurisdiction of Courts of general jurisdiction should be construed very strictly and unless case fell within letter and spirit of barring section, no effect should be given thereto.

3. The learned counsel for the Defendant No. 1 referred to the judgment of honourable Supreme Court in the case of Securities and Exchange Commission of Pakistan (supra). Controversy involved in that case was totally different than the case in hand. In that case SECP was itself petitioner and the matter related to the crisis of stock market. Initial order passed by SECP was directly challenged in the High Court in a writ petition, therefore, honorable Supreme Court held that under Section 33 of the Act of 1997, an appeal shall lie to an appellate bench of the commission in respect of an order of the Commission made by the Commissioner. The next case law relied upon pertains to NAB which is reported in PLD 2001 Karachi 256 in which controversy was related to freezing of property which has no direct application to the facts and circumstances of the present case. Case of Adnan Afzal (supra) relates to Section 5 and Section 20 of West Pakistan Family Court Act which gives exclusive jurisdiction to the Family Court which is hardly applicable to the facts and circumstances of this case. Facts and circumstances of case of Fouzia Begum (supra) are also distinguishable, in which core issue was that SECP being a regulatory body already ceased of the matter, but in the present case Executive Director of SECP itself directed the plaintiff to seek appropriate relief. Facts and circumstances of case of Zahida Sattar (supra) are also distinguishable in which question was involved whether civil Court can try a criminal charge which is exclusively triable by criminal Court under special law. Remaining two cases of M. Waqar Monnoo and Qayyum Nawaz Khan (supra) are also distinguishable and do not provide any help to support or strengthen the arguments of learned counsel for the Defendant No. 1.

4. As a result of above discussion, I do not find any substance in the application moved under Order VII, Rule 11 C.P.C for rejection of plaint or in alternate return of plaint under Order VII, Rule 10 C.P.C.

5. Now I would like to take up the application filed by the plaintiff under Order XXXIX, Rule 1 & 2, CPC (CMA No. 10987/2009), in which it is prayed that the Defendants No. 1 to 3 be directed to deposit balance redemption amount with the Nazir of this Court. The learned counsel for the plaintiff argued that the plaintiff submitted his request for redemption on 22.10.2008. This was followed by correspondence between the parties with the result that the Defendant No. 1 was to redeem 50% units first, followed by remaining 50% within two weeks thereof. However, the Defendant No. 1 failed to redeem the amount at NAV (Net Assets Value) prevailing at the end of October, 2008 which came to Rs.2,42,33,917. He farther argued that after filing the suit, the Defendant No. 1 paid Rs. 1,57,47,799 in Court and claim of outstanding amount of redemption on actual date is Rs.84,86,118/-. It was further averred that keeping in view the extremely dismal performance of the Defendant No. 1, as evident from Annex-RJ-2 to Affidavit in Rejoinder filed by the plaintiff, the Defendant No. 1 be directed to deposit a sum of Rs. 84,86,118 with Nazir of the Court to secure the interest of the parties. In support of his arguments to the injunction application, the learned counsel referred to following case law:--

6. PLD 1983 Karachi 303 (Mst. Salma Jawaid v. S.M. Arshad). In this case, it was held that if the facts and circumstances of the case are not covered by Order XXXIX, C. P. C. and a receiver will not be appointed if the case does not fall within Order XL of Code of Civil Procedure. However, where there are compelling reasons and interest of justice require or demand the Courts are neither helpless nor are they fettered by the specific provisions of Order XXXIX or Order XL, C.P.C. and in exercise of their inherent jurisdiction will certainly grant relief by way of temporary injunction or through appointment of a receiver to protect the rights of citizens. It is not possible and prudent to specify or identify the various situations or reasons where or when the Courts will exercise their inherent powers under Section 94 or Section 151, C.P.C. for granting a temporary injunction or appointing a receiver. In each case the Court evaluates the overall situation considering the peculiar facts and circumstances on record and then the decision is taken whether in the interest of justice inherent powers are to be exercised or not. Each case has its own different set of facts and again and again new situations come before the Court and, therefore, it is not possible to lay down specific principles restricting the power of Courts to exercise their inherent jurisdiction in certain specified situations or for certain reasons only. If this were done, it would only impede the administration of justice and restrict the development of law.

7. PLD 1983 Karachi 527 (Ali Muhammad Brohi v. Haji Muhammad Hashim). In this case, it was held that term `interlocutory' applies to application made during pendency of action or to order or decree passed in action which does not finally dispose of rights of parties or which is made for progress of action e. g. order appointing receiver; granting temporary injunction, attachment before judgment of property of defendant, giving or refusing leave to assignee or successor to continue as the suit on assignment or devolution of interest or granting or refusing leave to defend suit.

8. The Company Secretary of Defendant No. 1 filed counter affidavit in which it was stated that instant application is not maintainable as the redemption price of the units were calculated on the relevant dates after the deferment/suspension of the "redemption of the units" due to financial crises. Soon after termination of suspension of sale/purchase redemption of units, the Defendant No. 1 entertained the claim of plaintiff and after completion of the codal formalities offered to pay Rs. 15,747,799.79 at the rate on the day i.e. 24.04.2009. Since the amount has been paid in this Court hence the application is not maintainable. It was further averred that the plaintiff claimed the redemption of 466,343.087 Units since 22.10.2008. The request was regretted under Regulation No. 57 of the Non-Banking Finance Companies and Notified Entities Regulations, 2008. The defendant deferred redemption of Units followed by suspension vide publication dated 12.01.2009 and same was intimated to concerned quarters. The Net Asset Value (NAV) of the Units is calculated/applied immediately from day when the request is entered into the software. It was further averred that none of the ingredients as required for grant of injunction application are available to the plaintiff as this is not a case in which the plaintiff has been able to show the prima facie case and/or irreparable injury/loss will be suffered and balance of inconvenience in his favour. Due to financial crises since mid of year 2008, numerous management companies/NBFC/Mutual Funds had suspended redemption keeping in view their own liquidity/financial set up. The dispute as raised does not lie within the jurisdiction of this Court.

9. The learned counsel for the Defendants No. 1 & 2 mostly focused his arguments on rejection of plaint. So far as the injunction application is concerned, he argued that the plaintiff has failed to make out any prima facie case. No question of any irreparable loss or injury arises in the case especially when the plaintiff has also claimed damages/compensation and also sought directions against the Defendant No. 4 to initiate appropriate proceedings against the Defendant No. 1, its CEO, directors and officers. He further confirmed that the Defendant No. 1 has already paid Rs. 1,57,47,799 to the plaintiff during pendency of suit and argued that no case is made out for seeking any directions to deposit a sum of Rs. 84,86,118/- in Court by the Defendants No. 1 & 2 with the Nazir of this Court.

10. The learned counsel for the Defendant No. 3 argued that the actual dispute is between the plaintiff and Defendant No. 1. He further argued that the plaintiff has no cause of action against the Defendant No. 3. It was further averred that mostly the allegations leveled in the plaint are only against the Defendant No. 1 to which the Defendant No. 3 has no concern. The learned counsel concluded his arguments that the plaintiff has no right to claim damages against the Defendant No. 3.

11. So far as injunction application is concerned, there is no dispute between the plaintiff and Defendant No. 1 regarding purchase of units by the plaintiff in Reliance Income Fund (RIF). It is also a fact that the plaintiff applied for redemption on 22.10.2008 but on 30th October, 2008, Company Secretary of Defendant No. 1 written a letter to the personal secretary of plaintiff in which he intimated that the Defendant No. 1 has come to know that the plaintiff has withdrawn his request for redemption of units and in lieu thereof, the Defendant No. 1 cancelled the request of redemption. Very next day again P. S. of plaintiff shown his astonishment and surprise to the Defendant No. 1 and in the nutshell it was communicated to the Defendant No. 1 that there was no question of any cancellation of redemption notice and again request was made to arrange funds for redemption of plaintiffs units. Again vide letter dated 31st October, 2008 Company Secretary of Defendant No. 1 conveyed his thanks to the plaintiff for withdrawal of request of redemption of all units with assurance that Defendant No. 1 will redeem 50% of the plaintiff and shall redeem remaining units within two weeks time. The P.S. written a letter on 4th November, 2008 to the Defendant No. 1 in which he reminded two blank un-dated redemption forms for redemption within two weeks time and it was clearly stated that redemption value (NAV) will be 22nd October, 2008, on which date the plaintiff actually applied for redemption of all units. Various other documents are also attached with the plaint pertaining to the controversy and the payment of the plaintiff for redemption of units. It is also an admitted fact that during pendency of this suit, Defendant No. 1 paid a sum of Rs. 15,747,799/-through cheques which payment is clearly reflected in the order passed by this Court on 23.12.2009 and this amount was accepted by the plaintiff without prejudice to his rights and contentions. Order dated 23.12.2009 further shows that Mr. Aijaz Ahmed filed power for Defendant No. 3 and he argued that Reliance Income Fund (RIF) Defendant No. 2 is by definition is a Fund and does not have its own juristic entity, whereas the management of the Fund is with the Defendant No. 1 company to which counsel for the plaintiff Mr. Khalid Javed Khan undertook to file amended title of the plaint. On 12.1.2010, he filed amended title in which instead of deleting the name of Reliance Income Fund (RIF) Defendant No. 2, he deleted Defendant No. 3 Central Depositary Company of Pakistan. Limited on whose behalf of Mr. Aijaz Ahmed filed his power. Perhaps there is some misunderstanding or some typing error and even otherwise there is no Court order for deleting any of the defendants from the array of defendants except a voluntary statement of Mr. Khalid Javed Khan.

12. The learned counsel for the plaintiff argued that after making payment during pendency of the suit, still a sum of Rs.84,86,118/- is outstanding against the Defendant No. 1 on account of redemption of units on the basis of Net Assets Value (NAV) prevailing on 22.10.2008. The learned counsel for the Defendant No. 1 referred to a public notice attached with the written statement and argued that due to extra-ordinary circumstances in the financial markets and to safeguard interest of unit holders of the funds, the Defendant No. 1 announced temporary suspension of any redemption units w.e.f. 12th January, 2009 which decision was in accordance with the provisions contained in clause 8.2.1. and 8.2.2. of the Trust Deed and this notice was published in daily newspaper Business Recorded on 12.1.2009.

13. It is a matter of record that at the time when the plaintiff applied for redemption it was never pleaded by the Defendant No. 1 that redemption of units was temporarily suspended but notice of temporary suspension shows that the suspension took place much after the application of redemption submitted by the plaintiff. It is also a matter of record that no document has been placed by the Defendant No. 1 which may suffice to hold that after submitting application form for redemption of units, plaintiff ever resiled or withdrawn his request. In my tentative assessment and or tentative view, the plea taken by the Defendant No. 1 for non-redeeming or avoid the redemption is without any cogent or plausible reasons when under the relevant regulations it was obligatory and mandatory on the part of the Defendant No. 1 to ensure redemption within a period of six working days unless redemption has been suspended.

14. Though, the plaintiff relied upon Regulation 57 of the Non-Banking Finance Companies and Notified Entities Regulations, 2008, notified on 21th November 2008, but facts remains that the redemption of units were applied by the plaintiff on 22.10.2008 when the Non-Banking Finance Companies and Notified Entities Regulations, 2007 were applicable to NBFCs for carrying out leasing, investment, finance services, housing finance services, asset management services, discounting services, investment advisory services and venture capital investment, including their business activities and to the notified entities being managed by such NBFCs unless specific regulations for such notified entities have been issued. The relevant Regulation No. 66 of Non-Banking Finance Companies and Notified Entities Regulations, 2007 is reproduced as under:--

15. Pricing, issue and redemption of units.--(1) In case of an open-end scheme, if an initial offer is made, no investment of subscription money shall be made until the conclusion of the first issue of units at the initial price.

(2) Offer and redemption prices shall be calculated on the basis of the open-end scheme's net asset value divided by the number of units issued and such prices may be adjusted by fees and charges, provided that the amount or method of calculating such fees and charges is clearly disclosed in the offering documents.

(3) There must be at least four regular dealing days per week subject to relaxation for a specific scheme as approved by the Commission.

(4) Any offer price, which the asset management company or the distribution company quotes or publishes, must be the maximum price payable on purchase and any redemption price must be the net price receivable on redemption.

(5) The maximum interval between the receipt of a properly documented request for redemption of units or certificates and the payment of the redemption money to the holder shall not exceed six working days unless redemption has been suspended.

(6) Where an open-end scheme deals at a declared price, and based on information available where such price exceeds or falls short of the current value of the underlying assets by more than five per cent, the asset management company shall defer dealing and calculate a new price as soon as possible.

(7) A permanent change in the method of dealing shall be made after expiry of one month's notice to unit holders and with the approval of trustee.

(8) A temporary change shall only be made,--

(a) in exceptional circumstances, having regard to the interests of unit holders;

(b) if the possibility of a change and the circumstances in which it can be made have been fully disclosed in the offering documents; and

(c) with the approval of the trustee.

(9) Suspension of redemptions shall be provided for only in exceptional circumstances, having regard to the interests of unit holders.

(10) The asset management company shall immediately notify the Commission if redemption in units ceases or is suspended and the fact that redemption is suspended shall also be published immediately following such decision in the newspaper in which the scheme's prices are normally published.

(11) Where redemption requests on any one dealing day exceed ten per cent of the total number of units in issue, redemption requests in excess of ten per cent may be deferred to the next dealing day.

(12) Under the circumstances specified in the offering document and for reasons to be recorded in writing the asset management company may suspend sale of units and shall immediately notify the Commission, the trustee and the general public of such decision.

N.B. There is no major difference in the language used under Regulation 57(4) of the Regulations, 2008 and Regulation 66(5) of the Regulation, 2007. In both regulations it is clearly provided that the payment of redemption money to the holder shall not exceed six working days unless redemption has been suspended.

1. In my another judgment reported in 2010 MLD 1267, Sayyid Yousuf Husain Shirzai versus Pakistan Defence Officers Housing Authority, the basic rules were discussed which are required to be considered while deciding injunction application such as (i) the prima facie existence of right in the plaintiff and its infringement by the defendant or the existence of a prima facie case in favour of the plaintiff; (ii) an irreparable loss, damages or injuries which may occur to the plaintiff, if the injunction is not granted; (iii) the inconvenience which the plaintiff will undergo from withholding the injunction will be comparatively greater than that which is likely to arise from granting it or in other words the balance of convenience should be in favour of the plaintiff. Existence of prima facie case is to be judged or made out on the basis of material/evidence on record at the time of hearing of injunction application and such evidence of material should be of the nature that by considering the same, Court should or ought to be of the view that plaintiff applying for injunction was in all probability likely to succeed in the suit by having a decision in his favour. The term "prima facie case" is not specifically defined in the Code of Civil Procedure. The Judge-made-law or the consensus is that in order to satisfy about the existence of prima facie case, the pleadings must contain facts constituting the existence of right of the plaintiff and its infringement at the hands of the opposite party. Balance of convenience means that if an injunction is not granted and the suit is ultimately decided in favour of the plaintiff, the inconvenience caused to the plaintiff would be greater than that would be caused to the defendant, if the injunction is granted. Irreparable loss would mean and simply such loss, which is incapable of being calculated on the yardstick of money. An injunction is a writ framed according to the circumstances of the case commanding an act which the Court regards as essential to justice or restraining an act, which it esteems contrary to equity and good conscience. An injunction as is well known is an equitable remedy and accordingly is to conform to the well known maxim of the Law of Equity that "he who seeks equity must do equity". Equitable remedies are distinguished by their flexibility, their limitless varieties, their adaptability to the exigencies of case and the natural rules which govern their use.

2. The learned counsel for the plaintiff argued that the Defendant No. 1 is conducting itself in a manner which indicates that entire venture/investigation may sink which will cause an irreparable loss and injury to general investors including the plaintiff. He has also attached a sheet "Open Ends Fund's Performance (as on 4th February 2010)" showing the performance of various income/money market funds in which Reliance Income Fund is appearing at Serial No. 10 and against its name cumulative return is shown (-) 16.51% while other funds mentioned in the same sheet are not shown in minus. The learned counsel further argued that the Defendant No. 1 is unworthy of being entrusted of public money and it is prepared to perpetrate the fraud to such an extent to avoid payment.

3. Keeping in view my own judgment referred to above and being further fortified by the judgment in the case of Salma Jawaid (supra), there is no hesitation in my mind to hold that where there are compelling reasons and interest of justice require or demand the Courts are neither helpless nor are they fettered by the specific provisions of Order XXXIX or Order XL, C.P.C. and in exercise of their inherent jurisdiction will certainly grant relief by way of temporary injunction or through appointment of a receiver to protect the rights of citizens. It is not possible and prudent to specify or identify the various situations or reasons where or when the Courts will exercise their inherent powers under Section 94 or Section 151, C. P. C. for granting a temporary injunction or appointing a receiver. In each case the Court evaluates the overall situation considering the peculiar facts and circumstances on record and then the decision is taken whether in the interest of justice inherent powers are to be exercised or not. Each case has its own different set of facts and again and again new situations come before the Court and, therefore, it is not possible to lay down specific principles restricting the power of Courts to exercise their inherent jurisdiction in certain specified situations or for certain reasons only. If this were done, it would only impede the administration of justice and restrict the development of law.

4. Under clause (e) of Section 94, C.P.C. in order to prevent ends of justice from being defeated, Court may, if it is so prescribed, make an interlocutory order as may be appeared to the Court to be just and convenient. Passing of an interim order is on the part of working of judicial system and no separate or specific provision is necessary to empower a Court to issue an interim order. The power to grant interim relief vests in a Court as a necessary corollary to the power to grant main relief. Not only under Order XXXIX, Rules 1 & 2, C.P.C., injunction can also be granted under Sections 94 and 151, C.P.C.

5. Since under the aforesaid regulations, Defendant No. 1 was under obligation and it was mandatory on his part to redeem the units within a period of six days. It is repeatedly stated in paragraph 16 & 18 of the plaint that redemption value of units was Rs. 24,233,917/-, on 22.10.2008 when the redemption was requested, whereas, vide letter dated 27.4.2009, Defendant No. 1 offered to pay for lesser amount of Rs. 15,747,799/-. In the written statement there is no denial regarding valuation of units mentioned by the plaintiff but in Paragraph No. 7; of the written statement, the Defendants No. 1 & 2 at one fell swoop, replied Paragraphs 15 to 20 in which it is stated that redemption price of units calculated on the relevant dates after deferment/suspension of redemption of units due to financial crises and soon after termination of sale/purchase/redemption, units were entered as claim of the plaintiff in software and after completion of codal formalities, he was offered Rs. 15,747,799/- at the rate on the date i.e. 24.4.2009 which admission makes it clear beyond any shadow of doubt that the Defendant No. 1 calculated Net Assets Value (NAV) of the units prevailing as on 24.4.2009 and not 22.10.2008.

6. It is profusely comprehensible in view of regulation referred to above that redemption request was to be honored within six days. If NBFC will operate their affairs in such a way and fail to comply with the specific regulations to honor and redeem the units within a specific period of time, there will be serious chaos and turmoil and the confidence reposed by the public at large on the financial institutions/Non banking Finance Companies will be shattered, their rights will be seriously prejudiced and their money will be on stake. Once redemption request is made, it is the responsibility of NBFC to honor the same without any delay or excuse. It does not sound good and logical that a person who purchased units from NBFC on the hopes that he will have reasonable profit and returns/growth in his investment or funds, has to face serious hardship and problems to get back his own money on actual Net Assets Value (NAV) prevailing on the date of lodging his request, but he has to wait for a long time for the redemption at the will and leisure of the NBFC, which is totally against the spirit of regulations promulgated by the Securities and Exchange Commission of Pakistan Act, 1997 which in fact notified the regulations to safeguard and protect the rights and interests of unit holders.

7. Since there is no denial on the part of Defendant No. 1 that the plaintiff had not purchased the units or not tendered the request of redemption on 22.10.2008. Further at this juncture nothing was brought on the record by the Defendant No. 1 that after tendering redemption request, the plaintiff subsequently withdrawn his request or any suspension was in force when the request of redemption was made. The pros and cons lead me to an irresistible conclusion that the plaintiff has made out prima facie case as redemption was not made in view of relevant regulation mentioned above. The balance of convenience also lies in his favour as being a NBFC, it was responsibility and obligation of the Defendant No. 1. to honor the request of client/customer or unit holder within the stipulated period under the regulations unless any suspension is operated which was not done in this case when the redemption was applied. So far as question of irreparable loss is concerned, the SECP has already given directions to the plaintiff on 25.8.2009 to approach appropriate forum for which this has been filed and they failed to take any action against the Defendant No. 1. If the market condition goes further down or the fund is collapsed, the plaintiff shall suffer irreparable loss and injury, therefore, in order to protect and secure the rights of the plaintiff and further, it would advance the cause of justice to call upon the Defendant No. 1 during pendency of this lis as an interim measure/arrangement to deposit the balance/differential amount of redemption of units either in cash or furnish security/solvent surety. It will not cause any inconvenience or disadvantage to the Defendant No. 1 if the amount is deposited with the Nazir of this Court and invested in some government profitable scheme or surety/security furnished and or retained in safe custody of Nazir till disposal of this suit.

8. Non appeared for the Defendant No. 4 (SECP) for the reason that plaint against them was struck of by the Additional Registrar on 10.5.2011.

9. As a result of above discussion, C.M.A No. 78/2010 moved under Order VII, Rule 11 CP.C is dismissed and injunction application CMA No. 10987 of 2009 is disposed of with the directions to the Defendant No. 1 to deposit Rs.84,86,118/- cash with the Nazir of this Court within twenty days time or in alternate, the Defendant No. 1 may furnish solvent surety/security and or bank guarantee in the like amount to the satisfaction of Nazir of this Court. If above amount is deposited in cash, the same shall be invested by Nazir in some Government profitable scheme. The release/payment of this amount will be subject to final decision of this suit.

10. CMA No 10054/2010 moved under Section 151 C.P.C. has served its purpose whereby, the learned counsel for the Defendants No. 1 & 2 applied for an opportunity of further arguments. The request was allowed vide order 8.10.2010. This application is disposed of accordingly.

(R.A.) Application disposed off

PLJ 2012 Lahore 1 [Bahawalpur Bench Bahawalpur]

Present: Amin-ud-Din Khan, J.

Mst. RABIA BASRI--Petitioner

versus

NOOR MUHAMMAD (deceased) through L.Rs. & 3 others--Respondents

C.R. No. 389-D of 2004/BWP, heard on 10.10.2011.

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

----S. 115, O. XLI, Rr. 23, 24 & 25--Civil revision--Remand order was challenged--No valid ground for remand of case--Validity--It was not denied that in utmost necessity, remand of case was permissible under law but it was equally important that frequently remanding cases and that too without any justification was not permissible under law--Court had not given any valid reason for remanding of case--Remanded order could not be used to benefit any of parties to litigation--Case was remanded to give opportunity to respondents to fill in lacunas in their evidence produced before trial Court--Sufficient evidence was available on file to decide issues framed by trial Court--Revision was accepted. [P. 3] A, B & C

Mian Muhammad Bashir, Advocate for Petitioner.

Raja Muhammad Sohail Iftikhar, Advocate for Respondents.

Date of hearing: 10.10.2011.

Judgment

Through this civil revision, the petitioner has challenged the remand order dated 13.5.2004, passed by learned Additional District Judge, Ahmadpur East.

1. Brief facts of the case are that the petitioner, on 12.4.1992, filed a suit for declaration challenging therein the alleged mutation of gift by her father in favour of the defendants-respondents. The suit was contested by the defendants-respondents, written statement was filed, issues were framed on 16.5.1993, the parties produced their respective evidence and the learned trial Court through judgment and decree dated 19.12.1995 decreed the suit in favour of the plaintiff-petitioner. The defendants filed appeal before the learned first appellate Court who vide judgment (remand order) dated 13.5.2004, accepted the appeal and remanded the case. Hence this civil revision.

2. Learned counsel for the petitioner states that even no one has prayed for remand of the case; that there was absolutely no necessity to remand the case as both the parties were aware about the stance taken by each party; that the issues framed by the learned trial Court were comprehensive; that no one prayed for recasting of issues before the first appellate Court and that the remand order is without jurisdiction.

3. On the other hand, learned counsel for the respondents states that there was a will deed in favour of the defendants-respondents and an `Aaq Nama' against the plaintiff-petitioner and that both these documents were not considered by the learned trial Court. Therefore, the learned lower appellate Court rightly framed the issues and remanded the case.

4. I have heard the learned counsel for the parties and have gone through the record.

5. I am afraid that it is not a valid argument for remand of the case. There are certain limitations under Order 41 Rules 23, 24 and 25 of the CPC for remand of any case. It is not denied that in utmost necessity, remand of case is permissible under the law but it is equally important that frequently remanding the cases and that too without any justification is not permissible under the law. In the case in hand, learned appellate Court has not given any valid reason for remand of case.

6. The remand order cannot be used to benefit any of the parties to the litigation. In this case, it seems that the case has been remanded to give opportunity to the defendants-respondents to fill in the lacunas in their evidence produced before the learned trial Court.

7. There is sufficient evidence available on the file to decide the issues framed by the learned trial Court and the learned first appellate Court has unnecessarily cast fresh issues.

8. In the light of what has been discussed above, I accept this civil revision, set aside the remand order dated 13.5.2004 passed by the learned Additional District Judge, Ahmadpur East. Resultantly, the appeal titled "Noor Muhammad & others versus Mst. Rabia Basri" will be deemed to be pending before the learned Additional District Judge-I, Ahmadpur East and he will himself decide the same on merits on the basis of material/evidence available on the file of the learned trial Court; within a period of four months from 25.10.2011. The parties are directed to appear before the learned Additional District Judge, Ahmadpur East on 25.10.2011.

(R.A.) Revision accepted.

PLJ 2012 Lahore 3 [Rawalpindi Bench Rawalpindi]

Present: Nasir Saeed Sheikh, J.

AFTAB AHMAD RAJA--Petitioner

versus

MALIK FAIZULLAH KHAN AFRIDI, etc.--Respondents

W.P. No. 110 of 2010, decided on 1.4.2011.

Punjab Rented Premises Act, 2009 (XXI of 2009)--

----Ss. 5, 6 & 8--Proceedings for ejectment of tenants--Written or oral forming basis of tenancy with previous owner of premises--Benefit of landlord as well as tenant--Question of--Whether a written agreement of tenancy existed or was claimed or an un-written tenancy prevailed when Ordinance, 2001 was enforced--Effect of new rent law upon existing tenancy--Validity--If parties were governed by written agreement of tenancy and it expired or if there was un-written between parties and was to be considered on months to months basis, then period of two years had to play a vital role from date of enforcement of Act, 2007--Landlord as well as tenant had been allowed period of two years to get their terms and conditions settled in between them keeping in view provisions of Sections 5 and 6 of Act, 2009--Both can bring their relationship in conformity with provisions of new rent law in maximum of two years--Unless and until parties failed to do needful and a period of two years as fixed expired an ejectment petition though can be instituted but cannot be allowed that tenancy period during interregnum period of two years had expired as tenant can till end of the period call upon landlord to enter into tenancy agreement complying with provisions of Ss. 5 and 6 of Act, 2007--Ejectment orders although passed during grace period of two years would not be set aside by High Court on account of conduct of petitioners as they did not make any effort for bringing tenancy in conformity with provisions of new rent law--Ejectment order passed by Courts below were upheld--Petitions were dismissed. [Pp. 13 & 15] A, B, C, I & J

Punjab Rented Premises Act, 2009 (XXI of 2009)--

----S. 8--Written tenancy agreement--Proceedings for ejectment of tenants--Landlord of existing tenancy--Effect to new rent law--Question of--Either written or un-written agreement--Ejectment after expiry of first month of tenancy--Period of two years--Validity--Punjab Rented Premises Act, would such situation not create an undue advantage for such landlord vis-à-vis his tenant and would not render provisions of S. 8 of Act, 2007--Interpretation of law, which renders any provisions of law redundant or nugatory has never been favoured with--Tenant cannot be allowed a free hand latitude of refusing payment of rent--New law can be enforced by machinery except that an ejectment petition solely on ground of expiry of period of tenancy cannot be allowed to succeed unless period of two years provided in S. 8 of Act, 2009--Period of tenancy had expired without any effort being made by tenant to get a new tenancy agreement executed with landlord and tenant was liable to be ejected as tenancy in such eventuality can be treated on month to month basis. [Pp. 14 & 15] D, E, F, G & H

Mr. Mujeeb-ur-Rehman Kiani, Advocate for Petitioner.

Mr. Muhammad Ilyas Sheikh, Advocate for Respondent No. 1.

Date of hearing: 24.3.2011.

Judgment

This judgment will dispose of five connected Writ Petitions No. 110, 111, 137,138 and 382, all of the year 2010. In all the writ petitions, proceedings for the ejectment of the writ petitioners/tenants, were instituted by one and the same private respondent Malik Faiz Ullah Khan Afridi. The subject matter of the ejectment proceedings are the shops/rooms forming part of one and the same building No. A-67-A & B situated at Rehman Abad Murree Road, Rawalpindi which is a multi storey building. All the ejectment petitions were instituted by the private respondent Malik Faiz Ullah Khan Afridi under Punjab Rented Ordinance, 2007 on 3.06.2008 against the Writ Petitioners/tenants in respect of the respective portions/rooms in possession of the petitioners. In all the ejectment petitions, the private respondent sought the ejectment of the tenants Writ Petitioners on the ground that he has purchased the subject property Bearing No. A-67-A & B, Khewat No. 45, Khatooni No. 51, Khasra Nos.2216/889/39/2 measuring 10 marlas situated at Rehman Abad Murree, Road, Rawalpindi vide registered sale-deed dated 18.01.2008 which is a multi storey building and that the petitioners/tenants were occupying different portions as shops/rooms of the said building at the time of purchase of the subject property by the private respondent and that their respective lease/tenancy agreements with the previous owner had expired on 31.05.2008. The private respondent/landlord thus alleged that after the purchase of the property by him, he has shown to the tenants/Writ Petitioners his registered sale-deed and asked them to pay the rent to him. The respondent/landlord further alleged that the property is in a dilapidated condition and is not suitable for safe human use and as the landlord/respondent did not want to further extend the tenancy of the Writ Petitioners/tenants, therefore, the learned Special Judge (Rent Tribunal, Rawalpindi) was moved for the grant of ejectment orders against the petitioners/tenants primarily on the ground of expiry of the previously existing tenancy of the tenants.

1. The writ petitioners/tenants moved separate applications for leave to contest the ejectment petitions as per requirement of Section-22 of the Ordinance, XXI of 2007. All the tenants/Writ Petitioners admitted their status as tenants in respect of their respectively possessed portions of the building in question. The petitioners/tenants raised objections to the maintainability of the ejectment petitions by contending that although the tenancy period originally fixed with the previous owner of the building in question had expired, yet, the landlord/respondent had not complied with the provisions of Sections 8 and 9 of the Punjab Rented Premises Ordinance of 2007, therefore, the ejectment petitions were not maintainable. All the contentions raised by the landlord/ private respondent in the ejectment petitions were denied to be available to him for seeking the ejectment of the Writ Petitioners/tenants and the ejectment petitions were prayed to be dismissed. In all the ejectment petitions, following common issues were framed by the learned Rent Tribunal:--

2. Whether initially lease agreement has expired? OPP.

3. Whether the respondent is willfully rent defaulter? OPP.

4. Whether this Court lacks jurisdiction to entertain this application? OPR.

5. Whether this petition is not maintainable and liable to be dismissed with costs? OPR.

6. Relief.

7. The parties produced their respective evidence in all the ejectment petitions separately. The learned Special Judge Rent Tribunal, Rawalpindi accepted the ejectment petitions and passed separate ejectment orders dated 04.03.2009 in all the ejectment petitions.

8. Five appeals were preferred by the petitioners against the ejectment orders dated 04.03.2009, which appeals have also been dismissed by the learned Additional District Judge, Rawalpindi vide judgments dated 17.12.2009.

9. Through the instant writ petitions, all the ejectment orders as well as the appellate orders passed in the matter separately of the even date have been assailed.

10. All the five writ petitions have been fixed together for hearing, as these pertain to different portions of the same building and the private respondent/landlord is the same and the common questions of law of interpretation of Sections-8 and 9 of Punjab Rented Premises. Ordinance, 2007 which later on has been legislated as Punjab Rented Premises Act, 2009 are involved, hence, all the Writ Petitions are being decided together through the instant consolidated judgment by me.

11. The learned counsel for the petitioners has argued that under the new rent law, first legislated on 16.11.2007 enforced through the Punjab Rented Premises Ordinance No. XXI of 2007, the provisions of Sections 9 of the Ordinance do not create an absolute right in favour of a landlord to seek the ejectment of the tenants occupying the premises under an existing tenancy unless and until, the landlord conforms to the requirements of Section 9 of the Ordinance of 2007/Act No. VII of 2009 which called upon a landlord to first deposit a fine of 10% of the annual value of rent of the premises in question in the Government treasury. The learned counsel for the petitioners argued that in order to avail of the substantive provisions of Section-8 of the said Ordinance in respect of existing tenancy, a grace period of two years has been allowed both to the landlord as well as to the tenant to bring the terms and conditions of the tenancy in-conformity with the provisions of the Ordinance/Act and that even after the expiry of the period of tenancy, both landlord as well as the tenant are obliged to enter into a fresh tenancy agreement keeping in view the provisions of Sections-5 and 6 of the Punjab Rented Premises Ordinance of 2007/ Act of 2009 and it is only then an ejectment petition can be filed by the landlord for the ejectment of the tenant under the new rent law. As far as the ejectment orders passed by the learned Special Judge Rent Tribunal against the tenants /Writ Petitioners are concerned, the learned counsel has argued that the learned Special Judge Rent Tribunal as well as the learned Additional District Judge have mis-construed the above provisions of the Ordinance of 2007, in order to hold the ejectment petitions moved by the private respondent/landlord as maintainable. The learned counsel for the petitioners has submitted that the provisions of Section-9 of Punjab Rented Premises Ordinance of 2007 render the ejectment petitions incompetent on account of non-compliance by the landlord with the provisions of Section 9(b) of the Ordinance of 2007/Act of 2009 and in this respect reliance has been placed on PLD 2009 Lahore 429. The learned counsel thus prayed for the acceptance of all the instant Writ Petitions and the setting aside of the orders passed by the two forums below.

12. Conversely, the learned counsel for the private respondent/ landlord has contended that the provisions of Section 9 Clauses (a) and (b) cannot be termed to be of an absolute nature rendering the ejectment petitions as incompetent. The learned counsel has referred to an unreported judgment passed by the Hon'ble Supreme Court of Pakistan in C.P No. 157/2010, whereby, it has been held that non-compliance with the provisions of Section-9 of the Ordinance does not render the ejectment petition as incompetent and the Hon'ble Supreme Court of Pakistan approved the judgment dated 01.12.2009 passed by a learned Single Judge of this Court in Writ Petition No. 2432 of 2009, whereby, it was held that an ejectment petition cannot be held to be incompetent merely because the landlord does not comply with the provisions of Section-9(b) of making a prior deposit of fine equivalent to 10% of the annual value of the rent of the premises in the government treasury. The learned counsel has referred to another unreported judgment passed in Writ Petition No. 996 of 2009 dated 25.06.2009 by a learned Single Bench of this Court, wherein a landlord was allowed to comply with the provisions of Section 9(b) even at Appellate stage and it was held by the learned Single Judge that it is a sufficient compliance with the provisions of Section 9(b) of the Ordinance of 2007. The learned counsel for the respondent thus argued that the ejectment petitions were maintainable and in the instant case, the learned Additional District Judge/First Appellate Authority allowed the respondent to make the deposit of 10% penalty at the appellate stage within twenty days of passing of the order dated 17.12.2009 while recording his findings on Issue No. 4 and the learned First Appellate Court held that non-deposit of the penalty in the period specified will render the ejectment petition liable to be dismissed. I have been informed by the learned counsel for the respondent that this direction of the learned Additional District Judge has been complied with. The learned counsel for the respondent has thus prayed for the dismissal of all the Writ Petitions.

13. I have considered the arguments of the learned counsel for the parties and have perused the reported judgment PLD 2009 Lahore 429 referred to by the learned counsel for the petitioner and the copies of unreported judgments produced by the learned counsel for the respondent.

14. In view of the law as laid down by the Hon'ble Supreme Court of Pakistan in an unreported judgment dated 29.04.2010 passed in CP No. 157/2010, whereby, the judgment announced by a learned Single Bench of this Court in W.P No. 2432 dated 1.12.2009 holding that non-compliance with the provisions of Section 9(b) of the Punjab Rented Ordinance, 2007 does not render the ejectment petition incompetent, the law on the subject has been settled down by the Hon'ble Supreme Court of Pakistan and following Paragraph No. 3 of the said judgment is reproduced as under:--

"Learned counsel contended that ejectment application was not competent under Section 9 of the Punjab Rent Restriction Ordinance, 2007 unless the landlord deposited a fine equivalent to ten percent of the annual value of the premises in the Government treasury as according to him Section 5 of the Ordinance was violated, therefore, Section 9 was applicable. This aspect of the case has been attended to by the learned High Court in the impugned judgment as follows:--

"6. It is not denied that the shop in dispute was previously owned by the previous landlord and the present petitioner was a tenant under him. The said shop was purchased by the present Respondents No. 3 and 4 on 18.06.2008 and the relationship of landlord and tenant is admitted between the parties. The Punjab Rented Premises Ordinance, 2007 came into force on 16.11.2007. It is pertinent to mention Section 8 of the said Ordinance which is reproduced as under for convenience :--

"An existing landlord and tenant shall as soon as possible, but not later than two years from the date of coming into force of this Ordinance, bring the tenancy in conformity with the provisions of this Ordinance".

For further convenience Section 9 of the said Ordinance is also reproduced as under:--

Section 9 Effect of non-compliance

"If a tenancy does not conform to the provisions of this Ordinance, the Rent Tribunal shall not entertain an application under this Ordinance:--

(a) On behalf of the tenant, unless he deposits a fine equivalent to 5% of the annual value of the rent of the premises in the Government Treasury; and

(b) On behalf of landlord, unless he deposits a fine equivalent to 10% of the annual value of the rent of the premises in the government treasury"

"The perusal of Section 8 clearly shows that if the tenancy was in existence, as is in the present case as all the petitioners were tenants under the previous landlord, then, a maximum period of two years was provided to the parties to bring the tenancy in conformity with the provisions of the new Ordinance. This period of two years was to lapse on 16.11.2009. However, the present ejectment petition was filed on 23.04.2009 i.e. prior to the expiry of the said period of two years. The embargo of Section 9(b) is only operative after 16.11.2009. If the ejectment petition had been filed after 16.11.2009, then, Section-9 would have come into operation and the learned Rent Tribunal was not competent to entertain the application without imposing the fine as provided in Section-8. There is wisdom behind the legislation of Section-8 of the Ordinance. In case of existing tenancy for the sake of arguments, if a tenant does not agree for the registration of a new agreement of tenancy as provided under Section 5 of the said Ordinance, then, the landlord would be debarred to file the petition for ever in case a tenancy is not registered because the tenant does not agree to it and without the registration, the landlord cannot come to the Court until and unless, he pays the penalty. It is apparently due to this reason that Section-8 of the Ordinance was inserted in order to give the maximum period of two years to the parties to bring the tenancy in conformity with the provisions of the said Ordinance."

1. The Hon'ble Supreme Court further in the un-reported judgment laid down the following principle of law with respect to the interpretation of Sections 8 and 9 of the Punjab Rented Premises Ordinance, 2007 and extract of para-4 of the judgment is reproduced as under:

"In this behalf it is to be noted that we have gone through the pleadings of the parties and find that there is no denial on the part of the petitioner in respect of accepting the respondents as landlord, meaning thereby that the ownership of the respondents was not denied. Now coming to the provisions of Section-8 of the Ordinance, where the words "an existing landlord" have been used, it is to be seen that in absence of any denial in respect of the ownership of the respondents, it would be deemed that the relationship exists between the parties and the petitioner would be deemed to be a tenant in the premises, therefore, he was under obligation to deposit the rent within the period agreed. This aspect of the case has been considered by the Rent Controller in its judgment dated 23.05.2009 and has been affirmed by the First Appellate Court as well as by the High Court, therefore, contention of the learned counsel that without adhering to the provisions of Section-9 of the Ordinance, Ejectment Application was not competent, is without force".

1. In the present case, the learned first appellate Court while recording its finding on Issue No. 4 observed as follows in the judgment dated 17.12.2009:

"This issue relates to non-maintainability of ejectment petition and non imposition of penalty has not been taken ground for maintainability of the petition, as I have already discussed above that the period of two years have not expired for bringing the tenancy in conformity with the Rented Premises Ordinance and according to decision of Hon'ble High Court in the above said unreported judgment, this defect is curable, therefore, respondent is provided 20 days time from date of passing of this order to deposit penalty equal to 10% under Rented Premises Ordinance in the treasury, otherwise, the ejectment petition will be deemed to have been dismissed"

1. A learned Single Judge of this Court in another unreported judgment dated 25.06.2009 passed in Writ Petition No. 996 of 2009, referred to in the above para by the learned Additional District Judge, laid down as follows:--

"As far as the powers of Appellate Court qua the deposit of rent are concerned, Section 28 of the Ordinance, 2007 takes care of the same, because under Section 28(6) of the Ordinance, 2007, the appellate Court exercises the similar powers as are available to the rent controller, therefore, the first appellate Court clearly has authority to direct a delinquent tenant to deposit rent, as such the direction issued in this regard was in consonance with law and no exception can be taken to the same".

1. Admittedly, the private respondent has complied with the above deposit order; therefore, the objection of the learned counsel for the petitioners about non-maintainability of the ejectment petitions on the ground of non-compliance with Section-9(b) of the Punjab Rented Ordinance of 2007 looses its force and is repelled. The judgment relied upon by the learned counsel for the petitioner Messrs WATEEN TELECOM (PVT.) LTD. through Attorney vs. Malik ABDUL AHAD and 2 others (PLD 2009 Lahore 429) has no binding effect in view of the judgment passed by the Hon'ble Supreme Court of Pakistan.

2. The subject matter of the instant Writ Petitions does not simply comes to an end in view of the above settled exposition of law. The question really now called upon is as to how the provisions of Sections 5,6 read with Section-8 of the Ordinance of 2007/Act of 2009 are to be interpreted, so as to create a harmonious situation for both the parties i.e. landlord and the tenant. Sections 5, 6 and 8 of the Ordinance of 2007/Punjab Rented Premises Act, 2009 are reproduced below:--

"Section-5 Agreement between landlord and tenant:--

1. A landlord shall not let out a premises to a tenant except by a tenancy agreement.

2. A landlord shall present the tenancy agreement before the Rent Registrar.

3. The Rent Registrar shall enter the particulars of the tenancy in a register, affix his office seal on the tenancy agreement, retain a copy thereof and return the original tenancy agreement to the landlord.

4. The entry of particulars of the tenancy shall not absolve the landlord or the tenant of their liability to register the tenancy agreement under the law relating to registration of documents.

5. A tenancy agreement entered in the office of a Rent Registrar or a certified copy thereof shall be a proof of the relationship of landlord, and tenant.

6. Any agreement which may be executed between the landlord and the tenant in respect of the premises shall be presented before the Rent Registrar in the same manner as provided in sub-section (2).

Section-6: Contents of tenancy agreement:--

(1) A tenancy agreement shall contain as far as possibly the following:--

(a) particulars of the landlord and the tenant;

(b) description of the premises;

(c) period of the tenancy;

(d) rate of rent, rate of enhancement, due date and mode of payment of rent;

(e) particulars of the bank account of the landlord, if the rate is to be paid through a bank.

(f) The purpose for which the premises is let out; and

(g) Amount of advance rent, security or pagri, if any.

(2) if the tenure of the tenancy is fixed, but a rent is fixed only for a part of tenure, in the absence of any stipulation to the contrary in the tenancy agreement, the rent shall be deemed to remain the same for the whole of the tenure".

Section-8. "An existing landlord and tenant shall as soon as possible, but not later than two years from the date of coming into force of this Ordinance, bring the tenancy in conformity with the provisions of this Ordinance".

1. In the instant case, all the five writ petitions admitted the existence of relationship of landlord and tenant in respect of the portions of the building in question respectively possessed by them and this relationship existed prior to the purchase of the subject property by the private respondent on 18.01.2008. Only one of the tenants/Writ Petitioners Aftab Ahmad Raja of W.P. No. 110 of 2010 claimed the existence of a written agreement of tenancy with the previous owner, whereas, four of the Writ Petitioners claimed the existence of oral tenancy with the previous owner. In any case, even the written agreement of tenancy claimed in respect of the writ petitioner Aftab Ahmad Raja has not been produced by either of the parties. The private respondent claimed that whatever be the nature, written or oral forming the basis of tenancy with the previous owner of the premises in question it was attorney to and accepted by the new owner i.e., the private respondent of the Writ Petitions, and it was alleged by him that the tenancy with all the Writ Petitions has expired as per claim of the private respondent on 31.05.2008. The question arises as to whether a written agreement of tenancy exists or is claimed by the parties or was there an unwritten tenancy prevails when the Ordinance XXI of 2007 was enforced on 16.11.2007, what is the effect of the new rent law upon the existing tenancy. It is in both the situation that Section-8 of the Ordinance of 2007/Act of 2009 comes into operation.

2. The provisions incorporated in Section-8 are meant to be utilized for the benefit of both the landlord as well as the tenant. The provisions of Section-8 create a grace period of two years for both the parties for bringing the tenancy in conformity with the provisions of this Act. It is understood that if the parties are governed by a written agreement of tenancy and it expires or if there is un-written tenancy between the parties and is to be considered on months to months basis, then, the period of two years has to play a vital role in both the cases from the date of enforcement of the Ordinance, XXI of 2007, which date is 16.11.2007. Both the landlord as well as the tenant have been allowed a period of two years to get their terms and conditions settled in between them keeping in view the provisions of Sections 5 and 6 of the Ordinance of 2007/ Act of 2009. It means that the landlord as well as the tenant can bring their relationship in conformity with the provisions of the new rent law in maximum of two years time as envisaged by the provisions of Section-8 of the said Ordinance. Unless and until the parties fail to do the needful, and a period of two years as fixed in the Ordinance expires, an ejectment petition though can be instituted but cannot be allowed in favour of the landlord simply on the ground that the tenancy period during the interregnum period of two years has expired as the tenant can till the end of the prescribed period call upon the landlord to enter into a tenancy agreement complying with the provisions of Sections 5 and 6 of the Ordinance of 2007. The law is to be interpreted in such a manner as to create a harmonious situation for both the parties governed by it. Let us suppose that a landlord of an existing tenancy claims that there was a written tenancy agreement and it expired after 16.11.2007 but before the expiry of two years mentioned in Section 8, and the landlord claims that after the expiry of the written agreement of tenancy, the tenancy between the parties is to be treated on months to months basis and that on the expiry of the first month of tenancy, either written or unwritten agreement, the landlord institutes an ejectment petition on the ground that he does not want to further extend the tenancy with his tenant and seeks his ejectment after the expiry of the first month of tenancy as per the Ordinance of 2007/Act of 2009, would such a situation not create an undue advantage for such a landlord vis-a-vis his tenant and would not render the provisions contained in Section-8 of the Ordinance as redundant and nugatory. The simple answer would appear to be in the affirmative.

3. There is a consistent view of the superior Courts that an interpretation of law, which renders any provisions of the law redundant or nugatory has never been favoured with. The Hon'ble Supreme Court of Pakistan in a judgment reported as Qaiser Javed Malik vs. Pervaiz Hameed and 2 others (2009 SCMR 846) laid down the following law at page 851 in Para 6:--

"It is settled principle of interpretation that the Courts should adopt an interpretation, which may give meanings of each word of an enhancement taking into consideration the spirit of such legislation. An interpretation, whereby any portion of an enactment is rendered ineffective is not to be adopted when clear meanings can be given to various provisions of an enactment in a harmonious manner as held by this Court in the cases of Shahid Nabi Malik and another Vs Chief Election Commissioner and 7 others (PLD 1997 SC 32), M Aslam Khaki vs Muhammad Hashim (PLD 2000 SC 225), Hafiz Abdul Waheed V. Mrs. Asma Jehangir (PLD 2004 SC 219), D.G Khan Cement Company Limited and others V. Federation of Pakistan and others, (2004 SCMR 456) and Shoukat Baig V. Shahid Jami (PLD 2005 SC 530)."

1. In such a situation, however, the tenant cannot be allowed a free hand latitude of refusing the payment of rent. Section-7 of the Punjab Rented Premises Ordinance of 2007/Act of 2009 which is reproduced below provides for the payment of rent by the tenant under the new law:--

"Payment of Rent

(1) A tenant shall pay or tender the rent to the landlord in the mode and by the date mentioned in the tenancy agreement.

(2) If the date of payment is not mentioned in the tenancy agreement, a tenant shall pay or tender the rent not later than tenth day of the following month.

(3) If the mode of payment is not mentioned in the tenancy agreement, a tenant shall pay or tender the rent to the landlord through money order or deposit in the bank account or the landlord".

1. The obligations thus created for both the parties under the new law can be enforced by the machinery provided therein except that an ejectment petition solely on the ground of expiry of the period of tenancy cannot be allowed to succeed unless the period of two years provided in Section-8 of the Punjab Rented Premises Ordinance of 2007/Act of 2009 expires. Since Section 4 of the Punjab Rented Premises Ordinance of 2007/Act of 2009 give an overriding effect to the provisions of this new rent law, therefore, the parties of an existing tenancy are obliged to care for the newly created statutory provisions.

2. In the instant case, the period of two years as provided in Section 8 of the Ordinance of 2007 commenced on 16.11.2007 and expired on 15.11.2009, therefore, an ejectment petition can now be validly accepted in favour of the landlord/ private respondent on the ground that the period of tenancy has expired without any effort being made by the tenant to get a new tenancy agreement executed with the landlord and the tenant is thus liable to be ejected simply on the said ground as the tenancy in such an eventuality can be treated on month to month basis. The ejectment orders were firstly passed by the learned Rent Tribunal on 4.03.2009, and were upheld by the learned Addl: District Judge on 17.12.2009. It is not argued by the learned counsel for the petitioners that any of the petitioners have made any attempt for bringing the tenancy in conformity with the provisions of the new rent law during the two years period commencing from 16.11.2007 to 15.11.2009, therefore, in exercise of my writ jurisdiction, I hold that the ejectment orders although passed during the grace period of two years will not be set aside by this Court on account of the conduct of the petitioners, as they did not make any effort for bringing the tenancy in conformity with the provisions of new rent law calling upon the landlord to enter into a written agreement of tenancy complying with the provisions of Sections 5 and 6 of the Punjab Rented Ordinance of 2007 and allowed the grace period as mentioned in Section-8 ibid to expire. In this context, the judgment of Hon'ble Supreme Court of Pakistan Qaiser Javed Malik vs. Pervaiz Hameed and 2 others (2009 SCMR 846), which although related to the Islamabad Rent Restriction Ordinance of 2001 can be safely relied upon to conclude that after the expiry of period of his tenancy, the tenant does not have an absolute right to remain in possession of the rented premises and a right has been conferred upon the landlord to seek the ejectment of such a tenant on the ground of expiry of the period of tenancy.

3. In view of above, the instant Writ Petitions instituted by the tenants/petitioners are dismissed with no order as to costs. The ejectment orders passed by the two Courts below are upheld. However, each of the petitioners is allowed a period of two months to vacate his respective portion of the subject-property and hand over the vacant possession to the private respondent subject to payment of rent as per Section 7 of the Ordinance. This judgment will not debar the private respondent to recover the arrears of rent, if any, from the petitioners through the learned Rent Tribunal by filing independent proceedings.

J

(R.A.) Petitions dismissed.

PLJ 2012 Lahore 16 (DB) [Multan Bench Multan]

Present: Rauf Ahmad Sheikh and Syed Ejaz Hussain Shah, JJ.

MAJID alias MAJOO--Petitioner

versus

STATE, etc.--Respondents

W.P. No. 10141 of 2011, decided on 12.9.2011.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 365-A--Anti-Terrorism Act, 1997, S. 7(c)--Constitutional petition--Suspension of sentence--Conviction and sentence recorded against accused by Anti-Terrorism Court--Compounding of the offence--Compromise--Guilty for abduction of minor aged 2 years for ransom--Presumtion of innocence in favor of accused had evaporated due to verdict of Court--Involved in an offence of heinous nature against society--Validity--Society had been put to shock and fear due to activities of outlaws involved in cases of abduction for ransom and it is high time to check the same otherwise our social structure and norms of civil society might collapse--Awesome act of the accused could not be lost sight of in name of compromise--Petition was dismissed. [P. 17] A & C

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 309, 310 & 365-A--Criminal Procedure Code, (V of 1898), S. 345(2)--Constitution of Pakistan, 1973, Art. 199--Wali may waive his right of qisas with permission of the Court--Compromise persons involved in nefarious activities had put parents of poor victims to agony of sleepless nights--Validity--Permission to compound the offence punishable u/S. 302, PPC is a different matter because on commission of qatal-i-amd, an adult sane wali might waive his right of qisas u/S. 309, PPC and is also compoundable u/S. 310, PPC r/w S. 345(2), Cr.P.C. with permission of the Court--Petition was dismissed. [P. 17] B

Ch. Imran Khalid Amratsari, Advocate for Petitioner.

Mr. Mubashar Latif Gill, AAG, for State.

Sh. Sarfraz Ahmad, Advocate for Respondent No. 2/ Complainant.

Date of hearing: 12.9.2011.

Order

The petitioner seeks suspension of sentence awarded to him by the learned Judge, Anti-Terrorism Court-II, Multan, vide judgment dated 06.07.2011 in case FIR No. 1050/10 dated 21.09.2010 P.S. Gulgasht, District Multan, whereby he was convicted under Section 365-A PPC and was sentenced to imprisonment for life. He was also convicted under Section 7(e) of the Anti-Terrorism Act, 1997 and was sentenced to imprisonment for life & his property was also ordered to be forfeited.

1. Learned counsel for the petitioner has contended that the complainant has forgiven the convict/petitioner in the name of Allah Almighty. It is urged that the compounding of the offence and mutual compromise bring peace and harmony in the society so the petitioner is entitled to bail through suspension of sentence. In support of the contentions raised, reliance is placed on Ghulam Ali v. The State and another (1997 SCMR 1411), Ghulam Shabhir and 2 others v. The State (2003 SCMR 663) and Aziz Khan and another v. The State and another (2004 P.Cr.L J. 490).

2. Learned AAG has stated that in view of the judgment passed by the August Supreme Court of Pakistan reported as 2003 SCMR 663, this Court may accord permission to compound the offence and suspend the sentence keeping in view the facts of the case.

3. The petitioner was held guilty for abduction of a minor aged 2 years for ransom. The initial presumption of innocence in favour of the petitioner/accused has evaporated due to verdict of the Court. He is involved in an offence of heinous nature against the society. The cases of abduction for ransom have increased alarmingly in the recent past. The persons involved in nefarious activities have put the parents of poor victims to the agony of sleepless nights. The permission to compound the offence punishable under Section 302 PPC is a different matter because, on commission of Qatal-i-Amd, an adult sane Wali may waive his right of qisas under Section 309 PPC and same is also compoundable under Section 310 PPC read with Section 345 (2) Cr.P.C. with the permission of the Court. The judgments passed by the August Supreme Court of Pakistan, which is relied upon by learned counsel for the petitioner are not applicable on the facts of the present petition. The case law reported as 2004 P.Cr.LJ. 490 (Peshawar) is also on distinguished facts. The society has been put to shock and fear due to the activities of the outlaws involved in cases of abduction for ransom and it is high time to check the same otherwise our social structure and norms of the civil society may collapse. The awesome act of the petitioner cannot be lost sight of in the name of the compromise.

4. For the reasons supra, the writ petition is without merits and the same is hereby dismissed.

(R.A.) Petition dismissed.

PLJ 2012 Lahore 18 [Multan Bench Multan]

Present: Sardar Tariq Masood, J.

FAISAL EJAZ--Petitioner

versus

STATE and 3 others--Respondents

W.P. No. 1742 of 2011, decided on 9.3.2011.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 561-A--Constitutional petition--Direction to add S. 392, PPC--Judicial Magistrate had no authority to interfere into investigation--Beyond his jurisdiction--Validity--No powers were vested with Courts including High Court to interfere into investigation or to direct SHO to submit report under such offence--Directing to investigating officer to add or omit penal section would amount to interfering with process of investigation which was not mandate of law, due to which apparently order of Judicial Magistrate to extent of directing I.O. for adding Section 392, PPC was illegal and without any lawful authority--Petition was allowed. [P. 20] A

M/s. Khawaja Qaiser Butt and Muhammad Rafique Rajwana, Advocates for Petitioner.

Rana Muhammad Hussain, A.A.G. for Respondents.

Mian Ahmad Mehmood, Advocate for Respondent No. 4.

Date of hearing: 9.3.2011.

Order

Petitioner Faisal Ejaz filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan read with Section 561-A, Cr.P.C. while challenging the order dated 08.02.2011 passed by the learned Judicial Magistrate, Multan, through which the learned Judicial Magistrate at the time of granting physical remand of the petitioner directed the I.O. to add Section 392, PPC in the case FIR No. 34/2011 dated 02.02.2011 under Sections 337-F(v), 337-A(i), 337-F(i), 337-L(ii), 379, PPC registered at Police Station Lohari Gate, District Multan.

According to prosecution case complainant had given an amount of Rs. 1,21,65,000/- to the petitioner for establishing a business, but subsequently he did not pay the profit as well as the said amount. It is alleged in the FIR that on the day of occurrence Faisal Ejaz called the complainant at the clinic, where during conversation hot words were exchanged and Faisal Ejaz petitioner along with Umar Qureshi and three unknown persons started abusing the complainant and injured him. During the said occurrence, petitioner along with his co-accused also allegedly snatched certain amount, mobile phone and stamp papers, which was written in connection with the said business. The petitioner was arrested in the said case on 03.02.2011. He was produced before the learned Judicial Magistrate and police obtained his physical remand till 07.02.2011. On 07.02.2011, petitioner was produced before the Magistrate and only one day's physical remand was granted. On 08.02.2011 learned Judicial Magistrate again granted two days physical remand of the petitioner and in that order learned Judicial Magistrate observed "specific allegation of forcible snatching of stamp papers from the complainant has been levelled regarding which offence U/S 392 PPC is made out. Therefore, I.O. is directed also to invoke the offence U/S 392 PPC in this case and investigate the matter accordingly".

1. Learned counsel for the petitioner contended that learned Judicial Magistrate has no authority to interfere into the investigation and he had gone beyond his jurisdiction when learned Judicial Magistrate directed the I.O. to add Section 392, PPC. Learned counsel for the petitioner contended that learned Judicial Magistrate has committed a patent illegality by directing the I.O. to add a particular section. Further contended that the addition of Section 392, PPC by the orders of a Magistrate seriously prejudice the case of the petitioner. Learned counsel for the petitioner relied upon PLD 2007 S.C. 31.

2. On the other hand, learned counsel for Respondent No. 4 opposed the contention raised by learned counsel for the petitioner by contending that under Section 63 of Cr.P.C, a Magistrate can discharge an accused person, hence, he had authority to direct the Investigating' Officer to add or omit certain section. Learned counsel further contended that Magistrate is overall incharge of the whole investigation and while dealing with such type of matter he had to give observation with conscious mind.

3. Heard. Record perused.

4. The learned Judicial Magistrate while granting remand of the petitioner had directed the Investigating Officer to add Section 392, PPC in this case and while doing so the learned Judicial Magistrate actually had gone beyond his jurisdiction. I am not going to dilate upon the merits of the case, as it would prejudice the case of either of the party in the subsequent proceedings. I am also not going to give any observation whether offence under Section 392, PPC has made out or not. I have also gone through Case Diary No. 7 dated 8.2.2011, wherein it is specifically mentioned by the IO that

This sentence in the Case Diary indicates that the Investigating Officer blindfoldly relied upon the direction of the learned Judicial Magistrate. It is the duty of the Investigating Officer to investigate the case on its own facts and circumstances and then add or omit penal Sections according to his investigation. Learned Magistrate has no power to interfere into the investigation and direct to add or omit any penal section. Such type of order would amount to interfering into the investigation conducted by the police. It is time and again observed by the apex Court that the Courts cannot interfere into the investigation of any case. The recent judgment relied upon by the learned counsel for the petitioner i.e. Muhammad Nasir Cheema Vs. Mazhar Javaid and others (PLD 2007 SC 31). Honourable Supreme Court observed:--

"No power vests with any Court including a High Court to override the said legal command and to direct the S.H.O, either not to submit the said report (mentioned as challan in the Police Rules and also in the impugned order) or to submit the said report in a particular manner i.e. against only such persons as the Court desires or only with respect to such offences as the Court wishes".

From the said observation of the Honourable Supreme Court, it is quite clear that no powers are vested with the Courts including this Court to interfere into the investigation or to direct the SHO to submit report under such and such offences. Directing the I.O. to add or omit certain penal section would amount to interfering with the process of investigation, which was not the mandate of law, due to which apparently the order of the learned Judicial Magistrate to the extent of directing the I.O. for adding Section 392, PPC is illegal and without any lawful authority. Consequently, this Writ Petition is allowed and the impugned order dated 08.02.2011 passed by the learned Judicial Magistrate, Multan to the extent of adding of Section 392. PPC is set aside. However, it is made clear that Investigating Officer is at liberty to investigate all the aspects of the case and then add or omit any section, which according to his investigation is made out.

(R.A.) Petition allowed.

PLJ 2012 Lahore 21 (DB) [Rawalpindi Bench Rawalpindi]

Present: Nasir Saeed Sheikh and Shahid Hameed Dar, JJ.

M. ASLAM JANJUA--Appellant

versus

CHIEF ENGINEER etc.--Respondents

I.C.A. No. 8 of 2009, heard on 8.3.2011.

Financial Assistance--

----Financial assistance to family of contract employees who had died during service--Entitlement to grant of financial assistance--Notification issued by Punjab Govt.--Ex-gratia grant--Validity--Financial assistance provided to family of civil servants who had died during their period of employment was ex-gratia grant for providing financial assistance to bereaved family--Case was subjudice and during pendency of ICA, a new notification was issued by Govt. of Punjab whereby such grant of financial assistance had been extended to family of contract employees as well who died while in service--Effect of beneficial notification was extending of benefit as provided for notification to families of contract employees who died during tenure of their employment--Notification can be interpreted to extend benefit of financial assistance to case of son of appellant--Directed to provide financial assistance as per notification to family of son of appellant. [Pp. 23 & 24] A, B & C

Mr. Zamir Ahmad Malik, Advocate for Appellant.

Raja Muhammad Hameed, AAG for Respondents.

Date of hearing: 8.3.2011.

Judgment

Nasir Saeed Sheikh, J.--Muhammad Aslam Janjua appellant is the father of Tallat Mehmood Janjua and the later was employed with the Respondent No. 2 and unfortunately died in November 2005 at the age of 30 year. Late Tallat Mehmood Januja was originally employed on contract basis as Community Based Monitor in BPS-12 with the Respondent No. 2 on 30.9.2003. His services were later on extended vide order dated 03.10.2005 Annexure-E. His selection was made through prescribed procedure on the basis of interview conducted by the Selection Committee duly constituted by the Government of Punjab.

1. The father of the petitioner requested for financial assistance of Rs. 400,000/- which was admissible to other government employees who die during their service tenure by virtue of Finance Department Circular dated 10.11.2004. This request of the petitioner was declined on the ground that the financial assistance envisaged by the Circular dated 10.11.2004 is admissible to civil servants only and contract employees are not entitled to any such financial assistance. The petitioner ultimately instituted a Writ Petition No. 1728/2008 against the respondents before this Court. Parawise comments were submitted by the Respondent No. 1 and in Paragraph No. 7 of the reply the following contentions were raised:--

"Contents of Para-7 are admitted being facts on record. The Finance Department clarified that Late Tallat Mehmood Janjua being a, contract employee was not entitled for financial assistance vide Para. 2 (ii) Government of the Punjab Finance Department letter No. FD-SR-1/3-10/2004 dated 15.8.2007 (Annexure-A). Likewise under Section vi(vii) of Government of the Punjab S&GAD circular Letter No. DS(O&M)5-3/2004/contract (ME) dated 29th December, 2004 (Annexure-B) persons appointed on contract basis are not civil servant."

A learned single Judge of this Court through the impugned order dated 12.12.2008 dismissed the writ petition of the petitioner.

1. The present appeal has been directed against the order dated 12.12.2008 passed in Writ Petition No. 1728/2008.

2. It is contended by the learned counsel for the appellant that vide notification dated 13.2.2009 the financial assistance to the family of contract employees who died during the service has been extended to the contract employees by the Government of the Punjab therefore the appellant is entitled to the grant of the financial assistance relief keeping in view the changed situation. It is further contended that although the son of the appellant was a contract employee but for all practical purposes his job was that of a civil servant and in view of the fresh notification dated 13.2.2009 the appellant be allowed the relief as prayed for in the writ petition.

3. The learned AAG representing the respondents has contended that the appellant's son was a contract employee and he was employed against a fixed pay package and was not entitled to the benefit of the financial assistance as per notification dated 10.11.2004. It is further argued by the learned AAG that the appellant is not entitled to the grant of financial assistance as per government policy. It is further argued by the learned AAG that the benefit of a subsequently issued notification dated 13.2.2009 cannot be extended to the case of the son of the appellant as he died in the year 2005 much before the new notification dated 13.2.2009 whereby the benefit of financial assistance was extended to the families of contract employees who die during service.

4. We have considered the arguments of the learned counsel for the parties.

5. It is not denied that the son of the appellant died during the service tenure with the Respondent No. 2. We have also gone through the appointment letter of the son of the appellant which has been placed as Annexure-E alongwith the writ petition whereby the son of the appellant was employed on the terms and conditions that he will draw pay and allowance in BPS-12 in accordance with the provisions of Finance Department Government of the Punjab letter dated 22.10.2001 read with Finance Department policy letter dated 16.7.2005. It is also an admitted fact that the son of the appellant was selected for his appointment through proper procedure after test and interview conducted by a duly constituted Selection Committee.

6. There is no basic difference between an ordinary civil servant and a contract employee in the government service. The only difference between the terms and conditions of both of them is that a contract employee works during a specified contract period. The respondents have been themselves admittedly extending the period of the employment of the son of the appellant. The financial assistance provided to the family of civil servants who die during their period of employment is an ex-gratia grant for providing financial assistance to the bereaved family. The case of the appellant is subjudice ever since the year 2008 and during the pendency of the instant ICA a new notification has been issued by the Government of Punjab dated 13.2.2009 whereby this grant of financial assistance has been extended to the family of the contract employees as well who die while in service. A notification by the government which confers certain advantage upon the employees can be given retrospective effect and enforcement and the fresh notification dated 13.2.2009 provides in Clause (1) as follows:--

"(XIII-A) FINANCIAL ASSISTANCE TO THE FAMILY OF A CONTRACT EMPLOYEE WHO DIES WHILE IN SERVICE. Financial assistance shall be provided to the family of a contract employee who dies while in service according to the following terms and conditions:--

(i) Financial assistance in accordance with Finance Department's Circular Letter No. FD.SR. 1/ 3-10/ 2004, dated 10.11.2004 in the case of death of a contract employee during his service. In case of a contract employee serving in a district, the sanction order shall be issued by the District Coordination Officer while in case of a contract employee serving at the provincial level, the Administrative Secretary shall issue the sanction order in respect of the employee".

1. This beneficial notification dated 13.2.2009 has been connected with the previous notification dated 10.11.2004 and is in continuation of the earlier notification. The effect of the notification dated 13.2.2009 is the extending of the benefit as provided for in the earlier notification dated 10.11.2004 to the families of the contract employees who die during the tenure of their employment. This notification dated 13.2.2009 thus can be interpreted to extend the benefit of financial assistance to the case of the son of the appellant as well. The learned AAG could not point out any legal impediment in allowing the benefit of the earlier notification dated 10.11.2004 read with the fresh notification dated 13.2.2009 to the case of the son of the present appellant.

2. In view of the above we are persuaded to allow the instant ICA and direct the respondents to provide financial assistance as per notification dated 10.11.2004 to the family of the son of the appellant as well. The needful be done by the respondents expeditiously as far as possible within a period of two months. The instant ICA is therefore allowed with the above mentioned observations and directions.

(R.A.) ICA allowed.

PLJ 2012 Lahore 24 [Rawalpindi Bench Rawalpindi]

Present: Ch. Muhammad Tariq, J.

RAJA MUHAMMAD JAVAID--Petitioner

versus

GOVT. OF PUNJAB etc.--Respondents

W.P. No. 2674 of 2010, heard on 10.3.2011.

Constitution of Pakistan, 1973--

----Art. 212--Constitutional petition--Promotion of civil servant--Maintainability--Barred of--Discrimination amended notification--No legal effect--Criteria for promotion--Challenged amended notification/rules--Newly promulgated amended rules--Benefit an aggrieved civil servant and not impair statutory rights of employees--Validity--All actions of public function must be supported by contemporaneous law and any order, instruction or rule without statutory backing would be without lawful authority as citizens except equality before law and rule of consistency would be followed in order to maintain balance and uphold doctrine of equality--Impugned amended notification/rules was violative of fundamental rights guaranteed by Constitution to citizens of Pakistan--Amended notification rules was not sustainable in eyes of law--Petition was accepted. [Pp. 27 & 28] A & B

Sh. Muhammad Suleman, Advocate for Petitioner.

Mr. Rashid Hafeez, Assistant A.G. Punjab for State.

Date of hearing: 10.3.2011.

Judgment

Through the instant writ petition, the petitioner has impugned amended notification/rules dated 18.03.2007 issued by the Government of the Punjab.

1. The cause of action as given in the instant writ petition is that the petitioner has been serving as Deputy Game Warden/Deputy Director Wildlife (BPS-18) since 16.02.1983. During the service, the petitioner also got Postgraduate Diploma in Wildlife Management from Tanzania in the year 1990. Vide Notification No. SOR-III/1-3/2003 dated 25.03.2003, the Governor of the Punjab pleased to make amendments in the Punjab Forestry & Wildlife (Wildlife Executive Service Rules) 1978, whereby criteria for promotion to the post of Director Wildlife & Parks Punjab in BPS-19 was set as "by selection on merits amongst the Deputy Directors, Wildlife with 12 years service in Grade 17 or seven years service in Grade-18". The petitioner fully qualified for promotion but due to non-availability of post, he could not be promoted. Later on, vide Notification No. SOR-III(S&GAD)/1-3/2003, dated 18.03.2007, the Governor of the Punjab made amendments in Punjab Forestry & Wildlife (Wildlife Executive Service Rules), 1978, whereby criteria for promotion to the post of Director Wildlife (BPS-19) has been prescribed as "by selection on merits amongst the Deputy Directors Wildlife with 12 years service in the department in Grade 17 or seven years service in Grade 18, having M.Sc Zoology or equivalent qualification." Hence this writ petition.

2. Learned counsel for the petitioner inter alia, contends that the petitioner and his colleagues have been discriminated by the impugned amended notification/rules dated 18.03.2007 issued by Governor Punjab which is against the spirit of Constitution, therefore, the amended notification/rules dated 18.03.2007 be declared without lawful authority, of no legal effect and be set aside.

3. On the contrary, learned Assistant Advocate General Punjab has vehemently opposed this writ petition on the ground that to grant or withhold promotion of any employee is an exclusive prerogative of the department/authority and no civil servant can claim his promotion as a matter of right. Similarly, Section 21 of Punjab Civil Servants Act, 1974 clarifies that no representation shall lie on matters relating to determination of fitness of persons to hold a particular post or to be promoted to a higher post. Further contends that writ petition is not maintainable on account of bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Learned Law Officer avers that subject matter of writ petition relates to the terms and conditions of service of civil servants, therefore, the writ petition is liable to be dismissed.

4. I have heard the arguments advanced by learned counsel for the petitioner as well as learned Assistant Advocate General Punjab and have also perused the record to the extent available on file.

5. So far as the objection of learned Assistant Advocate General Punjab to the extent of maintainability of writ petition and bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is concerned, this Court views that it is not a case where the petitioner has asked for his promotion amongst other employees. Rather, through this petition, the petitioner has challenged the vires of amended notification/rules dated 18.03.2007, therefore, the contention raised by learned Law Officer to the extent of maintainability of the writ petition is misconceived.

6. According to the notification dated 25.03.2003, criteria provided for the post of Director Wildlife & Parks Punjab (BPS-19) was as under:

Minimum qualification for appointment by initial recruitment

Method of Recruitment through promotion etc. Ph.D in Wildlife or Zoology and 8 years administrative experience in Wildlife Development Research & Conservation; Or M.Sc. Wildlife or Zoology (1st Class) and 10 years adminis-trative experience.

By selection on merit from amongst the Deputy Directors Wildlife with 12 years service in the department in Grade-17 or 7 years service in Grade-18.

If no suitable person is available for promotion then by transfer from the cadre of Conservator of Forests possessing the degree of M.Sc. in Forestry and if no suitable person is available for appointment by transfer or by initial recruitment.

A period of three years will be provided to all those Deputy Directors to acquire post graduate qualification.

1. The impugned amended notification/rules dated 18.03.2007 prescribes following criteria for the post of Director Wildlife & Parks (BPS-19):

Minimum Qualification for appointment by initial recruitment

Method of Recruitment through promotion etc.

Ph.D in Wildlife or Zoology and 8 years administrative experience in Wildlife Development Research & Conservation;

Or

M.Sc. Wildlife or Zoology (1st Division) and 10 years admin-istrative experience.

By selection on merit from amongst the Deputy Directors Wildlife with 12 years service in the department in Grade-17 or 7 years service in Grade-18 having M.Sc. Zoology or equivalent qualification;

Or

If none is available for promotion then by transfer of an officer of BPS-19 from S&GAD.

A period of three years will be provided to all those Deputy Directors to acquire post graduate qualification.

1. Perusal of record highlights that the petitioner was appointed on 16.02.1983 and at present, the petitioner has about 28 years service/experience on his credit but the present amendment in the rules will definitely adversely affect the rights of the petitioner and his other colleagues whose promotion will be denied in the light of newly amended rules just to favour less experienced persons. Definitely, there is no substitute of experience. So, newly promulgated amended rules, according to which a candidate for the post of Director will be selected on merit amongst the Deputy Directors having 12 years service in the department in grade 17 or 7 years in Grade 18 having M.Sc. Zoology or equivalent qualification, will create sense of insecurity amongst those who have dedicated their lives in the department. The residual powers conferred on the Governor of the Punjab extend only to passing a just and equitable order which may benefit an aggrieved civil servant and not impair the statutory rights of the employees. All actions of public functionaries must be supported by contemporaneous law and any order, instruction or rule without statutory backing would be without lawful authority as the citizens expect equality before the law and the rule of consistency shall be followed in order to maintain balance and uphold the doctrine of equality.

2. In a nutshell, the impugned amended notification/rules dated 18.03.2007 is violative of fundamental rights guaranteed by the Constitution to the citizens of Pakistan. As such, the impugned amended notification/rules dated 18.03.2007 is not sustainable in the eye of law. Accordingly, I accept the writ petition in hand, strike down the amended notification/rules dated 18.03.2007 and restore earlier notification/rules dated 25.03.2003. Accordingly, the matter of promotion of the petitioner and other employees will be considered and decided in the light of notification/rules dated 25.03.2003.

(R.A.) Petition allowed.

PLJ 2012 Lahore 28

Present: Ijaz Ahmed Chaudhry, C.J.

AWAIS SHEIKH--Petitioner

versus

SECRETARY MINISTRY OF FOREIGN AFFAIRS, ISLAMABAD and another--Respondents

W.P. No. 24101 of 2011, decided on 2.11.2011.

Entry Pakistan Act, 1952--

----S. 4--Foreigners Act, S. 14--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Detention of foreigner prisoners--Accused had served out their sentences--Not released on account of identification--Sought for production before High Court--Validity--Detention of prisoner after expiry of his sentence, whether native or international, without any rhyme or reason, was not only illegal but unlawful too inasmuch as approach runs contrary to principles of natural justice--Detention of foreigner prisoners who had served out their sentences would be in contravention of international law as well as Constitution of Pakistan--High Court directed Ministry of Foreign Affairs to take immediate measures in collaboration with other stakeholders, for releasing of foreigner prisoners and their subsequent deporting to native countries--Not only burden on jail premises would decrease but it would also bring good name to nation as well--Office was directed to immediately dispatch copy of the instant petition alongwith statement produced by Addl. A.G. to Secretary Ministry of Foreign Affairs for compliance of the order--Petition was disposed off. [Pp. 29 & 30] A, B & C

Petitioner in person.

Mrs. Shaista Qaiser, Deputy Attorney General for Pakistan.

Mr. Muhammad Hanif, Khatana, Additional Advocate General Punjab with Imtiaz Abbas, Assistant Superintendent Jail, Kot Lakhpat, Lahore for Respondents.

Date of hearing: 2.11.2011.

Order

Through this petition under Article 199 of the Constitution of Islamic Republic Pakistan, 1973, the petitioner has sought a direction to the respondents for production of Stinder Pal Singh and Karale Bhanudas before this Court. In addition thereto, he has also prayed that the said persons be set at liberty.

1. Briefly, Stinder Pal Singh and Karale Bhanudas, Indian Nationals, were arrested by the Pakistani Authorities in connection with case FIR No. 560/2010, dated 19.8.2010, registered at Police Station Sadar Kasur in respect of the offence under Sections 4 of the Entry Pakistan Act, 1952 and case FIR No. 500/2009, dated 30.12.2009, registered at Police Station Manawan, under Sections 14 of the Foreigners Act. According to the petitioner, both the above named accused have already served out their sentences but despite that they are not being released on account of their identification.

2. In view of the importance of the matter, on the last date of hearing, the learned Additional Advocate General Punjab was directed to ensure filing of report regarding the foreigners who are confined in jails despite having served out their sentences. Today, learned Additional Advocate General has produced a detailed statement containing name and parentage of the prisoners, their domicile, the cases registered against them and the sentence awarded to them. A perusal of the said statement depicts dismal picture of the affairs being handled by the government inasmuch as 74 foreigners who have already served out their awarded sentences have been detained in jails for one reason or the other. Due to the said approach of the concerned authorities not only the public exchequer is being burdened with extra expenses towards maintaining of the said prisoners but the repute of the country at international level is also at stake. Further, the jail premises which are already over crowded are also being further burdened due to the presence of these foreigners.

3. It is well established by now that detention of a prisoner after expiry of his sentence, whether native or international, without any rhyme or reason, is not only illegal but unlawful too inasmuch as the said approach runs contrary to the principles of natural justice. Moreover, the further detention of the foreigner prisoners who have already served out their sentences would be in contravention of the international law as well as the Constitution of Islamic Republic of Pakistan, 1973.

4. Being custodian of the Constitution, I hereby direct the Secretary, Ministry of Foreign Affairs, Islamabad, to take immediate measures, in collaboration with the other stakeholders, for the release of the foreigner prisoners and their subsequent deporting to their native countries. It is made clear that in the said process, the concerned authorities shall not care about the usual formalities and would not allow the technicalities to impede the said process rather they would make all out efforts for the said purpose. In this way, not only the burden on the jail premises would decrease but it would also bring good name to the nation as well. Consequently, office is directed to immediately dispatch copy of this writ petition along with the statement produced by the learned Additional Advocate General, to the Secretary, Ministry of Foreign Affairs, Islamabad, for compliance of this order. The learned Deputy Attorney General for Pakistan as well as the learned Additional Advocate General shall remain intact to ensure the compliance of this order.

With these observations, this petition stands disposed of.

Before parting with the order, it is observed that due to the efforts of the petitioner, though his request was confined to only to the extent of two foreign prisoners, a number of other similarly placed persons came to the knowledge of this Court whereupon the concerned authorities have already been directed to take steps for their release. Further the undertaking given by the petitioner that he will also make similar efforts for release of Pakistanies who are detained in other countries is laudable.

(R.A.) Petition disposed of.

PLJ 2012 Lahore 30

Present: Umar Ata Bandial, J.

FIRDOUS ARA MALIK--Petitioner

versus

D.E.O. SIALKOT, etc.--Respondents

W.P. No. 4546 of 2011, decided on 1.11.2011.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Credentials and personal documents--Medical fitness certificate was issued after expiry of sixty days--Dismissal from service--Challenge to--Validity--Petitioner had secured her appointment on merit whereas ground for her dismissal was entirely procedural--Valuable right had been wrested from the petitioner without granting an opportunity of defence or inquiry into allegation--Dismissal order was declared illegal--Petition was allowed. [P. 31] A & B

Mr. Muhammad Iqbal Mohal, Advocate for Petitioner.

Mr. Zaka-ur-Rehman Awan, Addl.A.G. for State.

Date of hearing: 1.11.2011.

Order

The petitioner's credentials and personal documents were duly verified by the competent authority pursuant to Clause 16 of the appointment letter dated 26.01.2010, prior to release of her salary. After lapse of more than ten months the petitioner was dismissed from service on 11.12.2010 on the ground that her medical certificate was issued and submitted after due date on 19.05.2010. Learned counsel takes the plea that the petitioner's medical certificate was issued on 28.01.2010 and was submitted within time and this fact could have been explained by the petitioner if she has been given an opportunity of defence. He relies on law laid down by the Hon'ble. Supreme Court in Aleem Jaffar Ex-Line Superintendent Vs. WAPDA through its Chairman (1998 SCMR 1445).

1. The parawise comments have been perused. The only ground for dismissing the petitioner is because allegedly her medical fitness certificate was issued after expiry of sixty days. Clearly on the plea taken by the petitioner the said allegation is disputed. The petitioner had secured her appointment on merit whereas the ground for her dismissal is entirely procedural. To the mind of this Court a valuable right has been wrested from the petitioner without granting an opportunity of defence or inquiry into the allegation as required by the Hon'ble Supreme Court in the aforenoted precedent. In the light of the facts of the case and the applicable law, the impugned dismissal order is declared illegal. If the respondents are inclined to take action against the petitioner on the allegation they must confront her with the same and pass an order in writing after giving her an opportunity of defence.

2. Petition allowed.

(R.A.) Petition alloed.

PLJ 2012 Lahore 32

Present: Muhammad Khalid Mehmood Khan, J.

MUHAMMAD ASIM RAFIQUE and 11 others--Petitioners

versus

ZARAI TARAQIATI BANK LIMITED, ISLAMABAD through its President and 7 others--Respondents

W.P. No. 13387 and 1695 of 2010, decided on 11.3.2011.

Bank Staff Rules, 2005--

----R. 6--Contractual employ--Changed terms of appointment--Appointment was on contract basis for period of 2 years--Violation of Rules, 2005--Entitlement of Regularization of Services--Act of Bank was mala fide and of no legal effect--Question of--Whether contract between parties enable petitioner to claim right of permanent employment and whether contract was with free consents and knowledge--Validity--Contract employ can be appointed only for a specific job for duration not acceding 3 years in aggregate and such terms and conditions as determined by competent authority and clog for grant of contract service was only that person had not been retired or relieved from service of bank under terms of Golden Hand Scheme--Concept of management trainee was not available in Bank Staff Rules--New concept was introduced by drafter of contract only to avoid application of Staff Rules 2005--Petition was allowed. [Pp. 35, 38 & 42] A, B & E

Terms of Contract Employee--

----Contract of petitioners was basically a contract of probationary officer as provided in regulations of bank and ratio of probationary officer was applicable on petitioner. [P. 39] C

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

----S. 20--Islamabad High Court Act, (XVII of 2010), S. 4--Jurisdiction--Entire share holding was with Federal Govt. and Provincial Govt.--Federation was party--Validity--Jurisdiction of Islamabad High Court was restricted to Islambad Capital Territory--No doubt registered office was at Islamabad but bank was corporation and was carrying its business all over Pakistan including Multan and as such case of Petitioner was covered u/S. 20, CPC--Cause of action arose within jurisdiction to entertain and decided these petitions. [P. 42] D

Mr. Muhammad Suleman Bhatti, Advocate for Petitioners.

Mr. Javed Iqbal Ansari, Advocate for Respondents.

Date of hearing: 22.2.2011.

Judgment

Through this single order I proposed to decide Writ Petition No. 13387/2010 and W.P. No. 1695/2010.

1. Briefly stated the facts of these petitions are that petitioners in response to advertisement in daily "Dawn" applied for the posts of Management Trainee Officers to Respondent No. 1. The petitioners appeared in written test and after that they were interviewed and were finally selected but due to ban imposed by Federal Government, the matter was not finalized and the Respondent No. 1 changed the terms of appointment and petitioners were appointed on contract basis for a period of 2 years in violation of Staff Rules 2005 of Respondent No. 1 promulgated in 2007. The petitioners joined the duties, they were provided training by spending Rs. 60 million and after that they were posted in different branches of Bank. They started to work according to the terms of their service. On expiry of contract period it was extended on 26.5.2010 up to 31.12.2010. The petitioners asserts that they applied to respondents in terms of their advertisement being permanent employee and completed all tests and interview but letter issued to them was on contract basis which is against the respondent's rules and regulations. The petitioners further assert that they are entitled for regularization of their services, the respondents have no authority to refuse them from regularization against permanent posts. They relied on Pakistan Telecommunication Company Limited through General Manager and another V. Muhammad Zahid and 29 others (2010 SCMR 253) and Ikram Bari and 524 others V. National Bank of Pakistan (2005 SCMR 100).

2. Notices were issued to respondents who submitted report and parawise comments and raised preliminary objections against the maintainability of petitions on the ground that service rules of Respondent No. 1 are non-statutory and as such writ petitions are not maintainable. The petitioners have accepted the terms and conditions of the contract and as such they are not entitled for any extension or regularization. An alternate remedy is available to them in the shape of departmental appeal/ representation and as such writ petition is not maintainable. It was further argued that this Court has no jurisdiction to entertain and decide the writ petitions as the dispute falls within the jurisdiction of Islamabad High Court.

3. Heard. Record perused.

4. The petitioners claim is that Respondent No. 1 called applications for permanent employment but subsequently they were recruited on contract basis and as such this act of respondents is malafide and of no legal effect. The petitioners are permanent employees as they completed their training and working as full-fledged Bank Officers with the respondents and they were given the authority to negotiate financing and to execute charge documents of security and to issue undertakings on behalf of respondent/Bank. The petitioners relied on Muhammad Asim's case, Muhammad Asim and others V. Telecommunication and others (1997 PLC (CS) 1131), but in this case it was laid down by the Hon'ble Supreme Court of Pakistan that who ever completed 189 days including the artificial break, (shall be permanent workman) but this case has no relevance with the petitioner's case as their contract of service was in the first instance for specific period of two years. The Hon'ble Supreme Court of Pakistan dilated upon the identical issue in Nazir Ahmad Panhwar V. Government of Sindh through Chief Secretary, Sindh and others (2009 PLC 161) and Municipal Committee, Arifwala and others V. Muhammad Ramzan and 5 others (2005 SCMR 1721) and held that where there is a violation of principle of natural justice writ petition is competent even if dispute involving is of contractual obligation. The Hon'ble Supreme Court of Pakistan in Ikram Bari and 524 others V. National Bank of Pakistan (2005 SCMR 100) decided the issue of contractual employment. In this case the bank employed Muqadam for securing the pledged stock (the security of finance) the employees claimed that they are the employees of bank and after the expiry of specific period as per law, they became the permanent employee of bank, the bank objected that the petitioners are the employee of contractor and as such they could not be treated the employee of Bank, but factually the Bank was debiting the salary of those employees to customer account being the part of finance in terms of finance. The Hon'ble Supreme Court of Pakistan held as under:--

"An Islamic Welfare State is under an obligation to establish a society which is free from exploitation wherein social and economic justice is guaranteed to its citizens. The temporary Godown staff and the daily wages employees were continued in service of the Bank on payment of meager emoluments fixed by the Bank. In most of the case of these employees, there were artificial breaks in their service so as to circumvent the provisions of the Labour Laws and the Rules of the Bank and to deny them the salaries and other service benefits of regular employees. In some cases, the Bank did not issue formal letters of appointment or termination to the employees so as to preclude them to have access to justice. There was no equilibrium of bargaining strength between the employer and the employees. The manner in which they had been dealt with by the Bank was a fraud on the statue."

The question of contract employee also came up before the Hon'ble Supreme Court of Pakistan in Dr. Anwar Ali Sahto and others V. Federation of Pakistan and others (PLD 2002 SC 101) and was decided in the above said terms.

1. The question in the present case is whether the contract between the parties enable the petitioners to claim right of permanent employment and the other question whether the contract between the parties is with free consents and knowledge. The precise argument of learned counsel for the petitioners is that they are the employees of Respondent No. 1 and their appointment was in terms of the Respondent No. 1's rules and Regulations 2005 as a permanent employee. For ascertaining the true interpretation of contract of petitioners the contract is reproduced as under:

"(i) Our offer for training is for a period of two years with effect from the date of joining.

(ii) You will receive a stipend of Rs. 16,000/- (Rupees Sixteen Thousand only) per month for the training.

(iii) Tax on your income shall be deducted at source by the Employer.

(iv) You will be entitled to 30 working days Annual Leave in a year (non-cumulative, non-encashable).

(v) Your training in the Bank will count from the date you actually join the Bank.

(vi) The training is conditional upon your satisfactorily passing physical examination given by the physician containing the detail of the tests i.e Blood complete examination (Hb%, CBC) with ESR, Urine R/E, L.F.T & X-ray Chest/view.

(vii) The said training will not in any manner constitute employee/employer relationship between you and the Bank in that training, for all intent and purposes, is only designed to provide you an opportunity to gather gainful knowledge and experience. Your training will therefore, not in any way be regulated by the terms and conditions of employment applicable to regular employees of the Bank, nor will you be entitled to any benefits admissible to any such employees.

(viii) You will throughout the term of your training, perform, observe and conform to such duties and instructions as may from time to time be assigned or communicated to you by the Bank.

(ix) During the training period the Bank reserves the right to terminate your contract at any time by giving you 30 days notice without assigning any reason. The Bank can also extend training period beyond two years.

(x) In case you wish to discontinue the training you will give the Bank 30 days notice in writing. Your release before the expiry of the notice period will be at the sole discretion of the Bank. If such request is made by you and agreed by the Bank, you will pay the Bank an amount equivalent to the stipend, for the notice period not served.

(xi) The training does not offer any guarantee of regular employment and there is no obligation or commitment on the part of the Bank to offer you regular employment.

(xii) Other conditions.

(a) Before joining duties, you will provide Bon of Fidelity & Secrecy on the attached proforma.

(b) You will be governed by the Rules, Regulations and orders issued by the Bank from time to time in all matters in respect of your contract, not specifically mentioned in this offer.

(c) Job title, assignment and location of posting may be changed by the Management at its sole discretion.

(d) The terms & conditions of your contract shall at all times be governed by staff Regulations 2005 as amended from time to time.

1. Finally, it is understood that by your acceptance of this offer of training you will not, ispo facto, engage in any other business or occupation while under training.

2. If the above terms and conditions are acceptable to you then please sign the duplicate of this letter in token of your acceptance of this offer and submit the same alongwith joining report within 07 days of the receipt of this letter to Zonal Chief, ZTBL, Vehari. Please note that this offer will lapse if you fail to join us on the above mentioned date.

Yours Sincerely, (Ijaz Akhtar Rao)

Senior Vice President (HROD)

I, Muhammad Asim Rafiq confirm that the above terms and conditions are acceptable to me and that my date of joining with Zarai Taraqiati Bank Limited is 15-05-2008."

1. Under Clause VII of the Contract of Service, the argument of learned counsel for Respondent No. 1 is that petitioners after reading and accepting the said condition signed the contract and as such at the time of its acceptance, the petitioners were aware of fact that they are not the employee of bank and by signing this agreement they will gain the knowledge of banking and nothing more, but the said clause is in negation of clause (xii) (b) (d), these two clauses provide that terms and conditions of the contract shall at all times be governed by staff Regulation 2005 as amended from time to time and vide Clause-B the petitioners were to be governed by the Rules and Regulations and orders issued by the bank from time to time in all matters in respect of contract not specifically mentioned in this offer. Bank Staff Regulations 2005, provides as under:--

"2(ii). Persons employed in the service of the Bank, with whatever designation, on contract basis shall be governed by the terms and conditions as laid down in their respective employment contracts:

Provided, however, that persons employed on contract for any specific assignment shall not exercise financial and administrative powers.

Provided further that a person serving the Bank on contract basis, shall not be eligible for deputation to any other institution.

1. (i) All appointments in the service of the Bank shall be made by direct recruitment and by a promotion from lower cadre or grade.

(ii) No person shall be appointed by the Bank as a regular employee who has completed sixtieth years of age.

(iii) The Bank may, however, employ a person on contract basis for a specific job for a duration not exceeding three years in aggregate on such terms & conditions as may be determined by the competent authority, provided however that such a person had not been retired or relieved from the service of the Bank under the terms of a Golden Handshake Scheme, an early retirement scheme or terminated in terms of staff regulations."

1. The above regulations only provides the contractual employ under Rule 6 ibid which provides that a contract employ can be appointed only for a specific job for a duration not acceding 3 years in aggregate and such terms and conditions as determined by the competent authority and the clog for grant of contract service is only that the person had not been retired or relieved from the service of Bank under the terms of Golden Handshake Scheme, an early retirement scheme and terminated in Staff Regulations. The concept of Management Trainee is not available in the staff Rules. The contract employee is also not permitted under the staff Regulation, 2005 except in special circumstances. In the petitioner's case a new concept was introduced by the drafter of contract only to avoid the application of staff Rules 2005 and other laws. If we minutely examine the Clause-Vii of the appointment letter as vehemently relied upon by learned counsel for Respondent No. 1, the natural result of said clause is that the Bank, a financial institution whose 51% share holding is with the Federal Government and remaining is with other Federal and Provincial institutions by investing a huge amount, is producing the Bank officers for rendering the services to other financial institutions. Admittedly Respondent No. 1 is doing banking business for a specific purpose i.e agricultural financing. No sane banker or management of Bank can utilize the public funds for the benefit of others or its competitors. If this is the case then the Management of Respondent No. 1 be taken to task why they have spent Rs. 60 Million for providing training to Management Trainees for a specific financing i.e agricultural financing but are not utilizing their expertise for its own bank. Respondent No. 1 is the manager of public money and as such management of said bank is responsible to render the accounts to public. It is not understandable that the management of Respondent No. 1 is utilizing the public money for the training of bank officers, the services of whose will be available to other Banks working mostly in private sector. Respondent No. 1 is financial institution and is custodian of public funds and is not a charitable institution. Clause-vii if read with clause XII B & D the natural conclusion is that later part of appointment letter will prevail upon the upper part of the document. If this contract is regulate able by the rules and regulations of the bank where the Management Trainee is find mention then it is clear that the petitioner's contract is the contract of probationary officer of Bank.

2. From the above said discussion it is manifest that management of Respondent No. 1 decided to offer employment to newly qualified M.B.As or holding professional degrees recognized by the Higher Education Commission for boosting their specific portfolio i.e agriculture financing but for avoiding their permanent employment they designed the appointment letter under the name and style of Management Trainee.

3. There is no denial on the part of Respondent No. 1 that petitioners were performing duties towards sanction of loan, negotiating of financial facilities with the customers, evaluating the securities and were also recovering the finances allowed to the customers. Some of the petitioners were posted in branches as Second Officers and even the managers. The petitioners negotiated all terms of finances on behalf of Respondents No. 1. This means Respondent No. 1 under the garb of word training was utilizing their expertise as Bank Officers.

4. The argument of learned counsel for respondent that the contract employees are not enjoying the benefit of service rules and relies on judgment of Hon'ble Supreme Court of Pakistan in Civil Appeals Nos. 468, 471-474, 632-633, 852-859, 883-892, 899-901, 950 & 974 of 2010 Pakistan Telecommunication Co. Itrd V Iqbal Nasir and others. The judgment relied upon by learned counsel for Respondent No. 1 is with reference to Pakistan Telecommunication Co. Ltd. The portion of its management is managed and owned by a private person. Further, the agreement, examined by the Hon'ble Supreme Court of Pakistan is absolutely on different parameters. The said agreement does not provide the application of service rules of P.T.C.L. There is only one clause which regulates the terms of contract i.e termination clause and that is the reason the Hon'ble Supreme Court of Pakistan has held that the contractual employees of PTCL are governed under the doctrine of Master and Servant. But in the present case there is specific mention of the application of service rules of Respondent No. 1. Further the business of Respondent No. 1 is entirely different from the PT.C.L. The P.T.C.L is providing services to its customers whereas Respondent No. 1 is providing financing for meeting the requirement of agriculturist and as such the circumstances or environment of P.T.C.L and Respondent No. 1 has no similarity and as such in my humble view the contract of petitioners is basically a contract of probationary officer as provided in the regulations of the Bank and ratio of probationary officer is applicable on the petitioners. The argument of learned counsel for the respondent that the petitioners have accepted the contract of service after knowing its contents and with free consent. This issue was dilated upon by the Hon'ble Supreme Court of Pakistan in Pakistan and others V. Public at Large and others (PLD 1987 Supreme Court 304) and it was held as under:--

"It was also argued that the impugned provisions of law amount to a contract between the Government and the civil servant and thus they involve his consent. In fact, it is not in the nature of a free consent between free agents. On the one hand, state power is projected in the form the statue and on the other, the civil servant has no choice of a bargain on these provisions when joining the service. He cannot get it changed. In this sense it is distinguishable from a true "contract appointment". By the Government which, of course, would be dealt with differently. This assumption is supported by the language of the provision. The retirement has to be in "public interest. This element needs determination of a factual nature in each case. There is no question of consent by the affected person that his retirement would in fact be in public interest. In this behalf, there is no difference between retirement due to misconduct and retirement due to public interest. In either case, there has to be a determination and finding of fact. If in one there cannot be assumed any consent, it cannot be assumed in the other also. Thus, if the law provides safeguards against unjust retirements, it will not be the negation of the Qur'anic provision on contract and consent."

1. Reliance may also be placed on Habibullah V. Government of the Punjab and 5 others (PLD 1980 Lahore 37) wherein it was held that the employer being placed in a position of authority and strength could always coerce employees to waive their legal protection and accept contractual terms at the pains of losing his job. Case of Ikram Bari and 524 others V. National Bank of Pakistan (2005 SCMR 100) has also taken care of the contract of employment as referred to above and the Hon'ble Supreme Court of Pakistan has held that this type of contract is fraud on the statute.

2. The other argument of learned counsel for Respondent No. 1 is that as the petitioners are contractual employees and as such writ petition is not maintainable. Hon'ble Supreme Court of Pakistan in a case of Dr. Anwar Ali Sahto and others V. Federation of Pakistan and others (PLD 2002 Supreme Court 101) held that even a contract employee could be reinstated in service in appropriated case if such employment become permanent by efflux of time. Reliance is also placed on Abdul Sattar and another V. Sui Northern Gas Pipelines Limited and others (2001 SCMR 1935). This issue came up before the Hon'ble Supreme Court of Pakistan in Pakistan International Airline Corporation and others V. Tanweer-ur-Rehman and others (PLD 2010 Supreme Court 676) and the Hon'ble Supreme Court of Pakistan has held that main touch stone for ascertaining the constitutional jurisdiction of this Court it has to be seen whether respondent is performing function in connection with the affairs of federation. In this case the P.I.A. was respondent in which 50% share holding is with the Federal Government and Hon'ble Supreme Court of Pakistan has held as under:

"In the preceding paragraphs, the purpose and functions for the establishment of the appellant-Corporation has been quoted with reference to Sections 3 and 4 of the Act, 1956, which provides that appellant-Corporation shall provide and further develop safe, efficient, adequate, economical and properly coordinated air-transport service within and outside the country. At this juncture, reference to Federal Legislative List Par-I of Fourth Schedule (Item No. 24), would not be out of context, whereby the carriage of persons and goods by sea or air has been made the legislative subject of the Parliament. Similarly, under Schedule-II, Item 5(2), Rules of Business, 1973, the appellant-Corporation has been included within the domain of Defence Division, Government of Pakistan. It is also apparent from the Act, 1956 that nine Directors of the appellant-Corporation, out of eleven, including the Chairman are to be appointed by the Federal Government. Although, the Government has no direct control in the appellant-Corporation as its affairs are to be managed by the Board of Directors under Section 5 of the Act, 1956, but the fact remains that the Federal Government has power to issue directives to the Corporation on matters of policy if it considers necessary and such directives are binding on the Corporation. More so, the power to appoint Chairman and Directors remains with the Government and in addition to it the Government also holds the controlling shares of more than 50%. Further, the appellant-Corporation is providing carriage of persons and goods, which is one of the functions of the State, as mentioned in Federal Legislative List and its affairs are indirectly controlled by the Defence Division of the Federal Government, therefore, the above test stands fully satisfied and we are persuaded to hold that the appellant-Corporation is performing its functions in connection with the affairs of the Federation."

1. In the present case the entire share holding is with the Federal Government and Provincial Government or the Government own corporation. Respondent No. 1 is the manager of public funds which the Federal Government provides them to boost up the Agricultural sector of the country and as such it is safely said that Respondent No. 1 is performing functions in connection with the affairs of Federation. Hence, the argument of learned counsel for respondent is repelled.

2. Last argument of learned counsel for respondent is that as the Federation of Pakistan is party in the petition and as such Islamabad High Court has exclusive jurisdiction to decide the petition. Section 4 of the Act VII of 2010, Islamabad High Court, provides as under:--

"4. Jurisdiction--Islamabad High Court shall have, in respect of the Islamabad Capital Territory, original, appellate, revisional and other jurisdiction, as under the Constitution or the laws in force immediately before the commencement of this Act, is exercisable in respect of the said territory by the Lahore high Court."

1. Perusal of Section 4 shows that jurisdiction of Islamabad High Court is restricted to the Islamabad Capital Territory only. No doubt registered office of respondent is at Islamabad but Respondent No. 1 is corporation and is carrying its business all over the Pakistan including Multan and as such case of petitioner is covered under Section 20 CPC Explanation 2. In this case cause of action arose within the Jurisdiction of this Court Multan Bench and as such this Court has the jurisdiction to entertain and decide these petitions. This argument is thus answered in negative.

2. The upshot of the above discussion is that these writ petitions succeed and are allowed and the petitioners will be dealt as the probationary officers in terms of Z.T.B.L Staff regulations-2005 Clause-11(i), (ii).

(R.A.) Petition allowed.

PLJ 2012 Lahore 42 (DB)

Present: Ijaz Ahmed Chaudhry, C.J. and Mazhar Iqbal Sidhu, J.

CH. SHER MUHAMMAD (deceased) through L.Rs. and others--Appellants

versus

DR. MUHAMMAD QASIM GHARA and 2 others--Respondents

RFA No. 343 of 2005, heard on 3.5.2011.

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

----S. 12--Contract Act, 1872, S. 62--Suit for specific performance of agreement--Renewed agreement to sell--Question of--Whether agreement to sell was in subsistence at time of execution of renewed agreement to sell and whether agreement to sell was legally executed document or not--Determination--Contents of agreement to sell--Validity--Renewed agreement to sell was executed between parties to which vendee was allowed to sell plots out of suit property and to receive earnest money in addition to perform other ancillary acts--However, time for completion of the agreement was kept in tact--Vendee could not pay balance amount by stipulated date, by virtue of agreement regarding extension in time, for performance of agreement to sell was extended--Documents the earlier agreements were also validated--Vendee neither performed their part of agreement to sell by last extended date nor sought any extension in time--If agreement to sell was intact, then why factum whereof was totally omitted in subsequent documents--Held: Agreement to sell was not in field at time of execution of renewed agreement to sell--Plaintiffs had failed to prove execution of renewed agreement to sell--Non-production of scribe of the document also casts serious doubts about its veracity--Findings of trial Court were hereby spurned and while accepting appeal--Suit filed by plaintiffs was dismissed. [Pp. 49, 50 & 54] A, B & I

Contract Act, 1872 (I of 1872)--

----S. 62--Specific Relief Act, 1877, S. 12--Suit for specific performance of agreement to sell--Document on basis of which plaintiffs filed--Renewed agreement to sell--Veracity of agreement marginal witnesses the scribe had nucleus role--Non-production scribe of renewed agreement to sell--Validity--Document made it clear that no name, parentage and address of witnesses were mentioned in the document rather simple signatures without any thumb impression were available under names of witnesses--Not clear that who witnessed the agreement--Vendee did not get any receipt as he done in earlier agreement qua payment of alleged amount of specific amount--Such fact casts serious doubt regarding veracity of the agreement for reason that the agreement was allegedly executed on basis of original agreement to sell then grant of further three years for completion of the agreement by vendor, who had already put vendee on notice qua cancellation of agreement was beyond comprehension of prudent man--Mere production of two marginal witnesses could not be substituted for scribe of the agreement--Plaintiffs did not produce scribe of renewed agreement to sell--Lapse on part of plaintiffs was fatal to their case. [Pp. 50 & 51] C & D

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

----S. 12--Falsity of renewed agreement to sell--Requirement of law--Payment of sale consideration in part or full was proved--Remaining amount was to be payable by vendee--Due to unavoidable circumstances, vendee could not pay amount by stipulated date--Suit for specific performance of contract--Suit was decreed--Challenge to--Validity--In case of non-fulfillment of conditions on part of vendor, he would pay double of earnest money to vendee and in event of failure of vendee to pay the balance amount by stipulated time, vendor would have right to rescind the agreement--Falsity of renewed agreement to sell was also apparent from fact that on failure of vendee to pay balance amount vendor issued notice regarding cancellation of agreement to sell--Plaintiffs had failed to prove that they ever put vendor at notice to receive balance amount and execute formal sale-deed rather they contented with oral assertion that they approached vendor for execution of sale-deed after receiving balance amount--Assertion on part of plaintiffs could not be taken as gospel truth till time same was proved through evidence of unimpeachable character--Appeal was accepted. [Pp. 51 & 52] E

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

----Arts. 17(2)(a) & 79--Specific Relief Act, (I of 1877), S. 12--Suit for specific performance of agreement to sell--Renewed agreement to sell--Essence of contract--Vendees instead of serving notice upon vendors upto specific date and offering payment of agreed half of sale, rushed to Court to file suit for specific performance of contract--Not entitlement for decree of specific performance of agreement to sell--Validity--Plaintiffs neither gave any notice to vendor regarding payment of balance amount and for execution of sale-deed nor they deposited balance amount with Court to show their bona fide even after eleven years of original agreement to sell and about five years after renewed agreement to sell--Held: Plaintiffs had failed to prove execution of renewed agreement to sell as prescribed by Arts. 17(2)(a) and 79 of Qanun-e-Shahadat Order--Plaintiffs had also failed to prove payment as per averments of renewed agreement to sell. [P. 52] F

Limitation Act, 1908 (IX of 1908)--

----Art. 113--Specific Relief Act, 1877, S. 12--Contract Act, 1872, S. 62--Renewed agreement to sell--Limitation--Suit for specific performance of agreement to sell was filed after five years of execution of agreement to sell--Question of limitation--Vendor did not execute any renewed document and arbitration proceedings were conducted on basis of renewed agreement--Plaintiffs had failed to prove the execution of renewed agreement to sell--Question of limitation had become redundant. [P. 53] G

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

----S. 12--Agreement to sell--Conditions of payment were settled in contract--Vendor could not pay balance amount by stipulated date--Question of payment--Validity--When vendee had failed to pay the balance amount, vendor with bona fide intention allowed to receive earnest money with purpose to repay earnest money pursuant to agreement which would had been forfeited as per terms of agreement as well as renewed agreement. [Pp. 53 & 54] H

Mr. M. Yaqoob Sidhu, Advocate for Appellants.

Mr. Aatir Mehmood, Advocate for Respondents.

Date of hearing: 3.5.2011.

Judgment

Ijaz Ahmad Chaudhry, C.J.--By virtue of this appeal the appellants have called in question the vires of judgment and decree dated 28.6.2005 passed by Mr. Shakir Hassan, learned Civil Judge 1st class Lahore whereby he decreed the suit filed by Dr. Muhammad Qasim Ghara etc. (Respondents No. 1 to 3 herein) for specific performance of agreement dated 18.9.1996 and cancellation of Gift-Deed No. 10636 dated 7.9.1995.

1. Unnecessary details apart, the facts of the case are that Ch. Sher Muhammad (deceased), predecessor-in-interest of appellants, being owner of agricultural land measuring 34 Kanals comprising Khasra Nos.188, 189, 189/1, 190, 191/1, 193/1, 185 & 1986 situated within the Hadbast of Mauza Keer Khurd tehsil Lahore Cantt. District Lahore (hereinafter referred as suit property) entered into an agreement to sell dated 26.7.1990 (Exh.P/2) with Zahoor Ahmad (Respondents No. 3 herein) against a consideration of Rs. 2,15,000/- per Kanal. Accordingly, Rs. 15,00,000/- were paid by said Zahoor Ahmad to the vendor/predecessor-in-interest of the appellants and it was settled that the vendee would further pay Rs. 10,00,000/- to the vendor on 15.9.1990 and the remaining amount was to be payable by the vendee (Respondents No. 3 herein) till 28.2.1991. Due to unavoidable circumstances the vendee could not pay Rs. 10,00,000/- by the stipulated date rather he paid only Rs. 5,00,000/- to the vendor on 8.10.1990 and for the rest of the five-lacs date was extended till 10.11.1990. Thereafter, another renewed agreement to sell dated 4.12.1990 (Exh.P/24) was executed between the parties according to which the vendee was given the authority to raise construction or to sell the plots and perform other allied acts. However, the earlier date for completion of agreement to sell was kept in tact. The vendee could not perform his part of agreement till 28.2.1991, thus, by virtue of an agreement regarding extension in time, dated 18.3.1991, the time for performance of agreement to sell was set as 30th April 1991. In the said document the earlier three agreements dated 26.7.1990, 9.10.1990 and 4.12.1990 were also validated. Even till the extended time the vendee, (Respondents No. 3 herein) could not pay the balance amount as per terms and conditions of agreement to sell dated 26.7.1990. As the vendee could not make payment of balance amount within the time set out in the agreement to sell dated 26.7.1990 and the subsequent renewed agreements, Sher Muhammad/vendor/ predecessor-in-interest of the appellants sold away some of the land from the suit property to different persons including a gift deed qua land measuring 14-Marlas in the name of his son namely Ch. Safdar Ali vide registered Gift-Deed No. 10636 dated 7.9.1995. Thereafter another agreement to sell (Exh.P1) in continuation of the previous agreement to sell dated 26.7.1990 was executed between the parties on 18.9.1996 with the only difference that the price of the land was enhanced from Rs. 2,15,000/- per Kanal to Rs. 2,40,000/-. per Kanal for the remaining portion of the land. Even after execution of the subsequent agreement to sell, Sher Muhammad sold away land to some persons out of the suit property. According to the respondents, as a whole Rs. 63,47,000/- were paid to Sher Muhammad and only Rs. 16,29,000/- were outstanding against them. The respondents/plaintiffs approached the vendor for execution of formal sale-deed after receiving the balance amount but in vain. Resultantly, the respondents filed a suit for specific performance of agreement to sell dated 18.9.1996 and cancellation of Gift-Deed No. 10636 dated 7.9.1995 in favour of Ch. Safdar Ali son of Ch. Sher Muhammad with permanent injunction against Ch. Sher Muhammad and his son Ch. Safdar Ali, on 13.4.2001. However, during pendency of the said suit, Ch. Sher Muhammad breathed his last and as a result, the respondents filed amended plaint by arraying his legal heirs in the suit on 19.5.2005. The appellants/defendants contested the said suit by filing their written statement raising preliminary objections regarding limitation as well as forgery of the agreement to sell and that the agreement dated 26.7.1990 cannot be specifically enforced having become time barred. On merits defendants alleged that Sher Muhammad was owner of property who entered into agreement to sell the same on 26.7.1990 and received Rs. 15,00,000/- but on failure of the plaintiffs to perform their part of contract the agreement stood terminated between the parties as such Sher Muhammad executed sale-deed in favour of certain buyers. They also denied the receipt of Rs. 60,00,000/- under the agreement and alleged that the agreement to sell dated 26.7.1990 is forged and fabricated. Defendants however conceded that the land measuring 7-Kanals & 7-Marlas has been sold out by Defendant No. 1 as owner of the property. Out of the divergent pleadings of the parties, learned Civil Judge framed the following Issues:--

(i) Whether the Defendant No. 1 entered into an agreement to sell with the plaintiffs regarding the suit land mentioned in Para No. 1 of the plaint at the rate of Rs. 215,000/- per Kanal vide agreement to sell dated 26.7.1990 and received an amount of Rs. 15,00,000/- as earnest money? OPP.

(ii) Whether the plaintiffs subsequently paid an amount of Rs. 60,00,000/- and agreement to sell was renewed on 18.9.1996 and the plaintiffs also sold out the certain property out of the said land to the plaintiffs? OPP.

(iii) Whether the gift deed dated 7.9.1995 in favour of Ch. Safdar Ali is without consideration, void, ineffective and inoperative upon the rights of the plaintiffs? OPP.

(iv) Whether the plaintiffs remained ever ready to perform their part of the contract and due to refusal of the defendants they are entitled for a decree of specific performance? OPP.

(v) Whether the suit is well within time? OPP.

(vi) Whether the agreement to sell dated 26.7.1990 in favour of Plaintiff No. 3 by Defendant No. 1 has been frustrated and the suit is liable to be dismissed? OPD.

(vii) Whether the suit is false, frivolous, vexatious and baseless and the defendants are entitled for special costs u/S. 35-A CPC? OPD.

(viii) Relief.

1. In support of their plea, plaintiffs/respondents produced Muhammad Aftab Ahmed PW-1, Muhammad Munir, PW-2, Muhammad Ashraf, PW-3, Nawaz Ahmad, PW-4, Muhammad Ishaq, PW-5, Zahoor Ahmad, PW-6, Muhammad Tariq, PW-7, Muhammad Arshad, PW-8 and Inayat Ali, PW-9 who also appeared as PW-10. In addition to oral evidence the plaintiffs also tendered Exh. P1 to Exh.P24 as documentary evidence.

2. On the other hand, to establish their plea Akbar Ali one of the defendants appeared as DW-1 whereas Khalid Jan Khatak, Advocate was examined as DW-2. The defendants also tendered in evidence documents, Exh.D1 to Exh.D6.

3. After considering the oral as well as documentary evidence produced by the parties in support of their respective pleas, the learned Civil Judge proceeded to decree the suit of the plaintiffs/respondents herein vide judgment and decree dated 28.6.2005, hence this appeal.

4. Learned counsel for the appellants contends that the impugned judgment and decree is against law and facts; that the agreement dated 26.7.1990 was to be performed till 28.2.1991 but the respondents did not perform their part of the agreement, therefore, they could not claim anything under the said agreement; that as the respondents/vendees did not perform their part of the agreement, notices were issued to them to the effect that agreement stood terminated due to non-fulfillment of the terms and conditions thereof; that agreement to sell dated 18.9.1996 is product of fraud inasmuch as the names of the alleged witnesses of the said agreement were not mentioned whereas signatures of some persons are there on the said agreement to sell; that Aftab Ahmad Saleemi did not figure in the list of witnesses, however, he was unlawfully examined as PW-1; that Sher Muhammad in his life time, while submitting written statement, denied execution of agreement to sell dated 18.9.1996; that as the respondents claimed the execution of agreement to sell dated 18.9.1996, therefore, they were bound to prove execution thereof; that scribe of agreement dated 18.9.1996 has not been produced to prove that PW-1 & PW-2 were actually the witnesses of the said agreement; that decision of arbitration (Exh.P5) only contains agreement dated 4.12.1990 and there is no mention of agreement to sell dated 18.9.1996, thus, the execution of agreement to sell dated 18.9.1996 stands falsified by the documents produced by the respondents/plaintiffs themselves; that the document (Exh.P3) also confirms that there was an agreement to sell between the parties on 4.12.1990 and there is no mention of agreement dated 18.9.1996; that the malafide of the respondents is very much clear from the fact that neither they performed agreement to sell dated 27.6.1990 nor abide by the decision of the arbitrators (Exh.P3); that according to Section 62 of the Contract Act after rescission, alteration of a contract, or agreement, the earlier would die its natural death; that respondents failed to prove payment of Rs. 60,00,000/- as claimed by them in the plaint; that the suit filed by the respondents was beyond the prescribed limitation inasmuch as the alleged agreement to sell was executed on 18.1.1996 whereas the suit was filed on 13.4.2001; that respondents never showed their willingness to pay the balance amount as per agreement to sell dated 27.6.1990, therefore, they cannot claim anything by pressing into service a document which is product of fraud and forgery; that PW-1 in his cross-examination categorically admitted that no payment was made in his presence and he also admitted that he had special relations with respondents/plaintiffs as they hail from the same profession of property dealing; that PW-6 admitted that agreement dated 18.9.1996 was not mentioned in the Arbitration Deed which was executed after two years of the alleged agreement to sell dated 18.9.1996; that according to the learned trial Court the respondents failed to prove the payment of consideration thus the whole superstructure of the said agreement to sell was collapsed as the payment of consideration is one of the foremost conditions of a valid sale and that even if the respondents proved the execution of agreement to sell dated 18.9.1996 even then the learned trial Court could decline to decree the suit on the basis of equity but in the present case learned trial Court while proceeding on totally wrong hypothesis decreed the suit of the plaintiffs specially when they failed to prove the execution of the alleged agreement to sell dated 18.9.1996. In support of his contentions learned counsel has relied upon the cases reported as "Muhammad Rasheed Khan v. Mst. Mehr-Un-Nisa" (2009 SCMR 740), "Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others" (1999 SCMR 1362), "Chilya Corruqaqed Board Mills Ltd. v. M. Ismail and another" (1992 CLC 2524) and "Kanwal Nain and three others v. Fateh Khan and others" (PLD 1983 SC 53).

5. On the other-hand, learned counsel for the respondents, while defending the impugned judgment and decree, argues that bar contained under Section 62 of the Contract Act does not come into operation when the execution of the agreement to sell was not specifically denied by the opponent party thus the suit was validly filed by the respondents/plaintiffs; that to prove the execution of agreement to sell dated 18.9.1996, the respondents produced two marginal witnesses and during their statements no question was ever put to them to the effect that the said document was not thumb-marked by the marginal witnesses; that after examination of the marginal witnesses, the statement of scribe was immaterial; that according to the contents of sale-deed (Exh.P20), the said document was being executed in presence of the agreement in September 1996 and Zahoor Ahmad one of the respondents is marginal witness of the said transaction; that all the documents produced by the appellants/defendants suggest that there was an agreement in the month of September 1996; that the respondents discharged their liability of proving the execution of agreement to sell while producing marginal witnesses thereof and after that the onus shifted on appellants to prove otherwise; that no objection was raised by the appellants at the time of the statement of PW-1, therefore, they cannot discard the credibility of his testimony merely on the ground that his name was not mentioned in the list of witnesses; that the decision of the arbitration was not made rule of the Court for the reason that the appellants/defendants did not accept it and that the learned trial Court rightly decreed the suit of the respondents while considering all the pros and cons of the case.

6. We have given our anxious consideration to the arguments put forth by the learned counsel for the parties in support of their respective pleas. In addition thereto we have also gone through the record of the trial Court to arrive at a just conclusion. The most vital questions to be decided by us are that whether the agreement to sell dated 26.7.1990 was in subsistence at the time of execution of the renewed agreement to sell dated 18.9.1996; whether the agreement to sell dated 18.9.1996 was legally executed document or not and whether the suit filed by the respondents/plaintiffs was within time. Taking up the first question we venture to go through the contents of the agreement to sell dated 26.7.1990. According to the said agreement Sher Muhammad, predecessor-in-interest of the appellants covenanted to sell the suit land against consideration, of Rs. 2,15,000/- per Kanal. He received Rs. 15,00,000/- as earnest money in addition thereto he also received another amount of Rs. 10,00,000/- from Zahoor Ahmad (vendee) factum whereof has been recorded on the back of the said agreement to sell. Thereafter renewed agreement to sell dated 4.12.1990 (Exh.P-24) was executed between the parties according to which the vendee was allowed to sell plots out of the suit property and to receive earnest money in addition to perform other ancillary acts. However, time for completion of the agreement was kept in tact as 28.2.1991. As the vendee could not pay the balance amount by the stipulated date, by virtue of agreement regarding extension in time, dated 18.3.1991, the time for performance of agreement to sell was extended till 30th April 1991. In the said document the earlier three agreements dated 26.7.1990, 9.1.0.1990 and 4.12.1990 were also validated. The vendees neither performed their part of agreement to sell by the last extended date i.e. 31st April 1991 nor sought any extension in time. Further, another important aspect in this regard is that according to the respondents/plaintiffs themselves, after agreement to sell in favour of Zahoor Ahmed (Respondent No. 3), Sher Muhammad sold away some of the land from the suit property to some persons but they did not challenge any transaction performed by Sher Muhammad deceased from the years 1991 to 1998 except the gift deed executed by Sher Muhammad in favour of his son Safdar Ali. We have further noted that in the Punchayt decision (Exh.P3) the date of the agreement has been mentioned as 4.12.1990 whereas in another identical document (Exh.P4) no mention of agreement to sell dated 26.7.1990 has been made. Similarly, in the document where-under Ch. Sher Muhammad and Chi. Safdar Ali on the one part and Zahoor Ahmad etc. on the other, agreed to refer the matter to the arbitrators, the date of the agreement to sell has been mentioned as 4.12.1990. If the agreement to sell dated 26.7.1990 was intact, then why factum whereof was totally omitted in the subsequent documents. In this back drop we feel no hesitation to hold that agreement to sell dated 26.7.1990 was not in field at the time of execution of renewed agreement to sell dated 18.9.1996.

7. Now coming to the document on the basis of which respondents/plaintiffs filed their suit, we have observed that in the said document reference has been made to agreement to sell dated 26.7.1990 but what happened after the last renewed agreement dated 18.3.1991, till the time when the alleged renewed agreement was executed in the year 1996. A bare perusal of the said document makes it crystal clear that no name, parentage and address of the witnesses has been mentioned in the said document rather simple signatures without any thumb impression are available under the names of witnesses. This being the position, it is not clear that who witnessed the said agreement. Further, the contents of the documents show that from 26.7.1990 till 18.3.1991 both the parties took due care towards their rights and obligations and every movement towards the transaction was reduced into writing but in the renewed agreement dated 18.9.1996, the vendee did not get any receipt, as he done in the earlier agreements, qua the payment of alleged amount of Rs. 60,00,000/-. Another important feature of that document is that the time for completion of the agreement was set as 30th September 1999. The said fact casts serious doubt regarding the veracity of the said agreement for the reason that the said agreement was allegedly executed on the basis of original agreement to sell dated 26.7.1990 then the grant of further three years for completion of the said agreement by the vendor, who had already put the vendee on notice regarding cancellation of agreement to sell dated 26.7.1990, is beyond comprehension of prudent man. To prove the execution of any document, besides marginal witnesses the scribe has the nucleus role. The mere production of two marginal witnesses cannot be a substitute for the scribe of the agreement in question. But in the instant case the respondents/plaintiffs did not produce the scribe of renewed agreement to sell dated 18.9.1999. The lapse on the part of the respondents/plaintiffs is fatal to their case as according to the case reported as "City Education Board (Registered) Sialkot through Director v. Mst. Maqbool Nasreen" (PLD 2008 Lahore 51) marginal witnesses cannot be considered as substitute of the scribe. Further, names of Aftab Ahmad Saleemi who appeared as PW-1 and PW-2 are not available on the agreement to sell. Moreover, name of PW-1 did not figure in the list of witnesses submitted by the respondents/plaintiffs alongwith their suit. In such a situation the statement of the scribe was of paramount consideration. During their cross-examination, PW-1 and PW-2 admitted in unequivocal terms that no payment was made by the vendee to the vendor in their presence. Thus, one of the most essential requirements for execution of an agreement to sell is missing in the instant case, therefore, the learned trial Court erred in law while holding that the respondents/plaintiffs proved the execution of the alleged agreement to sell. In a case reported as "Muhammad Rasheed Khan v. Mst. Mehr un Nisa" (2009 SCMR 740) the Hon'ble Supreme Court has held that relief of specific performance could not be granted, unless the execution of sale agreement, as per requirement of law, and payment of sale consideration, in part or full was proved. Zahoor Ahmad/ Respondent No. 3 while appearing as PW-6 before the learned trial Court categorically admitted that in the decisions of the arbitration, there was no mention of alleged renewed agreement to sell dated 18.9.1996. In view of said statement, one thing is clear that either there was no renewed agreement in the year 1996 or the respondents/ plaintiffs deliberately suppressed the same for the reasons best known to them. The arbitration was conducted twice in the year 1998 and if there was any agreement in the year 1996, it was incumbent upon the respondents/plaintiffs to mention the factum thereof in the arbitration proceedings. Considering from another angle, in the renewed agreement dated 18.3.1991 the time for completion of the agreement was set as 30th April 1991. In the said agreement was settled between the parties that in case of non-fulfillment of certain conditions on the part of the vendor, he would pay double of the earnest money to the vendee and likewise in the event of failure of the vendee to pay the balance amount by the stipulated time, the vendor would have the right to rescind/cancel the agreement. The falsity of the renewed agreement to sell is also apparent from the fact that on failure of vendee to pay the balance amount, the vendor issued him notice regarding cancellation of the agreement to sell. On the other hand, the respondents/plaintiffs miserably failed to prove that they ever put the vendor at notice to receive the balance amount and execute formal sale-deed rather they contented with, their oral assertion that they approached the vendor for execution of sale-deed after receiving the balance amount. The said assertion on the part of respondents/plaintiffs cannot be taken as a gospel truth till the time the same was proved through evidence of unimpeachable character. In the case of "Rabnawaz and 13 others v. Mustaqeem Khan and 14 others" (1999 SCMR 1362), the apex Court of the country held that time for performance of agreement of sale arrived at between the parties was essence of contract but plaintiffs/vendees instead of serving notice upon defendants/vendors upto specified date and offering payment of agreed half of the sale consideration to defendants/plaintiffs, rushed to Court to file suit for specific performance of contract. Even during pendency of the suit neither the Court directed them to deposit the balance amount nor they opted to do so on their own. In such circumstances, the plaintiffs were not entitled for decree of specific performance of agreement to sell. In the case in hand the respondents/plaintiffs neither gave any notice to the vendor regarding payment of balance amount and for execution of formal sale-deed nor they deposited the balance amount with the Court to show their bona fide even after eleven years of the original agreement to sell dated 26.7.1990 and about five years after the renewed agreement to sell dated 18.9.1996. Thus, we have no doubt in our mind to hold that the respondents/plaintiffs failed to prove the execution of renewed agreement to sell dated 18.9.1996 as prescribed by Articles 17(2)(a) & 79 of the Qanoon-e-Shahadat Order, 1984. In addition thereto, the plaintiffs also failed to prove payment of consideration as per the averments of the renewed agreement to sell dated 18.9.1996. In this scenario, the observation of the learned trial Court that the respondents/plaintiffs proved the execution of the alleged agreement to sell is nothing but a nullity in the eye of law.

8. According to the respondents/plaintiffs, the renewed agreement to sell was executed on 18.9.1996 and they filed suit in the year 2001 i.e. after five years of the execution of the alleged agreement to sell. Infact, under the garb of renewed agreement to sell dated 18.9.1996 the respondents/plaintiffs tried to get a decree for specific performance of agreement to sell dated 26.7.1990. In the whole plaint, the respondents/plaintiffs did not utter even a word that what happened in between 18.3.1991 when the agreement to sell dated 26.7.1990 was renewed till 18.9.1996 when the renewed agreement to sell, on the basis of which the respondents/plaintiffs filed the suit, was executed. All the said exercise seems to be an attempt to wriggle from the question of limitation prescribed for such suits. According to Section 113 of the Limitation Act the time for specific performance of a contract has been fixed as three years. The findings of the learned trial Court under Issue No. 5 are contrary to law inasmuch as after 18.3.1991 the vendor did not execute any renewed document and the arbitration proceedings were conducted on the basis of renewed agreement dated 4.12.1990, thus the findings of learned trial Court that the parties continued agreement to sell dated 26.7.1990 after 18.3.1991 when the same was lastly renewed does not hold water. Even otherwise when the respondents/plaintiffs have failed to prove the execution of renewed agreement to sell dated 18.9.1996, the question of limitation has become redundant.

9. The findings of the learned trial Court under Issue No. 3 are based on its self-contradictory observation inasmuch as on the one hand the learned trial Court held that the vendor after execution of agreement to sell dated 26.7.1990 performed various sale transactions out of the suit property without any objection on the part of the vendees in the said agreement to sell but in the same breath the learned trial Court proceeded to hold that since the gift deed in favour of Ch. Safdar Ali was executed during the subsistence of agreement to sell dated 26.7.1990 the same was not tenable. Further, the learned trial Court held that the gift deed was without consideration. We are surprised to note that there is any condition precedent that consideration amount should always be mentioned in the gift deed. Moreover, the observation of the learned trial Court under this issue amounts to approbate and reprobate in the same breath which cannot be encouraged at all rather the same approach should be deprecated. If the transactions undertook by Sher Muhammad vendor during the years 1991 to 1995 were in violation of the agreement to sell then why the respondents/plaintiffs confined to challenge only the gift deed in favour of Ch. Safdar Ali. The logic weighed with the learned trial Court while deciding this issue in favour of respondents/plaintiffs was that the vendor sold away certain land to other persons in subsistence of the agreement to sell with consent of vendees/ respondents/plaintiffs but their conduct qua non-examining any one of the vendees of the sale-deeds in this respect speaks volumes about malafide on their part.

10. Now coming to the question of payment of Rs. 25,00,000/- by the respondents/plaintiffs, we are of the view that when Zahoor Ahmed, vendee, failed to pay the balance amount, Sher Muhammad vendor with bona fide intention allowed Zahoor Ahmed to receive earnest money of the land sold by him to other persons with the purpose to repay the earnest money received by Sher Muhammad pursuant to agreement dated 26.7.1990 to Zahoor Ahmad, which otherwise, would have been forfeited as per terms of the agreement dated 26.7.1990 as well as renewed agreement dated 18.3.1991. The said fact was admitted by Zahoor Ahmad while appearing as PW-6. During his examination-in-chief the said Zahoor Ahmed failed to establish that after receiving earnest money from the vendees he ever paid the same to Sher Muhammad. Thus, it can safely be presumed that Zahoor Ahmed received the amount which be paid under agreement to sell dated 26.7.1990.

11. As a necessary corollary to the discussion made in the fore-going paragraphs, we are of the view that respondents/plaintiffs failed to prove the execution of renewed agreement to sell dated 18.9.1996. Moreover, the non production of the scribe of the said document also casts serious doubts about its veracity. Consequently, the findings of the learned trial Court under Issues No. 2, 3, 4 & 5 are hereby spurned and while accepting this appeal, the impugned judgment and decree dated 28.6.2005 is set aside and the suit filed by respondents/plaintiffs stands dismissed. The parties, shall bear their respective costs.

(R.A.) Appeal accepted.

PLJ 2012 Lahore 54

Present: Muhammad Ameer Bhatti, J.

KH. UMAR MEHDI, COLLECTOR MODEL CUSTOMS COLLECTORATE, LAHORE--Petitioner

versus

FEDERAL BOARD OF REVENUE through its Chairman Islamabad and 2 others--Respondents

W.P. No. 3341 of 2011, heard on 28.10.2011.

Accommodation Allocation Rules, 2002--

----R. 2--Civil Servants Act, 1973, S. 25(1)--No statutory implication--Lost right of seniority--Repatriated to his parent department--Allotment to residential accommodation--Challenged on ground of malafide and violation of list of accommodation--Question of--Whether accommodation allocation rules were statutory or not--Even if rules were not applicable, no officer can be permitted to apply for accommodation--Validity--Petitioner applied for accommodation in year 1998 and his name was at Serial No. 1 but thereafter, he joined other department on deputation and possessed other accommodation in year 1999 and remained there till 2009--So, till 2009, he had accommodation could not be considered for preferential allotment of any accommodation and by that time, he could not be allotted another accommodation. [P. 58] B

Constitution of Pakistan, 1973--

----Art. 199--Accommodation Allocation Rules, 2002, R. 2--Civil Servants Act, 1973, S. 25(1)--No statutory implication--Having statutory status were fully applicable to allotment of accommodation--Question of--Whether rules were statutory or not--Maintainability of Constitutional petition--F.B.R. by applying these rules declared petitioner at bottom of list, was against fundamental rights, was not tenable hence he could not avail remedy of constitutional petition, as there was no violation of any statutory rules or regulations framed under law where no statutory right had been infringed on by any authority, then constitutional petition was not maintainable. [P. 57] A

Accommodation Allocation Rules, 2002--

----S. 2--Civil Servants Act, 1973--S. 25(1)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Accommodation under new posting--Applicability of rules--Joining department on deputation--Lost right of seniority--Repatriated to parent department--Allotment of residential accommodation--Validity the moment obtained another accommodation under new posting--Deleted the name from list of applicants--Validity--Name of the petitioner would had been deleted from list of applicants after obtaining accommodation under new posting--Accommodation Allocation Rules, even if not applicable, but natural justice demanded that he could not be considered after availing choice of one accommodation as one officer was entitled to and can retain single accommodation at a time--Violation of rules or passing any order on basis of their own settled principle cannot be challenged through a writ petition, as question of fact cannot be resolved through constitutional petition. [P. 58] C & D

Accommodation Allocation Rules, 2002--

----R. 2--Delay of six months--No cause of action or locus standi--Maintainability of C.M. filed by collector--Accommodations were meant only for families and not for singles--Validity--Being a single, her case was not worth consideration--Application had been moved by applicant after an inordinate delay of six months during pendency of the instant writ petition and she had not challenged orders of allotment--Neither a cause of action or locus standi to be impleaded. [P. 59] E

Ch. Muhammad Iqbal, Advocate for Petitioner.

Mr. Akhtar Javed, Advocate for Respondent.

Mr. Sarfraz Ahmad Cheema, Advocate for Respondents No. 1 and 2.

Malik Abdullah Raza, Advocate in C.M. No. 1905-11.

Date of hearing: 28.10.2011.

Judgment

Through this constitutional petition, the minutes of meeting dated 13.12.2010 and subsequent orders/decisions dated 27.12.2010 and 08.02.2011 passed by the Respondent No. 1 have been called in question being illegal, void ab anitio, mala fide having no legal effects in the eye of law and against the principle of natural justice.

1. The brief facts of the case gathered from the pro and contra averments of the parties are that the present petitioner was earlier serving on deputation in BPS-19 in the Civil Services Academy, Lahore. After his promotion in BPS-20, he was repatriated to his parent department. The claim of the petitioner is that he is at the top of seniority list (at Serial No. 1) prepared for the allotment of residential accommodation and instead of making the allotment to the petitioner, Respondent No. 3 (at Serial No. 5 in this list) has been allotment committee, which maintained the same vide order dated 13.12.2010, however, referred the matter to the Board/Respondent No. 1, where the petitioner made another representation on 30.12.2010, however, the Board upheld the decision of the Committee vide order dated 08.02.2011. It will not be out of place to mention here that earlier the Board on the advice sought by the Committee also delivered the guidelines to the Committee vide his letter dated 27.12.2010. These all acts and decisions have been challenged through this writ petition on the ground of mala fide and violation of the list of accommodation prepared by the respondents themselves.

2. The learned counsel for the petitioner contends that the accommodation rules have neither been prepared by the department nor these are applicable in the case of the petitioner, hence the application of these rules in the case of accommodation of the petitioner is unjustified and without any lawful authority. Since the petitioner has been discriminated on the basis of liking and disliking, the act of the respondents has breached the fundamental rights of the petitioner. Further contends that since the rules of accommodation having no relevancy, the posting on deputation does not make any difference. The moment he rejoined the department, he attained the same seniority as it was before the deputation. Further contends that neither the accommodation rules having the statutory status nor the allotment of accommodation falls within the ambit of terms and conditions of the service rules. Respondents No. 1 & 2 took the stand in their report and parawise comments for allotment of official residential accommodation of MPR, Accommodation Allocation Rules 2002 of Ministry of Housing are being applied by the allotment committee of field formation. Further in reply to the paras it has been admitted that the name of the petitioner was on the top of the general waiting list, however added that since the petitioner was working in BPS-19, was posted to Civil Services Academy, Lahore on deputation where he was allotted Government accommodation, hence has lost the seniority on the general waiting list and was not found eligible at the time of allotment of the vacant accommodation. They fully supported their orders/ decisions which have been challenged through this constitutional petition with the prayer that the petition is not maintainable and may be dismissed.

3. Learned counsel for the Respondent No. 3 contends that the petitioner after joining the department on deputation, lost the right of, seniority (his place in queue) according to the Accommodation Allocation Rules, 2002. Learned counsel further contends that on the one hand the petitioner laid his claim on the basis of list which has been prepared according to the Accommodation Allocation Rules, 2002 but on the other hand, the other rules which take away the right of the person joining any department on deputation and obtain the accommodation in that borrowing department. Learned counsel for the respondent contends that the rules have been framed in exercise of the powers conferred by sub-section (1) of Section 25 of Civil Servants Act, 1973, hence having statutory status, are fully applicable to the allotment of the accommodation in the case of the petitioner and the respondent.

4. I have heard the learned counsel for the parties at length.

5. Without disputing and declaring whether the rules are statutory or not, one thing is clear that the rules referred by the respondents "Accommodation Allocation Rules 2002" in view of Section 2:

(a) "accommodation" means residential accommodation including a house or flat owned, hired or requisitioned by Government and placed on the pool of the Estate Office.

In view of this definition, it is not deniable on behalf of the parties that neither the accommodation in dispute is on the pool of the Estate Officer nor these rules have been adopted, hence the said Accommodation Allocation Rules, 2002 apparently having no implication. Except these rules, no other rules have been referred by any of the parties so it is clear that these rules may have been used by the department for seeking guidance but it has no statutory implication. So far as the case of the petitioner is concerned, that the respondents by applying these rules declared the petitioner at the bottom of the list, is against his fundamental rights, is not tenable, hence he cannot avail the remedy of the constitutional petition, as there is no violation of any statutory rules or regulations framed under the law where no statutory right has been infringed on by any authority, then the constitutional petition is not maintainable.

1. According to the rules, the list has been prepared with the date of demand/requisition and allotment has been made accordingly but if any of officer avails the chance of deputation and he has been allotted accommodation accordingly, then after releasing that place of posting, he can again apply for allotment but this requisition would be computed afresh because the moment he obtained the accommodation under his posting (whether on deputation), he lost the right of second accommodation. Even if the rules are not applicable, no officer can be permitted to apply for accommodation and at the same time retain the other allotment intact. In the case in hand, the petitioner applied for accommodation in the year 1998 and his name was at serial number 1 but thereafter, he joined the other department on deputation and possessed other accommodation in the year 1999 and remained there till 2009. So till 2009, he had accommodation so he could not be considered for preferential allotment of any accommodation and by that time, he could not be allotted another accommodation. Logically, his name could not be considered on the basis of earlier requisition as it loses its validity the moment he obtained another accommodation under his new posting. His name should have been deleted from the list of applicants after obtaining the accommodation under new posting. The rules even if not applicable, but natural justice demands that he could not be considered after availing choice of one accommodation as one officer is entitled to and can retain single accommodation at a time.

2. It is not disputed that the petitioner availed the accommodation during his posting at Islamabad so after relieving from that post, he has to apply afresh and his requisition can only be considered after providing the chance to others, who had applied before him. Viewed in this perspective, after his posting/accommodation on deputation, the petitioner lost his 1st place in the array (seniority list) and his right of accommodation stood consequentially vitiated, thus leaving the other officers in the list entitled to preferential allotment of accommodation in sequential order.

3. The authorities while passing any order for allotment of any accommodation, although performing their duties according to the guidelines provided in the rules, but violation of rules or passing any order on the basis of their own settled principle cannot be challenged through a writ petition, as a disputed question of facts cannot be resolved through the constitutional petition, as apparently some disputed questions of facts are involved as to what was the intention of the authority and it was according to their principle or not, need recording of evidence and this Constitutional Court always avoided to exercise the power where the disputed question of facts are involved and needed recording of evidence.

4. So far the CM. No. 1905/2011 filed by Ms. Rukhsana Yasmin, Collector is concerned, it is not maintainable on the ground that accommodations are meant only for families and not for singles. Being a single, her case is not worth consideration. Even otherwise, this application bas been moved by the applicant after an inordinate delay of six months during pendency of this writ petition and she has not challenged the orders of allotment. Hence she has neither a cause of action or locus standi to be impleaded as a party.

5. What has been discussed above, this petition has no merits, dismissed accordingly. No order as to costs.

(R.A.) Petition dismissed.

PLJ 2012 Lahore 59

Present: Syed Mansoor Ali Shah, J.

Mst. ASIA NAZIR--Petitioner

versus

D.E.O. (EE), SIALKOT etc.--Respondents

W.P. No. 3493 of 2011, decided on 28.6.2011.

Constitution of Pakistan, 1973--

----Arts. 4 & 10-A--Constitutional guarantee--Termination of civil servant without notice on account of bogus and forged educational documents--Civil servant was ESE on contract basis--Validity--Education department could not proceed under Clause 13 unless petitioner was granted an opportunity of being heard and an occasion to file a reply to show-cause notice especially when allegation in show-cause notice pertain to bogus and forged credentials of petitioner--Entire proceedings and impugned order were in violation of Arts. 4 & 10-A of Constitution which guarantee due process and fair trial to petitioner--Department were however free to issue fresh show-cause notice, grant an opportunity of hearing and then pass an order in accordance with law--Petition was allowed. [P. 60] A, B & C

PLJ 2011 Lah. 186 & 2010 PLC (CS) 961, rel.

Mr. Muhammad Iqbal Mohal, Advocate for Petitioner.

Khawaja Salman Mahmood, Assistant Advocate General, Punjab for Respondents.

Date of hearing: 28.6.2011.

Order

Brief facts of the case are that the petitioner was appointed as Elementary School Educator (ESE) on contract basis on 18.12.2009. After almost a year, the petitioner was served with Show Cause Notice dated 3.12.2010 requiring him to show-cause why her services should not be terminated under Clause 13 of the Contract. The Show Cause Notice alleged that the educational documents of the petitioner were bogus and forged. Petitioner received the Show Cause Notice on 10.12.2010 but found out that the impugned order had already been passed on 8.12.2010. Hence, the petitioner was not heard or given the opportunity of filing reply of the said show-cause notice.

1. Learned Law Officer submits that the documents of the petitioner were forged, therefore, the impugned order was issued but has not controverted the date of receipt of notice to the petitioner.

2. Be that as it may, the respondent department cannot proceed under Clause 13 unless the petitioner is granted an opportunity of being heard and an occasion to file a reply to the Show Cause Notice especially when the allegation in the Show Cause Notice pertain to bogus and forged credentials of the petitioner. The entire proceedings and the impugned order are in violation of Articles 4 & 10-A of the Constitution of Islamic Republic of Pakistan, 1973 which guarantee due process and fair trial to the petitioner and are, therefore, set aside.

3. Respondents are, however, free to issue fresh Show Cause Notice, grant an opportunity of hearing and then pass an order in accordance with law. Reliance is placed on Naubahar Ali v. Vice Chancellor, University of the Punjab Quaid-e-Azam Campus, Lahore and another (PLJ 2011 Lahore 186) and Muhammad Saeed and 2 others v. Executive District Officer (Agriculture), Khanewal and another (2010 PLC (CS) 961).

4. For the above reasons, this petition is allowed and the impugned order of termination is set aside.

(R.A.) Petition allowed.

PLJ 2012 Lahore 61 [Multan Bench Multan]

Present: Ijaz Ahmad, J.

PUNJAB AGRICULTURAL DEVELOPMENT AND SUPPLIES CORPORATION, LAHORE through Managing Director--Petitioner

versus

UNITED BANK LIMITED, HEAD OFFICE, KARACHI and 3 others--Respondents

C.R. No. 404 of 1992, decided on 16.3.2011.

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

----O. VI, Rr. 14 & 5 & O. XXIX, R. 1--Mode of signing and verification of pleadings--Pleadings can be verified by party or some person proved to satisfaction of Court--Pleading can be verified and signed on behalf of corporation by secretary or by any director or other principal officer of the corporation--Validity--Production of resolution was not necessary and that it was sufficient to see that person signing the pleadings would have been duly authorized u/O. 6, CPC or he would be occupying one or other offices--That was secretary or principal officer--Pleading had been signed and verified by Director Marketing which full requirements of O. 6, Rr. 14 & 15 and Order 21, R. 1, CPC--Civil revision was accepted. [P. 63] A & B

2008 CLC Kar. 1057.

Mr. Muhammad Tufail Alvi, Advocate for Petitioner.

Ch. Abdul Hakeem, Advocate for Respondent No. 3.

Date of hearing: 16.3.2011.

Order

The petitioner instituted a suit for recovery of 34044/- rupees against the respondents on account of the differential occurring between the pay-in-slip deposited by the petitioner and the amount entered in his credit by the respondent bank. The suit was resisted by the respondents. A preliminary objection was raised that the suit was not competent as the plaintiff was a corporate body and the suit had not been filed by a duly authorized agent. The learned trial Court framed issues. The parties led evidence. The Issues No. 1 and 6 read as follows:--

Issue No. 01.

Whether the suit has been filed by a duly authorized agent of the plaintiff firm. If not its effect. OPP.

Issue No. 06.

Whether the plaintiff is entitled to recover Rs. 34044/- on the grounds as mentioned in the plaint? OPP.

Issue No. 6 was decided in favour of the plaintiff/petitioner. The Defendants/Respondents No. 1 to 3, were held liable to make payment of the disputed differential amount to the plaintiff/ petitioner. These findings were not challenged by any of the respondents in appeal. Issue No. 1 was decided against the plaintiff/petitioner. It was held by the learned trial Court that the plaintiff/petitioner had failed to bring on record the memorandum and articles of association to show the authority of the Managing Director or the Director Marketing to institute the suit. Ultimately, the suit, held to have been instituted by an incompetent person, was dismissed. The appeal preferred by the petitioner has also been dismissed by the learned Additional District Judge, Sahiwal, vide decree dated 25.03.1991. The findings of the learned trial Court on Issue No. 1 were maintained.

1. It is contended by the learned counsel for the petitioner that Order VI, Rules 14 and 15 prescribed the mode of signing and verification of the pleadings. The pleadings are to be signed by the party and his pleader or by any person duly authorized by him to sign. The pleadings can be verified by the party or some person proved to the satisfaction of the Court to be acquainted with the facts of the case. Under Order XXIX C.P.C the pleadings may be verified and signed on behalf of the Corporation by the Secretary or by any Director or other principal officer of the Corporation who is able to depose to the facts of the case. It is contended that Order XXIX Rule 1 C.P.C specifically and Order VI, Rules 14 & 15 generally apply in present case wherein the plaintiff is a corporation. Both the provisions of law should be read together to facilitate the litigants in prosecuting their causes and should not be interpreted in a manner that would impede the itinerary to justice. Reliance is placed on 1996 CLC 1064 titled "Modern Cotton Ginning and Pressing Factory (Private) Limited versus Eastern Federal Union Insurance Company Limited" wherein it has been held that a Secretary or a Director of a Corporation can sign and verify the pleadings on behalf of the Corporation. The essential qualification of such a person would be that he should be able to depose to the facts of the case and any irregularity in doing so was cureable even at the later stage.

2. On the other hand, the learned counsel appearing on behalf of the respondents contends that the words "person duly authorized" occurring in Order VI, Rule 14 deserve the emphasis and the import due. Since the plaint was signed and verified by a person not duly authorized under the articles and memorandum of association, therefore, institution of the plaint was ab initio void and could not be cured at a later stage. He places reliance on 1987 CLC 367 titled "Abubakar Saley Mayet versus Abbot Laboratories and another", and NLR 1990 CLC 650 titled "Emirates Bank International Ltd, versus Super Drive-In Limited, etc".

3. I have heard the learned counsel for the parties and have also gone through the record.

4. As far the findings on Issue No. 6 are concerned both the learned Courts below have decided the said issue in favour of the petitioner. None of the respondents has challenged the same findings in appeal, therefore, cannot be agitated before this Court. The judgment cited by the learned counsel for the respondents as 1987 CLC 367 is earlier in time and has been succeeded by the judgment referred by the learned counsel for the petitioner cited as 1996 CLC 1064 Another judgment referred by the learned counsel for the respondents as NLR 1990 CLC 650 goes counter to the arguments advanced by him. In Paragraph No. 9 of the said judgment, the learned Court has observed that the production of the resolution was not necessary and that it was sufficient to see that the person signing the pleadings should have been duly authorized under Order VI CPC or he would be occupying one or other offices as mentioned in rule 1 of Order XXIX CPC that is Secretary, any Director or Principal officer of the Corporation. The provisions of Order VI, Rules 14 & 15 and Order XXIX Rule 1 CPC are neither contradictory nor exclusive of each other. The said provisions are complimentary to each other and should be read and interpreted in a manner that would facilitate the litigants to press the law for advancement of justice. The said provisions should not be interpreted in a manner that would retard or jeopardize or complicate the course of law and the itinerary to justice. In my view I seek support from the case law cited as 2008 CLC 1057 [Karachi] titled "Javedan Cement Limited through Chief Operating Officer versus Province of Sindh". In the instant case, the pleading has been signed and verified by the Director Marketing which fulfill the requirements of Order VI, Rules 14 & 15 and Order XXI Rule 1 CPC. I agree with the case law referred by the learned counsel for the petitioner and the judgment cited as NLR 1990 CLC 650 referred by the learned counsel for the respondents. I accept this revision petition, set-aside the judgments passed and the decrees drawn by both the learned Courts below. The suit of the plaintiff is decreed with costs throughout.

(R.A.) Petition accepted.

PLJ 2012 Lahore 64 [Multan Bench Multan]

Present: Muhammad Farrukh Irfan Khan, J.

SYEDA SADIA & 2 others--Petitioners

versus

BAHAUDDIN ZAKARIYA UNIVERSITY through its Vice-Chancellor and 3 others--Respondents

W.P. No. 4314 of 2011, heard on 16.5.2011.

Constitution of Pakistan, 1973--

----Arts. 25(3) & 199--Educational Institution--Constitutional petition--Requirement of one year research thesis--Grant of extension of additional period for submission of thesis to his class fellow--Request for extension to petitioner was denied--No provision in rules of University would be treated equally as their class fellow--Discrimination and contravenes--Different yardsticks were applied by university--Each and every citizen was entitled to equal protection of law--No discrimination on basis of sex of citizen--Validity--Petitioners were female as such there can be an inference that discrimination was caused against female student's which was against spirit of Constitution--Due to peculiar circumstances in which women and children of Pakistan were the state can make special provisions to protect and uplift their status--State institutions would have to give special consideration to them while dealing with their issues--Petition was allowed. [P. 66] A

Mr. Khurshid Ahmad Khan, Advocate for Petitioners.

Malik Muhammad Tariq Rajwana, Advocate for Respondents.

Date of hearing: 16.5.2011.

Judgment

Brief background of this writ petition is that the petitioners were admitted to M. Phil in Mass Communication during the Sessions 2006-2008 and after completion of first year course they were required to do the one year research and submit their thesis by 6th February, 2008. The petitioners along with their class/session fellow Agha Shakeel Ahmad were allowed one year extension for filing thesis. Thereafter Agha Shakeel Ahmad was granted further eight months extension while the petitioners' request for further one year extension has been denied.

1. It is strenuously argued by the learned counsel for the petitioners that the grant of extension of additional eight months for the submission of the thesis to Agha Shakeel Ahmad has been allowed by the Vice Chancellor on the recommendation of the Advance Studies Research Board. On the other hand, the petitioners were denied the request for extension in the deadline for submission of their thesis beyond the first year on the ground that there is no provision in the rules of the University. This, according to learned counsel, is purely discriminatory and it contravenes not only the provisions of Article 25 but also Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973. In support of his contention the learned counsel has relied upon case entitled as Pakistan International Airlines Corporation through Chairman and others Vs. Shahzad Farooq Malik and another (2004 SCMR 158) and case reported as Muhammad Ramzan and 3 others Vs. Government of Pakistan and 3 others (2004 YLR 1856).

2. On the other hand learned counsel for the respondents University submits that extension to Agha Shakeel Ahmad was granted by the Vice Chancellor on the recommendation made by the subject Supervisor and the Advance Studies Research Board, while no such recommendation has been made for the petitioners.

3. Arguments heard. Record perused.

4. The contention of learned counsel for the petitioners that they should be treated equally as their other class/session fellow namely Agha Shakeel Ahmad, has force as the petitioners are admitted to the same course and the same session, therefore, it is inconceivable as to why the petitioners' class/session fellow be granted eight months additional extension while the petitioners have been denied any further extension. Regulation 19(iv) of the University Regulations reads as follows:

"The request of extension in submission of thesis, if needed, shall be submitted to the Advanced Studies and Research Board through the "Convener Board of Studies at least two months in advance. It shall have recommendations of supervisor(s) with clear reasons spelled out. Maximum of one year extension shall be allowed in any case".

Apparently the case of the petitioner was placed before the Advance Studies and Research Board in its meeting held on 01.06.2010 which rejected the request being contrary to rules. However, in the case of Agha Shakeel Ahmad the said rule was not put into service as in their reply it has been stated by the respondents that Agha Shakeel Ahmad was allowed to submit his thesis with an additional delay of eight months on the basis of decision of Advanced Studies and Research Board dated 30.07.2009 which reads as under:

"The House discussed the case in detail and did not agree to extend time in submission of M.Phil thesis being contrary to the Rules and Regulations. But certain members insisted to consult his supervisor before final decision. The House authorized the Vice-Chancellor to take final decision after consulting Dr. Muhammad Khalid Supervisor of the scholar".

It is, therefore, clear from the above comparison that different yardsticks have been applied by the respondent University and its Vice Chancellor in dealing with similarly placed people. Article 25 of the Constitution, inter-alia, provides that each and every citizen of the country is entitled to equal protection of law and there shall be no discrimination on the basis of sex of the citizen. The only exception to the above rule as laid down by the Honourable Supreme Court being where the people are not equally placed. Whereas in the present case the petitioners and Agha Shakeel Ahmad are equally placed. Hence, the respondent University has no justification in meeting out a treatment to them which is different to that which was given to Agha Shakeel Ahmad.

I am fortified in my above observation with the case reported as 2004 YLR 1856 wherein it has been observed by a learned Division Bench of this Court that:

"Provisions of Article 25 of the Constitution only conveys that persons positioned alike be treated equally in privileges conferred and liabilities imposed--Discrimination within the same class of persons is prohibited under Article 25 of the Constitution."

Moreover, all the petitioners are females, as such, there can be an inference that discrimination has been caused against the female students which is also against the spirit of Constitution of this country. Article 25(3) provides that due to the peculiar circumstances in which the women and children of this country are, the State can make special provisions to protect and uplift their status. Thus indicating that State institutions would have to give special consideration to them while dealing with their issues.

1. In view of the above observation, this petition is allowed and the matter is sent back to Respondent No. 3 who would consult the Advance Studies Research Board on the submission of the thesis of the petitioners and pass appropriate orders based on the aforesaid observations, within four weeks from the receipt of certified copy of this order.

2. A copy of the compliance of this order will be sent to the Deputy Registrar (Judicial) of this Court by Respondent No. 3. Thereafter the office to put up this file as a compliance case on June 30, 2011.

(R.A.) Petition allowed.

PLJ 2012 Lahore 67 [Bahawalpur Bench Bahawalpur]

Present: Abdus Sattar Asghar, J.

ABDUL KHALIQ and 3 others--Petitioners

versus

ADDITIONAL DISTRICT JUDGE, MINCHANABAD and 4 others--Respondents

W.P. No. 1763 of 2011, decided on 19.5.2011.

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

----O. XXVI, Rr. 9 & 10--Procedure to appoint commissions--Report of commissioner and evidence taken by him--Validity--A Court to appoint commissions to make local investigations on request of a party and even suo motu--If the Court deems it appropriate for purpose of elucidating any matter in dispute--Procedure of commissioner so appointed for local investigations--Report of commissioner and evidence taken by him shall form part of record in the suit and any of the parties to suit might examine commissioner personally in open Court touching any of the matters referred to him or mentioned in his report which permission of the Court. [P. 69] A

Constitution of Pakistan, 1973--

----Art. 199--Civil Procedure Code, (V of 1908), O. XXVI, Rr. 9 & 10--Extraordinary jurisdiction of High Court--Challenged the order passed by Courts below--Suit for possession on basis of ownership--Case of demarcation/hadbarari--During pendency of suit--Application for appointment of local commission in order to ascertain actual khata and killa number--Application was allowed and A.C. was appointed as local commissioner--As per report demarcation was not possible--Being dissatisfied with report Court directed DDOR to appoint senior revenue officer for demarcation--Civil revision was also rejected--Assailed through writ petition--Validity--Appointment of local commission was made without notice to parties--DDOR submitted report of demarcation in Court when case was adjourned while inviting objections, if any, upon report of local commission from parties--Petitioners had not been able to point out infringement of any right--Impugned order had rightly declined to exercise his revisional jurisdiction to interfere with order of civil judge for appointment of local commission--Writ petition was dismissed. [Pp. 69 & 70] B

Mr. Abdul Majeed Bhatti, Advocate for Petitioners.

M/s. Ahmad Mansoor Chishti and Muhammad Khalid Shahid Buttar, Advocates for Respondents Nos. 3 to 5.

Date of hearing: 19.5.2011.

Order

Mr. Ahmad Mansoor Chishti and Mr.Muhammad Khalid Shahid Buttar, Advocates have filed their powers of attorney and accepted service on behalf of Respondents Nos. 3 to 5.

1. Abdul Khaliq and others, petitioners, have invoked the extraordinary jurisdiction of this Court under Article 199 of the Constitution by challenging the order dated 15.11.2010 passed by learned Civil Judge 1st Class, Minchanabad and order dated 14.12.2010, passed by learned Additional District Judge, Minchanabad, District Bahawalnagar, on the grounds that the same are illegal and without lawful authority.

2. Brief facts leading to the filing of this writ petition are that Muhammad Saleem and others (Respondents Nos. 3 to 5 in this petition) lodged a suit for possession against Abdul Khalid and others (petitioners in this petition) on the basis of ownership with regard to property comprising Khata No. 83, Killa Nos. 4 and 5, and Khata No. 91 and 365, situated in Mouza Minchanabad. The suit was resisted by the defendants with the contention that the disputed property is owned by the defendants vide registered sale-deeds dated 24.6.1984 and 18.2.2009. Considering it a case of demarcation/Hadbarari, during the pendency of the suit plaintiffs lodged an application for appointment of the local commission in order to ascertain the actual Khata and Killa numbers in which the suit property is situated. Application was resisted by the defendants. However, learned Civil Judge allowed the application and appointed the Assistant Collector/Tehsildar, Minchinabad, as local commissioner to determine the khata and khasra number in which the disputed property is situated. In response thereof the local commission submitted the report that the disputed property is situated in the populated area of Minchanabad City therefore its demarcation as per revenue record is not possible. The learned Civil Judge being dissatisfied with the report of the local commission directed the Deputy Collector/DDO(R), Minchanabad to appoint some senior revenue officer for demarcation/Hadbarari to ascertain the actual Khata Number and Khasra Number of the disputed property vide order dated 15.11.2010.

3. Being aggrieved of the said order of the learned Civil Judge, defendants (present petitioners) lodged a Civil Revision before the learned Additional District Judge, Minchanabad, on the ground that the impugned order is against the law and facts and without lawful authority for the reasons that the report of the Assistant Collector, Minchanabad has been rejected by the learned Civil Judge and the DDO(R) Minchanabad has been appointed as local commission without obtaining the objections of the parties. The learned Additional District Judge in his order dated 14.12.2010 observed that in fact no report was submitted by the local commission, i.e. Assistant Collector/Tehsildar Minchanabad regarding the demarcation, therefore, the learned Civil judge has rightly passed the impugned order for appointment of some competent revenue officer to do the job. Considering it a case having no irregularity or illegality, the learned Additional District judge declined to interfere in the order of the Civil Judge. Both the orders are assailed through this writ petition.

4. I have heard the learned counsel for the parties and perused the record.

5. Order XXVI, Rule 9 of the Code of Civil Procedure authorizes a Court to appoint commissions to make local investigations on the request of a party and even suo motu if the Court deems it appropriate for the purpose of elucidating any matter in dispute. Rule 10 of the Order XXVI ibid lays down procedure of the commissioner so appointed for the local investigations. It also declares that the report of the commissioner and the evidence taken by him shall form part of the record in the suit and any of the parties to the suit may examine the commissioner personally in open Court touching any of the matters referred to him or mentioned in his report with the permission of the Court.

6. The plea raised by the petitioners that the impugned order dated 15.11.2010 passed by the learned Civil Judge 1st Class, Minchanabad is against the law and facts and without lawful authority has no force for the reason that the learned Civil Judge has got the authority to appoint the local commission suo motu or on the application of any of the parties to the suit as provided in Rule 9 of Order XXVI of the Civil Procedure Code. Simultaneously, Rule 10 of Order XXVI ibid provides sufficient safeguards to the rights of the parties in order to utilize or otherwise any such report of the local commission as a piece of evidence, if so desired.

7. Perusal of the record reveals that the order dated 15.11.2010, whereby the DDO(R)/Deputy Collector, Minchanabad was directed to appoint some senior official for demarcation/Hadbarari of the disputed property was passed in presence of the counsel for the parties, therefore, it cannot be said that the appointment of the local commission was made without notice to the parties. Record further reveals that the; Deputy Collector/DDO(R) has submitted report of demarcation in the Court on 28.02.2011 when the case was adjourned while inviting objections, if any, upon the report of the local commission from the parties. Therefore, the learned counsel for the petitioners has not been able to point out infringement of any right. In the above state of affairs learned Additional District Judge vide impugned order dated 14.12.2010 has rightly declined to exercise his revisional jurisdiction to interfere with the order of the Civil Judge for appointment of the local commission.

8. As a sequel to the above discussion and reasons, I am of the considered view that the impugned order dated 15.11.2010 passed by the learned Civil Judge 1st Class and the order dated 14.12.2010 passed by the learned Additional District Judge, Minchanabad do not suffer from any illegality. Both the orders are passed in accordance with law in exercise of lawful authority and do not call for any interference by this Court in exercise of writ jurisdiction. This writ petition, therefore, is dismissed.

(R.A.) Petition dismissed.

PLJ 2012 Lahore 70 [Multan Bench Multan]

Present: Syed Iftikhar Hussain Shah, J.

FATEH ULLAH--Petitioner

versus

NOOR AHMED--Respondent

C.R. No. 624-D of 2011, decided on 8.6.2011.

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

----Art. 92--Civil Procedure Code, (V of 1908), S. 115--Register of birth entry is public document--Trust worthy evidence--Entry regarding death of deceased was made in Register of death entries wherein respondent was shown as husband of deceased--Entry remained un-rebutted--Entry was 50 years old and presumption of truth was attached to such entries unless proved--Validity--Register of birth entry was public document and certified copy was admissible in evidence u/Art. 92 of Qanun-e-Shahadat Order, and can be safely relied upon. [P. 73] A

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

----S. 115--Revisional jurisdiction--Concurrent findings--No mis-reading an non-reading of evidence--Validity--Concurrent findings advanced by sub-ordinate Courts were just having been passed in a lawful manner--No interference in exercise of revisional jurisdiction was called for in concurrent findings of Courts below--Concurrent findings did not suffer from mis-reading and non-reading of evidence--No jurisdictional error in the judgments--No illegality or material irregularity in findings of Courts below--Petition was dismissed. [P. 73] B & C

2009 SCMR 54 & 2008 SCMR 756, rel.

Ch. Khawar Saddique Sahi, Advocate for Petitioner.

Date of hearing: 8.6.2011.

Order

By means of this civil revision the petitioner has called in question the judgment and decree dated 20.5.2011 passed by the learned Additional District Judge, Chichawatni District Sahiwal whereby while dismissing the appeal, judgment and decree dated 12.2.2011 passed by the learned Civil Judge, Class-III, Chichawatni was kept in tact.

1. Noor Ahmed, respondent instituted a suit for seeking declaration to the effect that he being husband of Mst. Salamat Bibi deceased, who died on 12.7.1962 was entitled to inherit from her estate and Mutation No. 124 dated 25.7.1970 whereby he had been deprived from the inheritance of his deceased wife is illegal against facts and based on misrepresentation and ineffective qua his rights and the defendant should be permanently restrained from alienating the disputed property. It was further contended that the predecessor of the present petitioner, Mukhtar Ali produced a wrong pedegreetable before the revenue authorities showing Mst. Salamat Bibi as virgin and got registered the mutation in question deceitfully.

2. The suit was contested by the defendant/revision petitioner. It was contended that Mst. Salamat Bibi was virgin and she was never married with Noor Ahmed, respondent. Therefore, the impugned mutation was sanctioned in accordance with law. Various preliminary objections were also raised.

3. Learned trial Court from the divergent pleadings of the parties framed the following issues:--

(i) Whether the mutation of Inheritance No. 124 dated 25.7.1970 has been sanctioned through fraud and misrepresentation and is liable to be cancelled? OPP.

(ii) Whether the plaintiff is lawful legal heir of Mst. Salamat Bibi? OPP.

(iii) Whether the plaintiff has no cause of action to file this suit ? OPD.

(iv) Whether the suit of the plaintiff is not maintainable? OPD.

(v) Whether the suit of the plaintiff is false, frivolous and the defendant is entitled to the compensatory costs under Section 35-A of CPC? OPD.

(vi) Relief.

1. The learned trial Court after recording the evidence and hearing the parties decreed the suit vide judgment and decree dated 12.2.2011.

2. The petitioner preferred an appeal against the judgment and decree dated 12.2.2011 which was dismissed by the learned Additional Sessions Judge, Chichawatni vide judgment and decree dated 20.5.2011. Hence the present revision petition.

3. The learned counsel for the petitioner has contended that Mat. Salamat Bibi was virgin and she was not a legally wedded wife of the Respondent Noor Ahmed. Therefore, the impugned mutation was sanctioned in accordance with law in favour of Mst. Janat Bibi mother of Mst. Salamat Bibi and Mukhtar Ahmed, the predecessor of revision petitioner, i.e. the paternal uncle of the deceased but the learned trial Court as well as the lower appellate Court has not appreciated the evidence on record properly and has decreed the suit of the respondent arbitrarily. Both the judgments and decrees are the result of mis-reading and nonreading of evidence. Therefore, both are liable to be reversed and the suit of the respondent is liable to be dismissed. The learned counsel for the petitioner has relied on Muhammad Saeed v. Muhammad Siddique and 10 others (2010 MLD 855), Abdur Razzaq and others Zahoor Ahmad and others (2005 CLC 556). It is also contended that the respondent has not claimed decree for possession regarding the disputed land. Hence, the suit was incompetent in its present form and was also liable to be dismissed on this ground.

4. I have heard the learned counsel for the petitioner and have also gone through the record. Noor Ahmed has claimed that Mst. Salamat Bibi was his wife; four children were born out of the wedlock and unfortunately none is alive. Noor Ahmed himself appeared as PW.1 and deposed that Mst. Salamat Bibi was his wife and she was owner of 5 kanals 4 marlas of the land. He has been deprived from her share of inheritance by Mukhtar Ali father of the revision petitioner by practising fraud misrepresentation and providing a wrong pedegreetable before the revenue authorities showing Mst. Salamat Bibi as virgin. Muhammad Sadique PW.2 has also corroborated him. He has also produced a copy of register of death entries Ex.P.2 before the trial Court. According to which Mst. Salamat Bibi died on 12.7.1962 and the factum of her death was reported on 16.7.1962. In Column No. 4 of the said entries, it has been mentioned that Mst. Salamat Bibi was wife of Noor Ahmed. Ex.P.1 is 50 years old document and entries of which have not been challenged. Fateh Ullah, revision petitioner appeared as DW.1 and Allah Bakhsh appeared as DW.2 before the trial Court in the rebuttal.

9A. Fateh Ullah as DW.1 has deposed that he has never heard that Mst. Salamat Bibi was married. Allah Bakhsh DW.2 has also deposed that Mst. Salamat Bibi died as virgin.

1. Noor Ahmed respondent has proved by producing the trust worthy evidence that Mst. Salamat Bibi was his wife. The entry regarding death of Mst. Salamat Bibi was made in the register of death entries on 16.7.1962 wherein Noor Ahmed has been shown as husband of Mst. Salamat Bibi. The aforesaid entry remained unrebutted. The aforesaid entry is 50 years old and presumption of truth is attached to such entries unless proved otherwise. The register of birth entry is a public document and certified copy thereof is admissible in evidence under Article 92 of Qanun-e-Shahadat 1984 and can be safely relied upon.

2. After the death of Mst. Salamat Bibi the Respondent Noor Ahmed become co-sharer in her properly along with the remaining legal heirs and a co-sharer is deemed to be in possession of the joint property along with other co-sharers. Therefore, the objection of the learned counsel for the petitioner that possession as a consequential relief has not been claimed, has got no force.

3. The concurrent findings advanced by the learned subordinate Courts are just having been passed in a lawful manner. No interference in exercise of revisional jurisdiction is called for in the concurrent findings of the Courts below. Reliance in this regard can be placed on Alamgir Khan through L.Rs. and others and Haji Abdul Sattar Khan and others (2009 SCMR 54) and Amir Abdullah v. Kafaitullah Khan (2008 SCMR 756).

4. The upshot of the above discussion is that the concurrent findings arrived at by both the Courts below did not suffer from misreading or nonreading of evidence. There is no jurisdictional error in both the judgments. There is no illegality or material irregularity in the findings of the Courts below. The instant revision is devoid of merits and is, hereby, dismissed in limine.

(R.A.) Petition dismissed.

PLJ 2012 Lahore 74 [Bahawalpur Bench Bahawalpur]

Present: Abdus Sattar Asghar, J.

MUHAMMAD MAZHAR--Petitioner

versus

ADDITIONAL I.G. POLICE INVESTIGATION BRANCH, PUNJAB, LAHORE and 3 others--Respondents

W.P. No. 3607 of 2011, decided on 4.7.2011.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 4(1)(e)--Constitution of Pakistan, 1973, Art. 199--Change of investigation--Definition of--Objection of investigation as divulged through its definition given in S. 4(1) (e), Cr.P.C. is to collect evidence to ascertain the truth or falsehood innocence or probable guilt of the person suspected of crime. [P. 75] A

Police Order, 2002 (22 of 2002)--

----Art. 18--Criminal Procedure Code, (V of 1898), Ss. 156 & 157--Procedure relating to investigations by a police officer--Promulgation of Police Order--Object behind introducing procedure u/Art. 18 of Police Order was to keep process of investigation away from control of administrative executive authority. [Pp. 75 & 76] B

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 173--Police Order 2002, Art. 18(6)--Constitutional petition--Change of investigation--Addl. Inspector General Police has no power to change investigation--Validity--Door of investigation is not completely closed after submission of report u/S. 173, Cr.P.C. rather it was kept open to serve the ends of justice in appropriate cases in order to furnish relevant piece of evidence regarding probable innocence or guilt of an accused especially at early stage of trial--Petition was not maintainable and dismissed in limine. [P. 77] C

Mr.Shah Muhammad Khokhar, Advocate for Petitioner.

Date of hearing: 4.7.2011.

Order

Muhammad Mazhar petitioner/accused in case FIR No. 352/2010, dated 27.12.2010, under Section 295-B PPC, Police Station Noushera Jadid, District Bahawalpur was found guilty in the police investigation and accordingly report under Section 173 Cr.P.C. was sent up by the S.H.O. on 13.1.2011 to the Illaqa Magistrate who taking notice that offence under Section 395-B PPC is exclusively triable by the learned Sessions Judge forwarded the same to the learned District & Sessions Judge, Bahawalpur. It was duly entrusted to the Court of learned Additional Sessions Judge, Ahmedpur East for trial. The learned Additional Sessions Judge, Ahmedpur East after disbursing the copies of necessary documents in terms of Section 265-C Cr.P.C. formally charge, sheeted the accused on 18.2.2011 and directed the prosecution to produce the evidence, which is still pending at the evidence stage but no P. W. could be recorded till date.

1. In the meanwhile, on reference findings of the District Standing Board Bahawalpur received from the office of R.P.O. Bahawalpur Region dated 02.4.2011 recommending first change of investigation came up before Additional Inspector General Police, Investigation Branch, Punjab for examination and consideration. Additional Inspector General Police, Investigation Branch Punjab, Lahore finding the recommendations of the Board equipped with cogent reasons through impugned order dated 15.4.2011 in exercise of powers conferred upon him under Article 18(6) of Police Order 2002, allowed first change of investigation and entrusted the investigation to R.I.B. Bahawalpur with the direction to ensure early finalization of investigation purely on merits.

2. The petitioner/accused being aggrieved of the impugned order has called it in question by invoking the constitutional jurisdiction of this Court through this petition on the grounds that since the trial Court has taken cognizance of the offence on the report under Section 173 Cr.P.C. already submitted by the Inspector/SHO, therefore, Additional Inspector General Police/Respondent No. 1 has no power to change the investigation; that respondents want to involve other innocent family members of the petitioner in this case and the impugned order is illegal, against the law and facts and liable to be set aside.

3. I have given patient hearing to learned counsel for the parties-and gone through the record with his able assistance.

4. The object of investigation as divulged through its definition given in Section 4(1)(e) Cr.P.C. is to collect evidence to ascertain the truth or falsehood of the information or complaint for determination of probable innocence or probable guilt of the person suspected of the crime. Sections 156 and 157 of the Cr.P.C. lay down the procedure relating to investigations by a police officer. However, some changes in the procedure for transfer of investigation has been introduced with the promulgation of Police Order, 2002. Article 18 of the Police Order (ibid) deals with the procedure of investigation and reinvestigation. Perhaps the object behind introducing the procedure under Article 18 of the Police Order (ibid) was to keep process of the investigation away from the control of administrative/executive authority.

5. Although practice of re-investigation, at times, is disapproved by the superior Courts, however, the fact remains that it is never prohibited keeping in view a clear line separating the administrative authority from the judicial power designed in our Criminal Justice System. In this regard dictums laid down in the following cases may be seen:--

(i) In the case of Aftab Ahmed Vs. Hassan Arshad (PLD 1987 Supreme Court 13) it was laid down that subsequent investigation after submission of first report under Section 173 Cr.P.C. to competent Court is not prohibited; there is nothing in the Code to prevent the Investigating Officer from submitting his subsequent report in supersession of his earlier report and the number of investigations into a crime by police officers is not limited by law and when one has been completed, another may be commenced on further information received and this is also possible even after the submission of the challans and when the Court has even taken cognizance of the case.

(ii) In the case of Bahadur Khan Vs. Muhammad Azam and 2 others (2006 SCMR 373) it was held that in view of provisions of Section 173 Cr.P.C. no legal bar existed for reinvestigation of a criminal case even after submission of final report under Section 173 Cr.P.C. and the police could carry out the fresh investigation and submit its report to the Court but this would not mean that in a case in which earlier after completion of investigation challan was submitted for trial of an offence, on which the accused have been tried and the case was finally decided up to the level of the High Court or by this Court as the case may be, to entertain the subsequent challan submitted as result of the reinvestigation or further investigation of the case by the police on the happening of a subsequent incident.

(iii) In the case of Khizar Hayyat (PLD 2005 Lahore 470) trend of getting a fresh investigation of a criminal case conducted after submission of challan and taking cognizance of the trial Court was disapproved except in cases where any particular material piece of evidence shown to have been missed out by the Investigating Officer and yet to be collected by the police.

1. In the light of the above referred dictums it is crystal clear that door of the investigation is not completely closed after submission of report under Section 173 Cr.P.C. rather it was kept open perhaps to serve the ends of justice in appropriate cases in order to furnish relevant piece of evidence regarding probable innocence or guilt of an accused especially at the early stage of the trial.

2. In the instant case, admittedly prosecution has not yet opened its evidence. No P.Ws. is recorded till date, therefore, impugned order passed by the Additional Inspector General Police Investigation Branch, Punjab/Respondent No. 1 in exercise of his powers in terms of Article 18(6) of Police Order (ibid) does not suffer from any illegality or misuse of any authority. In the peculiar circumstances of this case I do not see any reason to interfere in the impugned order. This writ petition, therefore, is not maintainable and dismissed in limine.

(R.A.) Petition dismissed.

PLJ 2012 Lahore 77 [Bahawalpur Bench Bahawalpur]

Present: Abdus Sattar Asghar, J.

ABDUL SATTAR, PRINCIPAL, GOVERNMENT INSTITUTE FOR THE BLINDS MODEL TOWN "A", BAHAWALPUR--Petitioner

versus

DISTRICT ACCOUNTS OFFICER, BAHAWALPUR and 2 others--Respondents

W.P. No. 2356 of 2011, heard on 9.6.2011.

Principle of Locus Ponetentiae--

----Posted on current charge appointment against newly created post--No specific termination order was passed--Amount in shape of salary and funds if paid even wrongly and in excess received by employee cannot be recovered and cannot be deducted from his salary under principle of locus ponetentiae. [P. 78] A

PLD 1993; SC 200, rel.

Punjab Civil Servant (Appointment and Conditions) Rules, 1974--

----Rr. 10 to 13--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Charge of post in B.S. 19 by virtue of order for an extended period of one year--To draw salary and allowance--Posted at principal on current charge appointment against a newly created post--Current charge appointment in B.S. 19 was extended for further one year--No specific termination order was passed by authority on completion of one years extention of current charge rather continued serve as such when secretary terminated his current charge appointment in B.S. 19 and posted at his own pay and scale--Validity--Even after expiry of one year he continued to work on said post up-till when his current charge appointment was cancelled by Authority and was posted as principal in his own pay and grade till further order--Petitioner was entitled to draw salaries and allowances in BS-19 when his current charge appointment was cancelled by authority--Petition was partially allowed with specific direction. [P. 79] B & C

Mr. Jamshed Akhtar Khokhar, Advocate for Petitioner.

Mehr Muhammad Iqbal, AAG with Muhammad Aslam Sarfraz, Senior Additional, Account Office Bahawalpur for Respondents.

Date of hearing: 9.6.2011.

Judgment

The petitioner Abdul-Sattar Principal (BS-18) on return from earned leave was appointed as principal in (BS-19) on current charge basis and posted as Principal Government Degree College of Special Education, Lahore vide order dated 26.5.2006. Through a subsequent order dated 31.5.2006 his posting at Government Degree College for Special Education Lahore was cancelled and he was posted at Principal Government Degree College for Special Education, Bahawalpur on current charge appointment against a newly created post. In compliance of the order dated 31.5.2006 he assumed the charge of said post at Bahawalpur. His current charge appointment in BS-19 was extended for further one year w.e.f. 26.5.2007 vide order dated 01.9.2007. It is on the record that no specific termination order was passed by the Authority on completion of one year extension of the current charge rather he continued to serve as such on the said post till 19.11.2008 when the Secretary, Special Education vide order dated 19.11.2008 terminated his current charge appointment in BS-19 w.e.f. 26.5.2008 and posted him at his own pay and scale w.e.f. 27.5.2008. However, he has been drawing salary and allowances of BS-19 w.e.f. 26.5.2008 to 03.2.2009.

1. The District Accounts Officer, Bahawalpur/Respondent No. 1 taking exception to the said withdrawals pointed out this irregularity as violative to the Service and Financial Rules and imposed recovery of over payment of Rs. 91603/-, drawn by the petitioner. Being aggrieved of the impugned deduction of Rs. 91603/-, the petitioner has invoked the jurisdiction of this Court through this writ petition seeking declaration that the same is against law and facts and liable to be set aside.

2. District Accounts Officer, Bahawalpur/Respondent No. 1 in his comments has opposed the petition.

3. I have given patient hearing to the learned counsel for the petitioner and learned AAG for the State and also gone through the record.

4. Main argument of the learned counsel for the petitioner is that amount in shape of salary and funds if paid even wrongly and in excess received by the employee cannot be recovered and cannot be deducted from his salary under the principle of locus ponetentiae. In this regard he has take reliance upon Controlling Authority, N.W.F.P. Board of Technical Education, Peshawar and another Vs. Abdus Salam Secretary NWFP Board of Technical Education (PLD 1993 Supreme Court 200).

5. Admittedly, the petitioner held the charge of the post in BS-19 by virtue of order dated 01.9.2007 for an extended period of one year w.e.f 26.5.2007. However, fact remains that even after expiry of one year i.e. 26.5.2008 he continued to work on the said post up till 19.11.2008 when his current charge appointment was cancelled by the Authority vide letter No. So (Estt.)10-171/2006 dated 19.11.2008 and he was posted as Principal in his own pay and grade (BS-18) till further orders. Therefore, the petitioner has strong case to draw the salary and allowances of BS-19 from 26.5.2008 to 19.11.2008. Petitioner's plea also finds strength from the fact that the Government of the-Punjab Finance Department in its Letter No. FD-PC-44-9-2009 dated 16.12.2009 directed that pay of the higher post will be admissible to a civil servant during the period of his appointment on higher post. Reliance is made upon: Islamic Republic of Pakistan through Secretary Finance Division, Government of Pakistan, Islamabad. Vs. Qazi Abdul Karim, Deputy Accountant-General, N.W.F.P. Peshawar and another (1978 SCMR 289) wherein it was held that an employee promoted to officiate in a higher post involving higher responsibility is entitled to the pay of grade of higher post.

6. In the light of above referred factual and legal position there is no doubt in my mind to find that petitioner is entitled to draw the salaries and allowances in BS-19 up till 19.11.2008 when his current charge appointment was cancelled by the Authority. For the foregoing reasons, writ petition is partially allowed with a direction to the District Accounts Officer, Bahawalpur/Respondent No. 1 to modify the impugned deductions accordingly.

(R.A.) Petition partially allowed.

PLJ 2012 Lahore 79

Present: Syed Muhammad Kazim Raza Shamsi, J.

DR. MUHAMMAD NAEEM ATTA--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, GOJRA and 3 others--Respondents

W.P. No. 14450 of 2010, heard on 21.6.2011.

Constitution of Pakistan, 1973--

----Art. 199--West Pakistan Family Courts Act, 1964, S. 17--Qanun-e-Shahadat Order, 1984--Scope--Constitutional petition--Suit for maintenance and dowry articles--Maintenance for wife @ Rs. 3000/- p.m. from date of institution of suit while maintenance for minor was fixed @ Rs. 1500/- p.m. was decreed--Claim of dowry articles was decreed to extent of Rs. 100,000/- Value of articles--First Appellate Court modified decree--Although provisions of Q.S.O. are not applicable to family matters--Principles for proving a fact are applicable in every case where special procedure is not provided for proving aspects the case--Validity--Mere narration of a person that articles were given to respondent at time of her marriage cannot be treated as gospel's truth as it had to be checked whether assertion had been proved in accordance with rules of prudence--Court had wrongly believed statements of witnesses of respondent in such respect--Court at first instance after appreciating whole evidence on record had determined the value of dowry articles given at time of marriage--Articles suffered wear and tear due to their use and accordingly granted articles--First Appellate Court were contrary to evidence on record as such were liable to be set aside--Petition was allowed. [P. 81] A

Mr. Atif Mohtashim Khan, Advocate for Petitioner.

Mr. Javed Anwar Janjua, Advocate for Respondents.

Date of hearing: 21.6.2011.

Judgment

This petition is directed against judgment dated 27.01.2010 passed by Syed Muzaffar Ali Shah, learned Addl. District Judge, Gojra, whereby he modified the decree dated 01.7.2009 passed by Mr. Yasir Hayat, Judge Family Court, Gojra.

1. Mst. Fouzia Tasneem filed a suit for maintenance and dowry articles, which was contested by the defendant controverting the allegations and the learned Court of first instance out of the pleadings of the parties framed necessary issues. The evidence recorded thereon was duly appreciated and vide decree dated 01.7.2009 maintenance for the wife at the rate of Rs.3000/- per month from the date of institution of the suit till the divorce was granted while the maintenance for the minor was fixed at the rate of Rs.1500/- per month with annual increase of 5%. The claim of dowry articles was decreed to the extent of Rs. 100,000/- the value of the articles.

2. The defendant being dissatisfied with the decree preferred an appeal before the First Appellate Court, who modified the decree by allowing maintenance to the wife at the rate of Rs.3000/- per month w.e.f. 24.02.2005 till the divorce and granted a decree of the value of the dowry articles as prayed for vide judgment impugned in the instant petition.

3. None has appeared at the call of the case from the respondent, as such ex-parte proceedings have been taken against the respondent. Ex-parte arguments of the petitioner have been heard and record perused.

4. Learned First Appellate Court while granting the decree as a whole of the dowry articles has proceeded against the evidence on record on the ground that although the provisions of Qanun-e-Shahadat Order, 1984 are not applicable to the family matters as enunciated in Section 17 of the West Pakistan Family Courts Act, 1964, but general principles for proving a fact are applicable in every case where the special procedure is not provided for proving certain aspects of the case. Mere narration of a person that certain articles were given to respondent at the time of her marriage cannot be treated as gospel's truth as it has to be checked whether the assertions have been proved in accordance with the rules of prudence. The Court has wrongly believed the statements of the witnesses of the respondent in this respect. The learned Court at the first instance after appreciating the whole evidence on record had determined the value of the dowry articles given to the respondent at the time of her marriage. It has also kept in mind by the Court that the articles also suffered wear and tear due to their use and accordingly granted a decree of Rs. 100,000/-, the value of the dowry articles. In the circumstances the findings of the First Appellate Court are contrary to the evidence on record as such are liable to be set aside.

5. For the foregoing reasons, this petition is allowed by declaring the impugned order as illegal and of no legal consequences, resultantly is set aside. The order passed by the learned Judge Family Court is restored accordingly.

(R.A.) Petition allowed.

PLJ 2012 Lahore 81 [Bahawalpur Bench Bahawalpur]

Present: Abdus Sattar Asghar, J.

MUHAMMAD TAHIR--Petitioner

versus

ADDITIONAL DISTRICT JUDGE-II, BAHAWALNAGAR and 5 others--Respondents

W.P. No. 3269 of 2011, decided on 16.6.2011.

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

----Ss. 43 & 47(1)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Efficacious remedy of appeal was available--Question of maintainability of writ petition--Petitioner was appointed as guardian of her niece after death of her father--Brother of minor filed an application for cancellation of guardianship--In view of statements of surety, the surety was discharged from his liability--Guardian at fault being aggrieved assailed it in revision petition before Distt. Judge, which was dismissed--Challenge to--It was admitted fact that financial assets of minor were given in hands of petitioner as a sacred trust on his appointment as guardian of minor--Application of brother of minor for cancellation of guardianship certificate was pending adjudication before Guardian Judge--Proceeding were recorded on voluntary statement of surety and petitioner--Held: Order passed in terms of S. 43 of Guardians and Wards Act, is appealable u/S. 47(1) of Act, 1890--Since efficacious remedy of appeal was available to petitioner if aggrieved of impugned order, therefore writ petition u/Art. 199 of Constitution was not maintainable. [Pp. 83 & 84] A, B & C

Syed Muhammad Arfah Sheraz Bokhari, Advocate for Petitioner.

Date of hearing: 16.6.2011.

Order

Brief facts leading to this petition are that Muhammad Tahir petitioner was appointed as guardian of her niece Mst. Jannat Firdous by the learned Guardian Judge, Bahawalnagar, vide order dated 04.7.2007 after the death of her father Zafar Iqbal. Muhammad Iqbal Respondent No. 3 brother of minor Mst. Jannat Firdous filed an application for cancellation of guardianship of the petitioner Muhammad Tahir before the learned Guardian Judge, Bahawalnagar on the ground that the petitioner has misappropriated the amounts received through pension, benevolent fund, etc. of the deceased father of the minor instead of expending it for the welfare of the minor.

1. Present petitioner contested the said application by filing the written reply wherein he denied the allegation of misappropriation of the minor's financial assets and also leveled cross allegation of fraud and cheating upon Muhammad Iqbal brother of minor Mst. Jannat Firdous. The learned Guardian Judge after going through the pleadings of the parties summoned Muhammad Tahir guardian, Muhammad Yaqoob surety to the guardian as well as minor Mst. Jannat Firdous along with the original guardianship certificate in the Court on 01.3.2011. On the said date i.e. 01.3.2011, Muhammad Yaqoob surety and Muhammad Tahir guardian (present petitioner) got recorded their separate statements before the learned Guardian Judge, Bahawalnagar. Muhammad Yaqoob surety stated that Muhammad Tahir guardian had given him Rs. 30,000/-, which he is ready to deposit in the Court and that he be relieved of the surety bond/liability. Simultaneously, Muhammad Tahir guardian made the statement that Muhammad Yaqoob surety had deposited Rs. 30,000/- with the Civil Nazir of the Court and that he is ready to return remaining amount of Rs. 1,42,000/- through monthly installments and for this purpose he is ready to produce fresh surety. The learned Guardian Judge in the light of the above referred statements of the petitioner (guardian at fault) and the surety Muhammad Yaqoob has passed the following order on 01.3.2011:

"Statements of surety and Respondent No. 01 (guardian at fault), recorded. In view of the statements, the surety Muhammad Yaqoob is discharged from his liability. Surety Muhammad Yaqoob has deposited Rs. 30,000/- with the Civil Nazir of this Court. Mst. Jannat Firdous can withdraw this amount upon submission of application. As per order dated 26.02.2011, to the extent of remaining amount of Rs. 1,42,000/-, the Respondent No. 01 is directed to deposit the same in two equal installments, which shall be paid on 5th of every month. Respondent be sent to District Jail, Bahawalnagar and be produced before the Court on 14.03.2011."

1. Muhammad Tahir petitioner (guardian at fault) being aggrieved of the order dated 01.3.2011 assailed it in revision petition dated 07.4.2011 before the learned District Judge, Bahawalnagar, which came up for hearing on 13.5.2011 before the learned Additional District Judge, Bahawalnagar. Learned Additional District Judge after hearing the counsel for the petitioner dismissed the revision petition vide order dated 13.5.2011.

2. Muhammad Tahir petitioner (guardian at fault) through instant writ petition has challenged the vires of both the impugned orders dated 01.3.2011 passed by learned Guardian Judge, Bahawalnagar and order dated 13.5.2011 passed by learned Additional District Judge, Bahawalnagar, on the grounds that the said orders are illegal, against law and facts, arbitrary and liable to be set aside.

3. I have given patient hearing to learned counsel for the petitioner and carefully gone through the record.

4. It is an admitted fact that the financial assets of the minor were given in the hands of Muhammad Tahir petitioner as a sacred trust on his appointment as guardian of the minor. In this regard I have the honour to cite English translation of the Verse Nos.2,6 & 10 of Surah An-Nisah, Chapter No. 4, of the Holy Quran, which reads below:--

Verse No. 2. "Give unto orphans their wealth. Exchange not the good for the bad (in your management thereof) nor absorb their wealth into your own wealth. Lo! That would be a great sin."

Verse No. 6 "Prove orphans till they reach the marriageable age; then, if ye find them of sound judgment, deliver over unto them their fortune; and devour it not by squandering and in haste lest they should grow up. Whose (of the guardians) is rich, let him abstain generously (from taking of the property of orphans); and whose is poor let him take thereof in reason (for his guardianship). And when ye deliver up their fortune unto orphans, have (the transaction) witnessed in their presence. Allah sufficeth as a Reckoner."

Verse No. 10. "Lo! Those who devour the wealth of orphans wrongfully, they do but swallow fire into their bellies, and they will be exposed to burning flame."

1. At this juncture it will not be out of place to refer that vide Article 2-A of the Constitution of Islamic Republic of Pakistan, the principles and provisions positioned in the Objectives Resolution have been made substantive part of the Constitution and shall have effect accordingly. Clause-lV of the Objections Resolution reads as under:

"Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah;"

Needless to mention that as a Muslim we must adhere to the ordains of Holy Quran in letter and spirit as practiced by the Holy Prophet Muhammad (SAW) to ensure dispensation of justice to the individuals as well as to the society.

1. It is pertinent to mention that application of Muhammad Iqbal brother of the minor Mst. Jannat Firdous for cancellation of guardianship certificate of Muhammad Tahir petitioner is pending adjudication before the learned Guardian Judge, Bahawalnagar. The proceedings dated 01.3.2011 were recorded by learned Guardian Judge on the voluntary statements of Muhammad Yaqoob surety and Muhammad Tahir petitioner (guardian at fault). In the light of their statements unauthorized payment of Rs. 30,000/- by the guardian to Muhammad Yaqoob surety prima facie makes out a case of misappropriation.

2. In such circumstances, provisions of Section 43 of the Guardians and Wards Act, 1890 are attracted which reads below:

"43. Orders for regulating conduct or proceedings of guardians, and enforcement of those orders. (1) The Court may, on the application of any person interested or of its own motion, make an order regulating the conduct or proceedings of any guardian appointed or declared by the Court."

In the light of Section 43 of the Act (ibid) I do not find any illegality or unlawful exercise of jurisdiction by the learned Guardian Judge. Learned counsel for the petitioner in his arguments has not been able to point out any illegality or unlawful exercise of jurisdiction by the learned Guardian Judge.

1. At this juncture it is pertinent to mention that an order passed in terms of Section 43 of the Act ibid is appealable under Section 47(i) of the Act ibid. Since efficacious remedy of appeal is available to the petitioner if aggrieved of the impugned order, therefore, instant writ petition under Article 199 of the Constitution is not maintainable at all and is dismissed in limine.

(R.A.) Petition dismissed.

PLJ 2012 Lahore 85 [Bahawalpur Bench Bahawalpur]

Present: Abdus Sattar Asghar, J.

DR. MULAZIM HUSSAIN SUMRO, MEDICAL SUPERINTENDENT TEHSIL HEADQUARTER HOSPITAL, DISTRICT BAHAWALPUR--Petitioner

versus

SPECIAL SECRETARY HEALTH, ON BEHALF OF THE COMPETENT AUTHORITY GOVERNMENT OF PUNJAB, LAHORE and 2 others--Respondents

W.P. No. 3052 of 2011, decided on 8.6.2011.

Punjab Employees (Efficiency, Discipline & Accountability) Act, 2006--

----S. 13(4)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Show-cause cum personal hearing notice--Charge of professional irregularities and misconduct--Charges were proved--Validity--Plea of mala fide being a question of fact not sufficiently substantiated with any speck of material on record cannot be looked into by High Court in exercise of constitutional jurisdiction at that stage--No decision adverse to petitioner was passed in the show-cause cum personal hearing notice. [P. 86] A

Constitution of Pakistan, 1973--

----Art. 199--Punjab Employees Efficiency, Disciplines & Accountability Act, 2006, S. 13(4)--Constitutional jurisdiction of High Court--Rule of audi alteram partem--Show cause notice--Question of maintain-ability--Premature petition--Validity--Objection of show-cause notice is to provide an opportunity to petitioner to explain and produce his defence before Hearing Officer following rule of audi alteram partem--It does not amount to infringement of any statutory or secured right of petitioner, therefore, same could not be called in-question through invoking writ jurisdiction of High Court--Petition being pre-mature was not maintainable and thus dismissed in limine. [P. 86] B

Mr. Shabbir Ahmed Bhutta, Advocate for Petitioner.

Date of hearing: 8.6.2011.

Order

Dr. Mulazim Hussain Sumro, being aggrieved of show-cause notice dated 11.5.2011 issued by Dr. Muhammad Sami Akhtar Professor (BS-20) Nishtar Medical College Multan/Respondent No. 2, the inquiry officer, has called it in question on the ground that the same is illegal mala fide and without lawful authority.

1. I have given patient hearing to the learned counsel for the petitioner and perused the record with his able assistance.

2. The record reveals that by orders of the competent authority an inquiry under the PEEDA Act, 2006 on the charge of professional irregularities and misconduct was ordered against Dr. Mulazim Hussain Sumro/petitioner vide order dated 23.4.2010 passed by Special Secretary (Health), Government of the Punjab. On submission of report of the inquiry officer that charges have been proved against the petitioner, Special Secretary (Health) Government of the Punjab issued impugned show-cause-cum-personal hearing notice dated 11.5.2011 under Section 13(4) of the PEEDA Act, 2006 whereby he is called upon to show-cause within seven days of the receipt of the notice as to why the penalties mentioned in the notice be not imposed upon him. He is also offered opportunity of personal hearing and directed to appear before the Execution District Officer (Health). Multan/Hearing Officer appointed by the competent authority and further allowed to submit his additional defence in writing before the Hearing Officer on the date to be communicated by the Hearing Officer.

3. Bare perusal of the impugned show-cause notice transpires that the same is issued in accordance with the law in exercise of lawful authority under the PEEDA Act, 2006. Certainly the matter pertains to the terms and conditions of the service. Plea of mala fide being a question of fact not sufficiently substantiated with any speck of material on the record cannot be looked into by this Court in exercise of constitutional jurisdiction at this stage. No decision adverse to the petitioner is passed in the impugned show-cause-cum-personal hearing notice. It is pertinent to mention that object of show-cause notice is to provide an opportunity to the petitioner to explain and produce his defence before the Hearing Officer following the rule of audi alteram partem. It does not amount to infringement of any statutory or secured right of the petitioner, therefore, the same cannot be called in question through invoking the writ jurisdiction of this Court. Instant writ petition being pre-mature is not maintainable and thus dismissed in limine.

(R.A.) Petition dismissed.

PLJ 2012 Lahore 87

Present: Sayyed Mazahar Ali Akbar Naqvi, J.

RAJAB ALI BHATTI--Petitioner

versus

STATION HOUSE OFFICER, POLICE STATION KOTWALI JHANG and another--Respondents

W.P. No. 16950 of 2010, decided on 25.8.2010.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 406--Constitutional petition--Contents of FIR--Offence of the FIR was not made out--No substance in the petition--Validity--Prosecution of a case cannot be quashed at initial stage, which was jurisdictional parameters of trial Court to decide the guilt or otherwise of the petitioner after shifting and evaluating the prosecution evidence--No substance in the petition same was dismissed. [P. 88] A & B

Mr. Munir Ahmed Khan Zai, Advocate for Petitioner.

Mr. Khurram Khan, DPG for Respondent No. 1.

Mr. Mazhar Ali Ghaloo, Advocate for Complainant/Respondent No. 2.

Date of hearing: 25.8.2010.

Order

By means of instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has sought quashing of F.I.R No. 658/2010, dated 23.07.2010, under Section 406, P.P.C, registered at Police Station Kotwali Jhang.

1. Learned counsel for the petitioner submits that the allegations against the petitioner are frivolous as Story narrated in the FIR does not appeal to prudent mind, the same is quite unbelievable and beyond the mind of human being. It in also contended that the petitioner committed no offence. Learned counsel further stated that actually house of petitioner's wife, real aunt of Respondent No. 2/complainant is under the illegal possession of Respondent No. 2 and in order pressurize the petitioner and his wife to withdraw civil litigation, the instant FIR has been lodged, therefore, pendency of the FIR would be nothing but abuse of process of law and wastage of valuable time of the Court.

2. Contrarily, learned DPS assisted by learned counsel for the Complainant/Respondent No. 2 has opposed this petition with vehemence. It is contended that the High Court has no jurisdiction whatsoever to take the role of Investigating Agency and to quash the F.I.R while exercising constitutional powers under Article 199 of the Constitution of the Islamic Republic of Pakistan or under Section 561-A, Cr.P.C., unless and until very exceptional circumstances exist, which surely are missing in the instant case.

3. Arguments heard. Record available on file perused.

4. This Court in a reported judgment Ch. Pervez Ellahi vs. The Federation of Pakistan through Secretary Ministry of Interior, Islamabad and 3 others (1995 MLD 615) has laid down following parameters on the basis of which a criminal case can be quashed while exercising Constitutional jurisdiction--

(a) when the case is of no evidence;

(b) when the very registration of the case is proved to be mala fide on the face of record;

(c) when the case is of purely civil nature, criminal proceedings are not warranted in law, especially to harass the accused;

(d) when there is serious jurisdictional defect; and

(e) when there is unexceptional delay in the disposal of the case causing deplorable mental, physical and financial torture to the person proceeded against.

No ground has been substantiated by learned counsel far the petitioner falling within realm of above parameters. Moreover, after perusing the contents of FIR, I don't find that offence as narrated in the F.I.R is not made out. It is settled principle of law that the prosecution of a case cannot be quashed at the initial stage, which is the jurisdictional parameters of the trial Court to decide the guilt or otherwise of the petitioner(s) after shifting and evaluating the prosecution evidence.

1. For the foregoing reasons, having found no substance in the petition, the same is hereby dismissed. However, the Investigating Officer is directed to submit challan before the learned trial Court without fail.

(R.A.) Petition dismissed.

PLJ 2012 Lahore 89 [Rawalpindi Bench Rawalpindi]

Present: Ch. Muhammad Tariq, J.

Malik MUHAMMAD NIAZ--Petitioner

versus

MUHAMMAD AYUB etc.--Respondents

C.R. No. 376 of 2008 and F.A.O. No. 40 of 2010, heard on 15.3.2011.

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

----O. XII, R. 6--Scope of--Categorical statement--Court was oblized to pass final judgment--Unconditional conceding statement--Contention of--Trial Court had no jurisdiction to recall his earlier order--Validity--If any party made an unconditional conceding statement after being satisfied with situation or terms and conditions of a compromise, Court was bound to pass a decree but in the instant case, facts were otherwise--Respondent showed his lack of confidence in attorney and at same time he filed an application u/Order 1, Rule 10, CPC for impleading him as party--Provisions of Order XII, Rule 6, CPC were not strictly attracted in matter in hand. [Pp. 91 & 92] A

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

----S. 30, O. XLIII, R. 1 & Order XLVII, XX, R. 5 & O. XLI, R. 30--Application for review--Drawing a judgment--Alteration and amendment in judgment--No authority to recall order on verbal request--Suit for specific performance--Compromise deed was produced--Case was adjourned--Respondent resiled from his previous stance and filed an application under O. I, R. 10, CPC--Applications were accepted--Challenge to--Suit was decreed by trial Court--Order was recalled--Validity--Trial Court has traveled beyond his jurisdiction because once Court Judge signs and pronounces judgment in open Court, thereafter he ceases to exercise jurisdiction in matter as he becomes functus officio, and unequivocal insistence of law particularly Order XX, R. 5 and Order 41, R. 30 r/W. S. 30, CPC is with object that while drawing a judgment, judge must apply his judicial mind with reasonable depth, so that points in controversy were fairly determined with reasons--Any alteration and amendment thereafter in the judgment is not permissible because such practice, if allowed, would bring system of justice into disarray--Valuable rights of the parties were involved, which could only be determined after framing of formal issues and recording of evidence of the parties--FAO was allowed--Case was remanded. [P. 92] B

Mr. Muhammad Ilyas Sheikh, Advocate for Petitioner.

Malik Shabbir Akhtar Awan, Advocate for Respondent No. 1.

Date of hearing: 15.3.2011.

Judgment

This judgment shall simultaneously dispose of Civil Revision No. 376/2008 and FAO No. 40/2010 as common questions of law and facts are involved therein.

1. Precisely stated the facts giving rise to the filing of these petitions are that the petitioner/appellant filed a suit for specific performance and permanent injunction against Respondent No. 1 alleging therein that on 13.1.2007, Respondent No. 1 entered into an agreement with the petitioner/appellant to sell his property, fully described in both the petitions, against a sale consideration price of Rs. 78,00,000/- (Rupees Seventy Eight Lacs), an earnest money of Rs. 10,00,000/- was paid by the petitioner/appellant and it was agreed between the parties that Respondent No. 1 will present the sale-deed for registration before the concerned authorities until 3.2.2007 and remaining consideration price will be paid at the time of registration before the Sub-Registrar concerned but Respondent No. 1 was avoiding the performance of sale agreement.

2. After service of notice, Respondent No. 1 alongwith his learned counsel appeared before the trial Court on 8.06.2007 and made a statement that he has compromised with the plaintiff and according to compromise, Defendant/Respondent No. 1 has received Rs. 10,00,000/- (Rupees ten lacs) and residual amount of 75,00,000/ (Rupees seventy-five lacs) will be paid by the plaintiff within 20 days, therefore, in the light of the statement of Respondent No. 1, the case of plaintiff be decreed. The Defendant/Respondent No. 1 also produced the original sale-deed in his name which was exhibited as Exh. D1. However, without decreeing the suit of the plaintiff, the case was adjourned to 15.6.2007. On the said date, Respondent No. 1 resiled from his previous stance and filed an application under Order I, Rule 10, C.P.C. in order to implead him as a party in the suit and also filed another application with the prayer that his earlier statement dated 8.6.2007 be declared ineffective and he be allowed to withdraw his admission and suit be decided on merit. Both the applications were resisted by the petitioner-appellant, however, vide order dated 10.07.2008, learned trial Court accepted both the applications. Hence the civil revision in hand was filed.

3. On 14.12.2009, Respondent No. 1 moved a petition under Order XXIII, Rule 3 read with Section 151 C.P.C. wherein a statement by special attorney of Respondent No. 1 in favour of the petitioner-appellant was recorded and the learned trial Court decreed the suit of the petitioner/appellant vide judgment and decree dated 21.12.2009 which was duly announced and signed. However, the same order was recalled by the learned trial Court vide subsequent order of even date. Hence the present FAO.

4. Learned counsel for the petitioner/appellant inter alia contends that the impugned orders are against law and facts. The learned trial Court acted with material irregularity while passing the impugned orders. Respondent No. 1 made a categorical statement before the learned trial Court and thereafter, the learned trial Court was obliged to pass a final decree under Order XII, Rule 6, C.P.C. He further contends that the learned trial Court had no jurisdiction to recall his earlier order i.e. judgment and decree after announcing and signing it. In support of his contentions, learned counsel has relied on 1990 CLC 1609, 2003 SCMR 1261, 2004 YLR 1775 and PLD 1983 Karachi 393. Learned counsel argues that after signing of judgment and decree, only appeal could have been preferred, and the learned trial Court had no jurisdiction to set aside its own judgment and decree merely on the basis of two miscellaneous applications, therefore, impugned order dated 10.07.2008 and also subsequent order dated 21.12.2009, whereby earlier judgment and decree of even date was recalled, be set aside and earlier judgment and decree dated 21.12.2009 be restored.

5. Conversely, learned counsel for Respondent No. 1 has vehemently opposed the Civil Revision as well as the FAO on the grounds that the general attorney appointed on behalf of Respondent No. 1 had joined hands with the petitioner/appellant who made a statement in his favour without obtaining permission from Respondent No. 1. Further contends that the petitioner/appellant has also not complied with the terms and conditions set forth between the parties for transfer of the suit property. The impugned orders passed by learned trial Court are just and fair. Learned counsel for Respondent No. 1 prays that the Civil Revision as well as FAO be dismissed and the impugned orders be maintained.

6. Arguments advanced by learned counsel for the parties have been heard and the record has also been perused.

7. So far as the contention of learned counsel for the petitioner/appellant that after categorical statement of Respondent No. 1, the learned trial Court was obliged to pass final judgment and decree under Order XII, Rule 6, C.P.C. is concerned, it does not persuade this Court because spirit of Order XII, Rule 6, C.P.C. is that if any party makes an unconditional conceding statement after being satisfied with the situation or terms and conditions of a compromise, the Court is bound to pass a decree but in the instant case, the facts were otherwise. Respondent No. 1 showed his lack of confidence in the attorney and at the same time, he filed an application under Order I, Rule 10, C.P.C. for impleading him as a party. He also raised a number of objections in this behalf. So, the provisions of Order XII, Rule 6, C.P.C. are not strictly attracted in the matter in hand. However, perusal of record highlights that vide judgment and decree dated 21.12.2009, learned trial Court decree the suit of the petitioner/plaintiff. The judgment was announced in open Court which was duly signed by the learned trial Court. The argument of learned counsel for the petitioner-appellant is correct to his extent that after signing of judgment and announcement of order, learned trial Court had left with no authority to recall the said order on the verbal request of other party. In this situation, Respondent No. 1 should have filed either an appeal under Order XLIII, Rule 1, C.P.C. or at least an application for review under Order XLVII, C.P.C. The learned trial Court has traveled beyond his jurisdiction because once Court/Judge signs and pronounces judgment in open Court, thereafter he ceases to exercise jurisdiction in the matter as he becomes functus officio, firm and unequivocal insistence of law particularly Order XX, Rule 5 and Order XLI, Rule 30 read with Section 30 CPC is with the object that while drawing a judgment, the Judge must apply his judicial mind with a reasonable depth so that points in controversy are fairly determined with reasons. Any alteration and amendment thereafter in the judgment is not permissible because such practice, if allowed, would bring the system of justice into disarray. Exceptions, however, is allowed by the law itself under the provisions of Sections 114, 12 & Order XLVII CPC.

8. The valuable rights of the parties are involved, which could only be determined after framing of formal issues and recording of evidence of the parties. Therefore, in the peculiar circumstances of this case, the civil revision in hand is dismissed while the FAO is accepted, the impugned judgment and decree dated 21.12.2009 and subsequent order dated 21.12.2009 are set aside and the case is remanded to the learned trial Court with the direction to decide the matter afresh after framing of issues and recording of evidence of the parties expeditiously. Parties are directed to appear before the learned trial Court on 4.4.2011.

(R.A.) Case remanded.

PLJ 2012 Lahore 93 (DB) [Multan Bench Multan]

Present: Ch. Muhammad Younis and Muhammad Yawar Ali, JJ.

ABDUL RAHEEM KHAN, EXECUTIVE MANAGER (OPERATION) MEPCO 1ST DIVISION, D.G. KHAN--Appellant

versus

MANAGING DIRECTOR PEPCO, WAPDA HOUSE, LAHORE and 2 others--Respondents

I.C.A. No. 203 in W.P. No. 7103 of 2011, decided on 20.6.2011.

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

----Ss. 3 & 4--Constitution of Pakistan, 1973, Art. 199--Pakistan WAPDA Employees E & D Rules, 1978, R. 6(1)--Intra Court Appeal--Civil servant was served with a final show-cause notice--No final order in disciplinary proceedings was initiated--Question of maintainability of writ petition--Determination--No final order was passed against civil servant and only initiation of disciplinary proceedings against civil servant were challenged--Held: Since no final order in disciplinary proceedings initiated against appellant was passed by competent authority it can safely be held that petition was filed u/Art. 199 of Constitution was not maintainable--ICA was dismissed. [P. 94] B

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Issuance of show-cause notice--Maintainability of petition--No merit writ petition u/Art. 199 of Constitution would not be maintainable against mere issuance of a show-cause notice since civil servant had been called upon to show-cause as to why he would not proceed against him. [P. 94] A

2001 PLC (CS) 939, rel.

Mr. Tahir Mehmood, Advocate for Appellant.

Date of hearing: 20.6.2011.

Order

This Intra-Court Appeal filed under Sections 3 & 4 of the Law Reforms Ordinance, 1972 is directed against an order dated 10.06.2011 passed by a learned Single Judge in Chamber.

1. Briefly stated the facts of the case necessary for the disposal of this appeal are that the appellant was issued a charge sheet on 07.07.2010 under Rule 6(I) of Pakistan WAPDA Employees E & D Rules, 1978. The appellant replied to the charge sheet on 04.08.2010 wherein he stated in clear terms that all the charges levelled against him were false and incorrect. A formal inquiry was instituted against the appellant in which the appellant was found guilty in 10 out of 12 allegations levelled against him as per report of Chief Engineer (P&E) MEPCO HQs Ltd. Multan dated 28.10.2010. Subsequently, the appellant was served with a final show-cause notice on 23.05.2011 which was impugned before the learned Single Judge in Chamber.

2. The learned counsel for the appellant submits that disciplinary proceedings have been initiated against the appellant with malafide intent. That earlier the appellant filed a writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 Bearing No. 412/2010 against an order passed by Respondent No. 2. This was felt ill by Respondent No. 2 and it is for this reason that disciplinary proceedings have been initiated against the appellant. There is no material available on the record which could form the basis for initiating disciplinary proceedings against the appellant. That due weight was not given to Memorandum No. 1998 dated 01.06.2011 issued by the Revenue Officer (P) MEPCO Limited 1st D.G.Khan wherein it was observed that eight out of twelve allegations levelled against the appellant did not relate to him.

3. We are afraid the contentions raised by the learned counsel for the appellant have no merit. This Court in Muhammad Akhtar Sherani & 35 others versus The Punjab Textbook Board, Lahore & 4 others (2001 PLC (CS) 939) has held that a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 would not be maintainable against mere issuance of a show-cause notice since the appellant has been simply called upon to show-cause as to why he should not be proceeded against. The august Supreme Court of Pakistan in Virasat Ullah versus Bashir Ahmad, Settlement Commissioner (Industries) & another (1969 SCMR 154) has also held that mere issuance of a notice by the settlement Commissioner calling upon the transferee to justify his transfer could not furnish the basis for filing a constitutional petition.

4. A bare reading of Writ Petition No. 7103-2011 impugned before us would show that no final order has been passed against the appellant and only initiation of disciplinary proceedings against the appellant were challenged. Since no final order in disciplinary proceedings initiated against the appellant has been passed by the competent authority it can safely be held that the petition which was filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 was not maintainable.

5. In this view of the matter, this Intra Court Appeal being without any substance is dismissed in limine.

(R.A.) I.C.A. dismissed.

PLJ 2012 Lahore 95 [Bahawalpur Bench Bahawalpur]

Present: Abdus Sattar Asghar, J.

BAKHT BEDAR ALI SHAH--Petitioner

versus

STATE and 5 others--Respondents

W.P. No. 3595 of 2011, decided on 4.7.2011.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 190, 435 & 439--Constitution of Pakistan, 1973, Arts. 175(3) & 199--Pakistan Penal Code (XLV of 1860), S. 336--Injury was declared as itlaaf-i-salahyyat-i-udu--Recommendation to cancal the case--Magistrate disagreed with cancellation report--Innocence or guilt of accused will be determined after recording of prosecution evidence--Revision was also dismissed--Challenged through constitutional petition--Before separation of judicial from executive magistrates used to try criminal cases as part of executive--Validity--An order passed by Executive Magistrate before taking cognizance u/S. 190, Cr.P.C. was considered an administrative and not a judicial order not revisable u/Ss. 435 & 439, Cr.P.C.--In changed state of affairs, an order passed by a judicial magistrate is to be considered a judicial act and thus revisable u/Ss. 435 and 439, Cr.P.C.--Legality and propriety of such an order can also be looked into by High Court u/Art. 199 of Constitution r/w S. 561-A, Cr.P.C.--Cancellation report falls within ambit of S. 173, Cr.P.C. therefore, Magistrate has power to agree or disagree with report u/S. 173, Cr.P.C. in exercise of his lawful authority. [P. 97] A, B & C

Criminal Procedure Code, 1898 (V of 1898)--

----S. 173--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Cancellation of FIR--Disagreed by Magistrate--Validity--Report u/S. 173, Cr.P.C. as to guilt or innocence of an accused person is a mere opinion of Investigating Officer certainly not binding upon the Court--Such a report u/S. 173, Cr.P.C. cannot be termed as an evidence. [P. 98] D

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1890), S. 336--Criminal Procedure Code, (V of 1898), Ss. 161 & 173--Constitutional petition--Injury was declared as itlaf-i-salahiyyat-i-udw--Cancellation report was submitted by SHO--Magistrate disagreed with cancellation report--Revision petition was also dismissed by Addl. Session Judge--Validity--Courts below had passed impugned orders after due application of judicial mind while taking into consideration the statements of complainant and PWs u/S. 161, Cr.P.C. as well as medicologal certificate of complainant wherein alleged injury was declared as itlaf-i-salahiyyat-i-udw attracting the offence u/S. 336, PPC--Attending circumstances innocence or guilt of accused can only be determined after recording evidence of the parties--Petition was dismissed in limine. [P. 98] E

Mian Mansoor Ahmad Sheikh, Advocate for Petitioner.

Date of hearing: 4.7.2011.

Order

Bakhat Bedar petitioner is one of the accused in case FIR No. 100/2009, dated 6.6.2009, under Section 336 PPC, Police Station Abe Hayat, District Rahimyar Khan. The said FIR was lodged on the complaint of Shamasuddin Gillani alleging that on 25.5.2009 he reached the Baithak of Bakhat Bedar on his call to resolve the dispute of the land and house between complainant's sister Mst. Makhdoom-un-Nisa, Sarfraz Hussain and Imtiaz where co-accused Sarfraz Hussain and Imtiaz were also present; that Sarfraz and Imtiaz caught hold of him whereas Bakhat Bedar gave a fist blow on the mouth of the complainant in result whereof his tooth was broken; that on his hue and cry PWs Liaqat Ali and Ramzan were attracted to the spot to his rescue and took him to Sheikh Zaid Hospital; that on 26.5.2009 he lodged an application to the District and Sessions Judge Rahimyar Khan for medical examination which was entrusted to the Ilaqa Magistrate and on the order of the Ilaqa Magistrate he was medically examined and as per report of the Dental Surgeon the injury was declared as Itlaaf-i-Salahyyat-i-Udw attracting the offence under Section 336 PPC. After registration of the case and investigation by the police the SHO submitted report dated 12.11.2009 under Section 173 Cr.P.C. to the Court of Ilaqa Magistrate with a recommendation to cancel the case on the grounds that as per investigation the alleged occurrence had never taken place rather the FIR was got registered on the basis of false and baseless concocted story and that the accused were innocent in the case. The learned Magistrate Section 30, Rahimyar Khan vide order dated 10.12.2009 disagreed with the cancellation report on the grounds that the complainant has strongly implicated the accused persons and is not satisfied with the investigation carried out by the police and has requested to call for prosecution evidence. In the above circumstances the learned Magistrate Section 30 opined that innocence or the guilt of the accused will be determined after recording the prosecution evidence therefore he ordered to summon the accused for trial.

1. Feeling aggrieved of the order dated 10.12.2009 passed by the learned Magistrate all the three accused preferred a revision petition under Sections 435 and 439 Cr.P.C. before the Additional Sessions Judge, Rahimyar Khan which was also dismissed on the ground that the complainant and his witnesses have got recorded their statements under Section 161 Cr.P.C. to support the prosecution version; that the MLC of the complainant is also available on the record which prima-facie supports the prosecution case and that in the attending circumstances innocence or otherwise of the accused can only be determined during the trial after recording the evidence. Learned Additional Sessions Judge finding no illegality in the order dated 10.12.2009 passed by the Magistrate dismissed the revision petition vide order dated 22.3.2011.

2. Bakhat Bedar one of the accused through the instant writ petition under Article 199 of the Constitution has called in question the orders dated 10.11.2009 passed by the Magistrate Section 30/Respondent No. 3 and order dated 22.3.2011 passed by the Additional Sessions Judge, Rahimyar Khan/Respondent No. 2 on the grounds that both the said orders are illegal, against law and facts, void, without lawful authority and liable to set aside. He has also sought a direction to Respondent No. 3 to accept the cancellation report under Section 173 Cr.P.C.

3. I have given patient hearing to the counsel for the petitioner and gone through the record with his able assistance.

4. The term Magistrate has been defined under clause (ma) of sub-section (1) of Section 4 of the Criminal Procedure Code, 1898, inserted vide Ordinance XVII of 2001 w.e.f. 14.8.2001. It means Judicial Magistrate and includes a Special Judicial Magistrate appointed under Sections 12 and 14 of the Code. The insertion of the above definition was made in the process of separation of Judiciary from the Executive in terms of Article 175(3) of the Constitution. Before separation of the Judiciary from the Executive, Magistrates used to try criminal cases as part of the executive. In that arrangement an order passed by an Executive Magistrate before taking cognizance under Section 190 Cr.P.C. was considered an administrative and not a judicial order not revisable under Sections 435 and 439 Cr.P.C. It was so observed in the case of Bahadar and another vs. The State and another (PLD 1985 SC 62). However, consequent upon the separation of Judiciary from the Executive and in view of the definition ofMagistrate' as quoted above, the situation now has changed. In the changed state of affairs w.e.f. 14.8.2001, an order passed by a Judicial Magistrate is to be considered a judicial act and thus revisable under Sections 435 and 439 Cr.P.C. Legality and propriety of such an order can also be looked into by the High Court under Article 199 of the Constitution read with Section 561-A, Cr.P.C. A cancellation report falls within the ambit of Section 173 Cr.P.C. therefore Magistrate has power to agree or disagree with the report under Section 173 Cr.P.C. in exercise of his lawful authority. It is also settled by now that a report under Section 173 Cr.P.C. as to the guilt or innocence of an accused person is a mere opinion of the Investigating Officer certainly not binding upon the Court. Such a report under Section 173 Cr.P.C. cannot be termed as an evidence. Reliance be made upon Muhammad Bashir vs. Station House Officer, Okara Cantt and others (PLD 2007 SC 539).

5. In the light of the above legal position perusal of both the impugned orders passed by the learned Magistrate and the learned Additional Sessions Judge makes it crystal clear that both the learned Courts have passed the impugned orders after due application of judicial mind while taking into consideration the statements of the complainant and the PWs under Section 161 Cr.P.C. as well as medico legal certificate of the complainant wherein the alleged injury is declared as Itlaf-i-Salahiyyat-i-Udw attracting the offence under Section 336 PPC. There is no cavil to the finding that in the attending circumstances innocence or the guilt of the accused can only be determined after recording evidence of the parties. I, therefore, do not see any illegality or misuse of authority in both the impugned orders.

6. In view of the above, there is no merit in this writ petition, which is dismissed in limine.

(R.A.) Petition dismissed.

PLJ 2012 Lahore 98 [Multan Bench Multan]

Present: Sagheer Ahmad Qadri, J.

NOOR AHMAD and another--Petitioners

versus

MUHAMMAD SHARIF--Respondent

C.R. No. 85 of 2003, decided on 4.4.2011.

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

----S. 13(3)--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Claimed as shafi-e-khaleet and shaif-i-shareek having superior right--Non-mention, time place and date--No suit for pre-emption was maintainable--Mandatory for pre-emptor to prove performance of talbs--No specific issue about performance of talbs was framed by trial Court--Validity--In a suit for pre-emption it is mandatory for pre-emptor to prove performance of three talbs, talb-i-muwathibat, talb-i-ishhad and talb-i-khusumat to exercise his right of possession through pre-emption--In the instant case as plaintiff did not mention details except date when allegedly came to know about sale through prosecution witnesses without giving other details, knowledge of date, time and place of majlis and then performance of talb-i-muwathibat requirement as now settled to be reflected from plaint was not fulfilled the suit was not proceedable. [Pp. 102 & 104] A & B

2008 SCMR 1682, PLD 2007 SC 302, PLD 2003 SC 315 & 2005 SC 977, ref.

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

----S. 13(3)--Suit for pre-emption--Claimed as shafi-e-khaleet and shaifi-i-shareek--Superior right--No specific issue about performance of talbs was framed by trial Court--Performance of talbs--No need to remand matter to trial Court such committed material illegality--Validity--If the case was remanded to trial Court for framing of specific issue regarding performance of talbs no useful purpose would be achieved as present scenario as performance of talb-i-muwathibat had not been proved in plaint was reflected from evidence led by plaintiff, therefore, suit must had to be dismissed and trial Court rightly dismissed the same--Revision was allowed. [P. 106] C

1993 SCMR 2018, ref.

Mian Habib-ur-Rehman Ansari, Advocate for Petitioners.

Mian Ahmed Hassan, Advocate for Respondent.

Date of hearing: 24.3.2011.

Judgment

Respondent-plaintiff Muhammad Sharif S/o Rehmat filed suit for possession through pre-emption in respect of 8 Kanalas of land detail of which is given in the head note of the plaint mentioning that it was purchased by the petitioners-defendants vide Mutation No. 2849 dated 30.1.1996 in consideration of Rs. 90,000/-, however, in order to defeat the right of pre-emption of the respondent-plaintiff the price of the land was shown as Rs. 2,00,000/-; that petitioners-defendants got the sale in secret and they did not get the possession of the land nor they issued any notice to the respondent-plaintiff in this respect; that the respondent-plaintiff for the first time on 8.5.1996 came to know about the sale in question through Muhammad Rafi S/o Rehmat and he immediately at that time, place and in the same Majlis showed his intention to pre-empt the sale as he was co-sharer in the khata thus having superior right qua the petitioners-defendants; that on the next day i.e. on 9.5.1996 the respondent-plaintiff sent notices of Talb-i-Ishhad through registered acknowledgement Receipts Nos. 975 & 976 to the petitioners-defendants showing his intention to pre-empt the sale which notice was witnessed by Ahmed Hassan S/o Naik Muhammad and Muhammad Rafi S/o Rehmat; that the respondent-plaintiff sought decree for possession through pre-emption as he claimed himself as Shafi-e-Khaleet and Shaif-i-Shareek having superior right then the petitioners-defendants. Prayed that the suit be decreed.

1. This suit was resisted by the petitioners-defendants through their written statement wherein they raised five preliminary objections about maintainability of the suit on the grounds of estoppel by his words and conduct, deficiency in Court fee as well as the suit was filed with malafide intention. On factual side the sale was admitted and stated that the land in dispute was purchased by the petitioners-defendants on 4.1.1996 from Muhammad Ali the vendor, paid the consideration amount and got the possession on the same day, however, the mutation was attested on 30.1.1996; that Rs. 2,00,000/- was paid with bonafides as the consideration amount of the land in question. Rest of the paras on factual side were denied by the petitioners-defendants and asserted that as the respondent-plaintiff himself participated in the sale and the land was sold with his consent, therefore, he had no right to claim superior right of pre-emption. They also denied that Talb-i-Muwathibat was performed in accordance with law. Prayed that the suit be dismissed.

2. Out of the divergent pleadings of the parties the learned trial Court framed the following issues:--

3. Whether the plaintiff is estopped by his own words and conduct for filing the suit? OPD.

4. Whether the suit is incorrectly valued for the purpose of Court fee and jurisdiction, if so, what is correct valuation? OPD.

5. What is the effect of preliminary Objection No. 3 of written statement, whether defendants are entitled to incidental charges of sale? OPD

6. Whether the plaintiff has a superior right of pre-emption qua vendee defendants? OPP

7. Whether the ostensible sale price of Rs. 2,00,000/- was fixed in good faith or actually paid by the vendee to the vendor? OPD

8. If Issue No. 5 is not proved, what was the market value of the suit property at the time of sale? OPP

9. Relief.

Parties were directed to lead their respective evidence. Respondent-plaintiff examined Muhammad Aqil as PW-1, Riaz Ahmed Record Keeper as PW-2, PW-3 Muhammad Rafi S/o Rehmat, PW-4 Ahmed Hassan S/o Naik Muhammad and the respondent-plaintiff himself appeared as PW-5. Learned counsel for the respondent-plaintiff closed his affirmative evidence after tendering in evidence Postal Receipts (Exh.P1 & Exh.P2), copies of the notices (Exh.P3 & Exh.P4) and copies of Register Haqdaran Zamin, etc. (Exh.P5 to Exh.P8). On the other hand, one of the petitioners-defendants, namely, Noor Ahmed appeared as DW-1 and his counsel while got exhibiting copies of Khasra Girdawari, Mutations, etc. (Exh.D1 to Exh.D5) closed his defence.

1. The learned trial Court after hearing both sides vide judgment and decree dated 20.12.2000 while deciding Issues No. 1 against the petitioners-defendants, Issues No. 2, 4 and 5 against the respondent-plaintiff while declaring the respondent-plaintiff having superior right qua petitioners-defendants but as Talb-i-Muwathibat' andTalb-i-Ishhad' were not proved as required under the provisions of Section 13(3) of the Punjab Pre-emption Act, 1991 dismissed the suit. Feeling aggrieved by that findings the respondent-plaintiff preferred an appeal which was heard and decided by the learned Additional District Judge, Multan vide judgment and decree dated 6.8.2002 whereby while setting aside the judgment and decree passed by the learned trial Court suit was remanded to the learned trial Court with a direction to frame specific issue on the performance of Talbs and to decide the matter afresh in accordance with law. Having dis-satisfied over the judgment and decree dated 6.8.2002 now the petitioners-defendants preferred this civil revision.

2. Learned counsel for the petitioners-defendants argued that no doubt a specific issue about performance of Talbs by the respondent-plaintiff was not framed by the learned trial Court but both sides knowingly led the evidence in this respect and the learned trial Court while deciding Issue No. 4 decided this question i.e. performance of Talbs and passed the findings against the respondent-plaintiff. Learned counsel referred Para-4 of the plaint wherein the respondent-plaintiff only mentioned that on 8.5.1996 he came to know about the sale through PW-3 Muhammad Rafi S/o Rehmat but no time, place as well as presence of the participants of the Majlis was disclosed. It is contended that as these details have not been disclosed by the respondent-plaintiff, therefore, his suit in the circumstances was not poceedable as both sides led extensive evidence about performance of Talb-i-Muwathibat' andTalb-i-Ishhad'. He submits that the learned trial Court thoroughly discussed this aspect under Issue No. 4, therefore, non-framing of any specific issue on this question is immaterial. Learned counsel argued that in the light of judgment passed by the Hon'ble Supreme Court of Pakistan in Muhammad Suleman Vs Shaukat Ali (2009 SCMR 678) and Haq Nawaz Vs Muhammad Kabir (2009 SCMR 630) the suit of the respondent-plaintiff was not proceedable as above mentioned details of the Talbs regarding date, time and place were not given in the plaint. Learned counsel further argued that non mentioning of these details itself is sufficient to dismiss the suit of the respondent-plaintiff. As far as non-framing of the particular issue is concerned learned counsel while referring judgment of the Apex Court in Fazal Muhammad Bhatti and another Vs Mst. Saeeda Akhtar and 2 others (1993 SCMR 2018) argued that as material controversy has been adverted to both the parties knowingly and was also discussed by the learned trial Court under Issue No. 4, therefore, there was no need to remand the matter to the learned trial Court thus committed material illegality. Prayed that this civil revision be allowed and the impugned judgment and decree passed by the learned appellate Court be set aside whereas the judgment and decree passed by the learned trial Court be restored.

3. On the other hand, learned counsel for the respondent-plaintiff has vehemently opposed this civil revision on the grounds that admittedly no specific issue was framed on performance of Talbs and as no such issue was framed, therefore, no evidence could have been led in this respect; that the learned appellate Court rightly remanded the matter to the learned trial Court. As far as other contentions raised by the learned counsel for the petitioners-defendants, while relying on Gul Nawaz Vs Gul Bazar and another (1996 MLD 1406), M.C.B. Vs Syed Ahmad Saeed Kirmani (1991 CLC 140), Budhoo Vs Liaqat Hussain and 18 others (1986 CLC 2958), M/s Choudhary Brothers Ltd., Sialkot Vs The Jaranwala Central Cooperative Bank Ltd., Jaranwala (1968 SCMR 804), Muhammad Akbar and others Vs Zohra Begum and others (1998 SCMR 724), Faqir Muhammad Vs Mst. Aziz Bibi and another (PLD 1978 Lahore 431), Fazal Mahmod and others Vs Tajar Khan (1992 MLD 1439) and Azizur Rehman Vs L.D.A (1985 CLC 2028) learned counsel for the respondent-plaintiff argued that Order XIV Rule 1 CPC clearly makes it imperative for the trial Court to frame necessary issues out of the controversial questions of law and facts between the parties to be decided and as no such procedure was adopted nor any issue was framed, therefore, the remand order passed by the learned appellate Court was perfectly lawful and justified. Prayed that this civil revision be dismissed.

4. I have heard the learned counsel for the parties and perused the record with their able assistance.

5. It is now settled that in a suit for pre-emption it is mandatory for the respondent/pre-emptor to prove performance of three Talbs i.e. Talb-i-Muwathibat',Talb-i-Ishhad' and Talb-i-Khusumat' to exercise his right of possession through pre-emption in respect of a sale. It is further settled by the authoritative pronouncements of Hon'ble Supreme Court of Pakistan that performance ofTalb-i-Muwathibat' while giving details of its performance i.e. date, time and place is to be given in the plaint and until and unless such details are provided in the plaint no suit for pre-emption is maintainable. In this respect judgment cited as Muhammad Iqbal Vs Ali Sher (2008 SCMR 1682), Mian Pir Muhammad and another Vs Faqir Muhammad through L.Rs, and others (PLD 2007 SC 302), Haji Muhammad Saleem Vs Khuda Bakhsh (PLD 2003 SC 315) and Fazal Subhan and 11 others Vs Mst. Sahib Jamala and others (PLD 2005 SC 977) can conveniently be referred. If the plaint in this case is seen the respondent-plaintiff Muhammad Sharif in para-4 specifically agitated that--

URDU

1. It is clear by mere reading of para-4 of the plaint above mentioned that the respondent-plaintiff only has given date. i.e. on 8.5.1996 when he came to know the sale in question through Muhammad Rafi S/o Rehmat. He did not mention the time, place and Majlis before whom he came into knowledge of the sale as well as performance of Talb-i-Muwathibat'. No doubt no specific issue was framed by the learned trial Court placing onus on the respondent-plaintiff to prove Talbs but if evidence led by him is seen he got examined Muhammad Rafi as PW-3 the alleged informer who informed him about the sale on 8.5.1996. This witness in his statement stated that on 8.5.1996 the petitioners-defendants came to get the possession of the disputed land and at that time Noor Ahmed, Muhammad Hussain, Muhammad Ali and Ahmed Hassan were also present and they disclosed that they had purchased the land and they were ploughing the field. In the meanwhile PW-4 Ahmed Hassan reached there and he disclosed to Muhammad Sharif, respondent-plaintiff that land has been sold in consideration of Rs. 90,000/- and Muhammad Sharif, respondent-plaintiff stated that he would pre-empt the sale having superior right. This witness although in his statement did not mention the time, however, during cross-examination he stated that it was 9.00 a.m. when the petitioners-defendants were ploughing the field and he informed Muhammad Sharif, respondent-plaintiff about the sale. Ahmed Hassan one of the witnesses as claimed by PW-3 Muhammad Rafi present at the spot appeared as PW-4 and he only gave date as 8.5.1996 and stated that the petitioners-defendants were ploughing the field when Muhammad Rafi informed Sharif that land has been sold. This witness during cross-examination throughout in his statement did not give time of performance ofTalb-i-Muwathibat'. PW-5 Muhammad Sharif, respondent-plaintiff also did not mention the time when he came to know about the sale of land and performance of Talbs. He even during cross-examination stated that--

Further during cross-examination he stated that--

1. If the notices of Talb-i-Ishhad (Exh.P3 & Exh.P4) are seen although these were denied by the petitioners-defendants that they ever received the same even otherwise if para-3 of the notices are seen it is specifically mentioned--

2. Thus the provisions of Section 13(2) of the Pre-emption Act, 1991 are not shown complied with by the respondent-plaintiff.

3. As already mentioned that now it has almost been settled by the Hon'ble Supreme Court of Pakistan that a pre-emptor must disclosed the date, time and place of pronouncement of Talb-i-Muwathibat' without any ambiguity until and unless such details are provided in the plaint the subsequent evidence to prove the performance ofTalb-i-Muwathibat' is not acceptable. Here in this case as respondent-plaintiff did not mention the details except the date when he allegedly came to know about the sale in question through PW-3 Muhammad Rafi and without giving other details i.e. knowledge of date, time and place of the Majlis and then performance of Talb-i-Muwathibat' the requirement as now settled to be reflected from the plaint is not fulfilled the suit is not proceedable. In a recent un-reported judgment of the Apex Court in Civil Petition No. 1137 of 2008 titled Mst. Asia Bano Vs Javed Akhtar their Lordships in the Hon'ble Supreme Court of Pakistan while discussing the judgments Muhammad Iqbal Vs Ali Sher (2008 SCMR 1682), Mian Pir Muhammad and another Vs Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302) held that in the eventuality if the above mentioned details of the performance ofTalb-i-Muwathibat' are not given in the plaint even the learned trial Court is not bound to allow the pre-emptor to lead any evidence in this respect and if any evidence is led it should not be looked into even by the appellate Court or by the High Court. The relevant Paragraph No. 4 of the judgment/order of the Apex Court is hereby reproduced for facility of reference:--

"The above mentioned shows that date, time and place of making of Talb-i-Muwathibat were not mentioned in the plaint and the time and place of making of Talb-i-Muwathibat were not stated even in the oral evidence produced by the respondent. It was held in Mian Pir Muhammad and another Vs Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302) Muhammad Iqbal Vs Ali Sher (2008 SCMR 1682) that the mentioning of date, time and place in the plaint of making of Talb-i-Muwathibat was mandatory and the omission to do so would be fatal to the pre-emptor's case. In the present case such details are totally lacking. Therefore, even if the petitioner/defendant had been proceeded ex-parte and was not before the trial Court, the respondent's suit could not have been decreed. In Muhammad Iqbal vs Ali Sher (supra) it was further held by this Court that in such a situation, the trial Court after examining the pleadings of the parties should not have allowed the plaintiff to lead the evidence on the facts not alleged by him in the plaint and even if the evidence was allowed to be recorded by the trial Court, it should not have been considered as evidence in the case by the appellate Court and the High Court."

1. As far as non-framing of the specific issue is concerned as already mentioned under Issue No. 4 both sides consciously led evidence to pove and dis-prove the factum of performance of Talbs and the judgment cited by the learned counsel for the petitioners-defendants Fazal Muhammad Bhatti and another Vs Mst. Saeeda Akhtar and 2 others (1993 SCMR 2018) their Lordships while discussing this aspect in para-4 of the judgment have specifically held:

"The pleadings and the issues as originally framed show that the parties were fully aware what was the subject matter of controversy and what evidence was to be led by each one. The Court did not prevent the parties from leading evidence at the trial with regard to the defects in the gift. The non framing of a specific issue in such circumstances is inconsequential. It was held by this Court in the Province of East Pakistan V. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82) that if issues are not framed but allegations made in the plaint are challenged in the written statement and the Court has allowed evidence to be led, then a decision rendered without framing of the issues is not illegal.That has been the established law in the sub-continent as would appear from Sayed Muhammad V. Fatteh Muhammad (22 Indian Appeals 4)."

1. In the light of above discussion if the case is remanded to the learned tria1 Court for framing of specific issue regarding performance of Talbs no useful purpose would be achieved as in the present scenario as the performance of Talb-i-Muwathibat has not been proved in the plaint nor reflected from the evidence led by the respondent-plaintiff, therefore, the suit must have to be dismissed and the learned trial Court rightly dismissed the same. Thus in order to save both sides from in consequential and futile practice and agony it is appropriate to allow this civil revision which is hereby allowed. The impugned judgment and decree dated 6.8.2002 passed by the learned appellate Court is hereby set aside and the judgment and decree dated 20.12.2000 passed by the learned Civil Judge 1st Class, Multan is restored whereby the suit filed by the respondent-plaintiff Muhammad Sharif was dismissed.

No order as to costs.

(R.A.) Revision allowed

PLJ 2012 Lahore 106 [Multan Bench Multan]

Present: Kh. Imtiaz Ahmad, J.

MUHAMMAD SHAFI and 4 others--Petitioners

versus

PROVINCE OF PUNJAB through DO(R) Dera Ghazi Khan and 13 others--Respondents

C.R. No. 202 of 2007, decided on 27.4.2011.

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

----O. VII, R. 11--Rejection of plaint--Plaint can be rejected if suit is barred by law. [P. 110] A

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

----S. 42--Suit for declaration--Illegal occupants--Question of maintainability--Plaintiffs were illegal occupants so, the suit against real owner was not competent u/S. 42 of Specific Relief Act. [P. 110] B

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

----O. VII, R. 11--Contents of plaint--Scope of--While applying the provisions of Order VII, Rule 11 of CPC, it is only contents of plaint which would be considered and in that behalf the defense put by other side was immaterial--If contents were presumed to be correct even then the suit was barred by law, the Court had powered to reject the plaint under Order VII, Rule 11 of CPC. [P. 110] C & D

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

----S. 42--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Suit for declaration--Predecessor of plaintiffs were awarded rights of ownership by Govt.--Patwari halqa without any order from competent authority transfered, rights to defendants which were ineffective upon rights of plaintiffs--Question of--Whether it is only a owner who is competent to file a suit--Determination--Possessory right--Validity--Declaration of right to any property could be sought only by its owner, position of a person in possession would be stronger--Possessory right of a person would confer on him a legal status except against true owner, if any which would be equivalent to legal character as envisaged u/S. 42 of Act, 1877--Suit for declaration and permanent injunction by a person not being an owner of property but only having possessory rights was maintainable--Revision was dismissed. [P. 110] E

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

----S. 53--Specific Relief Act, 1877, S. 42--Civil Procedure Code, (V of 1908), S. 115--Suit for declaration--Illegal occupant--Entries of possession upon disputed land was originally owned by Provincial Govt.--Illegal occupant cannot retain the possession--Possessory rights was eligible to file suit for declaration of his right to any property--Validity--A person who was aggrieved by an entry in record of rights and claimed right of which he was in possession could institute a suit for declaration of his right under Specific Relief Act--Plaintiffs had claimed right and possession of suit property and being aggrieved by entries in revenue record, provision of S. 53 would be attracted to facts and as such the suit filed by plaintiffs. [P. 110] F & G

2010 CLC Lah. 246 & 2010 CLC 120 Kar. Rel.

Mr. Muhammad Yafis Naveed Hashmi, Advocate for Petitioner.

Mr. Asmat Ullah Khan Niazi, Advocate for Respondents No. 5 and 6.

Date of hearing: 26.4.2011.

Judgment

Through the present civil revision the order dated 6.2.2007 passed by the learned Additional District Judge, D.G.Khan has been challenged whereby while accepting the appeal he remanded the case back to the learned Trial Court for its decision on merits.

1. The relevant facts for disposal of this petition are that present respondents filed a suit for declaration against the present petitioners with regard to the land fully mentioned in the head-note of the plaint. The claim of the plaintiffs was that the land in dispute was owned by the Provincial Government and was a barren land and according to the policy of the Government the predecessor of the plaintiffs were awarded rights of ownership since they had made the land cultivable after spending huge amount and there are their houses upon them and thus they have become owners of the land. It was further alleged that in the year 1972-73 the patwari of the village without any order from the competent authority transferred the rights to his brother Allah Ditta-Defendant No. 5 which were in-effective upon the rights of the plaintiffs, though, the plaintiffs remained in possession and the rights of the plaintiffs were never cancelled nor the defendants ever tried to interfere into the possession of the plaintiffs only for the reason that the forgery should not be discovered. It was- further alleged that due to said wrong entries the Defendant No. 5 transferred the land to Defendants No. 6 to 9 through Mutation No. 829 dated 30.03.2005 and the said transfer was only in papers and was without delivery of possession and when Defendants No. 6 to 9 declared themselves to be the owner of the property, so, the plaintiffs inquired and fraud came into the notice of the plaintiffs.

2. The suit was resisted by the defendants, who filed the written statement. During the pendency of the suit the defendants moved a petition under Order VII Rule 11 CPC to the effect that they had purchased the property through Mutation No. 829 from Allah Ditta and the plaintiffs were in possession of the land illegally and they had no cause of action and the suit was not maintainable.

3. The petition was resisted by the plaintiffs. The learned Trial Court after hearing the arguments came to the conclusion that in the revenue record the plaintiffs were shown to be as illegal occupants and cultivators and the plaintiffs had shown no document with regard to the proprietary rights while the defendants had purchased the property from Allah Ditta and since they were illegal occupants and cultivator, so the suit for declaration against the real owners was not maintainable, resultantly vide order dated 19.12.2006, the learned trial Court accepted the application under Order VII Rule 11 CPC and dismissed the suit.

4. The plaintiffs feeling aggrieved preferred the appeal which came up for hearing before the learned Additional District Judge, D.G.Khan. The learned Additional District Judge after hearing the parties came to the conclusion that the plaintiffs had filed the suit on the basis of their possession as occupiers i.e. on the basis of occupancy. He further observed that the disputed land was originally owned by Government of Punjab and it was for the plaintiffs to prove that on the basis of said occupancy they had become owners of the disputed land. He also observed that, though, in the revenue record the plaintiff's had been mentioned as illegal occupiers but infact the plaintiffs had challenged the said entries in the revenue record nor it was their claim that they were in illegal possession of the disputed plot but their claim was that they were occupancy tenants and hence the suit was very much competent under Section 42 of the Specific Relief Act, 1877, resultantly vide impugned order dated 6.2.2007 the case was remanded back to the learned Trial Court after accepting the appeal. This order of learned Additional District Judge, D.G.Khan has been challenged in the present Civil Revision.

5. Learned counsel for the petitioners contended that admittedly it stands established from the revenue record that the plaintiffs were illegal occupants while the revenue record shows that the petitioners are real owner and so illegal occupants had no locus standi to file a declaratory suit against the real owners, so, the findings of learned Additional District Judge are erroneous that the suit was competent. He has placed reliance upon the case law captioned "Capt.Dr.Abdul Wahab Vs. Province of Punjab and another" {1986 MLD 2049 (Lahore)} wherein it was held while interpreting the provision of Order VII Rule 11 CPC that the Court has inherent jurisdiction to nip a incompetent suit at earliest moment. The reliance was also placed upon the case law captioned "Hawaldar Sarwar Khan through General Attorney Vs. Province of Sindh, Revenue Department through Deputy Commissioner, Shikarpur and 5 others" {1998 CLC 382 (Karachi)} wherein it was held that the Court was duty bound to bury incompetent plaint in its infancy.

6. On the other hand, learned counsel for the respondents supported the impugned order of learned Additional District Judge and contended that even the revenue record shows that there are long standing entries of possession of respondents upon the disputed land which was originally owned by the Provincial Government. He contended that for such a long period from time of predecessors of the plaintiffs the illegal occupants cannot retain the possession. He contended that this fact itself shows that the possession of plaintiffs was peaceful as occupancy and they had become owner of the property under the law. He further contended that even if for argument sake it be presumed that the plaintiffs were not the owners even then the person having possessory rights is eligible to file a suit for declaration of his right to any property, though, he may not be the owner of property. In this behalf he placed reliance upon the case law captioned "Karam Din through L.Rs and others Vs. Muhammad Idrees" {2010 CLC 246 (Lahore)}, "Mst. Safia Mushtaq Vs. Wali Muhammad and 18 others" {2010 CLC 120 (Karachi)}.

7. Arguments heard. Record perused.

8. The provisions of Order VII Rule 11 CPC do provide that the plaint can be rejected if the suit is barred by law. The learned Trial Court on the basis of entries in the revenue record came to the conclusion that the plaintiffs were illegal occupants so, the suit against the real owner was not competent under Section 42 of the Specific Relief Act. It is also settled law that while applying the provisions of Order VII Rule 11 CPC it is only the contents of the plaint which should be considered and in this behalf the defense put by the other side is immaterial. If after going through the contents of the plaint the Courts come to the conclusion that if the contents are presumed to be correct even then the suit is barred by law, the Court has the power to reject the plaint under Order VII Rule 11 CPC. In the present case the stand of the plaintiffs was that they from the time of their predecessor were occupying the land as occupancy tenants which was barren land and their predecessor made it cultivable after spending huge amount and through operation of law they had become owner. They had also challenged the entries in the revenue record. The revenue record at initial stage produced by the parties was taken into consideration by both the Courts below which clearly establishes that land is in possession of the plaintiffs. Mere mentioning them to be the illegal occupants in the revenue record does not negate their claim that as to why for such a long time they remain illegal occupants. The only question for determination is that whether it is only a owner who is competent to file a suit under Section 42 of the Specific Relief Act, the answer is certainly no. Section 42 of the Specific Relief Act, 1877 did not postulate that declaration in respect of right to any property could be sought only by its owner, position of a person in possession would be stronger. Possessory right of a person would confer on him a legal status except against true owner, if any, which would be equivalent to legal character as envisaged under Section 42 of the Act, 1877. In this way suit for declaration and permanent injunction by a person not being an owner of property but only having possessory rights is maintainable. Under provisions of Section 53 of the West Pakistan Land Revenue Act, 1967 a person who was aggrieved by an entry in the record of rights and claimed right of which he was in possession could institute a suit for declaration of his right under Specific Relief Act, 1877. Since in the present case the plaintiffs had claimed right and possession of suit property and being aggrieved by the entries in the revenue record, provisions of Section 53 of the West Pakistan Land Revenue Act, 1967 would be attracted to the facts and circumstances of the case and as such the suit filed by the plaintiffs was not barred by law in the circumstances.

9. In view of what has been said above, I am of the considered opinion that the learned Additional District Judge, D.G.Khan vide impugned order had committed no illegality by remanding the case back to the learned trial Court for its decision on merits.

10. The net result of above discussion is that this civil revision has no force and same stands dismissed.

(R.A.) Revision dismissed

PLJ 2012 Lahore 111 [Rawalpindi Bench Rawalpindi]

Present: Ch. Muhammad Tariq, J.

SHAHNAZ AKHTAR etc.--Petitioners

versus

RIAZ HUSSAIN etc.--Respondents

C.R. No. 658 of 2002, heard on 22.3.2011.

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

----S. 115--Civil revision--Joint property--Suit land had been partitioned and possession of co-sharers were delivered--Neither exhibited the order of partition nor copy of Roznamcha Waqiati showing delivery of possession, nor plaintiff produced tatimma--Validity--Relied document was not signed by revenue officer or any other competent authority--Entries on mutation were also not countersigned by competent authority--Mere entry in Registrar of mutations did not have any sanctity in eyes of law--Respondents had failed to prove that the suit land was partitioned and possession of land was handed over to predecessor in interest--Revision was accepted. [P. 113] A & B

Sh. Zameer Hussain, Advocate for Petitioners.

Mr. Muhammad Noman Munir Paracha, Vice-Counsel for Respondents.

Date of hearing: 22.3.2011.

Judgment

This instant Civil Revision has been directed against the judgment and decree dated 24.07.2002 passed by Mr. Muhammad Mahmood Chaudhry, learned District Judge, Chakwal who accepted the appeal of the respondents, set aside the judgment and decree dated 21.09.2001 passed by Ch. Abdul Haq, learned Civil Judge 1st Class, Chakwal and deereed the suit of respondents-plaintiffs.

1. Precisely stated the facts leading to the filing of this civil revision are that Ghulam Haider, predecessor in interest of the respondents, instituted a suit for decree for possession against Hayat Muhammad and Muhammad Iqbal, predecessor in interest of petitioners-defendants alleging therein that 13 kanals & 14 marlas of land from Khasra No. 9882/2107 of Khewat-Khatooni No. 837/1572, located in village Bhaun was originally owned by both the parties. Partition took place. Mutation of Partition No. 5221 was accordingly sanctioned and 6 kanals and 19 marals of land was handed over to the plaintiff. The predecessor of respondents remained in possession. Later on, petitioners-defendants illegally dispossessed the predecessors of respondents and occupied the land.

2. The suit was contested by the petitioners. After framing of issues and recording of oral as well as documentary evidence of the parties, the learned trial Court vide judgment and decree dated 21.09.2001 dismissed the suit of the respondents-plaintiff. Feeling aggrieved, the respondents filed an appeal which was allowed on 24.07.2002 by the learned District Judge, Chakwal. Hence this Civil Revision.

3. Learned counsel for the petitioners inter alia contends that admittedly, the suit property is joint amongst the petitioners and the respondents. But the learned first appellate Court has erred while holding that the suit land has been partitioned and respective possession of co-sharers has been delivered to the respondents. Learned counsel further avers that the impugned judgment and decree is against the law and facts which is fanciful and has been passed in a hasty manner without going through the documentary evidence adduced by the parties. Learned counsel further contends that there is no such evidence on record that after the so-called partition, the possession of land was handed over to the respondents, therefore, the civil revision be accepted, the impugned judgment and decree be set aside and the judgment and decree passed by learned trial Court dated 21.09.2001 be restored.

4. On the contrary, learned counsel for the respondents has vehemently opposed this civil revision on the grounds that previously, the suit land was joint amongst the petitioners and the respondents. Thereafter, the suit for partition of joint holding was filed before the revenue Court who after decreeing the suit in favour of the respondents, prepared ` ' and after adopting due course of law, handed over the possession of suit land to the respondents. Further contends that there is no illegality in the impugned judgment. The names of respondents have already been incorporated in the revenue record, therefore, the civil revision be dismissed with costs throughout.

5. The arguments advanced by learned counsel for the parties have been heard and the record available on file has also been perused.

6. According to Register Haqdaran Zameen for the year 1979-80, the suit land Measuring 13 Kanals 14 Marla bearing Khasra No. 9882/2107/2, Khatooni No. 837/1572 situated in the revenue estate Bhaun, District Chakwal was joint property between the petitioners and the respondents. The suit filed by Ghulam Haider for possession on the ground that he was in exclusive possession of his share after partition was initially dismissed by the learned trial Court. However, in appeal, the suit of respondents was decreed.

7. During the course of arguments, learned counsel for the respondents was repeatedly asked to produce any documentary evidence showing that the suit land was partitioned in their favour or possession was delivered to Ghulam Haider deceased but the learned counsel for the respondents has badly failed to produce any such document.

8. Perusal of record highlights that during the evidence, the respondents-plaintiff neither exhibited the order of partition nor copy of Roznamcha Waqiati showing the delivery of possession to the predecessor-in-interest of the respondents, nor the plaintiff produced "Tatimma" made in favour of the plaintiff as a result of partition. Learned counsel for the respondents has relied more on ` ' but this document is not signed by the revenue officer or any other competent authority. Similarly, the entries on the mutation were also not countersigned by the competent authority. Mere entry in Register of Mutations does not have any sanctity in the eye of law. Exhibit P1 to Exh. P5 do not disclose that the plaintiff, predecessor-in-interest of the respondents, was delivered possession as a result of decree for possession. Further, contents of Exh.P1 itself rebuts the contentions of the plaintiff made in the plaint, as according to the heading of the plaint, plaintiff Ghulam Haider had claimed that he is owner of land Measuring 6 Kanal 19 Marla in the suit Khasra number while according to Exh. P1, Hayat Mahmood has been shown as owner of 68 shares while Ghulam Haider owner of 16 shares out of total 96 shares. Exh. P1 itself is sufficient for rebuttal of contentions of learned counsel for the respondents-plaintiff.

9. The upshot of whole discussion is that the respondents have failed to prove that the suit land was partitioned and the possession of land was handed over to Ghulam Haider, predecessor-in-interest of the respondents. Resultantly, the civil revision in hand is accepted, the impugned judgment and decree dated 24.07.2002 passed by learned first appellate Court is set aside and the judgment and decree dated 21.09.2001 passed by learned trial Court is restored.

(R.A.) Revision accepted

PLJ 2012 Lahore 114

Present: Syed Mansoor Ali Shah, J.

MANSOOR AHMAD--Appellant

versus

NUSRAT MALIK and another--Respondents

S.A.O. No. 25 of 2011, decided on 12.5.2011.

West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

----S. 13--Eviction petition--Shop was required on basis of bona fide personal need of their son--Petition was accepted--Appeal was also dismissed--Challenge to--Bona fide personal need was not established--Validity--While it was choice of landlord to select a shop for his personal use, it was also mandatory that landlord gave a satisfactory explanation why he preferred the shop over a similar shop already in his possession or for that matter any other shop of the same category--Plausible and convincing explanation were required of landlord in making his selection--Such stems from good faith requirement prescribed by S. 13 of Ordinance, 1959--Respondent had failed to establish bona fide personal need for business of their son in presence of vacant shop already in possession of respondent--Appeal was allowed. [P. 116] A & B

2006 SCMR 152, 2009 CLC 1241 & PLD 2004 SC 413, rel.

Mr. Muhammad Saeed Anjum Khokhar, Advocate for Appellant.

Mr. Muhammad Shafique Awan, Advocate for Respondents.

Date of hearing: 12.5.2011.

Order

Brief facts of the case are that respondents filed an eviction petition under Section 13 of Urban Rent Restriction Ordinance, 1959 ("Ordinance") in the year 2006 regarding Shop No. 4 situated at 133/4 Temple Road, Lahore against the appellant. The sole ground agitated under Section 13(3)(ii)(a) of the Ordinance was that the shop was required in good faith for the use of their son namely Sarosh Malik. The eviction petition was accepted vide order dated 29.11.2010 by the Special Judge (Rent), Lahore. The appellant preferred an appeal which was dismissed vide order dated 28.03.2011, hence the instant second appeal against the impugned orders.

1. The sole contention of the learned counsel for the appellant is that respondents already have a vacant shop (Shop No. 2) of the same size and almost adjacent to the shop in question and therefore, bona fide personal need is not established. It is contended that no reason has been forthcoming why respondents do not wish to use the adjacent vacant shop and placed reliance on Allies Book Corporation through L.Rs. v. Sultan Ahmad and others (2006 SCMR 152), Wali Muhammad and another v. Haji Nasaruddin and another (2009 CLC 1241), and Muhammad Iqbal Chaudhry and another v. Secretary Ministry of Industries and Production, Government of Pakistan and others (PLD 2004 S.C. 413) in support of his contention.

2. Learned counsel for the respondents on the other hand, submits that it is the prerogative of the landlord to select the required shop for his personal need and placed reliance on Muhammad Tayyub v. Syed Abdul Habib (2002 SCMR 1320) and Ghulam Ali and 4 others v. Muhammad Shafi and 2 others (1983 CLC 1418) in support of his contention.

3. Arguments heard. Record perused.

4. The eviction petition set up by respondents is solely on the basis of the bona fide personal need of their son. The eviction petition states that Shop No. 2 is already vacant for several years but is not sufficient for business of their son. I have gone through the statements of Respondent No. 1 and her son (AW-2 and AW-3), as well as, perused Ex.A-1 which is the map of the area showing the shops in question to be almost adjacent and in the same area. No where in evidence have respondents explained why Shop No. 2 is insufficient for the business of their son who seems to be unemployed for the last few years after returning from Canada. The evidence however reveals that some other shops on the first floor of the premises are also vacant for the last several years. On the whole no reason worth consideration has been placed on the record to show why Shop No. 2 or vacant Shops on the first floor have not been put to use by the son of the respondents. There is no evidence to show the proposed nature of business for which Shop No. 2 is insufficient. According to the Map, (Ex.A/1) Shop No. 4 which is almost adjacent to Shop No. 2 is of the same size with Shop No. 3 in between. Therefore, it does not appeal to logic how Shop No. 2 is insufficient while Shop No. 4 is adequate for the same business. Reliance with advantage is placed on Allies Book Corporation through LRs. v. Sultan Ahmad and others (2006 SCMR 152) wherein Saiyed Saeed Ashhad, J. speaking on behalf of the Supreme Court of Pakistan, said:--

"13. We are mindful of the settled law that it is the prerogative of the landlord to choose a particular house, shop or building for his bona fide personal occupation and use in case the landlord has more than one premises but for exercising such prerogative it is the duty of the landlord to give plausible and satisfactory ground/explanation for his insistence to occupy a particular premises in preference to occupy any other premises available for occupation and use." (emphasis supplied)

1. I also place reliance with advantage on Wali Muhammad and another v. Haji Nasaruddin and another (2009 CLC 1241) wherein Baluchistan High Court dismissed the eviction petition as no explanation was offered by the landlord, who being in possession of two shops already, failed to show why shop in dispute was further required for the personal use by his son.

2. It, therefore, transpires that while it is the choice of the landlord to select a shop for his personal use, it is also mandatory that the landlord gives a satisfactory explanation why he prefers the shop in question over a similar shop already in his possession or for that matter any other shop of the same category.

3. Plausible and convincing explanation are required of the landlord in making his selection. This stems from "good faith" requirement prescribed by Section 13 of the Ordinance.

4. For the above reasons, respondents have failed to establish bona fide personal need for the business of their son in the presence of the vacant Shop No. 2 already in possession of respondents. I, therefore, allow this appeal and set aside the impugned orders to the extent of Issue No. 1 relating to bona fide personal need. No arguments were levelled by the learned counsel for the appellant regarding Issue No. 2 which has already been decided against the appellant and is, therefore, maintained.

(R.A.) Appeal allowed

PLJ 2012 Lahore 116 [Bahawalpur Bench Bahawalpur]

Present: Abdus Sattar Asghar, J.

MUHAMMAD BASHIR ABBASI, EXECUTIVE ENGINEER--Petitioner

versus

SECRETARY GOVT. OF PUNJAB IRRIGATION & POWER DEPARTMENT, LAHORE--Respondent

W.P. No. 1959 of 2011, decided on 2.6.2011.

Punjab Employees Efficiency, Discipline & Accountability Act, 2006--

----S. 13(4)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Remedy before Punjab Service Tribunal--Authority traveled beyond his jurisdiction while issuing show-cause notice--In absence of final order, petitioner could not avail remedy before service tribunal--Show-cause cum personal hearing notice--Validity--Issuance of the show-cause notice u/S. 13 (4) of PEEDA Act, 2006 was an excessive exercise of jurisdiction vested in authority--Impugned show-cause notice u/S. 13(4) of PEEDA Act, was illegal and without lawful authority--Petition was accepted. [Pp. 118 & 119] A

Ch. Permoon Bashir, Advocate for Petitioner.

Mehr Muhammad Iqbal, AAG for Respondent.

Date of hearing: 2.6.2011.

Order

Muhammad Bashir Abbasi, petitioner being aggrieved of show-cause notice dated 08.4.2011 issued by the respondent against him has impugned it by invoking the constitutional jurisdiction of this Court on the grounds that since he had been exonerated by the inquiry officer, therefore, respondent i.e. Authority has traveled beyond his jurisdiction while issuing show-cause notice, which is illegal and liable to set aside. He has further alleged that in absence of final order, petitioner cannot avail remedy before the Punjab Service Tribunal, hence, this petition.

1. Respondent was directed to submit parawise comments, which have been lodged on 21.5.2011 containing preliminary objections that the petition is premature and not maintainable in the eyes of law as the competent authority on receipt of inquiry report issued show-cause notice dated 08.4.2011 and the officer was bound to submit his reply to the competent authority but he did not submit his reply to the concerned quarter. While replying on facts it is contended that show-cause-cum-personal hearing notice was served to the petitioner in terms of Section 13(4) of the PEEDA Act, 2006.

2. Arguments heard. Record perused.

3. Perusal of text of impugned show-cause-cum-personal hearing notice reveals that the respondent, as competent authority after perusal of the inquiry report and other record, for reasons differed with the findings and recommendations of the inquiry officer and thus in exercise of the powers under Section 13(4) of the PEEDA Act, 2006 issued the impugned notice to show-cause within seven days of the receipt of this notice as to why the penalties provided under section 4 of the Act (ibid) may not be imposed against him. He was further allowed to submit additional defence if any in writing.

4. Bare reading of Section 13(1) of the Act (ibid) makes it crystal clear that on receipt of record from the inquiry officer or inquiry committee as the case may be the competent authority shall examine the record and the relevant case material and determine whether the inquiry was conducted in accordance with the provisions of this Act, therefore, in the light of the above referred provision arguments of learned counsel for the petitioner that since he has been exonerated by the inquiry officer as charges were not proved against him, therefore, his case falls under subsection (3) of Section 13 of the Act (ibid) is devoid of any force. The word "shall" used in subsection (1) makes this provision mandatory for the authority. It empowers the authority to examine and decide whether the inquiry has been conducted in accordance with the provisions of this Act. Subsection (3) of Section 13 of the Act (ibid) provides that where charges have not been proved the competent authority shall exonerate the accused by passing an order in writing. The provision under subsection (3) of Section 13 of the Act (ibid) is not disjunctive of the provision of subsection (1) of Section 13 of the Act (ibid). Therefore, I am of the considered view that petitioner's case do not fall in the ambit of subsection (3) or (4) of Section 13 of the Act (ibid) rather it attracts provisions of subsection (6) of Section 13 of the Act (ibid), which is reproduced hereunder for ready reference:--

"----(6) Where the competent authority is satisfied that the inquiry proceedings have not been conducted in accordance with the provisions of this Act or the facts and merits of the case have been ignored or there are other sufficient grounds, it may, after recording reasons in writing, either remand the inquiry to the inquiry officer or the inquiry committee, as the case may be, with such directions as the competent authority may like to give, or may order a de novo inquiry."

1. Accumulative reading of subsection (1) and subsection (6) of Section 13 of the Act (ibid) makes it crystal clear that in the circumstances of instant case respondent being Authority should have proceed in terms of subsection (6) of Section 13 of the Act (ibid) instead of issuing impugned show-cause notice in terms of Section 13(4) of the Act (ibid).

2. Nutshell of the above discussion is that the issuance of the impugned show-cause notice under Section 13(4) of the Act (ibid) is an excessive exercise of jurisdiction vested in the Authority/respondent. In the circumstances of this case impugned show-cause notice under Section 13(4) of the Act (ibid) is illegal and without lawful authority resultantly, this writ petition is accepted and the impugned show-cause notice dated 08.4.2011 is set aside. However, this order will not be a hindrance in exercise of powers vested in the Authority under Section 13(1) & (6) of the PEEDA Act, 2006.

(R.A.) Petition accepted

PLJ 2012 Lahore 119 [Bahawalpur Bench Bahawalpur]

Present: Abdus Sattar Asghar, J.

MUHAMMAD ZAFAR (ELECTRICIAN), MARKET COMMITTEE, AHMEDPUR EAST, BAHAWALPUR--Petitioner

versus

ADMINISTRATOR, MARKET COMMITTEE, AHMEDPUR EAST DISTRICT BAHAWALPUR and another--Respondents

W.P. No. 2576 of 2011, decided on 12.7.2011.

Constitution of Pakistan, 1973--

----Art. 199--Punjab Agricultural Produce Markets (General) Rules, 1973 R. 70(2)(4)--Constitutional petition--Petitioner was appointed as electrician in market committee--Dismissed from service in lieu of possessing bogus diploma instead of original copy of diploma--Challenge to--Validity--Being fully aware of qualification clause for recruitment of electrician himself appointed the petitioner as electrician about 18 years back on basis of copy of diploma produced by them duly issued by D.M.T.C. Program Punjab--Held: If any irregularity was committed he would have blamed himself instead of issuing impugned order of dismissal of service against the petitioner--Once petitioner's produced certificate having been accepted as valid, proper and equallent to that as required the same cannot be questioned after eighteen years of his service--Even in show-cause notice issued before passing the order of dismissal, his qualification and experience as electrician was neither termed as insufficient nor defective--Matter being a past and closed transaction cannot be re-opened after eighteen years--Action of administrator was, therefore, not sustainable in eyes of law--Petition was allowed. [Pp. 121 & 122] A & B

2006 SCMR 678 & 2001 TD Service 56, rel.

Mr. Shabbir Ahmed Bhutta, Advocate for Petitioner.

Mehr Muhammad Iqbal, Assistant Advocate General and Mr.Mumtaz Hussain Bazmi, Advocate for Respondents.

Date of hearing: 12.7.2011.

Order

Muhammad Zafar petitioner was appointed as Electrician in BPS-5 with usual allowances on regular basis against a vacant post vide order dated 01.3.1993 issued by Administrator Market Committee Ahmedpur East in exercise of powers conferred upon him under Rule 70(2)4 Schedule-B of the Punjab Agricultural Produce Markets (General) Rules, 1979. He has been serving on the said post for long 18-years when served with a Show-Cause Notice No. 1282 dated 20.1.2011 requiring him to deposit his original Diploma in the Office. On submission of reply to the show-cause notice he was served with another Show-Cause Notice No. 284 dated 29.4.2011 indicating that he was required to produce the Diploma of Electrician issued by Board of Technical Education Punjab but he has provided photocopy of a certificate issued by Dehi Mazdoor Training Center, Allahabad, which fails to fulfill the requisite qualification for the post of Electrician as stipulated in Schedule-B of Rule 70(2)4 Punjab Agricultural Produce Markets (General) Rules 1979. Through the above said notice he was provided last opportunity to produce the requisite diploma within seven days otherwise his services will be terminated. The said Show-Cause Notice No. 284 dated 29.4.2011 was called in question by the petitioner through Writ Petition No. 2378-2011/BWP, which was disposed of vide order dated 09.5.2011 with a direction to the respondents that while deciding the petitioner's case his objections be considered by providing opportunity of hearing.

1. In sheer disregard to the above direction, Administrator Market Committee, Ahmedpur East vide order of the same date i.e. 09.5.2011 dismissed the petitioner from services in lieu of possessing bogus Diploma instead of original copy of the Diploma issued from the Board of Technical Education Punjab. The petitioner has impugned the above order dated 9.5.2011 of his dismissal from service through this writ petition invoking jurisdiction under Article 199 of the Constitution through this writ petition on the grounds that he had obtained the Diploma from Dehi Mazdoor Training and Credit Programme Punjab Small Industries Corporation as skilled worker in the trade of Electrician, therefore, his appointment was genuine and if any irregularity has been made by the Authority the petitioner cannot proceed on this ground; that he is not guilty of any misconduct during his service period; that impugned order of dismissal is illegal and without lawful authority and liable to set aside.

2. Respondents in their comments raised preliminary objection regarding maintainability of this writ petition in terms of bar under Article 212 of the Constitution as well as non-availing the alternate remedy i.e. departmental appeal against the impugned order before the Appellate Authority i.e. Respondent No. 2.

3. I have given patient hearing to learned counsel for the parties, learned Assistant Advocate General and also gone through the record.

4. At the outset as regards preliminary objection of the respondents about jurisdiction of the High Court suffice to say that it has already been settled in the case of Qazi Akhtar Ali Secretary Market Committee Bhalwal, District Sargodha Vs. Director of Agriculture (Economics & Marketing) Punjab, etc. (2001 TD (Service) 56). In the above cited case it was held that employees of the Market Committee cannot be said to be employees of Provincial Government nor can they be said to be holding a post in connection with the affairs of the Province. As such, they were not civil servants and cannot invoke the jurisdiction of Service Tribunal. With the above observation the writ was issued in favour of the petitioner Qazi Akhtar Ali. In the light of the above referred dictum, instant writ petition under Article 199 of the Constitution is maintainable.

5. Coming to the facts of the case, at the outset an extract of serial No. 13-A of Schedule B of Rule 70(2)(4) of the Punjab Agricultural Produce-Markets (General) Rules, 1979 is reproduced below for ready reference:--

Sr. Name of Appointing Minimum qualifications Method of No. the Post authority for appointment by recruitment with scale Initial Promotion recruitment

1 2 3 4 5 6

13-A Electrician Market Middle -- By initial Committee with one recruitment year's certificate issued by Board of Technical Education, Punjab

Respondent No. 2 in parawise comments has categorically admitted that Administrator Market Committee Ahmedpur East/ Respondent No. 1 is a competent authority for appointment of the petitioner under Rule 70(2)(4) B of PAPM (G) Rules, 1979.

1. It is, therefore, obvious that Respondent No. 1 being fully aware of the qualification clause for recruitment of the Electrician as mentioned above himself appointed the petitioner as Electrician about 18 years back vide appointment Letter No. 550-52 dated 01.3.1993 on the basis of copy of Diploma produced by them duly issued by Dehi Mazdoor Training and Credit Programme Punjab Allahabad. Therefore, if any irregularity was committed he should have blamed himself instead of issuing impugned order of dismissal of services against the petitioner. Reliance be made upon Province of Punjab through Secretary, Agriculture, Government of Punjab and others Vs. Zulfiqar Ali (2006 SCMR 678).

2. Certainly it was incumbent upon the appointing Authority to apply his conscious mind while scrutinizing the petitioner's application and antecedents before issuing the appointment letter in his favour. Once petitioner's produced certificate having been accepted as valid, proper and equallent to that as required the same cannot be questioned after eighteen years of his service. Even in the show-cause notice issued before passing the impugned order of dismissal, his qualification and experience as Electrician was neither termed as insufficient nor defective. The matter being a past and closed transaction cannot be re-opened after eighteen years. The impugned action of the respondents is, therefore, not sustainable in the eye of law.

3. In view of the above facts and reasons the impugned dismissal order dated 09.5.2011 is declared illegal, void and ineffective against the rights of the petitioner. The same is, therefore, set aside. This writ petition is allowed accordingly.

(R.A.) Petition allowed

PLJ 2012 Lahore 122 [Bahawalpur Bench Bahawalpur]

Present: Abdus Sattar Asghar, J.

PROJECT DIRECTOR & GENERAL MANAGER ADAM SUGAR MILLS LTD. CHISTIAN, DISTRICT BAHAWALNAGAR--Petitioner

versus

RANA TAHIR PERVAIZ and 2 others--Respondents

W.P. No. 1488 of 2011, decided on 15.7.2011.

Industrial Relations Ordinance, 1969 (XXIII of 1969)--

----Ss. 25-A, 26, 28 & 47--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, O. 12(3)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition against orders passed by Punjab Labour Court and Appellate Tribunal whereby respondent was reinstated in service--Services were terminated--Having status of worker under labour law he was chairman of employees union--Industrial disputes--Conciliation proceedings were pending before conciliator for settlement--Proceedings of charge sheet was stayed with direction to mills that no adverse action would be taken against respondent--Mills issued dismissal order which was outcome of victimization--Labour Court accepted petition--Violation of S. 47 of IRO, 1969 as well as in violation of injuctive order--Concurrent findings--Challenge to--During pendency of conciliation proceedings before conciliator CBA union apprehending some revengeful action from Mills Management--Validity--Conciliator had never issued a certificate of failure of conciliation proceedings meaning thereby same were pending with conciliator till dismissal of impugned order--Respondent’s service could not be terminated by Mills through impugned order during pendency of conciliation proceedings before conciliator as well as during pendency of grievance petition before Labour Court except with prior permission of both the forums--Charge of misconduct being pure question of fact requires examination of evidence with exclusive domain of Labour Court and Punjab Labour Appellate Tribunal and cannot be resolved in exercise of constitutional jurisdiction of High Court--Concurrent findings of Labour Court and tribunal did not suffer from any illegality mis-appreciation of evidence or any unlawful exercise of jurisdiction--Petition was dismissed. [Pp. 128 & 130] A, C, D & E

NLR 2002 Labour 41, PLD 1985 SC 429.

Industrial Relations Ordinance, 1969 (XXIII of 1969)--

----S. 31--Proceeding before conciliator--Alternate remedy--Contention--Respondent had alternate remedy of arbitration in terms of S. 31 of IRO, 1969 suffice to say that opening expression if conciliation facts used in S. 31 of Ordinance that the option could only be exercised in case of failure of conciliation between parties whereas instant case conciliation proceedings were pending and never failed till termination of services--Petitioner had no force or relevance to facts of instant case. [P. 128] B

Mr. Omar Alvi, Advocate for Petitioner.

Mr. Mukhtar Ahmad Malik, Advocate for Respondents.

Date of hearing: 15.7.2011.

Order

M/s. Adam Sugar Mills Limited, Chishtian through this writ petition impugns the judgment dated 4.2.2011 of the Punjab Labour Appellate Tribunal, Lahore and the judgment dated 18.11.2009 of the Presiding Officer, Punjab Labour Court No. 8, Bahawalpur, whereby Rana Tahir Pervaiz, Respondent No. 1 (hereinafter to be called the respondent) has been reinstated in service.

1. Brief facts leading to this writ petition are that services of Respondent No. 1 were terminated vide order dated 5.5.2001. He assailed the said order before the Labour Court through grievance petition under Section 25-A of the Industrial Relations Ordinance, 1969 read with Order 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 on the grounds that it was illegal, void, malafide, without lawful authority, without prior permission of the Labour Court and liable to set aside. His main contentions were that having a status of worker/workman under the labour laws he was Chairman of the Employees Union (Registered) Collective Bargaining Agent (CBA) Adam Sugar Mills Limited, Chishtian; that the said Union has raised an industrial dispute' under Section 26 and astrike notice' under Section 28 of the IRO, 1969 was also sent to the Management of the Mills and in this regard conciliation proceedings were pending before the Conciliator, Bahawalpur for settlement; that some other individual/industrial disputes under Sections 25-A and 22-A of the IRO, 1969 were also pending before the Labour Court Bahawalpur; that during the pendency of the aforenoted industrial disputes the petitioner was served with a charge sheet dated 27.12.1999 by the Mills; that the proceedings of the said charge sheet had been stayed by the Labour Court with a clear direction to the Mills that no adverse action shall be taken against him; that the Mills threatened him to withdraw the demand notice and strike notice otherwise he will be removed or dismissed from service; that he declined to accede to the desire of the Mills; resultantly the Mills issued the impugned dismissal order dated 5.5.2001 which is outcome of victimization, not sustainable in the eye of law, amounts to unfair labour practice in violation of Section 47 of the IRO, 1969 and liable to set aside. With the above assertions he prayed before the Labour Court for acceptance of the grievance petition by setting aside the impugned dismissal order dated 5.5.2001.

2. The Mills contested the grievance petition before the Labour Court with the contentions that no notice was served upon the Mills before filing the petition; that the grievance notice and the grievance petition are barred by limitation; that no guaranteed right of the respondent has been infringed; that the respondent committed gross misconduct while beating his co-worker during duty hours therefore his services were rightly terminated after due process as laid down in the Standing Orders Ordinance, 1968; that the respondent was not an office bearer of the CBA Union on account of expiry of its tenure of two years and that the said Union has ceased to exist since December, 1999; that litigation before the Labour Court and Punjab Labour Appellate Tribunal was pending regarding determination of CBA union between the respondent and other unions; that respondent's duty was supervisory in nature therefore he was not a workman.

3. Learned Labour Court after recording evidence and providing opportunity of hearing to the parties accepted the grievance petition and set aside the dismissal order dated 5.5.2001 on the grounds that the same was passed in violation of Section 47 of the IRO, 1969 as well as in violation of the injunctive order issued by the Labour Court. His reinstatement into service with back benefits was also ordered.

4. Order of the Labour Court was called in question by the Mills before the Punjab Labour Appellate Tribunal through appeal. The learned Tribunal while scanning the facts and evidence in detail dismissed the appeal maintaining the order of the learned Labour Court. Hence this writ petition.

5. Learned counsel for the petitioner Mills has focused on the following important points in this writ petition:--

(i) That the alleged industrial dispute regarding demand notice and strike notice pertaining to the year 1999 was pending with the Conciliator for settlement on 13.12.1999 when it was adjourned for conciliation meeting on 24.12.1999 with the mutual consent of the parties. Simultaneously limitation of the strike notice was also extended till 31.12.1999. Thereafter conciliation meeting never held till the issuance of charge sheet dated 27.12.1999 as well as till passing of the dismissal order of the respondent dated 5.5.2001. The Conciliator had never issued a certification of failure of conciliation. In fact the Union had abandoned the demands by not pursuing the conciliation proceedings. The Union could have availed the option of arbitration in terms of Section 31 of the IRO, 1969 which was never opted and as such it will be deemed that no industrial dispute was pending at the time of termination of services of the respondent.

(ii) That the learned Labour Court during the pendency of grievance notice petition under Section 47 of the IRO in case No. 55/1999 titled `Employees Union vs. G.M. Adam Sugar Mills" had decided the stay application vide order dated 2.11.2000 with the consent of the parties as per statement of the counsel for the Mills that the management of the petitioner Mills had no intention to punish any workman or member of the CBA Union without due course of law and that accordingly the Labour Court directed the management of the Mills to act in accordance with law while punishing any member or office bearers of the CBA Union.

(iii) That before passing of the impugned order of dismissal of the respondent the Mills Management had observed all the legal procedure and in this regard charge sheet was issued on 27.12.1999, notice of inquiry was issued on 4.1.2000, second show-cause notice was issued on 4.3.2000, notice for personal hearing was issued on 28.4.2001 and ultimately dismissal order was issued on 5.5.2001 after submission of the inquiry report by the duly appointed inquiry officer on proving the charge of misconduct.

(iv) That the Labour Court as well as the Tribunal has failed to take into consideration the above referred lawful proceedings as well as merits of actions taken against the respondent.

1. On the other hand, the learned counsel for the respondent contended that during the pendency of the conciliation proceedings before the Conciliator the CBA Union apprehending some revengeful action from the Mills management lodged a grievance petition under Section 47 of the IRO before the Labour Court, Bahawalpur with a prayer to restrain the Mills Management from causing undue harassment to the Chairman and other office bearers of the Union, whereupon the Labour Court issued interim injunctive order dated 3.12.1999 directing the Mills Management not to transfer or punish any office bearer of the CBA Union without prior permission of the Court; that on 5.1.2000 on appearance of the counsel for the Mills before the Labour Court the case was adjourned to 21.1.2000 for filing of the written statement and reply to the injunction petition with a direction that in the meanwhile the Mills Management will not pass final order in the inquiry initiated against the respondent; that on 2.11.2000 during the arguments on the stay application learned counsel for the Mills made a statement that the Management has no intention to punish any workman or member of the CBA without due course of law; that with the consent of the counsel for the respondent the injunction petition was disposed of with the direction that the Management of the Mills while punishing any member or office bearer of the CBA Union will act in accordance with law; that in the meanwhile Mills Management maneuvered to procure an order dated 9.2.2002 from the Registrar of Trade Unions that instead of the union headed by Rana Tahir Pervaiz, one Mr. Tariq Javed was Chairman of the CBA Union. The said order was also assailed before the Labour Court which was suspended on 25.2.2002 and consequently the CBA Union headed by Rana Tahir Pervaiz was declared to be competent Union vide order dated 13.12.2002 issued by the Registrar of Trade Union, Lahore; that on failure of the Management to get the CBA Union headed by Rana Tahir Pervaiz annulled his services were terminated vide the impugned order dated 5.5.2001, which was challenged by the respondent before the Labour Court through a separate grievance petition in accordance with law; that the impugned order dated 18.11.2009 passed by the Labour Court and the order dated 4.2.2011 passed by the Tribunal are in accordance with law and that the instant writ petition is devoid of any merit and liable to be dismissed.

2. I have given patient hearing to the counsel for the parties and carefully gone through the record.

3. At the out-set I would like to reproduce the provision of Sections 30 and 31 of the IRO, 1969, which reads below:--

"Sec. 30. Proceedings before Conciliator.--The Conciliator shall, as soon as possible, call a meeting of the parties to the dispute for the purpose of bringing about a settlement.

(2) The parties to the dispute shall be represented before the Conciliator by persons nominated by them and authorized to negotiate and enter into an agreement binding on the parties:

Provided that, if in the opinion of the Conciliator, the presence of the employer or any officer of the trade union connected with the dispute is necessary in a meeting called by him, he shall give notice in writing requiring the employer or such officer to appear in person before him at the place, date and time, specified in the notice; and it shall be the duty of the employer or the officer of the trade union to comply with the notice.

(3) The Conciliator shall perform such functions in relation to a dispute before him as may be prescribed and may, in particular, suggest to either party to the dispute such concessions or modifications in its demand as are in the opinion of the Conciliator likely to promote an amicable settlement of the dispute.

(4) If a settlement of the dispute or of any matter in dispute is arrived at in the course of the proceedings before him the Conciliator shall send a report thereof to the Provincial Government together with a memorandum of settlement signed by the parties to the dispute.

(5) If no settlement is arrived at within the period of the notice of strike or lock-out, the conciliation proceedings may be continued for such further period as may be agreed upon by the parties.

See. 31. (1) If the conciliation fails, the Conciliator shall try to persuade the parties to agree to refer the dispute to an arbitrator. In case the parties agree, they shall make a joint request in writing for reference of the dispute to an arbitrator agreed upon by them.

(2) The arbitrator to whom a dispute is referred under sub-section (1) may be a person borne on a panel to be maintained by the Provincial Government or any other person agreed upon by the parties.

(3) The arbitrator shall give his award within a period of thirty days from the date on which the dispute is referred to him under sub-section (1) or such further period as may be agreed upon by parties to the dispute.

(4) After he has made an award a copy thereof to the parties and to the Provincial Government who shall cause it to be published in the official Gazette.

(5) The award of the arbitrator shall be final and no appeal shall lie against it. It shall be valid for a period not exceeding two years, as may be fixed by the arbitrator."

1. Bare reading of sub-section (5) of Section 30 of the Ordinance ibid makes it sufficiently clear that conciliation proceedings may be continued for such further period as may be agreed upon by the parties. In this case order dated 13.12.1999 passed by the Conciliator transpires that the conciliation meeting was adjourned to 24.12.1999 with the consent of the parties and simultaneously limitation of the strike notice was also extended to 31.12.1999. It is admitted on record that the Conciliator had never issued a certificate of failure of the conciliation proceedings meaning thereby the same were pending with the Conciliator till the dismissal of the respondent vide the impugned order dated 5.5.2001. Argument of the learned counsel for the Mills that in fact the Union had abandoned the demands by not pursuing the conciliation proceedings is not substantiated through any speck of material, therefore learned counsel for the Mills is misconceived while interpreting that as such no industrial dispute was pending at the time of termination of services of the respondent. This argument of the learned counsel is devoid of any fact or law and thus repelled.

2. As regards the other argument of the learned counsel for the Mills that the respondent had alternate remedy of arbitration in terms of Section 31 of the IRO, 1969, suffice to say that the opening expression `if conciliation fails' used in Section 31 of the Ordinance makes it crystal clear that the said option could only be exercised in case of failure of conciliation between the parties whereas in the instant case conciliation proceedings between the parties were pending and had never failed till the termination of services of the respondent. This argument of the Learned counsel for the petitioner also has no force or relevance to the facts of the instant case.

3. It is admitted on record that vide order dated 2.11.2000 passed by the Labour Court, the injunction petition was disposed of with the direction that the Mills Management will not punish any member or office bearer of the CBA Union except in accordance with law. It is also admitted on record that besides pendency of the conciliation proceedings and the grievance petition services of the respondent were terminated. At this juncture relevance of Section 47 of the Industrial Relations Ordinance, 1969 cannot be ignored at all, which is reproduced hereunder for ready reference:--

"Sec. 47. Conditions of service to remain unchanged while proceedings pending.--(1) No employer shall, while any conciliation proceedings or proceedings before an Arbitrator, a Labour Court or Tribunal in respect of an industrial dispute are pending, alter to the disadvantage of any workman concerned in such dispute, the conditions of service applicable to him before the commencement of the conciliation proceedings or of the proceedings before the Arbitrator, the Labour Court or Tribunal, as the case may be, nor shall he--

(a) save with the permission of the Conciliator, while any conciliation proceedings are pending, or

(b) save with the permission of the Arbitrator, the Labour Court or Tribunal, while any proceedings before the Arbitrator, Labour Court or Tribunal are pending discharge, dismiss or otherwise punish any workman except for misconduct not connected with such dispute.

(2) Notwithstanding anything contained in sub-section (1), an officer of a registered trade union shall not, during the pendency of any proceedings referred to in sub-section (1), be discharged, dismissed or otherwise punished for misconduct, except with the previous permission of the Labour Court."

Bare reading of the provision of Section 47 of the Ordinance ibid therefore transpires that respondent's services could not be terminated by the Mills through the impugned order during the pendency of the conciliation proceedings before the Conciliator as well as during the pendency of the grievance petition before the Labour Court except with prior permission of both the forums.

Argument of the learned counsel for the petitioner that procedure with regard to conduct of inquiry against the respondent was duly observed by issuing show-cause notice and notice of personal hearing is not convincing. Mere observance of procedure in inquiry does not authorize the Mills Management to violate stipulation of prior permission of the Labour Court or the Conciliator, as the case may be, as set forth in Section 47 of the IRO ibid before passing of the impugned order of termination of services of the respondent. This argument of the learned counsel for the petitioner is also devoid of any force and repelled accordingly.

1. Learned counsel for the Mills has vehemently argued that the respondent's services were terminated on the ground of `misconduct'. In this regard suffice to say that the charge of misconduct being pure question of fact requires examination of evidence within the exclusive domain of the Labour Court and the Punjab Labour Appellate Tribunal and cannot be resolved in exercise of Constitutional jurisdiction of this Court. Reliance be made upon A.R. Fargosan vs Sindh Labour Court (PLD 1985 SC 429).

2. Foregoing discussion and reasons lead me to formulate the opinion that concurrent findings of the Labour Court and the Tribunal in both the impugned orders do not suffer from any illegality, mis-appreciation of evidence or any unlawful exercise of jurisdiction. Reliance is made upon Fauji Fertilizer Company vs. Punjab Labour Appellate Tribunal, etc. (NLR 2002 Labour 41).

3. As a sequel to the above, there is no merit in this writ petition, which is dismissed leaving the parties to bear their own costs.

(R.A.) Petition dismissed

PLJ 2012 Lahore 131 (DB) [Multan Bench Multan]

Present: Rauf Ahmad Sheikh and Syed Iftikhar Hussain Shah, JJ.

ZAHOOR AHMAD GILL, SUB-INSPECTOR and 13 others--Appellants

versus

INSPECTOR GENERAL OF PUNJAB POLICE, LAHORE and 5 others--Respondents

ICAs. No. 18 & 19 of 2011 in Crl. Org. Nos. 538/W & 539/W of 2009 in W.P. Nos. 3646, 697 & 832 of 2006, heard on 16.6.2011.

Punjab Police Rules, 1934--

----R. XIX-A-9(v)--Law Reforms Ordinance, 1972, S. 3--Intra Court Appeal--Non-payment of ration allowance--Transfer on deputation to Elite Force--Not being paid due to minister pretation of Punjab Police Rules--Entitlement of retation allowance--Order of Court was not being implemented--Province of Punjab was not impleaded--Judgment was not binding on it and as such ration allowance could had not restored to petitioners--Province of Punjab could had been sued through Secretary but appellants had not sued Province of Punjab--Validity--Public Officers on their own had not passed the order for disbursement of allowance unless it was approved by Govt. of Punjab--Ration allowance was not withdrawn rather admissible to Elite Force Personnel--Now appellants were getting Rs. 1000/- p.m. as ration allowance against a sum of Rs. 681/- which was admissible to them as members of general cadre of police department--Allowance had been withdrawn rather it is being paid at enhanced rates--No contempt of Court or disregard of orders passed by it appears to had been committed--Intra Courts Appeals were dismissed. [P. 133] A, B & C

Syed Asif Raza Gillani, Advocate for Appellants.

Mirza Muhammad Saleem Baig, Additional Advocate General, Iftikhar Ahmad, DSP(Legal), CPO, Office Multan & Muhammad Sharif Nadeem SO(SR-III) for Respondents.

Date of hearing: 16.6.2011.

Judgment

Rauf Ahmad Sheikh, J.--Through the ICAs mentioned above, the appellants have assailed the consolidated order dated 06.01.2011 passed by the learned Single Judge in Chamber, whereby Crl.Org.No. 538-W of 2009 and Crl.Org.No. 539-W of 2009 were dismissed.

1. The facts in brief as emerge on perusal of the record are that the W.P Nos.3646 of 2006, W.P. No. 697 of 2006 & W.P No. 832 of 2006 were decided through judgment dated 13.05.2009 passed by this Court. The grievance put forth by the appellants and others in the above mentioned writ petitions was the non payment of ration allowance at the rate of Rs.681/-, which was permissible to them in the general cadre before their transfer on deputation to the Elite Force, a Specialized Wing of the Department established to counter the terrorism. It was stated that they were allowed the ration allowance @ Rs.681/- P.M and same was not being paid due to misinterpretation of the Punjab Police Rules although under Rule XIX-A-9(V) they were entitled to the ration allowance, which is in addition to the ration allowance permissible to them being members of the Police Force. These writ petitions were accepted vide order dated 13.05.2009 passed by a learned Single Judge in Chamber in the following terms:

"For what has been discussed above, it is held that the petitioners are entitled to the enhancement in salary including ration allowance and other facilities which are available to them under the newly inserted Chapter XIX-A of the Police Rules which shall be in addition to the allowances/privileges/facilities to which they were/are entitled as being members of Punjab Police and no allowance or privileges shall be withdrawn"

Both sets of the petitioners/appellants of the above mentioned ICAs moved criminal originals alleging therein that the order of the Court was not being implemented. These petitions came up for hearing before the learned Single Judge in Chamber, who was pleased to dismiss the same by observing that the Province of Punjab was not impleaded as respondent so the judgment was not binding on it and as such the ration allowance could have not restored to the petitioners.

1. The learned counsel for the petitioners has contended that the petitioners had impleaded all the Officers, who were responsible for disbursement of the allowance and as such the order of the learned Single Judge in Chamber is against the law and not maintainable. It was further contended that while disposing of the criminal originals, the learned Single Judge in Chamber has in fact reviewed the order dated 13.05.2009, which could have not been done and as such the order is not sustainable.

2. In W.P No. 3646 of 2005, the appellants/petitioners had impleaded the District Police Officer, Multan, EDO (Finance), Multan and District Accounts Officer, Multan, whereas in W.P No. 697 of 2006 the appellants/petitioners had impleaded the Inspector General of Police, Accountant General, Govt. of Punjab Lahore, Secretary Govt. of Punjab (Finance Department), DPO, Khanewal, EDO (Finance), Khanewal and District Accounts Officer, Khanewal as respondents. However, the Province of Punjab was not impleaded. Section 79 of the Code of Civil Procedure, 1908 provides that in a suit by or against the Provincial Government, the Province would be made party and by virtue of Section 80 the Secretary of the administrative department or the collector can accept the notice. Article 174 of the Constitution of Islamic Republic of Pakistan clearly provides that the Federation may sue or be sued in the name of Pakistan and the Province may sue or be sued in the name of Province. No doubt the Province of Punjab could have been sued through the Secretary (Finance) or the District Collector but the petitioners/appellants had not sued the Province of Punjab and had only impleaded the Public Officers. From this aspect of the matter, the learned Single Judge in Chamber rightly held that the public officers on their own have not passed the order for disbursement of the allowance unless it was approved by the Government of Punjab. Even otherwise, the ration allowance was not withdrawn rather they were paid ration allowance at the enhanced rates admissible to the Elite Force personnel. Rule XIX-A(9)(V) only provides the enhanced rates of ration and it is nowhere mentioned that it would be in addition to the ration allowance being paid to officers posted in general cadre of the police department. It is admitted by the learned counsel for the appellants that now they are getting Rs. 1,000/- P.M as ration allowance against a sum of Rs.681/-, which was admissible to them as members of the general cadre of Police Department. This being so they cannot say that the allowance has been withdrawn rather it is being paid at the enhanced rates. In these circumstances, no contempt of Court or disregard of the orders passed by it appears to have been committed. Both the ICAs are without merits and the same are hereby dismissed.

(R.A.) ICAs dismissed

PLJ 2012 Lahore 133 [Multan Bench Multan]

Present: Syed Iftikhar Hussain Shah, J.

Mst. AAMNA ABDULLAH--Petitioner

versus

JUDGE FAMILY COURT, MULTAN and another--Respondents

W.P. No. 10933 of 2010, decided on 24.5.2011.

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----S. 10(4)--Limitation Act, (IX of 1908), S. 5--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Constitutional jurisdiction of High Court after lapse of four years--Laches--Suit for dissolutation of marriage, recovery of dower and dowry articles--Pre-trial re-conciliation proceedings failed, suit for dissolution of marriage was decreed on ground of Khula--Direction to return of five tolas gold in lieu of Khula--Challenged to--Validity--Whereas in filing of constitutional petition lapse of time or question of laches is to be examined on equitable principles for reason that exercise of constitutional jurisdiction is always in nature of equitable relief--Petitioner had invoked constitutional jurisdiction of High Court after a lapse of four years--Petitioner invoking constitutional jurisdiction is guilty of contumacious lethargy, inaction, laxity and gross negligence in enforcement of her right--Petition was liable to be dismissed on ground of laches--Petition was dismissed. [P. 137] A

PLD 2010 Lah. 308, 2005 CLC 1447, PLD 1987 Lah. 471, 1999 SCMR 1072, 2006 CLC 1662 & 2008 CLC 587, rel.

Mr. Khalil-ur-Rehman Mayo, Advocate for Petitioner.

Rana Muhammad Javed Iqbal, Advocate for Respondents.

Date of hearing: 24.5.2011.

Order

Mst. Aamna Abdullah has called in question the legality of the order and decree dated 31.1.2007 passed by the learned Judge Family Court, Multan whereby her suit for seeking decree for dissolution of marriage was decreed subject to the return of Rs.500/- and five tolas gold ornaments in lieu of Khula.

1. Mst. Aamna Abdullah (petitioner) instituted suit for seeking decree for dissolution of marriage, recovery of maintenance for herself and her minor son, for recovery of dower and dowry articles against Nemat Ullah (Respondent No. 2) with whom her marriage was solemnized on 08.02.2004. Her dower was fixed as Rs.500/- in cash, five tolas gold and a house, consisting of 2 1/2 Marlas. The articles mentioned in the list Annexure-A were also given to her at the time of her marriage. Her dower is still unpaid. According to her the attitude of the Respondent No. 2 was cordial in the beginning but became harsh lateron and he started to beat her and a after four months of the marriage, Respondent No. 2 ousted her from his house. Adeel the minor son was born in the house of her parents and respondent has not even paid the expenditures incurred on delivery. Now it is impossible for her to live with her husband within the limits prescribed by Almighty Allah. Hence, this suit.

2. Respondent No. 2 contested the suit and allegations leveled in the plaint were denied and it was contended that the dower of Rs.500/- and five tolas gold ornaments had already been paid to the plaintiff.

3. On 31.01.2007 when the case was fixed for pre-trial reconciliation proceedings, Respondent No. 2 did not appear in the Court and the learned Judge Family Court in the light of the provision of Section 10(4) of the West Pakistan Family Courts Act, 1964 after declaring the pre-trial reconciliation proceedings fail, decreed the suit for dissolution of marriage on the ground of Khula. It was also held that from the copy of the Nikkah Nama produced with the file, Rs.500/- and gold ornaments weighing 5 Tolas were paid to the plaintiff/petitioner as dower at the time of her marriage, therefore, she was directed to return the same. Aggrieved by the order of returning the Cash Rs.500/- and five tolas gold in lieu of Khula, the petitioner has invoked the constitutional jurisdiction of this Court.

4. Learned counsel for the petitioner has contended that Respondent No. 2 has never claimed the return of dower in lieu of Khula, the petitioner has not claimed dissolution of marriage mere on the basis of Khula, therefore, the order of the Judge Family Court regarding the returning of Rs. 500/- and five tolas gold ornaments is illegal and void. Reliance has been placed on Muhammad Zafar v. Judge, Family Court and another (2005 CLC 1844) and Farida Khanum v. Maqbul Ilahi and 2 others (1991 MLD 1531). It is further contended that the petitioner could not invoke the jurisdiction of this Court due to the illegal advice of her previous counsel and due to her ailment, therefore the delay in filing the writ petition is liable to be condoned in the light of Farzand Raza Naqvi and 5 others v. Muhammad Din through legal heirs and others (2004 SCMR 400), S.A.Jameel v. Secretary to The Government of the Punjab, Cooperative Department and others (2005 SCMR 126) and Masooda Begum through legal heirs v. Government of Punjab through Secretary Forest, Lahore and 9 others (PLD Supreme Court 90).

5. On the other hand, learned counsel for Respondent No. 2 has contended that the learned Judge Family Court has passed the impugned order in accordance with law after going through the evidence present on record especially the copy of Nikkah Nama submitted by the petitioner herself wherein it was mentioned that Rs.500/- and five tolas gold ornaments had been given to the petitioner at the time of her marriage. The learned Judge Family Court has rightly directed the petitioner to return those benefits in lieu of Khula. Learned counsel for the respondent has further contended that the writ petition has been filed alter lapse of four years of passing the impugned order and decree which was required to be filed within a reasonable time. Such inordinate delay in approaching High Court can not be condoned. He further contended that the impugned order and decree are in accordance with law. Learned counsel relied on Mst. Rahmat v. Additional District Judge-II, Muzaffargarh and 2 others (PLD 2010 Lahore 308), Tayyab Iqbal v. Member, (Colonies) Board of Revenue, Punjab Lahore and 3 others (2005 CLC 1447), Shams Din v. Aman Ullah and 3 others (1987 PLD Lahore 471), Gatron (Industries) Limited v. Government of Pakistan and others (1999 SCMR 1072), Babar Islam v. Mst. Sheeba Bashir and another (2006 CLC 1662) and Abdul Haq Shahid v. District Judge, Toba Tek Singh and 2 others (2008 CLC 587).

6. After the failure of the reconciliation proceedings, the learned Judge Family Court decreed the suit of the petitioner for dissolution of marriage in view of the proviso of the Section 10(4) of the West Pakistan Family Courts Act, 1964. In Paragraph No. 10 of the plaint it has been categorically mentioned that the attitude of the respondent was harsh towards plaintiff. He has failed to maintain her, therefore she has developed hatred in her mind against him and can not live with him within the limits prescribed by Almighty Allah. Therefore, she wants decree for dissolution of marriage on the basis of Khula.

7. The proviso of Section 10(4) of West Pakistan Family Courts Act, 1964 is as under:--

"That notwithstanding any decision or judgment of any Court or tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and also restore the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage."

1. In the instant case, the petitioner has relied on the Nikkah Nama wherein it has been mentioned that Rs.500/- and five tolas gold ornaments had been given to the petitioner at the time of her marriage. The entry of Nikkah Nama regarding the payment of aforesaid dower has not been challenged by the petitioner so far before any competent forum. The bare perusal of Nikkah Nama reveals that Rs. 500/- and five tolas gold ornaments have been given to the petitioner at the time of marriage. According to the aforesaid proviso of Section 10(4) of the West Pakistan Family Courts Act, 1964 it is mandatory upon the Family Courts that a decree for dissolution of marriage is dependant upon the restoration of Haq-ul-Maher to the husband. In the present case the learned Judge Family Court has properly exercised the jurisdiction vested in it and dissolved the marriage strictly in accordance with law. The case law produced by the learned counsel for the petitioner is not directly applicable to the facts and circumstances of the case. The petitioner has claimed dissolution of marriage on the basis of Khula which has been granted to her in accordance with law. The constitutional petition has not been filed within a reasonable time, while dealing the matter delay in filing of the legal proceedings within the period specified under the provision of law, the Hon'ble Supreme Court in the case titled S.A. Jameel v. Secretary to the Government of the Punjab, Cooperative Department and others (2005 SCMR 126) has held that in case of limitation, the delay of each day is to be explained by furnishing sufficient cause for enlargement of time and condonation of delay within the contemplation of Section 5 of Limitation Act, 1908 whereas in filing of Constitutional petition lapse of time or question of laches is to be examined on equitable principles for the reason that the exercise of Constitutional jurisdiction is always discretionary with the Court and relief so granted is always in the nature of equitable relief---In case High Court comes to a conclusion that equity leans in favour of petitioner, the Court must exercise discretion in favour of such party but in the instant case, the petitioner has invoked the constitutional jurisdiction of this Court after a lapse of four years. The petitioner involving the constitutional jurisdiction is guilty of contumacious lethargy, inaction, laxity and gross negligence in the enforcement of her right. Therefore, this petition is also liable to be dismissed on the ground of laches.

2. In the light of aforesaid discussion, the present petition is without merits and the same is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2012 Lahore 137 [Multan Bench Multan]

Present: Muhammad Khalid Mehmood Khan, J.

MURSHID ALI and 4 others--Petitioners

versus

S.H.O., POLICE STATION, SADDAR KHANEWAL and another--Respondents

W.P. No. 12772 of 2010, decided on 26.5.2011.

Constitutional of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 561-A--Pakistan Penal Code, (XLV of 1860), S. 406--Financial Institutions (Recovery of Finances) Ordinance, 2001, S. 20--Constitutional petition--Quashing of FIR--Sale of mortgage property and other assets--Relationship between petitioners and Bank was of customer and banker--Suit for recovery of outstanding finance against petitioners--Suit was pending for disposal before Banking Court--Petitioners were dismantled factory building and machinery and were steeled and removed assets under charged--Removed goods with intention to defraud bank--Suit was pending before competent Court--FIO was special law enacted for resolution of dispute between bank and customer and local police had no authority to take cognizance of any complaint by bank against customer--Act of bank to register FIR was without jurisdiction--Validity--Offence was committed by customer--Banking Court was enjoying exclusive powers for redressal of the grievance provided same was filed by unauthorized person--Relationship between customer and bank was purely a commercial relation and for smooth working of commercial activities it had been made obligatory upon officers of financial institution first get authority for proceeding against customer for criminal proceedings--Registration of FIR was void as complainant was not authorized person to lodge the complaint and exclusive jurisdiction to decide the issue was with Banking Court u/FIO--Offence allegedly committed by customer were compoundable, non-cognizable and bailable whereas under general law all concessions were not available to alleged accused--Main object of banking company/financial institution is to promote the business and not to punish customer for alleged offence--FIR was quashed. [Pp. 141 & 144] A & E

PLD 2001 Lah. 533 & 2005 CLD 20, rel.

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----S. 7(4)--Scope of--Jurisdiction of Banking Court--No jurisdiction to take cognizance of matter arising out of finance advanced by Bank--Validity--Main objection for enacting special law i.e. FIO is that customer or bank would not be dealt under ordinary civil or criminal law. [P. 142] B

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----Scope of--Special law--Commission of offence u/S. 406, PPC--Validity--Special law will prevail over general law and as such local police is not having jurisdiction to take cognizance in matter covered under FIO--Jurisdiction under general law had been specially ousted and as such entertainment of complaint on behalf of a person who himself was not claiming to be authorized offence under FIO as patently against law. [P. 143] C

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----S. 20--Pakistan Penal Code, (XLV of 1860), S. 406--Constitution of Pakistan, 1973--Art. 199--Criminal Procedure Code, (V of 1898), S. 561-A--Quashing of FIR--Suit for recovery of outstanding finance was pending before Banking Court--Mortgage property and other assets were soled--FIR was registered against Petitioner--Challenge to--Question of jurisdiction to take cognizance of dispute under FIO--Ousting jurisdiction of local police has wisdom as Banking Court--Validity--Jurisdiction for recovery of finance as well as for punishing customer for committing criminal offence had been conferred upon Banking Court--Banking Court in presence of recovery suit or recovery proceedings will be in a better position to proceed with complaint properly and smoothly--FIR was quashed. [P. 143] D

Mr. Muhammad Suleman Bhatti, Advocate for Petitioner.

Rana Javed Akhtar, Standing Counsel for Respondents.

Date of hearing: 26.5.2011.

Order

Respondent No. 2 filed a suit for recovery of Rs. 3,55,40,785/- against petitioners under the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter referred to as FIO) through the sale of mortgage property and other assets, before the Banking Court. The petitioners filed application for permission to defend the suit. During the pendency of suit Respondent No. 2 filed a complaint with Respondent No. 1 for registration of criminal case against the petitioners, consequently Respondent No. 1 registered FIR No. 231/2009 on 16.6.2009 under Section 406 PPC with Police Station Sadar Khanewal.

1. The petitioners seek quashment of FIR No. 231/2009 dated 16.6.2009.

2. Learned counsel for petitioner Submits that registration of FIR in a pending matter is against law, local police has no jurisdiction to take cognizance of a dispute arisen under the FIO and as such act of Respondent No. 1 to register impugned FIR is void ab-initio. He adds that under Section 20 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 it is the Banking Court established under the FIO who is enjoying exclusive jurisdiction to take cognizance of alleged offence if any.

3. Learned standing counsel submits that once a cognizance is taken and FIR has been registered, the same will be processed under the procedure provided in Code of Criminal Procedure and as such petition is liable to be dismissed. He has relied on Industrial Development Bank of Pakistan and others V. Mian Asim Fareed and others (2006 S.C.M.R 483).

4. Heard. Record perused.

5. It is an admitted fact that relationship between petitioner and Respondent No. 2 is of customer and banker. Respondent No. 2 filed a suit for recovery of outstanding finance against petitioners and suit is pending disposal before Banking Court established under the F.I.O. As per Para No. 13 of the plaint some pledged stocks were burnt and Insurance Company has paid the claim to Respondent No. 2 and they have adjusted the amount so received against the petitioner's liability. Respondent No. 2 on 16.6.2009 reported to Respondent No. 1 alleging that on 11.6.2009 when they were coming back alter meeting their client, they saw, that petitioners, with the assistance of 10/15 workers are dismantling the factory building and machinery and are steeling and removing the assets under their charge. They further alleged that removed goods have been stored in Wajid Flour Mills. The petitioners with the intention to defraud the bank have embezzled goods and as such case be registered against them alongwith unknown persons for recovering the removed assets. The Respondent No. 1 then registered the impugned FIR.

6. Argument of learned counsel for petitioner is that admittedly a suit is pending disposal before a competent Court and Respondent No. 2 is claiming charge against the assets alleged to be removed. Under Section 20 of the FIO in these circumstances Respondent No. 2's complaint is triable by the Banking Court alone. Further contends that FIO is a special law enacted for resolution of dispute between the bank and customer and as such local police has no authority to take cognizance of any complaint by the bank against customer and as such the very act of Respondent No. 1 to register the FIR is without jurisdiction.

7. The perusal of FIO shows that it has been enacted for resolution of dispute arising out of finance both civil and criminal. The basic purpose for enacting special law is to provide machinery for ousting the jurisdiction of local police with reference to commercial dispute between the customer and bank. Respondent No. 2's claim is that assets detailed in the plaint and in charge documents are encumbered in their favour for repayment of finance allowed to petitioners. The petitioners have allegedly removed the charged assets and as such they have committed an office under Section 406 PPC.

8. FIO provides the complete procedure for redressal of respondent's grievance of criminal nature in addition to civil nature. Section 20 of the FIO is read as under:--

"20. Provisions relating to certain offences.--

1. ---

2. ---

3. ---

4. ---

5. ---

6. All offences under this ordinance shall be bailable, non-cognizable and compoundable.

7. Under Section 20(a) of the FIO the alleged offence committed by petitioners is covered. Section 7 of the FIO provides as under:--

"7. Powers of Banking Courts.--(1) Subject to the provisions of this Ordinance, a Banking Court shall--

(a) -------------------

(b) In the exercise of its criminal jurisdiction, try offences punishable under this Ordinance and shall, for this purpose have the same powers as are vested in a Court of Sessions under the Code of Criminal Procedure, 1898 (Act V of 1898):

Provided that a Banking Court shall not take cognizance of any offence punishable under this Ordinance except upon a complaint in writing made by a person authorised in this behalf by the financial institution in respect of which the offence was committed. "

1. Perusal of Section 7(b) shows that Banking Court is enjoying all powers which are vested in a Court of sessions under Code of Criminal Procedure, 1898. However, these powers are subject to proviso of Section 20 ibid which provides that Banking Court shall take cognizance only on a complaint in writing made by a person authorized in this behalf. The proviso of Section 20 ibid shows that in case any offence is committed by the customer, the Banking Court is enjoying exclusive powers for redressal of said grievance provided the same is filed by an authorized person. Clog of authorization has specially been made part of statute only to curtail frivolous complaint against a customer of the bank. Relationship between the customer and bank is purely a commercial relation and for smooth working of commercial activities it has been made obligatory upon the officers of the financial institution first get the authority for proceeding against the customer for criminal proceedings.

2. Section 7(4) of FIO provides as under:--

3. ---

(1) -------------------

(2) -------------------

(3) -------------------

(4) Subject to sub-section (5), no Court other than Banking Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of Banking Court extends under this Ordinance, including a decision as to the exercise or otherwise of a finance and the execution of a decree passed by a Banking Court.

(5) Nothing in sub-section (4) shall be deemed to affect,--

(a) the right of a financial institution to seek any remedy before any Court or otherwise that may be available to it under the law by which the financial institution may have been established; or

(b) the powers of the financial institution, or jurisdiction of any Court such as is referred to in clause (a); or

Require the transfer to a Banking Court of any proceedings pending before any financial institution or such Court immediately before the coming into force of this Ordinance."

Under Section 7(4) of the FIO no Court other than Banking Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Court extends under the ordinance. This means the Courts established under Criminal Procedure Code have no jurisdiction to take cognizance of the matter arising out of a finance advanced by the Respondent No. 2. The main objection for enacting special law i.e FIO is that the customer or the bank should not be dealt under the ordinary civil or criminal law. The conjunctive study of Section 20 read with Section 7 of the FIO shows that offence with respect to Section 20 will only be triable by the Banking Court established under the Financial Institutions (Recovery of Finances) Ordinance, 2001. Offences committed under the FIO are no doubt covered under the PPC but exception has been made under Section 20(6) that all offences under the ordinance were made bailable, non cognizable and compoundable whereas offence under the PPC are cognizable, non compoundable and non bailable. This is the statutory ouster of PPC under the FIO regarding offences under Section 20 ibid, FIO provides that offence committed by the customer although covered under PPC will be triable only by the Banking Court and the same will be cognizable, compoundable and bailable. In the present case commission of offence under Section 406 PPC has been claimed and in case same is dealt by the local police it will cognizable, non-compoundable and non-bailable but under the FIO it is bailable, compoundable and non-cognizable that too the complaint could be filed by authorized person. The authority to made complaint is with the institution and not with every one, like any person as detailed in Section 154 of Cr.P.C. FIO is a special law and it is an established principle of law that special law will prevail over the general law and as such local police is not having jurisdiction to take cognizance in the matter covered under the FIO. The jurisdiction under the general law has been specially ousted and as such the entertainment of complaint on behalf of a person who himself is not claiming to be authorized officer under the FIO is patently against law. The reason for ousting the jurisdiction of local police has a wisdom as the Banking Court will be in a better position to adjudicate the matter as it is also enjoying power to decide matter for recovery of finances as well in comparison with a police officer who has no legal expertise about the commercial transactions. In case jurisdiction is distributed among two independent segment of law there may be a multiplicity of the issue. For example the financial institution lodged FIR with the police for the removal of security/assets and the customer succeeds to prove that the offence is not made out against him and he is acquitted in the case, then in that case the financial institution will not be in a position to recover the finance which was allowed against those assets, removal of which has been disproved in criminal Court of law. Hence this is the reason that jurisdiction for recovery of finance as well as for punishing the customer for committing criminal offence has been conferred upon the Banking Court. The Banking Court in presence of recovery suit or recovery proceedings will be in a better position to proceed with the complaint properly and smoothly. This will show that Respondent No. 1 has no jurisdiction to take cognizance of the matter. Tobinstein in "Jurisdiction and Illegality" has defined as under:

"The validity of a decision or order can be challenged either directly by way of proceedings specially designed by law for the purpose of having such a decision set aside, reversed or modified, or by way of collateral attack in which the Court is not asked to invalidate the disputed decision but in which the existence of this decision is relevant to the issue facing the Court. In such collateral impeachment the contention generally is that the impugned decision is a nullity in the eye of law and can be disregarded by the Court before which it is sought to be relied upon by one party or the other. "

1. The argument of learned counsel for respondent that once FIR is registered it has to been finalized by the agency who registered the FIR, in the present case it is not applicable. The very registration of the FIR is void as the complainant was not authorized person to lodge the complaint, and the exclusive jurisdiction to decide the issue is with the Banking Court under the FIO. Further the offence allegedly committed by the customer are compoundable, non-cognizable and bailable whereas under the general law all the three concessions are not available to the alleged accused, thus the argument of learned counsel for respondent that offence allegedly committed by the customer under the PPC is triable by the local police as well as by the Banking Court is not tenable. Under special law offence, no doubt, alleged offence is covered under PPC but with a specific change that the offences are bailable, non-cognizable and compoundable the customer/accused can compound the offence without facing any trial in the Banking Court whereas under general law not. Main object of the banking company/ financial institution is to promote the business and not to punish the customer for the alleged offence. Reliance is placed on Capt. (Retd) Nayyar Islam V. Senior Superintendent of Police and others (PLD 2001 Lahore 533) and Aamer Khurshid Mirza V. The State (2005 CLD 20).

2. The upshot of the above said discussion is that impugned FIR is bound to be quashed which is quashed accordingly. This petition is allowed.

3. There is no order as to costs.

(R.A.) Petition allowed

PLJ 2012 Lahore 144

Present: Mehmood Maqbool Bajwa, J.

MOAZAM MAJEED BAJWA--Petitioner

versus

TARIQ MUNAWAR etc.--Respondents

C.R. No. 1537 of 2011, decided on 11.10.2011.

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

----O. XIII, R. 2 & S. 115--Public documents were sought to be produced--Utility bills, original receipts regarding payment of loan advanced by House Building Finance Corporation and receipts of Excise and Taxation Department--Nature of documents--Revisional jurisdiction--Application for permission to produce documents was dismissed by Courts below--Challenge to--Question of--Whether trial Court rightly dismissed application keeping in view nature of documents in absence of good cause--Validity--All documents, undeniably were public documents--Since all documents sought to be produced at instance of petitioner were public documents, therefore, trial Court would have admitted the documents in evidence while allowing application--Provisions of procedural law were required to be complied with but nevertheless keeping in view paramount consideration regarding disposal of lis on merits the non-compliance of the provisions of law was not to be strictly construed in each and every case--Revisional jurisdiction can be exercised in case of non-assumption, illegal assumption or exercise of jurisdiction illegally or with material irregularity--Trial Court while declining application made by petitioner had failed to exercise its jurisdiction vested in it and as such order suffered from jurisdictional defect calling for interference by High Court--Petitioner was permitted to produce documents sought to be produced reference of which had been made in application--Petition was accepted. [Pp. 147, 148 & 149] A, B & C

1993 MLD 2295, NLR 1992 SCJ 655, 1987 SCMR 744, 1999 MLD 3018, ref.

Mirza Hafeez-ur-Rehman, Advocate for Petitioner.

Mr. Afzaal Ahmad Qureshi, Advocate for Respondents No. 1 to 3.

Mr. S.M.Nazim, Advocate for Respondent No. 4.

Mr. Muhammad Aamir Nawaz Bhatti, Advocate for Respondent No. 5.

Date of hearing: 11.10.2011.

Order

Legality of order dated 02.04.2011, recorded by Mrs. Aisha Khalid, the learned Civil Judge 1st class, Lahore has been called in question at the instance of the petitioner-plaintiff, whereby the learned trial Court dismissed the application of the petitioner for permission to produce documentary evidence, reference of which was made in Para-3 of the application which after calling written reply and hearing the adversaries was dismissed by the trial Court vide order impugned.

1. Heard.

The learned counsel for the petitioner maintained that after producing oral evidence, petitioner made an application for permission to produce utility bills, receipts of Excise and Taxation Department and receipts showing payment of loan to the House Building Finance Corporation, which was paid by the petitioner but the learned trial Court on erroneous presumption dismissed the application of the petitioner. Contended that the documents sought to be produced were referred to in Paragraph-6 of the plaint, the contents of which were not questioned at the instance of adversary and as such the opinion formulated by the trial Court regarding taking to the respondents by surprise is not based on record. Submitted that the documents sought to be produced are public documents, the existence and genuineness of which can be hardly disputed and as such the documents should have been admitted in evidence. Referring to the order impugned and seeking help from the dictum laid down in Iqbal Ahmad Khan Lodhi versus Mirza Muhammad Ajmal (PLD 1983 Karachi 501), Zar Wali Shah versus Yousaf Ali Shah, etc. (NLR 1992 SCJ 655) and Muhammad Nawaz versus The Additional District Judge, Jhang and 4 others (1993 MLD 2295), it was argued that the intention of law is not to knock out the party on technical ground and the wisdom and intention behind procedural law is to foster justice. Further submitted that concept of bar against filling gaps through additional evidence is no more available in Pakistan jurisprudence as held by the Hon'ble Supreme Court of Pakistan in the case of Zar Wali Shah, (Supra).

Controverting arguments, learned counsel for the respondents while making reference to the provisions of Order XIII, Rules 1 & 2 of The Code of Civil Procedure, 1908, maintained that it was the duty of the petitioner being plaintiff to place on record all the documents either in his possession or in power and the petitioner failed to append the same with the plaint, who remained in slumber for a considerable period spreading over years and as such in view of the bar contained in Rule 2 of the said Order, petitioner was not entitled to produce the documents. Making reference to the contents of Paragraphs 3 & 4 of the application, it was maintained that the petitioner failed to assign any justification and reason for non-production of the documents sought to be produced by way of the application. Referring to Paragraph 5 of the application making reference to Paragraph 6 of the plaint, it was submitted that there is no reference at all in the plaint regarding the documents and such question of its admission in the corresponding Paragraph of the written statement does not arise at all. Relying upon the rule of law laid down in Messrs Liyas Mortine & Associates (Pvt) Ltd. versus Muhammad Amin Lakhani and others (1999 MLD 3018), it was maintained that since the petitioner failed to assign any "good cause" for non-production of documents, therefore, could not be permitted to produce the documents at belated stage. Submitted that order impugned before this Court cannot be said to be illegal and as such the revision petition is liable to be dismissed.

1. Present petitioner instituted suit for specific performance of executory contract of sale, cancellation of instrument executed by Respondents No. 1 to 4 in favour of Respondent No. 5 along with mandatory injunction by way of consequential relief on 05.07.2006, which was contested by the adversary. However, it is not disputed that property subject matter of the suit regarding which specific performance was claimed, was subject to charge. Admittedly, the petitioner produced his oral evidence and when the case was fixed for evidence of the respondents, then an application was made at his instance to produce the documents referred to in Paragraph 3 of the application. It is also not disputed that the said documents were neither produced nor relied upon as envisaged by Order XIII, Rule 1 of The Code of Civil Procedure, 1908. One cannot dispute the consequences of non-production of documents within the time mentioned in Order XIII, Rule 1 of The Code of Civil Procedure, 1908. Rule 2 of the said order suggests that documentary evidence in the possession or power of any party shall be received at any subsequent stage of proceedings unless "good cause" is shown to the satisfaction of the Court for non-production of the same. It is to be noted that expression "good cause" has been used in Order XIII, Rule 2 of The Code of Civil Procedure, 1908 and not the term "sufficient cause" as referred to by the learned trial Court. The expression "good cause" is wider expression than "sufficient cause" and has to be construed liberally/Nevertheless the party can be permitted to produce document if good cause has been shown at the instance of defaulting party at later stage. Though I find myself in agreement with the contention of the learned counsel for the respondents that prima facie there is nothing on record to disclose "good cause" within the meaning of Rule 2 of Order XIII of The Code of Civil Procedure, 1908 but nevertheless question for consideration in the attending circumstances before this Court is whether the learned trial Court rightly dismissed the application keeping in view the nature of documents in the absence of "good cause". It is not disputed that present petitioner wants to produce utility bills, original receipts regarding payment of loan advanced by House Building Finance Corporation and receipts of Excise and Taxation Department. In view of the matter, it cannot be said by any stretch of imagination that the documents sought to be produced at the instance of the petitioner were private documents as argued at the instance of learned counsel for the respondents. Keeping in view the nature of documents, all the documents, undeniably are public documents. Since all the documents sought to be produced at the instance of the petitioner were public documents, therefore, the learned trial Court should have admitted said documents in evidence while allowing the application. I am fortified in my view by law laid down in Iqbal Ahmad and others versus Khurshid Ahmad and others (1987 SCMR 744) in which an application made at the instance of the petitioner/pre-emptor was not only rejected by the trial Court but also by the Appellate Court. However, this Court while deciding appeal allowed the pre-emptor to produce copy of Jamanbandi to prove his qualification having a superior right of pre-emption by accepting application under Order XLI, Rule 27 of the Code which order was assailed before the Honourable Apex Court. While declining leave to appeal, it was held that line of distinction and demarcation has to be made between private documents and public documents. The public documents, genuineness of which cannot be disputed are to be admitted in evidence, even defaulting party failed to show any "good cause." Perusal of Paragraph 2 of Report under reference clearly suggests that the similar type of arguments were advanced before the Apex Court which did not find favour and leave to appeal was declined. The position would have been different one if documents were not public documents in which eventuality existence and genuineness of documents could have been questioned. The documents sought to be produced, being public documents are per se admissible.

2. Rule of law expounded in the Report Messrs Liyas Mortine & Associates (Pvt.) Ltd. versus Muhammad Amin Lakhani and others (1999 MLD 3018) cannot advance plea of respondents in view of ratio of Iqbal Ahmad and others versus Khurshid Ahmad and others (1987 SCMR 744). Similarly, argument advanced at the instance of the respondents that grant of application would be a premium to the petitioner to fill in the gaps through additional evidence cannot advance plea of the respondents in view of the rule of laws laid down in Zar Wali Shah versus Yousaf Ali Shah, etc. (NLR 1992 SCJ 655), in which the Honourable Supreme Court of Pakistan clearly held at Page 657 that concept of bar against filling gaps through additional evidence is no more available in Pakistan Jurisprudence and the law. It is settled law that adjudication has to be made on merits and party should not be knocked out on technical ground as held in the case of Muhammad Nawaz versus The Additional District Judge Jhang and 4 others (1993 MLD 2295). Though I am in agreement with the contention of the learned counsel for the respondents that provisions of procedural law are required to be complied with but nevertheless keeping in view paramount consideration regarding disposal of lis on merits the non-compliance of the said provisions of law is not to be strictly construed in each and every case.

3. Revisional jurisdiction can be exercised in case of Non-assumption, Illegal-assumption or exercise of jurisdiction illegally or with material irregularity.

4. Pursuant to above discussion, the learned trial Court while declining application made by the petitioner failed to exercise its jurisdiction vested in it and as such order impugned suffers from jurisdictional defect calling for interference by this Court.

5. Epitome of the above discussion is that while setting aside order impugned revision petition is hereby accepted subject to payment of Rs. 3,000/- as cost and the petitioner is permitted to produce the documents sought to be produced, reference of which has been made in the application.

(R.A.) Petition accepted

PLJ 2012 Lahore 149 (DB) [Multan Bench Multan]

Present: Rauf Ahmad Shaikh and Syed Iftikhar Hussain Shah, JJ.

CHIEF COMMISSIONER INLAND REVENUE REGIONAL TAX OFFICE, MULTAN--Appellant

versus

MUHAMMAD BILAL and 7 others--Respondents

ICA No. 143 of 2010 in W.P. No. 85 of 2010, heard on 6.7.2011.

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

----O. XXIII, R. 3--Order was passed due to consent by counsel for parties--By consenting to settlement of controversy--Right of appeal--All decrees and orders passed due to compromise become conclusive and could not be assailed by parties to compromise through an appeal or revision--If Court was satisfied that compromise or settlement was lawful, then it would pass the decree accordingly as provided under Order 23 Rule 3, CPC--Such decree or orders could not be called through an appeal. [P. 151] A

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

----S. 96(3)--Right of appeal--No appeal shall lie from a decree passed by Court with consent of the parties. [P. 152] B

Civil Servants (Appointment, Promotion & Transfer) Rules, 1973--

----R. 8-13--Constitution of Pakistan, 1973, Art. 212(2)--Promotion of good conscience amongst litigant public--Mutual settlement and lawful compromise--An office might be appointed on acting charge basis on a higher post, if he was eligible and had been selected by after observing coddle formalities--Impugned order was against Art. 212(2) of Constitution, had no force as grievance voiced by petitioner was against discriminatory treatment given to them and questions pertaining to their entitlement to salary of the posts held by them under orders of competent authority--Government servant even if was not party to proceedings before Apex Court, was entitled to benefit of judgment, if he and person in whose favour judgment was passed were placed in exactly the same conditions--Parties could not legally or morally back out and deny consenting statement given in Court and avoid implementation of orders on lame excuses--Appeal was dismissed. [P. 152] C, D & F

Constitution of Pakistan, 1973--

----Arts. 189 & 190--Presumption of correctness--Proceedings of the Court--Even if no consent was given in that regard, every Court including High Court judgment of Supreme Court and all executive authorities throughout Pakistan are to act as provided in Arts. 189-190 of Constitution. [P. 152] E

Mr. Agha Muhammad Akmal & Mr. Tariq Manzoor Sial, Advocates for Appellant.

Ch. Abdul Sattar Goraya, Advocate for Respondents No. 1 to 4.

Date of hearing: 6.7.2011.

Judgment

Rauf Ahmad Shaikh, J.--The appellant has assailed the vires of the order dated 02.04.2010 passed by the learned Single Judge in Chamber in W.P. No. 85 of 2010 filed by Respondents No. 1 to 4 praying therein that an appropriate writ, order or direction be issued to the appellant and Respondents No. 5 to 8 (respondents in the writ petition) to promote the Respondents No. 1 to 4 (petitioners in the writ petition) in the rank of Inspectors in BPS-14 on the basis of examination held on 14/15.01.2004 and the inaction on their part be declared without lawful authority, without jurisdiction and of no legal effect. They further prayed that the Appellant/Respondents No. 5 to 8 be directed to pay the salary in BPS-14 from the date of their promotion on acting charge basis as Inspectors till the date.

1. Respondents No. 1 to 4 had contended that they were appointed as LDC on 26.06.1987, 02.08.1994, 03.08.1994 and 07.08.1994 respectively in the Income Tax Department. Certain posts of Inspectors became available and the Respondents No. 1 to 4 along with others appeared in the Departmental Promotion Examination held on 14 &. 15.01.2004 and qualified the same so they were promoted on acting charge basis vide office order No. C-44(i)Admn/04-05/11403 dated 29.06.2005. It is contended that their counter parts in other Zones, who were also promoted on acting charge basis were paid salary in BPS-14 but in their case, it was ordered that they will work in their own pay and scale. It was thus contended that they were given discriminatory treatment and were denied of their rights. It was contended that all other officers, who were also promoted on acting charge basis, were given the salary of the Income Tax Inspectors (BPS-14).

2. On 02.04.2010, the parties gave consent and the writ petition was decided with the following order:

"With the consent of the learned counsel for the parties it is directed that the petitioners shall be paid their emoluments according to their Pay Scales for officiating charge on which they are working. It is further directed that case regarding promotion of the petitioners shall be determined in accordance with the judgment rendered by the Hon'ble Supreme Court in The Commission Income Tax etc v. Khadim Hussain etc, Civil Petition No. 506-L to 508-L of 2008 passed on 02.06.2009 and they shall be promoted as and when vacancy occurs. With the above direction this writ petition is disposed of."

The appellant has assailed the above order. It is contended that the Officers, who had qualified the Departmental Promotion Examination were to be promoted against the promotion quota but the Respondents No. 1 to 4 could not be promoted due to non-availability of the seats in the said category and as such were promoted on acting charge basis against the 50% quota reserved for direct recruitment. It is urged that under the circular issued by the Board of Revenue, no waiting list could be maintained. It is further contended that this Court could have not passed the order for their promotion and payment of salary in view, of Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973.

1. We have heard the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.

2. It is obvious that the impugned order was passed due to consent given by the learned counsel for the parties. By consenting to the settlement of the controversy, the parties to the proceedings impliedly give up the right of appeal. It is an established law that all decrees and orders passed due to compromise become conclusive and cannot be assailed by the parties to the compromise through an appeal or revision. If the Court is satisfied that the compromise/agreement or the settlement is lawful, then it would pass the decree accordingly as provided under Order XXIII, Rule 3 CPC. Such decree or orders cannot be called in question through an appeal. Section 96(3) CPC clearly provides that no appear shall lie from a decree passed by the Court with consent of the parties. The intention of legislature in enacting this provision clearly appears to be the promotion of good conscience amongst the litigant public and to prompt them to abide by the mutual settlement and lawful compromises. Even otherwise, Rule 8-B of Civil Servants (Appointment, Promotion & Transfer) Rules, 1973 provides that an officer may be appointed on acting charge basis on a higher post, if he is otherwise eligible and has been selected by the competent authority after observing the coddle formalities. It is not denied that the respondents were promoted by the competent authority on acting charge basis/officiating basis, on the basis of the result of the Departmental Promotion Committee and have been continuously rendering the services against the higher posts. The contention that the impugned order is against the Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973 has also no force as the grievance voiced by the petitioner was against the discriminatory treatment given to them and questions pertaining to their entitlement to the salary of the posts held by them under the orders of the competent authority. In this respect reliance is placed on 1998 PLC (C.S) 1362. Yet there is another very important and significant aspect of the matters, the Finance Division (Regulation Wing) Government of Pakistan in its Letter No. F.8(4)R-2/97-1204/09 dated 24.02.2009 has clearly provided guideline inter alia, clarifying that an officer fully qualified and appointed by the competent authority on the higher post is entitled to the pay of the higher post from the date, he assume the charge of said post. Even the appellant in Letter No. HRM/1127 dated 17.04.2010 had declared that in view of the letter of the Finance Division, circular of the Board and impugned judgment, the acting charge Inspectors are entitled to pay of BPS-14.

3. The learned counsel for the appellant has contended that in fact the consent was given in respect of payment of salary in BPS-14 and no consent was given regarding their promotion in the light of judgment of the Supreme Court of Pakistan passed in Civil Petitions No. 506-L to 508-L of 2008. A presumption of correctness is attached to the duly recorded proceedings of the Court. Even if no consent was given in this regard, every Court including the High Court, Tribunal or Authority is bound to obey the judgment of August Supreme Court of Pakistan and all executive authorities throughout Pakistan are to act in aid of the Supreme Court of Pakistan as provided in Articles 189-190 of the Constitution of the Islamic Republic of Pakistan, 1973. It is an established law that a Government Servant even if was not a party to the proceedings before the Apex Court, is entitled to the benefit of the judgment, if he and the persons in whose favour the judgment is passed are placed in exactly the same conditions. The appellant and Respondents No. 5 to 8 cannot legally or morally back out and deny the consenting statement given in the Court and avoid the implementation of the orders on lame excuses. The appeal is without merits and the same is hereby dismissed.

(R.A.) Appeal dismissed.

PLJ 2012 Lahore 153 (DB) [Multan Bench Multan]

Present: Sh. Najam-ul-Hassan and Muhammad Yawar Ali, JJ.

ADMINISTRATOR MARKET COMMITTEE SAHIWAL--Appellant

versus

Syed ZAIGHAM ALI and 3 others--Respondents

I.C.A. No. 139 of 2011 in W.P. No. 2249 of 2011, heard on 20.9.2011.

Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974--

----R. 17-A--Constitution of Pakistan, 1973, Art. 199--Law Reforms Ordinance, 1972, S. 3--Intra Court Appeal--Entitlement of same post that his father had holding--Father of respondent had retired being an incapacitated person as result of which respondent was entitled to be appointed in his place--Challenge to--Constitutional petition was hit by principle of laches--Delay of ten years--No certificate was issued by medical officer--Unequivocal terms that father of respondent had become incapacitated--Validity--Unemployed child became eligible to be appointed in place of his father only in case his father had died while in service or was declared invalidated/ incapacitated for further service--Father of respondent was never declared to be an incapacitated person either by any medical officer or by head of department--Petitioner under Art. 199 of Constitution had failed to establish that department had acted in breach of any law or regulation by not appointing him in place of his father--Intra Court Appeal was accepted. [P. 156] A & B

2005 CLC 1401, 2005 CLC 1169 & PLD 1997 SC 304, ref.

Mr. Muhammad Ramzan Khalid Joyia, Advocate for Appellant.

Mr. Muhammad Iqbal Khan, Advocate for Respondent No. 1.

Malik Muhammad Bashir Lakhesir, A.A.G. for Respondent No. 2 to 4.

Date of hearing: 20.9.2011.

Judgment

Muhammad Yawar Ali, J.--This Intra Court Appeal filed under Section 3 of Law Reforms Ordinance, 1972 is directed against an order dated 27.04.2011 passed by the learned Single Judge in Chamber while disposing of Writ Petition No. 2249-2011.

1. Briefly stated the facts of the case necessary for the disposal of this Intra Court Appeal are that Respondent No. 1 (herein) filed a petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 praying therein that a direction be issued to the Market Committee Sahiwal to employ Respondent No. 1 as Sub-Inspector in place of his father Syed Ashraf Ali Shah under Section 17-A of the Punjab Civil Servants (Appointment & Conditions of Service) Rules 1974. In the petition it was strongly asserted that Syed Ashraf Ali Shah father of Respondent No. 1 was incapacitated being a heart patient as a consequence of which Respondent No. 1 was entitled to the same post that his father was holding. The learned Single Judge in Chamber while perusing the record which was brought to the Court room by an official representing the appellant concluded that Syed Ashraf Ali Shah father of Respondent No. 1 retired on 25.10.2001 being an incapacitated person as a result of which Respondent No. 1 was entitled to be appointed in his place.

2. The learned counsel for the appellant contends that writ petition filed by Respondent No. 1 suffered from laches and was liable to be dismissed on this ground alone. Syed Ashraf Ali Shah father of Respondent No. 1 served in the department from 11.1 1.1967 to 15.12.2001 whereas Respondent No. 1 filed a writ petition in the year 2011 after a lapse of ten years. On merits it was contended that Respondent No. 1 was never declared invalid or incapacitated by any medical board meaning thereby Respondent No. 1 was not qualified to be appointed in place of his father.

3. The learned counsel for Respondent No. 1 in rebuttal argued that valuable rights accrued in favour of Respondent No. 1 when his father became incapacitated and a petition which was filed for enforcement of a right conferred by law could not be defeated merely on the ground that the petition was filed after a delay of ten years. On merits it was contended that the learned Single Judge in Chamber after inspecting the record which was brought by an official representing the appellant rightly concluded that the father of Respondent No. 1 was incapacitated being a heart patient. No exception could be taken to the relief which was granted to Respondent No. 1 by the learned Single Judge in Chamber.

4. Whether or not the constitutional petition filed by Respondent No. 1 under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 before the learned Single Judge in Chamber was hit by the principle of laches is a question which is to be addressed in the first instance. It is an admitted position that Respondent No. 1 filed a petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 after a delay of ten years. A bare reading of the petition would show that no plausible explanation has been given as to why the petition was filed after such a long delay. It is trite that constitutional jurisdiction is discretionary in nature and he who seeks equity must approach the Court with clean hands and remain vigilant in asserting for his rights as has been held by this Court in Mst. Barkat Bibi vs. Mst. Salma Bibi & 2 others 2005 CLC 1401. Similarly in Mazhar-ul-Haq alias Mazhar Abbas vs. Ghulam Muhammad & 2 others 2005 CLC 1169 this Court dismissed a constitutional petition on the principle of laches on the ground that the petitioner had filed a constitutional petition after three months and 25 days of passing of the impugned order. The august Supreme Court of Pakistan in Khiali Khan vs. Haji Nazir & 4 others PLD 1997 SC 304 has held that even a constitutional petition against a void order could be dismissed when the petitioner was estopped by his own conduct from challenging the same or if he had been guilty of laches. In the light of case law referred to above and the facts of the case which can be gleaned from a plain reading of the constitutional petition it can easily be concluded that the constitutional petition was liable to be dismissed since it suffered from laches. While examining the merits of the case it has been observed that there was no certificate issued by any medical officer stating in clear and unequivocal terms that the lather of Respondent No. 1 had become incapacitated. Section 17-A of Punjab Civil Service Laws reads as follows:--

"Notwithstanding anything contained in any rule to the contrary, whenever a Civil Servant dies while in service or is declared invalidated/in-capacitated for further service, any one of his unemployed children, may be employed by the Appointing Authority against a post to be filled under Rules 16 & 17 for which he/she possesses the prescribed qualifications and experience and such child may be given 10 additional marks in the aggregate by the Public Service Commission or by the appropriate Selection Board or Committee, provided he/she otherwise qualifies in the test/examination and/or interview for posts in BS-6 and above:

Provided further that one child of a Government Servant who dies while in service or is declared invalidated/incapacitated for further service shall be provided a job against posts in BS-1 to 5 in the department in which the deceased Government Servant was working, without observance of formalities prescribed under the rules/procedure. Provided such child is otherwise eligible for the post."

1. From a bare reading of Section 17-A of Punjab Civil Service Laws reproduced above it is clear that an unemployed child becomes eligible to be appointed in the place of his father only in case his father dies while in service or is declared invalidated/incapacitated for further service. In order to ascertain as to who is the competent authority authorised to determine whether or not an employee has become incapacitated we have to go though the provisions of Section 442 of Civil Service Regulations (Relating to Pension) which are reproduced below for the sake of reference:

Section 442

"If an officer applying for an Invalid pension is sixty years old or up-wards, no certificate by a Medical Officer is necessary; it suffices for the head of the office to certify to the incapacity of the applicant. Otherwise incapacity for service must be established by a medical certificate."

1. In the present case Syed Ashraf Ali Shah father of Respondent No. 1 was never declared to be an incapacitated person either by any medical officer or by the head of the department. Respondent No. 1 in his petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 failed to establish that the department had acted in breach of any law or regulation by not appointing him in place of his father.

2. For what has been stated above, this Intra Court Appeal is accepted and the impugned order dated 27.04.2011 passed in Writ Petition No. 2249/2011 is set aside.

(R.A.) I.C.A. accepted

PLJ 2012 Lahore 157 [Multan Bench Multan]

Present: Ch. Muhammad Younis, J.

MUHAMMAD TARIQ--Petitioner

versus

ADDITIONAL SESSIONS JUDGE, DUNYAPUR and 3 others--Respondents

W.P. No. 9643 of 2011, decided on 29.7.2011.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 420, 468 & 471--Constitutional petition--Forged agreement to sell was prepared--Question of--Whether criminal proceedings could be initiated where civil proceedings were pending qua same document which was subject matter of civil suit--Accused was produced before judicial magistrate for granting of physical remand--Magistrate declined to grant physical remand and sent to judicial lock up merely on ground that accused had filed suit for specific performance of agreement to sell and its genuineness was yet to be determined by Civil Court--Assailed--Criminal revision was accepted with observation that criminal and civil proceedings could be initiated simultaneously--Validity--Judicial Magistrate could not refuse grant of physical remand of the accused merely on ground of pendency of a civil suit--Appellate Court had rightly passed the order which suffered from no legal infirmity, illegality or perversity--Both proceedings could be carried out simultaneously--Pendency of civil suit created no legal bar at all to initiate criminal proceedings--Impugned order warranted no interfere by High Court in exercise of constitutional jurisdiction u/Art. 199 of Constitution--Petition was dismissed. [Pp. 158 & 159] A & B

2008 SCMR 839 & 2006 SCMR 512, ref.

Mr. Muhammad Raziq Nawaz, Advocate for Petitioner.

Date of hearing: 29.7.2011.

Order

Briefly stated the facts relevant for the disposal of the instant writ petition are that Muhammad Siddique father of Respondent No. 3 owned land measuring 19 kanals 13 marlas in Chak No. 366/W.B. Dunyapur District Lodhran which was used to be cultivated by Ghulam Muhammad uncle of the Respondent No. 3. The father of the petitioner and father of Respondent No. 3 were real brothers. Muhammad Siddique died about two years ago. After his death the Respondent No. 3 tried to cultivate the land owned by his father at which the petitioner and the co-accused injured him and later on he came to know that the petitioner Muhammad Tariq, Mukhtar Ahmad and Yasin had prepared a forged agreement to sell showing the land of Muhammad Siddique to have been agreed to be sold to the petitioner etc. Having come to know of the agreement to sell dated 31.5.2008 the Respondent No. 3 lodged FIR No. 235 dated 11.7.2011 under Sections 420/468/471 PPC for preparing a forged agreement to sell and committing fraud with the legal heirs of the deceased Muhammad Siddique. After registration of the case the petitioner was arrested and was produced before the learned Judicial Magistrate for grant of physical remand for 14 days in order to recover the forged agreement to sell from him but the learned Judicial Magistrate declined to grant physical remand and sent the petitioner to judicial lock up merely on the ground that the accused had filed a suit for specific performance of the agreement to sell and its genuineness was yet to be determined by the Civil Court. The Complainant/ Respondent No. 3 filed a criminal revision against the order passed by the learned Judicial Magistrate which was accepted by the learned Additional Sessions Judge vide judgment dated 23.7.2011 with the observation that criminal and civil proceedings could be initiated simultaneously so he set aside the order of the learned Judicial Magistrate.

1. The learned counsel contends that the petitioner had filed a suit for specific performance on the basis of the said agreement to sell and its genuineness was yet to be determined by the Civil Court. He maintained that the criminal proceedings are liable to be stayed till the decision of the Civil Court and if the agreement is proved to be forged only then the criminal proceedings could be initiated. The learned Judicial Magistrate was justified in refusing the grant of physical remand. The learned counsel prayed for setting aside the impugned order passed by the learned Additional Sessions Judge and prayed to restore the order dated 15.7.2011 passed by the learned Judicial Magistrate.

2. I have considered the arguments advanced by the learned counsel for the petitioner and have gone through the impugned order. The legal question involved in this writ petition is as to whether the criminal proceedings can be initiated where civil proceedings are pending in respect of the same document which is subject matter of the civil suit.

3. As per dictums of the superior Courts there is no hard and fast rule to suggest that the criminal proceedings cannot be initiated during the pendency of a civil suit. I rely on 2008 SCMR 839 (Seema Farid and another Vs. The State and another) in which it was observed that criminal case must be allowed to proceed on its own merits and merely because civil proceedings relating to same transaction had been instituted, it had never been considered to be a legal bar to the maintainability of criminal proceedings which could proceed concurrently because conviction for a criminal offence was altogether a different matter from the civil liability. Similarly, I would like to refer to 2006 SCMR 512 (Rafique Bibi Vs. Muhammad Sharif and others) on the subject in which the apex Court observed that no bar existed to initiate both the proceedings i.e. civil and criminal simultaneously. Since the agreement to sell (on the basis of which the suit for specific performance was filed by the petitioner) is alleged to be a forged document having never been executed by the father of the complainant so there was nothing to prevent the complainant to initiate the criminal proceedings against the petitioner and the co-accused who allegedly prepared the forged document 3-years before the filing of the suit. It would not be incongruous to mention here that father of the complainant who happened to be uncle of the petitioner died more than 2 years ago but during his life time no such suit was filed. The petitioner if found guilty of preparing a forged document to deprive the complainant and his brothers and sister of their valuable property cannot be given benefit of his own wrong just on the ground that the accused filed a suit for specific performance on the basis of a forged agreement to sell. The civil suits normally take a long time stretching over several years to conclude and if some one has committed a cognizable offence he cannot be spared and allowed to enjoy the fruit of his own wrong for a long time and deprive the aggrieved person of his valuable rights. The crux of the above discussion is that the learned Judicial Magistrate could not refuse grant of physical remand of the accused merely on the ground of pendency of a civil suit. So the learned Additional Sessions Judge has rightly passed the impugned order which suffers from no legal infirmity; illegality or perversity. Both the proceedings can be carried out simultaneously. The pendancy of civil suit creates no legal bar at all to initiate criminal proceedings. In these circumstances the impugned order warrants no interference by this Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 so the writ petition is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2012 Lahore 160 [Multan Bench Multan]

Present: Ch. Muhammad Younis, J.

Dr. MUHAMMAD SHAHID, MEDICAL OFFICER, RURAL HEALTH, CENTER, TEH. KOT ADDU, DISTRICT MUZAFFARABAD--Petitioner

versus

GOVERNMENT OF PUNJAB through Secretary (Health), Punjab, Lahore and 5 others--Respondents

W.P. No. 9084 of 2011, decided on 18.7.2011.

Constitution of Pakistan, 1973--

----Arts. 199 & 212--Constitutional petition--Transfer of civil servant related to terms and conditions of service--High Court had no jurisdiction to well upon the matters in view of constitutional bar in Art. 212 of Constitution--Maintainability of Petition--Transfer related to terms and conditions of service and no civil servant can claim to be posted at particular place--Civil servant can be transferred at any place and under Art. 199 of Constitution, High Court had no jurisdiction to entertain the matter relating to transfer--In view of bar u/Art. 212 of Constitution, High Court had no jurisdiction to interfere into matter of transfer--Question of posting/transfer related to terms and conditions of civil servant and Service Tribunal would have exclusive jurisdiction to dilate upon such matters and Constitutional jurisdiction of High Court cannot be invoked to get such controversies resolved as Art. 212 of Constitution ousts jurisdiction of all other Courts and order of departmental authority even though without jurisdiction or malafide can be challenged only before Service Tribunal and jurisdiction of Civil Court and High Court was barred--Plea of malafide does not confer upon High Court jurisdiction to act in matter in view of Constitutional ouster--Petition was not maintainable and order relating to transfer of civil servant warranted no interference by High Court in exercise of Constitutional jurisdiction u/Art. 199 of Constitution--Petition was dismissed. [Pp. 161 & 162] A, B, C & D

2011 SCMR 592, 1999 SCMR 1832 & 2011 PLC (CS) 324, ref.

Mr. Tahir Mehmood, Advocate for Petitioner.

Mr. M. Javaid Saeed Pirzada, AAG on Court's call.

Date of hearing: 18.7.2011.

Order

The learned counsel for the petitioner contends that the petitioner was serving as Medical Officer, BHU, Wandar vide order dated 5.3.2010. He was also given temporary charge of RHC Chowk Sarwar Shaheed. On 18.5.2010 the order dated 5.3.2010 was cancelled and petitioner was directed to report at the original station i.e. Wander. Then he was permanently transferred to RHC Chowk Sarwar Shaheed vide order dated 10.6.2010 and again he was transferred to RHC Baseera on 11.7.2011. This order has been assailed by the petitioner through this Constitutional petition on the grounds that it is unlawful and against the policy of the Government of Punjab. Actually Akbar Ali, a corrupt Dispenser, had managed the said transfer of the petitioner so it has been prayed that the impugned order dated 11.7.2011 may be declared to be illegal and it be set aside. In support of his arguments the learned counsel has referred to 2009 PLC (C.S.) 44 LHR. (judgment of a Single Bench of this Court).

1. The learned AAG contends that the transfer relates to the terms and conditions of service so this Court has no jurisdiction to dwell upon the matter in view of Constitutional bar contained in Art.212 of the Constitution of Islamic Republic of Pakistan.

2. I have considered the arguments advanced from both the sides.

3. There is no cavil to the proposition that transfer relates to the terms and conditions of service and no civil servant can claim to be posted at a particular place. He can be transferred at any place and under Article 199 of the Constitution of Islamic Republic of Pakistan the High Court has no jurisdiction to entertain the matters relating to transfer I would refer to 2011 SCMR 592, wherein the apex Court held that before entertaining a Constitutional petition the High Court may determine as to whether it had jurisdiction to decide any matter relating to terms and conditions of a civil servant. In view of the bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan, the High Court has no jurisdiction to interfere into the matter of transfer. I would also like to refer to "1999 SCMR 1832", (Rai Ahmad Ali vs. Province of Punjab and others) wherein it was held as under:

"The order impugned before the High Court was open to challenge before the Services Tribunal after availing the departmental remedy. Article 212 of the Constitution is a bar against filing of a Constitutional petition in relation to the terms and conditions of civil servants. It has been repeatedly held by this Court that a Constitutional petition under Article 199 of the Constitution is not maintainable in relation to any matter connected with the terms and conditions of service in respect whereof the appropriate Service Tribunal is possessed of the requisite jurisdiction, in view of the provisions contained in Article 212 of the Constitution. This Court has also held that even in cases where the order is alleged to be mala fide, the bar of Article 212 is attracted."

1. The order impugned before the High Court was a transfer order. Besides the case law referred to above this Court has already held in 2011 PLC (CS) 324 (Jafar Ali Shah vs. Province of Punjab etc.) that it is well settled by now that the question of posting of a Government servant squarely falls within the domain of the competent authority subject to law and rules made there-under. The question of posting/transfer relates to terms and conditions of Government servant and Service Tribunal would have exclusive-jurisdiction to dilate upon such matters and the Constitutional jurisdiction of High Court cannot be invoked to get such controversies resolved as Article 212 of the Constitution of Islamic Republic of Pakistan ousts the jurisdiction of all other Courts and order of the Departmental Authority even though without jurisdiction or mala fide can be challenged only before the Services Tribunal and the jurisdiction of Civil Court and High Court was barred. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the Constitutional ouster.

2. In the light of the above discussion the writ petition is not maintainable and the impugned order relating to the transfer of the petitioner warrants no interference by this Court in exercise of its Constitutional jurisdiction under Art. 199 of the Constitution. So the petition is hereby dismissed in limine. The petitioner, if so advised, may avail the alternate remedy by way of filing a representation before the competent authority for redressal of his grievance in accordance with the policy of the Government of the Punjab.

(R.A.) Petition dismissed

PLJ 2012 Lahore 162 [Multan Bench Multan]

Present: Ch. Muhammad Younis, J.

MUHAMMAD SHABBIR--Petitioner

versus

ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE, MULTAN and another--Respondents

W.P. No. 3247 of 2010, decided on 6.9.2011.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code (V of 1898), Ss. 22-A & 154--Constitutional petition--Ex-officio Justice of Peace--Forged gift-deed was prepared--Application for registration of FIR was moved after lapse of period of 11 years and civil litigation was pended--Dismissal of--Question of--Whether delay lodging for registration of case was fatal and whether pendency of civil suit created bar for initiating criminal proceedings against accused--No limitation was proved for registration of a case--Held: Petition could not be dismissed merely due to delay in filing the petition--Allegedly gift-deed was executed fraudulently and it was forged and fake--If a person prepared a forged document and he himself filed a suit for specific performance on basis of thereof, he could not be absolved of his criminal liability as it would amount to perpetuate an illegality by refusing to initiate a criminal action against the person--Civil suit normally takes years to conclude--No one could be given benefit of his own wrong or misdeed--If a criminal offence was made out there was absolutely no bar for getting a criminal case registered against the accused person inspite of pendency of civil suit--Petition u/S. 22-A, Cr.P.C. could neither be dismissed on account of moving it with delay nor it could be rejected on ground of pendency of civil suit--Order was not sustainable in the eyes of law--Petition was accepted. [Pp. 164 & 165] A, B & C

2010 SCMR 105, 2006 SCMR 512, 2003 SCMR 1691 & 2008 SCMR 839 rel.

Mr. Shakeel Javed Chaudhry, Advocate for Petitioner.

Rana Muhammad Hussain, AAG for Respondents.

Date of hearing: 6.9.2011.

Order

Contends that the impugned order dated 22.08.2009 passed by the learned Addl. Sessions Judge/Ex-Officio Justice of Peace Multan is against law and facts. The petition under Section 22-A Cr.P.C. moved by the petitioner was dismissed only on the ground that it was filed after lapse of a period of 11 years and that civil litigation was also pending. The learned counsel goes on to submit that the wife of the petitioner Mst. Sultana Begum died on 09.08.1998, whereas the forged gift-deed was prepared bearing date as 03.04.1998. It was shown to be executed by Mst. Sultana Begum wife of the petitioner, whereas she never executed any such gift-deed in favour of Haider Ali.

1. I have considered the arguments advanced by the learned counsel for the petitioner.

2. The legal questions involved in the instant writ petition are as to whether the delay in lodging the petition for registration of case is fatal and whether the pendency of a civil suit creates bar for initiating criminal proceedings against the accused person. Admittedly, no limitation is provided for registration of a case. The petition could not be dismissed merely due to delay in filing the petition. Allegedly the gift-deed was executed fraudulently and it was forged and fake.

3. On the point of limitation I would like to rely on "2010 SCMR 105" (Muhammad Fiaz Khan V. Ajmer Khan) wherein it was held that no limitation is provided in criminal law for lodging a complaint. Delay in lodging the complaint is not by itself fatal except very exceptional circumstances. When a complaint is filed after a considerable delay which was not explained then in such a situation it raises suspicion as to its truthfulness. Similarly, I would also like to refer to "2006 SCMR 512" [Supreme Court of Pakistan] (Rafique Bibi V. Muhammad Sharif and others). The apex Courts observed as under:--

"Right of a woman in immovable property was to be protected. The complainant got registered FIR against the accused persons on the allegation of manipulation in revenue record and depriving lady of immovable property. The High Court in exercise of Constitutional jurisdiction quashed the FIR on the ground that it was registered with a delay of 26 years with mala fide intention and matter was of civil nature.

It was further observed regarding delay in lodging the FIR:--

"that the effect of lodging FIR with delay was always left to be considered by the trial Court seized of the matter. The delay in lodging FIR had not been considered fatal in every case by the superior Courts. If lodging of FIR with delay was explained convincingly then the Court would not terminate the proceedings on such score. The question of satisfying the delay entirely related to the factual aspect of the matter. No bar existed to initiate both the proceedings i.e. civil and criminal simultaneously. Mala fide was a question of fact which required proof by producing evidence. Supreme Court had always emphasized for the protection of rights of women particularly related to landed property".

The august Supreme Court of Pakistan converted petition for leave to appeal into appeal and set aside the judgment passed by the High Court whereby the proceedings in the FIR were quashed.

1. As regards the effect of pendency of civil litigation there is no cavil to the proposition that civil as well criminal proceedings can be initiated simultaneously as was observed by the apex Court in 2006 SCMR 512. If a person prepares a forged document and he himself files a suit for specific performance on the basis thereof, he cannot be absolved of his criminal liability as it would amount to perpetuate an illegality by refusing to initiate a criminal action against the said person. The civil suit normally takes years to conclude. No one could be given benefit of his own wrong or misdeed. If a criminal offence is made out there is absolutely no bar for getting a criminal case registered against the accused person inspite of pendency of civil suit. I am fortified in my view on this legal point by 2003 SCMR 1691 and 2006 SCMR 512 and 2008 SCMR 839.

2. In 2008 SCMR 839 the apex Court observed as under.

"It is well-settled that, a criminal case must be allowed to proceed on its own merits and merely because civil proceedings relating to same transaction have been instituted, it has never been considered to be a legal bar to the maintainability of criminal proceedings which can proceed concurrently because conviction for a criminal offence is altogether a different matter from the civil liability while the spirit and purpose of criminal proceedings is to punish the offender for the commission of a crime the purpose behind the civil proceedings is to enforce civil rights arising out of contracts and in law both the proceedings can co-exist and proceed with simultaneously without any legal restriction".

1. In the light of case law referred to above, it is held that the petition under Section 22-A Cr.P.C. could neither be dismissed on account of moving it with delay nor it could be rejected on the ground of the pendency of the civil suit in respect of the alleged agreement to sell. So, the impugned order is not sustainable in the eye of law. The writ petition is thus accepted and the impugned order is set aside. Consequently, the SHO P.S. Chehliyak Multan is directed to record the version of the petitioner and proceed with the matter strictly in accordance with law as per provisions of Section 154 Cr.P.C.

(R.A.) Petition accepted

PLJ 2012 Lahore 165

Present: Mehmood Maqbool Bajwa, J.

MUHAMMAD KHALID--Petitioner

versus

STATION HOUSE OFFICER and others--Respondents

W.P. No. 3485-Q of 2011, decided on 8.6.2011.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code (V of 1898) S. 154--Constitutional Petition--Quashment of FIR--Registration of second FIR--No legal bar--Question of--Whether order regarding registration of second FIR was nullity in eyes of law and as such FIR was required to be quashed--Different version with reference to date, time and venue of occurrence, attributing direct firing to petitioner aiming at his son due to previous rivalry and enmity--Validity--If oral information regarding commission of a cognizable offence was communicated to an officer incharge of police station, it would be reduced into writing by him or under his direction and be read over to informant--No line of distinction and demarcation had been made in the provision of law putting embargo to lay information before police even after registration of first report regarding same occurrence--Version introduced at instance of respondent entirely gave a different version suggesting commission of cognizable offence in manner and style highlighted in application u/S. 22-A, Cr.P.C.--Stance taken by respondent was not an elaboration explanation or amplification of first FIR, therefore, no legal bar to issue direction for registration of second FIR--Petition was dismissed. [P. 167] A & B

PLD 1997 Kar. 119, PLD 2008 Lah. 110, 2010 P.Cr.LJ 1629 & 2011 SCMR 45, fol.

Rai Muhammad Hussain Khan Kharal, Advocate for Petitioner.

Rana Shamshad Khan, AAG for Respondents.

Rana Sajid Hussain, Advocate for Respondent No. 3.

Date of hearing: 8.6.2011.

Order

Seeks quashment of FIR No. 47 of 2011 registered under Section 324 read with Section 34 of The Pakistan Penal Code, 1860 (XLV of 1860) in pursuance of order dated 10.01.2011 recorded by the learned Ex-Officio Justice of Peace, Jaranwala on the ground that Report registered at the instance of Respondent No. 3 is second in series regarding which occurrence, case FIR No. 772 of 2010 was already registered on the complaint of Muhammad Akram, S.I under Sections 324, 285 read with Section 34 of The Pakistan Penal Code, 1860 against present petitioner.

1. Heard adversaries and perused the record.

2. The learned counsel for the petitioner maintained that on 2.12.2010 there was marriage ceremony of one Faryad Ali in Chak No. 35/ G.B, in which firing was made by the petitioner resulting in sustaining of injuries by Muhammad Asif (son of Respondent No. 3), Tayyab Ali and Ali Raza. Muhammad Akram S.I P.S.Satiana, who along with police party was on patrolling at Adda Chak No. 34/G.B after hearing the reports of firing went to the place of occurrence and on his complaint, case FIR No. 772 of 2010 was registered.

3. Groused that after three weeks of registration of case, Respondent No. 3, father of Muhammad Asif (one of injured) appeared before the learned Ex-Officio Justice of Peace by making an application under Section 22-A of The Code of Criminal Procedure, 1898 and while twisting the facts with malice-in-fact procured order dated 10.01.2011 for registration of case and in pursuance of said order, case FIR No. 47 of 2011 was registered against the petitioner and two unknown persons. Making comparison of both the Reports, it was contended that altogether new and contradictory version was introduced at the instance of Respondent No. 3 having previous rivalry and enmity. Contended that since first FIR was registered regarding the occurrence and that too based on facts, therefore, order regarding registration of second FIR is nullity in the eye of law and FIR No. 47 of 2011 is required to be quashed.

4. On the other hand, the learned counsel for Respondent No. 3 maintained that present petitioner having close liaison with Muhammad Akram; S.I got a case registered bearing FIR No. 772 by distorting the facts and knitting the story regarding aerial firing in marriage ceremony though in fact on 02.12.2010 at 3:15 p.m. his son Asif with one Ali Raza were intercepted by petitioner and his associates and the petitioner made firing aiming at his son causing injuries on his forehead and legs. Maintained that Respondent No. 3 after getting knowledge regarding the registration of first FIR, approached local police appraising real facts and inaction prompted him to invoke the jurisdiction of learned Ex-Officio Justice of Peace for redressal of his grievance and as such no exception can be taken to the order impugned. Submitting arguments, on legal premises it was contended that there is no legal bar regarding registration of second FIR.

5. Question for consideration is whether in the given circumstances, order regarding registration of second FIR (Bearing No. 47 of 2011) is nullity in the eye of law and as such FIR is required to be quashed.

6. Text of Section 154 of The Code of Criminal Procedure, 1898 suggests that if oral information regarding commission of a cognizable offence is communicated to an officer incharge of police station, it shall be reduced into writing by him or under his direction and be read over to the informant. No line of distinction and demarcation has been made in the said provision of law putting embargo to lay information before police even after the registration of first Report regarding the same occurrence.

7. Perusal of accusation contained in both the Reports suggests that it is a case of two versions. Firstly, introduced by Muhammad Akram, S.I being complainant of FIR No. 772 of 2010 suggesting that son of Respondent No. 3 sustained injuries due to aerial firing made by the petitioner in the marriage ceremony of one Faryad Ali. Second version was introduced by Respondent No. 3, father of Muhammad Asif (injured) suggesting altogether different version with reference to date, time and venue of occurrence, attributing direct firing to the petitioner aiming at his son due to previous rivalry and enmity.

8. In view of the matter, version introduced at the instance of Respondent No. 3, entirely gives a different version suggesting commission of cognizable offence in the manner and style highlighted in the application under Section 22-A of The Code of Criminal Procedure, 1898. As the stance taken by Respondent No. 3 is not an elaboration, explanation or amplification of first FIR, therefore, there is no legal bar to issue direction for registration of second FIR. I am fortified in my view by law laid down in "Wajid Ali Khan Durrani and others v. Government of Sindh and others (PLD 1997 Karachi 119); Rana Ghulam Mustafa v. Station House Officer, Police Station, Civil Line, Lahore and 2 others (PLD 2008 Lahore 110); Rahat Javaid v. District Police Officer, Nankana Sahib and 6 others (2010 P.Cr.LJ-1629) and Mushtaq Hussain and others vs. The State (2011 SCMR 45).

9. Pursuant to above discussion, order for registration of second FIR made on the application of Respondent No. 3 is hardly subject to any exception and consequently question of quashment of FIR No. 47 of 2011 does not arise at all resulting in dismissal of petition.

(R.A.) Petition dismissed

PLJ 2012 Lahore 168 [Multan Bench Multan]

Present: Rauf Ahmad Shaikh, J.

ABRAR AHMAD--Petitioner

versus

DISTRICT POLICE OFFICER, DISTRICT VEHARI and 3 others--Respondents

W.P. No. 9477 of 2011, decided on 27.9.2011.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 154--Pakistan Penal Code, (XLV of 1860), Ss. 302, 148 & 149--Constitutional petition--Registration of second FIR, refusal of--SHO was under obligation to record statement of informant u/S. 154, Cr.P.C., when he furnished an information regarding commission of cognizance offence but once FIR had been recorded on statement of informant, he could not claim that his second statement to record u/S. 154, Cr.P.C. and fresh FIR be registered--No doubt if the person other than complainant furnished new facts and fresh information, the recording of second FIR was not barred but first informant could not insist on registration of second FIR--Request of petitioner could not be acceded to--Petition was dismissed. [P. 170] A

Mr. Muhammad Meharban Ranjha, Advocate, for Petitioner.

Mr. Muhammad Javed Saeed Pirzada, AAG, for Respondents No. 1 and 2.

Date of hearing: 27.9.2011.

Order

The petitioner has prayed that Respondent No. 2 be directed to record his statement under Section 154 Cr.P.C. and register the second FIR against Respondents No. 3 and 4.

1. The petitioner is complainant of case FIR No. 395/11 under Sections 302/148/149 PPC P.S. Gaggo, District Vehari. He had alleged that Shahzad armed with Gun 12 bore, Rizwan armed with repeater Gun and Ijaz armed with repeater Gun alongwith three unknown armed persons made an attack on his Dera and caused Qatal-i-Amd of his son Ishtiaq Ahmad. The motive was stated to be a minor altercation between the deceased and Shahzad accused. It was further added that he, Afzaal Ahmad, Shahid Iqbal and Abdul Qadir witnessed the occurrence.

2. It is contended that, in fact, the murder was caused by Aamer Mushtaq and Naseem Ullah Respondents Nos.3 & 4 and the occurrence was witnessed by Muhammad Irfan and Muhammad Hussain but they kept mum due to their close relationship with Respondents Nos.3 & 4, who had made extra-judicial confession also. He contended that he was informed by the said persons that Shahzad, etc., had murdered Ishtiaq Ahmad so he got the FIR lodged but then the witnesses stated before him on special oath that, in fact, Respondents No. 3 and 4 are actual culprits and that they had seen the occurrence so he moved an application for registration of the second FIR but Respondent No. 1 has refused to do the needful, who is under duty to register the second FIR after recording his statement under Section 154 Cr.P.C.

3. Learned counsel for the petitioner has reiterated the above contentions and urged that Respondent No. 2 was under obligation to reduce into writing the information furnished by him as the commission of cognizable offence was clearly made out.

4. The perusal of the record reveals that FIR No. 195/11 under Sections 302/148/149 PPC, P.S. Gaggo, District Vehari, was registered on the statement of the petitioner. The statement recorded by Muhammad Amin, ASI clearly shows that he put his signatures on the same after admitting the correctness of its contents. The argument of the learned counsel for the petitioner that he was mis-led by Afzaal Ahmad, etc. and the murder was actually committed by Respondents No. 3 & 4 and not the accused persons nominated in the FIR so second FIR should have been registered according to petitioner's contention, is without force. It is true that the SHO is under obligation to record the statement of the informant under Section 154 Cr.P.C., when he furnishes an information regarding commission of cognizable offence but once the FIR has been recorded on the statement of the informant, he cannot claim that his second statement be recorded under Section 154 Cr.P.C. and fresh FIR be registered. No doubt if the person other than the complainant/first informant furnishes new facts and fresh information, the recording of the second FIR is not barred but the first informant cannot insist on registration of the second FIR. The request of the petitioner cannot be acceded to. However, if he has got any grievance in this regard, he may seek remedy in form of private complaint in accordance with law, if so desired.

5. For the reasons supra, the writ petition is without merits and the same is hereby dismissed in limine.

(R.A.) Petition dismissed

PLJ 2012 Lahore 170 [Multan Bench Multan]

Present: Rauf Ahmad Shaikh, J.

ABDUL MALIK and 10 others--Petitioners

versus

SECRETARY TO GOVT. OF PUNJAB, HOME DEPARTMENT, LAHORE and 3 others--Respondents

W.P. No. 4197 of 2011, decided on 12.10.2011.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Pre-mature petition--Up-gradation posts--Photographers employed in jail department were placed in same grade and no one was given preferential treatment--Petitioners could not claim that they were being treated with discrimination--Validity--All employees placed in same cadre were BPS-08--So civil servants could not claim that they were being treated with discrimination--Grant of higher pay scale was within competence of the department of Govt. of Punjab and High Court while exercising jurisdiction under Art. 199 of Constitution could not pass the direction for up-gradation of specific post unless it was established that incumbent was not being treated equally with holder of same post in same department--High pay grade to the persons employed in other department could not be made basis for holding that civil servants were not being treated equally or being given discriminatory treatment--Petition was dismissed. [P. 172] A

Mr. Saeed Ahmad Qureshi, Advocate learned counsel for Petitioners.

Mr. Muhammad Javed Saeed Pirzada, AAG and Muhammad Hamamoun Saqib, Assistant Superintendent Jail for Respondents.

Date of hearing: 12.10.2011.

Order

The petitioners have prayed that the respondents be directed to upgrade their posts from BPS-08 to BPS-13. It is stated that they were recruited as photographers in the Jail Department in order to prepare the record of inmates of Jail and to prepare their photographs at the time of their entry. They are fully equipped with the knowledge and possess the required qualifications and have been performing their duties effectively. It is stated that photographers working under the information Department of the Federal Government and Information & Culture Department of the Government of Punjab have been given BPS-13 but the petitioners are still working in the same pay and scale. It is urged that their applications/representations were forwarded to the concerned Officers of the Jail Department, Home Secretary to the Government of Punjab, Chief Minister of the Punjab, Prima Minister of Pakistan and Chief Justice of Pakistan but no action has been taken. It is urged that other employees of the Jail Department have been benefited by up-gradation of their posts so posts held by them should also be up-grated.

1. The learned counsel for the petitioner has reiterated the above contentions and contended that the petitioners had been deprived of equal right of protection of law and are being treated with discrimination.

2. The learned AAG has vehemently opposed the petition. It is contended that the petitioners have submitted the representations, which are pending before the Administrative and Finance Departments, Government of Punjab and as such the writ petition is pre-mature. It is also contended that all the photographers employed in the Jail Department are placed in the same grade and no one is given preferential treatment so the petitioners cannot claim that they are being treated with discrimination.

3. It is not denied that the applications submitted and the representations made by the petitioners are pending before the concerned departments of the Govt. of the Punjab. All the employees placed in the same cadre are in BPS-08 so the petitioners cannot claim that they are being treated with discrimination. The grant of higher pay scale is within the competence of concerned department of Government of the Punjab and this Court while exercising the jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot pass the direction for up-gradation of the specific post unless it is established that the incumbent is not being treated equally with holder of the same post in the same Department. The higher pay grade to the persons employed in other Departments cannot be made basis for holding that the petitioners are not being treated equally or being given discriminatory treatment. The petition is without merits and the same is hereby dismissed. However, the concerned authorities should look into the matter on compassionate grounds and decide the representations/petitions, if still pending, expeditiously.

(R.A.) Petition dismissed

PLJ 2012 Lahore 172 [Multan Bench Multan]

Present: Muhammad Yawar Ali, J.

MUHAMMAD NADEEM SHAKIR--Petitioner

versus

GOVT. OF THE PUNJAB COMMUNICATION & WORK DEPARTMENT, LAHORE through its Secretary and 5 others--Respondents

W.P. No. 11661 of 2011, decided on 19.9.2011.

Constitution of Pakistan, 1973--

----Arts. 199 & 212--Civil servant--Order of transfer was tainted with mala fide--Petition was not maintainable on account of bar in Art. 212 of Constitution--Validity--Transfer of a civil servant is a matter relating to terms and conditions of service and bar contained in Art. 212 of Constitution would be fully attracted--High Court while exercising its extra ordinary Constitutional jurisdiction under Art. 199 of Constitution would have no jurisdiction to interfere in matter relating to terms and conditions of service of a civil servant--In instant case, civil servant had challenged his order of transfer and in light of judgment 2011 SCMR 592 can safely be concluded that High Court had no jurisdiction to issue a writ in favour of petitioner--Transfer was a matter relating to terms and conditions of service of a civil servant--Petition was not maintained. [P. 174 & 175] A, B, C & D

PLD 1997 SC 351, 2011 SCMR 592, 1998 SCMR 2280, ref.

Malik Ghulam Qasim Rijwana, Advocate for Petitioner.

Malik M. Sohail Iqbal Bhatti, Addl. A.G. for Respondents.

Mr. Khalid Saleem, Law Officer for Respondent No. 2.

Date of hearing: 19.9.2011.

Order

Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 the petitioner seeks setting aside of an order dated 27.08.2011 issued by Respondent No. 1, whereby the petitioner who was working as Deputy Director Architecture Multan was transferred and posted as Deputy Director Architecture Faisalabad.

1. The learned counsel for the petitioner submits that the impugned order of transfer is tainted with mala fide and is liable to be set aside on this ground alone. The impugned order of transfer has been issued in order to oblige Respondent No. 5 who wields a lot of political influence. The petitioner has always worked meticulously and there is no complaint pending against him. Since the impugned order has not been passed in the exigency of service, the same is liable to be declared illegal and set aside.

2. The learned law officer has vehemently opposed the petition and submitted that this petition is not maintainable on account of a bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan 1973.

3. Transfer of a civil servant is a matter relating to the terms and conditions of service and the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan 1973 would be fully attracted. The august Supreme Court of Pakistan in Khalid Mehmood Wattoo VS. Government of Punjab & others 1998 SCMR 2280 has held that even where an order relating to the terms and conditions of service of a civil servant has been passed on political considerations and is mala fide still the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan 1973 would be attracted.

4. It is trite that this Court while exercising its extra ordinary Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 would have no jurisdiction to interfere in matters relating to the terms and conditions of service of a civil servant. Article 212 of the Constitution of Islamic Republic of Pakistan 1973 reads as follows:--

"212. Administrative Courts and Tribunals.--(1) Notwithstanding anything herein before contained, the appropriate Legislature may by Act {provide for the establishment of} one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--

(a) matters relating to the terms and conditions of persons {who are or have been} in the service of Pakistan, including disciplinary matters;

(b) matters relating to claims arising from tortious act of Government, or any person in the service of Pakistan; or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or

(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.

(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends (and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal {; other than an appeal pending before the Supreme Court,} shall abate on such establishment}:

Provided that the provision of this clause shall not apply to an Administrative Court or Tribunal established under an act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, {Majlis-e-Shoora (Parliament)} by law extends the provisions to such a Court or Tribunal.

(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal.

The objection raised by the learned law officer has a lot of force. The merits of the case cannot be gone into by this Court without first determining whether it has the jurisdiction to decide the lis in hand as has been held by the Apex Court in Government of Sindh through Secretary Education & Literacy Department & others vs. Nizakat Ali & others 2011 SCMR 592. In the instant case the petitioner has challenged his order of transfer and in the light of the judgments referred to above it can safely be concluded that this Court has no jurisdiction to issue a writ in favour of the petitioner.

1. Article 189 of the Constitution of the Islamic Republic of Pakistan 1973 stipulates that the decisions of Apex Court would be binding on all other Courts and reads as follows:

2. Decisions of Supreme Court binding on other Courts.--Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan.

3. Principles of law enunciated by the Apex Court and all decisions which are rendered are not only of persuasive value but are also binding on all other Courts as has been held in Province of the Punjab through Secretary, Health Department VS. Dr.S. Muhammad Zafar Bukhari PLD 1997 S.C. 351.

4. Since transfer is a matter relating to the terms and conditions of service of a civil servant, the instant petition is held to be not maintainable and stands dismissed.

(R.A.) Petition dismissed

PLJ 2012 Lahore 176 [Multan Bench Multan]

Present: Ch. Muhammad Younis, J.

Mst. PARVEEN BIBI--Petitioner

versus

JUSTICE OF PEACE, TEHSIL MAILSI, DISTRICT VEHARI and 7 others--Respondents

W.P. No. 11193 of 2011, decided on 5.9.2011.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 22-A--Constitutional petition--Ex-officio Justice of Peace--SHO did not perform his duty--Fake and forged agreement to sell was prepared and signatures were forged on document by husband--Civil as well criminal proceedings can be initiated simultaneously--Criminal liability was distinct and different from civil liability--Application for registration of the case was dismissed--Applications to revenue authorities for cancellation of mutation were dismissed--Civil suit was pending--Validity--Since civil suit was pending between the parties in respect of agreement to sell so the criminal case could not be registered--Such view as violative of law and ex-officio Justice of Peace without applying his judicial mind proceeded to dismiss the petition and failed to get his own order implemented merely on basis of the Rapat which had no legal bearing--Civil as well criminal proceeding can be initiated simultaneously--If a person prepared a forged document and he himself filed a suit for specific performance on basis thereof, he could not be absolved of criminal liability as it would amount to perpetuate an illegality by refusing to initiate a criminal action against the person--Civil suit normally takes years to conclude--No one could be given benefit of his own wrong or misdeed--SHO was directed to record version of petitioner, register a case and proceed strictly in accordance with law against all persons found to be involved in commission of offence--Petition was accepted. [P. 178] A, B & D

Criminal and Civil Liabilities--

----Distinct and different from liability between the parties--If a criminal offence was made out there was absolutely no bar for getting a criminal case registered--Ex-officio Justice of Peace had already passed an order and he was duty bound to get his order implemented and not to follow a baseless Rapat of SHO. [P. 178] C

Mehr. Mazhar Abbas, Advocate for Petitioner.

Date of hearing: 5.9.2011.

Order

The learned counsel for the petitioner contends that petitioner had moved an application under Section 22-A Cr.P.C. to the learned Addl: Sessions Judge/Ex-Officio Justice of Peace Mailsi, for registration of case against the Respondents No. 3 to 8 with the allegations that she was married to Javed Riaz Respondent No. 4 who had got land measuring 106-Kanals and 12-Marlas mutated in favour of the petitioner through gift-deed dated 23.08.1994, whereas the remaining land measuring 93-Kanal and 08-Marlas was promised to be transferred to her. He moved applications to the revenue authorities for cancellation of the mutation but his appeals were dismissed and then he filed a civil suit. The petitioner also filed a suit for the remaining land promised to be given in lieu of dower but as a result of compromise she relinquished her claim of the remaining land. However, the land measuring 106-Kanal and 12-Marla was acknowledged to have been transferred to the petitioner lawfully by her husband. Afterwards, a fake and forged agreement to sell was allegedly prepared on 20.02.2010 and her signatures were forged on the said document by her husband in respect of the suit land in connivance with the remaining respondents. Infact she neither went to Burewala nor purchased any stamp paper nor executed any agreement to sell nor put her signatures thereon as she was living in Multan since November, 2009. So, in order to mis-appropriate her property, fraud has been committed with her and a forged agreement to sell was prepared. The Ex-Officio Justice of Peace after obtaining the comments from the SHO P.S. City Mailsi directed him to proceed in accordance with law. The SHO did not perform his duty so the petitioner was constrained to file a petition to the Ex-Officio Justice of Peace who vide impugned order dated 09.03.2011 relying on Rapat No. 6 dated 08.03.2011 submitted by the SHO under Section 157(2) Cr.P.C. dismissed the petition and observed that the petitioner was at liberty to file a private complaint, if so advised.

1. The learned counsel for the petitioner rightly argued that the impugned order of the Ex-Officio Justice of Peace is not sustainable in the eye of law. He was bound to apply his judicial mind and he should not have acted just on the whims of the SHO.

2. I have considered the arguments advanced by the learned counsel for the petitioner and have perused the Rapat recorded by the SHO which is based on frivolous ground. It has been mentioned in the said Rapat that since the civil suit is pending between the parties in respect of the said agreement to sell so the criminal case cannot be registered. This view is violative of the law and the learned Ex-Officio Justice of Peace without applying his judicial mind proceeded to dismiss the petition and failed to get his own order implemented merely on the basis of this Rapat which had no legal bearing.

3. There is no cavil to the proposition that the civil as well criminal proceedings can be initiated simultaneously. If a person prepares a forged document and he himself files a suit for specific performance on the basis thereof, he cannot be absolved of his criminal liability as it would amount to perpetuate an illegality by refusing to initiate a criminal action against the said person. The civil suit normally takes years to conclude. No one could be given benefit of his own wrong or misdeed.

4. The contents of the petition under Section 22-A Cr.P.C. moved by the petitioner revealed the commission of a cognizable offence as allegedly a forged agreement to sell was prepared by her husband in connivance with other persons so there was no legal bar to initiate criminal proceedings against the accused. Reliance is placed on 2003 SCMR 1691, 2006 SCMR 512 and 2008 SCMR 839.

5. In 2008 SCMR 839 the apex Court observed as under.

"It is well-settled that, a criminal case must be allowed to proceed on its own merits and merely because civil proceedings relating to same transaction have been instituted it has never been considered to be a legal bar to the maintainability of criminal proceedings which can proceed concurrently because conviction for a criminal offence is altogether a different matter from the civil liability while the spirit and purpose of criminal proceedings is to punish the offender for the commission of a crime the purpose behind the civil proceedings is to enforce civil rights arising out of contracts and in law both the proceedings can co-exist and proceed with simultaneously without any legal restriction".

1. The criminal liability was always distinct and different from civil liability between the parties. If a criminal offence was made out there was absolutely no bar for getting a criminal case registered. The learned Ex-Officio Justice of Peace had already passed an order and he was duty bound to get his order implemented and not to follow a baseless Rapat of the SHO. In the light of the above discussion and the case law referred to above, the impugned order is not sustainable in the eye of law. So, the writ petition is accepted and the impugned order is hereby set aside. The SHO is directed to record the version of the petitioner, register a case and proceed strictly in accordance with law against all the persons found to be involved in commission of offence.

(R.A.) Petition accepted

PLJ 2012 Lahore 183 [Multan Bench Multan]

Present: Kh. Imtiaz Ahmad, J.

Mst. RUQIA BANO--Petitioner

versus

JUDGE FAMILY COURT KAROR PAKKA, LODHRAN and 2 others--Respondents

W.P. No. 5108 of 2004, decided on 26.10.2011.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Concurrent findings cannot be interfered with in writ petition--Pronouncement of talaq was necessary--Dismissal suit for jactitation of marriage and decreed the suit for restitution of conjugal rights--Consolidated judgment--Question of--Whether previous husband had ever divorced plaintiff and if it was proved that he had not divorced plaintiff then even if plaintiff had contracted marriage with defendant even then she could not be said to be legal wedded wife--If talaq nama had been obtained then why the talaq nama had not been produced in evidence--In fact no talaq nama was ever executed--Statement of petitioner does in no way establish that her husband had divorced her--If it is left to discretion of the wife that whenever she would say that she had been divorced by her husband then talaq would be presumed then it would lead to indefinite litigation and even otherwise it is against principle of law, since talaq is to be pronounced by husband and mere statement of wife is not enough to prove that she had been divorced--Courts below had infact misread evidence and had dealt with the case from different angle that since the plaintiff had alleged that she had been divorced, so divorce stands established and thus committed material irregularity while declaring plaintiff to be legally wedded wife of defendant--Normally Courts in a writ petition do not interfere with concurrent findings but when there was clear cut misreading of evidence and material irregularity in impugned judgments High Court has jurisdiction to interfere even if findings are concurrent--Suit was filed by plaintiff for jactitation of marriage stands decreed while suit for restitution of conjugal rights stands dismissed. [Pp. 189 & 190] A, B, C, D & E

Mr. Muhammad Ramzan Khalid Joya, Advocate for Petitioner.

Malik Muhammad Latif Khokhar, Advocate for Respondents.

Date of hearing: 25.10.2011.

Judgment

Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, consolidated judgment and decree dated 10.12.2003 passed by the learned Judge Family Court, Kahroor Pakka whereby the suit filed by the present petitioner for jactitation of marriage was dismissed while the suit filed by the Respondent No. 3 herein namely Mureed Hussain for restitution of conjugal rights was decreed and consolidated judgment of learned Additional District Judge, Kahroor Pakka dated 14.5.2004 whereby both the appeals filed by the present petitioner were dismissed, have been challenged.

1. The relevant facts for the disposal of this writ petition are that Mst. Ruqia Bano the present petitioner filed a suit on 19.6.2003 for jactitation of marriage against Mureed Hussain-Respondent No. 3 herein. The claim of the plaintiff was that on 19.5.2003 she was abducted by the defendant along with his companions and during this period the defendant committed Zina with her and thereafter the police recovered her on the order of learned Sessions Judge, Lodhran but during the period of abduction the defendant forcibly obtained her thumb impression on different papers and her husband Qurban Hussain also got the criminal case registered against the defendant and his companions Bearing FIR No. 190-2003 under Sections 10(3) and 16 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 at Police Station Saddar Kahroor Pakka. It was further alleged that the accused of said criminal case in their bail petition took the plea that the plaintiff was legally wedded wife of defendant and defendant also claimed the plaintiff to be his legally wedded wife, though, the plaintiff never entered into marriage with the defendant nor she was wife of defendant Mureed Hussain nor she ever signed any Nika Nama, though, during the period of her abduction the accused forcibly obtained her thumb marks and signatures. Thus, it was prayed that the plaintiff was not legally wedded wife of Mureed Hussain and decree for jactitation of marriage was sought for by the plaintiff. The suit was resisted by the defendant who filed the written statement wherein it was alleged that Qurban Hussain had divorced the plaintiff with his free consent and after the period of iddat the plaintiff contracted Nikah with the defendant but after the marriage the ex-husband of the plaintiff namely Qurban Hussain who had divorced the plaintiff, enticed away the plaintiff and took her to his home and while leaving the plaintiff also took jewelry and cash of the defendant and thereafter the false case registered against the defendant and with due planning the plaintiff and her husband Qurban Hussain filed a petition under Section 491 Cr.P.C. in the Court of learned Sessions Judge, Lodhran. It was further alleged that the marriage of plaintiff with the defendant took place on 19.3.2002. The defendant also filed a suit for restitution of conjugal rights and both the suits were consolidated and out of the pleadings of the parties, the following consolidated issues were framed :--

2. Whether the plaintiff has no cause of action to file this suit? OPD

3. Whether the suit is based on mala fide intention? OPD

4. Whether the plaintiff is legally wedded wife of the defendant? OPD

5. Whether the plaintiff is entitled to the decree for jactitation of marriage? OPP

6. Whether the defendant is entitled to the decree for restitution of conjugal rights? OPD

5-A. Whether Qurban Hussain has divorced the plaintiff? OPD

1. Relief.

2. The parties produced their evidence and after hearing them the learned trial Court decided Issues No. 1 & 2 against the defendant. Issues No. 3 & 5-A were decided in favour of defendant Mureed Hussain. Issue No. 4 was decided against the plaintiff. Issue No. 5 was decided in favour of the defendant and resultantly vide impugned judgment and decree dated 10.12.2003 dismissed the suit for jactitation of marriage and decreed the suit for restitution of conjugal rights. Feeling aggrieved the present petitioner filed two separate appeals, one against the dismissal of her suit for jactitation of marriage and the other against the decree for restitution of conjugal rights passed in favour of the defendant and both the appeals through consolidated judgment were dismissed by the learned Additional District Judge, Kahroor Pakka vide judgment and decree dated 14.5.2004. Hence this writ petition.

3. Learned counsel for the petitioner contended that it is an admitted fact that both the parties belong to Shia sect and according to Shia Law, the pronouncement of Talaq is necessary but both the Courts below had ignored this fact and from the evidence it is not established that Qurban Hussain husband of the plaintiff had ever pronounced the Talaq. He further contended that according to the defendant Qurban Hussain has executed a written Talaq Nama but strangely enough the said Talaq Nama was not produced in the evidence nor there is any evidence to show that in whose presence Qurban Hussain had ever pronounced the Talaq. He further contended that even if for argument sake it be presumed that the plaintiff had entered into a marriage with Mureed Hussain even then it does not imply that she was divorced by her husband Qurban Hussain and both the Courts below had misread the evidence and had decided the case merely on presumptions and conjectures while ignoring this important aspect of the case that from the evidence it is not established that Qurban Hussain has ever divorced the plaintiff. He further contended that the plaintiff is now residing with Qurban Hussain and has one child out of the wedlock and she is 9 months pregnant and at this stage even the paternity of said child is at stake.

4. On the other hand, learned counsel for the respondent supported the impugned judgments and decrees of both the Courts below and contended that the evidence produced by the plaintiff clearly shows that plaintiff was divorced by Qurban Hussain and documentary evidence also established this fact. He contended that concurrent findings of both the Court below can not be interfered with in writ petition. He placed reliance upon "Peter John and others Vs. Syed Ali Imam and others" (1986 MLD 1008), "Liaquat Hussain and others vs. Abdul Majid and others" (1986 SCMR 1906), "Shahid Raza Vs. Dr. Fauzia Shaheen etc" (NLR 2005 Civil 235), "Muhammad Nawaz and another Vs. Inayat Muhammad and another" (1990 SCMR 1027) and "Abdul Rahim Vs. Maqbool Ahmad" (NLR 1988 SCJ-126).

5. Arguments heard. Record perused.

6. Infact Issues No. 3 & 5-A are the material issues on the basis of which the fate of present controversy rests. As has been mentioned above that in the written statement the defendant alleged that Qurban Hussain had divorced the plaintiff and thereafter she contracted marriage with the defendant. Now the moot point is that whether Qurban Hussain had divorced the plaintiff and if it is proved that she was never divorced by the Qurban Hussain then even if the plaintiff had contracted marriage with Mureed Hussain, even then the said marriage is absolutely void so the determining factor in this case is that whether Qurban Hussain had ever divorced the plaintiff. In this respect Mst. Ruqia Bano herself appeared as PW-1. She deposed that she was married with Qurban Hussain on 22.2.2002 and she was never divorced by Qurban Hussain nor she contracted marriage with Mureed Hussain but she was abducted by Mureed Hussain and her thumb marks were obtained on papers forcibly. In the cross-examination she deposed that she had filed a suit for maintenance against Qurban Hussain but thereafter the compromise was affected. She was questioned by the Court that whether she appeared before the Family Court, Mailsi and made the statement to which she replied that she was forcibly taken away to the Court and her statement was got recorded. She denied that she was ever divorced by Qurban Hussain. She admitted her picture Ex.D-I with Mureed Hussain but deposed that it was forcibly taken in order to blackmail Qurban Hussain. Now from the statement of PW.1 at least it is established that she had denied that she had ever been divorced by Qurban Hussain. Bilal Hussain appeared as PW-2. This witness was brother-in-law of Qurban Hussain and he also deposed that Qurban Hussain had never divorced the plaintiff. Zameer Hussain who was also brother-in-law of Qurban Hussain appeared as PW-3 and he also denied that plaintiff was ever divorced by Qurban Hussain. Qurban Hussain PW-4 deposed that plaintiff was married with him on 22.2.2002 and he had never divorced the plaintiff. The statement of PW-2 also reveals that he admitted that the plaintiff after the alleged marriage with Mureed Hussain remained at the house of father of plaintiff but he denied the suggestion that on 20.12.2002 Qurban Hussain had divorced her. Now this statement at the most suggest that plaintiff married with Mureed Hussain but in no way it proves that she was divorced by Qurban Hussain.

7. As has been mentioned above that PW-4 Qurban Hussain himself denied that he ever divorced the plaintiff. In the cross-examination he denied that on 12.2.2002 he had purchased the stamp paper and handed over it to Irshad Hussain father of plaintiff. He also denied that on 12.12.2002 he had divorced Mst. Ruqia Bano. He also admitted that the plaintiff had filed a suit against him at Mailsi and appeared before the said Court and made the statement. He denied that Mst. Ruqia Bano before the said Family Court at Mailsi had made the statement that Qurban Hussain had divorced her. Besides this oral evidence a copy of FIR Ex.P-1 and copy of Nikah Nama mark "A" was produced by the plaintiff in evidence. On the other hand Shamshad Ahmad appeared as DW.1. This witness is very much material since on the basis of statement of this witness and other DWs both the Courts below had come to the conclusion that Qurban Hussain had divorced the plaintiff. This witness deposed that on 12.12.2002 Qurban Hussain, Niaz Shah, Zafar Abbas, Bashir Shah, Irshad Shah and Mushtaq Shah after Maghrab came to him and Mureed Hussain got executed Talaq Nama on the stamp paper of value of Rs.85. Qurban Hussain got it written with his consent and he thumb marked the same and that Qurban Hussain was previously known to him and after writing the said Talaq Nama he handed it over to Qurban Hussain and also made entry in the register of stamp paper and Qurban Hussain also thumb marked and signed his register and this stamp paper was entered at Serial No. 1126 of the said register dated 12.12.2002. He further deposed that Qurban Hussain got executed another Iqrar Nama which was executed between Irshad Hussain father of plaintiff and Qurban Hussain and this stamp paper was also signed by Qurban Hussain and 4 others. Iqrar Nama was entered at Sr.No. 1127 dated 12.12.2002 and this Iqrar Nama is Ex.D-2. Now if we go through the statement of this witness, this clearly shows that allegedly on 12.12.2002 two stamp papers were executed by Qurban Hussain, one was Talaq Nama which was handed over to Qurban Hussain and other was Iqrar nama. Iqrar Nama has been produced as Ex.D-2 but strangely enough the said written Talaq Nama has not been produced in evidence. At the most it implies that Talaq Nama was got executed by Qurban Hussain but no where statement of this witness shows that Qurban Hussain had pronounced the Talaq. Until and unless the Talaq is pronounced, it cannot be presumed that Qurban Hussain had divorced the plaintiff.

8. There is yet another aspect which must be kept in mind that as to when allegedly Qurban Hussain had divorced the plaintiff. When PW-4 Qurban Hussain himself appeared as a witness the suggestion was put to him that he had divorced Mst. Ruqia Bano on 12.12.2002. However, when PW-2 appeared as witness a suggestion was put to him that Qurban Hussain had divorced Mst. Ruqia Bano on 20.12.2002 but when the plaintiff herself appeared as PW. 1 no date was put to her that on the said date i.e. on 12.12.2002 or 20.12.2002 Qurban had divorced her. It may also be mentioned here that Ex.D-2 stamp paper of Iqrar Nama was not issued in the name of Qurban Hussain but in the name of Irshad Hussain and entry is available on the back of Ex.D-2. Niaz Hussain appeared as DW.2. He narrated entirely different story. He submitted that Qurban had filed a suit for restitution of conjugal rights on 23.11.2002 and notice was received at the house of Irshad Hussain and both the parties on 12.12.2003 (and not on 12.12.2002) assembled at his house and he asked Irshad Hussain not to get the criminal case registered but they would get executed the Talaq Nama from Qurban Hussain and on the same day Qurban Hussain executed the Talaq Nama. Now according to this witness the Talaq nama was executed on 12.12.2003. This also negates the version of defendant that on 12.12.2002 Qurban Hussain had executed Talaq Nama. At the cost of repetition it may be mentioned here that said Talaq Nama has never been produced in the Court. Now this witness is also silent that Qurban Hussain had ever pronounced the Talaq orally as is the case of DW.1. The third witness is Mushtaq Hussain, who is DW-3 and he is father of Mureed Hussain defendant. He deposed that father of plaintiff had obtained Talaq from Qurban Hussain through Punchayat and Qurban had divorced the plaintiff with his free consent. He has not uttered even a single word that Qurban Hussain had pronounced the Talaq or had ever executed any Talaq Nama so his statement also does in no way imply that Qurban had ever pronounced the Talaq. In the cross-examination also he admitted that at the time of Talaq he was not present. He also admitted that even in the Punchayat he was not present. In the cross-examination he further deposed that Seghaz ( ) of Talaq were recited by Zulfiqar Shah at the house of Irshad Hussain but strangely enough the said Zulfiqar Shah has not been produced as a witness. He admitted that it was his uncle who informed him that plaintiff had been divorced. Mureed Hussain himself appeared as DW-5. He deposed that plaintiff was divorced by Qurban Hussain. He admitted that Qurban Hussain got criminal case registered against him for abduction of plaintiff and he remained in jail. He has not uttered even a single word that in whose presence Qurban Hussain had ever pronounced the Talaq.

9. As far as documentary evidence is concerned, Ex.P-1 is the copy of FIR No. 190 dated 4.6.2003 wherein Qurban Hussain had got the criminal case registered against Mureed Hussain for the abduction of his wife Mst. Ruqia Bano. Ex.D-1 is the photograph of Mureed Hussain and plaintiff but as has been mentioned above that the main controversy is that whether Qurban Hussain had ever divorced the plaintiff and if it is proved that he had not divorced the plaintiff then even if the plaintiff had contracted marriage with Mureed Hussain even then she could not be said to be legal wedded wife of Mureed Hussain. Ex.D-2 is the Iqrar nama allegedly executed between Irshad Hussain and Qurban Hussain. In this Iqrar nama it is mentioned that Irshad Hussain through Punchayat had obtained the Talaq nama dated 12.12.2002. Even in this Iqrar Nama it is nowhere mentioned that Qurban Hussain had pronounced the Talaq. If the Talaq Nama had been obtained by Irshad Hussain as is mentioned in Ex.D-2, then why the said Talaq Nama has not been produced in evidence. This apparently also shows that infact no Talaq Nama was ever executed. Had it been so executed, this would have been the most material document. Ex.D-3 is the copy of plaint which shows that on 17.2.2003 the plaintiff had filed a suit for maintenance against Qurban Hussain. The order sheet shows that on 25.4.2003 the defendant Qurban Hussain made the statement that he was ready to pay Rs.500/- per month as maintenance provided the plaintiff resides with him. On this statement the plaintiff was summoned by the Family Court, Mailsi. The plaintiff appeared before the Court on 3.6.2003. It may be mentioned here that this was not the date fixed in the main suit and file was requisitioned on the written application of Mst. Ruqia Bano wherein she made the statement that Qurban Hussain had divorced her and she had not filed the suit and she had contracted marriage with Mureed Hussain and that the suit be dismissed. Now strangely enough on the same statement the case was adjourned for the fixed date wherein only order was passed that since the plaintiff had refused that she had filed the suit so it be dismissed. The said Court had not summoned Qurban Hussain to verify this fact that whether he had divorced the plaintiff or not in this way this statement of Mst. Ruqia Bano does in no way establish that Qurban Hussain had divorced her. If it is left to the discretion of the wife that whenever she would say that she had been divorced by her husband then the Talaq would be presumed then it would lead to indefinite litigation and even otherwise it is against the principle of law, since Talaq is to be pronounced by the husband and mere statement of wife is not enough to prove that she had been divorced. Ex. D-5 is a petition moved by Irshad Hussain against Qurban Hussain for harassment and this document is as no help for reaching at the conclusion that Qurban Hussain had divorced the plaintiff. Thus, after going through the entire evidence, it stands established that no where from the evidence it is proved that Qurban Hussain had ever divorced the plaintiff Both the Courts below had infact misread the evidence and has dealt with the case from different angle that since the plaintiff had alleged that she had been divorced, so the divorce stands established and thus, committed material irregularity while declaring the plaintiff to be the legally wedded wife of Mureed Hussain.

10. As far as the contention of learned counsel for the respondent with regard to concurrent findings of both the Courts below are concerned, suffice it would be to say that normally the Courts in a writ petition do not interfere with the concurrent findings but when there is clear cut misreading of evidence and material irregularity in the impugned judgments, this Court has the jurisdiction to interfere even if the findings are concurrent. On this principle the case law cited by the learned counsel for the respondent is distinguishable. Resultantly, the findings of learned Trial Court and learned appellate Court on Issues No. 3, 4, 5 & 5-A are set aside. Issue No. 3 stands decided against the defendant. Issue No. 4 stands decided in favour of the plaintiff. Issues No. 5 and 5-A stands decided against the defendant. Resultantly, the judgments and decrees of both the Courts below are set aside and the suit filed by the plaintiff for jactitation of marriage stands decreed while the suit filed by Mureed Hussain for restitution of conjugal rights stands dismissed. Since the complicated questions of fact and law were involved, so the parties are left to bear their own costs.

(R.A.) Petition allowed

PLJ 2012 Lahore 191 [Multan Bench Multan]

Present: Rauf Ahmed Sheikh, J.

MUHAMMAD ZUBAIR alias MUHAMMAD JAVAID--Petitioner

versus

ADDITIONAL SESSIONS JUDGE, BUREWALA, DISTRICT VEHARI and 2 others--Respondents

W.P. No. 3508 of 2011, decided on 17.10.2011.

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----S. 17(1)--Constitution of Pakistan, 1973, Art. 199--Suit for recovery of dowry article--List of dowry was not thumb marked by her and except her brother no one else put thumb impressions or signature on it--Depreciation of value--Standard of evidence prescribed for civil suits might not be available in family suits--Concurrent findings--Maintainability of constitutional petition--Validity--Marriage of daughter or sister was arranged with hope and prayer that she would lead a happy married life and usually father or brothers did not take care in preparation of list of articles of dowry and obtaining the signatures of attesting witnesses. [P. 193] A

Maintenance--

----Right of maintenance--Unlimited and unqualified right to get maintenance--Rate of maintenance for period of iddat in favor of wife i.e. Rs. 5,000/- for three months was also not excessive. [P. 194] B

Mr. Muhammad Ehsaan Alvi, Advocate for Petitioner.

Mr. Tariq Zulfiqar Ahmad Chaudhry, Advocate for Respondents No. 2 and 3.

Date of hearing: 17.10.2011.

Order

The petitioner has assailed the vires of judgment and decree dated 28.01.2011 passed by the learned ADJ, Burewala, whereby an appeal filed by him against the judgment and decree dated 29.09.2010 passed by the learned Judge Family Court, Burewala was dismissed. The Plaintiffs/Respondents No. 2 and 3 had contended that marriage between petitioner and Respondent No. 2 was solemnized on 25.3.2008 and out of wedlock the Respondent No. 3 was born. It was alleged that during the period the spouses lived together, the attitude of the defendant/petitioner was not good towards her. She further alleged that he turned her out of the house after snatching the articles of dowry worth Rs. 1,41,800/-. It was also alleged that defendant/petitioner makes sweets and earns Rs.7,000/- P.M.

1. The defendant/petitioner contested the suit. It was contended that the articles of dowry given to Respondent No. 2 by her parents at the time of her marriage were worth Rs.50,000/- only and after three months of marriage she shifted to the house of her parents. It is alleged that she had also taken ornaments and cash amount of Rs. 1,00,000/- from the house of his parents. He asserted that the articles of dowry are in possession of Respondent No. 2 and the value of the same is only Rs.50,000/-. The learned trial Court framed the following issues:-

(i) Whether the plaintiffs are entitled to recover the maintenance allowance from the defendant as prayed for in their plaint? OPP

(ii) Whether the plaintiff is entitled to recover the dowry articles from the defendant as prayed for in her plaint? OPP

(iii) Relief.

1. After recording the evidence and hearing the arguments, the learned Court proceeded on to pass a decree for maintenance @ Rs.1200/- P.M in favour of Respondent No. 3 with 10% increase per annum and Rs.5,000/- in lump-sum for the period of "Iddat" in favour of Respondent No. 2 and decree for recovery of articles of dowry as per list Ex.P1 minus the articles mentioned at Sr.No. 14 and 20% depreciation of the value, was also passed in favour of Respondent No. 2. The defendant/petitioner assailed this judgment through an appeal, which was dismissed vide impugned judgment and decree dated 28.01.2011.

2. The learned counsel for the petitioner has contended that the learned trial Court and the learned ADJ both have miserably failed to appreciate the evidence in its true perspective; that the list of the articles dowry Ex.P1 is not proved in accordance with law; that the P.W-2 had admitted that some articles might have been added in the list and as such the whole claim is doubtful; that the articles worth Rs. 50,000/- were given and it is proved on the record that the Plaintiff/Respondent No. 2 had taken the same to the house of her parents and that the rate of maintenance is beyond the means of the petitioner because he is an employee on the sweet shop. In support of the contentions raised reliance is placed on 2006 MLD 555 (Peshawar).

3. The learned counsel for the Respondents No. 2 and 3 has vehemently opposed the petition. It is contended that the petitioner had himself admitted that articles of dowry were given to Respondent No. 2 but has not given the details of the same wilfully; that the price of these articles mentioned by him is not proved; that the standard of evidence prescribed for the civil suits may not be available in a family suits but the Court has to decide the matter keeping in view the evidence produced by the parties; that both the Courts below have properly appreciated the evidence and the impugned judgment and decree do not suffer from any illegality or infirmity so no interference can be made in exercise of power under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In support of the contentions raised reliance is placed on NLR 2005 Civil 256.

4. According to Respondent No. 2 she was given articles of dowry as per list annexed with the petition. The defendant/petitioner did not refute her contention to the extent that dowry was given to her by her parents but contended that its value was Rs.50,000/- only and not Rs.1,41,800/-. He, however did not give details of the articles of dowry. It is true that the Plaintiff/Respondent No. 2 in her statement had contended that the list of dowry was not thumb marked by her and except her brother no one else put the thumb impressions or signature on it but she has given full details of the articles of dowry in her statement. P.W-2 has stated that articles of dowry were given as per list Ex.P1. In our society, the marriage of the daughter or sister is arranged with the hope and prayers that she would lead a happy married life and usually the father or brothers do not take care in preparation of the list of articles of dowry and obtaining the signatures of the attesting witnesses. It appears that the provisions of Qanun-e-Shahadat Order, 1984 were not made applicable on the proceedings before the Judge Family Court as provided under Section 17(1) of the Family Court Act, 1964 by the law makers keeping in view this aspect of the matter. It is an admitted fact that the articles of dowry were given. The plaintiff/Respondent No. 2 has given the details of these articles and the prices thereof. The contention of the petitioner/defendant that these articles were taken by the Plaintiff/Respondent No. 2 to the house of her father is not substantiated by any cogent evidence. The D.W-2 has stated that the articles of dowry were brought to the house of defendant/petitioner and they had taken the same to the different places wherever, they resided together. The case law cited at the bar by the learned counsel for the petitioner is not applicable on the facts of the present case. The concurrent findings of the learned trial Court and the learned ADJ in this respect are unexceptional. The Respondent No. 3 is real son of the petitioner and has unlimited & unqualified right to get maintenance from him. The rate of maintenance is very reasonable. Similarly rate of maintenance for the period of Iddat in favour of Respondent No. 2 (i.e Rs.5,000/- for three months) is also not excessive. For the reasons supra, the writ petition is without merits and the same is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2012 Lahore 194 [Multan Bench Multan]

Present: Ch. Muhammad Younis, J.

AMAAR NAZIR QURESHI--Petitioner

versus

DIRECTOR GENERAL PAKISTAN POST and 2 others--Respondents

W.P. No. 8657 of 2011, decided on 11.10.2011.

Constitution of Pakistan, 1973--

----Art. 212--Post Office Manual Volume IV--R. 278--Civil servant--Transferred on administrative grounds in public interest--No notice was required to be given in case of transfer--No jurisdiction of High Court in service matter--Bar of--Jurisdiction of High Court is barred u/Art. 212 of Constitution--Civil servant can be posted and asked to server anywhere--No employee had any vested right to be posted at any particular place. [P. 197] A

1998 SCMR 2280, ref.

Constitution of Pakistan, 1973--

----Arts. 199 & 212--Civil servant--Transfer order--Assailed--Transferred on administrative grounds--Exceptions--No notice was required to be given in case transfer was made in public interest with approval of competent authority--High Court had no jurisdiction in service matter--Validity--Constitutional petition by civil servant u/Art. 199 of Constitution in relation to any matter connected with terms and conditions of service whereof service tribunal had jurisdiction was not maintainable in view of provisions of Art. 212 of Constitution--Petition was not maintainable. [P. 197] B

Mr. Muhammad Maalik Khan Langaah, Advocate for Petitioner.

M/s. Syed Asif Raza Gillani and Sardar Abid Khan Jatoi, Advocates for Respondents.

Kh. Noor Mustafa, D.A.G.

Date of hearing: 11.10.2011.

Order

Through this constitutional petition, the petitioner has assailed his transfer order dated 04.07.2011 whereby he was transferred as DSPS D.G. Khan to Muzaffargarh.

1. The learned counsel for the petitioner contends that the petitioner was performing his duties as DSPS with Pakistan Post Rawla Kot wherefrom he was transferred to D.G. Khan on 21.12.2010. The petitioner is presently working at the said post. Vide order dated 12.05.2011 he was transferred to Muzaffargah and the Respondent No. 3 was transferred to D.G. Khan in his place. The impugned order dated 12.05.2011 was assailed before this Court in W.P. No. 5933/11, which was disposed of on 18.05.2011 by remitting a copy of the writ petition to the Respondent No. 1 for redressal of the grievance of the petitioner in terms of Clause 278 of the Post Office Manual Volume VI and the Respondent No. 1 was directed to decide the same within one month. Till then the operation of the impugned order was suspended. The petitioner has again filed the instant writ petition as his grievance was not repressed and the Respondent No. 1 without giving any notice to the petitioner passed a mechanical order dated 04.07.2011 maintaining the earlier order. The impugned order dated 04.07.2011 has been assailed on the ground that same is against law and facts as the provisions of Clause 331 of the Pakistan Post Office Manual Volume V regarding posting and transfer policy have been flouted by not giving a three months notice to the petitioner before his transfer. The policy of Establishment Division has also not been followed. So, the impugned order dated 04.07.2011 is liable to be set aside and it has been prayed that the petitioner may be allowed to continue performing his duties at his present place of posting. It has further been argued that transfer order of the petitioner was passed just to please the MNAs and MPAs of the area and to accommodate the Respondent No. 3, which was violative of the guidelines given by the Hon'ble Supreme Court of Pakistan in "Zahid Akhtar Vs. Govt. of the Punjab, PLD 1995 SC 530. In support of his arguments, the learned counsel for the petitioner referred to 2011 PSC 1200 (Supreme Court of Pakistan) wherein it was held that when a transfer is made contrary to the relevant rules and against the public interest and without allowing the petitioner to complete his tenure, the Court is empowered to examine such administrative action by applying the principle of judicial review. He also referred to 2011 PLC (C.S.) 648 (Islamabad High Court) in support of his arguments.

2. The learned D.A.G. assisted by the learned counsel for the respondents argued that this writ petition is not maintainable. The petitioner was transferred on administrative grounds in the public interest. The transfer of the petitioner has been made by the competent authority i.e. Director General/Chairman PPSMB (Pakistan Postal Services Management Board), which falls within the purview of exceptions to Rule 278 of the Post Office Manual Volume IV. According to this exception no notice is required to be given in case the transfer is made in the public interest with the approval of the competent authority. The petitioner was not transferred under any political influence. It was further maintained that this Court had no jurisdiction in service matters due to bar of Article 212 of the Constitution of Islamic. Republic of Pakistan 1973. The petitioner if aggrieved can approach the Federal Services Tribunal having jurisdiction to entertain the petitions relating to service matters. The learned D.A.G. referred to 2007 SCMR 54, 2008 SCMR 583, 2009 SCMR 61, PLD 1997 SC 351 and 1998 SCMR 1948 in support of his arguments.

3. I have considered the arguments advanced from both the sides.

4. As regards the case law referred to above by the learned counsel for the petitioner (2011 PSC 1200), the facts and circumstances of the said case are quite distinguishable from those of the present one. The said order was passed in Suo Motu jurisdiction by the Hon'ble Supreme Court of Pakistan in a given set of circumstances.

5. The apex Court held in 2007 SCMR 54 [Peer Muhammad versus Government of Balochistan through Chief Secretary and others]:--

"that orders of departmental authorities, even though without jurisdiction or mala fide could be challenged only before the Services Tribunal and jurisdiction of Civil Court including High Court was specifically ousted. Plea of mala fide did not confer upon High Court jurisdiction to act in the matter in view of constitutional ouster as contained in Art. 212 of the Constitution. Services Tribunal had exclusive jurisdiction to interfere in such like matters. Supreme Court declined to interfere in the judgment passed by the High Court. The question of posting of a Government servant squarely falls within the jurisdictional domain of competent authority, subject to law and rules made thereunder. The question of posting/transfer relates to terms and conditions of a Government servant so Services Tribunal has the exclusive jurisdiction to dilate upon and decide such matters. The jurisdiction of High Court cannot be invoked to get such controversies resolved."

1. In view of the case law referred to above, it is observed that jurisdiction of this Court is barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. A Government servant can be posted and asked to server anywhere. No employee has any vested right to be posted at any particular place. In 1998 SCMR 2280 [Khalid Mahmood Wattoo versus Govt. of the Punjab] a similar view was taken by the apex Court and it was held that constitutional petition by a civil servant under Article 199 of the Constitution in relation to any matter connected with the terms and conditions of his service in respect whereof the Services Tribunal has jurisdiction, was not maintainable in view of the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.

2. In the light of above discussion, this writ petition is not maintainable so the same is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2012 Lahore 197 [Multan Bench Multan]

Present: Rauf Ahmad Sheikh, J.

MUHAMMAD WAQAR--Petitioner

versus

JUSTICE OF PEACE, MULTAN and 4 others--Respondents

W.P. No. 11086 of 2011, decided on 13.9.2011.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 22-A, 22-B, 154 & 195(1)(c)--Constitutional petition--Vested with power to issue direction for registration of the case--Commission of cognizable offence--No specific incident qua making of trespass, causing of torture, mischief or theft was given--No specific date or time of occurrence was mentioned--Contention--Validity--Alleged offence was committed in relation to proceedings of the Court so order for issuance of direction to register the case could had been passed as u/S. 195(1)(c), Cr.P.C.--Cognizance of such offence could be taken only on complaint of the Court--There was dispute regarding possession of house--Possibility of submission of petition to put pressure on respondents--Petition had efficacious remedy in form of private complaint qua alleged commission of offence of trespassing or theft and could move application before the Court--Petition was dismissed. [P. 199] A, B & C

Pir Muhammad Asif Rail, Advocate for Petitioner.

Mirza Muhammad Saleem Baig, Addl. A.G. for Respondent No. 2.

Date of hearing: 13.9.2011.

Order

The petitioner has assailed the vires of order dated 26.08.2011 passed by learned Additional Sessions Judge/Justice of Peace, Multan, whereby an application moved by him under sections 22-A and 22-B Cr.P.C. was dismissed with the contention that the same is without lawful authority and without jurisdiction.

1. It is contended that Respondent No. 2 was approached to register a case against Respondents No. 3 to 5 but he did not perform his duties in accordance with law so the petitioner was constrained to move an application under Sections 22-A and 22-B Cr.P.C. alongwith the verification report of the Tehsildar regarding commission of forgery but the same has been dismissed illegally. It is urged that the Respondent No. 2 was under obligation to record the FIR in view of the provisions of Section 154 Cr.P.C. and the learned ASJ/JOP on presentation of an application complaining the non-feasance of Police officials had no authority to reject it rather, was obliged to issue a direction for registration of the case.

2. The petitioner had contended in the application that Respondent No. 3 is a tenant under him over House No. 636/6-M, Mohallah Dawud Jahanian Dehli Gate, Multan, comprising of one room, bath room & Courtyard and committed default in payment of rent. It is alleged that on demand for payment of rent, Respondents No. 3 and 4 enter in the dwelling place of the petitioner, interfere in the privacy, cause torture to her father everyday, damage the household articles or commit theft. It is contended that Respondent No. 2 filed a frivolous suit against the petitioner and has obtained the interim injunction by producing the forged and fictitious Fard Malkiat.

3. This petition was dismissed through the impugned order by the learned ASJ/JOP by observing that the civil suit between the parties is pending and there is possibility of submission of the application in order to put pressure on the respondents and that no cognizable offence has taken place.

4. The learned counsel for the petitioner has vehemently contended that under Sections 22-A and 22-B Cr.P.C. the ex-officio Justice of Peace is vested with the power to issue a direction for registration of the case only and cannot reject the petition on any ground whatsoever and it is only for the concerned SHO to conduct the investigation as to the correctness or otherwise of the allegations and that the contents of the petition vividly revealed commission of the cognizable offence and the learned ASJ/JOP has committed material irregularity in holding that the commission of such offence was not made out and that the petition was moved with ulterior motive.

5. No specific incident regarding making of trespass, causing of torture, mischief or theft is given. No specific date or time of the occurrence is mentioned in the application. A general allegation to the effect that Respondents No. 3 and 4 resorted to said activities creates a reasonable doubt as to its correctness. The second contention that the respondents got an injunction on the basis of forged and fictitious Fard Malkiat shows that the alleged offence was committed in relation to the proceedings of the Court so the order for issuance of the direction to register the case could have been passed as under Section 195(1)(c) Cr.P.C., the cognizance of such offence can be taken only on the complaint of the Court concerned. Admittedly, there is a dispute regarding possession of the house so the learned ASJ/JOP rightly held that there is a possibility of submission of the petition to put pressure on the Respondents No. 3 and 4. The contention that the learned ASJ/JOP is authorized only to pass an order for registration of the case and cannot reject this prayer is devoid of force because if the law has conferred upon him the authority to issue direction for registration of the case, it has in the same manner authorized him to lawfully decline the request, if it is proved that the same is made with ulterior motive or without reasonable grounds. The petitioner has efficacious remedy in form of private complaint regarding alleged commission of offence of trespassing or theft, etc. and can move an application before the concerned Court regarding submission of forged Fard Malikat in, proceedings, if his contention is substantiated at any stage. The learned ASJ/JOP in the given circumstances was fully justified in refusing to issue the direction for the registration of the case. The writ petition is without merits and the same is hereby dismissed in limine.

(R.A.) Petition dismissed

PLJ 2012 Lahore 200

Present: Muhammad Khalid Mehmood Khan, J.

MUHAMMAD SUBHAN BUTT--Petitioner

versus

POST MASTER GENERAL PUNJAB, PMG OFFICE, LAHORE and 4 others--Respondents

W.P. No. 10320 of 2010, decided on 7.12.2011.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Procedure for collection of zakat by post office was in violation of Zakat and Usher Ordinance, 1986--Legality of procedure--Zakat could not be deducted under rules of assets of deceased persons who was alive on valuation date--If depositor was already died on valuation date--Assets were presumed to have been inherited by successor and zakat will be deducted from assets--Validity zakat could not be deducted by Govt. in presence of declaration by depositor--Valuation date for deduction of zakat was 1.9.2008--Depositor was died on 4.4.2008--Zakat was not deductable as valuation date i.e. first Ramzan--Submission of succession certificate was sufficient to prove that on date of its presentation to respondent--Postmaster General was duty bound to encash certificate, hence, no question of any valuation date arose--Delay in payment of estate of deceased was one of part of postmaster general--Succession certificate was produced before valuation date and as such zakat was wrongly deducted from petitioner's account--Petition was allowed. [P. 202] A, B & C

PLD 2009 Lah. 426, 1995 SCMR 362, 2010 SCMR 1475, 1998 SCMR 2268, PLD 1999 SCMR 476 & 2004 CLC 1392, ref.

Mr. Bilal Kashmiri, Advocate for Petitioner.

Mr. Muhammad Nasim Kashmiri, Deputy Attorney General for Pakistan.

Date of hearing: 7.12.2011.

Order

Through this constitutional petition, petitioner has assailed orders dated 7.11.2009 and 22.4.2010 whereby the petitioner was declined to refund Zakat deducted on their predecessor-in-interest deposit.

1. Predecessor-in-interest of petitioner Major (Retd.) Muhammad Tariq Butt was maintaining a Special Savings Account No. 383 with Pakistan Post Office Savings Bank, R.A. Bazar, Post Office Branch, Lahore. The depositor died on 4.4.2008. The petitioner applied for issuance of succession certificate, the certificate was granted on 19.7.2008. The petitioner after issuance of succession certificate approached the respondents for encashment of saving Account No. 383, Respondent No. 2 accorded sanction for encashment on 6.12.2008. The respondents, however, at the time of encashment deducted an amount of Rs. 130079/-as Zakat for the year 2008-2009. The petitioner then filed representation which was rejected on 7.11.2009. The petitioner then assailed the said order through revision before Respondent No. 2 under Rule 27 of the Zakat (Collection and Refund) Rules, 1981. The said revision was also dismissed on 22.4.2010, hence the present petition.

2. Notices, were issued to respondents, they filed report and para wise comments and claimed that Zakat could not be deducted under rules in respect of assets of deceased persons who was alive on the valuation date. However, if the depositor was already died on the valuation date, the assets are presumed to have been inherited by his successor, and Zakat will be deducted from the assets in that Zakat year and the declaration submitted by the deceased came to an end.

3. Learned counsel for petitioner has placed reliance on Bank Alfallah Limited Vs. Administrator General, Zakat Administration, Government of Pakistan, Islamabad and another (PLD 2009 Lahore 426), Multiline Associates Vs. Ardeshir Cowasjee and others (1995 SCMR 362), Messers United Woollen Mills Ltd, Workers Union Vs. Messers United Woollen Mills Ltd. (2010 SCMR 1475), Messers Airport Support Services Vs. The Airport Manager, Quaid-E-Azam International Airport, Karachi and others (1998 SCMR 2268), Federation of Pakistan through Secretary, Government of Pakistan Finance Division Islamabad and 2 others Vs. Miss Farzana Asar (PLD 1999 Supreme Court 476) and Mst. Bashiran Bibi Vs. State Life Insurance Corporation of Pakistan (2004 CLC 1392) and submits that impugned order passed are non-speaking order. The instructions/Procedure No. 19 of the Procedure for Collection of Zakat by Post Offices is in violation of Zikat and Usher Ordinance, 1980. He submits that they have inherited the estate of deceased prior to the valuation date and as such the action of respondents is against law.

4. Learned Deputy Attorney General for Pakistan submits that under procedure the legal heirs of deceased depositor are bound to pay Zakat as they have not submitted any declaration for non-deduction of Zakat before the valuation date and as such Zakat was rightly deducted from the estate of deceased. Leaned D.A.G submits that deduction of Zakat is mandatory under law.

5. Heard, record perused.

6. Without going into any controversy about the legality of instructions/procedure it is an established fact that Zakat could not be deducted by the respondents/Government in the presence of declaration by the depositor. Admittedly the valuation date for deduction of Zakat was 1.9.2008. The depositor died on 4.4.2008. Learned trial Court granted succession certificate to petitioner on 19.7.2008. Admittedly on 19.7.2008 Zakat was not deductable as the valuation date i.e. first Ramzan was on 1.9.2008. Submission of succession certificate is sufficient to prove that on the date of its presentation to respondents, the respondents were duty bound to encash certificate, hence, no question of any valuation date arose. The respondents continued to linger on the encashment of certificates upto 6.12.2008. The delay in payment of estate of deceased is on the part of respondents. Admittedly succession certificate was produced before valuation date and as such Zakat was wrongly deducted from petitioner's account.

7. In view of above this petition is allowed and respondents are directed to refund Zakat deducted on their assets.

(R.A.) Petition allowed

PLJ 2012 Lahore 202

Present: Nasir Saeed Sheikh, J.

ADIL TEXTILE MILLS LTD. through its Chief Executive and another--Petitioners

versus

SUI NORTHERN GAS PIPELINE LIMITED through its Duly Authorized Officer--Respondent

C.R. No. 3255 of 2011, decided on 22.12.2011.

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

----O. VIII, R. 10--Scope of--Submission of written statement--Right to submit written statement can only be closed by Civil Courts by invoking provisions of Order VIII, R. 10 of CPC if there was an order passed requiring to submit written statement and that in routine manner, if adjournments were granted by Civil Courts for submission of written statement then penal provisions under O. 8, Rule 10 of CPC would not apply. [P. 204] A

1987 SCMR 1365 & 1991 SCMR 2527, rel.

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

----O. VIII, R. 10--Right for submission of written statement--Term written statement was not applied by Civil Court--Closing right to submit written statement--Validity--Penal provisions of Order VIII, R. 10 of CPC have to be interpreted strictly in order to invoke upon the facts and circumstances of a case--Suit for recovery of huge amount was filed by Sui Gas Company against Textile Mills--Dismissal of civil revision even for default would result into grave miscarriage of justice as an order violative of law pronounced by S.C. will be allowed to continue--Order passed by civil judge closing right to submit written statement was not legally passed--Civil Court was directed to allow petitioners a reasonable opportunity to submit written statement. [P. 207] B & C

Nemo for Petitioners.

Mr. Bilal Kashmiri, Advocate for Respondents.

Date of hearing: 22.12.2011.

Order

The case has been called. Although nobody is present on behalf of the petitioners but the learned counsel for the respondent has commenced his arguments with an emphasis for dismissal of the Civil Revision on merits. I accordingly proceed to hear the arguments and decide the Civil Revision.

1. Briefly stating the facts of the case are that a suit for the recovery of Rs.5,126,395/- has been instituted by the respondent/Sui Gas company against the petitioners with a mark up @ 2%. The respondent/plaintiff company entered into a contract for supply of sui gas for the industrial use of the defendants. It is alleged that a wilful default has been committed by the petitioners/defendants for a sum of Rs.5,126,395/- towards the gas consumption as a result of which the sui gas connection of the petitioners/defendants was disconnected on 17.10.2007. The amount claimed by the respondent was demanded through a gas bill sent to the petitioners on 27.6.2008 payable until 02.7.2008. On the failure of the petitioners to pay the sui gas bill a suit was accordingly instituted by the respondent against the petitioners on 19.10.2010 before the Civil Judge Lahore.

2. The learned counsel for the respondent has placed on record a copy of the order sheet showing that the petitioners/defendants were allowed numerous opportunities to submit written statement and on their failure the learned Civil Judge Lahore vide order dated 15.9.2011 closed the right of the petitioners to submit the written reply. The order dated 15.9.2011 has been assailed by the petitioners through the instant Civil Revision.

3. The learned counsel for the respondent has contended after relying upon the judgment reported as Muhammad Fayyaz Butt vs. Metropolitan Corporation Limited through Administrator, Lahore (1997 CLC 55) that the provisions of Order VIII, Rule 10 of CPC were rightly invoked by the learned trial Court in view of the conduct of the petitioners and therefore the right to submit the written statement of the petitioners has been correctly closed through the impugned order dated 15.9.2011 by, the learned Civil Judge Lahore.

4. I have considered the arguments of the learned counsel for the respondent.

5. The perusal of the order sheet reflects that the petitioners/defendants submitted a memo. of appearance on 09.4.2011 and Power of Attorney was submitted on 09.5.2011. The case was adjourned for reply to 30.5.2011. The learned Civil Judge Lahore then adjourned the case on request for reply to 18.6.2011. The case then was transferred to another Court for 09.7.2011. The transferee Court also adjourned the case on request for reply to 26.7.2011. For the first time the learned Civil Judge Lahore noted a request on behalf of the petitioners/defendants in the order dated 26.7.2011 for submission of written statement and the case was adjourned to 15.9.2011 on which date the learned Civil Judge Lahore closed the right of the petitioners to submit written reply as noted in the order dated 15.9.2011.

6. The provisions of Order VIII, Rule 10 of CPC are only to be applied with penal consequences if the learned Civil Judge Lahore/trial Court has specifically called upon the defendant of a suit to submit the written statement. In none of the order sheets from 4.4.2011 till 26.7.2011 the learned Civil Judge Lahore "required the petitioners/defendants to submit the written statement". The honourable Supreme Court of Pakistan in the well-known judgments reported as SARDAR SAKHAWATUDDIN AND 3 OTHERS VS. MUHAMMAD IQBAL AND 4 OTHERS (1987 SCMR 1365) and THE SECRETARY, BOARD OF REVENUE, PUNJAB LAHORE AND ANOTHER VS. KHALID AHMAD KHAN (1991 SCMR 2527) has laid down the law that right to submit written statement can only be closed by the learned Civil Courts by invoking provisions of Order VIII, Rule 10 of CPC if there is an order passed "requiring" the defendant to submit the written statement and that in routine manner, if adjournments are granted by the learned Civil Courts for submission of written statement then the penal provisions under Order VIII, Rule 10 of CPC would not apply. The honourable Full Bench in the judgment reported as (1987 SCMR 1365) at Page Nos. 1370 and 1371 discussed the provisions of Order VIII, Rules 1, 9 and 10 in the following manner:--

"It is clear from the combined reading of Rules 1 and 9 that amongst others three types of written statements can be filed by a defendant.

(1) As a right without any formal permission of the Court. (Rule 1).

(2) When it is so required by the Court to file a written statement (Rules 1 and 9).

(3) When under some circumstances it is by the leave of the Court. (Rule 9)

It is obvious from Rule 10 that no adverse results under these rules are to follow on failure to file written statement in cases mentioned in Items Nos. 1 and 3 above. But penal consequences of "pronouncement of judgment against" him when the defendant fails to file written statement when "so required" -- as is indicated in Item No. 2 above, would follow.

As it is a penal provision it will have to be strictly construed. Hence wherever a reasonable doubt arises regarding its interpretation or implementation, it shall have to be resolved in favour of the victim of its application. Otherwise too, its requirements would have to be established like those of Order XVII, Rule-3 which is similarly penal in nature. See Industrial Sales and Service, Karachi and another v. Archifar Opal Laboratories Ltd., Karachi PLD 1969 Kar. 418.

Rule 10 is in two parts. No doubt under the first part a judgment can be pronounced against the defendant, but it will be pronounced only if it can be so done under the law. For example, if the suit is for enforcing a contract or obtaining any other relief which is prohibited by law expressly or impliedly, the judgment could not be pronounced. Similarly no decree could be passed if there is no cause of action shown in the plaint or the material placed before the Court or relied upon by the plaintiff even if not in the form of evidence will make it a case of no evidence (if the trial is taken to its logical ends). Hence, in all such cases and other similar cases it will be impermissible for the Court to proceed under the first alternative. The proper course then would be to proceed under the second alternative. It will be in rare cases, when, on account of the material placed on record that it would not only be legal but also just and fair, on the merits of the case, that judgment is pronounced under the first part. Otherwise, in the cases like the two before us it would not be proper to proceed under the first part. Like Rule 12, Rule 10 also creates a liability and it is not mandatory for the Court to pronounce judgment or strike off the defence. The matter being in the discretion of the Court the penalty should not be imposed without a compelling reason - but as emphasised above that too not without satisfying the conditions as are being discussed e.g., even then it is not mandatory to pronounce judgment without satisfaction of the Court that it is good case on merits for doing so.

There is another very important aspect of the matter. All the three types of written statement mentioned earlier do not entail penal consequences. Therefore, it should always be absolutely clear from the proceedings that the written statement on account of which penalty is sought to be imposed was "required", by the Court. It was neither as of right (Rule 1) nor as result of permission (Rule 9). The use of word "required" is not without significance. It does not permit a routine order without application of mind to the "requirement", and/or the need. Therefore, it is essential that whenever a written statement is to be made subject of the penal Rule 10, there should be proof on record that the Court had "required" it by application of mind to the need and that too in a speaking order. Without the same, many innocent parties would be trapped in a technicality without fully realising the implications. In this connection, it is made clear that whenever adjournments are granted for production of a written statement which can be filed as of right under Rule 1 or which is permitted to be filed under Rule 9, that would not satisfy the law regarding the "requirement" of the Court. It is only the written statement which is "required" and that too by "the Court" by a speaking order, which would entail the penal consequences of Rule 10. In these two cases it has been admitted before us that these requirements have not been fulfilled."

1. The case law relied upon by the learned counsel for the respondent is not strictly applicable to the facts and circumstances of the instant case. However in view of the law pronounced by the honourable Supreme Court of Pakistan I am bound to follow the judgments of the honourable Supreme Court of Pakistan.

2. In view of the above judgments pronounced by the honourable Supreme Court of Pakistan the right of the petitioners to submit written statement in the instant case has not been lawfully closed by the learned Civil Judge Lahore. The perusal of order sheet points out that on 09.5.2011, 30.5.2011 and 09.7.2011 the learned Civil Judge Lahore adjourned the case for submission of reply only. It is only in the order dated 26.7.2011 that the term written statement has been used by the learned Civil Judge Lahore. Even in the order dated 15.9.2011 the term written statement has not been applied by the learned Civil Judge Lahore and the impugned order has been passed closing the right of the petitioner with respect to submission of written reply. The penal provisions of Order VIII, Rule 10 of CPC have to be interpreted strictly in order to invoke the same upon the facts and circumstances of a case. A suit for the recovery of a huge amount of Rs. 5,126,395/- has been filed by the respondent against the petitioners. The dismissal of the instant civil revision even for default would result into grave miscarriage of justice as an order violative of law pronounced by the honourable Supreme Court of Pakistan will be allowed to continue.

3. As this Court is hearing the instant matter as a Court of record and the order sheet of the learned trial Court has been produced by the learned counsel for the respondent himself during the arguments today which has been perused with the assistance of the learned counsel for the respondent and it is observed that the order passed by the learned Civil Judge Lahore closing the right of the petitioners to submit the written statement has not been legally passed, therefore, I am inclined to allow the instant Civil Revision by setting aside the impugned order dated 15.9.2011. The learned Civil Judge Lahore is directed to allow the petitioners a reasonable opportunity to submit the written statement within a period of one month from the date when this order is produced before the learned Civil Judge Lahore and further to proceed with the trial of the case in accordance with law.

(R.A.) Case remanded

PLJ 2012 Lahore 207

Present: Ch. Shahid Saeed, J.

NAVEED MERCHANT--Petitioner

versus

SAFDAR GONDAL and 4 others--Respondents

C.R. No. 2644 of 2010, decided on 19.12.2011.

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

----O. I, R. 10--Application for striking out his name from array of pleadings was dismissed--Challenge to--Petitioner was neither necessary nor a proper party--No specific role was mentioned in plaint--Not beneficiary of alleged oral agreement--Validity--Compensation for breach of contract can be claimed from a party to contract, who had breached the terms of agreement--A person who was not party to a contract was neither necessary nor proper party in a suit for damages--Neither petitioner was proper nor necessary party in the suit filed by plaintiff because he had no direct connection with defendant--He was not beneficiary of the alleged oral agreement--Application for striking out the name from arrays of parties was accepted. [P. 209] A, B & C

2007 MLD 89 Lah. ref.

Mr. Aamir Mehmood, Advocate for Petitioner.

Mr. Bilal Kashmiri, Advocate for Respondent.

Date of hearing: 19.12.2011.

Order

Brief facts of the case are that Respondent No. 1 filed a suit for recovery of compensation, damages and costs of Rs. 21,691,460/- against the petitioner and Respondents No. 2 to 5. Petitioner filed an application Under Order I, Rule 10 CPC for striking out his name from the array of pleadings on the ground that petitioner is neither a necessary nor a proper party to the suit. The said application of the petitioner was dismissed, by the learned trial Court vide order dated 04.06.2010. Feeling aggrieved by the said order petitioner has filed the instant civil revision.

1. Learned counsel for the petitioner contends that the order passed by the learned trial Court is against law and facts and also based upon surmises and conjectures; that in whole the plaint no specific role has been ascribed to the petitioner against the Respondent No. 1 and only the grievance of the plaintiff is against Respondent No. 2 and its officials i.e. Respondents No. 3 to 5; further argued that petitioner works independently and has nothing to do with the business of the respondent 2.

2. On the other hand, learned counsel for the respondents argued that petitioner is a proper and necessary party in the suit because he being the estate advisor of Defendant No. 1 was the direct beneficiary of the agreement executed between the plaintiff and Defendant No. 1 and application of the petitioner U/O. I, Rule 10 CPC filed by the petitioner for striking out his name from the arrays of the parties was rightly dismissed by learned trial Court.

3. After hearing the arguments of learned counsel for the parties and perusal of record I find that Respondent No. 1 filed a suit for recovery of compensation and damages on the basis of some oral agreement which was made between the plaintiff and Defendant No. 1. No specific role has been mentioned in the plaint against the petitioner. The main grievance of the plaintiff is against the Motorola, Company/Respondent No. 2 and its officials. From the perusal of plaint it reflects that petitioner was the only Estate Advisor of Defendant No. 1. He was not the beneficiary of the alleged oral agreement, which was made between the parties. It is settled principle of law that compensation for breach of contract can be claimed from a party to a contract, who has breached the terms of agreement. A person who is not a party to a contract is neither necessary nor proper party in a suit for damages. Reliance can be placed to the case of Province of the Punjab through Secretary, Sports Government of the Punjab and another Versus Messrs Qavi Engineers (Pvt.) Ltd. through Director and 2 others (2007 MLD 89) Lahore. It is, therefore, I am of the considered opinion that neither the petitioner is proper nor necessary party in the suit filed by the plaintiff because he has no direct connection with the Defendant No. 1. He was also not the beneficiary of the alleged oral agreement as stated above.

4. For the foregoing reasons, the instant civil revision is allowed and impugned order passed by the learned trial Court dated 04.06.2010 is set aside. The application U/O. I, Rule 10 CPC for striking out the name of the petitioner from the arrays of the parties is accepted.

(R.A.) Petition allowed

PLJ 2012 Lahore 209

Present: Mehmood Maqbool Bajwa, J.

SHAUKAT ALI etc.--Petitioners

versus

STATE etc.--Respondents

W.P. No. 2495 of 2010, decided on 21.10.2011.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 406--Financial Institution (Recovery of Finances) Ordinance, 2001, S. 7(4)--Quashing of FIR--Mis-appropriation of hypothecated stock--Jurisdiction of Banking Court--Question of--Whether respondents were competent to set in motion ordinary law by getting a case registered u/S. 406 of PPC or exclusive remedy available was to file complaint--Factual premises--Validity--While availing loan facility they not only mortgaged their assets and properties but also hypothecated different type of stock allegedly mis-appropriated by petitioner which allegation had been controverted--Since factual controversy was required to be settled in order to grant relief sought by petitioners--High Court was neither competent nor authorized to settled disputed question of fact and that too on bald allegations--FIR can be quashed if very registration of case was proved to be malafide on record but mere allegation of malice did not confer jurisdiction to grant such relief--Question of jurisdictional defect could not be established--Petition was dismissed. [P. 213] B & C

Financial Institution (Recovery of Finances) Ordinance, 2001 (XLV of 2001)--

----S. 7(4)--Pakistan Penal Code, (XLV of 1860), S. 406--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Advanced on legal as well as factual premises but attention was focused on legal premises--Quashing of report--Deficiency of stock--Validity--Only remedy available to Bank was to file complaint conferring exclusive jurisdiction upon Banking Court to decide matter putting embargo to avail any remedy under ordinary law, either civil or of criminal nature. [P. 211] A

Mian Manzoor Hussain, Advocate for Petitioners.

Rana Shamshad Khan, Assistant Advocate General for State.

Mr. Muhammad Ahmad Pansota, Advocate for Respondents Nos. 3 & 4.

Date of hearing: 21.10.2011.

Order

Quashment of FIR No. 67 of 2010 registered under Section 406 of The Pakistan Penal Code, 1860 at Police Station, Nishat Abad, Faisalabad has been sought for by the petitioners.

1. Allegation in brief contained in the crime report lodged at the instance of Abdul Razzaq, attorney of the Bank Alflah Limited are that M/s. Adam Fabrics (private) Limited obtained loan of Rupees 15 crores and mortgaged its assets and properties worth 10 crores besides hypothecation of stock of cloth valuing at 59,984,345/-. On inspection of stock in September and October 2009 by complainant and relationship officer, deficiency of stock was noted which was intimated to the petitioners being directors of firm but grievance was not properly redressed. Again on inspection in January 2010, Mill was found closed and person at guard in the premises did not permit the complainant and other representative of Bank to enter into the premises. Allegating mis-appropriation of hypothecated stock worth millions, case under Section 406 of The Pakistan Penal Code, 1860 was got registered.

2. Heard.

Though at the instance of petitioners arguments were advanced on legal as well as factual premises but attention was focused on legal premises while seeking quashment of Report.

Making reference to the provisions of Section 7(4) of The Financial Institution (Recovery of Finances) Ordinance, 2001 (XLVI of 2001), it was submitted that only remedy available to the Bank was to file complaint conferring exclusive jurisdiction upon Banking Court to decide the matter putting embargo to avail any remedy under ordinary law, either civil or of criminal nature. Help was sought from the dictum laid down in "Murshid Ali and 4 others vs. SHO, Police Station Saddar Khanewal and another (2011 P.Cr.LJ 1763), Shaikh Muhammad Taqi vs. The State (1991 P.Cr.LJ 963)," Nizar Ali Fazwani and another vs. Messrs Pak Golf Leaswing Company Limited and another (2009 P.Cr.LJ 325)," Malik Tariq Mehmood vs. Messrs Askari Leasing Ltd. (2009 CLD 1422), Muhammad Iqbal versus Station House Officer and 2 others (2009 CLD 1149), Ghulam Sarwar Zardari versus Piyar Ali alias Piyaro and another (2010 SCMR 624) and Zahid Jameel vs. SHO etc. (W.P. No. 7635 of 2008) unreported judgment dated 31.07.2008.

Repelling the arguments, the learned counsel for the Respondents No. 3 and 4 submitted that keeping in view the allegation offence under Section 406 of The Pakistan Penal Code, 1860 has been made out, sufficient to reject the petition, on the legal premises it was argued that provisions of Section 7(4) of The Ordinance does not oust any party to claim the relief under ordinary law. Reliance was placed upon Mahmood Akhtar Khan vs. The State 2 others (2010 CLD 639), Asif Mehmood Bhatti vs. Federal Investigation Agency and 2 others (2002 YLR 3847), Industrial Development Bank Of Pakistan and others vs. Mian Asim Fareed and others (2006 SCMR 483), Muhammad Saleem Bhatti vs. Syed Safdar Ali Rizvi and 2 others (2006 SCMR 1957), and Haji Sardar Khalid Saleem vs. Muhammad Ashraf and others (2006 SCMR 1192).

1. First of all it would be desirable to deal with legal objection raised at the instance of the petitioners in view of the text of Section 7(4) of The Ordinance, according to which no Court other than a banking Court shall have or exercise of any jurisdiction with respect to any matter to which the jurisdiction of a Banking Court stands extended. Section 20 of The Ordinance gives the detail of offences falling within the jurisdiction of Banking Court. Section 20(1)(a) of the Ordinance deals with breach of terms of a latter of hypothecation, trust receipt or any other instrument or document, prima facie, offence falls within the ambit of Section 7(4) of The Ordinance.

However, the question for consideration is whether Respondents No. 3 & 4 were competent to set in motion the ordinary law by getting a case registered under Section 406 of The Pakistan Penal Code, 1860 or exclusive remedy available was to file complaint under The Ordinance.

Case law reported in "Murshid Ali and 4 others versus S.H.O. Police Station, Saddar, Khanewal and another (2011 P.Cr.LJ 1763), Malik Tariq Mehmood versus Messrs Askari Leasing Ltd., (2009 CLD 1422), Muhammad Iqbal versus Station House Officer and 2 others (2009 CLD 1149) (All decided by the learned Single Benches of this Court), Nizar Ali Fazwani and another versus Messrs Pak Golf Leasing Company Limited and another (2009 P.Cr.LJ 325), Sabir Ahmed versus Nazeer Ahmed and another (2010 P.Cr.LJ 412) (cases decided by learned Sindh High Court) prima facie support the contention of the learned counsel for the petitioners regarding exclusive jurisdiction of Banking Court ousting the domain of Court of ordinary jurisdiction but with great respect, it cannot advance the plea of the petitioners in view of Ratio expounded by Honourable Apex Court in "Industrial Development Bank of Pakistan and others versus Mian Asim Fareed and others (2006 SCMR 483). Perusal of the facts of Report suggests that case was registered against the debtors at the instance of Industrial Development Bank Ltd. under Sections 379, 406, 420 of The Pakistan Penal Code, 1860 which registration was called in question seeking quashment of crime report in view of the bar contained in Section 7(4) of The Ordinance 2001 which was allowed but the order for quashment of FIR was set aside by the Hon'ble Apex Court while holding at page 4&5 as follows:--

"In the absence of any finding that the above mentioned offences mentioned in the FIR were false and malicious and in the absence of a finding that if a particular forum or mode had been prescribed with respect to the taking of cognizance of an offence then the same also implied prohibition regarding the registration of an FIR; no such order could be passed nor the same could be proved. Needless to add that the registration of an FIR and taking of cognizance of cases were two distinct and independent concepts under the criminal law; that if the intention of the law maker was to put any clog on the registration of an FIR, then the legislature would have said so specifically and that if the law put a condition only the taking of cognizance then it can never be read to imply prohibition on registration of FIRs."

Decision of the Honourable Supreme Court is binding on all Courts including High Court as envisaged by Article 189 of The Constitution.

Respectfully following the dictum laid, the argument canvassed at the instance of the petitioners is of little help.

1. Arguments were also canvassed at the instance of the petitioners on factual premises seeking quashment of FIR. The learned counsel for the petitioners as well as for Respondents No. 3 & 4 relied upon case law but suffice it to say that each and every criminal case got its own facts and has to be decided keeping in view the attending circumstances.

Allegation against the petitioners are that while availing loan facility they not only mortgaged their assets and properties but also hypothecated different type of stock allegedly mis-appropriated by the petitioners which allegation has been controverted.

Since factual controversy is required to be settled in order to grant relief sought for by the petitioners, therefore, this Court is neither competent nor authorized to settle the disputed question of fact and that too on bald allegations. Reference is made to Col. Shah Sadiq versus Muhammad Ashiq and others (2006 SCMR 276).

1. FIR can be quashed if the very registration of case is proved to be malafide on the record but mere allegation of malice does not confer jurisdiction to grant such relief. Question of jurisdictional defect also could not be established. Argument that it is a case of no evidence could not be substantiated.

2. Pursuant to above discussion, writ petition being devoid of force is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2012 Lahore 213 [Rawalpindi Bench Rawalpindi]

Present: Ijaz Ahmad, J.

MUMARAZ KHAN--Petitioner

versus

RAKHSHANDA BIBI--Respondent

C.R. No. 386-D of 2011, decided on 14.12.2011.

W.P. Family Courts Act, 1964 (XXXV of 1964)--

----S. 5--Custody of minors--Right of visitation--Resolved by Arbitration Council--Right of parties to custody and to rendezvous with cildren--Case of sucklings--Validity--Matter relating to custody of children and visitation right of parents, falls with exclusive jurisdiction of Family Court--Family Court had finally dismissed the suit of petitioner seeking custody of minors--Decree passed by Family Court had earned confirmation up-till Supreme Court--Suit was instituted to determine right of visitation of petitioner based on whatsoever ground or an agreement between spouses falls within exclusive jurisdiction of Family Court--Even if right of visitation was not agitated in earlier suit, the right of visitation of parties did exist and could be claimed in finally decided suit. [P. 215] A

W.P. Family Courts Act, 1964 (XXXV of 1964)--

----S. 17--Specific Relief Act, 1877--S. 21--Contract not specified enforceable--Agreement contained a promise to arrange meeting of petitioner with minors till an indefinite period--Right of visitation and custody of minors--Validity--Even if the parties had not engaged themselves in earlier round of litigation, suit was not maintainable--Courts below had rightly dismissed the suit and appeal of the petitioner--Petition was dismissed. [Pp. 215 & 216] B

Mr. Khan Baig Janjua, Advocate for Petitioner.

Date of hearing: 14.12.2011.

Order

Iqra Shahzadi and Aqsa Shahzadi two daughters were born out of the wedlock of the parties. The dispute besides the other matters regarding the custody of minors was resolved by the Arbitration Council. The petitioner was made to pay Rs. 1000/- p.m to each of the minors. Land measuring 05 marlas was agreed to be transferred to the minors. The petitioner was held to have a right to see the minors on every Sunday. An agreement dated 22.7.2009 in this regard was executed between the parties. The petitioner later-on instituted a suit for the custody of the minors before the learned Guardian Judge, Pindigheb on 1.9.2009. The suit, appeal and the writ petition were dismissed. The petitioner then preferred C.P. No. 531 of 2010 before the august Supreme Court of Pakistan. It was dismissed vide judgment dated 11.5.2010 in the following terms:--

"We have heard both the sides and have gone through the impugned judgment, relevant para of which is reproduced hereinabove. Learned High Court on having taking into consideration the material available on record has concluded that the children have developed aversion against their father/petitioner and they are reluctant to see him. This is factual aspect of the case, which is apparent from the contents of the judgment of Family Court."

"Thus, petition is dismissed and leave to appeal declined."

Having failed in the Family Court and up-till the august Supreme Court of Pakistan, the petitioner instituted a suit before the learned Civil Judge, Pindigheb for specific performance of the agreement dated 22.7.2009. It was contested. Issues were framed. The parties led their respective evidence. The suit was dismissed vide judgment and decree dated 21.1.2011. The appeal preferred by the petitioner has also been dismissed by the learned Additional District Judge, Pindigheb vide judgment and decree dated 12.4.2011.

1. It is contended by the learned counsel for the petitioner that the right of the custody of minors primarily rests with the father even in the case of sucklings; that both the Courts below have decided issues of maintainability against the provision of law.

2. I have heard the learned counsel for the petitioner and also gone through the record.

3. The agreement in question, the subject-matter and the relief sought pertain to the right of the parties to the custody and to the rendezvous with the children. Under Section 5 and Part-I of the Schedule annexed with the Family Courts Act, 1964, the matter relating to the custody of the children and the visitation right of the parents, falls within the exclusive jurisdiction of a Family Court. In the former suit, the Family Court had finally dismissed the suit of the petitioner seeking the custody of the minors. The decree passed by the learned Judge Family Court had earned the confirmation up-till the august Supreme Court of Pakistan. The instant suit instituted to determine the right of visitation of the petitioner based on whatsoever ground or an agreement between the spouses falls within the exclusive jurisdiction of the Family Court. Even if the right of visitation was not agitated in the earlier suit, the said right of the parties did exist and could be claimed in the earlier finally decided suit. This matter shall be deemed to have been directly and substantially in issue in the earlier suit. The principle of constructive res-judicata applies in this case and the Court seized with the instant suit could not try it in view of Section 11 CPC which is applicable in the suits before a Family Court under Section 17 of the Family Courts Act, 1964. The suit in question is also not maintainable in view of Section 21 of Specific Relief Act, 1877. It reads as follows:--

Contract not specified enforceable.--The following contracts cannot be specifically enforced:--

(g) a contract the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date;

1. In the instant case, the agreement contained a promise on behalf of the respondent to arrange the meeting of the petitioner with the minors till an indefinite period. Even if the parties had not engaged themselves in the earlier round of litigation, this suit was not maintainable in view of the above said provision of law. Both the Courts below have rightly dismissed the suit and the appeal of the petitioner. The petitioner has engaged the respondent in a protracted litigation. This petition has no force. It is hereby dismissed with costs throughout.

(R.A.) Petition dismissed

PLJ 2012 Lahore 216 [Rawalpindi Bench Rawalpindi]

Present: Malik Shahzad Ahmad Khan, J.

ALAM DIN--Petitioner

versus

MUHAMMAD HUSSAIN and 2 others--Respondents

C.R. No. 536 of 2009, decided on 16.11.2011.

Malicious Prosecution--

----Suit for recovery of damages for malicious prosecution--Acquittal from criminal proceedings--Accused could not be declared to be malicious merely because he was acquitted--Suit was dismissed by Courts below--Challenge to--Validity--Mere fact that prosecution instituted by defendant against plaintiff ultimately had failed, could not expose former to charge of malicious prosecution unless it was proved by plaintiff that prosecution was instituted without any justifiable reason and it was due to malicious intention of defendant and not with a mere intention of carrying law into effect--Acquittal on extension of benefit of doubt did not mean that accused were falsely implicated and possibility would not be excluded that accused might had been involved in the matter--Application u/Ss. 249-A & 561-A, Cr.P.C. for acquittal was dismissed by Courts below, there it could not be declared that defendants had acted without reasonable or probable cause--Basic ingredients to establish and prove a case for recovery of an amount as damages for malicious prosecution were not established in the instant case and in absence of the ingredients, suit could not decreed--Petition was dismissed. [Pp. 220, 221 & 223] A, B & C

1999 SCMR 734, PLD 1994 SC 476; 1999 SCMR 700; PLD 1992 SC 240; 1990 SCMR 1277; 1991 SCMR 2220 & 1995 CLC 1134, ref.

Mr. Atif Farzauq Raja, Advocate for Petitioner.

Date of hearing: 16.11.2011.

Order

The petitioner has filed this Civil Revision against the impugned judgment and decree dated 02.04.2009 passed by the learned Additional District Judge, Talagang, whereby the appeal of the petitioner was dismissed and the judgment and decree dated 16.12.2006 passed by the learned Civil Judge, Talagang was maintained. The suit filed by the petitioner for recovery of Rs. 15,00,000/- as damages for malicious prosecution was dismissed by the learned Civil Judge, Talagang and the said judgment and decree was maintained by the learned Appellate Court vide the above mentioned judgment and decree dated 06.12.2006.

1. As per brief facts of the present case, the petitioner instituted a suit for recovery of Rs. 15,00,000/- as damages for malicious prosecution against the respondents with the averments that respondents get registered an FIR No. 69/1997 dated 29.07.2011 offences under Sections 506, 427, 148 & 149 of PPC at Police Station Tamman, Tehsil Talagang, District Chakwal. The petitioner/plaintiff was nominated as one of the accused in the said FIR. He was arrested and he remained in judicial lock up for many days. The petitioner/plaintiff, thereafter, was released on post arrest bail. At that time the petitioner/plaintiff was serving in Abu Dhabi and during his trial, he had to move to Abu Dhabi due to which his bail bonds were forfeited in favour of the state and he was declared a proclaimed offender. In this way, he was statedly humiliated. According to the plaintiff/petitioner, he suffered mental torture, injury to his reputation and suffered financial loss. After attending a number of dates of hearing he was acquitted on 30.05.2000 and through the suit under revision the petitioner claimed the recovery of Rs.15,00,000/- as damages for malicious prosecution.

2. On the other hand, the respondents filed their written statement and contested the suit, on different grounds including that the prosecution against the plaintiff was with reasonable and probable cause and also that the plaintiff was acquitted only by extending him the benefit of doubt.

3. Out of the divergent pleadings of the parties, following issues were framed by the learned trial Court:--

ISSUES

1. Whether the plaintiff is entitled to decree for recovery of Rs. 15,00,000/- as damages for malicious prosecution as prayed for? OPP

2. Whether the plaintiff has got no cause of action or locus standi to institute the suit? OPD.

3. Whether the suit is defective, hence is not maintainable in its present form? OPD

4. Whether the suit is based on mala fide hence the defendants are entitled to special costs? OPD

5. Relief.

The parties led their evidence. The petitioner/plaintiff, Alam Din himself appeared as PW-1 and reiterated the contents of the plaint. The petitioner/plaintiff also submitted attested copies of criminal case Ex.P-1, passport Mark-A, Ticket PIA Mark-B, photo copy of petition Mark-C, another photo copy of petition mark-D. Photo copy of judgment dated 29.07.1997 Ex.P-2. Muhammad Hussain, Respondent No. 1 appeared as DW-1 and reiterated the contents of the written statement. He had also submitted photo copy of report under Section 173 of Cr.P.C., photo copy of judgment dated 11.11.1998 and photo copy of acknowledgement, as documentary evidence. The learned Civil Judge, Talagang, after conclusion of the trial, dismissed the suit filed by the petitioner/plaintiff and his appeal was also dismissed by the appellate Court vide the above mentioned judgments and decrees respectively, hence, the instant civil revision.

1. It is contended by the learned counsel for the petitioner that the impugned judgments and decrees passed by both the Courts below are against the law and facts of the present case; that the learned Courts-below have not considered the evidence of the plaintiff/petitioner in its true perspective; that the findings given by both the Courts below are result of misreading and non-reading of evidence; that the petitioner remained in judicial lock-up for many days and, as such, he was subjected to humiliation; that at the time of registration of above mentioned criminal case, the petitioner was serving in Abu Dabi, therefore, he had to leave Pakistan and in his absence, he was declared a proclaimed offender and his bail bonds were forfeited, therefore, he suffered mental torture and injury to his reputation; that the petitioner was ultimately acquitted from the above mentioned case, which has established that the prosecution initiated against the petitioner was malicious and baseless; that the petitioner suffered financial loss in order to pursue the above mentioned criminal case lodged by the defendant/respondent; that the case of the petitioner for recovery of Rs. 15,00,000/- as damages for malicious prosecution was fully established through oral, as well as, documentary evidence, but the learned Civil Judge, Talagang has illegally dismissed the suit of the petitioner and the said judgment has wrongly been upheld by the learned Additional District Judge, Talagang; that all the proceedings were launched against the petitioner with mala fide intention and ulterior motives; that all the ingredients of malicious prosecution are present in the petitioner's case, hence both the judgments and decrees passed by the Courts below may be set aside and the suit of the petitioner/plaintiff may be decreed in his favour.

2. I have heard the arguments of the learned counsel for the petitioner and have also gone through the documents annexed with the present petition.

3. As per brief facts of the present case, the respondent/defendant lodged an FIR No. 69/1997, dated 29.07.1997, offences under Sections 506, 427, 148, 149 of PPC, Police Station, Tamman, Tehsil Talagang, District Chakwal. The petitioner was named as one of the accused in the said case. The petitioner was arrested in this case. He remained in judicial lock-up for some period. He was ultimately acquitted by the learned Magistrate Section 30, Talagang, vide judgment dated 11.11.1998. The petitioner, after his acquittal, filed a suit for recovery of Rs. 15,00,000/- for malicious prosecution.

4. The above referred suit of the petitioner/plaintiff was dismissed and his appeal also failed. The claim of the plaintiff/petitioner is that his case for recovery of damages was fully established and he was entitled to the recovery of claimed amount. It is better and appropriate to reproduce the basic elements on the bails of which a suit for recovery of an amount as damages for malicious prosecution could be accepted or rejected. The said ingredients are as follows:--

(a) The prosecution of the plaintiff by the defendant.

(b) There must be a want of reasonable and probable cause for that prosecution.

(c) The defendant must have acted maliciously i.e with improbable motive and not to further the ends of justice.

(d) The prosecution must have ended in favour of the person proceeded against.

(e) It must have caused damage to the party proceeded against.

1. Now keeping in view the above principles, it is important to discuss certain relevant facts of the present case. In the above mentioned criminal case i.e. FIR No. 69/1997, lodged by the defendant/respondent, the police declared the petitioner/plaintiff guilty of the charges, after holding a detailed investigation. The Investigating Officer submitted the challan/report under Section 173 of Cr.P.C. before the learned trial Court, wherein the petitioner was placed in Column No. 3 of the said report as he was found guilty, as per police finding. In the instant case, the petitioner/plaintiff (PW.1) has admitted during his cross examination that he moved an application under Section 249-A of Cr.P.C. in the above mentioned criminal case, which was dismissed by the learned trial Court. He has further admitted that he moved an application for his acquittal before High Court, against the above mentioned order on application under Section 249-A of Cr.P.C., but the said application was also dismissed by the High Court. It is also evident from the judgment of acquittal of the petitioner in the above mentioned criminal case (Mark.D-2), that the petitioner was acquitted by extending him the benefit of doubt. In the above mentioned circumstances, it cannot be said that the respondent/defendant lodged the above mentioned case against the petitioner without reasonable and probable cause and having malice against the petitioner/plaintiff. Prosecution of the petitioner could not be declared to be malicious merely because he was acquitted in the above mentioned case.

2. Prosecutor may be wrong, but if he honestly believed that accused had committed a criminal offence, he could not be initiator of malicious prosecution. Even otherwise, malice alone, would not be enough, there must also be shown to be absence of reasonable and probable cause.

The maxim "The reasonable and probable cause" means that it is an honest belief in the guilt of the accused based upon full conviction, based on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true would reasonably lead any ordinary prudent man to the conclusion that the person charged was probably guilty of crime imputed. See (1881) 8 QBD 167 Hicks v. Faulkner. It is also a settled principle of law that if reasonable and probable cause is established, then question of malice becomes irrelevant as observed by Denning L.J. in Tempest v. Snowden (1952) 1 K.B. 130.

As discussed earlier, the petitioner/plaintiff was declared guilty during police investigation, his application for acquittal moved under Section 249-A of Cr.P.C. was dismissed by the learned trial Court and his application whereby he challenged the above mentioned order of trial Court, was also dismissed by High Court, therefore, it cannot be said that the prosecution against the petitioner was launched by the respondent "without any reasonable and probable cause".

1. It is pertinent to mention here that judgments of both the Courts below are in consonance with the law laid down by the Hon'ble Supreme Court of Pakistan. It is by now, a well settled law that mere fact that prosecution instituted by the defendant against the plaintiff ultimately failed, cannot expose the former to the charge of malicious prosecution unless it is proved by the plaintiff that the prosecution was instituted without any justifiable reason and it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect. In the case reported as Sher Muhammad vs. Maula Bux (1995 CLC 1134), the learned Single Judge of Sindh High Court at Karachi, observed as under:--

"Suit for damages against malicious prosecution - Essentials--Plaintiff in an action for malicious prosecution must prove, that prosecution was malicious; and that defendant had acted without reasonable and probable cause in launching such malicious prosecution--Prosecution could not be malicious merely because it was inspired by anger--Prosecutor, however, wrong headed may be, if he honestly thought that accused had been guilty of a criminal offence, he could not be initiator of malicious prosecution. Malice alone, would not be enough, there must also be shown to be absence of reasonable and probable cause."

The suit for recovery of damages on the basis of malicious prosecution was dismissed by the learned trial Court in the above mentioned case of "Sher Muhammad" because the plaintiff failed to establish that the defendant had acted without reasonable or probable cause and the said decision was maintained by the Sindh High Court at Karachi.

1. As discussed earlier, the petitioner/plaintiff was acquitted in the above mentioned case, lodged by the defendant/ respondent, not because of registration of a false case, but because prosecution had failed to prove its case beyond any reasonable doubt. Acquittal on extension of benefit of doubt does not mean that accused were falsely implicated and possibility would not be excluded that accused might also have been involved in the matter. Reference in this context may be made to the cases reported as Sadaruz Zaman vs. The State (1990 SCMR 1277), and Feroze Khan vs. Fateh Khan and 2 others (1991 SCMR 2220).

2. In another case of Mahmood Akhtar vs. The Muslim Commercial Bank Ltd. and another (PLD 1992 Supreme Court 240), the Hon'ble Supreme Court of Pakistan maintained the judgment of the High Court resulting in failure of case of malicious prosecution, where the plaintiff was acquitted by extension of benefit of doubt. Relevant paragraph of the said judgment reads as under:--

"Acquitted accused whose acquittal was by extension of benefit of doubt, failed, in his subsequent case for malicious prosecution against the respondent--Prosecution witnesses in the case who had no malice against the said acquitted accused could not be said to have perjured themselves simply because the acquitted accused had been extended benefit of doubt--Petition for leave to appeal against order of High Court resulting in failure of case of malicious prosecution was dismissed."

1. In the case reported as Subedar (Retd.) Fazale Rahim vs. Rab Nawaz (1999 SCMR 700), the Hon'ble Supreme Court of Pakistan maintained the judgment of the High Court, whereby, the revision petition, filed by the defendant of a malicious prosecution case, was accepted on the ground that the plaintiff failed to establish that the defendant acted without reasonable and probable cause. In the above mentioned case, the plaintiff was discharged under Section 169 of Cr.P.C. in criminal case, lodged by the defendant, and subsequently, the defendant was prosecuted by the police under Section 182 of PPC, but the Hon'ble Supreme Court of Pakistan has held that even the discharge of the plaintiff from the criminal case, and prosecution of the defendant under Section 182 of PPC was not sufficient by itself to establish a case of malicious prosecution. The relevant paragraph of the above mentioned judgment is re-produced hereunder for ready reference :

"Petitioner (plaintiff) failed to establish that the respondent (defendant) had invented such prosecution against him or that he had acted with malice or without reasonable or probable cause--Mere fact that petitioner was discharged in an earlier case under Section 169 Cr.P.C. or that respondent was subsequently, prosecuted by the police under Section 182 PPC was not sufficient to establish a case of malicious prosecution against the respondent--Entire onus in such case would be on the plaintiff which he failed to discharge."

In another case reported as Abdul Rauf vs. Abdul Razzak and another (PLD 1994 Supreme Court 476), the Hon'ble Supreme Court of Pakistan set-aside the judgment of High Court of Sindh, whereby, the suit of plaintiff for recovery of damages on the basis of malicious prosecution, was decreed. In the said case, an FIR was registered on the telegram sent by the defendant. The plaintiff was discharged by the trial Court in the said criminal case, which led him to file a suit for recovery of damages on the basis of malicious prosecution. Although, the plaintiff was discharged from the criminal case, lodged by the defendant, but even then the Hon'ble Supreme Court of Pakistan restored the decision of trial Court whereby the suit of the plaintiff was dismissed, on the ground that as the police, after investigation, had submitted challan against the petitioner, therefore, it could not be said that the defendant acted without any reasonable or probable cause. The relevant para of the said judgment reads as follows:--

"Appellant had only sent a telegram and the police, after investigation, had submitted challan which showed that the Police, prima facie, was of the view that an offence had been committed by the accused person, respondent being one of them--Appellant, in circumstances, held, could not be said to have acted without reasonable or probable cause or with malice".

Similar view was taken by the Hon'ble Supreme Court of Pakistan, in the case of United Bank Limited and 5 others vs. Raja Ghulam Hussain and 4 others (1998 SCMR 734).

1. It is evident from the perusal of above mentioned judgments, passed by the Hon'ble Supreme Court of Pakistan that suit of the plaintiffs for recovery of damages on the basis of malicious prosecution was not decreed even in those cases, where the accused/plaintiffs were discharged and even where the proceedings under Section 182 of PPC were initiated against the defendants/ complainants, whereas, in the instant case, as discussed earlier, the petitioner was found guilty by the Investigating Officer. He was placed in Column No. 3 of challan, his applications under Sections 249-A of Cr.P.C. and 561-A of Cr.P.C., for his acquittal, were initially dismissed by the learned trial Court as well as, by the High Court respectively, therefore, it cannot be declared that the defendants/respondents had acted without reasonable or probable cause. In view of the above discussion, it is evident that basic ingredients to establish and prove a case for recovery of an amount as damages for malicious prosecution, are not established in the instant case, and in absence of said ingredients, the suit of the petitioner/plaintiff cannot be decreed in his favour.

2. The learned counsel for the petitioner could not point out any illegality or material irregularity in the concurrent findings of the Courts-below, therefore, this petition is without any substance and the same is, hereby, dismissed in limine.

(R.A.) Petition dismissed

PLJ 2012 Lahore 223 [Multan Bench Multan]

Present: Rauf Ahmad Sheikh, J.

BARKAT ALI (deceased) through L.Rs. and others--Petitioners

versus

TANVIR ABBAS TABISH and others--Respondents

C.R. No. 574 of 1992, heard on 26.5.2011.

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

----O. XXXII, R. 7--Arbitration Act, (X of 1940), S. 21--Award Rule of Court--Proceedings pronounced award--Effect--Plaintiffs were minors at time of making of reference to arbitrator--Court had ample powers to enlarge time for making of award--Award was passed without affording an opportunity of hearing--Condemned unheard--Court had prescribed time limit for announcement and filing of award--No extension was granted--Award was vitiated and void--Validity--Any agreement or compromise on behalf of minors, entered into without leave of Court would be voidable--No prejudice was caused to minors and, in fact, award was passed in their favour, which showed that their natural guardian i.e. father who had no interest adverse to their interest, looked after their interest vigilantly and effectively--No defect in award or decree on such account. [P. 229] A

Arbitration Act, 1940 (X of 1940)--

----S. 28--Award Rule of Court--Power to enlarge time for making of award--Time does not appear to have been extended--Validity--There was no clause in agreement empowering arbitrator to enlarge time so all proceedings conducted after expiry of fixed date were without authority as he had become functus officio--Award made by arbitrator after expiry of prescribed date without a formal enlargement of time by Court or clause in written agreement empowering in that behalf was void and was not binding on the parties--Disputed award suffered from legal infirmity and could had not been made rule of the Court--Held: An arbitrator was not authorized to pass judgment and decree in favour of either of parties as award did not operate to create any right unless the same was made rule of Court and a decree was passed in terms of the same which fill within domain of the Court. [P. 230] B

Arbitration Act, 1940 (X of 1940)--

----S. 42--Civil Procedure Code, (V of 1908), O. V, Rr. 10 & 10-A--Scope of--Award Rule of Court--Scribe and witnesses were not examined--No award could be announced--No notice was issued--Condemned unheard--Exparte decree--Appeal was accepted by First Appellate Court--Challenge to--Plaintiffs were minors at time of making of reference to arbitrator--Represented by real father as next friend--Validity--Order of arbitrator to attorney to produce power of attorney was not enough to establish that they had been served in accordance with law--Failed to produce power of attorney--Held: Disputed award was not sustainable and was rightly set aside by First Appellate Court--Order did not suffer from any illegality or infirmity to extent for finding recorded--Revision was dismissed. [Pp. 230 & 231] C

Ch. Muhammad Ashraf, Advocate for Petitioners.

Malik Muhammad Latif Khokhar, Advocate for Respondents.

Date of hearing: 26.5.2011.

Judgment

The petitioners have assailed the vires of the judgment and decree, dated 25.7.1992 passed by learned Additional District Judge, Sahiwal, whereby he accepted the appeal filed by the respondents against the judgment and decree dated 25.7.1990 passed by the learned Civil Judge 1st Class, Sahiwal and remanded the suit to the learned trial Court with the direction that it should be decided on merits after recording the remaining evidence on the issues already framed by the Court.

1. The facts, in brief, are that the petitioners filed a suit for specific performance of the contract dated 4.12.1968 in respect of the land fully described in the head-note of the plaint with consequential relief of permanent injunction restraining the defendants/respondents, their representatives, agents, servants or anybody else acting on their behalf from dispossessing the petitioners from the disputed land or transferring it to any other person except the plaintiffs/petitioners. It was stated that the predecessor-in-interest of the defendants/ respondents, namely Muhammad Hussain Shah applied for allotment of the suit land under Tube-well Installation Scheme of 1959. He offered the predecessors of the plaintiffs/petitioners to become share-holders in case of allotment was made in his favour. Under the agreement arrived at between the predecessors of the parties, the predecessors of the present petitioners started development of the land and it was further agreed that the Tube-well would be installed jointly. All expenditures towards leveling, development, installation of tube-well and payment of Government dues were to be borne in ratio of 50: 50% and the land was also to be purchased from the Government jointly. It was further contended that the land was `Banjar Qadeem' and the predecessors of the petitioners brought it under plough. They also contended that in Kharif, 1968, it was agreed that the land would be alienated in favour of predecessors of the plaintiffs/petitioners for a sum of Rs.61,000/- out of which a sum of Rs.60,000/- was paid and the remaining amount of Rs. 1,000/- was to be paid at the time of the registration of the sale deed and the procedure of the defendants/respondents undertook to get the entries made in the revenue record in their favour and subsequently the agreement to sell was executed on 4.12.1968. They contended that their predecessors had not only paid a sum of Rs.60,000/- to the predecessor of the defendants/respondents but also incurred a huge amount on the development of the land. They alleged that the defendants/respondents did not perform their part of the contract. Hence the suit.

2. The defendants/respondents contested the suit on factual and legal grounds. It was contended that neither any agreement to sell was executed nor it was legally permissible and if there was any such agreement, the same was illegal and against the law. The other contentions raised by the petitioners were also controverted. They further contended that Muhammad Hussain Shah, their predecessor was an old illiterate and simpleton villager, who could only affix his signatures so any agreement deed or receipt, if prepared, is against the facts, forged and ineffective qua their rights. They asserted that they had been paying `Zar-i-Laghan' and after cancellation of the allotment, got it restored and also paid the total sale price from their pocket. The learned trial Court accordingly framed following issues:--

3. Whether the parties made joint venture to develop the property in dispute in result of settlement?

4. Whether the Muhammad Shah predecessor-in-interest of the present defendants entered into a valid agreement of sale with Plaintiffs No. 1 and 2 and predecessor-in-interest of Plaintiffs No. 3 to 13 and also received Rs. 16500/- as earnest money and also Rs.60000/- as consideration and the same was registered on 4.12.1968?

5. Whether the plaintiffs remained prepared and willing to perform their part of contract?

6. Whether the suit cannot proceed in view of preliminary Objection No. 1 of the written statement?

7. Whether the decree cannot be passed in suit in view of preliminary Objection No. 2 of written statement?

8. Whether the alleged agreement is void because of inadequacy of the consideration?

9. Whether the Muhammad Hussain Shah deceased was not able to understand the consequence of agreement at the time of said agreement?

10. Whether plaintiffs have made any investment in the suit land, if so to what extent?

11. Relief.

12. On 16.7.1988, learned counsel for the petitioners/plaintiffs, learned counsel for Defendant/Respondent No. 2, learned counsel for Defendants/Respondents No. 1, 3 to 15, Muhammad Yousaf Plaintiff No. 4 and attorney of Defendant No. 2 got a joint statement recorded to the effect that Ch. Nafees Ahmad, Advocate, Sahiwal, be appointed as sole arbitrator for decision of the suit. It was further stated, that after hearing the parties and recording the necessary evidence, whatever award would be announced by him, the same would be binding on the parties and the case be decided in terms of the same. It was also stated that this statement was made under the instructions of all the parties and they would be bound by the same and that they were aware of the consequences of their statement. On this joint statement, the learned trial Court appointed Ch. Nafees Ahmad, Advocate, as sole arbitrator and directed him to file the awarded till 4.9.1988.

13. The arbitrator after recording the evidence and conclusion of the proceedings pronounced the award to the effect that on the basis of the evidence available on the record, the suit is decreed ex parte in favour of the plaintiffs (petitioners) and against the defendants (respondents).

14. The Defendants/Respondents No. 3 to 15 filed objections on this ward to the effect that the arbitrator had no authority to pass the decree in favour of the plaintiffs/petitioners and has, thus, exceeded his jurisdiction; that the reference, was not clear as the points requiring determination by the arbitrator were not specifically mentioned in the same; that the award was passed without affording an opportunity of hearing to the defendants/respondents and without their knowledge as no notice was issued to them; that Ch. Noor Elahi, Advocate, was not their counsel during the proceedings as he had been superseded by Ch. Ghulam Ahmad, Advocate, Sahiwal; that Ashiq Hussain original Defendant/Respondent No. 1 had died on 27.5.1989 so no award could have been announced against him on 30.5.1989; that the scribe and the witnesses of the alleged agreement to sell have not been examined so the findings recorded by the arbitrator were against the facts; that the arbitrator illegally proceeded ex parte against the Defendants/ Respondents 3 to 13 as no notice was served on them and that the arbitrator had not pronounced the award within the time limit prescribed by the Court so the award was liable to be set aside on this ground.

15. The plaintiffs/petitioners controverted these objections and maintained that the award was legal and unexceptionable.

16. After hearing the parties and perusing the record, the learned trial Court made the award rule of the Court vide judgment and decree dated 25.7.1990 by modifying it to the extent that the suit of the plaintiffs is decreed in their favour and against the defendants. The defendants/respondents assailed the said judgment and decree before the learned District Court and the learned ADJ accepted the same through the impugned judgment as mentioned above.

17. I have heard the arguments advanced by Ch. Muhammad Ashraf, Advocate, learned counsel for the petitioners and Malik Muhammad Latif Khokhar, Advocate, learned counsel for the respondents at length and perused the record with their able assistance.

18. Learned counsel for the petitioners has contended that the learned ADJ has erred in holding that submission of separate application in writing is essential for making a reference to the arbitrator; that the mere fact that Plaintiffs/Petitioners No. 10 to 12 were minors, does not vitiate the award; that the learned ADJ could have not acted as appellate forum of the arbitrator and could have confined only to the question as to whether the award was passed legally or not; that the respondents/defendants were served through their learned counsel and as such no illegality or irregularity was committed; that the statements made by the parties personally or through their counsel would be deemed to be an application under Section 21 of the Arbitration Act, 1940 and that the father of the minor plaintiffs was their natural guardian and next friend so no illegality was committed in entering into an agreement to refer the matter to the arbitrator. In support of the contentions raised, reliance is placed on Province of Punjab and another v. Messrs Industrial Machine Pool, Lahore (PLD 1978 Lahore 829), Tariq Hussain and another v. Additional District Judge, Vehari and 2 others (2006 CLC 514) (Lahore), Messrs Ahmed Constructions through Sole Proprietor v. Messrs Neptune Textile Mills and another (PLD 1990 Karachi 216), Murad Khan and another v. Dildar Khan and others (PLD 1966 (W.P.) Peshawar 173), Syed Mukhtar Hussain Naqvi v. Mst. Hajiani Zubeda and another (2003 YLR 3289)(Karachi) and Ashfaq Ali Qureshi v. Municipal Corporation, Multan and another (1985 SCMR 597).

19. Controverting these arguments, learned counsel for the respondents has contended that the application in writing signed by the parties is necessary for making a reference to the arbitrator; that the arbitrator had no authority to decide the suit and pass a decree in favour of the petitioners and as such has transgressed his limits; that Syed Mohsin Ali was attorney of Syed Zulfiqar Ali, Fayyaz Hussain, Riaz Ali, Hassan Raza, Abbas Raza, Syeda Kalsoom Fatima, Syeda Nasim Akhtar and Syeda Nisar Fatima but he had no authority on behalf of the other respondents, who were not served with any notice and as such they were condemned unheard; that their learned counsel had categorically informed that they be served in person so it was imperative for the arbitrator to issue notice to them as their learned counsel were not under obligation to appear before the arbitrator and that the Court had prescribed a time limit for announcement and filing of the award, which was not adhered to by the arbitrator and no extension was granted by the Court so the award was vitiated and void on this score alone.

20. The statement made before the Court on 16.7.1988 clearly reveals that counsel for the plaintiffs/petitioners, counsel for the Defendant/Respondent No. 2 and counsel for the remaining defendants/ respondents categorically stated that Ch. Nafees Ahmad, Advocate, be appointed as arbitrator for decision of the suit. One of the plaintiffs/ petitioners and attorney of the original Defendant No. 2 also put their signatures. The learned counsel had stated that were making the statements under the instructions of the concerned parties. By putting signatures on the joint statement, the petitioners had impliedly admitted that the learned counsel were duly authorized in this respect. Even otherwise the power of attorney executed in favour of the counsel bears and authority in favour of the counsel to make the statement about compromise, arbitration or decision on special oath. The contention that the statements were made without authority, therefore, has no force.

21. Section 21 of the Arbitration Act, 1940, does provide that before pronouncement of the judgment, the parties may apply in writing to the Court for an order for reference but the words `apply in writing' would not confine to the formally drafted application rather it will include the duly recorded statements before the Court, which, of course, are in writing. In this case, categorical and unambiguous joint statement was made on oath by learned counsel for the parties, one of the plaintiffs and attorney of the one of the defendants so the requirement of law had duly been fulfilled and for all intents and purposes it would be deemed that the parties had applied in writing within the meaning of Section 21 of the Act ibid. In this respect, reliance is placed on Province of Punjab and another v. Messrs Industrial Machine Pool, Lahore (PLD 1978 Lahore 829), Tariq Hussain and another v. Additional District Judge, Vehari and 2 others (2006 CLC 514) (Lahore), Messrs Ahmed Constructions through Sole Proprietor v. Messrs Neptune Textile Mills and another (PLD 1990 Karachi 216), Syed Mukhtar Hussain Naqvi v, Mst. Hajiani Zubeda and another (2003 YLR 3289) (Karachi) and Messrs U.I.G. (Pvt.) Limited through Director and 3 others v. Muhammad Imran Qureshi (2011 CLC 758) (Karachi) so the findings of the learned ADJ to this extent are not sustainable.

22. No doubt Plaintiffs Nos. 10 to 12 were minors at the time of making of reference to the arbitrator but they were being represented by their real father as next friend. It is true that Order XXXII, Rule 7 CPC provides that any agreement or compromise on behalf of the minors, entered into without the leave of the Court would be voidable. In the instant case, no prejudice was caused to the minors and, in fact, the award was passed in their favour, which shows that their natural guardian i.e. father, who had no interest adverse to their interest, looked after their interest vigilantly and effectively. There is no defect in the award or the decree on this account.

23. However, there is another important aspect of the matter. Under order dated 16.7.1988 the learned trial Court had directed the arbitrator to file the award in the Court on 4.9.1988. The proceedings recorded by the arbitrator on 4.2.1989 reveal that this time was extended till 11.2.1989. There is nothing on the record to show that any further extension was given thereafter. The Court had ample powers to enlarge the time for making of the award under Section 28 of the Arbitration Act, 1940, but as observed supra, the time does not appear to have been extended. There was no clause in the agreement empowering the arbitrator to enlarge the time so all proceedings conducted by him after the expiry of the fixed date are without authority as he had become functus officio. The award made by the arbitrator after expiry of the prescribed date without a formal enlargement of time by the Court or a clause in the written agreement empowering him in this behalf is void and is not binding on the parties. The disputed award suffered from this legal infirmity and could have not been made rule of the Court. The arbitrator passed the ex parte decree in favour of the plaintiffs/petitioners, and against the defendants/respondents. Legally speaking an arbitrator is not authorized to pass the judgment and decree in favour of either of the parties as the award does not operate to create any right unless the same is made rule of the Court and a decree is passed in terms of the same, which falls within the domain of the Court only.

24. The perusal of the record reveals that the arbitrator did not get the notices served upon all the defendants/respondents. Under Section 42 of the Arbitration Act, 1940, the notices issued by the arbitrator can be served in the following manner:--

(a) by delivering it to the person on whom it is to be served, or

(b) by sending it by post in a letter addressed to that person at his usual or last known place of abode or business in Pakistan and registered under Chapter VI of the Post Office Act, 1888.

The said provisions of the Arbitration Act, 1940, are similar to the provisions of Order V Rules 10 and 10-A CPC. The learned counsel was not under obligation to appear before the arbitrator. Learned counsel for Respondent No. 2 had expressed his inability to accept the service on the ground that he had not received any instruction in this behalf. Naturally, he was under obligation to appear before the Court only and not the arbitrator unless authorized by the petitioners in this regard specifically. The respondents are residents of District Sheikhupura and the notices should have been served upon them in one of the above mentioned modes. The order of the arbitrator to the attorney of some of the respondents to produce the power of attorney on behalf of others was not enough to establish that they had been served in accordance with law. The mere fact that Syed Mohsin Ali had made a promise to produce power of attorney on behalf of others and subsequently failed to do so was not enough to proceed ex parte against those, who were not represented by the attorney and were not served in accordance with law. For all these reasons, the disputed award was not sustainable and was rightly set aside by the learned ADJ. The impugned judgment does not suffer from any illegality or infirmity to this extent for the findings recorded in the foregoing paras. The revision petition is without merits and he same is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2012 Lahore 231

Present: Muhammad Ameer Bhatti, J.

ZAHID HUSSAIN and 4 others--Petitioners

versus

MUHAMMAD KHAN and 7 others--Respondents

W.P. No. 16198 of 2011, heard on 30.11.2011.

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

----O. XVI, R. 1--Constitution of Pakistan, 1973, Art. 199--Non-submission of list of witnesses within seven days from date of framing of issues--Jurisdiction to permit beyond that limit--Application was found on record without bearing a stamp of Court and remained pending in file of trial Court--Cause of substantial justice and ensure just and effective decision pending between the parties--Validity--Courts had not held any inquiry about availability of the list of witnesses in file hence it cannot be held that it was not filed at that stage as it had been shown in the application--If the list of witnesses had been entertained at the proper time, the position would had been different, therefore, at that stage the petitioners could not be penalized for omission/negligence of the Court--Since there was lapse or negligence on part of petitioners as well as on part of the Courts, hence it was advisable and righteous to provide an opportunity to petitioners for summoning all witnesses according to their list--For advancing the cause of substantial justice and ensure the just and effective decision of the matter pending between the parties before trial Court, orders of Courts below were set aside by allowing application for summoning all the witnesses--Subject to deposit of cost of Rs. 10,000/- as expenses to be incurred for summoning all witnesses--Petition was allowed. [P. 234] A, B & D

1988 SCMR 1167, 1995 CLC 327, 2004 SCMR 1367 & 2005 MLD 1713, rel.

Rules and Regulations--

----Scope of--Rules and Regulations are meant to streamline the procedure and administer the course of justice--They are no there to thwart same--Courts have always preferred a decision of a case on merits and technicalities have always been discouraged. [P. ] C

PLD 2002 SC 491, rel.

Mr. Zulfiqar Ali Noon, Advocate for Petitioners.

Mr. Sajjad Sarwar Saqib, Advocate for Respondent No. 5.

Date of hearing: 30.11.2011.

Judgment

This petition is directed against the orders dated 15.12.2010 and 23.06.2011 passed by the learned Respondents No. 7 and 8 respectively.

1. The brief facts of the case are that respondents 3 to 5 filed a suit for declaration to effect that the sale deed dated 26.01.1989 and Mutation No. 310 dated 04.11.1989 purported to be executed in favour of predecessor of the petitioner namely Muhammad Siddique on the basis of the power of attorney dated 14.12.1988 is illegal, un-lawful and based on fraud and mis-representation. The suit was contested by the petitioners by filing the written statement. From the divergent pleadings of the parties the issues were framed and parties were directed to lead the evidence accordingly. The respondents produced their evidence and case was fixed for the evidence of the present petitioners and they submitted the application wherein the list of the witnesses have been inserted who have been summoned through the Court and prayer has been made for the deposit of the expenses for the summoning of the said witnesses. The report was summoned from the Ahlmad, who pointed out that the required witnesses are part of the list of witnesses which has been already submitted by the present petitioners/defendants. The learned trial Court after scrutiny of the file dismissed the application on the ground that the list of witnesses had not been filed within the period prescribed under the law after framing the issues, hence this application cannot be entertained and had been dismissed vide order dated 15.12.2010. This order was assailed in revision petition before the learned Revisional Court, which also dismissed the same vide order dated 23.06.2011.

2. Learned counsel for the petitioner contends that although the petitioner has not submitted the list of witnesses within the seven days after framing the issues, however, an application dated 29.07.2006 has been submitted which is available on record. However, no order has been passed by the learned trial Court on this application and the report of the Ahlmad also reflects the presence of this list of witnesses, hence there was no occasion for the learned trial Court not to issue the process for summoning of these witnesses and rejection of the petitioners' application is not inconsonance with the provisions of law. The revision petition has also been dismissed by the Revisional Court without considering this aspect of the case, hence both the Courts below have committed illegality or irregularity and failed to exercise the jurisdiction vested in them by the law while deciding the application of the petitioners. Further contends that the law favours to decide the matter on merits instead of knocking out the parties on technicalities. Learned counsel for the petitioners has placed reliance on Messrs Naeem Engineering Corporation Vs Government of the Punjab through the Secretary Agriculture and another (1988 SCMR 1167), Mst. Shanaz Begum and 4 others vs. Ashiq Hussain Bhatti and 2 others (1995 CLC 327), Bashir Ahmad Vs. Fazal Din (1994 CLC 1920), Umar Hayat Vs. Additional District Judge and others (2004 SCMR 1367) and Naeem Akhtar Vs. Additional District Judge and others (2005 MLD 1713).

3. On the other hand learned counsel for the respondent contends that the petitioners had failed to submit the list of witnesses within seven days from the framing of the issues a condition precedent for submitting the list of witnesses and at this belated stage unless a plausible reason has been given for non-submission of the list within the period process cannot be issued. Learned counsel for the respondent has placed reliance on Abdul Jalil and another Vs. Mansoor Ahmad (1980 CLC 1815), Mst. Musarrat Bibi and 2 others Vs. Tariq Mahmood Tariq (1999 SCMR 799), Ghulam Nabi Vs. Additional District Judge, Rajanpur and others (2004 CLC 650) and Dhoop Khan Vs. Muhammad Yaseen and others (1995 MLD 868). Further contends that the order of the both Courts below are in accordance with law and in line the law laid down by this Court as well as the Hon'ble Supreme Court of Pakistan, therefore, this Court while exercising the writ jurisdiction cannot interfere in the lawful orders passed by the learned Courts below which were within their jurisdiction.

4. There is no cavil in the proposition that the list of witnesses must have been submitted within seven days from the date of framing of the issues as required under Order XVI, Rule 1 CPC and in case of non-submission, even then the Court has the jurisdiction to permit beyond that limit, if a plausible reason has been shown by the delinquent party. I have anxiously noticed this fact that an application dated 29.07.2006 has been found in the record of the learned trial Court without any order which seems to have been filed without bearing a stamp of the Court and it remained pending in the file of the trial Court till its decision dated seems to have been filed without bearing a stamp of the Court and it remained pending in the file of the trial Court till its decision dated 09.12.2010 where only `dis-allowed' is mentioned. The Courts have not held any inquiry about the availability of this list of witnesses in the file, hence it cannot be held that it was not filed at that stage as it has been shown in this application. If this list of witnesses has been entertained at the proper time, the position would have been different, therefore, at this stage the petitioners alone cannot be penalized for the omission/negligence of the Courts. Moreover, I have made the comparison of this list with the list submitted by the plaintiff which was submitted within the stipulated period as provided under the law in which 5/6 persons are the same in both lists of the parties. However, out of plaintiffs' list only one person has been summoned as the witness and remaining have been dropped by the plaintiff. If this case is considered in this particular context, these witnesses are necessary for the just decision of the case in hand. Since there is lapse or negligence on the part of the petitioners as well as on the part of the Courts, hence it is advisable and righteous to provide an opportunity to the petitioners for summoning all the witnesses according to their list.

5. Apart from this, it is time again hold by the learned Supreme Court and this Court that rules and regulations are only meant to streamline the procedure and administer the course of justice. They are not there to thwart the same. The Courts have always preferred a decision of a case on merits and technicalities have always been discouraged. Reliance is placed on Muhammad Anwar Khan and 5 others vs. Chaudhry Riaz Ahmad and 5 others (PLD 2002 SC 491).

6. Consequently, for advancing the cause of substantial justice and ensure the just and effective decision of the matter pending between the parties before the learned trial Court, the orders of both the Courts below are set aside by allowing this petition and the petitioners' application for summoning all the witnesses is accepted - subject to deposit of cost of Rs.10,000/- as also the expenses to be incurred for summoning all the witnesses determined by the learned trial Court. This petition is allowed in the above-mentioned terms.

(R.A.) Petition allowed

PLJ 2012 Lahore 234

Present: Muhammad Ameer Bhatti, J.

MUHAMMAD HASHIM BHATTI--Petitioner

versus

PAKISTAN RAILWAYS through its Chairman Railway Headquarter Office, Lahore and others--Respondents

C.R. No. 4068 of 2010, decided on 18.10.2011.

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

----O. XXXIX, Rr. 1 & 2--Refusal to grant restrained order--Process for taking over possession was completed--Non-compliance of issuing restrained order--Validity--Petition had become infructuous and further proceedings in that behalf will be an exercise in futility inasmuch as relief sought through instant civil revision could not be granted to petitioner for having already lost possession viz a viz locus standi regarding disputed accommodation--Petition was dismissed. [P. 236] A

Mr. Muhammad Arshad Virk, Advocate for Petitioner.

M/s. Irfan Qadir Malik and Muhammad Younis Kiyani, Advocates for Respondents.

Date of hearing: 18.10.2011.

Order

The petitioner has challenged the order dated 06.04.2010 passed by the learned Civil Judge, Lahore whereby he refused to grant the restraint order on an application under Order XXXIX, Rule 1 & 2 CPC, against which, appeal was also dismissed by the learned Additional District Judge vide order dated 10.12.2010, hence this revision petition.

1. The petitioner has filed this C.R. in this Court on 22.12.2010 and this Court through an order of even date in C.M.1-C/2010, passed the following order:

"Notice for the said date. In the meanwhile, the petitioner shall not be dispossessed from his present accommodation. This order unless specifically extended on the next date of hearing shall cease to be Operative."

1. The learned counsel for the petitioner contends that he has been dispossessed even in the presence of the order of this Court and in consequence thereof, Criminal Original No. 9-C/2011 filed by the petitioner is also pending adjudication.

2. On the other hand, learned counsel for the respondents has not only filed report and parawise comments in this civil revision but also filed the reply in the criminal original wherein they took the stand that before issuing the restraint order dated 22.12.2010 by this Court, the respondents had already taken over the possession of the disputed quarter after completing the legal formalities and in respect thereto, a notice dated 15.12.2010 was issued to the present petitioner and for non-compliance of this notice, process for taking over the possession through Railway Magistrate, Pakistan Railway and SHO Pakistan Railway was completed on 20.12.2010. When this situation was confronted to the learned counsel for the petitioner, he agreed that the respondent has taken over the possession forcibly.

3. In view of the above, this petition has become infructuous and further proceedings in this behalf will be an exercise in futility inasmuch as the relief sought through this C.R. cannot be granted to the petitioner for having already lost the possession viz-a-viz locus standi regarding the disputed accommodation. Be that as it may, without touching the merits of the case, this petition is dismissed.

(R.A.) Petition dismissed

PLJ 2012 Lahore 236 [Rawalpindi Bench Rawalpindi]

Present: Malik Shahzad Ahmad Khan, J.

Syed TAFSIR HUSSAIN--Appellant

versus

MUHAMMAD RASHID JANJUA--Respondent

F.A.O. No. 157 of 2010, heard on 21.11.2011.

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

----S. 54--Cantonment Rent Restriction Act, 1963, S. 17--Civil Procedure Code, (V of 1908)--O. XXXIX, Rr. 1 & 2--Ejectment petition--Suit for specific performance of agreement--Status quo--Suit was pending in Civil Court--Agreement to sell does not create any title in immovable property--Relationship of land lord and tenant did not exist--Validity--Mere an agreement to sell does not create any title in respect of an immovable property--Contention for appellant that on basis of agreement to sell, relationship of landlord and tenant did not exist between the parties, has no force in the eyes of law. [P. 241] A

2003 SCMR 1416 & 2009 SCMR 1077, ref.

Cantonment Rent Restriction Act, 1963 (XI of 1963)--

----S. 17--Transfer of Property Act, (IV of 1882), S. 54--Civil Procedure Code, (V of 1908), O. XXXIX, Rr. 1 & 2--Ejectment petition--Proceedings on eviction petition were stayed--Suit for specific performance of agreement to sell was pending in Civil Court--Validity--Mere pendency of a civil suit filed by tenant on basis of an agreement to sell, was no ground to stay the eviction proceedings pending before Rent Controller--Mere filing of a suit by tenant against landlord for specific performance of agreement to sell could not be considered the ground to stay the proceedings in rent cases--Tenant could not be protected from ejectment merely by asserting agreement to sell or by filing a suit for specific performance of agreement to sell, unless sale-deed was executed in his favour and agreement to sell had been enforced--Filing of civil suit did not vitiate the title of landlord unless the same was finally decided. [P. 242] B, C & D

2002 MDL 384 Lah., PLD 2006 Lah. 793, 2009 SCMR 1396 & 2008 SCMR 1034, ref.

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

----S. 53-A--Cantonment Rent Restriction Act, (XI of 1963), S. 17--Ejectment petition--Suit for specific performance of agreement was pending in Civil Court--Agreement to sell does not create any title in immovable property--Complicated and intricate question of title was involved--Validity--It is duty of Rent Controller to see whether, there is any genuine and complicated question involved about title of the leased property--Only those cases can be left to be decided by Civil Court where intricate and complicated questions regarding title of immovable property were involved--In instant case, neither was any dispute of ownership nor there was any intricate or complicated question about title of leased premises was involved--Defendant was owner of leased house and agreed to sell the premises to him--No complicated or intricate was involved regarding ownership of leased house--No need to leave to matter to be decided by Civil Court--Tenant could not protect his possession over leased house by invoking the provisions of S. 53-A of Act--Appellant could not claim the protection of S. 53-A of T.P.A., 1882 and eviction petition was rightly accepted by Rent Controller when willful default in payment of rent was established against the appellant--Admission of tenant was denied by appellant, therefore, Rent Controller had rightly passed the order of eviction after giving its findings in favour of landlord on issue of existence of relationship of landlord and tenant between the parties--Petition was dismissed. [Pp. 242 & 244] E, F & G

2006 SCMR 946, PLD 1991 SC 242 & 2003 SCMR 1476, PLD 2006 Lah. 643 & 2007 MLD 1606, ref.

Mr. Noor M. Niazi, Advocate for Appellant.

Mr. Muhammad Bashir Kiani, Advocate for Respondent.

Date of hearing: 21.11.2011.

Judgment

This appeal has been filed to challenge the order dated 25.06.2010, whereby, the ejectment petition, filed by respondent, was accepted by the learned Additional Rent Controller, Rawalpindi Cantonment.

1. Briefly stated facts of the case as gleaned from the present appeal are that the respondent filed an eviction petition against the appellant in respect of House No. 7-A, Chur Harpal, Westridge-I, Rawalpindi Cantt. The said ejectment petition was filed on the ground of wilful default in the payment of rent. The appellant contested the said ejectment application and filed his written reply. It was asserted by the appellant that he had purchased the above mentioned house from the respondent (landlord) through agreement to sell dated 10.05.2006, for a total consideration of Rs.30,00,000/-, out of which, Rs.5,00,000/- was paid through cheque, and the remaining amount of Rs.25,00,000/- was agreed to be paid at the time of sale transaction in favour of the appellant. The appellate claimed that in light of the above mentioned facts, the relationship of landlord and tenant between the parties did not exist. It was also stated that the appellant (defendant) has filed a suit for specific performance of agreement, and the learned Civil Court has confirmed the interim stay in favour of the appellant on an application moved under Order XXXIX, Rules 1 and 2 of CPC, whereby the respondent (landlord) was restrained from interfering in the lawful possession of the appellant. The tenant/appellant lastly contended that the respondent instead of performing his contractual obligations, has filed the ejectment petition against him without any justification.

2. On the basis of divergent pleadings of the parties the learned trial Court framed the following issues in order to resolve the controversy:--

ISSUES

1. Whether there exists relationship of landlord and tenant between the parties? OPP.

2. Relief.

3. After framing of necessary formal issues, the parties were directed to adduce their respective evidence in support of their claims.

The respondent appeared as PW. 1, and produced documentary evidence in the shape of Ex. P.1 to Ex.P. 7, Mark-A and Mark-B.

As against it, the appellant appeared as RW.1, and produced only one document in his defence evidence as Ex.R.1.

1. The proceedings on eviction petition were adjourned sine die by the learned Additional Rent Controller, Rawalpindi Cantt, vide order dated 21.03.2009, on the ground that a civil suit was pending between the parties, therefore, the case was adjourned till decision of the said civil suit. The above mentioned order was challenged by the respondent through Writ Petition No. 731 of 2009, which was accepted by this Court vide order dated 03.05.2010 with the direction to the learned Additional Rent Controller, Rawalpindi Cantt to decide the eviction application afresh in accordance with law, within a period of twenty days from communication of the said order. The appellant has not challenged this order any further before the Hon'ble Supreme Court of Pakistan and thus the same has attained finality.

2. The learned Additional Rent Controller, after remand of the case, considered oral as well as, documentary evidence of the parties and then accepted the ejectment petition, vide order dated 25.06.2010, and directed the appellant to hand over the vacant and peaceful possession of the rented property to the respondent within 90 days.

3. The appellant has filed the instant appeal against the above mentioned order, passed by the learned Additional Rent Controller, Rawalpindi Cantt.

4. It is contented by the learned counsel for the appellant that the appellant has purchased the suit property through an agreement to sell dated 10.05.2006, therefore, the relationship of landlord and tenant ceased to exist between the parties, thus, the appellant was not liable to pay rent to the respondent (landlord); that possession of the disputed house was handed over to the appellant as a result of part performance of the above mentioned agreement therefore, the order of eviction could not be passed against the appellant in view of Section 53-A of the Transfer of Property Act (IV of 1882); that the entire evidence, produced by the appellant/tenant, was not discussed by the learned Rent Controller in its true perspective, while passing the impugned order; that the impugned order is a non-speaking order, therefore, the same is liable to be set-aside; that complicated question about title of property was involved in the instant case, which cannot be resolved by the learned Rent Controller, and the matter should have been left for decision by the Civil Court, therefore the impugned order may be set-aside; that if Issue No. 1 about relationship of landlord and tenant between the parties was decided in favour of the respondent, even then the learned Rent Controller cannot evict the appellant outrightly and the respondent was bound to establish his plea of wilful rent default. In support of his above mentioned contentions, the learned counsel for the appellant has placed reliance on the case-law reported as Ashfaque Ahmad and 8 others vs. Nadeem Ahmad and 3 others (PLD 2006 Lahore 643), and Naseer Ahmed Awan vs. Sub-Registrar, Lahore and another (2007 MLD 1606).

5. Conversely, the learned counsel for the respondent (landlord) has vehemently opposed this appeal on the grounds that mere agreement to sell does not create any title in an immovable property, and the appellant/respondent was liable to pay rent to the landlord/respondent, inspite of execution of the said agreement; that the appellant has admitted that he has not paid rent to the landlord with effect from 10.05.2006, therefore, ground of rent default was established on record; that in the earlier round of litigation, it was held by this Court vide order dated 03.05.2010 that the present appellant could not be absolved of his liability to pay rent on the basis of agreement to sell; that the said judgment of this Court has attained finality, as the same has not been challenged any further by the appellant; that it was established through cogent evidence that there exists relationship of landlord and tenant between the parties; that the rent default was also proved, therefore, the appellant was liable to be ejected on this score alone; that the suit of the appellant for specific performance of agreement filed against the respondent (landlord) has already been dismissed by the learned Civil Judge, Rawalpindi, vide judgment and decree dated 30.09.2011, therefore, this appeal is liable to be dismissed. The learned counsel for the respondent, in support of his above mentioned contentions, has placed reliance on the following case-law:--

(i) Muhammad Iqbal Haider and another vs. Vth Rent Controller/Senior Civil Judge, Karachi Central and others (2009 SCMR 1396);

(ii) Sabir Ali Sheikh vs. Haji Nawab Din (2002 MLD 384 Lahore);

(iii) Malik Ameer Bakhsh vs. Additional District Judge, Multan and 3 others (PLD 2006 Lahore 793);

(iv) Amjad Mehmood Khokhar vs. Farasat Hussain and 2 others (2009 CLC 114 Lahore) and

(v) Muhammad Saeed vs. Haji Mehmood-ul-Hassan through Special Attorney and 2 others (2010 MLD 45 Lahore).

1. Arguments heard and record perused.

2. A petition under Section 17 of the Cantonment Rent Restriction Act, 1963 was filed by the respondent (landlord) on the ground of rent default against the appellant, in respect of House No. 7-A, Chur Harpal, Westridge-I, Rawalpindi Cantt. The said eviction petition was contested by the appellant (tenant) on the ground that he had purchased the above mentioned property through an agreement to sell dated 10.05.2006, therefore, the relationship of landlord and tenant between the parties did not exist. It was admitted by the appellant while appearing as RW. 1 that he did not pay the rent to the landlord after execution of the above mentioned agreement to sell dated 10.05.2006. In this way, the rent default was admitted by the appellant (tenant).

3. It was first contended by the learned counsel for the appellant that as an agreement to sell was executed between the appellant (tenant) and the respondent (landlord), therefore, the relationship of landlord and tenant ceased to exist between the parties.

The above contention of the learned counsel for the appellant is misconceived. In this regard, Section 54 of the Transfer of Property Act, 1882 is the relevant provision of law, which reads as under:--

"Contract for sale. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.

....................................................................... .......................................................................

It does not, of itself, create any interest in or charge on such property."

It is evident from the perusal of above mentioned provision of law that mere an agreement/contract for sale does not create any title in respect of an immovable property, therefore, the contention of the learned counsel for the appellant that on the basis of above mentioned agreement to sell, the relationship of landlord and tenant did not exist between the parties, has no force in the eyes of law. Reference in this context may be made to the case of Abbas Ali Khan vs. Mst. Farhat Iqbal and 2 others (2009 SCMR 1077). It was held in the said judgment as under:--

"S.13--Ejectment of tenant on grounds of default and bonafide need of landlady--Tenant taking the plea that he was owner of the property on the basis of an agreement to sell executed by the landlady--Validity--Tenant had not filed any copy of the said agreement of sale with the petition and admitted that the original of same had been lost--Tenant had admitted the title of landlady in his pleadings and that he obtained the possession of the premises from her--Agreement to sell, held, did not confer title and tenant on the basis of such agreement was not entitled to deny relationship of landlord and tenant--Plea of tenant being mala fide, he was liable to be straightaway ejected."

Similar view was taken in the cases of Wajid Ali Khan vs. Sheikh Murtaza Ali and 2 others (2003 SCMR 1416) and Mst. Bor Bibi and others vs. Abdul Qadir and others (1996 SCMR 877).

1. The next contention of the appellant was, that a suit for specific performance of agreement to sell, was pending between the parities in the Court of learned Civil Judge, Rawalpindi, therefore, the learned Rent Controller should have stayed the proceedings on eviction petition filed by the respondent till final decision of his suit by the Civil Court.

The said argument of the learned counsel for the appellant is not convincing. Mere pendency of a civil suit filed by a tenant or the basis of an agreement to sell, is no ground to stay the eviction proceedings pending before the Rent Controller. In my above mentioned views, I am fortified with the judgment, passed by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Azam and another vs. Muhammad Akram (2008 SCMR 1034). The relevant paragraph of the above mentioned judgment is reproduced hereunder:--

"Pendency of tenant's suit against landlord for specific performance of agreement to sell--Plea of tenant was that after such agreement, his possession over premises was no longer as tenant, but as owner thereof thus, he could not be evicted therefrom till final decision of his suit--Such plea was repelled concurrently by two lower Appellate Courts--Supreme Court upheld ejectment order, dismissed petition and refused leave to appeal".

It is by now a well settled-law that mere filing of a suit by the tenant against the landlord for Specific Performance of agreement to sell, cannot be considered a ground to stay the proceedings in rent cases. Reference in this context may also be made to the case of Muhammad Iqbal Haider and another vs. Vth Rent Controller/Senior Civil Judge, Karachi Central and others (2009 SCMR 1396), and Malik Ameer Bakhsh vs. Additional District Judge, Multan and 3 others (PLD 2006 Lahore 793).

A tenant could not be protected from ejectment merely by asserting agreement to sell in his favour or by filing a suit for specific performance of agreement to sell, unless sale-deed was executed in his favour and agreement to sell had been enforced. Filing of civil suit does not vitiate the title of the landlord unless the same was finally decided. Similar view was taken by this Court in the case of Sabir Ali Sheikh vs. Haji Nawab Din (2002 MLD 384 Lahore).

1. The learned counsel for the appellant has also argued that complicated and intricate question of title was involved in this case, therefore, the learned Rent Controller should have left the matter to be decided by Civil Court.

The said argument of the learned counsel for the appellant is not convincing. It is duty of the Rent Controller to see as to whether or not, there is any genuine and complicated question involved about the title of the leased property. Only those cases can be left to be decided by the Civil Court, where intricate and complicated questions regarding the title of immovable property are involved. In the present case, neither there was any dispute qua the ownership of landlord/respondent nor there was any intricate or complicated question involved about the title of leased premises. The appellant has himself admitted that the respondent was owner of the leased house and he agreed to sell the said premises to him. Thus, no complicated or intricate question was involved regarding the ownership of the leased house and, as such, there was no need to leave the matter to be decided by the Civil Court. Reference in this respect may be made to the case of Muhammad Akram vs. Haji Ijaz Ahmed and others (2006 SCMR 946). The relevant part of the above mentioned judgment is reproduced hereunder:--

"S.13--Denial of relationship landlord and tenant between parties on basis of agreement to sell in favour of respondent--Prayer for reference of question of title to Civil Court--Validity--Landlord in ejectment petition was required to prove his entitlement to receive rent by proving induction of respondent in premises as tenant--Neither there was any dispute nor same could be raised qua ownership of landlord as respondent's own case was that landlord had agreed to sell premises to him--Question of title, thus, not disputed, which could be referred to Civil Court for resolution."

1. The appellant set up another plea that the ejectment petition could not be allowed against him in view of Section 53-A of the Transfer of Property Act (IV of 1882), because he (the appellant) was in possession of the leased premises as a result of part performance of agreement to sell between the parties.

The said plea of the appellant is not effective. A tenant cannot protect his possession over the leased house by invoking the provisions of Section 53-A (ibid). The said proposition of law has already been discussed by the Hon'ble Supreme Court of Pakistan in its various judgments and this plea of the tenants was never accepted to be a valid defence in their favour to keep their possession over the leased property. Reference in this context may be made to the case of Iqbal and 6 others vs. Mts. Rabia Bibi and another (PLD 1991 Supreme Court 242). In the above mentioned case, the Hon'ble Supreme Court of Pakistan has held as under:--

"(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)

S. 13--Transfer of Property Act (IV of 1882), S. 53-A--Specific Relief Act (I of 1877), S.12--Ejectment application--Plea of agreement to sell of demised premises by tenants in their favour--Effect--Ejectment application could not be stayed or stalled on a plea that tenants in possession were holding agreement to sell--Pendency of a suit for specific performance of agreement would also be no ground to avoid eviction of tenants by Rent Controller--Where such plea raised in defence by tenants was not effective, next order to be passed would be one for eviction".

It is, therefore, clear that the appellant cannot claim the protection of Section 53-A of the Transfer of Property Act, 1882, and the eviction petition of the respondent was rightly accepted by the learned Additional Rent Controller, Rawalpindi Cantt, when wilful default in payment of rent was established against the appellant.

1. It was lastly argued on behalf of the appellant that though the issue regarding the existence of the relationship of landlord and tenant between the parties was decided in favour of the respondent, even then, the learned Rent Controller should have taken into consideration as to whether or not there was any wilful rent default on behalf of the appellant and the appellant could not be evicted straightaway.

This contention of the learned counsel for the appellant is misconceived. The appellant while appearing as RW, 1 has admitted that after execution of the rent agreement on 15.09.2002, he did not pay any rent to the respondent (landlord). In view of the above admission of the appellant (tenant), and as the relationship of landlord and tenant was denied by the appellant, therefore, the learned Rent Controller bas rightly passed the order of eviction after giving its findings in favour of the respondent (landlord) on the issue of existence of relationship of landlord and tenant between the parties.

I am fortified in my above views with the law laid down by the Hon'ble Supreme Court of Pakistan in the case of Rabnawaz vs. Haji Muhammad Iqbal and 2 others (2003 SCMR 1476). The relevant part of the said judgment reads as follows:--

"S.13 [as applicable to Province of N.-W.F.P.-- Relationship of landlord and tenant, existence of-- Proof--All the facts on record, statement of witness and plaint in a civil suit indicated that relationship of landlord and tenant existed between the parties--Application for ejectment by the landlord having been based on default, and the required relationship of landlord and tenant having been denied by the tenant the tenant was liable to be ejected straightaway when the required relationship was proved in affirmative".

1. The judgments cited by the learned counsel for the appellant are distinguishable from the facts of the present case. In the above referred case of "Ashfaq Ahmad" (PLD 2006 Lahore 643), the judgment was given by this Court in a pre-emption case. Similarly, the case of Naseer Ahmad Awan vs. Sub-Registrar, Lahore and another (2007 MLD 1606) has different facts. The above mentioned judgments were not given in rent matters, therefore, the same are not relevant for the decision of issues, which are involved in the present appeal.

2. The learned counsel for the appellant could not point out any illegality or material irregularity or legal or factual infirmity in the impugned order, passed by the learned Additional Rent Controller, Rawalpindi Cantt, dated 25.06.2010, therefore, this appeal has no merits and the same is, hereby, dismissed.

(R.A.) Appeal dismissed

PLJ 2012 Lahore 249 [Rawalpindi Bench Rawalpindi]

Present: Abdul Waheed Khan, J.

AHMAD WASEEM--Petitioner

versus

MUHAMMAD AYUB etc.--Respondents

C.R. No. 87 of 2003, heard on 1.11.2011.

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

----S. 14--Civil Procedure Code, (V of 1908)--Scope--Applicability of CPC--Although CPC provides a procedure for civil suit but some of the provisions of Punjab Pre-emption Act, regulate the proceedings of suit for possession through pre-emption. [P. 251] A

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

----Ss. 13 & 14--Civil Procedure Code, (V of 1908), O. XXXII, Rr. 2 & 3--Guardians and Wards Act--Scope of--Jumping demand can be made on behalf of minor pre-emptor by guardian or agent--Suit for possession through pre-emption was filed in name of minor through as his next friend--Suit was dismissed by Courts below--Requirement of talabs--No relationship with minor that could not file such suit--Neither a natural guardian nor he was appointed by Guardian Court--Not competent to file any such suit--Validity--Neither make any talbs nor file any suit for possession through pre-emption when mother of plaintiff was alive at time of sale transaction--His elder brother was major and was capable of lodging after interest of minor--He was neither natural guardian, nor guardian appointed by Civil Court under provision of CPC or guardian appointed by Guardian Court--Where a person was unable to make demands u/S. 13 of Act, 1991, then his guardian or agent can make demands and institute a suit for possession through pre-emption and none else but guardian would be person who had legal authority and duty to care for another's person or property, especially because of other's infancy, incapacity or disability--Suit was filed by himself for his own interest--Concurrent findings did not call for any interference--Petition was dismissed. [P. 252] B

Mr. Muhammad Amir Butt, Advocate for Petitioner.

Mr. Muhammad Atif Farzauq Raja, Advocate for Respondent.

Date of hearing: 1.11.2011.

Judgment

As against the sale of land measuring 41 kanal 10 marla, i.e. 1/6th share of Khewat No. 190 situated within the area of Mathrala tehsil Talagang through Mutation No. 519 dated 14.12.1998, a suit for possession through pre-emption was filed in the name of Ahmad Waseem (minor) through Nazar Hussain as his next friend. The suit was contested. According to the respondent/defendant, mother and elder brother of the minor are alive and that Nazar Hussain, who is not related to him, posing himself to be guardian of the minor, instituted the suit with mala fide intention. According to the respondent/defendant the requirement of Talabs was also not fulfilled. After the pleadings of the parties, issues were settled and evidence of both the parties was recorded. From the petitioner/plaintiff's side, Nazar Hussain, PW.1, Gulab PW.2 and Sultan Muhammad PW.3 were examined, whereas the respondent/defendant himself appeared as DW.2 and produced Allah Ditto as DW.1. While giving its finding on Issue No. 1, the Civil Court dismissed the suit vide judgment and decree dated 7.2.2002. The operative part of the judgment is in the following words:--

"In view of the above discussion, especially on Issue No. 1, I am of the considered view that the suit of the plaintiff is not maintainable because he is a minor and one Nazar Hussain is not legally appointed guardian of the minor. Plaintiff Nazar Hussain has instituted the instant suit for his own personal benefit and judgment and decree, if passed in his favour, may go against the welfare of the minor plaintiff, which is to be determined by the Court at any cost."

1. Feeling aggrieved of the same, an appeal was filed which was also dismissed by the appellate Court vide judgment and decree dated 18.7.2002, hence this revision petition.

2. The contentions of counsel for the petitioner are that there are three kinds of guardian i.e. (a) natural guardian, (b) guardian ad litem and (c) guardian of a minor appointed under the provisions of Guardian and Wards Act, 1925 and that Nazar Hussain was the guardian ad litem of the minor and thus he was competent to file a suit for pre-emption before the Civil Court. According to him the issue before the Civil Court was as if Nazar Hussain had filed the suit for his own interest and onus to prove this issue was upon the respondent/defendant. According to him under the provisions of Sections 13 and 14 of the Punjab Pre-emption Act, 1991 a guardian of a person may make the demands on his behalf. He lastly submitted that the Civil Court did not comply with the provisions of Order XXXII, Rules 2 & 3 CPC and while accepting this petition, the matter be remanded to the Civil Court for appointment of a guardian and decision of the case on merits.

3. Contrarily the contentions of counsel for the respondent are that concurrent findings of both the Courts below do not call for interference, that Nazar Hussain had no relationship whatsoever with the minor and that he could not file any such suit. According to him, Nazar Hussain is neither a natural guardian nor he is appointed as such by the Guardian Court under the provisions of Guardian and Wards Act, therefore, he was not competent to file any such suit and that this revision petition merits dismissal.

4. Arguments heard. Record perused.

5. Although the Code of Civil Procedure provides a procedure for a civil suit but some of the provisions of Punjab Pre-emption Act, 1991 also regulate the proceedings of suit for possession through pre-emption. Section 14 of the Punjab Pre-emption Act, 1991 is re-produced below:--

"Demand by guardian or agent.--Where a person is unable to make demands under Section 13, his guardian or agent may make the required demands on his behalf."

The word "guardian" has been defined in Black's Law Dictionary (Ninth Edition) in the following words:--

"One who has the legal authority and duty to care for another's person or property, esp. because of the other's infancy, incapacity, or disability."

So in a suit for possession through pre-emption, the jumping demand can be made, on behalf of the minor pre-emptor by his guardian or the agent. The suit is also to be filed by the person who makes any such demand. For the purposes of ascertaining as if Nazar Hussain is the guardian of the minor, a portion of his examination in chief is relevant which is re-produced hereunder:--

The said Nazar Hussain did not utter a single word that he had any legal authority and duty to care for the person and property of the minor because of his infancy, incapacity or disability, therefore, he by no means can be considered to be his guardian. He has himself admitted in his examination in chief that he is a remote relative of the minor. In an answer to a question Nazar Hussain stated that the petitioner/plaintiff is his Khalazad but he could not tell the name of the Khala. The counsel for the petitioner contended that Nazar Hussain is guardian ad litem of the minor. The definition of "guardian ad litem" in Balack's Law Dictionary (Ninth Edison) is as follows:--

"A guardian, usu. A lawyer, appointed by the Court to appear in a law suit on behalf of an incompetent or minor party.--"

But there is no such appointment by the Court, authorizing Nazar Hussain to file any such suit for possession through pre-emption and to pursue the same, therefore, the contention of counsel for the petitioner that Nazar Hussain is guardian ad litem, is misconceived. It stands established that Nazar Hussain has no direct relationship with the minor and thus he had no legal authority or duty to the minor's property because of his infancy, incapacity and disability. Thus, he could neither make any Talbs under the provisions of Sections 13 and 14 ibid, nor file any suit for possession through pre-emption especially when the mother of the plaintiff was alive at the time of sale transaction. His elder brother was also major and was capable of looking after the interest of the minor. He was neither his natural guardian, nor guardian appointed by the Civil Court under the provisions of Order XXXII CPC or guardian appointed by the Guardian Court under the provisions of guardian and Wards Act, 1925. Where a person is unable to make demands under Section 13 ibid, then his guardian or agent can make demands and institute a suit for possession through pre-emption and none else but the guardian would be the person who has the legal authority and duty to care for another's person or property, especially because of the other's infancy, incapacity or disability. In the instant matter, it would be presumed that the suit was filed by himself for his own interest. The findings of both the Courts below do not call for any interference. The contentions of counsel for the petitioner are totally misconceived, thus, no interference called for. This petition fails, hence the same is dismissed.

(R.A.) Petition dismissed

PLJ 2012 Lahore 253

Present: Rauf Ahmad Sheikh, J.

Mian ABDUL SATTAR--Petitioner

versus

STATE and 4 others--Respondents

W.P. No. 2084 of 2011, decided on 9.12.2011.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898) S. 369--Constitutional petition--Cancellation of superdari of batteries--Prima facie--Batteries were not the case property of FIR--Order for cancellation of superdari--Question of--Whether the order was hit by provision of S. 369, Cr.P.C.--Validity--Order was passed on subsequent application after bringing under consideration all relevant and important facts so it was not hit by provision of S. 369, Cr.P.C.--Batteries were consumable commodities--Till final conclusion of proceedings on civil side, these will be reduced into empty boxes and would not be of any use for any one--Such would ultimately defeat the ends of justice--Trial Court would sell same through Distt. Nazir in presence of the parties and keep sale proceeded in government treasuring as Amanat to be paid the person entitled to same as per judgment of Civil Court--Petition was disposed of. [P. 255] A & B

1997 PCr.LJ 61, PLD 1968 Lah. 1290 & 1970 PCr.LJ 1235, rel.

Mr. Riasat Ali, Advocate for Petitioner.

Mr. Arif Yaqoob Khan, AAG for State.

Mr. Fayyaz Ahmad Mehr, Advocate for Respondent No. 5.

Date of hearing: 9.12.2011.

Order

The petitioner has assailed the vires of order dated 22.12.2010 passed by the learned Judicial Magistrate, Faisalabad, whereby he cancelled "Superdari" of 19 batteries in favour of the petitioner.

1. The facts in brief are that the petitioner lodged FIR No. 502/2008 dated 2.7.2008 Police Station Thikriwala District Faisalabad alleging therein that some unknown persons broke open his shop and committed theft of 36 Exide Batteries, other valuable articles and cash amount of Rs. 18,000/-. Nineteen batteries were recovered by the police which were ordered to be handed over to the petitioner on "Superdari" vide order dated 15.11.2010. Muhammad Saeed, Respondent No. 5, who is complainant of FIR No. 1082/10 dated 1.11.2010 Police Station Jhang Bazar, Faisalabad, moved an application with the contention that 56 batteries were stolen from his shop and 19 batteries given on "Superdari" were his property and were wrongly released in favour of the petitioner so "Superdari" in his favour be cancelled and the same be handed over to him. This petition was accepted after verification of the numbers of the batteries.

2. The learned counsel for the petitioner has contended that the learned Magistrate had no jurisdiction to review the order dated 15.11.2010 and as such the impugned order is patently illegal. It is urged that the direction of the learned Allaqa Magistrte that the parties should establish their claim in the Civil Court is not sustainable as the petitioner is lawful owner and claimant of the batteries which were stolen from his shop on 2.7.2008. In support of this contention, reliance is placed on 1997 PCr.LJ 61, PLD 1968 Lahore 1290 and 1970 PCr.LJ 1235.

3. The learned counsel for Respondent No. 5 has contended that these batteries were specifically mentioned in the FIR lodged by Respondent No. 5 after commission of theft in his shop. It is urged that the batteries owned by the petitioner were stolen in 2008 whereas all these batteries were manufactured in the year 2010 so the same cannot be the stolen property of case FIR No. 502/2008.

4. The petitioner had lodged FIR on 2.7.2008 without giving the details of batteries stolen from his shop whereas Respondent No. 5 gave the details of the batteries stolen from his shop. The learned trial Court got the batteries inspected through the local commission and found that these batteries were mentioned in FIR No. 1082/10 Police Station Jhang Bazar, Faisalabad, lodged by Respondent No. 5 on 1.11.2010. It is not denied that these batteries were manufactured in 2010. In these circumstances, prima facie, these batteries were not the case property of FIR registered at the instance of the petitioner in the year 2008 so the learned Illaqa Magistrate was fully justified in passing the order for cancellation of "Superdari". Whether this order is hit by the provisions of Section 369 Cr.P.C. or not is to be seen in true perspective of the facts as elaborated above. The Court granting the bail or passing an order for release of the case property on "Superdari" has the power to cancel the same, if sufficient grounds are available in this respect. The impugned order was passed on a subsequent application after bringing under consideration all the relevant and important facts so it is not hit by the provisions of Section 369 Cr.P.C. The case law cited at the bar is not applicable on the facts of the present petition. However, there is another important aspect of the matter i.e the batteries are consumable/perishable commodities. Till the final conclusion of proceedings on civil side, these will be reduced into empty boxes and would not be of any use for any one. This would ultimately defeat the ends of justice. The learned trial Court should sell the same through the District Nazir in presence of the petitioner and Respondent No. 5 and keep the sale proceeds in government treasury as "Amanat" to be paid to the person entitled to the same as per judgment of the Civil Court. With this direction, the writ petition stands disposed of.

(R.A.) Petition disposed of

PLJ 2012 Lahore 255 [Rawalpindi Bench Rawalpindi]

Present: Sagheer Ahmad Qadri, J.

Group Captain SYED MUHAMMAD FAZAL--Petitioner

versus

PROVINCE OF PUNJAB through Secretary Home Department, Government of Punjab and 3 others--Respondents

W.P. No. 1533 of 2011, decided on 5.7.2011.

Constitution of Pakistan, 1973--

----Art. 199(1)(a)(ii)--Pakistan Air Force Act, 1953, Ss. 7 & 60--Official Secret Act, 1923, S. 3(1)(c)--Pakistan Prison Rules, 1978, R. 243--Constitutional petition--Commitment warrants--Conviction by Field General Court Martial--Entitlement of A' class in civil prison--Discretion lies with Court--Rule to classify prisoner for keeping detaining in jail in specific class--Validity--Convicts prisoners convicted involving subversive, espionage or anti state acts under Pakistan Army Act, Air Force Act, 1953, Pakistan Navy Ordinance, 1961 were found not entitled for superior class facilities in jail thus, in view of circumstances when petitioner was not entitled for such facility to be treated asA' class prisoner, there was no merit in instant petition which was dismissed. [P. 259] A

Mr. Muhammad Akram, Advocate for Petitioner.

Mr.Nadeem Akhtar Bhatti, AAG for Respondents.

Mr. Hassan, Deputy Superintendent, Adiala Jail.

Date of hearing: 5.7.2011.

Order

Petitioner Group Captain Syed Muhammad Fazal son of Syed Abdur Rehman, a convict vide conviction passed on 28.03.2011 by a Field General Court Martial committed to the custody of Respondent No. 4-Superintendent Central Jail, Rawalpindi to serve out his sentence, has moved this writ petition agitating the facts that as in Warrants of Commitment dated 15.04.2011 issued by the competent authority, the petitioner was declared entitled for `A' class in civil prison which direction is not being complied with by Respondent No. 4 therefore, a direction in this respect be issued.

1. This Court on submission of this writ petition sought parawise comments from the Respondent No. 4 which are submitted on the file.

2. Learned counsel for the petitioner reiterated his stand mentioned in the writ petition referring Air Force Order No. III-48 issued by the Commander in Chief of Pakistan Air Force on 03.08.1971 whereby in Para No. 3, it was directed that the officer class if convicted be classified as A' class prisoners in civil prison and this classification be recorded in the relevant Commitment Warrants. Learned counsel for the petitioner argued that as the petitioner was classified asA' class prisoner in Warrants of Commitment but the respondents inspite of repeated prayers/applications were not treating him as such to which he has lawful right therefore, a direction in this respect be issued while, allowing this writ petition.

3. Conversely, learned AAG on the basis of parawise comments and Notification No. SO(R&P)4-24/10 (Part-I) submitted that as under Rule 243 of Pakistan Prison Rules, 1978, the authority vests with the concerned Government to classify a convict for the purposes of keeping in jail and the relevant Government i.e. the Provincial Government vide above mentioned Notification has declared the petitioner's case falling under Para No. 3(L) therefore, he was not entitled to be treated as `A' class prisoner, thus the writ petition filed by the petitioner being without lawful justification and devoid of any merits be dismissed.

4. I have heard learned counsel for the parties and perused the record.

5. The Commitment Warrants if seen which is annexed on this file as Annexure-A, it reads:--

"To, The Superintendent of Adiyala Jail, District Rawalpindi.

WHEREAS at a Field General Court Martial held at Air Headquarters (Unit), Peshawar on 20 day of January, 2011 Gp Capt S.M Fazal Pak/8413 A&SD of Air Headquarters (Unit), Peshawar was duly convicted of three charges under Section 71 (two charges) is committing a civil offence that, is to say, for a purpose prejudicial to the interests of the state, obtaining documents/information which might be useful to an enemy contrary to Section 3(1)(c) of the Official Secret Act, 1923 and Section 60 (one charge) i.e. making a false statement.

AND WHEREAS the said Field General Court Martial on 28 day of March, 2011 passed the following sentence upon the said Gp Capt S M Fazal Pak/8413 A&SD that is to say to suffer rigorous imprisonment for One Year and to be dismissed from service.

AND WHEREAS the said sentence has been duly confirmed by Air Commodore Salamat Ali, Officer Commanding Air Headquarters (Unit), Peshawar as required by law. This is to require and authorize you to receive the said Gp Capt S M Fazal Pak/8413 A&SD into your custody together with this Warrant and thereto carry the aforesaid sentence of rigorous imprisonment into execution according to law and for so doing this should be your Warrant.

This sentence has effect from 28 March, 2011.

The officer is entitled for class `A' in civil prison.

Given under my hand at Air Headquarters (Unit), Peshawar this the 15 day of April, 2011."

According to Commitment Warrants, the petitioner is shown convicted under Sections 71, 60 of Pakistan Air Force Act read with Section 3(1)(c) of Official Secret Act, 1923 to undergo one year R.I and he was also dismissed from the service. Rule 243 of the Pakistan Prison Rules, 1978 provides:

"Rule 243.--For A and B classes the classifying authority will be the Government. Courts may classify prisoners into A and B class pending final orders of the Government. Class "C" will be classified by the trying Courts, but such prisoners will have a right to apply for revision to the Government. Petitions of revision will be forwarded by the Superintendent to the Inspector-General for transmission to Government"

Admittedly discretion lies with the Court concerned under the above mentioned rule to classify prisoners for keeping-detaining in jail in a specific class but the final authority in this respect is reserved with the concerned Government. Government of Punjab vide Notification dated 05.04.2011 provided:

"No. SO(R&P)4-24/10 (Part-I). Governor of the Punjab is pleased to direct that the superior class jail facilities to a prisoner in the Punjab may be allowed in accordance with the Prisons Rules, 1978 and subject to the fulfillment of the following criterion/conditions:

(a) he is a casual offender and not a professional/habitual criminal;

(b) he holds a Graduate degree from a recognized University or institution; and

(c) he establishes his superior mode of living, and for the purpose, he must be in possession of minimum 100 acres of barani or 50 acre irrigated land as verified by Executive District Officer (Revenue) or District Coordination Officer concerned, or he owns comparable business and personal assets, as substantiated by the latest income tax Return/Certificate.

1. The superior class facilities shall not be claimed as of right.

2. The superior class jail facilities shall not be allowed to a prisoner who does not fulfill the above conditions, or who is a previous convict serving enhanced sentence under Pakistan Penal Code, 1860, or who is involved in a heinous offence, such as:--

(a) -------------------------------------

(b) -------------------------------------

(c) -------------------------------------

(d) -------------------------------------

(e) -------------------------------------

(f) -------------------------------------

(g) -------------------------------------

(h) -------------------------------------

(i) -------------------------------------

(j) -------------------------------------

(k) -------------------------------------

(l) an offence involving subversion, espionage or anti-state acts under Pakistan Army Act, 1952; Pakistan Air Force Act, 1953; Pakistan Navy Ordinance, 1961.

The superior class jail facilities may be allowed initially on provisional basis for a period not exceeding three months, but the competent authority, for reasons to be recorded, may, from time to time, extend that period subject to good conduct of the prisoner during the period."

By mere reading of above mentioned Notification the convicts prisoners convicted involving the subversive, espionage or anti-state acts under Pakistan Army Act, 1952, Pakistan Air Force Act, 1953 and Pakistan Navy Ordinance, 1961 are found not entitled for superior class facilities in jail thus, in view of the circumstances when the petitioner is not entitled for any such facility to be treated as `A' class prisoner, there is no merit in this writ petition which is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2012 Lahore 259

Present: Muhammad Farrukh Irfan Khan, J.

AMJAD PERVAIZ--Petitioner

versus

INSPECTOR GENERAL RAILWAY POLICE, LAHORE, and 3 others--Respondents

W.P. No. 27020 of 2011, decided on 8.12.2011.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Petitioner was served with show cause-notice on charges of mis-conduct/inefficiency--Maintainability of writ petition--Validity--It is settled law that writ petition was not maintainable against charge sheet. [P. 261] A

PLJ 2002 Lah. 1393, rel.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Embezzlement in case property--Departmental proceedings under rules--No bar to initiate departmental proceeding in presence of criminal proceedings--Only charge sheet was issued--Question of--Departmental proceedings as well as criminal proceedings can run parallel--Contention--In presence of criminal proceedings departmental proceeding cannot be initiated against petitioner has no force in eyes of law as in criminal matter the Court has to look whether any crime has been committed by culprit or not under Cr.P.C. whereas in departmental proceedings the competent authority has to look into show-cause notices had been served to petitioner--Right course for petitioner was to file reply to charge sheet and raise any question of law or fact before competent authority--Petition was dismissed. [P. 261] B & C

2001 PLC (CS) 939, rel.

Mr. Abid Iqbal Butt, Advocate for Petitioner.

M/s. Sarfraz Ahmad Cheema and M. Younis Kiyani, Advocates for Respondents.

Date of hearing: 8.12.2011.

Order

Through this single order I would like to dispose of this writ petition as well as Writ Petition No. 27027/10 as grievance of the petitioners in both these petitions is the same.

1. Learned counsel for the petitioners submits that a criminal case has been registered against the petitioners which is pending adjudication before the competent Court of jurisdiction; that in the presence of said criminal proceedings the respondents/authorities have served the petitioners with charge sheet/show cause notices and initiated inquiry proceedings against the petitioners; that in the presence of criminal proceedings the respondents are not justified to initiate departmental proceedings against the petitioners; that the respondents should wait for the result of criminal proceedings and if the petitioners have been found guilty and convicted by the competent Court of jurisdiction then respondents can initiate departmental proceedings against the petitioners; that the respondents with malafide intention and with clear intention to remove the petitioners from service have issued charge sheet/show cause notices against the petitioners which is not maintainable under the law.

2. On the other hand, learned counsels for the respondents submitted that the petitioners have made embezzlement in the case property and have been arrested red handed; that the department has initiated departmental proceedings against the petitioners under the relevant rules; that there is no bar on the department to initiate departmental proceedings in the presence of criminal proceedings; that only charge sheet/show causes notices were issued to the petitioners and if the petitioners have something in their defence they can place the same before the competent authority; that the departmental proceedings as well as criminal proceedings can run parallel.

3. I have heard the arguments advanced by the learned counsels for the parties and perused the record.

4. The petitioner Amjad Pervaiz was served with the charge sheet dated 03.08.2011, whereas, petitioners Shabbir Ahmad and Muhammad Sajjad were served with show cause notices on the charges of mis-conduct/inefficiency. It is settled law that writ petition is not maintainable against charge sheet. Reliance is placed on case reported as Muhammad Javed Vs. Executive District Officer (Education) Sialkot and 2 others (PLJ 2002 Lahore 1393).

5. The contention of the learned counsel for the petitioners that in the presence of criminal proceedings departmental proceeding cannot be initiated against the petitioners has no force in the eyes of law as in the criminal matter the Court has to look whether any crime has been committed by the culprit or not under the Criminal Procedure Code whereas in the departmental proceedings the competent authority has to look into whether the employee is guilty of mis-conduct or inefficiency under the relevant rules. No final order against the petitioners is in the field. Only show cause notices/charge sheet have been served to the petitioners. The right course for the petitioners is to file reply to the charge sheet/show cause notices and raise any question of law and/or facts before the competent authority. Reliance is placed on case reported as Muhammad Akhtar Sherani and 35 others Vs. The Punjab Textbook Board, Lahore and 4 others (2001 PLC (C.S) 939).

6. Resultantly, this petition has no force and the same stands dismissed.

(R.A.) Petition dismissed

PLJ 2012 Lahore 262

Present: Muhammad Farrukh Irfan Khan, J.

HABIB BANK LTD. through Regional Manager Auto Recovery--Petitioner

versus

LEARNED JUDGE BANKING COURT-IV, LAHORE and another--Respondents

W.P. No. 3592 of 2010, decided on 29.10.2010.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Repossession of vehicle--Auto lease finance facility was obtained--Defaulted in payment of monthly installment--Suit for rendition of accounts was filed before Banking Court--Possession of the vehicle was handed over to respondent--Challenge to--Whereby bank had declined to waive of early settlement charges on auto finance account against full and final settlement after obtaining approval of banks competent authority and proceeded to deduct monthly installments upto from respondents account--No mention of amount paid or amount outstanding against him--Bank was withholding vehicle against a small amount which was outstanding which ultimately persuaded Banking Court while passing the order was not borne out from record of file nor the plea was taken by respondent in suit for rendition of accounts filed before Banking judge--Bank rightly repossessed the vehicle and action had illegally been set at naught by Banking Court--Petition was allowed. [P. 264] A & B

Mr. Bilal Kashmiri, Advocate for Petitioner.

Mr. Shahid Ikraam Siddiqui, Advocate for Respondent No. 2.

Date of hearing: 7.9.2010.

Order

Petitioner through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 prays as under:

"that this petition may kindly be accepted and impugned order dated 18.02.2010 may kindly be set aside and Respondent No. 1 may kindly be directed to proceed with the matter expeditiously without unnecessary loss of time and time may be fixed for its earlier disposal in the interest of justice."

Any other appropriate relief that this honourable Court may deem proper may also be granted in the interest of justice."

1. Briefly the facts of the case are that the Respondent No. 2 obtained auto lease finance facility of one Honda City EXIS amounting to Rs.8,30,500/- against securities. The respondent defaulted in payment of monthly installments and pursuant to clause 12 of the lease agreement the petitioner-bank took possession of the said motor vehicle. The Respondent No. 2 filed a suit for rendition of accounts and permanent injunction against the petitioner before the learned Banking Court-IV, Lahore. During the pendency of the PLA filed by the petitioner, learned Banking Court-IV, Lahore through the impugned order dated 18.02.2010 handed over the possession of the said vehicle to the Respondent No. 2 by relying on letter dated 25.07.2008

2. Learned counsel for the petitioner contends that both the parties are bound by the terms of the lease agreement; that the Respondent No. 2 defaulted in payment of monthly installments and pursuant to Clause 12 of the lease agreement the petitioner-bank rightly took the possession of the vehicle; that the learned Judge Banking Court has illegally relied upon letter dated 25.07.2008 and granted possession of the said vehicle to the Respondent No. 2 through the impugned order which is not sustainable under law. Further that Respondent No. 2 is a defaulter of many banks including the petitioner-bank as per report of the Consumer Protection Department of the State Bank of Pakistan; that the Respondent No. 2 has also defaulted in payment of monthly installments of another auto lease finance facility for Suzuki Baleno Car obtained from the petitioner-bank.

3. On the other hand, learned counsel for the Respondent No. 2 contends that the Respondent No. 2 has not defaulted in payment of monthly installments; that the petitioner-bank illegally took over the possession of the vehicle from the petitioner forcibly; that the Respondent No. 2 has paid major portion of his liability and only small amount is outstanding against him; that the learned Banking Court has rightly directed the petitioner bank to hand over the possession of the vehicle to the Respondent No. 2 through the impugned order.

4. Arguments heard. Record perused. The learned Judge Banking Court through the impugned order dated 18.02.2010 has based his reasoning on the letter dated 27.07.2008 while directing the petitioner-bank to return the vehicle to the Respondent No. 2. Perusal of letter dated 25.07.2008 shows that the said letter is in response to the respondent's request to the petitioner-bank for waiving off the respondent's penalty for early settlement charges from the total amount of loan payable in respect of the leased vehicle.

5. The learned Judge Banking Court while passing the impugned order has blatantly misconstrued the petitioner's reply dated 15.11.2008, to the respondent's request dated 25.07.2008, whereby the petitioner-bank had only declined to waive of early settlement charges on auto finance account against full and final settlement, after obtaining approval of the petitioner-bank's competent, authority, and proceeded to deduct the monthly installments upto the month of November 2008 from the respondent's Account No. 1019-05173869-03. There was no mention of the amount paid by the respondent or the amount outstanding against him in the said letter.

6. So far as the respondent's contention before the learned Judge Banking Court that he had deposited an amount of Rs.4,57,311/- in lieu of the finance facility and the petitioner bank is withholding the vehicle against a small amount of Rs.23,670/82 which is outstanding against the respondent which ultimately persuaded the learned Judge Banking Court while passing the impugned order dated 18.02.2010 is not borne out from the record of the file nor the said plea was taken by the respondent in his suit for rendition of accounts filed before the learned Banking Judge, therefore, the petitioner-bank pursuant to clause 12 of the lease agreement rightly repossessed the vehicle and the petitioner's action has illegally been set at naught by the learned Judge Banking Court through the impugned order. This being so, this constitutional petition is allowed and the impugned order of the learned Judge Banking Court dated 18.02.2010 is set-aside. Moreover, the learned Judge Banking Court-IV, Lahore is directed to conclude the proceedings-expeditiously and preferably within a period of one month from the date of receipt of a certified copy of this order.

(R.A.) Petition allowed

PLJ 2012 Lahore 264

Present: Ch. Shahid Saeed, J.

MUHAMMAD TUFAIL (deceased) through Legal Representatives--Petitioner

versus

NAZIR HUSSAIN (deceased) through Legal Representatives and others--Respondents

C.R. No. 116 of 1995, decided on 30.11.2011.

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

----O. XLI, R. 27--Additional evidence--Concurrent findings--Documents which petitioner intended to place on record through additional evidence had no nexus--If application for additional evidence was accepted even then the documents would not helpful--When appeal was pending before First Appellate Court, the documents were in knowledge of petitioner but application was not filed--Question of--Either the documents were being produced at belated stage and had any relevancy with controversy or not--Not availed remedy before First Appellate Court--Validity--Appellate Court was competent to record additional evidence but if that Court acts illegally or with material irregularity and on that account factual error was committed then in revision additional evidence can be admitted in a fit and proper for clarification if that was essential for just decision of the case--If petitioner had not filed any application for additional evidence before appellate Court--If one or other party had failed to produce the document, the Court had ample power to do the needful so as to advance justice rather than injustice--No bar to file application for additional evidence at any stage even before High Court but documents which the petitioner intended to place on record in that case no relevancy with matter in issue--Findings of Courts below on question of facts and law based on proper appreciation of oral as well as documentary evidence led in suit were not susceptible to review to be upset or substituted in revisional jurisdiction--Petition was dismissed. [Pp. 267 & 269] A & B

Syed Kaleem Ahmed Khurshid, Advocate for Petitioner.

Mr. Zahid Saleem, Advocate for Respondents.

Date of hearing: 30.11.2011.

Judgment

Through the instant civil revision petitioner has challenged the impugned judgments & decrees passed by the Courts below by way of which suit for declaration filed by the petitioner was dismissed by the learned trial Court vide judgment & decree dated 19.11.1987. Petitioner preferred an appeal which also met with the same fate by the learned appellate Court.

1. Brief facts of the case are that on 05.11.1976 the petitioner filed a suit against the respondents. In the plaint it was stated that the land measuring 158 kanals 5 marlas fully described in the plaint, was transferred in favour of one Murad at Khata No. 325 of R.L.II village Mangoo Taroo Tehsil Nankana Sahib, District Sheikhupura. The said Murad sold away the land to the petitioner vide registered sale-deed dated 11.03.1975 and delivered the possession and he is continuing in possession as an owner. Rehmat Khan, predecessor-in-interest of Respondents No. 1 to 5 in collusion with the Staff of Respondent No. 6 got entered Khasra Nos. 623, 624 and 625 which are included in the said 158 kanals 5 marlas at Khata 123/248 of the said RL-II vide orders dated 28.07.1976 of Chief Settlement Commissioner and 04.09.1976 and 04.09.1976 of the D.S.C.Nankana Sahib. These orders have been passed without notice to the petitioner. With these averments he sought declaration that he is owner in possession of the said suit and said orders are illegal and void. The Respondents No. 1 to 5 in their written statement took the plea that the land was never allotted to Murad son of Mandoo and as such he had no authority to transfer the land to the petitioner. Issues were framed. Evidence of parties was recorded. Ultimately the learned trial Court dismissed the suit of the petitioner. Appeal of the petitioner was also dismissed. Having dissatisfied by both the judgments petitioner has preferred the instant civil revision.

2. It is pertinent to mention here that initially this civil revision was taken up by this Court and the same was dismissed vide judgment dated 21.07.2003. Petitioner filed a CPLA No. 568-L of 2009 before the Hon'ble Supreme Court of Pakistan. Ultimately the same was allowed. The impugned judgment dated 21.07.2003 passed by this Court was set aside and the case was sent back to this Court with a direction to decide the application of the petitioner for additional evidence on merits and thereafter to decide the revision petition afresh.

3. Learned counsel for the petitioner contends that the impugned judgments & decrees passed by the Courts below are against law and facts and also not sustainable in the eyes of law; that while deciding the civil revision this Court has over sighted the application of the petitioner U/O. XLI, Rule 27 CPC for additional evidence; Further argued that the document which the petitioner intends to place on record through the additional evidence are much relevant with the present controversy; Further maintains that the evidence on record has been mis-read inasmuch as the copy of Rozenamcha has not been properly taken into consideration. Lastly learned counsel for the petitioner has relied upon PLD 1964 Supreme Court 302, PLJ 2009 Lahore 79, 1992 Law Notes (S.C.) 718, K.L.R.1997 Civil Cases 89 (Lahore) and 2008 SCJ 181.

4. On the other hand, learned counsel for the respondents contends that neither the land in dispute was allotted to Murad son of Mahndoo nor the petitioner is bona fide purchaser of the said land. Further states that in the learned trial Court full opportunity was given to the petitioner to prove his stand but he has failed to do so. That the documents which the petitioner intends to place on record through the additional evidence have no nexus with the present controversy and if the application of the petitioner for additional evidence is accepted even then the said documents would not be helpful for the petitioner. Further argued that when the appeal of the petitioner was pending before the learned First Appellate Court the said documents were in the knowledge of the petitioner but at that time petitioner did not file any application. That there are concurrent findings of both the Courts below against the petitioner and has also supported the impugned judgments & decrees of the Courts below.

5. Arguments heard. Record perused.

6. Admittedly, two applications of the petitioner for additional evidence are available on record, which have been over-sighted by this Court at the time of deciding the instant civil revision in the earlier round of litigation. Through both the C.Ms. No. 1-C/1995 and C.M.No. 1-C/1996 petitioner intended to produce copy of the order dated 12.05.1992 passed by Mr. Shaukat Ali Rana, Additional Settlement Commissioner (Revenue), Lahore and the judgment dated 22.10.1990 passed by this Court in Writ Petition No. 386-R of 1982. The question which is to be decided by this Court either the abovesaid documents are being produced at belated stage and the same have any relevancy with the present controversy or not. It is an admitted fact that appeal of the petitioner was decided by the learned First Appellate Court on 20.09.1994, whereas the judgment in Writ Petition No. 449-R of 1992 was passed by this Court on 22.10.1990 and the verdict of the Additional Commissioner (Revenue) Lahore is of 12.05.1992. It means that both the judgment and order were passed during the pendency of the civil appeal of the petitioner and he was well-aware about the said documents. If the same have any relevancy with the present dispute then why the petitioner did not file any application for additional evidence before the learned First Appellate Court. Petitioner has not given any plausible explanation that why he could not produce the said documents at the relevant time. If for the sake of arguments the abovesaid documents are taken into consideration, even then the same would not be helpful for the petitioner because the claim of the petitioner was regarding Khata No. 325 of R.L-II village Mangoo Taroo Tehsil Nankana Sahib, District Sheikhupura, whereas the documents in dispute relate to some other Khata/Property No. 5143, therefore, both these documents have no relevancy with the case in hand. Furthermore Rule 27 of Order XLI CPC is self explanatory. It is in negative form. Petitioner has not availed the said remedy before the First Appellate Court. It is stark reality that under Order XLI, Rule 27, CPC, Appellate Court is competent to record additional evidence but if that Court acts illegally or with material irregularity and on that account factual error is committed then in revision additional evidence can be admitted in a fit and proper case for clarification if that is essential for just decision of the case. But in the case in hand, petitioner has not filed any application for additional evidence before the learned appellate Court. No doubt, if one or the other party had failed to produce of the disputed document, the Court had ample power to do the needful so as to advance justice rather than injustice. There is no bar for the petitioner to file application for additional evidence at any stage even before this Court but the documents which the petitioner intended to place on record in this case have no relevancy with the matter in issue. The said applications have been filed just to linger on the matter. There is no substance in the C.Ms filed by the petitioner and the same are dismissed.

7. Record further reflects that petitioner has produced eight witnesses in support of his claim. On the other hand Abdul Hameed official witness appeared as DW.1 who brought the Register R.L.II and deposed that R.L.II is correct upto Khata No. 323 and Khata No. 325/7 is in the name of Habib Ahmad son of Bashir and according to the Register RL.II Khata No. 325 was not allotted in the name of any Murad Khan son of Mahndu rather Khata No. 325/7 is in the name of Habib Ahmad. Moreover according to Ex.P. 15 there is no entry of number of the claim Form. In Column No. 12 the entry is that units have been received from Qila Dharam Singh vide order dated 17.04.1964 of S.D.C. A copy of the said order has not been produced. According to copy of Roznamcha Waqati Ex.P.4 units against the Claim Form No. 5343 were received from Qila Dharam Singh at Mangoo Taroo. Learned counsel for the petitioner has failed to reconcile the documents Ex.5, P.4 and P.2 which pertain to different Claim Forms and certainly neither Ex.P.2 nor Ex.P.4 is relatable to the Claim Form mentioned in Ex.P.5. Needless to state that no effort was made to summon the record from the Central Claim Office in this behalf. In this way Ex.D.1 copy of the order passed by this Court in Civil Revision No. 800/88 in which it has been observed that the allotment in favour of Murad was cancelled on 14.02.1974 and the petitioner purchased the said land from the so called allottee on 11.03.1975, obviously after the cancellation of the allotment having no protection of bona fide purchaser. It is also apparent on the record that sale-deed Ex.P.1 was attested on 11.03.1975 i.e. after about one year and one month after the cancellation of the allotment from the name of Murad Khan, therefore, it can safely be presumed that at the time of attestation of the sale-deed Ex.P.1 said Murad Khan was not holding any allotment. Ex.D.2 also reveals that no land was allotted to Murad Khan son of Mahndu Khan and the same was not entered in the revenue record. The citations referred to by learned counsel for the petitioner are distinguishable from the facts and circumstances of the case in hand and the same are not helpful for the petitioner. It is also pertinent to note here that in the registered sale-deed as well as some other documents the caste of said Murad Khan was mentioned as Jat, whereas in death Certificate and general power of attorney dated 18.05.1972 the caste of Murad Khan has been mentioned as Meo Rajput. Apparently it seems that petitioner having in league with his accomplices had firstly got prepared the general power of attorney and then got entered the death of said Murad Khan in the register kept for the purposes by one Jahangir son of Muhammad Din who was also the marginal witness of Ex.P. 1, so the factum of forgery and fraud on the part of petitioner cannot be ruled out.

8. Further more there are concurrent findings of facts in the matter and the Courts below while passing the impugned judgments and decrees took a count of every bit of evidence placed before them and were not shown to have been over looked any part of the record from their judicious consideration. Findings of the lower Courts on question of facts and law based on proper appreciation of oral as well as documentary evidence led in the suit were not susceptible to review to be upset or substituted in revisional jurisdiction. The findings of the Courts below based on material on record would not be amenable to interfere with in revisional jurisdiction.

9. Resultantly, this revision petition having no force is dismissed with no order as to costs.

(R.A.) Petition dismissed

PLJ 2012 Lahore 274 [Rawalpindi Bench Rawalpindi]

Present: Sagheer Ahmed Qadri, J.

MUHAMMAD AKHTAR KIANI--Petitioner

versus

ADDITIONAL DISTICT JUDGE, RAWALPINDI and others--Respondents

W.P. No. 2369 of 2011, decided on 12.12.2011.

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

----O. XVI, R. 1--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Summoning and attendance of witnesses--Mandatory for parties to the suit to submit list of witnesses within seven days of framing of issues--When mandatory provisions of CPC were not complied with by plaintiff--Application for summoning postman as witness was moved by plaintiff--Objections about maintainability of application as no sufficient cause was shown for non-filing of list of witnesses and right of preemption otherwise was practical right--Application was dismissed by Courts below--Challenge to--At that time plaintiff was not able to submit list of witnesses alongwith certificate of readiness--No doubt the Court can exercise discretion at any stage for allowing party to suit for summoning of a witness whose name could not be included in list of witnesses or even list of witnesses at all could not be submitted to get exercised such discretion in favor of party must show a good and sufficient cause for that purpose--Plaintiff wanted to fill-up lacuna left at time of filing of plaint and subsequent when he was directed to submit list of witnesses he did not comply with mandatory provisions of Order XVI, Rules 1 (1), CPC--Courts below rightly declined to exercise vested in them in favor of plaintiff as no good cause was shown which was mandatory requirement for exercising of jurisdiction u/O. XVI, R. 1 (2), CPC--Petition was dismissed. [Pp. 278 & 279] A & B

1999 SCMR 799, 1989 MLD 4119, 1992 ALD 425(1), 1980 CLC 1815, NLR 1991 Civil 354, 1989 CLC 42 & 2008 YLR 1871, ref.

Mr. Imran Shafique, Advocate for Petitioner.

Raja Muhammad Aslam, Advocate for Respondents Nos. 3 & 4.

Date of hearing: 12.12.2011.

Order

Petitioner-plaintiff Muhammad Akhtar Kiani S/o Muhammad Yousaf filed suit for possession through pre-emption in respect of land measuring 139 Kanals 4 Marlas of land detail of which is given in the head note of the plaint alleging that the factum of sale came into his knowledge on 20.7.2010 at about 9.40 a.m. and he immediately pronounced his intention to pre-empt the sale and subsequently on 27.7.2010 sent notice of Talb-i-Ishhad attested by two witnesses through registered post acknowledgment due to Respondents No. 3 & 4/defendants; that the petitioner-plaintiff claimed his superior right of pre-emption being Shafi Shareek and Shafi Khaleet. This suit was resisted by the Respondents-Defendants No. 3 & 4 while submitting their written statement whereby it was specifically denied performance of Talb-i-Mawathibat and Talb-i-Ishhad. Out of the pleadings of the parties learned trial Court framed issued on 16.10.2010 and passed the following orders:

"No other issue has been suggested. List of witnesses and certificate of readiness be submitted within seven days from framing of issues. Come up for evidence of plaintiff for 25.1.2011."

1. The learned trial Court recorded statements of PWs on behalf of the petitioner-plaintiff till 24.5.2011 when he moved application with a prayer for summoning of the Postman as witness on the grounds that as notice of Talb-i-Ishhad was issued to Respondents-Defendants No. 3 & 4 through registered post which they refused to accept and the petitioner-plaintiff could not submit the list of witnesses in time and as the Postman was an essential witness, therefore, while allowing the application he be summoned. This application was resisted by respondents-defendants raising two preliminary objections about maintainability of the application as no sufficient cause was shown for non-filing of the list of witnesses within specified period and right of pre-emption otherwise is a piratical right hence if application is allowed it will tentamounts to fill in the lacunas left in the evidence. On factual side it was further agitated that as performance of Talb-i-Ishhad has not been proved on record on the basis of pleadings hence no justification is available for allowing this application.

2. Learned trial Court after hearing both sides vide order dated 7.6.2011 dismissed the application of the petitioner-plaintiff. Feeling aggrieved petitioner-plaintiff preferred a revision which was heard and decided by learned Additional District Judge who vide judgment dated 6.9.2011 while affirming findings of the trial Court dismissed the civil revision. Hence, this writ petition before this Court.

3. Learned counsel for the petitioner-plaintiff contends that the order/judgment passed by the trial Court affirmed by the appellate Court are against law and facts of the case; that a sufficient cause was brought on record for non-filing of the list of witnesses, therefore, learned trial Court must have to allow the application of the petitioner as intention of law is to dispose of the lis between the parties on merits rather on technicalities; that admittedly the notice was issued hence Postman was necessary and essential witness to discharge the onus of issue placed on the petitioner-plaintiff thus both the Courts below committed illegality while non-exercising jurisdiction vested in them. While relying on M/s. Varan Tours Vs. Province of the Punjab and others (2011 YLR 5), Naeem Akhtar Vs. Additional District Judge and others (2005 MLD 1713), The Australasia Bank Limited Vs. M/s. Mangora Textile Industries, Swat and others (1981 SCMR 150) and Muhammad Bashir and others Vs. Abbas Ali Shah (2007 SCMR 1105) prayed that this writ petition be allowed and impugned order/judgment both the Courts below be set aside.

4. On the other hand learned counsel for Respondents No. 3 & 4/defendants has vehemently opposed this petition on the grounds that it is mandatory under Order XVI, Rule 1 CPC for the parties to the suit to submit list of witnesses within seven days of framing of issues. Admittedly learned trial Court specifically directed the petitioner-plaintiff to submit list of witnesses which he did not and subsequently he got recorded statements of the witnesses and at belated stage without showing any justification or sufficient cause moved application moved application for summoning the Postman on the same reasons. Learned counsel contended that in the circumstances when mandatory provisions of the Civil Procedure Code were not complied with by the petitioner-plaintiff, the prayer made by the petitioner-plaintiff was rightly declined by both the Courts below. Reliance in this respect has been placed on Mst.Musarrat Bibi and 2 others Vs. Tariq Mahmood Tariq (1999 SCMR 799), Saeed Ahmad Vs. Muhammad Anwar and others (1989 MLD 4119), Mst.Surriya Begum and 3 others Vs. Abdul Rub and 4 others (1992 ALD 425(1) Karachi), Abdul Jalil and another Vs. Mansoor Ahmad (1980 CLC 1815) Khadim Hussain Vs. Additional District Judge, R.Y.Khan, etc. (NLR 1991 Civil 354) Mst. Hanifan Khatoon Vs. Second Additional District Judge, Khanpur and others (1989 CLC 42) and Muhammad Khalid Vs. Mst.Mehmooda Khanum and 9 others (2008 YLR 1871). Prayed that this writ petition be dismissed.

5. I have heard the learned counsel for the parties and perused the record.

6. In order to appreciate the arguments advanced by both sides it is beneficial here to reproduce the provision of Order XVI, Rules 1, 2 C.P.C--

"SUMMONING AND ATTENDANCE OF WITNESES:--

1. Summons to attend to give evidence or produce document--

(1) No later than seven days after the settlement of issues, the parties shall present in Court a certificate of readiness to produce evidence, alongwith a list of witnesses whom they propose to call either to give evidence or to produce documents.

(2) A party shall not be permitted to call witnesses other than those contained in the said list, except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list; and if the Court grants such permission, it shall record reasons for so doing.

(3) On application the Court or such officer as it appoints in this behalf, the parties may obtain summons for persons whose attendance is required in Court:

Provided that no summons shall be issued for service on a person under Rule 8 unless an application in that behalf is made not later than fourteen days prior to the date fixed for the hearing of the suit and the necessary expenses for the summoning of such person are deposited."

1. As earlier observed that learned trial Court on 16.10.2010 while casting issues specifically directed the parties to submit certificate of readiness along with list of witnesses within seven days. The petitioner-plaintiff did not comply with mandatory provision of Order XVI, Rule 1(1) CPC and kept on waiting till the day when the statement of witnesses on his behalf had already been recorded and cross-examined and yet he opted to move application on 24.5.2011 with a prayer for summoning of the Postman as witness. Para-2 to 4 of the application are relevant which are hereby reproduced:

2. If the above mentioned application is seen no "good cause" is shown on the basis of which it can be proved that at the relevant time the petitioner-plaintiff was not able to submit list of witnesses along with certificate of readiness. No doubt the Court can exercise discretion at any stage for allowing a party to the suit for summoning of a witness whose name could not be included in the list of witnesses or even the list of witnesses at all could not be submitted to get exercised this discretion in favour of a party must show a good and sufficient cause for that purpose. The judgment cited by learned counsel for Respondents No. 3 & 4/defendant titled as Mst. Musarrat Bibi and 2 others Vs. Tariq Mahmood Tariq (1999 SCMR 799) their Lordships in the Supreme Court observed as under:--

O.XVI. R. 1--List of witnesses. Purpose. Filing of list of witnesses within statutory period of seven days was sine qua non for the progress of suit in Court--Provisions of O. XVI, R. 1, C.P.C. did not fall within purview ofsheer technicalities' but were strictly in accordance with principles of natural justice that a party should have knowledge of witnesses of its rival so as to enable same to test veracity of those witnesses and prepare cross-examination advance--Defendants who had failed to file list of witnesses within statutory period of seven days after settlement of issues had contended that two out of three defendants being females and illiterate, discretion should have been exercised in their favour and that controversies were preferably to be resolved on contest and that course of justice should not be thwarted by sheer technicalities, was repelled being untenable, in circumstances."

In a suit for pre-emption proving of Talb-i-Mawathibat first and subsequent to that Talb-i-Ishhad is sine qua non to the exercise of right of pre-emption. In recent judgments of Hon'ble Supreme Court of Pakistan even in such like cases in plaint/pleadings the performance of Talbs could not be properly recorded/asserted declined even to allow permission to amend the pleadings.

1. Herein in this case petitioner-plaintiff at belated stage wanted to fill up the lacuna left at the time of filing of the plaint and subsequent when he was directed to submit list of witnesses he did not comply with the mandatory provisions of Order XVI, Rules 1(1) CPC, therefore, both the learned Courts below rightly declined to exercise jurisdiction vested in them in favour of the petitioner-plaintiff as no good cause was shown which is mandatory requirement for exercising of the jurisdiction under Order XVI, Rule 1(2) CPC. Resultantly, this writ petition, being devoid of any merits, is hereby dismissed.

(R.A.) Petition dismissed.

PLJ 2012 Lahore 279 (FB) [Rawalpindi Bench Rawalpindi]

Present: Sagheer Ahmad Qadri, Kh. Imtiaz Ahmad and Ch. Muhammad Younis, JJ.

Malik MUHAMMAD SAMEEN KHAN--Appellant

versus

RETURNING OFFICER etc.--Respondents

Election Appeal No. 1 of 2012, heard on 10.1.2012.

Representation of the People Act, 1976 (LXXXV of 1976)--

----S. 14(3)--Election petition--Rejection of nomination papers--Defect of substantial nature--Nomination papers on basis of misleading information about loan--Defaulted in payment of income tax and shown a loan worth less amount obtained from Bank whereas actual amount was Rs. 3,95,000/- that mentioning of approximate figure of Rs. 3,50,000/- did not amount to concealment of material facts--No ground for rejection of nomination papers--Validity--Only ground on basis of which Returning Officer rejected nomination papers was that information was not correctly recorded in nomination papers about exact amount of loan--There was nominal difference of Rs. 45,000/- between information provided and information received and as mentioned appellant had not committed any default, therefore, it can easily be said and it was agitated for appellant that he had provided approximate information about loan--If nature of defect and objections were seen, the appellant did not conceal factum of securing of loan from ZTBL and amount of Rs. 3,50,000/- was shown but actually it was Rs. 3,95,000/- hence difference of Rs. 5000/- could not be treated as substantial defect or concealment by appellant--Penal provisions only could be imposed until acts or omissions were committed by a person with mens rea, which element was missing--Appeal was allowed. [P. 283] A, B & C

2003 MLD 222 & 2003 PLR 1690, ref.

Syed Intekhab Hussain Shah, Advocate for Appellant.

Sheikh Zameer Hussain, Advocate for Respondent No. 2.

Mr. Sadaqat Ali Khan, Additional A.G. for Respondents.

Date of hearing: 10.1.2012.

Judgment

Sagheer Ahmad Qadri, J.--Malik Muhammad Sameen Khan son of Malik Muhammad Muzaffar Khan resident of Mauza Gharebwal Tehsil Pindigheb District Attock has preferred this appeal against the order dated 2.1.2012 passed by the Returning Officer for PP-18, Attock-IV Pindi Gheb whereby Bye-Elections are notified to be held according to the schedule issued by the Election Commission of Pakistan. The appellant submitted his nomination papers and Respondent No. 2 Bashir Ahmad son of Jahan Khan resident of Makial Tehsil Pindi Gheb District Attock, another candidate, who has also filed his nomination papers, raised objections while submitting an application wherein it was brought into the notice of the Returning Officer that appellant was owner in possession of thousands of kanals of agricultural and urban land situated in Districts Islamabad and Attock etc. and was earning lacs of rupees but he has not disclosed this fact and he is a defaulter in payment of income tax and other Government dues; that he has shown a loan worth Rs. 3,50,000/- obtained from ZTBL, Pindi Gheb whereas the actual loan was worth Rs. 3,95,000/- which fact intentionally with mala fide has been concealed thus his nomination papers on that score are liable to be rejected.

1. On the day fixed for scrutiny of the nomination papers, the Returning Officer as revealed from the order dated 2.1.2012 annexed with this appeal while rejecting the nomination papers of the appellant observed:

"Rejected on the basis of misleading information regarding loan from ADBP, Pindigheb. The undersigned confirmed from the concerned Bank and the objection was correct as there was difference b/w the loan shown in the N/Form & actual loan."

Feeling aggrieved the appellant has preferred this appeal.

1. Notice was issued to the respondents. Respondent No. 2 Bashir Ahmed son of Jahan Khan, rival candidate, who raised the objection on the nomination papers of the appellant, has put in appearance through his learned counsel.

2. Learned counsel for the appellant argued that the impugned order whereby the nomination papers filed by the appellant were rejected is illegal, against the law and facts of the case; that Respondent No. 1/Returning Officer passed the impugned order in violation of the settled principles on the subject; that while rejecting the nomination papers the Returning Officer ignored the fact that the appellant did not conceal any information and provided the information about the loan secured from the ZTBL and he had shown the figure of Rs. 3,50,000/- whereas actual amount was Rs. 3,95,000/-; that mentioning of approximate figure of Rs. 3,50,000/- does not amount to concealment of material facts; that the Returning Officer did not afford an opportunity to the appellant to further clarify any difference and only on the basis of information received by him rejected the nomination papers; that as no material facts were concealed nor appellant is shown as defaulter in payment of any loan, thus, there are no grounds available for rejection of the nomination papers filed by the appellant. Prayed that while allowing this appeal impugned order be set aside and nomination papers filed by the appellant be declared to be accepted.

3. On the other hand, learned counsel for Respondent No. 2 (Sheikh Zameer Hussain, Advocate) out rightly raised the objection that all the necessary parties were not arrayed as respondents as other candidates had also filed their nomination papers which were accepted by the Returning Officer, hence, in the absence of the necessary parties this appeal is not maintainable. On merits, while opposing this appeal learned counsel referred Section 12(2)(f) of the Representation of the People Act, 1976 whereby a candidate was required to submit on solemn affirmation statement specifying his assets and liabilities as well as those of his spouse and dependents on the prescribed form along with the nomination papers. Contended that as appellant has shown the loan secured from ZTBL amounting to Rs. 3,50,000/- whereas the actual amount was Rs. 3,95.000/- thus he concealed the material facts rather the statement furnished by him was incorrect, hence, under Section 14(3)(c) of the Act, ibid, his nomination papers were rightly rejected by the Returning Officer. Learned counsel during the arguments while referring Section 14(5A) of the Act, ibid submitted that an Election Tribunal on the basis of any information of its own or brought by anybody, if comes to the conclusion that some material particulars were concealed and proper information was not laid before the Returning Officer by a candidate then the candidature of a candidate can be declared unlawful. While submitting copies of a loan provided by the Consumer Protection Department of State Bank of Pakistan and Muslim Commercial Bank, Gharibwall Branch it was submitted that the appellant has also concealed these loans obtained by him as no such information was provided by him in the nomination papers. It was prayed that in addition to the information concealed on the basis of which the Returning Officer has rejected the nomination papers filed by the appellant the documents provided further support the version of Respondent No. 2 that appellant willfully did not provide correct information to the Returning Officer, hence, the impugned order was lawful and does not call for interference by this Tribunal. Prayed that appeal be dismissed.

4. Learned Additional Advocate General, however, while referring the Proviso annexed to Section 14 of the Representation of the People Act, 1976 argued that as the difference between the loan amount mentioned in the nomination papers i.e. Rs. 3,50,000/- and the actual amount as brought on record through objection i.e. Rs. 3,95,000/- is not a substantial difference, hence, the rejection of the nomination papers by the Returning Officer is not sustainable in the eyes of law, thus, supported the arguments advanced by learned counsel for the appellant.

5. We have heard the arguments addressed by learned counsel for the parties and have gone through the available record.

6. Admittedly, there are some other candidates who filed nomination papers along with the appellant and Respondent No. 2 and their nomination papers have been accepted by Respondent No. 1/Returning Officer but they have not been arrayed as party to this appeal. Technically they are necessary parties, however, those candidates as admitted by both sides before the Court never raised any objection on the nomination papers filed by any of the candidates including the present appellant Malik Muhammad Sameen Khan and Respondent No. 2 Bashir Ahmad. Respondent No. 2 raised the objection as already mentioned against the nomination papers filed by the appellant. As the election process is to continue according to the schedule and tomorrow i.e. 11.1.2012 is the last date for the disposal of the appeal and nobody except the appellant has preferred appeal, therefore, we do not feel it appropriate to enter into any such like controversies purely based on technicalities, therefore, we propose to dispose of this appeal on merits after hearing the present contesting parties before this Tribunal.

7. As far as the objection raised by Respondent No. 2 which weighed with the Respondent No. 1/Returning Officer who rejected the nomination papers filed by the appellant only remained confined about his statement of assets and liabilities whereby in column of the bank loans etc. he mentioned Rs. 3,50,000/- as a loan obtained from ZTBL, Pindi Gheb. Apart from this amount he has also shown Rs. 4,00,000/- a loan secured from Silk Bank, F-8, Islamabad and Rs. 3,00,000/- from MCB, Pindi Gheb. The Returning Officer, as objection was raised, according to the impugned order dated 2.1.2012 confirmed and when it was informed to him that loan amount was Rs. 3,95,000/- instead of Rs. 3,50,000/-, he on the basis of that information found the information provided by the appellant as incorrect, hence rejected the nomination papers filed by the appellant. It is an admitted fact that the appellant is not alleged by anyone that he ever defaulted in payment of any loan including the loan secured from ZTBL, Pindi Gheb. The only ground on the basis of which the Returning Officer rejected the nomination papers was that information was not correctly recorded in the nomination papers about the exact amount of the loan obtained. There is a nominal difference of Rs. 45,000/- between the information provided and information received and as already mentioned appellant has not committed any default, therefore, in these circumstances it can easily be said and as it was agitated by learned counsel for the appellant that he provided approximate information about the loan. It has been provided under Proviso (ii) annexed to Section 14(3) of the Representation of the People Act, 1976:--

"the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate or [his proposer or seconder] so as to bring them in conformity with the corresponding entries in the electoral roll; and"

If the above mentioned proviso is kept in mind, the legislature itself has provided that while scrutinizing the nomination papers filed by a candidate until & unless a defect of substantial nature occurs in the nomination papers, ordinarily these may not be rejected. Herein this case, if the nature of the defect and the objections are seen, the appellant did not conceal the factum of securing of loan from ZTBL and the amount of Rs. 3,50,000/- was shown but actually in the record it was Rs. 3,95,000/-, hence, difference of Rs. 45,000/- in these circumstances cannot be treated as a substantial defect or concealment by the appellant. Rejection of nomination papers is a penalty for the alleged commission of offence or violation of certain provisions of law. It has now been settled that penal provisions only can be imposed until certain acts or omissions are committed by a person with mens rea, which element in the present case is missing. Reference in this respect can be seen in "Umar Ayub Khan versus Returning Officer NA-19 N.W.F.P. District Haripur/Additional District and Sessions Judge, Haripur and another" (2003 MLD 222) and "Haji Khuda Bux Nizamani Versus Election Tribunal and others" (2003 PLR 1690). Resultantly, while allowing this appeal we set aside the impugned order dated 2.1.2012 passed by the Returning Officer whereby nomination papers filed by the appellant were rejected. The nomination papers filed by the appellant are hereby accepted, however, with no order as to costs.

(R.A.) Appeal allowed

PLJ 2012 Lahore 284 [Rawalpindi Bench Rawalpindi]

Present: Ch. Muhammad Younis, J.

MUHAMMAD SADIQ--Petitioner

versus

AYAZ MEHMOOD--Respondent

C.R. No. 714-D of 2002, heard on 9.1.2012.

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

----S. 13(3)--Suit for possession through pre-emption--Expressed his intention to exercise right of pre-emption being co-sharer--Suit was dismissed on ground of contradictions in statements of prosecution witnesses--Appeal was accepted with direction to deposit sale after deducting zar-e-soim--Notice of talab-e-ishhad through registered A.D. was not denied--Postal receipt produced was never objected by petitioner before trial Court--No plea was taken in revision petition--If any evidence was produced, which was inconsistent with pleadings of a party could not be read in evidence--Validity--Non sending, non serving or non receiving of notice of talb-e-ishhad--If a specific portion of statement of the witnesses was not disputed and cross-examined the same would be presumed to have been admitted--Not even a single word had been uttered in his examination-in-chief to deny sending of notice or about its having not been received by him--Minor contradictions in statements of witnesses were not fatal--Even the contradictions or discrepancies pointed out by trial Court did not relate to material issues and could not change fate of case--Contradictions were of trivial nature and suit of respondent could not be dismissed on basis thereof as it involved his valuable rights--There is no cavil to proposition that if petitioner had categorically denied on oath receipt of notice or sending some incorrect address then respondent was under an obligation to prove same--Petitioner had not refused to receive the notice and no such endorsement was made by any postman--No statement on oath of petitioner dis-owing or denying the receipt of notice as was in cases and there was no categorical denial in his written statement about receipt of notice--High Court in exercise of its revisional jurisdiction because petitioner had not been able to point out any mis-reading or non-reading of evidence, jurisdictional error, illegality, irregularity or perversity--Revision was dismissed. [Pp. 288 & 289] A, B, C, D & F

PLD 1994 SC 162, 2003 SCMR 686, 2004 SCMR 1719, 2006 SCMR 1410, 2008 SCMR 1366, 2008 MLD 307 & 2010 CLC 27, ref.

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

----S. 13(3)--Qanun-e-Shahadat Order, (10 of 1984), Art. 129--Requirements of talabs--Contention stood un-rebutted--Validity--In absence of any categorical denial the notice of talab-e-ishhad sent at correct address of petitioner would be deemed to have been reached its destination--Since respondent had fulfilled requirements of talabs as required u/S. 13(3) of Act, so appellate Court rightly accepted the appeal and decreed the suit. [P. 289] E

Mr. Muhammad Siddiq Awan, Advocate for Petitioner.

Sardar Bilal Firdous, Advocate for Respondent.

Date of hearing: 9.1.2012.

Judgment

Briefly stated the facts relevant for the disposal of the instant revision petition are that the respondent filed a suit for possession through pre-emption in respect of the land measuring 07-Kanals and 04-Marlas situated in Mauza Malal Tehsil Fateh Jang District Attock, purchased by the petitioner from Mst. Munir Sultan vide Mutation No. 1065 dated 10.02.1999. As per respondent he came to know of the sale on 23.03.1999 at about 10:00 a.m. through Fateh Khan when he was sitting in his "Baithak" alongwith Sajjad Akbar and Sardar Zulfiqar. So, he immediately made Talb-e-Muwathibat and expressed his intention to exercise his right of pre-emption being a co-sharer in the suit land as well as on the basis of contiguity etc. The respondent also allegedly went at the land in question in presence of the witnesses and expressed his intention to exercise his right of pre-emption. They also approached the petitioner through Jirga. On the very next day i.e. 24.03.1999, a notice of Talb-e-Ishhad attested by the witnesses was sent to the petitioner through registered post vide Receipt No. 193 alongwith acknowledgement due so the requirements of Talb-e-Ishhad were fulfilled by the respondent. The notice was allegedly received by the petitioner. Thereafter the respondent filed the suit on 06.05.1999.

1. The petitioner vehemently resisted the suit of the respondent and in his written statement took the plea that the respondent was aware of the transaction of sale and on his refusal to purchase the land the same was purchased by the petitioner. As per preliminary objections the respondent was estopped by his word and conduct from brining the suit; he had no cause of action and had not fulfilled the requirements of Talabs.

2. The learned trial Court framed the following issues out of the pleadings of the parties.

ISSUES.

1. Whether the plaintiff is estopped by his word and conduct to file the suit? OPD

2. Whether Rs. 56000/- was fixed and paid bona fidely as sale price? OPD

3. If Issue No. 2 is not proved what was the correct sale price of property at the time of sale? OP Parties

4. Whether plaintiff has no cause of action to file this suit? OPD

5. Whether the defendant has incurred Rs. 66200/- as incidental charge and is entitled for the same? OPD

6. Whether the plaintiff has completed Talabs according to provisions of law? OPP

7. Whether the plaintiff has superior right of pre-emption qua the disputed property? OPP

8. Relief.

9. Both the parties produced evidence in support of their respective contentions. The learned trial Court after hearing the arguments dismissed the suit of the respondent on the grounds that there were some contradictions in the statements of the PWs. The respondent filed an appeal against the judgment and decree dated 20.03.2002 and the learned Addl: District Judge accepted the appeal, set aside the impugned judgment and decree dated 20.03.2002 and decreed the suit of the respondent with the direction to deposit sale consideration of Rs. 56000/- after deducting Zar-e-Soim within 30 days.

10. Feeling aggrieved of the impugned judgment and decree passed by the learned Addl: District Judge on 18.06.2002 the instant revision petition has been filed on the grounds that the impugned judgment and decree are against law and facts; that the learned First Appellate Court has not applied its judicial mind and the decree was passed without giving any cogent reasons; that the suit was decreed on the ground that the notice of Talb-e-Ishhad sent to the petitioner with acknowledgement due had been received by him. The petitioner prayed for setting aside the impugned judgment and decree being not sustainable in the eye of law and also prayed for restoring the judgment and decree of the learned trial Court whereby the suit of the respondent was dismissed.

11. The learned counsel for the petitioner argued that in order to prove the service of notice of Talb-e-lshhad upon the petitioner it was necessary for the respondent to produce the postman as a witness. Non-production of the postman is fatal and the impugned judgment and decree based on wrong presumption are not sustainable in the eye of law and are liable to be set-aside. The learned counsel for the petitioner has referred to 2000 CLC 409 [Lahore] {Fateh Muhammad and 2 others versus Gulsher}, 2007 SCMR 1105 {Muhammad Bashir and others versus Abbas Ali Shah}, 2009 MLD 549 [Lahore] {Muhammad Ajmal Khan versus Muhammad Younis Khan} and 2011 SCMR 762 {Bashir Ahmed versus Ghulam Rasool} in support of his arguments. The learned counsel argued that mere sending of notice of Talb-e-Ishhad was not enough and it was the duty of the pre-emptor to prove the service of the notice upon the petitioner but in the instant case no such service has been proved so the case law referred to above as 2007 SCMR 1105 and 2011 SCMR 762 is fully applicable in the instant case.

12. On the other hand, the learned counsel for the respondent vehemently opposed the revision petition and maintained that the facts and circumstances of the case law referred to above by the learned counsel for the petitioner are quite distinguishable from those of the present case. In the instant case the petitioner submitted his written statement and in response to Para 2 of the plaint, the plea of the respondent to have sent the notice of Talb-e-Ishhad to the petitioner through registered A.D. was not specifically denied. Similarly, the petitioner while appearing as DW-1 in the witness-box also failed to utter even a single word in his examination-in-chief about the non receipt of notice of Talb-e-Ishhad. Moreover, the postal receipt produced as Ex-P5 was also never objected to by the learned counsel for the petitioner before the learned trial Court. The learned counsel further maintained that no such plea as argued by the learned counsel for the petitioner today was taken in the revision petition. No party could produce any evidence on a point not contained in its pleadings. Even if any evidence is produced, which is inconsistent with the pleadings of a party cannot be read in evidence. The learned counsel maintained that the requirements of Talabs had been fulfilled by the respondent in accordance with law so the learned First Appellate Court rightly decreed the suit of the respondent. The learned counsel referred to PLD 1994 SC 162 {Saheb Khan through Legal Heirs versus Muhammad Pannah}, 2003 SCMR 686 {Chief Engineer, Hydel (North) and Project Director, Wapda, Warsak Versus Zafarullah Shah and another}, 2004 SCMR 1719 {Haji Feroze Khan and another versus Amir Hussain through L.Rs. and others}, 2006 SCMR 1410 {Hayat Muhammad and others versus Mazhar Hussain}, 2008 SCMR 1366 {Ghulam Abbas and another versus Manzoor Ahmed and another}, 2008 MLD 307 [Lahore] {Muhammad Sharif versus Muhammad Yousaf}, and 2010 CLC 27 [Peshawar] {Asif Rahseed Khan Durrani versus Haji Hazrat Gul} in support of his arguments.

13. I have considered the arguments advanced by the learned counsel for the parties and have gone through the record.

14. The findings of the learned trial Court except on Issue No. 6 were not challenged before the learned Addl: District Judge so this Court has to confine itself only to the extent of findings on Issue No. 6, which was framed in respect of the fulfillments of requirements of Talabs. A perusal of the plaint shows that in Para 2 of the plaint the respondent has specifically mentioned about the fulfillment of Talb-e-Muwathibat on 23.03.1999 in presence of the witnesses and he has also specifically mentioned that on 24.03.1999 notice of Talb-e-Ishhad was sent to the petitioner through registered post with acknowledgement due, which was received by the petitioner so he fulfilled the requirements of Talb-e-Ishhad. While submitting the written statement the petitioner in response to Para 2 of the plaint made an evasive denial without mentioning about the notice of Talb-e-Ishhad. In the same way respondent himself appeared as PW-1 in the witness box and produced PW-2 Fateh Khan and PW-3 Zulfiqar Ali being witnesses of Talb-e-Muwathibat and Talb-e-Ishhad. All of them categorically stated to have signed the notice of Talb-e-Ishhad and about its sending to the petitioner. Not even a single suggestion has been put in cross-examination by the learned counsel for the petitioner to any of the witnesses including the respondent about non-sending, non-serving or non-receiving of notice of Talb-e-Ishhad. It is an established principle of law that if a specific portion of the statement of the witnesses is not disputed and cross-examined the same shall be presumed to have been admitted. Besides it, the petitioner appeared as DW-1 in the witness box to rebut the contention of the pre-emptor/respondent and he only stated that he purchased the suit land and the respondent had no right of pre-emption in respect of the same and that he neither made any announcement for exercising the right of pre-emption nor any Jirga was sent to him and that he had spent more than Rs. 10,000/- on the disputed land. This is the entire statement made by the petitioner. Not even a single word has been uttered by him in his examination-in-chief to deny the sending of notice or about its having not been received by him. As per evidence of PWs the notice of Talb-e-Ishhad was sent to and received by the petitioner and due to this reason he was unable to make a categorical denial of the same. The postal receipt was already on the record without any objection from the petitioner's side. So, it was not a case of mis-reading or non-reading of evidence nor there was any jurisdictional error. The learned appellate Court has rightly observed that minor contradictions in the statements of the witnesses are not fatal. Even otherwise the contradictions or discrepancies pointed out by the learned trial Court do not relate to the material issues and cannot change the fate of the case. The said contradictions are of trivial nature and the suit of the respondent could not be dismissed on the basis thereof as it involved his valuable rights. As regards the case law referred to above by the learned counsel for the petitioner, the facts and circumstances of the said cases are quite distinguishable from those of the present case. There is no cavil to the proposition that if the petitioner had categorically denied on oath the receipt of notice or sending thereof to him at some incorrect address then the respondent was under an obligation to prove the same. But in the instant case, the petitioner had not refused to receive the notice and no such endorsement was made by any postman etc. There is no statement on oath of the petitioner dis-owning or denying the receipt of notice as was in the cases referred to above and there is no categorical denial in his written statement about the receipt of notice. So, in such a situation, the presumption under the provisions of Article 129 of Qanun-e-Shahadat Order, 1984, would arise in favour of the respondent as his contention stood un-rebutted by the petitioner. In absence of any categorical denial the notice of Talab-e-Ishhad sent at the correct address of the petitioner would be deemed to have reached its destination. Since the respondent had fulfilled the requirements of Talabs as required under Section 13(3) of the Punjab Pre-emption Act, 1991, so the learned appellate Court rightly accepted the appeal of the respondent and decreed the suit.

15. In the light of the above discussion, the judgment and decree dated 18.06.2002 passed by the learned Addl. District Judge Attock is based on sound reasoning and warrants no interference by this Court in exercise of its revisional jurisdiction because the petitioner has not been able to point out any mis-reading or non-reading of evidence, jurisdictional error, illegality, irregularity or perversity therein. So, the revision petition is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2012 Lahore 290 [Rawalpindi Bench Rawalpindi]

Present: Ijaz Ahmad, J.

AFTAB AHMAD etc.--Petitioners

versus

GOVERNMENT OF PUNJAB etc.--Respondents

W.P. No. 1102 of 2011, decided on 12.1.2012.

Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974--

----Rr. 18 to 21-A--Notification No. D.S. (O & M) 5-3/2004--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Appointment of contract employees--Petitioners were appointed as secretaries of union councils on contract basis--Qualification was required matric at least in second division--Notification--To order appointments on regular basis in relaxation of rules, of employees recruited on contract basis--Fulfillment of requirements--Petition was dismissed--Challenge to--Petitioners possessed requisite educational qualification for appointment as secretaries--Regularization of their services on basis of eligibility on day of initial appointment and regularization of services could not be conditioned with any added qualifications--Qualification of F.A. for appointment as union secretary was not applicable with retrospective effect--Entitlement to regularization on account of eligibility on the day when appointed on contract basis--Petitioners lacked the added qualifications were refused regularization of their services--Validity--Qualification in vogue for post of Secretary U/C even on permanent basis matriculation on the day when petitioners were appointed on contract basis--Appointment as Secretary on permanent or contract basis was to be made--Substantial difference inter-se both types of appointment was that of tenure of services, second was of pensionary benefits, which on termination of service would be given in case of one and denied in case of other--Amendment in Rules 2005 did not take effect of service would not be effected by it--Order refusing regularization of petitioners services and disallowing further extension of contracts was held to illegal and ineffective upon rights of petitioner, hence was set-aside--Services of all petitioners who were eligible according to requirement on day of their initial appointment on contract basis would stand regularized--Petition was accepted. [Pp. 292 & 293] A, B & C

2010 SCMR 739 ref.

Mr. Tanveer Iqbal Khan, Advocate for Petitioners.

Mr. Shahid Mehmood Abbasi, AAG for Respondents.

Date of hearing: 22.12.2011.

Order

The petitioners were appointed as Secretaries of the Union Councils in BS-5 on contract basis on 20.4.2007. The qualification required and possessed by the petitioners on that date was Matric at least in second division. The Govt. of Punjab S&GAD Department (Regularization Wing) vide Notification No. D.S (O&M) 5-3/2004/ Contract (MF) dated 14.10.2009 (Annex-D) was pleased to direct that all the Autonomous /Semi-Autonomous Bodies/Special Institutions in Punjab shall make the appointment on regular basis of the contract appointees in BPS-1 to 15 in line with Notification dated 14.10.2009 (Annex-F). The latter mentioned notification provides that the Chief Minister, Punjab was pleased to order the appointments on regular basis in relaxation of the relevant rules, of the employees recruited on contract basis against the posts presently held by them. These appointments were however, to be subject to the fulfillment of requirement of Rules 18 to 21-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. The petitioners and others submitted Writ Petition 2733 of 2010 seeking the regularization of their services. During pendency of the petition, the services of 33 petitioners were regularized vide order dated 26.2.2011. The petition was dismissed vide order dated 6.4.2011 to the extent of the remaining petitioners who now are the petitioners in the instant petition. The petitioners preferred ICA. No. 44 of 2011. During the course of arguments, the learned counsel appearing on behalf of the appellants sought withdrawal of the appeal and also of Writ Petition No. 2733 of 2010 with permission to present a fresh petition as it had been necessitated in view of the order dated 26.2.2011 having been passed by the competent authority regularizing the service of the successful contract employees. The learned Division Bench seized with the ICA allowed the withdrawal of the ICA and writ petition with permission to file a fresh petition.

1. It is contended by the learned counsel for the petitioners that the petitioners possessed the requisite educational qualification for appointment as Secretaries, Union Council. On the eve of the regularization of their services their cases have to be considered on the basis of their eligibility on the day of the initial appointment and the regularization of their services could not be conditioned with any added qualifications. The learned counsel for the petitioners refers to Punjab Local Council Service (Appointment and Conditions of Service Rules, 1983 wherein the required qualification is Matriculation. He submits that the amendment made in the Punjab Local Government District Service (Teshil/Town Cadre) Rules 2005 through notification dated 7.8.2007 requiring the qualification of F.A for appointment as Union Secretary is not applicable with retrospective effect. He places reliance on "Secretary (Schools), Government of Punjab, Education Department and others vs. Yasmeen Bano" (2010 SCMR 739) to argue that the petitioners are entitled to regularization on account of their eligibility on the day when they were appointed on contract basis.

2. On the other hand, this petition is opposed by the learned Assistant Advocate General. It is contended that the petitioners on the basis of their eligibility at the time of contract appointment could continue as contract employees as long the parties mutually agree. Their regularization into service can only be ordered subject to fulfillment of the requirements of the Punjab Appointment and Conditions of Service Rules, 1974; that the petitioners do not possess the qualifications required under the Punjab Local Government District Service (Tehsil/Town Cadre) Rules 2005 as amended on 7.8.2007.

3. I have heard the learned counsel for the petitioners, the learned Assistant Advocate General and also gone trough the record.

4. The Notification dated 14.1.2009 directs that the Autonomous/Semi-Autonomous Bodies/Special Institutions in Punjab shall make appointments on regular basis, of the contract appointees in line with another even dated notification. The latter referred notification, conditions the regular appointment of the contract employees subject to fulfillment of the requirement of Rules No. 18 to 21-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. The referred rules make it imperative that a candidate for initial appointment to a post must possess the prescribed educational qualifications. The services of some of the petitioners in Writ Petition No. 2733 of 2010 who possessed the required educational qualification introduced in the Rules 2005 ibid through Notification dated 7.8.2009 were regularized vide order dated 26.7.2011. The petitioners lacking the said added qualifications were refused the regularization of their services.

5. The qualification in vogue for the post of Secretary Union Council even on permanent basis was Matriculation on the day when the petitioners were appointed on contact basis. The appointment as Secretary on permanent or contract basis was to be made in BS-5. The first substantial difference inter-se both types of appointments is that of tenure of service, the second is of the pensionary benefits, which on the termination of service would be given in case of one and denied in case of the other. The amendment in Rules 2005 does not only require the added qualification of F.A, it also promises the appointment of Secretary Union Council in BS-7 instead of previous BS-5.

6. The term that should not be left undefined is the "Regularization" of the service. Regularizing as defined in the Oxford English Dictionary is (1) making something regular (2) making a temporary situation legal or official.

In the Blacks Law Dictionary, Regular place of business and the regular course of business have been ascribed the meaning in contradiction to temporary place of business and in contrast to incidental or occasional business operations. The term "Regularization" is calculated to condone the irregularities. The Regularization, thus is not the de-novo appointment on regular basis of the contract employees subject to possession of newly stipulated added educational qualification. It is in fact the uninterrupted continuation of the service of the previous contract employees till the completion of their normal tenure. The act of regularization of service does not create a new job, it only removes the lurking fear of sudden severance of their services. That makes their employment status equal to their contemporaries appointed on regular basis on the same day.

1. The amendment introduced on 7.8.2007 in the Punjab Local Government District Service (Tehsil/Town/Municipal Administration Cadre) Rules, 2005 does not take effect of their service will not be effected by it. The order dated 26.2.2011 refusing the regularization of the petitioners' services and disallowing the further extension of their contracts is held to be illegal and ineffective upon the rights of the petitioner, hence is set-aside.

2. Following the dictum laid down in "Secretary (Schools), Government of Punjab, Education Department, and others vs. Yasmeen Bano" (2010 SCMR 739) the services of all the petitioners who were eligible according to the requirement on the day of their initial appointment on contract basis would stand regularized. They will be entitled to all the benefit as mentioned in the notification dated 14.10.2009. This petition stands accepted.

(R.A.) Petition accepted

PLJ 2012 Lahore 293 [Rawalpindi Bench Rawalpindi]

Present: Rauf Ahmad Sheikh, J.

IFTIKHAR AHMAD CHISHTI--Petitioner

versus

DISTRICT JUDGE, CHAKWAL and another--Respondents

W.P. No. 699 of 2009, decided on 16.1.2012.

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

----S. 25--Application for custody of minors moved by father was dismissed by Courts below--Challenge to--Entitlement of custody of minors--Father did not pay maintenance under decree and had detained in civil prison--Validity--If a father failed to pay maintenance and then litigated against minors and finally did not pay maintenance even after decree of the Court and preferred to go to civil prison then it could be safely presumed that father was not interested in welfare and well being of the minors--Father appeared to be disinterested in well being of minors--Petition was dismissed. [Pp. 295 & 296] A & D

Custody of Minors--

----Petitioner was living with second wife--Step-mother could not bestow love and affection, which could be given by mother--Not in welfare of minors that minors would be given to father. [P. 296] B

Custody of Minors--

----Better educational facilities--Not valid grounds--Contention--Better educational facilities were available where father was residing or he had better means than mother were not valid grounds to give minors in his custody. [P. 296] C

Custody of Minors--

----Visitation rights--Father of minors could not be deprived of his right to see minors after reasonable intervals--Petitioner moved an application before guardian judge who might allow visitation rights after reasonable intervals keeping in view all attending circumstances. [P. 296] E

Malik Muhammad Jahanzeb Khan Tamman, Advocate learned counsel for Petitioner.

Mr. Haroon Irshad Janjua, Advocate learned counsel for Respondent No. 2.

Date of hearing: 16.1.2012.

Order

The petitioner has assailed the vires of order dated 14.11.2007 passed by the learned Guardian Judge, Choa Saiden Shah, District Chakwal, whereby an application moved by him under Section 25 of the Guardians and Wards Act, 1890 was disallowed and judgment dated 11.07.2008 passed by the learned ADJ, District Chakwal, whereby an appeal filed by him against the order of the learned Guardian Judge was dismissed. The petitioner had claimed the custody of minors Israr Ahmad, Izhar Ahmad, Muneeb Ahmad and Hannan Ahmad sons and Mst Asima Bibi daughter of the parties. It was contended that they were born out of the wedlock between petitioner and Respondent No. 2, who is quarrelsome lady and lacks the qualities of good mother. He contended that the future of the minors would be ruined, if they are not given in his custody.

1. The Respondent No. 2 contested the petition with the contention that the minors are studying in the Schools and are being looked after property. It was contended that the petitioner has contracted second marriage and the step mother would not look after the minors. She further maintained that the petition has been filed to avoid the payment of maintenance. After recording the evidence and hearing the arguments, the learned trial Court dismissed the petition. The appeal filed by the petitioner met the same fate.

2. The learned counsel for the petitioner has contended that Israr Ahmad has already attained majority and it is in the interest of minor Mst. Asima Bibi that she being a female child, should remain with the mother but the petitioner is entitled to the custody of minor sons Izhar Ahmad, Muneeb Ahmad and Hannan Ahmad as all of them are more seven years old. It is contended that Muneeb Ahmad is deaf and dumb so needs special education in a School for such children, which is not established in the village of Respondent No.

3. It is urged that the petitioner would not keep the minors with their step mother and is ready to get them admitted in the Hostel. It is finally urged that if his prayer for custody does not find favour, the petitioner should be given visitation rights. In this respect reliance is placed on NLR 2009 Civil 66 and 2006 YLR 2215 (Lahore).

4. The learned counsel for Respondent No. 2 has vehemently opposed the petition. It is contended that the petitioner did not pay maintenance inspite of decree of the Court and was sent to civil prison and even now the maintenance is being recovered through process of the Court; that the petitioner has contracted second marriage and step mother cannot look after the minors better than Respondent No. 2. In support of the contentions raised reliance is placed on 2006 YLR 4 (Lahore), 2000 MLD 1216 (Lahore), 2008 YLR 168 (Lahore), 2008 SCMR 480 and 2001 CLC 1983 (Peshawar).

5. During course of arguments, the learned counsel for the petitioner has admitted that the suit for maintenance was filed in 2003 and the petition before the learned Guardian Judge was filed in 2007. It is also admitted that the petitioner filed the appeal against the judgment of the Family Court so he had been litigating against the minors throughout. It is also an admitted fact that he did not pay maintenance under the decree and was detained in civil prison. If a father fails to pay maintenance and then litigates against the minors and finally does not pay the maintenance even after the decree of the Court and prefers to go to civil prison then it can be safely presumed that he is not interested in the welfare and well being of the minors. The petitioner also for the above mentioned reasons appears to be disinterested in the well being of the minors. Admittedly the petitioner is living with his second wife. The learned counsel for the petitioner could not categorically deny that he has children from second wife also. The step-mother cannot bestow the love and affection, which can be given by Respondent No. 2. In these circumstances, the learned Guardian Judge and the learned ADJ both rightly held that it is not in the welfare of the minors that they should be given to the petitioner. It is not denied that the minors are going to the school. The contention that the better educational facilities are available in Noshera, where the petitioner is residing or the petitioner has better means than Respondent No. 2 are also not valid grounds to give the minors in his custody. The order; of the learned Guardian Judge and the judgment passed by the learned ADJ both do not suffer from any illegality or infirmity. The writ petition is without merits and the same is hereby dismissed.

6. However, the petitioner is real father of the minors. He cannot be deprived of his right to see the minors after reasonable intervals. The petitioner may move an application before the learned Guardian Judge, Choa Saiden Shah, who may allow the visitation rights after reasonable intervals keeping in view all attending circumstances.

(R.A.) Petition dismissed

PLJ 2012 Lahore 296

Present: Ch. Shahid Saeed, J.

SHERA etc.--Petitioners

versus

Mst. MURADAN etc.--Respondents

C.R. No. 1678 of 2000, heard on 17.1.2012.

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

----S. 115--Civil revision--Concurrent findings--Challenged validity of mutation which was allegedly sanctioned on basis of fraud and forgery--Suit for declaration was filed badly barred by time of more than 30 years--Validity--Claim of petitioners that they had come to know about the sale four years prior to institution of the suit was an after thought story which could not be believed--Petitioners had not produced any document on record to prove that they were in possession of any part of the property--Concurrent findings of facts in matter and Courts below while passing the judgments and decrees had taken into consideration all material aspects of the case--Findings of lower Courts on question of facts and law based on proper appreciation of oral as well as documentary evidence led in the suit were not susceptible to review to be up-set or substituted in revisional jurisdiction--Petition was dismissed. [P. 299] A & B

Mr. Asif Mehmood Cheema, Advocate for Petitioners.

Mr. Azhar Siddique Cheema, Advocate on behalf of Respondents No. 8 to 10.

Date of hearing: 17.1.2012.

Judgment

The instant civil revision is directed against the judgments & decrees passed by Courts below by way of which suit for declaration filed by the petitioners has been dismissed.

1. Brief facts of the case are that petitioners filed a suit for declaration and permanent injunction on the ground that Mst. Satto deceased was owner to the extent of 1/8 share in Khata No. 14, to 20 while to the extent of 1/20 share in Khata No. 21 and was also owner in Shamlat Deh of Khata No. 22 of Revenue Estate of village Thathi Asaish. It was further alleged in the plaint that Satto was married to Ditta son of Dadoo and out of this wedlock, Sohna, Muhammad sons, Bano and Rahmoon petitioners were born. That after the death of Ditta, Mst. Satto contracted marriage with Bahawali and out of this wedlock Mst. Muradan Respondent No. 1 was born. It was further asserted in the plaint that Satto deceased died on 18.03.1953 and a mutation of Inheritance No. 74 dated 20.12.1955 was attested in favour of Mst. Muradan, Sona, Rahmoon Jahana, Sardara and Mst. Fatima. The petitioners have challenged the validity of Mutation No. 74 dated 20.12.1955 which was allegedly sanctioned on the basis of fraud and forgery.

2. Defendants appeared before the learned trial Court and contested the suit by tooth and nail while submitting their written statement. The main claim of the defendants was that Mst. Muradan Respondent No. 1 was sole daughter of Satto and Bahwali. Out of the divergent pleadings of the parties learned trial Court framed necessary issues including relief. Both the parties got recorded their oral as well as documentary evidence. Learned trial Court after hearing the arguments of both the sides at length dismissed the suit of the petitioners vide judgment & decree dated 11.07.1996. Petitioners preferred an appeal which also met with the same fate by the learned appellate Court on 29.04.1999. Feeling aggrieved by the said judgments & decrees petitioners have filed the instant civil revision.

3. Learned counsel for the petitioners contends that the impugned judgments & decrees passed by the Courts below are against law and facts and also based upon surmises and conjectures; that Mst. Satto was the owner of the property in dispute, firstly she was married with Ditta and out of this wedlock, Sohna, Muhammad sons, Bano and Rahmoon daughters were born. Further argued that after the death of Ditta she was married with Bhawli and out of said union Mst. Muradan was born. That on 18.03.1953 when Satto died, her mutation of inheritance was wrongly entered and attested vide Mutation No. 74 dated 20.12.1955 in favour of Mst. Muradan alongwith her collaterals excluding the petitioners. Learned counsel further argued that the petitioners and Respondent No. 1 being the legal heirs of Mst. Satto were only entitled to get the property in dispute.

4. On the other hand, learned counsel for the respondents states that petitioners have failed to prove that petitioners were the legal heirs of Mst. Satto. There are material contradictions in the statements of the PWs. That suit of the petitioners is badly barred by time. Further argued that there are concurrent findings of both the Courts below against the petitioners. Lastly learned counsel for the respondents has supported the impugned judgments & decrees of the Courts below.

5. Arguments heard. Record perused.

6. Petitioners have alleged in the plaint that Mst. Satto deceased was owner of the property in dispute. Firstly she was married with Ditta and out of said wedlock plaintiffs were born. It has been further alleged in the plaint that after the death of Ditta Mst. Satto was married with one Bhawli and out of this wedlock Mst. Muradan was born. The claim of the plaintiffs was that they and Mst. Muradan Bibi was only legal heirs of Mst. Satto and were entitled to get the property in dispute. They further alleged in the plaint that the mutation in dispute according to which property in dispute was transferred in favour of Mst. Muradan Sohna, Jahana, Sardara and Mst. Fatima is based upon fraud and misrepresentation. The main dispute in this case is whether Mst. Satto was real mother of plaintiffs or not. To prove the case Bano one of the plaintiff appeared as PW. 1 and stated in her statement that the name of her mother was Satto and name of her father was Taja. She further stated that they were three sisters, Bano, Muradan and Rahmoon and two brothers namely Soohna and Muhammad. In the plaint the version of the plaintiffs was that the name of their father was Ditta and Muradan was born out of the wedlock of Mst. Satto and Bhawli. PW.1 Bano has taken totally different stand from the version which she has taken in her plaint. Moreover in her examination-in-chief she has stated that the name of her father was Sohna. Similarly PW.2 Noora has disclosed that Mst. Satto was having three daughters namely Bano, Rahmoon and Muradan and two sons Muhammad and Sohna. PW.3 Yara has stated in his statement that Mst. Muradan was their step-sister. He has shown his ignorance that the said Muradan was only daughter of Bhawli. PW.4 Muhammad Hayat has also deposed in a very strange manner while saying that Sohna and Muhammad two brothers and three sisters Mst. Rahmoon, Muradan and Bano were legal heirs/ children of Mst. Satto.

7. On the other hand, respondents have successfully proved this fact that Mst. Muradan was the only daughter of Mst. Satto. Bhawli was the husband of Mst. Satto and she did not contract marriage with Ditta. From the perusal of whole the record it reveals that petitioners have failed to prove their relationship with Mst. Satto. They have taken different stands in their plaint and evidence. There are material and glaring contradictions in the statements of the PWs. They have not supported the version through oral evidence which they have taken in the plaint. After careful scanning of record I am of the considered opinion that the petitioners have failed to prove that they were legal heirs of Mst. Satto or Mst. Muradan was their step-sister.

8. Record further reflects that mutation in dispute was attested on 20.12.1955 whereas the petitioners filed the suit on 09.03.1987 after more than 30 years which is badly barred by time. Evidence of the petitioners did not show that when and how they came to know about the impugned mutations. The claim of the petitioners that they came to know about the impugned sale four years prior to the institution of the suit is an after thought story which cannot be believed. Moreover petitioners have not produced any document on record to prove that they were in possession of any part of the property in dispute.

9. Further more there are concurrent findings of facts in the matter and the Courts below while passing the impugned judgments and decrees have taken into consideration all the material aspects of the case. Findings of the lower Courts on question of facts and law based on proper appreciation of oral as well as documentary evidence led in the suit were not susceptible to review to be upset or substituted in revisional jurisdiction. The findings' of the Courts below based on material on record would not be amenable to interfere with in revisional jurisdiction.

10. Resultantly, this revision petition having no force is dismissed with no order as to costs.

(R.A.) Petition dismissed

PLJ 2012 Lahore 300

Present: Ch. Muhammad Tariq, J.

MUHAMMAD RIAZ--Petitioner

versus

MUHAMMAD ASGHAR--Respondent

C.R. No. 8 of 2006, decided on 9.4.2010.

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

----Art. 177--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Original notice of talb-i-ishhad--Suit for possession through pre-emption, decreed--Appeal was dismissed--Challenge to--Instead of original notice only photocopy was placed--Right of pre-emption without strong evidence--Contention--Validity--Talb-i-ishhad was not duly performed as photocopy of notice was exhibited was of no legal consequence because original notice was sent to defendant and photocopy of notice talb-i-ishhad was admissible when plaintiff submit in evidence to postal receipt and acknowledge due issued by post office--Petitioner had failed to point out any material discrepancy or illegality in the judgment--No interference was called for--Petition was dismissed. [P. 302] A

2008 SCMR 1444, rel.

2003 MLD 1666, PLD 2003 SCMR 410 & 2008 SCMR 1366, rel.

Sh. Naveed Sheryar, Advocate for Petitioner.

Ms. Ruby Hayat Awan, Advocate for Respondent.

Date of hearing: 9.4.2010.

Order

Through this civil revision, the petitioner has assailed the judgments and decrees dated 13.10.2004 and 30.11.2005 passed by the learned Civil Judge, Kharian and the learned Additional District Judge, Kharian respectively.

1. Brief facts of the case are that on 05.04.1999, the respondent filed a suit for possession through pre-emption against the petitioner before the learned Civil Judge in respect of the suit land. The suit was contested and after framing of issues, both the parties produced their oral as well as documentary evidence. On 13.10.2004, the learned trial Court, Kharian decreed the suit in favour of the respondent. Feeling aggrieved, the petitioner filed an appeal which was also dismissed by the learned Additional District Judge, Kharian on 30.11.2005; hence this petition.

2. Learned counsel for the petitioner contends that the impugned judgments and decrees dated 13.10.2004 and 30.11.2005 passed by the learned Civil Judge, Kharian and learned Additional District Judge, Kharian respectively are against the law and facts as these suffer from material irregularities and illegalities. According to petitioner's counsel, the respondent/plaintiff has failed to prove Talb-i-Muwathibat and Talb-i-Ishhad. Learned counsel further contends that the sale in question took place on 10.07.1998, mutation of sale was entered on 10.07.1998 and the possession was also delivered, which facts are evident from Rapt Roznamcha Waqiati.

3. Learned counsel further contends that instead of original notice, only photocopy thereof was placed on record, which being impermissible under the law was objected to but the learned trial Court had failed to take into the account the objection while deciding the matter. According to him, such practice is not permissible under the law. Further contends that the right of pre-emption without strong evidence in support thereof has been termed as very weak by the superior Courts. In support of his contentions, he has relied upon PLD 2003 SC 410. 2005 SCMR 1231 and 58 Indian Cases 247.

4. On the other hand, the learned counsel for the respondent controverts the maintainability of this civil revision and prays that this civil revision be dismissed because there are concurrent findings of facts against the petitioner. Further contends that the plaintiff/respondent has fulfilled the requirements of Talabs as provided under the law. Notice Talb-i-Ishhad was served upon the petitioner as required under the law and after the document is exhibited, no objection is maintainable. Learned counsel for the respondent has further argued that the plaintiff produced five PWs including himself in support of his case and also produced Exh. P-1 to P-7 as documentary evidence in support of his version.

5. Learned counsel for the respondent further contends that photo-copies prepared mechanically could be exhibited under Article 177 of Qanun-e-Shahadat Order. Learned counsel in support of her contentions has relied upon 2003 MLD 1666. PLD 2003 SCMR 410, 2008 SCMR 1444. 2008 SCMR 1366.

6. I have heard the arguments advanced by the parties and carefully perused the record available on file.

7. The learned counsel for the petitioner has put more stress on the point that original notice of Talb-i-Ishhad was not placed/exhibited and photo-copy was not admissible in evidence. An objection in this regard was raised before the learned trial Court during the course of evidence with regard to the photocopy of notice but the learned trial Court failed to dispose of objection there and then and postponed the same at the time of final arguments which was not properly adjudicated at the time of final arguments, so, presumption will be that Talabs were not fulfilled as required under the law.

8. The above preposition is misconceived because in the light of law laid down by the Hon'ble Supreme Court of Pakistan in case Hameed Ullah Khan and others vs. Mst. Zeenat Khan reported as 2008 S.C.M.R. 1444. The contention of petitioner that Talb-i-Ishhad was not duly performed as photocopy of notice was exhibited is of no legal consequence because the original notice is sent to the defendant and photocopy of notice Talb-i-Ishhad is admissible particularly when plaintiff also submit in evidence the postal receipt and the acknowledge due issued by the post office. There is also concurrent finding of fact by two Courts below which could not be interfered. The learned counsel for the petitioner failed to point out any material discrepancy or illegality in the impugned judgment. Therefore, no interference is called for. Civil revision is dismissed.

(R.A.) Revision dismissed

PLJ 2012 Lahore 302

Present: Abdul Waheed Khan, J.

AHMAD KHAN NIAZI--Petitioner

versus

GOVERNMENT OF PUNJAB through Secretary Local Government & Community Development Department, Lahore and 3 others--Respondents

W.P. No. 10650 of 2011, decided on 20.1.2012.

Punjab Local Government Ordinance, 2001 (XIII of 2001)--

----Ss. 69 & 70--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Schedule for joint auction of cattle mandis--Challenge to--Controversy had already been resolved by Secretary Govt. of Punjab--No locus standi--Secretary Local Government had no authority under law to pass any order, to set aside resolution of TMAs and holding of joint auction of cattle mandis--Validity--Govt. functionaries were not to act upon principle that every procedure was to be taken to be prohibited unless it was expressly provided for by law but on converse principle that every procedure was to be understood as permissible till it was shown to be prohibited by law--As a matter of general principle, prohibition could not be presumed--No prohibition for holding any cattle mandi, therefore, prayer made by petitioner in Constitutional petition could not be acceded to, prohibiting TMAs for holding any joint cattle mandis--Petition was dismissed. [P. 304] A

Ch. Muhammad Yaqoob Sindhu and Mr. Aftab Gull, Advocates for Petitioner.

Mr. Shafqat Hayat Baloch, Advocate for TMA Khushab, Respondent No. 2.

Dr. Muhammad Mohy-ud-Din Qazi, Advocate for TMA Shahpur, Respondent No. 3.

Mr. Muhammad Shehzad Shaukat, Advocate for applicant in C.M.No. 3510-3511/2011.

Date of hearing: 20.1.2012.

Order

Briefly, the facts of the case are that TMA Shahpur, District Sargodha and TMA Khushab through a publication in Daily Jinnah dated 14.5.2011 gave a schedule for the joint auction of Cattle Mandis on 25.5.2011 at Malik Bashir Awan Hall TMA Khushab. The petitioner who claims to be a contractor, has invoked the Constitutional jurisdiction of this Court with a prayer that joint auction of the Cattle Mandis [on 25.5.2011] is liable to be declared as without lawful authority and of no legal effect as the Secretary, Govt. of Punjab have already settled the matter. It is mentioned in Paragraph 2 of the petition that the controversy has already been resolved by the Secretary Govt. of Punjab, Local Government & Community Development Department, Lahore, Respondent No. 1 vide order dated 11.6.2010 whereby both the TMAs were directed to hold independent auctions of their respective Cattle Mandis.

1. The counsel for the petitioner submits that the Respondent No. 1 in his supervisory jurisdiction has the power to regulate all the matters and that under the provisions of Section 73 of the Local Govt. Ordinance, 2001, such like arrangement is permissible only within one District. With this submission, it is prayed that this petition be accepted and the impugned publication of joint auction proceedings be set aside.

2. The counsel for the respondents submits that the petitioner has no locus standi as he did not participate in any bid. It is submitted that the petitioner has suppressed the material facts about the filing of W.P.No. 11942-2007 and W.P.No. 1425-2003. It is submitted that both the Tehsil Municipal authorities have passed resolution for holding a joint auction of the Cattle Mandis and only the Chief Executive of the Province has the powers to set aside the same in exercise of powers conferred upon him under Section 79 of PLGO, 2001. The Secretary Local Government has no authority under the law to direct the TMAs to refrain from holding a joint auction of the Cattle Mandis. With this submission it is prayed that the writ petition be dismissed.

3. Arguments heard. The petitioner has challenged the publication of aforementioned auction notice dated 25.5.2011, for holding the joint auction of the Cattle Mandis on the ground that Respondent No. 1 vide order dated 11.6.2010 have held that such an auction is not permissible under the law. There is no denial to the fact that both the TMAs have passed resolutions for the holding of joint auction. The Secretary Local Government has no authority under the law to pass any order, to set aside the resolution of the TMAs and the holding of the joint auction of the Cattle Mandis. It is the only the prerogative of the Provincial Chief Executive to set aside such proceedings under the provisions of Sections 69 & 70 of the PLGO, 2001. The law does not prohibit holding of any such joint auction of the Cattle Mandis. Section 70B ibid is as follows:

"70-B. Setting aside the resolution of Tehsil council by the Chief Executive of the Province.--(1) Where, in the opinion of the Chief Executive of the Province, a resolution of the Tehsil council is not in conformity with law or is against the interest of the people, he may, for the reasons to be recorded and conveyed to the Tehsil council, suspend such resolution and refer the matter to the Provincial Local Government Commission for an enquiry to be completed not later than ninety days."

1. The Government functionaries are not to act upon the principle that every procedure is to be taken to be prohibited unless it is expressly provided for by the law but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by law. As a matter of general principle, the prohibition cannot be presumed. Since there is no prohibition for holding any Cattle Mandi, therefore, the prayer made by the petitioner in this Constitutional petition cannot be acceded to, prohibiting the respondent TMAs for holding any joint Cattle Mandis. This writ petition has no merit and is dismissed, accordingly.

(R.A.) Petition dismissed

PLJ 2012 Lahore 305

Present: Syed Mansoor Ali Shah, J.

MUHAMMAD NAWAZ--Petitioner

versus

MUHAMMAD AKRAM and another--Respondents

C.R. No. 1687 of 2009, heard on 26.9.2011.

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

----S. 115 & O. VII, R. 11--Rejection of plaint--Second agreement--Right margin of agreement for cancellation of mortgage suit for recovery against petitioner on basis of a note claimed to be guarantee given by petitioner--Suit was dismissed--Appeal was accepted by First Appellate Court--Challenge to--Second agreement was inconsistent with agreement--Validity--Second agreement had no bearing on liability of the petitioner as he was not privy to second agreement--Note in margin of agreement did not constitute a valid agreement and was, therefore, not enforceable in law, hence respondent had no cause of action to maintain the suit--Courts below had failed to consider these legal aspects of the cases--Suit was rejected under O. VII, R. 11 of CPC for being devoid of any cause of action--Judgments and decrees of Courts below were set aside except finding of trial Court regarding issue which was upheld--Revision was allowed. [P. 308] A & B

Mr. Moiz Tariq, Advocate for Petitioner.

Mr. Assad Majeed, Advocate for Respondent No. 2.

Nemo for Respondent No. 1.

Date of hearing: 26.9.2011.

Judgment

Brief facts of the case are that Respondent No. 1 filed a suit for recovery against the petitioner on the basis of a note (claimed to be a Guarantee given by the Petitioner to Respondent No. 1) recorded in the right margin of Agreement for the Cancellation of Mortgage ("Agreement") dated 2-1-2001 entered between Respondents No. 1 and 2 and placed on the record as Ex-P/I. Respondent No. 1 claimed that the Petitioner was under an obligation to recover four gold bangles and a sum of Rs. 34,000/- from Respondent No. 2. The suit also mentions another agreement (second agreement) dated 8-2-2001 (Ex-P/II) wherein Respondent No. 2 has undertaken to pay Respondent No. 1 Rs. 34,000/- @, Rs. 1500/- per month.

1. The suit was dismissed vide judgment and decree dated 14.2.2007 passed by learned Civil Judge, Gojra. Feeling aggrieved Respondent No. 1 preferred an appeal before the learned Additional District Judge, Gojra who vide judgment and decree dated 11.5.2009 accepted the appeal and decreed the suit filed by Respondent No. 1. Hence this revision.

2. Respondent No. 1 was earlier proceeded ex-parte on 8-3-2010 which was set aside on 10-3-2010 as the said respondent joined the proceedings. Then again on 21-9-2011 Respondent No. 1 was proceeded ex-parte and the case was fixed for ex-parte arguments for today. Inspite of notice no one has tendered on behalf of Respondent No. 1 hence this ex-parte judgment.

3. Counsel for the petitioner argued that the note recorded in the right margin of the Agreement for the Cancellation of Mortgage only states that an amount of Rs. 100,000/- (settlement amount of the Agreement) was paid by the Petitioner and had to be deducted from the price to be paid for the shop by the Petitioner to Respondent No. 1. The rest of the note is forged and was never executed by the petitioner. Counsel for Respondent No. 2 supports the contention of the petitioner.

4. Arguments heard, record perused.

5. Respondent No. 1 had obtained a loan from Respondent No. 2 and in return mortgaged his shop with Respondent No. 2. Later on when Respondent No. 1 entered into an Agreement to Sell of the same shop with the petitioner, Respondent No. 2 filed a suit against Respondent No. 1 and obtained a stay order. However, finally, respondents arrived at a settlement between themselves through Agreement dated 2-1-2001 (Ex P/I) which cancels the Agreement of Mortgage of the said shop dated 29-4-1998.

6. The Agreement clearly states that Respondent No. 1 had borrowed money against the said shop from Respondent No. 2 in the sum of Rs. 100,000/- and Rs. 34,000/- and had promised to pay Rs. 3000/- as a monthly return and therefore a total of Rs. 1,90,000/- outstands against Respondent No. 1. However, in order to arrive at a settlement, Respondent No. 2 agreed to cancel the Mortgage dated 29-4-1998 against a total consideration of Rs. 100,000/- to be paid by Respondent No. 1 to Respondent No. 2. It also made clear that no further payment was to be made by either parties.

7. The right margin (second page) of the Agreement carries a note allegedly signed by the petitioner. It states that the petitioner has paid Rs. 100,000/- on behalf of Respondent No. 1 and the said amount shall be adjusted against the price of the shop (under the Agreement to Sell between the petitioner and Respondent No. 1). The second part of the note rather incoherently states that the petitioner undertakes to recover four gold bangles from Respondent No. 2 and mentions a sum of Rs. 34,000/- at the end of the note, leaving it unclear as to what is to be done with the said amount.

8. Additionally, the suit of Respondent No. 1 refers to another agreement (second agreement) dated 8-2-2001 which states that Respondent No. 2 has agreed to pay back Rs. 34,000/- to Respondent No. 1 @ Rs. 1500/- per month.

9. Petitioner appearing as DW-1 has stated that he never recorded the portion of the note that is being claimed by Respondent No. 1 to be a guarantee resulting in maintaining a suit against the petitioner. However, the evidence on the record shows that the said note was executed. Be that as it may, even if the note is taken to have been executed it suffers from the following legal infirmities:--

a. The Note/Guarantee recorded in the margin to the Agreement dated 2-1-2001 lacks offer and acceptance between the parties to constitute a guarantee. Respondents No. 1 and 2 are not signatories to the said Guarantee.

b. There is no consideration for the petitioner in the said guarantee.

c. The note/guarantee is not clear and does not spell out the name of the creditor in the guarantee and is, therefore, void for being vague and unclear.

d. There is no relationship between Respondent No. 2 and the Petitioner and there is no plausible explanation or reason why the petitioner should stand as a guarantor to Respondent No. 2.

e. The Note/Guarantee is inconsistent with the Agreement dated 2-1-2001 which states that entire amount have been paid and there is nothing outstanding between the parties.

1. Once the main parties have finally settled the matter at Rs. 100,000/- with a clear recital that no further amount is due from either of the parties, there appears to be no consideration for the so called guarantee. Secondly, the guarantee is vague and does not clearly provide the name of the beneficiary. Thirdly, for a valid guarantee there ought to be three parties namely creditor, principal debtor and the guarantor. Two main actors are missing. The second agreement dated 8-2-2001 or 7-2-2001 is inconsistent with the Agreement dated 2-1-2001. Besides it is misconceived as it states that Respondent No. 2 has to pay Respondent No. 1 Rs. 34,000/- which is incorrect and against the facts of the case, as well as, Agreement dated 2-1-2001. Respondent No. 1 had borrowed money (Rs. 1,34,000/-) from Respondent No. 2 and it was Respondent No. 1 who had to return the same, while, the second Agreement states that Respondent No. 2 has to pay Respondent No. 1 which is incorrect and inconsistent with Agreement dated 2.1.2001. In any case the second agreement has no bearing on the liability of the petitioner as he is not privy to the second agreement. The note in the margin of the Agreement dated 2.1.2001 does not constitute a valid agreement and is, therefore, not enforceable in law, hence Respondent No. 1 has no cause of action to maintain the suit.

2. Learned Courts below have failed to consider these legal aspects of the cases. The suit of Respondent No. 1 is, therefore, rejected under Order 7, Rule 11 CPC for being devoid of any cause of action. Judgments and decrees of the Courts below dated 11.5.2009 and 14.2.2007 are hereby set aside except the finding of the learned trial Court regarding Issue No. 2 which is upheld and the instant civil revision is allowed.

(R.A.) Revision allowed

PLJ 2012 Lahore 308

Present: Mehmood Maqbool Bajwa, J.

RASHEED AHMAD etc.--Petitioners

versus

Mst. SURRAYA BIBI etc.--Respondents

C.R. No. 199 of 2009, heard on 27.10.2011.

Limitation Act, 1908 (IX of 1908)--

----Art. 152--Civil Procedure Code, (V of 1908), S. 115 & O. XVII, R. (3) Code (Lahore High Court Amendment), O. XVII, R. 1(3)--Closure and dismissal of suit for want of evidence--Order was called by preferring an appeal which was dismissed being barred by time--Appeal was hopelessly barred by time and as such no exception can be taken to judgment before High Court--Order regarding closure of evidence could be deemed to be an order u/O. XVII, R. (1)(3) of Code (Lahore High Court Amendment)--Counsel was not present in the Court when suit was dismissed for want of evidence--Validity--According to Art. 152 of first schedule of Limitation Act, appeal can be preferred within thirty days from date of decree or order before Distt. Court--Since judgment and decree was made on 18.7.2008, therefore, time would be reckoned from 19.7.2008, excluding the day on which judgment and decree was drawn up and as such period of thirty days expired on 16.8.2008--Benefit of summer vacations, even if given, required the petitioners to prefer the appeal against judgment and decree on first day of Sep. 2008, the day when Courts re-opened. [P. 313] A

Limitation Act, 1908 (IX of 1908)--

----S. 5--Civil Procedure Code, (V of 1908)--O. XVII, R. 3--Closure of evidence--Suit was dismissed--Appeal was dismissed being barred by time--Challenge to--Condonation of delay but no sufficient cause--Validity--Petitioner applied for certified copies of judgment and decree of trial Court on 13.10.2008 after expiry of period of 3 months--Ground agitated regarding mis-conception of next date of hearing has been dealt with finding it un-tenable--No period of limitation was prescribed at instance of petitioners that no period of limitation was prescribed in order to assailed the vires of void order though might not be questioned but the proposition of law cannot advance plea of petitioners in view of discussion made as judgment and decree cannot be said to be void--Petition was dismissed. [P. 313] B

Revisional Jurisdiction--

----Revisional jurisdiction can be exercised in case of non-assumption, illegal assumption or exercise of jurisdiction illegality or with material irregularity. [P. 313] C

Ch. Manzoor Hussain Basra, Advocate for Petitioners.

Mr. Abdul Khaliq Safrani, Advocate for Respondents No. 1 to 3.

Date of hearing: 27.10.2011.

Judgment

Legality and validity of judgment and decree dated 18.7.2008, recorded by learned Civil Judge, Pasroor, judgment and decree dated 8.11.2008 recorded by a learned Addl. District Judge Pasroor dismissing the appeal of petitioners in limine has been called in question at the instance of petitioners/plaintiffs.

1. Present petitioners, instituted suit for declaration and perpetual injunction against the Respondents No. 1 to 3 claiming proprietary and possessory rights being collateral of Muhammad Ismail, father of Respondents No. 1 to 3 and assailing the vires of Mutation No. 462 dated 16.9.1987 attested in favour of Respondents No. 1 to 3 by their father i.e. Muhammad Ismail whereby the property owned by Muhammad Ismail was alienated by him in favour of his daughters by way of gift.

2. The suit was contested by Respondents No. 1 to 3. Respondents No. 4 & 5 were arrayed as proforma defendants. After casting necessary issues, lis was posted for evidence of petitioners for 30.5.2007. On 18.7.2008, evidence of petitioners was not in attendance resulting in its closure and dismissal of suit for want of evidence under Order XVII, Rule 3 of the Code of Civil Procedure, 1908. The said judgment and decree was called in question by preferring an appeal on 31.10.2008. Along with appeal, application under Section 5 of The Limitation Act, 1908 was made. While dismissing the application under Section 5 of The Limitation Act, the appeal preferred by present petitioners was dismissed being barred by time vide judgment dated 8.11.2008.

3. Heard.

Learned counsel for the petitioners maintained that the date i.e. 18,7.2008 was not fixed at the request of petitioners as is evident from interim order sheet because on i.e. 14.7.2008 adjourning the suit for 18.7.2008, the learned Presiding Officer was on leave and suit was adjourned by ministerial staff. Further maintained that since case was not adjourned at the request of present petitioners, therefore, penal provision of Order XVII, Rule 3 of the Code of Civil Procedure, 1908 was not attracted to the facts of the case. Making reference to the provision of Order XVII, Rule 5 of the Code of Civil Procedure, 1908, it was argued that since the learned Presiding officer was absent, therefore, the ministerial staff was required to hand over slip of paper specifying the next date fixed for the proceedings in the suit. Submitted that the said mandatory provision was not complied with and as such the order regarding closure of evidence and judgment and decree passed in pursuance of said order is legally not sustainable. Further maintained that the Petitioner No. 1 appeared before learned Civil Court on 28.6.2008 and Reader of the Court though adjourned the case to 14.7.2008 but due to misunderstanding he noted the next date as 14.10.2008 resulting in non-appearance of petitioners on 18.7.2008. submitted that affidavit of Advocate representing the petitioners is annexed. Learned counsel for the petitioners has placed reliance on "Nowsheri Khan vs. Said Ahmad Shah" (1983 SCMR 1092), "Haji Muhammad Ramzan Saifi Vs. Mian Abdul Majid and others" (PLD 1986 Supreme Court 129), "Kamran Co. and others vs. Messrs Modern Motors and another" (PLD 1990 Supreme Court 713) and "Mst. Nazima Batool alias Nazim Batool vs. Sabar Ali Shah" (2004 CLC 1175).

Questioning the legality of judgment of learned First Appellate Court, it was maintained that since the appeal could not be preferred within time due to sufficient cause, therefore, the time should have been extended while condoning the delay. Continuing his arguments, learned counsel for the petitioners maintained that learned First Appellate Court, could not appreciate the implication of Order XVII, Rule 3 of The Code of Civil Procedure, 1908. Submitted that the learned Civil Court as well as learned First Appellate Court while passing the impugned judgments and decrees failed to exercise jurisdiction vested in it.

Controverting the arguments, learned counsel for the Respondents No. 1 to 3 maintained that the petitioners were provided more than sufficient opportunities to produce evidence but their failure to produce evidence and that too without any justification resulted in closure of their evidence. Maintained that learned counsel for the petitioners was present at the time when the suit was adjourned for 18.7.2008 and as such the argument regarding misunderstanding of next date of hearing is mis-conceived and ill-founded. Submitted that the appeal preferred by the petitioners was hopelessly barred by time and as such no exception can be taken to the judgments impugned before this Court.

1. Perusal of record suggests that issues were cast by the learned trial Court on 27.3.2007 adjourning the lis for evidence of petitioners for 30.5.2007.

11 opportunities were granted to the petitioners for production of evidence barring those when the Advocates were observing strike and Presiding officer was on leave. Perusal of order dated 14.7.2008 suggests that on the said date Presiding Officer was on leave and Reader of the Court, adjourned the suit for 18.7.2008 when evidence of petitioners was not present leaving no option with the trial Court but to close the same and dismiss the suit for want of evidence. Though well settled proposition of law canvassed by the learned counsel for the petitioners regarding non-implication of penal provision of Order XVII, Rule 3 of the Code of Civil Procedure, 1908 in the attending circumstances can not be disputed and as held in the reports relied upon but nevertheless this fact by itself is not sufficient to set at naught the judgment of learned trial Court in view of the provision of Order XVII, Rule 1(3) of the Code of Civil Procedure, 1908 (Lahore High Court Amendment), according to which, where sufficient cause is not shown for the grant of an adjournment under sub-rule (1), the Court shall proceed with the suit forthwith. Text of the amendment made by Lahore High Court and Order XVII, Rule 3 of the Code of Civil Procedure, 1908 is entirely different. The expression "to whom time has been granted" has been used in Rule 3 of Order XVII but the said expression does not find mentioned in order XVII, Rule 1(3) of the Code (Lahore High Court Amendment), according to which where sufficient cause is not shown for the grant of an adjournment under sub-rule (1), the Court shall proceed with the suit forthwith. In view of the matter, though the provisions of Order XVII, Rule (3) of The Code of Civil Procedure, 1908 was not attracted to the facts of the case but evidence could have been closed in exercise of powers under sub-rule (3) of rule (1) (Lahore High Court Amendment) if sufficient cause was not shown. Reliance is placed upon "The Administrator, Lahore Municipal Corporation vs. Abdul Hamid" (1987 Law Notes (Lahore) 400), "M/s. A.C.E Enterprises vs. Additional District Judge Lahore and others" (1987 Law Notes (S.C.) 530) and "Ghulam Qadir alias Qadir Bakhsh vs. Haji Muhammad Suleman and 6 others" (2002 Civil Law Cases 1111). Despite availing 11 opportunities, petitioners failed to produce evidence. No justification was put forward at the instance of counsel for the petitioners in attendance seeking indulgence of the Court and as such order regarding closure of evidence could be deemed to be an order under Order XVII, Rule (1)(3) of Code (Lahore High Court Amendment).

Mention of provision of law in the order passed by trial Court though not applicable by itself is not sufficient to grant premium to the petitioners. The argument as such canvassed by the learned counsel for petitioners though with vehemence can not advance plea of petitioners. It is to be noted that plea has been taken at the instance of petitioners that on 28.6.2008, the Petitioner No. 1 appeared before learned trial Court and Reader of the Court adjourned the suit for 14.7. 2008 but the Petitioner No. 1 noted the next date as 14.10.2008 due to misunderstanding. In order to substantiate the said ground, an affidavit sworn to by Mr. Maqsood Ahmed Bhatti, Advocate has been appended with the revision petition. The contents of affidavit sworn to by Advocate suggests that Petitioner No. 1 due to misconception intimated the next date of haring as 14.10.2008, which was accordingly noted in the diary. The contents of affidavit further suggest that counsel was not present on 18.7.2008 in the Court when the suit was dismissed for want of evidence. The reason assigned and argument canvassed on this score cannot advance plea of petitioners. According to Article 129(e) of the Qanun-e-Shahadat Order, 1984, presumption of correctness is in favour of judicial proceedings. Credibility of judicial proceedings was a moot point before the Apex Court in "Fayyaz Hussain vs. Akbar Hussain and others" (2004 SCMR 964) in which it has been held that presumption of correctness is always in favour of judicial proceedings and credibility is attached to the proceedings before a judicial forum. It was further held that strong and un-impeachable evidence is required to rebut the presumption. Reference may also be made to "Chiragh Din vs. Mumtaz Ali and another" (2009 PCr.LJ 126). It is to be noted that perusal of orders dated 28.6.2008, 14.7.2008 and 18.7.2008 suggest that counsel for the parties were present. Affidavit sworn to by counsel statedly representing the petitioners before trial Court that he was not in attendance on 18.07.2008, as such can not advance the plea of petitioners in view of rule of law expounded in "Fayyaz Hussain" in which an affidavit was sworn to by the counsel and while disbelieving it, it was held that giving preference to affidavit of counsel over judicial proceedings would leave to a large number of complications. Argument canvassed with reference to non-compliance of provision of Order XVII, Rule 5 of the Code of Civil Procedure, 1908 also can not advance plea of petitioners for the simple reason that on 18.7.2008, counsel for parties were marked present. Wisdom and object behind the said provision of law is to intimate the party regarding next date of hearing in absence of Presiding officer. Since learned counsel for the petitioners was present on 18.07.2008 attracting penal consequences therefore omission if any, will not advance plea of petitioners.

1. The impugned judgment and decree was drawn up on 18.7.2008 while the petitioners preferred the appeal on 31.10.2008. According to Article 152 of the first schedule of the Limitation Act, appeal can be preferred within thirty days from the date of decree or order before District Court. Since the judgment and decree was made on 18.7.2008, therefore time shall be reckoned from 19.7.2008, excluding the day on which judgment and decree was drawn up and as such the period of thirty days expired on 16.8.2008. Benefit of summer vacations, even if given, required the petitioners to prefer the appeal against the judgment and decree on the first day of September 2008, the day when the Courts re-opened. It is to be noted that petitioners made application for obtaining certified copies on 13.10.2008, as referred to by the learned 1st appellate Court when admittedly the period of 30 days was expired. Admittedly, the appeal preferred by present petitioners was barred by time. Though the petitioners made an application under Section 5 of the Limitation Act for condonation of delay but the reason assigned in Para 2 of the said application can not be said to be a "sufficient cause" within the meaning of Section 5 of the Limitation Act. Even otherwise, petitioners applied for certified copies of judgment and decree of trial Court on 13.10.2008 after expiry of period of 3 months. Ground agitated regarding mis-conception of next date of hearing has been dealt with finding it un-tenable. Argument canvassed at the instance of petitioners that no period of limitation is prescribed in order to assail the vires of void order though may not be questioned but said proposition of law cannot advance the plea of petitioners in view of discussion made above as the judgments and decrees can not be said to be "void".

2. Revisional jurisdiction can be exercised in case of non-assumption, illegal assumption or exercise of jurisdiction illegally or with material irregularity.

3. Pursuant to above discussion one can not point out any jurisdictional defect within meaning of Section 115 of the Code of Civil Procedure, 1908 in the impugned judgments and decrees. In view of above state of facts and law, revision petition being devoid of force is hereby dismissed.

4. The petitioners deposited security to the tune of Rs. 3000/- Vide order dated 27.2.2009 with Deputy Registrar (J) of this Court. Since the revision petition has been dismissed having no merits, therefore, Respondents No. 1 to 3 are entitled to withdraw the same as costs deposited in compliance of order dated 27.02.2009.

(R.A.) Petition dismissed

PLJ 2012 Lahore 314

Present: Mehmood Maqbool Bajwa, J.

AHMAD YAR--Petitioner

versus

GHULAM ABBAS etc.--Respondents

C.R. No. 3520 of 2010, heard on 15.11.2011.

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

----S. 115--Civil revision--Application for amendment of written statement was allowed--Challenge to--Question of--Whether proposed amendment will change the stance of respondents or not--Falsity of plea of possession prior and after 1985 cannot be taken into consideration as veracity of falsity of plea to be inserted in pleading was not to be considered--Validity--As such proposed amendment, even if presumed to be raising new plea, could not be declined. [P. 317] A

Revisional Jurisdiction--

----Revisional jurisdiction can be exercised in case of non-assumption, illegal assumption or exercise of jurisdiction illegality or with material irregularity. [P. 317] B

Mian Muhammad Ismail Thahim, Advocate for Petitioner.

Malik Muhammad Akram Awan, Avocate for Respondents.

Date of hearing: 15.11.2011.

Judgment

This judgment shall also dispose of connected Revision Petition No. 3595 of 2010 titled "Sultan etc. versus Ahmad Yar etc." assailing the vires of order dated 29.7.2010 recorded by learned Civil Judge, 1st Class, Sargodha, whereby the application for amendment of written statement made by Respondents No. 1 to 20 was allowed in the suit for possession through specific performance instituted by Ahmad Yar, present petitioner.

1. Necessary facts resulting in filing of both revision petitions are that present petitioner as well as Sultan son of Baza etc. (petitioners in the connected Civil Revision No. 3595 of 2010) instituted suits for specific performance of executory contracts of sale in respect of holding referred to in the respective plaints, which were contested by the adversary. The learned trial Court consolidated both the suits. The Petitioners No. 21 to 27, who are plaintiffs in the suit titled Sultan etc. Vs. Ahmad Yar etc. concluded their oral evidence when an application for amendment of written statement was made by Respondents No. 1 to 20 in order to incorporate the amendments mentioned in explicit form in Para 2 of application, which was accepted vide order impugned.

2. Heard.

Learned counsel for the petitioner while making reference to para 3 of the plaint in his suit and corresponding para of written statement on merits maintained that Respondents No. 1 to 20 did not controvert the contents of Para 3 of the plaint and contents of said para are totally silent with reference to factum of possession of any party regarding property subject matter of the suit but in view of evidence led by Respondents No. 21 to 27 conscious attempt was made by the Respondents No. 1 to 20 to add the amendment regarding possession of property. Further submitted that Respondents No. 1 to 20 also sought amendment in the written statement questioning the maintainability of suit instituted by present petitioner contending that on similar cause of action suit instituted previously was dismissed. Argued that proposed amendment being a question of fact was already in the knowledge of Respondents No. 1 to 20 and as such could have been conveniently mentioned in the written statement and omission on their part clearly suggest that proposed amendment is an after thought. Argued that proposed amendment will change the nature and complexion of written statement. In order to substantiate the arguments, learned counsel for the petitioner also made reference to the evidence produced by Respondents No. 21 to 27. Submitted that amendment which will change the nature and character of the suit can not be allowed to be made as held in "Syed Nazir Hussain Rizvi versus Zahoor Ahmad and another" (PLD 2005 Supreme Court 787), "Azad Jammu and Kashmir Council through Secretary and 3 others versus Messrs Paidar Builders (Pvt.) Ltd. through Engineer, Chief Executive" (PLD 2010 High Court (AJ&K) 12 and "Atlantic Steamers Supply Company versus M.V. Titisee and others" (PLD 1993 Supreme Court 88).

Learned counsel for the Respondents No. 21 to 27 (petitioners in the connected revision petition) adopted the similar arguments.

Defending the order impugned and repelling the arguments advanced by learned counsel for the petitioner as well as Respondents No. 21 to 27 (petitioners in connected revision petition), learned counsel for the Respondents No. 1 to 20 maintained that the proposed amendment will not change the nature and complexion of the written statement. Argued that the respondents just want to add the plea regarding the possessory rights in respect of property maintaining that Ahmad Yar (petitioner) and one Muhammad Ashraf are in possession of same as tenants since 1985 and prior to that same was in cultivating possession of the said respondents. Submitted that second objection to be inserted was regarding the maintainability of the suit instituted by Ahmad Yar in view of dismissal of his previous suit on similar cause of action.

Seeking help from the dictum laid down in "Mst. Sardar Begum versus Malik Khalid Mahmood and others" (1986 Civil Law Cases 2342), it was argued that the yardstick for the amendment of plaint and written statement is different and though the plaintiff could not be allowed to amend plaint so as to alter materially or substitute cause of action but in the written statement, adding new ground of defence or substituting or altering defence, would not raise same problem as adding, altering or substituting new cause of action. Referring to the dictum in "Ehsanullah Afridi versus Province of Sindh and others" (2009 YLR 321), it was argued that the amendment sought to be made will not change the complexion of written statement and as such was rightly allowed by learned trial Court.

1. Admittedly the proposed amendment mentioned in explicit form in Para 2 of written statements relates to factual controversy. Argument canvassed by learned counsel for the petitioner that since the proposed amendment relates to factual controversy and as such could have been mentioned in the written statement right from very beginning though may not be questioned but plea regarding dismissal of application for amendment in written statement on this score can not be endorsed in view of rule of law laid down in "Mst. Wazir Begum versus Mst. Sardar Begum and 7 others" (1979 CLC 72) in which while repelling argument advanced by the adversary on similar grounds, application for written statement was allowed by this Court. There is little cavil with the well expounded proposition of law that application for amendment in pleading can be allowed at any stage. Argument advanced by learned counsel for the petitioner on the strength of rule of law expounded in the reports relied upon is hardly subject to any exception that if the proposed amendment will change the nature and complexion of the case it will not be allowed. Question for consideration is whether the proposed amendment will change the stance of Respondents No. 1 to 20 or not. Though reference was made by the learned counsel for the petitioner to Para 3 of the plaint as well as written statement but nevertheless nothing was suggested at the instance of Respondents No. 1 to 20 with reference to the possession of any particular person. In view of the matter, stance of Respondents No. 1 to 20 regarding the possession prior to 1985 and after 1985 undeniably would not change the nature of defence taken by Respondents No. 1 to 20. Objection regarding maintainability of suit in view of dismissal of earlier suit on similar cause of action requires serious consideration and will also not ensue the result advanced by learned counsel for the petitioner and Respondents No. 21 to 27.

2. Argument regarding falsity of plea of possession prior and after 1985 can not be taken into consideration as veracity or falsity of plea to be inserted in the pleadings is not to be considered while deciding the moot point which can be scanned at appropriate stage after recording evidence.

3. Yardstick for grant of amendment in plaint and written statement is different as held by this Court in "Mst. Sardar Begum versus Malik Khalid Mahmood and others" (1986 Civil Law Cases 2342), in which it has been held at Page 2345 as follow:

"Where the defendants seek amendment, consideration that weigh with the Court in allowing amendments in the written statement are not to be covered by the same principle as amendment of a plaint. A plaintiff cannot be allowed to amend his plaint so as to alter materially or substitute cause of action or nature of his claim, but the same principle will not be applicable to the amendment of the defence or written statement. Adding a new ground of defence or substituting or altering a defence, does not raise the same problem as adding, altering or substituting a new cause of action. The Courts, therefore, are inclined to be more liberal in allowing amendment in defence than of the plaint."

I am in respectful agreement with the view expressed and as such proposed amendment, even if presumed to be raising new plea, could not be declined.

1. Revisional jurisdiction can be exercised in case of non-assumption, Illegal-assumption or exercise of jurisdiction illegally or with material irregularity.

Pursuant to above discussion, the petitioner and Respondents No. 21 to 27 failed to point out any such jurisdictional defect in the order assailed warranting no interference by this Court resulting in dismissal of both the revisions petitions but without any order as to costs.

(R.A.) Petition dismissed

PLJ 2012 Lahore 318 (DB) [Bahawalpur Bench Bahawalpur]

Present: Abdus Sattar Asghar and Amin-ud-Din Khan, JJ.

PRINCIPAL, SADIQ PUBLIC SCHOOL, BAHAWALPUR--Appellant

versus

DIRECTOR (M & I), EMPLOYEES OLD-AGE BENEFITS INSTITUTION, ZONAL OFFICE, GULGASHT COLONY, MULTAN and 3 others--Respondents

I.C.A. No. 93 of 2010 in W.P. No. 3499 of 2000/BWP, heard on 12.12.2011.

Employees Old-age Benefit Act, 1976--

----Ss. 2(e), 11, 33, 34 & 35--Constitution of Pakistan, 1973, Art. 199--Law Reforms Ordinance, 1972--S. 3--Intra Court Appeal--Constitutional jurisdiction of High Court could not be invoked--Remedy for filing a complaint before institution was provided u/S. 33 of Act, 1976--Registration of establishment--School was not running for profit or gain and cannot be included in definition of establishment or organization--Validity--Keeping in view the beneficial and remedial spirit of legislation under Act, 1976, appellant's school could not be excluded from purview of establishment or organization as defined in Act--Scheme of legislation in Act does not make benefits under Act dependent to availability or non-availability of benefits of like nature to employees of an establishment or organization falling within purview of the Act, therefore, by providing some other benefits to its teachers and employees the appellant school could not be absolved of liability to pay contribution under Act, 1976--In case of any question in such regard appellant school had got efficacious remedy u/Ss. 33 to 35 of Act, 1976 and thus could not invoke the Constitutional jurisdiction of High Court--Writ petition u/Art. 199 of Constitution was not maintainable--Intra Court Appeal was dismissed. [P. 321] B, C & D

PLD 1989 SC 128, rel.

Employees old-Age Benefit Act, 1976--

----Scope of--No cavil to fact that Employees Old-Age Benefit Act, as amended is beneficial legislation, aimed to give benefit to employees in their old age. [P. 320] A

Mr. Shabbir Ahmed Bhutta, Advocate for Appellant.

Mr. Muhammad Bilal Bhatti and Mr. Mumtaz Hussain Bazmi, Advocates for Respondents.

Date of hearing: 12.12.2011.

Judgment

Abdus Sattar Asghar, J.--Principal, Sadiq Public School Bahawalpur, the appellant, through this Intra-Court Appeal under Section 3 of the Law Reforms Ordinance, 1972 has impugned the order dated 31.5.2010 passed in Writ Petition No. 3499-2000/BWP by learned Single Judge in Chamber, whereby the said writ petition was disposed of with the following observations:

"In the light above, this writ petition is disposed of with the direction to the petitioner that he should avail alternate remedy under Section 33, 34 & 35 of the Employees Old-age Benefits Act 1976 and the ground raised by the petitioner in this writ petition along with others if any available be raised before the authorities under above Sections . However, if the petitioner approaches the concerned authority for redressal of his grievance in the large interest of justice the authority shall first decide the grievance of petitioner and then shall proceed for recovery of amount as shows in the impugned notice."

1. It is argued by learned counsel for the appellant that the appellant school does not fall within the purview of terms establishment' ororganizations' used in Section 2(e) of the Employees Old-Age Benefit Act, 1976 as amended, therefore, respondents have no lawful authority to register the appellant school under Section 11(3) of the Act and that impugned certificate of registration dated 14.3.2000 and subsequent letter dated 20.4.2000 as well as letter dated 28.6.2000 pertaining to assessment of Employees Old-Age Benefit contribution are against law and facts, without lawful authority and liable to set aside. He has added that since the appellant school does not fall within the purview of the Act, therefore, observation of learned. Single Judge in Chamber passed in the impugned order with regard to maintainability of the writ petition under Article 199 of the Constitution due to availability of alternate remedy under Section 33, 34 and 35 of the Act is against law and facts, and not tenable in the eye of law and liable to set aside.

2. It is resisted by learned counsel for the respondents with the arguments that appellant school falls within the mischief of Establishment' defined under Section 2(e) of the Act. It is further added by learned counsel for the respondents that in case of any question or dispute with regard to registration of anEstablishment' the remedy is provided under Section 33 of the Act by filing a complaint before the Institution established, under Sections 4 and 5 of the Act mentioned op.cit. Learned counsel for the respondents have further maintained that since the efficacious remedy under the Act is available to the appellant school, therefore, Constitutional jurisdiction of this Court under Article 199 cannot be invoked and thus impugned order does not suffer from any legal infirmity.

3. We have given patient hearing to learned counsel for the parties and gone through the record.

4. The term `Establishment' is defined in Section 2(e) of the Act, which is reproduced as under:--

"Establishment means:--

(i) an establishment to which the West Pakistan Shops and Establishments Ordinance, 1969 (West Pakistan Ordinance No. VIII of 1969), for the time being applies, and, notwithstanding anything contained in Section 5 thereof, includes clubs, hostels, organizations and messes, not maintained for profit or gain and establishments, including hospitals, for the treatment or care of sick, infirm, destitute or mentally unfit persons;"

1. Black's Law Dictionary (Sixth Education) defines the word Establishment' andOrganization' as under:--

Establishment:--An institution or place of business, with its fixtures and organized staff.

Organization:--As term is used in commercial law, includes a Corporation, Government or Governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, or any other legal or commercial entity.

1. Learned counsel for the appellant has argued that the appellant school is not running for profit or gain and therefore, cannot be included in the definition of establishment' or "organization' used in the Act. There is no cavil to the fact that Employees Old-Age Benefit Act 1976 as amended is a beneficial legislation, aimed to give benefit to employees in their old age. The wordincludes' used in the above quoted definition of establishment' as provided in the Act manifest the spirit of legislation to broaden application of the provisions of the Act even to those Establishments and Organizations working not for earning profit or gain. Needless to mention that the wordinclude' is generally used in interpretation of a clause to enlarge the meaning of words and phrases existing in the body of statute. The argument of learned counsel for the appellant is devoid of any force for the simple reason that clubs, hostels and messes included in the definition of the establishment' given in the Act generally do not work for profit or gain. Therefore, keeping in view the beneficial and remedial spirit of the legislation under the Act, the appellant school cannot be excluded from the purview ofestablishment' or `organizations' as defined in the Act.

2. Learned counsel for the appellant has also laid much emphasis on his Argument that the appellant school is giving numerous benefits to its employees including, pension etc. In this regard suffice to say that scheme of legislation in the Act does not make the benefits under the Act dependent to availability or non-availability of benefits of the like nature to the employees of an establishment' ororganization' falling within the purview of the Act, therefore, by providing some other benefits to its teachers and employees the appellant school cannot be absolved of the liability to pay the contribution under the Act. Reliance is made upon Don Basco High School Vs. The Assistant Director, E.O.B.I. and others (PLD 1989 Supreme Court 128).

3. For the forgoing discussion and reasons we are of the considered view that appellant school falls within the mischief of the Act. Therefore, in case of any question or dispute in this regard appellant school has got efficacious remedy under Sections 33 to 35 of the Act ibid and thus cannot invoke the Constitutional jurisdiction of this Court. The Writ Petition under Article 199 of the Constitution, therefore, is not maintainable.

4. As a sequel to the above we do not find any legal infirmity in the order dated 31.5.2010 passed by learned Single Judge in Chamber. This I.C.A. having no merit is hereby dismissed.

(R.A.) I.C.A. dismissed

PLJ 2012 Lahore 321 [Rawalpindi Bench Rawalpindi]

Present: Ijaz Ahmad, J.

M/s. COCA-COLA BEVERAGES--Petitioner

versus

CANTONMENT BOARD CHAKLALA, RAWALPINDI etc.--Respondents

W.P. No. 2192 of 2007, decided on 15.7.2011.

Cantonment Act, 1924 (II of 1924)--

----S. 60--Punjab Local Government Ordinance, 2001, S. 116--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Fixation of advertisement charges--Challenge imposition of fee by Cantonment Board on various categories of sign boards installed on front of shops for advertisement of commercial activities and collection of same by Board from petitioner through contractor--Imposition could only be effected after notification in official gazette--Power to levy tax--Question of--Whether tax or fee can be imposed on use of same space borrowed by petitioner from shopkeepers--Validity--Board had neither provided any services to petitioner for displaying the name of its product or its logo on shops of individuals--Money demanded could not be termed as fee--Imposition of tax could not be done without satisfying pre-conditions of drawing of proposals fixation of liability, determination of rates, invitation of objections and publication of the notification--Imposition of tax fee without satisfying preconditions for imposition of tax, without providing any corresponding service or facility, taxes being not prevalent in collateral local councils and issuance of the notices on account of being issued on behalf of contractor were declared illegal, ineffective on rights of petitioner--Petitions were accepted. [Pp. 322, 325 & 326] A, B & C

2010 YLR 2543, ref.

Mr. Mustafa Ramday, Advocate for Petitioner.

Mirza Viqas Rauf & Mr. Waqar-ul-Haq Sheikh, Advocates for Respondents.

Date of hearing: 22.6.2011.

Order

This order will decide W.Ps. No. 2192/2007 (instant), 1728/2010, 4430/2010 & 1346/2011, instituted by the same petitioner challenging the imposition of fee/charges by the Chaklala Cantonment Board Chaklala, and Cantonment Board Wah Cantt., on various categories of sign Boards installed on the front of the shops/offices for advertisement of commercial activities and collection of the same by the Board from the petitioner through a contractor.

1. A demand bill for an amount of Rs. 74520/- dated 10.04.2007, issued by the Chaklala Cantonment Board Chaklala for the period commencing 01.07.2006 to 30.06.2007 is the subject matter of W.P.No. 7192/2007.

A notice dated 23.02.2010 issued by Cantonment Board Chaklala Cantt., demanding the amount of Rs. 22,89,916/- is the subject matter of W.P.No. 1728/2010.

Fixation of advertisement charges through reference CBR No. 10 dated 20.08.2009 by the respondent Cantonment Board Chaklala is the subject matter of W.P. No. 4430/2010.

A notice dated 16.04.2011 issued by the Cantonment Board Wah Cantt, requiring the petitioner to pay Rs. 8,17,500/- as advertisement charges on account of various advertisements displayed on the face of various commercial concerns is the subject matter of the W.P.No. 1346/2011.

1. In all the petitions comments were sought from the respondents, the same were submitted in the first three petitions. The learned counsel for the respondents relies on those comments for W.P.No. 1346/2011 as well. The parties are ready to advance their arguments. The proceedings will be treated as one in the notice cases.

2. It is contended by the learned counsel for the petitioners that the petitioner a public limited company, is one of the leading manufacturers and distributors of the aerated Beverages; that the notice and resolution requiring the petitioner to pay the advertisement charges/fees on various categories of sign Boards is violative of the Provisions of the Cantonment Act, 1924 and the Collection of the same through a contractor is not warranted by law. He argues that under Section 60 of the Cantonment Act. 1924, the Cantonment Board may impose only those taxes with the previous sanction of the Central Government which may be under any enactment imposed in any Municipality of the Province concerned; that under the same Section, the imposition could only be effected after its Notification in the official gazette which is lacking in the instant case. Places reliance on "1991 CLC 354 titled Glaxo Laboratories (Pakistan) Limited Versus. Union Council, Dulu Khurd through Chairman and 4 others, "PLD 1978 Supreme Court 190" titled Muhammad Suleman etc. Versus Abdul Ghani. "PLD 1977 Supreme Court 639" titled Muhammad Ishaq Versus Chief Administrator of Auqaf, Punjab, and "PLD 1998 Peshawar 26" titled Qarshi Industries (Private) Ltd. through Deputy Manager (Admin) Versus Government of N.W.F.P through Secretary Local Government and Rural Development Department Peshawar and 10 others, that, no such tax is permissible under the prevalent Punjab Local Government Ordinance, 2001, therefore, cannot be imposed and collected by the respondents. Places reliance on "PLD 2003 Lahore 730" titled Mst. Nargis Moeen and another Versus Government of Pakistan through Secretary Defence, Islamabad and another, "2006 CLC 1674" titled Station Commander, Chaklala Cantt. Versus Col. (R) Muhammad Abbas Malik, "2007 YLR 1547" titled Cantonment Board, Lahore Cantt. through Executive Officer and 2 others Versus Mst. Sultan Jahan, "2007 YLR 1681" titled Mst. Sultan Jahan Versus Cantonment Board, Lahore Cantt., through Executive Officer and 2 others, that the imposition of tax has to be preceded by the mechanism and procedure provided under Sections 61, 62 and 63 of the Act, which postulates the drawing of tax proposal, fixation of rates and invitations of objections etc. This requirement of law which is sine qua none for imposition of tax has not been satisfied; that a tax could only be collected for the facilities provided by the State or its Departments or a local authority and a fee could only be collected for the services rendered on the principle of Quid pro quo, which is not the case in hand. Places reliance on 1999 PLC (C.S) 1173" titled Azad Government of the State of Jammu and Kashmir through Chief Secretary Azad Kashmir Government, Civil Secretariat Muzaffarabad Versus Haji Mir Muhammad Naseer and others, and W.P.No. 3222 of 2004; that even if the tax could be imposed and collected, the same could not be done through a contractor as letting out such rights to a contractor is not permissible under law. Places reliance on "2004 YLR 366" titled Messers Shamim & Co, Versus Tehsil Municipal Administration, Multan City through Nazim and 2 others, and "2005 MLD 1520" titled Arbab Contracting & Co. through Managing Partner Versus Tehsil Municipal Administration Multan and 2 others. It is further argued that no tax could be charged on the bill boards. Relies on "2008 YLR 1889" titled Shabbir Hussain Versus Tehsil Municipal Administration Rahimyar Khan through Nazim and 3 others.

3. On the other hand, it is contended by the learned counsel appearing on behalf of the Board that the Cantonment Board had under Section 60 of the Cantonments Act, 1924, power for imposition of the taxes and fees as the contemporary local council have under Section 116 of the Local Government Ordinance, 2001; that the imposition of the taxes was notified in accordance with law and that the technicalities Should not be allowed to defeat the ends of justice. He relies on "PLD 2003 Karachi 495" titled Clifton and Defence Traders Welfare Association through General Secretary Versus President, Clifton Cantonment Board, Karachi and 4 others, and "2009 MLD 628" tilled Human Safety Foundation Versus Govt. of Sindh and 11 others.

4. I have heard the learned counsel for the parties and have also gone through the record.

5. The language of notices in all the cases reveals that the respondents have sought the payment of fees for the sign boards installed on the front of the shops. The petitioners have been using the shutter gates or the sign boards of the shops for displaying the name of their products or their logo. It has no relation with any advertisement made through the hoarding boards, bill boards or any other mode of advertisement. Under Section 116 of the Punjab Local Government Ordinance, 2001, read with Item No. 6 of Part 3 of the Second schedule appended to it, the Tehsil Municipal Administration has the power to levy the tax or fee on advertisement other than on radio, television and bill boards. Under Section 60 of the Cantonments Act, 1924, only those taxes could be imposed that are permitted to be imposed under any enactment in any Municipality in the Province. The question is whether a tax or fee can be imposed on the use of some space borrowed by the petitioner from the shopkeepers. To resolve this issue, the terms fee' andtaxes' have to be defined and a distinction has to be drawn inter se the two definitions. Fee is meant to defray the cost of particular services rendered to a particular individual on the principle of Quid pro quo. Tax is levied as a part of common burden. It is imposed for public purpose. The Board has neither provided any services to the petitioner for displaying the name of its product or its logo on the shops of individuals. Thus, the money demanded by the respondents cannot be termed as a fee. As far the imposition of tax is concerned, the same cannot be done without satisfying the pre-conditions of drawing of proposals fixation of liability, determination of the rates, invitation of objections and publication of the notification. The imposition may take effect only from the day of its notification. The pre-conditions as laid down under Sections 61 to 63 of the Cantonments Act, 1924, having not been satisfied, the imposition, the demand and the collection of taxes by the respondents would be a sheer illegality and an activity devoid of any sanction of law. In my view, I seek supports from the judgments cited as "1999 PLC (C.S) 1173" titled Azad Government of the State of Jammu and Kashmir through Chief Secretary Azad Kashmir Government, Civil Secretariat Muzaffarabad Versus Haji Mir Muhammad Naseer and others, "2008 YLR 1889" titled Shabbir Hussain Versus Tehsil Municipal Administration Rahimyar Khan through Nazim and 3 others, and "1991 CLC 354" titled Glaxo Laboratories (Pakistan) Limited Versus Union Council, Dulu Khurd through Chairman and 4 others. The judgment "2009 MLD 628" cited by the learned counsel for the respondents does not lay down any ratio whether such tax could be imposed or not. In that case the Court had directed the authorities concerned to take preventive measures to avoid the casualties in future, In the judgment "PLD 2003 Karachi 495" only the importance of advertisement in the world of commerce was appreciated but the imposition of tax was not the moot point. These judgments render little support to the stance taken by the respondents. No rule framed under the Act ibid provides for the collection of the fee for the use of borrowed space of the sign boards of the shops on an internal arrangement between the borrower and the "2007 CLC 35" titled Messers Ace Quality (Pvt.) Limited through Chief Executive Versus Tehsil Municipal Administration, Multan Saddar through Nazim and 3 others. The petitioners have also challenged the authority of an individual claiming to be a contractor to collect the fee and taxes. Section 112 of the above Act, provides the competence for entering into a contract. It reads as follows:

"Section 112: Contracts by whom to be executed.--Subject to the provisions of this Chapter, ever [Board] shall be competent to enter into and perform any contract necessary for the purposes of this Act."

The contracts permissible under the section are those which are necessary for the "Purpose of the Act". The Purpose includes the duties and discretionary functions of the Board which are laid down under Sections 116 and 117 of the Act. The collection of the fees and tax is not one of the purposes of the Act. The collection of fees and taxes could be the means for ensuring the accomplishment of the purposes of this Act but not by any stretch of perception a Purpose itself. Thus the fees and taxes could not be collected through a contractor. The imposition and collection of the amount in question through the impugned notice is an illegality in itself. Demanding the same through a contractor adds an element of contempt and aggression to it. I rely on the judgment dated 31.05.2010 passed in W.P. No. 2078/2010 titled "Muhammad Munir Abdullah Versus T.M.A. etc." reported as "2010 YLR 2543".

1. For the reasons discussed above, the imposition of tax/fee by the respondents without satisfying the preconditions for imposition of tax, without providing any corresponding service or facility, the said taxes being not prevalent in the collateral local councils and the issuance of the impugned notices on account of being issued on behalf of a contractor are declared illegal, ineffective on the rights of the petitioners and is set-aside. These petitions stand, accepted.

(R.A.) Petitions accepted

PLJ 2012 Lahore 326

Present: Sagheer Ahmad Qadri, J.

ABDUL WAHAB and 3 others--Petitioners

versus

ADDITIONAL SESSIONS JUDGE, OKARA and 4 others--Respondents

W.P. No. 18528 of 2011, heard on 23.1.2012.

Illegal Dispossession Act, 2005 (IX of 2005)--

----Ss. 3 & 5--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Possession on basis of Iqrar Nama Patadari--Sub-sequently illegally possessed--Addl. Sessions Judge had no jurisdiction to pass order for restoration of possession--Validity--No proceedings under Illegal Dispossession Act, were pending before ASJ, hence any subsequent order passed by ASJ for restoration of possession on basis of violation of any of terms and conditions of lease agreement compromise cannot vest him with jurisdiction to pass any order subsequently, as after passing the order, trial Court had become functus officio--No provision exists under Act, 2005 for restoration of possession of property subsequent to disposal of complaint hence the order passed by trial Court was illegal, without any jurisdiction hence was declared as illegal and ineffective upon rights of petitioner--Petition was allowed. [Pp. 330 & 331] A & B

2011 YLR 1549 & 2011 MLD 621, ref.

Rao Abid Mushtaq, Advocate for Petitioners.

Mr. Munir Ahmad Bhatti and Shahid Mobeen, Addl. A.G., Advocate for Respondents.

Date of hearing: 23.1.2012.

Judgment

Respondent No. 4/Rao Sohail Akhtar filed an application under Section 3 read with Section 5 of the Illegal Dispossession Act, 2005 on 1.9.2008 against the petitioner Abdul Wahab and three others mentioning the facts that he was owner in respect of 63 Kanals 7 marlas of land, detail of which is given in Para 1 of the complaint. It was agitated in the complaint that petitioners were in possession of the above mentioned land on the basis of Iqrar Nama Patadari for the period commencing from 30.6.2006 to 30.6.2008; that on 30.6.2008 the petitioners handed over the possession of the land to Respondent No. 4, however, subsequently they illegally possessed the land. Later on, on 16.7.2008 when Respondent No. 4 went to the land in question he found some unknown persons present there armed with deadly weapons and they threatened him for dire consequences, thereafter, the complainant lodged FIR. No. 498 of 2008 under Sections 447, 148, 149 PPC read with Section 506 PPC against the petitioners, who got themselves bailed out from the Court of learned Additional Sessions Judge. It was prayed that action under the Illegal Dispossession Act be initiated against the petitioners and they be penalized accordingly and the possession of the land be restored to him.

1. The complaint remained on pending in the Court of learned Additional Sessions Judge and later on vide order dated 18.6.2009 the matter was disposed of having been compromised. The operative part of the order is hereby reproduced:--

"A compromise has been effected between the parties before the Court in the presence of learned Counsel for the complainant. It has been agreed that possession of the impugned land shall be considered that of the complainant through respondents as lessee. The lease of the impugned property is extended till 30.6.2011 and for the previous year starting from 30.6.2008 to coming 30th June, 2009 the per acre lease money has been fixed as Rs. 22,000/- (Twenty two thousand) and from 1st July, 2009 to onward till the end of lease period till 30.6.2011 the amount of lease money is fixed Rs. 33,000/- (Thirty three thousand) per acre. It has been settled between the parties that lease amount shall be paid through cheques and those cheques shall be issued for 30.7,2009 and 30.8.2009. Likewise the lease amount for the next lease period starting from 30.6.2009 to 30.6.2011, cheque shall be issued, each of the amount of Rs. 1,72,000/- (One Lac Seventy two thousand). In this way, in the presence of Court the respondent Rao Wahab has issued Cheque No. S.25218835 to the amount of Rs. 16,000/-(Sixteen thousand) in the name of Sohail Akhtar. Rao Wahab has also Issued Cheque No. S.25218836 for Rs. 1,72,000/- (One Lac Seventy two thousand) in favour of Sohail Akhtar for 30.8.2009. Moreover three more cheques for next lease period Nos. S.25218832, S.2521883 S.25218833 dated 30.6.2010, 30.06.2011 and 30.12.2010 respectively have been given to the complainant in the presence of learned counsel for the complainant. On completion of period of lease on 30.6.2011 the vacant possession of the impugned land shall be delivered to the complainant by the respondents on 1st July, 2011. The complainant and his Counsel have signed on the margin of the order sheet as a token of receiving five cheques. In case any of the cheque is dishonoured the complainant shall be entitled to immediate return of the possession. Signatures of the respondents have also been obtained on the margin of the order sheet.

In view of agreement made above and delivery of cheques to the complainant, the complaint is disposed of File be consigned to the record room after its completion."

Subsequently, Respondent No. 4 on 2.7.2011 moved a miscellaneous application before the learned Additional Sessions Judge wherein he after giving the facts mentioned above in Para 5 of the application recorded that vide compromise dated 18.6.2009 cheque Bearing No. S.25218834 dated 30.6.2011 worth Rs. 1,72,000/- was presented in the concerned bank but it was dishonoured hence the petitioners have violated the terms & conditions of the agreement and prayed that while allowing the application possession of the property/land in dispute be restored to him. On this application the learned Additional Sessions Judge summoned the petitioners and vide impugned order dated 9.8.2011 while allowing the application directed the petitioners to handover the possession of the land to Respondent No. 4 failing which it was further directed that police aid be also provided to Respondent No. 4 for implementation of the above mentioned order. Feeling aggrieved the petitioners have preferred this writ petition before this Court.

1. Learned counsel for the petitioners contends that impugned order dated 9.8.2011 is illegal, against the law and facts of the case and has been passed totally in disregard of the facts and circumstances of the case; that learned Additional Sessions Judge while passing the impugned order relied on 2011 YLR 1549 and 2011 MLD 621 but both of the judgments cited above are not related for the purposes of disposing of this controversy; that no complaint under Illegal Dispossession Act, 2005 was pending before the learned Additional Sessions Judge/Respondent No. 1, hence, any order for restoration of the possession in these circumstances could have not been passed; that Respondent No. 4 was claiming his ownership in respect of the disputed land which has already been challenged in a civil suit which is still pending before the concerned Civil Court. Contends that as the petitioners were in possession of the land in dispute on the basis of a lease agreement hence their possession could not be termed as illegal and as no such proceedings are pending, therefore, the learned Additional Sessions Judge/Respondent No. 1 did not have any jurisdiction to pass the impugned order for restoration of the possession to Respondent No. 4. Prayed that the impugned order passed by learned Additional Sessions Judge be declared as illegal, having been passed without any lawful authority and jurisdiction exercised by him is also required to be declared totally non-vested to him.

2. On the other hand, learned counsel for Respondent No. 4 has vehemently opposed this petition while referring the order dated 18.6.2009 wherein during the pendency of the petition under Section 3 read with Section 5 of the Illegal Dispossession Act, 2005 the petitioners and Respondent No. 4 entered into a compromise and they were allowed to continue the possession as lessee. Learned counsel referred that if the terms & conditions of the agreement are seen it has specifically been recorded by the learned Additional Sessions Judge that in case any of the cheques delivered to Respondent No. 4 is dishonoured, the Complainant/Respondent No. 4 shall be entitled to get returned the possession of the disputed property. Learned counsel argued that earlier in such like situation when one of the cheques was dishonoured, application moved before the learned Additional Sessions Judge/ Respondent No. 1 and the petitioners paid Rs. 1,72,000/- in cash to him. Contends that as earlier order was passed before a Court of competent jurisdiction whereby the parties entered into a compromise, therefore, in case of violation that order can be implemented by the said learned Court hence the impugned order passed by the learned trial Court is perfectly lawful and does not call for interference by this Court in exercise of writ jurisdiction.

3. Learned AAG, however, argued that as no proceedings under Sections 3, 4 read with Sections 7 & 8 of the Illegal Dispossession Act, 2005 were pending before the learned Additional Sessions Judge/ Respondent No. 1 and earlier while disposing of the complaint under Sections 3 & 5 of the Act, ibid the learned Additional Sessions Judge did not pass any order declaring the possession of petitioners as illegal and parties reached at a compromise whereby the possession of petitioners was taken as lessee, therefore, the impugned order passed by learned trial Court/Respondent No. 1 is illegal and without any justification rather without any jurisdiction. However, while raising these arguments he supported the arguments advanced by learned counsel for the petitioners.

4. I have heard the arguments addressed by learned counsel for the parties and have gone through the record.

5. Admittedly, the earlier controversy pending before the learned Additional Sessions Judge/Respondent No. 1 ended on 18.6.2009, which order has already been reproduced in the earlier part of this order. If the said order is seen, in first part of the compromise recorded by the learned Additional Sessions Judge the possession of the petitioners has specifically been accepted by Respondent No. 4 as lessee. It is admitted fact that previously petitioners were in possession of the land in question as lessee/patadar which remained effective till 30.6.2008. In view of the agreement/compromise dated 18.6.2009 petitioners' possession over the disputed portion of land remained as lessee lawful and not as illegal or that of trespasser, however, certain conditions were fixed for the payment of the lease amount and for securing the payment some cheques were issued by the petitioners in favour of Respondent No. 4. It is admitted fact that through out the impugned order dated 18.6.2009 the learned Additional Sessions Judge never termed the possession of the petitioners over the disputed portion of land as illegal. The complaint under Section 3 read with Section 5 of the Illegal Dispossession Act, 2005 earlier filed hence was disposed of vide order dated 18.6.2009, therefore, subsequent to that no proceedings under the Act, ibid were pending before the learned Additional Sessions Judge, hence, any subsequent order passed by learned Additional Sessions Judge for the restoration of the possession on the basis of violation of any of the terms & conditions of the lease agreement/ compromise cannot vest him with jurisdiction to pass any order subsequently, as after passing the order dated 18.6.2009, the learned trial Judge has become functus officio.

6. If the provisions of Illegal Dispossession Act, 2005 are seen, under Section 3 of the Act it is provided:--

"Prevention of illegal possession of property, etc.--(1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owner or occupier of such property.

(2) Whoever contravenes the provisions of the sub-section (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provisions of Section 544 of the Code."

Under Section 4 of the Act, ibid, a Court can take the cognizance of the offence and subsequently under Section 5 the procedure for investigation is provided. Under Section 6 the Court can attach the property. Section 7 provides eviction and mode of recovery as an interim relief during the pendency of the trial. If Section 7 is seen its provisions only can be invoked during the pendency of a complaint before a Court of competent jurisdiction. Under Section 8 it is provided that at the time of the conclusion of the trial the Court may direct for the delivery of the possession of the property to the owners etc. In the light of above referred provisions of the Illegal Dispossession Act, 2005 if the facts narrated are seen, the learned trial Court never declared the petitioners in illegal possession of the land in dispute nor any interim order under Section 7 during the pendency of the proceedings was passed and even at the time of disposing of the complaint no direction was passed under Section 8 for delivery of the possession. It was just an arrangement/ compromise between the parties i.e. petitioners and Respondent No. 4 wherein petitioners' possession was accepted by Respondent No. 4 as lessee and in order to secure the payment of the lease money a mode was agreed between the parties and for that purposes post dated cheques were issued. As no provision exists under the Illegal Dispossession Act, 2005 for restoration of the possession of the property in dispute subsequent to disposal of the complaint hence the impugned order passed by learned trial Court dated 9.8.2011 is illegal, without any jurisdiction hence is declared as illegal and ineffective upon the rights of the petitioners. The respondent, however, may initiate any other lawful action against the petitioners to recover the lease money or the possession over the property/land in dispute. Resultantly, instant writ petition is allowed, however, with no order as to costs.

(R.A.) Petition allowed

PLJ 2012 Lahore 332 [Bahawalpur Bench Bahawalpur]

Present: Abdus Sattar Asghar, J.

MUHAMMAD IMRAN--Petitioner

versus

JUDGE FAMILY COURT, BAHAWALPUR and another--Respondents

W.P. No. 6607 of 2011, decided on 1.12.2011.

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----Ss. 7(2) & 26--West Pakistan Family Courts Rules, 1965, R. 6--Constitution of Pakistan, 1973, Art. 199--Territorial jurisdiction of Court to try suit for recovery of dowry articles--Objection application was dismissed--Validity--Consequent upon insertion of proviso of S. 7(2) of Family Courts Act r/w. R. 6 of Family Courts Rules, 1965 irrespective of suit for dissolution of marriage and recovery of dower a wife can institute suit for recovery of dowry articles before a Family Court where she ordinarily resides--Objection with regard to territorial jurisdiction of the Court to try suit for recovery of dowry articles was devoid of any force--Petition was dismissed. [Pp. 333 & 334] A & B

PLD 2005 SC 22, rel.

Hafiz Munir Ahmed, Advocate for Petitioner.

Date of hearing: 1.12.2011.

Order

Muhammad Imran petitioner by invoking Constitutional jurisdiction of this Court under Article 199 has sought for setting aside of order dated 7.10.2011 passed by learned Judge Family Court, Bahawalpur whereby his application bearing objection regarding territorial jurisdiction of the Court to try the suit for recovery of dowry articles was dismissed.

1. It is explained by learned counsel for the petitioner that learned Judge Family Court Bahawalpur (Respondent No. 1) decreed the suit for dissolution of marriage in favour of Respondent No. 2 against the petitioner and dismissed the suit for recovery of maintenance allowance and that suit for recovery of dowry articles is pending adjudication. It is alleged that Respondent No. 2 belongs to Khanewal and marriage was also solemnized in District Khanewal; that in the pending suit for recovery of dowry articles petitioner raised an objection with regard to territorial jurisdiction of learned Judge Family Court Bahawalpur (Respondent No. 1), however, his application containing the said objection was dismissed vide impugned order dated 07.10.2011 against law and facts; that petitioner has no efficacious remedy except to invoke the Constitutional jurisdiction of this Court, hence, this petition for setting aside the impugned order.

2. I have given patient hearing to learned counsel for the petitioner and gone through the record.

3. At the outset I would like to reproduce the relevant provision of law and Rules on the subject as under:--

Second proviso of Section 7(2) of the West Pakistan Family Courts Act, 1964 reads below:--

"Provided that a plaint for dissolution of marriage may contain all claims relating to dowry, maintenance, dower, personal property and belongings of wife, custody of children and visitation rights of parents to meet their children."

Rule 6 of the West Pakistan Family Courts Rules 1965 reads below:--

"The Court which shall have jurisdiction to try a suit will be that within the local limits of which:--

(a) the cause of action wholly or in part has arisen, or

(b) where the parties reside or last resided together:

Provided that in suit for dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction."

1. It is pertinent to mention that above quoted proviso pf Section 7(2) of the Act ibid was added vide Ordinance, LV of 2002 dated 1.10.2002 whereas above cited Rule 6 of the Rules ibid were framed by the Government in exercise of the powers under Section 26 of the West Pakistan Family Courts Act 1964 and notified in the extra ordinarily gazette of West Pakistan on 02.11.1965. It is, therefore, obvious that consequent upon insertion of the aforementioned proviso of Section 7(2) of the West Pakistan Family Court Act, 1964 read with Rule, 6 of the West Pakistan Family Courts Rules, 1965 irrespective of the suit for dissolution of marriage and recovery of dower a wife can institute suit for recovery of her dowry articles before a Family Court where she ordinarily resides. Reliance is made upon Muhammad Iqbal through Special Attorney Faiz Sultan Vs. Parveen Iqbal (PLD 2005 SC 22).

2. Besides, petitioner himself has admitted that respondent's suit for dissolution of marriage and recovery of maintenance allowance lodges on the basis of same address was decided by the learned Judge Family Court Bahawalpur, which he did not object to, therefore, his latest objection with regard to territorial jurisdiction of same Court to try respondent's suit for recovery of dowry articles against him is devoid of any force. The learned Judge Family Court, therefore, has rightly turned down the petitioner's objection regarding territorial jurisdiction of Family Court at Bahawalpur while dismissing his objection petition through impugned order. I do not find any legal infirmity or unlawful exercise of jurisdiction by the learned Judge Family Court in passing the impugned order, therefore, petitioner has no case at all to invoke the Constitutional jurisdiction of this petition. This petition having no merit is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2012 Lahore 334

Present: Ijaz-ul-Ahsan, J.

ABID HUSSAIN SHAH and 28 others--Petitioners

versus

GOVERNMENT OF THE PUNJAB through Secretary Services and General Administration Department (Regulation Wing) Civil Secretrate, Lower Mall, Lahore and 3 others--Respondents

D. No. 80329 of 2011, decided on 22.9.2011.

High Court Order--

----R. 13--Payment of requisite Court fee--Office raised objection of requisite Court fee--One set of Court-fee where acts arise out of one action or one order--Question of maintainability of petition--Validity--Since all petitioners complain of single action and were employees of same department--Office objection was overruled for time being.

[P. 335] A

PLD 2007 Lah. 461.

Ch. Azhar Siddique Cheema, Advocate for Petitioners.

Date of hearing: 22.9.2011.

Order

OFFICE OBJECTION

The office has raised an objection that the present petition cannot be entertained for want of payment of the requisite Court-fee.

1. The learned counsel has referred to a judgment of this Court reported as PLD 2007 Lahore 461, in which it has been held that one set of Court fee is payable by several petitioners in cases where the impugned acts arise out of one action or one order. He has also referred to Rule 13 of the High Court Rules & Orders, which is reproduced as under:

"In cases where there are several appellants whose interest is joint, one fee is to be allowed unless otherwise ordered by the Court. Court has to direct to whom the fee be apportioned among several appellants in such proportion as it thinks fit."

1. In view of the foregoing, since all the petitioners complain of a single action and are employees of the same department, the office objection is overruled for the time being. Let the main case be listed for hearing on the judicial side.

(R.A.) Objection Overruled

PLJ 2012 Lahore 335 [Bahawalpur Bench Bahawalpur]

Present: Amin-ud-Din Khan, J.

ALLAH DIWAYA, etc.--Petitioners

versus

Mst. SUKHAN KHATOON, etc.--Respondents

C.R. No. 746 of 2001 and R.S.A. No. 5 of 2001, heard on 30.11.2011.

Superior Right of Pre-emption--

----Plaintiffs were bound to prove case of superior right of pre-emption qua vendees at three stages i.e. at time of alleged sale, at time of filing of suit and at the time of decree--Affirmative evidence--Validity--Neither anyone from plaintiffs nor any witness was produced in their affirmative evidence to prove superior right of pre-emption--It was a weak right till time of plaintiff proved his superior right of pre-emption and he could not get a decree for pre-emption if there was any loophole in evidence--Plaintiff as well as none of the witnesses appeared in affirmative evidence--Plaintiff had failed to prove their superior right of pre-emption qua vendee at three stages--Courts below had no adverse effect against rights on basis of the statement, no decree of pre-emption could be granted against her--Revision was dismissed. [Pp. 339 & 340] A, E & F

Statement of Compromise--

----Never admitted her statement of compromise as recorded by trial Court, one of co-defendants refused to thumb marked--Trial Court had not decreed suit on basis of that statement--No evidentiary value on basis of document--Validity--While decreeing the suit, trial Court was not competent to decree the suit on basis of alleged statement recorded by trial Court when alleged statement became disputed which was visible from proceedings of case--Courts below fell in error while relying upon alleged statement before trial Court--Plaintiff had failed to prove superior right of pre-emption against vendees, therefore, findings recorded by Courts below against vendees were set aside. [P. 339] B

Right of Appeal--

----Value of suit property--Jurisdiction--As right of appeal was substantive right which was to be determined from date of filing of lis--Right of filing of second appeal was available on jurisdictional value of Rs. 24000/- therefore, civil revision could not have been filed by petitioners who was party to litigation, had filed R.S.A.--When right of appeal was available to party, it could not file a civil revision and that on basis of jurisdictional value admitted between parties and suit was filed in year 1975, Right to file appeal was available with petitioners which they had not filed same--When right of filing of appeal was available with petitioners, civil revision was not competent. [P. 340] C & D

M/s. Mian Muhammad Bashir & Ch. Manzoor Ahmad, Advocates for Petitioners.

Mrs. Samina Qureshi, Advocate for Respondents.

Date of hearing: 30.11.2011.

Judgment

By this single judgment I intend to dispose of the above captioned civil revision and regular second appeal, as a common question of facts and law is involved in the impugned judgment and decree dated 14.9.2001 passed by the Addl. District Judge, Ahmadpur, East, District Bahawalpur.

1. Through the civil revision and regular second appeal, the judgment and decree dated 14.9.2001 passed by the Addl. District Judge, Ahmedpur East has been challenged, whereby the appeal filed by the judgments debtors was partially accepted and judgment and decree dated 19.10.1995 passed by the Civil Judge 1st Class, Ahmadpur East fully decreeing the suit, was modified.

2. The facts are that the petitioners of civil revision filed a suit to pre-empt the sale of land in favour of respondents through mutation No. 867 sanctioned on 18.12.1974 with regard to the suit land fully described in the head note of the plaint. The suit was filed on the basis that the plaintiffs are owner in the estate. The issues were framed on 26.4.1976. In the affirmative evidence the plaintiffs produced copy of jamabandi with regard to Khata No. 4/4 of Mouza Beet Ahmad for the year 1970-71 as Ex. P-1 and copy of Mutation No. 888 (Partt-Patwar) for gift sanctioned on 17.5.1974 by Budhan Khan s/o Ahmad Khan in favour of Ghulam Sarwar Khan, Allah Wasaya Khan, Ghulam Nabi Khan, Khan Muhammad and Ali Gohar (sons of Budhan Khan). Their counsel made a statement on 6.7.1977 that he will get recorded the statement of plaintiff in affirmative as well as rebuttal evidence after recording of evidence of the defendants. On 21.5.1979 the suit was fixed for the evidence of defendants. The record reveals that the statement of compromise of Mst. Sukhan was recorded but Defendant No. 5, namely, Ghulam Farid refused to thumb mark the alleged statement of compromise. The counsel who was appearing on behalf of the defendants, requested the Court that he be permitted to withdraw his power of attorney, as the defendants have shown no confidence upon him. The permission was granted and the counsel withdrew his power of attorney. The defendants were asked to produce their evidence on the same day but they failed, so their right to produce the evidence was closed and suit was decreed on the basis of available documentary evidence of the plaintiffs in shape of Ex. P-1 and Ex. P-2 on the record. The defendants filed an appeal which was dismissed by the First Appellate Court on 7.10.1979. The Regular Second Appeal No. 57 of 1979 was filed before this Court, which was accepted on 23.6.1993 and case was remanded to the trial Court with the direction to record the evidence and then decide the case on merits. After remand of case, the defendants produced their oral evidence in shape of DW-1 and DW-2 on 7.11.1993 and produced their documentary evidence from Ex. D-1 to Ex. D-8 on 17.5.1994 and from Ex. D-9 to Ex. D-11 on 30.7.1995. Thereafter the petitioners-plaintiffs got recorded the statement of PW-1 (Ghulam Muhammad) on 15.6.1995 and of PW-2 (Allah Bakhsh) on 5.10.1995. The plaintiffs further produced documentary evidence from Ex. P-3 to Ex. P-16. The trial Court vide judgment and decree dated 19.10.1995 decreed the suit holding therein that through Ex. D-11 Mst. Sahib Khatoon and Karam Khatton cannot befend the suit for pre-emption and that Mst. Sukhan has not rebutted her statement recorded on 21.5.1979. It was also held by the trial Court that Mst. Sukhan has admitted the right of pre-emption of plaintiffs.

Being aggrieved by the said judgment and decree, the appeal was filed before the First Appellate Court. Vide judgment and decree dated 14.9.2001 the First Appellate Court accepted the appeal to the extent of Mst. Sahib Khatton and Karam Khatton and dismissed the suit to their extent, whereas to the extent of Mst. Sukhan decree granted by the trial Court was maintained.

Now, the pre-emptors have filed civil revision mentioned above against the acceptance of appeal to the extent of Mst. Sahib Khatoon and Karam Khatoon, and Mst. Sukhan has filed Regular Second Appeal titled above.

1. Learned counsel for the petitioners-plaintiffs argued that against their superior right of pre-emption, the defendants have denied their right but have not asserted that on what basis they are having the right of pre-emption; that Ex. D-11 does not give any right to the defendants as this document has been prepared in violation of Para 7.30 and 7.44 of Land Record Manual, therefore, no rights can be claimed by the respondents-defendants Mst. Sahib Khatoon and Karam Khatoon through this documents, hence, Mst. Sukhan Khatoon also cannot defend the suit on the basis of rule of "Sinker" as she has joined with her in the impugned sale the two ladies who are having no right of pre-emption, therefore, they failed to rebut the superior right of pre-emption claimed by the petitioners-plaintiffs; that the decree granted by the trial Court be restored and the judgment and decree modified by the First Appellate Court dated 14.09.2001 be set aside.

2. On the other hand, learned counsel for the respondents in the civil revision as well as the appellant in the regular second appeal contended that the alleged statement of Mst. Sukhan recorded by the trial Court on 21.05.1979 relied by the First Appellate Court while modifying the decree, is against the law as the proceedings dated 21.05.1979 show that it is not proved on the record that whether this statement was recorded with the consent of Mst. Sukhan rather she has denied from the recording of her statement, therefore, the counsel who was represented the defendants including Mst. Sukhan withdraw his power-of-attorney and this statement if presumed to be of Mst. Sukhan was valueless, as after the remand the Courts were bound to decide the suit on the bass of available evidence and the decree against Mst. Sukhan could not have been passed on the basis of alleged statement dated 21.05.1979. It has been further contended that none of the parties to Ex. D-11 has challenged that document or rights inserted in the revenue record while making correction through Ex. D-11, therefore, the petitioners-plaintiffs have no right to challenged the validity of that document and insertion of right of Mst. Sahib Khatoon and Karam Khatoon in the revenue record.

3. I have heard the learned counsel for the parties at full length and also gone through the original record available with the Regular Second Appeal.

4. The plaintiffs were bound to prove their case of superior right of pre-emption qua the vendees at three stages i.e. at the time of alleged sale, at the time of filing of the suit and at the time of the decree. I have noticed that the petitioners-plaintiffs only produced Ex. P-1 and Ex. P-2 in their affirmative evidence. Neither anyone from the plaintiffs nor any witness was produced in their affirmative evidence to prove the superior right of pre-emption. Even otherwise, it is a weak right till the time the plaintiff proves his superior right of pre-emption and he cannot get a decree for pre-emption if there is any loophole in the evidence. The plaintiffs as well as none of their witnesses appeared in their affirmative evidence, therefore, the statements of witnesses as well as of the plaintiffs recorded after the close of evidence of the defendants-vendees cannot be read in their affirmative evidence. It can only be read in the rebuttal evidence. The Issue No. 1 was with regard to the superior right of pre-emption of the plaintiffs, the onus of which was on the plaintiffs. In the affirmative evidence only a Jamabandi for the year 1970-71 (Ex. P-1) is available that too with regard to Khata No. 4/4 of Mouza Beet Ahmad and further the Mutation No. 888 that too is a copy from the Partt-Partwar. The copy of the Mutation issued by the Patwari from the Partt-Patwar is not per se admissible and through this Mutation Ghulam Sarwar etc., sons of Budhan, have claimed to be the owner in the estate on the basis of this mutation. This mutation was got exhibited in the statement of counsel for the plaintiffs, even then this document has no evidentiary value and on the basis of this document the plaintiff cannot be granted any right.

5. I have further noticed that the First Appellate Court fell in error while relying upon the alleged statement of Mst. Sukhan got recorded on 21.05.1979. The proceedings of 21.05.1979 are on the file which clearly reflect that Mst. Sukhan never admitted her statement of compromise as recorded by the trial Court and further that Ghulam Farid, one of the co-defendants, refused to thumb-marked this statement. The counsel who was representing the defendants at that time withdrew his power-of-attorney with the permission of Court and even the Trial Court has not decreed the suit on the basis of the statement. While decreeing the suit vide judgment and decree dated 19.10.1995 the trial Court was not competent to decree the suit against Mst. Sukhan on the basis of her alleged statement recorded by the trial Court on 21.05.1979, when on the same day the alleged statement of Mst. Sukhan became disputed which is visible from the proceedings of the case. Further, Mst. Sukhan was not bound to appear again before the trial Court to rebut or deny from that statement. Therefore, both the Courts below fell in error while relying upon her alleged statement recorded on 21.05.1979 before the trial Court. The findings recorded by both the Courts below are not sustainable, as the plaintiffs failed to prove their superior right of pre-emption against the vendees, therefore, the findings on Issue No. 1 recorded by the Courts below against the vendees are set aside.

6. The petitioners have filed civil revision by mentioning the value of the suit property as Rs. 24000/ for the purpose of jurisdiction. Admittedly the suit was filed in the year 1975 and it is settled that as the right of appeal is substantive right which is to be determined from the date of filing of the lis. No doubt the right of filing of second appeal was available on the jurisdiction value of Rs. 24000/- in the year 1975, therefore, this civil revision could not have been filed by the petitioners when Mst. Sukhan who is also party to the litigation, has filed regular second appeal. Even today the petitioners have not bothered to pray for the conversion of this civil revision into the appeal. I am of the considered view that when the right of appeal is available to a party, it cannot file a civil revision, and that, on the basis of jurisdiction value admitted between the parties it was Rs. 24000/- and suit was filed in the year 1975, therefore, the right to file the appeal was available with the petitioners which they have not filed the same. When a right of filing of appeal as available with the petitioners, the civil revision was not competent.

7. So far as Ex. D-11 is concerned. I am not inclined to go into the technicalities as highlighted by the petitioners and noticed by the trial Court. If for the sake of argument this was a valid objection in the light of Para No. 7.30 and 7.44 of Land Record Manual, this was available to that parties to the said document or the person whose rights have been determined through this document. The plaintiffs have no right to challenge this document or its validity. The First Appellate Court rightly dismissed the suit to the extent of Mst. Sahib Khatoon and Karam Khatoon.

8. In the light of what has been discused above, the petitioners-plaintiffs failed to prove their superior right of pre-emption qua the vendees at three stages i.e. at the time of sale, at the time of filing of suit and at the time of decree. The statement of Mst. Sukhan got recorded on 21.05.1979 relied by the Courts below, has no adverse effect against the rights of Mst. Sukhan and on the basis of said statement no decree of pre-emption can be granted against her. In this view of the matter the civil revision is dismissed being incompetent as learned counsel for the petitioners failed to show any defect in the findings of First Appellate Court recorded against them. The Regular Second Appeal filed by Mst. Sukhan is allowed and the judgments and decrees of both the Courts below against the appellant are set aside. Resultantly, the suit filed by the petitioners-plaintiffs shall stand dismissed.

(R.A.) R.S.A. allowed

PLJ 2012 Lahore 341 [Rawalpindi Bench Rawalpindi]

Present: Sagheer Ahmad Qadri, J.

Mst. FARAH MEHNAZ etc.--Petitioners

versus

SAFEER HUSSAIN JAFFAR etc.--Respondents

W.P. No. 2442 of 2010, decided on 17.11.2011.

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

----S. 25--Constitution of Pakistan, 1973, Art. 199--Constitution petition--Custody of minor--Minor being daughter was more familiar with the mother--Mother's lap had not been yet blessed out her second nikah--Mother had contracted second nikah--Being natural guardian, father filed petition u/s. 25 of Act, 1890--Application was dismissed by Trial Court--Appeal filed by father was accepted and custody of minor was directed to be handed over to the father--Challenge to--Minor was kept alongwith her maternal grandparents--It was admitted fact that prior to that he never tried to visit the minor who was born in the house of her maternal grandfather i.e. parents of the petitioner--Conduct of father itself showed that he was not interested in custody for welfare of the minor rather he was trying to avoid the payment of maintenance allowance to minor--In order to decide the question of hizanat, personal law of the parties was to be kept in consideration but it has now consistently been held by High Court that welfare of minor was to be given paramount consideration while disposing of such questions--Love and affection of a mother could not be compared with and as already observed that welfare of minor was to be given paramount consideration--Custody of minor and for that purpose any other consideration even personal law of parties was sometime preferred to be ignored--Held: Whenever any such circumstances exist or controversies were brought before the Courts the Judges were to perform their jurisdiction like parents--In the circumstances of instant case tearing apart the minor from lap of her mother, who at that stage, even was taking risk of matrimonial life with her second husband for sake and betterment of minor, would affect her mental, phychological and physical up-lift, therefore, while allowing writ petition the judgment and decree passed by First Appellate Court being not sustainable in eyes of law was hereby set aside--Minor would be kept with mother within Distt. and she would not be removed from Distt. without getting permission from Guardian Judge--Petition was allowed. [Pp. 343, 345, 346 & 347] A, B, C, D & E

2007 CLC 1403; PLD 1965 Dacca 290; PLD 2000 Pesh. 23; 19095 CLC 1519; 2000 SCMR 838 ref.

Malik Humayun Zafar, Advocate for Petitioners.

Syed Mansoor Hussain Bukhari, Advocate with Respondent No. 1.

Date of hearing: 17.11.2011.

Order

Through this petition Petitioner No. 1 has challenged the judgment & decree dated 11.05.2010 passed by learned Additional District Judge, Gujar Khan whereby he while setting aside the order of learned Guardian Judge dated 27.1.2010 accepted the appeal and allowed the application u/S. 25 of Guardians and Wards Act filed by Respondent No. 1.

1. Brief facts necessary for the disposal of this writ petition are that Petitioner No. 1 Mst. Farah Mehnaz was married to Respondent No. 1 Safeer Hussain Jaffar on 0.4.02.2005, which tie due to so strained relations culminated into divorce on 5.6.2005; that out of the wedlock one daughter namely Muntaha Zohra was born on 16.2.2006 and since birth she is in the custody of Petitioner No. 1 who according to averments has contracted second Nikah. Respondent No. 1 being natural guardian filed petition under Section 25 of the Guardians and Wards Act to get the custody of the minor which was resisted by Petitioner No. 1 by filing written reply in which she controverted all the assertions made by Respondent No. 1 and prayed that same be dismissed. Necessary issues were framed by the learned Guardian Court. Parties produced their respective evidence and the learned Guardian Court after evaluating and considering the same dismissed the application vide order dated 27.1.2010. Being aggrieved Respondent No. 1 preferred an appeal before the learned Additional District Judge, Gujar Khan, which was accepted vide impugned judgment dated 11.5.2010. Hence this writ petition.

2. Learned counsel for the petitioners argued that the impugned judgment passed by the learned Additional District Judge is against the law and facts of the case which have not been given due appreciation and the verdict has been passed without application of judicial mind; that the impugned judgment is the result of misreading and non-reading of evidence available on the record. Further argued that the minor being daughter is more familiar with the Petitioner No. 1 and in future in would be more appropriate and proper if she is allowed to be lived with the Petitioner No. 1 being real-mother. Learned counsel while adding that petitioner's lap has not been yet blessed out of her second nikah submitted that in such like cases the prime consideration should be the welfare as well as interest of the minor and not rights of the parents; that the minor is living happily with Petitioner No. 1. Learned counsel for the petitioner while concluding the arguments submitted an affidavit executed by petitioner Mst. Farah Mehnaz the mother of the minor whereby she undertook that she would reside alongwith the minor at Data Bhat Tehsil Gujar Khan where she would be educated and she would not further demand any maintenance allowance for the minor from the respondent as she has given up her claim in this respect. The affidavit is placed on record. Leaned counsel, in these circumstances, in the light of the arguments as well as the affidavit prayed that this writ petition be allowed and the judgment & decreed passed by the learned Appellate Court whereby custody of the minor is directed to be handed over to the respondent be set side.

3. Conversely, learned counsel for the petitioner in reply to the arguments advanced by learned counsel for the petitioner contended that the petitioner has contracted second marriage with a stranger, therefore, it would be not be proper to keep the custody of the minor with her; that in the peculiar circumstances of the present case the minor cannot be left at the mercy of step-father in presence of her real father i.e. the respondent, thus, he has preferential right to get the custody of his minor daughter where the interest as well as proper up bringing of the minor can easily be presumed to be guaranteed.

4. I have considered the arguments addressed by learned counsel for the parties and have gone through the file.

5. Facts have already been discussed, therefore, need not to be reiterated. Suffice it to say that after having been divorced by the respondent, petitioner Mst. Farah Mehnaz contracted second marriage and shifted to Karachi where she started living with her husband. Minor Muntaha Zohra was kept alongwith her maternal grand-parents here at Data Baht Tehsil Gujar Khan. Petitioner filed suit for recovery of maintenance allowance for the minor and when it was decreed and appeal filed by the respondent was dismissed, thereafter, respondent moved instant application for the grant of custody of the minor. It is admitted fact that prior to that he never tried to visit the minor who was born in the house of her maternal grand-father i.e. the parents of the petitioner. If the evidence led by the respondent is seen, he during the cross-examination when appeared as PW-1 admitted.

At another place during the cross-examination, the further admitted:-

Mst. Manzoor Fatima, paternal grand-mother of the minor, the minor of the respondent Safeer Hussain appeared as AW-2 and she during cross-examination stated:--

If the above-mentioned state of affairs and the factual aspects admitted by the respondent are seen, it is clear that the minor was born in the house of her maternal grandparents, she remained throughout with them i.e. initially with her mother and subsequently wen she contracted marriage sometime she lived with her maternal grand-parents or sometime with the petitioner at Karachi. The respondent tried his best to avoid payment of maintenance allowance at any cost and to prove this fact learned counsel for the petitioner referred an application submitted by respondent Safeer Hussain Jaffar in the Court where decree for recovery of maintenance allowance for the minor was under execution. He moved application for the permission to pay the maintenance allowance in instalments and in Para 3 of the application he specifically mentioned:--

Contrary to above-mentioned stance taken by the respondent during the execution proceedings, if his statement while appearing as PW-1 is seen, he has shown himself as a man of means having better resources than the petitioner to up bring the minor. This conduct of the respondent-father itself shows that he was not interested in the custody for the welfare of the minor rather he was trying to avoid the payment of the maintenance allowance to the minor.

1. The conduct of the petitioner, on the other hand, if seen, she never denied the factum of second marriage keeping her residence with her second husband at Karachi and keeping the minor with her as well as with her own parents i.e. the maternal grant parents of the minor at Tehsil Gujar Khan. The height of her love and affection for the minor is shown at the time of arguments today when she submitted the affidavit which is referred above wherein she has sworn that she would give up her residence at Karachi with her second husband permanently for the sake of minor and would reside here at village Data Bhat Tehsil Gujar Khan to up bring her in accordance with the requirements in the best interest of the minor. She also undertook not to claim any maintenance allowance from the respondent. Admittedly, in order to decide the question of "Hizanat" the personal law of the parties is to be kept in consideration but it has now consistently been held by this Court as well as by the Hon'ble Supreme Court of Pakistan that welfare of the minor is to be given paramount consideration while disposing of such questions. Dealing with a similar question Hon'ble Supreme Court of Pakistan in the judgment cited as "Rahimullah Choudhary versus Mrs. Sayeda Helali Begum and others" (1974 SCMR 305) whereby it was observed at Pages 319, 320 and 321:--

"It was argued that in determining welfare of the minors under Section 25 the Court will act consistently with the law to which the minor is subject as provided for in Section 17. In other words the two sections should be read as supplementary to each other and the question whether it is for the welfare of the minors to return them to the custody of the appellant should be resolved according to Muslim Law which envisages that as a result of the forfeiture of the right of hizanat vesting in the mother there was no alterative, but to return the minors to the custody of the father. As against a mere presumption attributed to Muslims Law Section 25 recognises it as a right of the guardian that his ward who leaves or is removed from his custody be returned into his custody, but subject to his welfare. "Welfare being a question of fact will, therefore, have to be resolved on the material placed before the Guardian Judge and not on the basis of any presumption. The question to be decided under Section 25 is, however, not the right of the guardian to obtain the custody of the ward as that right is given to him by the statute but the welfare of the ward. A natural or certificate guardian nay turn out to be an undesirable person or the Court may find it not for the welfare of the minor to deliver him into the custody of the guardian. It is, therefore, provided specifically that although the guardian is entitled to such custody no other will be made to that effect unless the Court is satisfied that it will be for the welfare of the ward. A mother, may, therefore, be deprived of the custody of the children of tender age only if the paramount consideration of their welfare so demands."

Further reference in this respect can be seen from judgments cited as "Mst. Fauzia Begum vs. Amin Saddruddin Jamal Gonji (2007 CLC 1403), "Zohura Begum versus Maimuna Khatun" (PLD 1965 Dacca 290), "Mst. Gulnaz Bibi versus Rafaqat Ali Shah and another" (PLD 2000 Pesh. 23), "Muhammad Afzal versus Mst. Sameena Akhtar and another" (1995) CLC 1519) and "Mst. Firdous Iqbal versus Shifaat Ali and others. (2000 SCMR 838).

1. I must mention here the atmosphere of the Court when this Court announced the order declaring that custody of the minor would be retained by the mother-petitioner, she alongwith her parents was embracing and kissing the minor and joyful tears were pouring out of their eyes. The love and affection of a mother cannot be compared with and as already observed that welfare of the minor is to be given paramount consideration for the disposal of such like questions i.e. the custody of the minors and for that purpose any other consideration even the personal law of the parties is sometime preferred to be ignored At this stage, I would like to refer a Punjabi proverb:

And I feel whenever any such circumstances exist or controversies are bought before the Courts the learned Judges are to perform their jurisdiction like parents. In the circumstances of the present case tearing apart the minor from the lap of her mother, who this stage, even is taking risk of her matrimonial life with her second husband for the sake and betterment of the minor, shall affect her mental, psychological and physical uplift, therefore, while allowing this writ petition the impugned judgment & decree passed by learned ADJ in these circumstances being not sustainable in the eyes of law is hereby set aside and that of learned trial Court is hereby restored. The minor shall be kept with the petitioner mother within the District Rawalpindi i.e. village Data Bhat Tehsil Gujar Khan and she shall not be removed from District Rawalpindi without getting permission from the learned Guardian Judge, Gujar Khan. It is further directed that the petitioner shall produce the minor before the learned Guardian Judge, Gujar Khan on every first Monday of each month to provide a facility of meeting with her father/Respondent No. 1. Meaningless to further observe that minor shall also be provided all the necessary educational facilities accordingly.

(R.A.) Petition allowed

PLJ 2012 Lahore 347 [Bahawalpur Bench Bahawalpur]

Present: Abdus Sattar Asghar, J.

Dr. LAL HUSSAIN AKHTAR and others--Petitioners

versus

CHIEF SECRETARY PUNJAB and others--Respondents

W.P. No. 2337 of 2011/BWP, heard on 30.11.2011.

Constitution of Pakistan, 1973--

----Arts. 199, 25 & 212--Constitutional petition--Policy of Govt. of Punjab for appointment on contract basis--Scope of regularization of officer--Petitioners sought declaration to effect that regularization of contract employees was illegal being violative to terms and conditions of appointment--Validity--Officers working on regular basis applied for recruitment against advertised vacancies on contract basis and were selected who were legitimately expecting their regularization as per policy of Govt.--Petitioners as regular employees could not digest regularization of contract employees--Although they were eligible for promotion against higher post of their own cadre--Petitioners belong to category of regular employees having different classification as compared to category of contract employees recruited on basis of quota of initial recruitment--Petitioners had no case of discrimination prohibited u/Art. 25 of Constitution and thus had failed to make out any valid grievance on account of regularization of contract employees in accordance with Policy of Government--No legal or vested right of petitioners was likely to be infringed due to regularization of contract employees, therefore, petitioners had no ground to invoke Constitutional jurisdiction of High Court--Petitioners being civil servants if apprehend any threat to terms and conditions of their service were facing bar under Art. 212 of Constitution--Since process of regularization of contract employees was not restrained by injunctive order measures taken and orders passed by respondents with regard to regularization of contract employees in accordance with law and Policy of Govt. did not amount to violation of injunctive order and thus there was no force in criminal original petitions lodged by petitioners--Petition was dismissed. [Pp. 350 & 351] A, B, C & D

Raja Muhammad Sohail Iftikhar and Mr. Muhammad Atif Qureshi, Advocates for Petitioners.

Mahar Muhammad Iqbal, Asstt. AG and Mr. Abdul Ghaffar Khan Chughtai, Advocates for Respondents.

Mr. Muhammad Irfan, Law Officer.

Date of hearing: 30.11.2011.

Judgment

Through this single judgment I intend to dispose of the instant writ petition (W.P. No. 2337/2011/BWP) as well as Criminal Original Nos. 305 and 405 of 2011 filed in it by the petitioners, and Writ Petitions Nos. 3599/2011/BWP, 3600/2011/BWP, 4731/2011 and 5528/2011/BWP involving same question of law and facts.

1. Precise facts leading to these petitions are that Dr. Lal Hussain Akhtar and other petitioners filed Writ Petition No. 1775 of 2011 against the Chief Secretary etc. seeking declaration to the effect that regularization of the contract employees of Agriculture Department in BS-18, BS-18 plus special pay of Rs. 165/- is illegal and without lawful authority being violative to the terms and conditions of their appointment. The said writ petition was disposed of vide order dated 5.04.2011 of this Court with the following direction:

"Send a copy of this writ petition alongwith its annexure to the Respondent No. 2 who shall treat the same as representation of the petitioners and thereafter decide the same strictly in accordance with law within one month after providing them an opportunity of personal hearing. Meanwhile status quo shall be maintained. Dispose of."

1. Secretary, Government of the Punjab, Agriculture Department (Respondent No. 2) after going through the representation i.e. writ petition and the Contract Appointment Policy circulated vide letter dated 29.12.2004 and S&GAD Circular letters and providing personal hearing to the petitioners vide order dated 21.04.2011 rejected the representation being devoid of merit under the law/rules.

2. Being dissatisfied with the order dated 21.04.2011 the petitioners preferred this Writ Petition No. 2337/2011 calling in question the vires of the impugned order as illegal, against the rules and Policy of the Government, ineffective against their rights and liable to set aside.

3. The respondents have submitted their parawise comments.

4. I have given patient hearing to the counsel for the parties and perused the record carefully.

5. After going through the petitioner's plea in the writ petitions as well as parwaise comments submitted by the respondents it reveals that pursuant to the Policy of the Government of Punjab, 2004 for appointment on contract basis, Agriculture Department (Research Wing), Government of the Punjab filled in various posts of Assistant Research Officers/Agricultural Officers etc. (BS-17), post of Assistant Entomologist etc. (BS-18) and post of Botanist etc. (BS-18 plus Rs. 165/- special pay) on contract basis under the initial recruitment quota provided in Punjab Agriculture Department (Research Wing) Service Rules, 1980 which reads below:--

"(a) Posts in BS-17

100% by initial recruitment.

(b) Assistant Specialists (BS-18)

20% by initial recruitment and 80% by promotion from amongst the members of the feeding cadre with two years service.

(c) Specialist (BS-18 +Rs. 165/-SP)

25% by initial recruitment and 75% by promotion from amongst the members of the feeding cadre who have five years service as such."

Later on a Committee was constituted on 18.01.2010 to design the scope of regularization of officers in BS-16 and above on the recommendation whereof Government of the Punjab vide Notification dated 10.11.2010 issued directions for regularization of contract appointments in BS-16. Dr. Lal Hussain and other petitioners being members of the feeding cadre apprehending some clog in the way of their promotion had preferred Writ Petition No. 1775/2011. It is note-worthy that post of Assistant Specialist and Specialist falling under initial recruitment quota as per service rules were advertised for recruitment on contract basis according to the Contract Appointment Policy 2004 on open merit basis. The officers working on regular basis were also held eligible for appointment against advertised posts. In the above process some officers working on regular basis in the Agriculture Department applied for recruitment against the advertised vacancies on contract basis and were selected who were legitimately expecting their regularization in due course as per Policy of the Government. Perhaps the petitioners serving in BS-17 as regular employees could not digest the regularization of the contract employees in Grade-18 although they were eligible for promotion against higher post of their own cadre on their turn. In the above state of affairs the petitioners lodged the above cited writ petitions seeking direction of this Court to stop the process of regularization of service of the contract employees.

1. Petitioners' main grievance to call in question the regularization of the contract employees is based on an ill-founded apprehension that the same may cause hindrance in their legitimate expectation of promotion. It is pertinent to mention that the petitioners belong to the category of regular employees of the Feeding Cadre having a different classification as compared to the category of the contract employees recruited on the basis of quota of initial recruitment. Therefore petitioners have no case of discrimination prohibited under Article 25 of the Constitution and thus have failed to make out any valid grievance on account of regularization of the contract employees in accordance with Policy of the Government. Needless to mention that it is prerogative of the Government to formulate policy of recruitment in accordance with law and Constitution. Since no legal or vested right of the petitioners is likely to be infringed due to regularization of the contract employees therefore petitioners have no ground to invoke the Constitutional jurisdiction of this Court under Article 199. Besides it is also noteworthy that petitioners being civil servants if apprehend any threat to terms and conditions of their service are also facing bar under Article 212 of the Constitution.

2. As regards afore-noted Criminal Original Nos. 305 and 405 of 2011/BWP lodged by the petitioners in Writ Petition No. 2337/2011/ BWP, suffice to say that this Court had issued interim injunction vide order dated 05.05.2011 to the effect that no final order shall be passed qua the seniority of the petitioners till the next date of hearing. The injunctive order was later on extended on each date of hearing. Since process of regularization of the contract employes was not restrained by the injunctive order therefore measures taken and orders passed by the respondents with regard to regularization of the contract employees in accordance with law and Policy of the Government do not amount to violation of the afore-noted injunctive order and thus there is no force in the Criminal Original petitions lodged by the petitioners.

3. For the foregoing reasons and discussion, the above noted writ petitions and criminal original petitions besides facing bar under Article 212 of the Constitution, are devoid of any merit and thus dismissed.

(R.A.) Petition dismissed

PLJ 2012 Lahore 351

Present: Ch. Shahid Saeed, J.

MUHAMMAD RAFIQUE etc.--Petitioners

versus

BOARD OF REVENUE PUNJAB, etc.--Respondents

W.P. 16673 of 1999, heard on 16.12.2011.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petitional--Remedies of Civil Court as well as revenue side had been availed--Transferee of another adjacent independent portion, belonging to evacuee owners, applied for review of mutations on ground that only one shop property measuring 11 x 11 was transferred and area of 13 marlas 11 Sq. pt. shown in mutation was wrong--Review application and on basis of the mutations were reviewed and area of property was shown as 11 x 11 instead of 13 marlas 11 sq. pt--No notice was issued before reviewing previous order--Validity--Petitioners availed two remedies to get property in civil Court as well as in revenue side--Petitioners had not produced any solid and confidence inspiring evidence in civil suit as well as in proceedings which were carried out in revenue department that from which area of shop as 13 marlas 11 sq. ft was ascertained and same was incorporated in mutation which was sanctioned--Neither any person nor any department was laying claim on ownership disputed property--Disputed property was in possession of the petitioners for more than three decades--Petitioners were illegal occupant over the property except 110 sq. ft which was purchased--If the property could not claim by any person or department it did not mean that the property be given to illegal occupants--No decree can be passed in favor of petitioners qua the disputed property--Distt. Judge while deciding appeal of the petitioners had relied upon order of M.B.R. but the order had been reviewed by successor of M.B.R.--Held: Area of disputed shop of petitioners was only 110 sq. ft instead of 13 marlas 11 sq. ft--Petitioners had no title deed qua the property--Settlement department was directed to resume the excess property from the petitioners in accordance with law--Petition was dismissed. [P. ] A, B, C, D & E

Mian Zafar Iqbal Kalanauri, Advocate for Petitioners.

Mr. Iftikhar Ahmed Mian, Advocate on behalf of Petitioner in Civil Revision No. 531 of 2001.

Rana Naeem Sarwar, Advocate on behalf of Respondents Nos. 4 to 12.

Mr. Muhammad Azeem Malik, Addl. A.G. on behalf of Respondents No. 1 to 3 and 13.

Date of hearing: 16.12.2011.

Judgment

Through this single judgment Writ Petition No. 16673-1999 and Civil Revision No. 531-2001 are being decided together as identical questions of law and facts are involved therein.

1. Brief facts of the case are that Property No. 53.R.4 Mission Road, Lahore owned by Sundar Bal, Kishan Bal evacuees, in possession of Ghulam Mustafa and Muhammad Rafique, was put in auction list by the Settlement Department as mentioned at Sr. No. 7 of the Auction List. It was transferred in favour of Riaz-ul-Haque son of Abdul Ghafoor for Rs.10,000/- on 06.02.1960. After obtaining PTD he sold the said property to Muhammad Rafique son of Mehr Jhandoo vide sale-deed registered on 22.05.1963. That Muhammad Rafique sold the same to late Zainab Bibi (mother of the petitioners in the tilted writ petition) vide sale-deed registered on 30.01.1976. On the application of Zainab Bibi Mutation No. 5988 in favour of Riazul Haque, Mutation No. 5989 in favour of Muhammad Rafique and Mutation No. 5990 in favour of Zainab Bibi were sanctioned on 14.10.1980, which were incorporated in the Revenue Record. The area of the said property was shown as 13 marlas 11 sq. ft.

2. On 19.12.1981, Muhammad Akram a transferee of another adjacent independent portion, belonging to the same evacuee owners, applied for review of the above mutations on the ground that only one shop of the above mentioned property measuring 11x11 was transferred to Riaz-ul-Haque and the area of 13 marlas 11 sq. Ft. shown in the mutations is wrong and as such may be corrected as 11 x 11. A.C.II recorded the statement of Riaz-ul-Haque who supported the review application and on the basis of the same the mutations were reviewed and the area of the property was shown as 11 x 11 instead of 13 marlas 11 sq. ft. vide order dated 15.03.1983. No notice was issued to Zainab Bibi before reviewing the previous order. The petitioners filed appeal which was dismissed by the Collector, Lahore on 13.04.1985. Zainab Bibi then filed Revision which was also dismissed by the Additional Commissioner, Lahore on 18.09.1986. Thereafter petitioners filed R.O.R before the Member Board of Revenue which was accepted and the impugned orders of Assistant Collector, Collector and Additional Commissioner were set aside. Muhammad Akram filed a review petition against the order dated 16.12.1990 which was accepted and the earlier order of Member Board of Revenue in favour of the petitioners was set aside. Feeling aggrieved by the order passed in review petition petitioners have filed the titled writ petition.

3. Likewise petitioners also filed a suit for declaration and permanent injunction regarding the same property on the ground that Mst. Zainab Bibi mother of the petitioners purchased the disputed property from its owner Muhammad Rafique through a registered sale-deed dated 31.01.1976 for a consideration of Rs.50,000/-. She urged that total area of the disputed property was 12 marlas 211 sq.ft. She also pleaded that she was running the business of Lathe Machine Manufacturing in the disputed property in the name and Style "Lahore Machine Tools Industries" Mission Road, Lahore. She further alleged that an open plot measuring 4 marlas was attached to the disputed property which was used for loading and unloading machines in the said workshop. That Metropolitan Corporation of Lahore (defendant in the suit) illegally and without lawful authority had served her with a notice requiring her to demolish the structure of the disputed property as her site-plan earlier sanctioned had been cancelled. She prayed a declaration to the effect that she was lawful owner of the property in dispute and the notice issued by the LMC is illegal and without lawful authority. Defendant (petitioner in civil revision mentioned above) appeared before the learned trial Court and contested the suit by tooth and nail while submitting his written statement. Out of the divergent pleadings of the parties necessary issues were framed. Both the parties got recorded their oral as well as documentary evidence. Ultimately learned trial Court vide order dated 23.01.1993 dismissed the suit of the petitioners. They filed an appeal which was accepted by the learned appellate Court on 26.09.2000. Against the said order LMC has filed the civil revision as stated above.

4. Learned counsel for the petitioners of the titled writ petition argued that the order passed by the Member Board of Revenue in review petition is against law and facts and also without lawful authority; that Muhammad Akram was not the transferee of the property in dispute, therefore, he was not competent to file the petition for review of mutations to which he was not a party; Further argued that the learned A.C.II was not competent to review the mutations and reduce the area without issuing show-cause notice to the petitioners or their predecessor Zainab Bibi. That the property in question being urban property, the Revenue Department was functus officio to pass any order regarding the cancellation of mutations. Further maintained that all officials from A.C.II to Additional Commissioner acted under a wrong assumption that a shop cannot be of a an area of 13-M 11 Sq.ft. They were further of the opinion that such huge shop on Mcleod road could not be transferred for a paltry amount of Rs.10,000/- They were shown from Excise and Taxation record that Shop No. 7-A Measuring 1-K 17 Marla and shop No. 5C Measuring 13 had been transferred to Hayat Muhammad and Abdul Hakim respectively in the same area of Mission road, the definition of shop given in the displaced persons (C & R) Act has altogether been ignored by the Revenue Officials. That on flimsy grounds a well reasoned judgment of Member Board of Revenue has been reviewed and reversed. No error or omission on the face of the record has been shown. No independent mind has been applied by the learned Member while reviewing the order of his predecessor. The impugned order is based on conjectures and suppositions not warranted by law because the learned Member could not decide a review petition like an appeal. The learned Additional Commissioner himself inspected the spot and confirmed the area in possession of the petitioners but side tracked the issue by observing that the area in question has perhaps escaped the notice of the Settlement Department. Learned counsel further maintained that a decree regarding the same land has been passed in their favour by the learned Additional District Judge Lahore and in the presence of said decree the review order passed by the Learned Member Board of Revenue has no value in the eye of law.

5. Learned counsel for the Respondents No. 4 to 12 argued that they are in possession of the property in dispute since long and the petitioners have no concern with the same. Further argued that only one shop 11 X 11 was transferred to Riaz-ul-Haque and the area of 13 marlas 11 Sq.ft. shown in the mutations is wrong. Further argued that statement of Riaz-ul-Haque in this regard is on the record on the basis of which the mutations were reviewed.

6. Learned Additional Advocate General states that as per record only a shop measuring 11x11 was transferred in favour of Zainab Bibi deceased and the rest of the claim of the petitioners regarding the property in dispute is illegal and unwarranted. He further argued that Respondents No. 4 to 12 have also no concern with the said property because the same belongs to Settlement Department.

7. Learned counsel for the petitioner in C.R.No. 531-2001 argued that the impugned judgment & decree passed by the learned Addl: District Judge Lahore is against law and without lawful authority. Petitioners in the writ petition have not produced any solid and confidence inspiring evidence to the effect that they were the owners of 13 marlas 11 Sq.ft because according to PTD which was issued in favour of Riaz-ul-Haque no area was mentioned, only the boundaries have been mentioned therein which do not show that how much property was transferred in favour of the petitioners. Further argued that the order of learned Member, Board of Revenue dated 16.12.1990 whereby he accepted the revision of respondents and restored the Mutation No. 5990 in favour of respondents and set aside the order of Assistant Collector of 1983, which was relied upon by the Additional District Judge, has been set aside in Review Petition No. 40-1991, but the learned ADJ did not take this aspect of the case into consideration. Further maintained that the judgment of the Additional District Judge is out-come of non-reading and mis-reading of evidence.

8. Arguments heard. Record perused.

9. Undeniably, petitioners have availed two remedies to get the property measuring 13 marlas 11 sq.ft in Civil Court as well as in revenue side simultaneously. The claim of Mst. Zainab Bibi predecessor of the petitioners was that she purchased the property in dispute from Muhammad Rafique. Initially the said property was transferred to one Riaz-ul-Haq through auction. PTD was also issued in his favour. In the said PTD no area is mentioned, only the boundaries are mentioned therein. On the basis of said PTD firstly the land in dispute was transferred in the name of Muhammad Rafique and thereafter in the name of Mst. Zainab Bibi. Mutations were also sanctioned in their favour. The moot point in this case is whether Mst. Zainab Bibi was purchaser/owner of the whole of the disputed property as has claimed by the petitioners. Ex.P.8 which is a copy of PTD annexed with the civil revision reflects that shop No. 7/2 Mission Road, Lahore being an evacuee property was allotted to one Riaz-ul-Haq by the Settlement authorities. There was no mentioned of area of description of the shop in Ex.P.8. Thereafter said Riaz-ul-Haq through registered sale-deed sold the said shop to Muhammad Rafiq. Again there was no mention of area of the said shop in the said sale-deed. On 30.06.1976 the aforesaid Muhammad Rafiq sold the said shop to Mst. Zainab Bibi through Ex.P.9. In Ex.P.9 also there was no mention of area of the said shop. But when the said shop was mutated in the name of late Zainab Bibi the area of said shop was mentioned as 13 marlas 11 sq.ft.

10. It is stark reality that the disputed property derives its title from Ex.P.8 which is a copy of PTD. According to it a shop was transferred to Riaz-ul-Haq. There was no mention of area or description of the said shop in the PTD Ex.P.8. Thus the mutations Ex.P.13 and 14 too derive their title from the aforesaid PTD Ex.P.8. As such the incorporation of area of the said shop as 13 marlas 11 sq.ft. in these mutations is astonishing interrogative and without any basis. Admittedly it has to be seen whether at any time the area of the said shop was found to be 13 marlas 11 sq.ft. It is also an admitted fact that the Assistant Commissioner, the Collector and the Additional Commissioner have unanimously hold that area of the aforesaid shop is 110 sq. ft instead of 13 marlas 11 sq.ft.

11. Moreover petitioners have not produced any solid and confidence inspiring evidence in civil suit as well as in the proceedings which were carried out in Revenue department that from which the area of shop as 13 marlas 11 sq.ft was ascertained and the same was incorporated in the mutation which was sanctioned in favour of Mst. Zainab Bibi. It is also an admitted fact that the site-plan which earlier was sanctioned in favour of the petitioners has been cancelled by the concerned department.

12. Another important aspect of the case is that Riaz-ul-Haq was the original transferee of the said shop. So he was the best person to depose about the area of the shop. He has made a statement before the revenue hierarchy that area of the said shop was 110 sq.ft. Revenue Officers after inspecting the site have also come to the conclusion that the property in dispute is only 110 sq.ft. Neither any person nor any department is laying claim on the ownership of the disputed property. The disputed property is in possession of the petitioners for more than three decades. It means that petitioners are illegal occupant over the property in dispute except 110 sq.ft which was originally purchased by Mst. Zainab Bibi. But if the said property cannot claim by any person or department it does not mean that the said property be given to the illegal occupants. No decree can be passed in favour of the petitioners regarding the said property in dispute.

13. This aspect of the case also cannot be ignored that in the civil suit Mst. Zainab Bibi claimed the area of shop measuring 12 marlas 211 sq.ft. whereas in revenue proceedings she has claimed the area of said shop as 13 marlas 11 sq.ft. There is material contradiction in the version of the petitioners. They are not definite with the fact that which property was purchased by Mst. Zainab Bibi. It is also admitted that the learned Additional District Judge Lahore while deciding the appeal of the petitioners has mainly relied upon the order of the Member Board of Revenue dated 16.12.1990 but the said order has been reviewed vide order dated 24.07.1999 by the successor of said Member Board of Revenue. Learned appellate Court has not applied its independent mind while deciding the case. After going through whole the record I am of the considered view that the area of the disputed shop of the petitioners is only 110 sq.ft instead of 13 marlas 11 sq.ft. Respondents No. 4 to 12 have also no concern with the said property because they have no title deed regarding the said property in their favour. Hence, the Settlement Department is directed to resume the excess property from the petitioners in accordance with law.

14. For the foregoing reasons, there is no force in the writ petition filed by the petitioners and the same is dismissed. So far as the C.R.No. 531-2001 is concerned the learned Additional District Judge Lahore has committed illegality and material irregularity while passing the impugned judgment & decree which is set aside. Consequently civil revision filed by LMC is allowed with no order as to costs.

(R.A.) Petition dismissed

PLJ 2012 Lahore 357 [Multan Bench Multan]

Present: Sagheer Ahmad Qadri, J.

SAYYED HANAN KHALID GILLANI--Petitioner

versus

DISTRICT JUDGE/PRESIDING OFFICER DISTRICT CONSUMER COURT, MULTAN and 2 others--Respondents

W.P. No. 12194 of 2010, decided on 4.4.2011.

Punjab Consumer Protection Act, 2005--

----S. 2(j)--Sales of Goods Act, 1930, S. 2(7)--Scope of--Definition of product--Product has been defined with respect to definition on word "goods" provided under Sales of Goods Act, 1930--If definition is seen includes all goods as defined in Sales of Goods Act, but it has specifically excluded animals or plants or natural fruits and other raw products in their natural state are derived from animals or plants. [P. ] A & B

Interpretation of Statute--

----Scope--If any word occurring in statute is to be interpreted, its meaning should be searched and if it is defined in definition clause or any other part of that statute with reference to that statute and with reference to that subject--If no such definition is provided in that statute then its literal dictionary meanings are to be taken into consideration. [P. ] C & D

Chambers 21st Century Dictionary.

Punjab Wild Life (Protection Preservation, Conservation and Management) Act, 1974--

----Ss. 2(d) & 47--Definition of--If zoological definition is seen animals are species of kingdom of animalia which subsequently further can be bifurcated into different kinds and birds are one of it--Word animal has been indirectly defined u/S. 2(d) whereby game animals means a wild animal specified in first schedule. [P. ] E & F

Punjab Consumer Protection Act, 2005--

----Ss. 2(j), 25, 28, 31(e) & 31(F)--Agreement for supply of Grade "A" Lair Chicks--Respondent supplied Grade "B" Lair Chicks--Suffered huge loss and claimed to compensation--No jurisdiction to entertain claim--Validity--Agreement between parties meaning of supply of product, while allowing writ petition order passed by Distt. Judge was set aside--Claim submitted u/S. 28 of Act, 2005 was not maintainable before Distt. Consumer Court. [P. ] G

Mr. Fakhar Raza Malana, Advocate for Petitioner.

Mian Babar Saleem, Advocate for Respondent No. 2.

Sardar Farooq Ahmad Khan, Advocate for Respondent No. 3.

Date of hearing: 10.3.2011.

Order

Respondent No. 2 Muhammad Arshad son of Muhammad Ali filed a claim under Section 25 of the Punjab Consumer Protection Act, 2005 before Respondent No. 1/Presiding Officer, District Consumer Court, Multan mentioning the facts that petitioner and Respondent No. 3/Shah Muhammad Dogar, Dealer of the petitioner, undertook to supply 5000 Lair Chicks Grade "A" to him in total consideration of Rs.3,25,000/-; that petitioner and Respondent No. 3 were duty bound to fulfill their agreement for the supply of Grade "A" Lair Chicks, which responsibility they did not fulfill rather they supplied firstly 3850 Grade "B" Lair Chicks and at second instance later on another flock of 1150 Grade "B" Lair Chicks, which all were male; that due to the above mentioned act of the petitioner and Respondent No. 3 he suffered huge loss and claimed himself entitled to compensation amounting to Rs. 3 million along with other cost under Sections 31(e) and 31 (f) of Punjab Consumer Protection Act, 2005.

1. This claim was contested by the petitioner, who submitted his written reply raising (11) preliminary objections about the maintainability of the petition and one of the objections i.e. Objection No. 2 was:--

"That this Honourable Court has no jurisdiction to entertain the claim under reply and as neither the defendant is a "manufacture" as define under the provision of Section 2(h) of the act, nor has it manufactured any product as define under the provision of Section 2(I) of the act. The chicks under allegedly purchased by the claimant from the defendant is also no a "product" as define in Section 2(j) of the act. In view, thereof the title claim is liable to be dismissed Summarily."

However, on factual side the assertions made by the Claimant/ Respondent No. 2 were also controverted by the petitioner through written reply.

1. Learned trial Court vide impugned order dated 2.11.2010 while deciding the preliminary objection as raised in Para 2 mentioned above, found the petition/claim maintainable. Feeling aggrieved petitioner has preferred this writ petition.

2. Learned counsel for the petitioner with reference to Section 2(j) of the Punjab Consumer Protection Act, 2005 argued that contract between the petitioner and Respondent No. 2 was for the supply of chicks which does not fall within the definition as provided under Section 2(j) of Act, ibid, a product, as in that definition the product has been assigned the same meaning as has been defined the word "goods" in the Sales of Goods Act, 1930 and also includes products which have been subsequently incorporated into another product or an immovable but it has specifically been excluded the animals out of this definition. Learned counsel referred different dictionary meanings that the word "animal" is used in its generic sense which includes the birds as well. In the grounds of petition he has referred in this respect the following definitions of animal provided in "Wikipedia, the free encyclopedia, Columbia Encyclopedia and Science Dictionary. Grounds (d), (e) & (f) are hereby reproduced:--

(d) That it is also evident from the record which was produced before the learned District Judge Consumer Court that the "Birds are such an animal, especially a chicken or turkey, used as food."

(e) That it is also evident from the definition of bird as mentioned in Colombia Encyclopaedia "bird. Warm-blooded, egg-laying, vertebrate (sic) animal having its body covered with feathers and its forelimbs modified into wings, which are used by most birds for flight".

(f) That it is also evident from Science Dictionary that the Birds are animals as mention in Science Dictionary "A Class of Vertebrates distinguished by their feathers and their two legs and two wings, Birds are Warm Blood Animals, and their Young hatch from eggs."

Further argued that as no specific classification has been made by the legislature while defining the word "animal", therefore, it includes the chicks as well; that learned trial Court in its own wisdom traveled beyond the scope of Section 2(j) of the Act, ibid, and only on the basis of further classifications of the species declared that as chicks fall within the definition of birds, therefore, are not animals and found the petition/claim made by Respondent No. 2 maintainable. It was further argued that as the animal does not fall within the definition of product defined above, therefore, learned trial Court had no jurisdiction to entertain and try the claim. Prayed that writ petition be allowed while setting aside the impugned order passed by the learned trial Court.

1. On the other hand, learned counsel for Respondent No. 2 has vehemently opposed the arguments advanced by learned counsel for the petitioner on the grounds that the learned trial Court has rightly differentiated between the animal and birds as animals are separate category which are "Quadruped" thus learned trial Court rightly overruled the objection raised by the petitioner and found the claim moved by Respondent No. 2 as maintainable. Prayed that this writ petition be dismissed.

2. However, learned counsel for Respondent No. 3 has supported the arguments advanced by learned counsel for the petitioner.

3. I have considered the contentions raised by learned counsel for the parties and have gone through the file.

4. In order to resolve the controversy it is appropriate to reproduce the definition of "product" as provided under Section 2(j) of the Punjab Consumer Protection Act, 2005:--

"Product" has the same meaning as assigned, to the word "goods'" in the Sale of Goods Act, 1930, and includes products which have been subsequently incorporated into another product or an immovable but does not include animals or plants or natural fruits and other raw products, in their natural state, that are derived from animals or plants. "(Underlining is mine).

Bare reading of above mentioned definition clearly shows that "product" has been defined with respect to the definition or word "goods" provided under Sales of Goods Act, 1930. Word "goods" has been defined under Section 2(7) of Sales of Goods Act, 1930, which says:

"Goods" means every kind of movable property other than actionable claims and money; and includes [electricity, water, gas,] stock and shares, growing crops, grass, and things attached to or forming part of land which are agreed to be severed before sale or under the contract of sale."

The word "product" as already mentioned, if the definition as provided under Section 2(j) of Punjab Consumer Protection Act, 2005, is seen, includes all the goods as defined in Sales of Goods Act, 1930 but it has specifically excluded animals or plants or natural fruits and other raw products in their natural state those are derived from animals or plants. Word "animal" has not been defined in the above mentioned enactment.

1. It is now settled rather taken as golden principle of interpretation of statute that firstly if any word occurring in a statute is to be interpreted, its meaning should be searched and if it is defined in the definition clause or any other part of that statute with reference to that statute and with reference to that subject. If no such definition is provided in that statute/enactment, then its literal/dictionary meanings are to be taken into consideration. The word "animal" as defined in Chambers 21st Century Dictionary wherein at page 47 is hereby reproduced:--

"1 a any member of the kingdom of organisms that are capable of voluntary movement, have specialized sense organs that allow rapid response to stimuli, and lack chlorophyll and cell walls; b any of these excluding human beings. 2 someone who behaves in a rough uncivilized way. 3 (usually an altogether different animal) a person or thing."

In Concise Oxford Thesaurus, Third Edition, the word "animal" is defined as under:--

Creature, beast, living thing; wildlife, fauna; brute, monster, devil, demon, fiend, swine, bastard, pig."

If zoological definition is seen "animals" are species of kingdom of animalia which subsequently further can be bifurcated into different kinds and birds are one of it. The word "animal" has been defined in Pakistan Penal Code under Section 47, which says:

The word "animal" denotes any living creature, other than a human being."

No-doubt, this definition is with reference to commission of certain offences as provided under Pakistan Penal Code but this is a general definition and animals are defined in contrast of human being. In another legislation in Pakistan i.e. Punjab Wildlife (Protection, Preservation, Conservation and Management) Act, 1974 the word "animal" has been indirectly defined under Section 2(d) whereby "game animals" means a wild animal specified in the first schedule." Under Section 2(n) "Protected animal" means a wild animal specified in the Third Schedule." Under Section 2(s) of the same Statute "wild animal" means a wild bird or animal specified in the First and Third Schedules." To further elaborate the word "animal" reference can be seen in the Halsbury's Laws of England, Fourth Edition, Vol. 2 in para 201 wherein under the heading of "Domestic Animals" it is clarified "In law the term "animals" includes all creatures not belonging to the human race, and is so used, throughout this title except where a specially restricted meaning is appropriate. While further defining the word "animals" with reference to Protection of Animals Act, 1911 in para 383, note-9 animals are defined as under:--

"In the Protection of Animals Act 1911 (save in S. 11, where "animals" means any horse, mule, ass, bull, sheep, goat or pig; see para, 388, post), "animal" means any domestic or captive animal; "domestic animal" means any horse (defined as Including any mare, gelding, pony, foal, colt, filly or stallion), ass, mule, bull (defined as Including any cow, bullock, heifer, calf, steer or ox), sheep (defined as Including any lamb, ewe or ram), pig (defined as Including any boar, hog or sow), goat (defined as including a kid), dog (defined as Including any bitch, sapling or puppy), cat (defined as Including a kitten), or fowl (defined as including any cock, hen, chicken, capon, turkey, goose, gander, duck, drake, guineafowl, peacock, peahen, swan or pigeon), or any other animal of whatsoever kind or species, whether a quadruped or not, which is tame or which has been or is being sufficiently tamed to serve some purpose for man's use; and "captive animal" means any non-domestic animal of whatsoever kind or species, whether a quadruped or not, including any bird, fish or reptile, which is in captivity or confinement or is maimed, pinioned or subjected to any appliance or contrivance for hindering or preventing its escape."

Now reverting back to the definition as provided under Section 2(j) of Punjab Consumer Protection Act, 2005, the word "animals" has been used in its generic/general sense, the word "plants" or natural fruits and other raw products are also used with same reference. This definition has not specifically been confined nor it is further elaborated whether it applies only to quadruped or birds having two legs and feathers. As the word "animal" is used in general sense, therefore, as discussed above, birds includes the same and the agreement reached between petitioner and respondent (sic) meaning of supply of any product, therefore, while allowing this writ petition impugned order dated 2.11.2010 passed by Respondent No. 1 is hereby set aside, thus, the claim submitted by Respondent No. 2 under Section 28 of the Consumer Protection Act, 2005 is not maintainable before Respondent No. 1/learned Presiding Officer District Consumer Court, Multan, which is hereby dismissed. However, Respondent No. 2 may agitate his grievance before any other competent forum according to the relevant provisions of law. With this observation this petition stands disposed of.

(R.A.) Petition disposed of

PLJ 2012 Lahore 363 [Bahawalpur Bench Bahawalpur]

Present: Abdus Sattar Asghar, J.

UZMA SHAHZAD--Petitioner

versus

PRINCIPAL SCHOOL OF NURSING, BAHAWAL VICTORIA HOSPITAL, (BVH), BAHAWALPUR and 2 others--Respondents

W.P. No. 66 of 2012/BWP, heard on 16.2.2012.

Rules and Regulations of Nursing Educational Institutions, 2001--

----R. 4.2--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Educational institution--Struck off the name from Rolls of School and declaring black listed--Petitioner was restrained to appear in final examination and refused to issue roll number slip--Challenge to--Termination/stricking off from Rolls of School and declaring black-listed amount to major penalty--For imposition of major penalty a duly constituted disciplinary committee comprising chairperson and member was bound to follow procedure--When law required a thing to be done in particular manner the same must be done accordingly and if prescribed procedure was not followed it would be presumed that same had not been done in accordance with law--It was evident on record that due process of law was not observed--Petition was allowed. [P. ] A & B

Constitution of Pakistan, 1973--

----Art. 10-A--Due process of law--Fundamental right to every citizen of Pakistan to have fair trial and due process--Question of fact or liability conclusively presumed without having recourse to procedural due process could not be said to have been determined under due process of law. [P. ] C

Mian Faiz ul Hassan, Advocate for Petitioner.

Mr. Muhammad Iqbal Sial, Advocate/Legal Advisor alongwith Sanjeda Irshad, Principal School of Nursing Bahawal Victoria Hospital, Bahawalpur for Respondents.

Date of hearing: 16.2.2012.

Judgment

Uzma Shahzad petitioner has invoked the constitutional jurisdiction of this Court to impugn the order dated 26.11.2011 passed by Respondent No. 1 whereby her name has been struck off from the school roll w.e.f. date of joining i.e. 26.10.2009 and she has also been declared as black listed and further directed to deposit a sum of Rs. 181966/- received as stipend forthwith in the Government Treasury.

1. Succinctly relevant facts leading to this constitutional petition are that petitioner applied for admission in the Nursing Course at School of Nursing Bahawal Victoria Hospital, Bahawalpur. After adopting the prescribed procedure and fulfillment of codal formalities and on the recommendation of Departmental Selection Committee she was selected as Probationer Nurse for three years training course vide admission letter dated 20.10.2009. In the year 2011, when she was studying in third year, Respondent No. 1 restrained her to appear in the final examination and also refused to issue roll-number slip. Being aggrieved petitioner lodged a W.P. No. 6171-2011/Bwp before this Court seeking a direction to Respondent No. 1 to issue roll-number slip for the ensuing examination and also to allow her to attend third year classes. Said writ "petition, however, was dismissed vide order dated 11.11.2011. Feeling aggrieved, the petitioner assailed the order dated 11.11.2011 through Intra Court Appeal before the Division Bench of this Court, however, on the request of the petitioner to withdraw the original writ petition the same was accordingly disposed of vide order dated 07.12.2011. In the meanwhile Respondent No. 1 passed the impugned order dated 26.11.2011 assailed through this writ petition.

2. Learned counsel for the petitioner has argued that the impugned order dated 26.11.2011 is against law and facts, void, arbitrary, without due process of law, passed without any lawful authority by Respondent No. 1 being corum non judice, without legal effect against the rights of the petitioner and is liable to set aside.

3. On the other hand learned counsel for the respondents with reference to the parawise comments furnished by Respondent No. 1 argued that petitioner in her admission form for the Nursing Class had tempered her intermediate marks from 537 to 551; that respondents having come to know about the misstatement and tempering of the F.Sc. marks by the petitioner got conducted an inquiry into the matter and on the basis thereof petitioner's name was struck off in accordance with law and that petitioner has no case to invoke the constitutional jurisdiction of this Court.

4. I have given patient hearing to learned counsel for the parties and gone through the record.

5. Perusal of the record transpires that Respondent No. 1 vide Letter No. 1502 dated 13.10.2011 directed the petitioner to produce her original F.Sc. examination certificate. The petitioner replied the said letter on 18.10.2010 stating that she has already submitted her original F.Sc. examination certificate. Consequently, Respondent No. 1 issued another letter to the petitioner Bearing No. 1968 dated 21.10.2011 stating that the matter has been inquired and on scrutiny of the record it is found that petitioner increased her marks in her F.Sc. examination certificate from 537 to 551 and got it attested from Mrs.Shahida Parveen Nursing Instructor of the said Institution to get the admission in the Nursing Course, therefore, she was called upon to explain her position. Petitioner submitted her explanation/reply to the said letter on 25.10.2011 contending that at the time of admission she has submitted her original certificates for checking. She admitted that she had obtained 537 marks out of 1100 marks in intermediate (pre-medical group). Consequently, Respondent No. 1 reported the matter to the Principal Quaid-e-Azam Medical College Bahawalpur vide letter dated 27.10.2011 with the following prayer:--

"In the light of above facts this office is required to order a regular inquiry into the above quoted allegations against her for this purpose an enquiry officer or enquiry committee may have to be nominated for the sake of justice and she will be given full opportunity to defend herself. This office will take necessary action upon the recommendation of said inquiry officer/committee accordingly, under the rules framed by the Pakistan Nursing Council and published upon the Admission form under the heading of conditions "Sharait".

The above report is submitted for your kind perusal and necessary advice in this regard please."

1. The Principal Quaid-e-Azam Medical College/Respondent No. 3 pursuant to the above constituted a Fact Finding Committee to conduct the fact finding inquiry vide order dated 31.10.2011 which reads below:--

"A committee consisting of the following is hereby constituted to conduct the fact finding enquiry. An application of Mr. Waris Ali s/o Ashiq Hussain, R/o Chak No. 35/BC, Tehsil & District Bahawalpur alongwith comments of Principal School of Nursing, Bahawalpur is attached.

1. Prof. Muhammad Sana Ullah Khan, Professor of Pathology, QMC.

2. Dr.Altaf Hussain Malik, Additional Principal Medical Officer, BVH.

Necessary report to the effect be submitted within 7-days, positively in the office of the undersigned."

1. The Committee submitted his report dated 10.11.2011 with the following recommendations:--

"RECOMMENDATIONS.

1. Illegal admission of Mst. Uzma Shahzad student 2nd year should be dealt as per rules of Nursing School.

2. Mst. Shahida Dost attested the forged photocopy of result card and also signed the merit list. She should be proceeded under PEEDA Rules.

3. Muhammad Ameer, Ex-Clerk Nursing School, Bahawalpur presently working in EDO Office Lodhran deliberately sent 537 marks for verification from the Board. He put the name of Mst. Uzma Shahzad in both the lists i.e. open and closed vide according to domicile she could be adjusted in open merit. He is recommended for major penalty and to be proceeded under PEEDA Rules.

4. On submission of above said report Principal Quaid-e-Azam Medical College vide letter dated 22.11.2011 directed the Respondent No. 1 as under:--

"To, The Principal School of Nursing, Bahawalpur.

Subject: ENQUIRY AGAINST MST.SHAHIDA DOST, MR.MUHAMMAD AMEER, EX-CLERK, NURSING SCHOOL AND MISS UZMA SHAHZAD D/O MUHAMMAD SHAHZAD, STUDENT NURSING SCHOOL, BAHAWALPUR.

A committee was constituted to conduct the fact finding enquiry regarding the illegal admission of Miss Uzma Shahzad D/O Muhammad Shahzad in response to application of Mr.Waris Ali S/o Ashiq Hussain. The enquiry committee has submitted his recommendation that illegal admission of Mst. Uzma Shahzad, Student of 2nd Year Class should be dealt as per rules of Nursing School.

You are directed to proceed under rules as well as Honourable High Court direction without further delay."

1. Bare reading of the above quoted recommendations of the Fact Finding Inquiry Committee dated 10.11.2011 as well as letter dated 22.11.2011 issued by Principal Quaid-e-Azam Medical College addressed to Respondent No. 1 makes it crystal clear that Respondent No. 1 was directed that illegal admission of the petitioner should be dealt with as per Rules of Nursing School. At this juncture it will be advantageous to reproduce the relevant Rules and Regulations of the Nursing Educational Institutions 2000 as revised in 2001 which reads below:--

"4. DISCIPLINE POLICY & PROCEDURE.

4.1 Responsibility for discipline.

Responsibility for discipline is as follows:

\ Principal in School of Nursing, \ Principal and Nursing Instructor in Hostels, \ Chief Nursing Superintendent and Nursing Superintendent in clinical areas.

In clinical areas, the Chief Nursing Superintendent and Nursing Superintendent (from their job description).

4.2 Disciplinary action procedures are as follows:

\ Written complaint against the defaulter.

\ Chance of defense in shape of explanation in writing from the defaulter.

\ Based on information from the defaulter, decision will be made by disciplinary committee whether it is a minor or major infraction.

For minor infractions three written warnings will be issued; if there is no improvement then the case will be treated as a major infraction.

For major offenses the disciplinary action committee will adopt the following procedure:

\ Inquire, statement of allegation.

\ Show-cause notice.

\ Charge sheet.

\ Final decision of penalty could be either:

\ to put the defaulter 6 months back, or, \ termination from the education or black listed.

Note: Cheating offenses will be referred to the NEB and to the Unfair Means Committee.

4.3 Minor infractions/offenses.

Minor infractions/offenses include punctuality, irregularities, absenteeism, defamation of the profession, breaking rules, damage of property etc.

4.4 Disciplinary committee for minor infractions

\ V Principal/Senior Nursing Instructor Chairperson

\ Two Nursing Instructors/Clinical Instructors. Member

\ One member from Nursing Services "

\ One member from Medical Administration "

\ One member from the Student Executive Committee "

4.5 Major infractions/offenses

Major infractions/offenses include theft, malpractice, misconduct, strikes, involvement in politics. unethical attitude with patients, addiction, suicide attempts, medication errors, cheating in examination, sex abuse, drug abuse etc.

4.6 Disciplinary committee for major infractions

\ Principal Chairperson

\ Chief Nursing Superintendent Member

\ Senior Nursing Instructor "

\ One member from Medical Administration "

\ One Student from Executive Committee "

1. In view of the afore-referred Rules it is crystal clear that termination/striking off from the Rolls of the School and declaring black-listed amounts to major penalty. For imposition of major penalty a duly constituted disciplinary committee comprising Chairperson and Members is also bound to follow the procedure laid down under Rule 4.2 ibid. It is astonishing that Respondent No. 1 through the impugned order dated 26.11.2011 has unilaterally terminated/struck off the petitioner from the Nursing Training Course w.e.f. date of joining and has also declared her as black-listed without adopting the due process of law as contemplated, in the above noted Rules. Respondent No. 1 in her own capacity as Principal was not competent to impose the major penalty.

2. It is well established that when law requires a thing to be done in a particular manner the same must be done accordingly and if prescribed procedure is not followed, it will be presumed that the same has not been done in accordance with law. It is evident on the record that in the instant case, due process of law is not observed. It is pertinent to mention that Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 furnish fundamental right to every citizen of Pakistan to have fair trial and due process. Certainly a question of fact or liability conclusively presumed without having recourse to the procedural due process cannot be said to have been determined under due process of law.

3. In this case, Respondent No. 1 in her capacity as Principal while passing the impugned order acted as corum non judice. The impugned order, therefore, passed by Respondent No. 1 without lawful authority being void ab-initio and ineffective as against the rights of the petitioner is untenable in law.

4. For the foregoing discussion and reasons, this writ petition is allowed and impugned order dated 26.1 1.2011 is set aside.

(R.A.) Petition allowed

PLJ 2012 Lahore 370

Present: Nasir Saeed Sheikh, J.

ISLAMIC REPUBLIC OF PAKISTAN through Secretary Ministry of Defence, Islamabad and 2 others-Appellants

versus

M/s. M. FAHEEM HAIDER AND COMPANY through Chief Executive, Okara--Respondents

R.S.A. No. 88 of 2004, decided on 15.12.2011.

Right of Appeal--

----Obligatory for First Appellate Court to have discussed entire evidence and then to have decided fate of appeal--Validity--Right of appeal against judgment and decree of Civil Court is statutory right and litigants have legal right to claim the decision of appeal in accordance with law after discussing the evidence produced by parties by First Appellate Court. [P. ] A

Mr. Azar Latif Khan, Deputy Attorney-General.

Mr. Riaz Karim Qureshi, Advocate for Respondent.

Date of hearing: 15.12.2011.

Order

The appellants have assailed the judgment and decree dated 23.2.2004 through the instant R.S.A.

1. Briefly stating the facts of the case are that the respondent instituted a suit for recovery of an amount of Rs. 16,89,325/- against the appellants before the learned Civil Judge Okara which suit was dismissed vide judgment and decree dated 24.6.1992 of the learned Civil Judge. The respondent preferred Civil Appeal No. 49/2004 against the judgment and decree dated 24.6.1992 of the learned Civil Judge. This appeal was allowed by the learned Additional District Judge Okara vide judgment and decree dated 23.2.2004 and the judgment and decree of the learned Civil Judge was set aside and the suit of the respondent was decreed for a sum of Rs. 16,89,325/- alongwith a compensation @ 12% per annum since 30.6.1985. Hence this R.S.A. against the judgment and decree dated 23.2.2004 of the learned Additional District Judge/First Appellate Court.

2. It is contended by the learned Deputy Attorney General that the learned First Appellate Court has set aside the judgment of the learned Civil Judge without discussing the evidence produced by the parties. It is argued that the parties produced oral as well as documentary evidence before the learned trial Court and the learned Senior Civil Judge dismissed the suit of the respondent through the judgment and decree dated 24.6.1992. At the appellate stage it was obligatory for the First Appellate Court to have discussed the entire evidence produced by the parties and then to have decided the fate of the appeal. The learned First Appellate Court only referred to one document Ex.P7 and decided the matter in favour of the respondent. The learned Deputy Attorney General has thus prayed for setting aside of the judgment and decree of the learned first appeal Court and remand of the case for decision afresh in accordance with law directing the First Appellate Court to discuss the evidence, meet the points raised by the learned Civil Judge and then decide the fate of the appeal.

3. The learned counsel for the respondent has contended that only Ex.P7 was the relevant document which has been discussed by the learned First Appellate Court for acceptance of the appeal.

4. I have considered the arguments of the learned counsel for the parties and have perused the contents of the judgment and decree passed by the learned First Appellate Court dated 23.2.2004.

5. Para-6 of the judgment points out that the learned Additional District Judge just discussed the contents of the written statement and document Ex.P7 and thereafter accepted the appeal. It is a matter of record that two witnesses were produced by the respondent alongwith documents Ex.P1 to P9, whereas the defendants/appellants produced DW-1 with record and document Ex. D1.

6. The right of appeal against the judgment and decree of the Civil Court is a statutory right and the litigants have legal right to claim the decision of the appeal in accordance with law after discussing the evidence produced by the parties by the learned First Appellate Court. The learned Additional District Judge did not comply with this requirement of law. Reliance in this respect is placed upon the judgment reported as CH. MUHAMMAD SHAFI VS. SHAMIM KHANUM (2007 SCMR 838) wherein the Hon'ble Supreme Court of Pakistan has laid down the law at page 841 of the judgment in the following manner:--

"It is a settled law that First Appellate Court has right to reverse the finding/conclusions of the trial Court while exercising power under Section 96 of the C.P.C. subject to the condition that First Appellate Court has to meet the reasoning of the trial Court in the first instance and thereafter reappraise the evidence on record while reversing the finding of the trial Court as law laid down by this Court in Madan Gopal's case PLD 1969 SC 617."

The manner in which the learned Additional District Judge has accepted the appeal of the respondent through the impugned judgment and decree has resulted into miscarriage of justice therefore is not sustainable in the eye of law. Therefore the impugned judgment and decree of the learned First Appellate Court is set aside and the matter is remanded to the learned District & Sessions Judge Okara for deciding the appeal himself after hearing both the parties within a period of two months from the date when a copy of this judgment is presented before him. The RSA is allowed leaving the parties to bear their own costs.

(R.A.) RSA allowed

PLJ 2012 Lahore 372 [Bahawalpur Bench Bahawalpur]

Present: Abdus Sattar Asghar, J.

Mst. SHAISTA SHAHZAD--Petitioner

versus

ADDITIONAL DISTRICT JDUGE and 3 others--Respondents

W.P. No3. 585 and 1439 of 2009, BWP, decided on 20.1.2012.

West Pakistan Family Courts Act, 1964--

----S. 5 & Schedule 11--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Columns of Nikahnama--Dower amount paid at time of nikah through Column Nos. 13 & 4 of Nikahama--Column Nos. 15 & 16 of Nikahnama that golden ornaments and a house were to be paid at time of Rukhsati--Column No. 19 of Nikahnama contains condition that husband will neither contract second marriage nor he will divorce--Rukhsati was never held--Suit for recovery of dower was dismissed, however, claim for recovery as additional dower was decreed in her favor--Suit for recovery of maintenance allowance was also decreed--Appeal was partly allowed judgments and decrees passed by Courts below were invoked constitutional jurisdiction of High Court--Petitioner was not entitled to deferred dower as marriage was never consummated--Condition of additional amount was neither enforceable nor Family Court had got jurisdiction to pass any decree--Question of--Whether such sort of claim falls within meaning of personal property and belonging of the wife enumerated of Schedule 11 to S. 5 of Family Courts Act--Validity--Family Court has no jurisdiction to entertain the petitioner's suit for recovery of conditional amount as incorporated in Column No. 19 of Nikahnama--Appellate Court had rightly set aside findings of Family Court lacking jurisdiction in such regard and did not call for interference by constitutional jurisdiction of High Court--Admittedly Nikahnama was duly signed by her, therefore, at that stage plea that dower amount was not paid to her at time of Nikah was devoid of any force--Petitioner was not entitled to claim any maintenance allowance was also devoid of any force--Parties had no case at all to invoke constitutional jurisdiction of High Court to impugn the judgment--Petition were dismissed. [P. ] A, B & D

2008 SCMR 186, 2010 YLR 423, 2010 YLR 2466 & PLD 2011 SC 260, ref.

Muhammadan Law--

----A valid Nikah under Muhammadan Law confers upon wife the right of maintenance and imposes on her obligation to be faithful and obedient to her husband for performance of marital duties--After recitation of Nikah petitioner never refused to effect union and perform merital obligation rather husband refused to obtain rukhsati on pretext that has to complete his studies and ultimately divorced petitioner--Trial Court had rightly decreed the suit for maintenance allowance from date of Nikah till date of divorce. [P. ] C

Mr. Hameed-uz-Zaman, Advocate for Petitioner.

Mr. Abdul Jaleel Khan, Advocate for Respondents 3-4.

Date of hearing: 20.1.2012.

Order

By virtue of this single order I intend to dispose of the instant writ petition as well as Writ Petition No. 1439/2009/BWP "Mohsin Raza vs. Shaista Shahzad etc." both arising out of the judgments dated 04.07.2008 and 23.12.2008 passed by the learned Judge Family Court and the learned Additional District Judge, Bahawalpur, respectively.

1. Brief facts leading to these petitions are that Nikah of Shaista Shahzad (to be called hereinafter as petitioner) and Mohsin Raza (to be called hereinafter as respondent) was solemnized on 25.01.2005 in lieu of dower amount of Rs.300,000/- paid at the time of Nikah, as revealed through Columns No. 13 and 14 of the Nikahnama. Columns No. 15 and 16 of the Nikahnama reveal that golden ornaments weighing 10 tolas and a house situated in Mohallah Aamkhas Bahawalpur valuing Rs.200,000/- were to be paid at the time of Rukhsati. Column No. 19 of the Nikahnama contains a condition that the husband will neither contract second marriage nor he will divorce the petitioner, otherwise he will pay a sum of Rs.200,000/- to the petitioner apart from dower. Record further reveals that Rukhsati was never held and this marriage was not consummated up till 11.08.2007 when the respondent divorced the petitioner. Consequently, petitioner lodged a suit for recovery of dower as well as additional amount of Rs.200,000/-. She also instituted another suit for recovery of maintenance allowance from the date of marriage till the date of divorce as well as of Iddat period. Both the suits were resisted by the respondent with the contention that the dower amount of Rs.300,000/- had been paid to the petitioner at the time of Nikah; that since Rukhsati never took place, therefore, she is not entitled to the deferred dower; that parents of the petitioner themselves refused to give Rukhsati and demanded for divorce whereupon he divorced her on 14.05.2007 through Conciliation Council which became effective on 11.08.2007 vide certificate issued by the Council, therefore, she is not entitled to claim any maintenance allowance from him.

2. Record further reveals that the learned Judge Family Court consolidated both the suits, framed issues on the basis of divergent pleadings of the parties and after recording their evidence dismissed the suit for recovery of dower, however, her claim for recovery of Rs.200,000/- as additional dower was decreed in her favour and against the respondent. Her suit for recovery of maintenance allowance was decreed in her favour against the respondent at the rate of Rs.2000/- per month from the date of Nikah i.e. 25.01.2005 till the date of divorce i.e. 14.05.2007 as well as for Iddat period of three months through a consolidated judgment dated 04.07.2008.

3. Both the parties being aggrieved of the impugned judgment and decree dated 04.07.2008 passed by the learned Judge Family Court preferred separate appeals before the learned Additional District Judge, Bahawalpur. The learned Additional District Judge after providing opportunity of hearing to the parties through a consolidated judgment dated 23.12.2008 partly allowed the appeal lodged by the respondent and dismissed the petitioner's suit for recovery of dower as well as additional dower of Rs.200,000/-. By virtue of the same judgment the learned Additional District Judge also dismissed the appeal of the respondent against the decree for maintenance allowance passed in favour of the petitioner.

4. Both the parties being aggrieved of the impugned judgments and decrees passed by the learned Courts below have invoked the constitutional jurisdiction of this Court through the aforementioned writ petitions alleging that the said impugned judgments are against law and facts, without lawful authority, untenable in the eye of law and liable to be set aside.

5. It is argued by the learned counsel for the petitioner that she was always willing to join the respondent as his lawfully wedded wife to perform her marital obligations, whereas the respondent himself delayed the ceremony of Rukhsati on one pretext or the other and ultimately divorced her, therefore, she is entitled to the dower fixed at the time of Nikah as well as additional sum of Rs.200,000/- which he is bound to pay on account of divorce at his own accord in terms of conditions agreed between the spouses, besides maintenance allowance, duly incorporated in the Nikahnama. He has also relied upon Muhammad Aslam vs. Mst. Fateh Khatoon (1969 SCMR 818), Nasrullah vs. District Judge, Mianwali and 2 others (PLD 2004 Lahore 588) and Muhammad Masood Abbasi vs. Mst. Mamona Abbasi (2004 YLR 482) [Lahore].

6. On the other hand, learned counsel for the respondent has argued that dower fixed to the tune of Rs.300,000/- at the time of Nikah had been promptly paid as reveals through entries in Columns No. 13 and 14 of the Nikahnama; that the petitioner is not entitle to the deferred dower as the marriage was never consummated. He added that condition of additional amount of Rs.200,000/- mentioned in Column No. 19 of the Nikahnama in the event of divorce is neither enforceable nor the Family Court has got the jurisdiction to pass any decree in this regard. In support of his arguments, he has relied upon Muhammad Bashir Ali Siddiqui vs. Mst. Sarwar Jahan Begum and another (2008 SCMR 186), Muhammad Amjad vs. Azra Bibi and 2 others (2010 YLR 423) [Lahore], Muhammad Yaqoob vs. Mst. Siani Bibi alias Shamma and 2 others (2010 YLR 2466) [Lahore] and Syed Mukhtar Hussain Shah vs. Mst. Saba Imtiaz and others (PLD 2011 S.C. 260).

7. I have given patient hearing to the learned counsel for the parties and perused the record.

8. At the outset, I take an opportunity to reproduce the dictums laid down in the afore-noted citations relied upon by the learned counsel for the parties.

9. In the case of Muhammad Aslam (1969 SCMR 818), Mst. Fateh Khatoon respondent had filed a suit for recovery of Rs.2000/- as damages for breach of contract executed at the time of marriage including a clause that if Muhammad Aslam violates any of the terms stated in the agreement he will pay Rs.2000/- as damages. Subsequently he contracted a second marriage, turned out his first wife from his house and later on divorced her. The main contention of Muhammad Aslam was that the condition mentioned in the agreement founded against Section 23 of the Contract Act and as such the plaintiff was not entitled to claim any damages for breach of the said contract. The learned trial Court decreed her suit which was upheld up to the second appellate Court. Muhammad Aslam defendant sought special leave to appeal before the Hon'ble Supreme Court. The Apex Court dismissed the petition for special leave to appeal with the following findings:--

"The learned Single Judge of the High Court has, in our opinion, rightly come to the conclusion that at least some of the conditions laid down in the agreement were enforceable in law and as such the plaintiff was entitled to claim a reasonable compensation for breach of those conditions of the agreement. The learned Single Judge has further found that the defendant had not paid the agreed amount of Rs.50 per month as maintenance for about nine years. In these circumstances, it cannot be said that the amount of Rs.2,000 which was awarded as damages, was excessive or unconscionable. We, therefore, see no ground for interference with the judgment and decree of the High Court."

1. In the case of Nasrullah (PLD 2004 Lahore 588), wife lodged a suit for recovery of Rs.200,000/- under the terms of Nikahnama as compensation for divorce pronounced by her husband Nasrullah without any justification. The suit was resisted on the plea that Family Court lacks jurisdiction to adjudicate upon the matter. The learned trial Court dismissed the suit with regard to the condition. On appeal, learned District Judge granted a decree of Rs.200,000/- in favour of the wife, which was impugned before this Court through writ petition under Article 199 of the Constitution. The writ was dismissed in limine with the following observations:--

"Now I find that Schedule to the Family Court Act, 1964 was amended on 1.10.2002 and following Item No. 9 was added: "9. Personal property and belonging of a wife". Now the said condition by all means vests the respondent lady with a right to bring an action against the petitioner to claim the said amount upon proof that she was divorced without any reason attributable to her. This being so, the respondent lady is vested with a right of action or what is termed as "actionable claim" in the Transfer of Property Act, 1882. Now the moment the said condition becomes operative the petitioner became indebted to the respondent in the said amount. Even if such debt or beneficial interest so accruing is conditional or contingent, falls within the meaning of actionable claim which is a property and transferable as such. In my humble opinion claim of respondent wife to the said amount accruing to her upon an unjustified divorce by all means a property and clearly falls within Item No. 9 of the Schedule read with Section 5 of Family Court Act, 1964.

In view of the said clear statutory provisions it cannot be said that the learned District Judge acted without lawful authority while decreeing the said claim of Respondent No. 3. The writ petition is dismissed in limine."

1. In the case of Muhammad Masood Abbasi (2004 YLR 482), it was held as follows:--

"9. Form of Nikahnama is prescribed under the Family Laws Ordinance and is therefore, indicative of the fact that the relevant law treats those columns as lawful. Column No. 19 of Nikahnama, relating to any restriction imposed on the husband's right of divorce, with a view to safeguard the interest of the wife, cannot be therefore deemed as unlawful. It is of no legal significance or consequence if the said condition/restriction was mentioned in Column No. 18 instead of Column No. 19 of the Nikahnama Exh.P.A.

1. It is true that restriction on husband's right to divorce the wife is not provided under the Family Laws or rules framed there under but it is also true that there is no provision in the aforesaid laws or rules that such restriction is void.

2. Under Islamic Law marriage is a civil contract and the husband has a right to divorce his wife whenever he desires without assigning any cause.

3. To preserve the marriage contract and to safeguard the interest of the wife against its unjustified termination by the husband, if any, stipulation is made in the Nikahnama whereby the husband agrees to pay some damages in the event of divorcing the wife without any just cause, such stipulation is neither against injunction of Islam nor against public policy. It is true that Islam allows husband to divorce his wife without assigning any cause but it is equally true that Islam also approves preservation and protection of marriage and does not approve unjustified exercise of this right by the husband which certainly leads to innumerable social problems for the divorcee and the children which consequently has an adverse impact on the society as well. By imposition of such condition, right of divorce of the husband is neither taken away nor is restricted in the sense that he can still divorce the wife in spite of the condition but in case he divorces her without any reasonable cause or justification he would be liable to pay the agreed amount as damages so that the destitute divorcee and children may make some arrangement for their food and shelter for the time being.

4. Condition for payment of damages to the wife in the event of divorcing her without any cause or justification is not against public policy but is rather in conformity with the same as it discourages unjustified divorces which result in broken homes and endless social and economic problems for the divorcee, children and the society as well.

5. Right of divorce was exercised by the petitioner, it was therefore, for him to show reasonable and just cause for exercising that right, in order to escape the liability of damages. Nothing was produced on record by the petitioner to prove that he had divorced the respondent on account of some just and reasonable cause. He was therefore, rightly held liable under the condition contained in Column No. 18 of the Nikahnama.

6. A perusal of the impugned judgment shows that it is entirely reasonable, conclusions drawn are based on evidence, are supported by plausible reasoning and the judgment does not suffer from any jurisdictional infirmity. It is therefore, not open to interference in revisional jurisdiction.

7. Resultantly finding no merit in this Civil Revision, it is accordingly dismissed in limine."

8. In the case of Muhammad Bashir Ali Siddiqui's (2008 SCMR 186), the Hon'ble Supreme Court observed as under:--

"3. Contention raised on behalf of the petitioner is that learned Family Judge as well as the learned Judge of Sindh High Court failed to take into account paragraph 17 of the Nikahnama, the provisions of which have already been mentioned above. According to him it was incumbent upon the family Court to award Rs.2,50,000 while granting decree by way of Khula in favour of petitioner. When confronted with the question as to whether parties could place restriction on their respective rights given to them by Shariat Law, Mr. Akhlaq Ahmed Siddiqui was unable to advance any plausible ground. His only contention was that such condition was embodied in the Nikahnama by way of safety and for prolongation of marriage contract, as it would deter both the parties from bringing an end to the marriage contract. This contention to say the least is absolutely frivolous as it is against the basic principle of law which require the parties to remain in marital ties in a peaceful and tranquil atmosphere and are not required to be bound by stringent conditions to remain in marriage bond.

1. This petition is absolutely without any substance and is dismissed. Leave refused."

2. In the case of Muhammad Amjad's case (2010 YLR 423) [Lahore], this Court observed as under:--

"7. The issue involved in the case by now has been settled by this Court. The matter regarding the damages envisaged in Column No. 17 of the Nikahnama is not amenable to the jurisdiction of the Family Judge. The matter can only be pursued before the Civil Court of general jurisdiction.

1. The writ petition is, therefore, accepted and the impugned judgments and decrees, passed by the learned lower Courts, are hereby set aside."

2. Before proceeding further it may be useful to remind that according to Mohammedan Law Nikah is not a Sacramento but a civil contract between a Muslim man and woman which is entered into for procreation and legalization of children and the spouses after consenting it are bound to respect it and to live within the limits of Allah. The contract of Nikah under the Mohammedan Law may be dissolved by the husband at his will without any intervention of a Court or by mutual consent of the husband and wife without intervention of a Court or by a judicial decree at the suit of husband or wife. In the Mohammedan Law a wife cannot divorce herself from her husband without his consent except under a contract whether made before or after marriage.

3. In view of the above legal position, it is understandable that if a Mohammedan wife can lawfully stipulates for a divorce under a contract then she can also stipulate for future claim in case of divorce apart from the dower fixed at the time of Nikah. Any such stipulation, therefore, cannot be termed as against public policy of the Mohammedan Law. Any claim on the basis of such stipulation arising out of the civil liability can be safely termed as "actionable claim". Any right within the meaning of "actionable claim" is prima facie alien to the "personal property and belonging of the wife" incorporated in Entry No. 9 of Schedule II to Section 5 of the Family Courts Act, 1964.

4. The controversy between the parties as to whether such sort of claim falls within the meaning of "personal property and belonging of the wife" enumerated at Serial No. 9 of Schedule II to Section 5 of the Family Courts Act, 1964, has already been dealt with by this Court in the case of Muhammad Akram vs. Mst. Hajra Bibi and 2 others (PLD 2007 Lahore 515). The relevant extract whereof reads below:--

"As regards the question, whether the suit is competent before the Family Court, it is the case of Respondent No. 1, and also held by the learned Additional District Judge that the matter falls within the Entry No. 9 of the Schedule to Section 5, i.e. "personal property and belonging of the wife". I feel amazed to note as to how the amount of Rs.1,00,000 allegedly payable by the petitioner on account of the divorce or bad relations between the parties, is the personal property or belonging of Respondent No. 1, so as' to bring the case within the jurisdiction of the Family Court. Such personal property or belonging referred to in Entry No. 9, in my considered view, is a residuary provision, which enables the wife to recover through the process of the Family Courts Act, 1964, whatever property she has acquired during the subsistence of the marriage, which is not the part of her dowry, through her own independent means or even through the means provided by the husband, such as her clothes, ornaments and items of personal use and nature, this may also include anything which has been gifted to the wife by the husband or any of his or her relatives or the friends; such property and belonging may be the one acquired by the wife out of the money given to her by the husband, her saving from household allowance, or pocket money, from the money provided by her parents and relatives. But definitely the aforesaid entry does not cover any amount which is not yet the property of the wife and she only has a claim to recover from the husband on the basis of any special condition incorporated in the Nikahnama. I am not convinced by the argument that the amount in question is covered under the rules of actionable claims as envisaged by Section 130 of the Transfer of Property Act, 1882. The term "actionable claim" in general means, a claim for which an action will lie, furnishing a legal ground for an action and according to Section 3 of the Transfer of Property Act, a claim towards a debt. On account of both the meanings such claim cannot be equated as a "personal property and belonging of the wife". Resultantly, in my considered view, the family Court has no jurisdiction in the matter and the suit in this behalf before the said Court was not competent."

1. At this juncture, it is pertinent to mention that the view propounded by this Court in the case of Muhammad Akram (supra) being divergent to the one postulated in the case of Nasrullah (supra) has been thoroughly examined by the Hon'ble Supreme Court in the case of Syed Mukhtar Hussain Shah vs. Mst. Saba Imtiaz and others (PLD 2011 S.C. 260). The Apex Court after examining the proposition from various angles and dimensions, concluded that the interpretation adopted by this Court in the case of Muhammad Akram (supra) is the correct explication of law. The relevant extract of the dictum laid down by the Hon'ble Supreme Court in the case of Mukhtar Hussain Shah (supra) reads below:--

"The definition of "actionable claim" in the TPA is strictly and exclusively relatable to the operative provisions of Chapter VIII of the Act, which by virtue of Sections 130 to 137 thereof inter alia, prescribes the requirements and the broad mechanism for the transfer and the assignment of the "actionable claims" so defined in Section 3. It has no application beyond the Act even if any general concept emerges on account of the expression, it is restricted to the law it forms part and cannot be stretched to apply to any other law of the land, including the Family Courts Act, 1964, thus the interpretation of Entry No. 9 ibid as provided by Muhammad Akram v. Mst. Hajra Bibi and 2 others (supra) is the correct explication of law, which is hereby approved. However adding thereto, it may be held that if the ratio of Nasrullah dictum (supra) which is entirely and solely founded on the noted concept/definition is taken to be correct, than a suit for Specific Performance, declaratory suits of any nature, or any other civil legislation between a wife and husband shall be amenable to the special jurisdiction of the family Court, which is not intent of the law. Because according to the literal approach of reading a statute, the statute has to be read literally by giving the words used therein, ordinary, natural and grammatical meaning. Besides, the addition and substraction of a word in a statute is not justified, except where for the interpretation thereof the principle of reading in and reading down may be pressed into service in certain cases; thus when in Entry No. 9 `actionable claim' has not been provided by the legislature, it shall be improper and shall impinge upon the legislative intent and the rules of interpretation to add this expression to the clause/entry."

1. As a sequel to the above, it is settled now that the Family Court has no jurisdiction to entertain the petitioner's suit for recovery of conditional amount of Rs.200,000/- as incorporated in Column No. 19 of the Nikahnama (Exh.P.1) between the parties. Therefore, learned appellate Court has rightly set aside the findings of the learned Family Court lacking jurisdiction in this regard and does not call for interference by invoking constitutional jurisdiction of this Court.

2. As regards petitioner's claim for dower amount of Rs.300,000/- mentioned in Column No. 13 of the Nikahnama (Exh.P.1), suffice to say that in the same column as well as in Column No. 14 it is categorically mentioned that the same has been paid to the petitioner at the time of Nikah. Petitioner in her cross-examination has admitted that she has never questioned the entries of Nikahnama before any forum till date. Admittedly, Nikahnama (Exh.P.1) is duly signed by her, therefore, at this stage her plea that dower amount Rs.300,000/- was not paid to her at the time of Nikah is devoid of any force. The learned Judge Family Court as well as the learned appellate Court, therefore, have rightly dismissed her claim of dower amount of Rs.300,000/-.

3. Simultaneously, respondent's plea that petitioner is not entitled to claim any maintenance allowance is also devoid of any force. A valid Nikah under the Mohammedan Law confers upon the wife the right of maintenance and imposes on her the obligation to be faithful and obedient to her husband for performance of her marital duties. It is evident on the record that after recitation of Nikah petitioner never refused to effect union and perform her marital obligations rather respondent himself refused to obtain Rukhsati on the pretext that he has to complete his studies and ultimately divorced the petitioner on 14.05.2007. Therefore, keeping in view the financial status of the respondent the trial Court has rightly decreed the petitioner's suit for maintenance allowance from the date of Nikah i.e. 25.01.2005 till the date of divorce i.e. 14.05.2007 as well as for Iddat period.

4. For the above discussion and reasons, I do not find any factual or legal infirmity in the impugned judgment and decree dated 23.12.2008 passed by the learned Additional District Judge, therefore, the parties have no case at all to invoke the constitutional jurisdiction of this Court to impugn the said judgment

5. As a sequel to the above both the above noted writ petitions being devoid of any merit are dismissed.

(R.A.) Petitions dismissed

PLJ 2012 Lahore 382 [Bahawalpur Bench Bahawalpur]

Present: Abdus Sattar Asghar, J.

MUHAMMAD SALEEM NAWAZ--Petitioner

versus

ADDL. DISTRICT JUDGE, CHISHTIAN DISTRICT BAHAWALNAGAR and 2 others--Respondents

W.P. No. 3982 of 2010/BWP, heard on 25.1.2012.

Punjab Rented Premises Ordinance, 2007--

----Ss. 8, 9(b) & 19(4)--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Ejectment petition on basis of rent agreement on grounds of default in payment of rent, subletting of rented premises and personal need--Relationship of land and tenant did not exist between parties--Ejectment petition did not fulfill necessary requirements--No cause of action--Failed to bring alleged tenancy in conformity with provisions of Ordinance 2007 by depositing 10% penalty of annual value of rent--Ejectment petition was allowed by Rent Tribunal--Appeal was dismissed--Challenge to--Validity--At time of filing of eviction application alleging as landlord of rented premises on basis of rent agreement dated 29.9.2007, P.R.P Ordinance, 2007 promulgated 16.11.2007 was holding field, before filing an ejectment petition it was incumbent upon landlord to bring tenancy in conformity of the provisions of Ordinances 2007 by depositing 10% penalty of annual value of rent of premises as stipulated u/Ss. 8 & 9(b) of Ordinance and to submit his affidavit and affidavits of two witnesses alongwith ejectment petition as stipulated u/S. 19(4) of Ordinance--Landlord had not fulfilled required of Ss. 8, 9(b) & 19(4) of Ordinance before filing the ejectment petition--Petition was allowed. [P. ] A & C

Punjab Rented Premises Ordinance, 2007--

----S. 19(4)--Ejectment petition--Landlord had not furnished sufficient cause or reasonable explanation for non-depositing 10% penalty of annual value of rent of premises as stipulated u/S. 19(4) of Ordinance--Validity--When law requires a thing to be done in particular manner the same must be done accordingly and if prescribed procedure was not followed, it will be presumed that the same had not been done in accordance with law--Departure from procedure of law not sufficiently explained with reasonable cause, rendered ejectment petition not maintainable in eyes of law. [P. ] B

Mr. Muhammad Saleem Faiz, Advocate for Petitioner.

Mr. Aejaz Ahmed Ansari, Advocate for Respondent.

Date of hearing: 25.1.2012.

Judgment

By virtue of this constitutional petition the petitioner has impugned the legality and propriety of the orders dated 26.01.2010 and 15.07.2010 passed by the learned Rent Tribunal and learned Additional District Judge, Chishtian, respectively, whereby petitioner's eviction from the rented property has been ordered.

1. Precise facts leading to this petition are that Manzoor Ahmad Respondent No. 3 filed an ejectment petition on the basis of rent agreement dated 29.09.2007 against the petitioner on 25.04.2008 before the learned Rent Tribunal, Chishtian on the grounds of default in payment of rent, subletting of the rented premises and personal need. The same was resisted by the petitioner by raising preliminary objections that relationship of land and tenant does not exist between the parties; that the ejectment petition does not fulfill the necessary requirements stipulated in the Punjab Rented Premises Ordinance, 2007; that the applicant has no cause of action and that the Rent Tribunal lacks jurisdiction to try the petition. Grounds for ejectment on merits were also resisted by the petitioner. Pursuant to the divergent pleadings of the parties, the learned Rent Tribunal framed the following issue:--

"(1) Whether respondent is tenant of applicant? OPA"

1. After recording evidence produced by the parties, learned Rent Tribunal through the impugned order dated 26.01.2010 decided the issue in favour of Respondent No. 3, allowed the ejectment petition and ordered the petitioner to vacate the disputed premises.

2. Petitioner being dissatisfied assailed the order of eviction before the learned Additional District Judge through appeal on the same grounds as set forth in his written reply before the Rent Tribunal. However, the learned appellate Court maintained the eviction order passed by the learned Rent Tribunal and dismissed the appeal, hence this constitutional petition on the grounds that both the orders passed by the learned Courts below are illegal, without lawful authority, of no legal effect and are liable to be set aside.

3. Learned counsel for the petitioner has argued that at the time of filing of the ejectment petition on 25.04.2008 Punjab Rented Premises Ordinance, 2007, promulgated on 16.11.2007, was holding the field, which later on was substituted with the Punjab Rented Premises Act, 2009; that the respondent failed to bring the alleged tenancy in conformity with the provisions of the Ordinance, 2007 by depositing 10% penalty of the annual value of the rent of the premises before filing an ejectment petition as stipulated under Sections 8 and 9(b) of the Ordinance, 2007 and also failed to submit his affidavit and affidavits of two witnesses along with the ejectment petition as stipulated under Section 19(4) of the Ordinance, 2007. Therefore, the ejectment petition was not maintainable at all and the impugned orders passed by the learned Courts below without adverting to the above noted objections, specifically raised in the written reply before the Rent Tribunal, suffer from legal infirmity and are untenable in the eye of law.

4. On the other hand, learned counsel for Respondent No. 3 has argued that the objections raised by the petitioner are of technical and directory nature and are curable in the interest of justice; that eviction orders passed by the learned Courts below are based on salutary findings after recording the evidence on factual controversy regarding relationship of landlord and tenant between the parties.

5. I have given patient hearing to the learned counsel for the parties and have perused the record.

6. Before proceeding further, I would like to reproduce Sections 8, 9(b) and 19(4) of the Rented Premises Ordinance, 2007, for ready reference, which reads below:--

"Sec. 8. Existing tenancy.--An existing landlord and tenant shall as soon as possible but not later than two years from the date of coming into force of this Ordinance, bring the tenancy in conformity with the provisions of this Ordinance."

"Sec. 9. Effect of non-compliance.--If a tenancy does not conform to the provisions of this Ordinance, the Rent Tribunal shall not entertain an application under this Ordinance:--

(a) .........

(b) on behalf of the landlord, unless he deposits a fine equivalent to ten percent of the annual value of the rent of the premises in the Government treasury.

(c) ..........."

"Sec. 19(4) If the application is for eviction of a tenant, the landlord shall submit his affidavit and affidavits of not more than two witnesses alongwith the eviction application."

1. There is no cavil to the proposition that at the time of filing of the eviction application by Respondent No. 3 alleging himself as landlord of the rented premises on the basis of rent agreement dated 29.09.2007, Punjab Rented Premises Ordinance, 2007 promulgated on 16.11.2007, was holding the field, therefore, before filing an ejectment petition it was incumbent upon Respondent No. 3 to bring the tenancy in conformity of the provisions of the Ordinance, 2007 by depositing 10% penalty of the annual value of the rent of the premises as stipulated under Sections 8 and 9(b) of the Ordinance, 2007 and to submit his affidavit and affidavits of two witnesses along with the ejectment petition as stipulated under Section 19(4) of the Ordinance, 2007. It is frankly admitted by the learned counsel for Respondent No. 3 that he has not fulfilled the requirements of Sections 8, 9(b) and 19(4) of the Ordinance, 2007 before filing the ejectment petition.

2. It will be expedient to note that an identical stipulation is also imposed upon a tenant in the provisions of Section 22(3) of the Ordinance ibid, which reads below:--

"Sec.22(3) An application for leave to contest shall be in the form of a written reply stating grounds on which the leave is sought and shall be accompanied by an affidavit of the respondent, copy of all relevant documents in his possession and, if desired, affidavits of not more than two witnesses."

1. A controversy as regards the effect of non-filing of the affidavit in terms of Section 22(3) of the Ordinance has already been settled by the Hon'ble Supreme Court in the case titled Khalil-ur-Rehman and another vs. Dr. Manzoor Ahmed and others (2011 PSC 704) [Supreme Court of Pakistan], as under:--

"The second part of the Section commands that the application should be accompanied by the affidavit of the respondent. As it is an express requirement of the law, and it is settled by now that where the law requires an act to be done or performed in a particular manner it has to be accordingly done/performed and not otherwise, besides, it is also the rule of law that where an application/pleading should be supported by an affidavit under a statutory provision which is not filed, such application shall not be maintainable. However, the defect in this behalf is curable, but only in those cases where a sufficient cause' andreasonable explanation' is propounded by the respondent for not filing his affidavit alongwith the leave application, otherwise such defect should not be permitted to be cured by the Tribunal as a matter of course or routine; to this extent the provisions are mandatory."

Keeping in view the above quoted dictum of the Apex Court and the fact that Respondent No. 3 has never lodged any application before the Rent Tribunal showing any sufficient cause' orreasonable explanation' for non-filing of affidavit in support of the eviction petition, the same will be deemed as not maintainable.

1. Besides above Respondent No. 3 has also not furnished any sufficient cause' orreasonable explanation' for non-depositing 10% penalty of the annual value of the rent of the premises as stipulated under Section 19(4) of the Ordinance. It is an established principle of law that when law requires a thing to be done in a particular manner the same must be done accordingly and if prescribed procedure is not followed, it will be presumed that the same has not been done in accordance with law. A departure from a clear procedure of law not sufficiently explained with reasonable cause, therefore, render the ejectment petition not maintainable in the eye of law. In this case learned Rent Tribunal as well as the learned Additional District Judge while passing the impugned orders have lost sight of the fact that eviction application lodged by Respondent No. 3 is not legally maintainable, therefore, both the impugned orders are not tenable in the eye of law.

2. For the above discussion and reasons, this writ petition is allowed and both the impugned orders suffering from legal infirmities are set aside. However, Respondent No. 3 may file a fresh eviction petition before the Rent Tribunal, in accordance with law.

(R.A.) Petition allowed

PLJ 2012 Lahore 387 [Rawalpindi Bench Rawalpindi]

Present: Sagheer Ahmad Qadri, J.

MURTAZA SHAH--Petitioner

versus

MUHAMMAD SHAH--Respondent

C.R. No. 11 of 2003, decided on 10.2.2011.

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

----Ss. 105(2) & 115--Civil revision--Remanded matter to trial Court to disposed of issue afresh--Not challenged by petitioner--Subsequently at that stage petitioner was precluded from challenging--Findings on remaining issues as already were upheld by Appellate Court--Validity--When findings on remaining issues except issue superior right of pre-emption of plaintiff were upheld and petitioner did not challenge same, it attained finality and now petitioner was precluded from challenging same--Held: As earlier remand order was not challenged by petitioner to extent of remaining issues except issue No. 1 and he did not file appeal, therefore, that findings could not be challenged--Courts below had reached at right conclusion as both parties were co-sharers, therefore, they had equal right against each other, therefore, they were rightly held entitled to half share each in land subject matter of the suit--Petition being without any substance was hereby dismissed. [P. ] A, B & C

PLD 1970 SC 63, 1995 MLD 699, 1996 MLD 553, PLD 1974 Lah. 208 & 1991 MLD 1919, ref.

Mr. Muhammad Siddique Awan, Advocate for Petitioner.

Mr. Noman Munir Paracha, Advocate for Respondent.

Date of hearing: 10.2.2011.

Order

Brief facts in order to dispose of this civil revision are that Muhammad Shah respondent-plaintiff filed a suit for possession through pre-emption against the present petitioner-defendant to pre-empt the sale of land measuring 50 kanals 1 marla situated in the revenue estate of Mauza Bhall Syedan, Tehsil Fateh Jang District Attock, subject matter of Mutation No. 864 dated 30.10.1995 mentioning the facts in the plaint that one Shah Sawar sold his land above mentioned to petitioner-defendant in consideration of Rs. 30,000/-. However, in order to defeat the right of pre-emption of the petitioner-defendant its fictitious price was shown as Rs. 1,30,000/-; that sale was kept secret and no prior notice whatsoever was issued nor it was brought into the knowledge of the petitioner-defendant; that on 19.11.1995 when petitioner-defendant came to know about the sale he at the same time in the presence of witnesses performed Talb-i-Muwathebat showing his intention to pre-empt the sale having preferential right as "Shafi Shareek", "Shafi Khaleet" and "Shafi Jaar"; that subsequently petitioner-defendant on 21.11.1995 sent notice of Talb-i-Ishhad. Petitioner-defendant claimed the pre-emption of the land on the basis of superior right being "Shafi Shareek", "Shafi Khaleet" and "Shafi Jaar". Suit was resisted by the petitioner-defendant by filing his written statement, wherein he raised three preliminary objections about the maintainability of the suit on the ground of estoppal, non-performance of Talb-i-Wuwathebat as well as filing of the suit with malafide. On factual side, sale was admitted, however, it was agitated that sale price was paid with bonafide, that petitioner-plaintiff was in the knowledge of the sale and all the other assertions were denied by the petitioner-defendant Out of the pleadings of the parties learned trial Court framed the following issues:--

1. Whether the plaintiff has superior right of pre-emption against the defendant?OPP

2. Whether the plaintiff has made Talbs as required under the Punjab Pre-emption Act ? OPP

3. Whether a sum of Rs. 1,30,000/- was fixed in good faith and was actually paid as price of the suit land?OPD

4. What was the market value of the suit land at the time of sale, if Issue No. 3 is not proved? OPParties.

5. Whether the defendant made expenses on payment of mutation fee and District Council fee etc.? If so, to what extent and with what effect?OPD

6. Whether the plaintiff is estopped by his words and conduct to bring the suit? OPD

7. Whether the suit is vexatious and defendant is entitled to recover special costs u/S. 35-A CP.C? If so, to what extent

8. Relief.

9. Parties were directed to lead their respective evidence. Respondent-plaintiff Muhammad Shah himself appeared as PW-1 and he examined Haider Shah son of Noor Shah and Hubdar Shah son of Haider Shah as PWs 2 & 3 respectively. Learned counsel for the respondent-plaintiff closed the evidence while getting exhibited copy of Jamabandi for the year 1990-1991 (Exh.P2), copy of Mutation No. 864 (Exh.P4) and postal receipt etc. as Exh.P4 and Exh.P5.

10. On the other hand, petitioner-defendant himself appeared as DW-1 and his learned counsel closed the evidence. Learned trial Court after hearing the parties vide judgment & decree dated 22.9.2001 partially decreed the suit of the respondent-plaintiff and property in question was directed to be shared by the parties equally with the direction to deposit the half sale price of Rs. 65,000/- after deducting Zar-e-Shuffa, if already deposited in Court and Rs. 7,000/- as incidental charges. Feeling aggrieved parties preferred two separate appeals, which were heard and accepted by the learned ADJ vide judgment dated 10.6.2002 whereby he remanded back the matter to the learned trial Court with the direction to decide the same after giving afresh findings upon Issue No. 1 while determining the superior right khewatwise. The learned trial Court vide judgment & decree dated 22.7.2002 held the respondent-plaintiff entitled to the extent of 37 Kanals 5 marlas. Feeling aggrieved the parties again filed two separate appeals against the judgment & decree dated 22.7.2002 which were heard and decided by the learned ADJ vide judgment & decree dated 2.9.2002 whereby he upheld the judgment dated 22.7.2002. Feeling aggrieved petitioner-defendant has preferred this civil revision.

11. Learned counsel for the petitioner-defendant contends that both the learned Courts below did not take into consideration the statement of PW-3 Hubdar Shah who during cross-examination admitted that on third day of the sale petitioner-defendant got the possession and plaintiff-respondent at that time when he was ploughing the field reached there whereas in plaint as well as in the statement it was stated by the plaintiff that he came to know about the factum of sale on 19.11.1995 at 8:00 am when he was told by Haider Shah, thus, Talb-e-Muwathebat was not proved and suit was liable to be dismissed on this score. Further adds that plaintiff-respondent's witnesses contradicted each other in respect of performance of Talb-e-Muwathebat.

12. Learned counsel for the respondent-plaintiff while referring the judgment dated 10.6.2002 argued that while maintaining the findings of the learned trial Court vide judgment & decree dated 22.9.2001 and while maintaining the findings on rest of the issues while setting aside the findings on Issue No. 1 remanded to the learned trial Court to dispose of this issue afresh; that the learned trial Court decided Issue No. 1 in favour of the plaintiff while maintaining the findings on remaining issues as earlier passed according to the earlier judgment and decreed the suit. Further argued that the impugned judgment & decree dated 2.9.2002 passed by learned ADJ whereby it was specifically observed that in the earlier round of litigation learned ADJ while maintaining the findings of learned trial Court on Issues No. 2 to 7 remanded the matter to the learned trial Court to dispose of the Issue No. 1 afresh thus the findings on Issues No. 2 to 7 have attained finality which was not challenged by the petitioner-defendant. While referring Section 105(2) C.P.C argued that as earlier findings of order of remand were not challenged, therefore, subsequently at this stage petitioner is precluded from challenging the same.

13. I have considered the arguments advanced by learned counsel for the parties and have gone through the file.

14. Admittedly, learned trial Court vide judgment & decree dated 22.9.2001 decreed the suit while deciding all the issues and while upholding the findings on remaining issues except Issue No. 1 which relates to superior right of pre-emption it was remanded to the learned trial Court to decide this issue afresh and pass the judgment accordingly. The learned trial Court vide judgment & decree dated 22.7.2002 while deciding Issue No. 1 declared the vendee and vendor as co-sharers, decreed the suit and declared that they shall be entitled in equal share in the land in question. Findings on remaining issues as already were upheld by the learned appellate Court, therefore, same findings were passed by the learned trial Court in post remand judgment & decree dated 22.7.2002. Appeal was filed by the petitioner-defendant and learned appellate Court vide impugned judgment & decree dated 2.9.2002 while taking into consideration earlier remand order in the light of Section 105(2) of C.P.C decided Issue No. 1 in appeal and upheld the findings of the learned trial Court. It was observed by the learned First Appellate Court that in the light of earlier remand order passed by the learned appellate Court when the findings on remaining issues except Issue No. 1 were upheld and the petitioner-defendant did not challenge the same, therefore, it attained finality and now petitioner-defendant was precluded from challenging the same. If Section 105(2) C.P.C is seen, it reads as under:--

15. Other orders.--(1) --------------------

(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal there from, he shall thereafter be precluded from disputing its correctness.

By mere reading of Section 105(2) C.P.C mentioned above it is clear that as earlier remand order was not challenged by the petitioner-defendant to the extent of remaining issues except Issue No. 1 and he did not file appeal, therefore, those findings cannot be challenged. Reference for that purpose can be seen in judgments cited as PLD 1970 SC 63 (Abdul Hakim and 2 others Vs. Saadullah Khan and 2 others) 1995 MLD 699 (Abdul Qadir and others Vs, Muhammad Arshad and others), 1996 MLD 553 (Syed Waheed Ahmad Vs, Niaz Muhammad), PLD 1974 Lahore 208 (Muhammad Hussain Vs. Fazal Haq and another), AIR 1972 SC 1612 (Sita Ram Goel Vs. Sukh Nandi Dayal and another) and 1991 MLD 1919 (Dr.Muhammad Shaukat Iqbal and others Vs. Muhammad Luqman Arshad). So far as, findings of the learned trial Court as well as learned appellate Court on Issue No. 1 are concerned, both the learned Courts have reached at a right conclusion as both petitioner as well as respondent are co-sharers, therefore, they had equal right against each other, therefore, they were rightly held entitled to half share each in the land subject matter of the suit. Resultantly, this revision petition being without any substance is hereby dismissed with no order as costs.

(R.A.) Petition dismissed

PLJ 2012 Lahore 393

Present: Rauf Ahmad Sheikh, J.

Mst. KANEEZ FATIMA--Petitioner

versus

STATION HOUSE OFFICER, P.S. SOUTH CANTT, LAHORE and 5 others--Respondents

W.P. No. 7085 of 2011, decided on 22.11.2011.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 496-A--Constitutional petition--Petitioner refuted allegation of abduction--Statements with their free consent--No objection on acceptance of petition--Abductee stated that no body had abducted her and she had contracted marriage with her free consent--Validity--Commission of offence as was alleged in FIR was not made out--Petition was accepted and FIR was quashed. [P. ] A

Mr. Shahid Rafique Meo, Advocate learned-counsel for Petitioner and petitioner in person.

Mr. Iftikhar-ur-Reahid, AAG and Aslam, ASI along with record.

Mr. Safdar Masih, Complainant in person.

Date of hearing: 22.11.2011.

Order

A meeting of Mst. Kaneez Fatima with Safdar Masih has been arranged. They state that they will make the statements with their free consent. Let their statements be recorded on separate sheets.

Sd/- Rauf Ahmad Sheikh Judge

22.11.2011 Presence as above.

The complainant states that he has no objection on acceptance of this writ petition. Mst. Kaneez Fatima states that no body had abducted her and she has contracted marriage with Ghulam Mustafa with her free consent. Their statements have been recorded. The petitioner is mother of an infant and according to her she is leading a happy married life. She refuted the allegation of her abduction. The complainant has no objection on acceptance of this petition. The commission of offence as is alleged in the FIR is not made out. The petition is accepted in FIR No. 867/2010, dated 12.8.2010, under Section 496-A PPC, Police Station, South Cantt, Lahore is hereby quashed.

(R.A.) FIR Quashed

PLJ 2012 Lahore 394

Present: Ijaz Ahmad, J.

RANA MAQBOOL AHMED KHAN--Petitioner

versus

AZHAR SIDDIQUE and 2 others--Respondents

W.P. No. 25440 of 2010, decided on 5.3.2010.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Eviction application against tenant having failed to pay enhanced rent--Remand order was not final adjudication, it will only allow parties to have cause decided on merits after adducing respective evidence--Remanding order cannot be challenged in constitutional petition--Validity--Order accepting tenant's application for leave to contest and remanding case for its adjudication on merits was not exceptional or perverse and had been passed in exercise of jurisdiction vested in Court--Petition was dismissed. [P. ] A

2007 CLC 768, 1986 SCMR 1607, 2004 MLD 2024 & 2009 CLC 860, ref.

Rana Maqbool Ahmed Khan, Advocate for Petitioner in person.

Mr.Azhar Siddique Cheema, Advocate for Respondent No. 1.

Date of hearing: 5.3.2012.

Order

The petitioner filed an eviction application against Respondent No. 1/tenant contending therein that the respondent having failed to pay the enhanced rent as stipulated in Paragraph No. 3 of the written agreement and the period of agreement having come to an end, is liable to eviction. The respondent submitted an application for leave to contest. It was averred that the petitioner-landlord had accepted the rent even without enhancement and therefore, was estopped to demand eviction of the respondent on the ground of willful default in payment of the rent. The learned Rent Controller vide order dated 09.04.2010 dismissing the application of the respondent for leave to contest, accepted the petitioner's eviction application. Respondent preferred an appeal. It was accepted by the learned Additional District Judge, Lahore vide order dated 16.11.2010 and leave to contest was granted to the respondent. The eviction application was remanded for adjudication.

1. It is contended by the learned counsel for the petitioner that accepting of the rent by the petitioner without enhancement does not amount to a waiver and the petitioner has every right to ask for the eviction of the respondent on the grounds mentioned in the eviction application; that the petitioner on account of his failure to pay the enhanced rent has incurred willful default, therefore, the impugned order accepting the petitioner's application for granting leave to contest and remanding the matter is illegal and is liable to be set-aside.

2. On the other hand, it is contended by the learned counsel for the respondent that the remand order is not the final adjudication, it will only allow the parties to have the cause decided on merits after adducing their respective evidence; that the order passed by the learned appellate Court is neither exceptional nor perverse and has been passed without jurisdiction. Relies on "2007 CLC 768" titled Akbar Ali and 18 others Vs. Mukhtar Ahmad and 14 others", "1986 SCMR 1607" titled Divisional Superintendent, Pakistan Railways, Rawalpindi Vs. Muhammad Aslam and 25 others, "2004 MLD 2024" titled Jafar Hussain Vs. Member (Judicial IV), Board of Revenue of Punjab, Lahore and 3 others & "2009 CLC 860" titled Mst. Salim-un-Nisa and 5 other Vs. Aziz and another, to argue that the order remanding the case cannot be challenged in a Constitutional petition.

3. I have the learned counsel for the petitioner, for Respondent No. 1 and also gone through the impugned orders.

4. The impugned order accepting the respondent's/tenant's application for leave to contest and remanding the case for its adjudication on merits is not exceptional or perverse and has been passed in exercise of jurisdiction vested in the Court. This petition has no merit. Relying upon the judgments referred by the learned counsel for the respondents, the petition is, hereby, dismissed.

Since it is a rent matter and has been pending since long, the learned Rent Controller is directed to decide the eviction application within two months from the receipt of the order of this Court.

(R.A.) Petition dismissed

PLJ 2012 Lahore 396

Present: Ch. Shahid Saeed, J.

ABDUL HAQ and 7 others--Petitioners

versus

ASGHARI BEGUM--Respondent

C.R. No. 3484 of 2010, heard on 2.4.2010.

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

----S. 115--Civil revision--Suit for declaration with permanent injunction--Controversy about general power of attorney executed by plaintiff in favor of her real brother who on basis of same gifted out the property and subsequent mutations were sanctioned--Question of--Whether general power of attorney was true or not--Presumption of truth was attached to register documents--After receipt of consideration amount power of attorney was got registered--Respondent appeared before sub-registrar and put her thumb impression power of attorney in presence of witnesses--Respondent could not be allowed to seek cancellation of same--Validity--Courts below thrashing all aspects relating to that matter was required but Courts had failed to apply judicious mind and all other ignored--Civil revision was allowed--Appellate Court can resort to comparison of thumb impression of lady as according to petitioner--Lady was present before sub-registrar when alleged power of attorney was executed but ladies denied same. [P. ] A & B

Mr. Muhammad Iqbal Mohal, Advocate for Petitioners.

Mr. Zahid Ghafoor Azam, Advocate for Respondent.

Date of hearing: 2.4.2012.

Judgment

This civil revision is directed against judgments and decrees dated 8.10.2010 and 2.7.2010 passed by learned Additional District Judge, Pasrur and learned Civil Judge, Pasrur respectively.

1. Succinctly stated the facts leading to the filing of this civil revision are that Mst. Asghari Begum, respondent, instituted a suit for declaration with permanent injunction against the present petitioners alleging therein that she being the owner of land measuring 40 kanal-1 marla, fully described in the plaint, leased out the same to her real brother Abdul Haq for a period of seven years from 1998 to 2005 against lease money of Rs. 70,000/- but when, after expiry of lease period, she contacted Abdul Haq for renewal of lease, he first kept the matter pending on one pretext or the other for some time and ultimately, informed the plaintiff that she had made general power of attorney No. 478, dated 18.12.1997 in his favour by virtue of which, Abdul Haq gifted the suit property to his real son vide Gift-Deed No. 425, dated 05.08.1998. The plaintiff avers that she did not execute the power of attorney in favour of Abdul Haq which is result of fraud and has been got prepared in connivance with the revenue officials. The plaintiff prayed for cancellation of general power of attorney Bearing No. 478 dated 18.12.1997, Gift-Deed No. 425 dated 18.12.1997 and subsequent Mutations No. 1 to 8 dated 22.01.2000 averring that the said documents are illegal and inoperative upon the rights of the plaintiff.

2. The petitioners-defendants hotly contested the suit by way of filing written statement whereby the averments of the plaintiff were opposed. Keeping in view divergent pleadings of the parties, the learned trial Court framed as many as nine issues including that of relief. After recording oral as well as documentary evidence of the parties, the learned trial Court proceeded to decree the suit of the plaintiff vide judgment and decree dated 02.07.2010. The appeal preferred thereagainst by the petitioners was dismissed vide judgment and decree dated 08.10.2010 passed by learned First Appellate Court. Hence this Civil Revision.

3. Learned counsel for the petitioners mainly contends that the general power of attorney was duly executed by the plaintiff in favour of her real brother Abdul Haq after receipt of consideration amount of Rs. 2,60,000/- which power of attorney was also got registered. Further argues that she herself appeared before the Sub-Registrar and put her thumb impression on the disputed general power of attorney in presence of the witnesses whereafter she could not be allowed to seek cancellation of the same. He avers that presumption of truth is attached to the registered documents. His more stress was on the point that the plaintiff lady is still alive, therefore, the matter, be remanded to learned trial Court for comparison of thumb impression of the lady so that truth may be reached. Learned counsel further avers that no illegality or fraud has been committed by Abdul Haq who having possession of the property and holding the general power of attorney was fully authorized to gift the disputed property to his son. He further points out that the possession of the property is admittedly with the petitioners but the plaintiff has filed the suit for declaration without seeking possession which is not maintainable. He further argues that learned Courts below have failed to apply their judicious mind and even issue-wise findings have not been given by them. He prays that the instant civil revision be allowed, the impugned judgments and decrees be set aside and the case be remanded to the learned trial Court for decision afresh. He has relied upon the law laid down in cases Rahmatullh Khan and another vs. Ghulam Farid (2009 SCMR 371). Abdul Mannan and others vs. Sikandar Khan (1992 CLC 505), Alam Khan and 3 others vs. Pir Ghulam Nabi Shah & Company (1992 SCMR 2375), Taj Muhammad Khan (deceased) through LRs and another vs. Mst. Munawar Jan and others (PLJ 2009 SC 375) and Nazir Ahmad and another vs. M. Muzaffar Hussain (2008 SCMR 1639).

4. On the other hand, learned counsel for the respondent-plaintiff vehemently opposes this civil revision and fully supports the impugned judgments and decrees.

5. The whole controversy revolves around the general power of attorney allegedly executed by the plaintiff in favour of her real brother Abdul Haq who on the basis of the same gifted out the property in favour of his son vide Gift-Deed No. 425 dated 18.12.1997 and subsequent Mutations No. 1 to 8 dated 22.01.2000 were also sanctioned. The alleged power of attorney was registered vide No. 478 on 18.12.1997. Issue No. 5 was framed at to whether the general power of attorney was true or not but the same has not been discussed independently nor independent findings have been given by learned Courts below. In my view, Issue No. 5 was a vital issue add full-fledge discussion by learned Courts below thrashing all the aspects relating to this matter was required but the learned Courts have failed to apply their judicious mind and altogether ignored Issue No. 5. In this view of the matter, the instant civil revision is allowed, judgment and decree dated 08.10.2010 passed by learned First Appellate Court is set aside and the case is remanded to the learned First Appellate Court for decision afresh after hearing the parties. For the very purpose, the appeal of the petitioners would be deemed to be pending before the learned lower appellate Court. The appellate Court may resort to comparison of thumb impression of the plaintiff lady as according to learned counsel for the petitioner, the lady was present before the Sub-registrar when the alleged power of attorney was executed but the lady denies the same. Parties are directed to appear before the learned First Appellate Court on 21.4.2012.

(R.A.) Case remanded

PLJ 2012 Lahore 399 [Multan Bench Multan]

Present: Muhammad Qasim Khan, J.

GHULAM HAIDER--Petitioner

versus

FARKHANDA IQBAL, SSP INVESTIGATION, LODHRAN and 2 others--Respondents

W.P. No. 1192 of 2012, decided on 22.2.2012.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 406 & 506--Constitutional petition--Criminal breach of trust--Superdari by an order of Ilaqa Magistrate--Tractor was handed over to respondent on superdari--I.O. had acted beyond territorial jurisdiction Direction to recover tractor from petitioner and produce it before Court--Challenge to--After registration of the case, through proper legal course the custody of the tractor was handed over to respondent on superdari by an order of Magistrate--It was no where mentioned that superdari was cancelled for any other reason--Prima facie the order giving tractor on superdari still holds the field--In presence of such an order, SSP investigation was not vested with any authority to direct I.O to recover the tractor from petitioner for its production before him--Order of SSP to extent it directed recovery of tractor from petitioner was declared illegal and without lawful authority--Petition was allowed. [P. ] A

Rana Khalid Mehmood, Advocate for Petitioner.

Date of hearing: 22.2.2012.

Order

It is argued by learned counsel that petitioner is complainant of case FIR No. 167/2010 dated 13.03.2012 under Sections 406/506 PPC Police Station City, Lodhran for criminal breach of trust by Respondent No. 3 with regard to Tractor. During investigation the said Tractor was recovered, Accused/Respondent No. 3 was declared guilty and the Tractor was handed over to Respondent No. 3 on Superdari. It is further argued that as the accused were not being arrested, the petitioner filed W.P. No. 912/2012, whereupon direction was issued to DPO-Lodhran to look into grievance of the petitioner, hold an inquiry and if officials are found guilty in the performance of duty, he shall proceed against them departmentally. The grievance of the petitioner is that under the garb of said direction of this Court the SSP (Investigation) on 21.01.2012 held that Investigating Officer had acted beyond his territorial jurisdiction, as such, directed the Investigating Officer to recover the Tractor from the petitioner and produce it before him. This order/direction has been assailed by the petitioner through the instant writ petition.

1. I have heard the learned counsel and perused the available record.

2. I would not like to comment on the merits or demerits of the case, as any finding or observation of this Court, may subsequently prejudice the case of either side. However, it is established from the record that after registration of case, through proper legal course the custody of the disputed Tractor was handed over to Respondent No. 3 on Superdari by an order of the Ilaqa Magistrate. It is no where mentioned that said Superdari order was either set aside by any Court or the Superdari was cancelled for any other reason. Therefore, prima facie the order giving the Tractor to Respondent No. 3 on Superdari, still holds the field. In the presence of such an order, the SSP (Investigation), at least, was not vested with any authority to direct the Investigating Officer to recover the disputed Tractor from the complainant/petitioner for its production before him. Consequently, the impugned order of the SSP (Investigation) to the extent it directs recovery of Tractor from the petitioner, is declared illegal and without lawful authority. Other conclusions by the SSP (Investigation) in the impugned order/direction dated 21.01.2012, relate to factual assessment and this Court while sitting in constitutional jurisdiction, cannot determine the truth or falsehood of such conclusions. This writ petition, therefore, is partially allowed in the above terms.

(R.A.) Petition allowed

PLJ 2012 Lahore 401

Present: Nasir Saeed Sheikh, J.

HAMEEDULLAH KHAN--Petitioner

versus

RAZA MUHAMMAD and 4 others--Respondents

C.R. No. 92 of 2009, decided on 21.12.2011.

Right of Pre-emption--

----Superior right on basis of being co-sharer in joint Khata--Necessary talbs were not established--Non-performance of talb-i-ishhad--Non production acknowledgement due receipt of notice of talb-i-ishhad--Duty of plaintiff to prove service of notice talb-i-ishhad by producing postman--Validity--In plaint, claimed to have performed talbs particularly talb-i-ishhad by sending notices to respondents through registered postal service--Petitioner produced notices talb-i-ishhad and postal receipts in proof of performance of talb-i-ishhad--Petitioner did not claim any acknowledgment receipts in respect of registered notices nor any such receipts had been produced--Petitioner had not produced postman to prove the presentation of notices of talb-i-ishhad which were refused to have been received by them--Important piece of evidence was lacking and, therefore, plaintiff must fail in his suit and appellate Court had rightly dismissed the suit--No infirmity was found in judgment and decree passed by First Appellate Court--Revision was dismissed. [P. ] A, B & C

2007 SCMR 1105 & 2011 SCMR 762, rel.

Mr. Imtiaz Hussain Khan Baloch, Advocate for Petitioner.

Sh. Naveed Shahryar, Advocate for Respondents.

Date of hearing: 21.12.2011.

Order

The present petitioner instituted a suit for possession through exercise of his right of pre-emption of subject land measuring 20 kanals described in the title of the suit purchased by the respondents through Mutation No. 3485 dated 24.4.2005 for a sum of Rs. 320,000/- The petitioner claimed his superior right on the basis of being a co-sharer in the joint khata and owner in the land adjacent to the subject property. The petitioner contended the performance of necessary Talbs and instituted the suit on 15.6.2005 further contending that the actual sale price of the transaction is Rs. 250,000 and in order to defeat his superior right of pre-emption a fictitious price of Rs. 320,000/- was reflected in the mutation in question.

1. The respondents contested the suit by submitting written statement. All the claims raised by the petitioner were denied by the respondents. It is pertinent to refer to the contents of para-2 of the plaint wherein performance of Talbs was claimed by the petitioner and which were specifically denied by the respondents in para-2 of their written statement.

2. The learned Civil Judge 1st Class Mianwali framed the following issues out of the divergent pleadings of the parties:--

ISSUES

1. Whether the plaintiff has superior right of pre-emption qua the defendants ?OPP

2. Whether the ostensible sale price was Rs. 250,000/- and same was actually paid by the defendants? OPP

3. If Issue No. 2 is not proved as positive than what was the market value of suit land at the time of sale? OPParties.

4. Whether the plaintiff has fulfilled the requirements of talbs in accordance with law? OPP

5. Whether the plaintiff is estopped by his words and conduct to file the suit? OPD

6. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD

7. Whether the defendants incurred incidental charges, if suit of the plaintiff is decreed they are entitled to recover the same? OPD

8. Whether the plaintiff is entitled to get the decree as prayed for? OPP

9. Relief

10. The learned Civil Judge called upon the parties to produce their respective evidence. The superior right of pre-emption of the petitioner was found to have been proved by the learned Civil Judge. So was the findings regarding the performance of talbs recorded in favour of the petitioner and the learned Civil Judge vide judgment and decree dated 7.11.2008 decreed the suit in favour of the petitioner.

11. The respondents preferred an appeal against the judgment and decree dated 7.11.2008 of the learned Civil Judge before the learned District Judge Mianwali and was allowed vide judgment and decree dated 16.12.2008. The instant Civil Revision has been preferred against the judgment and decree of the learned First Appellate Court.

12. It is contended by the learned counsel for the petitioner that the superior right of pre-emption of the petitioner was established and that the necessary Talbs were also proved by the petitioner and the learned First Appellate Court after misreading the entire record illegally set aside the judgment and decree of the learned Civil Judge/trial Court.

13. The learned counsel for the respondents has opposed the arguments of the learned counsel for the petitioner by contending that the necessary Talbs were not established by the petitioner and that the learned First Appellate Court has correctly recorded the findings against the petitioner on this score. The learned counsel for the respondents particularly addressed the arguments with respect to the non-performance of Talb-i-Ishhad by the petitioner by contending that as per latest case law pronounced by the honourable Supreme Court of Pakistan in judgments reported as MUHAMMAD BASHIR AND OTHERS VS. ABBAS ALI SHAH (2007 SCMR 1108) and BASHIR AHMED VS. GHULAM RASOOL (2011 SCMR 762) the petitioner did not produce the acknowledgment due receipt of the notices of Talb-i-Ishhad claimed to have been sent by him to the respondents and that the respondents having denied in the written statement the making of necessary Talbs by the petitioner, it was bounden duty of the petitioner/ plaintiff to have proved the service of the notices Talb-i-Ishhad upon the respondents by producing postman who allegedly took the notices for delivering the same to the respondents. This having not been done by the petitioner, the Talb-i-Ishhad was not proved at all and the learned First Appellate Court has rightly accepted the appeal of the present respondents and set aside the judgment and decree dated 7.11.2008 of the learned Civil Judge resulting into dismissal of the suit of the petitioner.

14. I have considered the arguments of the learned counsel for the parties.

15. The crucial point which plays a deciding role in the instant Civil Revision is the non-performance of Talb-i-Ishhad by the petitioner. In para-2 of the plaint the petitioner claimed to have performed both the Talbs particularly Talb-i-Ishhad by sending notices to the respondents through registered postal service on 07.6.2005. The petitioner produced notices Talb-i-Ishhad Exh.P1 to Exh.P5 and postal receipts Exhs.P6 to P10 in proof of the performance of Talb-i-Ishhad. The learned First Appellate Court in para-18 of the judgment dated 16.12.2008 made the following observations about the production of the notices of Talb-i-Ishhad Exhs.P1 to P5:--

"Whether respondent really got the knowledge of sale on the date he alleged or the record is giving some other answer that is also important. Copies of notices were produced as Ex.P-1 to P-5. It is an admitted fact that all these notices were copies of photo copies. The study of these notices show that at the relevant portion, place for date of knowledge was kept blank and thereafter on all photo stats of the notices the date as "07.06.2005" was recorded with blue ink ball pint. When I asked from learned counsel for respondent that what was the reason that the dates were written on all the notices with blue ink pen subsequently, he was not able to furnish any logical and convincing reply. It is not understandable that when the date of knowledge of the sale was the same then why the place was left blank and subsequently date was entered there. The only possibility can be that the notice was written and yet the date of knowledge was to be settled or the other logical reply can be that the notices sent to appellants were having no date of knowledge with blank space and subsequently coming to know this blunder, the date was written with original pen on the notices."

1. The notices were admittedly returned. It is also an admitted fact that the petitioner did not claim any acknowledgement receipts in respect of the registered notices nor any such receipts have been produced. The petitioner had also not produced the postman to prove the presentation of the notices of Talb-i-Ishhad to the respondents which were refused to have been received by them. The honourable Supreme Court of Pakistan in the judgments reported as MUHAMMAD BASHIR AND OTHERS VS. ABBAS ALI SHAH (2007 SCMR 1105) and BASHIR AHMED VS. GHULAM RASOOL (2011 SCMR 762) has laid down the law that where a plaintiff in a pre-emption suit claims the performance of Talb-i-Ishhad by sending of notices through registered post acknowledgement due receipts to the defendants of the suit and this fact is denied by the defendants then the plaintiff of such a suit is under an obligation to prove the performance of Talb-i-Ishhad by producing the postman as well as the acknowledgment due receipt upon which report of the postman is scribed. In the instant case this important piece of evidence is lacking and therefore as per law laid down by the honourable Supreme Court of Pakistan in the above mentioned reported judgments, the plaintiff/petitioner must fail in his suit and the learned District Judge Mianwali has rightly dismissed the suit of the petitioner through the judgment and decree dated 16.12.2008. No infirmity is found in the judgment and decree passed by the learned First Appellate Court. The instant Civil Revision being devoid of any legal force is dismissed with no orders as to costs.

(R.A.) Revision dismissed

PLJ 2012 Lahore 405

Present: Nasir Saeed Sheikh, J.

SARDAR MUHAMMAD through his Legal Heirs and others--Petitioner

versus

MUHAMMAD AMIN and 3 others--Respondents

C.R. No. 2504 of 2004, decided on 20.12.2011.

Superior Right of Pre-emption--

----Talb-e-muwathibat--Concurrent findings--Civil Court observed that although in plaint date, time and place of making talab-e-muwathibat was mentioned by plaintiff but none of witnesses produced during trial nor plaintiff mentioned date, time and place of making talb-e-muwathibat--Suit for pre-emption was dismissed by Courts below--Challenge to--Validity--Witnesses did not mention exact date on which talab-e-muwathibat was performed--The witnesses produced by petitioners did not specify date on which talb-e-muwathibat was made--Courts below had correctly recorded finding that plaintiff did not prove making of talb-e-muwathibat with specific date through evidence--Right of pre-emption was a feeble right and if plaintiff failed to prove the talb-e-muwathibat, then he could not succeed notwithstanding the fact that his superior right of pre-emption was either admitted by other party or was proved on record--Making of talb-e-muwathibat became irrelevant in light of facts--Revision was dismissed. [P. ] A, B & C

PLD 2003 SC 594 & 2007 CS 460, rel.

Mr. Muhammad Akram Khokhar, Advocate, for Petitioners.

Mr. Noor ul Hassan, Advocate for Respondents.

Date of hearing: 20.12.2011.

Order

A suit was instituted by the present petitioner for pre-emption of land measuring 10 Kanals situated in Khewat No. 264 Khatuni Nos. 408 and 409 Square No. 10 Killa Nos.6,7, 8/1, 8/2 situated in Chak No. 94 JD Tehsil Gojra, District Toba Tek Singh as per revenue record of rights for the year 1996-97. The respondents purchased the subject land for a consideration of Rs. 2,50,000/- through Mutation No. 928 dated 31.1.2000. After performing the necessary Talbs, the petitioner claimed his superior right of pre-emption and instituted a suit for possession thorough exercise of right of pre-emption in respect of the sale in question.

1. This suit was resisted by the respondents.

2. Out of pleadings of the parties, the learned Civil Judge framed the following issues:--

ISSUES:

1. Whether the plaintiff has got no cause of action?OPD

2. Whether the plaintiff has waived his right of pre-emption?OPD

3. Whether the defendants are entitled to recover compensatory costs from the plaintiff, if so, to what extent?OPD

4. Whether the plaintiff has got right of pre-emption equal or superior to that of defendants?OPP

5. Whether the plaintiff made talbs in accordance with law?OPP

6. Relief.

7. The crucial issue in this matter pertains to the Talb-e-Mawathibat which is Issue No. 5. The learned Civil Judge while recording his finding on Issue No. 5 in Paragraph No. 8 observed that although in the plaint, the date time and place of making Talb-e-Mawathibat was mentioned by the plaintiff but none of the witnesses produced during the trial nor the plaintiff himself specifically mentioned the date, time and place of making the Talb-e-Mawathibat and accordingly the learned Civil Judge on that score dismissed the suit of the petitioners through judgment and decree dated 8.1.2004. An appeal was preferred by the petitioners against the judgment and decree of the learned Civil Judge which was also dismissed vide judgment and decree dated 1.7.2004. Hence this civil revision.

8. It contended by the learned counsel for the petitioners that in order to prove the making of Talbs, the petitioners produced Ghulam Miran as PW5, who is attorney and legal heir of the original plaintiff Sardar Muhammad, Sadiq Ali as PW6 and Habib as PW7. The learned counsel contends that although these three witnesses did not make the specific mention of the date, time and place in their statements before the trial Court but as the plaintiff has mentioned the date, time and place in his plaint, therefore, the finding of the two Courts below regarding Talb-e-Mawathibat is illegal. He has placed reliance on the case law reported as Mst. Gohar Sultan Versus Gul Waris Khan (PLD 2003 Peshawar 189) to contend that the variation in the statements of the witnesses with the passage of time is a natural corollary and is to be ignored. The learned counsel contends that superior right of pre-emption of the petitioners has been admitted by the respondents in the written statement and the Talb-e-Ishaad has also been proved duly.

9. The learned counsel for the respondents has controverted the arguments and stated that pleadings do not constitute evidence in the Civil Courts and whatever is alleged in the pleadings have to be established through positive evidence by the parties before the Courts of law. The learned counsel specifically relies upon case law reported as Faqeer Muhammad and 8 others Versus Abdul Momin and 2 others (PLD 2003 S.C 594) and Sh. Fateh Muhammad Versus Muhammad Adil and others (PLD 2007 S.C.460) to contend that in a pre-emption matter, the facts stated in the plaint have to be specifically proved in the course of production of evidence and in case of failure of the plaintiff to prove these facts through a positive evidence the suit must fail. This aspect of the matter has been considered by the two Courts below as per the learned counsel.

10. I have considered the arguments of the learned counsel for the parties.

11. The statements of PW5, PW6 and PW7 have been read with the assistance of the learned counsel for the petitioners. It is an admitted position on the record that these three witnesses did not mention the exact date on which Talb-e-Mawathibat was performed in this case. The pleadings of the parties do not constitute evidence as is laid down by the Hon'ble Supreme Court of Pakistan reported as Faqeer Muhammad and 8 others Versus Abdul Momin and 2 others (PLD 2003 S.C. 594), and Sh. Fateh Muhammad Versus Muhammad Adil and others (PLD 2007 S.C.460). The witnesses produced by the petitioners do not specify the date on which Talb-e-Mawathibat was made. The two Courts below have correctly recorded finding that the plaintiffs did not prove making of Talb-e-Mawathibat with specific date through evidence. The case law relied upon by the learned counsel for the petitioners is not applicable to the facts and circumstances of the instant case. The findings of the two Courts below do not suffer from any illegality. The right of pre-emption is a feeble right and if a plaintiff fails to prove the Talb-e-Mawathibat, then he cannot succeed notwithstanding the fact that his superior right of pre-emption is either admitted by the other party or is proved on the record. Similarly the making of Talb-e-Ishaad also becomes irrelevant in the light of the above mentioned facts. The instant civil revision is devoid of any force and is accordingly dismissed. The parties to bear their own costs.

(R.A.) Revision dismissed.

PLJ 2012 Lahore 408

Present: Nasir Saeed Sheikh, J.

REHMAT KHAN (deceased) through Representatives through General Attorney and others--Appellants

versus

AMIR ALI and 3 others--Respondents

RSA No. 106 of 2005, decided on 23.12.2011.

Limitation Act, 1908 (IX of 1908)--

----Art. 168--Period of 30 days limitation for moving application for re-admission of an appeal dismissed for non-prosecution--Restoration of appeal--Objection of--Restoration of appeal was barred by time--No sufficient cause for re-admission of appeal--Validity--Application had been moved after about more than two years of dismissal of RSA--No application for condonation of delay had been moved by applicants--Appellants had not satisfied High Court about sufficient of cause for restoration of RSA and CM was also barred by time keeping in view Art. 168 of Limitation Act, 1908--CMA was accordingly dismissed. [P. ] A & C

2011 SCMR 959 & 2011 SCMR 1535.

Condonation of delay--

----A party who seeks condonation of delay must explain delay of each and every day--Case for relief of restoration of appeal on sufficient grounds had to be built up by applicants in accordance with law. [P. ] B

Ch. Ihsan-ul-Haq Bhalli, Advocate for Applicants/Appellants.

Mian Abdul Quddus, Advocate for Respondents No. 1 to 3.

Ch. Muhammad Saleh, Advocate for Respondent No. 4.

Date of hearing: 23.12.2011.

Order

C.M. NO. 1-C/2011

RSA No. 106/2005, was fixed for hearing on 9.6.09, when it was adjourned in the presence of the learned counsel for the applicants/ appellants Ch. Ihsan-ul-Haq Bhalli, Advocate for 16.6.09. On the next date, i.e. 16.6.09, nobody appeared on behalf of the applicants/appellants and the RSA was dismissed for non prosecution.

1. Through the instant CM, which has been moved on 6.7.2011 before this Court vide Diary No. 6180, a prayer has been made for re-admission/restoration of the appeal. Notice was issued on this application to the respondents. They have submitted their reply in order to contest this application. A preliminary objection has been raised by the learned counsel for the respondents that the application moved by the applicants/appellants for re-admission/restoration of the appeal is barred by time. It is also argued that no sufficient cause for re-admission/restoration of the appeal has been stated in the application.

2. The learned counsel for the applicants/appellants contends that it is not disputed that on 9.6.09, the case was adjourned in presence of the learned counsel for the applicants/appellants for 16.6.09, but the learned counsel contends that in the diary of the learned counsel the next date 16.6.09 could not be entered and there was misunderstanding that the case has been adjourned sine die. The learned counsel for the applicants/appellants has stated that the principles of RSA are similar to those of a civil revision and relies upon Mst. Rabia Bibi and others vs. Ghulam Rasool and others (2004 SCMR 394) and Muhammad Sadiq vs. Mst. Bashiran and 9 others (PLD 2000 SC 820) to contend that the civil revision should not be dismissed for non-prosecution. The learned counsel further contends that there was a bonafide mistake in not correctly noting the next date of hearing in the personal diary of the learned counsel for the applicants/appellants and due to that no appearance was made on the next date of hearing. The learned counsel further contends that the applicants/appellants are ready to pay any amount of costs for re-admission/restoration of the RSA.

3. The learned counsel for the contesting Respondents No. 1 and 3 has argued that the RSA was adjourned to a specific date in the presence of the learned counsel for the applicants/petitioners on 9.6.09 for 16.6.09 and the contentions raised by the learned counsel for the applicants/appellants of not correctly noting the next date of hearing in the diary, is not supported by the material available on the record as presented by the learned counsel for the applicants/appellants in CM No. 1-C/2011. It is further argued that the cause list of the instant case was duly published and the copy of the cause list is annexed with the reply in which the names of the learned counsel for the applicants/appellants are reflected. The learned counsel for the respondents further contends that the application moved is barred by time as according to Article 168 of the First Schedule of the Limitation Act, 1908, a period of 30 days has been prescribed for the re-admission or restoration of the appeal. It is next contended that no application under Section 5 of the Limitation Act, 1908 has been submitted for condonation of delay by the applicants/appellants. Thus, the learned counsel finally argued that CM No. 1-C/2011 be dismissed. The learned counsel has declined the offer of costs made by the learned counsel for the applicants. The learned counsel for Respondent No. 4 has, however, stated that he has no objection upon the re-admission/restoration of the RSA.

4. I have considered the arguments of the learned counsel for the parties.

5. RSA was fixed for 9.6.09 on which date the learned counsel for the applicants/appellants Ch. Ihsan-ul-Haq Bhali, was present and it was adjourned to a specific date i.e. 16.6.09. This fact has not been denied by the learned counsel for the applicants/appellants. The contentions of the learned counsel for the applicants/appellants that in the diary of the learned counsel, the case was noted to have been adjourned sine die, is not supported by the document annexed with the CM. Two leaves of diary of June 2009, on one of which the date 20.6.09 has been written are annexed with the instant CM. No proof of the diary of date 9.6.09 has been placed on record for relying that on the date i.e 9.6.09 there was some mistake in noting down the adjournment of the case to be adjourned for sine die. No affidavit of the learned counsel for the appellant is placed on the record alongwith CM nor of his Clerk. It is also not stated in the application i.e. CM No. 1-C/2011 that the cause list for the date 16.6.09 of the instant case either was not supplied to him or was not noted by him.

6. The provisions of Article 168 of Limitation Act, 1908, provide a period of 30 days limitation for moving application for re-admission of an appeal dismissed for non-prosecution. The instant application has been moved after about more than two years of the dismissal of the RSA, i.e. the RSA was dismissed on 16.6.09 and the CM was moved before this Court for re-admission of the appeal on 6.7.2011. No application for condonation of delay has been moved by the applicants/appellants. It is also settled law that a party who seeks condonation of delay must explain the delay of each and every day. The case for relief of restoration/readmission of the appeal on sufficient grounds has to be built up by the applicants/appellants in accordance with law. The judgments cited by the learned counsel for the applicants/appellants have different facts and are not applicable to the facts and circumstances of the instant case. In the case law reported as World call Telecom Limited vs. Pakistan Telecommunication Authority through Chairman, Islamabad (2011 SCMR 959) the honourable Supreme Court of Pakistan at page 961 laid down as follows:--

"It is also well settled that so far the limitation concerned it creates right in favour of the other side and law always favours those who are vigilant and not those who are negligent in pursuing their remedy, therefore we are of the considered opinion, that no exception can be taken against the order of the learned High Court."

In the judgment reported as Messrs Adnan Trading Company vs. Appellate Tribunal Customs, Central Excise and Sales Tax and others (2011 SCMR 1535) the honourable Supreme Court of Pakistan laid down "The relief of restoration is dependent upon showing a good and sufficient cause for absence" are relevant with the facts and circumstances of the instant case. The applicants/appellants have not satisfied this Court about the sufficiency of the cause for restoration of the RSA and the CM No. 1-C/2011 is also barred by time keeping in view Article 168 of the First Schedule of the Limitation Act 1908, C.M No. 1-C/2011 is accordingly dismissed.

(R.A.) C.M. dismissed

PLJ 2012 Lahore 411 [Rawalpindi Bench Rawalpindi]

Present: Rauf Ahmad Sheikh, J.

ABDUL REHMAN--Petitioner

versus

ADDL. DISTRICT JUDGE, RAWALPINDI, etc.--Respondents

W.P. No. 773 of 2008, decided on 12.1.2012.

Punjab Preemption Act, 1991--

----Ss. 30 & 31--Civil Procedure Code, (V of 1908), O. VII, R. 11--Constitution of Pakistan, 1973, Art. 199--Rejection of plaint--Suit for possession through pre-emption--Non-service of notice by registering office--Period of limitation for suit to enforce right of pre-emption was four months from date of registration was barred by time--Application u/O. VII, R. 11 of CPC was rejected--Revision was accepted--Challenged through writ petition--Validity--Limitation would start from date of registration of sale-deed, which by itself would be deemed to be a notice to public for purposes of institution of suit for pre-emption--Issuance of notice by registering officer of attestation of mutation or sale-deed was independent provision of law and had no nexus with S. 30 of Act--In case of non-service of notice, limitation would start from date of knowledge, it could have easily and clearly enacted--Limitation could not be extended due to non-service of notice u/S. 31 of Punjab Pre-emption Act--Petition was dismissed. [P. ] A & B

2005 SCMR 1926 & 2004; SCMR 1941, rel.

Mr. Ziafat Hussain Cheema, Advocate for Petitioner.

Mr. Muhammad Idrees Mirza, Advocate for Respondent No. 3.

Date of hearing: 12.1.2012.

Judgment

The petitioner has assailed the vires of order dated 13.5.2008 passed by the learned ADJ, Rawalpindi, whereby he accepted a civil revision filed by Respondent No. 3 and consequently rejected the plaint of the suit for possession through pre-emption filed by him.

1. The facts, in brief, as emerge on perusal of the record are that the petitioner filed a suit for possession through pre-emption in respect of the land measuring one kanal fully described in Para No. 1 of the plaint. It was stated that the disputed land was owned by one Liaqat Ali Chaudhry, who alienated it in favour of Defendant/Respondent No. 3 for a sum of Rs. 200,000/- through registered sale-deed dated 28.12.2005 but the Respondent No. 3 kept the sale secret in order to defeat the right of pre-emption, of the plaintiff/petitioner, who is Shafi-Sharik, Shafi-Khaleet and Shafi-Jar and as such has superior right of pre-emption qua the Defendant/Respondent No. 3, who lacks these qualifications. He asserted that he attained the knowledge about the sale on 19.07.2006 and immediately announced in presence of Malik Munawar Khan and Muhammad Taj that he would enforce his superior right of pre-emption. It is further asserted that thereafter he served the notice making Talb-Ishhad and also made Talb-i-Khusumat through filing of the suit. It was contended that he attained knowledge about the sale on 19.07.2006 and as such the suit having been filed on 31.07.2006 was within time.

2. The Defendant/Respondent No. 3 filed an application under Order VII Rule 11 CPC for rejection of the plaint with the contention that the suit was barred by time. This application was dismissed by the learned Civil Judge 1st Class, vide order dated 28.11.2007. On the ground that the notice under Section 31 of the Punjab Pre-emption Act, 1991 was not given by the concerned Revenue Officer so the limitation would start from the date of knowledge i.e. 19.07.2006. The said order was assailed through civil revision, which was accepted vide impugned order.

3. Learned counsel for the petitioner has vehemently contended that the learned ADJ miserably failed to appreciate that issuance of a notice under Section 31 of the Punjab Pre-emption Act, 1991, is a mandatory provision and non-compliance of the same by the vendee would not affect the rights of the pre-emptor adversely. It is contended that in case no notice as required under Section 31 of the Act ibid is given, the limitation would start from the date of knowledge and not from attestation of the sale-deed or mutation. In support of the contentions raised, reliance is placed on Mian Asif Islam v. Mian Muhammad Asif and others (PLD 2001 SC 499) and Shoukat Hayat v. Liaquat Khan (2005 YLR 60) (Lahore).

4. Controverting these arguments learned counsel for Respondent No. 3 has contended that Section 30 of the Punjab Pre-emption Act, 1991, clearly provides that a suit for pre-emption may be instituted within four months from the date of registration of the sale-deed or attestation of the mutation. It is contended that Section 31 of the Punjab Pre-emption Act, 1991, does not have overriding effect qua the provisions of Section 30 of the Act ibid as both these provisions are independent of each other. It is thus contended that the suit filed on 31.07.2006 in respect of the sale having been effected through registered sale-deed on 28.12.2005 was hopelessly barred by time and as such the order passed by the learned ADJ does not suffer from any illegality. In support of the contentions raised, reliance is placed on Qasim Ali v. Rehmatullah (2005 SCMR 1926) and Rahim Badshah v. Zalia Khan and 5 others (2004 SCMR 1941).

5. The plain reading of Section 30 of the Punjab Pre-emption Act, 1991, unambiguously reveals that the period of limitation for a suit to enforce the right of pre-emption is four months from the date of registration of the sale-deed, attestation of the mutation, delivery of physical possession if sale is made other than the sale-deed or mutation and knowledge if the same is not made in any one of the above three modes. The limitation in the present case would start from the date of registration of sale-deed, which by itself would be deemed to be a notice to the public for the purposes of institution of the suit for pre-emption. Section 31 of the Act ibid, which inter alia requires the issuance of notice by the Registering Officer of the attestation of the mutation or sale-deed is independent provision of law and has no nexus with Section 30 of the Act ibid. Had the intention of the Legislature been that in case of non-service of notice by the Registering Officer, the limitation would start from the date of knowledge, it could have easily and clearly enacted so. The provisions of Section 30 of the Act ibid are independent and have to be construed strictly keeping in view the text of the same. The limitation cannot be extended due to non-service of the notice under Section 31 of the Punjab Pre-emption Act, 1991, as contended by the learned counsel for the petitioner. The impugned order, therefore, does not suffer from any illegality or infirmity. The writ petition is without merits and the same is accordingly dismissed.

(R.A.) Petition dismissed

PLJ 2012 Lahore 414 [Bahawalpur Bench, Bahawalpur]

Present: Abdus Sattar Asghar, J.

HABIB BANK LTD. through its President--Petitioner

versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and 2 others--Respondents

W.P. No. 693 of 2011, heard on 24.6.2011.

Industrial Relations Ordinance, 1969 (XXIII of 1969)--

----S. 25-A--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Jurisdiction of High Court--Services of Bank employees were terminated--While performing duties as cashier do not fall within definition of workman--Principles of natural justice cannot be dislodged in exercise of constitutional jurisdiction--Validity--High Court while exercising powers of review would not act as appellate authority of statutory judicial tribunal--Resolution of disputed question of fact falls within exclusive jurisdiction of Labour Court and Punjab Labour Appellate Tribunal--Controversy regarding charge of misconduct being pure question of fact required examination of evidence within exclusive domains of Labour Court and Punjab Labour Appellate Tribunal and cannot be resolved in exercise of constitutional jurisdiction of High Court--Petition was dismissed. [P. ] A

Ch. Riaz Ahmad, Advocate for Petitioner.

Mr. Mukhtar Ahmad Malik, Advocate for Respondent No. 3.

Date of hearing: 24.6.2011.

Judgment

Habib Bank Limited, the petitioner, by invoking the jurisdiction of this Court under Article 199 of the Constitution has called in question the judgment of the Punjab Labour Appellate Tribunal, Lahore dated 23.12.2010 and the judgment of the Presiding Officer, Punjab Labour Court No. 8, Bahawalpur dated 9.3.2010 whereby Niaz Hussain ex-Cashier, Habib Bank Limited Galla Mandi Branch, Bahawalnagar/ Respondent No. 3 has been reinstated in service.

1. Brief facts leading to this petition are that services of Respondent No. 3 were terminated vide order dated 23.4.2007, which was impugned by filing a grievance petition under Section 25-A of the Industrial Relations Ordinance, 1969 before the Punjab Labour Court No. 8, Bahawalpur with the contentions that he was a permanent worker under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and that the order of termination of his services was unlawful on the grounds that no proper inquiry was conducted; that no complaint was ever received against him from any customer; that neither any witness was ever produced against him nor he was provided an opportunity to produce his defence; that no loss to the Bank or to any party was ever reported; that no charge of embezzlement was ever levelled or proved against him; that so-called inquiry as well as the impugned order of termination of his services is without lawful authority, ex-parte, violative to the principles of natural justice, arbitrary, without application of judicious mind passed by the non-judice and liable to set aside in the interest of justice.

2. The present petitioner controverted the contentions raised by the employee with preliminary objections that the Labour Court lacks jurisdiction to entertain the grievance petition; that Niaz Hussain respondent while posted as Cashier (dealing in Finances) at Ghallah Mandi Branch, Bahawalnagar has committed misappropriation/ irregularities and while receiving payments worth Rs. 2,96,791/- and 2,91,015/- of two cheques of the parties signed on the reverse of the cheques as payee and deposited the said amounts in his personal Account No. 58282-01 at Ghallah Mandi Branch, Bahawalnagar; that during investigation he admitted in his written statement dated 16.6.2006 that he utilized credits of Rs. 12,87,000/- to maintain the balance in his account to have a car from M/s. Bank Alfalah Limited on lease; that in result of the inquiry allegations of fraud, misrepresentation, dishonesty, breach of rules and regulations of the Bank were established and consequently his services were terminated vide order dated 23.4.2007.

3. Learned Punjab Labour Court No. 8, Bahawalpur (hereinafter to be called Labour Court) after providing an opportunity of hearing to the parties allowed the grievance petition in favour of Niaz Hussain Bhatti while making the observation that the petitioner falls within the definition of worker/workman under the labour laws and the Labour Court has jurisdiction to adjudicate upon the matter. Learned Labour Court also accepted the respondent's plea that the written statement was obtained by the inquiry officer/Bank Authorities from him under coercion. Learned Labour Court also noted that no evidence was produced during the inquiry proceedings to prove the allegations of misrepresentation, fraud, dishonesty, breach of rules and regulations of the Bank against the respondent and that no proper opportunity was given to the him for producing his evidence in rebuttal. Learned Labour Court reaching to the conclusion that the impugned order of termination of services of the respondent dated 23.4.2007 is not maintainable in the eye of law set-aside the same and the respondent was reinstated in service with all back benefits.

4. Present petitioner Habib Bank Limited assailed the order of the Labour Court before the Punjab Labour Appellate Tribunal, Lahore (hereinafter to be referred as Tribunal). The learned Tribunal observed that the alleged fraud and misrepresentation came to notice of the Bank through audit report on 16.6.2006 but the show-cause notice Exh.R-1 was issued to the respondent on 18.8.2006 which was clearly barred in view of the provisions of the Standing Order 15(4) of the Standing Orders Ordinance, 1968 which envisaged that no order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct came to the notice of the employer.

5. The petitioners' contentions before the learned Tribunal that the respondent was found involved in parallel banking and banking within the bank was also repelled by the learned Tribunal as in the Banking System one cannot act single handedly as against the internal control and audit system besides involvement of other employees in routine business. Learned Tribunal categorically observed that no valid inquiry was conducted by the Bank rather it was a dogmatic exercise in the shape of questions and answers which appear to be a dialogue between the prosecutor and the official. Besides neither any evidence was produced to prove the charges nor an opportunity of defence was given to the respondent. The learned Tribunal also observed that the Bank was of the mind-set that the respondent was to prove his innocence rather the prosecution establishing the charges.

6. With the above observations the learned Tribunal found that the learned Labour Court has properly appreciated the facts of the case, rightly scanned the evidence to reach a correct conclusion. Finding no infirmity in the impugned order of the Labour Court the same was upheld by the learned Tribunal.

7. I have given patient hearing to the counsel for the petitioner as well as the counsel for Respondent No. 3 and have carefully gone through the record with their able assistance.

8. Learned counsel for the petitioner vehemently argued that the impugned orders passed by the Labour Court and the Tribunal are against the law and facts based on misreading and non-reading of the evidence and liable to set aside. He has taken reliance upon Ishtiaq Ahmad Sheikh and others vs. Messrs United Bank Limited and others (PLD 2006 SC 94), Akhtar Muneer vs. General Tyre and Rubber Co. of Pakistan Ltd. through Senior Manager Industrial Relations and Notified Manager (2007 PLC 360-Karachi), Izzat Baig Awan vs. Habib Bank Limited (2004 SCMR 98) and Muhammad Nawaz Bhatti vs. President, Muslim commercial Bank Limited, Karachi and others (2008 PLC 355).

9. Bare reading of the afore-cited cases transpires that the facts of the above cited cases are altogether different and distinguishable from the facts of the instant case. Learned counsel for the petitioner taking much reliance on the case of Muhammad Nawaz Bhatti has laid emphasis on the point that the matter was related to an individual dispute' of Respondent No. 3 not concerning industrial dispute therefore he could not be termed as a workman for the purposes of Section 25-A of the IRO to seek remedy before the Labour Court. I am afraid learned counsel for the petitioner is misconceived. The dispute regarding allegation of fraud and misrepresentation relates to the business and trade of the Bank which cannot be processed single handedly by Respondent No. 3 therefore it cannot be termed as an individual dispute. Besides it is pertinent to mention that the plea of individual dispute is neither raised before the Labour Court nor before the Tribunal. Rather petitioner's main allegation against Respondent No. 3 was of misconduct and misappropriation. The termmisconduct' is explained under Section 15(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 as under:--

"15(3). The following acts and omissions shall be treated as misconduct:--

(a) willful insubordination or disobedience, whether alone or in combination with others, to any lawful and reasonable order of a superior;

(b) theft, fraud, or dishonesty in connection with the employer's business or property;

(c) willful damage to or loss of employer's goods or property;

(d) taking or giving bribes or any illegal gratification;

(e) habitual absence without leave or absence without leave for more than ten days;

(f) habitual late attendance;

(g) habitual breach of any law applicable to the establishment;

(h) riotous to disorderly behaviour during working hours at the establishment or any act subversive of discipline;

(i) habitual negligence or neglect of work;

(j) frequent repetition of any act or omission referred to in clause (i);

(k) striking work or inciting others to strike in contravention of the provisions of any law, or rule having the force of law;

(l) got slow."

Besides the acts and omissions enumerated under Section 15(3) of the Ordinance ibid any other act prejudicial to the good discipline also falls within the ambit of misconduct. There is no cavil to the proposition that to prove an allegation of misconduct it is incumbent upon the employer to conduct a proper inquiry into the allegations in accordance with law, which is not duly conducted in the instant case. Therefore the dictums laid down in the above cited cases cannot be siphoned unto the facts of this case.

1. On the other hand, learned counsel for Respondent No. 3 has taken reliance upon General Manager, Hotel Intercontinental, Lahore and another vs. Bashir A. Malik and others (PLD 1986 SC 103,) and National Bank of Pakistan vs. Sindh Labour Appellate Tribunal Karachi and 2 others (1992 PLC 94) for better understanding of the term `workman'.

An extract from the case of General Manager Hotel International is reproduced hereunder:--

"11. The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of labour legislation is well-settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be the essential and fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work or a substantial part of it, so that, the fact a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted."

The relevant extract from the case of National Bank of Pakistan vs. Sindh Labour Appellate Tribunal, Karachi and 2 others (1992 PLC 94) reads below:--

"On the question whether the employee was-a workman or not, we find that the evidence adduced before the Labour Court supports the finding of the learned Sindh Labour Appellate Tribunal that the employee was a `workman'. The Bank had mainly relied on the designation of the employee as Senior Head Cashier although it was also averred that he was performing duties of supervisory administrative and managerial nature. However, the evidence on record had shown that the essential duties of the employee were not supervisory and managerial in nature. In his evidence, the employee had stated that he was preparing vouchers, bills, making entries in the ledger and countersigning on other documents, preparing Bank statements and also doing other miscellaneous clerical work ---- No case has been made to disturb the finding of the Labour Appellate Tribunal that the employee's duties being primary of clerical nature, he was a "workman" and, therefore, his application under Section 25-A of I.R.O. was maintainable."

1. In the light of above dictums, argument of the learned counsel for the petitioner that Respondent No. 3 while performing duties as Cashier do not fall within the definition of `workman' is devoid of any force and thus repelled.

2. It is also pertinent to mention that concurrent finding of facts arrived at by the Labour Court and the Punjab Labour Appellate Tribunal in exercise of their exclusive jurisdiction that the alleged inquiry was not conducted in accordance with law and was violative to the principles of natural justice, cannot be dislodged in exercise of the Constitutional jurisdiction. It is also note-worthy that the learned counsel for the petitioner has not been able to point out any error or omission on the part of the Labour Court or the Labour Appellate Tribunal in reaching the impugned conclusion. It is settled law that the High Court while exercising powers of review would not act as Appellate authority of a statutory judicial tribunal. Resolution of disputed question of fact falls within the exclusive jurisdiction of Labour Court and the Punjab Labour Appellate Tribunal. The controversy regarding the charge of misconduct being a pure question of fact requires examination of evidence within the exclusive domains of Labour Court and the Punjab Labour Appellate Tribunal and cannot be resolved in exercise of Constitutional jurisdiction of this Court. Reliance be made upon A.R. Fargosan vs. Sindh Labour Court (PLD 1985 SC 429). In the above state of affairs, both the impugned orders do not suffer from any illegality or unlawful exercise of jurisdiction.

3. For the foregoing discussion and reasons, this writ petition has no merit and is dismissed leaving the parties to bear their costs.

(R.A.) Petition dismissed

PLJ 2012 Lahore 420 [Multan Bench Multan]

Present: Abdus Sattar Asghar, J.

BASHIR AHMAD--Petitioner

versus

STATE & 5 others--Respondents

W.P. No. 859 of 2012, decided on 8.2.2012.

Physical Remand--

----Remand was not to be granted mechanically on the request of the police, rather magistrate was expected to perform his duty with eyes and ears open as required under law after judicious application of mind and not in perfunctory manner--Magistrate before granting a remand was under obligation to satisfy himself if under circumstances remand was to be granted or not--Liberty of person could not be compromised merely on formal request of a police officer--It was sacred duty of magistrate to safeguard fundamental rights of life and liberty of person as enshrined u/Arts. 9 & 10 of Constitution. [P. 423] A

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 561-A--Constitutional jurisdiction--Declined further extension in physical remand of accused--Police produced accused before Magistrate after exhausting six days physical remand with request for further physical remand of eight days to effect recovery of stolen property--Request was refused--Revision petition was also dismissed--Challenge to--Magistrate examined the police file before deciding question of remand and finding that no investigation was conducted despite having obtained six days physical remand, therefore, after satisfying in furtherance of legal duty he rightly declined extension in physical remand of accused in hands of police--Accused could not be remanded to police in routine to exhaust facility of fifteen days physical remand or to get confessional statement or to compel to effect recovery of stolen property on basis of expectation that mere afflux of time might lead to guilt of accused--Petition was dismissed. [P. 423] B

Mr. Muhammad Rafique Mallana, Advocate for Petitioner.

Mr. Mubashir Lateef Gill, Assistant Advocate General for State.

Date of hearing: 8.2.2012.

Order

Bashir Ahmed, petitioner, has invoked the constitutional jurisdiction under Article 199 read with Section 561-A Cr.P.C. to impugn the order dated 04.11.2011 passed by the learned Illaqa Magistrate Police Station City Khanewal (Respondent No. 3) and order dated 03.1.2012 passed by learned Sessions Judge Khanewal.

1. Brief facts leading to this petition are that one Zahoor Ahmed lodged FIR No. 614/2011, dated 05.10.2011 at 7.30 p.m. under Section 397 PPC at Police Station City Khanewai alleging that on 04.10.2011 at 11.00 p.m. his driver namely Bashir Ahmed (petitioner) along with Muhammad Niaz P.W. was transporting a load of cotton weighing 237 maunds valued Rs. 6,00,000/- on his trolley-tractor Massey-240 Model 2006 Registration No. 3219/KW; that on their way to Iqbal Cotton Factory Kabirwala when reached near Khokhewala Hospital Khanewal eight unknown persons armed with fire-arm weapons intercepted them and one of the accused fired rifle shot which hit Bashir Ahmed on his back at left side; that four unknown accused snatched the tractor-trolley and decamped towards Khanewal; that the remaining four accused armed with fire-arm weapons kept Bashir Ahmed driver in injured condition and Niaz PW in Gawara crop near Railway Line up till 3.00 a.m. on gun point and thereafter they also decamped.

2. Later on complainant through his supplementary statement dated 21.10.2011 nominated Muhammad Ramzan and Muhammad Arshad (Respondents No. 5 and 6) as accused of the alleged occurrence who were arrested by the police on 28.10.2011 and produced before the learned Illaqa Magistrate for their physical remand for the purpose of investigation. The learned Illaqa Magistrate granted two days physical remand, which was extended for two days and further extended for another two days. After exhausting six days physical remand police produced both the accused before the learned Illaqa Magistrate on 04.11.2011 with a request for further physical remand of eight days to effect recovery of stolen property. The learned Illaqa Magistrate after perusing the police file observed that no progress was made by the police towards recovery of alleged stolen property and that no explanation was given on record in this regard except scribing single line in daily Diary No. 11 dated 03.11.2011 that accused were reluctant regarding recovery. Learned Illaqa Magistrate in the impugned order dated 04.11.2011 categorically noted that no effort on the part of police revealed during the investigation to effect recovery of the stolen property, therefore, he declined further extension in the physical remand of the accused and remanded the accused to judicial lockup with a direction to the police to submit report under Section 173 Cr.P.C. Feeling aggrieved, petitioner preferred a revision petition before the learned Sessions Judge Khanewal against the said order, which was also dismissed vide order dated 3.1.2012.

3. It is argued by learned counsel for the petitioner that the learned Illaqa Magistrate should have granted the request of the police for extension in the physical remand to effect recoveries of the stolen property in order to exhaust the facility of fifteen days physical remand; that remanding of the accused to the judicial lockup without exhausting the limit of fifteen days physical remand is illegal and amounts to miscarriage of justice; that the impugned order, therefore, is untenable in the eye of law and liable to set aside.

4. Learned Assistant Advocate General argued that although the police could not show any progress towards the investigation of the case despite availing facility of six days physical remand, even then, learned Magistrate should have extended the physical remand of the accused keeping in view the outstanding recoveries of the stolen property.

5. I have given patient hearing to learned counsel for the petitioner, learned Assistant Advocate General and gone through the record.

6. Section 61 of Cr.P.C. stipulates that a police officer cannot detain a person in his custody more than twenty-four hours in the absence of specific order of Magistrate under Section 167 Cr.P.C, which enables a Magistrate to pass an order extending the detention of an accused for a term not exceeding fifteen days and shall record his reason for doing so. Simultaneously, Section 344 Cr.P.C. postulates that no Magistrate shall remand an accused person to custody for a term exceeding fifteen days at a time, It further explains that if sufficient evidence has been obtained to raise a suspicion that the accused might have committed an offence and it appears likely that further evidence may be obtained by a remand this is reasonable cause for remand.

7. Besides above quoted procedural law, Rules and Orders of this Court also furnish guidelines on the subject. Relevant Rule 7 of Volume III Chapter-II Part-B of the Rules and Orders of this Court reads as below:--

"Accused must be produced before the Magistrate who should satisfy himself about necessity for remand. In order to form an opinion as to necessity or otherwise of the remand applied for by the police, the Magistrate should examine copies of the diaries submitted u/S. 167 and ascertain what previous orders (if any) have been made in the case and the longer the accused person has been in custody, the stronger should be the grounds required for a further remand to police custody. The accused person must always be produced before the Magistrate when a remand is asked for."

1. It is an established principle of law that remand is not to be granted mechanically on the request of the police, rather a Magistrate is expected to perform his duty with eyes and ears open as required under the law after judicious application of mind and not in a perfunctory manner. A Magistrate before granting a remand is under legal obligation to satisfy himself if under the circumstances remand is to be granted or not. Needless to mention that liberty of a person cannot be compromised merely on a formal request of a police officer. It is sacred duty of a Magistrate to safeguard the fundamental rights of life and liberty of a person as enshrined under Articles 9 and 10 of the Constitution of Islamic Republic of Pakistan.

2. In the instant case impugned order transpires that learned Magistrate examined the police file before deciding the question of remand and finding that no investigation was conducted despite having obtained six days physical remand, therefore, after satisfying himself in furtherance of his legal duty he rightly declined extension in the physical remand of the accused in the hands of the police. Certainly, the accused cannot be remanded to the police in routine to exhaust the facility of fifteen days physical remand or to get his confessional statement or to compel him to effect recovery of stolen property on the basis of expectation that mere afflux of time may lead to the guilt of the accused. In this case police failing to show any material progress towards investigation during already obtained six days physical remand of the accused was not able to justify its request for further extension. I do not find any legal infirmity in the impugned order dated 04.11.2011 passed by learned Magistrate refusing to grant further physical remand as well as in the impugned order dated 03.01.2012 passed by learned Sessions Judge whereby petitioner's revision petition was dismissed. Petitioner has no case to invoke the constitutional jurisdiction of this Court. This petition having no merit is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2012 Lahore 424 (DB)

Present: Muhammad Khalid Mehmood Khan and Malik Shahzad Ahmad Khan, JJ.

PROVINCE OF PUNJAB through Collector, District Sargodha and another--Appellants

versus

MALIK SHAH NAWAZ and 2 others--Respondents

I.C.As. No. 158, 354 of 2000, W.P. Nos. 5896, 5897, 9050 of 2000, 3793 of 2008, 1602, 13413, 1924, 9252 of 2010, 324 and 1054 of 2011, decided on 11.1.2012.

Doctrine of Legitimate Expectation--

----Principle of natural justice--It is now well established proposition of law that he who basis his claim on concept of legitimate expectation, he has to rely on representation of public authority, and their denial is infringement of his right and then the Court will interfere only, if decision of denial is arbitrary, unreasonable, abuse of powers and is against the principle of natural justice and decision is not taken in public interest. [P. 433] A

Law Reforms Act, 1972--

----S. 3--Colonization of Govt. Lands (Punjab) Act, 1912--Scope of--Government of Punjab Policy No. 319-90/2019-CLV dated 27.4.1990--Livestock Breeding Scheme, 1960--Promulgation--Intra Court Appeal--Question of law and fact--No provision for conferment of proprietary rights to its lessees--Merely recommendation by an unauthorized official could not be termed as binding and enforceable order--On expiry of 20 years appellant resumed land--Resumption action was challenged through civil suit--Suit was decreed--Appeal against decree was dismissed and resumption action was set aside--No decree for grant of proprietary rights was prayed--Effect of the decree will remain effective to extent of resumption action--Question of--Recommendation of commissioner for grant of proprietary rights, and as such they were entitled for conferment of proprietary rights of land--Validity--Commissioner was not final authority his recommendation will have to mature after approval of Board of Revenue, the only competent authority--Status of recommendation of commissioner was his opinion only, recommendations culminate only into an enforceable order, conferring right to beneficiary when these recommendations were accepted by final decision making authority and that final order was communicated to its beneficiary--Held: Enforceable right only comes into existence under an order of a competent authority when it was communicated to its claimant, hence recommendation of commissioner was only an official noting and does not create any enforceable right in favour of respondent. [Pp. 434 & 435] B & C

Principle of Law--

----Principle of equality is subject to reasonable classification and is based on intelligible differentia--Object of every state scheme has different parameters policies framed for other schemes are to develop land by lessee for benefit of state and state granted land equal to subsistence holding to landless developer--Respondent can claim any equality if they had been discriminated within scheme. [P. 435] D

Constitution of Pakistan, 1973--

----Art. 25--Lessees of Live Stocks Breeding Scheme had been granted proprietary rights--Not fall within ambit of Art. 25 of Constitution--Validity--It is established principle of law that equality should be between persons placed in same set of circumstances--Appellant policy for each and every scheme is different according to circumstances, every set of land was leased out to landless citizens as per different parameters and understandings. [P. 436] E

Live Stock Breeding Scheme, 1960--

----Preamble--Government of Punjab Policy No. 319-90/2019-CLV dated 27.4.1990--Scope--Regulating leases--Respondents were allotted uncommanded (Banjar Qadeem) waste land, under Livestock Breeding Scheme--Lease was extended for further 10 years--On expiry of agreement, appellant resumed land--Challenge to--Grant of proprietary rights--Validity--After expiry of extended renewed period were bound to surrender land is known to them from 24.7.1990, respondents were unable to explain in which capacity they were retaining the possession of land without payment of lease money in these circumstances after expiry of extended period the respondents had lost legal cover against possession and as such could not challenge right of appellant to deal with own land according to their own choice in public interest. [P. 436] F

Limitation Act, 1908 (IX of 1908)--

----S. 5--Law Reforms Act 1972, S. 3--Intra Court Appeal--Barred by time of 26 days--Judgment was passed on 29.3.2008 and appeal was filed on 14.4.2000 but office returned appeal with objections--Appellant refilled appeal, hence appeal was liable to be dismissed on score as valuable right--Validity--Office allowed 3 days time for removing objection--Objection sheet showed that appeal filed remain with office and appellant removed objections on 11.5.2000--Appellant filed application u/S. 5 of Limitation Act, asserting that appellant filed appeal on 14.4.2000 and he was under impression that appeal will be fixed for hearing after deposit of printing charges and on receipt of printing charges, their counsel visited office for depositing the same, the file was not traceable and on 11.5.2000 file was located, then counsel come to know about office objections--Counsel collected file on 11.5.2000 and after removing objections refilled on 12.5.2000--ICA on identical point of law was admitted for regular hearing by High Court before filing the appeal--Question of law and fact was involved, hence on that score limitation was condonable in present case--Held: Where one appeal was filed within time and other was barred by time whether limitation can be condoned or not--I.C.A. was maintainable. [Pp. 437 & 438] G, H, I & J

Mr. Muhammad Iftikhar-ur-Rasheed, Asstt. A.G. Punjab with Tehsildar Sargodha and Mr. Azfar Ali Raja, Advocate for Appellants.

Mr. Muhammad Farooq Qureshi Chishti, Mr. Khadim Nadeem Malik & Mian Bilal Ahmad, Advocates for Respondents.

Date of hearing: 12.12.2011.

Judgment

Muhammad Khalid Mehmood Khan, J.--Through this single judgment, we propose to decide Intra Court Appeals No. 158/2000, 354/2000 & Constitutional Petitions No. 5896/2000, 5897/2000, 9050/2000, 3793/08, 1602/10, 13413/10, 1924/10, 9252/10, 324/2011 and 1054/2011 as same question of law and fact is involved in both appeals and Petitions. In the judgment, the respondents of (appeals) and petitioners of (Writ Petitions) will be jointly referred to as respondents.

1. The respondents were allotted uncommanded (Banjar Qadeem) waste land, under Livestock Breeding Scheme 1960 (hereinafter referred to as SCHEME'), detailed in writ petitions, the lease in the first instance was for a period of 20 years ending on Kharif 1980. The respondents before expiry of lease, applied to appellant for its renewal. The lease was extended for further 10 years upto 1990. Government of Punjab announced Policy No. 319-90/2019-CLV on 27.4.1990 (hereinafter referred to asPOLICY'), for regulating the leases, under Live Stock Breeding Scheme, 1960.

The respondents assert that they have developed Banjar land by investing man power, and finances, and have, thus acquired a vested right for grant of proprietary rights of leased land. It is further asserted that in 1981, the appellant resumed land illegally, malafidely, and respondents were constrained to file a civil suit, challenging the order of resumption dated 6.8.1981. The suit was decreed on 21.4.1985. The appeal there against was dismissed on 9.6.1985, the revision also failed and as such their right quo the leased land become absolute. It is also asserted that appellant under the Colonization of Government Lands (Punjab) Act, 1912 launched different schemes in the province of Punjab, granted proprietary rights to the lessees of these schemes except Live stocks breeding scheme 1960. As the respondents are in continuous possession of suit land and as such they are legitimately expecting for the grant of proprietary rights of leased land, like the lessees of other schemes. The respondents thus have prayed as under;

"In view of above it is prayed that the adequate writ may graciously be issued to Respondent No. 1 or 2 directing it to confer proprietary rights in respect of disputed land to the petitioner. Any other order/direction which in the estimate of the case will meet the ends of justice may further be passed/issued."

1. The appellant resisted the petition, however, learned Single Judge vide judgment dated 29.3.2000 allowed writ petition in the following terms:--

"Mr. Anwar Aziz petitioner is entitled to transfer of disputed land in his name subject to payment of its price at the rate of Rs.500/- per produce index unit. The price of proprietary rights shall be recovered in 5 years by 10 half yearly installments with interest per annum and annual interest as provided with respect to conferment of proprietary rights under ejected scheme. The first installment shall become due on 1.7.2000. The petitioner shall be at liberty to pay the whole or balance price in lump sum regarding the property in dispute. After payment of sale price the proprietary deed shall be issued in favour of writ petitioner within 2 months by the respondents and necessary entry shall be made in the revenue record by the Revenue Officer. "

1. The appellant has assailed the two judgments dated 27.1.2000 and 29.3.2000 of learned Single Judge through present appeals.

2. Mr. Muhammad Iftikhar-ur-Rashid, learned Assistant Advocate General (Punjab) submits that Livestock Breeding Scheme of 1960 does not find mention any provision for conferment of proprietary rights to its lessees. Learned Single Judge has failed to appreciate this aspect of the case and wrongly equated the respondents claim with the other state schemes. He submits that appellant never made any promise express or implied with respondents for grant of proprietary rights to them at any stage, hence no question of any alleged legitimate expectancy arose. He submits that writ petition was itself not maintainable as no guaranteed rights of respondents were at stake. The respondents case could not be equated with the other schemes announced from time to time by the appellant for specific purpose. He submits that no proposal was ever approved for conferment of proprietary rights to respondents. No doubt the Commissioner Sargodha Division recommended respondents case for conferment of proprietary rights but these recommendations were never matured in to a final order, further the said recommendations were against the policy regulating the lease under Live Stocks Breeding Scheme, 1960. He submits that learned Single Judge has not considered the fact that impugned judgment will force the appellant/Government to sell its property on the price of respondents and it will be great financial loss to Government Exchequer. He adds that mere recommendation, that, too, by an unauthorized Official could not be termed as a binding and enforceable order.

3. Learned counsels for respondents submit that it has been the continuous domain of appellant to grant proprietary rights to the allottees of state schemes as the land allotted under the schemes was a waste `Banjar Qadeem' and lessee after investing huge amount and labour brought the land for useful purpose, the continuous, possession as well as, the development by the respondents made to believe them, that ultimately proprietary rights of land will be granted to them. He further submits that appellant had granted proprietary rights to the allottees of Bar Reclamation Scheme, Co-operative Farming Scheme, Ejected Tenant Scheme, Grow More Scheme, Mule Breed Scheme, Temporary Cultivation Scheme, Sheep Breeding Scheme, Well Sinking/Tube well Scheme, Sinking Grant Scheme, Grant of State West land by TDA, Well Sinking Scheme and State West land of temporary cultivation by Tube well Scheme and the same policy should have been applicable to respondent case. The respondents being legitimate expectants have filed an application on 28.12.1994 to Board of Revenue through Deputy Commissioner Sargodha Division for grant of proprietary rights. The Commissioner Sargodha Division recommended their application, and as such, their right for conferment of proprietary rights become absolute, the subsequent denial of appellant is the violation of Article 25 of Constitution of Islamic Republic of Pakistan. The respondents could not be discriminated, as all citizens of Pakistan, are equal before law. The appellants are frequently changing their stance, in their report and parawise comments, they have admitted, that respondents case, for grant of proprietary rights, is pending with the competent authority, but now they are denying the respondents valuable rights illegally.

Learned Counsel submits that Appeal No. 354/2010, is barred by time by 26 days and the averments of application u/S. 5 of the Limitation Act are not plausible and as such appeal is liable to be thrown out on this score alone. Learned counsels add that appeals are not maintainable under Section 3 of the Law Reforms Ordinance, 1972. They have riled on Robertson v. Defra (2005 EWCA Civ 138), Govt. of Balochistan v. Azizullah Memon (PLD 1993 SC 341), Miss. Shazia Batool v. Govt. of Pakistan (2007 SCMR 410), Persson Manufacturing Ltd. v. Petroleum & Natural Resources (1995 MLD 15) Dr. Mobashir Hassan v. Federation of Pakistan and others (PLD 2010 SC 265), Dr. Tariq Nawaz v. Govt. of Punjab (2000 SCMR 1956), (PLD 2003 Pesh. 14), Fida Hussain v. State (PLD 2002 SC 46), Province of East Pakistan v. Abdul Jalil Khan (PLD 1970 Dacca 718), Rab Nawaz Qureshi v. Govt. of West Pakistan (PLJ 1973 Lah. 286), Sardar Muhammad Aslam Sial v. Government of Pakistan (PLJ 1973 Lah. 290), Ghulam Muhammad v. The Collector Montgomery (PLD 1973 Lah 528), Karim Dad v. Arif Ali (PLD 1987 Lah. 679), Muhammad Ayub v. Muhammad Yaqub (PLD 1975 Lah. 445), Mst. Karim Bibi and others V. Hussain Bakash and others (PLD 1984 SC 344), Hafiz Muhammad Khan v. Member (Colonies) Board of Revenue Punjab Lahore (1984 Law Notes (SC) 1122), District Council Faisalabad v. Ch. Muhammad Yaseen (2006 YLR 440).

1. Heard, record perused.

From the pleadings of parties the questions require for resolution are that:

(i) Whether the respondents are entitled for grant of proprietary rights under the Live stocks breeding Scheme 1960, like other state schemes launched by the Government of Punjab from time to time ?

(ii) Whether the doctrine of legitimate expectation is applicable in the respondents case ?

(iii) Whether the respondents were discriminated with reference to the other state schemes?

(iv) Whether Appeal No. 354/2000 is barred by time.

(v) Whether the appeals are not maintainable ?

1. It is an admitted fact, that appellant while submitting report and parawise comments admitted, that Commissioner Sargodha Division recommended the respondents case for grant of proprietary rights, their case remained in process with the Board of Revenue Punjab. Learned single judge has heavily relied on the said recommendations while delivering the impugned judgments.

2. It is not denied by the appellant that respondents have developed the land from their own resources and till today they are in its possession. It is also an admitted fact that appellant has granted proprietary rights to the lessees/tenants of other state schemes, likewise it is also an admitted fact, that no provision is available in Livestock breeding scheme 1960 for conferment of proprietary rights, to its lessees at any stage.

3. The Commissioner Sargodha Division has recommended to Board of Revenue for conferment of proprietary rights to respondents and the matter remained pending With the Board of Revenue un-approved and finally the Commissioner recommendations were declined.

4. In the above admitted facts, It has to be seen whether mere recommendation of Commissioner, create any right in favour of respondents or not ?

It is an admitted fact that initial lease in favour of respondents was for 20 years, on expiry of 20 years the appellant resumed the land on 6.8.1981. The respondents challenged the resumption action through civil suit. The suit was decreed. Appeal against decree was dismissed and resumption action was finally set aside, the decree shows, that respondents have challenged, the resumption action only, and no decree for grant of proprietary rights was prayed, thus the effect of said decree will remain effective to the extent of resumption action.

The appellant after decree extended lease for further period of 10 years in favour of respondents.

On 24.7.1990, the Govt. of Punjab promulgated a policy for extension of leases under the Live Stocks Breeding Scheme, 1960 for the whole of Punjab as under;

"No. 319-90/2019-CLV.

Lahore, dated 24th July, 1990

GOVERNMENT OF THE PUNJAB, COLONIES DEPARTMENT

From.

The Secretary to Government of the Punjab, Colonies Department.

To

The Deputy Commissioner, Jhang, Sargodha, Faisalabad, Okara, Sahiwal, Khanewal, Vehari and Bahawalpur.

Subject:-- Grant of extension for 20 years after the expiry of 20 years lease period under the Livestock Breeding Scheme, 1960.

.............

Memorandum.

Continuation Colonies Department Memorandum No. 282- 82/607-CLV, dated the 9th February, 1982 on the above subject.

1. The Government of the Punjab is please to decide that extension in lease period may be granted from Kharif/Rabi 1980 for 10 years as per Condition No. 8 of the above scheme.

2. It has also been decided as a special case to allow the lessees who are still in possession of the land on `Sapurdari' as allowed in this Department circular memorandum cited above as fresh lease for 10 years from Kharif, 1990 on the following conditions:-

(i) The above persons shall clear previous arrears of rent at Rs.5/- per acre per annum and undertake to pay from Kharif, 1990 onwards at Rs.100/- per acre per annum. The arrears can be paid if so requested by the above persons in installments to be fixed by the Board subject to payment of interest on balance payable etc.

(ii) The fresh tenancy shall expire in Rabi, 2000 i.e. on 30.6.2000 and it shall be surrendered to Government without any hesitation. It is a one term lease and carries no commitment for further extension or grant of proprietary rights. (underline is mine)

(iii) Other conditions for this lease are being adopted from the Notification No. Col.7/1-1/58 dated 3.5.1960.

You are requested to proceed further and obtain agreement of the above persons failing which the existing lease expiring in Rabi, 1990, the land should be resumed immediately.

Sd/-

UNDER SECRETARY, for Secretary to Government of the Punjab, Colonies Department. "

The respondents accepted the terms and conditions of the Policy dated 27.4.1990, consequently lease was renewed for further 10 years.

1. The Policy dated 24.7.1990 clearly shows that extension of lease was with a specific condition, that on expiry of agreed period of 10 years ending on 30.6.2000, the lease holder will surrender the possession of land and said extension did not carry any commitment for further extension or grant of proprietary rights. There is no denial of fact that Policy dated 24.7.1990 for Live Stock Breeding Scheme, 1960 was promulgated for whole of Punjab. In terms of policy it has to be seen whether the respondents case is covered under the doctrine of LEGITIMATE EXPECTANCE or not ? and the policy is violative of law.

2. The Doctrine of legitimate expectancy was considered by the House of Lord Council of Civil Services Unions & Ors v. Minister for the Civil Service (1948) All ER 953), Lord Diplock Opined as under;

"For a legitimate expectation to arise, the discretion of the administrative authority must effect such power either (a) by altering right or obligations of that person which are enforceable by or against him in private Law or (b) by depriving him same benefit advantage which either (i) he has in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to so until some rational ground for withdrawing it has been committed to him and he has been given opportunity to comment there on or (ii) he has received assurance from the decision maker that they will not be withdrawn without first giving him an opportunity of advancing reasons for contending that they should be withdrawn."

1. In another case Attorney General of Hong Kong v. Ng Yuen Shiu (1983) All ER 346 Lord Fraser opined as under:--

"When a Public Authority has promised to follow on certain procedure, it is in the interest of good administration that it should act fairly and should implement its proviso so long as the implementation does not interfere with its statutory duty."

1. The Doctrine of Legitimate expectation and its impact has been considered by the Supreme Court of India in National Buildings Construction Corporation Vs. S. Raghunthan and others (1998) 7 Supreme Court Cases 66) and it was held:--

"The doctrine of legitimate expectation has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is akin to violation of natural justice. It was in this context that the doctrine of legitimate expectation was evolved which has today become a source of substantive as well as procedural rights. But claims based on legitimate expectation have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppel. Unfairness in the purported exercise of power can amount to an abuse or excess of power. Thus the doctrine of "legitimate expectation" has been developed, both in the context of reasonableness and in the context of natural justice. The State actions have to be in conformity with Article 14 of the Constitution, of which non-arbitrariness is a significant fact. There is no unfettered discretion in public law. A public authority possesses powers only to use them for public good. Through the doctrine of legitimate expectation is essentially procedural in character and assures fair play in administrative action, it may, in a given situation, be enforced as a sustentative right.

The doctrine of legitimate expectation can be invoked if the decision which is challenged in the Court has some person aggrieved either (a) by altering rights or obligations of that person which are enforceable by or against him in private law; or (b) by depriving him of some benefit or advantage which after (i) he had in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given as opportunity to comment; or (ii) he has received assurance from the decision-maker that it will not be withdrawn without giving him first an opportunity of advancing reasons for contending that it should not be withdrawn. Indian scenario in the filed of legitimate expectation is not different."

1. It is now well established proposition of law that he who basis his claim on the concept of legitimate expectation, he has to rely on the representation of public authority, and their denial, is the infringement of his right, and then Court will interfere only, if the decision of denial is arbitrary, unreasonable, abuse of powers and is against the principal of natural justice and decision is not taken in public interest.

2. In the respondents case, the appellant while, extending lease in favour of respondents, had made clear that they will not apply for any further extension, and the present extension does not carry any commitment, for grant of proprietary rights, and as such it was in the knowledge of respondents that they have to surrender the possession of land on expiry of their extended period, and the policy does not provide any right for grant of proprietary rights.

3. It is not the case of respondents that appellant has illegally imposed the two condition while promulgated policy dated 27.4.1990, rather respondents knowingly accepted the terms of policy without any objection, hence, after accepting the terms of Policy dated 27.4.1990, the matter become clear and any alleged expectation came to an end. If the respondents have developed the land, the said development was for their own benefit as they are the sole beneficiary of its income and other proceeds. It is not the case of respondents that they have challenged the policy dated 27.4.1990, hence there is no need to discuss this aspect of the case.

4. The second argument of learned counsel for respondents is that, their case was recommended by Commissioner Sargodha for grant of proprietary rights, and as such, they are entitled for the conferment of proprietary rights of land. It is an admitted fact that Commissioner Sargodha was not the final Authority, his recommendation will have to mature after approval of Board of Revenue, the only competent authority. The status of recommendation of Commissioner Sargodha is his opinion only, the recommendations culminate only into an enforceable order, conferring right to beneficiary when these recommendations are accepted by the final decision making authority and that final order is communicated to its beneficiary. The recommendations of Commissioner Sargodha is just a correspondence between an Official and a decision making authority, the decision making authority is surely not bound to accept the recommendation of a functionary who is not decision making authority, it is the prerogative of the decision making authority to accept or reject the recommendations. It seems that Commissioner while recommending respondents case has not examined the Policy dated 27.4.1990, through some bona fide mistake or he intentionally ignored the same for providing illegal benefit to respondents, admittedly the recommendations are in violation of the policy dated 27.4.1990. We also note that Policy ibid has also skipped from the attention of Learned Single Judge.

5. Learned counsel for respondents has tried to argue their case with comparison to other schemes, launched by state for utilization of State land, the case of respondents is distinguishable with the case of other schemes, for the two reasons;

6. The lessees of respective scheme were granted proprietary rights of the land under the Policy framed for these schemes separately and independently.

7. last extension of lease dated 27.4.1990 was allowed to respondents with specific condition that lessees will not request for further extension and this extension will not be treated any commitment for grant of proprietary rights.

8. The respondents never claimed that they accepted the extension of lease under compelling circumstances, nor they have challenged the legality of the policy and as such after accepting the Policy ibid the respondents could not be allowed to wriggle out from their own commitment.

9. In an Indian jurisdiction, in a case Federal Minister passed an order on a case file, but his order was not communicated to its beneficiary, the beneficiary however claimed that as the Minister has accepted his right and as such his right become absolute, the Court held as under:--

Bachiiltar Singh V. The State of Punjab (1962 Sapp 3 SCR 713).

"The business of State is a complicated one and has necessarily to be conducted through the agency of large number of officials and authorities. Before an action in taken by the authority concerned in the name of Rajpramukh, which formality is a constitutional necessity, nothing done would amount to an order creating rights or casting liabilities to third parties. It is possible observed the Court that after expressing one opinion about a particular matter at a particular stage or Minister or the Council of Minister may express quite a different opinion which may be opposed to be earlier opinion. In such cases, which of two opinions, can be regarded as the "order" of the State Government? It was held that opinion become a decision of the Government only when it is communicated to the person concerned."

1. In the light of above discussion in our humble opinion enforceable right only comes into existence under an order of a competent authority when it is communicated to its claimant, hence, the recommendation of commissioner Sargodha was only an official noting and does not create any enforceable right in favour of respondents.

2. As far as the question of discrimination is concerned. It is an established principal of law that principal of equality is subject to reasonable classification and is based on intelligible differentia. The object of every state scheme has different parameters, the policies framed for the other schemes are to develop the land by the lessee for the benefit of state and the state granted land equal to subsistence holding to the land less developer, whereas the respondents are not claiming themselves that they have worked for the benefit of state, it is an admitted fact that respondents have not shared the benefits of land with the state. It is also not the case of respondents that they are landless persons and their claim is restricted to the extent of subsisting holding. The respondents may claim any equality if they have been discriminated within the scheme. It is not the grievance of respondents that some of the lessees of Live Stocks Breeding Scheme have been granted proprietary rights in their exclusion, hence the respondents case did not fall within the ambit of Article 25 of the constitution of Pakistan. It is also not the case of respondents that they have established the live stocks and dairy products which are contributing toward the betterment of the national economy, rather the respondents intends to purchase state land on a negligible price on the basis of their expired possession, the respondents are retaining the possession of state land from the last 11 years without payment of a single penny to the Govt. Exchequer. It is an established principal of law that equality should be between persons placed in the same set of circumstances. The appellant policy for each and every scheme is different according to the circumstances, every set of land was leased out to the land less citizens as per different parameters and understandings.

The argument of Learned Counsel is that lease in their favour is through registered document and no adverse action could be taken against them without providing and opportunity of hearing, the right of hearing has been denied while deciding to sell the land through public auction.

The said argument is not available to respondents as after 24.7.1990 they are in possession of land under policy dated 24.7.1990 which is clear and unambiguous, the respondents after expiry of the extended /renewed period are bound to surrender the possession of land to appellant, the fact to surrender the land is known to them from 24.7.1990 the respondents are unable to explain in which capacity they are retaining the possession of land without payment of any lease money, in these circumstances after the expiry of extended period the respondents have lost the legal cover against their possession and as such the respondents could not challenge the right of appellant to deal with their own land according to their own choice in public interest.

1. Learned counsel for respondents vehemently argued that I.C.A.No. 354/1999 is barred by time of 26 days. He submits that impugned judgment was passed on 29.3.2000, the appellant filed appeal on 14.4.2000, but the office returned the appeal with three objections, the appellant re-filed the appeal on 12.5.2000, hence, the appeal is liable to be dismissed on this score as a valuable right has been accrued in their favour. They relied on Naheed Ahmed Vs. Asif Riaz and 3 others (PLJ 1996 Lahore 1261), Manzoor Hussain and others Vs. Sajawal and others (1983 SCMR 465), District Council Faisalabad v. Ch. Muhammad Yaseen (2000 YLR 440).

2. Admittedly appeal was filed within time, the office raised following objections on 17.4.2000:--

3. The Court fee is insufficient to the extent of Rs.5.00 on CM.

4. Writ petition is not arranged to the office order/Index.

5. Certificate to be given to the effect that I.C.A. is competent.

6. Photo copy of National Identity Card of the parties (s) to be filed.

7. The office allowed 3 days time for removing the objections. The objection sheet shows that appeal file remain with the office and learned counsel for appellants removed the objections on 11.5.2000. The appellant, filed application u/S. 5 of Limitation Act, asserting that appellant counsel filed appeal on 14.4.2000 and he was under the impression that appeal will be fixed for hearing after deposit of printing charges and on receipt of printing charges, their counsel visited the office for depositing the same, the file was not traceable, and on 11.5.2000 file was located, then counsel came to know about the office objections. Their counsel collected file on 11.5.2000 and after removing the objections re-filed it on 12.5.2000. The appellant has specifically averred in the application in para 4:--

"That already a completely identical ICA No. 158/2000 stand admitted to regular hearing and on this score alone the appeal deserves to be heard on merits after condoning the delay as explained."

1. The assertion of said para was not denied and respondents replied as under:--

"This is not good ground for condonation of delay and each case has to be decided on its own merits and for that matter the appellant is not entitled to hearing on merits and further more it is a case of unprecedented mala fide approach towards its own subject and discrimination for the reason best known to appellant expressing the will through authorities tracked by rules and not under the law. "

1. The averments of petition and its reply show that ICA No. 158/2000 on the identical point of Law was admitted for regular hearing by this Court before filing the present appeal, it is proven fact on record that same question of law and fact was involved in Appeal No. 158/2000, hence on this score the limitation is condonable in the present case.

2. The above issue came up for hearing before Hon'ble Supreme Court of Pakistan Noon Sugar Mills Ltd. v. Market Committee, etc. (PLD 1989 S.C. 449) and it was held, where the question of public importance is involved even in extreme cases limitation can be condoned.

3. Again the issue where one appeal is filed with in time and other is barred by time whether limitation can be condoned or not?

Came up before Hon'ble Supreme Court of Pakistan Syed Imran Raza Zaidi, Superintending Engineer, Public Health Engineering Circle-I, Gujranwala Vs. Government of the Punjab through Services, General Administration and Information Department, Punjab Secretariat, Lahore and 2 others (1996 SCMR 645), it was held as under:--

"However, since the order of the Service Tribunal impugned in this appeal also forms the subject-matter of the connected appeal (C.A.742/94) which undoubtedly was within time and the leave has been granted in both the cases to consider an identical question coupled with the fact that respondent did not press the objection now being raised, at the time of grant of leave although he was duly represented by a counsel who was very much present in Court, we do not find it fit and proper to dismiss this appeal on the ground of limitation. Needless to observe that in similar situations, the delay has been condoned by this Court Refer PLD 1969 S.C.449. We, therefore, condoned the delay in this appeal in the interest of justice."

1. The other aspect of the appeal is that, office has not informed the appellant about the objections, the Hon'ble Supreme Court has resolved this issue in Mst. Sahiran Bi Vs. Ahmed Khan (2000 SCMR 847). Even otherwise if we consider the office objection, that too are of clerical nature, the appeal was filed by the Province of Punjab and as such NIC was not necessary. The second objection "writ petition is not properly arranged". The record of writ petition was with the office and it was the duty of office to attach the record of writ petition with ICA, the third objection that stamp of Rs.5/- has not been affixed on CM. is concerned, the maximum effect of said insufficiency is that CM. will not be treated proper CM. or the appeal will be heard, without CM, the appeal was thus filed and was within time.

2. The last objection of learned counsel for respondents is that appeal is not maintainable under Section 3 of the Law Reforms Ordinance, 1972. The averments of petition and its payer shows that order of Revenue Board was not impugned, the respondents, prayed for a declaration for granting of proprietary rights of suit land in the light of memo. dated 16.1.1995 and 27.3.1995, hence the appeal is maintainable against the judgment of Learned Single Judge.

3. The upshot of above discussion is that both the appeals are allowed and impugned judgments dated 27.1.2000 and 29.3.2000 are set aside and all the above writ petitions are dismissed.

There is no order as to costs.

(R.A.) Appeals allowed

PLJ 2012 Lahore 439

Present: Ijaz Ahmad, J.

ARSHAD PETER--Petitioner

versus

Mst. SHUMAILA and 3 others--Respondents

W.P. No. 12452 of 2010, decided on 22.3.2012.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Professing Christianity--Execution petition was claimed payment as maintenance allowance and medical expenses through as attorney--Decree for payment of maintenance allowance was passed--Quantum of maintenance allowance past and future calculated and determined by executing Court--Terminus ad-quem was to be determined by High Court--Conversion from one faith to other does occur though not very frequently--Validity--Where spouses at time of marriage were Christian and wife renounces her religion and converts to Islam, she is that eventuality being a muslim would be one married to a non-muslim, both professing their scriptural religions--She will be on intervention of Court, entitled to a decree for dissolution of marriage--Court in such an eventuality would call upon husband to embrace faith of wife and if he refuses to do, judge can pronounce dissolution of marriage--Executing Court shall calculate amount of maintenance allowance payable by respondent adjusting any amount already paid towards satisfaction of decree--Petition partly accepted. [P. 441] A & C

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Professing Christianity--Entitlement of maintenance allowance only till she rejoins or on completion of period of iddat--Laws of Christianity governing spouses at time of marriage--Divorce could only be pronounced under same religion--Legality of alleged divorce pronounced--Validity--Christian woman as his wife, can take another wife according to shariat--Divorce which was not denied by woman but pronounced in accordance with husband's new religion was legal subject to limitations and safeguard provided by Holy Quran--Having pronounced divorce the same would be effective after expiry of period of iddat--Woman would be entitled to maintenance allowance till that date. [P. 441] B

Mr. Mobeen Ahmad Siddiqui, Advocate for Petitioner.

Mr. Aric John, Advocate for Respondent No. 1.

Date of hearing: 22.3.2012.

Order

Respondents No. 1 and 2 professing Christianity were married to each other in the year 2003. The Respondent No. 1 instituted a suit for payment of maintenance allowance against Respondent No. 2 through the petitioner as his attorney and for payment of maintenance allowance in favour of her minor daughter Khulda Simran and for medical expenses incurred at the time of birth of the child. A decree for payment of maintenance allowance was passed on 07.03.2007 by the learned Judge Family Court, Gujranwala, in favour of Respondent No. 1 only to the tune of Rs.5,000/- per month with effect from 11.07.2003 till her rejoining the petitioner or till the completion of period of `iddat', in case she was divorced, and for payment of Rs. 15,000/-, the expenses incurred on the birth of the child. No appeal was preferred.

1. The execution petition was made wherein Respondent No. 1 claimed the payment of Rs. 6,90,000/- as maintenance allowance and medical expenses. The petitioner has been prosecuting the case of Respondent No. 2 as his attorney before the learned Judge Family Court/Executing Court. The petitioner complying with the order dated 21.07.2010 passed in this writ petition has already paid Rs. 300,000/-.

2. It is contended by the learned counsel for the petitioner that at whatever rate, the total amount of payable maintenance allowance may be calculated, even then it does not come to Rs. 6,90,000/- and that the petitioner or Respondent No. 2 cannot be made to satisfy the decree for that amount. He substantiates his arguments relying on a fact that Respondent No. 2 had converted to Islam in the year 2007 and had divorced Respondent No. 1 on 20.02.2007, therefore, Respondent No. 1 in the terms of the judgment and decree could be entitled to maintenance allowance only till she rejoins Respondent No. 2 or on the completion of period of `iddat'.

3. On the other hand, it is contended by the learned counsel for Respondent No. 1 that the marriage was solemnized in accordance with the Laws of Christianity governing the spouses, at the time of marriage, therefore the divorce could only be pronounced under the same religion. Thus he contests the legality of the alleged divorce pronounced by Respondent No. 1 and argues that the maintenance allowance shall continue to be paid to Respondent No. 1 until she rejoins Respondent No. 2 or is divorced in accordance with the religion of Christianity.

4. I have heard the learned counsel for the petitioner, for Respondent No. 1 and also gone through the record.

5. The quantum of maintenance allowance past and future has to be calculated and determined by the Executing Court. A terminus ad-quem is to be determined by this Court. The point of time is when the Talaq' pronounced by Respondent No. 1 would become effective. The Christianity and Islam, both are proselytizing religions, the conversion from one faith to other does occur though not very frequently. In a case where the spouses at the time of marriage were Christian and the wife renounces her religion and converts to Islam, she in that eventuality being a Muslim would be one married to a non-Muslim, both professing their scriptural religions. She will be on the intervention of the Court, entitled to a decree for dissolution of marriage. The Court in such an eventuality would call upon the husband to embrace faith of the wife and if he refuses to do so, a Judge may pronounce the dissolution of marriage. In the case of husband renouncing the Christianity and embracing Islam, the convert Muslim husband would have scriptural (Katibia) woman as his wife. Such a union is permitted by Islam and may continue till the wife obtains a decree for dissolution of marriage or the husband pronounced "Talaq" in accordance with law of the religion professed by him. Reliance is placed on (AIR 1935 Bombay 5) titled "Muncherji Cursetji Khambata vs. Jessie Grant Khambata" (PLD 1963 Supreme Court 51) titled "Syed Ali Nawaz Gardezi vs. Lt. Col. Muhammad Yusuf" and (PLD 1958 (WP) Lahore 431) titled "FROOQ LEIVERS vs. ADELAIDE BRIDGET MARY". The husband, keeping a Christian woman as his wife, can also take another wife according to Shariat. The divorce which is not denied by Respondent No. 1 but pronounced by Respondent No. 2 in accordance with the husband's new religion is legal subject to limitations and safeguard provided by the Holly Quran. Respondent No. 2 having pronounced divorce to Respondent No. 1 on 20.7.2007, the same would be effective after the expiry of period ofIddat'. The Respondent No. 1 will be entitled to the maintenance allowance till that date. The Executing Court shall calculate the amount of maintenance allowance payable by the Respondent No. 2 adjusting any amount already paid by him towards the satisfaction of the decree. This petition in the above terms, stands partly accepted.

(R.A.) Petition partly accepted

PLJ 2012 Lahore 442

Present: Shahid Waheed, J.

GHULAM SARWAR--Petitioner

versus

RUKHSANA KAUSAR, etc.--Respondents

C.R. No. 3941 of 2010, decided on 30.3.2012.

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

----S. 13(3)--Transfer of Property Act, (IV of 1882), S. 52--Suit was not maintainable due to exchange of land vide mutation--Failed to establish superior right of pre-emption--Question of--Whether pre-emption suit was maintenable due to transfer of suit property--Issuance of notice of talb-e-ishhad--Property was exchanged through mutation--Validity--Talb-i-muwathibat or talb-i-ishhad does not eclips the rights of vendee or subsequent owner for further transfer of ownership of an immovable property whereas talb-i-khusumat or pre-emption suit prohibits vendee from transferring property in view of doctrine of lis pendens provided in S. 52 of T.P.A.--Petition was dismissed. [P. 445] A

PLJ 2004 SC 653 & 2004 SCMR 1270, ref.

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

----S. 13(2)--Cause of action for making talbs--Right of pre-emption--When fact of sale comes within knowledge of pre-emptor through any service he can exercise right of pre-emption--Cause of action for making talbs accrues when pre-emptor comes to know about sale of immovable property. [P. 446] B

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

----S. 2(d)--Sale--Sale does not include exchange of agriculture land--Validity--At time of institution of suit the vendees by way of exchange mutation had divested of all rights in suit property and they were not owner of property--Suit was not maintainable because exchange was a device permissible as legitimate ground to avoid pre-emption. [Pp. 446 & 447] C

Revisional Jurisdiction--

----Question of law and facts if was found suffering from misreading or non-reading of evidence or based on no evidence or inadmissible evidence--High Court in exercise of revisional jurisdiction should correct error committed by subordinate Court but in absence of any defect of misreading or non-reading of evidence in concurrent findings on such question, interference of High Court in civil revision would amount to improper exercise of revisional jurisdiction. [P. 446] D

Re-examination and Re-appraisal of evidence--

----Not permissible in revisional jurisdiction--If conclusion drawn by subordinate Courts on question of fact was erroneous--Record did not show any misreading or non-reading of evidence brought on record and therefore, conclusion of Courts below did not warrant any interference by High Court in its revisional jurisdiction. [P. 447] E

Mr. Taki Ahmad Khan, Advocate for Petitioner.

Date of hearing: 30.3.2012.

Judgment

This civil revision is directed against the judgment and decree dated 12.8.2010 passed by the learned Additional District Judge, Shakargarh, dismissing the civil appeal and maintaining the judgment and decree dated 30.6.2009 of the learned trial Court whereby the plaintiff-pre-emptor's suit for possession through pre-emption was dismissed.

1. Brief facts of the case are that the land measuring 15 kanals in Khasra Nos. 1237, 1238, 1244 and 1245, Khatuni Nos.30/31 and 355/406 situated in Mouza Baramanga. Tehsil Shakargarh. District Narowal was owned by Muzammal Khan, who vide Mutation No. 1651 attested on 21.4.03 (Ex.P13) sold the land to Rukhsana Kausar (Respondent No. 1) and Naheed Bibi (Respondents No. 2) for a consideration of Rs.3,00,000/-. Subsequently, Respondents Nos. 1 and 2 exchanged the above said land through Mutation No. 1690 attested on 16.5.2003 (Ex. P.14) with Abdul Majeed, (Respondent No. 3). As per contents of the plaint the plaintiff came to know about the sale i.e Mutation No. 1651 (Ex.P13) on 11.5.2003 at 9.a.m in his Baithak from Muhammad Aslam son of Ramzan Ali (PW-2), in the presence of Abdul Saeed son of Sultan Ali (PW-3) and Ghulam Haider son of Taj Din and the plaintiff in the same meeting declared his intention to exercise the right of pre-emption through Talb-i-Muwathibat. Subsequently on 24.5.2003 the plaintiff issued notice of Talb-e-Ishhad through registered post acknowledgment due attested by Muhammad Aslam (PW-2) and Abdul Saeed (PW-3) and finally on 16.8.2003 the petitioner instituted a suit for possession through pre-emption against the respondent before the learned trail Court The defendants contested the suit and on 2.10.2003 filed joint written statement taking preliminary objections, inter alia, regarding maintainability of the suit due to exchange of suit property vide Mutation No. 1690(Ex.P14).

2. The learned trial Court out of the divergent pleadings of the parties framed following issues:--

3. Whether the plaintiff has superior right to purchase the suit property qua the defendants? OP P.

4. Whether the plaintiff has fulfilled the requirement of Talbs as per law of land? OPP.

5. Whether the sale price Rs.3,00,000/- is ostensible and has not been paid actually and the defendant purchased the suit land against a consideration of Rs.2,00,000/-? OPP.

6. Whether the plaintiff has no cause of action ?OPD.

7. Whether the plaintiff is estopped to bring this suit by way of his conduct? OPD

8. Whether the pre-emption suit is not lain against the suit land due to transfer of suit land in favour of the defendant No. 3 OPD.

9. Whether the defendants, in case of decretal of suit, are entitled to recover of expenses of sale alongwith the consideration amount of Rs. 3,00,000/-? OPD

10. Relief.

11. Parties to the suit produced oral as well as documentary evidence before the learned trial Court. The petitioner/plaintiff Ghulam Sarwar himself appeared as PW-1. Muhammad Aslam as PW-2, Abdul Saeed as PW-3, Muhammad Afzal Patwari as PW-4, Syed Mubarak Ali as PW-5, Muhammad Arshad Postal Clerk as PW-6 and Muhammad Sadiq Postman as P W-7. The petitioner also tendered in evidence Notice Talb-e-Ishhad (Exh. P1. P2, P3) Shajra Killa Bandi (Ex.P4), Sale of one year 2001/02 (Exh.P5). Postal Receipts (Ex.P6, P7, P8), copy of Record of Rights for the year 2000-01 (Ex. P9), copy of Record of Rights for the year 2004/05 (Exh.P10, P11, P12), copy of Mutation No. 1651 dated 21.04.2003 (Ex.P13) and copy of Mutation No. 1690 (Ex.P14) and closed his case. In rebuttal Respondent/Defendant No. 3 Abdul Majeed appeared as DW-1. The respondents/defendants also tendered in evidence the attested copy of Mutation No. 1651 dated 21.04.2003 (Ex.D1), attested copy of Mutation No. 1690 dated 12.05.2003 (Ex.D2), Aks Shajra Killa Bandi (Ex.D3) and copy of Record of Rights for the year 2000/01 (Ex.D4) and closed his case.

12. The learned trial Court dismissed the suit vide judgment and decree dated 30.6.2009 for the reasons that the plaintiff had failed to establish his superior right of pre-emption; and, also failed to prove Talbs under Section 13 (3) of the Punjab Pre-emption Act, 1991. The plaintiff filed an appeal before the Additional District Judge Shakargarh, who while maintaining the findings on material issues i.e Issue Nos. 1 and 2 came to the conclusion that the suit was not maintainable due to exchange of land vide Mutation No. 1690 (Ex. P14). Feeling aggrieved by the concurrent findings of the learned Courts below the plaintiff has moved the instant revision.

13. Learned counsel for the petitioner in support of his revision has contended that notwithstanding exchange Mutation No. 1690 (Bx.P14) the plaintiff having superior right could maintain a suit on the strength of Section 32 of the Punjab Pre-emption Act read with Para-221 of D.F. Mulla's Mahomedan Law.

14. I have heard learned counsel for the petitioner and perused the record with his assistance. The pivotal issue in the case is Issue No. 6, that is, as to whether pre-emption suit was maintainable due to transfer of suit property in favour of Defendant No. 3. The plaintiff in his plaint, particularly paras 4 & 5 has categorically stated that before the issuance of notice of Talb-e-lshhad dated 24.5.2003 (Ex.P1, P2, P3) the Defendant Nos. 1 and 2 had exchanged the suit property with Defendant No. 3 through Mutation No. 1690 (Ex. P14) which was attested on 16.5.2003. In my considered view Talb-i-Muwathibat or Talb-i-Ishhad does not eclipse the rights of vendee or subsequent owner for further transfer of the ownership of an immovable properly whereas Talb-i-Khusumat or pre-emption suit prohibits vendee from transferring property in view of the doctrine of lis pendens provided in Section 52 of the Transfer of Property Act, 1882. In this regard I find fortification from the judgment rendered by Hon'ble Supreme Court of Pakistan in a case titled Abdul Yameen Khan v. Ashrat Ali Khan and others (PLJ 2004 SC 653= 2004 SCMR 1270) and relevant extract thereof reads as under:--

"From the case-law on the subject in general and from that cited at the bar, in particular, one feels no difficulty in arriving at the conclusion, that once a pre-emption suit stands instituted, a vendee is prohibited from entering into sale or resale of the disputed property. It is obvious because the lis is pending adjudication. Even otherwise, it is a matter of common sense that the provisions of Section 52 of the Transfer of Property Act would get attracted only and only when the lis is pending. Contrary to that, in the instant case, the pre-emptor had not then instituted the pre-emption suit on 5.10.2000 when the vendee Abdul Subhan had already sold the property to Ashraf Ali Khan on 29.9.2000 vide Mutation No. 639. How by any stretch of imagination or interpretation this further sale can brought within the four corners of the principle of lis pendens. The learned High Court has, therefore, rightly held that it was a new transaction altogether and the pre-emptor, if at all interested in pre-empting the sale, should have filed a suit against the latest sale and not against the previous one. If the principle of lis pendense is wrongly applied to the sales taking place prior to the institution of suit then every purchaser shall be made bound to wait for a pre-emption suit and refrain from exercising his proprietary rights over the property purchased. The right of pre-emption by such interpretation, cannot be so over stretched and so blow out of proportions."

The above said principle was reiterated by the Hon'ble Supreme Court of Pakistan in the case of Din Muhammad v. Abrar Hussain and another (PLD 2009 SC 93) wherein it has been held as follows:--

"Moreover according to the case of Abdul Yameen Khan v. Ashrat Ali Khan 2004 SCMR 1270, further sale in favour of Abrar Hussain (Respondent No. 1) prior to the institution of pre-emption suit could not be brought within four corners of the principle of lis pendens and since a further sale transaction had already taken place, it was the vendee of that further transaction against whom suit for pre-emption should have been filed. Thus institution of pre-emption suit against a person who was no more vested with title would be nothing but an exercise in futility".

1. In view of above stated principle of law laid down by the Hon'ble Supreme Court of Pakistan the plaintiff suit for possession through pre-emption was not maintainable as before the institution of the suit the vendees i.e Respondent Nos. 1 and 2 had already exchanged the agricultural suit property with Respondent No. 3 vide Mutation No. 1690 (Ex. P14) and thereby ceased to be the owner of the suit property.

2. There is yet another angle to address this issue. Section 13 (2) of the Punjab Pre-emption Act, 1991 provides that when the fact of sale comes within the knowledge of pre-emptor through any source he can exercise his right of pre-emption. In other words cause of action for making talbs within the contemplation of Section 13 of the Punjab Pre-emption Act, 1991 accrues when pre-emptor comes to know about the sale of immovable property. The word "sale" has been defined in Section 2(d) of the Punjab Pre-emption Act, 1991 and as per definition the sale does not include exchange of agriculture land. Admittedly at the time of institution of suit the vendees by way of exchange Mutation No. 1690 (Ex. P14) had divested themselves of all the rights in the suit property and they were not owner of the property. Hence, the contention of the learned counsel for the petitioner has no force and it is held that suit of the plaintiff was not maintainable because exchange is a device permissible as legitimate ground to avoid pre-emption.

3. There is no need to discuss other issues as the Hon'ble Supreme Court of Pakistan in the case of Muhammad Feroze and others v. Muhammad Jamaat Ali (2006 SCMR 1304) and Abdul Mateen and others v. Mst. Mustakhia (2006 SCMR 50) has laid down a principle that the concurrent finding on a question of fact or mixed question of law and facts, if is found suffering from misreading or non-reading of evidence or based on no evidence or inadmissible evidence, the High Court in exercise of the revisional jurisdiction should correct the error committed by the subordinate Courts but in absence of any defect of misreading or non-reading of evidence in the concurrent finding of two Courts on such question, the interference of the High Court in the civil revision would amount to improper exercise of revisional jurisdiction. Moreover, re-examination and reappraisal of evidence is not permissible in revisional jurisdiction even if conclusion drawn by the subordinate Courts on a question of fact was erroneous. The revisional power of High Court is exercised for correcting an error committed by the subordinate Courts in exercise of their jurisdiction and mere erroneous decision would not call for interference unless it is established that the decision was based on no evidence or the evidence relied upon was inadmissible or the decision was perverse so as to cause grave injustice. In instant ease, the perusal of record does not show any misreading or non-reading of evidence brought on record by the parties and, therefore, the conclusion of the Courts below does not warrant any interference by this Court in its revisional jurisdiction.

In view of above, the instant petition being without merit is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2012 Lahore 447 [Rawalpindi Bench Rawalpindi]

Present: Ijaz Ahmad, J.

MUHAMMAD SALEEM KHAN--Petitioner

versus

ADJ, TAXILA, etc.--Respondents

W.P. No. 245 of 2011, decided on 23.12.2011.

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

----Ss. 5 & 8--Scope of--Lease period was 30 years--Original tenants subleted property without landlord consent--Being co-sharer cannot be evicted from premises through eviction application--Maintainability of petition--Un-registered tenancies were saved for two years from date of coming into force of Act, 2009--Non deposit of fine required to be deposited was rectifiable omission--Question of--Whether petition was maintainable and entertainable by Rent Tribunal in absence of tenancy agreement--Validity--It was responsibility of landlord and tenant both to bring tenancy inconformity with provisions of PRP Act not later than 2 years from date of coming into force of Act--Grace period would end on 16.11.2011--Such grace period was available to both of them when application for eviction was made--If tenancy does not conform the provisions of PRP Act, Tribunal was not to entertain an application on behalf of landlord, unless landlord deposits a fine equivalent to ten percent of annual value of rent of premises as penalty for omitting to bring tenancy inconformity with provision of Act. [P. 450 & 451] A

Interpretation of Statutes--

----Legislature intended to un-suit landlord or tenant by provisions of law--If applicant who put law into motion ultimately succeeds may be asked to pay required fine even by executing Court. [P. 451] B

M/s. Muhammad Akram Sheikh and Sajeel Sheheryar, Advocates for Petitioner.

Mr. Muhammad Javed Niazi, Advocate for Respondent No. 3.

Date of hearing: 13.12.2011.

Order

Mian Bashir Ahmed, father of Respondent No. 3 allegedly entered into an agreement with Muhammad Siddique and two others in respect of land measuring 150-kanals 04-marlas situated in mauza Bhoti Pind Taxila for setting up a brick kiln. The lease period was 30 years. The annual rent was settled at Rs.9,000/- per annum besides Rs.6,000/- to be paid as charges for the water. The yearly rent was agreed to be paid in advance and the agreement was to commence on 01.01.1979. In the year 1990, the petitioner got the possession of the land and started paying the rent as, it was being paid by Muhammad Siddique and others. The rent was accepted by the landlord. The respondent-landlord however, made an eviction application on 07.09.2009 under the Punjab Rented Premises Ordinance, 2007. It was later on amended in view of the enactment of Punjab Rented Premises (P.R.P.) Act, 2009. It was alleged that Muhammad Siddique etc., the original tenants had sublet the property in question to the petitioners in the year 1990 without the landlord's consent. It was however orally decided between the parties that the petitioner will complete the tenancy period of 30 years commencing from 1979. Land measuring 125 kanals consisting of 60 rooms constructed thereupon was handed over to the petitioner. The lease period at the time of making of the application was alleged to have expired. The payment of the yearly rent up to the year 2008 was acknowledged. Default in payment of rent was alleged thereafter. This application was resisted by the petitioner, the tenant. It was averred that the petitioner being the co-sharer cannot be evicted from the premises through the eviction application and the petition was not maintainable in the said form; that the lease period would commence from the year 1990 and end in December, 2020. The application was therefore pre-mature. Subletting was denied and oral agreement for 30 years from 1990 was pressed. The default in payment of rent was refuted. It was alleged that the applicant had refused to receive the rent for the year 2009. Issues were framed. The parties led evidence.

1. It is contended by the learned counsel for the petitioner that there was an oral agreement between the parties that the lease period would commence from the year 1990 and end in December, 2020, thus the petition was pre-mature. He refers to the statement made by the landlord as AW-1 and that of Haji Ghulam Sarwar as AW-2 who admitted and the statement of Tanveer Akhtar/RW-2 who stated that Khasra Nos. mentioned in the lease agreement of the year 1979 and those given in the possession to the petitioner in 1990 vary each other to a considerable extent. Even the area has been reduced by 25 Kanals. Thus a new contract for the same length of period replaced the earlier; that the petitioner having paid the rent due till the year 2008 and having tendered the same for the year 2009 through a money order which was not received by the respondent-landlord, cannot be termed to be a willful defaulter; that short lapses, measureable in weeks in payment of the yearly rent in time, incurred by the petitioner, do not constitute the willful default. Relies on "2010 SCMR 1071"' titled Muhammad Arshad Khokhar Vs. Mrs.Zohra Khanum and others, "PLD 1987 Lahore 599" titled Abdul Hamid Vs. Muhammad Rafique Chaudhry and 2 others, "1987 SCMR 1313" titled Inayat Ullah Vs. Zahoor-ud-Din and another, & PLD 1992 Karachi 307" titled L.Hussain Vs. Muhammad Nawab and 4 others. He submits that a brick kiln and the land attached with it, is a factory and does not fall within the definition of a building or rented land under the Punjab Rented Premises Act, 2009, therefore the petitioner cannot be made to vacate the premises pursuant to adjudication made in an eviction application under the Act. Relies on "1991 SCMR 1944" titled Raja Khurshid Ali Vs. Dy.Abdul Malik, that a brick kiln is a factory and not a building. He relies on "AIR 1966 SC 1998" titled Ghanshiam Das Vs. Debi Prasad and another, "1966 Crl.L.J 228", titled Prabhulal Potadia Vs. State on 3 August 1965. He also refers to "AIR 1965 SC 716" titled Uttamchand Vs. S.M. Lalwani, wherein a Dal factory was excluded from the definition of a building. He argues that the jurisdiction of a Tribunal is of paramount consideration which in the instant case did not rest with the learned Special Judge (Rent). Relies on "2008 SCMR 240" titled Izhar Alam Farooqi, Advocate, Vs. Sheikh Abdul Sattar Lasi and others & "2006 SCMR 1630" titled Executive District Officer Schools and Literacy, District Dir Lower and others Vs. Qamar Dost Khan and others. It is further submitted that the application made without depositing a fine equivalent to 10% of the annual value of the rent as required under Section 09 of the Punjab Rented Premises Act, 2009 was not entertainable. Relies in "PLD 1986 SC 178" titled Col. (Retd.) Syed Mukhtar Hussain Shah Vs. Wasim Sajjad and 30 others. Lastly argues that although the concurrent findings are in favour of the respondent, yet the same are based on non-reading of the evidence and are arbitrary in nature, therefore, there is room for interference by this Court. Relies on "PLD 2001 SC 149" titled Dilawar Jan Vs. Gul Rehman and 5 others, and "2004 YLR 2905" titled Ch.Mussarat Ahmad Vs. Ch.Fazal Ahmad and W.P.No. 372/2009 titled Zhange Gougen Vs. Mst. Jahanzeba Begum.

2. On the other hand, the learned counsel for Respondent No. 3 contends that the petitioner in his written reply has accepted the term of Rented Premises for the brick kiln and has not specifically objected to the jurisdiction of the learned Special Judge on the ground that the Kiln is not included in that term. He cannot raise that objection now; that the un-registered tenancies are saved for two years from the date of coming into force of the Act of 2009 and the non-deposit of fine required to be deposited under Section 9 is a rectifiable omission. The respondent, however does not need to rest upon this proposition of law, as he has deposited Rs.15.00/- as fine, as required by law; that the petitioner is a proved willful defaulter in payment of rent. As per RW-2, the rent was agreed to be paid in advance, which he failed to do. RW-1 states that rent for the year 2009 was deposited in the Court in January, 2010. He lastly argues that the petitioner had stepped into the shoes of the previous tenants. He was not accepted by the respondent but was tolerated only. The forced tenancy could last only for the remaining period that was to end and has ended on 31.12.2008.

3. I have heard the learned counsel for the parties and also gone through the record.

4. The first point to be resolved is whether the eviction petition was maintainable and entertainable by the learned Rent Tribunal, in the absence of a tenancy agreement, as is required under Section 5 of the P.R.P. Act, 2009. Under Section 8 of the Act ibid, it is the responsibility of the landlord and the tenant both, to bring the tenancy inconformity with the provisions of this Act not later than 02 years from the date of coming into force of this Act. The grace period would end on 16th November, 2011. This grace period was available to both of them when the application for eviction was made. Even otherwise, if the tenancy does not conform the provisions of this Act, the learned Rent Tribunal is not to entertain an application on behalf of the landlord, unless the landlord deposits a fine equivalent to ten per cent of the annual value of the rent of the premises as a penalty for omitting to bring the tenancy inconformity with the provisions of this Act. What would be the effect, if the application it made without depositing the said fine and it is entertained and adjudicated upon. Will the whole proceedings be set at naught? That may not be the intention of the Legislature. Purpose and intent, in the first instance, is to bring the tenancy inconformity with the provisions of this Act. In the second instance, it could be to penalize the defaulters with imposition of fine who could either be the landlord or the tenant. It is beyond the principle of interpretation of Statutes that the legislature intended to un-suit the landlord or the tenant by the above provisions of law. If an applicant who put the law into motion ultimately succeeds, may be asked to pay the required fine even by the executing Court. The second question to be dilated upon is, whether the land measuring 125 kanals having 60 rooms constructed upon it and the Chimni standing thereon could be termed to be a building' or therented land' and thus would fall under the term of a rented premises, so as to bring the subject matter of the instant lease within the jurisdiction of a Rent Tribunal. The learned counsel for the petitioner has referred numerous judgments pronounced by the superior Courts of Pakistan and some from the Indian jurisdiction. "AIR 1966 Supreme Court 1998" deals with Zamindari Abolition and Land Reforms Act (1 of 1951), wherein the brick kiln factory was excluded from the land going to be subjected to the Land Reforms. In 1996 Cr.L.J. 288 the question, whether the brick kiln is a `factory' within the meaning of the Indian Factories Act (LXIII of 1948) was under discussion. The workers present in the premises of the Factory were held to be governed by the said Act. These two judgments are not applicable in the circumstances of this case. The ratio of the said judgments renders little help to resolve the issue in the present lis. In the judgment reported as "AIR 1965 Supreme Court 716", the dominant intention was dilated upon. The landlord therein rented a running "Dal Factory". The question was whether the building standing there upon would be termed as a building under Madhya Pradesh Accommodation Act Control Act (23 of 1955). It was held that the factory was not a building and therefore was outside the purview of the Act. The Court was said to ask itself, as to what was the dominant intention of the parties in executing the document. It was further held that dominant intention of the lessee in accepting the building on lease was as "Dal Factory". Some of the terms occurring in the Punjab Rent Restrictions Ordinance, 1959 and the P.R.P Act, 2009 deserve the appreciation. The Ordinance of 1959 applied to the urban arrears only. The subjects of the Ordinance were the urban area, the building which was further classified as none residential building, residential building and scheduled building and rented land. The PRP Act, 2009 has the rented premises, which is further divided into, building and the rented land, as its subjects. The rented premises means any land or an open space. The statement of the landlord as AW-1 suffices to come to a conclusion that the land was leased for the purpose of running a brick kiln. Both the parties understood the said purpose of the lease. It was leased for the same purpose to Siddique etc., the previous tenants. Some extracts from the statement made by him need to be reproduced, as below:--

Para 2 of the eviction applications reads that in the year 1990 on the request of the tenant, the predecessor of the landlord constructed 60 rooms and rented the said construction and land Measuring 125 kanals to the petitioner. The averments made in the said paragraph and the statement made by AW-1 suffice to ascertain that the dominant intention of the parties was leasing the property for the purpose of running a brick kiln. The rooms constructed thereupon were nothing else but the quarters for the workers. No other material or evidence is required to determine the dominant intention of the parties. The next question is, whether in view of the judgment cited as "AIR 1965 Supreme Court 716" the brick kiln is a factory or a rented premises. Although the 60 rooms constructed thereon hint that it is a building yet the dominant character of the whole complex matter is still to be determined, whether the brick kiln could be termed as a factory' or it falls within the definition ofland' rented out for the purpose of trade or business. In the Concise Oxford English Dictionary a `factory' is defined as follows:

"a building or buildings where goods are manufactured or assembled chietly by machine."

In the same dictionary the word `trade' is defined as follows:--

"the buying and selling of goods and services"

a brick kiln, the clay brick is molded, baked and then put to sale. The sale of the bricks is done at the kiln in two ways. In a bargain between the owner of the kiln and the middle man or the owner and the ultimate consumer. There is no doubt that the place where the trade and business of buying and selling of bricks is done on the rented land. It falls within the definition of rented land as given in the P.R.P. Act 2009. The molding and baking of bricks cannot be said to be the production of the goods in a factory primarily through the machines. The place where the business and trade takes place is included in the definition for the rented land' in P.R.P Act, 2009. The brick kiln, even if, is taken to be a factory, the latter has not been excluded from the subject matter of the Act. Where the Legislature so intends, as is in the case ofBuilding' some of the buildings by virtue of their specific use have been excluded from the definition, given in Section 2(a) of the P.R.P. Act, 2009. While interpreting a matter related to the jurisdiction of a Tribunal or a Court, the approach towards the extended jurisdiction has to be adopted. I am obliged to hold that the learned Rent Tribunal had the jurisdiction to adjudicate upon the application. The question of default is to be taken now. The statement of RW-2 proves the fact that the rent was agreed to be paid in advance and that from the year 1990 till the year 2000, the petitioner had been paying the same in advance. As per the statement made by RW-1, the rent for the year 2009 was deposited in the Court in January, 2010. The payment made a year after it was due, cannot be termed anything but willful default in payment of the rent. It was held in the judgment "2010 SCMR 1071" referred by the learned counsel for the petitioner, that the default of 02 or 03 days is not to be taken as a willful default and that landlord there was absent from the country and was not available to receive the rent In the judgment cited as "1987 SCMR 1313", the landlord was deliberately creating difficulties in payment of the rent. In the judgment cited as "PLD 1992 Karachi 307"; the tenant made all sorts of efforts to make the payment but failed and thus the default was not held to be willful. The said judgments render little support to the case in hand. I am constrained to hold that the petitioner has incurred willful default in payment of the rent.

1. The agreement in favour of the previous tenant was to expire on 31st December, 2008. The petitioner had only stepped into the shoes of the first tenant. The reduction in the leased area by 25-kanals but maintaining the previous quantum of rent shows that it could only be an adjustment to bring the ever increasing rate of rent in compatibility with the size of the leased land. The petitioner has been unable to prove that he had entered into a new lease agreement with the respondent for the same term that was to start running afresh. The petition cannot be termed to be pre-mature.

2. For the reasons given above, the petition is held to be sans the merits. The interference by this Court in its constitutional jurisdiction is not called for. This petition is dismissed.

(R.A.) Petition dismissed

PLJ 2012 Lahore 454

Present: Umar Ata Bandial, J.

MUHAMMAD SHARIF and 3 others--Petitioners

versus

ADDITIONAL INSPECTOR GENERAL OF POLICE, COUNTER TERRORISM DEPARTMENT, PUNJAB, LAHORE and 21 others--Respondents

W.P. No. 29642 of 2011, decided on 6.3.2012.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Contract employees--Right to be confronted with allegation on basis of their services had been terminated--Issued warning letters by Administration to improve their performance which was found unsatisfactory--Type of deficiency or default in rendering of service terminated on ground that their performance was unsatisfactory and which failed to improve despite grant of three months time--Validity--Contract appointees to be served with notice of allegations prior to taking adverse action based on cause--Petitioners had legal rights arising from Contract Appointment Policy 2004 and forgoing precedents--Termination order of petitioners were unsubstantiated and vague--Petitioners would report back on duty but shall not claim remuneration for intervening period after termination on principle of no pay without work--Temporary employees who had not rendered service during the period, they were not entitled to remuneration for same--Termination orders were setting aside. [P. 455] A, B & C

1998 SCMR 1445 & 1997 SCMR 1552, ref.

Mr. Muhammad Iqbal Mohal, Advocate for Petitioner.

Mr. Kaleem Ilyas, Addl.A.G. alongwith Muhammad Shoaib, DSP (Legal) CTD, Punjab Police for Respondents.

Date of hearing: 6.3.2012.

Order

The petitioners are contract appointee Inspectors working, in the counter terrorism department ("CTD") of the Provincial Government. They were issued warning letters by the S.P./Administration on 12.09.2011, 17.09.2011, 24.09.2011 and 16.09.2011 requiring each of them to improve their performance which was found unsatisfactory. The notices do not specify the type of deficiency or default in rendering of service by the petitioners. Three months later on 22.12.2011 the services of the petitioners have by the impugned order been terminated on the ground that their performance is unsatisfactory and which failed to improve despite the grant of three months time.

1. Learned counsel for the petitioners submits that notwithstanding the petitioners are contract/temporary employees, nevertheless they have a right to be confronted with the allegation on the basis of which their services have been terminated. In the present case, dissatisfaction with and non-improvement of service are vague and general allegations which are insufficient to justify termination in the eye of law. He refers to Aleem Jaffar, Ex-Line Superintendent, WAPDA Lahore Vs. WAPDA through its Chairman Lahore and 2 others (1998 SCMR 1445), The Secretary, Govt. of the Punjab, and others Vs. Riaz-ul-Haq (1997 SCMR 1552) and Muhammad Amjad Vs. The Chief Engineer WAPDA and another (1998 PSC 337).

2. Learned Addl, A. G. submits that the petitioners were given hearing and sufficient notice to improve their performance before their termination. He is however, unable to specify from the record the default or deficiency of the petitioners which led to premature termination of their contracts of service.

3. Under law even temporary employees have certain basic rights. The petitioners are specialized officers dealing with serious crimes, including, countering terrorism. The Contract Appointment Policy, 2004 of the Provincial Government visualizes in Clause 17 thereof that contract appointees to be served with notice of allegations prior to taking adverse action based on cause. The petitioners have legal rights arising from the said policy and the foregoing precedents of the Hon'ble Supreme Court. As noted above the termination order of the petitioners are unsubstantiated and vague. In the eye of law these are therefore arbitrary and cannot sustain.

4. The petitioners shall report back on duty on 07.03.2012 but shall not claim remuneration for the intervening period after their termination on the principle of no pay without work. Also temporary employees who have not rendered service during the said period, they are not entitled to remuneration for the same.

5. Consequent upon setting aside of the impugned termination orders, the respondents are at liberty to take action against the petitioners after confronting them in writing with the respective allegation on the basis of which their services are threatened to be dispensed with. The respondents shall pass a reasoned order after providing the petitioners with an opportunity of hearing and defence.

6. Petition disposed of.

(R.A.) Petition disposed of

PLJ 2012 Lahore 456

Present: Umar Ata Bandial, J.

MUHAMMAD SHERAZ and 14 others--Petitioners

versus

GOVT. OF PUNJAB through Chief Secretary Civil Secretariat, Lahore and 2 others--Respondents

W.P. No. 4219 of 2011, heard on 31.1.2012.

Civil Servant--

----Regularization of service of adhoc appointees--Posts as hospital pharmacists--Selection process meant for initial recruitment which includes two stages of assessment, written examination and viva voce--Validity--Benefit of regularization should be given to those candidates who fulfill the minimum criteria of appointment established in test administered by PPSC--In process of requisitioning further recommendees for appointment on initial recruitment--It would be an unfair and inequitable dispensation if provincial Govt. was to terminate services of fully qualified, competent and experienced persons like successful petitioners who have an unblemished service record in order to engage new persons who have yet to establish their credentials--Health depart was directed regularize services of petitioners who have passed selection process of PPSC. [P. 457] A, B & C

Mr. Pervaiz Inayat Malik, Advocate for Petitioners.

M/s. Muhammad Farooq Qureshi Chishti, Muhammad Javaid-ud-Rehman Rana, M. Jameel Noon, Qari Nadeem Ahmad Awais, Mian Shah Abbas, Syed Qamar Ali Rizvi, Ahsan Ahmad Bhindar, Ch. Qamar-uz-Zaman Tarar, Jameel Akhtar Lone, Rana Saleem Akhtar, Syed Zaman Haider, Ali Akbar Rana, Advocates for Petitions in Petitions.

Mr. Zaka-ur-Rehman Awan, Addl. A.G. alongwith Muhammad Farooq Raja, Deputy Director (Legal) PPSC, Ijaz Farrukh, Senior Law Officer, Health Department and Amir Rasheed Malik, Law Officer, Health Department.

Date of hearing: 31.1.2012.

Judgment

This judgment shall also decide Writ Petition Nos. 25770, 5110, 5400, 5872, 5932, 8627, 26031, 9039, 5342, 17305, 19325, 22653, 24358, 23282, 26240, 26150 and 6672-2011 involving common question of law.

1. The petitioners had served in their posts as Hospital Pharmacists (BS-17) successfully for a number of years in most of cases and over a year in some cases. The Provincial Government did not offer them any selection process for regularization of their service whereas such process was allowed to contract appointees under Regularization Policy dated 10.11.2010. Consequently, the petitioners perforce had to participate in the selection process meant for initial recruitment which includes two stages of assessment: written examination and viva voce. The petitioners before the Court, in total being 91 in number sat for the PPSC examination for initial recruitment of Hospital Pharmacists (BS-17) and 40 of them passed the same. In interview stage 28 out of the passing candidates qualified the interview and accordingly satisfied all criteria for appointment.

2. However, since they were lower on the merit list for appointment against 113 posts requisitioned by the Provincial Government, therefore they were not recommended by the PPSC. Learned counsel for the petitioner has read from the judgment of the Hon'ble Supreme Court in Naveeda Tufail case (2003 SCMR 291) to justify relief to the petitioners, That case concerns the regularization of service of adhoc appointees and lays down a salutary principle that the benefit of regularization should be given to those candidates who fulfill the minimum criteria of appointment established in tests administered by the PPSC. Accordingly, under the principle laid down in the said judgment, regularization process undertaken-through the PPSC becomes both transparent and also merit based.

3. Applying the test laid down in the aforenoted judgment, 28 candidates from amongst 91 petitioners are eligible to be regularized in their service. Learned Addl. A. G. on instruction however, submits that the respondent department does not have any seats available for regularization of the petitioners but is in the process of requisitioning further recommendees for appointment on initial recruitment. It would be an unfair and inequitable dispensation if the Provincial Government was to terminate the services of fully qualified, competent and experienced persons like the successful petitioners who have an unblemished service record in order to engage new persons who have yet to establish their credentials.

4. Accordingly, relying on the principle laid down in Naveeda Tufail's case the respondent Health Department, Government of Punjab is directed to regularize the services of 28 petitioners (including the petitioners mentioned by name in connected Writ Petition Nos. 5400, 5872, 22770, 5110, 19325 & 17304 of 2011), who have passed the selection process of the PPSC. In the present petition the successful petitioners include Mst. Naghma Roohi Chishti d/o Saleem Asghar Chishti (Petitioner No. 3), Miss Fazeelat Liaquat d/o Liaquat Hussain (Petitioner No. 5), Muhammad Saleem Noor s/o Fida Muhammad (Petitioner No. 12), Muhammad Farrukh Saleem s/o Muhammad Aslam (Petitioner No. 13) and Faisal Hussain s/o Ghulam Hussain (Petitioner No. 15). The needful shall be done within a period of two months from the date of receipt of a certified copy of this order.

5. Petition allowed.

(R.A.) Petition allowed

PLJ 2012 Lahore 458 (DB)

Present: Sh. Azmat Saeed, C.J. and Nasir Saeed Sheikh, J.

NIGHAT SHAHEEN--Appellant

versus

GOVT. OF PUNJAB through Chief Secretary, Civil Secretariat, Lahore and 2 others--Respondents

I.C.A. No. 90 of 2012 in W.P. No. 5932 of 2011, decided on 28.2.2012.

Punjab Civil Servants (Appointment and Condition) of Services Rules, 1974--

----S. 3--Law Reforms Ordinance, 1972--S. 3--Intra Court Appeal--Appointment on ad-hoc basis for specified periods--Applications were invited for filling-up vacancies on regular basis through test and interviews--Challenge to--Candidates who were declared successful were allowed and services were directed to be regularized--Remained unsuccessful to get services regularized--Assailed--Order for regularization of services of twenty eight ad-hoc appointments as they successfully completed process of written test as well as interviews conducted by PPSC--None of appellants successfully completed the process so as to claim a similar treatment as meted out to the petitioners of connected petitioners--Adhoc appointees as appellants were have no vested right to claim regularization of services without successfully completing process prescribed by law for initial appointment--Appellants voluntarily appeared in test and interview process undertaken by PPSC and did not succeed--No equity exists in favor of appellants--I.C.A. were dismissed. [P. 460] A

Mr. Pervaiz Inayat Malik, Advocate for Appellant.

Mr. Muhammad Shan Gull, AAG for Respondents.

Date of hearing: 28.2.2012.

Order

Through the instant order I.C.A. No. 90/2012 in W.P. No. 5932/2011, I.C.A. No. 91/2012 in W.P. No. 5872/2011, I.C.A. No. 92/2012 in W.P. No. 25770/2011, I. C.A. No. 93/2012 in W.P. No. 4219/2011, I.C.A. No. 94/2012 in W.P. No. 22653/2011, I.C.A. No. 95/2012 in W.P. No. 5400/2011, I.C.A. No. 113/2012 in W.P. No. 25770/2011/I.C.A. No. 114/2012 in W. P. No. 21168/2011, I.C.A. No. 115/2012 in W.P. No. 5400/2011, I.C.A. No. 116/2012 in W.P. No. 4219/2011, I.C.A. No. 117/2012 in W.P. No. 5872/2011, I.C.A. No. 118/2012 in W.P. No. 17305/2011, I.C.A. No. 119/2012 in W.P. No. 5110/2011 and I.C.A. No. 124/2012 in W.P. No. 26150/2011 are being disposed of together as in all the above mentioned appeals common questions of law and facts are involved.

1. The appellants were appointed on ad hoc basis as Hospital Pharmacists in BPS-17 for specified periods and were posted at different places in Punjab. The respondent Government invited applications for filling up the vacancies of Hospital Pharmacists on regular basis through test and interviews to be conducted by the Punjab Public Service Commission under the Punjab Public Service Commission Ordinance 1978 read with Punjab Public Service Commission (Functions) Rules 1978. The appellants alongwith 28 others appeared in the test and interviews conducted by the Punjab Public Service Commission. None of the appellants were declared successful by the PPSC. However even the 28 candidates declared successful by the PPSC were not appointed against the vacancies declared. The appellants alongwith the above twenty eight persons instituted writ petitions before this Court which came up for hearing before a learned single Judge of this Court. The writ petitions of twenty eight persons who were declared successful by the PPSC were allowed through a consolidated judgment dated 31.1.2012 passed by a learned single Judge of this Court and their services were directed to be regularized. The appellants remained unsuccessful to get their services regularized.

2. Through the instant I.C.As the petitioners of writ petitions who were not approved for regularization have assailed the judgment dated 31.1.2012 passed by a learned single Judge of this Court.

3. It is contended by the learned counsel for the appellants that all the appellants were appointed on ad hoc basis against the posts of Hospital Pharmacists and their cases are at par with those of the appointees against BPS-17 posts whose services were regularized by the Government of Punjab without getting any test and interview from the Punjab Public Service Commission. It was argued that the appellants have been discriminated against. It has been prayed by the learned counsel for the appellants that a similar direction as issued in favour of the twenty eight persons by the learned single Judge of this Court against the posts of Hospital Pharmacists in BPS-17 be issued in favour of the appellants as well.

4. The learned AAG vehemently opposed the contentions raised by the learned counsel for the appellants.

5. We have considered the arguments of the learned counsel for the parties.

6. Admittedly all the appellants were appointed on ad hoc basis and the appointment letters issued in favour of the appellants reflected the ad hoc appointment of the appellants for a specific period till the arrival of regular incumbents through Punjab Public Service Commission. It is also a matter of record that the applications were invited by the PPSC which is a statutory body constituted under the Punjab Public Service Commission Ordinance 1978 read with Punjab Public Service Commission (Functions) Rules 1978 for making recommendations for the appointments against the post in question. Ninety one candidates submitted applications for appearing in the written test and viva-voce, out of whom forty passed the written examination and twenty eight ultimately cleared the interview process. All the ninety one persons were ignored by the respondent Government. Resultantly writ petitions mentioned in Para-1 of the impugned judgment were instituted which came up for hearing before a learned single Judge of this Court. The services of twenty eight candidates out of ninety one petitioners, who were found eligible for initial appointment, were directed to be regularized, by the learned single Judge of this Court through the judgment dated 31.1.2012 passed in all the writ petitions. The appellants did not succeed in the interview process which has been prescribed under the provisions of Section 3 Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 for making initial recruitment against the posts. It is not the case of the appellants that they have successfully completed the entire process of the written test as well as the interviews conducted by the Punjab Public Service Commission. The learned single Judge of this Court after relying upon the judgment (2003 SCMR 291) Naveeda Tufail case passed an order for regularization of the services of twenty eight ad hoc appointees as they successfully completed the process of written test as well as the interviews conducted by the PPSC. None of the appellants successfully completed the said process so as to claim a similar treatment as meted out to the twenty eight petitioners of the connected writ petitions. The ad hoc appointees, as the appellants were, have no vested right to claim their regularization of services without successfully completing the process prescribed by the law for initial appointment in BPS-17. The appellants voluntarily appeared in the test and interview process undertaken by the PPSC and did not succeed. No equity exists in favour of the appellants. Their cases are distinguishable from those recommended for regularization on the basis of their results.

7. The judgment passed by the learned single Judge of this Court is in accordance with law and does not call for any interference or modification. All the instant ICAs preferred before this Court are accordingly dismissed in limine.

(R.A.) ICAs dismissed

PLJ 2012 Lahore 461 [Bahawalpur Bench Bahawalpur]

Present: Abdus Sattar Asghar, J.

SHARAFAT KALEEM--Petitioner

versus

ADDL. DISTT. JUDGE, BAHAWALNAGAR and others--Respondents

W.P. No. 2039 of 2010, decided on 29.2.2012.

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

----Ss. 21(1) & 22(6)(2)--Ejectment petition--Validity and vires of separate orders passed by rent tribunal--Right to defend ejectment petition was struck off and ejectment petitions were accepted with direction to hand over vacant possession assailed the orders before First Appellate Court--Dismissal of--Challenge to--No notice was served--Mandatory provision of filing of application for leave to contest within ten days in Rent Tribunal--Principle of audi alteram partem--Validity--It is an established principle of law that when law requires a thing to be done in particular manner same must be done accordingly and if prescribed procedure is not followed, it will be presumed that same had not been done in accordance with law. [P. 465] A

2011 PSC 704, rel.

Constitution of Pakistan, 1973--

----Art. 10-A--Punjab Rented Premises Act, (VII of 2009), Ss. 21(1) & 22(6)--Ejectment petition--Right of fair trial--Process was protected u/Art. 10-A of Constitution--Non compliance of directory provisions of S. 21(1) of Act, 2009, amounts to deny a statutory right of tenant--Such denial of statutory right imposition of penal provision u/S. 22(6) of Act, cannot be said a fair trial in due process of law--Impugned orders were violative to fundamental rights protected u/Art. 10-A of Constitution--Petitions were accepted. [P. 466] B

Sh. Faisal Munir, Advocate for Petitioner.

Sh. Karim-ud-Din and Mr. Javed Iqbal, Advocates for Respondents.

Date of hearing: 29.2.2012.

Order

By virtue of this single order I intend to dispose of instant writ petition as well as another Writ Petition No. 2040-2010/Bwp titled `Muhammad Ishaque Vs. Additional District Judge, etc' involving same question of law and fact calling in question the validity and vires of two separate orders dated 25.2.2010 passed by learned Rent Tribunal Bahawalnagar whereby ejectment petitions lodged by Respondents No. 3 to 12 were accepted against the petitioners as well as two separate orders dated 16.4.2010 passed by learned Additional District Judge Bahawalnagar whereby petitioners' appeals were dismissed.

1. It is argued by learned counsel for the petitioners that they were never served with a notice on the form prescribed in the schedule in terms of Section 21(1) of the Punjab Rented Premises Act, 2009; that the petitioners' service in the ejectment petitions filed by Respondents No. 3 to 12 was procured through an ordinary notice as well as through publication in the newspaper; that petitioners appeared before the learned Rent Tribunal on 16.2.2010 in person; that even on the said date no notice under Section 21(1) of the Act ibid was served upon the petitioners to file leave to defend the ejectment petitions rather on the said date one Malik Shahid Ahsan had lodged an application for his impleadment as party in the ejectment petition, which was accepted on the no objection statement of learned counsel for the respondents and the respondents were directed to file amended ejectment petitions after impleading Malik Shahid Ahsan as party; that the same day learned counsel for the respondents had also made a request that the word `Ordinance' written in the head-note of the petition due to clerical mistake instead of Punjab Rented Premises Act, 2009, be allowed to be corrected, which was accordingly, permitted by the learned Rent Tribunal and the case was adjourned to 22.2.2010 for filing of the amended ejectment petitions; that on 22.2.2010 respondents filed amended ejectment petitions; that on 25.2.2010 through the impugned orders petitioners' right to defend the ejectment petitions was struck off and the ejectment petitions were accepted with a direction to hand over the vacant possession of the disputed shops within thirty days; that although rent petitions were addressed to Rent Tribunal Bahawalnagar, however, the learned Civil Judge conducted the proceedings as Civil Judge 1st Class Bahawalnagar instead of Special Judge Rent Tribunal under the Act ibid from day one till passing the impugned orders; that being aggrieved petitioners assailed the impugned orders before the learned Additional District Judge through appeal, which were dismissed misconstruing the provisions of Sections 21 and 22 of the Act; that the impugned orders are illegal, without lawful authority, without any legal effect qua the rights of the petitioners, untenable in the eye of law and laible to set aside.

2. Both the constitutional petitions are resisted by learned counsel for the respondents with the contentions that since the petitioners had appeared in person before the learned Rent Tribunal on 16.2.2010, therefore, in terms of Section 22(2) of the Act it was incumbent upon them to file the applications for leave to contest within ten days of their first appearance before the learned Rent Tribunal; that petitioners' failure in filing of applications for leave to contest within prescribed period of ten days expired on 25.2.2010 rendered them liable to striking off defence and passing of the final order in terms of subsection (6) of Section 22 of the Act; that the learned Rent Tribunal as well as learned Additional District judge while exercising their lawful authority have passed the impugned orders in accordance with law and the petitioners have no case at all to invoke the constitutional jurisdiction of this Court.

3. I have given patient hearing to learned counsel for the parties and gone through the record.

4. At the outset it may be expedient to reproduce the relevant provision of Sections 21 and 22 of the Punjab Rented Premises Act, 2009 for ready reference:--

"21. Appearance of parties and consequences of non-appearance.--(1) If an application under this Act other than application for deposit of rent is filed, the Rent Tribunal shall Issue Notice to the respondent in the form prescribed in the Schedule, for appearance of the respondent on a date not later than ten days through process server, registered post acknowledgement due and courier service, (2) A notice under subsection (1) shall be accompanied by copies of the application and the documents annexed with the application.

1. Leave to contest.--(1) A Rent Tribunal shall not allow a respondent to defend the application unless he obtains leave to contest.

(2) Subject to this Act, a respondent shall file an application for leave to contest within ten days of his first appearance in the Rent Tribunal.

(3) Any application for leave to contest shall be in the form of a written reply stating grounds on which the leave is sought and shall be accompanied by an affidavit of the respondent, copy of all relevant documents in his possession and, if desired, affidavit of not more than two witnesses.

(4) The Rent Tribunal shall not allow leave to contest to a respondent unless the application discloses sufficient grounds for production of oral evidence.

(5) The Rent Tribunal shall decide the application for leave to contest within a period of fifteen days from the date of its filing.

(6) If the leave to contest is refused or the respondent has failed to file application for leave to contest within the stipulated time, the Rent Tribunal shall pass the final order."

1. Simultaneously, contents of the notice in the form prescribed in the Schedule under Section 21(1) of the Act reads below;--

SCHEDULE [See sub-section (1) of Section 21]

(Name of the Rent Tribunal) (Title of the application)

To

_______________________________________________________ (Name, description and place of residence)

Whereas _____________ (name of the applicant) has filed application for _________________ (nature) of the application) against you under the Punjab Rented Premises Act, 2009 for ______________ (nature of prayer), of which a copy is hereto annexed and is fixed for ______________ (date).

You are hereby directed to obtain leave to contest the application from the rent Tribunal described above within ten days of the date of hearing/appearance mentioned above. In default whereof, the Rent Tribunal may pass a final order in favour of the applicant.

Leave to contest may be obtained on an application in the form of written reply and specifying a ground (s) on which the leave is sought, accompanied by your affidavit and, copies of all the relevant documents in your possession and, if so desired, affidavits of not more than two witnesses.

Given under my hand and the seal of the Rent Tribunal on this _______ day of _______.

Special Judge (Rent)."

1. Learned counsel for the respondents admits that notice to the petitioners were not served on the prescribed Performa as given in the Schedule rather on 04.2.2010 general notices were issued in the name of the petitioners requiring them to appear in person or through agent on 16.2.2010 to file a written reply to the ejectment petitions otherwise they will be proceeded against ex-parte. In response to the said notices petitioners appeared before the learned Rent Tribunal on 16.2.2010. It is evident on the record that even on 16.2.2010 no notice on the prescribed form was served upon the present petitioners rather on 16.2.2010 the case was adjourned to 22.2.2010 for filing of amended ejectment petitions after impleading one Malik Shahid Awan as party. Amended petitions were filed by the respondents on 22.2.2010 and the cases were further adjourned to 25.2.2010.

2. It is pertinent to mention that the opening words/expression `Subject to the Act' used in sub-section (2) of the Section 22 of the Act bears great importance. Certainly mandatory provision of filing of application for leave to contest within ten days of his first appearance in the Rent Tribunal is subject to all other obligatory and ancillary provisions of the Act. When no notice in the form prescribed through the Schedule and accompanied by the copies of the application and the documents annexed with the application in terms of Section 21(1) of the Act was served upon the petitioners on filing of the ejectment petition or on their first appearance before the learned Rent Tribunal, therefore, they could not be burdened with the consequences of mandatory provisions of sub-section (2) and (6) of the Section 22 of the Act violative to the principle of audi alteram partem. It is an established principle of law that when law requires a thing to be done in a particular manner the same must be done accordingly and if prescribed procedure is not followed, it will be presumed that the same has not been done in accordance with law. Reliance be made upon Khalil-ur-Rehman and others Vs. Dr.Manzoor Ahmed and others (2011 PSC 704).

3. Right of fair trial and due process is protected under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. Certainly a question of fact or liability conclusively presumed without having recourse to the procedural due process cannot be said to have been determined under due process of law. It is pertinent to mention that the word `shall' used in sub-section (1) of Section 21 of the Act makes it obligatory upon the Rent Tribunal to serve the tenant with a notice in the form prescribed in the Schedule and to be accompanied by copies of the application and the documents annexed with the application. Non-compliance of the directory provisions of sub-section (1) of Section 21 of the Act, therefore, amounts to deny a statutory right of the tenant. In the event of such denial of statutory right imposition of penal provision under sub-section (6) of Section 22 of the Act cannot be said a fair trial in due process of law. The impugned orders, therefore, are also violative to the fundamental rights protected under Article 10-A of the Constitution. In view of the above, the impugned orders passed by learned Rent Tribunal and learned Additional District Judge are illegal, without lawful authority and untenable in law.

4. For the foregoing discussion and reasons both the writ petitions are allowed and impugned orders dated 25.2.2010 and 16.4.2010 passed by learned Rent Tribunal and learned Additional District Judge are set aside and both the cases are remanded back to the learned Rent Tribunal Bahawalnagar with a direction to the parties to appear before the learned Rent Tribunal on 15.3.2012. The learned Rent Tribunal is also directed to furnish an opportunity of filing leave to contest to the petitioners within ten days w.e.f. 15.3.2012 and then proceed further with the matter in accordance with law.

(R.A.) Petitions allowed

PLJ 2012 Lahore 466 [Bahawalpur Bench Bahawalpur]

Present: Amin-ud-Din Khan, J.

Mst. SHARIFAN BIBI--Petitioner

versus

MUHAMMAD SHARIF and 5 others--Respondents

C.R. No. 187-D of 2006, heard on 9.2.2012.

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

----O. 11, R. 2 & S. 115--Bar against plaintiff--Plaintiff claimed ownership and challenged transaction--No specifically pleaded the ingredient of benami transaction as well as not in knowledge of gift mutation till time of filing of suit--Court could not grant relief because plaintiff had no prayed for declaration of benami ownership of defendant--Plaintiff was bound to prove the case but could not take benefit of weak points--Missing from pleadings as well as from evidence produced by plaintiff--Validity--If after filing of the first suit came to know about other transactions, same could have been challenged through amendment in earlier filed suit--Plaintiff had not pleaded about benami transaction and gift made by father was also not challenged--Stance of plaintiff that through mutation it was not visible that possession of gifted land was transferred to donee--Pleadings were not upto mark in order to challenge a transaction of gift of year 1985--Her statement before Court was not upto standard, where onus of proof shifts on beneficiary of transaction because in her statement, portion of which had been referred to by first appellate Court, she had been admitted that the mutations were got sanctioned by her father and defendants were cultivating suit land as owner--Plaintiff could not raise objection with regard to transfer of possession under gift--Defect in prayer of plaint was also fatal because plaintiff had made prayer that plaintiff be declared owner and had prayed for possession of 1/3rd of suit property--Not pray for declaring ownership with regard as benami and not made prayer in suit for declaration that mutations be declared without lawful authority or having no effect upon rights of plaintiff. [Pp. 470 & 471] A, B, C & D

Pleading--

----Parties were bound by their pleadings and Courts below were not empowered to grant a relief to parties even which was not claimed by them. [P. 471] E

Jurisdiction of Civil Court--

----No defect, misreading or non-reading in judgment and findings recorded by Appellate Court except the view that Civil Court was not having jurisdiction to entertain and try suit for partition with regard to suit property situated in rural area as it was suit for declaration--Civil Court was having full jurisdiction to entertain and try the suit. [P. 471] F

Malik Zulfiqar Ali, Advocate for Petitioner.

Mr. Qamar Hameed Hashmi, Advocate for Respondents.

Date of hearing: 9.2.2012.

Judgment

Through this civil revision, the petitioner-plaintiff has challenged the judgment and decree dated 11.03.2006 passed by the Addl: District Judge, Haroon Abad, whereby the appeal filed by the respondents was accepted and the judgment and decree dated 04.05.2005 passed by the Civil Judge, Haroon Abad, decreeing the suit filed by the petitioner-plaintiff was set aside and suit was dismissed.

1. Briefly, the facts of this case are that the petitioner-plaintiff on 23.12.2002 filed a suit for declaration and for partition with regard to the suit property mentioned in Para No. 3 ( ), ( ), and ( ) of plaint. As per story of plaintiff that her father, namely, Qutab Din who was a Patwari in the Revenue Department and died on 14.01.1995 in the age of 95 years at Chak No. 62/4-R, Tehsil Haroon Abad, District Rahawal Nagar, purchased property Measuring 174-kanals during his service in Chak No. 174/9-L Tehsil Cheecha-Watni District Sahiwai, which was later on shown to have been gifted to Defendant No. 1 Muhammad Sharif, real brother of plaintiff (only son of Qutab Din). The plaintiff is only daughter of said Qutab Din. She stated in the plaint that she filed a suit for declaration in the Civil Court at Cheecha Watni, which was initially dismissed but the appeal was accepted on 21.11.2002. According to the plaintiff, in written statement filed by the defendant in the above said suit, she came to know about the properties mentioned in Para No. 3 of the plaint and therefore filed this suit. According to Para No. 3 ( ) of plaint, property Measuring 200-kanals fully described in this Para has been stated to have been purchased by her father but it was in the name of Defendant No. 1 as `benami', whereas she challenged the mutation of Gift No. 395 sanctioned on 09.04.1985 with regard to the property mentioned in Para No. 3 ( ) of plaint. She also challenged the transfer of Ahata-Jaat Nos. 35 and 104 measuring 03-kanals 14-marlas in favour of defendants.

The defendants appeared and contested the suit by filing written statement. The trial Court, out of the divergent pleadings of the parties, framed essential issues on 16.01.2004 and invited the parties to produce their respective evidence. The plaintiff herself appeared in the witness box as P.W-1 and in documentary evidence produced Ex.P-1 to Ex.P-10, whereas the defendants produced voluminous evidence, oral as well as documentary. The trial Court vide judgment and decree dated 04.05.2005 decreed the suit. Feeling aggrieved by the said decree, an appeal was filed by the defendants before the first appellate Court, which was allowed vide judgment and decree dated 11.03.2006 and the decree passed by the trial Court was reversed. Hence, this civil revision.

1. Learned counsel for the petitioner-plaintiff argued that the first appellate Court non suited the plaintiff on the basis that father of plaintiff being Patwari could not purchased one square of land; that when in Para No. 3 ( ) the pleadings were specific but there were evasive denial on the part of defendants, so under the law the Courts were bound to consider that evasive denial as admission on the part of defendants, therefore, the first appellate Court fell in error while accepting the appeal of the defendants. When confronted to the learned counsel for the petitioner-plaintiff that even he has not made prayer for declaration of Benami' entry with regard to the property mentioned in Para No. 3( ) of the plaint, that it was actually purchased by her father in the name of his son Muhammad Sharif. Learned counsel states that when it was mentioned in Para No. 3, there was no need to further make a prayer for declaration of that property to be aBenami'.

Further states that the portion of statement of petitioner-plaintiff was referred to by the first appellate Court, which was to be read as conjunctive and not injunctive; that Defendant No. 1 being beneficiary of Mutation No. 395 was bound under the law to prove the valid attestation of mutation; that he has not proved the ingredients of gift also, therefore, the suit was rightly decreed by the trial Court. It has been further contended that in the judgment of first appellate Court, the finding that Civil Court was not having jurisdiction by virtue of Section 172 (2) (XVIII) of West Pakistan Land Revenue Act, 1967, to entertain and try the suit with regard to the suit property being located in the rural area, is against law. To this extent I agree with the learned counsel for petitioner-plaintiff that the first appellate Court has wrongly viewed that Civil Court was not having jurisdiction to entertain and try the suit because in the suit only partition has not been claimed with regard to the agricultural land but it was a suit for declaration also. Therefore, the finding of first appellate Court to this extent is against the law.

1. On the other hand, learned counsel for the respondents-defendants states that the plaintiff has even not specifically pleaded the ingredient of Benami' transaction as well as her pleadings show that she was not in the knowledge of impugned gift mutation till the time of filing of her suit. Further states that there is no specific prayer in the plaint and when there is no specific prayer, the Court cannot grant the relief because plaintiff has not prayed for declaration ofBenami' ownership of Defendant No. 1 with regard to the property mentioned in Para No. 3 ( ) of plaint. It has been further argued that the plaintiff was bound to prove her case but she cannot take benefit of weak points on the part of defendants; that the plaintiff has not even uttered a single word when she appeared as P.W-1 as her own witness about `Benami' transaction but she stated that she came to know about the ownership of her father first time just before filing of suit. Lastly contended that the findings recorded by the first appellate Court are in accordance with law.

2. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance.

3. The petitioner-plaintiff has pleaded two things in her plaint with regard to the property mentioned in Para No. 3 ( ). She stated that this property was in the name of defendants as Benami' and further with regard to the properties transferred in favour of Defendant No. 1, mentioned in Para No. 3 ( ) and ( ) of plaint claims that these transfers are fictitious. The facts are not denied that father of plaintiff Qutab Din was a Patwari and after retirement he was Lumberdar at the time of his death. The plaintiff and Defendant No. 1 being his daughter and son were the only legal heirs. After his retirement from service no became Lumberdar of Mouza. He died in the year 1995. The plaintiff has not specifically mentioned with regard toBenami' transfer of property in the name of Defendant No. 1, even it is not on the record that how property claimed to be `Benami' in the name of Defendant No. 1 came in his ownership and who was the transferor of properly. All these things are missing from the pleadings as well as from the evidence produced by the plaintiff. Moreover, the transaction of gift and sale are of the year 1985, at least 10 years before the death of owner and as per claim of plaintiff herself that she came to know about these transactions just before filing of the suit i.e. in December, 2002, that Qutab Din died after 10 years of impugned mutation of gift in favour of his son and after more than 07 years of death of Qutab Din, suit has been filed.

The previous suit was filed at Cheecha-Watni with regard to the other property, wherein plaintiff has claimed the ownership, and challenged the transaction by her father in favour of his brother (Defendant No. 1). Certainly Order II Rule 2 of the CPC is a bar against the petitioner-plaintiff, us if after filing of first suit she came to know about the other transactions, the same could have boon challenged through amendment in the earlier filed suit. As I have earlier observed that plaintiff has not specifically pleaded about the `Benami' transaction and gift made by her father was also not challenged. The stance of learned counsel for the plaintiff that through the impugned mutation it is not visible that the possession of gifted land was transferred to the donee. In this regard I have noticed that in Column No. 14 of the impugned mutation, there is a narration on the basis of Rappat recorded by Patwari before entering mutation on behalf of donor that he has delivered the possession to the donee, who has accepted the same. Learned counsel for the plaintiff was questioned that whether any 3rd person can challenge any mutation of gift on the basis that possession was not transferred under the gift to the donee. Learned counsel replied that being daughter of donor, who is claiming inheritance in the suit property, she can raise the objection of transfer of possession. I do not agree with the explanation given by learned counsel for the plaintiff in the circumstances of this case.

In this case, when as par claim of plaintiff that she came to know even about the ownership of her father of suit property in December, 2002, just before filing of the suit and her father died in the year 1995 and transaction is of the year 1985, in these circumstances, the pleadings are not up to the mark in order to challenge a transaction of gift of the year 1985. Her statement before the Court as P.W-1 is also not up to the standard, where the onus of proof shifts on the beneficiary of transaction because in her statement, the portion of which has been referred to by the first appellate Court, she has even admitted that the impugned mutations were got sanctioned by her father and that the defendants are cultivating the suit land as owner and she has admitted that they were taking benefits of production and they never paid any share of produce to her. In these circumstances, she cannot raise objection only with regard to the transfer of possession under the gift. Qutab Din was not an ordinary person. He was X-Patwari as well as Lumberdar and Mutation No. 408 of land measuring 20-kanals was sanctioned in the year 1986 at Chak No. 62/4-R Tehsil Haroon Abad by Muhammad Sharif in favour of Qutab Din. Admittedly this land is part of Mutation No. 395 which was previously gifted by Qutab Din in favour of his son Muhammad Sharif, therefore, this document is not ignorable.

1. So far as, the objection raised by learned counsel for the petitioner-plaintiff with regard to the evasive dental is concerned. I have observed that if whole the pleadings of plaintiff and defendant be considered entirely. There are specific denial from the pleadings of plaintiff. The defect in the prayer clause of plaint is also fatal in my view because plaintiff has made prayer that she be declared the owner and she has prayed for possession of 1/3rd of suit property according to her entitlement. She has not made prayer for declaring the ownership with regard to the property mentioned in Para No. 3 ( ) as `Benami' in the name of Defendant No. 1 and also has not made prayer in her suit for declaration that the mutations mentioned in Para No. 3 ( ) and ( ) be declared without lawful authority or having no effect upon the rights of plaintiff. Therefore, on this score the plaint was defective one. No doubt, the parties are bound by their pleadings and the Courts below were not empowered to grant a relief to the parties even which was not claimed by them. In this view of the matter, the trial Court fell in error while decreeing the suit, whereas the first appellate Court has taken the correct view in accordance with law while setting aside the judgment and decree passed by the trial Court. In my view, there is no defect, misreading or non-reading in the judgment and findings recorded by the first appellate Court except the view that Civil Court was not having jurisdiction to entertain and try the suit for partition with regard to the suit property situated in rural area, as it was a suit for declaration. Therefore, the Civil Court was having full jurisdiction to entertain and try the suit.

2. The crux of above discussion is that I see no illegality, infirmity, misreading or non reading in the impugned judgment and decree on the part of first appellate Court. Resultantly, this civil revision having no force is dismissed.

(R.A.) Revision dismissed

PLJ 2012 Lahore 472 [Bahawalpur Bench Bahawalpur]

Present: Amin-ud-Din Khan, J.

Mirza KHURRAM NASEEM BAIG--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, BAHAWALPUR and 2 others--Respondents

W.P. No. 6123 of 2010, heard on 30.3.2012.

Constitution of Pakistan, 1973--

----Art. 199--Writ petition--Civil litigation--Dower was not paid after it was demanded by respondent--Family dispute--A lady to whom the dower has not been paid after the demand, can live separate from her husband, only on the basis of non-payment of the dower--Statement of respondent was also available on the record with regard to the cruel behaviour of petitioner and his family--When the petitioner himself has not denied that he was lecturer of English and was drawing attractive salary and further he has also admitted that he has not paid any maintenance allowance to her after filing of the suit, and dower amount fixed in the Nikah Nama also speaks about the status of the parties, further that portion of residential house transferred in favour of respondent as part of dower in worth one crore rupees--No illegality or infirmity in the impugned judgments and decrees passed by both the Courts below--Petitioner was bound under the law to show any jurisdictional defect, illegality or infirmity in the findings recorded by both the Courts below, which he failed to do so--Petition dismissed. [P. 474] A

Malik Muhammad Aslam, Advocate for Petitioner.

Mrs. Kausar Bhatti, Ch. Manzoor Ahmad and Miss Mehwish Mehmood, Advocates for Respondents.

Date of hearing: 30.3.2012.

Judgment

Through this writ petition the petitioner who was defendant in a composite suit filed by Respondent No. 3 before the Judge Family Court for recovery of dower as well as maintenance allowance has challenged the judgment and decree passed by the Judge Family Court on 20.10.2010 and that of First Appellate Court dated 11.12.2010.

1. Brief facts of the case are that the Plaintiff-Respondent No. 3 filed composite suit for recovery of dower amounting to Rs.10,00,000/- and a portion of residential house mentioned in the head note of the plaint as well as Rs. 15,000/- per month as maintenance allowance, one month prior to the filing of the suit and onward with the same rate. The suit was filed on 19.9.2009. Written statement was filed. Issues were framed. The parties produced their respective evidence. The learned Judge Family Court vide judgment and decree dated 20.10.2010 decreed the suit to the extent of portion of the house and Rs.3,00,000/- as dower amount observing that remaining Rs.7,00,000/- was paid at the time of marriage in the shape of ornaments and further decree for maintenance allowance was granted at the rate of Rs. 10,000/- per month. An appeal was filed by the petitioner-defendant and the same was dismissed, hence this writ petition.

2. Learned counsel for the petitioner contends that he only challenges a portion of the decree granted by the Judge Family Court with regard to the dower to the extent of Rs.3,00,000/- and the decree for grant of maintenance allowance is without any evidence.

3. He states that it is admitted by the plaintiff-respondent that necklace owned by the petitioner-defendant is in her possession. Learned counsel for the petitioner contends that the value of that necklace is more than Rs.1,50,000/-. Learned counsel for the petitioner offers that if Respondent No. 3 returns the same, petitioner is ready to pay Rs.1,50,000/- before the Court and Rs. 1,50,000/- has already been deposited with this Court out of Rs.3,00,000/- the dower amount decreed by the trial Court.

4. Learned counsel for the respondent contends that respondent is not ready to accept the offer and states that there was sufficient material available before the Judge Family Court to grant decree for maintenance allowance at the rate of Rs. 10,000/- as defendant-petitioner is man of means.

5. I have heard the arguments of the learned counsel for the-parties and have perused the entire record with their able assistance.

6. The case of the petitioner is that necklace belonging to the petitioner is with the respondent, as the learned counsel has referred some portion of statement of the Plaintiff-Respondent No. 3. If it is admitted, even then it does not absolve the petitioner from the liability to pay the dower as decreed by the Courts below. If there is any right of the petitioner with regard to that necklace, he may avail his remedy before the proper forum. On the basis of that necklace decree granted by the Judge Family Court cannot be set-aside. In this view of the matter I am not inclined to interfere with the findings recorded by the Courts below on the issue of dower.

7. So far as decree for maintenance allowance is concerned, learned counsel for the petitioner referred application filed on 10.5.2010 by the respondent for recording her statement with regard to the maintenance allowance and the same was dismissed by the Judge Family Court on the same day. Learned counsel states that as the respondent-plaintiff admitted that she has not made statement before the Judge Family Court with regard to the maintenance allowance, therefore the decree granted by the learned trial Court is not sustainable under the law. Learned counsel for the petitioner relying upon Muhammad Bashir and others vs Iftikhar Ali and others (PLD 2004 SC 465) and Overseas Pakistani's Foundation and others vs. Sqn Ldr, (Retd) Syed Mukhtar Ali Shah and another (2007 SCMR 569) states that the pleadings cannot be treated as evidence.

8. The case law referred by the learned counsel for the petitioner relates to the civil litigation/ therefore, there is no cavil to the rule that pleading cannot be treated as evidence but the matter in hand relates to the family dispute, I have seen that a decree for dower has been granted in favour of Respondent No. 3 against the petitioner and the major portion of decree of dower has been admitted by the petitioner, meaning thereby that it has been admitted that dower was not paid after it was demanded by Respondent No. 3. I am clear in my mind that a lady to whom the dower has not been paid after the demand, can live separate from her husband, only on the basis of non-payment of the dower. Even it has been pleaded in the plaint and statement of Respondent No. 3 is also available on the record with regard to the cruel behaviour of the petitioner and his family. In this view of the matter, when the petitioner himself has not denied that he is lecturer of English and is drawing attractive salary and further he has also admitted that he has not paid any maintenance allowance to her after filing of the suit, and dower amount fixed in the Nikah Nama also speaks about the status of the parties, further that the learned counsel for the petitioner states that portion of residential house transferred in favour of Respondent No. 3 as part of dower in worth one crore rupees. Therefore, I see no illegality or infirmity in the impugned judgments and decrees passed by both the Courts below. The petitioner is bound under the law to show any jurisdictional defect, illegality or infirmity in the findings recorded by both the Courts below, which he failed to do so.

In the light of what has been discussed above this writ petition having no merit is dismissed.

(A.S.) Petition dismissed

PLJ 2012 Lahore 475

Present: Shahid Waheed, J.

SARFRAZ AHMED--Petitioner

versus

IFTIKHAR AHMAD--Respondent

C.R.No. 3460 of 2010, decided on 17.4.2012.

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

----S. 13(3)--Qanun-e-Shahadat Order, (10 of 1984), Art. 79--Transfer of Property Act, 1882, S. 3--Attesting witness of--notice of talab-e-ishhad--Notice of talb-e-ishhad should be attested by two truthful witnesses--Question of--Whether statement of prosecution witness can be declared as attesting witness of talb-e-ishhad--Validity--Attesting witness in terms of Art. 79 of Q.S.O r/w S. 3 of T.P.A. is a person who had witnessed execution of an instrument by executant and signed the instrument for the purpose of attesting signature of executant. [P. 479] A

2005 MLD 1954, ref.

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

----Art. 79--Attestation and execution--Different acts--Attesting witness is one who not only writes or sees a document being executed and appends his name at end of document--Validity--Attestation in relation to instrument means attested by two or more witnesses each of whom has seen executant, sign or affix his mark to instrument or has been other person sign the instrument in presence and by direction of executant or has received from executant a personal acknowledgement of his signature or mark or signatures of other persons and each of whom has signed instrument in presence of executant. [P. 479] B

2008 SCMR 1639, A.I.R. 1918 (PC) 3, ref.

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

----S. 13(3)--Superior right of pre-emption--Thumb mark was affixed on blank paper and notice was written in his absence--Validity--Talb-e-ishhad is not proved on record as notice of talb-e-ishhad has not been attested by two truthful witness--Petitioner had failed to prove his superior right of pre-emption and has failed to fulfill requirement of S. 13 of Punjab Pre-emption Act, qua talbs and, therefore, no case has been made out for interference in concurrent findings of Courts below--Revision was dismissed. [P. 480] C & D

Mr. Mushtaq Ahmad Mohal, Advocate for Petitioner.

Date of hearing: 17.4.2012.

Judgment

Challenge in this civil revision is to the judgment and decree dated 7.7.2010 passed by the learned Additional District Judge, Phalia District Mandi Baha-ud-Din, who affirmed the judgment and decree dated 26.01.2010 passed by the learned Civil Judge, Phalia whereby the petitioner's suit for possession through pre-emption was dismissed.

1. Briefly, the facts of the case are that Sarfraz Ahmad, petitioner/plaintiff instituted a suit for possession through pre-emption against Iftikhar Ahmad, respondent/defendant, claiming therein that the suit land measuring 15 kanals bearing Khewat No. 74, Khatuni No. 81, as per record of rights 2001-02 of Mouza Sahnpal, Tehsil Phalia, District Mandi Baha-ud-Din, was secretly sold out by Mst. Rasulan to the respondent vide Mutation No. 661 dated 2.12.2004 (Ex. P1) on fictitious price of Rs.300,000/- instead of actual consideration of Rs.250,000/-. As per contents of the plaint, the petitioner came to know about the sale on 8.12.2004 at his Fish Farm at 4.00 p.m., through Muhammad Riaz (PW-3) in the presence of Muhammad Shafi (PW-2) and he immediately declared his intention to exercise his right of pre-emption and, thereafter, on 14.12.2004 notice of Talab-e-Ishhad (Ex. P1) was dispatched under registered cover acknowledgement due to the vendee/respondent. In response to the summons issued by the learned trial Court the respondent/defendant appeared before the Court and contested the suit by filing his written statement.

2. Learned trial Court reduced the controversy into following issues:--

3. Whether the plaintiff has superior right of pre-emption qua the defendant? OPP

4. Whether the plaintiff fulfilled the requirements of Talabs in accordance with law? OPP

5. Whether the actual sale price of the Suit land was fixed Rs. 250000/- but in order to defeat his right of pre-emption Rs. 3,00,000/- were wrongly entered in the mutation? OPP

6. If the above issue is not proved in affirmative then what was the market value of the suit land at the time of its sale? OP Parties.

7. Whether the plaintiff has no cause of action? OPD

8. Whether the plaintiff has waived his right of pre-emption? OPD

9. Whether the plaintiff has not come to the Court with clean hands? OPD

10. Relief.

11. Parties to the suit in support of their respective claims produced oral as well as documentary evidence before the learned trial Court. Petitioner, Sarfraz Ahmed, appeared himself as PW-1 and produced Muhammad Shafi (PW-2), Muhammad Riaz (PW-3), Shafique-ur-Rehman (PW-4) and Ali Jan (PW-5). He also produced notice of Talab-e-Ishhad (Ex.P1), postal envelope (Ex.P2), A.D card (Ex.P3), copy of record of rights 2001-2002 (Ex.P4 and Ex.P5), copy of record of rights for the year 2004-2006 (Ex.P6 and Ex.P7) and copy of Aks Shajra (Ex.P8). On the contrary respondent, Iftikhar Ahmad, got examined himself as DW-1 and produced Samar Pervez as (DW-2). The respondent also produced a copy of record of rights for the year 2005-06 (Ex.D1), copy of Aks Shajra (Ex.D2) and copy of report of Commission (Ex.D3). The learned trial Court vide judgment and decree dated 26.1.2010 dismissed the suit on the ground that the petitioner had failed to prove his superior right of pre-emption and also could not fulfill the requirements of Talabs. The petitioner feeling aggrieved by the judgment and decree passed by the learned trial Court preferred an appeal before the learned Additional District Judge but it also met the same fate on the same ground. Hence this civil revision.

12. Learned counsel for the petitioner in support of this petition contends that both the Courts below have mis-read and non-read the evidence available on record and resultantly mis-applied the provisions of law as the petitioner through evidence has established his superior right of pre-emption and also compliance of requirements of Talbs contemplated in Section 13 of the Punjab Pre-emption Act, 1991.

13. I have heard learned counsel for the petitioner and perused the record. The pre-emption right is a feeble right and, therefore, pre-emptor is bound to establish his superior right of pre-emption and to perform and "fulfill requirements of Talabs meticulously and any failure in that behalf would deprive the pre-emptor of success in getting a pre-emption decree. In this perspective the learned trial Court framed Issue Nos. 1 and 2. Onus probandi to prove Issue No. 1 was on the plaintiff/petitioner and, that is, as to whether the plaintiff had superior right of pre-emption qua the defendant. The petitioner in Para 5 of the plaint has stated that his property is situated adjacent to the pre-emptor's property and he also share right of passage and of water and, therefore, claimed himself to be Shaf-e-Khalit and Shaf-e-Jar. In support of this assertion the petitioner produced: (i) copy of record of rights 2000-2001 (Ex.P4) which establishes the petitioner's ownership over 10 marlas of land in Khewat No. 51, Khatuni No. 58, (ii) copy of record of rights 2005-06 (Ex.P6) which discloses petitioner's ownership over 10 marlas of land in Khewat No. 53, Khatuni No. 63; and, ownership over 15 kanals of land situated in Khewat No. 76, Khatuni No. 87; and (iv). Aks Shajra (Ex.P8). On the contrary the respondent, Iftikhar Ahmad, produced record of rights 2005-06 (Ex. D1) regarding his property situated in Khewat No. 21, Khatuni No. 22 (87 kanals 17 marlas); Khewat No. 76, Khatuni No. 87 (8 kanals 14 marlas); and Khewat No. 76, Khatuni No. 88 (21 kanals 7 marlas). He also produced a copy of Aks Shajra (Ex. D2). A perusal of the oral as well as documentary evidence conclusively establishes that both the plaintiff and defendant are Shaf-e-Khalit and Shaf-e-Jar and, therefore, relying upon the principle laid down in the case of Sardar Khan v. Gulzar and another (2006 YLR 1203) it is held that the plaintiff/petitioner has failed to prove his superior right of pre-emption as the land of the respondent is excess in area to the land of the plaintiff/petitioner. Hence the Courts below have rightly declared that the petitioner has no superior right of pre-emption qua the defendant.

14. Now I advert to Issue No. 2 viz whether the plaintiff fulfilled the requirements of Talab in accordance with law. In the instant case the petitioner alleged that he came to know about the sale on 8.12.2004 at his Fish Farm at 4 p.m. through Muhammad Riaz (PW-3) in presence of Muhammad Shafi, (PW-2) and he immediately declared his intention of pre-emption. He further stated that after obtaining copy of Mutation No. 661 (Ex.P1) on 13.12.2004 notice of Talab-e-Ishhad (Ex. P1) attested by two witnesses confirming Talab-e-Muwathibat was dispatched under registered postal cover on 14.12.2004. The respondent, however, controverted the petitioner's assertion qua making of Talabs and stated that the petitioner had waived his right of pre-emption. Sarfraz Ahmed/petitioner while appearing as PW-1 deposed that he came to know about the sale on 8.12.2004 at his Fish Farm through Muhammad Riaz (PW-3) at 4 p.m. and after obtaining copy of mutation Ex. P1 from Patwari, notice of Talab-e-Ishhad was got drafted on 14.12.2004 from the office of Khalid, Advocate. He further states that Muhammad Riaz (PW-3) and Muhammad Shafi (PW-2) were with him and Muhammad Shafi (PW-2) affixed his thumb impression whereas Muhammad Riaz (PW-3) signed the notice of Talab-e-Ishhad. Muhammad Shafi who appeared as PW-2 in the course of cross-examination made the following statement:--

According to Section 13(3) of the Punjab Pre-emption Act, 1991 the notice of Talab-e-Ishhad should be attested by two truthful witnesses. "Attestation" and "Execution" are two different acts. The attestation is meant to ensure that the executant was a free agent and not under pressure nor subject to fraud while executing the document/notice. Now a question arises that whether Muhammad Shafi (PW-2), in view of his above quoted statement can be declared as attesting witness of notice of Talab-e-Ishhad (Ex.P1). The attesting witness in terms of Article 79 of Qanun-e-Shahadat Order, 1984 read with Section 3 of the Transfer of Property Act, 1882 is a person who had witnessed the execution of an instrument by the executant and also signed the instrument for the purpose of attesting signature of the executant. It has been held in the case of Riaz-ur-Rehman and others v. Muhammad Urus (2005 MLD 1954) that attesting witness is one who not only writes or sees a document being executed and appends his name at the end of document, but is a person who also signs it as a witness. It is well settled principle that attestation in relation to instrument means attested by two or more witnesses each of whom has seen the executant, sign, or affix his mark to the instrument, or has seen other person sign the instrument in the presence and by the direction of the executant or has received from the executant a personal acknowledgement of his signature or mark or of the signatures of such other persons and each of whom has signed the instrument in presence of the executant. The word "attested" means that person has signed the document by way of testimony to the fact that he saw it executed. The necessary conditions for a witness attesting the deed are: firstly, that he has seen the executant; and, secondly, he has signed the instrument in the presence of the executant. If these two conditions are fulfilled by the witness, there can be no doubt about his being attesting witness. In this regard reliance is placed on Nazir Ahmad and another v. M. Muzaffar Hussain (2008 SCMR 1639), Rai Ganga Pershad Singh and others v. Ishri Pershad Singh and others (A.I.R. 1918 Privy Council 3), Banarsi Das and others v. Collector of Saharanpur and others (A.I.R. 1936 Allahabad 712) and Zaharul Hussain v. Mahadeo Ramji Deshmukh and others (A.I.R. (36) 1949 Nagpur 149). In view of above, it is clear that Muhammad Shafi (PW-2) cannot be treated as attesting witness of notice of Talab-e-Ishhad (Ex. P1) as he neither witnessed the execution of notice by the executant/Sarfraz Ahmed nor affixed his thumb mark for the purpose of attesting mark of the executant/Sarfraz Ahmed and this is evident from his statement made during cross-examination that he affixed his thumb mark on the blank paper and notice was written in his absence. In these circumstances, Talab-e-Ishhad is not proved on record as notice of Talab-e-Ishhad has not been attested by two truthful witnesses. The learned Courts below have rightly placed reliance on the case titled Imam Ali v. Muhammad Siddique and 3 others (2007 CLC 277) which on all fours is applicable to the facts of the instant case wherein it has also been held as follows:--

"Now Siddique Respondent No. 1 has appeared as D.W.3 to state that the petitioner never made a Talb and never came to him with any persona and that Imam Ali petitioner and his witnesses are lying. Now so far as the matter of the said notice (Exh.P.3) is concerned, I am afraid that the petitioner himself negated the testimony of his said witnesses. In the course of his cross-examination, he has stated that he got the thumb impressions of the witnesses on the notice. He admitted without any demur that the thumb-impressions were obtained on blank papers and thereafter the notice was typed. He was further cross-examined and he admitted that when notice was being typed the witnesses had left for their village. He has further stated that he does not at all know as to what was written in the notice. To my mind, the allegation that the petitioner went to the house of the Respondent No. 1 with the consideration amount and he refused to accept it stands duly rebutted on record while it is in the statment of the petitioner himself that no valid notice evidencing Talb-i-Ishhad was given. I, therefore, do confirm the finding of the learned Additional District Judge that making of a valid Talb-i-lshhad has not been proved on record."

1. The petitioner has failed to prove his superior right of pre-emption and has also failed to fulfill the requirement of Section 13 of the Punjab Pre-emption Act, 1991 qua the Talabs and, therefore, no case has been made out for interference in the concurrent findings of the Courts below.

2. In view of what has been discussed above, the instant civil revision being bereft of any merit is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2012 Lahore 481 (DB)

Present: Iqbal Hameed-ur-Rehman & Mamoon Rashid Sheikh, JJ.

GHULAM MUHAMMAD--Appellant

versus

ZARI TARAQIATI BANK LIMITED, RAJANA TOWN, DISTRICT T.T. SINGH--Respondent

RFA No. 94 of 2008, decided on 4.5.2010.

Summoning of witness--

----Suit for rendition of account before Banking Court--Non production of evidence--Impugned order was passed--Expenses for summoning of witnesses were deposited--Validity--On crucial date the summoned witnesses failed to appear and Court did not adopt any further measures for their appearance before the Court in accordance with law--Opportunities were granted to appellant not on account of his fault but because of lawyer's strike as was apparent from perusal of order sheet--Appeal was accepted. [P. 482] A

Sardar Faiz Rasool Khan, Advocate for Appellant.

Mr. Tariq Saleem Sheikh, Advocate for Respondent.

Date of hearing: 4.5.2010.

Order

Through the instant appeal the appellant has assailed order dated 26.02.2008 whereby the learned trial Court dismissed the case of the appellant.

1. Brief facts, succinctly required for the determination of the instant appeal are that the appellant filed a suit for rendition of account against the respondent-Bank before the Banking Court No. II Faisalabad. The respondent had filed PLA on 03.08.2005 and thereafter on the statement of learned counsel for the appellant/plaintiff the leave was granted to the respondent/defendant and issues were framed and the case was fixed for evidence of the appellant. Afterwards the suit had been adjourned on different dates owing to different reasons. It is stated that the main cause for the delay in recording of the evidence was the strike of lawyers' community. Thereafter, on 28.01.2008 the learned trial Court was requested by the appellant to summon the witnesses mentioned in the list of witnesses. The expenses of the same was duly deposited by the appellant and the witnesses were duly summoned by learned trial Court for 26.02.2008. On the said date the summoned witnesses of the appellant failed to appear on account of which the impugned order dated 26.02.2008 was passed dismissing the suit of the appellant for non-production of evidence.

2. It is contended that the appellant had duly deposited Rs.2000/- towards the expenses for the summoning of witnesses who were to be summoned by the Court as they were Bank officials, as such there is no fault on the part of the appellant. Further, the previous opportunity for adjournment granted to the appellant was not due to his fault rather it was on account of lawyers' strike, therefore, the appellant should not suffer.

3. Learned counsel for the respondent on the other hand controverts the arguments advanced by learned counsel for the appellant stating that even witnesses of the appellant/plaintiff were not present on the said date as such no illegality has been committed by the learned trial Court while passing the impugned order.

4. Arguments heard, material made available on the file perused.

5. From the perusal of the interim orders as well as impugned order it is quite apparent that prior to passing of the impugned order dated 26.02.2008 on the second last date of hearing i.e. 28.01.2008 the appellant had deposited expenses of Rs.2000/- for the summoning of witnesses as such the witnesses were to be summoned by the Court. It is apparent that on the crucial date the summoned witnesses failed to appear and the Court did not adopt any further measures for their appearance before the Court in accordance with law. Previously, opportunities had also been granted to the appellant not on account of his fault but because of lawyers' strike as is apparent from the perusal of order sheet.

6. In view of the above, this appeal is accepted, impugned order dated 26.02.2008 is hereby set aside and the parties are directed to appear before the learned trial Court on 15.05.2010 for further proceedings.

(R.A.) Appeal accepted

PLJ 2012 Lahore 482 (DB)

Present: Muhammad Khalid Mehmood Khan and Shahid Waheed, JJ.

CH. IFTIKHAR AHMAD--Appellant

versus

CHIEF SECRETARY PUNJAB, etc.--Respondents

ICA No. 893 of 2010, heard on 26.4.2012.

Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974--

----R. 22--Constitution of Pakistan, 1973, Art. 189--Law Reforms Ordinance, (XII of 1972), S. 3--Intra Court Appeal--Govt. of Punjab terminated on block the services of all ad-hoc lecturers and as a consequence thereof she joined service as S.S.T.--Termination order was recalled with direction to appear before committee for assessment of suitability of selection in service--Civil servant could not appear before committee--Service Tribunal directed to secretaries to consider reconstitution of adhoc Board so as to assess suitability--Department did not challenge judgment before Supreme Court--After death of (deceased civil servants) appellant made request for implementation of judgment rendered by service tribunal so as to get due pensionary benefits but respondents did not budge--Challenge to--Recklessness and negligent attitude of secretaries--Order was discriminatory and irrational--Deceased civil servant was a law abiding citizen and obedient civil servant--Rules were relaxed only for benefit of working civil servants and not for those civil servants who died because of their negligence and malfeasance--Validity--Chief Secretary and department had been regularizing services of adhoc employees who did not appear before special selection board and appellant drew attention of Court towards office orders whereby services of different adhoc employees were regularized from date of joining their duty and such fact was not denied by respondents--Principle was binding on High Court as well as on each and every organ of state and, therefore, respondents would have applied principle of equality and regularized services of deceased civil servant from date of her joining duty as adhoc lecturer--Appeal was allowed. [P. 488] B & C

PLD 2011 SC 22.

Constitution of Pakistan, 1973--

----Art. 25--Right of fair trial to citizen of Pakistan--It is an established principle of law that no one can be penalized for act of public functionaries. [P. 488] A

2006 SCMR 496, 2007 SCMR 554 & 2007 SCMR 569, rel.

Ch. Waris Ali Saroya, Advocate for Appellant.

Mr. Muammad Iftikhar-ur-Rasheed, AAG with Shahid Fareed Deputy Secretary Higher Education Department for Respondents.

Date of hearing: 26.4.2012.

Judgment

Shahid Waheed, J.--The appellant, Ch. Iftikhar Ahmad, has moved instant Intra Court Appeal under Section 3 of the Law Reforms Ordinance, 1972 calling in question order dated 20.10.2010 passed by the learned Single Judge of this Court in W.P. No. 21585/10 whereby the aforesaid petition was dismissed.

1. Briefly, the facts of the case are that wife of the appellant namely Mrs. Akhtar Tufail joined the service as a regular Senior School Teacher. Later on, she was appointed as an Adhoc Lecturer vide Notification dated 29.09.1985. Government of the Punjab in the year 1986 terminated on block the services of all Adhoc Lecturers and as a consequence thereof she joined her previous service as Senior School Teacher. However, on 11.01.1989 the Government of Punjab recalled the termination orders of all Adhoc Lecturers and in pursuance thereof she was given post of lecturer at Government Girls College, Pattoki with a direction to appear before a Special Selection Board constituted by Government of the Punjab for interview/assessment of her suitability of selection/ regularization in service. After eight months she was relieved from her duties from the Government Girls High School, Pattoki and joined as lecturer vide order dated 13.11.1989. She could not appear before Special Selection Board which was abolished before her joining the post. She applied for her regularization to the Director Public Instructions (Colleges), Punjab who vide memo. dated 09.08.1995 strongly recommended her case for regularization but the request was turned down. It is worth mentioning here that in the meantime her colleagues who also did not appear before the Special Selection Board were regularized by the Education Department, Government of the Punjab. However, Secretary, Government of Punjab, Education Department refused to regularize the services of the appellant's wife vide order dated 31.01.2005. The deceased civil servant during her life time assailed order dated 31.10.2005 before the Chief Secretary but it remained undecided and in these circumstances, she moved an appeal Bearing No. 665/06 before the learned Punjab Services Tribunal. On 05.05.2007, the learned Punjab Services Tribunal disposed of the appeal with a direction to the Chief Secretary as well Secretary Education to seriously consider the reconstitution of an Adhoc Special Selection Board so as to assess her suitability for selection/ regularization in service after an interview. The department did not challenge judgment dated 05.05.2007, passed by the learned Punjab Services Tribunal before the Hon'ble Supreme Court of Pakistan and resultantly it attained finality. Consequent upon the judgment rendered by the learned Punjab Services Tribunal, Mst. Akhtar Tufail moved representation before the respondents for the implementation of the judgment but it could not evoke favourable response. In these circumstances and being helpless Mst. Akhtar Tufail moved C.M., No. 754/08 in Appeal No. 665/06 before the learned Punjab Services Tribunal for the implementation of judgment dated 05.05.2007. The learned Punjab Service Tribunal vide judgment dated 14.12.2009 again directed the respondent to implement the judgment dated 05.05.2007. The wife of the appellant again approached the respondents for the compliance of judgment but all in vain. With this sense of frustration she died on 05.02.2010. After the death of Mst. Akhtar Tufail the appellant made a request to the respondent for the implementation of the judgment rendered by the learned Punjab Services Tribunal and to regularize 28 years service as adhoc lecturer of Mst. Akhtar Tufail so as to get her due pensionary benefits but the respondents did not budge. Feeling aggrieved, the appellant moved this Court through W.P. No. 21585/10 and it was dismissed vide order dated 20.10.2010. Hence this appeal.

2. In response to notice issued by this Court, the respondents submitted report and parawise comments wherein they stated that the case of Mst. Akhtar Tufail (deceased) was referred by the Education Department to the Chief Minister, Punjab with the proposal to regularize her services with effect from 24.09.1985 to 03.06.1986 and 17.09.1989 to 05.02.2010 in relaxation of Rule 22 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 but the Regulation Wing, S&GAD, Government of Punjab observed that aforesaid rule could only be relaxed in favour of a civil servant and not in favour of a deceased civil servant and resultantly declined to regularize her services.

3. After perusing the facts of the case and report and parawise comments submitted on behalf of the respondents the notice was issued vide order dated 16.02.2012 to the Secretary Education, Government of Punjab to appear in person along with relevant record and to explain why the judgment of the Punjab Services Tribunal was not implemented and also why the matter was sent to the Chief Minister Punjab in violation of the direction of the learned Punjab Services Tribunal. On 28.02.2012, the learned Assistant Advocate General presented record of the case before this Court and it was observed in order dated 28.02.2012 that prima facie the perusal of the record proved the recklessness and negligent attitude of two Secretaries i.e. Secretary Law and Secretary Education. In this situation, this Court issued notice to both the Secretaries to appear in person before this Court and explain why the order of learned Punjab Services Tribunal was not implemented. On 26.03.2012, Dr. Ijaz Munir, Secretary Higher Education and Dr. Syed Abu-ul-Hassan, Law Secretary appeared in person and sought time to resolve the dispute amicably. The case was accordingly adjourned. Today the representative of the Higher Education Department, Government of Punjab presented before us Order No. SO(CE-III)22-1/95(58) dated 25th April, 2012 whereby the service of (late) Mst. Akhtar Tufail, Adhoc Lecturer were regularized w.e.f. 28.03.2009. After perusing order dated 25.04.2012, the learned counsel for the appellant submitted that this order was discriminatory and irrational.

4. Before proceeding further we would like to cite judgment passed in the case of Council of Civil Services Union v. Minister for Civil Services (1985)1 AC 374, wherein Lord Diplock has suggested a three fold classification of the various grounds on which administrative decision can be reviewed by a Court. These grounds are:--

"(i) `Illegality' which means that the "decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it".

It means that the decision-maker must keep within the scope of his legal power. Illegality means that the decision-maker has made an error of law; it represents infidelity of an official action to a statutory propose. Such grounds as excess of jurisdiction, patent error of law, etc. fall under the head of "illegality ".

(ii) `Irrationality' denotes unreasonableness in the sense of Wednesbury unreasonableness.

(iii) Procedural Impropriety--The expression includes failure to observe procedural rules including the rules of natural justice or fairness wherever these are applicable."

The principle of Wednesbury unreasonableness have been laid down in the case of Associated Provincial Picture Houses vs. Wednesbury Corporation (1947) 1-KB-223 wherein Lord Greene, M.R., has observed as follows:--

"It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to he acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v. Poole Corporation (1926) Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another."

The principle of Wednesbury unreasonableness has also been approved by the Hon'ble Supreme Court of Pakistan in the case of Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012 SCMR 455). Keeping in view the principle laid down in the case of Council of Civil Service Union (supra) we analyze the facts of the case.

1. The perusal of the facts shows that (late) Mst. Akhtar Tufail was a law abiding citizen and an obedient civil servant and this fact finds corroboration from her conduct as, firstly, she moved an application before the competent authority for relieving her to join the new assignment but the matter was unnecessarily delayed and as a result thereof she could not promptly join duty as Lecturer and appear before the Special Selection Board for interview; secondly, she moved repeated representations before the higher Authorities for the redressal of her grievance but departmental red-tape always came in her way; thirdly, she approached the Punjab Services Tribunal to get her lawful right. The department did not implement the judgment dated 04.05.2007 passed in Appeal No. 665/06 and did not constitute a Special Selection Board for her; fourthly, she moved a Miscellaneous Application Bearing No. 754 of 2008 before the learned Punjab Services Tribunal whereby the earlier directions were reiterated by the learned Punjab Services Tribunal vide judgment dated 14.12.2009. Even then the respondents remained non-responsive and showed usual recklessness and lethargy towards the matter and as a result thereof (late) Mst. Akhtar Tufail died in frustration. All these facts show malice in law and malice in fact on the part of respondents. On the one hand, the department was regularizing the colleagues of (late) Mst. Akhtar Tufail who also did not appear before the Selection Board and on the other hand, the department taking benefits of his own misdeeds refused to implement the judgment rendered by the learned Punjab Services Tribunal on the pretext that the rules are relaxed only for the benefit of working civil servants and not for those civil servants who died because of their negligence and malfeasance. The above resume shows that respondents being public officers abused their respective offices, either by an act of omission or commission, and as a consequence thereof an injury was caused to (late) Mst. Akhtar Tufail. The action on the part of the respondents by all means constitutes misfeasance in public office. The deliberate maladministration and unlawful acts of respondents caused injury to (late) Mst. Akhtar Tufail who due to their mischief died in frustration. This is also a clear violation of Article 9 of the Constitution of Islamic Republic of Pakistan which guarantees life with dignity, Article 10-A which guarantees right of fair trial to the citizens of Pakistan and Article 25 which prevents discriminatory action. It is an established principle of law that no one can be penalized for the act of public functionaries and this principle has been approved by the Hon'ble Supreme Court of Pakistan in the cases of Najam Abbass and others vs. SP City Division, Gujranwala and others (2006 SCMR 496), Province of the Punjab through Collector District Khushab, Joharabad and others vs. Haji Yaqub Khan and others (2007 SCMR 554) and Overseas Pakistanis Foundations and others vs. Sqn. Ldr. (Retd.) Syed Mukhtar Ali Shah and another (2007 SCMR 569). By applying the test laid down in the case of Council of Civil Services Union (supra) we have no hesitation in saying that the action of the respondent is illegal, irrational and shows procedural impropriety for the reasons that the respondents neither applied the law correctly nor considered the above relevant facts while passing order dated 25.04.2012 whereby the service of late Mst. Akhtar Tufail have been regularized with effect from 28.03.2009.

2. It is an admitted fact that the respondents have been regularizing the services of those adhoc employees who also did not appear before the Special Selection Board and in this regard the learned counsel for the appellant drew our attention towards the office orders dated 22.8.95, 29.06.1989, 29.03.1994 and 18.04.1995 whereby the services of different adhoc employees were regularized from the date of joining their duty and this fact was not denied by the respondents. Somewhat similar situation came up for consideration before the Hon'ble Supreme Court of Pakistan in the case of Ijaz Akbar Kasi and others vs. Minister of Information and Broadcasting and others (PLD 2011 SC 22) and it was held as follows:

"Therefore, we are of the opinion that the case of the petitioners deserves to be considered by the Board of Directors for the reasons noted hereinahove as they cannot be discriminated without any cogent reason by violating the provisions of Article 25 of the Constitution and at the same time after having spent a considerable period of their lives in the Organization performing duties on contract basis. It is also the duty of the Organization to protect their fundamental rights enshrined in Article 9 of the Constitution."

The aforesaid principle laid down by the Hon'ble Supreme Court of Pakistan by virtue of Article 189 of the Constitution of Islamic Republic of Pakistan is binding on this Court as well as on each and every organ of the State and, therefore, respondents should have applied the principle of equality and regularized the services of Mst. Akhtar Tufail from the date of her joining duty as Adhoc Lecturer.

1. In view of what has been discussed above, this appeal is allowed and the order dated 20.10.2010 passed by the learned Single judge in W.P. No. 21585/10 is set aside and we direct the respondents to regularize the services of (late) Mst. Akhtar Tufail from the date when she joined duty as Adhoc Lecturer. No order as to cost.

(R.A.) Appeal allowed

PLJ 2012 Lahore 489

Present: Shahid Waheed, J.

MUHAMMAD MUZAMMIL SAEED--Petitioner

versus

VICE CHANCELLOR UNIVERSITY OF THE PUNJAB etc.--Resondents

W.P. No. 9284 of 2012, decided on 25.4.2012.

Educational Institution--

----Unfair means case was made against petitioner--Bundle of answer books and unfair means cases were snatched from invigilator--Candidates against whom unfair means cases were registered would not be allowed to sit in re-examination--Appeal was filed before vice-chancellor for reconsideration--Assailed the decision of disciplinary committee--No charge within contemplation of Regulation 12 & 13 was made out--Held: Disciplinary Committee and V.C. while inflicting punishment did not give any reason in support of decision--None of committee had stated whether material recovered from the petitioner was relevant to syllabus so as to attract the provisions of Regulation as set out charge sheet stands proved against the petitioner--If decisions were expressed in these terms then same would be termed as arbitrary and autocratic and had character of being deleterious passed without considering facts, circumstances, rules and regulations made to regulate such decision--University is in nature of a mere Domestic Tribunal constituted under law and dispute of such kind between the university and candidate admitted to examination arranged by it, is primarily domestic, and such dispute can be resolved in the homely and domestic atmosphere of university and should not be allowed to be dragged to law Courts--Matter was remitted to disciplinary committee to pass fresh cogent order after affording opportunity of hearing to petitioner before commencement of forthcoming examination--Petition was accordingly allowed. [Pp. 493, 494, 495 & 496] A, B, C & D

2003 SCMR 1250, PLD 1964 SC 260, PLD 1970 SC 39, PLD 1970 SC 29, PLD 1996 SC 709, 1998 SCMR 2268 & 1995 SCMR 650, rel.

Rana M. Ayub Tahir Joyya, Advocate for Petitioner.

Sardar Tariq Mehmood, Advocate Vice Counsel for University of the Punjab.

Date of hearing: 25.4.2012.

Judgment

The petitioner, Muhammad Muzammil Saeed, being a regular student of Punjab University Law College appeared in LL.B. (Part-I) Annual Examination, 2011 under Roll No. 3470 from the Examination Centre constituted at Punjab College of Commerce, Lahore (LHR-17). On 28.07.2011, the University Monitoring Team comprising Addl. Controller of Examinations, Deputy Controller of Examination-II, Deputy Controller of Examination-I and Deputy Controller (Conduct) visited the above said Examination Centre and while checking the petitioner was found having in his possession one old question paper bearing handwritten notes and resultantly on the direction of the Monitoring Team the Centre Superintendent made an unfair means case against the petitioner. After the termination of examination, when Centre Superintendent Ch. Muhammad Shafique, Lecturer, Government Diyal Singh College, Lahore was coming towards Secrecy Branch of University for depositing answer books including unfair means cases, eight persons on four motorcycles suddenly came ahead of him and asked him to handover answer books on gun point. They snatched the bundle of answer books and unfair means cases from the invigilator who was sitting with the Centre Superintendent on the motorcycle. Immediately FIR. No. 374 dated 28.07.2011 under Section 395, P.P.C. was got registered at P.S. Muslim Town, Lahore and the incident was reported to the Vice Chancellor of the University of the Punjab who constituted a Committee for probing into the matter. The Committee held its meeting on 29.07.2011 and recommended that Re-examination of 108 candidates be conducted and the candidates including the petitioner against whom unfair means cases had been registered should not be allowed to sit in Re-examination. The recommendations were approved by the Vice Chancellor on 30.07.2011. Thereafter, on 03.08.2011 charge-sheet was issued to the petitioner under Regulation Nos. 12 and 13. The Disciplinary Committee vide its decision dated 29.9.2011 disqualified the petitioner for three years. The decision of the Disciplinary Committee was communicated to the petitioner vide letter dated 10.10.2011. Feeling aggrieved, the petitioner moved a representation/ appeal before the Vice Chancellor, University of the Punjab who referred the case to the Independent Disciplinary Committee for reconsideration. The Independent Disciplinary Committee on 23.12.2011 upheld the previous decision. The decision of the Independent Disciplinary Committee was confirmed by the Vice Chancellor and the decision was communicated to the petitioner vide letter dated 02.01.2012. The petitioner being dissatisfied with decision of the Disciplinary Committee had invoked the constitutional jurisdiction of this Court.

1. Learned counsel for the petitioner submits that the petitioner is not guilty of using any objectionable material and, therefore, no charge within the contemplation of Regulation Nos. 12 and 13 is made out; that the decisions of the Disciplinary Committee are bereft of any reason; and, that the Vice Chancellor has passed the order without applying his independent mind to the facts of the case.

2. Conversely, Sardar Tariq Mehmood, learned counsel for the respondent contends that the Disciplinary Committee is in the nature of Domestic Tribunal and their findings cannot be substituted by this Court; that the Disciplinary Committee after evaluating the evidence on record and affording opportunity of hearing to the petitioner has disqualified the petitioner for three years; and, that the order passed by the Disciplinary Committee are in consonance with law.

3. I have heard the learned counsel for the parties and perused the record appended with the petition.

4. The Secretary Disciplinary Committee on 03.08.2011, issued a charge-sheet to the petitioner with the following allegation:--

"You appeared in LLB. Part-I, first Annual Examination, 2011 under Roll No. 3470. On 28.07.2011, while you were taking examination in Paper-VI (Criminal Law), one old question paper bearing handwritten notes relevant to the syllabus/question paper was recovered from your possession."

After having received reply to the charge-sheet, the matter was placed before the Disciplinary Committee consisting of three members. On 29.09.2011 the Disciplinary Committee passed following decision (Attached with the report and parawise comments at page 11);

"Disqualified for three years/ R-12 & 13".

However, on the same date i.e. 29.09.2011, the Secretary Disciplinary Committee prepared following note:--

"The University Monitoring Team consisting of Addl. Controller of Examinations, Deputy Controller Examination-II, Deputy Controller Examination-I and Deputy Controller Conduct reported that on 28.07.2011, the day of examination in Paper-VI (Criminal Law), the candidate Roll No. 3470 was found having in his possession the helping material i.e. one old question paper bearing handwritten notes.

The candidate was charge sheeted on the above charges. He was also called upon to appear before the Disciplinary Committee. He appeared before the Disciplinary Committee on 15.09.2011. He was explained the charges and then was heard in person.

He denied the charges saying that neither any material was recovered from his possession nor he copied anything there from. He stated that the material was lying on the floor near his seat which was picked up by the monitoring Team and attributed to him. In reply to the question whether the Monitoring team had any grudge against him, he stated in negative.

After hearing the candidate the Committee examined the documents available in the file and noted that at 5.45 p.m. when Centre Superintendent of Lahore-17 for depositing answer books bundles and reached ahead of Faisal Auditorium, 8 persons on four Motor Cycles suddenly came ahead of him and asked him to hand over answer books bundles on gunpoint. They snatched bundles of answer books and two unfair means cases from Invigilators who was sitting with him on the Motor Cycle. The Committee also observed that the two candidates against whom UMCs were registered are involved in this incident.

The Disciplinary Committee after going through the case on various aspects held the candidate guilty and disqualified him for a period of three years under Regulation 13."

It is noteworthy here that the decision of the Disciplinary Committee, available at page 11 of the report and para-wise comments, is signed by all the three members of the Disciplinary Committee whereas the above quoted note of the Secretary is signed by two members of the Disciplinary Committee and this inconsistency shows that the decision and the note were not prepared on the same date. Feeling aggrieved, the petitioner moved representation against the decision of the Disciplinary Committee before the Vice Chancellor who referred the matter to an Independent Disciplinary Committee. On 23.12.11, the Independent Committee passed following decision (Attached with the report and parawise comments at page 14):

"Previous decision upheld."

1. The Secretary Independent Disciplinary Committee prepared a note dated 27.12.2011 and sought confirmation of the decision of the Independent Disciplinary Committee from the Vice Chancellor who without hearing the petitioner and expressing any reason just signed the note. Thereafter, vide letter dated 02.01.12 the decision of the Vice Chancellor was communicated to the petitioner and the same reads as under (Attached with the report and parawise comments at page 17):

"Reference your representation addressed to the Vice Chancellor against the orders of the Disciplinary Committee disqualifying you for a period of three years for using unfair means in LLB. Part-I, First Annual Examination, 2011, Roll No. 3470.

This is to inform you that the Vice-Chancellor referred your case to the Independent Disciplinary Committee for re-consideration. The Committee after re-considering the case decided to uphold its previous, decision."

It is regrettable to note that the Disciplinary Committee, Independent Disciplinary Committee and the Vice Chancellor while inflicting punishment did not give any reason in support of their decision. None of the Committees has stated whether the material recovered from the petitioner was relevant to the syllabus/ question paper so as to attract the provisions of Regulations 12 & 13 or the allegation as set out in the charge-sheet stands proved against the petitioner. The Hon'ble Supreme Court of Pakistan in the case of Walayat Ali Mir vs. Pakistan International Airlines Corporation through its Chairman and another (1995 SCMR 650) has held that mere writing the words "disproved" or "rejected" will not suffice. If decisions are expressed in these terms then the same shall be termed as arbitrary and autocratic and has the character of being deleterious passed without considering the facts, circumstances, rules and regulations made to regulate such decisions. Lord Denning, M.R. in Breen v. Amalgamated Engg. Union (1971) 1 All ER 1148 observed: "the giving of reasons is one of the fundamentals of good administration." In Alexander Machinery (Dudley) Ltd. v. Crabtree (1974 ICR 120) it was observed "Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at." This doctrine has been recognized and augmented by the insertion of Section 24-A in the General Clauses Act, 1897 which declares that where a Statute confers a power to make any order or to give any direction to any Authority, office or person, such would be exercised reasonably, fairly, justly and for the advancement of the purpose of the enactment. The Hon'ble Supreme Court of Pakistan in the case of Airport Services vs. The Airport Manager, Quaid-i-Azam International Airport Karachi and others (1998 SCMR 2268) has held that the order or direction, so far as necessary or appropriate would reflect reasons for its making or issuance and, where the same is lacking, the affectee may demand the necessary reasons, which, in response would be furnished. In the instant case the perusal of record shows that the punishment has been inflicted on conjectures and surmises. The impugned decisions of the Disciplinary Committees are not sustainable as firstly, the University got registered F.I.R. No. 374 dated 28.07.2011 under Section 395, P.P.C. with P.S. Muslim Town, Lahore which subsequently on 08.01.2012 was cancelled as the bundle of answer books was recovered on 28.07.2011 from a garden near the Admn Block of the University; secondly, a Probe Committee constituted by the Vice Chancellor in its recommendations dated 29.07.2011, without hearing the petitioner declared him guilty and, therefore, not allowed him to sit in Re-examination. This constitutes pre-determination of issue before the decision of the Disciplinary Committee; thirdly, the Disciplinary Committee did not give any reason whether the material recovered from the petitioner was relevant for the subject of paper VI i.e. Criminal Law; and, lastly no reason has been expressed in the decisions. All these facts show malice in law on the part of the University. The Hon'ble Supreme Court of Pakistan in the case of Abdul Jannan but the University of Peshawar (PLD 1996 SC 709) has held that the orders passed by the University Authorities inflicting punishment on students must at least be intelligible showing application of mind and capable of conveying the intention of the Authority passing the order. I am helpless to observe that in the case before me the order passed by the Disciplinary Committee and the Independent Disciplinary Committee and the Vice Chancellor do not show application of mind to the facts and circumstances of the case.

1. Sardar Tariq Mahmood, learned counsel for respondents has rightly pointed out that University is in the nature of a mere Domestic Tribunal constituted under the law and a dispute of this kind between the University and the candidate admitted to the examination arranged by it, is primarily domestic; and such a dispute can be more properly resolved in the homely and domestic atmosphere of the University and should not be allowed to be dragged to the law Courts. The salutary reason behind the above said contention of the learned counsel for the respondents is enshrined in the following observations made by Kindersley, V.C. in the case of Thomson v. The University of London (1966) 2 All ER 338:

"Whatever relates to the internal arrangements and dealings with regard to the Government and management of the house, of the domus, of the institution, is properly within the jurisdiction of the Visitor, and this only under the jurisdiction of the Visitor, and this Court will not interfere in those matters; but when it comes to a question of right of property, or rights as between the University and a third person dehors the University, or with regard, it may be, to any breach of trust committed by the corporation, that is, the University, and so on, or any contracts by the corporation, not being matters relating to the mere management and arrangement and details of their domus, then, indeed, this Court will interfere."

The constitutional jurisdiction of the High Court is circumscribe by Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and in exercise of this jurisdiction the Court can simply pronounce upon the invalidity of the order and declare that it was without lawful authority and is of no legal effect. Beyond it, strictly speaking, this Court has no jurisdiction to issue any other direction and substitute its own judgment in the matter. In this connection the Hon'ble Supreme Court of Pakistan in Begum B.H. Syed vs. Mst. Afzal Jhan Begum and another (PLD 1970 SC 29) observed that it is not disputed that the High Court had no jurisdiction to go into the merits of the case and substitute its own findings on the merit. Similarly, in another case Nawaz v. The Addl. Settlement and Rehabilitation Commissioner (PLD 1970 SC 39) the Hon'ble Supreme Court held that the High Court in the exercise of its writ jurisdiction does not act as a Court of facts and ought not to enter into and decide disputed questions of fact. In Syed Azmat Ali vs. Chief Settlement and Rehabilitation Commissioner, Lahore and others (PLD 1964 SC 260) the Hon'ble Supreme Court held that the superior Courts exercising writ jurisdiction had full power to do justice but not to substitute its own decision for the decision of inferior Authority and it was more appropriate to return the case to the Authority or Tribunal concerned for a decision in accordance with law after quashing the order complained against. This view was also adopted by the Hon'ble Supreme Court in the case of Naveed Rauf vs. Board of Intermediate and Secondary Education, Lahore (2003 SCMR 1250).

1. In view of the dictum laid down by the Hon'ble Supreme Court of Pakistan the decision dated 29.09.11, passed by the Disciplinary Committee and decision dated 23.12.2011 passed by the Independent Disciplinary Committee which was subsequently confirmed by the Vice-Chancellor on 27.12.2011 and communicated to the petitioner vide letter dated 02.01.2012 are hereby set aside. The matter is remitted to the Disciplinary Committee to pass a fresh cogent order after affording opportunity of hearing to the petitioner before the commencement of the forthcoming LL.B. (Part-I) Examination. This petition, therefore, succeeds and is accordingly allowed.

(R.A.) Petition allowed

PLJ 2012 Lahore 496

Present: Muhammad Khalid Mehmood Khan, J.

IMRAN SIDDIQUE KAUKAB--Petitioner

versus

UNIVERSITY OF PUNJAB, LAHORE through its Vice Chancellor and anothers--Respondents

W.P. No. 23570 of 2010, decided on 20.7.2011.

Educational Institution--

----Petitioner was disabled student of M. Phil--Passed 2 semesters of M. Phil--When approached for issuance of challan for 3rd semester, university refused to issue the same and orally informed that his admission was not according to rules--Application for redressal of grievance was remained unattended--V.C. being head of university was duty bound to resolve petitioner's grievance but remained silent for reasons best know to him--Allegations proved false--Validity--In absence of owing report and parawise comments by University, malafide was proved beyond any shadow of doubt--Petition was allowed and university was directed to issue challan form to petitioner. [P. 500] A

Mr. Allah Bakhsh Leghari, Advocate for Petitioner.

Mr. Shahzad Shoukat, Advocate for Respondents.

Dr. Tabassum Jamal, Professor, Ex-Chairman Geography Department, University of Punjab, in person.

Date of hearing: 20.7.2011.

Order

The petitioner is disabled student of M. Phil Geography Department University of Punjab, Lahore. He has passed 2 semesters of M. Phil securing 3.85 CGPA as is shown from the academic transcript issued by Respondent No. 1. The petitioner when approached the Department for issuance of challan for 3rd semester, Respondent No. 2 refused to issue him the same and orally informed him that his admission is not according to rules so his admission will be cancelled soon. The petitioner approached the Vice Chancellor of Respondent No. 1 for redressal of his grievance but the said application remained unattended. In these circumstances petitioner was forced to file the present petition. The petitioner through this constitutional petition prayed as under:

"In view of the submissions made, above, it is most respectfully prayed that this writ petition may kindly be accepted and the Respondent No. 2 may kindly be directed not to cancel the admission of the petitioner and to issue Challan Form to the petitioner so that the petitioner may continue his studies, with further direction to the Respondent No. 2 not to cause any sort of illegal and undue harassment to the petitioner and conduct himself in accordance with law."

1. Notices were issued to respondents who filed report and parawise comments, respondents specifically took the stance as under:--

"The petitioner has fried to deceive this August Court by producing fake academic transcript, as such he is liable to be proceeded under Section 476, Cr.P.C.

The transcript produced by the petitioner is a result of forgery and fabrication, because as per the record the same was never issued by the University."

1. As there were serious allegations against highly educated person who intends to appear in 3rd semester of M Phil, notices were issued to Chairperson and Coordinator Geography Department University of Punjab, Lahore. These two persons signed the transcript which the respondents claimed to be forged and fabricated. In response to notice of Court, the then Chairperson Professor Dr. Tabassum Jamal appeared and made the statement that certificate was issued by Geography Department University of Punjab, Lahore which bears her signatures and also signatures of coordinator. The said Professor in addition to her statement produced photo copy of transcript downloaded from the website of University of Punjab, Lahore and states that till today the said transcript is available on the website of University of Punjab, Lahore but she could not assure this Court that tomorrow this transcript will be available on website of University of Punjab, Lahore or not?. The said certificate is placed on record as Mark-A.

2. As there were serious allegations against the petitioner which were refuted by the issuer of transcript, learned counsel for respondents was asked to tell the name of person who signed the report and parawise comments leveling serious allegations against the petitioner, so they may be summoned, learned counsel for respondent in the first instance tried to argue the case without providing information about the signatory of report and parawise comments and on Court's instance states that no one signed these report and parawise comments and it is he who signed the same on behalf of respondents. Learned counsel for respondents then requested to argue the case which was declined for the reason that learned counsel is an officer of Court and his legal duty is to assist the Court and not the defend the respondents for their illegal acts. In these circumstances this case is being decided unopposed.

3. Record shows that petitioner was admitted in M. Phil in Geography Department University of Punjab, Lahore. He successfully completed two semesters securing good CGPA. It seems there is some dispute between two Professors. Dr. Tabassum Jamal being the Chairperson of Geography Department addressed a letter to Vice Chancellor University of Punjab, Lahore as under :--

"Some applicants who desired admissions in M. Phil in the department of Geography of University of Punjab have approached Higher Education Commissioner (HEC) for clarification about admission criteria regarding no third division in academic career for admission in M. Phil. HEC has responded to their requests and has conveyed "3rd division is not hurdle for admission in Ph.D/M. Phil but for getting HEC scholarship you should have no 3rd division, (Copy of the mail is attached). In order to avoid any problem, it is requested that the adoption of HEC criteria may please be allowed."

1. This matter was resolved with the noting of different officials of University of Punjab, Lahore. Likewise Centre for South Asian Studies addressed a letter to Vice Chancellor on the same facts who was facing the same difficulty in admitting the students for higher education.

2. When a Professor Dr. Abdul Ghaffar took over the charge as Chairperson of Geography Department University of Punjab, Lahore, he addressed a letter on 15.10.2009 to Vice Chancellor University of Punjab, Lahore as under:--

"I have come to know that admissions in M.Phil program session 2009-2011 have been made in the department. Being Professor of Geography I am ex-officio member of Doctoral Program Committee (DPC) under the rules. I am surprised and protest that why I have not been involved in the admission process.

Now I have come to know that Mr. Imran Siddique Kokab, Who carries two `D' grades in his academic career, has been admitted in M. Phil Program which is against the rules and admission criteria published in the Newspapers. It is possible that some other admissions may also have been made against the admission criteria.

I, therefore, request that matter may pl. be probed by re-scrutinized the academic record of all students admitted in M.Phil program and any illegal and against the admission criteria admission may pl. be declared cancelled."

1. The Acting Vice Chancellor University of Punjab, Lahore on the same day referred the matter to Dean Faculty of Science University of Punjab, Lahore who passed the following order.

"The matter has already been thrashed out & settled."

1. Copy of this order was also send to Dr. Abdul Ghaffar. There is another letter dated 12.9.2009 issued by HEC Islamabad addressed to Professor Dr. Tabassum Jamal Chairperson of Department of Geography University of Punjab. HEC vide letter dated 12.9.2009 Islamabad has informed the University of Punjab, Lahore as well as Director General Q.A HEC Islamabad in the following manner:--

"Reference is made to your Letter No. Nil, dated 10.9.2009, on the subject cited above, this is to clarify that a person having a 3rd Division in his/her academic career can take admission in M. Phil Programmes as per policy of the university and HEC does not have any reservations on it. A copy of the referred email is also enclosed herewith as ready reference."

1. The above facts shows that petitioner was rightly admitted in M. Phil program of the department of Geography University of Punjab, Lahore. He successfully completed his two semesters and it is established on record that Dr. Abdul Ghaffar, the successor in interest of Dr. Tabassum Jamal Chairperson of Geography Department University of Punjab, Lahore has some personal reservation against outgoing Chairperson. He started to agitate a closed and past issue but again he was informed by the Dean Faculty of Sciences University of Punjab, Lahore that it is thrashed and settled issue but inspite of the said decision of the competent authority (Dean of Faculty of Sciences) the said Dr. Abdul Ghaffar continued to create hurdles in continuation of petitioner's education and refused to issue challan form for 3rd semester. The petitioner approached the Vice Chancellor but his grievance remained un attended. This shows the working efficiency of highest body of University of Punjab, Lahore who is enjoying good education reputation all over the world. Vice Chancellor of University of Punjab being the head of University is duty bound to resolve the petitioner's grievance but he remained silent for the reasons best know to him. The petitioner was then constrained to approach this Court by invoking its constitutional jurisdiction.

2. This Court when called report and parawise comments from Respondent No. 1 & 2 an unsigned report and parawise comments were submitted alleging that petitioner's transcript is forged and fabricated document and is not available in record claimed that petitioner is liable to be prosecuted under Section 476, Cr.P.C.

3. The above said allegations proves false when their learned counsel informed that no one has signed these documents. In the absence of owning the report and parawise comments by Respondents No. 1 & 2, mala fide of Respondents No. 1 & 2 is proved beyond any shadow of doubt.

4. In view of above, this petition is allowed and respondents are directed to issue challan form to petitioner. Copy of this order be also sent to the Vice Chancellor University of Punjab, Lahore for probing the matter and submit the report to Deputy Registrar (Judicial) of this Court within one month on receipt of certified copy of this order. Office is directed to remit the copy of order to Vice Chancellor University of Punjab, Lahore. In case the office did not receive the report, the office will put up this file before Court for appropriate orders.

5. The petition is thus allowed.

(R.A.) Petition allowed

PLJ 2012 Lahore 500 (DB)

Present: Ch. Muhammad Tariq and Mian Shahid Iqbal, JJ.

ABDUL HAMEED--Appellant

versus

MUHAMMAD AFZAL ATIF--Respondent

R.F.A. No. 229 of 2005, heard on 17.9.2010.

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

----O. XXXVII, Rr. 1 & 2--Qanun-e-Shahadat Order, (10 of 1984), Arts. 17 & 79--Suit for recovery on basis of pronote--Objection regarding filing of leave and subsequently its granting was never taken by trial Court--Onus to prove regarding payment when execution of demand promissory note was contested--Only one witness was produced--Where financial transaction is involved, same can be proved through attestation of two witnesses which in instant case, appellant could not make out--Demand promissory note signed by one prosecution witness and claims to be identifier of signatures of the document--Signature in given circumstances would make the pronote to be stripped out of definition of negotiable instrument converting the document into a bond--Suit would become defective and such could not be filed under Order 37, Rule 2, CPC--Appeal was dismissed. [Pp. 502 & 503] A & B

Mr. Zafar Iqbal Chohan, Advocate for Appellant.

Mr. Sardar Faiz Rasool Khan, Advocate for Respondent.

Date of hearing: 17.9.2010.

Judgment

Mian Shahid Iqbal, J.--The instant Regular First Appeal has arisen out of judgment and decree dated 14.04.2005 passed by learned Addl. Sessions Judge Jhang, who by virtue of the said judgment had dismissed the suit of the present appellant.

1. Brief facts as alleged are that appellant on 28.10.2002 filed a suit under Order XXXVII, Rules 1 and 2 CPC for recovery of Rs.503,000/- on the basis of a pronote dated 21.02.2002 alleged to have been executed by the respondent.

2. After notice to the said respondent he filed written statement on 16.12.2002. thereafter as many as six issues were framed and the parties were asked to produce evidence.

3. The plaintiff appeared as P.W-1 and produced Attique Ahmad who was the writer of the pronote as P.W-2, Masood Ahmad, who identified the signatures of present respondent as P.W-3 and Mumtaz Hussain one of the witness of the said receipt appeared as P.W-4. On the reverse respondent produced Allah Ditta, witness of the said receipt Ex.P.2 as D.W-1, Hasnaat Ahmad as D.W-2 and himself appeared as D.W-3.

4. The learned trial Court after screening the evidence of the parties dismissed the suit vide judgment and decree dated 14.04.2005, thereby holding that since no consideration amount was passed on to the present respondent, as such Ex.P-1 and Ex.P-2 are without consideration, hence the suit was dismissed.

5. Learned counsel for appellant submits that the learned trial Court has committed illegality by not asking the present respondent to obtain leave as provided under Order XXXVII, Rule 3, CPC and straightaway written statement was filed. Further submits that signatures on demand promissory note are not denied, hence it was incumbent upon the defendant/respondent to prove otherwise. He further submits that in presence of illegality committed by the Court by not asking for leave, the evidence placed on record by respondent cannot be read into. The story put forth by the respondent was not proved through evidence.

6. On the reverse learned counsel for respondent submits that the objection regarding filing of leave and subsequently its granting was never taken by the trial Court, hence cannot be taken before the first appellate Court in the circumstances. He referred to 2004 YLR 1047. Learned counsel for respondent further submits that since the objection was not raised by the appellant before the learned trial Court, as such evidence of the respondent cannot be ignored. It is also contended by the learned counsel that amount in question, on the basis of which, alleged demand promissory note was said to have been executed was not proved through evidence, hence the judgment and decree passed by the learned trial Court was fully inconsonance with the evidence on record. Even otherwise, learned counsel submits that by not applying for leave no prejudice had caused to the appellant, the onus was on him to prove regarding the payment in question when the execution of demand promissory note was contested on the ground that the same has been procured through coercion and pressure of the local police.

7. We have attended to the arguments of learned counsel for parties and have gone through the evidence and record with their assistance.

8. The first question which arises in present case is that onus was on the appellant to prove execution of the demand promissory note and on the basis of said document passing of the consideration. The petitioner has only produced one witness i.e. P.W-4 and could not produce any other witness of the said document. According to Articles 17 and 79 of the Qanoon-e-Shahadat Order, 1984, where financial transaction is involved, same can only be proved through attestation of two witnesses which in present case the appellant could not make out.

9. Even otherwise the evidence placed on record is scanty on the point of time of arrival of witnesses at the place of execution of pronote in question. D.W-1 who appeared on behalf of respondent has categorically stated in his examination-in-chief that though the document in question was signed by the present respondent but payment was not made. In the presence of this evidence the judgment and decree passed by the trial Court cannot be reversed.

10. The contention of the learned counsel for the appellant that since no PLA was filed, as such written statement could not be treated as PLA, hence evidence brought on record by the respondent was wrongly considered by the learned trial Court, cannot be considered in view of judgment laid down in 2004 YLR 1047, which holds as under at page 1049:--

"Under law, Courts have power to treat an application as a written statement and a written statement as an application and at the same time, it is settled that wrong drafting or wrong quotation of law by the party or its counsel does not debar a Court from taking into consideration gist of the assertions made therein. Since no written statement could have been filed without grant of leave, in terms of Order XXXVII Rule 2(3), C.P.C., it is unfair to treat this application as a written statement and to throw it out, simply for the reason that it was not properly drafted, by some body. I am constrained to consider this petition as an application for leave to defend the suit."

The only conclusion to be drawn on the basis of the said written statement is that the same may be considered as PLA as well as a written statement, therefore, the judgment and decree passed while considering the same was fully justified.

1. There is another aspect of the judgment passed by learned Judge of this Court in PLD 2007 Lahore 114, in which it has been held at page 120 that:--

"Besides the above, according to the provisions of Section 2(5)(b) of the Stamp Act, 1899, if an instrument, which may otherwise be a promissory note, but if attested, by the witnesses, it attains the legal status of a bond and no more remains a negotiable instrument; thus one of the important tests to determine whether an instrument is bond or a promissory note, is the attestation of the witnesses."

1. Bare reading of present demand promissory note Ex.P-1 if looked into, this document has been signed by one Masood Ahmad who appeared as P.W-3 and claims to be identifier of the signatures of the said document. The signatures of Masood Ahmad in the given circumstances would make the said pronote to be striped out of the definition of negotiable instrument, converting the said document into a bond. Thus the said suit would become defective and as such could not be filed under Order XXXVII Rule 2, CPC.

2. In the light of discussion made above, we feel that the judgment and decree passed by learned trial Court was fully in consonance with law, as such this appeal fails and is dismissed with no orders as to costs.

(R.A.) Appeal dismissed

PLJ 2012 Lahore 503 (FB)

Present: Ijaz Ahmed Chaudhry, C.J., Sh. Azmat Saeed, Umar Ata Bandial, Nasir Saeed Shaikh & Asad Munir, JJ.

SHEHRI CBE etc.--Petitioner

versus

LDA--Respondent

W.P. No. 1226 of 2006, decided on 16.9.2011.

Constitution of Pakistan, 1973--

----Art. 199--Disposal of Land Development Authorities (Regulation) Act, 1998, Ss. 4 & 5--Environmental Protection Act, 1997, S. 12--Constitutional Petition--Public interest litigation--Doongi ground--Convertion the park/playground space and to utilize for cinema theater, shopping arcade and bowling alleys--Acts and omissions of LDA were assailed--Act of LDA was not only in violation of fundamental rights but also offends against disposal of Land Act--Status quo was granted by High Court and Division Bench of High Court suspended operation of status quo--Challenge to--High Court Bench could not allow LDA to present High Court (F.B.) with fait accompli at expense of or to prejudice of rights of petitioners or public at large--Entire parking lot was totally underground and will have a green grass top, can thus be utilized as park/play ground--In modern urban centers construction of parking lots under public parks is not unknown and such a course of action is often necessitated by paucity of space--Existence of underground car parking lot does not entirely destroy essential feature of site as a playground--High Court Bench persuaded to allow LDA to complete and utilize underground car parking as long as it remain entirely underground and has a green grass top thereby 70% of expenditure already incurred will be put to some use--Rights of Shehries and public-at-large with regard to park cannot be sacrified at altar of Political and bureaucratic insensitivity and incompetence--No doubt some construction can be raised in parks for providing facility or benefits of public--A massive construction over measurable portion would violate sanctity and integrity of park--Court was afraid if 18% of park as proposed was allowed to be constructed upon the site, it will lose its essential feature as park and shall stand converted at best into a public building with lawns, which would for all intents and purposes amount to conversion of the park to prejudice of the rights of petitioners and other inhabitants of locality which cannot be permitted, therefore, Court directed that incomplete structure cannot be allowed at site and must be removed--Car parking lot has been permitted to be retained subject to LDA to obtaining requisite consents, permissions, sanctions approval from all the authorities and if necessary seeking amendment of scheme in accordance with law--Acts and omissions have resulted in loss to public ex-chequer therefore, Court directed that LDA would ensure that detailed inquiry is conducted and delinquent were identified and appropriate action is against them in accordance with law--Petition were accepted. [Pp. 509, 510 & 511] B, C, D, E, F, G & H

Constitution of Pakistan, 1973--

----Arts. 9 & 39--Right in fact is necessary appendage to right to life--Any development scheme at its inception if particular area is designated as a park/playground--Properties in vicinity are required by inhabitants, vested right is created--Original plan of LDA to convert Doongi Ground to any other use would have offended against rights of petitioners. [P. 509] A

PLD 1969 SC 223, PLD 1979 Lah. 79, NLR 1983 Civil 428, 1991 SCMR 483, PLD 2006 SC 394, PLD 2006 SC 514 & 2010 SCMR 885, ref.

Mr. Sajid Mehmood Sheikh & Mr. Muhammad Azhar Siddiqui, Advocates for Petitioners.

Mr. Salman Akram Raja & Mr. Zia-ud-Din Ansari, Advocates for Respondent.

Date of hearing: 20.6.2011.

Judgment

Sh. Azmat Saeed, J.--Through this order, we propose to dispose of Writ Petitions 1226-2006 and 2111 of 2006 emanating from common questions of law and fact. Dispute in both the captioned Constitutional Petitions revolves around a park/playground situated in Gulberg Scheme # II Lahore commonly known as Doongi Ground. Petitioners 2 to 11 in Writ Petition 1226/2006 are residents of Gulberg II Lahore while petitioner # 1 is a society registered under the Societies Registration Act, 1860. The above petition has been filed to call in question the decision of the respondents to convert the said park/playground space and to utilize the same for cinema theater, shopping arcade and bowling alleys, for which purpose, Respondent # 2 company had been established. Whereas, Writ Petition 2116-2006 is a public interest litigation filed to assail the same acts and omissions of respondents of converting the said park/playground as aforesaid. In pith and substance it was the case of the petitioners in both the above said petitions that area in question had been earmarked in the Town Planning Scheme of the Master Plan way back in 1951 as a park and used as a playground by the residents of vicinity for the last about 55 years. Upon establishment of the LDA in 1975, the said area came under its control and consequent upon establishment of PHA (Parks & Horticulture Authority) the said area stood transferred to the latter as a park/open space. It was also the case of the petitioners that act of the respondents was not only in violation of petitioners' fundamental rights but also offends against Sections 4 and 5 of the Disposal of Land by Development Authorities(Regulation) Act, 1998 as well as LDA's Regulations, 1984, LDA Buildings Regulations of 2005. It was also canvassed that section 12 of Environmental Protection Act, 1997 has also been violated.

1. Pursuant to notice issued by this Court, respondents have entered appearance and contested the above cited petitions by inter alia taking up the plea that area in question was in fact not a park and never designated as such, hence, no Law, Rules or Regulation stood violated. Great emphasis was laid on the advantages of setting up a cinema theater, shopping arcade and bowling alleys at site. A learned Judge of this Court after hearing the arguments of the parties at the limine stage, vide detailed and well reasoned order dated 23.2.2006 admitted these petitions to regular hearing and directed that status quo be maintained at the site. Respondents assailed the said order before this Court through ICA # 45 of 2006 and a Division Bench of this Court by means of order dated 9.3.2006 suspended the operation of the status quo order dated 23.2.2006 of the learned Judge of this Court. Being aggrieved, the Writ Petitioners invoked the jurisdiction of the Honorable Apex Court by way of CPLA # 522-L-of 2006, which was converted into appeal and accepted through order dated 14.4.2006 and detailed reasons thereof are reported in 2006 SCMR 1202 Sheri CBE and others Vs Lahore Development Authority and others, whereby, on the one hand, the impugned order of the Division Bench of this Court was set aside and status quo order passed by the learned Judge of this Court vide order dated 23.2.2006 was restored, and on the other hand, various legal issues involved in the case and arising from the contentions of the parties were identified.

2. Subsequently, CM # 1006 of 2010 was filed on behalf of respondents, wherein, it was stated that in order to resolve the issue, two Committees headed by Messrs Shafqat Mahmood and Kamran Shafi were constituted which submitted their respective reports, and on the basis thereof, the proposal for establishing the cinema theater, shopping arcade had been abandoned, and therefore, it was prayed in the said CM that these Constitutional Petitions be disposed of as having borne fruit, however, it was contended that underground car parking lot had already been constructed and some construction had been raised above the ground at the site. In the above backdrop it was contended that since a large sum of public money had been expended on the construction already raised at the site, efforts should be made to utilize the said construction for some useful purpose, so that public money is not be wasted. In the above context, a proposal was also submitted to this Court by the respondents by virtue whereof it was represented that the underground car parking permitted to be retained and used as such. And the construction already raised above ground should be permitted to be completed to be used as a public library, gymnasium and bowling alleys.

3. It is apparent from the contents of CM 1006-2010 of the respondents, petitioners have abandoned the original plan of converting the site into cinema theater etc, hence, the controversy requiring adjudication has narrowed down. Thus a significant number of legal issues which had floated to the surface, and/or were identified in the order of the Honorable Supreme Court of Pakistan in the captioned case reported as 2006 SCMR 1202 ibid, as well as in the admitting note of the learned Judge of this Court dated 23.2.2006 need not be adjudicated upon especially as it is no longer really in dispute that the site in question is in fact and in law a park/playground. The primary issue now left for determination is the prayer of the respondents in CM 1006/2010 to be permitted to retain the underground parking space and to complete the construction raised above ground to be used as a public library, gymnasium and bowling alleys. In the above perspective, Mr.Salman Akram Raja, ASC, learned counsel for the respondents contends that total amount of money spent at Doongi Ground is Rs.156.72 million, out of which, Rs.70.652 million has been spent on the underground car parking which consists of three basements and approximately Rs.32.468 million has been spent on the superstructure of the incomplete building raised above ground. He apprised the Court that the car parking is entirely underground and the ground level is proposed to be covered with grass and therefore will be used as a park. It is added that the incomplete building above the ground which requires to be completed roughly covers about 18% of the total area of the park and is proposed to be used for a non commercial public purpose of a library, gymnasium and bowling alleys, if necessary limited for the use of ladies only. It is also contended that the building will be constructed in a manner so as to blend in with the park. Learned counsel also added that Doongi Ground abuts on MM Alam Road which is a commercial center dotted with restaurants, showrooms and shops attracting a large number of clientele and customers resulting in a dearth of parking space thereby causing traffic congestion, thus the designated parking lot will serve a useful public purpose and will also ease traffic flow. In the above scenario, learned counsel states that since huge amount of public money has already been spent on the construction, hence, every effort should be made to utilize the same even if original expenditures was unauthorized or illegal. In support of his contentions, learned counsel relies on PLD 2010 SC 759 Human Rights Cases # 4668 of 2006, 1111 of 2007 and 1283-G of 2010.

4. It was also the case of the respondents that merely because a particular area is designated as a park, it does not imply that no construction on any insignificant portion thereof cannot be raised, as libraries, restaurants and toilets etc. exists inside the other parks the world over including in the city of Lahore.

5. Whereas, the learned counsels for the writ petitioners have controverted the assertions being raised on behalf of respondents. It was strenuously argued that the area in question, namely, Dungi Ground is essentially a park, hence, cannot be allowed to be used for any other purpose, inasmuch as, if the construction is allowed to be raised thereat, it will cease to be a park/playground. It was added that if the respondents intend to set up a public library, they can do so at any other site available to them without destroying Doongi Ground park. The learned counsel also took exception to the underground parking contending that any other place for said purpose can be found and utilized by respondents without interfering with the integrity and sanctity of the park.

6. Heard. Record perused. The facts gleaned from record are that a housing scheme, i.e., Gulberg Scheme II was apparently approved by the erstwhile Lahore improvement Trust in exercise of powers conferred under the Town Improvement Act 1932. It was never the case of the respondents that in the scheme as originally framed, the site in question was designated or earmarked for residential, commercial or industrial purposes. The site in question is situated adjacent to and in fact was surrounded by residential areas, and inhabitants thereof had acquired their respective residential plots/houses on the representation of the respondents that the site in question is an open area and is not earmarked for residential commercial or industrial purposes implying that it will not be built upon. There can be no escape from the fact that during decades that followed the site was used as a playground which attained greater significance due to rapid urbanization of Gulberg II Scheme. The said use continued for almost 55 years till the instant litigation commenced. The existence of park and playgrounds are an integral and necessary part of the modern urban life, and their existence creates a right in favor of the inhabitants of the locality who can demand that such park/playground be not converted to any other use or be built upon. Such right has been recognized by the Courts in Pakistan for more than four decades. In this behalf, reference may be made to judgment reported as Mian Fazal Din Vs Lahore Improvement Trust PLD 1969 SC 223 which dictum of law was followed and reiterated in the subsequent judgments including PLD 1979 Lahore 79 (Saeen Muhammad and 2 others Vs The Government of Punjab and 3 others), NLR 1983 Civil 428 (Muhammad Sharif etc. Vs. Muzaffar Iqbal etc), 1991 SCMR 483 (Dr.Abdul Rauf and others Vs. Sh.Muhammad Iqbal and others).

7. With the passage of time what had initially been recognized as a private right of the inhabitants of the locality to claim that park/playground shall not be converted evolved into fundamental right emanating from Article 9 of the Constitution of Islamic Republic of Pakistan i.e., the right to life. In the above, the Honorable Supreme Court of Pakistan in the judgment reported as Iqbal Haider Vs Capital Development Authority (PLD 2006 SC 394) and others held as follows:

"Admittedly a public park, if is earmarked in a housing scheme, creates a right amongst the public and that right includes their entry in the park without any obstacle, being fundamental right enshrined in Article 26 read with Article 9 of the Constitution."

1. Reference in the above context can is also made to the judgments of the Honorable Supreme Court reported as PLD 2006 SC 514 Suo Moto Case No. 3 of 2006 (Cutting down of trees in Jahangir Park, Sadar Karachi) and 2010 SCMR 885 Suo Moto Case No. 10 of 2009 (complaint regarding establishment of Makro-Habib Store on Playground).

2. The aforesaid makes it clear and obvious that in any development scheme at its inception if a particular area is designated as a park/playground, and upon such representation, the properties in the vicinity are acquired by inhabitants, a vested right is created in their favor and the public at large in respect of such park/playground. This right in fact is a necessary appendage to the right to life as enshrined in Article 9 of the Constitution and right of leisure as referred to in Article 39 of the Constitution. Thus in the original plan of the respondents to convert the Doongi Ground to any other use would have offended against the rights of the petitioners. However, the original scheme has since been abandoned. It is now the case of the respondents that unfortunately large sum of public money has been expended on the project, and even if such expenditure is illegal or un-authorized or ill advised, every effort should be made to utilize the construction already erected for some useful public purpose. And it is in the above context, a proposal has been submitted to this Court on behalf of respondents in terms whereof, the respondents have expressed their intention to retain the underground parking lot to provide parking facilities to the adjacent commercial areas around MM Alain Road. It is also the declared intention of the respondents to complete the construction raised above ground into public library, gymnasium and bowing allies. In this behalf the learned counsel for the respondents has relied upon judgment of the Supreme Court reported as PLD 2010 SC 759 supra.

3. This Court is and has always been sensitive to the fact that public money should not be wasted. And the sensitivity of this Court in this behalf cannot be overemphasized. However, we cannot allow the respondents to present this Court with a fait accompli at the expense of or to the prejudice of the rights of the petitioners or public at large. In the instant case as has been mentioned in CM # 1006 of 2010 about 70% of the expenditure has been sunk into the basement for the creation of parking lot. We are informed that the entire parking lot is totally underground and will have a green grass top, can thus be utilized as a park/playground. In modern urban centers construction of parking lots under public parks is not unknown, and such a course of action is often necessitated by paucity of space. Thus, the existence of the underground car parking lot does not entirely destroy the essential feature of the site as a park/playground. In the circumstances, we are persuaded to allow the respondents to complete and utilize the underground car parking as long as it remain entirely the underground and has a green grass top thereby 70% of the expenditure already incurred will be put to some use. Whether the car parking lot will be used by citizens of Lahore is entirely upto them. However, we hope that the respondents will not permit the same to become a haven for drug addicts and vagrants.

4. Apparently, there is also an incomplete structure above ground which we are informed covers about 18% of the total area of the park/playground in question which the respondents propose to complete and convert into a library, gymnasium and bowling alleys.

5. A perusal of CM # 1006 of 2010 makes it clear and obvious that decision in this behalf is not motivated by realization of the respondents that another public library or gymnasium is needed, but is in fact a desperate effort to try and save the investment ill advisedly already made. The rights of the petitioners and the public at large with regard to the park in question cannot be sacrificed at the altar of political and bureaucratic insensitivity and incompetence. No doubt some construction can always be raised in parks for providing facility or the benefits of the public. Such construction is ordinarily upon minuscule portion of the park and is usually tucked away in an obscure corner thereof. A massive construction over a measurable portion would violate the sanctity and integrity of the park. We are afraid if 18% of the park/playground as proposed is allowed to be constructed upon the site, it will lose its essential feature as a park/playground, and shall stand converted at best into a public building with lawns, which would for all intents and purposes amount to conversion of the park/playground to the prejudice of the rights of the petitioners and other inhabitants of the locality which cannot be permitted, therefore, we direct that incomplete structure above ground cannot be allowed at site and must be removed. Needless to say that car parking lot has been permitted to be retained subject to respondents to obtaining/retaining the requisite consents, permissions, sanctions, approval from all concerned authorities, and if necessary seeking the amendment of the scheme in accordance with law.

6. Before parting with this judgment we are constrained to observe that even as per the case of the respondents themselves the original proposal of setting up Cinema Theater and shopping arcade was commercially not viable. The manner in which the entire proposal was conceived and executed was not above board and leaves many questions un-answered. Some of such questions have been identified by the Honorable Supreme Court in its judgment subject matter of ICA reported as 2006 SCMR 1202 supra. The said acts and omissions have resulted in loss to the public ex chequer, therefore, we would direct that Respondent # 1 shall ensure that detailed inquiry is conducted and delinquent person(s) is/are identified and appropriate action is taken against them in accordance with law.

7. Petitions accepted in terms enumerated ibid with no order as to costs.

(R.A.) Petition accepted

PLJ 2012 Lahore 511

Present: Muhammad Khalid Mehmood Khan, J.

REHMAT ALI--Appellant

versus

Mst. RABIA BEGUM and 10 others--Respondents

R.S.A. No. 89 of 2000, heard on 28.4.2010.

Rendition of Account--

----Local commission was appointed in terms of preliminary decree--Objections against but withdrew--Blunt statement of counsel for accepting report of local commission--No objection against the final decree according to report of local commission be passed--Question of--Whether counsel was authorized to record statement--Fresh instructions for challenging the report were issued--Terms and conditions of Wakalat Nama--Validity--When local commissioner submitted the report, appellant must have consulted the same with counsel and appellant might be under his legal advise has decided to raise objections against report of local commission--Withdrawal of objection mean the appellant is taking liability of loss suffered after death of predeceased was admittedly for the period when respondents were conducting the business--Not given instructions to his counsel to withdraw the objections against report of local commissioner and the appellate Court has declined to interfere on the ground that there is no specific allegation of lack of authority on part of appellant against counsel--Withdrawal of objections is collusive malafide and without authority--Case was remanded to trial Court with direction to file an application challenging authority of statement of counsel in light of grounds of appeal. [Pp. 515 & 516] A, C, D & F

Relationship of Counsel and Client--

----Recording of statement the counsel under instructions of appellant--Validity--Relationship of counsel and client is a privileged relationship and counsel is morally and legally bound to act on instructions of his or her client. [P. 515] B

Non-existent Partnership--

----Partnership on day of death and suffered loss--Partnership on day of death become non-existent and trial Court come to conclusion that there was no partnership between the parties and dismissed suit to that extent--Validity--After finding of trial Court that no partnership exist between the parties, trial Court was bound to adjudicate issue of liability of loss recoverable from estate of deceased occurred after his death. [P. 516] E

1994 SCMR 1248, rel.

Mr. Tariq Masood, Advocate for Appellant.

Mian Abdul Hayee, Advocate for Respondents.

Date of hearing: 28.4.2010.

Judgment

This second appeal has been preferred against judgment and decree passed by the learned Addl. District Judge Sialkot on 11.4.2000 and judgment and decree dated 11.2.1999 passed by learned Civil Judge Sialkot.

1. Briefly stated the facts of the case are that on 2.7.1995, the appellant filed a suit for rendition of accounts claiming that he and his brother Muhammad Ali (since deceased) were doing business in partnership jointly of Iron Rods and T.R. Their share of profit and loss was equal. The investment of both the partners in the business was Rs. 5,00,000/-. His brother Muhammad Ali died on 9.4.1993 and after his death the Respondents No. 1 and 2 took over the charge of business. He further claimed that after the death of Muhammad Ali the Respondents No. 1 to 3 and appellant are his legal heirs. He adds that he is not responsible for the loss caused by the respondents after the death of Muhammad Ali. The Respondents No. 1 and 2 have refused to render the accounts and as such a decree of rendition of accounts be passed.

2. The Respondents No. 1 and 2 contested the suit and the learned trial Court framed the following issues:--

"ISSUES.

1. Whether the plaintiffs have got no cause of action and locus standi to file the present suit?OPD

2. Whether the suit is bad for mis-joinder of parties?OPD

3. Whether the Plaintiff No. 2 is not widow of Muhammad Ali as Muhammad Ali deceased has already divorced to Plaintiff No. 2 during his life time?OPD

4. Whether the plaintiffs have estopped by their words and conduct to file the present suit?OPD

5. Whether the plaint is liable to be rejected U/S. 7 Rule 11 CPC? OPD

6. Whether the suit is false, frivolous and base less and the defendants are entitled to special costs U/S. 35-A CPC? OPD

7. Whether the plaintiffs are entitled to decree of rendition of accounts as prayed for? OPP

8. Relief.

9. After recording evidence of both the parties the learned Civil Court passed preliminary decree on 10.5.1999 and appointed Rao Muhammad Pervaiz Advocate Sialkot as local commission with the direction to take possession of the books of accounts and submit detailed report about the assets, liability, profit and loss of the business. However, the suit to the extent of claim of partnership was dismissed. The preliminary decree dated 19.5.1997 was assailed through an appeal which was dismissed on 6.12.1997. The local commission submitted his report on 21.1.1998. The appellant filed objections to the report of local commission and finally on 7.2.1998 the learned counsel for the appellant recorded his statement and accepted the report of local commission. In terms of statement of learned counsel for the appellant dated 7.2.1998, the learned trial Court passed final decree vide judgment and decree dated 11.2.1999.

10. The appellant assailed the judgment and decree through an appeal which was dismissed on 11.4.2000.

11. Learned counsel for the appellants submits that their counsel was not authorized to withdraw the objections raised against the report of local commission. His authority was restricted to the extent that he has to prosecute the objections filed against the report of local commission, he was never authorized nor any instructions were passed on to him for the withdrawal of objections and as such the preliminary and final decrees dated 11.2.1999 and 11.4.2000 are against law and facts. He further submits that learned Courts below have wrongly accepted the report of local commission to the effect that after the death of Muhammad Ali Respondents No. 1 and 2 have illegally conducted the business and loss caused by these respondents cannot be charged against the estate of deceased.

12. Learned counsel for the respondents submits that the local commission has submitted his report in terms of his reference. The withdrawal of the objections raised by the appellant by his counsel is binding on the appellant, the final decree was passed by the learned Courts bellow is perfectly in accordance with law, the case was adjourned six times after the withdrawal of objections against the report of local commission but the appellant never objected about the statement recorded on 7.12.1998. He submits that if the appellant is dis-satisfied that his counsel has not acted under his instructions, he has the right to sue his counsel and to recover damages if any. He relied on Noor Muhammad and others Vs. Muhammad Siddique and others (1994 SCMR 1248).

13. Arguments heard. Record perused.

14. It is a matter of record that Rao Muhammad Pervaiz Advocate was appointed a local commission in terms of preliminary decree dated 10.6.1997 passed by the learned Civil Court. The learned local commission submitted his report on 21.1.1998. Appellants raised objections there against but withdrew the same vide statement dated 17.12.1998, it is also a matter of record that after recording the statement of appellant's counsel the case continued to adjourn from 7.12.1998 to 11.2.1999 but the appellant has not objected the statement of his counsel. The argument of learned counsel for the respondent that counsel of appellant has recorded the statement under his instructions is concerned, the record shows that on the day when the counsel of the appellant made statement appellant was not present in Court. Learned counsel while recording his statement has not mentioned that he is recording the statement under instructions of appellant. On 7.12.1998 appellant learned counsel made the following statement:--

1. Perusal of statement of learned counsel shows that it is no where mentioned that he is recording statement under the instructions of the appellant, rather, it is a blunt statement of learned counsel for the appellant, whereby he frankly conceded that he accepts the report of local commission dated 21.1.1998. He has no objection there against and the final decree according to the report of local commission be passed. The question arose whether the counsel for the appellant was authorized to record this statement or not? The appellant has executed power of attorney in favour of his counsel. A preliminary decree was passed and local commission was appointed, the local commission submitted his report, the counsel for the appellant filed objections under the instructions of appellant as the appellants were not satisfied about the report of local commission. This means that appellant issued fresh instructions to his counsel for challenging the report and objections were filed and as such these objections were under the specific instructions of the appellant. If the counsel for the appellant wants to withdraw the objections, he was bound to obtain fresh instructions from the appellant, as this was not a routine matter covered under the terms and conditions of power of attorney (Wakalat Nama). When the local commission submitted the report, the appellant must have consulted the same with their counsel and the appellant may be under his legal advise has decided to raise objections against the report of local commission. The withdrawal of objection mean the appellant is taking a liability of loss suffered after the death of Muhammad Ali, which was admittedly for the period when Respondents No. 1 and 2 were conducting the business. The other possibility may be that parties were agreed to settle the dispute as is argued by learned counsel of the respondents. The statement recorded by the counsel for the appellant shows that appellant was not present in Court. Further while recording the statement the counsel of the appellant has not mentioned that he is recording the statement under the instructions of appellant. The relationship of counsel and client is a privileged relationship and the counsel is morally and legally bound to act on the instructions of his or her client. In this case the matter is otherwise. The appellant is claiming that he has not given instructions to his counsel to withdraw the objections against the report of local commission and the appellate Court has declined to interfere on the ground there is no specific allegation of lack of authority on the part of appellant against the counsel. The grounds of appeal before the first appellate Court shows that appellant has specifically alleged against his counsel that withdrawal of objections is collusive, malafide and without authority. As far as the objections of respondent that after recording the statement of their counsel the case remained pending upto 11.2.1999 but no objection was raised by the appellant is concerned, nothing is available on record showing that the statement of withdrawal was in the knowledge of the appellant. The allegation of appellants against his counsel required to be proved on record, it is factual controversy whether the appellant has passed on instructions to his counsel authorizing him to withdraw the objections, in these circumstances learned appellate Court was bound to probe the actual facts either himself or through learned trial Court.

2. Other argument of learned counsel for the appellant is also convincing when he submits that even if for the sake of arguments if it is admitted that counsel for the appellant has withdrawn the objections against the report of local commission even then the Court was bound to pass a decree according to the report of local commission. The report of local commission shows that Respondents No. 1 and 2 were conducting the business after the death of Muhammad Ali and suffered loss, the learned trial Court was bound to give verdict that the said loss is payable by whom. The partnership on the day of death of Muhammad Ali become non-existent and the learned trial Court further itself come to the conclusion that there was no partnership between the parties and dismissed the suit to that extent. After the finding of learned trial Court that no partnership exist between the parties the learned trial Court was bound to adjudicate the issue of liability of loss recoverable from the estate of deceased occurred after his death. The learned Courts below have not examined this aspect of the case and passed the decree without deciding the controversy between the parties. Learned counsel for the respondent has placed reliance on Noor Muhammad and others Vs. Muhammad Siddique and others (1994 SCMR 1248). The facts of this case are different from the present case. In this case the defendant made an offer to plaintiff in a suit for pre-emption that if plaintiff pays the amount mentioned in the sale deed, he has no objection for passing a decree. There was a dispute between the parties about the sale price, the plaintiff was claiming sale price Rs.27,420/- and the defendant was claiming Rs.38,125/- meaning thereby the defendant was gaining some thing out of his statement, but in the present case the appellant is losing every right and is accepting liability. So the facts of this judgment are distinguishable.

3. As there was serious allegation of appellant against his counsel it was obligatory on the Court below to call reply of learned counsel for the appellant and to record his statement to confirm or deny the allegations of appellant, but the learned Courts below has not examined this legal aspect of the case.

4. In view of above, I have no hesitation to hold that the allegations of appellant have not been redressed or attended to by the learned Courts below while deciding the appeal and suit. In view of the above, I hereby set aside the judgment and decree of the learned appellate Court as well as the learned trial Court and remand the case to the learned trial Court with the direction that he will frame the issue on their allegations against their counsel and will record the evidence of the parties and will decide the case on merits. The trial Court will allow the appellant to file an application challenging the authority of statement of their counsel in the light of the grounds of appeal and will call reply from the respondent. This is an old case, the learned trial Court will decide the suit within six months from the date of receipt of this order.

(R.A.) Case remanded

PLJ 2012 Lahore 517

Present: Muhammad Khalid Mehmood Khan, J.

MUHAMMAD AJMAL--Petitioner

versus

PUNJAB PUBLIC SERVICE COMMISSION through its Secretary Lahore and another--Respondents

W.P. No. 3977 of 2012, decided on 24.4.2012.

Punjab Civil Servants (Relaxation of Upper Age Limit) Rules, 1976--

----R. 3--Upper age limit as 35 years--Grace period of 5 years in terms of notification--Petitioner was P.T.C. teacher--Applied for one post of lecturer--Dropped due to overage by 1 year 9 month and 7 days--Review petition moved before Deputy Director was rejected--Challenge to--Clog of maximum age limit fixed by PPSC--Validity--Continuous service of civil servant would be excluded from his age provided upper age limit shall not exceed 35 years--Entitled to be appointed as lecturer--Intention of rule making authority is that maximum age should not exceed from 35 years--Rule 3 does not provide that 5 years will be given but it provides that upper age limit will be 35 years including of 5 years of grace period--Word used are "shall not exceed 35 years" meaning thereby 35 years is maximum age provided for post advertised--Civil servant was below than 35 years at time when he applied for the post advertised--Petition was allowed. [P. 519] A

2004 PLC (CS) 69 & 2006 PLD (CS) 964, ref.

Mr. Muhammad Iqbal Mohal, Advocate for Petitioner.

Ch. Muhammad Iqbal, Additional Advocate General, Punjab alongwith Muhammad Farooq Raja, Deputy Director Legal PPSC for Respondents.

Date of hearing: 24.4.2012.

Order

The petitioner is a P.T.C teacher posted in Government High School Green Town, Lahore. After joining the PTC teacher he improved his academic qualification and acquired Master degree in the subject Of Urdu. The respondent-PPSC announced posts of Lecturers of BS-17. The petitioner applied for one post of Lecturer as per advertisement issued by respondents. The petitioner appeared in written test, successfully passed the written test and was called for interview but when he appeared for interview he was informed that he is overage of 1 year 9 months and 7 days. The petitioner moved a review petition before Respondent No. 2 but the same was rejected on 06.2.2012 with the following remarks:--

"After giving you service benefits towards upper age limit you are still overage by 1 year 9 months and 7 days under the rules/advertisement."

The petitioner asserts that maximum age limit is 35 years in terms of Notification dated 04.11.2006 issued by the Governor Punjab. Hence, it is prayed that impugned rejection letter dated 06.2.2012 be declared illegal and without lawful authority.

1. Notices were issued to respondents. Learned Additional Advocate General and learned law officer of respondent-PPSC submit that consolidated advertisement No. 23/2011 specifically provides that the age limit is 21 to 28 years with 5 years general age relaxation in the upper age limit and as such maximum age for the candidate is 33 years. The petitioner was given benefit of his service but even allowing relaxation the petitioner is overage by 1 year 9 months and 7 days. Learned Additional Advocate General, further submits that it was in the knowledge of petitioner that even if he will pass the written test or interview he has to face the clog of maximum age limit fixed by Respondent No. 1 vide advertisement for inviting applications.

2. Learned counsel for petitioner submits that under Rule 3 of Punjab Civil Servants (Relaxation of upper Age Limit) Rules, 1976 the continuous service of civil servant would be excluded from his age provided upper age limit shall not exceed 35 years. Admittedly petitioner is below 35 years and as such he is entitled to be appointed as Lecturer. He has relied on Muhammad Qasim and 6 others V. Home Department, Government of the Punjab (2004 PLC (C.S) 69), Ehsan Ullah and 3 others V. Inspector General of Police, Punjab Lahore and 4 others (2006 PLC (C.S) 964) and Saghir Ahmad Naqi V. Government of the Punjab through Secretary Home (Prisons) Department, Lahore and another (2005 PLC (C.S) 1409).

3. The argument of learned Additional Advocate General assisted by law officer of Respondent No. 1 is that terms and conditions notified in the advertisement are clear in nature and these have been fixed on the advise by the respective department.

4. Heard. Record perused.

5. There is no denial on the part of respondent that in case petitioner's age is settled as 35 years he will be eligible to be recruited as Lecturer. Rule 3 of Punjab Civil Servants (Relaxation of upper Age Limit) Rules, 1976 provides as under:--

"In the case of a candidate already working as a Government servant, the period of his continuous service as such shall far the purpose of upper age limit prescribed under any service rules of the post for which he is a candidate be excluded from his age. Provided that the upper age limit shall not exceed 35 years for recruitment to any post to be filled in on the recommendation of the Punjab Public Service Commission on the basis of the combined competitive examination."

The proviso of Rule 3 ibid specifically provides upper age limit as 35 years. No doubt respondents have allowed 5 years age relaxation but they unilaterally reduce initial age from 30 years to 28 years. The proviso of Rule 3 ibid specifically provides upper limit as 35 years with grace period of 5 years in terms of Notification dated 04.9.2006 and as such Respondent No. 1 has no authority to fix the upper age limit as 33 years inclusive of 5 years. In case the argument of learned Additional Advocate General is admitted the Proviso of Rule 3 ibid will become redundant. The intention of rule making authority is that the maximum age should not exceed from 35 years. The rule does not provide that 5 years will be given but it provides that upper age limit will be 35 years including of 5 years of grace period. The word used are "shall not exceed 35 years" meaning thereby 35 years is the maximum age provided for the post advertised.

1. In view of above, as the petitioner is below than 35 years at the time when he applied for the post advertised and as such this petition is allowed. Order dated 06.2.2012 is declared without lawful authority.

(R.A.) Petition allowed

PLJ 2012 Lahore 519

Present: Malik Shahzad Ahmad Khan, J.

MAHMOOD RAZA--Petitioner

versus

Mst. NAHEED LIAQAT & 2 others--Respondents

W.P. No. 25258 of 2011, decided on 27.1.2012.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Suit for recovery of dowry articles was decreed and price of decreed dowry articles was fixed--Findings of trial Court were modified by First Appellate Court--Challenge to--Stance was self contradictory--Evidence was not produced to establish that dowry articles were destroyed due to flood--Claim of plaintiff inspired confidence because she had frankly admitted in plaint that gold ornaments of dowry had already been returned to her by petitioner--Held: Appellate Court after appreciating the evidence of plaintiff and in light of dowry articles and their respective price mentioned by plaintiff during cross examination had rightly determined the price of the articles--Petitioner could not point out any illegality or material irregularity in the judgment passed by appellate Court--Petition was dismissed. [P. 521] A & B

Mr. Sajid Hussain Qureshi, Advocate for Petitioner.

Mr. Tipu Salman Makhdoom, Advocate for Respondent No. 1.

Date of hearing: 27.1.2012.

Order

This petition has been filed against the judgment and decree dated 17.01.2011 passed by the learned Judge Family Court, Jhang as well as, against the judgment and decree dated 28.09.2011 passed by the learned Additional District Judge, Jhang, whereby the findings of the learned trial Court on the issue for recovery of dowry articles were modified and the price of the dowry articles was increased from Rs.65,000/- to Rs. 1,00,000/-.

1. It is contended by the learned counsel for the petitioner that admittedly the list of dowry articles was not prepared at the time of marriage; that due to flood in the year 2010 all the dowry articles were destroyed; that the Plaintiff/Respondent No. 1 failed to establish her case in respect of dowry articles, therefore, the petitioner was not liable to return the said dowry articles, hence, both the judgments and decrees passed by the Courts below are liable to be set aside.

2. On the other hand, this petition has been opposed by the learned counsel for Respondent No. 1 on the grounds that non-preparation of dowry list at the time of marriage and non-production of receipts of the said articles is not fatal to the case of the Plaintiff/Respondent No. 1; that the Plaintiff/Respondent No. 1 filed her suit for recovery of dowry articles or in the alternative for recovery of Rs.2,69,600/- as price of the said articles, whereas the same has been decreed only to the extent of Rs. 1,00,000/-; that the learned appellate Court while appreciating the evidence of the Plaintiff/Respondent No. 1 has rightly enhanced the price of the dowry articles from Rs.65,000/- to Rs.1,00,000/-; that the petitioner/plaintiff could not produce any evidence to establish that the dowry articles were damaged due to the flood; that there are concurrent findings of facts of two Courts below, recorded in favour of the Plaintiff/Respondent No. 1, therefore, this petition may be dismissed.

3. Arguments record and record perused.

4. Plaintiff/Respondent No. 1 filed a suit for recovery of dowry articles or in the alternative for recovery of Rs.2,69,600/-, as price of the said articles. Her suit for recovery of dowry articles was decreed by the learned Judge Family Court, Jhang and price of the decreed dowry articles was fixed at Rs,65,000/-. Anyhow, the said findings of the trial Court were modified by the learned Additional District Judge, Jhang, and Respondent No. 1 was held entitled to recover Rs.1,00,000/- as price of dowry articles from the petitioner. The Plaintiff/Respondent No. 1 has given the detail of dowry articles during her cross-examination. She has mentioned different articles and has also given value of the said articles. Similarly Muhammad Iqbal, PW-2 has also mentioned some of the dowry articles in his cross-examination. The father of the petitioner was admittedly employed as Warden in Jail, therefore, it cannot be said that the Plaintiff/Respondent No. 1 was not given any dowry articles at the time of her marriage. Ordinary articles were mentioned by the Plaintiff/ Respondent No. 1 during her cross-examination. On one hand, the petitioner/defendant has totally denied that the Plaintiff/Respondent No. 1 was given any articles of dowry, whereas on the other hand, he has taken this plea that the dowry articles were destroyed due to flood. The stance of the petitioner/defendant is self contradictory. Even otherwise, the petitioner/defendant did not produce any evidence to establish that the dowry articles were destroyed due to flood. The claim of the plaintiff/ Respondent No. 1 also inspires confidence because she has frankly admitted in her plaint that gold ornaments of the dowry has already been returned to her by the petitioner/defendant. This fact shows that claim of the Plaintiff/Respondent No. 1 is genuine. The evidence of the Plaintiff/Respondent No. 1 and Muhammad Iqbal (PW.2) has been proved to be reliable and confidence inspiring. The learned appellate Court after appreciating the evidence of the Plaintiff/Respondent No. 1 and in light of the dowry articles and their respective price mentioned by the Plaintiff/Respondent No. 1 during her cross-examination has rightly determined the price of said articles. The learned counsel for the petitioner could not point out any illegality or material irregularity in the impugned judgment passed by the learned appellate Court.

5. In light of the above discussion, the instant petition is without any substance; hence, the same is hereby, dismissed.

(R.A.) Petition dismissed

PLJ 2012 Lahore 522 (DB)

Present: Sh. Azmat Saeed, C.J. and Nasir Saeed Sheikh, J.

Syed IMRAN ABBAS SHAH and another--Petitioners

versus

UNIVERSITY OF HEALTH SCIENCES through Vice-Chancellor, Lahore and 2 others--Respondents

W.P. No. 14899 of 2011, heard on 13.2.2012.

Educational Institution--

----Re-admission in Public Sector Medical College--Not entitled to get admission as matter of right--Admission in Q.M.C. was granted whereafter scholarships were offered by Govt. of Cuba for which petitioners were selected and left for that country--Repatriated to Pakistan upon return, sought admission--Left the institution to pursue studies in Cuba which were terminated prematurely--Validity--Petitioners were unable to show any vested right for re-admission in public sector medical college in the province--Upon petitioners abandoning their studies from public sector, same would have been filled up by other candidates--Such medical colleges had limited seats which could not be enhanced merely to accommodate petitioners--High Court found its unable to come to aid of the petitioners who must seek admissions in private medical colleges which right had been acknowledged by UHS--Petition was disposed of. [P. 523] A

Mr. Tipu Salman Makhdoom, Advocate for Petitioners.

Mr. Muhammad Shan Gull, Assistant Advocate General Punjab for Respondents.

Date of hearing: 13.2.2012.

Order

The petitioners have filed this constitutional petition seeking a direction that they may be admitted in the 3rd Year MBBS Course in any Public Sector Medical College in the Province of Punjab.

1. The petitioners after passing their F.Sc. (Pre-Medical) Examination from various Institutions were granted admission in Quaid-e-Azam Medical College, Bahawalpur, whereafter, apparently, some scholarships were offered by the Government of Cuba, for which the petitioners were selected and left for that country. The petitioners claim to have studied in Cuba for a period of 3 years, whereafter they were repatriated to Pakistan along with other students in the same situation. Upon their return, they sought admission in the local Medical Colleges. Apparently, it was decided that they should participate in the examination to be conducted by the PMDC so as to judge their proficiencies. The petitioners claim to have passed the said examination and on basis thereof they seek admission in a Public Sector Medical College in the Province of Punjab. It is also the case of the petitioners that they had approached the various Authorities in this behalf and directions for accommodating them have been issued at the highest level including the Prime Minister.

2. It is the case of the respondents that the petitioners may be entitled to continue with their studies by seeking admission in the Medical Colleges in the Country in the year to which they were held entitled by the PMDC, but they are not entitled to get admission in a Public Sector Medical College as a matter of right.

3. We have heard the learned counsel for the petitioners as well as the learned Assistant Advocate General, Punjab and perused the record.

4. The petitioners were admitted to a Public Sector Medical College. They left the said Institution to pursue their studies in Cuba which were terminated prematurely. It appears that the PMDC found them eligible for admission in a Medical College. However, the learned counsel for the petitioners is unable to show any vested right for re-admission in a Public Sector Medical College in the Province of Punjab. It is also to be noted that upon the petitioners abandoning their studies from the said Public Sector Medical College, the same would have been filled up by the other candidates. Such Medical Colleges have limited seats which cannot be enhanced merely to accommodate the petitioners. In the above circumstances, this Court finds its unable to come to the aid of the petitioners who must seek admissions in the private Medical Colleges, which right has been acknowledged by the respondents.

5. This petition is disposed of in the above terms.

(R.A.) Petition disposed of

PLJ 2012 Lahore 524

Present: Ayesha A. Malik, J.

MUHAMMAD IQBAL--Petitioner

versus

Mst. NASREEN AKHTAR--Respondent

W.P. No. 8293 of 2012, decided on 16.4.2012.

Constitution of Pakistan, 1973--

----Art. 199--W.P. Family Courts Act, 1964--S. 17--Civil Procedure Code, (V of 1908), S. 11--Principle of resjudicata--Applicability--Constitutional petition--Suit for recovery of maintenance allowance was decreed--Thereafter suit for enhancement of maintenance allowance providing for enhanced maintenance of Rs. 4000/- p.m. with 5% annual increase from date of institution till legal limitation of each--No bar in law against filing a fresh suit for enhancement of maintenance allowance due to change in circumstances, change in cost of living and additional needs of minor which father was under legal obligation to provide--Validity--In a suit for enhanced maintenance, growth of children, the cost of living, change in status of the parties, change in expenditures incurred based on needs of children are some of factors which either bring about change of cause of action or may make out even fresh cause of action for children to demand enhanced maintenance allowance--Fresh proceedings for maintenance allowance are maintainable before Family Court--Since enhanced maintenance was not a matter in issue between the parties, hence principle of res judicata will not apply. [P. 526] A

West Pakistan Family Courts Act, 1964--

----S. 17--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Suit for enhancement of maintenance allowance--Question of--Whether suit for enhancement of maintenance is maintainable under schedule--Principle of resjudicata--Validity--No bar on filing a suit for enhancement of maintenance--There are bound to be changes in circumstances and changes in requirements of the children--Naturally, as children will grow their needs will as grow. [P. 526] B

1999 CLC 1668, rel.

Maintenance Allowance--

----Unrealistic approach--Father was bound to maintain minor--Validity--Maintenance allowance should remain fixed throughout growing period of minor or that 5% increase should be considered sufficient--Father is legally bound to maintain minor in terms of requirement of minor and cost of living. [P. 526`] C

Mr. Muhammad Ehsan Gondal, Advocate for Petitioner.

Date of hearing: 16.4.2012.

Order

This petition impugns the judgments and decrees dated 25.07.2011 and 19.01.2012 passed by Judge Family Court and Addl: District Judge, Mandi Baha-ud-Din respectively as there are concurrent findings against the Petitioner.

1. Brief facts of the case are that Respondents No. 1 to 4 filed a suit for recovery of maintenance allowance, which was decreed on 26.02.2008 providing maintenance at the rate of Rs.2000/- per month. Thereafter, they filed a suit for enhancement of maintenance allowance on 05.04.2010, which was decreed on 25.07.2011 providing for enhanced maintenance at the rate of Rs.4000/- per month with a 5% annual increase from date of institution till legal limitation of each. Hence this writ petition.

2. Learned counsel for the Petitioner contends that the decree issued on 24.02.2008 has attained finality, hence the principle of `resjudicata' applies. Further contends that in view of the said principle the Respondent was not entitled to seek enhancement of maintenance allowance, that too within a period of two years. He relied upon Section 17 of the Family Court Act, 1964 which he states provides for the principle of res judicata and upon the Schedule which does not provide for a suit for enhancement of maintenance.

3. Heard the learned counsel for the Petitioner and reviewed the record available on the file.

4. The contention of the learned counsel for the Petitioner that the principle of res judicata will apply to order dated 26.02.2008, is legally flawed as the principle of res judicata will not apply to suit for enhancement of maintenance since the issues pertaining to the enhanced maintenance were not in issue between the parties in the previous suit. There is no bar in law against filing a fresh suit for enhancement of the maintenance allowance due to change in circumstances, change in cost of living and additional needs of the minor, which a father is under legal obligation to provide. Reliance is placed on Muhammad Ashraf vs. Mst, Nusrat Bibi and 3 others (2010 CLC 1411), In the case of Muhammad Akram vs. Addl: District Judge and others (PLD 2008 Lahore 560), this Court has held that Section 11 of the C.P.C in relation to the cause of action of suit codifies the doctrine of res judicata which operates when there is a judgment between the same parties and it prevents a fresh suit between them regarding the same matter. In a suit for enhanced maintenance, the growth of the children, the cost of living, change in the status of the parties, change in the expenditures incurred based on the needs of the children are some of the factors which either bring about a change of the cause of action or may make out even a fresh cause of action for the children to demand enhanced maintenance allowance. Thus fresh proceedings for maintenance allowance are maintainable before the Family Court. Since enhanced maintenance was not a matter in issue between the parties, hence, the principle of res judicata will not apply.

5. On the issue whether a suit for enhancement of maintenance is maintainable under the Schedule, the answer is that the same is maintainable. The Schedule provides for the matter over which the family Court should have jurisdiction. Maintenance is provided at Serial No. 3. As such there is no bar on filing a suit for enhancement of maintenance. There are bound to be changes in the circumstances and changes in the requirements of the children. Naturally, as the children will grow their needs will also grow. Reliance is placed on a case titled Arab Mir Muhammad Vs. Mst. Iram Iltimas and 4 others (1999 CLC 1668). It is noted that this is an unrealistic approach that the maintenance allowance should remain fixed throughout the growing period of the minor or that the 5% increase should be considered sufficient. A father is legally bound to maintain the minor in terms of the requirement of the minor and the cost of living.

6. For the forgoing reasons, the learned Court has exercised the powers in accordance with law. There is no illegality in the impugned orders, which merit interference by this Court in the exercise of its constitutional jurisdiction. The writ petition being without substance is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2012 Lahore 526 (FB)

Present: Justice Ijaz-ul-Ahsan, Chairman, Justice Syed Mansoor Ali Shah and Justice Sh. Ahmad Farooq, Members.

SAEED AHMAD AWAN, EX-CIVIL JUDGE/JUDICIAL MAGISTRATE, FAISALABAD--Appellant

versus

REGISTRAR, LAHORE HIGH COURT, LAHORE--Respondent

S.A. No. 5 of 2011, heard on 7.2.2012.

Punjab Sub-ordinate Judiciary Service Tribunal Act, 1991--

----S. 5--Civil Judge/Judicial Magistrate--Non writing judgments/orders despite having announced--Misconduct and inefficiency--Matter was reported to High Court--Charge of misconduct could not be proved--Second charge inefficiency stood established--Tendered an apology praying that lapse be condoned--Inquiry officer recommended imposition of minor penalty of censure upon Judicial Officer--Show cause-notice was issued by High Court directed to explain why penalty of censure recommended might not be enhanced--Hearing judge recommended imposition of major penalty against judicial officer--After perusal of report of inquiry officer High Court found that allegation was that he had 31 judicial files lying in cupboard of chamber--Question of--Whether facts and circumstances of case justify enhancement of minor penalty of censure to major penalty removal from service--Determination--High Court had not found anything in record that may show that judicial officer made any effort to remedy the situation and acted carelessly--Inquiry officer was justified in finding same degree of inefficiency on part of judicial officer to justify a recommendation to impose minor penalty of censure--Such penalty cannot be imposed lightly and without proof of serious allegations--Even where a charge of inefficiency, such in efficiency must be of a lasting character--A single slip or lapse on part of government servant would not justify inference of being inefficient--Punishment awarded must be proportionate to and commensurate with magnitude of the offence--Hearing Judge observed that proposed minor penalty of censure against judicial officer was insufficient to meet ends of justice--Recommendation of hearing judge does not disclose any basis for disagreeing with recommendations of inquiry officer and arriving at diametrically different conclusion on same material--Judicial department were unable to hold that such material was sufficient to support a recommendation for imposition of major penalty--Imposition of major penalty in facts and circumstances was disproportionate to magnitude of the charge--Inquiry officer observed that judicial officer had good service record spanning over ten years of judicial service--No charge of dishonestly or corruption and charge of misconduct was not proved--Adequate material to justify and support the recommendation of Inquiry officer to extent of awarding minor penalty of censure to the judicial officer--Appeal was allowed. [Pp. 530, 531 & 532] A, B, C, D, E, F, G, H & I

M/s. Mian Bilal Bashir and Raja Tasawer Iqbal, Advocates for Appellant.

Syed Nasir Ali Shah, Advocate for Respondent.

Date of hearing: 7.2.2012.

Judgment

Justice Ijaz-ul-Ahsan, Chairman.--This appeal arises out of an order dated 25.10.2010 ("Impugned Order") passed by the Competent Authority whereby Appellant was removed from service.

1. Brief facts of the case are that the Appellant was appointed as a Civil Judge/Judicial Magistrate in the year 2000. In 2010 after announcement of the National Judicial Policy, on some complaints being received against the Appellant that he was not writing judgments/ orders despite having announced the same, the District and Sessions Judge visited the chamber of the Appellant. He allegedly found case files of 31 cases lying in his cupboard. The matter was reported to the High Court. Consequently, charge sheet was issued to the Appellant under Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 for misconduct and inefficiency.

2. The Appellant filed his reply to the said charge sheet. He took the position that files lying in his cupboard related to cases in which he had dictated judgments/orders, however, on account of rush of work and load shedding of electricity, his Stenographer could not type the orders/judgments. Subsequently, an Inquiry Officer was appointed. He conducted an inquiry against the appellant and submitted his report on 22.06.2010. The Inquiry Officer found that the charge of misconduct could not be proved against the Appellant. However, the second charge namely inefficiency stood established. The Inquiry Officer observed that the record, as well as, statement of the then District & Sessions Judge, Faisalabad under whom the appellant was performing services indicated that the Appellant was an honest Judicial Officer. He also noted in his report that the Appellant had tendered an apology praying that his lapse be condoned. The Inquiry Officer therefore, observed as follows:--

"Now the question arises as to what quantum of punishment would commensurate with the gravity of guilt/lapse of the Officer complained against. I may mention here that Officer complained against has tendered apology and has also stated that his lapse may be condoned. He has also assured to be more vigilant in future. This shows that Officer complained against has intention and commitment to ameliorate himself, it was the first complaint of this nature against the Officer complained against. The Officer complained against [sic] is a young Judicial Officer. He should be given opportunity to improve himself. He has excelled in disposal of cases as well. Therefore, while taking a lenient view, I will propose to impose minor penalty of `CENSURE' upon the Officer complained against."

It is obvious that the Inquiry Officer considered all material facts, circumstances and relevant record. After due application of mind, he considered it appropriate to take a lenient view by recommending imposition of minor penalty of Censure upon the Appellant.

1. The recommendation of the Inquiry Officer was sent to the Lahore High Court. However, vide Show Cause Notice dated 19.07.2010, the Appellant was directed to explain why the penalty of Censure recommended against him may not be enhanced.

2. The Appellant again filed his reply to the Show Cause Notice. He was granted personal hearing by a "Hearing Judge" of the High Court. The Hearing Judge recommended imposition of major penalty against the Appellant. The recommendation of the learned Hearing Judge placed before the Hon'ble Members of the Administration Committee ("A.C.") of the High Court. Vide order dated 25.10.2010 the A.C. imposed major penalty against the Appellant and he was removed from service with immediate effect.

3. The learned counsel for the appellant submits that the Appellant has an unblemished service record. Even according to the observations made by the Inquiry Officer, who had obtained first hand information about the personal conduct and professional performance of the Appellant, he had 10 years of untainted reputation. He further submits that the penalty awarded to the Appellant is disproportionate to the charge. He adds that there is nothing on record that can even remotely establish that the Appellant is inefficient. He finally maintains that there is no finding in the report of Inquiry Officer, which could have furnished basis for a legally sustainable enhancement of penalty by the Hearing Judge.

4. The learned counsel for the Respondent, on the other hand, has defended the impugned order dated 25.10.2010. He submits that the Appellant had admitted the charge of inefficiency. He, therefore, argues that the learned Hearing Judge and later on the A.C. was justified in enhancing the penalty and rightly removed the Appellant from service.

5. We have heard learned counsel for the parties and gone through the record.

6. At the very outset, we have observed that the charge of misconduct has nowhere been proved. There is not an iota of evidence on record that Appellant was either dishonest or had committed any act which fell within the definition of misconduct.

7. As far as, the allegation of inefficiency is concerned, after perusal of the Report of the Inquiry Officer, we find that the allegation against the Appellant was that he had 31 judicial files lying in the cupboard of his Chamber. However, the veracity of the defence taken by him that all 31 judicial files did not relate to matters in which final judgments had been announced and that a number of short orders had been dictated in Court but could not be typed was not deeply probed or out rightly rejected by the Inquiry Officer. It is further apparent from the record that all 31 files were not individually examined by the Inquiry Officer. However, from a perusal of the various replies to the show cause notice filed by the Appellant from time to time, it is apparent that some orders passed by the Appellant, despite being announced in Court, were not typed and remained unsigned. As a judicial officer, it was the Appellant's duty to take steps to ensure that the said situation was remedied. We have not found anything in the record that may show that the Appellant made any effort to remedy the situation and acted carelessly in this regard. The Inquiry Officer was therefore, justified in finding some degree of inefficiency on the part of the Appellant to justify a recommendation to impose minor penalty of Censure.

8. The main question for determination before us is, whether the facts and circumstances of the case justify enhancement of the minor penalty of Censure to a major penalty of removal from service.

9. "Major Penalty" as the term suggests is a serious and extreme punishment. In the context of service laws as in the instant case, it could mean the end of a person's career. Such penalty cannot be imposed lightly and without proof of serious allegations. Even where there is a charge of inefficiency, such inefficiency must be of a lasting character. A single slip or lapse on the part of a government servant would not justify inference of his being inefficient. Further, the punishment awarded must be proportionate to and commensurate with the magnitude of the offence. In A.U. Musarrat v. Government of West Pakistan (PLD 1977 SC 24), the Hon'ble Supreme Court of Pakistan examined this question and held:

"A Government servant before being visited with penalty prescribed under law must be found inefficient and that such inefficiency is of a lasting character and not likely to be got rid of A single slip or error not to be straightaway construed as amounting to inefficiency."

In the Case of M.A. Rehman v. Federation of Pakistan and others (1988 SCMR 691), it was held:

Nothing on record was available to show that past service record of such Government servant revealed instances of inefficient handling of cases--Service Tribunal was not justified on the basis of such a charge to reach a finding that said Government servant was guilty of inefficiency--A single slip or lapse, if any, on the part of a Government servant with a consistently good record would not invariably justify inference of his being inefficient.

In Secretary to Government of the Punjab Food Department, Lahore and another v. Javed Iqbal and others (2006 SCMR 1120), Iftikhar Muhammad Chaudhry J. (now the Hon'ble Chief Justice of Pakistan) writing for Court held:

Charges of guilty of misconduct or corruption were always considered at higher pedestal than the charge of inefficiency--Competent authority had jurisdiction to award any of the punishments mentioned in law to the Government employee but for the purpose of safe administration of justice such punishment should be awarded which is commensurate with the magnitude of the guilt otherwise the law dealing with the subject would lose its efficacy--Civil servants were not guilty of the charge of misconduct or corruption, therefore, extreme penalty of removal from service for the charge of inefficiency or negligence was on higher side."

1. We have also gone through the report submitted by the learned Hearing Judge. We notice that in the last paragraph of his report, the learned Hearing Judge observed that the proposed minor penalty of Censure against the Judicial Officer was insufficient to meet the ends of justice. However no reasons were recorded by the learned Hearing Judge which formed the basis for such conclusion. A perusal of the report of the learned Hearing Judge suggests that it is solely based on the material before and findings recorded by the Inquiry Officer. Further the recommendation of the learned Hearing Judge does not disclose any basis for disagreeing with the recommendations of the Inquiry Officer and arriving at a diametrically different conclusion on the same material.

2. We have already observed that findings of the Inquiry Officer were correct to the extent of supporting the minor penalty of Censure. On re-evaluation of the material available on record and on the basis of law laid down by the Hon'ble Supreme Court of Pakistan we are unable to hold that this material is sufficient to support a recommendation for imposition of major penalty. In addition, we find that imposition of major penalty in the facts and circumstances of this case is disproportionate to the magnitude of the charge.

3. It was observed by the Inquiry Officer that the Appellant had a good service record spanning over ten years of judicial service. There was no charge of dishonesty or corruption and the charge of misconduct was not proved. Further his professional performance in the past was upto the mark. He was charged with inefficiency for the first time in his career. There is no finding on the record that such inefficiency is of a lasting character.

4. After going through the material before us, we do not find this to be a fit case for enhancement of penalty. At the same time as discussed above, there is adequate material on the record to justify and support the recommendation of the Inquiry Officer to the extent of awarding minor penalty of Censure to the Appellant.

5. For the reasons recorded above, this appeal is allowed. The order dated 25.10.2010 passed by the competent Authority is set aside. Consequently, the Appellant is reinstated into service with all back benefits. However, the penalty of Censure recommended by the Inquiry Officer is upheld and shall remain intact.

(R.A.) Appeal allowed

PLJ 2012 Lahore 532

Present: Umar Ata Bandial, J.

WAHEED AHMED and another--Petitioners

versus

EXECUTIVE DISTRICT OFFICER (REVENUE) FAISALABAD and others--Respondents

W.P. No. 4901 of 2009, heard on 21.6.2011.

Constitution of Pakistan, 1973--

----Art. 199--Recruitment Policy, 2004--Scope--Constitutional petition--Candidates for post of patwari in selection process--Merit list was prepared by DRC--Lack of transparency in process of appointments to public posts of patwaris--Right to enter upon any lawful profession or occupation--Validity--Such includes right of a citizen to compete and participate for appointment department or an attached department or autonomous bodies/corporations cannot exercise unless the process of appointment is transparent, fair, just and free from any complaint as to its transparency and fairness--Appointments made to post of patwari were swayed by marks awarded in a subjective interview assessment of candidates which was neither regulated by settled criteria of assessment of candidates nor substantiated by any record of deliberations of DRC for arriving at their decisions--Selection process which was entirely subjective, unguided and undocumented can hardly be fair and transparent and is therefore illegal--Selection process adopted by EDO(R) suffers from arbitrariness, unguided exercise of discretion and absence of record to justify validity of appointments made--High Court was inclined to strike down entire selection process adopted by DRC--Any step would lead to disturbance and uncertainty among may govt. employees because appointments had been made pursuant to Recruitment Policy, 2004--Competition for the posts would not be confined to petitioners but shall be open to public on foregoing criteria--Petition disposed of. [PP. 535, 537 & 538] A, B, C & D

Mr. Khawar Ikram Bhatti, Advocate for Petitioners.

Mr. Zaka-ur-Rehman Awan, Addl. A.-G. alongwith Khalid Mehmood Sheikh, Secretary, BOR, Lahore, Sher Bahadar, Addl. Commissioner Faisalabad and Liaqat Bhatti, Deputy Secretary (R), Raja Tasawar Iqbal, Advocate for Respondents No. 6 to 9.

Ch. Muhammad Rafiq Waraich, Advocate for Respondents No. 6 to 10 and 12 to 16.

Date of hearing: 21.6.2011.

Judgment

The petitioners were candidates for the post of patwari in the selection process that was conducted in the year 2006 by the District Recruitment Committee ("DRC") Faisalabad under the Recruitment Policy, 2004 of the Government of Punjab. The Respondent No. 1 EDOR, Faisalabad was Chairman of the DRC which comprised of five other members drawn from the revenue department. The Respondent No. 1 advertised 17 vacancies of the post of patwari in different Tehsils of District Faisalabad for which interviews were to be held on 25.08.2006. The eligible candidates were duly interviewed and a merit list was prepared by the DRC on 08.12.2006 or thereabouts.

1. The successful candidates notified by the respondents for Tehsil Saddar, Faisalabad comprised of four persons who are impleaded as Respondents No. 6 to 9 herein. Two of the said respondents secured C-grade in matriculation examination whilst the remaining two secured D-grade in the same. Only the Respondents No. 6 and 8 qualified for additional marks for higher qualification. Ironically the Respondent No. 9 who secured the lowest D-grade in his matriculation examination and lacked a higher qualification scored the best of the lot at 36 out of 40 marks in his interview. Likewise the Respondent No. 8 who got a D-grade in matriculation examination, secured an impressive 33 out of 40 marks in his interview. The Respondent No. 7 got C-grade in the board examination but managed to get 34 marks in his interview and Respondent No. 6 having secured C-grade in the board examination and 5 marks for higher qualification succeeded to obtain 31 marks in his interview.

2. On the other hand, both the Petitioners No. 1 and 2 are graduates who secured B-grade in their matric examination and received additional marks for higher qualification managed to score only 15 marks and 12 marks, respectively, in their interviews. The petitioners allege in their petition that marks in the interview stage were allocated arbitrarily and unfairly so that true merit amongst the candidates was ignored, to accommodate favourites.

3. Clearly, on account of close competition in the segment reserved for academic performance of candidates carrying 60% marks, the outcome of the selection process was determined by award of the 40% marks reserved for the interview stage conducted by the DRC. With such a huge weightage given to the interview performance of candidates, it was incumbent upon the respondent DRC authorities to devise a marking criteria and mechanism for the award of interview marks to candidates in order to regulate their discretion. However, when the respondent authorities including Respondent No. 1 Chairman of the DRC who appeared in Court was asked for the record of the interviews conducted by his Committee, he confirmed the position on record that except for the merit list no other material fixing criteria and mechanism of assessment of candidates nor individual mark sheets of candidates was maintained by the members of the DRC nor therefore retained on record.

4. The only available record of the interviews is therefore the merit list which is signed by four members and by a representative of the fifth member of the DRC. The Respondent No. 1 Chairman was asked by the Court as to how he had allocated the 40 marks reserved for the interview stage of candidates in particular what basis of assessment of candidates had been adopted by him. He was silent as no criterion was fixed to test the capability of the candidates for example their personality, character, knowledge, skill or experience which amongst others are ordinarily some of the subjective points addressed in the interview of a candidate. Since no uniform regulation of the discretionary interview marks was adopted by the members of the DRC, it is quite obvious that the entire process of interviews conducted by them was casual, informal, un-structured and personal without any record to show or justify their joint and several opinions.

5. In the foregoing background the learned counsel for the petitioners has stressed the lack of transparency in the impugned process of appointments to public posts of Patwaris. In this regard he has referred to the seminal judgment of the Hon'ble Supreme Court in Mushtaq Ahmad Mohal Vs. Hon'ble Lahore High Court Lahore (1997 SCMR 1043). It is observed therein that the constitutional requirement, inter alia, enshrined in Article 18 of the Constitution enjoins that subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business. This includes the right of a citizen to compete and participate for appointment to a post in any Federal or a Provincial Government department or an attached department or autonomous bodies/corporations etc, on the basis of open competition, which right he cannot exercise unless the process of appointment is transparent, fair, just and free from any complaint as to its transparency and fairness.

6. The essential principle laid down in the said judgment is that all appointments to public offices must be based on transparent competition. In the present case, appointments made to the post of patwari are swayed by marks awarded in a subjective interview assessment of candidates which is neither regulated by settled criteria of assessment of the candidates nor substantiated by any record of deliberations of the DRC for arriving at their decisions. There is accordingly force in the argument that a selection process, which is entirely subjective, unguided and undocumented, can hardly be fair and transparent and is therefore illegal.

7. The utility and limitations of selection interviews have been considered in depth in our neighbouring jurisdiction. The leading judgment in this behalf is Ashok Kumar Yadav and others Vs. State of Haryana and others (AIR 1987 S.C. 454) wherein 22.2% marks reserved for a viva-voce test was determined to be excessive, arbitrary and discriminatory. That case has been followed with approval in Vikram Singh and another vs. The Subordinate Services Selection Board, Haryana and others (AIR 1991 S.C. 1011). The lesson of experience acknowledged in that precedent is that an interview assessment is suitable merely for testing certain subjective features of a candidate's ability and aptitude but it cannot become the exclusive, test for determining his merit. In the foregoing context this Court in Imran Hussain Vs. WAPDA. etc (PLD 2010 Lahore 546) dealt with the validity of selection to public posts made solely on the basis of walk-in interviews and struck down the appointments on the criteria of good governance, transparency and fairness, primarily because the selection process suffered from arbitrariness. The demerits of an interview based selection process noted in the said judgment are given below:

"25. It is settled law that administrative discretion has to be structured, reasoned, rational, logical and objective. One of the ways to arrive at such a structured exercise of discretion is to fashion it on a well-thought out, carefully deliberated objective standard. This helps test various faculties of the interviewee especially those, which the institution concerned requires. The standard can, therefore, cover experience, alertness, initiative. general, aptitude, behavior knowledge, dependability, etc. which form a uniform yardstick; gauge, scale or criteria for the exercise of discretion. Discretion without a uniform yardstick or a formula is a loose jumble of haphazard human subjectivity..."

"26. Good governance and institutional building requires that the requirements, demands and needs of the institution are tailored into the objective criteria/test so that the best suited human resource is selected for the post. The proposed criteria can sub-divide total marks into areas like; experience, skill aptitude, educational background, intellect extra-curricular, personality, ethics, etc so the interviewers have a prefixed format to apply their mind on and disallow unchecked subjectivity from clogging them the minds."

......................

"35. Constitutionally, unlimited and unchecked exercise of discretion is inherently discriminatory. It has no internal check to ensure uniformity and objective application of mind across the board. It, therefore, extends unequal treatment to equals."

1. Just as unguided discretion leads to arbitrariness so do a high percentage of marks reserved for the interview stage in the selection process. The view of this Court expressed in Syed Muhammad Raza Vs. General Manager, WAPDA and others (1994 MLD 1647) sheds light on the damage caused on such account:

"8. The reservation as high as 50% of marks which is likely to affect the entire nature and complexion of the selection has been deprecated and disapproved by this Court in its recent judgment in Writ Petition No. 1488 of 1991, decided on 15.01.1994 in which it has been held that adoption of such a procedure would be unfair, discriminatory and not sustainable. It has been observed that although much can be said for holding selection on the basis of interview but keeping in view the dictates of justice and equality clause in the Constitution the reservation of marks for interview should not be of such a high percentage which could lead to arbitrariness and unfairness which must be avoided. In the present case, injustice done to the petitioner is manifest. He stood first by obtaining 79 marks out of 100 in the written test but was not selected on account of awarding of only 36 marks in the interview. One of the reasons for striking down the selection on the basis of interview is that no record of reasons for awarding marks in the interview is maintained as it is based purely on the subjective assessment by the Selection Committee during the course of which the misuse of powers cannot be ruled out. For this reason also the impugned selection cannot be upheld."

1. Learned Addl. A.G has objected that the present petition filed in 2009 is barred by laches as it challenges a selection process conducted in 2006. Learned counsel for the petitioner has explained that the first petition on the present grievance bearing W.P. No. 13737-2006 was filed by the petitioner timeously. It was decided on 05.07.2007 with a direction of remand to the BOR. The present petition has been filed upon refusal by the Secretary BOR on 04.02.2009 to grant any relief to the petitioners.

2. Learned Addl.A.G. has next objected that the Recruitment Policy, 2004 has been repealed. A fresh policy for appointment of patwaris framed in 2009 has raised the level of minimum qualification to include computer literacy. Therefore the petitioners who lack the said qualification are ineligible to be appointed to the post of patwari under the current scheme. Upon a Court's query learned Addl.A.G. has informed that no recruitment whatsoever has yet been undertaken by the Provincial Government under the new policy of 2009. Infact the said policy has not been enforced by the provincial government. With regard to the criterion of computer literacy, learned Addl.A.G. submits on instructions that no qualification in the subject whether a diploma or a degree, is prescribed for eligibility in the hitherto moribund Recruitment Policy, 2009.

3. The recruitments in dispute before the Court were made in 2006 under the Recruitment Policy, 2004. The petitioners are both graduates and have qualifications well above the matriculation threshold fixed as qualification for eligibility under the recruitment policy of 2009. The criteria of computer literacy is of marginal significance because familiarity with and not a qualification in that skill is required. Given the opportunity and time for preparation, the requisite skill can be picked up swiftly, if it is not already possessed, by the petitioners.

4. In the present case the Court finds that the respondents have not been able to justify the impugned selection process on the touchstone of transparency, good governance and fairness. These are attributes of all lawful executive actions in particular appointments made to public posts. Resultantly, the selection process adopted by the respondents suffers from arbitrariness, unguided exercise of discretion and absence of record to justify the validity of the appointments made. Although in the foregoing circumstances, this Court is inclined to strike down the entire selection process adopted by the DRC, however, learned Addl.A.G. points out that any such step would lead to disturbance and uncertainty among many provincial government employees because thousands of appointments have been made pursuant to the Recruitment Policy, 2004 wherein the same impugned procedure solely of interview assessment has been adopted for selection of candidates as in the present case.

5. He states on instructions that there are three vacant seats of patwari in Tehsil Saddar, District Faisalabad, which were never filled in the selection made in the year 2006. Learned counsel for the petitioners urges that the petitioners should be appointed against the said vacancies. The acceptance of such a prayer would tantamount to aggravating the wrong already committed by the respondents. It is accordingly directed that the remaining vacant seats of patwari shall be filled by open competition based on academic achievement, a written examination comprising not less than 70% marks being counted towards selection. The remaining 30% marks shall be reserved for interview but such marks shall be sub-divided and awarded on the basis of relevant criteria determined with the approval of the Respondent No. 3/SMBR for assessing a candidate's ability and suitability. The above ratio of marks and criteria is laid down upon an appreciation and application of the aforenoted law governing appointments to public posts.

6. In the above context it is further directed that competition for the said posts shall not be confined to the petitioners alone but shall be open to the public on the foregoing criteria. The candidates in the competition shall be assessed on merit including with reference to their computer literacy. In the circumstances of the case, the respondents are directed not to object the petitioners candidacy for being overage in the competition that is to be held.

7. Petition disposed of.

(R.A.) Petition disposed of

PLJ 2012 Lahore 538

Present: Muhammad Farrukh Irfan Khan, J.

FAISAL MEHBOOB KHAN--Petitioner

versus

SECRETARY, GOVERNMENT OF THE PUNJAB, HOME DEPARTMENT, CIVIL SECRETARIAT, LAHORE and another--Respondents

W.P. No. 557 of 2012, decided on 21.2.2012.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Civil servant--Denial regularization of service--Policy for regularization of contractual employees--Petitioner was appointed on contract basis--No criteria such as satisfactory performance for regularization of service of contract employees--Self fabricated transcript of 2nd year degree of B.Sc.--Discrepancy in transcript--Transcript had no value in recruitment process--Department did not take disciplinary action on basis of self fabricated transcript--When petitioner approached High Court for legitimate right for regularization of service, department took somersault--High Court could not overlook self contradictory stance--Validity--If petitioner can continue his service on basis of self fabricated transcript on contract basis then there should be no hurdle for regularization of service of petitioner on basis of same transcript--Colleagues of petitioner who were even juniors to petitioner had been regularized and no criteria of having satisfactory performance before regularizing service which was against principle of equality--Petition was accepted. [Pp. 541 & 542] A & B

PLJ 2009 SC 175 & 2008 CLD 850, rel.

M/s. Mian Bilal Bashir and Raja Tasawar Iqbal, Advocates for Petitioner.

Mr. Ali Hassan, Head of Law Wing Punjab Emergency Service Rescue 1122 for Respondents.

Date of hearing: 21.2.2012.

Order

Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner prays as under:--

"In the light of foregoing submissions, it is most respectfully prayed that writ petition may kindly be accepted and the respondents may kindly be directed to regularize the petitioner against the post of Deputy Director Repair & Maintenance (BPS-18) according to policy of Government of the Punjab.

Any other relief, which this Honourable Court deems fit and proper in the circumstances of the case, be also granted."

1. Learned counsel for the petitioner submits that the respondents invited applications for the various posts including Deputy Director (Repair & Maintenance) (BS-18) through publication in the newspaper; that basic qualification for the post of Deputy Director (Repair & Maintenance) was B.Sc. Engineering (Mechanical or Civil); that the petitioner being eligible applied for the said post and after going through different parlays he was appointed on the said post initially on contract bas basis for a period of five years vide appointment letter dated 15.03.2010; that the Government of the Punjab promulgated a policy for regularization of contractual employees and the respondents also regularized the services of different employees, who are even junior to the petitioner and in this regard a notification dated 16.07.2010 has been issued; that the Respondent No. 2 has not regularized the services of the petitioner without any rhyme or reason: that case of the petitioner is at par to those employees whose services have been regularized. Alleges discrimination.

2. Conversely, learned Law Officer on behalf of the respondents submits that the service of the petitioner was not regularized due to the fact that during the verification process some discrepancy was found in the transcript of 2nd year certificate of the petitioner and the University authorities reported that the said certificate of the petitioner is bogus and self fabricated; that the petitioner maneuvered his appointment on the basis of bogus and self fabricated certificate which is a clear misconduct; that despite this fact the petitioner was informed that if his performance is found satisfactory, his case for regularization shall be forwarded to the concerned forum; that the performance of the petitioner was not upto the desired level and in this regard different warning letters were issued to the petitioner; that during the visit of the Director General it was found that the office of the petitioner was in poor condition, map was not properly overlaid and charpoy was lying in the office which shows level of interest of the petitioner in work and office management.

3. In rebuttal learned counsel for the petitioner submits that the performance of the petitioner during whole service career was excellent which is apparent from the fact that not only Honorarium was awarded to the petitioner by the department but also after the retirement of Chief Engineer charge of the said post was handed over to the petitioner; that there is no criteria such as satisfactory performance for regularization of service of contract employees; that according to the advertisement only requirement for the post was B.Sc. Engineering (Mechanical or Civil) and the degree of the petitioner was duly verified by the HEC that the petitioner applied for the post on the basis of his degree not on the basis of transcripts; that if there was some discrepancy in the transcript that was the fault of the University and the petitioner cannot be penalized on the said basis that neither any site office was constructed nor office furniture was provided to the petitioner and the petitioner is performing his duties in the room of the contractor; that issuance of such like warning shows mala fide on the part of the respondents.

4. I have heard the arguments advanced by learned counsels and perused the record.

5. The petitioner was denied regularization of service on the followings grounds:--

(i) Transcript of 2nd year of B.Sc. Engineering degree of the petitioner was found bogus and self fabricated.

(ii) Performance of the petitioner during the career was not satisfactory and different kind of warnings have been issued to the petitioner.

1. First of all I would like to dilate upon the issue of allegedly self fabricated transcript of 2nd year of the degree of B.Sc. Engineering of the petitioner. Basic qualification for the post of Deputy Director (Repair & Maintenance) as laid down in the advertisement was B.Sc, Engineering (Mechanical or Civil) and it is an admitted fact that the said degree of the petitioner is genuine. Moreover, though there was some discrepancy in the 2nd year transcript of the petitioner yet it is not a disputed fact that even according to the corrected transcript the petitioner had passed all the subjects, therefore, it is beyond comprehension that the petitioner knowingly produced a forged and fabricated transcript in particular when this transcript did not have any value in the recruitment process. Furthermore, the department did not take any disciplinary action against the petitioner on the basis of alleged self fabricated transcript and the petitioner continued to serve but when the petitioner approached this Court for legitimate right of being considered for regularization of service the department took a somersault and came up with the stance that the alleged self fabricated transcript is a hurdle in regularization of service of the petitioner. This Court cannot overlook the self contradictory stance taken and zigzag path followed by the departmental authorities. If the petitioner can continue his service on the basis of alleged self fabricated transcript on contract basis then there should be no hurdle for regularization of the service of the petitioner on the basis of the same transcript.

2. So far as the performance of the petitioner during his career is concerned, undisputedly not only after the retirement of the Chief Engineer charge of the said post was handed over to the petitioner in May, 2011 but was also given authority to exercise the special powers of Chief Engineer and process/pay running bills of the Contractor and Consultants. By handing over such important and crucial tasks the departmental authorities posed faith in the petitioner's abilities to discharge these obligations. Furthermore, due to the excellent performance the department also awarded honorarium to the petitioner during the financial year 2010-2011 which is a proof of his dedication towards the department. Nothing adverse on the service career could be pointed out by the learned Law Officer during the course of arguments and the warning letter dated 02.02.2012 issued to the petitioner is nothing but a crude attempt to malign the petitioner as an inefficient and incapable office, however, only succeeds in proving mala fides on the part of the respondents for more then one reason. The warning was issued to the petitioner on the grounds that during the visit by the Director General the office of the petitioner was in very poor condition, maps were not properly overlaid and a charpoy was lying in the office which reflects his level of interest in the work. In response to this, the petitioner present in the Court submits that neither any office was available on the site nor any staff or office furniture was provided to him and he is running the office in the temporary constructed room of the contractor. The learned Law Officer on behalf of the department present in the Court was unable to controvert this stance of the petitioner. Moreover, the petitioner has filed instant Constitutional petition on 12.01.2012, whereas, the warning letter was issued to him on 02.02.2012 which prima facie leads the Court to the conclusion that the respondents are leaving no stone unturned to come up with reasons to show to the Court that the petitioner does not deserve regularization of service on the basis of poor performance.

3. It is also an admitted fact that the colleagues of the petitioner who are even juniors to the petitioner have been regularized and no criteria of having satisfactory performance was laid down before regularizing their services which is against the principle of equality. In Case reported as Suleman Daud Vs. Lahore Development Authority; through Director General (2008 CLD 850) it has been laid down as under:

"The concept of equality is indeed negation of arbitrariness. Every power has its extend and legal limits. The exercise of such power should be based on fairness, and reasonableness. Persons in similar circumstances should have similar treatment, unless the differentiation is based upon a valid classification, which should not have the taint of arbitrariness that is the hallmark of any ideal dispensation of justice."

1. Act of the respondents is also violative of Article 25 of the Constitution of the Islamic Republic of Pakistan as well as dictum laid down by the Hon'ble Supreme Court of Pakistan in case reported as Mehar Muhammad Nawaz, EX-OG-I Small Business Finance Corporation Multan Vs. Managing Director, Small Business Finance Corporation and 2 others (PLJ 2009 SC 175) wherein it has been held as follows:--

"Equal treatment of all similarly situated is the basic principle on which rests justice under the law. If even handed justice is not administered, it can have many adverse frustration in the social set-up. There can be no denial that social justice is an objective and enshrined in our Constitution."

1. The upshot of the above discussion is that this writ petition stands accepted. Act of the respondents for not regularizing the service of the petitioner is declared malafide, illegal and discriminatory. Respondents are directed to regularize the service of the petitioner from the date when his colleagues were regularized within 30 days from the date hereof.

(R.A.) Petition accepted

PLJ 2012 Lahore 543

Present: Mehmood Maqbool Bajwa, J.

ZAWAR HUSSAIN--Appellant

versus

NAZAR MUHAMMAD MALIK, etc.--Respondents

RSA No. 1 of 2011, heard on 20.9.2011.

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

----Art. 17--Executory contracts of sale--Second agreement to sell was executed at instance endorsing first agreement and acknowledging his liability and extending time for execution due to inability to get property redeemed--Question of maintainability of suit--Suit for declaration assailing legality of both the agreements--Validity--In order to prove execution produced stamp vendor and attesting witness--Registered with sub-registrar--Held: Suggesting proof of execution of matters pertaining to future obligation but nevertheless since there was an admission on part of appellant regarding existence and execution of the agreement, therefore, provisions of Art. 17 of Order 1984, are not attracted to the facts--Agreement was registered with sub-registrar, which fact has not been controverted at instance of appellant, who admitted his appearance before sub-registrar. [P. 549] A

Registration of Agreement--

----It was duty of appellant to prove real intention of parties as alleged by him--Bald statement at instance of appellant deposing that agreement was executed as guarantee by itself is not sufficient to discharge onus of issue with reference to its terms and condition in view of act of registration of agreement and evidence of stamp vender and an attesting witness besides appearance of respondent in witness box. [P. 549] B

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

----Art. 103--Advance plea--Non-applicability--Contradicting terms and conditions of agreement to sell--Brother and father were attested witnesses of agreement to sell but nevertheless father of appellant did not appear as a witness in order to substantiate assertion of appellant--Brother of appellant though entered in witness box but evidence of appellant contradicting terms and conditions of agreement to sell cannot advance the plea of appellant in view of Art. 103 of Q.S.O.--Proviso to provision cannot advance plea of appellant due to its non-applicability. [P. 549] C

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

----S. 100--Amount as per contract was paid in his presence--Advance plea--Argument though canvassed with vehemence regarding misreading and non-reading of evidence in order to cover the case within meaning of S. 100 of CPC cannot advance plea of appellant. [Pp. 549 & 550] D

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

----Art. 17--Execution of agreement to sell--Prove of--According to which matters relating to future and financial obligation are required to be reduced into writing and if reduced in writing, instrument shall be attested by two men and evidence shall be led. [P. 550] E

Agreement to Sell--

----Controversy with reference to execution of second agreement to sell only one witness was produced in order to prove agreement to sell--To prove execution of the agreement though was required to produce both attesting witnesses and in absence of compelling circumstances for non-production of second witness, execution of agreement to sell could not be established in accordance with law. [P. 550] F

Civil Procedure Code, 1908 (V of 1908)—

----S. 100--Second agreement--Question of--Genuineness of first agreement--Admission on part admitting existence and execution of agreement--Terms and conditions of agreement--If second agreement is forged and fabricated, then how it can be presumed that first agreement was genuinely executed at instance of appellant--In order to question genuineness of first agreement for simple reason that there is frank admission on part of appellant admitting existence and execution of agreement but questioning terms and conditions of the agreement and as such onus was shifted upon him to prove it which had failed to substantiate. [P. 550] G

Essence of contract--

----Contents of agreement to sell--Time was essence of contract and failure to perform his part of contract was sufficient to non suit him. [P. 551] H

Mr. Muhammad Mahmood Chaudhri, Advocate for Appellant.

Mr. Sher Zaman, Advocate for Respondents No. 1 to 2.

M/s. Muhammad Khalil Rana and Muhammad Usman Arif, Advocates for Respondent No. 3.

Date of hearing: 20.9.2011.

Judgment

Feeling dis-satisfied with the judgments and decrees dated 3.12.2010 and 26.5.2010 drawn up by the learned Addl. District Judge and learned Civil Judge, Kamalia respectively, the appellant being defendant calls in question the vires of said judgments and decrees, by way of present appeal whereby the suit for specific performance instituted by Respondent No. 1 was decreed.

1. Relevant facts for the disposal of present appeal are that Respondent No. 1 instituted suit for specific performance against the appellant seeking specific performance of executory contracts of sale dated 29.10.2005 duly registered with Sub-Registrar Kamalia on 28.11.2005 and 31.1.2006 allegedly executed by him undertaking to alienate his holding for a consideration of Rs. 12,75,000/-. It is the case of said respondent that the present appellant received Rs.200,000/- at the time of execution of agreement dated 29.10.2005 undertaking to alienate his holding in favour of Respondent No. 1 on 31.12.2005 after redemption of property from Agricultural Development Bank of Pakistan, Kamalia branch (Respondent No. 3). However second agreement to sell was executed on 31.1.2006 at the instance of appellant endorsing first agreement and receiving Rs.50,000/- acknowledging his liability and extending time for its execution due to his inability to get the property redeemed.

2. The suit was contested by the appellant legally as well as on facts raising multiple preliminary objections, questioning the maintainability of the suit. On factual premises though the agreement to sell dated 29.10.2005 was not questioned at the instance of appellant but it was alleged that there was no transaction at all as suggested in the executory contract and the said agreement was executed as guarantee at the instance of appellant because Abdul Hafeez, his brother showed his intention to go to United States of America and the Respondent No. 1 being travel agent agreed to make arrangements for his visa and as such with this mutual understanding the agreement was executed but the Respondent No. 1 though sent his brother to Dubai but could not arrange visa for United States of America and as such after return of his brother, the appellant made protest with Respondent No. 1, who in anticipation instituted suit for specific performance. Execution of agreement dated 31.1.2006 was categorically denied. The suit was instituted on 14.2.2006. The present appellant also instituted suit for declaration assailing the legality of both the agreements on 22.2.2008, which was contested by Respondent No. 1 reiterating his version contained in the plaint as grounds of defence in written statement.

Since common question of fact and law was involved in both the suits, therefore, learned trial Court after consolidating both the suits, cast as many as 13 issues arising out of pleadings of the parties.

After recording evidence produced by adversaries, learned trial Court answered the Issue No. 1 partly in favour of Respondent No. 1 regarding existence, execution, terms and conditions of agreement to sell dated 29.10.2005 but recorded adverse findings with reference to second agreement dated 31.1.2006 and granted decree in favour of Respondent No. 1 subject to payment of balance sale consideration and dismissed the suit of appellant for declaration with consequential relief.

1. Aggrieved by the said judgment and decree, the appellant preferred an appeal against the consolidated judgment and decrees drawn up by the learned trial Court and the learned first appellate Court vide judgment and decree dated 3.12.2010 maintained the findings of learned trial Court on all issues but while answering Issue No. 1, set aside the findings of Court of first instance with reference to non execution of second agreement holding that in view of the evidence led by Respondent No. 1, execution of second agreement to sell dated 31.1.2006 also stands established.

2. Heard adversaries at length and perused the record.

Learned counsel for the appellant assailed the vires of impugned judgments and decrees on multiple grounds contending that since the Respondent No. 1 instituted suit for specific performance, therefore, it was his duty to prove the execution of both the agreements. Submitted that simultaneously the said respondent was obliged to prove the payment of earnest money to the tune of Rs.200,000/- as well as Rs.50,000/-. allegedly paid by him to the appellant respectively in pursuance of both the agreements but failed to prove the same. In order to substantiate the arguments, learned counsel for the appellant while making reference to the evidence adduced by Respondent No. 1, contended with vehemence that the execution of both the agreements could not be established at the instance of Respondent No. 1. Making reference to the contents of agreement to sell dated 29.10.2005 (Exh.P.1) and referring to the evidence of Mubarak Ali (PW.1) it was maintained that though it is a case of Respondent No. 1 that earnest money to the tune of Rs.200,000/- and Rs.50,000/- was paid in presence of witnesses but nevertheless Mubarak Ali, stamp vendor (PW.1) categorically maintained in cross-examination that amount referred to in both the contracts was not paid in his presence. Continuing his arguments, learned counsel for the appellant contended that Respondent No. 1 was also obliged and required to produce receipts to show the payment of Rs.200,000/- as well as Rs.50,000/- but nevertheless nothing was placed on record. With this background it was maintained that finding regarding receipt of Rs.200,000/- recorded by both the Courts below is result of misreading and non-reading of evidence. Further argued that decree for specific performance is a discretionary relief and keeping in view the attending circumstances, the same should not have been granted by both the learned Courts. Making reference to the findings of learned trial Court formulating opinion regarding failure of Respondent No. 1 to prove the execution of second agreement dated 31.1.2006 (Exh.P.2) it was maintained that if the second agreement is result of fraud and forgery, then how presumption can be drawn regarding genuineness of agreement to sell (Exh.P.1). Making reference to the contents of both the contracts, learned counsel for the appellant maintained that since time was essence of contract, therefore, the suit was liable to be dismissed in view of failure of the Respondent No. 1 to perform his part of contract as agreed. Learned counsel for the appellant sought help from the dictums laid down in "SAID AMIN vs. Mst NAYAB and others" (2011 CLC 309), "SHAKEEL AHMED VS. Mst. SHAHEEN KOUSAR" (2010 SCMR 1507), "ZAHID RAHMAN VS. MUHAMMAD ALI ASGHAR RANA" (2007 CLC 1814) and "Mst. SHAHEEN KAUSAR VS. SHAKEEL AHMED" (2005 YLR 1317).

Conversely learned counsel for Respondents No. 1 and 2, while drawing attention of this Court to the order dated 7.1.2011, recorded by this Court maintained that the appeal was not admitted for regular hearing and pre-admission notice was issued, therefore, the arguments canvassed at the instance of appellant on the base of factual premises can not be taken into consideration. Highlighting the scope of Section 100 of The Code of Civil Procedure, 1908 with reference to grounds upon which second appeal can be entertained, learned counsel for Respondents No. 1 and 2 maintained that the argument canvassed at the instance of appellant relates to factual controversy, which stand settled by the judgments and decrees of learned lower Courts and this Court while exercising the powers under Section 100 of The Code of Civil Procedure, 1908, can not examine the finding of facts which are concurrent in nature as the re-appraisal of evidence is not permissible under the said provision of law on the grounds agitated. Help was sought from the ratio expounded in "ABDUL RASHID VS. BASHIRAIN and another" (1996 SCMR 808), "Haji SULTAN AHMAD through Legal Heirs vs. NAEEM RAZA and 6 others" (1996 SCMR 1729) and "PATHANA vs. Mst. WASAI AND ANOTHER" (PLD 1965 Supreme Court 134). Alternatively it was also pleaded that the appellant can not point out that the findings on fact recorded by both the Courts are result of misreading and non-reading of evidence in order to cover the case within the meaning of Section 100 of The Code of Civil Procedure, 1908.

1. Admittedly, the appeal was not admitted for regular hearing and pre admission notice was issued to the adversary. One can not dispute that second appeal is permissible on the following grounds:--

(1) The decision being contrary to law;

(2) The decision being contrary to usage having the force of law;

(3) Failure to determine some material issue of law;

(4) Failure to determine some material issue of usage having the force of law; and

(5) Substantial error or defect in the procedure provided by The Code of Civil Procedure, 1908 or by any other law for the time being in force which may possibly have produced an error or defect in the decision of the case upon the merits.

During the course of arguments, learned counsel for appellant maintained that the findings of both the Courts are result of misreading and non-reading of evidence and as such the judgments and decrees are contrary to law. In view of the matter, it would be desirable to examine the evidence in order to determine whether the judgments of both the Courts are contrary to law falling within the ambit of Section 100 of The Code of Civil Procedure, 1908.

1. Execution of agreement to sell dated 29.10.2005 was not questioned at the instance of appellant but with some reservation and it was maintained that the same was executed as guarantee in view of the undertaking given by the Respondent No. 1 to make arrangement for the visa of brother of appellant for United States of America. Since the execution of agreement (29.10.2005) was not questioned at the instance of appellant and exception has been taken with reference to intention of parties, therefore, the argument canvassed at the instance of appellant regarding failure of Respondent No. 1 to prove the existence and execution of agreement to sell can not advance his plea. Before dealing with the respective contention of appellant, it is desirable to add that Respondent No. 1 in order to prove the execution produced Mubarak Ali stamp vendor (PW.1) and Muhammad Zaman (PW.3) an attesting witness. It is further to be noted that the said agreement (Exh.P.1) was duly registered with the Sub-Registrar, which fact is also not a moot point. Though I am not unmindful of the Article 17 of The Qanoon-e-Shahadat Order, 1984, I suggesting proof of execution of matters pertaining to future obligation but nevertheless since there was an admission on the part of present appellant regarding the existence and execution of said agreement, therefore, the provisions of Article 17 of the said Order, are not attracted to the facts of the case to this extent. The agreement was registered with the Sub-Registrar, which fact has not been controverted at the instance of appellant, who admitted his appearance before the Sub-Registrar. With this background now it was duty of the appellant to prove the real intention of parties as alleged by him. Bald statement at the instance of appellant deposing that the agreement was executed as guarantee by itself is not sufficient to discharge the onus of issue with reference to its terms and condition in view of act of registration of agreement and evidence of Mubarak Ali stamp vendor (PW.1) and Muhammad Zaman attesting witness (PW.3) besides appearance of Respondent No. 1 in witness box. It is to be noted that Hafeez Ullah, brother of appellant as well as Nadir Ali, his father are also attesting witnesses of the said agreement but nevertheless father of appellant did not appear as a witness in order to substantiate the assertion of appellant. Hafeez Ullah brother of appellant though entered in witness box as DW.3 but evidence of appellant, his brother (DW.3) contradicting the terms and conditions of the agreement to sell can not advance the plea of appellant in view of Article 103 of The Qanoon-e-Shahadat Order, 1984. Proviso to the provision can not advance plea of appellant due to its non applicability.

2. The payment of Rs.200,000/- in pursuance of agreement to sell (Exh.P.1) also stand proved in view of the statement of Respondent No. 1 (PW.2) maintaining that the said amount was paid to the appellant in his house in presence of witnesses finding support from the deposition of Muhammad Zaman (PW.3) whose statement is in line with that of Respondent No. 1. While making reference to the agreement (Exh.P.1) it was maintained that amount as per contract was paid at the time of execution of agreement but Mubarik Ali (PW.1) categorically added that earnest money was paid in his presence. It just finds mentioned in agreement (Ex.P.1) that Rs.200,000/- have been received by the appellant in presence of witnesses finding full support from the statement of not only Respondent No. 1 but also from the deposition of Muhammad Zaman (PW.3) maintaining that amount was paid in the house of Respondent No. 1. In view of the matter, argument though canvassed with vehemence regarding misreading and non-reading of evidence in order to cover the case within the meaning of Section 100 of The Code of Civil Procedure, 1908 can not advance plea of appellant.

3. The execution of agreement to sell dated 4.2.2006 (Exh.P.2) was however, questioned at the instance of appellant. In view of the matter, the Respondent No. 1 was obliged and required to prove its existence, execution in accordance with Article 17 of The Qanoon-e-Shahadat Order, 1984, according to which matters relating to future and financial obligation are required to be reduced into a writing, and if reduced in writing, instrument shall be attested by two men and evidence shall be led accordingly. The expression "evidence shall be led accordingly" is of significant, important and vital in order to settle the controversy with reference to the execution of second agreement to sell regarding which there are negative finding by learned trial Court but contrary view was formulated by the learned first appellate Court maintaining that execution of said agreement also stands established. Perusal of the record suggests that the Respondent No. 1 produced only one marginal witness (Muhammad Zaman) (PW.3) in order to prove the execution of said agreement though was required to produce both the attesting witnesses and in the absence of compelling circumstances for non production of second witness, the execution of agreement to sell dated 31.1.2006 could not be established by Respondent No. 1 in accordance with law. The findings of learned first appellate Court with reference to execution of agreement to sell (31.1.2006) (Exh.P.2) can not be endorsed as the said findings are based on inadmissible evidence and as such same are contrary to law. Learned counsel for the appellant referring to the findings of trial Court canvassed argument that if the second agreement dated 31.1.2006 is forged and fabricated, then how it can be presumed that first agreement was genuinely executed at the instance of appellant. The argument canvassed is based on presumption which is not required to be dealt with by this Court within ambit of Section 100 of The Code of Civil Procedure, 1908 but nevertheless this argument too would hardly advance the case of appellant in order to question the genuineness of first agreement for the simple reason that there is frank admission on the part of appellant admitting the existence and execution of said agreement but questioning the terms and conditions of said agreement and as such the onus was shifted upon him to prove it otherwise, which admittedly he failed to substantiate. Even otherwise, distinction has to be made in failure to prove document and declaration of forgery. Failure to prove a document is not sufficient to stamp it as forged. Perusal of para (12) of the judgment of learned trial Court reveals that Respondent No. 1 was non-suited to the extent of this agreement due to his failure to prove the same in accordance with law.

4. Making reference to the contents of agreement to sell dated 31.12.2005 (Exh.P.1) it was maintained that time was essence of contract and failure of the respondent to perform his part of contract was sufficient to non suit him. I have gone through the rule of law enunciated in "ZAHID RAHMAN VS. MUHAMMAD ALI ASGHAR RANA" (2007 CLC 1814) and "Mst. SHAHEEN KAUSAR VS. SHAKEEL AHMED" (2005 YLR 1347) highlighting the yardstick in order to determine whether time can be considered as essence of contract relating to immovable property to which no exception can be taken but nevertheless the rule of law enunciated in the Reports can not advance the plea of appellant for the simple reason that there is a clear stipulation in the agreement (Ex.P.1) that appellant shall alienate the property in favour of Respondent No. 1 up till 31.12.2005 after getting the property redeemed, which undeniably is still under mortgage with bank. Argument canvassed at the instance of appellant on the strength of case law cited in "SAID AMIN vs. Mst. NAYAB and others" (2011 CLC 309) also can not advance plea of appellant to set at naught the judgments because the Respondent No. 1 has proved the execution of agreement to sell dated 28.11.2005 and payment of Rs.200,000/- as earnest money which fact as referred earlier was not partly questioned admitting the execution of said agreement. Argument of learned counsel for the appellant that the Court is not bound to grant relief of specific performance in each and every case because it is lawful to do so as held in "SHAKEEL AHMED VS. Mst. SHAHEEN KOUSAR" (2010 SCMR 1507) though can not be questioned but nevertheless can not advance plea of appellant before this Court while deciding the appeal under Section 100 The Code of Civil Procedure, 1908 on this score alone in the absence of grounds mentioned in Section 100 of The Code of Civil Procedure, 1908.

5. Pursuant to above discussion no exception can be taken to the findings of learned trial Court as well as learned first appellate Court to the extent of existence, execution, terms and condition of agreement to sell dated 28.11.2005 (Exh.P.1) though the findings of learned first appellate Court with reference to execution of agreement to sell dated 31.1.2006 (Ex.P.2) are legally not sustainable.

The findings on other issues are not subject to criticism as the controversy required to be settled was with reference to findings on Issue No. 1.

1. Learned counsel for Respondent No. 3(ADBP. Kamalia) while submitting the arguments maintained that the property subject matter of the suit is mortgaged with the said respondent and as such interest of Respondent No. 3 is required to be protected and safeguarded to which no exception can be taken as the rights to be transferred to Respondent No. 1 shall be subject to the charge on the property in favour of Respondent No. 3.

2. Pursuant to above discussion, findings of learned trial Court as well as learned first appellate Court barring the findings of learned first appellate Court with reference to execution, existence, terms and conditions of second agreement to sell dated 31.1.2006 (Exh.P.2) can not be said to be contrary to law and as such the appeal preferred by appellant having no force is dismissed.

(R.A.) Appeal dismissed

PLJ 2012 Lahore 552

Present: Ijaz-ul-Ahsan, J.

MUHAMMAD ASHRAF HUSSAIN--Petitioner

versus

ACCOUNTANT GENERAL PAKISTAN REVENUE through its Additional Accountant General, (PR), Lahore and 3 others--Respondents

W.P. No. 27028 of 2011, decided on 1.12.2011.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Cheque relating to service benefits was mis-placed by courier service--Application for issuance of duplicate cheque was being not decided--Challenge to--High Court was inclined to issue a direction to decide the application after hearing of the petitioner and all other concerned parties in accordance with law--Petition was disposed of. [Pp. 552 & 553] A

Mr. Tipu Salman Makhdoom, Advocate for Petitioner.

Date of hearing: 1.12.2011.

Order

Submits that cheque issued in favour of the petitioner relating to his service benefits was mis-placed by the courier service. An application has been moved for issuance of duplicate cheque. However, despite lapse of considerable period of time, the application is not being decided, in consequence of which the petitioner has not been able to receive the retirement benefits.

1. After hearing the learned counsel for the petitioner, I am inclined to issue a direction to Respondent No. 3 to decide the application of the petitioner (if pending)) after hearing the petitioner (if necessary) and all other concerned parties in accordance with law. The aforesaid shall be done within a period of two weeks from the date of receipt of certified copy of this order.

2. This petition is disposed of with the above direction.

(R.A.) Petition disposed of

PLJ 2012 Lahore 553

Present: Muhammad Khalid Mehmood Khan, J.

ABID MEHBOOB RANA--Petitioner

versus

G.C. UNIVERSITY FAISALABAD, etc.--Respondents

W.P. NO. 12802 of 2011, decided on 29.7.2011.

Constitution of Pakistan, 1973--

----Art. 199--G.C. University Faisalabad Ordinance, 2002--S. 20(1)--Meeting of Syndicate--Order for delegation of powers for initiation of inquiry--One member of Syndicate should be secretary to Govt. of Pakistan or his nominee not below rank of additional secretary--Validity--Respondent was a retired professor of university of Punjab and could not be termed the nominee of chairman University Grant Commission and as such his participation in the meeting was against Ordinance, 2002--Likewise claimed to be nominee of H.E. department was incompetent in terms of S. 20(1)(ii) which provides that permanent member of Syndicate will be Secretary Education or his nominee not below rank of Addl. Secretary--Without commenting further on merits of case which may prejudice case of either party as inquiry was yet to be completed--Delegation of powers by Syndicate was without lawful authority--Petition was allowed. [P. 555] A & B

Mr. Tippu Salman Makhdoom Advocate for Petitioner.

Date of hearing: 29.7.2011.

Order

Through this constitutional petition, the petitioner has assailed order dated 16.5.2011 passed by Respondent No. 3, whereby the petitioner was suspended, and inquiry was initiated against him in terms of Punjab Employees Efficiency, Discipline & Accountability Act, 2006 (PEEDA Act, 2006). The petitioner claims that he is a Doctor of Philosophy in the subject of Zoology with Post Doctoral research at Muresk institute of Agriculture, Curtin University of Technology, Australia. The petitioner has headed the department of Zology and Dean, Faculty of Sciences & Technology of Respondent No. 1 and also performed his duties as Professor of Zoology, King Saud University Saudi Arabia and also acted as Vice Chancellor of Respondent No. 1. Respondent No. 3 has a personal grievance against petitioner being his competitor, a litigation between petitioner and Respondent No. 3 remain in progress for appointment as Vice Chancellor. Respondent No. 3 was appointed as Vice Chancellor and after his appointment he started to create hurdles in due performance of petitioner's duties. The petitioner claims that impugned order is an outcome of malice and personal grudge of Respondent No. 3 against the petitioner. He challenged the authority of syndicate of Respondent No. 1 and asserts that quorum required for passing of any order or delegation of powers to Respondent No. 3 is without jurisdiction and as such any delegation of authority in favour of Respondent No. 3 is without lawful authority and without jurisdiction.

1. Notices were issued to respondents. The respondents were served and represented by Mr. Ziak-ur-Rehman Addl. Advocate General, Mr. Muhammad Javed Pansota Advocate Malik Saeed Hassan Advocate also marked present on 23.6.2011 on watching brief.

2. This case was fixed for hearing on 22.7.2011 and was adjourned to 28.7.2011 but no one was present on behalf of respondents. Today again none appeared on behalf of respondents and as such they are proceeded against ex-parte.

3. The grievance of petitioner is that he being the employee of Respondent No. 1 could be proceeded in accordance with law. Government College University Faisalabad was established under Ordinance, 2002 (LXX of 2002) and under Section 2(iv) of Ordinance 2002 "Authority means any of the authorities of the university specified in the Ordinance. Section 2(XIX) "Syndicate" means Syndicate of the University.

4. Section 20(1) of the G.C. University Faisalabad, Ordinance 2002 (hereinafter referred to as Ordinance, 2002) provides the formation of Syndicate.

5. Section 20(2) provides the numbers of members to constitute the quorum for a meeting of the Syndicate shall be eight.

6. Section 20(3) shows that members of the syndicate other than ex-officio members, shall hold office for three years.

7. Qualifications of members of syndicate is provided in Section 20 (i) to (Xii).

"Section 21. Powers and duties of the Syndicate.:--

(1) ...........................

(ii) ...........................

(XXVII) delegate any of its powers to an authority or officer or a committee or sub committee; and"

1. The arguments of learned counsel for petitioner is that very meeting of Syndicate dated 14.5.2011 is illegal due to insufficient quorum and as such order for delegation of powers to Respondent No. 3 is without lawful authority and as such the impugned order is void ab-initio.

2. 25th Meeting of Syndicates, G.C University, Faisalabad was held on 14.5.2011 proceedings of which are available at page-No. 66 of the petition. In this meeting Syndicate has delegated powers in favour of Respondent No. 3 for initiation of inquiry and taking other actions against petitioner. Minutes of meeting shows that 9 persons were in attendance on 14.5.2011. Member at Sr. No. 2 is Prof. Dr. Ch. Jamil Anwar, the alleged nominee of Higher Education Commission, Islamabad, member at Sr. No. 8 is alleged nominee of Higher Education Department, Government of the Punjab, Lahore and member at Sr. No. 9 Muhammad Akram is Registrar, GC University, Faisalabad.

3. Person at Sr. No. 9 is not the part of meeting. 8 members shown to attend the meeting under Section 20-1 (v) of the Ordinance 2002. One member of Syndicate should be Secretary to Government of the Punjab, Finance Department or his nominee not below the rank of additional Secretary whereas member mentioned at Sr. No. 2 Professor Dr. Ch. Jamil Anwar is a retired Professor of University of Punjab and could not be termed the nominee of Chairman University Grant Commission, Islamabad and as such his participation in the meeting is against Ordinance, 2002. Likewise Rana Munawar Hussain claimed to be nominee of Higher Education Department, Government of the Punjab, Lahore is incompetent in terms of Section 20-1(ii) of the Ordinance, 2002 which provides that permanent member of Syndicate will be Secretary Education Department or his nominee not below the rank of Additional Secretary. Admittedly Rana Munawar Hussain is not Additional Secretary or equal to this rank and as such the composition of committee of Syndicate as per Section 20(4), is prima-facie not according to Ordinance, 2002 and quorum for convening the meeting was in attendance.

4. Without commenting further on the merits of case which may prejudice the case of either party as inquiry is yet to be completed, it is opined that delegation of powers by Syndicate on 14.5.2011 to Respondent No. 3 is without lawful authority, consequent upon order dated 16.5.2011 has become without lawful authority and of no legal effect.

5. Respondent No. 1, however, will remain within his rights to initiate fresh inquiry against petitioner in accordance with law of the alleged acts if he thinks fit in the circumstances of the case.

6. This order will not be termed as exoneration of petitioner from the charges which has to be thrashed out by the competent authority after completing the inquiry. In case University decides to initiate fresh proceedings against petitioner, Respondent No. 1 will convene legal meeting of Syndicate before taking any action and petitioner will be allowed to raise all legal objections available to him in accordance with law during the conduct of inquiry.

7. In view of above, the impugned order is declared without lawful authority and petition is allowed.

8. There is no order as to costs.

(R.A.) Petition allowed

PLJ 2012 Lahore 556 [Multan Bench Multan]

Present: Ch. Muhammad Younis, J.

NISAR AHMED and 3 others--Petitioners

versus

DEPUTY DISTRICT OFFICER (R)/ADMINITRATOR TMA DUNYAPUR, DISTRICT LODHRAN and 3 others--Respondents

W.P. No. 4119 of 2010, decided on 11.8.2011.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--No land of road was available for transfer--Demarcation was carried out after demarcation the encroachment if any were removed and suit was dismissed as withdrawn--Validity--Moreover in allotment/transfer order no khasra number was mentioned and no such description was given to establish that the shops were situated in Khasra number wherein road was situated--It involved factual controversy requiring evidence to be recorded--Such an exercise could only be undertaken by Civil Court--Factual controversy cannot be resolved by invoking constitutional jurisdiction u/Art. 199 of Constitution--No justification to restrain from construction of road for welfare and utility of general public who were suffering just due to encroachment of petitioners--Petition was dismissed. [P. 558] A

Mr. Muhammad Khalid Ashraf Khan, Advocate for Petitioners.

Mr. Tariq Nadeem and Malik Muhammad Latif Khokhar, Advocates for Respondent No. 1.

Date of hearing: 11.8.2011.

Order

Learned counsel for the petitioners contends that the petitioners are in possession of their properties situated at Railway Road Dinpur since long. They got allotted as well as purchased the said properties through allotment orders/registered sale-deeds whereas the respondents intend to demolish their construction. In 1978 a suit was filed against the respondents and demarcation was carried out after demarcation the encroachment if any were removed and the suit was dismissed as withdrawn. The properties of the petitioners have not been acquired for any public purpose so they cannot be deprived of the same unlawfully.

1. The learned counsel for the respondents vehemently opposed the writ petition and argued that the petitioners are encroachers. Due to their encroachment the construction of the road has been stuck up at the spot. As per Register Haqdaran Zamin for the year 1964-65, Khasra No. 1166 was the property of Central Government shown as road. The width of the road is 110 feet from Kazmi Chowk to Dokota road whereas the width of the road in front of the shops of the petitioners is about 50 feet. The remaining area of the road has been encroached by them so they are not entitled to the relief claimed. Moreover, the respondents have transferred an amount of Rs.29,05,206/- to PTCL and Rs.19,03,750/- to MEPCO for removing of PTCL and electric poles from the alignment of the road. Due to the encroachment of the petitioners the construction of the road is stuck up and the general public is suffering a lot due to the illegal act of the petitioners. The respondents have no concern with the state land. Even otherwise the issue relates to factual controversy which could not be resolved in writ petition. The learned counsel for the respondents has referred to 2011 SCMR 279 (Anjuman Fruit Arhtian and others versus Deputy Commissioner, Faisalabad and others) and 2004 SCMR 604 (Nemat Ali and another versus Malik Habib Ullah and others) and maintained that the question of fact could not be decided in constitutional jurisdiction.

2. I have considered the arguments advance from both the sides and have scanned the record.

3. A perusal of the site-plan placed on the record shows that the petitioner have encroached upon the land of the road and according to the respondents it is not the land which was allotted to them. No land of the road was ever available for transfer. A civil suit had already been filed in 1978 and demarcation had been made. Several persons including some of the petitioners were found to have encroached upon the land of the road. The encroachers themselves removed the encroachments except the present petitioners. Allotment of land to them in the middle of the road does not sound to the reason. The civil suit had been dismissed as withdrawn in 1984. Moreover in the allotment/transfer order no khasra number is mentioned and no such description is given to establish that the said shops were situated in the khasra number wherein the road is situated. It involves factual controversy requiring evidence to be recorded. Such an exercise could only be undertaken by the Civil Court. The factual controversy cannot be resolved by invoking the constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 in writ petition. In these circumstances there is no justification to restrain the respondents from construction of road for the welfare and utility of the general public who are suffering just due to the encroachment of the petitioners. So the writ petition along with the CM. is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2012 Lahore 558

Present: Mehmood Maqbool Bajwa, J.

AMAN ULLAH--Petitioner

versus

S.H.O. etc.--Respondents

W.P. No. 7024 of 2011, decided on 30.6.2011.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 302 & 109--Pakistan Army Act, 1952, S. 94--Criminal Procedure Code, (V of 1898), S. 549--Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979), S. 10(2)--Accused was an army personnel was tried and convicted by ordinary Criminal Court--Being army personnel was required to be tried by Court Martial and not by ordinary Criminal Court--Proposition of law--Validity--When army personnel has committed a civil offence, trial Courts were required to send reference u/S. 549, Cr.P.C. r/w. S. 94 of Pakistan Army Act, 1952 and if prescribed officer formulates opinion institution of proceedings before Court Martial, then ordinary criminal Court would not be competent to try such army individual--Reference sent by trial Court was legal compulsion within meaning of S. 549, Cr.P.C. r/w S. 94 of Act, 1952 and in view of decision of prescribed officer, order separating the trial was legally justified and as such petition being devoid of force was dismissed. [Pp. 561 & 5621] A

Mr. Imtiaz Hussain Khan Baluch, Advocate for Petitioner.

Rana Shamshad Khan, AAG for Respondents.

Date of hearing: 30.6.2011.

Order

Legality and validity of order dated 11.1.2011 recorded by learned Sessions Judge, Khushab has been called in question by the petitioner being complainant of case FIR No. 50 of 2010 registered under Section 302 read with Section 109 of The Pakistan Penal Code, 1860, whereby case of Abid Hussain, Respondent No. 2, nominated accused was separated being army personnel in view of intimation sent to the learned trial Court vide Letter No. Tel.GHQ.30425, KCP/16/10/PS-2(A) dated 14.12.2010 by the competent Authority showing intention to try the said accused by the Court Martial.

1. Heard.

Learned counsel for the petitioner while placing reliance upon Letter No. Tel. MIL. 2153, 4501/11/R/A/4UO27 dated 28 Mar., 2009 argued that as per policy letter, issued at the instance of Chief of Staff, Pakistan Army as and when case is registered against individual on leave, his custody be handed over to civil police/Court, whenever asked and as such reference sent by learned Sessions Judge, Khushab to Military authorities inquiring the choice with reference to forum of trial and later on vide impugned order issuing direction to local police to submit challan against Respondent No. 2 before Military authorities is legally not sustainable. Seeking help from the Ratio of "Abdur Rashid vs The State" (PLD 1986 Federal Shariat Court 290), the learned counsel for the petitioner went on saying that Respondent No. 2 though army personnel can not be tried by military Court.

The learned AAG while defending the impugned order maintained that since Respondent No. 2 is an army personnel, therefore, the learned trial Court rightly made reference to the military authority in order to know choice of competent authority. Further argued that policy letter referred to can not over ride the provisions of the Pakistan Army Act, 1952, Act XXXIX of 1952. (Herein after called Act)

1. The Respondent No. 2 is an army personnel and as such is subject to the provisions of The Army Act, 1952, in view of Section 2 of the Act:

Section 8 (11) of the Act defines "offence" which means any act or omission punishable under the Act and includes a civil offence as defined in the Act itself which expression has been defind Section 2(3) which reads as follow:--

"Civil offence" means an offence which, if committed in Pakistan, would be triable by a criminal Court."

Perusal of the scheme of Act suggests that offences have been classified into two categories with reference to person subject of the Act. Chapter V of the Act (Part II) deals with different kinds of offences providing punishment in Chapter VI (Part II). Classification of offences have been made with reference to forum of trial.

1. Section 59 (1) of the Act (Part II) provides that any person subject to the Army Act, 1952 who commits civil offence shall be guilty of offence under the Act but subject to the provision of sub-section (2). Since Respondent No. 2 is on active service, therefore, offence of murder though civil offence shall be treated as an offence under the Army Act, 1952. Though all the offences provided in Chapter V are triable by Courts Martial but an exception has been provided with reference to civil offences as envisaged by Section 94 of The Act, according to which concurrent jurisdiction has been vested in criminal Court and Court martial in which eventuality, it shall be in the discretion of the prescribed officer to decide before which Court the proceedings shall be instituted and if that officer decides that accused shall be tried before a Court martial, then the accused shall be detained in military custody.

The position which emerges from the examination of above referred-provision is that Court Martial and criminal Court got concurrent jurisdiction in respect of civil offences. Section 94 of the Act provides mechanism in order to confer jurisdiction upon either Court. Use of expression "It shall be in the discretion of the prescribed officer to decide before which Court the proceedings shall be instituted" clearly suggests that it is for the Army authority to determine the forum of trial and not by ordinary criminal Court. In view of the matter, reference sent by learned trial Court to the JAG Branch of Pakistan Army, the reference of which has been made in the order dated 3.12.2010 is hardly subject to any exception since it was a legal compulsion and in view of intimation sent by the JAG Branch, proceedings have to be instituted in Court Martial in accordance with Section 94 of The Pakistan Army Act, 1952.

With this legal background, now the instruction/policy letter relied upon at the instance of petitioner is examined. Para (2) of letter Tel. MIL. 2153, 4501/11/R/A/4UO27 dated 28 Mar. 2009, which is relevant is re-produced for ready reference.

"2. It is once again reiterated that any indl who cmt offn during leave and FIR is regd against them be handed over to civ police whenever asked by civ police/Court."

1. The learned counsel for the petitioner contended with vehemence that in view of the instructions trial has to be conducted by ordinary criminal Court. Reliance upon instruction, if any, at the stance of petitioner is misconceived for two told reasons.

Firstly, instructions, if any, can not override the provisions of Section 94 of The Army Act, 1952 explaining the procedure in an unambiguous manner. Secondly, the instructions by no stretch of imagination suggest ouster of jurisdiction of Court Martial.

Perusal of Para (2) re-produced clearly suggests that direction has been issued to handover custody of army individual whenever asked by civil police/Court. Admittedly, it is not the case of the petitioner that either local police or Court required the custody of Respondent No. 2 for trial. Rather the learned trial Court itself sent reference to the competent authority to show intention about forum of trial which is in accord with Section 94 of The Act.

Reference sent by learned trial Court was also in consonance with the provision of Section 549 of The Code of Criminal Procedure, 1898.

1. I have gone through the Rule of law enunciated in "Abdur Rashid vs The State" (PLD 1986 Federal Shariat Court 290) relied upon by learned counsel for the petitioner, perusal of the facts of report suggests that appellant who was an army personnel was tried and convicted by ordinary Criminal Court under Article 10(2) of The Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979). One of the plea agitated at the instance of appellant while pleading non-compliance of the provisions of Section 94 of The Pakistan Army Act, 1952 and Section 549 of The Code of Criminal Procedure, 1898 was that he being army personnel was required to be tried by Court Martial and not by ordinary Criminal Court proposition of law in the peculiar circumstances of the case though can not be questioned but can not advance plea of petitioner due to distinguishable facts.

Repelling the argument and making reference to Articles 3 and 20 of Ordinance, (VII of 1979), it was held that the provisions of ordinance got over riding effects on all other laws including the Army Act and application of the Code of Criminal Procedure is subject to Article 20 of the Ordinance, VII of 1979.

1. Pursuant to above discussion, settled legal position is that as and when army personnel has committed a "civil offence", the trial Court or the Magistrate are required to send reference under Section 549 of The Code of Criminal Procedure, 1898 read with Section 94 of The Pakistan Army Act, 1952 and if the prescribed officer formulates opinion institution of proceedings before a Court Martial, then ordinary criminal Court would not be competent to try such army individual. Reference sent by learned trial Court was legal compulsion within the meaning of Section 549 of The Code of Criminal Procedure, 1898 read with Section 94 of The Pakistan Army Act, 1952 and in view of decision of the prescribed officer, order impugned separating the trial of Respondent No. 2 is legally justified and as such petition being devoid of force is dismissed.

(R.A.) Petition dismissed

PLJ 2012 Lahore 562

Present: Ijaz Ahmed Chaudhry, C.J.

QAISAR IQBAL & 6 others--Petitioners

versus

PROVINCE OF PUNJAB through Secretary Agriculture (Marketing Wing), Lahore and 6 others--Respondents

W.P. No. 9482 of 2011, decided on 24.6.2011.

Punjab Agricultural Produce Market General, 1979--

----R. 67--Constitution of Pakistan, 1973, Art. 199--Constitution petition--Fruit and vegetable market under private sector--After grant of final permission, competent authority has power to withdraw same in event of violation of terms and conditions by stakeholders--Petitioners had failed to abide by terms and conditions on basis whereof final permission was granted--Basic concept behind such policy was to launch a healthy competition between government and private sector--Validity--Petitioners were bound to get approved map of market from agricultural department but till date they had not get approved site-plan of market--Management Committee was required to formulate bye-laws but management committee had paid no heed to important aspect--Govt. was left with no option but to recall final permission granted for establishment of fruit and vegetable market under private sector--Persons who were holding private fruit & Vegetable market had established their cold storages and used to store Fruits & Vegetables in storage after purchasing from farmers--They used to sell same on a very high price which proved to be main cause for hoarding of eatables--Spirit of policy under which final permission was granted for establishment of fruit & vegetable market was jolted down--Only few persons who were holding shops in fruit & vegetable market were accommodated whereas majority was comprising of persons who had gloves in hands with management committee to create hegemony--High Court has no hesitation to hold that petitioners were involved in such activities which were totally against spirit of policy under which fruit & vegetable market in private sector was established--Petitioners had failed to fulfill terms and conditions whereupon they were granted final permission for establishment of fruit & vegetable market under private sector and Govt. of Punjab had rightly withdrawn the permission--Petition was dismissed. [Pp. 566, 567 & 568] A, B, C, D, E, F & G

Mr. Tahir Munir Malik, Advocate for Petitioner.

Ch. Muhammad Hanif Khatana, Additional Advocate General with Irshad Ali, Law Officer, Amir Hussain EADA (E & M) and Qazi Ghafoor Lak, Secretary Market Committee Sialkot for Respondent.

Mr. Nadeem Yousaf Rana, Advocate for Respondent No. 4.

Date of hearing: 2.6.2011.

Order

Through this petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have challenged the impugned order dated 28.02.2011 passed by Special Secretary Agriculture, Marketing Department, Government of Punjab, Lahore, whereby he withdrew the final permission accorded for establishment of Fruit and Vegetable market under private sector at Sialkot

1. Brief facts of the case are that Government of Punjab vide Notification No. SO(E) 1-23/2008 dated 9.1.2008, provisionally granted permission to private sector/individuals in all over the Punjab to establish Fruit and Vegetable markets for a healthy competition between the private and Government sector and to modernize the marketing of agricultural produce. The final permission was accorded vide Notification No. SO(E) 1-23/2008 dated 27.6.2009. Some unscrupulous persons who were not happy with the entry of new persons in the field of agriculture marketing, filed Writ Petition No. 8009 of 2009 before this Court which was dismissed vide order dated 26.5.2009 against which the said persons filed Civil Petition for Leave to Appeal before the Hon'ble Supreme Court which was ultimately withdrawn on 22.10.2009. Thereafter, the present petitions, alongwith others shifted their business to the private Fruit and Vegetable market and established 42 shops in the Fruit market and 68 shops in the Vegetable market in addition to construction of roads and sewerage etc. after incurring a huge sum. The Market Committee has been receiving market fee from them since then.

2. On 17.10.2009, the Secretary Agriculture, Govt. of Punjab, Lahore (Respondent No. 2) suddenly withdrew the final permission granted for establishment of Fruit and Vegetable market under private sector. The said order was challenged before this Hon'ble Court vide Writ Petition No. 4762 of 2010. The said petition came up for hearing on 21.1.2011 when the same was accepted and the impugned order dated 17.10.2009 was set aside and the matter was remanded back before Secretary Agriculture (Marketing Wing), Lahore/Respondent No. 1, for decision afresh. During post-remand proceedings, instead of holding an inquiry and to pass a detailed order by Respondent No. 2, he referred the matter to Special Secretary, Agricultural Marketing Department, Govt. of the Punjab, Lahore/Respondent No. 3, who though constituted four members committee in black and white but the said committee never visited the site. The said committee submitted its report to Respondent No. 3 purportedly prepared by them after site inspection. On the basis of said report, Respondent No. 3 passed the impugned order dated 28.2.2011; hence this petition.

3. In support of this petition, learned counsel for the petitioner contends that the impugned order is against law and facts; that the report submitted by so-called committee on 15.2.2011 as well as the impugned order passed on the basis thereon are absolutely without jurisdiction; that while accepting the earlier petition filed by the petitioners, this Hon'ble Court was pleased to direct Respondent No. 1 to hold an inquiry and pass a detailed order but instead of complying with the order of this Court in letter and spirit, Respondent No. 1 illegally referred the matter to Respondent No. 3 who passed the impugned order without any jurisdiction; that all the attempts of the illegal committee constituted by Respondent No. 3 were to defend order dated 17.10.2009 passed by Respondent No. 2, thus, Respondent No. 3 illegally made the said report as basis of impugned order; that the report submitted by the four members committee is bereft of any reasoning justifying the impugned order; that Respondent No. 3 illegally held that approved map/site-plan for the private market at Daburji Malhian was not submitted is against the record for the reason that the site-plan submitted by the petitioners and others is pending with the concerned department; that the impugned order has been passed against the universally acknowledged principle of audi alteram partem as neither the petitioners were heard in person nor they were provided any opportunity to produce any material in their defence; that according to Government policy issued on 29.10.2008, a committee was to supervise the development works but instead of constituting such committee, the respondents have proceeded against the petitioners in a total illegal manner; that the reasons advanced for passing the impugned order are totally baseless; that the impugned order also runs contrary to the spirit of Government policy where-under it was decided that there should be a competition between Government and private sector; that Respondent No. 3 while passing the impugned order has not taken into consideration that the fruit and vegetable market being run by the Government sector, despite laps of 32 years, is still shorn of basic necessities whereas the petitioners and others have provided very up-to-date atmosphere to the farmers within a very short span of period; that the impugned order is politically motivated and the same has been passed to safe guard the hegemony established by the political high-ups; that the impugned order has been passed in sheer violation of the rights of the petitioners guaranteed by the Constitution of Islamic Republic of Pakistan, 1973, and that in case the impugned order is not set aside the petitioners are bound to starvation and they would be deprived of the fruits of their investment in the private Fruit and Vegetable market. In addition to oral submissions, learned counsel has also relied upon the cases reported as "Dr. Nighat Bibi v. Secretary, Ministry of Health" (2009 SCMR 775), "Ferozuddin v. Mazhar Hussain Shah" (PLD 2009 Karachi 397), "Makhdoom Muhammad Mukhtar v. Province of Punjab" (PLD 2007 Lahore 61), "Shah Sultan v. Chief Commissioner" (2004 CLC 145), "Ahmed Clinic v. Government of Sindh" (2003 CLC 1196), "Abdul Farid v. N.E.D. University of Engineering" (2001 CLC 347), "Ghulam Abid Khan v. Pakistan (2000 CLC 443), "Samia Rashid v. Vice Chancellor, Azad Jammu and Kashmir University Muzaffarabad" (2000 YLR 1422), "Shah Matloob v. Government of Province of Sindh" (PLD 1993 Karachi 83), "Abdul Rauf and others v. Capital Development Authority Islamabad" (1988 MLD 1523), "Mian Irshad Ali v. Government of Pakistan" (PLD 1975 Lahore 7) and "Mian Fazal Din v. Lahore Improvement Trust Lahore" (PLD 1969 S.C 223).

4. On the other hand, learned Additional Advocate General, assisted by learned counsel for Respondent No. 4, while drawing the attention of this Court to Rule 67 of Punjab Agricultural Produce Market General, 1979, argues that conditions mentioned therein have not been complied with by the petitioners; that even after grant of final permission, the competent authority has the power to withdraw the same in the event of violation of the terms and conditions by the stakeholders; that since the petitioners have failed to abide by the terms and conditions on the basis whereof final permission was granted to them, they have no cheeks to challenge the order passed by Respondent No. 3 after fulfilling all the necessary formalities; that the persons who are holding Fruit and Vegetable market under private sector have built their cold storages and they used to store the fruit and vegetables after purchasing from the agriculturists and thereafter they sell them at a very high price, thus their acts are aimed at to promote hoarding and blackmailing; that even the petitioners have least bother to abide by the undertaking given by them on 12.6.2009 regarding completion of construction work; that the Civil Petition for Leave to Appeal filed in the Hon'ble Supreme Court of Pakistan was withdrawn for the reason that the final permission granted for establishment of Fruit and Vegetable market under private sector stood already withdrawn; that the points raised by learned counsel for the petitioners need recording of evidence and the said procedure cannot be resorted to in this petition and that in case the petition is accepted, the persons due to whom the public-at-large has already suffered a lot, would be encouraged to further blackmail the Government as well as the common men.

5. I have heard the learned counsel for the parties and gone through the documents appended with this petition. During the survey of the documents I have noted that it is third round of litigation viz. in the first round of litigation certain persons challenged establishment of' Fruit and Vegetable market under private sector before this Court by virtue of Writ Petition No. 8009 of 2009 which was dismissed on 26.5.2009 against which the aggrieved persons filed CPLA No. 1170 of 2009 which was ultimately dismissed as withdrawn. In the second round, the final permission granted for establishment of Vegetable and Fruit market under private sector was withdrawn on 17.10.2009 against which the present petitioners filed Writ Petition No. 4762 of 2010 which was accepted and the matter was remanded back to the respondents for decision afresh. Again, by virtue of impugned order, the respondents have again withdrawn the final permission sanctioned for holding of Fruit and Vegetable market under private sector. Thus, in the third round the petitioners have challenged the said order of the respondents in this petition.

6. As per Notification dated 29.10.2008 the government introduced a policy for the establishment of Grain, Fruit & Vegetable Markets through private sector. The basic concept behind this policy was to launch a healthy competition between the government and private sector. According to condition mentioned at serial (i), the petitioners were bound to get approved the map of the market from the agriculture department but till date they have not get approved the site-plan of the market rather their stance is that the matter is pending with the concerned department for approval of map of the market. Likewise, the petitioners were bound to get prepared cost estimate of all the development work from C & W department but the petitioners have also violated the said condition as they have neither got prepared estimate from C & W department nor adhered to the standard prescribed for construction. Similarly, the Management Committee has not performed its duty towards the documents relating to cost estimates, development work, allotment of plots and calculation of price thereof. Moreover, it was incumbent upon the Management Committee to ensure that an agreement between the purchasers of the shops and the said Committee was to be signed but the said Committee has not adhered to the said condition as well. To keep transparency, it was condition precedent for the Management Committee to install weigh-bridge in the market but the said condition has not been fulfilled resulting into loss of National Exchequer as it was not possible for the market committee to assess the real produce reached in the market. Further, to streamline the work of the market, the Management Committee was required to formulate bye-laws but the Management Committee has paid no heed to the said important aspect. In view of these violations, respondents were left with no option but to recall the final permission granted for establishment of Fruit & Vegetable market under the private sector.

7. According to the principle of locus poenitentiae as envisaged under Section 21 of the General Clauses Act, an authority passing an order can recall the same. In the instant case, the competent authority with a view to provide better facilities to the public-at-large and the producers, involved the private sector in the said process. It has come to the surface that the persons who were holding private Fruit & Vegetable market had established their cold storages and used to store the Fruits & Vegetables in the said stores after purchasing from the farmers. Thereafter, they used to sell the same on a very high price which proved to be the main cause for hoarding of the eatables. In this view of the matter, the very spirit of the policy under which the final permission was granted for establishment of Fruit & Vegetable market was jolted down. In the said situation the respondents were justified to recall the permission granted for holding Fruit & Vegetable market.

8. Another important aspect of the matter is that the complaints from the `Phariias' started pouring in regarding the conduct of Management Committee in respect of allotment of shops and their price. The matter went up to the Hon'ble Supreme Court of Pakistan. In a sense, the petitioners and others holding private Fruit & Vegetable market tried to establish their hegemony by keeping the other relating persons aloof. According to the criteria laid down for establishment of Fruit & Vegetable market it was incumbent on the Management Committee to allot 70% shops to the persons who were already dealing with the said business in the Government controlled market but to the utter disregard of the said condition, only few persons who were previously holding shops in the Fruit & Vegetable market were accommodated whereas the majority was comprising of the persons who had gloves in hands with the Management Committee to create hegemony.

9. A perusal of the report of the Committee constituted pursuant to the order passed by this Court, whereby the matter was remanded back to Respondent No. 1 for decision afresh, confirms the fact that petitioners and others were involved in such activities which were repugnant to the basic spirit of the policy under which permission for establishment of Fruit & Vegetable market under private sector was granted. On receipt of the report of the committee constituted by Respondent No. 3, petitioners were twice asked to avail opportunity of personal hearing viz. firstly they were asked to appear before Special Secretary Agriculture Marketing for personal hearing on 19.2.2011 at 9:00 a.m. However, the petitioners opted not to appear before the authority. Just to show his bona fide, Respondent No. 3 again provided him an opportunity of personal hearing on 22.2.2011. On the said date the petitioners did not opt to avail the said opportunity. This being the position, it is not open for the petitioner to argue that they were condemned unheard.

10. The case law cited at bar by learned counsel for the petitioner quite distinguishable due to peculiarity of facts and circumstances of this case and the proposition involved in the said cases.

11. From the discussion made in the fore-going paragraphs, I have no hesitation to hold that the petitioners were involved in such activities which were totally against the spirit of the policy under which Fruit & Vegetable market in the private sector was established. Further, the petitioners and others failed to fulfill the terms and conditions, whereupon they were granted final permission for establishment of Fruit & Vegetable market under private sector and the respondents have rightly withdrawn the said permission. Moreover, the other contentions raised by the petitioners pertain to factual inquiry which proceedings cannot be ventured in this petition. Resultantly, I see no merits in this petition which is accordingly hereby dismissed.

(R.A.) Petition dismissed

PLJ 2012 Lahore 568

Present: Ijaz-ul-Ahsan, J.

MERAJ LIMITED--Petitioner

versus

PROVINCE OF PUNJAB through its Chief Secretary, Goverment of Punjab, Lahore and 4 others--Respondents

W.P. No. 23770 of 2009, decided on 19.3.2012.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Entitlement of award of contract--Matter of blacklisting and refusal to award tender for procurement of fire-trucks--Question of non-renewal of registration of company--Validity--High Court was inclined to refer the matter of renewal of registration of company to province, in view of fact that petitioner had expressed reservations regarding impartiality--Direction was issued to summon entire record relating to renewal of registration of petitioner and appoint an impartial senior officer to decide the matter within a period of 30 days. [P. 576] A

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Award of contract for procurement of fire trucks--Question of--None of bidders was able to demonstrate its equipment--Situation was complicated on account of up-gradation of technical specification of truck chassis--Order was passed considering sensitive nature of contract--Validity--Equipment was required to be procured for use of public emergency service which was in urgent need of equipment to increase its response and ability to conduct emergency firefighting and rescue operations. [P. 577] B

Award of Contract--

----Agreement was back dated in order to take position that restraining order passed by High Court was inapplicable--Agreement was executed on non-judicial stamp paper--Validity--Fact alone was not sufficient to hold that agreement was backdated in order to avoid implications of restraining order passed by High Court--Company had alleged mala fides on part of respondent--Neither particulars nor reasons for such mala fides had been given in petition--Held: Mala fide need to be specifically alleged and onus to prove such mala fides lies heavily on shoulders of the person alleging the same--On basis of record, petitioner had not been able to discharge the onus. [P. 578] C

Award of Contract--

----Tender for award of contract was rejected and fresh bidding was ordered under different specifications--Bid submitted by company was found to be conditional non-compliant and tender was awarded to respondent--Validity--Mere offer by a party does not confer an absolute right for award of a contract--As such relief to award of contract to petitioner cannot be granted. [P. 578] D

2010 SCMR 306 & 2010 CLC 1046, ref.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Award of contract--Bid was non-compliant or price at which trucks were supplied by Government was higher than one offered by petitioner--Price paid lower than price at which petitioner had offered the vehicle--Validity--It would neither serve any useful purpose nor petitioner had been able to make out any ground for High Court to declare contract as null and void. [P. 578] E

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Matter of blacklisting and refusal to award tender for procurement of fire-trucks--Having lowest bid was entitled to award of contract--Question of--Whether or not contract executed was backdated, raise controversial questions of fact which cannot be resolved in exercise of constitutional jurisdiction of High Court as thorough probe and investigation would be needed to settle controversy--Validity--It is well settled by now that superior Court would not involve themselves into investigations of disputes in which questions of fact necessitate a factual probe and recording of evidence--Extra ordinary jurisdiction of High Court is intended primarily for providing expeditious remedy in cases where illegality of the action of executive or other authority can be established without any elaborate inquiry into complicated and disputed facts--Disputed questions of fact decision of which is possible only after collection of evidence can be determined by Courts having plenary jurisdiction in the matter--On such ground a constitutional petition was incompetent. [P. 579] F

2011 SCMR 279, 1986 SCMR 598, 1981 SCMR 291, 1968 SCMR 935, PLD 1970 Dacca 633, 1971 SCMR 697, 1970 SCMR 853, 1969 SCMR 217, 1968 SCMR 880, 1968 SCMR 145 & PLD 1983 SC 280, ref.

Award of Contract--

----Constitutional jurisdiction of High Court--Adequate and efficacious remedies--There is no cavil with proposition that exercise of constitutional jurisdiction of High Court can be declined where petitioner has not exhausted all remedies available to him before filing of constitutional petition--Petitioner had approached High Court without exhausting adequate and efficacious remedies which were available to him. [P. 580] G

1990 PLC 643, 1987 SCMR 810, PLD 1985 Kar. 315, PLD 193 Kar. 76 & PLD 1977 Kar. 714, ref.

Sahibzada Anwar Hameed, Advocate for Petitioner.

Mr. Faisal Zaman Khan, Additional A.G, Punjab for Respondents No. 1 to 3.

Mr. Taffazul H. Rizvi, Advocate for Respondent No. 4.

Mr. Anwar Hussain, Advocate for Respondent No. 5.

Date of hearing: 13.2.2012.

Judgment

The petitioner is a company engaged in the business of manufacture and sale of different types of firefighting equipment and other specialized/allied vehicles. On 3.4.2009, Respondent No. 3 floated a tender for supply of 48 fire trucks. The petitioner participated in the tender by submitting a technical and financial bid. Other companies also submitted bids including Respondents No. 4 and 5. The technical bids were opened on 24.4.2009 in the presence of all participating bidders. The petitioner's technical bid was found compliant. However, before opening of the financial bids, Respondent No. 3 cancelled the biding process and re-tendered the original tender with down graded specifications. In the original tender specifications, the fire pump performance was required to be for multi purposes ranging from low pressure (minimum 3000 LPM at 10 Bar) to high pressure (200 LPM at 40 Bar). The down graded re-tender was for single purpose fire pump (minimum 3000 LPM at 10 Bar). The petitioner participated in the re-tender by submitting technical and financial bids. The technical bid was opened on 12.9.2009. The petitioner's technical bid along with that of other companies was found to be compliant whereafter financial bids were opened on 8.10.2009. The petitioner claims that his financial bid was the lowest and it was entitled to the award of the aforesaid contract.

1. It appears that instead of awarding the contract to the petitioner, the petitioner was called for a meeting of the Standing Purchase Committee for negotiating the price of the tender. The petitioner objected to such meeting being held and wrote letters to various functionaries of the Department as well as the Provincial Government including the Chief Minister and the Chief Secretary, Punjab. While the matter of award of the contract was pending, Respondent No. 3 wrote a letter to the petitioner alleging that an Ariel Platform which is used in firefighting operations and had been supplied by the petitioner to Respondent No. 3, had been found defective, had met with an accident causing serious injuries to the firemen who were operating the platform. It had neither been replaced nor repaired by the petitioner. It had also not paid any compensation to the injured firemen. The respondent alleged that the conduct of the petitioner/Company was unprofessional and unbusiness like and, therefore, it had been decided to blacklist the petitioner. It is alleged that by reason of such blacklisting the petitioner was debarred from winning the contract for supply of 48 fire-trucks or to submit tender for supply of 28 water bouser trucks. It may be pointed out that for the latter contract the petitioner had participated in the process but its bid was not found to be the lowest. The petitioner has not pressed its claim regarding the tender for supply of 24 bouser trucks.

2. The petitioner agitated the matter of blacklisting and refusal to award the tender for procurement of 48 fire-trucks to it and in this regard approached the Chief Minister, Punjab, as well as the Chief Secretary of the Province. However, its efforts did not bear fruit. The petitioner thereafter filed a complaint with the Public Procurement Regulatory Authority (PPRA) which probed the matter and was informed by Respondent No. 3 that the Standing Purchase Committee of Respondent No. 3 had decided to award the contract to the bidder who had offered the lowest price. Therefore PPRA declined to grant any relief.

3. The petitioner, inter alia, has three main grievances against the respondents:--

(i) blacklisting of the petitioner by Respondent No. 3;

(ii) Award of contract for supply of 48 Fire Trucks to Respondent No. 4 by Respondent No. 3, and

(iii) Non-renewal of the license of the petitioner.

1. The learned counsel for the petitioner submits that Respondent No. 3 had no lawful authority to cancel the tender. The said action of Respondent No. 3 was patently mala fide and detrimental to the interests of the petitioner. He further submits that Respondent No. 3 cancelled the original tender and ordered retendering without lawful reason which resulted in financial loss to the petitioner. He maintains that it was the duty of Respondent No. 3 to adopt a transparent procedure prescribed by the rules and the law for acceptance of bids which was not followed by Respondent No. 3. In this regard the learned counsel alleges violation of the Punjab Purchase Manual and the Public Procurement Regulatory Authority Ordinance, 2002.

2. The learned counsel for the petitioner has vehemently argued that the order of blacklisting the petitioner was tainted with mala fide. The petitioner was condemned unheard and the principle of audi alterm partem was violated. He argues that the petitioner/Company was blacklisted illegally to disentitle the petitioner from the award of contract. He therefore submits that a conscious effort was made by Respondent No. 3 to prevent the petitioner from participating in or winning the contracts for supply of equipment to the said respondent. He argues that by reason of blacklisting of the petitioner, its reputation and good will had suffered on account of bias and mala fide on the part of Respondent No. 3. He maintains that the matter of renewal of the petitioner's registration is also being lingered on without justification in order to keep the petitioner under pressure and to prevent the petitioner from participating in other tenders of the Government of the Punjab. The petitioner has prayed that the impugned letter dated 21.10.2009 whereby the petitioner was blacklisted be declared to be without lawful authority. The petitioner also prays that Respondent No. 3 be restrained from awarding contracts for supply of 48 fire-trucks to Respondent No. 4 and 24 water bouser trucks to Respondent No. 5.

3. The respondents were summoned and were represented through counsels. They also filed their respective reports and parawise comments. They have taken the stance that the petitioner has approached this Court with uncleaned hands and has concealed the main reason for its blacklisting. It has been pointed out that the petitioner supplied defective equipment which had not performed in a satisfactory manner. The Ariel Platform supplied by the petitioner had design defects, had malfunctioned and caused serious injuries to the rescuers who were operating the said equipment. The petitioner was given repeated opportunities and a period of almost one year to rectify the design defect in the said equipment. However, on account of failure to do so, Respondent No. 3 was left with no other option but to blacklist the petitioner. It has further been pointed out by the learned counsel for Respondent No. 3 that the petitioner has a history of delayed supply of goods which has consistently resulted in serious operational difficulties for Respondent No. 3.

4. It is argued that the reason for rejection of the petitioner's bid was that its financial bid was conditional in nature. Therefore, being contrary to the terms and conditions of the bid and violative of the Purchase Manual of the Government of Punjab, the same was rejected. As such the question of negotiations with the petitioner did not arise. The learned counsel for Respondent No. 3 has pointed out that 48 fire-trucks which were the subject matter of the tender, were procured at a price far lower than the one offered by the petitioner. It is argued that Respondent No. 3 is a rescue and emergency service and cannot take the risk of procuring equipment from a firm which has a history of unsatisfactory performance in previous contracts.

5. The learned counsel for the Respondent No. 3 has pointed out that none of the-platforms which had initially been offered under the first bid were technically compliant. Even after three technical meeting and lapse of considerable time, the bidders including the petitioner, failed to demonstrate their equipment. Moreover, the sudden upgradation of truck chassis by S&GAD from 16000 to 18000 GVW created an additional requirement. After a series of meetings of the Technical Committee, the vendors were unable to provide proper details and test of advanced fire pumps as per required specifications. In addition, the issue of sudden upgradation of ISUZU FDR truck chassis was unresolved as the same was standardized by the Inter-Department Standardized Committee of the S&GAD, Punjab. Therefore, the Technical Committee was left with no choice but to scrap the tender and retender with revised specifications. Additionally, it is pointed out that once the technical bids had been rejected and the process scrapped, there was no occasion for opening of financial bids in the first round of bidding. It has specifically been denied that the first round of bidding was scrapped to deprive the petitioner of a chance to get the contract.

6. The learned counsel for the Respondent No. 3 maintains that the offer of the petitioner in the second round of bidding was contrary to the provisions of Purchase Manual of the Government of Punjab in terms of Para 99 of Annex XX(3) with respect to price fluctuation on account of fluctuation in the currency exchange rate while the price quoted by the petitioner was variable in case of exchange rate fluctuation; whereas the other bids did not place any such condition. The bid of the petitioner being conditional was, therefore, not liable to be considered. It has finally been argued that the procurement undertaken by the respondent is at the lowest available price in strict compliance of Punjab Emergency Service Rules, 2007 and the Purchase Manual of the Government of the Punjab.

7. I have heard the learned counsels for the parties and gone through the record with their assistance.

8. As discussed above, there are three main grievances of the petitioner, namely:--

(i) blacklisting of the petitioner company;

(ii) failure on the part of the Respondents No. 1 to 3 to award the contract for supply of 48 fire-trucks to the petitioner, and

(iii) non-renewal of the license of the petitioner.

1. In the first instance, I propose to take up the issue of blacklisting. It appears that the main ground on the basis of which the petitioner was blacklisted was that it had supplied an Ariel Platform which malfunctioned. Despite efforts on the part of Respondents No. 1 to 3 to persuade the petitioner to rectify the defect and make the equipment functional, the petitioner allegedly failed to do so. The record indicates that before purchase of the Ariel Platform, representatives of the respondents went to France at the expense of the petitioner/ Company. They inspected the equipment at the manufacturing facility of EGI, (a French Company, which had manufactured the platform in question) and approved the same. On receipt of their approval, the petitioner in its capacity as an importer procured the equipment and informed the respondents vide letter dated 28.12.2006 that the equipment had been imported and it may be inspected at Karachi. Vide letter dated 12.1.2007, the petitioner requested the respondents to issue work order so that the equipment could be supplied. Vide letter dated 7.5.2007, the work order was issued. In terms of the work order, the petitioner was required to issue a warranty for a period of one year starting from the date of delivery/satisfactory inspection of the equipment. The equipment was accordingly supplied on 21.5.2007 and in order to cover the warranty a warranty bond for a sum equivalent to 10% of the contract price was submitted with the Department. It appears that the equipment performed well during the warranty period which is evident from the fact that on completion of the warranty period the warranty bond was returned to the petitioner. The incident which formed the basis of blacklisting occurred on 2.11.2007, i.e. about eleven months after expiry of the warranty period. It was argued on behalf of the petitioner and I agree that the petitioner could not be held responsible for any defect that occurred in the equipment after expiry of the warranty period. Further, the petitioner was not the manufacturer of the equipment but had imported it after the same had been approved by the experts of Respondent No. 3. It, however, cooperated with the respondents without being obliged to do so, arranged repair of the equipment free of cost and also coordinated with EGI France, to send their representatives to Lahore to ascertain the cause of accident. Vide letter dated 14.10.2009, the French Company responded by stating that while it had formed a team comprising of technical experts to visit Pakistan, they were unable to come to Pakistan on account of the law and order situation and travel advisory warning circulated by the French Government. They, however, undertook to send spare parts in order to implement repair of the equipment. Subsequently, vide letter dated 12.11.2009, the French manufacturer requested the respondents to provide information and data to enable them to ascertain the causes of malfunctioning of the equipment. It is significant to note that Respondent No. 3 was also informed through the said letter that the experts had tested about twenty pieces of similar equipment in service for five years and no problem of the nature that had occurred in Pakistan, had arisen anywhere else. I have also gone through the letter dated 18.12.2009 issued by a Deputy Director of Respondent No. 3 addressed to the petitioner in which appreciation was communicated on the concern of the French Company to repair the equipment. Finally it is evident from the record that the French Company had trained two officials of Respondent No. 3 to operate the equipment. It is not denied by Respondent No. 3 that the said persons had since retired from Respondent No. 3 and no other person had been imparted training to operate the equipment. The question whether the platform had design defects and hence inherently defective or malfunctioned on account of improper operation by an untrained person required inquiry and probe by experts. Nothing has been placed on record to show that this was done.

2. It is also noteworthy that even if the respondents had grounds to blacklist the petitioner, they were required to follow the basic principles of natural justice. The respondents were required to issue a show-cause notice. The petitioner should have been given an opportunity to defend itself in a meaningful hearing and thereafter in case the petitioner was found to be delinquent in its obligations, the appropriate penalty could have been imposed in accordance with law. Any blacklisting undertaken without fulfilling the aforesaid requirements cannot be held to be lawful. Unlawful blacklisting militates against the fundamental rights of freedom of trade as enshrined in Article 8 of the Constitution of Islamic Republic of Pakistan. The aforesaid legal position is supported by Dawood Corporation (Private) Limited and another Vs. The Director-General, Department of Supplies, Government of Pakistan, Ministry of Industries, Karachi and two others (1988 CLC 788), and New Jubilee Insurance Company Ltd. Karachi Vs. National Bank of Pakistan, Karachi (PLD 199 S.C.1126).

3. For the aforesaid reasons, I hold that the order dated 21.10.2009 passed on behalf of Respondent No. 3 whereby the petitioner was blacklisted was without lawful authority and is, therefore, set aside.

4. Coming to the question of non-renewal of the registration of the petitioner/Company, the matter has lingered on and has not been decided by the competent authority so far. In this view of the matter, I am inclined to refer the matter of renewal of registration of the petitioner to Respondent No. 1 in view of the fact that the petitioner has expressed reservations regarding the impartiality of Respondent No. 3 in this matter. A direction is, therefore, issued to Respondent No. 1 to summon the entire record relating to renewal of registration of the petitioner, hear the petitioner himself and all other concerned parties or appoint an impartial senior officer to decide the matter within a period of 30 days from the date of receipt of a certified copy of this order.

5. Finally I turn to the question of award of contract for procurement of 48 fire-trucks. The record indicates that in response to a tender notice issued by Respondent No. 3 regarding procurement of 48 fire-trucks, six firms including the petitioner, submitted their sealed technical and financial bids. The bids were not found to be in accordance with requirements by the Purchase Committee of Respondent No. 3. In addition, none of the firms was technically qualified. The record indicates that three technical meetings were held. However, none of the bidders including the petitioner was able to demonstrate its equipment. The situation was further complicated on account of upgradation of the technical specification of the truck chassis by the Services and General Administration Department from 16000 GVW to 18000 GVW. The Technical Committee also required the vendors to provide proper specifications and details of the fire pumps sought to be acquired and produce them for testing. None of the bidders was able to do so. In addition, the issue of sudden upgradation of ISUZU FTR truck chassis also remained unresolved as the same was standardized by the Inter-Departmental Standardization Committee of the S&GAD, Government of Punjab. It was in this background that the Technical Committee cancelled the tenders and decided to float fresh tenders with revised specifications. It is, therefore, evident that none of the bidders had a vested right to get its financial bid opened, evaluated and, if found to be lowest, to be awarded the contract. Even otherwise, the tendering authority had reserved the right to cancel one or all tenders without assigning any reason and without incorporating any liability. On the basis of facts and circumstances narrated above, I am unable to hold that cancellation of the tender was unlawful, arbitrary or without justification.

6. In the second round of bidding the petitioner submitted its tender on 12.9.2009 which consisted of a technical as well as financial bid. The petitioner was found technically compliant along with others. However, when the financial bid was opened, the petitioner's bid was found to be non-compliant on account of being conditional. It appears that five companies had participated in the process, out of which two had been disqualified at the time of opening the technical bids. In order to get the lowest possible price, a Negotiating Committee was constituted by Respondent No. 3 which negotiated a price which was lower than the one offered by the petitioner notwithstanding the fact that its financial bid had been found non-compliant on account of being conditional. Consequently, the contract for supply of 48 fire-trucks was awarded to Respondent No. 4.

7. During pendency of this petition and on the application of the petitioner, vide order dated 11.12.2009, it was directed that the process of negotiation may continue, however, the contract shall not be awarded till the next date of hearing. This order was passed considering the sensitive nature of the contract and keeping in view the fact that the equipment was required to be procured for use of Public Emergency Service which was in urgent need of the equipment in question to increase its response and ability to conduct emergency firefighting and rescue operations. Further, at that point in time Respondents No. 3, 4 and 5 were not before this Court. When the said respondents entered appearance, it was stated that the contract for supply of 48 fire-trucks had already been awarded in favour of Respondent No. 4 at a price which was lower than the price offered by any of the bidders including the petitioner. It was also stated that Respondent No. 4 had already started fabrication work and supply of the equipment was soon to commence.

8. The learned counsel for the petitioner submits that the award of the contract and the consequent agreement between Respondents No. 3 and 4 was backdated in order to take the position that the restraining order passed by this Court on 11.12.2009 was inapplicable to the respondents. In this regard the learned counsel has drawn my attention to the fact that the agreement between the petitioner and Respondent No. 4 was executed on non-judicial stamp paper. I am afraid, the said fact alone is not sufficient to hold that the agreement was backdated in order to avoid the implications of the restraining order passed by this Court, Further, the petitioner has alleged mala fides on the part of Respondent No. 3. Neither the particulars nor the reasons for such mala fides have been given in the petition or brought to my notice during arguments. It is settled law that mala fides need to be specifically alleged and the onus to prove such mala fides lies heavily on the shoulders of the person alleging the same. On the basis of the record available, the petitioner has not been able to discharge the said onus.

9. Simply stated, the case of the petitioner is that it submitted, a tender for award of a contract which was rejected and fresh bidding was ordered under different specifications. The financial bid submitted by the petitioner was found to be conditional, hence non-compliant and the tender was awarded to Respondent No. 4 which has since supplied the equipment admittedly at a price lower than the price offered in the non-compliant bid of the petitioner. It is settled law that mere offer by a party does not confer an absolute right for award of a contract. As such the relief relating to award of contract to the petitioner cannot be granted. Reference in this regard may usefully be made to Petrosin Corporation (Pvt.) Limited Singapore etc Vs. Oil and Gas Development Company Ltd. (2010 SCMR 306) and Reliance Consultancy and Engineering Works Private Limited Vs. Federation of Pakistan etc (2010 CLC 1046).

10. It is not the case of the petitioner that the bids submitted by Respondents No. 4 was non-compliant or the price at which the trucks were supplied by the said respondent was higher than the one offered by the petitioner. It is abundantly clear, as has been categorically verified by the representative of Respondent No. 3 that 48 fire-trucks supplied by Respondent No. 3 fulfilled all requisite qualitative and quantitative specifications criteria and standards and the price paid to Respondent No. 4 is the lowest price at which similar equipment is available in the market. The price paid lower than the price at which the petitioner had offered the said vehicles. In these circumstances, it would neither serve any useful purpose nor the petitioner has been able to make out any ground for this Court to declare the contract as null and void.

11. Notwithstanding what has been stated above, it is clear and obvious that the entire case of the petitioner including the question whether or not the contract executed in favour of Respondent No. 4 was backdated, raise controversial questions of fact which cannot be resolved in exercise of Constitutional Jurisdiction of this Court as a thorough probe and investigation would be needed to settle the controversy. It is well settled by now that the Superior Courts would not involve themselves into investigations of disputes in which questions of fact necessitate a factual probe and recording of evidence. Extra-Ordinary Jurisdiction of this Court is intended primarily for providing expeditious remedy in cases where illegality of the impugned action of an executive or other authority can be established without any elaborate inquiry into complicated and disputed facts. Disputed questions of fact decision of which is possible only after collection of evidence can be determined by the Courts having plenary jurisdiction in the matter. On such grounds a constitutional petition is incompetent. Reference in this regard may usefully be made to Anjuman Fruit Arhtian and others Vs. Deputy Commissioner, Faisalabad and others (2011 SCMR 279); Ataur Rehman Khan Vs. Dost Muhammad (1986 SCMR 598); Muhammad Akhtar Vs. President, Cantonment Board, Sialkot Cantt. (1981 SCMR 291); Mian Muhammad Vs. Government of West Pakistan (1968 SCMR 935); Abdur Rashid Bhhiya Vs. Province of East Pakistan (PLD 1970 Dacca 633); Zuhra Begum Vs. Sajjad Hussain (1971 SCMR 697); Landale & Morgan (Pak) Ltd. Vs. Chairman, Jute Board Dacca (1970 SCMR 853); Mahboob Alam Vs. Secretary to Government of Pakistan (1969 SCMR 217); Umar Daraz Vs. Muhammad Yousaf (1968 SCMR 880), Saghir Ali Vs. Mehar Din (1968 SCMR 145); Abdur Rehman Khan Vs. Deputy Commissioner Jessoe (PLD 1968 Dacca 367); Lutfonnessa Ibrahim Vs. Province of East Pakistan (PLD 1969 Dacca 779); Mainuddin Ahmed Vs. Delimitation Officer (PLD 1965 Dacca 263); Province of East Pakistan Vs. Kshiti Dhar Roy (PLD 1964 SC 636); Abdul Rab Choudhury Vs. Registrar of Joint Stock Companies (PLD 1960 Dacca 541); Md.Nur Hussain Vs. Province of East Pakistan (PLD 1960 Dacca 31); Chan Mian Vs. IT and Sales Tax Officers (PLD 1960 Dacca 523); Parbatipur Industries Vs. Chief Secretary East Pakistan (12 DLR 255); Md. Noor Hussain Vs. Province of East Pakistan (11 DLR 367); State Life Insurance Corporation of Pakistan Vs. Tobacco Co, (PLD 1983 SC 280), and Md. Ibrahim Vs. Province of East Pakistan (15 DLR 703). The Honourable Supreme Court of Pakistan has held that it is mandatory and obligatory for a party invoking the Constitutional Jurisdiction to establish a clear legal right which should be in controversy. In light of facts and circumstances narrated above, the legal and contractual rights and entitlement of the petitioner is at best controversial. The case set up by the petitioner does not meet the aforenoted criteria. Reference in this regard can be made to Benedict F.B. Souza Vs. Karachi Building Control Authority (1989 SCMR 918); Karachi Municipal Corporation Vs. Hargina Salt Chemicals (1988 SCMR 1259); Ehsanul Haq Kiani Vs. Alied Bank of Pakistan, Karachi (1984 SCMR 963); Mian Muhammad Vs. Municipal Committee (1983 SCMR 732); N.M.Khan Vs. Chief Settlement and Rehabilitation Commissioner (1970 SCMR 158); Muhammad Ibrahim Mondal Vs. Province of East Pakistan (PLD 1964 Dacca 522); Rizwan Co-operative Society Vs. Custodian of Evacuee Property (1978 SCMR 449); Muhammad Sadiq Vs. Commissioner Rawalpindi Division (1973 SCMR 422); Musharofa Begum Vs. Nayyar Hussain (1984 SCMR 377); Muhammad Ishaq Vs. Abdul Haque (1974 SCMR 28); Niaz Muhammad Vs. Abdul Aziz (1982 SCMR 883), and Abdul Rahman Vs. Said Muhammad (1982 SCMR 372).

12. Further, there is no cavil with the proposition that exercise of Constitutional Jurisdiction by this Court can be declined where the petitioner has not exhausted all remedies available to him before filing of the Constitutional Petition. In the instant case it is clear that the petitioner has approached this Court without exhausting other adequate and efficacious remedies which were available to him. Reference in this regard may be made to Ejaz Hussain Vs. Messrs Hotel Jabees Ltd. (1990 PLC 643); Allah Bakhsh and another Vs. Muhammad Ismail and others (1987 SCMR 810); Ghulam Rasool Vs. Returning Officer (PLD 1985 Karachi 315); Golden Industries Ltd. Vs. Province of Sindh (PLD 1983 Karachi 76) and Lipton (Pakistan) Ltd. Karachi Vs. Government of Sindh (PLD 1977 Karachi 714). This is another reason why the relief sought by the petitioner cannot be granted.

13. For reasons recorded above, this petition is partly allowed to the extent of setting aside the order dated 21.10.2009 regarding blacklisting of the petitioner and issuing a direction to process the case for renewal of the registration of the petitioner in accordance with law in terms of Para No. 12 to 14 of this Judgment.

14. However, in view of the factual controversies involved, I decline to exercise the Constitutional Jurisdiction of this Court to the extent of granting relief for award of the contract to the petitioner for supply of 48 fire trucks to Respondent No. 3. To the said extent this petition is found to be without merit and is accordingly dismissed. No order as to costs.

(R.A.) Petition dismissed

PLJ 2012 Lahore 581

Present: Ijaz Ahmed Chaudhry, CJ.