PLJ 2013 Judgments

PLJ 2013 Karachi 1

Present: Muhammad Ali Mazhar, J.

ZIAUDDIN--Petitioner

versus

PUBLIC-AT-LARGE and others--Respondents

S.M.A. No. 76 of 2011, decided on 16.2.2012.

Succession Act, 1925--

----S. 372--Sindh Chief Court Rules, Rr. 379 & 392--Certificate of debts and securities of deceased--Contents of affidavit was accepted--All legal heirs filed affidavits of no objection--No concealment or suppression--High Court directed NADRA for submitting B-Form of--deceased--Requirements for filing petition for succession certificate--Validity--A person who had preferred to for succession certificate was only required to fulfill conditions and there is no specific provision for calling any B-Form or heirship certificate from legal heirs of deceased, nor any such provision brought into statute by virtue any amendment--No statutory requirement to insist legal heirs to submit Form-B or heirship certificate along with petition either for succession certificate or letter of administration--Before grant of petition, Court for its own satisfaction not only calls affidavits of no objection of all legal heirs, affidavits of witnesses who appeared in Court with legal heirs and confirm veracity of petition including list of surviving legal heirs--All necessary requirements had been fulfilled nobody come forward to oppose petition nor filed any objections in spite of issuing notices and publication in newspapers, all legal heirs had filed their affidavits of no objection, no impediment or legal disabilitly to grant of succession certificate--Petition was allowed. [Pp. 4, 5 & 6] A, D & F

Mohammadan Law--

----Arts. 39 & 40--Succession Act, 1925--S. 211--Share of inheritance in Islamic Law--Administration of estate of deceased--Distribution of estate--Validity--Since estate devolved on heirs at moment of death of deceased, they were at liberty to divide it at any time after death of deceased--Distribution was not liable to be suspended until payment of debts--When deceased was Hindu, Muslim, Buddhist, Sikh an exempted person, nothing shall vest in an executor or administrator any property of deceased person which would have passed by survivorship to some other person. [Pp. 4 & 5] B & C

Succession Certificate--

----Requirement of submitting or summoning Form-B issued by NADRA--Factum of inheritance and status of actual legal heirs--Sole criterion to decide--Validity--If a person before his death had failed to intimate NADRA or fill B-Form, it does not mean that after his death, no succession certificate will be issued to legal heirs due to non completion or fulfillment of such requirement and right of inheritance will be neither suspended nor snatched away only for said reason alone. [P. 5] E

Mr. Nooruddin Abdullah, Advocate for Petitioner.

Mr. Riaz, Attorney of Petitioner and other Legal Heirs are also present in person.

Date of hearing: 16.2.2012.

Order

This petition is brought under Section 372 of the Succession Act for the grant of succession certificate in respect of debts and securities of late Muhammad Ali S/O Virjee Bhayani and Mst.Daulat W/o Muhammad Ali.

1. The names of legal heirs are mentioned in Paragraph 3 of the petition. The details of debt and securities relating to both the deceased are mentioned in Annexure "A". The note of Deputy Registrar (OS) dated 5.5.2011 shows that notices have been issued to all the legal heirs and publication has also been effected in daily Jang, Karachi dated 27.4.2011, but nobody has filed any objection. Today the petitioner is not present in person due to his treatment in USA, but he is being represented by his attorney namely, Riaz son of Barkat Ali Bhayani. Copy of original general power of attorney shown to the office and the same was returned after seeing the original. Photocopy of the general power attorney is taken on record.

2. The affidavit of no objection of legal heirs Aashiq Ali Bhayani is at Page No. 67, and on behalf of Tajuddin, his son Shahzeen had filed affidavit of no objection on the basis of general power of attorney which is available at Page No. 75 but today Tajuddin is himself present in Court and he concedes to the grant of this petition and accepts the contents of affidavit filed on his behalf by his attorney to be true and correct. Affidavit of Barkat Bhayani is at Page No. 71, Affidavit of Sher Ali is at Page No. 85, and affidavit of Karim Sherali is at Page No. 89. All legal heirs have filed their affidavits of no objection and two witnesses, namely Feroze Meghani and Noor Ali Jivani are present and have also filed their affidavits that they know the family and confirmed that the petitioner has rightly mentioned the names of all legal heirs in the petition without any concealment or suppression. No objection was filed or received from any quarter and all formalities have been complied with hence there is no impediment or obstacle and or any legal disability to the grant of this petition.

3. This matter was fixed for hearing of main petition on 15.8.2011 on which date the learned Judge of this Court directed NADRA for submitting "B" Forms of the deceased Muhammad Ali son of Virjee Bhayani and Mst. Daulat wife of Muhammad Ali and the petitioner was also directed to file heirship certificate. The Deputy Registrar (OS) of this Court after completing due formalities in accordance with law fixed the matter in Court for hearing of main petition in which neither any requirement of heirship certificate was mentioned nor any "B" Form from NADRA. The Deputy Registrar in his report dated 5.5.2011 clearly informed that publication/citation was effected in Daily Jang, Karachi on 27th April 2011 but non has filed any objection. Notices were also issued to all legal heirs through registered post A.D and courier service and they have filed their affidavits of no objection.

4. The requirements for filing petition for Succession Certificate are provided under Section 372 of the Succession Act, 1925 which are as under:--

(a) the time of the death of the deceased;

(b) the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits;

(c) the family or other near relatives of the deceased and their respective residence;

(d) the right in which the petitioner claim;

(e) the absence of any impediment under Section 370 or under any other provisions of this Act or any other enactment, to the grant of the certificate or to the validity thereof if it were granted; and

(f) the debts and securities in respect of which the certificate is applied for.

1. According to Rule 379 of Sindh Chief Court Rules (OS), application for succession certificate is required to be made in Form 25, which is provided in Appendix "A" and notice is required to be issued to the next of kin by the Registrar (OS) under Rule 392 of Sindh Chief Court Rules (OS). The aforesaid provisions of law clearly lay down that person who has preferred a petition for succession certificate is only required to fulfill the conditions mentioned above and there is no specific provision for calling any "B" Form or heirship certificate from the legal heirs of the deceased, nor any such provision has been brought into statute by virtue of any amendment.

2. The share of inheritance in Islamic Law becomes due only after opening out of succession. Under Chapter V, Article 39 of the Mahomedan Law the provisions for administration of the estate of deceased Muslim are provided. While Article 40 relates to vesting of estate in executor and administrator and inter alia provides that the executor or administrator, as the case may be, of a deceased Muslim, is under the provisions of the Succession Act, 1925, Section 211, his legal representative for all purposes, and all the property of the deceased vests in him as such. The estate vests in the executor, though no probate has been obtained by him. Likewise Article 44 pertains to distribution of estate and it provides that since the estate devolves on the heirs at the moment of the death of the deceased, they are at liberty to divide it at any time after the death of the deceased. The distribution is not liable to be suspended until payment of the debts. (Reference can be made to Principles of Mahomedan Law by Sir Dinshah Fardunji Mulla, Pakistan Edition (Mansoor Book House).

3. Section 211 of the Succession Act, 1925 is linked with Character and property of executor or administrator and provides that the executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all property of the deceased person vests in him as such. It further states that when the deceased was Hindu, Muslim, Buddhist, Sikh or (Jaina or Parsi) an exempted person, nothing herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed by survivorship to some other person.

4. The above provisions of law make it clear beyond all shadow of doubts that there is no statutory requirement to insist the legal heirs/petitioner to submit Form-B or heirship certificate along with the petition either for Succession Certificate or letter of administration. It is also a fact that before the grant of petition, the Court for its own satisfaction not only calls the affidavits of no objection of all legal heirs, affidavits of two witnesses who also appear in Court with legal heirs and confirm the veracity of the petition including the list of surviving legal heirs, the Deputy Registrar, also issues citation in the vernacular newspaper for inviting objection not only from legal heirs in order to rule out the possibility of any dispute or contention but also from all creditors and after completion of all codal formalities, the matter is fixed in Court for hearing of main petition. However in case of any dispute or contention regarding the parentage or legitimacy and acknowledgment or concealment or suppression of legal heirs by the other legal heirs or in case of more than one marriages of the deceased, the requirement of submitting or summoning Form-B issued by NADRA may be one of the relevant considerations to decide the factum of Inheritance and status of actual legal heirs but again this will not be a sole criterion to decide. If a person before his death is failed to intimate NADRA or fill B-FORM, it does not mean that after his death, no succession certificate will be issued to the legal heirs due to non completion or fulfillment of this only requirement and their right of inheritance will be neither suspended nor snatched away only for this reason alone. However, it is for the Court to decide and in case of any reasonable doubts, dispute or contention, it can make necessary enquiry so that rights of deserving person may not be affected and surely this is one of the reasons for which, Court grants succession petitions subject to furnishing of surety as per rules in order to satisfy and cope with any future claim.

5. As a result of above discussion, I am satisfied that in this case all necessary requirements have been fulfilled, nobody come forward to oppose the petition nor filed any objections in spite of issuing notices and publication in the newspaper, all legal heirs have also filed their affidavits of no objection, thus there is no impediment or legal disability to the grant of Succession Certificate. Consequently, this succession petition is allowed. Let succession certificate be issued to the petitioner as per rules.

(R.A.) Petition allowed

PLJ 2013 Karachi 6 (DB)

Present: Mushir Alam, C.J. and Syed Hasan Azhar Rizvi, J.

NAWMAN AHMED--Petitioner

versus

ADJUDICATING OFFICER, JOINT DIRECTOR FOREIGN EXCHANGE, ADJUDICATE COURT, STATE BANK OF PAKISTAN and 2 others--Respondents

C.P. No. D-2443 of 2010, decided on 10.5.2011.

Foreign Exchange Regulation Act, 1947--

----Ss. 23-B (4)(5) & 23-C--Constitution of Pakistan, 1973, Art. 199--Limitation Act, 1908--S. 14--Constitutional Petition--Foreign Exchange Adjudication Court State Bank of Pakistan--Order of adjudicating authority--Appellate Board was not functional--Remedy of appeal--Writ jurisdiction cannot be used as substitute of appeal or limitation for appeal--Validity--Where either tribunal or Court or Forum were not established as provided under Act and or Court were lying vacant it could not be said that parties were remediless and would be non-suited on account of action for not nominating member of adjudicating forum--Where such tribunal exists and is functional though member is not nominated the proper course is to file appeal before forum so provided under law and in case it was not functional on account of non-availability of member then such party might approach and invoke writ jurisdiction to seek any interlocutory relief--Let petitioner file an appeal before Appellate Board in terms of S. 23(c)(3) of Act, 1947 alongwith application for condonation of delay. [Pp. 7 & 8] A & B

Mr. Haroon Shah, Advocate for Petitioner.

Mr. Masood Anwar Ausaf, Advocate for Respondents No. 1 and 2.

Mr. Naheed A. Shahid, Advocate for Respondent No. 3.

Mr. Aashiq Raza learned DAG.

Mr. Sher Muhammad K. Shaikh learned AAG.

Date of hearing: 10.5.2011.

Order

The Petitioner has impugned the order dated 22.06.2010 passed by the Joint Director of Adjudication Foreign Exchange Adjudication Court State Bank of Pakistan. Notices were issued and objections were raised as to the maintainability of this petition before this Court. Essentially the contention of learned Counsel for the Respondent are that Appeal against the order of the adjudicating authority is provided under Section 23-C of the Foreign Exchange Regulation Act, 1947, which provides inter-alia any person aggrieved by any order of the Adjudicating Officer made under sub-section (4) or sub-section (5) or sub-section (6) of Section 23-B may, within thirty days of such order, prefer an appeal to the Appellate Board within whose jurisdiction the order is passed; provided that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Adjudicating Officer; Provided further that the Appellate Board may entertain an appeal after the expiry of the said period of thirty days but not later than sixty days from the date of the aforesaid order if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

When Learned Counsel for the Petitioner confronted, it was contended that indeed appeal is provided but the Appellate Board is not functional for quite sometime. Learned Counsel for the Respondents contends that presently the Members of the Board have not yet been nominated. It is however, stated that the Appellate Board is already established, the Registrar is functioning and office is receiving appeals regularly therefore, this petition is not maintainable to circumvent the limitation.

We have heard learned Counsels and perused the record.

Indeed the remedy of appeal is provided and the writ jurisdiction cannot be used as substitute of the Appeal or to circumvent limitation provided for the Appeal. Indeed in case where either the Tribunal or Court or Forum are not established as provided under the Act and/or Courts are lying vacant it cannot be said that the parties are remediless and would be non-suited on account of action for not nominating Presiding Officer or Member of the adjudicating forum. However, where such tribunal exists and is functional though member is not nominated the proper course is to file appeal before the forum so provided under the law and in case it is non-functional on account of non-availability of the Member then such party may always approach and invoke the writ jurisdiction to seek any interlocutory relief.

Under the circumstances, we would dispose of this petition. Let the Petitioner file an Appeal before the Appellate Board in terms of sub-Section (3) to Section 23-C of the Foreign Exchange Regulation Act, 1947 alongwith Application for condonation of delay. It is expected that the Board shall decide condonation application sympathetically in terms of Section 14 of Limitation Act which course is conceded by the learned Counsel for the Respondents.

It is further slated by the learned Counsel for the Petitioner that since Tribunal is not functioning and notices are being regularly issued for recovery of the impugned demand therefore, this Court may make observation that the demand money may not be insisted till such time the Tribunal or Appellate Board is functional. Learned Counsel for the Respondents conscious of the fact that non-availability of the Tribunal is beyond the control of the Petitioner and or the Respondents. In all fairness the demand may not be pressed into service till such time the Appellate Board is functional and Petitioner is able to approach to the Tribunal to seek any order on his application. Such statement is taken on record and it is expected that the demand will not be pressed into service till Tribunal is functional. Petition in terms of the above is disposed of.

Let copy of this order is forwarded to Secretary, Law and Justice, Government of Pakistan to ensure that vacancy in Foreign Exchange Appellate Tribunal are filled up without delay. Learned Registrar to follow up the matter on administrative side and put up report in case vacancy are not filled up in four weeks from today.

Learned Counsel for the petitioner undertakes to furnish security to the extent of the amount adjudicated against the petitioner. Before the registrar of the appellate Board within three weeks from today.

(R.A.) Petition disposed of

PLJ 2013 Karachi 9

Present: Muhammad Ali Mazhar, J.

Mrs. SHERBANO--Appellant

versus

KAMIL MUHAMMAD KHAN--Respondent

IInd Appeal No. 19 of 2011, decided on 9.3.2012.

Limitation Act, 1908 (IX of 1908)--

----Art. 113--Limitation for filing a suit for specific performance of contract--Suit was filed after 11 years, dismissal of suit--No date exact agreed for executing conveyance deed--Suit for specific performance was filed after death of attorney--Contents of plaint and date of notice--Suit was barred by limitation--Validity--Under Art. 113 of Limitation Act, period of three years is provided for filing a suit for specific performance of contract and time begins to run from date fixed for performance or if no such date is fixed, when plaintiff had notice that performance was refused--It is well settled that whenever a question of limitation appears to be a mix question of law and facts, then to advance cause of justice, it is always considered more apt to decide cause on merits rather than non-suiting a person on technical knockout--Courts below had failed to consider actual controversy but suit was dismissed being barred by limitation and decree was affirmed in appeal without considering fact that appellant performed obligations much more than a part performance and nothing was required to be done by vendee--Vendor claiming was debarred from enforcing any right other than right expressly provided by terms of contract--Appeal was allowed. [Pp. 13 & 16] A, C & H

Limitation Act, 1908 (IX of 1908)--

----S. 3--Civil Procedure Code, (V of 1908), O. VII, R. 11--Rejection of plaint--Suit for specific performance was filed after death of attorney--No time was fixed for execution of conveyance deed--Contents of plaint and date of notice--It is well settled that for rejection of plaint u/Order 7, Rule 11, CPC or dismissal of suit u/S. 3 of Limitation Act, contents of plaint are to be looked into and if from statement in plaint, suit appeared to be barred by limitation that plaint shall have to be rejected. [P. 13] B

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

----S. 53-A--Implication of S. 53-A of T.P.A.--Cause of action described in plaint--Question relates to execution of conveyance deed--Agreement relates to execution and transfer of property--Where all conditions of S. 53-A, were satisfied, then even if contract was not registered, transferor or any person claiming under him could not enforce any right in respect of property which transferee had taken possession of except such right which transferor was entitled to enforce by virtue of contract. [P. 14] D

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

----S. 100--Second appeal--Substantial error or defect in procedure--Second appeal shall lie to High Court from every decree passed in appeal by Court subordinate to High Court on grounds (a) decision being contrary to law or usage having force of law (b) decision having failed to determine material issue of law (c) substantial error or defect in procedure provided by CPC which may possible have produced error or defect. [P. 15] E

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

----S. 103--Second appeal--Error or defect--Determination--In any second appeal, High Court if evidence was sufficient determine any issue of fact necessary for disposal of appeal which had not been determined by lower Appellate Court or which had been wrongly determined by such Court--Where evidence or material available was sufficient for final decision on issues of law and fact High Court u/S. 103, CPC empowered to determine and competent to interfere. [P. 15] F & G

Mr. Mustafa Lakhani, Advocate for Appellant.

Nemo for Respondent.

Date of hearing: 9.3.2012.

Order

This IInd Appeal has been preferred against the impugned judgment dated 12.11.2010, passed by Vth Additional District Judge Karachi East in Civil Appeal No. 84 of 2009, whereby the judgment and decree passed by VIIIth Senior Civil Judge, Karachi (East) in Civil Suit No. 1053 of 2006 was maintained and the first appeal was dismissed.

1. It appears from the record that through out the proceedings, the respondent never appeared in the Courts below and in this second appeal also, despite substituted service of notice in the newspaper Daily Jang, Karachi dated 7.9.2011, the respondent failed to appear. The appellant had filed the Civil Suit No. 1053 of 2006 for seeking the following relief(s):

A. To direct the defendant to transfer the residential Plot No. D-36, measuring 1000 square yards with construction thereon situated in Block-8, Works Cooperative Housing Society, Karachi Development Authority Scheme No. 24, Gulshan-e-Iqbal Karachi by completing all the formalities required by the Works Cooperative Housing Society and on his failure the Nazir of this hon'ble Court be directed to transfer the said property in favour of the plaintiff by completing all the formalities required by the Works Cooperative Housing Society Limited, Karachi in the name of the plaintiff.

B. Award costs of the suit and / or.

C. Grant any other relief or reliefs as this hon'ble Court may deem fit and proper in the circumstances of the case.

1. The brief facts of the case are that the appellant filed a civil suit for specific performance of contract in which cause of action stated to have accrued on 24.4.1995, when initially an agreement to sell was executed between the parties and finally cause of action accrued on 15.5.2006, when the respondent was called upon to execute conveyance deed and a notice was served upon him through learned counsel for the appellant on 15.5.2006.

2. The agreement to sell available at page 19 of the Court file shows that the entire consideration was paid by the appellant and physical vacant possession of residential Plot No. D-36, Works Cooperative Housing Society, Karachi was handed over to the appellant by the respondent.

3. In paragraph 7 of the agreement, the Vendor undertook to transfer and assign unto the Vendee the said property and also agreed to sign and execute all documents, whenever required by the Vendee/ Purchaser to effectuate the transfer. Apparently there was no date exact agreed for executing the conveyance deed or transfer deed in the agreement. For ready reference, Clause 7 of the agreement is reproduced as under:

"7. That the Vendor/Seller does hereby undertake and agree to transfer and assign unto the Vendee/Purchaser the said property and to be ready and prepared to sign and execute all documents, applications, papers, undertaking, indemnity bond, affidavits, statement, etc. and to appear and depose before the authorities concerned whenever required by the Vendee/Purchaser to effectuate the transfer/mutation of the said property/plot in favour of the Vendee/Purchaser or her nominee."

1. In paragraph 4 of the agreement, the Vendor also undertook to execute an irrevocable general power of attorney of the said property in favour of the Vendee's nominee Abdul Karim vesting in him all the powers in respect of the said property and agreed to cause its registration before Sub-Registrar within two days from the date of execution hereof. Clause 4 of the agreement reads as under:--

"4. That the Vendor/Seller has also this day at the request of Vendee/Purchaser, executed an Irrevocable General Power of Attorney of the said property in favour of the Vendee/Purchaser's nominee Mr.Abdul Karim (holder of N.I. Card No. 456-33-028828), son of Haji Ali Muhammad giving him all the powers in respect of the said property and caused its registration/shall cause its registration before sub-registrar of properties within 2 days from the date of execution hereof."

1. The aforesaid clause shows that two days time limit was agreed between the parties for the execution of registered power of attorney before the concerned Registrar and since this clause was strictly dedicated to the execution of power of attorney without mentioning any date for the execution of conveyance deed, therefore, in my view for all intent and purposes this clause was only confined to the execution of general power of attorney and not to the registration of the conveyance deed which was separately provided and agreed under clause 7 of the agreement to sell.

2. The learned counsel for the appellant argued that since the respondent/defendant was ex-parte in the trial Court, therefore, the plaintiff was directed to file affidavit in evidence, which was filed, but the learned trial Court dismissed the suit being time barred for the reason that the sale agreement was executed between the plaintiff and the defendant on 24.4.1995 and the plaintiff/appellant had filed the suit on 10.10.2006 after 11 years and in the intervening period remained silent therefore, the suit was considered to be time barred under Article 113 of the Limitation Act which provides three years limitation for filing a suit for specific performance of contract.

3. The judgment and decree of the trial Court was challenged in appeal where too the respondent was ex-parte. However, the learned appellate Court relying upon paragraph 4 of the agreement observed that husband of the appellant in whose favour the general power of attorney was executed was bound to execute lease deed in favour of the appellant within 02 days from the date of execution of agreement to sell, but the appellant has miserably failed to utter a single word as to why such act has not been done in terms of agreement, hence, the appeal was also dismissed keeping in view paragraph 4 of the agreement.

4. In my view, paragraph 7 of the agreement relates to execution and transfer of property in question while paragraph 4 of the agreement was specifically dedicated to the execution of power of attorney in the name of vendee's nominee. The agreement to sell unequivocally shows that the appellant is in possession of the property in question and the sale consideration was also paid and acknowledged and the only question relates to the execution of conveyance deed. The suit for specific performance was filed after the death of attorney and the trial Court failed to consider that in the agreement no time was fixed for execution of conveyance deed by the vendor and in the plaint, it was averred that the vendor/defendant was approached numerous times for the transfer of property who kept the appellant on false hopes, resultantly, a notice was issued on 15.5.2006 which was in fact the trigger point and if the contents of plaint and date of notice would have been kept into consideration properly, the Courts below perhaps might not have held the suit is barred by limitation. Under Article 113 of the Limitation Act, period of three years is provided for filing a suit for specific performance of a contract and time begins to run from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.

5. It is well settled that for the rejection of plaint under Order VII, Rule 11, CPC or dismissal of suit under Section 3 of the Limitation Act, the contents of the plaint are to be looked into and if from the statement in the plaint, the suit appear to be barred by limitation, that plaint shall have to be rejected. The appellant/plaintiff had properly described the cause of action in the plaint with specific events and dates and in view of the cause of action described in the plaint, the suit does not appear to be time barred. It is also well settled that whenever a question of limitation appears to be a mix question of law and facts, then to advance the cause of justice, it is always considered more apt to decide the cause on merits rather than non suiting a person on technical knockout. The proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his. If any authority is needed, one may refer to PLD 1963 SC 382.

6. The learned trial Court as well as appellate Court both have also failed to consider the application and implication of Section 53-A of the Transfer of Property Act, which relates to a part performance and in this case not only the appellant has paid entire sale consideration but she is also in peaceful vacant possession with original title documents. Section 53-A of the Transfer of Property Act in case of part performance protects the right and interest of transferee as under:--

Section 53-A. Part performance.--Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has, performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.

1. At this juncture, I would like to refer to 1992 SCMR 1265 (Naib Subedar Taj Muhammad v. Yar Muhammad Khan and 06 others). In this case, it was held that where all the conditions laid down in Section 53-A were satisfied, then even if the contract was not registered, the transferor or any person claiming under him could not enforce any right in respect of the property which the transferee had taken possession of except such right which a transferor was entitled to enforce by virtue of the contract. So far as the applicability of section 53-A of the Transfer of Property Act is concerned, it depends upon the following factors:--

(i) There is a contract in writing signed by the transferor in respect of an immovable property;

(ii) From the writing, transfer can be ascertained with reasonable certainty;

(iii) in part performance of the contract, the transferee has taken possession of the property or any part thereof or if he was in possession, he continues to be in possession in part performance of the contract and has done some act in furtherance of the contract; and

(iv) The transferee has performed or is willing to perform his part of the contract.

(v) If all these conditions are satisfied, then even if the contract is not registered, the transferor or any person claiming under him cannot enforce any right in respect of the property of which the transferee has taken possession except such right, which a transferor is entitled to enforce by virtue of the contract.

1. Under Section 100 of C.P.C, it is provided that second Appeal shall lie to the High Court from every decree passed in appeal by a Court subordinate to High Court on the grounds namely (a) the decision being contrary to law or usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. Likewise, Section 103, CPC, provides that in any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue of fact necessary for the disposal of the appeal which has not been determined by the lower appellate Court or which has been wrongly determined by such Court by reason of any illegality, omission, error or defect such as is referred to in sub-section (1) of Section 100.

2. The object of Section 103, CPC is to avoid the necessity of remanding a case where an issue of fact necessary for the disposal of the case has not been determined or where such an issue has been wrongly determined. Where the evidence or the material available on record is sufficient for final decision on the issues of law and fact the High Court under Section 103, CPC empowered to determine and competent to interfere. It is clear beyond any shadow of doubt that in clause 3 of the agreement to sell, the vendor admitted to have received the entire sale consideration and also handed over physical peaceful vacant possession of the entire property along with original title documents and under clause (7) he also undertook to sign and execute all documents, applications, papers, undertaking, indemnity etc. before the authorities concerned whenever required by the vendee to effectuate the transfer of the property in question in favour of vendee. However, in order to safeguard the interest of the vendee, the vendor also executed general power of attorney in favour of the nominee of vendee who was her late husband and since the attorney expired therefore, the vendee through her counsel served a notice upon the vendor to transfer the property in question in terms of agreement to sell. Both the Courts below failed to consider the actual controversy but the suit was dismissed being barred by limitation and the decree was affirmed in appeal without considering the fact that the appellant in this case performed her obligations much more than a part performance and nothing is required to be done by the vendee, therefore, the vendor/transferor or any other person claiming under him is debarred from enforcing any right other than the right expressly provided by the terms of contract. Since the possession has been handed over with original title documents in lieu of receipt of entire sale consideration, perhaps this is the main reason for which the vendor/respondent remained ex-prate throughout the proceedings.

3. As a result of above discussion, this second appeal is admitted for regular hearing and allowed. The judgment and decree passed by the learned VIIIth Senior Civil Judge, Karachi East in Suit No. 1053/2006 and the judgment passed by the appellate Court in Civil Appeal No. 84/09 are set aside and suit of the appellant/plaintiff is decreed in terms of prayer clause "A" of the plaint.

(R.A.) Appeal allowed

PLJ 2013 Karachi 16 (DB) [Bench at Sukkur]

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

ABID ALI BAIG & others--Petitioners

versus

ZAFAR ALI & others--Respondents

C.P. Nos. D-389 of 2007 and D-84 of 2009, decided on 22.2.2012.

West Pakistan Board of Revenue Act, 1957 (IX of 1957)--

----S. 8--Review of order passed by Board--Review application was not maintainable as condition precedent for exercising powers was based upon discovery of new and important matter or evidence--Review order sought to be reviewed on account of some mistake or error apparent on face, of record--Validity--It is clear beyond any shadow of doubt that special provisions introduced in enactments to provide additional remedy to an aggrieved person to move for review on discovery of new and important matter or evidence which could not passed by him at time when earlier order was passed or order sought to be reviewed--Contention of--Council for applicant moved an adjournment application on ground of illness of his mother but respondent was present, however instead of allowing opportunity--Member proceeded the case--Question of--Whether any adjournment application was moved or not nor any such application was produced before Court to hold that proper opportunity was not provided to respondent--Held: Power of review of M.B.R. are very limited and can be invoked only for specific points a discovery of new and important matter for evidence which after exercise of due diligence was not within knowledge of petitioner or cannot be produced at power when decree was passed or order was made on account of some mistake or error apparent on face of record--If power of review is exercised by M.B.R. for rectifying decision of Member, which suffered from incorrect interpretation or application of law or non-appreciation of facts, it would lead to an un-attending cycle of litigation--Such power were not available to any successor to adjudge validity of order--Review proceedings on face of error apparent on record where in all questions of facts and law were considered by appellate Court--Order passed by M.B.R. shall hold field with all consequential benefits. [Pp. 21, 22, 23 & 24] A, B, C, D, E & G

Review--

----Scope of--Scope of review is limited and can be invoked and allowed only on grounds specifically provided in provisions of law and is not to be mistaken with appeal. [P. 23] E

M/s. Jamshed Ahmed Faiz & David Lawrence, Advocates for Petitioner in C.P.No. D-389/2007 and for Respondent No. 1 in C.P.No. D-84/2009.

Mr. Shaikh Abdul Ghani, Advocate for Petitioner in C.P.No. D-84/2009 and for Respondent No. 1 in C.P.D-No. D-389/2007.

Mr. Imtiaz Ali Soomro, Assistant Advocate General Sindh.

Date of hearing: 22.11.2011.

Judgment

Muhammad Ali Mazhar, J.--The aforesaid petitions have been preferred to challenge the following orders:--

a. In C.P.No. D-389/2007, the petitioner has impugned the order dated 11.01.2007 passed by Respondent No. 2 in Review Application No. 121/2002 and Review Application No. 128/2002 filed by Respondent No. 1 and prayed that the said order be set aside and the order passed by Respondent No. 3 on 08.07.2002 be restored."

b. In C.P.No. D-84/2009, the petitioner has challenged the order dated 08.07.2002 passed by Respondent No. 3 and also prayed that the order passed by Respondent No. 2 on Review Application be declared as without lawful authority and jurisdiction."

1. The petitioner Abid Ali Baig in C.P.No. D-389/2007 narrated the facts that the Deputy Commissioner, Sukkur granted 15 ghuntas of land out of Survey No. 387, Deh Jehan Khan Unar, Taluka Mirpur Mathelo to Abdul Aziz Khan for installation of petrol pump and consequent upon the grant, the name of Abdul Aziz Khan was also incorporated in the record of rights Form-II of Deh Jehan Khan Unar vide Entry No. 4 dated 08.06.1968. The said Abdul Aziz Khan let out the said plot to Caltex Oil Pakistan Limited for a period of 30 years through registered deed dated 20.08.1968 against the payment of monthly rent and the said tenancy remained in force up to 20.08.1998. On 11.01.1994, the said Abdul Aziz sold out his aforesaid property to the petitioner through statement for change of Khata before Mukhtiarkar, Mirpur Mathelo, which was approved and incorporated in the record of rights of Deh Jehan Khan Unar, vide Form-VII-B, Entry No. 135 dated 11.01.1994 and he also intimated Caltex Oil Pakistan Limited vide letter dated 16.01.1994. Due to change of ownership, Caltex Pakistan Limited started payment of rent to the petitioner and such transfer was never disputed either by Caltex Pakistan Limited or Abdul Aziz Khan. It was further averred that tenancy expired on 20.08.2000 but since Caltex Pakistan Limited failed to hand over the possession, therefore Rent Case was filed by petitioner. Meanwhile, the Respondent No. 1 raised a dispute over the ownership of the land on the basis of fake and fraudulent Entry No. 7 dated 15.05.1991 and also instituted F.C. Suit No. 40/2000 in the Court of Senior Civil Judge, Mirpur Mathelo against the petitioner and four others for declaration, cancellation and permanent injunction. However, in the meanwhile, vide order dated 14.11.2001, the EDO (Revenue), District Ghotki decided that Entry No. 7 dated 15.05.1991 and Entry No. 135 dated 11.01.1994 both are false and land in question was declared to be government property. By virtue of this order, the entries of petitioner as well as Respondent No. 1 relating to their claim on the same property were cancelled. Meanwhile, the F.C. Suit No. 40/2000 was also dismissed by the Senior Civil Judge on 12.04.2002 keeping in view the order of EDO (Revenue). The petitioner challenged the order of EDO (Revenue) before Member Board of Revenue and similarly the Respondent No. 1 also challenged the same order and both the appeals were disposed of by Respondent No. 3 through a common order dated 08.07.2002, whereby the appeal of petitioner was allowed, consequently the Entry No. 135 restored, simultaneously the order cancelling Entry No. 7 was maintained and the claim of the Respondent No. 1 was rejected. It is further stated that the petitioner proceeded to USA in October, 2002 and in his absence notices of Review Applications No. 121 and 128 of 2002 were served upon the wife of the petitioner at his residence at Karachi, thereafter the wife of the petitioner sent an adjournment application and came to know that both the Review Applications were transferred from Respondent No. 3 to Respondent No. 2 but no such notice was ever issued.

2. The Respondent No. 4 filed his comments along with the brief history of the case and it was, inter alia, stated that 15 ghuntas of land was leased out to Abdul Aziz Khan for 30 years for installation of petrol pump but he was lessee and not the owner of the said and was not competent to sell the property to anyone. It was further stated that the entry kept by Mukhtiarkar was illegal. The EDO (Revenue) further stated that Abdul Aziz Khan sold out the petrol pump to Zafar Ali Lund in the year 1990-1991 and such Entry No. 7 dated 15.05.1991 and the sale agreement between both the parties was illegal.

3. In C.P.No. D-84/209, the petitioner Zafar Ali Lund contended that he is a man of hari class and cultivates his land in Deh Jehan Khan Unar. In the year 1990-1991, he purchased 15 ghuntas of land from Abdul Aziz Khan through registered sale deed and such entry was kept in revenue record being Entry No. 7, Form-II, Deh Jehan Khan Unar, Taluka Mirpur Mathelo, District Ghotki dated 15.05.1991. He was running his petrol pump peacefully up to the year 2000 when the Respondent No. 1 Abid Ali Baig submitted an application to EDO (Revenue) claiming to be the owner of the land in question. The EDO (Revenue) Ghotki after hearing the parties passed an order on 14.11.2001, whereby the claims of petitioner and Respondent No. 1 were rejected and the property in question was declared to be a government property. Petitioner as well as Respondent No. 1 both preferred Revision Applications before the Member Board of Revenue, Hyderabad, who vide order dated 08.07.2002 entertained the claim of Respondent No. 1 and rejected the claim of petitioner. Thereafter, the petitioner filed Review Applications No. 121/2002 and 128/2002 against the order dated 08.07.2002 passed by Respondent No. 3, however, vide order dated 11.1.2007, the Review Application filed by Respondent No. 1 was dismissed and the order passed to the extent of petitioner's claim (Zafar Ali Lund) was maintained but in the same order the Respondent No. 2 also cancelled Entry No. 135 in the name of Abid Ali Baig (Respondent No. 1) keeping in view the order of EDO (Revenue) Ghotki dated 14.11.2001 and the order passed by Respondent No. 3 was amended accordingly.

4. In this petition also, the Respondent No. 4 filed the same comments and reiterated that the land in question is owned by government and the claims of both the petitioners were denied.

5. The learned counsel for the petitioner in C.P.No. 389/2007 argued that vide order dated 08.07.2002, the Respondent No. 3 rightly amended the order passed by EDO (Revenue), Ghotki and on the basis of material and perusal of the record including the evidence produced by the parties observed that the EDO (Revenue) incorrectly held that the land was on 30 years' lease with Abdul Aziz Khan. The order of Deputy Commissioner, Sukkur dated 21.12.1967 shows that the land was allotted to Abdul Aziz Khan on permanent basis in consideration of the payment of Malkana and the land originally belonged to Abdul Aziz Khan, which was sold by him to the petitioner Abid Ali Baig vide Entry No. 135. He further argued that the impugned order passed by EDO (Revenue) to the extent of cancellation of Entry No. 135 dated 11.01.1994 was rightly set aside and entry was rightly restored to its original position. He further argued that throughout the proceedings the Respondent No. 1 was associated and nothing has been done behind his back. He further argued that it is also evident from the Review Applications filed by Respondent No. 1 that nothing new was brought into the knowledge of Respondent No. 2, which may warrant any interference in the well reasoned order passed by Member Board of Revenue (Judicial), the Respondent No.

6. Learned counsel further argued that the Review Application filed by Respondent No. 1 under Section 8 of the Board of Revenue Act, 1957 was not maintainable as the condition precedent for exercising the powers in the aforesaid section is based upon the discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by a person applied for the review of the order and the order sought to be reviewed was passed on account of some mistake or error apparent on the face of the record. No such instance was demonstrated nor incorporated in the review application but the Respondent No. 2 exercised his powers and set aside the order passed by Member Board of Revenue (Judicial) in excess of his jurisdiction and without lawful authority.

7. On the contrary, the learned counsel for the Respondent No. 1 and for the petitioner in C.P.No. D-84/209 has also not supported the order passed by Respondent No. 2 not on the ground that the entitlement of the petitioner in C.P.No. D-389/2007 was denied but he argued that by the said impugned order, the right and claim of both the petitioner and Respondent No. 1 had been denied on the ground that the land in question is owned by the government, therefore he submits that the order suffers from jurisdictional defect and also not in accordance with law as the Respondent No. 2 was obliged to remain confined within the sphere of the review application as the order for review was passed on the application of Respondent No. 1 and not suo moto. However, he further argued that the order passed by Member Board of Revenue (Judicial) on 08.07.2002 is also liable to be set aside, which is basically the main order under which the rights of Respondent No. 1, who is also petitioner in C.P. No. D-84/2009, have been denied and the Entry No. 7 dated 15.05.1991 existing in favour of Abid Ali Baig was upheld, therefore the learned counsel prayed that not only the impugned order be set aside but the order dated 08.07.2002 passed by Respondent No. 3 is also liable to be set aside.

8. Learned AAG referred to the comments filed by EDO (Revenue), Ghotki and submitted that neither the petitioner nor the Respondent No. 1 are entitled to any relief as the land in question is owned by the government and since it was brought into the knowledge of Respondent No. 2 while hearing the review application of the Respondent No. 1, therefore in exercise of his powers the Respondent No. 2 rightly held that except the government, nobody is entitled to claim ownership of the land in question and he supported the comments filed by EDO (Revenue), Ghotki.

9. To start with, let us have a glance over Section 8 of the Board of Revenue Act, 1957, which has been meant for review of orders passed by the Board. For the sake of convenience and ready reference, Section 8 of the Board of Revenue Act, 1957 is reproduced as under:--

"8. Review of orders by the Board.

(1) Any person aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason desires to obtain a review of the decree pass or order made against him may apply to the Board for a review of judgment made and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circumstances of the case require.

(2) Every application for a review of a decree or order under sub-section(1) shall be made within ninety days from the date of that decree or order. "

1. There is no doubt that Section 8 empowers a person aggrieved by a decree or order passed by the Board and who from the discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, may apply for a review, therefore it is clear beyond any shadow of doubt that this special provision introduced in the enactment to provide additional remedy to an aggrieved person to move for review on discovery of new and important matter or evidence, which could not produced by him at the time when earlier order was passed or the order sought to be reviewed under Section 8 of the aforesaid Act.

2. We have also examined the review application filed by the Respondent No. 1 before Respondent No. 2. In fact, in the review application the Respondent No. 1 took the plea that the case was fixed before the Member Board of Revenue (Judicial) on 08.07.2002 for arguments on which date the counsel for the applicant moved an adjournment application on the ground of illness of his mother but the Respondent No. 1 was present, however instead of allowing an opportunity to the counsel for the Respondent No. 1, the Member Board of Revenue (Judicial) proceeded the case. Besides this ground, the Respondent No. 1 reiterated all previous pleas, which were already decided in previous litigation and no new ground or discovery of new and important matter or evidence which after the exercise of due diligence could not be produced along with the review application was brought forward, which may justify its institution. It is clear from the order passed by Member Board of Revenue (Judicial) on 08.07.2002 that the petitioner and Respondent No. 1 both were present and order was passed after hearing them and nothing is transpiring from the order whether any adjournment application was moved by the counsel for the Respondent No. 1 or not nor any such application has been produced before us to hold that proper opportunity was not provided to the Respondent No. 1.

3. It is also an important fact which cannot be ignored that though the Respondent No. 1 claims to have purchased the land in question from Abdul Aziz Pathan in the sum of Rs.200,000/- (Rupees two lacs only) in the year 1990-91 through registered Sale Deed but not only the E.D.O. Revenue Ghotki in its order dated 14.11.2001 observed that the Respondent No. 1 failed to produce any registered Sale Deed but the Member (Judicial), Board of Revenue, the Respondent No. 3 also observed that Respondent No. 1 had not produced any evidence to establish his claim in the land in question but for the petitioner it was observed in the order dated 08.7.2002 that it is very easy to assess that the real owner of the land in question was Abdul Aziz Khan who transferred the land to Abid Ali Baig by way of sale and sufficient evidence was brought on record to establish their ownership. It is also material to mention that even in C.P. No. 84/2009, the petitioner. Zafar Ali Lund failed to file any copy of registered Conveyance Deed by which he allegedly acquired the land in question.

4. The power of review of Board of Revenue are very limited and can be invoked only for specific points namely a discovery of new and important matter for evidence which after exercise of due diligence was not within the knowledge of the petitioner or cannot be produced by him at the power when the decree was passed or order was made; on account of some mistake or error apparent on the face of record; or for any other sufficient reasons. If power of review is exercised by Board of Revenue for rectifying the decision of a Member, Board of Revenue, which suffers from incorrect interpretation or application of law or non-appreciation of facts, it would lead to an un-attending cycle of litigation. Such power in the circumstances are not available to any successor to adjudge the validity of order of his predecessor. The hon'ble Supreme Court in the case of Muhammad Din v. Muhammad Amin reported in (PLD 1994 SC 288) held as under:--

"Scope of review and validity of its exercise by Member, Board of Revenue.--Power of review can be invoked only when new and important matter or evidence was discovered which was not available on previous occasion when decree was passed or order was made on account of some mistake or error apparent on the face of the record or for any other sufficient reason--Not every cause would make remedy by way of review available but such cause must be relatable to the circumstances as discovery of new and important matter or some apparent mistake or error on the face of the record--Scope of review was limited and could be invoked and allowed only on the grounds specifically provided in the provisions of law and was not to be mistaken with appeal--Inconsequential or insignificant errors which would not go to the root of the matter were to be ignored but if error had material bearing on the final result of the case, it could be made a ground for review--Review petition having not been allowed on discovery of new and important matter or evidence, High Court was justified in setting aside order passed in review and restoring original order of Board of Revenue".

1. The Hon'ble Supreme Court supra further held that language used in Section 8 of the Board of Revenue Act is identical to the language used in Order XLVII, Rule 1, CPC. It is apparent from perusal of language used under Section 8 that power of review can be invoked only when new and important matter or evidence is discovered which is not available on the previous occasion when decree was passed or the order was made on account of some mistake or error apparent on the face of the record or for any other sufficient reasons. Words "for any other sufficient reasons" are to be read ejusdem generis with words preceding them. It is not every cause which would make the remedy by way of review available but such cause must be relatable to the circumstances as discovery of new and important matter or some apparent mistake or error on the face of the record. Scope of review is limited and can be invoked and allowed only on the grounds specifically provided in the provisions of law and is not to be mistaken with appeal. The hon'ble Supreme Court in the judgment supra further quoted its own judgment reported in 1991 SCMR 2307 in which it was held that power to review can be exercised where there is a mistake or error of law or fact apparent on the face of the record. To find out such error, one has not to scrutinize the record or evidence but it should be self evident from the perusal of record itself and can be pinpointed without elaborate examination. The review proceedings on the face of error apparent on record whereas in appeal all questions of facts and law are considered by the appellate Court. In the case of Muhammad Amin, Member (Consolidation) Board of Revenue Punjab it was held in 1992 CLC 2338 as under:--

"Power to review under S. 8, West Pakistan Board of Revenue Act, 1957 being limited, Member Board of Revenue was not competent to set-aside the order passed by his predecessor and substitute it by his own order for there had neither been discovery of new and important matter or evidence, which, after exercise of diligence was not within respondent's knowledge or could not be produced at the time when earlier order was passed nor order passed in earlier round suffered from any mistake or error apparent on the face of the record nor there were any sufficient reasons warranting review within ambit of S. 8, West Pakistan Board of Revenue, Act, 1957. Where grounds on which review was sought related to merits of case, case could not be permitted to be re-opened in purported exercise of power under S.8, West Pakistan Board of Revenue Act, 1957".

1. As a result of above discussion, the impugned order dated 11.01.2007 passed by the Respondent No. 2 is hereby declared as without lawful authority and of no legal effect. The result is that the order dated 08.7.2002 passed by the Respondent No. 3 shall hold the field with all consequential benefits. Both the Constitutional petitions are disposed of in the above terms.

(R.A.) Petition disposed of

PLJ 2013 Karachi 24 (DB)

Present: Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ.

SONERI BANK LTD. through Head Staff Compensation and Benefits and others--Petitioners

versus

FEDERATION OF PAKISTAN through Secretary Law & Justice Division, Islamabad & others--Respondents

C.P. Nos. D-1588, 1589 & 1743 of 2012, decided on 3.10.2012.

Employees Old-Age Benefits Act, 1976--

----Ss. 9 & 47--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Amendment of Act, 1976, was not Act which can be called a money bill--Amendments in Labour Laws including Employees Old-Age Benefits Act, 1976 by Finance Act, 2007--Challenge to--Validity--When Employees Old-Age Benefit Act, 1976 was promulgated it was promulgated after it having been passed by both houses of parliament--Contribution made to Employee Old-Age Benefit institution was made in respect of specific, designated employee for services to be rendered by institution to that particular employee and other employees in accordance with provisions of the Act, contribution was in nature of fee and not a tax--Amendments brought in Act, 1976 by Finance Act, 2008 were without lawful authority and of no legal effect--It was always available to Federal Govt. to initiate promulgate legislation in accordance with provisions of Constitution. [P. 33] A, B & C

Mr. Mehmood Abdul Ghani, Advocate for Petitioners.

Mr. Ahmed Shahzad Farooq Rana, Advocate and Mr. Asif Hussain Mangi, Standing Counsel for Respondents.

Date of hearing: 26.9.2012.

Judgment

Shahid Anwar Bajwa, J.--With the consent of learned counsel this Constitutional Petition was finally heard at Katcha Peshi stage and is being decided accordingly.

1. Section 47 of the Employees Old-Age Benefits Act, 1976 provides as under:--

"47. Act not to apply certain persons.--Nothing in this Act shall apply to:--

(a) persons in the service of the State, including members of the armed forces, police force and railway servants;

(b) persons in the service of a local council, a municipal committee, a Cantonment Board or any other local authority;

(c) persons who are employed in services or installations connected with or incidental to the Armed Forces of Pakistan including an Ordnance Factor maintained by the Federal Government or Railway Administration;

(d) persons in the service of Water and Power Development Authority;

(e) persons in the service of a bank, or a banking company;

(f) persons in the service of statutory bodies other than those employed in or in connection with the affairs of as denied in Section 2(j) of the Factories Act, 1934 (XXV of 1934), or a mine as defined in the Mines Act, 1923 (VI of 1923):

Provided that workshops maintained exclusively for the purposes of repair or maintenance of equipment or vehicles used in such statutory bodies shall not be treated as factories for the purposes of this clause;

(g) members of the employer's family that is to say, the husband or wife and dependent children of the employer living in his house, in respect of their work for him; and

(h) Omitted by the Finance Act, I of 1986, S. 11.

1. Through Finance Act, 2008 the following amendments were made in the Act of 1976:--

"9. Amendments of Act XIV of 1976.--In the Employees' Old-Age Benefits Act 1976 (XIV of 1976), the following further amendments shall be made, namely:--

(1) In Section 1, in sub-section (4),--

(a) in clause (I),--

(i) for the word "ten", occurring twice, the word "five" shall be substituted; and

(ii) for the colon at the end, a full stop shall be substituted and thereafter the proviso shall be omitted; and

(b) in clause(ia) for the word "twenty", the word "five" shall be substituted;

(2) in Section 9, in sub-section (1), for the word "six" the word "five" shall be substituted;

(3) in Section 22, in sub-section (2), in clause (ii) for the full stop at the end, a colon shall be substituted and thereafter the following proviso shall be added, namely:

Provided that nothing in this section shall apply to an employee insured under this Act on or after 1st day of July 2008."

(4) in Section 47, clause (e) shall be omitted; and

(5) In the Schedule--

(a) for paragraph (2), the following shall be substituted, namely:--

"(2) The monthly wages of an insured person, referred to in paragraph (1), shall be calculated on the basis of wages on which contributions were paid in respect of the twelve calendar months immediately preceding the date on which insured person fulfils the conditions for entitlement to any benefits under this Act:

Provided that the old-age pension or invalidity pension payable to an insured person and survivor's pension payable to the survivors of the deceased insured person shall not be less than two thousand rupees per month for pension commencing on or after 1st day of July 2008"; and

(b) in paragraph (3) for the figure "2007" the figure "2008" shall be substituted;

1. Learned counsel for the petitioners submitted that the Act of 1976 is not an Act which can be called a money-bill and therefore it could not be amended through a Finance Act, which can be passed only by the National Assembly and not by the Senate.

2. Learned counsel for the petitioner relied judgment of this Court in the case of Employer's Federation of Pakistan v. Federation of Pakistan, C.P No. D-260 of 2008, decided on 26.02.2011. Learned counsel also relied upon judgment of the Supreme Court reported as Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others, PLD 2009 SC 879 and Mir Muhammad Idris and others v. Federation of Pakistan through Secretary Ministry of Finance and others, PLD 2011 SC 213. Learned counsel also relied upon M/s. Saif Textile Mills Limited v. Pakistan through Secretary, Finance (Finance Division), Islamabad and 3 others, PLD 1998 Peshawar 15. Learned counsel also placed on record a copy of the letter written by the Director, Workers' Welfare Fund and contended that the Workers Welfare Fund, an arm of the Federal Government is asking industry to comply the judgment of this Court in Employer's Federation of Pakistan's case (Supra).

3. Learned counsel for Employees Old-Age Benefit Institution submitted that the contribution to be made under the Act of 1976 is a tax and therefore it has been validly amended through the Finance Act. Learned counsel referred to Corpus Juris Secundum Vol. 84 and to it following part:--

"Essentials of tax. As indicated in its definitions, the essential characteristics of a tax are that it is not a voluntary, payment or donation, but an enforced contribution, exacted pursuant to legislative authority, in the exercise of the taxing power, the contribution being of a proportionate character, payable in money, and imposed, levied, and collected for the purpose of raising revenue, to be used for public or governmental purposes, and not as payment for some special privilege granted or service rendered."

1. Learned counsel further submitted that employees Old-Age Institution pays unemployment compensation and by referring to Words & Phrases, Permanent Edition Vol. 41 page 270, submitted that contribution made in respect of unemployment is a tax. Said observations are as under:--

"Contributions under the unemployment compensation law; by whatever name designated, constitute a "tax". Prudential Ins. Co. of America v. Powell, S. S E 2d 619, 621 217 N.C. 495.

The compulsory contribution, which an employer is required to make to unemployment compensation fund is a "tax".

Contributions to state unemployment insurance fund are "taxes" imposed on employers and the amounts thereof are governed by employer's payroll. In re McClatchey's Estate, 11, N.Y. S.2d 266, 272 Misc. 696.

The "contribution" imposed by the unemployment compensation act is a "tax". Unemployment Compensation commission v. L. Harvey & Son Co., 42 S.E.2d 86, 91, 227 N.C. 291."

1. Regarding fee learned counsel referred to Corpus Juris Secundum and to the following observations:--

"Fee" means the payment for services done, or to be done; and it may be for acts or services done or performed, partially done or rendered, or to be done or rendered, or for services rendered at regular periods, especially for personal, profession, or special services; and usually the particular acts or services should be done or rendered in the line of some duty; although in a particular connection the term has been held broad enough to include ex officio compensation without specific regard to the performance of any particular service; and, as used in some statutes, the word "fees" is not restricted to charges which may be collected by a public official for services rendered by him to the public, while under other statutes it has been held to be so limited.

The general rule is that fees should be paid by the persons obtaining the benefit of the acts, or receiving the services, or at whose instance they were done or performed."

8-A. Learned counsel relied upon Muhammad Ismail & Co., Ltd., v. Chief Cotton Inspector, PLD 1966 SC 388 and M/s. Fatima Enterprises v. Federation of Pakistan through Secretary, Education, Ministry of Education, Islamabad and others, 1999 MLD 2889. Learned counsel also referred to Article 38 of the Constitution of Islamic Republic of Pakistan and submitted that the Act of 1976 is a step in that direction. Learned counsel lastly submitted that petitioner in C.P. No. D-1558/2012 himself applied to the Institution after amendment was brought about and therefore stop by his conduct.

1. Learned Standing Counsel submitted that the petitions may be decided in accordance with the law.

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

3. In Employer's Federation's case (Supra) in which case amendments in certain Labour laws including Employees Old-Age Benefits Act, 1976 by the Finance Act, 2007 were challenged. The Division Bench relied upon judgment of the Supreme Court in the case of Sindh High Court Bar Association's case (Supra) and observed as under:--

"7. A perusal of the above para indicates that any amendment made through a money bill in any substantive law dealing with the subject other than what is defined as money bill in Article 73(2) of the Constitution would be valid and effective only for the purposes of making financial provisions but would not have the effect of changing piece of legislation which does not squarely fall within the ambit of scope of money bill as given under Article 73(2) of the Constitution."

Thereafter it was observed as under:--

"Through Section 12 amendment has been made in the Employees Old-age Benefits Act, 1976. None of these has any connection or link with any of the items specified in Article 73(2) of the Constitution. None of these amendments relate to imposition, abolition, remission or regulation of any tax. They do not concern with harrowing of money or giving of any grant by Federal Government or any law relating to the financial obligation to the Federal Government. They have no link whatsoever with the custody of Federal Consolidated Fund and payments of money into or issue of money from it. They do not deal with imposition of any charge upon the Federal Consolidated Fund or the abolition, alteration of any such charge. They do not impact upon receipts of moneys on account of Public Account of the Federation or to the audit of accounts of the Federal Government. None of them by any stretch of logic therefore can be treated as money bill.

1. Constitution of a country is the fundamental document laying down, among others, structures of the State and powers and functions of various organs of the State. All such organs are creations of the Constitution and derive their powers from the Constitution and subject to the Constitution from laws enacted in accordance with the dictates of the Constitution.

Power to enact laws is one of the most essential powers in existence of any State. Our Constitution has conferred all necessary powers in this regard on the Parliament and the-Provincial Assemblies and powers of issuing Ordinances though valid for defined periods upon the President or, as the case may be, a Governor of a Province. Where it deals with power of the Parliament to legislate it clearly created a dichotomy between money bills and other legislation. Money bill can originate only in the National Assembly and after having been passed by the National Assembly are to be transmitted to the President for his assent and are not required to be passed by the Senate. Scope of money bills has been defined under Article 73(2) of the Constitution. If a bill which does not fall within the scope of money bill defined is passed as money bill it amounts to depriving Senate of Pakistan of the powers conferred upon it by the Constitution. Mandate of the Constitution must be respected and should not be sacrificed at the alter of political expediency.

1. As far as contention that certificate issued by the Speaker of National Assembly cannot be challenged is concerned, suffice it to say that we have followed judgment of the Supreme Court in Sindh High Court Bar Association's case (Supra).

2. We are fully cognizant of the fact that all Labour legislation is primarily designed to be beneficial in nature and it aims at protecting a weaker segment of the society and at reducing rigors of their lives. The noble sentiments behind changes in the Labour Laws cannot have the effect of conferring legitimacy on a piece of legislation which otherwise has not been validly enacted. In Sindh High Court Bar Association's case (Supra) since Islamabad High Court as created in 2007 was found to have been created in exercise of powers which were not available with the then President/Chief of Army Staff, the Supreme Court held that Chief Justice and Judges of the Islamabad High Court shall cease to hold office. Thereafter in Para 183 of the judgment the Supreme Court noted that under Article 37 of the Constitution, the State is obliged, inter-alia, to ensure inexpensive and expeditious justice. Thereafter the Supreme Court observed as under:--

"The establishment of the Islamabad High Court was commendable step in aid of the right of access to justice in line with the above constitutional mandate and the law laid down in the aforesaid cases. However, it... unfortunate that the said Court was not established in accordance with the provisions of the Constitution, rather it was so done by a person not empowered under the Constitution to do so, with ulterior motive. General Pervez Musharraf, as held in the preceding paragraphs, mixed up his mala fide acts of removal of Judges of the superior Court in violation of the Constitution and his own purported validation of all such unconstitutional and illegal acts by means of Article 270AAA, with the act of establishing a High Court for the Islamabad Capital Territory, otherwise an act, which would tend to advance or promote the good of the people, so that he was able to get validation and affirmation from the Parliament, as had happened in the cases of Begum Nusrat Bhutto and Zafar Ali Shah. Thus, having been so unconstitutionally established in a highly objectionable manner, it was not possible to project it. It is, therefore, added that notwithstanding what has been declared and ordered above, the relevant and competent authorities may take steps to establish such a Court in accordance with the Constitution and law."

1. We can only observe that it is within competence of both the Legislature to legislation for providing similar, better or different provisions and benefit but that can only be done in accordance with the procedure prescribed under the Constitution."

2. After Sindh High Court Bar Association's case the Supreme Court had occasion to visit the same question in Mir Muhammad Idris's case (Supra) and in respect of certain amendments in the Banks (Nationalization) Act, 1974 and declared those amendments as not valid on the same ground Mr. Mehmood Abdul Ghani pointed out that a number of applications under Section 12(2), CPC were filed for recalling judgment of this Court in Employer's Federation's case which were dismissed vide order dated 10.4.2012. Mr. Mehmood Abdul Ghani also pointed out that Workers Welfare Fund which admittedly is one of the arms of the Federal Government has written letters to employers calling upon them to comply with judgment of this Court in Employer's Federation's case.

3. Thrust of arguments of learned counsel for Respondent No. 2 was that what is collected by Respondent No. 2 is a tax because according to him it is collected for the purpose of providing unemployment compensation. Contention is clearly misconceived. Under Section 4 of the Act of 1976 the Employees Old-Age Benefits Institution is a body corporate. It has separate accounts and the contribution made by employer or by the employees is paid to the institution and is not paid to the government. Contribution is paid in respect of each employee and institution is then liable to provide benefits under the Act to such employees. It is therefore contribution for a service to be rendered by the institution in future and each penny of the institution has nexus with a particular employee employed by the employers. It therefore, cannot be by any stretch of imagination called the tax. Question in Muhammad Ismail & Co.'s case (supra) was regarding, validity of a fee imposed by the Provincial Government under the provisions of the West Pakistan Cotton Control Act, 1949. Section 26 of that Act provided requisite powers for the Provincial Government to impose fee on occupiers of factories, managers of companies and cotton dealers to cover cost of staff appointed under the Act or for improvement of agriculture relating to the cotton crop grown in Punjab. The Supreme Court observed as under:

"The matter was examined in the light of the provisions of the Indian Constitution and the general connotation of the terms "tax" and "fee". The learned Judges adopted the definition of "tax" given by Latham, C.J. of the High Court of Australia in Mathews v. Chicory Marketing Board (5). A tax", said the learned Chief Justice, "is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered". A fee, according to learned Judges, may be generally defined to be "a charge for a special service rendered to individuals by some governmental agency". It was added that the amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases the costs are arbitrarily assessed. The learned Judges were, however, conscious of the fact that there may be various kinds of fee and that it was not possible to formulate a definition that may be applicable to all cases."

1. Learned counsel relied upon Fatima Enterprises' case (Supra) which was regarding federal education fee. It was observed by a learned Single Judge of Lahore High Court as under:--

"14. This article provides that no tax can be levied for the purposes of the Federation except by or under the authority of an Act of Parliament. There is no cavil that the prohibition under Article 77 is in respect of taxes and not fees and there is a clear distinction between a tax and a fee and Constitution recognizes this distinction. The main distinction between a tax and a fee is that a tax is levied as part of a common burden, while a fee is a payment for special benefit, privilege or services. In regard to fees there must be co-relation between the fee collected and the service intended to be rendered. In the case of a fee, it is the special benefit or privilege according to an individual which is the reason for its payment, whereas in the case of a tax the particular advantage, if it exists at all, is an incidental result of a State option. There is also no cavil in the prohibition levied by a statute amounts to a fee or tax will always be a question of fact to be determined in the circumstances of each case."

1. The two cases are clearly distinguishable. It may be noticed that when Employees Old-Age Benefit Act, 1976 was promulgated it was promulgated after it having been passed by both houses of the Parliament. In any case, since we have reached the conclusion that the contribution made to the Employees Old-Age Benefit Institution is made in respect of a specific designated employee for services to be rendered by the institution to that particular employee and other employees in accordance with the provisions of the Act, the contribution is in the nature of fee and not a tax. We consequently hold that amendments brought in the Act of 1976 by the Finance Act, 2008 are without lawful authority and of no legal effect.

2. Needless to observe that it is always available to the Federal Government to initiate/promulgate legislations in accordance with the provisions of the Constitution.

(R.A.) Petition accepted

PLJ 2013 Karachi 34

Present: Muhammad Ali Mazhar, J.

Syed WAQAR HAIDER ZAIDI through General Attroney--Plaintiff

versus

Mst. ALAM ARA BEGUM through her Legal Heirs--Defendants

Suit No. 286 of 2003 and C.M.A. No. 3552 of 2009, decided on 7.12.2012.

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

----O. XII, R. 7--Nature of admission--Essential--Admission in written statement--Question of--Whether admission made in suit can be treated her admission on basis of said admission, suit can be decreed or not--Validity--It is well settled that for purpose of decreeing the suit on admission it is necessary that admission must be clear, specific, unambiguous, definite and categorical and Court was bound to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission--Plaintiff filed application u/Order 12, Rule 6, CPC for decreeing suit on admission which was dismissed the admission must be unambiguous, unequivocal and undeniable--Mere consolidation of two suits and written statement filed separately in both suits will not change their status and same will remain two distinct and separate statements and written statement of one suit cannot be utilized in another suit for purpose of Order 12, Rule 6, CPC--Admission or concession for seeking a judgment on admission as a party was not bound by an admission in his pleadings except for purpose of suit for which pleadings delivered--Plaintiff wanted decree in suit on basis of admission made by defendant in written statement of another suit which was neither possible nor warranted under the law--Application was dismissed. [Pp. 38 & 39] A, B, C, D & E

PLD 2003 Kar. 253 & 1996 SCMR 696, ref.

1992 SCMR 2300, 1983 CLC 74 & 1993 MLD 1287, ref.

Kh. Shams-ul-Islam, Advocate for Plaintiff.

Mr. M.M. Aqil Awan, Advocate for Defendants.

Date of hearing 12-10-2012

Order

This is a suit for specific performance, cancellation and injunction. The brief facts of the case are that the plaintiff entered into an agreement to sell with defendant on 20.11.2002 in respect of Bungalow No. B-173, Block-2, Gulshan-e-Iqbal, Karachi in total sale consideration of Rs. 75 lacs and in view of the terms and condition of agreement, the plaintiff made some part payment. It was agreed that balance sale consideration will be paid at the time of execution of conveyance deed and or general power of attorney in favour of the plaintiff. After signing the agreement the plaintiff repeatedly requested the defendant to fulfill her contractual obligation, but she failed to do so. The plaintiff sent a legal notice calling upon her to perform and execute conveyance deed but to no avail. Since the defendant failed to perform the agreement, the plaintiff filed this suit. During pendency of the suit the defendant expired, hence vide order dated 9.8.2004 amended title was filed and the legal heirs of the defendant were impleaded. The defendant had already filed her written statement.

1. The plaintiff earlier filed CMA No. 7021/2003 in which it was stated that the defendant made certain admissions in different Paragraphs of her written statement and in view of her admissions the suit may be decreed in favour of the plaintiff. This application was heard by the learned Single Judge of this Court and vide order dated 13.12.2005, the application was dismissed. The plaintiff filed HCA No. 39/2006 against the order of the learned Single Judge which was also dismissed in limine by the learned Division Bench of this Court vide order dated 1.3.2006.

2. Earlier to the institution of this suit, two sons and one daughter of the defendant (Mst.Alam Ara) filed suit for declaration, cancellation and permanent injunction in the Court of Senior Civil Judge, Karachi East on 8.2.2003 in which they prayed that all the properties left by their deceased father particularly property i.e. Bungalow No. 173, Block-2, Gulshan-e-Iqbal, Karachi has been inherited by all surviving legal heirs. They also prayed for declaration that the mutation letter issued in favour of their mother i.e. Defendant No. 1 in the present suit be cancelled. When this fact brought into notice of this Court that a Suit No. 376 of 2003 is pending in the civil Court, the same was called from civil Court and vide order dated 2.3.2009 both suits were consolidated and the plaintiff of the present suit was also impleaded as Defendant No. 4 in Suit No. 492 of 2008 (Old No. 376/2003). Though earlier application moved under Order XII, Rule 6, CPC was dismissed and the aforesaid HCA was also dismissed in limine, the plaintiff has moved another application in the year 2009 under Order XII, Rule 6 CPC that the Defendant Nos. 1 and 1-A as well as CDGK in their written statement in Suit No. 492/2008 categorically admitted that Mst. Alam Ara entered into the sale agreement with the plaintiff, hence, the plaintiff has again prayed that on the basis of admission made by the Defendant No. 1 in Suit No. 492/2008 this suit may be decreed. The defendant Abdul Samad Khan filed counter affidavit in which he denied the contention raised by the plaintiff. It was stated that if disclosure of facts made by the deceased Defendant No. 1 will be read along with contents of the Paras 5, 6, 8, 10 and 11 of written statement, it will become clear that other legal heirs of the deceased Abdul Monim Khan had interest in the property. It was further stated that if both the written statements will be read together it will transpire that no admission was made by her, which can be termed unequivocal and unambiguous. He further stated that the matter requires evidence and on the basis of the said written statement, no decree can be passed.

3. Kh. Shams-ul-Islam, learned counsel for the plaintiff argued that the defendant as well as her elder son admitted the execution of agreement in their written statement filed in Suit No. 492/2008. He further argued that the total sale consideration was Rs. 75 lacs and out of which Rs. 15 lacs was paid and Rs. 60 lacs would be paid at the time of execution of conveyance deed. It transpired from the written statement of CDGK that the suit property was mutated in the name of Defendant No. 1 on the basis of deed of relinquishment executed in her favour by all sons and daughters. He further argued that the admission made by Defendant No. 1 in Suit No. 492/2008 came into the knowledge of plaintiff after tagging of the aforesaid suit with this suit, though he admitted that he moved the application under Order XII, Rule 6, CPC on the basis of admission made in the written statement filed in the present suit, which was dismissed and the said order was challenged in HCA, which was also dismissed. In support of his arguments the learned counsel referred to 2003 SCMR 1261 (Amir Bibi v. Muhammad Khursheed) in which the hon'ble Supreme Court held that in view of Order XII, Rule 6, CPC, the Court is competent to dilate upon and decide the undisputed part of the case or whole of the case as per the circumstances of each case, but such power was not unfettered and the admission on the basis whereof a decree was sought must be specific, clear, unambiguous, categoric and definite. Court is bound to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission and it was discretionary for the Court to accept or reject such application. He further referred to 2007 SCMR 433 (G.R.Syed v. Muhammad Afzal), in which the apex Court again relying upon its own judgment supra held that the Court is empowered under Order XII, Rule 6, CPC to pass judgment on the basis of admissions of facts made by the parties to their pleadings, at any stage of proceedings, if it is concluded that admissions of the defendant were specific, clear, unambiguous categorical and definite. Court is bound to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission and it was discretionary for the Court to accept or reject such application.

4. Conversely, Mr. M. M. Aqil Awan, learned counsel for the defendants argued that the matter is pending since 2003 and but no issues have been framed so far. He further argued that the defendants have already filed the consolidated issues, but the plaintiff is avoiding unnecessarily and instead of filing proposed issues he has filed this application, which was earlier dismissed but the same application has been repeated on the grounds that the Defendant No. 1 made some admissions in the written statement filed in Suit No. 492/2008. Learned counsel also referred to an undated order of this Court passed by learned Single Judge earlier in which the question of maintainability of suit was also decided. In fact the maintainability of the Suit No. 492/2008 was in question and according to counsel for the plaintiff in this suit he raised objection that the said suit was time barred. Learned Single Judge held that the question of limitation is mixed question of law and facts and to prove the fact of mutation in favour of Mst. Alam Ara Begum evidence is required. It was further held that whether the suit is barred by time or not, this fact can only be decided after recording of evidence. Vide order dated 2.3.2009, both suits were consolidated and it was ordered that the leading suit shall be Suit No. 286/2003. He further referred to order dated 17.3.2008, related to the decision of CMA No. 4555/2007, filed by the defendants with the prayer that the earnest money of Rs. 15 lacs be allowed to be paid/refunded back to the plaintiff and in case of refusal the defendants may be allowed to deposit the same with the Nazir of this Court. On this application, the Court allowed the defendants to deposit Rs. 15 lacs with the Nazir of this Court, which was received by the Defendant No. 1 being a part payment of the agreed sale consideration and the Court further directed that if said amount is deposited, the Nazir shall invest the same in some Government profitable scheme. The learned counsel concluded that there is no admission in the written statement and the controversy cannot be resolved unless the issues are settled and evidence is recorded in this case. In support of his arguments learned counsel referred to PLD 2003 Karachi 253 (M/s. Gerry's International (Pvt.) Limited v. M/s. Qatar Airways), in which learned Division Bench of this Court held that mere non-denial to a fact in the written statement could not be considered as an admission and that too be equated as unequivocal, clear and unambiguous. He further referred to the judgment of hon'ble Supreme Court in the case reported in 1996 SCMR 696 (Macdonald Layton & Company Pakistan Ltd. V. Uzin Export-Import Foreign Trade Co.), in which it was held that essential provision of Order XII, Rule 6, CPC provides summary and speedy remedy in cases where admission was made by defendant in the pleadings or outside the same. In order to attract this provision, it is necessary that the admission should be unequivocal and undeniable. The Court in deciding such application exercise its discretion which is regulated by the well-recognized principles. To pass judgment on admission is within the discretion of the Court which should be exercised in judicial manner and is not a matter of right. However, if it involves questions which cannot be conveniently disposed of in an application, the Court may exercise discretion in rejecting the application.

5. Arguments heard. There is no doubt that Order XII, Rule 6, CPC enables a Court upon application by either party to dispose of the suit with regard to which there is no dispute between parties. The entire plaint or written statement is required to be read for the purposes of finding out the nature of admission. It is also well settled that for the purposes of decreeing the suit on admission it is necessary that the admission must be clear, specific, unambiguous, definite and categorical and Court is bound to examine the plaint and written statement with diligent application of mind to ascertain the nature of admission. Earlier, the plaintiff filed an application under Order XII, Rule 6, CPC for decreeing the suit on admission, which was dismissed by the learned Single Judge of this Court. The plaintiff preferred HCA, which was also dismissed in limine.

6. So far as the decree on admission in the case in hand is concerned, the application was already dismissed, so the question of decreeing this suit on admission does not arise. The plaintiff has moved the present application on the plea that Defendant No. 1 in this suit, who was also Defendant No. 1 in Suit No. 492/2008 made certain admissions in her written statement, therefore, the plaintiff wants decree on admission in this suit, which was allegedly made in the written statement filed by the Defendant No. 1 in Suit No. 492/2008. Though both the suits under the order of this Court have been consolidated, but the decisive point in this case is to see whether the alleged admission made by the Defendant No. 1 in Suit No. 492/2008 can be treated her admission in Suit No. 286/2003 and on the basis of said admission, this suit can be decreed or not. The plethora of the case law is available through which it is well settled that for passing decree on admission the admission must be unambiguous, unequivocal and undeniable. In the Suit No. 492/2008 the plaintiff of this suit is Defendant No. 4, while the plaintiffs are two sons and one daughter of deceased defendant Mst. Alam Ara Begum. So it is clear that the Suit No. 492/2008 either can be dismissed or it can be decreed in favour of plaintiffs in that suit and not in favour of the present plaintiff in Suit No. 286 of 2003.

7. At this juncture, I would like to refer the case of Naseer Ahmed & another v. Asghar Ali reported in 1992 SCMR 2300, in which the hon'ble Supreme Court has held as under :--

"13. It is noteworthy that the alleged admission relied upon by the appellants was not made in the suit in hand, but in another suit. In law a party is bound by admission recorded in the pleading in a suit, in which it is filed and not in a subsequent suit. Reference in this connection may be made to Para. 821, Vol. I of Taylor's Law of Evidence (1931 Edn.) wherein it is laid down that:--

"With respect to admission by pleading the law at present seems to be that statements which are contained in any pleading, though binding on the party making them for all the purposes of the cause, ought not to be regarded in any subsequent action as admission."

This rule has been stated in Monir's "Laws of Evidence", 4th Edn., Vol. I at page 679, as under:--

"....an admission in a pleading is binding only in the proceedings in which it is made and may be shown to be wrong in subsequent proceedings."

In the aforesaid judgment the dictum laid down by the apex Court, makes it clear that in law a party bound by admission recorded in the pleading in a suit, in which it is filed and not in any other suit. In AIR 1941 Bombay 144, while referring to the Evidence Act, the learned Court held that a party is not bound by an admission in his pleading except for the purposes of the suit in which the pleadings is delivered. It frequently happens that a party is prepared in a particular suit to deal with the case as on particular ground and to make an admission, but that admission is not binding in any other suit and certainly not for all time.

1. The mere consolidation of two suits and the written statement filed separately in both suits will not change their status and the same will remain two distinct and separate statements and the written statement of one suit cannot be utilized in another suit for the purposes of Order XII, Rule CPC, so as to read any admission or concession for seeking a judgment on admission as a party is not bound by an admission in his pleadings except for the purposes of suit for which the pleadings delivered. Reference can be made to 1983 CLC 74. The another judgment reported in 1993 MLD 1287, the full bench of this Court held that where the case involved questions which could not be conveniently disposed of on a motion under Order XII, Rule 6, CPC, Court should in exercise of its discretion refuse motion.

2. Learned counsel for the parties relied upon various case law, in which the guiding principle was that the admission should be clear, specific, unambiguous categorical and definite on the basis of which decree can be passed and the Court is bound to examine the plaint and written statement to ascertain the nature of admission in that case. There is no cavil to the proposition expounded in the case law referred to above. Here the position is entirely different in which plaintiff wants decree in his suit on the basis of admission made by the Defendant No. 1 in her written statement of another suit which is neither possible nor warranted under the law.

3. For the foregoing reasons, the application is dismissed.

(R.A.) Application dismissed

PLJ 2013 Karachi 40 (DB)

Present: Sajjad Ali Shah & Riazat Ali Sahar, JJ.

MUHAMMAD USMAN--Petitioner

versus

STATE and 3 others--Respondents

C.P. No. D-1159 and Crl. Misc. Appln. No. 158 of 2011, decided on 25.9.2012.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 516-A--Constitutional Petition--Superdari--Car was seized under memo of seizure--Possession of car was handed over to respondent on superdari--Real owner of vehicle--Question of--Whether car was sold out by actual owner to petitioner or by accused of offence of cheating and dishonestly inducing delivery of property and forgery and could said accused sale the car in such circumstances--Validity--Applicant had failed to establish his status being a bona fide purchaser, even he did not produce copy of CNIC who was said to have been seller of vehicle in transaction between parties--Possession of vehicle being legal owner by virtue of registration documents thus by way of cheating one cannot be succeeded to prove its status as a last possessor--Car was sold out by one who had been implicated as an accused for offence of cheating in subject car, therefore, he does not come within ambit of bona fide purchaser--Petition was dismissed. [P. 42] A

Mr. Akram Shehbaz, Advocate for Petitioner.

Syed Zulfiqar Haider Shah, Advocate for Respondent No. 4.

Mr. Ali Haider Saleem, Asstt. P.G. Sindh for State.

Date of hearing: 25.9.2012.

Order

Riazat Ali Sahar, J.--By this single order we intend to dispose of above Constitutional Petition and Criminal Miscellaneous Application No. 158/2011 filed by the Petitioner/Applicant.

1. The relevant facts of the case are that the petitioner after seeking clearance from CPLC and publication through daily "JANG", Karachi dated 17.10.2010, purchased a car bearing Registration No. AQT-570, Model-2008 against sale consideration of Rs. 600,000/- (Rupees Six-hundred thousand only) in cash from one Muhammad Nadeem son of Ghulam Nazuk, who after receiving cash amount delivered the possession of the said car alongwith original registration documents and open Transfer Letter duly signed by the Seller. On 27.12.2010, the petitioner/applicant was called by the Boat Basin Police at Police Station, where his said car was seized under the memo of seizure in Crime No. 687/2010 for offence punishable under Sections 420, 468 and 471, PPC. The petitioner/applicant approached the Court of learned VI-Judicial Magistrate, Karachi (South) by filing application under Section 516-A, Cr.P.C., but the same was declined, thereafter he being aggrieved filed a criminal revision application before the learned III-Additional Sessions Judge, Karachi (South), which was also declined and possession of the car was handed over to the Respondent No. 4 Jawed-ul-Hassan on Superdari. The relevant facts of the case of Respondent No. 4 are that he is the owner of aforesaid vehicle by virtue of original registration book in the name of Jawed-ul-Hassan. On 14.10.2011, he sold out the said vehicle to one Muhammad Nadeem against sale consideration of Rs. 710,000/- (Rupees Seven-Hundred Ten-Thousand only) and received a Pay Order of entire amount Bearing No. 683720, which was deposited by him in Meezan Bank Ltd, but the same was returned as "fake pay order". On 18.10.2010, when Respondent No. 4 came to know that he has been cheated by said Muhammad Nadeem, he lodged an FIR with P.S. Boat Basin bearing Crime No. 687/2010, for offence punishable under Sections 420, 468 and 471, PPC. After recovery of the car, the Respondent No. 4 approached VI-Judicial Magistrate, Karachi (South) for restoration of the vehicle, but his application was declined, then he approached the learned Sessions Judge, who transferred his application to III-Additional Sessions Judge, Karachi (South), whereby the vehicle has been restored on Superdari.

2. It is, inter alia, contended by the learned counsel for the petitioner/applicant that he is the bona fide purchaser of the car in question and police recovered the vehicle from his possession, therefore, he comes within the ambit of last possessor of the vehicle. He further contends that all the original documents of the vehicle were handed over to the Nazir of the trial Court in compliance of the order dated 14.3.2011 passed by the III-Additional Sessions Judge, Karachi (South). Lastly he prayed for restoration of the vehicle in question alongwith its original documents.

3. Conversely, learned counsel for Respondent No. 4 contended that the Respondent No. 4 is the real owner of the vehicle, but unfortunately he has been cheated by one Muhammad Nadeem, for which he had lodged FIR and being a legal owner he was the last possessor, who was in possession of the said vehicle.

4. The learned Assistant Prosecutor General also supported the version of learned counsel for Respondent No. 4 and contended that the possession of the vehicle was rightly handed over to the Respondent No. 4.

5. We have considered the respective submissions of learned counsel for the petitioner/applicant, learned counsel for Respondent No. 4, learned Assistant Prosecutor General for the State and examined the record.

6. We are of the considered view that in fact Boat Basin Police secured the vehicle under the memo. of seizing in Crime No. 687/2010 registered at P.S. Boat Basin for offence punishable under Sections 420, 468 and 471, PPC from the possession of the petitioner/applicant. The registration documents are in the name of Respondent No. 4. The Pay Order amounting to Rs. 710,000/- received from Mohammed Nadeem was declared as fake by Meezan Bank Ltd., Karachi. petitioner/applicant has failed to establish his status being a bona fide purchaser at this stage, even he did not produce the copy of CNIC of Muhammad Nadeem, who is said to have been Seller of the vehicle in question in transaction between Muhammad Nadeem and the Petitioner and purchaser in transaction between Muhammad Nadeem and Respondent No. 4 Jawed-ul-Hassan. It appears that both the parties have been cheated by Muhammad Nadeem. So far as the question of last possessor is concerned, in the instant case it has been observed that Respondent No. 4 was lastly in possession of the vehicle being a legal owner by virtue of registration documents, thus by way of cheating one cannot be succeeded to prove its status as a last possessor. The car, according to the petitioner/applicant has been sold out to him by one Muhammad Nadeem, who has been implicated as an accused for the offence of cheating in the subject car, therefore, he does not come within the ambit of bona fide purchaser of the same. The important point for consideration is as to whether the car was sold out by the actual owner to the petitioner or by accused of the offence of cheating and dishonestly inducing delivery of property and forgery; and could the said accused sale the car in such circumstances.

7. In view of above discussion, the instant petition and criminal miscellaneous application merit no consideration and are dismissed. However, the petitioner/applicant would be at liberty to pursue his available remedies in accordance with law.

(R.A.) Petition dismissed

PLJ 2013 Karachi 43

Present: Muhammad Ali Mazhar, J.

MISS ZAINAB--Petitioner

versus

MUHAMMAD JAVED and 6 others--Respondents

J.M. No. 21 and C.M.A. No. 10657 of 2012 and Suit No. 129 of 2011, decided on 9.10.2012.

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

----S. 12(2)--Suit was filed through special attorney--Withdrawal of suit through some other advocate--Challenged withdrawal of suit--Fraud or misrepresentation of fact suit was withdrawn by his own free will without any coercion or duress--Validity--Proceedings initiated u/S. 12(2), CPC, Court has to see only as to what fraud or misrepresentation of fact was committed by other side for securing or obtaining orders--Fraud was alleged to have been committed with principal and co-owner in estate of deceased father, but he had not reported any fraud and mis-representation in any application u/S. 12(2), CPC--Withdrawn suit by his own free will without any coercion or duress, so no case of fraud or misrepresentation was made out for setting aside order, whereby suit was dismissed as withdrawn--No procedure was provided to decide the application u/S. 12 (2), CPC however, for determination of application moved u/S. 12(2), CPC, Court was not under obligation in every case to frame issues, record evidence of parties and follow procedure prescribed for decision in suit--Applicant was merely acting as an agent and attorney and when plaintiff appeared and stated that he was not victim of any fraud or misrepresentation rather he candidly admitted that he had withdrawn suit by his free will, therefore, after revocation of attorney application cannot espouse the cause of plaintiff--Since no case of fraud or misrepresentation was made out, application was dismissed. [Pp. 47, 48 & 49] A, B & D

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

----S. 12(2)--Decree was obtained due to fraud--Remedy was available to vitiate or set aside order--Validity--Indenture of revocation, notice and public notices all were available on record but application had failed to rebut any document--Fraud no doubt would vitiate most solemn proceedings and can be taken as a ground of attack but at same time it might be urged as ground of defence. [P. 49] C

2010 SCMR 1097, rel.

Ms. Syeda Sara Kanwal, Advocate for Applicant.

Mr. Tariq Mehmood, Advocate for Respondent No. 4.

Mr. Anwar Fazlani, Advocate for Respondent.

Date of hearing: 9.10.2012.

Order

The applicant has filed this judicial miscellaneous application under Section 12(2) read with Section 151, C.P.C for setting aside an order dated 9.4.2012 passed in Suit No. 129 of 2011 title "Ghulam Mohiuddin vs. Muhammad Javed & others", which according to the applicant was obtained through fraud and misrepresentation.

1. The brief facts of the case are that a Suit No. 129 of 2011 was filed by Ghulam Mohiuddin for partition and permanent injunction through his daughter and special attorney Ms. Zainab (applicant) against the present respondents. The plaintiff claimed in the suit that he and the defendants are legal heirs of deceased Muhammad Masood, who died on 12.9.2000 and left two properties mentioned in the head of immoveable properties at page-2 of the plaint as "A" and "B". The suit remained pending, however, when this suit was fixed before me on 15.3.2012, CMA No. 1625/12 was fixed for hearing, in which the attorney of plaintiff in her supporting affidavit stated that her father (plaintiff) Ghulam Mohiuddin has been forcibly kept by Defendant Nos. 3 to 7 and took his signatures under threat and have filed application for withdrawal of the suit through some other advocate. The matter was adjourned by me for 29.3.2012 with the directions to the defendants to produce the plaintiff in Court on the next date of hearing. On 29.3.2012 the matter was fixed in Court before learned single judge but the Reader diary shows that the Board was discharged, however, it was again fixed before another learned Judge of this Court on 9.4.2012, when the counsel for the plaintiff was present and he drawn the attention of the Court to CMA No. 622 of 2012 which application was filed by the counsel for the plaintiff and the application was supported by the personal affidavit of Ghulam Mohiuddin, in which he stated that on 14.1.2012 he has revoked/cancelled the special power of attorney given by him to his daughter Ms. Zainab and in this regard the public notice was also published in daily Aman dated 18.1.2012. Copy of deed of revocation of special power of attorney, notice given to the attorney Ms. Zainab and public notice, all were attached with the personal affidavit of the plaintiff. The learned Single Judge vide order dated 9.4.2012 allowed the application and suit was dismissed as withdrawn along with pending applications.

2. This judicial miscellaneous application under Section 12(2) CPC has been filed by Ms. Zainab in the capacity of attorney of her father and though she has challenged the withdrawal of the suit, but in para 6 of the application she herself admitted that the application moved under Order XXIII, Rule 1, CPC was supported by the personal affidavit of the plaintiff Ghulam Mohiuddin in the suit.

3. On 16.8.2012, Mr. Anwar Fazlani, advocate undertook that on the next date the father of applicant Ghulam Mohiuddin will also appear in person to resolve the controversy, therefore, the matter was adjourned to 12.9.2012. On 12.9.2012, the Respondent No. 4, who is real sister of plaintiff reported that Ghulam Mohiuddin is not feeling well, hence, he could not appear. She undertook to produce him on the next date for further proceedings. On her request the matter was adjourned to 21.9.2012. Today, advocate for Ghulam Mohiuddin and Respondent No. 4 moved urgent application in which it is stated that the matter was adjourned for 21.9.2012, which was declared public holiday and hence, the matter was by consent taken up for hearing today. Since counsel for the applicant, counsel for Ghulam Mohiuddin and Respondent No. 4 all were present in Court, therefore, by consent urgency was granted and all applications including the main application moved under Section 12(2) CPC were taken up for hearing.

4. Ms. Syeda Sara Kanwal, the learned counsel for the applicant argued that the applicant is lawfully constituted attorney of her father and she has rightly filed the suit for partition on his behalf. She argued that the suit was withdrawn surreptitiously and the signatures of the plaintiff were obtained under duress. She further argued that the plaintiff was continuously requesting his brothers and sisters to give his share and ultimately he filed the Suit No. 129/2011, as the defendants flatly refused to pay his share in the inherited properties. She further argued that CMA No. 622/2012 was presented in this suit on 21.1.2012, while the applicant being attorney moved CMA No. 1625/12 on 20.2.12 and obtained the order for the production of Ghulam Mohiuddin in Court on 29.3.2012. The case was subsequently fixed on 9.4.2012 on which date eight applications were fixed for hearing but CMA No. 622/12 was taken up and suit was dismissed as withdrawn. Learned counsel argued that the order was obtained by concealing the order dated 15.3.2012 and the Court was misled. According to the learned counsel, the order dated 9.4.2012 was obtained through fraud and misrepresentation of facts. She further argued that CMA No. 1625/12 regarding the production of plaintiff in Court was filed after filing the application of withdrawal, therefore, the counsel argued that the withdrawal application should not have been allowed. Finally, she argued that the order is liable to be set-aside and the suit be restored to its original position.

5. Conversely, the learned counsel for Ghulam Mohiuddin argued that father of the applicant is present in Court in person, and he invited my attention to application moved by Ghulam Mohiduddin under Section 151, CPC and his rejoinder/counter affidavit in which it was mentioned that the application under Section 12(2), CPC is misconceived. It was further stated that the applicant has no power/authority or locus standi to file this application on the strength of special power of attorney. It was further stated that Ghulam Mohiuddin has revoked withdrawn the special power of attorney. Rejoinder and supporting affidavit of application of Ghulam Mohiduddin was attested by the Identity Section Management System (ISMS) on 7.8.2012. The learned counsel further pointed out that the urgent application is also supported by personal affidavit of Ghulam Mohiuddin, which was also sworn in before the ISMS Department of this Court on 5.10.2012, in which he has again stated that he has revoked the special power of attorney and he has executed general power of attorney in favour of Mst. Gulnar (Respondent No. 4). Since Ghulam Mohiuddin was present in Court and the applicant requested for a short meeting with him, therefore, I kept aside the case and allowed the applicant to meet with her father Ghulam Mohiuddin separately in the Court room. After their meeting I myself asked Ghulam Mohiuddin whether he withdrew the suit under threat or pressure to which he replied that the suit was withdrawn by him with his freewill and without any threat or pressure.

6. Mr.Tariq Mehmood, the learned counsel for the Respondent No. 4 argued that the applicant has no right and or authority to plead the case of her father. He invited my attention to the statement, which he filed along with some documents on 10.9.2012. The first document is general power of attorney, which the plaintiff executed in favour of his sister Mst. Gulnar (Respondent No. 4) this power of attorney was registered on 12.4.2012 before Sub-Registrar, Gulberg Town, Karachi. Learned counsel further pointed out the deed of revocation of special power of attorney, which was executed by Ghulam Mohiuddin on 14.1.2012, whereby he revoked the special power of attorney executed in favour of applicant. The notice of revocation dated 15.1.2012 is also attached along with courier receipt and copy of public notice which was published in daily newspaper Aman, Karachi on 18.1.2012 is also attached. The learned counsel argued that on the face of it, this J.M. under Section 12(2), CPC is not maintainable and after revocation of special power of attorney, the applicant has no right and authority to file this J.M., which is liable to be dismissed.

7. After hearing the arguments of all learned counsel, I have reached to an irresistible conclusion that the Suit No. 129/2011 was filed by the applicant in the capacity of attorney, as it is the only plaintiff who can claim in his life time his inherited share in the estate of his deceased father. I have also seen the special power of attorney, which was executed by Ghulam Mohiuddin in favour of applicant in the year 2010, in which the applicant was authorized to move competent Court for the purpose of obtaining succession certificate/letter of administration or in criminal/civil litigation on behalf of Ghulam Mohiuddin and further authorized to receive share of the plaintiff or to take possession of portion in the deceased property. It is also a fact that the suit was withdrawn on 9.4.2012 and withdrawal application was supported by personal affidavit of Ghulam Mohiuddin and when CMA No. 622/12 was presented in Court on 21.1.2012, the special power of attorney executed by Ghulam Mohiuddin in favour of applicant was already withdrawn and notice was tendered and public notice was also published on 18.1.2012, therefore, in, all fairness, when the application for withdrawal of the suit was filed and it was withdrawn the applicant was not attorney of the plaintiff. Similarly, when the applicant moved CMA No. 1625/12 on 20.2.2012, at that time also she was not attorney of her father. No issue is before me in the present proceedings nor the applicant has assailed the revocation of power of attorney or execution of fresh power of attorney by Ghulam Mohiuddin in favour of his sister.

8. It is well settled that under the present proceedings initiated under Section 12(2) CPC, the Court has to see only as to what fraud or mis-representation of fact has been committed by the other side for securing or obtaining the orders in his favour. Here the fraud is alleged to have been committed with Ghulam Mohiuddin, who was principal and or co-owner in the estate of his deceased father, but he has not reported any fraud and misrepresentation in any application under Section 12(2), CPC. On the contrary, he has voluntarily appeared in the Court and clearly Stated that he has withdrawn the suit by his own freewill without any coercion or duress so in my view no case of fraud or misrepresentation is made out for setting aside the order, whereby the Suit No. 129/2011 was dismissed as withdrawn. Ghulam Mohiuddin had withdrawn the suit on the grounds that defendants assured him for the payment of his inherited share in the estate of his deceased father. If his share has not been paid, he can institute fresh proceedings but applicant has no right to represent him as attorney when the power was revoked.

9. The remedy under Section 12(2), CPC is available only to vitiate or set aside the order/judgment or decree, which was obtained due to fraud, misrepresentation of facts or want of jurisdiction. From the available record, it is clear that indenture of revocation, notice and public notice all are available on record but the applicant failed to rebut any document. Fraud vitiates all things. Fraud no doubt would vitiate most solemn proceedings and can be taken as a ground of attack but at the same time it may be urged as ground of defence. The honorable Supreme Court in its judgment reported in 2010 SCMR 1097 discussed the meaning of fraud and or misrepresentation used in Section 12(2), CPC on the basis of dictum laid down by it and legal dictionaries which are as under:--

"Fraud"

"Every representation made to a Court which is deliberately false amounts to a fraud and would vitiate a decree" (Mst. Izat and others v. Khuda Bakhsh PLD 1959 Kar. 221).".

"A party to a fraud is not allowed to plead his own fraud (Abdul Razzaq Hawaldar v. Sheikh Muhammad Shafi PLD 1962 SC 134)".

"Fraud means and includes, inter alia, the suggestion, as a fact, of that which is not true, by one who does not believe it to be true and the active concealment of fact by one having knowledge or believe of the fact" (Allah Wassaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184).

"The collusion no doubt, is a species of fraud. The collusion in judicial proceedings is a secret agreement between the two persons that one should institute a suit against the other in order to obtain a decree of a judicial tribunal for some sinister purpose" (Munir Ahmad Khan v. Sami Ullah Khan 1986 CLC 2655).

"For the purpose of sub-section (2) of the Section 12 of the C.P.C. the plea of collusion is as good as the plea of fraud" (Zafarullah etc. v. Dost Muhammad etc. PLD 1984 Lah. 396).

"Fraud"

"A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury". "A generic term, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestion or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated" (Blacks Law Dictionary Fifth Edition).

"Misrepresentation"

"Any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts. An untrue statement of fact. An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists. Colloquially it is understood to mean a statement made to deceive or mislead." (Black Law Dictionary Fifth Edition).

"Collusion"

"An agreement between two or more persons to defraud a person of his right by the forms of law, or to obtain an object forbidden by law. It implies the existence of fraud of some kind, the employment of fraudulent means, or of lawful means for the accomplishment of an unlawful purpose." (Blacks Law Dictionary Fifth Edition).

1. There is no procedure provided to decide the application under Section 12(2), CPC, however, for determination of application moved under Section 12(2), CPC, Court is not under obligation in every case to frame issues, record evidence of the parties and follow procedure prescribed for decision in suit. Matter is left to the satisfaction of the Court which has to regulate its proceedings and keeping in view the nature of allegation in the application the Court may in its discretion adopt any mode for its disposal. Reference can be made to my own judgment reported in PLD 2010 Karachi 400 (Muhammad Akram Shaikh v. M/s. Pak Libya Holding Company) and 2010 CLC 1578 (Mrs. Azra Shabbir v. Mrs. Rehana Khatoon).

2. The applicant was merely acting as an agent and attorney and when plaintiff himself appeared and categorically stated that he was not victim of any fraud or misrepresentation rather he candidly admitted that he had withdrawn the suit by his free will therefore in my view, after revocation of attorney, the applicant cannot espouse the cause of plaintiff. Since no case of fraud or mis-representation is made out, this application is dismissed along with all pending applications.

(R.A.) Application dismissed

PLJ 2013 Karachi 50

Present: Muhammad Ali Mazhar, J.

NAJAMUDDIN ZIA & another--Plaintiffs

versus

Mst. ASMA QAMAR & others--Defendants

Suit No. 1458 of 2011 and C.M.A. No. 7010 of 2012, decided on 7.12.2012.

Companies Ordinance, 1984 (XLVII of 1984)--

----Ss. 7 & 8--Suit for damages--High Court having jurisdiction in place at which registered office of company was situated--No second opinion--It is well settled principle that each case is to be decided on its own facts, so in order to resolve controversy whether proper remedy available with plaintiffs to file application under provision of Companies Ordinance, or suit filed in High Court in its original side was maintainable--No doubt that defendants were not directors in company and allegations leveled against them were more particularly in proceedings--This is settled principle of law that in case of substantial question of facts or law the provisions of Order 7 Rule 11, CPC cannot be invoked rather proper course for Court. [Pp. 56 & 57] A & C

Companies Ordinance, 1984 (XLVII of 1984)--

----Ss. 290 & 305--Matter of demonstrate--Plaintiffs had raised various allegations and questions of facts which require lengthy inquiry and evidence could not be subject matter of proceedings--Plaintiffs had claimed damages which of course cannot be decided without recording evidence. [P. 57] B

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

----Ss. 54 & 56--Right to obtain relief by way of permanent injunction--In suitable cases a suit by director against other director for injunction restraining latter from committing illegal acts is maintainable in Civil Court. [P. 58] G

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

----S. 9--Companies Ordinance, 1984, Ss. 263, 290 & 305--Jurisdiction of Civil Court--Maintainability of civil suits--Relief’s claimed by plaintiffs were such which cannot be decided under provisions of Companies Ordinance and disputed questions of facts raised can only be decided after recording evidence including claim of damages whether plaintiffs were entitled to claim. [P. 58] D

Companies Ordinance, 1984 (XLVII of 1984)--

----Ss. 263, 290 & 305--Scope and domain--Contents of plaint--High Court was left with no other option but to reject plaint with directions to file proper proceedings in accordance with Companies Ordinance--Contents of plaint, allegations and relief claimed by plaintiff it would not advance cause of justice to reject plaint with direction to approach company judge when controversy involved does not germane to parameters of S. 263 & 290 of Companies Ordinance. [P. 58] E & F

Mr.Faisal Kamal, Advocate for Plaintiffs.

Mr.Sami Ahsan, Advocate for Defendant Nos. 1, 2 & 4.

Mr.Khalid Dawoodpota, Advocate for Defendant No. 3.

Mr. Salman Hamid Advocate for Intervener.

Date of hearing: 18.10.2012.

Order

This order will dispose of an application moved under Order VII, Rule 11 CPC by the Defendants No. 1, 2 and 4. In the application learned counsel reproduced the prayer clauses and argued that under Sections 7 and 8 of the Companies Ordinance, 1984 this suit is not maintainable, but a Judicial Misc. Application under the Companies Ordinance, 1984 should have been filed before the company judge of this Court. Learned counsel further argued that the Court having jurisdiction under the Companies Ordinance is the High Court having jurisdiction in the place in which the Registered Office of the Company is situated. Learned counsel then referred to Section 8 of the Companies Ordinance in which it is provided that in each High Court company bench be constituted by the Chief Justice of the High Court to exercise the jurisdiction vested in the High Court under Section 7.

1. It was further averred that it is manifestly clear from the prayer clauses made in the suit that the case of the plaintiff falls within the ambit and parameter of Sections 263, 290 and 292 of the Companies Ordinance in which the right course was available to move judicial misc. application under aforesaid provision of the Companies Ordinance to the company bench of this Court constituted under Section 8 of the Companies Ordinance. Learned counsel also referred to Section 4, CPC in which it is provided that in the absence of any specific provision to the contrary, nothing in this code shall be deemed to limit or otherwise effect any special or local law now in force or any special form of procedure prescribed by or under any such law for the time being in force. The purpose of referring to Section 4, CPC was to make emphasis that proper remedy with special jurisdiction is provided under the Companies Ordinance, therefore, the suit is not maintainable and plaint is liable to be rejected.

2. In support of his arguments the learned counsel referred to an order of the Division Bench of this Court passed in C.P.No. D-2241/2012 filed by the Defendant No. 4 against SECP which petition was dismissed in limine with the observation that under Sections 263 and 264 Companies Ordinance, recourse could not be made by filing a petition before a company judge, which is an adequate remedy in the facts and circumstances of the case. He referred to unreported order passed by learned Single Judge of this Court in J.M.No. 22/1997 in which Section 5 and Section 6 of the Arbitration (Protocol and Convention) Act, 1937 were under discussion and the controversy involved was that under Section 5 sub-section (2) of the aforesaid Act, it is provided that the application moved shall be treated as a suit, while Rule 294 of Sindh Chief Court Rules (O.S) provides that application under Sections 3 and 5 of the Arbitration (Protocol and Convention) Act, 1937, made by petitioner shall be disposed of as misc. matter. After arguing and reconciling both the provisions the learned Single Judge held that application seeking enforcement and award filed under Sections 5 and 6 of the Arbitration (Protocol and Convention) Act, 1937 shall be treated as suit. He further relied upon AIR 1932 Calcutta 714 (Jogesh Chandra Majumdar v. Durga Mohan Chakrabarty & others), in which it was held that a suit by shareholder under Section 42 of the Specific Relief Act, for declaration that allotment of new shares in consequence of resolution was in itself invalid deciding to increase the capital of the company by issue of new shares to certain persons is illegal and that they cannot act as shareholders of the company is not maintainable. Learned counsel also referred to AIR 1958 Punjab 190 (Karnal Distillery Co. v. Ladli Parshad), in which it was held that plaintiffs right to obtain relief by way of a permanent injunction depends upon the provisions contained in Sections 54 and 56 of the Specific Relief Act. In suitable cases a suit by a Director against the other Director for an injunction restraining latter from committing illegal acts is maintainable in civil Court. The question of Court's jurisdiction to entertain a suit is distinct from the question of whether having jurisdiction. It should exercise it in view of the circumstances of the particular case. It was further held that it is still open to the plaintiff to seek relief under Section 155 of the Companies Act, 1956, which is equivalent to Section 38 of the Companies Act," 1913. The Court's jurisdiction in the matter of rejection of registration is extensive and general. Learned counsel further referred to PLD 1996 S.C. 543 (Brother Steel Mills.Ltd. & others v. Mian Ilyas Miraj & others), in which Section 7 of the Companies Ordinance, 1984 was dilated upon and the apex Court held that while exercising such jurisdiction High Court has the characteristics and attributes of original jurisdiction. The High Court or a Court empowered under Section 7(1) of the Companies Ordinance, 1984 has been vested with the jurisdiction to entertain hear, try and decide the matters and cases arising under the Ordinance. Such jurisdiction has been conferred by the Ordinance. The proceedings under the Ordinance are initiated in the High Court as a Court of first instance. Learned counsel also referred 1983 CLC 162 (Haroon Ayoob Abdul Karim v. Sulleman Ahmed & others) and AIR 1941 Madras 354 and 2003 SCMR 132, which are not relevant to the present controversy.

3. The learned counsel for the plaintiff argued that the plaintiffs have filed the suit for declaration, injunction and damages. He further argued that most of the allegations made in the plaint are against the Defendant Nos. 1 and 2, who are neither Directors nor the shareholders, but were employees of Defendant No. 3. It was further averred that Defendant No. 4 is the real father of the plaintiffs. The Defendant No. 3, Ahmed Foods (Pvt.) Ltd. was established in the year 1958 and due to untiring sincere efforts of the family members the Defendant No. 3 and its products have established good name, reputation and goodwill. The Defendant Nos. 1 and 2 took undue advantage of deteriorating health of the Defendant No. 4 and gradually attempted to take control of the Defendant No. 3 and due to their undue position even employees of senior positions were also compelled to follow their arbitrarily and unauthorized instructions. They also adopted unethical and un-business like practices. The plaintiffs are major shareholders and Directors in the Defendant No. 3 company, but verbal instructions were issued to block their access to official Software (ERM) of Defendant No. 3, which made difficult for the plaintiffs to communicate with customers, suppliers and distributors and even their access was blocked to the companies premises also. On the instigation of the Defendant Nos. 1 and 2 mis-leading correspondences were circulated even to foreign clients, which is a trade liable.

4. It was further averred that the Defendant No. 1 syphoned off huge amount of Defendant No. 3 and established a sole proprietorship under the name and style of A.Q. Enterprises and running parallel business, which is in competition with the business of Defendant No. 3. The learned counsel pointed out various paragraphs of plaint including Paragraph Nos.6, 7, 8, 9 and 13. He further argued that keeping in view all the contents of the plaint it is crystal clear that the plaintiffs had not approached this Court for claiming any relief under Sections 263, 290 or 292 of the Companies Ordinance, 1984 and if the contents of entire plaint is taken into consideration it will become crystal clear that the plaintiffs have cause of action against the defendants and they have rightly approached this Court in its original side. It was further argued that the plaintiffs have also claimed damages against the Defendant Nos. 1 and 2, which is not possible to be claimed under the provisions of Companies Ordinance. He particularly referred to Section 293, which provides that where an order of the Court made under Section 290, terminates, set-aside or modifies an arrangement, the order shall not give rise any claim against the company for damages or compensation for loss of office or any other respect either in pursuance of the agreement or otherwise. He further argued that there is no bar, which prevents the plaintiffs from filing the present suit. It was further contended that for the purpose of rejection of plaint only the contents of the plaints are to be looked into.

5. In support of his arguments, learned counsel referred to P.L.D 1968 S.C 381 (M/s.Chalna Fibre Co. Ltd. Khulna & others v. Abdul Jabbar & others). This matter pertains to Companies Act, 1913, but the hon'ble Supreme Court also discussed Section 9 of CPC and held that the Managing Director had absolute power with regard to its administration and management under the Articles of Association. For some time thereafter, he was placed under detention under the East Bengal Public Safety Ordinance and during the period of his detention some of the members of the company manufactured a letter purporting to have been written by M.D. and stating that he had resigned from the post of Managing Director. On the basis of this letter they reconstituted the company and changed its name. On his release from detention, M.D. coming to know of the mischief filed a civil suit seeking declaration that (i) his removal from the post of Managing Director was fraudulent; and (ii) that the reconstitution and change of name of company was illegal. On the question whether the reliefs prayed for could not be granted under the Companies Act, 1913 and whether the suit was entertainable and triable by a Civil Court under Section 9, C.P.C., the Supreme Court held that the civil suit was competent and not hit by any provisions of the Companies Act, 1913. It was further held that ouster of jurisdiction of a Civil Court in respect of a civil suit is not to be readily inferred, unless that jurisdiction has been either expressly or impliedly taken away by some other law it will continue to vest in the Civil Court. He further referred to 1998 CLD 237 (Muhammad Yasin Fecto v. Muhammad Raza Fecto & others) in which it was held that Courts would not be competent to interfere in day-to-day working of any company on the doctrine of indoor management. Such bar, however, was not absolute and there were situations where Directors or shareholders of a company could bring case before Court against company and its Directors. Court would be justified to interfere; where majority had acted in depriving the minority of their lawful and legitimate rights; acts complained of were ultra vires of memorandum and Articles of Association of the company; Directors had acted mala fidely and against the interest of the company; there was violation of principle of natural justice; and the acts complained of amounted to fraud and misrepresentation.

6. Mr. Khalid Dawoodpota, Advocate for the Defendant No. 3 adopted the arguments of Mr. Faisal Kamal and also supported the case of the plaintiffs.

7. Heard the arguments. In Paragraph 14 of the plaint the plaintiffs have raised various allegations against the Defendant Nos. 1 and 2 that they are grouping within the defendant's company detrimental to its interest. The plaintiffs are being stopped from exercising their powers and functions as Directors and around 70 workers abruptly laid off, who sit in at the factory gate and misbehaved the Plaintiff No. 2. The factory premise at SITE has almost been shut down, which is causing losses of millions of rupees. The bank accounts are not being operated according to prudential regulations. The salary of employees for the month of November, 2011 could not be paid, which plaintiffs themselves paid in order to avoid any untoward incident. The Defendant Nos. 1 and 2 superstitiously transferred the production from SITE factory to their own undertaking located in Karachi Export Processing Zone, so that the revenue may be diverted to Defendant No. 1 and 2. It is further stated that if the Defendant Nos. 1 and 2 are not restrained they will cause irretrievable loss and damages to the Defendant No. 3 company and to its shareholders and Directors including the plaintiffs. The plaintiffs have also challenged some correspondence allegedly made by Defendant Nos. 1 and 2 regarding the reconstructing of units. The Defendant Nos. 1 and 2 are also stopped the access of the plaintiffs from participating into the affairs of management of Defendant No. 3, company. It is further averred that the Defendant Nos. 1 and 2 are taking advantage of the illness of the Defendant No. 4. The plaintiffs have also claimed the damages against the Defendant Nos. 1 and 2 and also claimed the appointment of Receiver to take over the associated undertaking of the Defendant No. 3 i.e. Ahmed Foods International and Ahmed Import and Export House.

8. While arguing the application, under Order VII, Rule 11 CPC, counsel for the Defendant Nos. 1 and 2 mainly focused Section 7 and Section 8 of the Companies Ordinance, 1984, in which it is provided that the Court having jurisdiction under the Companies Ordinance, 1984 shall be High Court having jurisdiction in the place at which the registered office of the company is situated while under Section 8 it is provided that there shall in each High Court be one or more benches each to be known as a company bench to be constituted by the Chief Justice of the High Court exercise the jurisdiction vested in the High Court under Section 7 of the Companies Ordinance, 1984. So far as the aforesaid Sections of the Companies Ordinance, 1984 are concerned there is no second opinion and the provisions are very much clear beyond any shadow of doubt. It is well settled principle that each case is to be decided on its own facts, so in order to resolve this controversy whether the proper remedy available with the plaintiffs to file Judicial Misc. Application under the provisions of the Companies Ordinance, 1984 or the suit filed by them in this Court in its original side is maintainable, it is necessary to see the cause of action and the contents of the plaint. There is no doubt that the Defendant Nos. 1 and 2 are not Directors in Defendant No. 3 company and the allegations levelled against them are more particularly discussed in the preceding paragraphs.

9. The arguments of learned counsel that the proper remedy was to file petition under Section 263 or 290 of the Companies Ordinance, 1984; and the plaintiffs have filed civil suit on misconceived notion. Let me first take up Section 263 of the Companies Ordinance, 1984, which pertains to the investigation of affairs of company on application by members or report by registrar, in which the SECP may appoint one or more persons as Inspectors to investigate the affairs of the company. The plaintiffs have not raised any such ground in which they may be asked to avail the remedy under Section 263 of the Companies Ordinance, 1984 instead of approaching this Court. So far as the Section 290 is concerned, it is clear that in order to invoke the jurisdiction of company judge under Section 290 it must be made out that the company's affairs are being conducted in a manner prejudicial to the public interest or oppressive to any member or members of the company, which may justify the winding up order. The provisions are essentially intended to control and prevent oppression of the rights of the minority shareholders and mismanagement by majority shareholders and wining up provisions. The word "Oppression" must be given its ordinary sense. The oppression complained of should involve visible departure from the standard of fair dealing and the violation of conditions of fair play on which every shareholder who entrusts his money to a company is entitled to rely. The term "Oppression" has not been defined in the Companies Ordinance, 1984 and it is left to the Court to decide on the facts of each case whether there is a case of "Oppression" or not; which calls for action under Section 290. The provisions of Section 290 cannot be invoked for settlement of disputes between the parties inter see. In the case of Registrar of Companies v. Pakistan Industrial & Commercial Leasing Ltd. & others reported as 2005 CLD 463, it was held that Section 290 of the Companies Ordinance can only be made when the petition does not raise any disputed questions of fact and highly complex matters. An order under Section 290 can only be made in the clearest of cases.

10. The bare bones of the matter demonstrate that the plaintiffs have raised various allegations and disputed questions of facts, which require lengthy inquiry and evidence and the same could not be the subject matter of the proceedings under Section 290 of the Companies Ordinance, 1984. So far as the implication of Section 305 of the Companies Ordinance, 1984 is concerned, no case is before me for winding up Defendant No. 3. The plaintiffs have also claimed damages, which of course cannot be decided without recording evidence.

11. The learned counsel for the Defendant Nos. 1 and 2 relied upon AIR 1932 Calcutta 714, in which the plaintiff filed the suit for declaration that allotment of new shares in consequence of resolution was itself invalid deciding to increase the capital of the company by issue of new shares. This suit was found not maintainable but under the present case no such controversy is involved, therefore, the case law cited above is distinguishable and another case reported in AIR 1958 Punjab 190, in which it was held that the plaintiffs right to obtain relief by way of a permanent injunction depends upon the provisions contained in Sections 54 and 56 of the Specific Relief Act. In fact in this case it was held that in suitable cases a suit by a Director against other Director for injunction restraining the latter from committing illegal acts is maintainable in Civil Court. Learned counsel also referred to PLD 1996 S.C. 543, in this case the Hon'ble Supreme Court dilated upon the Section 7 of the Companies Ordinance and held that under Section 7(1) of the Companies Ordinance the High Court is empowered and vested with the jurisdiction to hear, try and decide the matters and cases under the Companies Ordinance. There is no cavil to the dictum laid down by the Hon'ble Supreme Court but the facts remains that in order to reject the plaint on the touchstone of Sections 7 and 8 of the Companies Ordinance, 1984, it is necessary for the Court to reach a positive conclusion that from the contents of the plaint it appears that the proper remedy is to invoke the provisions of the Companies Ordinance, 1984 rather than to file civil suit.

12. On the contrary, learned counsel for the plaintiffs relied upon PLD 1968 S.C. 381, in which the Hon'ble Supreme Court discussed Section 9 of CPC. In this case the Managing Director challenged his removal form the post of M.D. on the ground of fraud and also challenged the writ jurisdiction and change of name of company. The Hon'ble Supreme Court held that the suit filed in the Civil Court is competent and not hit by provisions of Companies Act, 1913. It was held that ouster of jurisdiction of Civil Court in respect of civil suit is not to be readily inferred, unless that jurisdiction has been either expressly or impliedly taken away by some other law. In another case reported in 1998 CLD 237, it was held that the Courts would not be competent to interfere in day-to-day working of any company on the doctrine of indoor management, however, such bar is not absolute and there were situations where Directors or shareholders of a company may bring case before Court against company and its Directors.

13. In the case law cited by learned Counsel for the plaintiffs the Courts have held that the civil suits are maintainable and unless there is specific bar the proceedings may be initiated in the Civil Court and in this perspective the jurisdiction of Civil Court conferred under Section 9 of CPC was also discussed. If I look into the contents of the plaint in totality I am of the view that the relief(s) claimed by the plaintiffs are such which cannot be decided under the provisions of Companies Ordinance, 1984 and disputed questions of facts raised can only be decided after recording evidence including the claim of damages whether the plaintiffs are entitled to claim or not.

14. The plaintiffs have claimed multiple reliefs and the plaint cannot be rejected in piece meal. Had the suit or the reliefs claimed under it strictly restricted and confined within the parameters, scope and domain of Sections 263 and 290 or 305 of the Companies Ordinance, 1984 this Court was left with no other option but to reject the plaint with the directions to file proper proceedings in accordance with the Companies Ordinance, 1984. But the position before me is totally different keeping in view the contents of the plaint, allegations and reliefs claimed by the plaintiffs it would not advance the cause of justice to reject the plaint with the direction to approach the company judge when the controversy involved does not germane to the parameters of Section 263 and Section 290 of the Companies Ordinance, 1984.

15. The bone of contention between the parties as recounted in the plaint and written statement shows the substantial dispute which is a mix question of law and facts and require evidence. The rejection of the plaint on technical ground amounts to deprive a person from his legitimate right of availing legal remedy in undoing the wrong done in respect of such right. This is a settled principle of law that in case of substantial question of facts or law the provisions of Order VII, Rule 11 CPC cannot be invoked rather the proper course for the Court in such cases is to frame issues on such questions and decide the same on merits in the light of evidence. Reference can be made to my own judgment reported in 2011 CLC 88 (Mst. Bano alias Gul Bano & others v. Begum Dilshad Alam & others).

16. For the foregoing reasons, the application filed under Order VII, Rule 11, CPC is dismissed.

(A.S.) Application dismissed

PLJ 2013 Karachi 59 (DB)

Present: Farooq Ali Channa & Salahuddin Panhwar, JJ.

EVERGREEN COLLEGE OF EDUCATION, HINGORJA through its Administrator, Khairpur--Petitioner

versus

SHAH ABDUL LATIF UNIVERSITY, KHAIRPUR through its Registrar and 2 others--Respondents

C.P. No. D-2805 of 2011, decided on 24.12.2012.

Educational Institution--

----Evergreen College of education was established with approval of competent authority to import professional education--College was provisionally affiliated--Discontinue affiliation with mala fide and ulterior motives--Order passed by committee had no legal sanctity--Validity--It is admitted position that petitioner was granted provisional affiliation for one year but prospect of academic year was displayed the name of petitioners in list of colleges--Syndicate was only competent authority to award affiliation or refusal thereof but record was evident that order had not been passed by syndicate--Affiliation committee recommended that college might not be allowed for further affiliation--It was passed without providing an opportunity of hearing though it was going to cause serious effect upon petitioner--No order would be passed without providing a fair opportunity whose rights would be effected in result of such order--Court found it was all fairness of justice, equity and good conscious to hold that order was of no legal effect--Petitioner fulfilled requirements of affiliation as per law then students of the college be allowed to participate in examination in academic year--Such exercise would be completed with a period of 15 days--University would take much care and caution while issuing such prospectus become it would cause serious prejudice to right, interests and claims of students who got admissions finding name of college and any subsequent question towards status of such college might result in prejudicing such rights of students without any fault on their part--Petition was disposed of. [Pp. 61 & 62] A, B, C, D, E & F

Mr. Nisar Ahmed Bhambhro, Advocate for Petitioner.

Mr. Abdul Qayoom Shaikh, Advocate for Respondents No. 1 to 3.

Mr. Agha Ather Hussain, AAG for Respondent No.4.

Date of hearing: 11.12.2012.

Order

Salahuddin Panhwar, J.--The petitioner Evergreen College of Education, Hingorja through its Administrator Ghulam Jaffar Tanweri has filed instant petition and pray as under:--

(a) That this Honourable Court may be pleased to declare the acts of Respondents of discontinuation of the affiliation college as illegal ab initio, without any lawful authority thus may further be pleased to set aside the notification dated 01.10.2011 directing thereby the respondents to reconstitute the independent, impartial affiliation committee for revisiting the petitioner college and award permanent affiliation to the college.

(b) That this Honourable Court may be pleased to suspend the operation of impugned notification.

1. The facts set-out in the petition are that Evergreen College of Education, Hingorja was established with the approval of competent authority to impart professional education in the area; the college was provisionally affiliated with Shah Abdul Latif University Khairpur Mir's vide letter dated 10.4.2010 for the academic sessions 2010-2011 and after the expiry of such period, extension was applied for. Pursuant to that application, Affiliation Committee of University visited the college, during the visit, not found sufficiently acquainted. That inspector of Colleges also visited the above College and submitted his report for de-affiliation. The petitioner claimed that respondents are bent upon to discontinue the affiliation of petitioner's college with mala fide and ulterior motives.

2. The respondents in their comments refuted the claim of petitioner and contended that the petition is not maintainable. The College does not award degrees but answering University awards the degrees for B.Ed, and M.Ed, courses/qualifications. The petitioner was only awarded provisional affiliation for one year; therefore, the University is not bound to extend the affiliation; By two inspection reports it has come on record that aforesaid college is not genuine college, therefore, affiliation was not extended on the ground that said college is not completing criterion, laid down by University and Higher Education Commission.

3. Learned counsel for the petitioner has inter alia contended that the Respondent No. 1 in its prospectus for the academic year 2011-12 has declared the name of petitioner in their recognized list of colleges; the application for extension of affiliation is pending before Syndicate but no order has yet been passed; Inspector and Committee were not authorized to decline or grant the affiliation, therefore, any order passed by them has no legal sanctity; the students were admitted within time, classes were held but with malafide intention the Respondent No. 1 has kept the application for affiliation pending, thus the petition may be allowed.

4. Conversely, counsel for the Respondent Nos. 1 to 3 has argued that aforesaid college is not genuine hence decision made by Committee is logical because two inspection reports were against the aforesaid college thus, he, concluded that petition is not maintainable.

5. Learned AAG appearing for Respondent No.4 has supported the arguments as advanced by the counsel for the respondents.

6. We have carefully examined the material available on record and have considered the arguments, raised by the learned counsels'. It is an admitted position that the petitioner was granted provisional affiliation for one year only; but the prospect of the academic year 2011-12, published by the University, also displays the name of petitioner in the list of recognized colleges. Further, counsels of respective parties are in one and same opinion, that Syndicate is the only competent authority to award affiliation or refusal thereof but record is evident that order, question in the petition, has not been passed by the Syndicate. The law is very much clear that when a thing is to be done in a particular manner then it has to be done in that manner and not otherwise, therefore, any such order should have been passed by the authority, competency, whereof is not disputed.

7. Moreover, perusal of the record shows that Inspector of Colleges has issued a letter dated 01.10.2011, whereby the petitioner was restrained to make admission in B.Ed and M.ED, courses from the sessions 2011-12. We have examined the inspection reports which reveal that the Affiliation Committee recommended that the Evergreen College of Education Hingorja may not be allowed for further affiliation for the session 2011-12 and on that report vice Chancellor has passed the following order:--

"Unless the college fulfills the minimum criterion for affiliation hence no further application is allowed for the sessions 2011-12. Inform the college administration immediately"

Without prejudice to the phrase "unless the college fulfills the minimum criterion", the perusal of the above order leaves nothing ambiguous that it was passed without providing an opportunity of hearing to the petitioner; though it was going to cause serious effect upon the petitioner. Here, we can endorse with certainty the well established principle of law that no order should be passed without providing a fair opportunity of hearing/explanation to the party whose rights would be effected in result of such order or in consequence thereof. Since no opportunity has been provided to petitioner, therefore, it is quite obvious that petitioner was condemned unheard, which is the violation of principle of natural justice. In view of such legal position, we find it in all fairness of justice, equity and good conscious to hold that order, impugned, is of no legal effect. However, since the prerogative lies with Respondent No.1 to decide the issue of extension of affiliation or otherwise, consequently, we direct the Respondent No. 1 to strictly follow the procedure so provided for deciding the issue of extension of affiliation of petitioner after providing an opportunity of hearing to petitioner. In case, the petitioner fulfills the requirements of affiliation as per law then students of the aforesaid college be allowed to participate in the examination in the academic year 2011-2012. This exercise shall be completed within a period of 15 days from receipt of this order.

1. While parting, we feel it quite proper to observe here, that since the prospectus of the University for academic year also meant to put the interested student (s) onto notice about recognized colleges, therefore, the Universities should take much care and caution while issuing such prospectus because it will cause serious prejudice to the rights, interests and claims of the students, who got admissions finding the name of college in the list of recognized colleges and any subsequent question towards status of such college in result of such mistake or error may result in prejudicing such rights of the students without any fault on their part. Thus concerned authority, while decide fate of the affiliation of petitioner, consider this aspect with caution.

With above finding petition is dispose of.

(R.A.) Petition disposed of

PLJ 2013 Karachi 62

Present: Faisal Arab, J

Syed ANIS-UL-HASSAN--Petitioner.

versus

SALEEM AKHTAR and another--Respondents

Const. P. No. S-916 of 2010, CMA No. 1104 of 2011 and CMA No. 4234 of 2010, decided on 15.3.2011.

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

----S. 16(1)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--No justification to interference with findings of Rent Controller--After service of legal notice--Wherein default had been alleged--Tenant has not paid any amount to landlord as rent nor deposited the same in Court--Version of the tenant cannot be taken into consideration and High Court in it's Constitutional jurisdiction found no justification to interfere with the findings of Rent Controller, who passed the order after taking into consideration the stance of both the parties. [P. 63] A

Mr. Muhammad Mushtaq Qadri, Advocate for Petitioner.

Mr. M. Zeeshan Abdullah, Advocate for Respondent No. 1.

Date of hearing: 15.3.2011.

Order

This petition impugns the order of Rent Controller passed on application under Section 16(1) of Sindh Rented Premises Ordinance, 1979, whereby the petitioner was directed to deposit rent from September 2009 and onwards at the rate of Rs.65,000/- per month, amounting to Rs.650,000/- being the sent for 10 months, which amount was not allowed to be withdrawn till final disposal of the matter.

The learned counsel for the petitioner contends that the monthly rent of the premises was of Rs. 27,000/- and not Rs.65,000/- per month as alleged.

It is an admitted position that after service of legal notice dated 14.12.2009, wherein default has been alleged from June 2009 and onwards; the petitioner has not paid any amount to the Respondent No. 1 as rent nor deposited the same in Court. Hence, in view of this factual position, the version of the petitioner cannot be taken into consideration and this Court in its Constitutional Jurisdiction finds no justification to interfere with the findings of Rent Controller, who passed the order after taking into consideration the stance of both the parties.

The petition, in the above terms, stands disposed of alongwith the listed applications.

(R.A.) Petition disposed of

PLJ 2013 Karachi 63 (DB) [Sukkur Bench]

Present: Ahmed Ali M. Sheikh and Salahuddin Panhwar, JJ.

MANZOOR AHMED BAHYO--Applicant

versus

GOVERNMENT OF SINDH through its Secretary Works & Provincial Highway Division, Karachi and 3 others--Respondents

C.P. No. D-451 of 2009, decided on 18.9.2012.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Jurisdiction--Salary of employees of irrigation department--Claim relates to contractual obligation--Question of--Whether petitioner completed work in accordance with terms and conditions of contract--Validity--Such controversy cannot be resolved in writ petition as recording of evidence was necessary to resolve same--Unpaid amount for work carried out by petitioner, can be proved through evidence in ordinary Court, having jurisdiction, because if amount was ascertained and was admitted that eventuality High Court could exercise its discretion in favor of petitioner--Not only claim of petitioner but also work claimed to be done was disputed, therefore, such controversy of factual and cannot be resolved in writ jurisdiction--Petition was dismissed. [P. 66] A

Constitution of Pakistan, 1973--

----Art. 199--Constitutional jurisdiction--Salary of employees of irrigation department--Prima facie claim of petitioner--Factual controversy which cannot be resolved in constitutional jurisdiction--Contractual obligation--Validity--Contractual obligations cannot be enforced through writ jurisdiction--Petitioner had alternative remedy to approach Civil Court which was competent forum to examine record and give its findings on merit and according to law--Petition 67was dismissed. [P. 67] B

M/s. Bhajandass Tejwani and Manoj Kumar Tejwani, Advocates for Applicant.

Mr. Liaquat Ali shar, Addl. A.G. for Respondents.

Date of hearing: 18.9.2012.

Order

Salahuddin Panhwar, J.--Petitioner has invoked constitutional jurisdiction of this Court and prayed as under:--

(a) To declare the act of the respondents, dropping the running and pending scheme of road from Wasti Qutubdin Shah from village Drigh Chachar of District Ghotki is illegal, mala fide and without any lawful authority.

(b) To direct the respondents to assist the work carried out by the petitioner on site by recording MBs etc., prepare pass bill and make payment of the same without loss of time.

(c) To direct the respondents to make payment of damages on account of closure of the above running scheme to the tune of Rs. 1 (M).

(d) For payment of 15% per annum as markup from the date of dropping the scheme till payment is made to the petitioner.

1. Relevant facts, set out in the petition are that petitioner, being contractor, was awarded contract for construction work of road from Wasti Qutubuddin Shah to Village Drigh Chachar, District Ghotki; According to work order the petitioner was assigned to complete the construction of road within a period of six months; the petitioner deployed labour machinery and other all arrangements; work was in full progress; completed up to 35%; subsequently petitioner was informed that whole scheme has been dropped by the competent authorities; petitioner applied for the payment for which he completed the work at the site but his demand was not considered by the authorities.

2. Comments filed by Respondents No. 2 and 3, stating therein, that petitioner failed to complete the work within the stipulated time; petitioner was awarded contract on 24.10.2007, which was required to be completed within six months i.e. 24.02.2008 and dropping of those works schemes, which could not be completed was proposed during February 2009; petitioner has not carried out any work at the site, therefore, petitioner is not entitled for any payment including damages; contractual obligation cannot be enforced in writ jurisdiction.

3. Learned counsel for the respective parties have reiterated their pleadings and learned counsel of petitioner has also relied upon un-reported judgment of honourable Supreme Court in Civil Petitions No. 853-k to 857 of 2001, (Government of Sindh through Secretary Irrigation versus Jehan Ali, Fida Hussain, Manzoor Hussain, Mir Muhammad, and Abdul Razak), by that common judgment five petitions were decided.

4. Heard counsels and perused the record.

5. We have examined the unreported Judgment in case of Government of Sindh (supra); it will be conducive for understanding to reproduce the relevant Paragraph No. 5 of Judgment:--

"We do not find substance in the said, contention. The claims of the respondents were admitted by the petitioners before the learned Ombudsman and the learned High Court, therefore the High Court was quite within the jurisdiction to issue the directions in law and equity in the circumstances of cases. The learned High Court in last two paras has observed as under:--

"It is shocking to note that the payment has not been made even though the order was passed more than two years ago. The ground of non-availability of funds to make payment does not appeal to reason because it is not possible to believe that the employees of the Irrigation Department including Respondents 1 to 4 have been working without receiving any salary from the Government of Sindh. The ground given for delay is not reasonable and is rejected. However, in the interest of justice and as a matter of grace three months' time is allowed to pay the petitioners claim. The respondents shall also pay compensation/Liquidated damages for delay in payment at the rate of 15% per annum from 1.7.2001 till the date of payment.

The respondents are put on notice that if they do not pay the amount within the period specified above, their conduct shall be treated as contempt of Court and they shall be dealt with accordingly."

1. According to this dictum, it is manifest that claim of petitioners was admitted by the respondents, and that matter was related to the salary of employees of irrigation department, but in the instant petition, factual and legal position is entirely different; nowhere respondents have admitted, the claim of petitioner hence the very judgment, referred by learned counsel for petitioner is not of any help for petitioner. Further, it is evident that petitioners claim relates to the contractual obligation, thus, whether the petitioner completed the work in accordance with terms and conditions of the contract or not, such controversy cannot be resolved in this writ petition as recording of evidence is necessary to resolve the same. The unpaid amount for the work carried out by the petitioner, can be proved, through evidence in ordinary Court, having jurisdiction, because if the amount was ascertained and was admitted by the respondent in that eventuality this Court could, exercise its discretion in favour of the petitioner. Not only the claim of the petitioner but also the work, claimed to be done by petitioner is disputed, therefore, such controversy is factual and can't be resolved in the writ jurisdiction. Moreover, the grievance of petitioner pertains to the contractual obligation, and it is settled proposition of law that contractual obligations cannot be enforced through the writ petition; reliance can be placed on the case of Pak. Cm Ltd. vs. Federation of Pakistan reported in PLD Supreme Court 544, it is held:--

"It seems proper here at this juncture to mention that the contractual rights, commitments undertakings and obligations have to be enforced through Courts of ordinary jurisdiction, which should not be interfered by the High Court while exercising its constitutional jurisdiction especially in those matter arising out of a contractual obligations.

In another case of Nizamuddin and others versus Civil Aviation and 2 others, reported in 1999 SCMR 467, it is held:--

"if in a particular case both the parties admit the factual aspect which give rise to the dispute and the Court feels that matter of such an urgent nature that the every remedy would get frustrated, if the aggrieved party is directed to seek redress through alternative remedy available under the law , then in that case it would be proper for the Court to entertain the writ petition. Similarly if through alternative remedy an action/order of a lower authority is to be impugned before a higher authority at whose behest the action is taken or order is passed then that can not be termed as an adequate and efficacious remedy so as to justify refusal of exercise of judicial review. If in every contractual matter, giving rise to enforcement of contractual obligations or a dispute which can be redressed through other remedy available under the law. Writ petitions are entertained, then this would defeat that every purpose of law and which competent Court are established, and vested with jurisdiction under the law".

1. As discussed above, prima facie, claim of the petitioner falls within the ambit of factual controversy, which cannot be resolved in constitutional jurisdiction, besides this, 'the claim of the Petition is based on a "Contractual obligation" and it is also settled proposition of law, lays down, by the dicta of honourable Supreme Court, that contractual obligations, cannot be enforced through writ jurisdiction. Consequently, petition is hereby dismissed. However, petitioner has alternative remedy to approach the Civil Court, which is the competent forum to examine the record and give its findings on the merits, and according to Law.

2. The petition was dismissed by short order dated 18.09.2012; these are the reason for the same.

(R.A.) Petition dismissed

PLJ 2013 Karachi 67 (DB)

Present: Shahid Anwar Bajwa (sic), J.

JAVED AHMAD BHUTTO--Petitioner

versus

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

C.P. No. D-3067 of 2012 and C.M.A. No. 17119 of 2012, decided on 19.9.2012.

Industrial and Commercial Employment (Standing Orders) Ordinance, 1968--

----S.O. 12(3)--Industrial Relation Ordinance, 1969, S. 25-A--Industrial Relation Act, 2012, S. 33--Constitution of Pakistan, 1973, Art. 270-AA(6)--After deletion of entries by 18th Amendment in Constitution, Parliament cannot legislate on subjects of labour and trade unions--Proceedings before NIRC, through interim orders were suspended--Dismissed workman cannot approach Labour Court for redressal of his grievance--If a dismissed employee could go to Labour Court by S. 25-A, itself independent of S.O. 12(3), then what was need for making provision that he could take his grievance before Labour Court u/S. 25-A--No redundancy can be attributed to legislature--Question to be considered by Labour Court--Validity of I.R.A., 2012--Question of--Whether Industrial Relation Act, 2012 was ultra vires or not, grievance petition would be maintainable for right guaranted u/S.O. 12(3)--Held: Industrial Relation Act, 2012 is valid whether workman can come to Labour Court to enforce his right under Standing Order 12(3) even in case of provisional organizations--Till such question was finally decided Labour Court shall continue to entertain grievance petitions of workers who approach Labour Court with grievances petition in respect of right guaranteed under Standing Order--Petition was disposed off--Office was directed to send a copy of order to chairman for necessary action. [P. 79] A, B & C

Ch. Muhammad Ashraf, Advocate for Petitioner.

Mr. Mahmood Abdul Ghani, Advocate for Respondents.

Date of hearing: 19.9.2012.

Order

Shahid Anwar Bajwa, J.--In this constitutional petition the following prayers are made:--

(a) Set aside the impugned order dated 19.07.2012 and hold that in view of the provisions of Standing Orders Ordinance, 1968, it is only the Labour Court which has the jurisdiction to entertain and adjudicate upon the grievance of the petition.

(b) Hold and declare that the promulgation of IRA, 2012 does not affect the proceedings of the petitioner.

(c) Suspend the operation of impugned order dated 19.07.2012 to the extent of point of limitation.

(d) Hold and declare that the case No...... which has been returned by the Labour Court continues pending before it at the stage obtaining prior to passing of the impugned order.

(e) Any other or additional relief which may be deemed fit and proper in the circumstances of the case.

1. Facts for the purpose of decision in this petition are that on 19.07.2012 an order was passed by the Presiding Officer, Sindh Labour Court No. 1 by which order 45 Grievance Petitions were returned to the applications for presentation before proper judicial forum. Applicants before the Labour Court were employees of various organizations which had branches in more than one provinces. 18th Amendment to the Constitution abolished concurrent list which included items of labour laws and Trade Unions. The Industrial Relation Act, 2008 had provision in Section 87 mandating that the Act of 2010 would unless sooner repealed shall stand repealed on 30.4.2010. On 18.7.2011 the Industrial Relation Ordinance, 2011 was promulgated which has now been followed by the Industrial Relation Act, 2012. These two have been promulgated by the Federal Government/enacted by the Parliament for trans provincial establishment. Grievance petitions of applicants who were employee of KESC and many other organizations such as Banks, Duty Free Shops Limited, Utility Stores Corporation Limited etc. were pending in the Sindh Labour Court No. 1 when applications were filed by the managements with a prayer that grievance petitions be dismissed as the respondent management has trans provincial status because it has branches and offices in all the 4 provinces as well as in Islamabad and jurisdiction in respect of individual grievance has been conferred upon the National Industrial Relations Commission, (NIRC).

2. Learned Labour Court noticed items in Federal Legislative list i.e. Trans Provincial Trade and International Treaties and then observed as under:--

"28. In this background it has to be seen whether not framing the law in consonance with International Convention is a Violation of International commitment given by the state or not? And whether the President can promulgate laws for fulfilling obligation under International convention?

1. Islamic Republic of Pakistan is a Federal Republic comprising of four provinces, Baluchistan, Khyber Pukhtoonkhuwa, Punjab, and Sindh, Islamabad Capital Territory, Federally Administered Tehsil Area and such states and territories as are, or may be included, whether by accession or otherwise. There is parliament comprising of public chosen representative of its all components this show that Federation of Pakistan is based on cooperative Federalism, the sovereign authority vest in the parliament, the parliament has delegated certain powers to provinces to the extent of provincial territories and as such the constitution scheme sovereignty is not a duel, for example the provinces have no power and authority to amend the constitution, the provinces have no powers to grant passport to anyone, nor can issue National Identity Cards etc. the sign of sovereignty, so in my humble opinion the powers to honour the international commitment in only with the Federation."

2. Thereafter it came to the conclusion that in terms of Section 33 of the Act of 2012 the applicants be directed to bring individual grievances before the NIRC and consequently it ordered that grievance petitions be returned.

3. It may be pointed out that in certain cases where workers approached NIRC, the managements (including management of KESC) approached this Court contending that after deletion of relevant entries by 18th Amendment in the Constitution the Parliament cannot legislate on subjects of labour and trade unions. Notices in those petitions were issued and proceedings before NIRC, through interim orders, were suspended. Subsequently a Full Bench has been constituted, by the Honourable Chief Justice to consider question as to whether the Industrial Relation Ordinance, 2011/the Industrial Relation Act, 2012 is ultra vires of Constitution or not.

4. Learned counsel for petitioner referred to prayer clause and stated that he has not challenged vires of the Industrial Relation Act, 2012. He submitted that petitioner has approached Labour Court under Standing Order 12(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and not under any provision of the Industrial Relation Ordinance, 2011 or the Industrial Relation Act, 2012. He submitted that definitions in the Industrial Relation Act are not attracted in the cases under Standing Orders Ordinance. He relied upon Abdul Razzaq v. Messrs Ihsan Sons Limited and 2 others (1992 SCMR 505), Mustehkum Cement Limited through Managing Director v. Abdul Rashid and others (1998 PLC 172), Pak Arab Refinery Limited v. Muhammad Rashid (1999 SCMR 373), Fauji Sugar Mills through General Manager v. Mehmood Ahmed (NLR 2007 TD 193), Pakistan Engineering Council v. Registrar, Trade Unions and another (1998 PLC 477), and Abdul Sattar v. Vth Sindh Labour Court, Karachi and 2 others (1984 PLC 181).

5. Mr. Mahmood Abdul Ghani learned counsel for Respondent 3 submitted that petition is not maintainable because Respondent No. 3 is a privatised organization. He relied upon S.M. Ghreeb Nawaz Daccawala v. KESC and others (C.P. 106-K of 2007) decided by the Supreme Court on 23.10.2008 and Judgment by the Division Bench in Nasimddin Ghori v. Federation of Pakistan through Secretary and 4 others (2010 PLC 323). Learned counsel referred to order passed by the Sindh Labour Appellate Tribunal on 7.6.2012 which in the following words:--

"07.6.2012 (summer vacation)

Heard Mr. Sakhiullah Chandio learned Counsel for the applicant/PTCL, he states that he is aggrieved with the impugned order dated 23.5.2012 passed by the learned Presiding Officer, Sindh Labour Court No.V, Karachi, who has no power to transfer the R&Ps. pending before it to the, learned NIRC, Karachi. He further submitted that when a Court having no jurisdiction, has wrongly exercised such jurisdiction. In support of his contention he has relied upon P.L.D. 1973 S.C. 368.

The above contention of Mr. Chandio requires consideration. Issue preadmission notice to the respondent."

1. Learned counsel submitted that since Labour Appellate Tribunal had itself suspended order of Labour Court, therefore, it would be appropriate for the High Court to wait for judgment by Labour Appellate Tribunal. He next submitted that appeal is available to Sindh Labour Appellate Tribunal. He next submitted that after 18th Amendment the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 is no longer valid law and in this regard he relied upon judgment by a Single Judge of Lahore High Court in Syed Imran Ali Shah v. Government of Pakistan, through Secretary Human Resources, etc. (Writ Petition No. 1579 of 2012) judgment announced on 12.4.2012 and an order by a Division Bench of Peshawar High Court, Peshawar in W.P. No.1233 of 2012 passed on 17.5.2012. Learned counsel next submitted that under Standing Order 12(3) reference is made to Section 25-A of the Industrial Relation Ordinance, 1969 and the Industrial Relation Ordinance, 1969 is no longer in existence. Learned counsel frankly conceded that NIRC has no jurisdiction because the Industrial Relations Act, 2012 is ultra vires. While concluding learned counsel submitted that in his opinion matter may be remanded back to Labour Court where Labour Court may be directed to, while assuming the Industrial Relations Act, 2012 as a valid law, consider and decide whether grievance petitions in respect of rights guaranteed under Standing Order 12(3) are maintainable before the Labour Court or not. Learned counsel further submitted that as far as vires of the Industrial Relation Act, 2012 is concerned, that must await decision by the Full Bench of this Court.

2. While exercising of his right of reply learned counsel for petitioner submitted that matter in which orders were passed on 07.06.2012 by Labour Appellate Tribunal was only in respect of transfer the matter to NIRC. Return of grievance petitions has not been challenged.

3. We have heard submissions made by the learned counsel and have also gone through the record as well as case law cited at the bar.

4. We may first refer to contention of Mr. Mehmood A. Ghani that Standing Order 12(3) reference is made to Section 25-A of the Industrial Relation Ordinance, 1969 and the Industrial Relation Ordinance 1969 has since been repealed. For ready reference Standing Order 12(3) is reproduced as under:--

"(3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state that reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may [take action in accordance with the provisions of] Section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969), and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."

1. Reference may be made to Section 8 of the General Clauses Act, which section provides as under:--

"8. Construction of references to repealed enactments.--Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then reference in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted].

1. A bare reading of Section 8 indicates that where an Act is repealed and in its place a new Act is enacted and reference has been made in any law to any provision of the former act, then reference to any provision so repealed shall, unless a different intention appears is to be construed as reference to the provision so re-enacted. Contention is, therefore, repelled.

2. Another contention of Mr. Mehmood A. Ghani was that since entries relating to Labour and Trade Unions have been deleted, therefore, Industrial and Commercial Employment (Standing Orders) Ordinance is no longer a valid law. Complete answer to this question is in Article 270AA(6) of the Constitution, which provides as under:--

(6) Notwithstanding omission of the Concurrent Legislative List by the Constitution (Eighteenth Amendment) Act, 2010, all laws with respect to any of the matters enumerated in the said List (including Ordinances, Orders, rules, bye-laws, regulations and notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extra-territorial operation, immediately before the commencement of the Constitution (Eighteenth Amendment) Act, 2010, shall continue to remain in force until altered, repealed or amended by the competent authority."

1. A bare reading indicates that it provides that consequent upon omission of concurrent list all laws with respect any matter enumerated in the list shall continue to remain in force until altered etc. by the competent legislature. It may be pointed out that when West Pakistan was dissolved it was provided under Article 19 of the Provinces of West Pakistan (Dissolution) Order, 1970 as under:-

"19. Continuation and adaptation of existing law.--(1) Except as expressly provided by or under this Order all existing laws shall continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature or other competent authority.

(2) For the purpose of bringing the provisions of any existing law into accord with the provisions of this order, in relation to laws in the Central legislative field, the President, and in relation to other laws, the Governor of the Province concerned, may by order, make such adaptations, whether by way of modification, addition or omission, as he may deem necessary or expedient, and any order so made shall, unless otherwise provided therein take effect or be deemed to have taken effect on the appointed day.

(3) Any Court, tribunal or authority required or empowered to enforce an existing law shall, notwithstanding that no actual adaptations have been made in such law by an order made under clause (2), construe the law with all such adaptations as are necessary to bring it into accord with the provisions of this Order."

1. It is in view of this position that many of the West Pakistan enactments such as Land Revenue Act, Motor Vehicle Ordinance and many other laws continue in force in the province of Sindh and they have been frequently amended by the Provincial Legislature. Learned counsel for respondent referred to judgment of the Lahore High Court in Syed Imran Ali Shah's case, what was challenged in the petition was administration and control of the Employees Old Age Benefit Institution to Human Resources Development Division by the Federal Cabinet. In W.P. No.1233 of 2012 the Industrial Relation Act, 2012 was not challenged and only interim order was passed. Cases are clearly distinguishable.

2. This brings us to the moot question. In Messrs Coca Cola Beverage Pakistan Limited through Authorized Officer/Industrial Relations Manager v. Registrar Trade Unions Sindh and 3 others (2010 PLC 48) definition of workman given in the Industrial Relations Act, 2008 was considered, a large number of case law was referred and thereafter it was held as under:--

"24. To summarize the above discussion:

(i) a worker who has been dismissed, discharged, retrenched, terminated or otherwise removed from employment no longer falls in the definition of workman except as stated herein below;

(ii) If such dismissal etc, has taken place in consequence of industrial dispute or has led to an industrial dispute then such person is included in the definition of workman;

(iii) but only for the purpose of any proceedings relating to an industrial dispute under the Industrial Relation Act, 2008;

(iv) Such dismissed etc, workman comes to Labour Court by virtue of specific provisions contained in Standing Order 12(3) and not by virtue any provision contained in the I.R.A.

(v) Such person is therefore, not a workman and is not entitled to participate or vote in any referendum or balloting under Section 24;

(vi) He cannot participate in any election of the Union except when he falls within the 25% of outsiders who are permitted to be office-bearers of the union. Such outsiders are not permitted to be member of the Union. Therefore they can become office-bearers without being members. Since they are not members they cannot vote in any such election.

(vii) Pendency of grievance petition in a Labour Court or proceedings before N.I.R.C. does not affect status of such a person.

(viii) However, if interim order has been passed by a Court of law and the employer has acquiesced in the order the employer can not challenge participation by such a workman in such proceedings."

1. It may be pointed out that this judgment by Single Bench was followed by Lahore High Court in Sohail Shaukat and others v. Labour Department and others (2010 PLC 265). Since a dismissed workman (two exceptions as provided are not involved here) is not workman for the purpose of the Industrial Relation Ordinance, 1969 as well as Industrial Relation Ordinance, 2011 or the Industrial Relation Act, 2012, a dismissed workman cannot approach Labour Court for redressal of any of his grievance. This aspect has been considered by the Supreme Court in Mustehkum Cement Limited's case (supra) in the following words:--

"9-A. The provisions of Standing Order 12(3), therefore, indicate that it allows right to a workman who is aggrieved by termination of his services or removal, retrenchment, discharge or dismissal to seek redress in accordance with the provisions of Section 25-A of the Ordinance. The words "and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance" clearly indicate that for the purpose of redressal of such grievance the procedural provisions of Section 25-A have been extended to Standing Order 12(3) and the said provisions shall apply in the same manner as they would apply in case of an individual grievance referred to in the said section. It, therefore, clearly follows that right to seek redress has been, made available to such workman, not through the force of Section 25-A of the Ordinance but by extending the said provisions to Standing Order 12(3)."

1. In Abdul Sattar's case (supra) it was observed that if a person approaches Labour Court for enforcement of right under Standing Order 12(3) he has to follow definition given in that Ordinance. Same was held in Mehmood Ahmed's case (supra). In Muhammad Rashid's case (supra) respondent was employed as security guard in Refinery. It may be pointed out that in terms of provision contained in Section 1(3)(g) of I.R.O., 1969 (same is position in two successor legislations), the I.R.O. is not applicable to security staff of Oil Refineries. Respondent was dismissed from service and he approached Labour Court, Labour Court ordered reinstatement, Labour Appellate Tribunal allowed appeal taking a view that Section 1(3)(g) of the Industrial Relation Ordinance was not applicable. High Court accepted writ petition and remanded the matter to Labour Court. It was taken to the Supreme Court and the Supreme Court observed as under:--

"7. No doubt, Section 25-A of the Industrial Relations Ordinance, 1969 enables a "workman" to seek redress of his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement but, as is indicated by the definition of "worker" or "workman" in the Industrial Relations Ordinance and Standing Order 12(3) in the Standing Orders Ordinance a person who is aggrieved by termination of his service or removal, retrenchment discharge or dismissal otherwise than in connection with or as a consequence of an industrial dispute, can only approach the Labour Court with his grievance petition under the petition under the provisions of Standing Order 12(3) provided that he is a "workman" within the meaning of the said term as defined in the Standing Orders Ordinance. The words "he may take action in accordance with the provisions of Section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance" occurring in Standing Order 12(3) only indicate that the provisions of Section 25-A of the Industrial Relations Ordinance have been extended to Standing Order 12(3) only by reference or incorporation. It therefore, follows that right to seek redress has been made available to such workman not through the force of Section 25-A of the Industrial Relations Ordinance but by extending the said provisions to Standing Order 12(3). We are fortified in our view by an earlier judgment of this Court in the case of Syed Matloob Hassan v. Brooke Bond Pakistan Limited, Lahore (1992 SCMR 227). In this case one of us (Ajmal Mian, J, as he then was) had observed:--

"Whereas, the above clause (3) of Standing Order 12 contemplates that the services of workman shall not be terminated nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing containing the reason for the action. It further provides that in case a workman is aggrieved by the termination of his service or removal, retrenchment, discharge or dismissal he may take action in accordance with the provisions of Section 25-A of the Industrial Relations Ordinance and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance. In other words, the above clause (3) of Standing Order 12 incorporates the provisions of Section 25-A of the Industrial Relations Ordinance by reference for the purpose of enabling a workman as defined in clause (i) of Section 2 of the Ordinance to get redress, against termination of his services or removal or retrenchment, discharge or dismissal in violation of above clause (3) of the Standing Order 12."

1. Similar observations have been made in 1998 SCMR 644 (Mustehkum Cement Limited v. Abdul Rashid and others) recently decided by this Court. Incidentally, once again one of us (Mamoon Kazi, J.) has delivered the judgment in the said case. It has been observed in the said judgment:--

"The provisions of Standing Order 12(3), therefore, indicate that it allows right to a workman who is aggrieved by termination of his service or removal, retrenchment, discharge or dismissal to seek redress in accordance with the provisions of Section 25-A of the Ordinance. The words `and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance' clearly indicate that for the purpose of redress of such grievance the procedural provisions of Section 25-A have been extended to Standing Order 12(3) and the said provisions shall apply in the same manner as they would apply in case of an individual grievance referred to in the said section. It, therefore, clearly follows that right to seek redress has been made available to such workman, not through the force of Section 25-A of the Ordinance but by extending the said provisions to Standing Order 12(3)."

1. It, is thus, clear that in the present case the respondent had sought redress of his individual grievance by virtue of Standing Order 12(3) and the provisions of Section 25-A have been extended to the said Standing Order only for the purpose of the redress of such grievance. However, the provisions of Section 25-A would not apply to the case of such workman through their own for, but by virtue of Standing Order 12(3). Consequently, even if the provisions of the Industrial Relation Ordinance had been excluded in case of persons belonging to security service of an oil refiner, but as the provisions of Standing Orders Ordinance have not been excluded, such a person could still seek his remedy before the Labour Court for redress of his grievance in case he falls within the definition of "workman" as given in. clause (i) to Section 2 of the said Ordinance. Consequently, the view taken by the High Court, which clearly appears to be in consonance with the said two judgments of this Court, appears to be correct."

2. Munir Hussain Bhatti, advocate v. Federation of Pakistan and another (PLD 2011 SC 407) is also a case in point. 18th Amendment was still under challenge when action taken under 18th amendment was brought under scrutiny and it was observed by the Supreme Court as under:--

"60. Before moving on to the next section of this opinion, we may also address a number of arguments made on the issue of justificiability by the learned Additional Attorney General. He argued, firstly, that the question of justiciability of the decisions of the Committee had yet to be decided by the seventeen-member larger Bench of the Court in the petitions filed to challenge the vires of the 18th Amendment. On this basis, he submitted that this Bench should await the decision of the larger Bench and, in the meanwhile, put the adjudication of these petitions on hold. The learned Additional Attorney General was of the view that the present petitions were a back-door attempt to challenge the role of the Committee and to undermine such role even before the full Court has had the opportunity of deciding the petitions challenging the 18th Amendment. We have considered these submissions and reiterate that the scope of these petitions is materially different from the scope of the petitions being heard by the larger Bench. We are clear, as stated earlier, that the present petitions assume the validity of the 18th and 19th amendments. The petitioners only seek judicial interpretation of these amendments for the purpose of their challenge to the two aforementioned decisions taken by the Committee. Put simply, while the present petitions seek judicial review of decisions of an executive body, purported to be taken under Article 175A of the Constitution, the petitions before the larger Bench challenge the very authority of Parliament to make the amendments challenged in such petitions. It is, therefore, evidence that any adjudication in these petitions will relate only to the impugned decisions of the committee and not to the validity of the amendments in the Constitution."

1. Reference may also be made to Security Paper Mills Limited v. Sindh Labour Appellate Tribunal and others (PLD 1988 SC 180) and Security Paper Limited v. Sindh Labour Court No.4 (1981 PLC 898) where it was held that even if Industrial Relation Act, 1969 is not applicable to the Security Paper Mills Limited even then workmen of the organization can seek redressal of their grievance under Standing Order 12(3) from the Labour Court.

2. Another point to be considered is that if a dismissed employee could go to the Labour Court by Section 25-A itself independent of Standing Order 12(3) then what was need for making provision in Standing Order 12(3) that he could take his grievance before Labour under Section 25-A. No redundancy can be attributed to the Legislature. Therefore, question to be considered by the Labour Court would be as under:--

(1) Labour Court shall not go into question of the vires or validity of the Industrial Relation Act, 2012 because that matter is being considered by the Full Bench of this Court. Moreover contention is that irrespective whether Act of 2012 is ultra vires or not, grievance petition would be maintainable for right guaranteed under Standing Order 12(3).

(2) Impugned order by which Labour Court returned petitions is set aside and the matter is remanded to the Labour Court to consider following two questions:--

(i) While assuming that the Industrial Relation Act, 2012 is valid whether workman can come to the Labour Court to enforce his right under Standing Order 12(3) even in case of trans provincial organizations.

(ii) Till such question is finally decided Labour Court shall continue to entertain grievance petitions of workers who approach the Labour Courts with their grievances petitions in respect of right guaranteed under Standing Order 12(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

1. Consequently; this constitutional petition is disposed of in above terms. Office is directed to send a copy of this order to the Chairman, Sindh Labour Appellate Tribunal and to Presiding Officer of all the eight Sindh Labour Courts for necessary compliance.

(R.A.) Petition disposed of

PLJ 2013 Karachi 79 (DB)

Present: Ahmed Ali M. Sheikh & Salahuddin Panhwar, JJ.

SALAHUDDIN DHARAJ--Petitioner

versus

PROVINCE OF SINDH through its Secretary Local Government Department, Government of Sindh Karachi and 4 others--Respondents

C.P. No. D-688 of 2012 and CMA No. 2522 of 2012, decided on 7.8.2012.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Powers of Transition Officer in respect of NITs--Challenge to--Being social worker and in interest of locality--Constitution of committee--Misappropriated and embezzled huge amount of public money in different development schemes--Discrimination while distributing schemes for different areas--NITs of public schemes--Powers of transaction officer in absence of council and notification--Question of maintainability of petition--Objection of--Locus standi--Validity--There can be no cavil to deny legally established position that dispensation of justice is not alone function of Court but public functionaries are equally responsible to act fairly--Public functionaries are trustees of public powers hence are required to act accordingly--It is not always that each and every effected person had courage and resources to approach Court challenging vires, implication or ramification of law rule by an authority--Public interest litigation can now be initiated not only by filing formal petition in Court but even by writing letters or applications--It is settled proposition of law that a person can invoke jurisdiction of superior Courts as probono publico provided that he has approached Court in public interest and for public good or for welfare of general public--Even a policy can be called in writ jurisdiction if same is either in conflict with law or is in violation of fundamental rights of a citizen--Any person can bring any issue before Court which is related to public functionaries and its work affecting general public--High Court being custodian and guardian of fundamental right of every single individual cannot be hoped to shut its eyes and let illegal and malafide exercise of powers and jurisdiction by an authority go unchecked more where same was alleged at cost of rules, procedure, regulations, and notification--Objection towards maintainability of instant petition was devoid of substance and carries no weight at all. [Pp. 83 & 84] A, B, C, D & E

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Formation of committee and process of NITs initiated by transition officer--Notification--Councils of local bodies were not in existence and only public servants--Responsibility of defunct Distt. Govt. and local Govt. department to consult SDPC--Effect to notification--Power to issue notification--Legality of notification such act and attitude to hold field as one cannot be permitted to use his power, jurisdiction and authority in any other manner except as required by law, procedure, policy and natural justice when there is apprehension of infringement of rights, interests and claims of the people-at-large because development schemes which involved huge public exchequer are always meant and processed for benefit of people at large, hence exercise of power by public functionaries causing prejudice to rights, interests and claims cannot be allowed to go unchecked--Petitions were allowed. [P. 87] F

Mr. Mukesh Kumar G. Karara, Advocate for Petitioner.

M/s. Bhajandass Tejwani and Manoj Kumar Tejwani, Advocates for Respondent No.4.

Mr. Zulifquar Ali Sangi, Advocate for Respondent No. 5.

Mr. Imtiaz Ali Soomro, AAG for remaining Respondents.

Date of hearing: 7.8.2012.

Order

Salahuddin Panhwar, J.--Petitioner has invoked the constitutional jurisdiction of this Court by challenging the powers of Respondent No. 4 (Transition Officer) Taluka Municipal Administration (Defunct) Kandiaro in respect of NITs.

1. The facts as set-out in this petition are that the petitioner, being social worker, and in the interest of locality, emphasis that by Notification No. SO(CIV) SGA&CD/4-43/2008 dated 23.10.2008 Sindh Peoples Development Committee was constituted with the following assignments:-

(a) To review the progress of development scheme reflected in the Provincial Annual Development Program (ADP).

(b) To identify the development portfolio for the next financial year and make recommendations to the Executing Agency/Administrative Departments for preparation of the new ADPs.

(c) To review of the feasibility of the on going schemes.

(d) The committee while making its recommendation to consider and abide by various instructions/circulars issued by P&D and Finance Department in respect of development portfolio.

1. It is also pleaded in the petition that ever since the constitution of Committee (SPDC) , the responsibility shifted upon the Committee for recommendation of the feasibility scheme of different TMAs of District Naushahro Feroze; due to repeal of SLGO, 2001, the Respondent No. 1 appointed Additional Deputy Commissioner Sikander Ali Khushk as Transition Officer, Taluka Kandiaro; the Respondent No.1, Secretary Local Government, in collusion with Respondent No. 4 (Transition Officer) misappropriated and embezzled the huge amount of public money in different development schemes of Taluka Kandiaro, under the head of Taluka Kandiaro Development Package; discrimination was made by the Respondent No. 1 while distributing the schemes for different areas. The Chairman SPDC Naushahro Feroze had also made such complaint to the higher authorities, similarly resolution was also passed; even calling the NIT of Development Schemes worth of Rs. 70.00 million without approval of SPDC, is illegal, unlawful and without jurisdiction.

2. Notices of the proceedings were issued. Respondents have filed their comments. Respondent No. 1, secretary local government in its comments have taken plea that tenders of all 99, schemes have been invited after seeking permission from the competent authority and SPDC has not been given such authority to sit over the decision. Respondent No. 4 has filed counter affidavit, stating therein that, petitioner can not be termed as aggrieved person; SPDC is not a body or legal entity as same has not been constituted in terms of any lawful promulgation, therefore its resolution or interference in working of Taluka Municipal Administration is illegal development committee has no mandate to carry out the development schemes of local government and its mandate is embodied in the notification. While Respondent No. 03 (Deputy Commissioner), has stated in his comments that it is settled practice in district Naushero Feroz to get the notice inviting tenders of different TMAs of district Naushero Feroz approved from the Sindh people's development committee, since its formation by the government of Sindh services, general administration and coordination department.

3. Learned counsel for the petitioner while arguing reiterated the grounds taken in petition and has relied upon the case law reported as Khurram Khan, Advocate v. Government of Punjab through Chief Secretary and 6 others (PLD 2009 Lahore 22), Javed Ibrahim Paracha v. Federation of Pakistan and others (PLD 2004 Supreme Court 482), State v. M.D. Wasa and others (2000 CLC 471), and Ardeshir Cowasjee and 11 others v. Sindh Province and others (2004 CLC 11353).

4. Conversely, learned counsel for the Respondent No.1 has argued that the Notification, referred to above, has no concern with the subject matter of the same pertains to Annual Development Program Scheme; 99 schemes, prepared by the Respondent No. 1, are legal and properly approved by Respondent No.4; SPDC is not a body or legal entity as the same has not been constituted in terms of any lawful promulgation, therefore its interference in Taluka Municipal administration work is not permissible under the law. The petitioner is not aggrieved person to file this petition. Counsel for Respondent No.4 has relied upon Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others (PLD 2009 SC 644) and Saiyid Abul A'la Maudoodi and others v. The Government of West Pakistan, through Secretary to Government of West Pakistan, Home Department, Lahore (PLD 1964 (W.P) Karachi 478) and PLJ 2011 Kar. 131.

5. Learned Addl.A.G has argued that since there is no elected members of Council, therefore, SPDC has been authorized to supervise, identify and recommend the development work of the respective Districts, including the TMAs; Transition Officer without any mandate of the law and without any authority on its own got published as many as 99 unidentified Development Schemes without approval of SPDC.

6. Heard the arguments of the learned counsel appearing for the respective parties and perused material available on record.

7. The main controversy in this petition revolves around the NITs of public schemes, initiated by transition officer, and the powers of Transition Officer in absence of Council and Notification as referred to above regarding the constitution of SPDC. Since there has been raised a question of maintainability of the petition therefore, before examining the, issue involved in the matter, it would be proper to address the objection of maintainability of this petition and locus standi of the petitioner first, being a question of root, on this point counsel for the petitioner has relied upon case of Khuram Khan Advocate (supra), in which it is held that:--

"Public interest is not that type of litigation which is meant to satisfy the curiosity of the people, but it is a litigation which is instituted with a desire that the Court would be able to give effective relief to the whole or section of the society".

1. We may endorse here that there can be no cavil to deny the legally established position that dispensation of justice is not alone the function of the Court but public functionaries are equally responsible to act fairly and keeping in view the law, relevant rules, regulations, notification or the policy e.t.c in view because the public functionaries are the trustees of the public power hence are required to act accordingly. It is not always that each and every affected person has the courage and resources to approach the Court challenging the vires, implication or ramification of law, rule e.t.c by an authority. These have been back grounds because of which in the interest of administration of justice some of the old and well established procedural rules and practices have been altered. Public interest litigation can now be initiated not only by filing formal petition in Court but even by writing letters or applications. Further it is also settled proposition of law that a person can invoke jurisdiction of superior Courts as probono publico provided he shows that he has approached the Court in the public interest and for the public good or for the welfare of the general public. In Javed Ibrahim Paracha's case (supra), it is held that;--

"the constitutional jurisdiction of superior Courts can be invoked by a person as probono publico petitioner in public interest litigation can agitate relief on his behalf and also on behalf of general public against various public functionaries as their failure to perform their duties relating to welfare of public at large which they are bound to provide under relevant laws"

In Ardeshir Cowasjee's case (supra), it is held by their Lordships that:--

"A term aggrieved person would not confine a person having strict legal right, but would extent to any person having a legitimate interest in performance of a public duty"

The Honourable Supreme Court of Pakistan in the case of "M/s Al-Raham Travels & tours (Pvt) Ltd. & others Vs. Ministry of Religious affairs", reported in 2011 SCMR 1621, in paragraph 33, has held that :--

"Constitution is a living organism and has to be interpreted to keep alive the traditions of past blended in the happening of present and keeping an eye on the future as well-Constitution must be interpreted keeping in view the entire canvas of national fabric, be it political, social, economic or religious". In paragraph 34:

"Constitution is to be interpreted liberally and saved from cosmetic circumscription and construction-Constitution is not a document of past or present, so it is to be interpreted in a manner to meet the changing conditions of socio-religio and economic dynamics of the State".

In the same case, at paragraph 50, it was further held that:--

"If policy is in conflict with any provision of law or is violative of fundamental rights of a citizen the same can be called in question before High Court in writ jurisdiction".

Bare perusal of case law it is clear that even a policy can be called in question in writ jurisdiction if the same is either in conflict with any provision of law or same is in violation of fundamental rights of a citizen.

1. After examining the case law, it is apparent that ratio of the judgments is that any person can bring any issue before the Court, which is related to the public functionaries and its work affecting general public. Since the issue involved is with regarding to illegal exercise of the powers by Transition Officer and Notification in approval of schemes, which were meant for the benefit and welfare of the general public, therefore, this Court, being the custodian and guardian of the fundamental rights of every single individual cannot be hoped to shut its eyes and let illegal and malafide exercise of powers and jurisdiction by an authority go unchecked more particularly where the same is alleged to have been at the cost of rules, procedure, regulations and notification. Thus it would suffice to say that objection towards maintainability of instant petition is devoid of substance and carries no weight at all.

2. Now we dilate upon the formation of the committee and process of NITs initiated by Transition Officer. To answer this issue we have examined such Notification. According to that Notification almost in all Districts of Sindh SPDC, was constituted and criteria of members follow as under:--

(i) All MNAs (District constituency) Member

(ii) All MPAs (District constituency) Member

(iii) Trader Member

(iv) Grower Member

(v) Lawyer Member

(vi) One lady Member

(vii) District Coordination Officer Member/ Secretary

(viii) All Executive District Officers Member

(ix) Head of Provincial Departments based in District Member

(x) The Committee may co-opt any member/members Member.

1. Further it is apparent in Notification that Committee under said Notification will identify the Development portfolio for the next financial year, to review the feasibility of on going schemes. Admittedly, Councils of local bodies are not in existence and only public servants, working as Transition Officers, are the controlling bodies, therefore, the Transition Officer, at all material times, was required to act strictly in accordance with rules, procedure and policy. The record shows that the Secretary (I & C) (SGA&AD), in his comments at para-7, stated that the concept behind submitted proposal to establish "Sindh Peoples Development Committee" SDPC at district level was to involve pubic representatives and civil society in development process. The committees have been established through notifications therefore, in all development schemes their recommendations should be given due weights". In para-8 of his comments stated that prior to approval of schemes it was responsibility of defunct District Government and Local Government Department to consult SDPC. Further, maintained in comments that SPDC is not a statutory body however it has been notified by the Government of Sindh with the approval of Chief Executive. The Administrative Department as approving authority and executing authority i.e. transitional officer are to follow the orders / policy of Government of Sindh. Per comments of Secretary (I & C) (SGA&AD), it is clear that the SDPC is not a statutory body, but since it was notified by the Government of Sindh with the approval of Chief Executive appears, therefore, it was pleaded that same ought to have been followed.

2. Be that as it may, the record further shows that Respondent No. 3, the Deputy Commissioner, in his comments, has categorically mentioned in his comments that "it is settled practice in district Nausheru Feroz to get the notice inviting tenders of different TMAs of district Naushero feroz approved from the Sindh peoples development committee since its formation by the government of Sindh services, general administration and coordination department (under lining is ours). This leaves nothing to doubt that status of the SDPC and its objective were being followed by the TMAS of District Naushero Feroz yet there has been placed no legal justification by the Respondents, in particularly the Transition Officer, for departing from such settled practice in District.

3. Without prejudice to above, we have examined the Letter No.TMA/D/KDRO/392 of 2012, dated 24.2.2012 sent by Transition Officer to the Secretary Local Government regarding the permission for inviting tenders for execution of new development schemes for the year 2011-12. Such letters reflect that permission was sought by Transition Officer but detail and feasibility of said schemes are not visible in that letter. Surprisingly without waiting for completion of such formalities and verification, the Respondent No. 1, Secretary Local Government accorded permission by letter dated 3.3.2012. Not only this but it also appears from the record that even before approval by quarter concerned, the Transition Officer initiated process of publication of tenders in respect of various schemes of about Rs. 70.00 millions which is evident from the letter dated 28.2.2012, issued by the Transition Officer addressing to the Director Information (Advertisement). Such exercise was completed within 9 days in a haste manner and even without completing the codel and legal formalities. The position, being so, makes it evident that things have not been done in the prescribed and transparent manner as were required to be done by the authorities concern which is also in violation of well known principle of law "that if a thing" is to be done in a particular manner it must be done in that way and not otherwise", reference can be made through the case of Lt. General (Retd) Muhammed Afzal Muneeb v. Javed Sadiq reported, as 2010 SCMR 1437.

4. So far as to the contentions that the Notification is invalid and not properly issued as the Government can not issue Notification. On this point counsel has relied upon PLD 2006 Kar.536, in which it is held that:--

"Under the scheme of 1973 Constitution source of all power, authority and duties exercisable by the State and its executive functionaries emanates from Constitution itself or the law that may be framed thereunder by the competent legislature. Such power, authority or jurisdiction could only be exercised within parameters defined under the Constitution or statutory instrument. Article 4 of the Constitution of 1973, mandates that, no person could be prevented from or be hindered in doing that which is not prohibited by law. State and its executive functionaries have no inherent powers to permit or otherwise prohibit doing of that, which law does not prohibit".

1. We are in complete agreement with the principle, held in the above case law and are also conscious of the fact that to give effect to a notification two points are essential i.e authority issuing the notification must have power to issue notification under Act, Ordinance, Regulation, Rule, Order or by law within the meaning of S.3(37b) of General Clauses Act, 1896 and the notification must be published in the official Gazette, as laid down in case of Mir Ghulam Sarwar and 2 others v. Provincial Government through Chief Secretary and others, reported in 2009 CLC 72.

2. Without prejudice to legality of the Notification in question in this matter, it has, prima facie, been found on record that the Transition Officer and the Secretary, Local Government have not resorted to required procedure to attach plea of bona fide to the approval of 99 schemes rather seems to have acted arbitrarily and in deviation of the required procedure and even there has been placed no justification for not following the settled practice in District Naushero Feroz for approval of such schemes. Such act and attitude of the public functionaries cannot be allowed to hold the field as one cannot be permitted to use his power, jurisdiction and authority in any other manner except as required by law, procedure, policy and natural justice more particularly when there is apprehension of infringement of rights, interests and claims of the people at large because the development schemes which involved huge public exchequer are always meant and processed for the benefit of people at large hence exercise of power by a public functionaries causing prejudice to rights, interests and claims cannot be allowed to go unchecked.

3. In view of what has been discussed above the calling of NITs for the schemes under the head of Taluka Kandiaro Development Package in questions, are hereby declared to be illegal hence of no legal effect and all the official respondents are hereby directed to ensure that all development schemes shall be without discrimination and approval of the schemes must be strictly in accordance with rules, procedure, policy and regulations couple with interest of the people at large. Accordingly, the petition in hand is hereby allowed in above terms.

(R.A.) Petition allowed

PLJ 2013 Karachi 88 (DB)

Present: Ahmad Ali M. Shaikh and Salahuddin Panhwar, JJ.

MUHAMMAD ESSA--Petitioner

versus

MUHAMMAD SIDDIQUE & 5 others--Respondents

C.P. No. D-2911 of 2012, heard on 5.12.2012.

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

----O. VII, R. 11--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Rejection of plaint--Application u/O. VII, Rule 11 of CPC was rejected--Challenge to--Question of maintainability of constitutional petition--Concurrent findings--Sale agreement was contradictory with regard to possession of suit plot--Validity--It is settled principle of law that while deciding an application u/O. VII, R. 11, CPC, Court was legally required to confine itself to averments of plaint only and same were to be taken as true, Court can take into consideration, even defence or document brought into record by defence side, but such exception was subject to limitation that such defence or document would be irrefutable rather admitted--Petition was dismissed. [P. 90] A

Document--

----Issue before Civil Court--Determinations rights and liabilities, rejection of plaint--Substance in plea--Court did not fund any substance in plea for petitioner that since one of witness to document acted in various capacities hence such was sufficient to declare document as illegal. [P. 90] B

Registration Act, 1908 (XVI of 1908)--

----S. 17(2)(V)--Sale agreement was not compulsorily required to be registered--Validity--Document of sale agreement, but itself, does not create any legal title but creates a right to obtain another document i.e. register deed which creates legal character hence it can safely be said that sale agreement was not compulsorily required to be registered. [P. 91] C

2000 SCMR 204, ref.

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

----S. 21(a)--Sale agreement was contradictory with regard to possession of suit--Question of maintainability of petition--No any substance in ground--Document was hit by provision of S. 21(a) of Specific Relief Act--Plaint would have been rejected--Without prejudice to legality, it was pertinent to say that before insisting upon such clause, defendant had to admit document, which he did not thereby could not claim rejection of plaint by blowing hot and cold in a single breath--Application of S. 21(a) of Specific Relief Act, can well be examined by trial Court at the end of day. [P. 91] D

Mr. Ghulamullah Memon, Advocate for Petitioner.

Date of hearing: 5.12.2012.

Order

Salahuddin Panhwar, J.--The Petitioner Muhammad Essa has assailed order dated 31st January, 2012, passed by District judge, whereby, Civil Revision No. 03 of 2012, filed by petitioner was dismissed and order of Senior Civil Judge on application under Order VII, Rule 11 CPC was maintained.

1. Relevant facts leading to the instant petition, in nut-shell, are that the Respondent No. 1 filed FC Suit No. 39 of 2011 before the Court of Senior Civil Judge, Moro against the petitioner/defendant for Specific Performance of Contract; the Respondent No. 1/ plaintiff entered into a contract of sell with defendant/petitioner, in respect of the suit plot for a total sale consideration of Rs.5,80,000/- he claimed to have made full payments under receipts and endorsement on sale agreement, which are attested and witnessed; and also claimed delivery of possession but execution of registered sale deed was avoided by the Petitioner/ Defendant No. 1 hence prayed for execution of registered sale deed in his favour.

2. Petitioner/Defendant No. 1 caused his appearance; filed written statement, wherein, denied the genuineness of document and even claimed the signature to be bogus one. Thereafter petitioner/ defendant, filed application under Order VII Rule 11, CPC; same was dismissed by trial Court vide order dated 31-1-2012. The Petitioner/ Defendant No. 1 assailed such order in Civil Revision No. 03/2012 before District Judge, Naushero Feroz; same was vide order dated 10.0.2012.

3. While responding to the issue of maintainability of the petition, Mr. Ghulamullah Memon, learned counsel for the petitioner has argued that since both learned lower Courts erred in law, while not appreciating the fact that plaint of the Plaintiff/Respondent No. 1 was liable to be rejected hence petition is maintainable; that sale agreement dated 25.8.2010, itself is void and fabricated document on the ground that one person namely Muhammad Dawood Abbasi acted in various capacities the sale agreement is contradictory with regard to possession of suit plot as Commissioner, reported that possession is with petitioner; the suit of the plaintiff was barred under Section 21(a) of the Specific Relief Act, hence the petition is maintainable.

4. We have carefully considered the contention of Mr. Ghulam-ullah Memon, learned counsel for the Petitioner/Defendant No. 1, regarding question of maintainability of the Constitutional Petition, in hand, against the concurrent findings of two Courts below.

5. Since, it is settled principle of law that while deciding an application under Order VII, Rule 11, C.P.C., the Court is legally required to confine itself to the averments of the plaint only and the same are to be taken as true, the Court can take into consideration, even defence or document(s), brought into record by defence side, but this exception is subject to the limitation that such defence or document should be irrefutable rather admitted. The reference, if any, can well be made to case laws, reported in S.M. Shafi Ahmad Zaidi through Legal Heirs v Malik Hassan Ali Khan (Moin) through Legal Heirs (2002 SCMR 338 wherein it is held:

"14. 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 alongwith the averments made in the plaint".

It is important to add here that an issue before the Civil Court is brought through a cause/issue is to be adjudicated by the Court and it is the judgment of the Court; which determines the rights and liabilities hence rejection of plaint has been made to bury those suits in its inception, which, even, at the end of the day, would fail on count of some legal bar. Thus we do not find any substance in the plea of learned counsel for the Petitioner/Defendant No. 1 that since one of the witness to document acted in various capacities hence this was sufficient to declare the document as illegal.

1. As regard the plea of the learned counsel for the Petitioner/Defendant No. 1, that since the document is not registered one hence the plaint suit should have been rejected being hit by Registration Act, we, believe, that subsection (2)(v) of Section 17 of the Registration Act would suffice to this objection. For understanding and convenience the same is reproduced:

(v) any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest, or

Further, this view has been made clear by insertion of the Explanation, at the bottom of Section 17 of the Registration Act, 1908.

1. We can safely add here that a document of sale agreement, by itself, does not create any legal title but creates a right to obtain another document i.e. register deed(s) which creates legal character hence it can safely be said that sale agreement is not compulsorily required to be registered, as held by honourable Supreme Court in case of Muhammad Yousuf Vs Munawar Hussain & 5 others, reported in 2000 SCMR 204, which is:

"In this view of the matter, the right course for the petitioner would have been to institute a suit for Specific Performance if at all such agreement was executed. The agreement to sell by itself cannot confer any title on the vendee because the same is not a title deed and such agreement does not confer any propriety right, and thus, it is obvious that the declaratory decree as envisaged by Section 42 of the Specific Relief Act, cannot be awarded because declaration can only be given in respect of a legal right or character. The only right arising out of an agreement to sell is to seek its specific performance and in case the vendee has been put in possession, the same is protected under Section 53-A of the Act".

1. We also do not find any substance in the ground, taken by learned counsel for the Petitioner/Defendant No. 1, that since document is hit by provision of Section 21 (a) of the Specific Relief Act, 1877, thus, plaint should have been rejected. Without prejudice to the legality of this provision; it is pertinent to say that before insisting upon this clause the Petitioner/Defendant No. 1 has to admit the document, which hedoesn't; thereby the Petitioner/Defendant No. 1 cannot claim rejection of the plaint by blowing hot and cold in a single breath. However, the application of the Section 21(a) of the Specific Relief Act, 1877 can well be examined by the learned trial Court judge at the end of the day.

2. Since the above discussions has made it clear that pleas of the learned counsel for the Petitioner/Respondent No. 1 are devoid of substance and the order(s) of both the Courts below are proper hence needs no interference.

3. Above, are the reasons of our short order dated 5.12.2012; whereby instant petition was dismissed in limine.

(R.A.) Petition dismissed

PLJ 2013 Karachi 92

Present: Muhammad Ali Mazhar, J.

NORTHERN PLOYTHENE LIMITED (NPL) through Director (Finance), Islamabad--Plaintiff

versus

NATIONAL BANK OF PAKISTAN, (NBP) and 3 others--Defendants

Suit No. B-1630 of 1998 and C.M.As. Nos. 10226, 10227 of 2011, decided on 27.2.2013.

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

----S. 151 & O. IX, R. 9--Limitation Act, 1908, S. 5--Time barred applications--Contradictory plea regarding date of knowledge of dismissal of suit--Consolidation of suit--Dismissal of suit for non-prosecution--Validity--Though order sheet did not transpire any date when the order was passed, however reader Dairy, showed that the order was passed on 8.5.2002, therefore, argument of counsel was misconceived that suit was being treated as leading suit--On contrary there was no consolidation order passed by High Court. [P. 102] A

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

----O. IX, R. 9--Limitation Act, 1908, S. 5--Dismissal of suit for non-prosecution--Contradictory plea regarding date of knowledge of dismissal of suit--Intimation notices were issued to plaintiff--Misconceived arguments--Validity--If plaintiff was so serious to pursue and prosecute the case then it was sole responsibility and obligation and or duty to engage counsel so that their case might be decided on merits--No burden can be shifted, when specific date and reasonable time was given to their attorney either to engage counsel or to puruse their earlier counsel to proceed the case. [P. 102] B

Condonation of delay--

----Dismissal of suit for non prosecution--Knowledge of dismissal of suit through a letter--Condonation application alongwith restoration applications were filed--In intervening period no efforts were made by plaintiff to watch or to take care of suit--Validity--Almost two years lapsed but plaintiff was so reckless and careless to find out fate of suit and their conduct showed that in intervening period they never bothered to pursue or verify status of their own suit--Such cannot be treated a sufficient cause that party who was himself a plaintiff has to wait for information of dismissal of suit through different source. [P. 103] C

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

----O. IX, R. 9--Restoration of suit--Sufficient cause--Discretion of Court--No straite jacket formula for determining what sufficient cause--Sufficient cause for restoration of suit was not susceptible of any exact definition and no hard and fast rule can be laid down--Question of--Whether sufficient cause was shown or not--Validity--Where suit was dismissed for default it is duty of that party or counsel to show sufficient cause as to why case was not prosecuted on relevant date--It is well settled that mere engagement of counsel did not absolve the party of his responsibility as it was as much his duty as that of counsel engaged to see whether case was property and diligently prosecuted--If counsel was lacking in his sense of responsibility it is party who engaged him would suffer and not other side. [P. 104] D

Limitation Act, 1908 (IX of 1908)--

----S. 5--Civil Procedure Code, (V of 1908), O. IX, R. 9--Condonation of delay--Suit was dismissed for non-prosecution--Restoration of suit--Withdrawn of vakalatnama--Scope of--Plaintiff has to demonstrate sufficient cause whereby he was prevented not to diligently puruse the suit while for purpose of condonation of delay u/S. 5 of Limitation Act, delay of each and every day has to be explained--If condonation was allowed even then it does not mean that restoration of suit will also be achieved but such remedy was subject to proof of sufficient cause which plaintiff had failed to establish. [P. 104] E

Restoration Application--

----Matter was fixed for filing replication and for deciding interlocutory application but the whole suit was dismissed--Appeal was dismissed for non prosecution on date which was given by Reader--Validity--Matter was fixed for arguments only but suit was dismissed for non-prosecution as plaintiff had failed to adduce evidence but restoration application was filed with short delay and not after two years. [P. 104] F

Restoration Application--

----Sufficient cause for non appearance--Question of--Whether applicant had shown sufficient reason--Limitation--No sufficient cause had been showed except that after two years plaintiff came to known dismissal and admittedly application was time barred. [P. 105] G

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

----S. 151 & O. IX, R. 9--Dismissal of suit for non-prosecution--Restoration application--Suit was not fixed for interlocutory nature and suit was not fixed for substantive hearing of proceedings--Suit was dismissed for non-prosecution it was fixed for deciding application and not for issue evidence--Validity--When plaintiff had failed to lead evidence repeatedly suit cannot be dismissed for non prosecution rather most of cases in which restoration application was allowed were fixed for hearing of interlocutory application and not for settlement of issues or evidence. [P. 105] H

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

----O. IX, R. 10--Limitation Act, 1908, Art. 163--Restoration of suit--Application for restoration would have been filed within thirty days from date of its dismissal--Validity--It is duty and obligation of aggrieved person to pursue such remedy with diligence and to satisfy conscience of Court for approaching respective forums beyond limitation--Aggrieved person does not avail remedy within prescribed period then vested right accrued to other side which could not be taken away lightly even if objections to that effect were not raised by opposite party. [P. 105] I

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (XV of 1997)--

----S. 7(6)--Appeal against final order of Banking Court--All proceedings pending in any Banking Court under repealed Ordinance shall stand transferred or to be deemed to be transferred and heard and disposed of by Banking Court having jurisdiction under Ordinance, 2001. [P. 106] J

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----S. 22 & 27--Finality of order--Subject to provision of S. 22, no Court or other authority shall revise or review or call or permit to be called into question any proceeding judgment, decree, sentence or order of Banking Court or legality or propriety of anything done or intended to be done by Banking Court in exercise of jurisdiction. [P. 106] K & L

Constitution of Pakistan, 1973--

----Art. 37--Civil Procedure Code, (V of 1908), O. XVII, R. 3--Dismissal of suit for non prosecution--Responsibility of state to ensure inexpensive and expeditious justice--Validity--After dismissal of suit for non prosecution a Baking Court cannot restore suit then such would be very harsh and irrational interpretation which lead to an absurdity that order dismissing suit for non prosecution which was neither judgment nor decision or decree would be challenged in appeal in which there would be only probability that appellate Court after hearing parties at best either would dismiss appeal or restore suit on sufficient cause and matter was remanded back to Banking Court to proceed case on merits--Held: Banking Court cannot restore suit dismissed for non-prosecution while restoring suit it was upon Banking Court to see whether sufficient cause had been made out or not and in case of application barred by limitation, Banking Court has to see whether delay of each and every day has been explained to satisfaction of Court--Applications were dismissed. [Pp. 106 & 107] M & N

Mr. Muhammad Anwar Tariq, Advocate for Plaintiff.

Mr. Yousuf Naseem, Advocate for Defendant No. 1.

Khawaja Shams-ul-Islam, Advocate for Defendant No. 4.

Dates of hearing: 22.11.2012 and 7.12.2012.

Order

This order will dispose of application (CMA No. 10226/11) filed by the plaintiff under Section 5 of Limitation Act and application (CMA No. 10227/11) filed under Order IX, Rule 9, CPC read with Section 151 C.P.C.

1. The brief facts of the case are that the plaintiff had filed this suit for Declaration, Permanent & Mandatory Injunction and Recovery of Damages in the year 1998. The suit was fixed for evidence of plaintiff on 06.10.2009 when the plaintiff and his counsel were called absent hence the suit was dismissed for non-prosecution. The suit was dismissed on 06.10.2009 but restoration application was filed on 03.10.2011 almost after two years and since the restoration application was admittedly time barred, therefore, the plaintiff has also filed application under Section 5 of Limitation Act with the prayer that delay in filing application under Order IX Rule 9, C.P.C. may be condoned.

2. The learned counsel for the plaintiff in support of his application moved under Section 5 of the Limitation Act argued that the plaintiff had no knowledge regarding the dismissal of the suit as the same was ordered to be fixed along with Suit No. B-808/99 and Suit No. B-1222/99. It was further contended that since previous counsel had withdrawn his Vakalatnama, therefore, a direct notice should have been issued to the plaintiff for each and every date but office failed to comply with this requirement. It was further averred that the plaintiff came to know about dismissal of the suit through a letter dated 29th August, 2011 received by Chairman of the plaintiff on 02.09.2011 from National Accountability Bureau Islamabad in which it was inter alia stated that terms of MOU have been turned down and creditor banks have reactivated their suits. On this the plaintiff contacted its new counsel Mr. Abdul Bashir Memon advocate who inquired from Mr. Anwar Tariq advocate when it disclosed that Suit No. B-808/99 and Suit No. B-1222/99 were fixed in Court on 13.09.2011 but board was discharged. On further enquiry it was revealed that present suit was dismissed on 06.10.2009. So far as the application moved under Order IX, Rule 9, C.P.C is concerned, learned counsel argued that on 28.8.2001 all three suits were tagged, and Suit No. B-808/99 became leading suit. On 14.10.2008 counsel for the plaintiff Mr. Mansoor-ul-Arifeen filed an application for withdrawal of his vakalatnama which was allowed and order was passed to issue intimation notice directly to the plaintiff for next date of hearing. It was further averred that on 05.11.2008 Intekhab Sayed attorney of the plaintiff appeared and requested for adjournment to engage some other advocate or to pursue Mr. Mansoor-ul-Arifeen to represent the plaintiff in the matter and on his request, matter was adjourned for 23.12.2008. Learned counsel also referred to the order dated 28.5.2009 which shows that on 23.12.2008 matter was fixed but board was discharged. Thereafter matter was again fixed at least three times in Court but position was same and plaintiff was not present, however, on 28.05.2009 again this Court passed the order as a last opportunity to issue intimation notice to the plaintiff. Learned counsel argued that in view of order notice was required to be issued to the plaintiff at Islamabad address but in the whole record there is no confirmation whether any such notice was received or otherwise acknowledged by the plaintiff or his representative though in the office note it is stated that notice was issued. He also took the plea that due to PCO and induction of new Judges under it, the protest and strikes were being called by Bar Association and the Judges were restored in the year 2009 and in this intervening period, regular work was not taken up. In support of his arguments, learned counsel relied upon following case-law:--

(1) 1987 SCMR 732 (Muhammad Ismail v. Faiz Bakhsh and others). It was held that suit dismissed for non-appearance of plaintiff on date fixed for filing of replication. Order was set aside on ground that it was not date of hearing of suit at which either evidence was to be taken or arguments heard, or questions relating to determination of suit considered, but was merely for some interlocutory-matter to be decided.

(2) 1995 SCMR 218 (Muhammad Qasim and others v. Moujuddin and others). Dismissal of appeal for non-prosecution on the date which was given by Reader of the Court and not by the Presiding Officer. Order of dismissal of appeal being nullity, Case was remanded for rehearing of appeal on merits.

(3) 2003 CLD (Lahore) 898 (Muhammad Aslam v. Agricultural Development Bank of Pakistan). Case was fixed for arguments on application for leave to defend the suit, when due to absence of the plaintiff as well as his counsel, the Banking Court dismissed the suit for non-prosecution. If the plaintiff or his counsel was absent on the day, at the best, the Banking Court could have accepted the application for leave to defend the suit but was riot competent to dismiss the suit on that date.

(4) 2011 MLD Karachi 266 (Al-Waqar Corporation v. Rice Export Corporation and another). This is my own judgment in which plaintiff filed application under Order IX, Rule 9, CPC for restoration of suit which was dismissed for non-prosecution. Plaintiff, along with the said application, filed an application for condonation of delay. Plaintiff in his restoration application had taken ground that due to ailment his counsel could not appear to argue the matter and pleaded that he came to know the factum of dismissal on 25.1.2010 and moved restoration application immediately on 27.1.2010. Evidence was already recorded in the matter. High Court allowed applications of the plaintiff subject to payment of cost of Rs.20,000/- to the defendant and restored suit to its original position.

(5) SBLR 2012 (Sindh) 1021 (Province of Sindh & another v. Anwar). Applications seeking restoration were filed within a period of limitation, whereas no objection in this regard was filed by the respondent. For the purpose of disposal of restoration application it was to be seen as to whether the applicant had shown sufficient reason for non-appearance on the fateful date.

(6) 2012 CLC (Sindh) 229 (M/s. United Bank Ltd. & others v. M/s. Plastic Pack (Pvt.) Ltd. & others). It was held that Court has inherent powers under Section 151, CPC to make such orders as may be necessary for the ends of justice and to prevent abuse of the process of the Court. Such are enabling provisions and powers thereunder can be exercised by Court to cover ostensibly impossible situations for complete dispensation of justice, for which CPC, 1908, has been designed but despite the best efforts of draftsman to cater for all possible situations, if it is found lacking in meeting some eventualities, the Court can act ex delicto justitiae, supply the omission in the procedure, adopt methodology for effectually carrying out the purpose in view.

(7) 2012 CLC (Sindh) 556 (Jangoo v. Fasahatullah Khan & others). No substantive step or proceedings in the suit itself was contemplated or required to be undertaken on that date. Court at the most could deal with the interlocutory matters and not the suit itself in its entirety. Unless the suit had been fixed for some substantive hearing or proceedings, it could not have been dismissed for non-prosecution.

(8) PLD 2012 Sindh 110 (Pehalwan Goth Welfare Council v. District Co-ordination Officer (DCO), Karachi & others). Plea raised by plaintiff was that when suit was dismissed for non-prosecution, it was fixed for deciding of application and not for issues, evidence or otherwise for hearing of the main case, therefore, it could not be dismissed or non-prosecution. Suit was not fixed either for settlement of issues nor it was fixed for evidence of plaintiff and such suit could not be dismissed for non-prosecution.

1. The learned counsel for the Defendant No. 1 argued that applications are not supported by proper affidavit as required under Sindh Chief Court Rules. It was further contended that applications are hopelessly time barred. The plaintiff failed to lead evidence and sought number of adjournments on different grounds. In compliance of order dated 14.10.2008 intimation was issued to the plaintiff for 05.11.2008 on which date attorney appeared and sought adjournment to engage counsel. Thereafter the suit was fixed numerous times but no one appeared for the plaintiff nor was any counsel engaged by the plaintiff. Due to withdrawal of vakalatnama by earlier counsel, it was duty of the plaintiff to engage another advocate. Learned counsel denied that there was any disturbance in the Court on that particular date due to PCO or induction of Judges. On the contrary he argued that Courts were functioning normally. It was further averred that the plaintiff has taken contradictory plea regarding date of knowledge of dismissal of suit. On one hand it was stated that the plaintiff came to know on 01.10.2011 while in Paragraph-2 of application under Section 5 of Limitation Act, it is stated that plaintiff came to know about dismissal of suit through a letter dated 29.08.2011 which was received by Chairman of the plaintiff on 02.09.2011. In support of his arguments he relied upon following case-law:

PLD 2003 Supreme Court 628 (Sheikh Muhammad Saleem v. Faiz Ahmad). It was held that person seeking condonation of delay must explain delay of each and every day to the satisfaction of the Court and should also establish that delay had been caused due to reasons beyond his control. When the delay in filing the appeal was seemingly due to mere negligence and carelessness of the appellant who failed to pursue his case with due diligence, he was not entitled to any indulgence. Door of justice was closed after the prescribed period of limitation had elapsed and no plea of injustice, hardship or ignorance could be of any avail unless the delay of each day was properly explained and accounted for.

1. The learned counsel for the Defendant No. 4 argued that no power of attorney or board resolution is attached with the applications to show that Intekhab A. Sayed was authorized to file application for restoration of suit on behalf of the plaintiff. The learned counsel also referred to various dates of hearing and argued that earlier counsel withdrawn his vakalatnama and on 05.11.2008 alleged attorney of the plaintiff was present in Court but he failed to engage counsel. Thereafter notices were issued but the plaintiff was called absent and ultimately suit was dismissed for non-prosecution. Learned counsel further argued that the plaintiff has attached copy of letter written by NAB on 29.08.2011 in which reference of their previous letter dated 13.06.2011 is mentioned which shows that the plaintiff was fully aware in the month of June 2011 regarding dismissal of suit and there was no occasion to wait for further letter or correspondence of NAB if the plaintiff was so keen and interested to file the application for restoration or revival of the suit. He further argued that under Section 27 of Financial Institutions (Recovery of Finances) Ordinance, 2001, suit cannot be restored and proper remedy was to file an appeal under Section 22. Learned counsel also referred to Article 163 of Limitation Act which provides 30 days' time for applying the setting aside the dismissal of suit on default of appearance and time for applying the setting aside the order starts from date of dismissal of the suit. In support of his arguments, he relied upon following case-law:--

(1) 2006 CLD 52 (Kar) (Messrs Makran Fisheries (Pvt.) Limited v. Platinum Co). Provision of Section 27, Financial Institutions (Recovery of Finance) Ordinance, 2001 are subject to Section 22 of the Ordnance under which an appeal is provided against final order of the Banking Court. Procedure as laid down in Order IX Rule 9 read with Section 151, CPC is not applicable. Banking Court, in the present case had finally disposed of the suit as dismissed for non-prosecution, as such after passing said order, the suit was no more pending before the Banking Court.

(2) 2006 CLC 163 (Kar.) (Shaikh Kamran Maqbool v. Bolan Bank Limited through Manager & another). Procedure to decide suit in the manner provided in Order XVII Rule 3, CPC was available with Banking Court and order passed by Banking Court, could only be attacked by filing an appeal and not otherwise since Section 27 of Financial Institutions (Recovery of Finances) Ordinance, 2001, had specifically barred Banking Court from revising or reviewing its own order, in particular when order would operate as decision of suit in terms of Order XVII Rule 3, CPC. Impugned order though was passed on account of non-appearance of plaintiff, but such order being clothed with mandatory provisions of Order XVII Rule 3, CPC, it would amount only to considering of merits of impugned order which exercise could only be undertaken in appeal.

(3) 1991 MLD 63 (AJ&K HC) (Abdul Karim and 2 others v. Rehm Ali). In order to seek condonation of delay, the plaintiff was under a heavy duty to satisfy the judicial mind of the Court that he was restrained by force of circumstances beyond his control to move the Court within the stipulated period for restoration of his suit.

(4) PLD 1970 (Lahore) 412 (Mst.Ghulam Sakina & others v. Karim Baikhsh & others). Section 151 cannot be invoked to set aside dismissal (obiter). Expression .....when the suit is called on for hearing. Word "hearing" implies taking down of evidence or hearing arguments or where question relating to the determination of suit considered. Court can dismiss suit under Order IX Rule 8 only on date which is fixed for hearing of suit.

(5) PLD 1989 (Karachi) 1 (Sabzal and others v. Bingo and others). For restoration of suit Article 163 applies while in case of setting aside decree Article 164 is applicable. Application for restoration of suit, therefore, has to be filed within thirty days from date of its dismissal. Article 181 contemplates a situation where no period of limitation is prescribed in the Schedule of the Limitation Act or Section 48 of CPC and does not apply in case of restoration of suit.

(6) 2009 SCMR 1030 (Mian Muhammad Asif v. Fahad & another). Dismissal of suit for non-prosecution. Article 181 of the Limitation Act, 1908 in circumstances, was not attracted and Courts correctly applied Article 163 of the Limitation Act, 1908 while considering the application for condonation of delay in moving the application for restoration of the suit. Issue of limitation lost its importance when party failed to show any cause for his absence and that of his counsel on the relevant date. Even otherwise, the Court was not bound to restore the suit merely because the restoration application was within time.

(7) 2009 SCMR 1435 (Abdul Rashid v. Director General, Post Offices, Islamabad & others). It is duty and obligation of aggrieved person to pursue his legal remedy with diligence and to satisfy conscience of Court or Quasi-Judicial Authority for approaching respective forums beyond prescribed limitation. In case aggrieved person does not avail remedy within prescribed period then vested right accrues to other side which could not be taken away lightly even if objections to that effect were not raised by opposite party.

1. Heard the arguments. Learned counsel for the plaintiff Mr. Muhammad Anwar Tariq made much emphasis that this suit was being fixed with Suit No. 808/1999 and Suit No. B-1222/1999. In order to verify this fact I called record and proceedings of both the suits to examine this fact. No doubt the instant suit was being fixed along with aforesaid suits. It is also a fact that the present plaintiff is Defendant No. 1 in both the aforesaid suits and their directors/guarantors have also been impleaded. On 14.10.2008, the earlier counsel for the plaintiff withdrawn his Vakalatnama and it is also a fact that the suit in hand was dismissed on 6.10.2009 for non-prosecution. The record and proceedings of all three suits clearly demonstrate that this suit along with Suit No. B-808/1999 and Suit No. 1222/1999 was being fixed continuously from 14.10.2008 to 6.10.2009, Since in the suit in hand the plaintiff failed to lead evidence or to produce witness, the suit was dismissed for non-prosecution. I also noted that this suit was being fixed for evidence of plaintiff since 7.5.2003, but the plaintiff failed to adduce any evidence till the date of the dismissal of the suit for non-prosecution. This fact is also reflecting from the record that the Suit No. B-808/1999 and Suit No. 1222/1999 in which the plaintiff was Defendant No. 1 though fixed on 6.10.2009, but these two cases were discharged which is transpiring from Reader's diary. It is also a fact that the leave to defend application filed by the plaintiff in Suit No. B-808/1999 was dismissed for non-prosecution on 23.5.2000 which was subsequently, restored on 29.8.2000 by consent and the leave to defend application is still pending and nobody was appearing to represent the plaintiff in that suit also. However, on 13.10.2011 Mr. Muhammad Anwar Tariq, Advocate filed his Vakalatnama for Defendant Nos. 1 (plaintiff) and Defendant Nos. 2 and 3.

2. Now I would like to take up the Suit No. B-1222/1999, in this case also the Vakalatnama was withdrawn on 14.10.2008 and as I observed earlier this suit was also being fixed together and even on 6.9.2009 when the suit in hand was dismissed, this suit was fixed but it was discharged. In this case also the present plaintiff is Defendant No. 1 and leave to defend application (CMA No. 9606/1999) was dismissed vide order dated 25.8.2004 and the plaintiff was directed to file statement of account showing the liabilities of defendants within two weeks. In this case also after discharging the Vakalatnama of Mr.Mansoor-ul-Arfin, Advocate vide order dated 14.10.2008, Mr.Anwar Tariq, Advocate has filed Vakalatnama for Defendant Nos. 1 (plaintiff] Defendant No. 2 on 13.10.2011. After analyzing the Order Sheet/Reader's diary etc. there is no germane or nexus to show that since the present suit was being fixed along with two other suits in which the present plaintiff was defendant, the present suit could not have been dismissed for non-prosecution, when it is clear that on 6.10.2009 all suits were fixed in Court and out of which two were fixed for hearing but the board was discharged and the suit in hand in which the plaintiff was to lead evidence was dismissed for non-prosecution. This is not the case of the plaintiff that on the date of dismissal his advocate was present in two other suits but in all three suits there was no appearance for and behalf of the plaintiff or in the capacity of defendant in two other suits.

3. At this juncture, I would like to point out that CMA No. 7273/1999 was filed by the plaintiff for consolidation of this suit with Suit No. 808/1999, which application was dismissed. Though the order sheet does not transpire any date when this order was passed, however, the Reader diary shows that this order was passed on 8.5.2002, therefore, this argument of the learned counsel is also misconceived that the Suit No. 808/1999 was being treated as leading suit. On the contrary there was no consolidation order passed by this Court.

4. So far as the other allegations that there was a heavy rain or there was some disturbance in the judiciary on account of PCO on that particular date i.e. 6.10.2009 the plaintiff has failed to point out any disability which prevented him not to appear and or lead evidence. The case of the plaintiff is that after withdrawal of Vakalatnama by the earlier counsel no notice was issued to the plaintiff to cause appearance of plaintiff. It is evident from the order dated 5.11.2008 when one Intekhab Sayed attorney of the plaintiff appeared in Court in person and requested for adjournment to engage some other advocate or to pursue Mr.Mansoor-url-Arfin to proceed the matter and in his presence fixed date was given to him. However, on 23.12.2008 the board was discharged. Again on 28.5.2009 order was passed to issue intimation notice to the plaintiff. Again intimation was issued for 18.8.2009 on which date the matter was discharged for want of time. The crux of the arguments of the learned counsel for the plaintiff is that for each and every date notice should have been issued to the plaintiff is a misconceived argument. If the plaintiff was so serious to pursue and prosecute the case then it was their sole responsibility and obligation and or duty to engage counsel so that their case may be decided on merits. No burden can be shifted upon the Court to send notice for each and every date, when the specific date and reasonable time was given to their attorney either to engage counsel or to pursue their earlier counsel to proceed the case.

5. It was the responsibility of the plaintiff to vigilantly pursue the case and not to act recklessly which has been done in this case. Though the suit was dismissed on 6.10.2009 but the restoration application was filed on 3.10.2011, which is admittedly time barred. Article 163 of the Limitation Act provide 30 days' time for setting aside the order dismissing the suit in default of non-appearance and right to apply accrues from the date of dismissal. In order to seek condonation of delay the plaintiff has also filed the application under Section 51 of the Limitation Act and pleaded the knowledge of dismissal of the suit from the letter dated 29.8.2011, which was written by NAB to the Chairman of plaintiff. In the letter of NAB violation of a MOU was attributed to the plaintiff with the direction to pay balance amount by 15.9.2011 failing which NAB will reinitiate investigation proceedings against the plaintiff. Along with this letter a letter of NBP dated 29.7.2011 is also attached to show that Executive Vice President of NBP informed the NAB that the plaintiff failed to fulfill the terms of MOU and the creditor Bank have also re-activated their recovery suits. The NAB letter does not refer any suit, but it is merely relate to re-initiation of investigation against the plaintiff. While in the NBP's letter also no particular suit number is mentioned, but it is mentioned that on account of nonfulfillment of MOU the creditor Banks have decided to reactivate the recovery suit. On plaintiffs own showing Suit No. 808/1999 and Suit No. 1222/1999 are being fixed in Court regularly out of which in one suit the leave to defend application of the plaintiff is pending and in another suit the leave to defend application was dismissed, so the question of reactivation of suits does not arise when they are already activated.

6. So far as the condonation of delay is concerned, the plaintiff on its own pleaded that on came into knowledge of dismissal of this suit, through letter dated 29.8.2011, which was allegedly received to them on 2.9.2011 and the condonation application along with restoration. application both were filed on 3.10.2011. It is quite strange to note that the suit was dismissed on 6.10.2009 and the plaintiff came to know the dismissal on 29.8.2011, but in the intervening period no efforts were made by the plaintiff to watch or to take care of their suit. Almost two years lapsed but the plaintiff was so reckless and careless to find out the fate of the suit and their conduct shows that in these two years period they never bothered to pursue or verify the status of their own suit. This cannot be treated a sufficient cause that a party who is himself a plaintiff has to wait for the information of dismissal of their suit through different source and only the letter of NAB they awakened which is otherwise not at all relevant to the dismissal rather its parameters are merely confined to the alleged MOU and it is non-fulfillment on the part of the plaintiff.

7. There is no strait-jacket formula for determining what sufficient cause' is. The expression sufficient cause so as to grant relief under Order IX, Rule 9, CPC has been left to the wisdom, good sense and discretion of the Court. The wordsufficient cause' for restoration of suit is not susceptible of any exact definition and no hard and fast rule can be laid down. As to what is sufficient cause' depends on the facts and circumstances of each case. Parameter of each case would primarily be its own facts, it would have to be taken into consideration for determining as to whethersufficient cause' was shown or not. The Court is to be satisfied as to the sufficiency of good cause and it has to be subjective satisfaction. Where suit is dismissed for default it is `the duty of that party or counsel to show sufficient cause as to why case was not prosecuted on the relevant date. It is well settled that mere engagement of counsel does not absolve the party of his responsibility as it was as much his duty as that of counsel engaged by him to see whether the case was properly and diligently prosecuted or not and if counsel was lacking in his sense of responsibility it is the party who engaged him should suffer and not the other side. In this case the earlier counsel withdrawn his Vakalatnama and on subsequent date attorney of the plaintiff appeared and sought time to engage counsel and thereafter, became out of scene and at least for two years did not take any pain to watch out or find out the stage or status of the suit and now after considerable time when valid right accrued in favour of the defendant, applied restoration with application for condonation of delay. There are two different aspects involved in this case for the purposes of restoration of suit and condonation of delay, the plaintiff has to demonstrate the sufficient cause whereby he was prevented not to diligently pursue the suit while for the purposes of condonation of delay under Section (5) of the Limitation Act, delay of each and every day has to be explained. If condonation is allowed even then it does not mean that restoration of suit will also be achieved, but this remedy is subject to the proof of sufficient cause, which plaintiff has failed to establish.

8. Learned counsel for the plaintiff relied upon various case law which are distinguishable to the facts and circumstances of the present case. In the case of Muhammad Ismail, the matter was fixed for filing replication and for deciding interlocutory application, but the whole suit was dismissed. In the case of Muhammad Qasim & others the appeal was dismissed for non-prosecution on the date which was given by the Reader. In another case of Muhammad Aslam the matter was fixed for hearing of leave to defend application but due to absence of plaintiff the suit was dismissed. In my own judgment in case of Al-Waqar Corporation the evidence was already recorded and the matter was fixed for arguments only but the suit was dismissed for non-prosecution on 18.2.2009, as the plaintiff failed to adduce evidence, but the restoration application was filed with short delay on 27.01.2010 and not after two years. In the case of Province of Sindh (supra) the Court held that for the purposes of disposal of restoration application it was to be seen as to whether the applicant had shown sufficient reason for non-appearance on the fateful date and such application has been filed within a period of limitation. In the case in hand no sufficient cause has been shown except that after two years the plaintiff came to know the dismissal through NAB letter and admittedly the application is barred by time. In the case of United Bank Ltd., the Court held that the inherent powers under Section 151, CPC may be exercised to meet the ends of justice and to prevent abuse of process of Court. In the case of Jangoo, the Court held that when the suit was dismissed the matter was fixed for interlocutory nature and the suit was not fixed for some substantive hearing of proceedings and lastly in the case of Pehalwan Goth Welfare Council it was held that when the suit was dismissed for non-prosecution it was fixed for deciding the application and not for issues; evidence or otherwise. In all aforesaid cases it was never held that when plaintiff failed to lead evidence repeatedly the suit cannot be dismissed for non-prosecution rather most of the cases in which restoration application was allowed were fixed for hearing of interlocutory application and not for settlement of issues or evidence/arguments.

9. The case of Shaikh Muhammad Saleem relied upon by the counsel for the Defendant No. 1, the hon'ble. Supreme Court expounded the guideline that person seeking condonation of delay must explain delay of each and every day to the satisfaction of the Court and should also establish that delay had been caused due to reasons beyond his control, which the plaintiff has failed to make out in the case in hand.

10. Learned counsel for Defendant No. 4 referred to the cases of Abdul Karim, Mst.Ghulam Sakina, Sabzal, Mian Muhammad Asif and Abdul Rashid (supra), in which the Court held that while seeking condonation, the plaintiff is under a heavy duty to satisfy the judicial mind that he was restrained by force of circumstances beyond his control. The Word "hearing" implies taking down of evidence or hearing arguments and the Court can dismiss the suit under Order IX Rule 8 only on date which is fixed for hearing. It was further held that for restoration of suit Article 163 of the Limitation Act applies and application for restoration should have been filed within thirty days from the date of its dismissal. In one case it was held that it is the duty and obligation of aggrieved person to pursue this remedy with diligence and to satisfy conscience of Court for approaching respective forums beyond prescribed limitation. In case aggrieved person does not avail remedy within prescribed period then vested right accrues to other side which could not be taken away lightly even if objections to that effect were not raised by opposite party.

11. Learned counsel for the Defendant No. 4 further referred to two more case law reported in 2006 CLD 52 and 2006 CLC 163 (supra) in both case law learned Single Judges of this Court held that provision of Section 27 of Financial Institutions (Recovery of Finances) Ordinance, 2001 are subject to Section 22 of the Ordinance under which an appeal is provided against final order of the Banking Court. Hence, procedure laid down under Order IX Rule 9, CPC read with Section 151 CPC is not applicable. The ratio of both judgments cited above is that the order passed by the Banking Court could only be attacked by filing an appeal as Section 27 of the aforesaid Ordinance has specifically barred the Banking Court from revising or reviewing- its own order in particular when order would operate as decision of the suit in terms of Order XVII Rule 3, CPC.

12. In this regard I would like to point out that the present suit was filed under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, which was repealed by Financial Institutions (Recovery of Finances) Ordinance, 2001. Under sub-section (6) of Section 7 of the 2001 Ordinance, it is clearly provided that all proceedings pending in any Banking Court under the repealed Ordinance shall stand transferred or to be deemed to be transferred and heard and disposed of by the Banking Court having jurisdiction under 2001 Ordinance. Under sub-section (2) of 2001 Ordinance it is clearly provided that the Banking Court shall in all matters with respect to which the procedure has not been provided, follow the procedure laid down in the CPC Section 27 of Financial Institutions (Recovery of Finances) Ordinance, 2001 relates to the finality of order and provides that subject to the provision of Section 22 no Court or other authority shall revise or review or call or permit to be called into question any proceeding, judgment, decree, sentence or order of the Banking Court or legality or propriety of anything done or intended to be done by the Banking Court in exercise of jurisdiction under this Ordinance. The provision of appeal against the judgment, decree, sentence or final order passed by Banking Court is provided under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. With great respect in my opinion Section 27 of the Ordinance does not restrict Banking Court itself but it clearly provides that subject to Section 22 no Court or other authority shall revise or review or call in question any proceedings, judgment or decree or sentence or order of Banking Court. The dismissal of suit in non-prosecution as done in this case did not decide the rights of parties on merits and even this order cannot be considered a decision under Order XVII Rule 3, CPC, but the suit was only dismissed due to default and or non-adducing the evidence. Under the Article 37 of the Constitution of Pakistan, it is the responsibility of State to ensure inexpensive and expeditious justice. If Section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 is read in a way that after dismissal of suit for non-prosecution a Banking Court cannot restore the suit then this would be very harsh and irrational interpretation which lead to an absurdity that the order dismissing the suit for non-prosecution which is neither a judgment nor decision or decree should be challenged in appeal in which also there would be only probability that the appellate Court after hearing the parties at best either would dismiss the appeal or restore the suit on sufficient cause and remand the matter back to the banking Court to proceed the case on merits as no conclusive decision/decree and or judgment of the trial Court would be before the appellate Court to decide the rights of the parties except that the suit was dismissed for non-prosecution without touching merits of the case. In the case in hand I am Banking Court as defined under sub-clause (ii) of clause (b) of Section 2 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and in my humble opinion there is no bar under Section 27 of the said Ordinance that the Banking Court cannot restore the suit dismissed for non-prosecution. Though it is a different aspect that while restoring the suit it is incumbent upon the Banking Court to see whether sufficient cause has been made out or not and in case of application barred by limitation, the Banking Court has also to see whether delay of each and every day has been explained or not to the satisfaction of the Court, which in my understanding the plaintiff has failed to make out in this case. Sufficient cause has been given a meaning to embrace all relevant circumstances. The question would be whether the plaintiff honestly intended to be in Court and did his best to get there in time, but for intervention of some inevitable cause he failed to appear which is sufficient cause inviting order for restoration. No sufficient cause has been shown therefore, I am not inclined to restore the suit.

13. As a result of above discussion, both the applications are dismissed.

(R.A.) Applications dismissed

PLJ 2013 Karachi 107

Present: Farooq Ali Channa, J.

MUHAMMAD ABID & BROTHERS--Petitioner

versus

VII-ADDITIONAL DISTRICT JUDGE, SOUTH AT KARACHI and 2 others--Respondents

Cons. Petition No. S-648 of 2012, decided on 6.2.2013.

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

----S. 5(2)--Constitution of Pakistan, 1973, Art. 199--Ejectment petition--Willful default and demise premises required for personal bonafide use--Written rent agreement was mandatory requirement as proof of relationship of landlord and tenant--No jurisdiction to entertain ejectment application--No dispute over non-payment of rent as such controversy was regarding existence of relationship of tenant and landlord--Validity--Agreement of sale did not create any title over any property, relationship of tenant and landlord does exist between parties--Payment of utility charges alone in absence of any specific terms and conditions of tenancy would not be enough to prove existence of relationship of tenant and landlord--Petitioner although had admitted payment of utility bills but as owner and not as tenant, as such burden lies upon respondent to prove that payment of utility bills were agreed between predecessors of the parties to be paid as tenant of demise premises which burden respondent had failed to prove--If occupant was inducted in premises as tenant and thereafter he claims to have purchased property, jurisdiction lies with Rent Controller and tenant in such circumstances had to vacate premises and file suit for specific performance of sale agreement whereafter he would be given easy access to premises--Respondent had failed to prove relationship of landlord and tenant between parties as such Rent Controller had no jurisdiction to entertain ejectment application, therefore, judgments passed by Rent Controller was set aside--Petition was allowed. [Pp. 111, 112 & 113] A, D, E & G

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

----S. 2(J)--Scope of--Contractual and statutory tenant--Ejectment petition--Contractual tenant would be one who undertake to pay or is bound to pay rent as consideration for possession or occupation of any premises by him or by any other person on his behalf during contractual period of tenancy and statutory tenant would be one who was bound to pay rent by operation of law such as contractual tenant continuing possession or occupation of premises on expiry of agreed period of tenancy or heirs of tenant in possession or occupations of premises after death of tenant--Respondent had failed to bring on record any documentary proof to establish relationship of tenant and landlord. [P. 112] B & C

Limitation--

----Though no limitation is provided for filing ejectment application but from un-necessary delay inference can be drawn adversely against case of respondent. [P. 113] F

Mrs. Shabana Ishaque, Advocate for Petitioner.

Mr. Nadir Burdi, Advocate for Respondents No. 3.

Date of hearing: 28.1.2013.

Judgment

Through the instant Constitutional Petition the petitioner has called in question the concurrent findings of two Courts below, whereby the ejectment application filed by the Respondent No. 3 against the petitioner was allowed by the VIII Rent Controller, Karachi (South) vide order dated 23.10.2010 passed in Rent Case No. 656/2008, upheld by the learned VII Additional District Judge, Karachi (South) vide judgment dated 02.05.2010, passed in First Rent Appeal No. 407/2010.

1. The facts in brief giving rise to file the instant petition are that the Respondent No. 3 Amin-ur-Rehman filed the ejectment application bearing Rent Case No. 656/2008 for eviction of petitioner from House No. 138/1, situated at Garden West, near Muhammadi Masjid, Jumboo Street, Karachi, on the grounds of willful default committed by the petitioner and the demise promises required for personal bonafide use by Respondent No. 3, the said premises was rented out to the father of petitioner by the mother of Respondent No. 3, at the rent of Rs. 40,000/- per month, 16 years back.

2. In pursuance of the notice, the petitioner appeared before learned Rent Controller and filed his written reply denying the relationship of landlord and tenant between him and the Respondent No. 3 and taken plea that his father had purchased the premises in question from the mother of Respondent No. 3 in the year 1983.

3. The trial Court after recording the evidence framed point amongst others for determination that:

"whether there exist any relationship between applicant and opponent as landlord and tenant".

After hearing learned counsel for both the parties, learned Rent Controller allowed the ejectment application, the petitioner impugned the order of learned Rent Controller in First Rent Appeal No. 407/2010 the same was dismissed by learned VIIth Additional District Judge, Karachi (South).

1. Learned counsel for both the parties have emphasized the Point No. 1 mentioned above only, as nonpayment in lieu of rent of demised premises by the petitioner to the Respondent No. 3 is not a controversial issue between the parties.

2. Learned counsel for the petitioner has contended that there exists no relationship of tenant and landlord between the petitioner and Respondent No. 3, the father of petitioner was inducted in the premises by the mother of the Respondent No. 3 as purchaser of property in the year 1983 under a sale agreement on payment of sale consideration. Learned counsel has further contended that Respondent No. 3 has failed to produce any document or evidence to establish the existence of relationship as tenant and landlord between the parties both the Courts below have failed to appreciate the above fact while deciding the ejectment application and F.R.A. Learned counsel has further contended that utility charges are being paid by the petitioner as owner and not tenant, the telephone facility was also provided by the concerned department at the demised promises in the name of petitioner. Learned counsel has further contended that under Section 5(2) of the Sindh Rented Premises Ordinance, 1979 written rent agreement is mandatory requirement as proof of relationship of landlord and tenant between parties, thus the learned Rent Controller had no jurisdiction to entertain the ejectment application which was liable to be dismissed for want of written agreement, the landlord could have recourse to civil Court for seeking ejectment of person occupying his premises unauthorizedly. In support of her contention learned counsel has relied upon the case laws reported as Habib Ahmed v. Liaquat Ahmad (PLD 1985 741), Hakim Ali v. Muhammad Salim and another (1992 SCMR 46), Muhammad Akram v. Muhammad Zar and others (1987 SCMR 1788), Abdul Hameed Naz and 7 others v. Mst. Razia Begum Awan and 4 others (1991 SCMR 1376).

3. Conversely, learned counsel for the Respondent No. 3 has opposed the petition. However, at outset admitted that he does not have written rent agreement or rent receipt in proof of relationship of landlord and tenant between the parties, his contention was that the relationship was established from the evidence led by both the parties before the learned Rent Controller. He has contended that the Respondent No. 3 in his affidavit-in-evidence has stated that he had received the rent of two months and thereafter the petitioner stopped the payment of rent, this fact has not been rebutted by the petitioner in his cross-examination, as such unshattered and unrebutted evidence deemed to be an admission of fact, on this point learned counsel has relied upon a case of Shakeel Ahmad and another v. Muhammad Tariq Farogh and others (2010 SCMR 1925). Learned counsel has further contended that the petitioner has admitted the payment of utility charges, which in terms of Section 2(I) Sindh Rented Premises Ordinance, 1979 is part of rent, resultantly such admitted facts are sufficient to establish the relationship of tenant and landlord between the parties. Learned counsel has further contended that the written tenancy agreement although required in terms of Section 5(1) Sindh Rented Premises Ordinance, 1979 but the Hon'ble Apex Court have not recognized or entertained the said provision to be mandatory and have declared same to be directory, hence the petitioner cannot claim benefit of absence of written tenancy. Learned counsel has also relied upon the cases, 2011 SCMR 320, PLD 2009 SC 453, PLD 1991 SC 242, PLD 2008 Kar 424, 2002 CLC 876, PLD 2003 Kar. 444 and 2010 SCMR 1925.

4. As already stated that there is no dispute over the non-payment in lieu of rent by petitioner to the Respondent No. 3 as such the sole controversy is regarding the existence of relationship of tenant and landlord between the parties?

5. Learned Rent Controller while deciding the above point has not assigned appropriate reasons while deciding the said issue in affirmative. The findings of learned VIIIth Rent Controller on the above controversy reads as under:

"It is stated by the applicant that premises in question was let out by his father to Muhammad Arif, father of respondent, who died 3 years before filing of the present case and thereafter the opponent being statutory tenant was required to pay Rs.40,000/- per month as rent.

The opponent has denied the relationship of landlord and tenant between him and applicant on the ground that the premises was purchased by their father Muhammad Arif from the mother of applicant Mst. Aisha and have also relied upon the agreement to sale alleged to have been executed between Mst. Aisha and Muhammad Arif. This Court being Rent Controller has no jurisdiction to determine the claim of opponent over the property in question. However, it is an admitted fact that the mother of applicant was the owner of the premises in question and after her death, the applicant become landlord. In view of the above reasons, I am inclined to hold that the relationship between the landlord and tenant exist between the parties. The point is decided in Affirmative."

Similarly Learned VII Additional District Judge, Karachi (South) while deciding the F.R.A has also not recorded appropriate reasons for believing the existence of relationship of tenant and landlord. The findings of learned VII Additional District Judge, Karachi (South) reads as under:

"It is settled law that agreement of sale does not create any title over any property as such it is proved that relationship of landlord and tenant does exists between the parties."

However, while recording the above finding learned VII Additional District Judge, Karachi (South) has referred to a matter reported as Abdul Rasheed v. Maqbool Ahmed and others (2011 SCMR 320). I have gone through the above referred matter and found nowhere that the agreement of sale does not create any title over any property, the relationship of tenant and landlord does exist between the parties.

1. The term "tenant" has been defined in Section 2(j) the Sindh Rented Premises Ordinance, 1979, the same has further been defined elaborately by the Hon'ble Apex Courts in two categories i.e. (i) contractual and (ii) statutory tenant. The contractual tenant would be one who undertakes to pay or is bound to pay rent as consideration for possession or occupation of any premises by him or by any other person on his behalf during the contractual period of tenancy and the statutory tenant would be one who was bound to pay rent by operation of law such as contractual tenant continuing possession or occupation of the premises on expiry of agreed period of tenancy or heirs of a tenant in possession or occupation of the premises after the death of the tenant. In the instant case the petitioner has categorically denied to have been inducted in the demised premises as contractual or statutory tenant. The Respondent No. 3 has also failed to bring on record any documentary proof to establish the relationship of tenant and landlord between the parties. This Court in a case of identical facts and circumstances reported as Beejal Mal v. Punaji (1987 CLC 1134) has observed, which reads as under:

"Next I proceed to examine whether there existed any contractual or oral relationship of landlord and tenant between the parties. Admittedly there is written agreement of tenancy or no documentary evidence to show payment of rent by the appellants. According to respondent he inducted the appellants as tenants by oral agreement and that he used to issue rent receipts on blank paper of which no counterfoil was kept. He also admits, that the appellants did not pay him rent in presence of any body. In such case the burden of proof lies upon the landlord to prove the existence of relationship of landlord and tenant between the parties."

While concluding it has further been observed that:

"Considering all the facts discussed above and submissions of the learned counsel in my opinion the respondent has failed to prove the existence of relationship of landlord and tenant between him and the appellants. In such case the jurisdiction of the Rent Controller is ousted and the parties can seek redress in the civil Court. I accordingly allow the appeal and set aside the impugned order. Under the circumstances of the case the parties are allowed to bear their own costs."

The payment of utility charges alone in absence of any specific terms and conditions of tenancy would not be enough to prove existence of relationship of tenant and landlord. The petitioner although has admitted the payment of utility bills but as owner and not as a tenant, as such burden lies upon the Respondent No. 3 to prove that the payment of utility bills were agreed between the predecessors of both the parties to be paid by the petitioner as tenant of demised premises, which burden the Respondent No. 3 has failed to prove. So far the legal position of the statement not shattered or rebutted during the cross-examination is concerned, the same principle shall also apply to the evidence of petitioner who in Paras No. 5, 6 and 7 of his affidavit in evidence has categorically stated that the mother of Respondent No. 3 had not demanded any rent during her life time and since 1983, they are enjoying the possession of demised premises as lawful owner and paying utility bills and other charges as exclusive owner of said property, the above submissions of petitioner were not shattered or rebutted in cross-examination. Learned counsel for the Respondent No. 3 while conducting the cross-examination emphasized the execution of sale agreement and receipt of payment to be forged one. Furthermore the rate of rent at Rs. 40,000/- per month for a residential house situated in Garden West in the year 1983 does not appeal to a prudent mind. Per Respondent No. 3 same is the rent till today, which is astonishing that during the period of 30 years no demand for enhancement of rent was made.

1. The nutshell of the observations reported in cases referred to by the counsel for the petitioner is that if the occupant is inducted in the premises as tenant and thereafter he claims to have purchased the property, the jurisdiction lies with the Rent Controller and the tenant in such circumstances has to vacate premises and file suit for specific performance of sale agreement whereafter he would be given easy access to premises in case he prevails. In the instant case the appellant has never admitted that in the year 1983 he or his father had been inducted in demised premises as tenant, the same also finds support from the circumstances of case that since 1983 the petitioner was enjoying the possession and there was no demand of enhancement in rent during 30 years, and the Respondent No. 3 has filed ejectment proceedings after the appellant committed willful default in payment of rent for 3 1/2 years as stated in para No. 2 of the application under Section 15 Sindh Rented Premises Ordinance. Though no limitation is provided for filing the ejectment application, but from un-necessary delay inference can be drawn adversely against the case of Respondent No. 3.

2. For the reasons discussed above and dicta referred hereinabove I have come to the conclusion that the trial Court and appellate Court have erred in deciding the Point No. 1 in affirmative, the Respondent No. 3 has failed to prove the relationship of landlord and tenant between the parties as such the Rent Controller had no jurisdiction to entertain the ejectment application, therefore, the judgments passed by the learned VIII Rent Controller dated 23.10.2010 in Rent Case No. 656/2008 and learned VII Additional District Judge, Karachi (South) dated 02.05.2010 in F.R.A No. 407/2010 are set aside and the ejectment application is dismissed.

The Constitutional Petition is allowed.

(R.A.) Petition allowed

PLJ 2013 Karachi 114 (DB)

Present: Faisal Arab and Nisar Muhammad Shaikh, JJ.

MAHBOOB AHMED SOOMRO--Petitioner

versus

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

C.P. No. D-2656 and CMA No. 15388 of 2012, decided on 21.2.2013.

Constitution of Pakistan, 1973--

----Art. 199--Removal from Service (Special Powers) Ordinance, 2000, Ss. 2-A 3 & 5--Constitutional petition--Petitioner cannot re-agitate in second round--Employee of bank at time when H.B.L. was nationalized--Objection of maintainability--Major penalty of compulsory retirement from service--Not being corporation under control of federal govt. or provincial Government, it was not amenable to writ jurisdiction--Decisions of Supreme Courts come in way of petitioner--Validity--Any order even if challengable and could be reversed before higher forum if allowed to remain in field then legal consequences do follow from such order--When action was taken against petitioner the shares of Bank were held by Federal Govt. but as petitioner had given up challenge to his compulsory retirement before S.C., principles of res-judicata were attracted in view of discussion made in judgments of S.C.--Judgments of S.C. cannot interfere in second round and were constrained to hold that instant petition was not maintainable--Petition was dismissed. [P. 116] A

PLD 1987 SC 145 & 1971 SCMR 447, rel.

Petitioner Present in Person.

Mr. Mehmood Abdul Ghani, Advocate for Respondents No. 2 and 3.

Date of hearing: 21.2.2013.

Order

Petitioner was Manager in one of the Branches of the respondent bank when in the year 2003 he was served with the statement of allegations and charges and it was ordered that an enquiry be conducted under Section 2-A read with Sections 3 and 5 of the Removal from Service (Special Powers) Ordinance, 2000. Subsequently enquiry was conducted and the petitioner was visited with the major penalty of compulsory retirement from service. The petitioner made representation which was dismissed and then he filed Constitutional Petition before this Court bearing C.P. No. 342/2008. This petition was dismissed by a short order dated 9.02.2009. The main reasons which prevailed in dismissing the petition was that the respondent bank was not covered by the definition of `person' under Article 199 of the Constitution and the respondent not being a corporation under the control of the Federal Government or Provincial Government it was not amenable to writ jurisdiction. Petitioner thereafter preferred Appeal before the Honourable Supreme Court being Civil Appeal No. 1178/2009 and when it was taken up for hearing on 24.11.2010 the appeal was not pressed which was dismissed as not pressed. It was however observed that in such eventuality, the matter shall be heard on merits by the respondent bank in accordance with law without being influenced from any observation made in the High Court judgment. The petitioner thereafter again made a representation to the respondent bank which was turned down. Thereafter the petitioner has filed the present petition.

During the pendency of this petition, an objection was raised as to the maintainability of this petition. The petitioner argued that when the action was taken against the petitioner, the bank was not privatized as the controlling shares of the respondent bank were still with Government of Pakistan and as the action was taken against the petitioner under the statute i.e. Removal from Service (Special Powers) Ordinance, 2000 therefore the respondent bank was amenable to writ jurisdiction of this Court. Counsel for the respondent bank, on the other hand, argued that against penalty of compulsory retirement the petitioner had filed Constitution Petition under Article 199 of the Constitution which was dismissed as not maintainable and the appeal that was preferred before the Supreme Court against such decision was not pressed hence the order of this Court whereby it was declared that the petition is not maintainable under Article 199 of the Constitution, still holds the field and the petitioner can not re-agitate the same in the second round.

In reply the petitioner has argued that when the appeal before the Honourable Supreme Court was not pressed, an opportunity was given to the petitioner to re-agitate the matter before the respondent bank and hence another window of opportunity was opened for him to re-agitate the matter and upon rejection of the representation in the second round the petitioner is entitled to seek redressal of his grievance in the Constitutional jurisdiction of this Court.

Petitioner was employed with the respondent bank at the time when Habib Bank was a nationalized bank. We have given a decision on such point that when Habib Bank was controlled by the Federal Government the writ jurisdiction can be invoked for a cause of action that has accrued to an aggrieved person at a time when Habib Bank was not privatized. The action against the petitioner was also taken on the basis of statute i.e. Removal from Service (Special Powers) Ordinance, 2000 and hence open to a challenge in Constitutional jurisdiction however the decisions of the Honourable Supreme Court in PLD 1987 SC 145 and 1971 SCMR 447 come in the way of the petitioner as the petitioner himself withdrew his appeal before the Honourable Supreme Court which left the judgment of this Court in the earlier round remain in the field. Any order even if challengeable and could be reversed before the higher forum if allowed to remain in the field then legal consequences do follow from such order. In the present case when the action was taken against the petitioner the shares of Habib Bank were held by the Federal Government but as the petitioner has given up the challenge to his compulsory retirement before the Honourable Supreme Court the principles of res-judicata are attracted in view of the discussion made in the above referred two judgments of Honourable Supreme Court. We are bound by the judgments of the Honourable Supreme Court and hence can not interfere in the second round and are constrained to hold that this petition is not maintainable, hence this petition is dismissed.

(R.A.) Petition dismissed

PLJ 2013 Karachi 116

Present: Muhammad Ali Mazhar, J.

LUCKY ENTERPRISES GOODS FORWARDING AGENCY through its Proprietor--Plaintiff

versus

M/s. ZEAL PAK CEMENT FACTORY LTD. through Chairman/Managing Director--Defendant

Suit No. 218 and C.M.A. No. 9050 of 2011, decided on 15.2.2013.

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

----O. VII, R. 10--Scope--Return of plaint--No agreement in writing was ever executed and no privity of contract between parties--No territorial jurisdiction to entertain suit--Original civil jurisdiction conferred upon High Court was limited for territorial limits of Distt.--Validity--For purpose of determining application u/O. VII, Rule 10, CPC, contents of plaint were to be taken on their face value--Question of return of plaint must be determined on basis of allegations made in plaint--Plaintiff choice to sue defendant was circumscribed by two conditions i.e. place where cause of action accrued and place where defendant resides or carry on business or personally works for gain--Held: Order VII, Rule 10, CPC gives the Court a discretion to return a plaint at any stage of the suit which has no jurisdiction over a suit, cannot pass any judicial order in such a suit except orders which statute empowers it to pass--When Court found that it had no jurisdiction to try the suit, it would return plaint for presentation before appropriate Court having jurisdiction. [P. 122] A

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

----S. 16(a) & (d) & O. VII, R. 10--Return of plaint--No territorial jurisdiction to entertain the suit--Immovable property was situated outside territorial jurisdiction of Karachi but suit for specific performance was filed in High Court Rawalpindi Bench--Validity--For recovery of immovable property or determination of any other right or interest, suit would had been filed in Rawalpindi--Claim of plaintiff was that entire negotiations for deal took place at Karachi and Head Office of defendant was situated at Karachi and cause of action was stated to have partly arisen at Karachi--High Court had jurisdiction for determining question of territorial jurisdiction with reference to cause of action whether accrued wholly or in part, averments of plaint were to be read in conjunction with reliefs sought by party and such reading would be meaningful rational to controversy and not merely formal--If a corporation had its principle office or had office at Karachi, High Court at Karachi would have jurisdiction regardless of whether cause of action accrued at Karachi or not--Plaintiff’s suit was maintainable and High Court had ample jurisdiction to try and dispose of the suit--Application under order VII, Rule 11, CPC was dismissed. [Pp. 123 & 124] B, C, D, F & G

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

----S. 20 & O. VII, R. 11--Scope of--Return of plaint--Territorial jurisdiction of Civil Court--Negotiations regarding supply of coal took place at Karachi, letters were issued by defendant from their Head Office--Immovable property was situated outside territorial jurisdiction of Karachi--Validity--Claim of plaintiff was that entire negotiations for deal took place at Karachi in Head Office situated at Karachi and cause of action was stated to have partly arisen at Karachi, High Court at Karachi had jurisdiction--All classes of suits can be filed in Court within local limits of whose jurisdiction cause of action arose either wholly or any part--Term cause of action referred to every act which if traversed would be necessary for plaintiff to prove in order to support his right to judgment and if no proved would give defendant a right to judgment and for that purpose only facts stated in plaint were to be considered to determined whether such facts state cause of action or not, even fraction of cause of action is a party of cause of action. [Pp. 123 & 124] C & E

Mr. Muhammad Ikram Siddiqui, Advocate for Plaintiff.

Mr. Akhtar Hussain, Advocate for Defendant.

Date of hearing: 11.12.2012.

Order

The plaintiff has filed this suit for recovery of money and prayed as under:--

(a) To pass the Judgment & Decree in favour of the plaintiff and against the defendant for sum of Rs.3,84,25,433/- (Rupees Three Crores Eighty Four Lacs Twenty Five Thousand Four Hundred Thirty Three) with interest/mark-up @ Bank from October, 2008.

(b) To pass Judgment & Decree directing the defendant to pay the income tax amounting to Rs. 14,13,075/- to the income tax authorities, alternately if they do not do so, they may be directed to pay the said amount to the Plaintiff and thereafter same will be deposited with the income tax authorities.

(c) To award Damages Rs. 1,00,00,000/- to the plaintiff.

(d) To pass restraining order against the Defendant his servant, employees, associates, agents, person or persons who are claiming through or under him from selling, mortgaging, alienating the Zeal Pak Cement Factory, its parts and material therein.

(e) To appoint Receiver to the Nazir of this Hon'ble Court of the property/Zeal Pak Cement Factory and order may be passed to attach the Zeal Pak Cement Factory before Judgment because it is apprehension that the Defendant may at any time remove the property/Zeal Pak Cement Factory and may run away from jurisdiction of this Hon'ble Court.

(f) Any other better relief may be deemed fit in the circumstances of the case.

(g) Cost of the suit may also be awarded to the Plaintiff.

1. The brief facts of the case are that the plaintiff is a sole proprietorship firm engaged in the business of supplying coal. The defendant issued a Purchase Order to the plaintiff for supply 200/300 tons of coal on daily basis from Lakhra. The plaintiff has also attached a letter issued by the defendant on 2nd August, 2008 through its Manager Purchase on its letter head. The plaintiff accepted the order and started supply of coal to the defendant's Cement Factory at Hyderabad. The plaintiff has also attached a certificate issued by Manager Admin., of the defendant on 29th September, 2008 verifying that proprietor of the plaintiff is supplying coal to the defendant. The claim of the plaintiff is that despite supply of huge quantity of coal, the defendant has failed to make the payment.

2. The defendant has filed this application under Order VII Rule 10, CPC (CMA No. 9050/2011) in which it has been prayed that this Court has no territorial jurisdiction to try the suit thus the plaint is liable to be rejected or in alternate the same may be returned back to the plaintiff for institution in the Court having territorial jurisdiction.

3. Mr. Akhtar Hussain, learned counsel for the defendant argued that the defendant's factory is situated at Hyderabad. It was further avowed that no cause of action has accrued at Karachi hence this Court has no territorial jurisdiction to entertain this suit. He further argued that original civil jurisdiction conferred upon this Court is limited for the territorial limits of Districts of Karachi and Sections 16, 17 and 20, C.P.C. are not applicable. Learned counsel further argued that the plaintiff has filed this suit with mala fide intention and since this Court has no jurisdiction to entertain the suit hence the plaint is liable to be returned for its institution before the competent Court at Hyderabad. So far as other aspects of the case are concerned, learned counsel argued that annexure-A and B attached to the plaint are forged and fabricated documents. It was further contended that no agreement in writing was ever executed between the parties and the defendant has no privity of contract with the plaintiff. It was further contended that all payment vouchers were issued in the name of M/s. Ashiq & Company. Learned counsel also pointed out two agreements attached with the written statement dated 27th October, 2007 and 24th January, 2008 to show that the defendant has already outsourced the production task to the contractor M/s. Ashiq & Company. The learned counsel was of the view that coal if any supplied by the plaintiff was supplied to the contractor and not directly to the defendant. In support of his arguments, learned counsel for the defendant referred to following case law:--

(1) 2010 CLC (Karachi) 1226 (Ismat Asad v. Pakistan Oxygen Ltd. & another). This judgment was authored by me in which I held that suit property was situated at place "R" and suit was filed at place "K" on the ground that advertisement for sale of suit property was also published in newspaper at place "K" and earnest money was also paid there. Validity. By reading Section 12 of Specific Relief Act, 1877, in conjunction with Section 16 (a) and (d), CPC, it was clear that only the Courts in whose territorial jurisdiction the suit property was situated could entertain and decide the suit. Mere publication of an advertisement to sell or alleged payment of token money could not give any cause of action to decide the suit for specific performance in which many reliefs were claimed including the declaration. Provisions of Order VII Rule 10, CPC were mandatory and adjudication by a Court without jurisdiction was determination coram non judice and not binding. When Court lacked pecuniary jurisdiction or territorial jurisdiction, in such cases, the plaint must be returned for presentation to proper Court and the Court could not pass any judicial order except that of returning of plaint. Plaint was returned in circumstances.

(2) PLD 2010 (Karachi) 261 (Muhammad Naveed Aslam & others v. Mst. Aisha Siddiqui & others). In this case it was held that jurisdiction conferred on High Court under Section 7 of West Pakistan Civil Courts Ordinance, 1962 is limited only for territorial limits of Districts of Karachi and no other territory would come within its ambit. Provisions of Sections 18 and 19, CPC but not provisions of Sections 16, 17 and 20 thereof would apply to such suits and proceedings entertained by High Court at Karachi. Place of suing for other suits not falling within ambit of such jurisdiction would be determined under Sections 16 to 20, CPC. Such suits or proceedings, though valued at more than three million rupees and filed in High Court at Karachi, but not related to any part of Districts of Karachi, would be returned to plaintiff for its presentation before a Court of competent jurisdiction.

(3). 2005 MLD (Karachi) 1506 (Murlidhar P. Gangwani (Engineer) v. Engineer Aftab Islam Agha & others). In this case it was held that for examining question of maintainability of the suit with reference to or on analogy of the provisions of Order VII Rules 10 and 11, CPC, averments made in plaint are to be taken as a whole with presumption of correctness attached thereto. For determining question of territorial jurisdiction with reference to the cause of action, whether accrued wholly or in part, averments of plaint were to be read in conjunction with the relief sought by a party in the suit and such reading of plaint should be meaningful, rational to the controversy and not merely formal.

1. Conversely, Mr. Muhammad Ikram Siddiqui, learned counsel for the plaintiff argued that cause of action for filing the suit in hand was accrued at Karachi and Head Office of the defendant is also situated at Karachi. Learned counsel also referred to Paragraph No. 5 of the plaint in which it has been alleged that whole transaction and discussions/ negotiations regarding supply of coal between the plaintiff and the defendant took place at Karachi at Head Office of the defendant situated at PIC Towers, M.T Khan Road, Karachi. He also referred to annexure-A and B and argued that both letters were issued by the defendant from their Head Office and in order to support his argument, the counsel also pointed out the address printed on Letter Head to show that Head Office of the defendant is situated at Karachi hence suit for recovery has been properly filed in this Court. In rebuttal to the arguments relating to outsourcing of production task in pursuance of two agreements referred to by the defendant's counsel, the learned counsel for the plaintiff also referred to the agreement and argued that Clause No. 5 of the first agreement clearly stipulates that coal will be arranged by first party and the first party referred to in the agreement is "Zeal Pak Cement Factory Ltd". He further argued that similar provision is mentioned in Clause-6 of 2008's agreement. Learned counsel for the plaintiff also referred to annexure-E of the plaint which is a summary of Lakhra coal supply sent by the plaintiff to the defendant which was duly received and acknowledged by the defendant. In support of his arguments, the learned counsel relied upon the following case law:

2. 2012 CLC (Sindh) 507 (Haji Riaz Ahmed v. M/s. Habib Bank Ltd.). The learned single judge held that original civil jurisdiction of High Court must also be regarded as extending to the situation where the defendant ordinarily resided, or worked for gain, at place "K". If a corporation had its principle office or head office at place "K", High Court at "K" would also have jurisdiction, and the same was regardless of whether the cause of action had accrued at place "K" or not. Any other view would necessarily result in a loss and curtailment of the Court's jurisdiction and that was not a result that the law countenanced by applying Section 120, C.P.C. to High Court. Head Office of defendant-bank was situated at place "K", therefore, it necessarily followed that plaintiff could bring the suit at place "K" and file it on the original side of High Court, notwithstanding that cause of action had accrued entirely at place "P". High Court declined to return the plaint to plaintiff, as the Court had jurisdiction in the matter. Application was dismissed in circumstances.

3. Heard the arguments. It is well settled that for the purpose of determining the application under Order VII Rule 10, C.P.C., the contents of the plaint are to be taken on their face value. The question of return of plaint must be determined on the basis of allegations made in the plaint. The plaintiff's choice to sue the defendant is circumscribed by two conditions i.e., the place where cause of action accrued and the place where the defendant resides or carry on business or personally works for gain. Order VII Rule 10, C.P.C. gives the Court a discretion to return the plaint at any stage of the suit for presentation to the proper Court. A Court which has no jurisdiction over a suit, cannot pass any judicial order in such a suit except the orders which the statute empowers it to pass. When a Court finds that it has no jurisdiction to try the suit, it should return the plaint for presentation before the appropriate Court having jurisdiction.

4. In the case in hand, the plaintiff has categorically mentioned in the plaint that entire discussions and negotiations regarding supply of coal took place at Karachi in Head Office of the defendant. The plaintiff also relied upon annexure-A and B and argued that both such letters were issued by the defendant from their Head Office and address of their Head Office at Karachi is mentioned on the letter head. Learned counsel for the defendant vehemently argued that both aforesaid letters are forged and fabricated. At this stage this cannot be decided whether annexure-A and B attached to the plaint are forged and fabricated documents which require evidence. Next question was raised that the defendant entered into an agreement with M/s. Ashiq Ali & Company for production. Learned counsel for the plaintiff pointed out relevant clauses of the agreements in which it is clearly mentioned that for the purpose of production, the coal is to be arranged by Zeal Pak Cement Factory Ltd. Learned counsel for the defendant relied on my own judgment in the case of Ismat Asad supra wherein I returned the plaint in exercise of powers conferred under order VII Rule 10, C.P.C. The facts of the cited case are distinguishable as in that case, immovable property was situated outside the territorial jurisdiction of Karachi but in Rawalpindi and suit for specific performance was filed in this Court.

Keeping in view Sections 16(a) and (d), C.P.C. it was held that for the recovery of immovable property or determination of any other right or interest, the suit should have been filed in Rawalpindi. He further relied upon case of Muhammad Naveed Aslam in which learned Single Judge held that original civil jurisdiction of Sindh High Court at Karachi is limited only for territorial limits of districts of Karachi and no other territory would come within its ambit. Provisions of Sections 18 and 19 C.P.C. but not provision of Sections 16, 17 and 20 thereof would apply to such suits. This judgment was challenged in the High Court Appeal and Divisional Bench of this Court affirmed the order of learned Single Judge and being one of the members of the bench, I authored the judgment which is reported in 2011 CLC 1176. In the D.B.'s judgment, it was held that non-applicability of Sections 16, 17 and 20 read with Order XLIX Rule 3, C.P.C., is only applicable and limited to the original side jurisdiction for the districts of Karachi and when it is found that property is situated outside the territorial jurisdiction of Karachi, then Sections 16 and 17 will automatically come into operation. Initial guiding principle for institution of various suits is provided under Section 16 to 19, C.P.C., whereafter Section 20 has been provided for other suits to be instituted where the defendant resides or cause of action arises. Since in this case also immovable property in question or disputed was situated at Hyderabad and the claim of parties vice versa was correlated with the relief of declaration, injunction and possession, that's why yet again keeping in view the provision of Section 16 C.P.C., the plaint was returned. The facts of above case are distinguishable.

1. The crux of arguments advanced by learned counsel for defendant is that factory of the defendant is situated at Hyderabad and coal if any was allegedly supplied at the defendant's factory situated at Hyderabad, therefore, suit for recovery if any should have been filed in the competent Court at Hyderabad which was appropriate and competent forum to decide the suit. As I already observed that claim of the plaintiff is that the entire negotiations for the deal took place at Karachi in the Head Office of the defendant and since Head Office of the defendant is situated at Karachi and cause of action is stated to have partly arisen at Karachi, therefore, this Court has jurisdiction. Learned counsel for the defendant himself referred to the case of Murlidhar P. Gangwani in which learned division bench of this Court expounded the guiding principle that for examining the question of maintainability of suit with reference to or analogy of provisions of Order VII Rule 10 & 11, C.P.C., averments made in the plaint are to be taken as a whole with presumption of correctness. It was further held that for determining the question of territorial jurisdiction with reference to the cause of action whether accrued wholly or in part, averments of plaint are to be read in conjunction with the reliefs sought by the party and such reading should be meaningful, rational to the controversy and not merely formal.

2. At this juncture, I would like to quote my another judgment rendered in the case of Pak Kuwait Investment Company reported in SBLR 2010 (Sindh) 1111 which was a banking suit and similar application was filed with the contention that banking suit should have been filed in Lahore in which I held that for the purposes of Order VII Rule 10, C.P.C., and Section 20, C.P.C., it is very much relevant to decide whether cause of action wholly or any part arose within the territorial jurisdiction of the Court. It is also clear that all classes of suits can be filed in a Court within local limits of whose jurisdiction the cause of action arose either wholly or any part. Term cause of action referred to every act which if traversed should be necessary for the plaintiff to prove in order to support his right to judgment and if not proved would give the defendant a right to judgment and for that purpose only the facts stated in the plaint are to be considered to determine whether those facts state cause of action or not, even a fraction of cause of action is a part of cause of action. In the same lines, learned Single Judge of this Court decided the case of Haji Riaz Ahmed reported in 2012 CLC 507 in which it was held that original civil jurisdiction of High Court must be regarded as extending to the situation where the defendant ordinarily resides or works for gain. If a corporation has its principle office or head office at Karachi, High Court at Karachi would have jurisdiction regardless of whether cause of action accrued at Karachi or not.

3. So far as the allegation that the plaintiff has manipulated and forged few documents this aspect can only be decided after evidence and no definite finding can be given at this stage and preview of plaint adverting that no case of return of plaint is made out. In consequence thereof, I feel no hesitation to hold that since the defendant's head office is situated at Karachi, the plaintiffs suit is maintainable and this Court has ample jurisdiction to try and dispose of this suit.

4. As a result of above discussion, the application moved under order VII Rule 10, C.P.C. is dismissed.

(R.A.) Application dismissed

PLJ 2013 Karachi 125 (DB)

Present: Syed Muhammad Farooq Shah and Salahuddin Panhwar, JJ.

MUHAMMAD IKRAM--Petitioner

versus

PRINCIPAL AND CHAIRMAN ADMISSION COMMITTEE GHULAM MUHAMMAD MAHAR, MEDICAL COLLEGE, SUKKUR and 2 others--Respondents

C.P. No. D-3441 of 2012, heard on 18.1.2013.

Educational Institution--

----Admission in MBBS Course under UEAP--Seats for course were allocated--Prospective and rules of admission--Deprived of his legal right--Undeniable right of petitioner to be admitted in MBBS Course and unjustified refusal to admission would cause serious prejudice to life and career of petitioner--Validity--There can be no denial to legal position that every institution has a right to make rules, regulations and policy of its own so as to run its institution but same time such authority and power is always subject to limitation, while making such rules, regulation and policy, it would not come out as a sword of discrimination because Art. 25 of Constitution provides a guarantee of equal protection of law and equal treatment before law, while exercising jurisdiction, power and authority, an institution is always under obligation to keep such principle at its correct place with correct understanding and meaning. [P. 128] A

Constitution of Pakistan, 1973--

----Arts. 25 & 199--Constitutional petition--Educational institution--Equal protection of law and equal treatment before law--Right to make rules, regulation and policies--Right of choice to female candidate--Institution policy--The policy, so framed gives a right of choice to female candidate alone which if exercised, would be beneficial to female candidate alone hence it is quite safe to say that such can well be sued an maneuvered by female candidates for taking advantage of such choice option at cost of rights, interests and claims of female candidate--Induction of such choice policy denies very guarantee, which is guaranteed by Art. 25 of Constitution. [P. 129] B

Constitution of Pakistan, 1973--

----Art. 25--Scope of--Constitution speaks about person and not gender hence within spirit of constitution an institution is required to frame rules--Such principle else purpose and objective of Art. 25 of Constitution will stand frustrated. [P. 129] C

Constitution of Pakistan, 1973--

----Arts. 25 & 199--Educational institution--Legal right of every individual--Refusal for admission in MBBS on sole count of exercise of choice option by female does not seem to be justified--It is legitimate and legal right in name of option choice technique, meant for female candidate alone, because technicalities of procedure would not be used as a sword but as bridge of facilitation in achieving intended objects of legislation, rules, procedure and policy. [P. 129] D

Mr. Maqbool Ahmed Awan, Advocate for Petitioner.

Mr. Ghulam Ali Samtio, Advocate for Respondent Nos. 1 & 2.

Mr. Agha Ather Hussain, AAG (on Court Notice).

Respondent No. 3 Absent.

Date of hearing: 18.1.2013.

Order

Salahuddin Panhwar, J.--The petitioner has assailed his refusal for admission in MBBS Course, in the Ghulam Muhammad Mahar Medical College, Sukkur, under the University Education Assistance Program (UEAP) from allocation of District Khairpur Mirs.

1. Per petitioner, he filled the form for admission in MBBS Course from District Khairpur Mirs, in the Ghulam Muhammad Mahar Medical College, Sukkur, under the University Education Assistance Program (UEAP), in the month of October, 2012; twelve (12) seats for the Course of MBBS for District Khairpur Mirs, were allocated, under the said program (UEAP) out of 12 seats, 3 seats were reserved for girls student in Peoples University of Medical & Health Sciences, Nawabshah (PUMHS) and rest 9, seats were reserved to be admitted in Ghulam Muhammad Mahar Medical College, Sukkur. Petitioner qualified examination on merits and his name appeared at S.No.12 of the merit list, published in the official face book, page of Ghulam Muhammad Mahar Medical College, Sukkur on 7th November, 2012. He claimed to be selected purely on merits and his name was shown at Serial No. 96 of the said merit list, having secured 78.69%; as per prospectus and rules of admission Respondent No. 1 has to sent three girls student out of 12 from District Khairpur Mirs under the UEAP to people University of Medical and Health Sciences, Nawabshah (PUMHS) and 9 seats were reserved for Ghulam Muhammad Mahar Medical College, Sukkur under the said program; Respondent No. 1 with mala fide scored off his name from merit list, without assigning any reason and giving him an opportunity of hearing; and enlisted the name of Respondent No. 3 amongst the selected candidates in the merit list, though the Respondent No. 3 was not qualified to bisected on merits, because she secured less percentage than the petitioner i.e. 78.55 %, thus petitioner was deprived of his legal right; he was kept on hopes by respondent for letter of admission but later refused and he is not being allowed admission in 1st year MBBS.

2. The Respondent Nos. 1 and 2 filed comments, wherein, denied any illegality on their part but claimed that petitioner was not selected for admission; his name was at Serial No. 96 of the merit list of District Khairpur for General seats by securing 78.69% score. It was claimed that nothing wrong was done with petitioner. There were 12 allocated seats for District Khairpur under UEAP. Out of which, nine (9) seats were of GMC Sukkur and for that candidates from Merit No. 1 to 6 opted for GMC Sukkur and according to their merits they were given admission there. The candidate at Sr.No.7 namely Huma Khursheed opted for PMC Nawabshah and she as 1st candidate opting for PMC was given 1st seat admission out of 3 seats of PMC Nawabshah as per her Merit. The candidates at Sr.No.8 and 9 again opted for GMS Sukkur and they were given the seats/admission there on merits and as such admission at GMC Sukkur came to 8 number out of 9. Candidate at Sr.No.10 namely Uroosa opted for PMC Nawabshah and as per her merit 2nd seat was given to her there. The candidate at Merit No. 11 opted for GMC Sukkur and he was given 9th seat/admission there which was the last one for GMC Sukkur and thereafter no seat remained available for anybody for GMC Sukkur. It was claimed that since all above candidates were higher/better in merits as compared to petitioner and they had also exercised the right of option, recognized in the Prospectus. At this junction only 1 seat was in balance at PMC Nawabshah, which is purely a girls Medical College and the petitioner, being a male candidate, could not be allocated/granted admission at PMC Nawabshah hence next candidate Tahira d/o Dhani Bux of Sr.No.13 was considered for 3rd seat at PMC Nawabshah. They claimed that rules, regulations and policy so explained in the prospectus was followed hence petition is not maintainable under the law.

3. Learned Counsel for the petitioner has argued that the name of the petitioner was existing in the list of 12 successful candidates hence scoring off the name of the petitioner from list of such 12 candidates by respondents was illegal, especially, where the petitioner was not provided any opportunity of hearing nor any cogent reason was shown for such scoring off. He insisted that it is one of the undeniable right of the petitioner to be admitted in MBBS Course and unjustified refusal to admission of the petitioner would cause a serious prejudice to the life and career of the petitioner. He stoutly argued that the respondents have deviated from their own policy and rules and even discriminatory one. Summing up his arguments he lastly added that policy and rules are always meant to ensure equity and not to discriminate. Having said so, he prayed that petitioner be allowed to admission in the MBBS course. He has placed reliance on the case laws, reported in Mst. Attiyya Bibi Khan and others v. Federation of Pakistan (2001 SCMR 1161), Ali Yousuf and another vs. Chairman Acadmic Council & principal DOW Medical College Karachi (2000 SCMR 1222), Mst. Faiqa Ali vs. Vice Chancellor, Govt. College (2010 MLD 103), Muhammad Ilyas v. Bahauddin Zakariya University, Multan and another (2005 SCMR 961), Secretary, B, & R, Government of West Pakistan and 4 others v. Fazal Ali Khan (PLD 1971 Karachi 625) and Abdul Farid vs. NED University of Engineer (2001 CLC 347).

4. Responding to the arguments of learned counsel for the petitioner, the counsel for the Respondent Nos. 1 and 2 has argued that since there has not been any departure from policy, rules and procedure on part of the Respondent Nos. 1 and 2 hence the instant petition is not sustainable and liable to dismissal. He has placed reliance on the case laws reported in Mst. Faiqa Ali V. Vice Chancellor, Govt. College (2010 MLD 103), Zaheeruddin Sheikh and 30 others vs. United Bank Ltd, (2002 CLC 147), and Ali Yousuf and another v. Chairman Academic Council & principal DOW Medical College Karachi (2000 SCMR 1222).

5. We have carefully heard the arguments, so advanced by either sides and have also perused the record. There can be no denial to legal position that every institution has a right to make rules, regulations and policy of its own so as to run its institution but same time such authority and power is always subject to certain limitations, hence, while making such rules, regulations and policy; it should not come out as a sword of discrimination, because, the Article 25 of the Constitution provides a guarantee of equal protection of law and equal treatment before law hence, while exercising jurisdiction, power and authority an institution is always under obligation to keep this principle at its correct place with correct understanding and meaning.

6. What we have understood from the explanation, so provided at the page-46 of the Prospectus, is that though a male candidate obtains higher marks/score and obtains a better place yet in result of option choice by top girls he would stand replaced by a female who has neither obtained marks/score equal to such male candidate and even is placed after the name of such candidate in the merit list.

7. The position, being so, brings us to say that it is the "gender" of the candidate which, per the Institution policy, matters and not the merit alone. The policy, so framed, gives a right of choice to the "female" candidate alone, which, if exercised, would be beneficial to the female candidate alone hence it is quite safe to say that this can well be used as manoeuvre by female candidates for taking advantage of such choice option at the cost of the rights, interests and claims of the male candidate, thus, it can well be concluded that induction of such choice option policy denies the very guarantee, which is guaranteed by Article 25 of the Constitution. We would take support from the case of Mst. Attiyya Bibi Khan & Others vs. Federation of Pakistan, reported in 2001 SCMR 1161 wherein honourable Supreme Court of Pakistan held:

"Article 25 of the Constitution unambiguously guarantees that all citizens are equal before law and are entitled to equal protection and that they shall not be discriminated on the basis of sex alone. Inter alia Articles 2A, 18 and 25 of the Constitution are designed, intended and directed to bring about an egalitarian society based difference between individuals of mankind on the basis of race, colour and territory and that all human beings are equal in the eyes of Allah as He created all from a quintessence of clay"

1. We are conscious and clear of the fact that the Constitution speaks about the "person" and not gender hence within the spirit of the Constitution an Institution/Authority is required to frame rules, keeping in view such principle else the purpose and objective of the Article 25 of the Constitution will stand frustrated. On this point, we are also shouldered with the case of Abdul Farid vs. NED University of Engineer, reported in 2001 CLC 347 wherein it is held that:--

"It would therefore, follow that Article 25 has to be read with Article 37(c) which would imply that any classification made for the purpose of admission into institution of higher learning on a basis other than merit would be invidious and violative of Article 25".

Thus the method of preparing joint merit list, equipping female candidates of top and bottom to oust the intermediate male candidate, cannot be said to be within spirit and objective of the Article-25 of the Constitution. Further, what is not disputed is that the petitioner has obtained more marks/score and his name did appear at S.No.12 of merit list, therefore, refusal to petitioner for his admission in MBBS on sole count of exercise of choice option by female does not seem to be justified nor within spirit of the Article-25 of the Constitution. As we are also mindful of the fact that it is the legitimate and legal right of every individual to have higher education therefore, it would not be appropriate to deprive the petitioner from his such legitimate and legal right in name of an option choice technique, meant for female candidates alone, because the technicalities of procedure should not be used as a sword but as a bridge of facilitation in achieving intended objects of legislation, rules, procedure and policy.

1. As regard the case law relied by respondent counsel, we have examined all precedents, case of Mst. Faiqa Ali V. Vice Chancellor, Govt. College reported in 2010 MLD 103, relates to promotion to next semester; case of Zaheeruddin Sheikh and 30 others vs. United Bank Ltd, reported in 2002 CLC 147, revolves round Bank policy; and case of Ali Yousuf and another v. Chairman Academic Council & Principal DOW Medical College Karachi, reported in 2000 SCMR 1222, being relating to appearance in examination, therefore, they are not related with issue, involved in the petition.

2. Accordingly, petitioner is entitled for relief claimed; by short order dated 18.1.2013 petition was allowed, whereby respondents were directed to admit the petitioner in MBBS course for GMC for this academic year.

(R.A.) Petition allowed

PLJ 2013 Karachi 130

Present: Muhammad Ali Mazhar, J.

BOC PAKISTAN LIMITED, KARACHI--Plaintiff

versus

NATIONAL GASES (PVT.) LIMITED, KARACHI--Defendant

Suit No. 1056 of 2010 and CMA No. 5758 off 2012, decided on 18.1.2013.

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

----O.XXXVII, Rr. 1 & 2--Arbitration Act, 1940, S. 34--Suit for recovery--Cheques were dishonored due to non-availability of funds--FIR was lodged--Application for staying the proceedings on ground that in agreement there was an arbitration clause--Post dated cheques were issued against payment of samples--Validity--No application for leave to appear and defend the suit was filed but defendant wanted to stay the suit legal proceedings merely on the ground that there was an arbitration clause in the agreement--When an application was moved for stay of proceedings and defendant failed to state dispute between parties but made only a reference to arbitration clause, thus short coming and flaw was sufficient to cause dismissal of application--Dishonoring of cheque was an independent cause of action when neither issuance of cheque was disputed nor its dishonoring and mere dishonoring of cheque due to insufficiency of funds did not create any dispute which was to be resolved through arbitration--When there was no dispute there was no arbitration and in view of that matter it would be quite irrational and illegal to stay proceedings and refer to matter to arbitrator to resolve dispute which was non-existent--No hard and fast rule can be laid down of demarcation can be drawn to stay in what cases refusal can be made grant or refusal of stay was dependent upon facts and circumstances of each case--Application was dismissed. [Pp. 136 & 137] A, B & C

PLD 1958 Lah. 208; 1988 CLC 1350; PLD 1993 SC 42; 1990 MLD 2027; 1997 SCMR 988; 2001 CLC 1156; 1999 CLC 1841; 1995 CLC 1042; PLD 1993 Kar. 459 ref.

Mr. Atif Chaudhry, Advocate for Plaintiff.

Mr. Abdul Qadir, Advocate for Defendant.

Date of hearing: 11.12.2012.

Order

This order will dispose of CMA No. 5758/2012 filed by the defendant under Section 34 of the Arbitration Act, 1940.

1. The brief facts of the case are that the plaintiff has filed this suit under Order XXXVII Rules 1 & 2, CPC for recovery of

Rs. 65,76,233/-. It is averred in the plaint that the plaintiff is a public limited company, engaged in the business of manufacturing, selling and distribution of oxygen, nitrogen, dissolve acetylene and industrial and Medical Gases etc. It is further contended that the gases supplied by the plaintiff to its Customers are of a peculiar nature. The plaintiff while entering into agreements for supply of gases with its customers, also provides certain machinery to its customers as and when required till expiry of contract so that the gases supplied by the plaintiff may be managed and kept in a secured manner.

1. The plaintiff entered into four agreements with the defendant for supply of liquid oxygen, liquid nitrogen, liquid carbon dioxide and liquid argon. The copies of the agreements are attached with the plaint. The plaintiff in terms of agreements, continued to supply gases without any fail. The defendant was making payments against the supplies but in March, 2009, the defendant stopped the payments. However, on assurance of the directors of the defendant, the plaintiff continued its supplies even though no payments were being made. The plaintiff also referred to Clause 5.1 of General Terms and Conditions of the agreement under which the defendant was under obligation to make advance payments.

2. On demands of the plaintiff for outstanding dues/amount, the defendant during the period of March, 2009 to July, 2009, issued ten postdated cheques from September, 2009 onwards for a sum of Rs. 65,76,233/- on the assurance that as and when the cheques will be presented on its due date, the same will be honored and encashed. In Paragraph No. 4 of the plaint, the plaintiff has mentioned the cheques numbers, dates and amount. The case of the plaintiff is that when aforesaid cheques were presented on its due dates, the cheques were dishonored due to non-availability of the funds for which besides filing this suit in this Court under summary chapter, the plaintiff has also lodged an FIR No. 187/2010 under Section 489-F, P.P.C. at PS Jackson on 29.01.2010.

3. The suit was fixed before the Additional Registrar of this Court on 19.06.2010 when summons were issued and for return of process, he fixed the case on 13.08.2010. The diary of 13.08.2010 shows that the defendant was served and since the statutory period for filing leave to defend application was expired, the Additional Registrar fixed the suit in Court for final disposal. On 08.12.2010 the matter was fixed in Court for final disposal but learned Single Judge again issued notice to the defendant. The order sheet dated 26.09.2011 shows that notice issued by this Court through courier service was also delivered to the defendant on 19.01.2011 but despite service of notice twice, the defendant failed to cause its appearance hence it was ordered that let the suit be proceeded ex-parte against the defendant. Again this matter was fixed in Court for final disposal on 22.03.2012 when Mr. Nawab Mirza advocate undertook to file power on behalf of the defendant and on 25.10.2012 the defendant filed application under Section 34 of the Arbitration Act for staying the proceedings on the ground that in the agreement there is an Arbitration Clause No. 11.2 which provides that the parties shall first attempt to settle any dispute (including any disputed claim) in connection with the agreement amicably between the parties and if the parties will be unable to resolve the dispute amicably within sixty days, either party may refer the dispute for arbitration to be conducted in accordance with the Arbitration Act, 1940.

4. Learned counsel for the defendant argued that though the defendant has been declared ex-parte even then in view of the Arbitration Clause provided in the agreement, the suit is liable to be stayed and instead of filing this suit directly in this Court, the recourse should have been made to invoke the Arbitration Clause provided in all agreements separately and since the plaintiff failed to refer to the matter for resolution of dispute to the Arbitrator hence the suit is liable to be stayed with the direction to the parties to resolve the dispute through arbitration. Learned counsel further argued that though this is a suit in summary chapter but application under Section 34 of the Arbitration Act is maintainable. Learned counsel further argued that the defendant has not admitted claim of the plaintiff and he has yet to defend the suit on merits. It was further averred that as per agreements, minimum supply period was for 10 years commencing from May, 2008 but before expiry of that period, the plaintiff terminated the agreement which is in conflict with various clauses of the agreement. He further argued that Arbitration Clause will prevail in case of any dispute. In support of his arguments, learned counsel relied upon following case-laws:-

(1) PLD 1993 Karachi 459 (Associated Agencies Ltd., and another v. Industrial Masina/Tractora), In this case, learned Division Bench of this Court was of the view that application under Section 34 of the Arbitration Act is maintainable in suit filed under Order XXXVII C.P.C., and it was held that where the defendant in a suit in summary jurisdiction had filed application for permission to appear and defend the suit specifically stating therein that there was Arbitration Clause between the parties and disputes having arisen between them, the suit be stayed under Section 34 of the Arbitration Act, the defendants would be deemed to have availed of their rights to apply under Section 34 of the Arbitration Act before taking any step in the suit.

(2) 1990 MLD 2027 (M/s. Cepcon (Pvt) Ltd., v. M/s. Rizwan Builders Ltd.) In this case it was held that Section 34 of the Arbitration Act enables a party to an Arbitration Agreement to apply to the judicial authority for stay of suit before filing written statement or taking any step in the proceedings so that dispute between the parties may be resolved through Arbitration instead of Court. The applications one under Order XXXVII Rule 3, C.P.C. for leave to defend the suit and other under Section 34 of the Arbitration Act for stay of legal proceedings are mutually destructive. The very fact that the defendant had filed an application under Section 34 of the Arbitration Act simultaneously with his application under Order XXXVII Rule 3, C.P.C., established his unequivocal intention not to submit to the jurisdiction of the Court. The provision of Section 34 of the Arbitration Act is an overriding provision of law and cannot be allowed to be struck off when confronted face to face with the provisions relating to leave to appear and defend the suit under Order XXXVII Rule 3, C.P.C.

(3) 2010 YLR 3331 (Mrs. Rubby Hameedullah and 3 others v. Dr. Arif and 4 others) This judgment was authored by me in which it was held that if in a contract there is provision of resolution of dispute to the parties by way of Arbitration and the parties have agreed to such forum then such forum is to be resorted and given preference before filing the suit. Exception has been created under Section 34 of the Arbitration Act to the general law relating to procedure and empowers the Court with jurisdiction to decide the dispute or to refuse to do so in case of existence of an Arbitration Agreement.

(4) 1997 SCMR 988 (Director Housing, A.G.'s Branch Rawalpindi v. M/s. Makhdum Consultants Engineers and Architects) In this case, hon'ble Supreme Court held that no allegation was that agreement containing Arbitration Clause was executed under duress, undue influence or on account of any misrepresentation of its execution. Arbitration clause in the agreement clearly and unequivocally provided that all disputes between the parties were to be referred to a certain official or a person so nominated by him who was to be the sole Arbitrator and his decision would be final and binding on the parties. The party approaching to the Arbitrator having entered into the agreement voluntarily which contained the Arbitration Clause in question could not be allowed to avoid the arbitration agreement lightly.

1. Learned counsel for the plaintiff argued that there is no question of staying the suit. The defendant was given ample opportunity by the Additional Registrar of this Court and even fixing this case for final disposal, this Court in order to provide fair opportunity again issued notice to the defendant to come forward and defend the suit but despite service the defendant failed to file application for leave to defend the suit and at belated stage when it was declared ex-parte, the defendant filed application under Section 34 of the Arbitration Act on the pretext that suit be stayed in view of the Arbitration Clause provided in the agreements. Learned counsel further argued that this is a clear cut case in which the defendant voluntarily issued postdated cheques and when these cheques were presented in the bank on due dates, the cheques were dishonored due to insufficiency of funds. He further argued that in this regard, the plaintiff has also lodged an FIR under Section 489-F, P.P.C. He further argued that there is no dispute between the parties so there is no question of staying the suit and referring the matter to the Arbitrator for any resolution of dispute. In support of his arguments, learned counsel referred to following case-laws:-

(1) 1995 CLC 1024 (Cotton Export Corporation of Pakistan (Pvt.) Ltd. v. M/s. Asif Cotton Ginners and 5 others) In this case, learned Division Bench of this Court held that the Court while deciding the application under Section 34 of the Arbitration Act would be bound to look into the pleadings in plaint and no statement in the application for determining whether Section 34 of the Arbitration Act was applicable in the matter. Where suit is based on promissory note for recovery of amount claimed against the defendant in summary manner, no dispute between the parties could be assumed which could be referred to Arbitrator in terms of agreement between the parties. Application for stay of the suit was thus not maintainable and proceedings of suit in question could not have been stayed in terms of Section 34 of the Arbitration Act.

(2) 2002 CLD 624 (Mrs. Suriya Waseem Usmani v. L&M International (Pvt) Ltd.) In this case, learned Single Judge of this Court being fortified by the decision rendered in the case of Cotton Export Corporation of Pakistan reported in 1995 CLC 1024, held that where the suit is based on promissory note for recovery in summary manner, no dispute between the parties could be assumed which can be referred to arbitration in terms of agreement executed between the parties. In this case for the aforesaid reason, the application under Section 34 of the Arbitration Act was dismissed by this Court.

1. Heard the counsel. In the application under Section 34 of the Arbitration Act, the defendant only relied upon the Arbitration Clause 11.2 contained in the general terms and conditions of the agreement but failed to point out any dispute. Nothing has been said in the application or its supporting affidavit that the defendant did not issue cheques nor it is stated that cheques were issued under any duress nor dishonoring of cheques is disputed. The conduct of the defendant unequivocally shows that postdated cheques were issued against payment of supplies and the plaintiff presented the cheques in the bank which were dishonored due to insufficiency of fund in the defendant's bank account. It is also a fact that the defendant has been declared exparte due to non-filing of application for leave to defend. Learned counsel in support of his arguments, referred to PLD 1993 Karachi 459 in which suit was stayed due to an arbitration clause in the agreement. The facts and circumstances of the aforesaid case are distinguishable and not attracted. In the case referred to above, Arbitration Clause was available in the original contract for manufacturing and supply of Tractors and there was no substitution of original agreement by a new contract but there was a modification in respect of outstanding dues. The respondent supplied Tractors against the Letter of Credit. The appellant defaulted in the payments under the Letter of Credit thereafter it was mutually agreed that payment would be made in a protocol dated 3rd October, 1985. In the case in hand, the cheques were issued but the same were dishonored by the bank. The defendant has failed to make out or to show any dispute. In the case of Cotton Export Corporation reported in 1995 CLC 1024, learned Divisional Bench of this Court in a suit based on promissory note for recovery of amount in a summary manner held that since there was no dispute which could have been referred to Arbitrator in terms of agreement between the parties hence the application moved under Section 34 of the Arbitration Act was dismissed. In two more suits in a summary chapter, similar applications were filed under Section 34 of the Arbitration Act, but the applications were dismissed. Reference can be made to 2001 CLC 1156 and 1999 CLC 1841. Dishonoring of cheque is an independent cause of action and Section 34 of Arbitration Act does not apply to stay the suit. Learned counsel for the defendant also referred to my own judgment reported in 2010 YLR 331. In this case in earlier suit, arbitration proceedings were already going on and in the subsequent suit certain issues were raised, decision of which could not be possible before an Award of arbitration, and therefore, on an application under Section 34 of the Arbitration Act, I stayed the suit. The facts and circumstances of the case referred to above are distinguishable. Another case reported in 1997 SCMR 988, hon'ble Supreme Court held that arbitration clause in the agreement clearly and unequivocally provided that all disputes between the parties were to be referred to for arbitration. Again this was not the case based on negotiable instrument in which the cheques were issued voluntarily and subsequently same were dishonored by the bank. Learned counsel also relied upon the case of M/s. Cepcon (Pvt) Ltd., reported in 1990 MLD 2027 in which besides filing of application under Section 34 of Arbitration Act, the defendant also moved an application for leave to appear and defend. Learned Single Judge of this Court held that the two applications one under Order XXXVII Rule 3, C.P.C. for leave to defend the suit and other under Section 34 of the Arbitration Act for stay of legal proceedings is mutually destructive. It was further held that the defendant filed an application under Section 34 of the Arbitration Act simultaneously with his application under Order XXXVII Rule 3, C.P.C., established his unequivocal intention not to submit to the jurisdiction of the Court. In the case in hand, no application for leave to appear and defend the suit has been filed but the defendant wants to stay the suit/legal proceedings merely on the ground that there was an arbitration clause in the agreement.

2. The dispute must be specified in application under Section 34. When a person applies under Section 34, he has to satisfy the Court firstly that there is an agreement to refer and secondly that the suit relates to any matter agreed to be referred, and there is a dispute between the parties which is covered by the agreement, unless that is shown, the suit cannot be stayed. If a suit is filed on the basis of an agreement which contains an arbitration clause, the mere fact that the defendant is not prepared to pay the amount to which he is liable under the agreement, does not mean that there is a dispute between the parties. When an application is moved under Section 34 of Arbitration Act for stay of proceedings and the defendant fails to state the dispute between parties, but makes only a reference to arbitration clause, this shortcoming and flaw is sufficient to cause dismissal of application. Under Section 34 of the Arbitration Act essentials consideration weighing with the Court in refusal on its satisfaction that there was no sufficient reason for making reference to arbitration and substantial miscarriage of justice would take place or inconvenience would be caused to parties if stay is granted. Reference can be made to PLD 1958 (W.P) Lahore 208, 1988 CLC 1350 & PLD 1993 S.C. 42.

3. I have no hesitation in my mind to hold that dishonoring of cheque is an independent cause of action particularly in the circumstances when neither the issuance of cheque is disputed nor its dishonoring and mere dishonoring of cheque due to insufficiency of funds does not create any dispute which is to be resolved through arbitration. When there is no dispute there is no arbitration and in view of this matter it would be quite irrational and illogical to stay the proceedings and refer to the matter to the arbitrator to the resolve the dispute which is nonexistent. No hard and fast rule can be laid down or line of demarcation can be drawn to say in what cases refusal can be made. Grant or refusal of stay is dependent upon peculiar facts and circumstances of each case. Court can make objective assessment and come to conclusion whether stay of legal proceedings (suit) could be granted or refused.

4. For the forgoing reasons, the application filed under Section 34 of the Arbitration Act is dismissed.

(R.A.) Petition allowed

PLJ 2013 Karachi 138 [Bench at Sukkur]

Present: Salahuddin Panhwar, J.

MUHAMMAD ASLAM--Petitioner

versus

MUHAMMAD RAFI and 2 others--Respondents

Const. P. No. S-2459 of 2011, decided on 17.12.2012.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional ejectment petition--Domain of competent Civil Court--Terms and conditions of rent agreement--Personal bona fide use--Denied existence of relationship of landlord and tenant--So called rent agreement--Jurisdiction to determine issues relating to or arising out of relationship of landlord and tenant and never decides title and legal character--Validity--Question pertaining to appreciation of facts cannot be resorted to, in exercise of constitutional jurisdiction by High Court--In doing so petition shall stand converted into revision or second appeal and very purpose of abolishing second appeal and restricting finality pertaining to rent matters to first appeal shall stand frustrated--A writ petition is not substitute either for revision or second appeal and petition would be entertained if a case is made out to effect that Rent Controller and First Appellate authority had made an order pulpably without jurisdiction or there is case of lack of jurisdiction or finding is so perverse, that it is not substainable on established principles of appreciation of evidence or any specific provisions of law had been violated--To make a constitutional petition maintainable in rent matters or in all such cases in which no second appeal or revision is provided in law petitioner would have to show that there is jurisdictional error, committed by Courts below. [P. 141] A

Judgment--

----Altered judgment of Rent Controller by appellate Court was not challenged--Validity--It can safely be legally presumed that applicant had accepted modified altered order passed by appellate Court as such grievance of petitioner allotted to him by municipal authority stood properly redressed by Appellate Court--Judgment of appellate Court was not required to be interfered. [P. 142] B

Mr. Ishrat Qayoom Hanif, Advocate for Petitioner.

Mr. Shafqat Rahim Rajput, Advocate for Respondents.

Date of hearing: 3.12.2012.

Order

Through this Constitutional Petition, Petitioner Muhammad Aslam has assailed the impugned order dated 31.5.2011 passed by learned 3rd Additional District Judge Sukkur in Rent Appeal No. 07 of 2011 (Re-Muhammad Aslam vs. Muhammad Rafi & others), whereby the order dated 10.3.2011 passed by 1st. Rent Controller, Sukkur in Rent Application No. 10 of 2010 has been upheld.

1. Briefly, facts of the case as set out in the Rent Application are that applicant/Respondent No. 1 is co-owner/landlord of property bearing C.S. No. D-213/216 situated in Muhalla Gurmukhdas, Shikarpur Road Sukkur, which consists upon two shops on ground floor and multiple story on it's upper portion in which one Shop No. 2 (Privately partitioned was rented out to the petitioner/opponent by the Applicant/Respondent No. 1 in the aforesaid property (hereinafter called as aforesaid shop). It is further stated that another shop of equal meausring was also given on rent to an other tenant. In the year 2003, the aforesaid shop was rented out to the petitioner/opponent by the Applicant/Respondent No. 1 on monthly rent by oral rent agreement, but at the personal request of the opponent on 01.4.2008 a rent agreement was executed between petitioner/opponent and applicant/ Respondent No. 1. Whereby, petitioner/opponent paid Rs. 2,75,000/- as security deposit refundable to the petitioner/opponent by the Applicant/ Respondent No. 1 according to the terms and conditions of rent agreement. Petitioner/opponent had paid rent up to the month of November, 2008, such receipts were issued. The aforesaid shop was claimed to be required for personal bonafide use of applicant/ Respondent No. 1, where he wanted to establish his business in the name and style of "RAFI MARBLE" for which he claimed to be having requisite experience and sufficient funds.

2. That the Petitioner/opponent filed written statement and affidavit in evidence, stating therein, that applicant is running his business in a shop, admeasuring 12 x 26 = 312 square feet which was constructed by the petitioner/opponent himself in the name of "Royal Aluminum Glass House" since more than 15 years. He is tenant of Municipal Corporation, Sukkur; he denied existence of relationship of landlord and tenant between the Applicant/Respondent No. 1 and petitioner/opponent and. He further maintained that the so-called rent agreement produced by the Respondent No. 1/applicant is false, fabricated, self-managed document in question shop is situated on Municipal waste land as per old occupancy right for which he applied to the Municipal Corporation for allotment of the land on lease. It is pertinent to mention here that Applicant/Respondent No. 1 has illegally occupied some Municipal Land in which he has illegally raised construction and rented out a shop known as "GHOUSIA GLASS HOUSE", therefore, he is encroacher and trespasser of Municipal Land. The petitioner/opponent is very old occupant of Municipal Land, he executed rent agreement with Municipal Corporation, Sukkur vide order dated 19.05.2009 and tenancy agreement dated 19.05.2009. prior to that rent application respondent filed F.C. Suit No. 160 of 2009 (Re-Muhammad Rafi vs. P.O Sindh & others) in which opponent was made party as Defendant No. 5 in which he admitted that opponent is tenant of Municipal Corporation, Sukkur and pray for cancellation of rent agreement.

3. Learned counsel for the petitioner/opponent mainly argued that the findings given by the learned trial Court on Point No. 1 in respect of relationship of landlord and tenant is based upon misreading and non-reading of the documentary evidence; petitioner/opponent is tenant of Municipal Corporation, Sukkur and paying the rent to Taluka Municipal Administration, Sukkur; both inferior Courts have not considered the documents exhibited in evidence. In support of his contention, he has relied upon the case of case of Nazir Ahmed and another vs. M. Muzzaffar Hussain Reported in 2008 SCMR 1639; case of Muhammad Yakoob through L.Rs vs. Feroze Khan and others Reported in 2003 SCMR 41 and case of Muhammad Gulshan Khan vs. Secretary Establishment Division, Islamabad and others Reported in PLD 2003 SC 102.

4. On the other hand, learned counsel for the Respondent No. 1/ applicant has contended that learned trial Court has been justified in allowing the eviction application; the petitioner/opponent is tenant of the Respondent No. 1/applicant and is defaulter in payment of monthly rent, in support of his contentions has relied upon the case of Syed Yousuf Ali through L.Rs. vs. Muhammad Hasham through L.Rs and others Reported in (2006 SCMR 830), case of Abdul Rashid vs. Baboo through L.Rs Reported in 2002 SCMR 168, case of Muhammad Shabbir and another vs. Mst. Hamida Begum Reported in 1992 MLD 323 and case of Saifullah & another vs. Ghulam Ghous Reported in 2000 CLC 1841.

5. Before proceeding the merits of the case, we would endorse here the jurisdiction under the Sindh Rented Premises Ordinance is very limited and it can only determines the issues relating to or arising out of relationship of the landlord and tenant and never decides the title and legal character, in rent matter, which being the purely domain of the competent civil Court. We are also conscious of the legal position that question pertaining to appreciation of facts cannot be resorted to, in exercise of Constitutional jurisdiction by this Court, for the simple reason that in doing so the petition shall stand converted into a revision or second appeal and the very purpose of abolishing the second appeal and restricting the finality pertaining to the rent matters and to first appeal shall stand frustrated. A writ petition is not substitute either for revision or the second appeal and the petition shall be entertained if a case is made out to the effect that the Rent Controller and First Appellate Authority have made an order palpably without jurisdiction or there is case of lack of jurisdiction or the finding is so perverse, that it is not sustainable on the established principles of the appreciation of evidence, or any specific provisions of law has been violated. Hence it is quite safe to say that to make a Constitutional petition maintainable in rent matters or in all such cases in which no second appeal or revision is provided in law, the petitioner shall have to show that there is a jurisdictional error, committed by the Courts below. Here the term "jurisdictional error" needs to be understood which is the exercise of jurisdiction by the Court, vested in it, in a perverse or arbitrary manner ignoring the material available on record or violation of any provision of law or substantive procedure causing miscarriage of justice or where there is a violation of established principles of administration of justice."

6. Having made the limitations of the writ of certiorari in particular in rent matters or where the provision of second appeal and revision has purposely been abolished by the law itself, we, on meticulous examination of both judgments passed by inferior Courts and pleadings of the parties, find that Respondent No. 1/applicant led evidence and produced documents including the reply of legal notice by the petitioner/opponent to prove relationship of landlord and tenant between parties while petitioner/opponent led his evidence denying claim of Respondent No. 1/applicant and produced the record establishing his possession and claim in respect of the area 12 x 26, claimed to be allotted/leased out to him by Municipal Authority but never denied the status of the Respondent No. 1/applicant as co-owner of the property C.S.D. 213 and even not attempted to examine/calling advocate through whom the reply to legal notice by Petitioner/Opponent No. 1 was claimed by Respondent No. 1/applicant. Further, record spells out that petitioner himself in Para No. 04 of his affidavit in evidence has disclosed that "he is running business in his shop having area of 12 x 26 = 312 square feet," therefore, it is quite obvious to say that petitioner/opponent himself confined its claim to such an area only which, the Respondent No. 1/applicant not claiming, therefore, it cannot be said that Courts below committed any illegality or jurisdiction error while responding to this issue.

7. The petitioner/opponent has put much stressed on the contention that prior to filing of ejectment application by respondents/applicant, he filed F.C. Suit No. 160 of 2009, wherein it was pleaded that petitioner is tenant of Municipality. It would suffice to say that it revolves round the contention/plea of the Respondent No. 1/opponent regarding Mohag right in respect of area, claimed to be allotted to Petitioner/Opponent No. 1 by Municipal authorities, hence rejection of such plaint of the Respondent No. 1/applicant would not be of any help for the petitioner/opponent. Moreover, the impugned order passed by 3rd. Additional District Judge, Sukkur in rent appeal has made things clear by modifying the order of Rent Controller while confining it to shop in question.

8. Regarding the case law relied upon by counsel for petitioner, it is germane to say that these citations do not pertain with the rent matters and same relates to the civil revisions; in case of Muhammad Gulshan Khan (supra), issue was promotion of a Civil Servant and in case of Nazir Ahmed (supra) the issue was related to the Specific Performance of Contract Act and in case of Muhammad Yakoob through L.Rs vs. Feroze Khan and others, the matter relates to Gift and Essential Ingredients to Constitute a valid gift but instant petition pertains to rent matter, therefore, parameters of appreciation in civil revisions and constitutional petitions regarding civil matters and rent matters are entirely different, thus, these authorities are not helpful for the petitioner.

9. Since the appellate Court has altered the Judgment of Rent Controller and such modification/alteration, since not challenged by the Respondent No. 1/applicant, therefore, it can safely be legally presumed that Respondent No. 1/applicant has accepted the modified/altered order passed by the appellate Court as such grievance of the petitioner/ opponent in respect of area, allotted to him by Municipal authority, stood properly redressed by the appellate Court, therefore, the impugned judgment of appellate Court is not required to be interfered. Accordingly, the instant petition is dismissed; however, Parties are left to bear their own costs.

(R.A.) Petition allowed.

PLJ 2013 Karachi 143 [Bench at Sukkur]

Present: Salahuddin Panhwar, J.

MUHAMMAD IQBAL--Petitioner

versus

Mst. ZAHIDAN and 2 others--Respondents

Const. P. No. S-1753 of 2012, heard on 15.2.2013.

Sindh Family Courts Act, 1964--

----S. 17(1)--Qanun-e-Shahadat Order, (10 of 1984), Scope of--Suit for maintenance and recovery of dowery articles--Requirements of--It is not possible for any bride to keep record of purchase receipts, prepare the list of dowry articles, and obtain signatures from bridegroom/husband side--Mother start collecting, purchase and preserving of articles for her daughter, when she starts growing--It is also a tradition that in laws of any bride are extended esteem respect and it is considered an insult to prepare dowry list for purpose of obtaining signature from them. [P. 146] A & B

2008 SCMR 1584 and 2005 SCMR 1740 for.

Constitution of Pakistan, 1973--

----Art. 199--Original and appellate jurisdiction--It is settled proposition of law that Courts below in its original and appellate jurisdiction are competent to draw inference, while delivering judgment and it is not to open to interference in constitutional jurisdiction, unless and until miscarriage of justice is established by party in constitutional petition, thus High Court would not normally interfere in judgment and decree passed by Court of competent jurisdiction for reason that it was within their exclusive jurisdiction to believe and disbelieve evidence--No constitutional petition lies when evidence had been properly appreciated and analyzed--Petition was dismissed. [P. 146] C

Mr. Sohail Ahmed Khoso, Advocate for Petitioner.

Mr. Raham Ali Jatoi, Advocate for Respondent No. 1.

Mr. Salahuddin Abro, State Counsel.

Date of hearing: 15.2.2013.

Order

Petitioner has assailed the judgment dated 14th May, 2012 passed in Family Appeal No. 10 of 2011, by Additional District Judge, Gambat, whereby, appeal filed by respondents was allowed with modification in the judgment and decree, passed by the Family Court.

1. Succinctly, facts of the case are that respondent's marriage was solemnized with petitioner on 18.12.2008, in accordance with the injunctions of Islam. Initially, the couple elapsed their days with pleasures. Out of the said wedlock, one female baby Aisha was born. With the passage of time, the relations became un-cordial, therefore, petitioner dropped his wife and daughter in the house of her parents, thus, hectic efforts for re-conciliation were made but all, in vain, therefore, she filed suit for maintenance and recovery of dowry articles.

2. After admission of suit, written statement was filed by petitioner with complete denial and it was further stated that Respondent No. 1 was characterless lady and she made his life miserable, therefore, she by taking away all items of the house of her husband went away. It was further averred that she used to talk on mobile with strangers, but her husband left no stone unturned from pursuing her for not talking with strangers but she did not listen to the due commands of her husband. Petitioner further averred that he is maintaining both the respondents.

3. Out of the pleadings, trial Court framed six relevant issues and both parties led pro and contra evidence against each other and finally impugned judgment and decree were drawn, wherein, prayer to the extent of decree of dowry articles was declined and as maintenance, Rs. 1500/- per month for Iddat period was awarded to her and for her baby Aisha Rs. 1500/- from the date of filing suit with 15% increase per year till she marries, was directed.

4. It is further revealed that appellate Court, while maintaining the judgment passed by the trial Court, modified the same and prayer of maintenance of baby Aisha was increased from Rs. 1500 to Rs. 2000, and appellant/respondent was directed to return dowry Items No. 1 to 29, as shown in the list at Exh.6, in case, of failure, in returning the dowry items, he was directed to pay Rs. 50,000/-.

5. Learned counsel for the petitioner inter alia contended that appellate Court has not appreciated the evidence available on record; regarding dowry articles; respondents failed to substantiate their claim with cogent and concrete evidence, in spite of that Additional District Judge has accepted their appeal; such exercise undertaken by the appellate Court is without jurisdiction and is not sustainable under law.

6. Conversely, counsel for the Respondent No. 1, while refuting the claim of the petitioner, argued that appellate Court has rightly modified the judgment of the trial Court as there was enough evidence available to prove that the parents of Respondent No. 1, at the time of marriage; with love and affection; handed over dowry articles, same were not returned by the petitioner and she was expelled by the petitioner, therefore, such articles remained in the house of petitioner.

7. After careful examination of available record and consideration of contentions raised by learned counsel of respective parties, it is suffice to say that Additional District Judge, Gambat, while deciding the aforesaid appeal has categorically discussed the evidence and documents exhibited and has drawn inference as under:-

"as the daughter and dowry items taken by the family of the groom, therefore, the lady had rightly proved her case to the extent of giving dowry to her husband in exh. 6., therefore he/respondent is bound down to return the dowry Items No. 1 to 29 to the appellant and in case of failure in returning the dowry items as per list at Exh.6, then he has to pay Rs 50000/ to his Ex-wife. The other documents could not be proved by the Plaintiff No. 1 because neither there is any signature of respondents nor there is any sort of evidence showing that these gold ornaments were got prepared from different jewelers and same were handed over to respondents and such receipts were obtained from him. The Appellant No. 1 filed the suit on 16.5.2011 and she was divorced on 29.4.2011. It is also unbelievable that within days relations became un-cordial and within shortest period the lady was divorced by her husband. Because in our society the marriage and divorce take after passage of long time and finally respondent in his own Talaknama at Exh.21/B had mentioned which is highlighted by me with yellow color marker point which shows that she had left her house about six months back which time period shows that about 6 to 7 months before filing of family suit she was kicked out by respondent, therefore, her version is directly supported and admitted by the Talaknama executed by respondent himself on 29.4.2011, therefore, Respondent No. 1 is liable to pay the maintenance to his wedded legal wife 7 months back from the filing of family suit on 16.5.2011 till the Iddat period at the rate of Rs. 3000/- per month because Rs. 100/- daily is valueless as dearness is increasing day by day"."

From bare perusal of above finding and evidence available on record, it is manifests that finding recorded in appellate jurisdiction is according to evidence and it cannot be said that same is without substance; moreover counsel for the petitioner has failed to point out any illegality, irregularity or infirmity in the impugned judgment.

1. As regard to the stance of husband's side that bride while making claim of dowry articles, is required to prove the case, in requirements of Qanun-e-Shahadat Order, 1984, as held learned trial Court, not only misconceived, but besides the mandate of law as envisaged in Section 17(1) of the West Pakistan Family Courts Act, 1964, which is a special law. For convenience Section 17 of Act ibid is reproduced herein below:-

"Provisions of Evidence Act and Code of Civil Procedure not to apply:-

(1) Save as otherwise expressly provided by or under this Act, the provisions of the (Qaunu-e-Shahadat, 1984 (P.O. No. 10 of 1984) AND the Code of Civil Procedure, 1908 (except Sections 10 and 11) shall not apply to proceedings before any Family Court, [in respect of Part I of Schedule].

(2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Courts."

Bare reading of above provision makes it abundantly clear that provisions of Qanun-e-Shahadat Order, 1984 are excluded.

1. Even otherwise, in our, society, it is not possible for any bride/wife to keep the record of purchase receipts, prepare the list of dowry articles, and obtain signatures from bridegroom/husband side. In my observation, mothers start collecting, purchase and preserving of articles for her daughter, when she starts growing. It is also a tradition that in-laws, of any bride/wife are extended esteem respect and it is considered an insult to prepare the dowry list for the purposes of obtaining signature from them. I am also fortified, with the ratio and wisdom of the Court of apex provided through cases Muhammad Habib v. Mst. Safia Bibi and others reported as 2008 SCMR 1584 and Mirza Arshad Baig v. ADT reported as 2005 SCMR 1740.

2. It is settled proposition of law that Courts below, in its original and appellate jurisdiction are competent to draw inference, while delivering the judgment and it is not open to interference in Constitutional jurisdiction, unless and until miscarriage of justice is established by the party in the Constitutional petition, thus, High Court would not normally interfere in judgment and decree passed by Court of competent jurisdiction for the that it was within their exclusive jurisdiction, to believe and disbelieve the evidence it is worth to add that no Constitutional petition lies when evidence in the case has been properly appreciated and analyzed.

3. For the aforesaid reasons, finding no force in this writ petition, same was dismissed by a short order dated 15th February, 2013.

(R.A.) Petition allowed

PLJ 2013 Karachi 147 [Bench at Sukkur]

Present: Salahuddin Panhwar, J.

Dr. GHULAM HUSSAIN and 3 others--Applicants

versus

AHMED NAWAZ and 8 others--Respondents

C.R. Appln. No. 103 of 2011, decided on 13.3.2013.

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

----O.XLI, R. 31 & S. 115--Writing the judgment--Procedure was mandatory--No points of determination were framed--Land was got fraudulent registered sale-deed on behalf of plaintiffs by their mother without getting Guardianship Certificate--Scope of revisional jurisdiction--Revisional jurisdiction is limited but a question of law or departure from mandatory requirement of procedure can very well be examined in exercise of revisional jurisdiction as same fall within meaning and definition of irregularities more particularly when such irregularities were clause to have caused prejudiced--Appellate Court had not determined the points for determination properly which could be said to have covered all factual and legal points, agitated or borne out from reading of judgment of trial Court, though it was mandatory requirement of law under Order XLI, Rule 31, CPC--Mere points in shape of issues were not available such irregularity cannot be termed as illegality but said exception was only when it was found that issues decided by trial Court and grounds taken in appeal had been discussed by Appellate Court and decided properly--Legal point to effect of legal status of mother, as seller of properties of minor children, no other issues were discussed by appellate Court had not discussed same and had not recorded its findings such there is a departure from mandatory requirement of law within spirit of Rule 31 of Order XLI, CPC which departure cannot be approved, when applicants claimed prejudice due to such departure in respect of legality of mesne profit--Since appellate Court had failed to frame the points for determination, such adopted course had caused prejudice to applicants, therefore, this is a fit case to be remanded to appellate Court which was competent in its appellate jurisdiction to frame the points in compliance of Order XLI, Rule 31 of CPC--Revision was allowed. [Pp. 149, 150 & 151] A, B, C, D & E

Mr. Mukesh Kumar G. Karara, Advocate for Applicants.

Syed Jaffar Ali Shah, Advocate for Respondents.

Mr. Agha Ather Hussain, Asst. A.G. for State.

Date of hearing: 25.2.2013.

Judgment

The applicants have assailed the Judgment dated 27th May, 2011 passed by learned 3rd Additional District Judge, Khairpur in Civil Appeal No. 15/2011 Re. (Dr. Ghulam Hussain and others v. Ahmed Nawaz and others), whereby, maintained Judgment dated 31.1.2011 and Decree dated 18.2.2011 passed by Senior Civil Judge, Gambat in F.C. Suit No. 04/2009.

1. Succinctly, relevant facts are that the agricultural land; Survey No. 1339, 1405, admeasuring 4-4 ghuntas, situated in deh Lower Setharja, Taluka Sobhodero, was owned by Illahi Bux, grandfather of the plaintiffs, who sold out to the plaintiffs by way of registered sale deed No. 508 dated 21.5.2003, at that time, plaintiffs were minors therefore same was purchased through their mother (Defendant No. 6). On attaining majority Plaintiff No. 1 came to know that suit land is not in their names, as the same is sold out to Defendant No. 5 by Defendant No. 6, within capacity of their real mother; thereafter Defendant No. 05 also transferred the said land through registered sale deed to Defendants No. 1 to 4 and the Defendant No. 1 was already in possession of the suit land being leases. The Defendant Nos. 5 to 7 with the help of revenue authorities and Sub-Registrar Gambat got a fraudulent registered sale Deed No. 968 dated 16.10.2003, of the suit property, executed in favour of Defendant No. 5 on behalf of the plaintiffs by their mother, without getting Guardianship Certificate. Both the registered sale deed and Entry No. 243 are null and void and illegal in the eye of law and same are liable to be cancelled.

2. Defendant Nos. 1 and 4 filed their written statement, wherein denied the averment of plaintiff and stated that they are owner of subject matter land by way of registered sale deed; Plaintiff No. 1 has no cause of action to file the instant suit. The plaintiffs were in knowledge regarding sale transactions in favour of Defendant No. 05 and Defendants No. 1 to 4. The Defendant No. 6 was natural guardian of plaintiffs; therefore sale transaction is according to law.

3. Whereas Defendant Nos. 5 to 7 supported the case of the plaintiffs and stated that Defendants No. 5 to 7, who actually had sold out the suit property in the betterment of plaintiffs, however, the proper and due course of law was not adopted as provided under the guardians and wards act, and this all had happened due to unawareness regarding procedure to get themselves appointed as guardian of the person and property of the minors. Neither the Defendant Nos. 5 to 7 were aware of the procedure, nor they were intimated by anybody, nor any objections have ever been raised on such sale of the suit property to the Defendant Nos. 1 to 4 by any of the revenue authorities or sub-Registrar Gambat, because all the arrangements and documents were obtained through the help of Defendant Nos. 1 to 4.

4. Learned counsel for the applicants/defendants inter alia contended that impugned Judgment is in violation of Order XLI Rule 31, CPC; which is mandatory provision; no points of determination were framed; therefore, the impugned Judgment on this score alone is not sustainable under the law. The trial Court has awarded mesne profits to the plaintiffs but appellate Court has not discussed that issue, such ignorance has seriously prejudiced the case of plaintiffs.

5. Conversely, the learned counsel for the respondents/plaintiffs, while refuting the contention argued that the appellate Court has not committed any illegality and it is a case of concurrent findings and in revisional Court the facts recorded by the inferior Courts cannot be disturbed, therefore, this revision is not maintainable under the law.

6. Heard the learned counsel for the respective parties and perused the record.

7. After consideration of contention raised by the counsel for the respective parties and meticulous examination of available record, I would like to respond to objection of the learned counsel for the respondents with regard to scope of the revision. I am quite conscious of the fact that revisional jurisdiction is limited but a question of law or departure from mandatory requirement of procedure can very well be examined in exercise of revisional jurisdiction as the same fall within meaning and definition of irregularities more particularly when such irregularities are claimed to have caused prejudiced.

8. Reverting to the merits of the case, I feel it quite proper to refer the provision of Order XLI Rule 31 of the Code as learned counsel for the applicants had confined its arguments to such an extent. The provision reads as under:-

R. 31. Contents, date and signature of Judgment.--The judgment of the Appellate Court shall be in writing and shall state--

a) the points for determination;

b) the decision thereon;

c) the reasons for the decision; and

d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;

and shall at the time it is pronounced be signed and dated by the judge or by the judges concurring therein.

Bare perusal of above provision, it is suffice to say that the use of word `shall' leaves nothing to doubt that such procedure is mandatory in nature hence the appellate Court, while writing the Judgment shall follow the prescribed procedure within its letter and spirit. The purpose of insisting of points for determination, seems to be nothing, but to have all legal and factual controversies, judicial determined which are agitated or come out from the judgment of lower Court. The reading of the sub-rules (b) and (c) of the said Rule further explains that judgment of the appellate Court has been confined to such framed points for determination hence proper framing of points of determination can not be denied because in absence; whereof there can be no purpose of sub-rules (b) and (c) of the said Rule, resulting in making a Judgment of appellate Court as not-sustainable under the law. I can further add here that though the provision is silent as to how the points for determination would be framed, as has been defined in Order XIV R 1(3) of the Code, however the objective of point for determination seems to be same as that of issues hence while framing/forming the point for determination the appellate Court should keep in view all the agitated grounds or which appear from the record. It has never been requirement of the law and procedure that there must be number of point for determination, but attempt should be made to achieve the objective and spirit by framing/forming proper point (s) for determination which cover all the legal and factual issues, either agitated or appearing from the record, so that one cannot come with a plea of prejudice in result of departure from mandatory requirement of law.

1. Per available record of the case in hand it is an admitted position that the appellate Court has not determined the points for determination properly which could be said to have covered all the factual and legal points, agitated or borne out from reading of the judgment of trial Court, though it was the mandatory requirement of the law under Order XLI Rule 31, CPC. However, I am in agreement with the counsel for the respondents that in many precedents a view is held that if all points have been discussed but mere points in shape of issues are not available, such irregularity cannot be termed as illegality but this exception is only when it is found that issues decided by the trial Court and grounds taken in appeal have been discussed by the appellate Court and decided property. In this context I have examined the impugned Judgment and have found that except Issue No. 2, which was on legal point to the effect of legal status of mother, as seller of properties of her minors children; no other issues have been discussed by the appellate Court though the trial Court in Issue Nos. 5, 6 and 7 has given findings regarding mesne profits in favour of plaintiff but the appellate Court has not discussed the same and has not recorded its findings thus there is a departure from a mandatory requirement of law within spirit of Rule-31 of the Order XLI of the Code; which departure cannot be approved, more particularly, when applicants claimed prejudice, due to such departure in respect of legality of mesne profit.

2. Since the appellate Court has failed to frame the points for determination, such adored course, has caused prejudice to the applicants, therefore this is a fit case to be remanded to the appellate Court, which is competent, in its appellate jurisdiction, to frame the relevant points in compliance of Order XLI Rule 31, CPC. Accordingly, the judgment of the learned appellate Court is hereby set-aside and matter is remanded back to learned appellate Court which will frame proper points of determination and will decide the same within spirit and objective of sub-rules (b) and (c) of the said Rule after hearing the parties.

3. Above are the reasons of a short order dated 25.2.2013, whereby this civil revision was allowed, impugned Judgment dated 27.5.2011, was set aside and the case was remanded back to the appellate Court to decide afresh after providing an opportunity of hearing to both the parties within a period of two months.

(R.A.) Petition allowed

PLJ 2013 Karachi 151

Present: Muhammad Ali Mazhar, J.

MARI GAS COMPANY LIMITED through Law Officer, Islamabad--Plaintiff

versus

BYCO PETROLEUM PAKISTAN LIMITED, BPL (BOSICOR PAKISTAN LIMITED) through its Chief Executive Officer

and another--Respondents

Suit No. 636 and C.M.A. No. 10508 of 2012, decided on 25.3.2013.

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

----O.VII, R. 1--Proper pleadings were essential pre-requisite--Plaint did not disclose cause of action--All necessary particulars in plaint--Cause of action is bundle of facts which were alleged by plaintiff to secure relief sought by him--Prayer clause is substance of plaint where no relief is claimed in plaint--Plaint must be looked into as a whole in order to determine relief that might be granted, if it is dcipherable from reading of plaint--Prayer clause cannot be read in isolation, but it will be read with case set up by plaintiff. [P. 154] A

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

----O.I, R. 10--Matter of adding and deleting plaintiff--Necessary party and proper party can be joined--When no relief was sought against a person otherwise his presence was not necessary to enable Court to settle controversy, such person may not be added--A party should be joined to suit if its presence was required for complete and conclusive adjudication of suit--Necessary party is one whose presence on record is enjoined by law--If dispute can effectively be adjudicated in absence of a person, such person is not a necessary party. [P. 155] B

Necessary Party--

----Struck out the name--If defendant was found to be neither a necessary party not proper party his name can be struck out--It is well settled that where there is no cause of action against any such defendant, his name might be struck off from plaint. [P. 155] C

Principle of Law--

----Necessary party--Struck off from plaint--Where a person had been joined as formal defendant in suit was neither necessary party nor proper party nor any relief was sought by plaintiff, his name may be struck off from plaint and Court even suo motu can struck out the name who had been wrongly impleaded against whom no cause of action was shown. [P. 155] D

Plaint--

----Distinction in plaint--Relief was claimed but neither any cause of action was described nor any relief was claimed even plaintiff had failed to disclose any logical reason--Validity--Mere mentioning words proforma defendant in title of plaint was no sufficient to fulfill criteria and acid test of necessary or proper party--Suing defendant cannot be permitted merely for reason that defendant was present in meeting. [P. 155] E

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

----O.XV, Rr. 1 & 2--No judgment can be announced--If plaintiff wants to prove that alleged liability was admitted in presence of representative or any modality was also settled for payment as averred in plaint then of course after settlement of issues, plaintiff may cite defendant in list of witnesses for summoning them at time of evidence. [P. 156] F

Dominus Litis--

----Scope of--Theory of dominus litis cannot be over stretched in matter of impleading parties because it is duty of Court to ensure that if for deciding real matter in dispute a person was necessary or proper party the Court can order to implead such person and can order deletion of any such person from plaint who was not found to be proper or necessary party. [P. 156] G

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

----O. I, R. 10--Necessary or proper parties--A necessary party is one without whom no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence was necessary for a complete and final decision on question involved in proceedings. [Pp. 156 & 157] H

Mr. Naeem Bukhari, Advocate for Plaintiff.

Mr. Salman Talibuddin, Advocate for Defendant No. 1.

Mr. Khalid Mehmood Siddiqui, Advocate for Defendant No. 2.

Date of hearing: 25.2.2013.

Order

The proforma defendant Pakistan Petroleum Limited has brought this application under Order I Rule 10, CPC for striking off its name from the array of defendants on the ground that neither any relief has been claimed against the Defendant No. 2 nor the plaintiff is in dispute with the Defendant No. 2.

1. The brief facts of the case are that the plaintiff has filed this suit for recovery of money and damages. In the plaint Byco Petroleum Pakistan Limited has been impleaded as Defendant No. 1 while Pakistan Petroleum Limited has been arrayed as proforma Defendant No. 2. The President of Pakistan granted petroleum concession over Hala to the Defendant No. 2 for an initial term of five years under petroleum concession agreement and subsequently by virtue of a deed of assignment Defendant No. 2 assigned 35% working interest to the plaintiff after approval of the concerned authority. The Ministry of Petroleum and Natural Resources allocated condensate produced form extended well testing to the Defendant No. 1. Initially the Defendant No. 1 deposited the plaintiff share @ 35% in the plaintiffs account on monthly basis thereafter, they committed default. It is further contended that from December, 2009 till January, 2011 the outstanding amount due to the plaintiff was Rs. 880,383,077/-. The plaintiff repeatedly called upon the Defendant No. 1 through various correspondences for the payment of outstanding dues but the payment was not made. A meeting was also convened under the Chairmanship of Additional Secretary, Ministry of Petroleum and Natural Resources between the plaintiff, Defendant No. 1, proforma Defendant No. 2 and OGDC to resolve the issue of payment by the Defendant No. 1. After thorough deliberation the payment plan was agreed which was accepted by the plaintiff in respect of the liability. The plaintiff has also mentioned the agreed modality of payment in paragraphs 2.9 of the plaint and further averred that a cheque for Rs. 20 million was issued by the Defendant No. 1 thereafter, they committed default. Despite sending legal notice and various reminders no positive response was received from the Defendant No. 1 hence, the plaintiff has filed the suit for recovery and damages.

2. The learned counsel for the Defendant No. 2 argued that it is clear from the averments of the plaint that no relief has been sought against the Defendant No. 2 and the Defendant No. 2 is not at issue with the plaintiff on any question of law or fact but the plaintiff has improperly joined it.

3. The learned counsel for the plaintiff argued that the Defendant No. 2 is necessary and proper party and it has been rightly impleaded. He further argued that the Defendant No. 2 is the operator of Hala Block No. 2 in which the plaintiff has 35% working interest. It was further averred that the Defendant No. 2 also participated in the meeting held under the aegis of Federal Government. He further argued that the Defendant No. 2 has never denied the contents of the plaint both on law and facts.

4. Heard the arguments. In order to decide the disputed questions, proper pleadings are essential pre-requisite. Proper pleadings are not only a matter of form but are important so that the parties are put to their respective positions vis-a-vis subject matter of the suit. It is for the reason that much importance has been given to incorporate all necessary particulars in the plaint as envisaged under Order VII Rule 1, CPC. The facts constituting cause of action have to be pleaded and where the plaint does not disclose the cause of action it is not a plaint in the eye of law. Cause of action is bundle of facts which are alleged by the plaintiff to secure the relief sought by him. The prayer clause is the substance of plaint where no relief is claimed in the plaint, the plaint must be looked into as a whole in order to determine relief that may be granted, if it is decipherable from reading of plaint. The prayer clause cannot be read in isolation, but it will be read with the case set up by the plaintiff.

5. Under Order I Rule 10, CPC the Court may at any stage of proceedings either upon or without the application of either party and on such terms as may appear to the Court to be just, may order that the name of any party improperly joined be struck out. This provision deals with the matter of adding and deleting the plaintiff and defendant and empowers the Court with judicial discretion in this regard. Under Order I Rule 10, CPC, two classes of persons namely, necessary party and proper party can be joined. When no relief was sought against a person otherwise his presence was not necessary to enable the Court to settle the controversy, such person may not be added as defendant. A party should be joined to the suit if its presence is required for complete and conclusive adjudication of the suit. The necessary party is the one whose presence on record is enjoined by law or in whose absence no effective decision can be given. If a dispute can effectively be adjudicated in absence of a person, such person is not a necessary party. While proper party is a person if its presence before the Court is necessary to enable it to effectually and completely adjudicate upon and settle the questions involved in the suit and it is not necessary that the plaintiff must seek relief against such proposed defendant.

6. The expression "question involved in the suit" as used in Order I Rule 2, CPC has reference to only those questions which arise between the parties to the suit. The object of adding proper party is to avoid needless multiplicity of the suit. The person must be a person whose interest is likely to be affected even though no relief claimed against him. It does not extend to a person who has no interest which is likely to be affected by the proceedings nor does it embrace person's general interest in common with others. If the defendant was found to be neither a necessary party nor proper party his name can be struck out. It is also well settled that where there is no cause of action against any such defendant, his name may be struck off from the plaint. It is also well settled principle of law that where a person has been joined as formal defendant in the suit is neither necessary party nor proper party nor any relief has been sought by the plaintiff against him, his name as defendant may be struck off from the plaint and the Court even suo motu can struck out the name of the defendant, who has been wrongly impleaded against whom no cause of action is shown.

7. The plaintiff has itself drawn distinction in the plaint, the relief has been claimed against the Defendant No. 1 but neither any cause of action has been described against the Defendant No. 2 nor any relief has been claimed even the plaintiff has failed to disclose any logical reason which may show that without presence of the Defendant No. 2 the issue involved in the suit cannot be adjudicated and decided properly. Mere mentioning the words proforma defendant with the Defendant No. 2 in the title of the plaint is not sufficient to fulfill the criteria and acid test of necessary or proper party. Suing Defendant No. 2 cannot be permitted merely for the reasons that the defendant was present in the meeting convened under the Chairmanship of Additional Secretary, Ministry of Petroleum and Natural Resources. If only on this reason parties are allowed to be added without examining the facts whether their presence is necessary in the suit, it will amount to an unwarranted dragging of a party into lawsuit or litigation and also persecution and harassment for such a party to religiously attend and observe the Court proceedings on each and every date and bear unfounded expenses of litigation in which it has nothing to say. Instead of making party, the proper course for the plaintiff would be to call any such person as witness in the suit if anything is to be testified through him. In the suit in hand also the plaintiff made the Defendant No. 2 party on the ground that it has assigned 35% working interest from its working interest to the plaintiff and they also attended a meeting convened between plaintiff, defendant and OGDC to resolve persistent delay in payment by the Defendant No. 1 to the plaintiff but fact remains that there is no dispute between the plaintiff and Defendant No. 2. which fact is clearly transpiring from the application of Defendant No. 2 that they are not at issue on any question of law or fact with the plaintiff but at the same time this important aspect can be ignored that no relief is claimed against the Defendant No. 2 which has been arrayed as proforma defendant, hence no judgment can be announced against the Defendant No. 2 in terms of Order XV Rule 1 & 2 CPC. However, if the plaintiff wants to prove that the alleged liability was admitted by Defendant No. 1 in the meeting in presence of representative of Defendant No. 2 or any modality was also settled for payment as averred in the plaint then of course after settlement of issues, the plaintiff may cite the Defendant No. 2 in the list of witnesses for summoning them at the time of evidence.

8. Though the plaintiff is dominus litis but the theory of dominus litis cannot be over stretched in the matter of impleading the parties because it is the duty of the Court to ensure that if for deciding the real matter in dispute a person is necessary or proper party the Court can order to implead such person and vice versa can also order deletion of any such person from the plaint who is not found to be proper or necessary party. The power to strike out or add parties may be exercised at any stage of proceedings which means any such stage of proceedings till the passing of final decree in the suit if Court comes to the conclusion that a person who ought to have been joined and whose presence before the Court is necessary to enable the Court to completely adjudicate and settle all questions it can order impleadment. What makes a person a necessary party is not merely that has relevant evidence to give on some questions involved that would only make him necessary witness. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of action.

9. In the case reported in AIR 1963 SC 786 (Udit Narain Singh v. Board of Revenue) it was held that the law as to who are necessary or proper parties to proceedings is well settled. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the questions involved in proceedings. It is clear from the averments of the plaint that the presence of Defendant No. 2 is not necessary in order to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit. At this juncture I would like to refer to PLD 1965 Dacca 266 (Lal Mohan Saha v. Krishnalal Saha & others). In this case also proforma defendant applied for striking out their names which application was dismissed by the learned subordinate Judge. The order was assailed in the civil revision and the learned D.B. of Dacca High Court held that not only the company itself but also the plaintiff and other parties have nothing to show that the plaintiff is interested in getting a relief against the company and in this view of the matter, the learned D.B. strike out the name of proforma defendant from the record and also held that learned subordinate judge failed to exercise jurisdiction vested in him according to law. The provision of Order I, Rule 10, C.P.C. does not mean that any person who has distinct or indirect relationship or connection with either the plaintiff or defendant ought to be joined but he must be directly and substantially connected with the issue which have to be adjudicated by the Court. Re: 2003 CLC 930.

10. The upshot of the above discussion is that the application brought under Order I, Rule 10, CPC is allowed and the name of proforma Defendant No. 2 is struck out from the array of defendants. The learned counsel for the plaintiff is directed to file amended title. Application disposed of.

(R.A.) Application allowed

PLJ 2013 Karachi 157 (DB) [Bench at Sukkur]

Present: Ahmed Ali M. Shaikh and Salahuddin Panhwar, JJ.

MUHAMMAD ASLAM and another--Petitioners

versus

GOVERNMENT OF SINDH through Home Secretary, Karachi

and 4 others--Respondents

C.P. No. D-1254 of 2012, decided on 22.5.2013.

Constitution of Pakistan, 1973--

----Art. 199--Standing Order No. 260/2011--Constitutional petition--Recruitment of children of serving and retired police employees--Policy for recruitment against quota for children--Category of Standing Order--If number of such candidates exceeds from number of reserved seats--Sword of discrimination--Validity--If reserved posts under such head are 20 and candidates falling within meaning of Standing Orders are 30 in number who per S.O, stand in same category for entitlement to such relief--In such eventuality there must be a policy to do justice with those standing under one umbrella in such manner and fashion that no one come out with plea of discrimination--Needless to add here that it is not standing order which matters but it is procedure through which standing order is intended to be dressed up else objective would lose its significance--Authorities were directed to chalk out a procedure through which intended relief be given to such employees so that object of standing order could meet its ends--Petition was allowed. [P. ] A

Mr. Syed Jaffar Ali Shah, Advocate for Petitioners.

Mr. Noor Hassan Malik, State Counsel for Respondents.

Date of hearing: 14.5.2013.

Judgment

Salahuddin Panhwar, J.--Through instant petition, the petitioners have prayed as under:--

(a) That it may be declared that in the light of standing order dated 26/7/2011 passed by IG Sindh Police Karachi the Petitioner No. 02 is entitled to the relief extending to the children of retired police employees as such he is also entitled to the appointed as constables in the Police.

(b) That the act of respondents not appointing the Petitioner No. 02 as Constables be declared as illegal and unlawful and against the standing order dated 26/7/2011 issued by IG Police Sindh Karachi.

1. Learned counsel for the petitioners, inter alia, contends that Petitioner No. 1 is a retired SIP from RTC Khairpur and Petitioner No. 2 is a real son of Petitioner No. 1, who had applied for the post of constable on the basis of son quota; Petitioner No. 1 was appointed in police department in the year 1971 after serving 38 years on various positions he was retired with effect from 11.05.2011. It is further contended that as per Standing Order No. 260 of 2011 issued by IGP Sindh, laying down policy for recruitment in the rank of Constable/ Junior Clerk/Naib Qasid against the quota, for children of serving and retired police employees. Petitioner No. 1 during service applied for appointment of his son as Police Constable as his case was falling within the specified category of Standing Order. Pursuant to that Standing Order, Petitioner No. 2 applied for the post of Police Constable in the year 2007. He qualified written test but was not appointed by respondents. Subsequently, Petitioner No. 2 again applied for the said post in the year 2008 and qualified the written test but was not again appointed on the ground that he could not qualify the viva-voce examination. Petitioners claimed that while making appointment, the respondents have discriminated as they have recommended those candidates, who were in lower position of Petitioner No. 2 since 2007 Petitioner No. 2 is approaching from pillar to post but none has paid any heed.

2. Per record, the Respondent No. 3 DIGP, Sukkur Range in his comments has submitted that the Petitioner No. 2 including other candidates, who qualified written test, were called in the Office for the purpose of viva-voce, but petitioners failed to qualify/succeed in viva-voce before the Board; hence his name does not exist in the final merit list of 59 candidates recommended to IGP Sindh. It is further revealed that Petitioner No. 1 also served in Police Recruit Training Centre, Khairpur, therefore, Principal Police Recruit Training Centre, Khairpur recommended for appointment of Petitioner No. 2. For the sake of convenience, such recommendation is reproduced as under:

"I, therefore, request that above named Irfan Ali S/o Retired SIP Muhammad Aslam Maitlo may kindly be approved to be appointed as Constable in Training Branch Range Sindh or RTC, Khairpur, for which he is suitable candidate, for the post of Constable. (Photocopy of Service Book of Muhammad Aslam, Retired SIP, father of applicant and the photocopies of Qualification Certificates, Domicile, CNIC etc. of applicant Irfan Ali are enclosed herewith for your kind perusal please)".

1. Learned State Counsel admitted that according to Standing Order issued by IGP Sindh, the case of Petitioner No. 2, is qualified in same category but it was mandatory for the Petitioner No. 2 to qualify written as well as viva-voce examination but he has failed in viva-voce examination, thus he is not entitled for the relief claimed for.

2. Heard the arguments and perused the record.

3. After consideration of pleas taken by respective parties and meticulous examination of available record, it is evident that the issue revolves round the standing order, issued for recruitment of children of serving and retired police employees, therefore, it would be helpful to refer such bone of contention first which is reproduced hereunder:--

"STANDING ORDER NO. 260/2011.

RECRUITMENT IN THE RANK OF CONSTABLE/ JUNIOR CLERK/NAIB-QASID AGAINST THE EQUOTA FOR CHILDREN OF SERVING AND RETIRED POLICE EMPLOYEES.

In exercise of the powers conferred under Police Rule 14.55 the IGP/Sindh pleased to notify the following standing order:--

This order may be called "RECRUITMENT AGAINST THE QUOTA FOR CHILDREN OF SERVING AND RETIRED POLICE EMPLOYEES.--

This Standing order shall come into force with immediate effect.

OBJECTIVE.

(i) To extend relief to in service Police employees who have qualified 20 years of service.

(ii) To extend relief to Retired Police Personnel who have served, for at least 20(twenty) years in Police.

(iii) Seats will be allocated to the Quota as per policy of the Government from the vacancies available.

DEFINITION.

(a) Legal Heir means Son/Daughter.

(b) Board means body of members only constituted by the I.G.P to conduct test/interview.

ELIGIBILITY.

(i) Son/Daughter of Serving and Retired Police Employees, who otherwise meet the criteria of Constable/ Junior Clerk & Naib Qasid shall be considered for employment through open merit.

(ii) Only one claim shall be given to a Police Employee.

QUALIFICATION.

Recruitment will be same a per regular appointments of Male/Female candidates:--

RECRUITMENT COMMITTEES.

The Recruitment Committee shall compromise of:--

(a) Chairman Addl.IGP/DIG of Range.

(b) Member/Secretary DIGF/ADIGP/Range.

(c) Member District SSP/SP of the district to which the employee belongs.

SCRUTINY OF APPLICATION.

Scrutiny of application shall be done by the Recruitment Committees on receipt of the applications through the concerned District SSP/SP.

PROCEEDINGS OF THE RECRUITMENT COMMITTEE.

(i) The proceedings of Recruitment Committee shall be sent to CPO for consideration and approval by the Inspector General of Police.

(ii) The Inspector General of Police Sindh may grant condonation in qualification and physical standards to son/daughter who has been recommended for appointment by the recruitment committee".

1. There can be no denial to the fact that even before issuance of the Standing Order in question there was no ban for children of the retired and serving employees to apply and to be enlisted in the department if they successfully qualify required test (s) including written and viva-voce examination, therefore, if it is presumed that even after issuance of the Standing Order the criteria for recruitment for children of retired and serving employees remain same then there appears no purpose and objective of issuance of the Standing Order. The Standing Order itself makes the objective and purpose of its issuance clear by saying that:--

OBJECTIVE.

(iv) To extend relief to in service Police employees who have qualified 20 years of service.

(v) To extend relief to Retired Police Personnel who have served for at least 20(twenty) years in Police.

(vi) Seats will be allocated to the Quota as per policy of the Government from the vacancies available.

1. The objective has made it clear that it is meant to extend relief to those serving employees, who have served 20 years service and those retired employees who served the department at least 20 years. The use of the phrase "to extend relief" in the objective of the Standing Order should be given its due intended meaning because if the children of a retired and serving employee (having served the department at least 20 years) yet have to undergo whole the process, as provided for other candidates applying on merits then intentionally used phrase "to extend relief" shall lose its value and significance. Further, we may add here that the condition of at least 20 years is also not without substance but it has intentionally been used so as to confine extension of such relief to those employees only who have served at least 20 years and not to every single employee of the Police which further insists that the Standing Order is a deliberate and purposeful move hence the respondents, at all material times, are / were required to give weight to the objective and purpose of the Standing Order.

2. Having said so, now we would revert to the merits of the case in hand. The following facts are not disputed at all:--

(i) the Petitioner No. 1 has served more than 20 years in the police department;

(ii) the Petitioner No. 2 is the real, son of the Petitioner No. 2

Both the above undisputed facts leave-nothing ambiguous that the case of the petitioners fall within the meaning and objective of the Standing Order therefore, the Petitioner No. 2 is legally entitled for extension of relief, so provided under the Standing Order in question.

1. Now we, further, would like to examine the condition of eligibility, as per the Standing Order, which is that "who otherwise meet the criteria of Constable, Junior Clerk & Naib Qasid". This puts only a condition that children of the employees shall be required to show that they fall within the "criteria" so required for such post. This no-where requires that such qualified candidate (per Standing Order) should also undergo all tests, as are to by a regular candidate. The word "criterion" is defined in the Oxford dictionary as "a principle or standard by which something may be judged or decided". This also makes it clear that it is the qualification/requirement for the job which are described at the time of inviting application (s) for such jobs. Such eligibility of the Petitioner No. 2 is no where disputed because he was found physically fit so was allowed to appear in written test and even he qualified such written test (s) twice which also proves that the Petitioner No. 2 was, at such times, falling within the "criterion" so required for the post of constable.

2. Keeping in view the above given facts and circumstances of the case, the Petitioner No. 2 has qualified the written examination and is not disqualified on any other ground, therefore he has succeeded in making out his case. Consequently, instant petition is allowed as prayed. The respondents are hereby directed to appoint the Petitioner No. 2 as constable within one month under compliance report to this Court.

3. While parting we would like to endorse here that since the Standing Order itself speaks that "Seats will be allocated to the Quota as per policy of the Government from the vacancies available" but it no where specifies manner of selecting the children of employees under such reserved quota if the number of such candidates exceeds from number of reserved seats under this Standing Order but the Standing Order provides that one should only meet criteria to claim such relief, therefore, we feel that non-explaining and describing of such manner of extension of such relief may be taken as a sword of discrimination as was claimed in the instant case. We may say here that if the reserved posts under such head are 20 and candidates, falling within meaning of this Standing Order, are 30 in number who, per Standing Order, stand in same category for entitlement to such relief. In such eventuality there must be a policy to do justice with those standing under one umbrella in such a manner and fashion that no one come out with a plea of discrimination. Needless to add here that it is not the Standing order which matters but it is the procedure through which a standing order is intended to be dressed up else the objective would lose its significance. Accordingly, the authorities are directed to chalk out a procedure through which the intended relief be given to such employees so that object of the Standing Order could meet its ends.

Above are the reasons of our order dated 14th May, 2013 whereby we had allowed this petition.

(R.A.) Petition allowed

PLJ 2013 Karachi 163 (DB) [Bench at Sukkur]

Present: Ahmed Ali M. Shaikh and Salahuddin Panhwar, JJ.

MUHAMMAD YAMEEN--Petitioner

versus

GOVERNMENT OF SINDH through Secretary, Education Department, Karachi and 2 others--Respondents

Const. Petition No. D-245 of 2011, decided on 22.5.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Appointment as Naib Qasid on contract basis--Removed from services--Neither show-cause notice was issued nor opportunity of hearing was provided--Validity--Since petitioner was low paid employees was appointed as Naib Qasid and lone bread winner on his large family--Before issuing termination order which lacks reasonings, he was condemned unheard in sheer violation of law of natural justice--It is settled law that all authorities including Courts were required to pass speaking orders--If there was any irregularity in his appointment, authority who exercised their powers wrongly could had been penalized instead of poor petitioner--Govt. was directed to regularize the service of petitioner--Non compliance of the order might expose delinquent officers to contempt of Court proceedings--Petition was allowed. [Pp. 165 & 166] A, B & C

2004 SCMR 1077 & 1988 SCMR 2268, rel.

Mr. Hadi Bux Bhatti, Advocate for Petitioner.

Mr. Imtiaz Ali Soomro, Asstt. A.G. for Respondents.

Date of hearing: 22.5.2013.

Order

Ahmed Ali M. Shaikh, J.--Through instant petition, petitioner has prayed for as under:

(a) "To declare that the impugned order dated 29.9.2008 issued by the Respondent No. 2 in termination of the service of petitioner and the relieving order are mala fide, colorable capricious, unjust, without any cogent reason and against the terms and conditions of the service of the petitioner who was appointed on contract basis for the period of three years and as such the same may kindly be set aside.

(b) To direct the respondents through Mandamus process to reinstate the service of the petitioner and thereby continue his service with back benefit of service as well as payment of his salaries which have not been paid to the petitioner till today.

(c) To grant any other equitable relief as deemed fit by this Honourable Court in circumstances of the Court".

1. From the pleadings, it appears that the petitioner was appointed as Naib Qasid in BS-01 in Education Department vide order dated 3.11.2007 on contract basis for a period of three years. Later on, he was posted at Govt. Girls High School Islamia Ghat, District Sukkur, but though he was discharging his duties regularly, but vide impugned general order dated 29.4.2008, he was fired from his service.

2. It is, inter alia, contended by learned counsel for the petitioner that the impugned order lacks reasonings and cannot be termed as speaking order in view of Section 24-A of General Clauses Act. Besides, before issuing impugned order, neither show-cause notice was issued to the petitioner nor he was provided an opportunity of hearing.

3. Learned Assistant Advocate General though contested the petition but could not controvert the contentions advanced at bar by learned counsel for the petitioner.

4. Since the petitioner is low-paid employee was appointed as Naib Qasid in BS-01 and lone bread winner of his large family. Besides, before issuing termination order which lacks reasonings, he was condemned unheard in sheer violation of law of natural justice. It is settled law that all the authorities including the Courts are required to pass speaking orders and such view is supported by the judgment of Hon'ble Apex Court in case of Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi 1998 SCMR 2268, wherein their Lordships of the Apex Court has observed as under:

"The doctrine has further been recognized and augmented by the recent insertion of Section 24-A in the General Clauses Act, 1897, which declares that where a statue 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. What is more, the order or direction, so far as necessary or appropriate would reflects reasons for its making or issuance and, where the same is lacking, an affectee may demand the necessary reasons, which, in response, would be furnished".

1. Furthermore, if there was any irregularity in his appointment, the authority who exercised their powers wrongly could have been penalized instead of poor petitioner in view of dicta laid down in case of Muhammad Akhtar Shirani v. Punjab Text Book Board (2004 SCMR 1077), in which Hon'ble Supreme Court has been pleased to hold as under:

"It may be observed that for such reason beneficiary cannot be blamed alone because primarily the authority who had actually mis-exercised his powers, for the reasons known to it, is bound to be held responsible for the same, instead of penalizing the petty employees like Chowkidar, Naib-Qasid, junior clerks etc, who have to earn livelihood to support their families and if after having served for a long period they are removed from service discriminately, such action would not promote the cause of action and it would give rise to a number of problems to them. In this regard at a number of occasions, it has been held by this Court that instead of removing the employees from service, action should have been taken against the authority who had mis-exercised its powers".

1. For the foregoing reasons and dicta laid by Hon'ble Supreme Court in cases of Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and Muhammad Akhtar Shirani (supra), we had allowed instant petition by a short order dated 22nd May, 2013. Consequently, impugned order dated 29.4.2008 is set aside to the extent of petitioner. Respondents are directed to regularize the service of the petitioner within a period of 30 days after receipt of this order and under compliance report to this Court through Additional Registrar. Non-compliance of this order may expose the delinquent officers to contempt of Court proceedings.

2. Let copy of this order be communicated to concerned quarter over fax for information and compliance.

(R.A.) Petition allowed

PLJ 2013 Karachi 166 (DB)

Present: Maqbool Baqar & Riazat Ali Sahar, JJ.

Syeda AFSHAN--Petitioners

versus

Syed FARUKH ALI and 3 others--Respondents

C.P. No. D-957 of 2013, decided on 11.3.2013.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 173--Constitutional petition--Report submitted by police--Disagreeing by Magistrate--Investigation was not conducted properly--It is well settled principle of law that Magistrate was not bound to agree with report submitted by police u/S. 173, Cr.P.C. and he was at liberty under law, either to agree or disagree with conclusions reached by I.O. subject, of course, to give cogent reasons for conclusion arrived at by him--Magistrate was not expected to blindly follow investigation undertaken by police as ipse dixit of police was never binding on Magistrate--Opinion expressed by I.O. in report u/S. 173, Cr.P.C. was just and appropriate, Magistrate was fully competent to accept the report and dispose of case--Courts were not bound by arbitrary opinions of investigating officers--Court can take cognizance even on negative report and can refuse to take cognizance on positive report, depending upon facts and circumstances of each case. [Pp. 168 & 169] A

Criminal Procedure Code, 1898 (V of 1898)--

----S. 561-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Administrative order while taking cognizance of a case is judicial act--Which cannot be nullified by administrative act--No procedural law in which magistrate can grant administrative approval for disposal of case A, B or C Class--Validity--Administrative order passed by Magistrate can be challenged u/S. 561-A, Cr.P.C. by invoking inherent jurisdiction of High Court, while such type of judicial order can be challenged under revisional jurisdictional before competent forum--Magistrate was absolutely right in disagreeing with I.O. for disposal of case in B-class but had rightly exercised discretion and justifiably disposed of in `C' Class--High Court did not find any illegality or material irregularity in impugned order, hence were not inclined to interfere with the same. [Pp. 169, 170 & 171] B, C & F

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 337-A(i)--Offence of causing injury assault and in order to ascertain nature of injury--Injured was referred to M.O. for obtaining M.R.--Validity--In absence of medical report it can safely be held that no offence u/S. 337-A(i) PPC was made out. [P. 170] D

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 504--Not possible that merely on dropping of pistol a live bullet directly extracts from magazine or chamber without unloading--Validity--Possibility of any cognizable offence did not arise at the most presumption of offence u/S. 504, PPC could be made out which too was non-cognizable. [P. 171] E

Mr. Pervaiz Ahmed Khan Mastoi, Advocate for Petitioner.

Date of hearing: 11.3.2013.

Order

Riazat Ali Sahar, J.--Through this petition, the petitioner seeks following relief:--

(a) To declare the order passed by Respondent No. 2 is not proper and bad in law without going through the material available on record.

(b) To recall above said order dated 31.12.2012 and Respondent No. 4 may be directed to submit challan against the accused person in the above said case.

Precisely, the facts of the case are that the petitioner has three sisters and three brothers. Their father died in the month of January, 2008. During his lifetime, her father had gifted the property i.e. House No. B-374/10, F.B. Area, Karachi in favour of the petitioner and her three sisters who executed power of attorney in favour of the petitioner. After the demise of her father, her two brothers namely Syed Farrukh Ali and Syed Asad Ali started threatening, abusing and beating the petitioner and her sisters and also tried to oust them from the house. Upon provocation of her brother Asad Ali who lives in Australia and used to visit Pakistan from time to time, Syed Farrukh Ali used to beat all the sisters and illegally occupied the upper floor of the house in question. In these circumstances, her sister Mst. Mehreen filed Criminal Petition Bearing No. 976/2012 against Syed Farrukh Ali in the Court of II-Additional Sessions Judge, Karachi, Central, which is still pending. According to the petitioner, on 12.11.2012, at 11:00 a.m., when she reached her house from the Court, her brother Syed Parrukh Ali, Respondent No. 1, who was already present in the house, pointed a pistol upon her and issued threats that he will kill all the sisters including petitioner, if the aforesaid case is not withdrawn by them. At that time he also used filthy language and maltreated the petitioner, however, on the intervention of her sister Mst. Mehwish she was saved and the pistol as well as one bullet dropped from his hand. According to the petitioner, after that incident she filed Criminal Petition No. 1203/2012 and on the direction of the Court FIR No. 351/2012 was registered.

1. After registration of FIR, the case was investigated by Respondent No. 4 who submitted final report under Section 173, Cr.P.C. for disposal of the case in B' Class. However, the learned Judicial Magistrate, the Respondent No. 2, vide order dated 31st December, 2012, while disagreeing with the I.O. that it is the case of no evidence and be disposed of inB' Class, disposed of the case in `C' class and declined to take cognizance of the case. The instant petition has been filed against the said order.

2. Learned counsel for the petitioner contended that the impugned order is bad in law as the learned J.M. did not go through the material available on record. According to him, mere statement of the sister of petitioner Mst. Mehwish is sufficient to indict the accused in the crime. He further contended that there are lacunas in the final report and the investigation itself is one sided as the I.O. has not conducted investigation properly and the Magistrate without going through the same passed impugned order instead of issuing direction to the Respondent No. 4 to submit challan.

3-A. We have heard the arguments of learned counsel for the petitioner and perused the record.

1. It is well settled principle of law that the Magistrate is not bound to agree with the report submitted by police under Section 173, Cr.P.C. and he is at liberty under the law, either to agree or disagree with the conclusions; reached by the Investigating Officer subject, of course, to giving cogent reasons for the conclusion arrived at by him. The Magistrate under Section 173, Cr.P.C. is not expected to blindly follow investigation undertaken by police as ipse dixit of police was never binding on Magistrate or Court. Of course, the Magistrate is legally bound to apply his independent mind to the material placed before him and then form his own opinion about the matter. However, after applying his judicious mind to the material placed before him, if he is of the view that the opinion expressed by the I.O. in the report under Section 173, Cr.P.C. is just and appropriate, he is fully competent to accept the report and dispose of the case as proposed. The Courts are not bound by arbitrary opinions of the Investigating Officers. They have to apply their independent mind to the facts and circumstances of a case. A Court can take cognizance even on negative report and can refuse to take cognizance on a positive report, depending upon facts and circumstances of each case.

2. There is no procedural law in our country in which a Magistrate can grant administrative approval for disposal of a case under "A", "B" or "C" class, but the Magistrate has disposed of the case under "C" class by passing impugned order, therefore, it is to be clarified that these classes are in practice to dispose of the criminal cases after completion of investigation since long, this continuous practice has become usage and is not in consistent with or in derogation of fundamental rights as prescribed, by Article 8 of the Constitution, therefore, such usage has force of law and now such practice is a part and parcel of the procedural law. Actually these classes were prescribed by Bombay Presidency Police Guide. According to Bombay Presidency Police Guide, report of investigation under Section 173 of the Code of Criminal Procedure, 1898, is to be filed either in the form of a charge-sheet, if the accused is sent for trial, or in the form of a Final Report, in other cases. Final Reports are classified into A'---true casesB'--- maliciously false cases, `C'---neither true nor maliciously false cases but non-cognizable.

As per practice/usage the class "A", "B" and "C" are defined as under:--

CLASS `A':

FIR is true, but accused is/are untraced, therefore, Magistrate can dispose of the case till, the appearance/arrest of the accused.

CLASS `B':

The FIR is maliciously false and after passing summary orders by directing the SHO to initiate proceedings for offence punishable under Section 182, PPC against the complainant/ person, who gives information, which he knows or believes to be false.

CLASS `C':

FIR can be disposed of being non-cognizable offence, but in this class it is suffice to say that if there is evidence regarding non-cognizable offence, the Magistrate can direct the SHO to submit a separate report under Section 155, Cr.P.C. for taking cognizance and proceedings or otherwise.

Rule 24.7 of Police Rules, 1934 is supportive to the extent of cancellation of FIR.

1. It is further clarified that disposal of the case under any of the above classes is an administrative order while taking cognizance of a case is a judicial act, which cannot be nullified by an administrative act. The administrative order passed by the Magistrate can be challenged under section 561-A, Cr.P.C. by invoking inherent jurisdiction of this Court, while such type of judicial order can be challenged under revisional jurisdiction before the competent forum.

2. From the perusal of the impugned order, it appears that the trial Court has not followed the opinion expressed by the I.O. in the final report blindly but applied his judicious mind to the material placed before him. It appears that in the final report it was stated by the Investigating Officer that in order to get the statements of the witnesses recorded under Section 161, Cr.P.C., he issued notices under Section 160, Cr.P.C. to the witnesses but except P.W. Mehwish (sister of the complainant) no other witness appeared although another brother of the complainant namely Muhammad Ali was also residing in the same premises, besides the ground floor of the said premises was also occupied by the tenants, and there were four shops adjacent thereto. Thereafter the I.O. issued final notice to the witnesses to get their statements recorded in the matter, but none appeared. Apart from that, complainant also failed to produce her witnesses before I.O.

3. Besides above, it is also pertinent to mention here that the memo. of place of incident reveals that nothing has been secured from the place of alleged incident but one live bullet was given to the I.O. by the complainant herself. No incriminating article including alleged crime weapon has been recovered from the possession of the accused. Moreover, the ocular testimony in respect of the alleged offence under Sections 506-B and 337-A(1), PPC is also not supported by other unimpeachable evidence. Section 337-A(1), PPC pertains to the offence of causing injury/assault and in order to ascertain the nature of injury and the particular section under which the offence falls, it is mandatory that the injured is referred to the Medical Officer for obtaining Medicolegal Report. However, from the perusal of the material available on the record, we could not find any such report. In the absence of the said report, it can safely be held that no offence under Section 337-A(1), PPC is made out.

4. It is also pertinent to point out that according to the FIR, when the accused pointed the pistol upon the complainant, her sister, Mst. Mehwish, intervened and pushed the accused back whereupon the pistol and one bullet dropped from his hand. Such assertion, on the face of it, does not appeal to a person of prudent mind, as practically it is not possible that merely on the dropping of pistol, a live bullet directly extracts from the magazine or chamber without unloading it. In view of foregoing circumstances, possibility of any cognizable offence does not arise, at the most presumption of offence under Section 504, PPC could be made out which too is non-cognizable.

5. In view of above, the FIR in question, although could not be termed as "maliciously false" so as to bring the same in the category of "B" Class, but at the same time it lacks the ingredients of a cognizable offence, thus would fall in "C" Class. In the circumstances, in our view, the learned J.M. was absolutely right in disagreeing with the I.O. for disposal of the case in B' Class but has rightly exercised the discretion and justifiably disposed of the case inC' Class. We do not find any illegality or material irregularity in the impugned order. Hence are not inclined to interfere with the same.

6. We, for the foregoing reasons, dismissed the instant petition in limine alongwith listed applications by our short order dated 11.03.2012.

7. Before parting with the case, we are inclined to direct the learned Registrar of this Court to circulate the observations made in paragraphs 4 and 5 of this order to all the District & Sessions Judges in the province of Sindh with the direction to get the same circulated amongst all their subordinate Judicial Officers in the respective districts. Order accordingly.

(R.A.) Petition dismissed

PLJ 2013 Karachi 171

Present: Muhammad Ali Mazhar, J.

M/s. SADAT BUSINESS GROUP LTD. through Local Agent--Plaintiff

versus

FEDERATION OF PAKISTAN through Secretary Ministry of Commerce & another--Defendants

Suit No. 1134 of 2011, decided on 9.5.2013.

Arbitration Act, 1940 (X of 1940)--

----S. 20(4)--Appointment of arbitrator--Contract was executed for supply of white sugar--Agreement without invoking Clause 27 of contract was cancelled--Remedy was available under Clause 27 of contract--Cause of delay was non-compliance of banking requirements--Agreement was cancelled and performance guarantee was forfeited--Validity--In case a contract was terminated arbitration clause does not survive--Termination might occur due to breach in contractual obligations by any of the parties to contract which in fact leads towards a dispute and in order to resolve dispute between parties and even for determination of their rights and liabilities and even wrongful termination can be made subject matter of arbitration proceedings, otherwise, the whole purpose and scheme of incorporating an arbitration clause in contract will become redundant and superfluous and it would be very easy for any party to terminate and or frustrate contract out rightly in order to avoid arbitration proceedings and claims if any--Cancellation of contract or invoking arbitration proceedings both were two distinct situations, termination clause cannot be given overriding effect on arbitration proceedings or provision made for arbitration in contract--Contract might had come to end by reason of frustration or breach of condition but arbitration clause survives--If a original contract stood novated or modified such would not lead to abrogation of arbitration clause--Once arbitrator is appointed through mechanism and procedure proposed in agreement itself, it is for arbitrator to fix responsibility that who had committed breach--High Court felt no hesitation that despite cancellation of contract provision of arbitration survives and agreement for arbitration contained in contract is a separable part of contract therefore, it would be fair and square to appoint arbitrator in instant case. [Pp. 180, 181, 182 & 183] A, B, C & E

Arbitration Act, 1940 (X of 1940)--

----S. 20--Appointment of arbitrator--Supply of commodities--Terms of contract was bound to open letter of credit within five working days which they had failed to do--Agreement was cancelled--Delay in shipment was occurred due to heavy rainfall which was beyond their control--Validity--If breach on part of plaintiff was proved beyond any shadow of doubt then action of forfeiting performance guarantee would be lawful and justified. [P. 183] D

Mr. Faisal Kamal, Advocate for Plaintiff.

Mr. Malik Muhammad Riaz, Advocate for Defendant No. 2.

None present for Defendant No. 1.

Dates of hearing: 15.3 & 5.4.2013.

Order

The plaintiff has brought this suit under Section 20 of the Arbitration Act, 1940 for the appointment of Arbitrator in terms of Clause 27 of the agreement dated 7.4.2010.

1. The brief facts of the case are that the plaintiff is a business group based in Dubai and other countries and engaged in the supply of commodities. They are working through their legal agent M/s. M.M. Ellahi Traders in Pakistan. The Defendant No. 2 executed a contract with the plaintiff for supply of 50,000 M.T. white sugar. In terms of contract the plaintiff submitted a performance guarantee in the sum of US$ 598,000/- to the Defendant No. 2 against which the Defendant No. 2 in terms of contract was bound to open letter of credit within five working days which they failed to do and they took two weeks' time to open the letter of credit, which was contrary to the terms of contract. The date of shipment was agreed on 18.7.2010 but due to heavy rainfall in Santos, Brazil Port the shipment was delayed. The defendant appointed pre-shipment inspection agency NMCI for Lab sampling vessel inspection and loading. The agency submitted its report by confirming availability of stock on the port of Brazil. The Defendant No. 2 was confirmed through supplier about the shipment and the only reason of delay was non-compliance of banking instruction which was the responsibility of the Defendant No. 2 but without realizing their own fault the Defendant No. 2 cancelled the agreement without invoking clause 27 of the contract which envisages the arbitration proceedings. It is further stated that the plaintiff time and again approached the Defendant No. 2 to restore the contract but to no avail. Even the plaintiff was willing to supply the consignment to Defendant No. 2 on the committed price. It was further stated that the plaintiff filed constitutional petition in this Court and got the interim orders but keeping in view the remedy available under Clause 27 of the contract, the petition was withdrawn with the willingness to invoke the arbitration proceedings.

2. The Defendant No. 2 filed its written statement in which the execution of contract was not denied but it was stated that the entire quantity of 50,000 M.T. sugar was to be shipped in Pakistan within six weeks from the date of opening of letter of credit on 15.6.2010. In the written statement the Defendant No. 2 has also given required date of shipments from 6.7.2010 to 29.6.2010. So far as the inspection by NMCI Pakistan (TCP's nominated PSI) the said company informed the Defendant No. 2 that the plaintiff did not offer any stock of sugar for inspection. It was further stated that the plaintiff failed to nominate the name of particular vessel. It was further contended that since the plaintiff failed to fulfill the contractual obligation, therefore, the Defendant No. 2 cancelled the contract vide Letter No. 31.7.2010 and forfeited the amount of performance guarantee.

3. Learned counsel for the plaintiff argued that if contents of the plaint and the written statement filed by Defendant No. 2 are placed in juxtaposition. It is clear beyond any shadow of doubt that a triable dispute is emerging which should have been resolved by invoking Clause 27 of the contract which pertains to the arbitration proceedings. On the contrary, despite clear condition the Defendant No. 2 cancelled the contract unilaterally so that they may easily forfeit the performance guarantee. Learned counsel further argued that it is well settled legal position that despite cancellation/termination of contract the arbitration clause survives which is always enforceable separately even in the circumstances the agreement is terminated/rescinded or is no longer existed. Learned counsel argued that it is yet to be seen whether the plaintiff has complied with the terms and conditions of the contract in letter and spirit or the Defendant No. 2 has committed default or became instrumental of delay by not complying with their own responsibilities arising from contract which can only be decided if arbitration proceedings are commenced. He further argued that the plaintiff has not committed any breach of contract and always shown willingness to fulfill its contractual obligation but the Defendant No. 2 unlawfully forfeited the amount of performance guarantee, which aspect is also to be seen by the Arbitrator. In support of his arguments he has relied upon following case law:--

(1) AIR (33) 1946 Lahore 116 (Firm Karam Narain v. Volkart Bros.). It was held that the contract is not put out of existence though all further performance of the obligation undertaken by each party in favour of the other may cease. It survives for the purpose of measuring the claims arising out of the breach, and the arbitration clause survives for determining the mode of their settlement.

(2) 1983 CLC 2745 (Pakistan Burmah Shell Ltd. v. Tahir Ali). It is by now well-settled that once it is found that there was a contract, then although the contract might have come to an end by reason of frustration or rescission of breach of condition or by being provided for fraud or misrepresentation or coercion, the arbitration clause already survived. If any precedents are needed reference can be made to Radhakishan Chawla Ltd. v. General Construction Co. and Pan-Islamic Steamship Company Ltd. v. Messrs General Imports and Exports Ltd. In the last named case reliance is placed on an earlier decision of this Court in Hoosen Brothers Ltd. v. Pakistan Textile Mills Ltd. Reliance was also placed upon the opinion of Viscount Simon L.C. in Hayman versus Drawins Ltd. which is a House of Lords case wherein inter alia, it was observed at page 367 of the report that "I do not agree that an arbitration clause expressed in such terms as above ceases to have any possible application merely because the contract has "come to an end." as, for example, by frustration.

(3) 1997 SCMR 1928 (Sezai Turkes Feyzi Akkaya Contraction Company, Lahore v. M/s.Crescent Services Lahore). It was held that if the dispute between the parties is covered by the arbitration clause and even if it be assumed that the original contract stood novated or modified by defendants' this would not lead to the abrogation of the arbitration clause which contained very broad and wide terms that the disputes between the parties were essentially connected with the original agreement. Hence, on the alleged modification or novation of the contract, the arbitration clause would survive. The cases where despite the frustration of the contract or the repudiation of the contract the arbitration clause was held to survive and apply, noted in this case were Hayman and another v. Darwins Limited (1942 A.C. 356) and Firm Karam Narain Daultat Ram and another v. Messrs. Volkart Bros, and another (AIR 1946 Lahore 116) in which it was held that arbitration clause in a contract can be regarded as a thing apart from the main conditions of a contract and in other words, the arbitration clause is severable from the remaining contract and would survive frustration of the contract itself.

(4) PLD 2000 S.C. 841 (The Hub Power Company Ltd. v. Pakistan WAPDA). It was held that the allegations of invalidity even serious allegations of its being ab initio void are perfectly capable of being referred to arbitration. The doctrine of separability increases the scope of all arbitration clauses.

1. Conversely, learned counsel for the Defendant No. 2 argued that despite opening of letter of credit the plaintiff failed to supply the consignment within six weeks while the letter of credit was opened on 15.6.2010. Despite extension the plaintiff also failed to tender any stock for inspection purposes. Learned counsel further argued that this suit is not maintainable as after the cancellation of contract there is no question to appoint any arbitrator to resolve the dispute. At present no agreement is in existence due to breach committed by the plaintiff. The Defendant No. 2 suffered heave financial loss on account of higher price difference on purchase of sugar from other parties. It was further argued that the plaintiff has no locus standi to file the case nor any right to ask for the appointment of arbitrator as the plaintiff is limited company incorporated in Dubai and authority letter is invalid as the same has been signed by unauthorized person. Learned counsel argued that the suit is barred by Section 230 of Contract Act and also relied upon Section 2(h) of the Contract Act and argued that since there is no agreement enforceable by law hence, there is no contract. He further argued that there is no arbitration agreement enforceable in terms of Section 2(a) of the Arbitration Act. In support of his arguments he relied upon the following case law:--

(1) 1984 CLC Lahore 3347 (Manzoor Construction Co. Ltd. v. University of Engineering & Technology, Texila). According to Section 20(1), Arbitration Act, 1940 before a person can make an application under that provision for a prayer that an agreement be filed in the Court, following conditions have to be satisfied: (i) That there is an agreement between the parties containing arbitration clause, (ii) That the agreement had been entered into before institution of the suit with respect to the subject-matter of the agreement, (iii) That a difference has arisen between the parties to which the agreement applies. (iv) That the Court to which application is made has jurisdiction in the matter to which the agreement relates. If any one of these conditions is absent, no one can file an application under that section.

(2) AIR 1974 Supreme Court 1579 (Jaikishan Dass Mull v. Luchhiminarain Kanoria & Co.) When a contract is invalid, every part of it, including the clause as to arbitration contained therein must also be invalid. AIR 1962 SC 1810 and AIR 1963 S.C. 90.

(3) AIR 1962 Supreme Court 1810 (Khardah Company Ltd., v. Raymon & Co (India) Private Ltd.). A dispute that the contract of which the arbitration clause forms an integral part is illegal and void is not one which the arbitrators are competent to decide under the arbitration clause although it is of sufficient amplitude to take in a dispute as to the validity of the agreement, and in consequence a party to the contract is entitled to maintain an application under Section 33 for a declaration that the contract is illegal and that in consequence the proceedings taken thereunder before the arbitrators and the award in which they resulted were all void.

(4) AIR 1981 Calcutta 202 (Das Consultants (Pvt.) Ltd. v. National Mineral Development Corporation Ltd). It is not necessary that the arbitration agreement should be signed. All that is necessary is that there should be an agreement for arbitration reduced to writing. This is clear from Section 2(a). Therefore what is necessary is to have a written agreement to submit present or future difference to arbitration whether the arbitrator is named or not.

(5) 1986 CLC 2630 (Muhammad Azam Muhammad Fazil & Co. v. M/s. Trading Corporation of Pakistan). Existence of a difference of dispute is an essential condition for making a reference to arbitrator and to maintain application under Section 20 of the Arbitration Act.

(6) PLD 1954 Sindh 56 (M/s. Friends Trading Co. v. M/s. Muhammad Usman-Moula Bux). An existing dispute is an essential condition for reference to an arbitration. This condition is as essential as a cause of action in a civil suit.

(7) 2002 YLR 2238 (Malik Muhammad Mumtaz v. Malik Abdul Rauf). Section 20 Arbitration proceedings. Pre-requisites. Existence of a substantial dispute is condition precedent for any valid arbitration proceedings.

(8) PLD 1990 SC 48 [Lahore Stock Exchange Limited v. Fredrick J. Whyte Group (Pakistan) Ltd]. Leave to appeal was granted to consider whether there was a valid agreement existing between the parties and that the nature of the dispute between them was such which could not be decided by the arbitrator but only by the Court of law and if the Court was to arrive at the conclusion that there existed a valid agreement between the parties, only then in case of a dispute the matter could be referred to the arbitrator under the arbitration clause contained in the agreement.

1. Heard the arguments. Learned counsel for the plaintiff argued that due to heavy rainfall in Santos, Brazil, the shipment was delayed and another cause of delay was the non-compliance of banking requirements/instructions which was the responsibility of the Defendant No. 2 but without realizing their own fault they have cancelled the contract without invoking the arbitration clause. It was further argued that the plaintiff time and again approached the Defendant No. 2 for restoration of contract and they were willing to supply the consignment. On the contrary, counsel for the defendant shifted the entire blame on the plaintiff that the plaintiff did not offer any stock of sugar for inspection and they also failed to nominate the name of vessel. Despite extension the shipment was not made hence, the defendant rightly cancelled the contract and forfeited the amount of performance guarantee.

2. Clause 27 of the agreement referred to by both the parties is related to arbitration which is reproduced as under:--

27. Arbitration:--

"Any dispute or difference arising out of contract which cannot be amicably settled between the parties, shall be finally settled under the provisions of the Arbitration Act, 1940 (Act No. X of 1940) and rules made there under as amended from time to time. The venue of arbitration shall be Karachi, Pakistan".

1. It would not be out of place to refer to Clause No. 24 of the same agreement pertains to the force majeure, which is reproduced as under:--

2. Force Majeure:--

"Should any of the force majeure circumstances, namely Acts of Allah, natural calamity, fire, Government restrictions, strikes or lock-outs by workmen, war, military operations of any nature and blockades preventing the Seller/Buyer from wholly or partially carrying out his contractual obligations, the period stipulated for the performance of the contract shall be extended for as long as these circumstances prevail, provided that, in the event of these circumstances continuing for more than three months, either party shall have the right to refuse to fulfill its contractual obligations without title to indemnification of any losses it may thereby sustain. The party unable to carry out its contractual obligations shall immediately advise the other party of the commencement and the termination of the circumstances preventing the performance of the contract. A certificate issued by the respective Chamber of Commerce in the Seller or the Buyer country shall be sufficient proof of the existence and duration of such circumstances".

1. The Black's Law Dictionary (Sixth Edition) defines the term Force Majeure as under:

"In the law of insurance, superior or irresistible force. Such clause is common in construction contracts to protect the parties in the event that a part of the contract cannot be performed due to causes which are outside the control of the parties and could not be avoided by exercise of due care. An oil and gas lease clause that provides that the lessee will not be held to have beached the lease terms while the lessee is prevented by force majeure (literally, "superior force") from performing. Typically, such clauses specifically indicate problems beyond the reasonable control of the lessee that will excuse performance. See also Act of God; Vis Major."

Mr. Justice M.L.Singhal in his book "Supreme Court on Words and Phrases" (Vinod Publications Ltd), quoted the case, of Lebeaupin versus Crispin, 1920-2 KB-714 in which McCardie J. had given an account of what is meant by "force majeure" in the following words:

"With reference to its history. The expression "force majeure" is not a mere French version of the Latin expression "vis major". It is undoubtedly a term of wider import. Difficulties have arisen in the past as to what could legitimately be included in "force majeure". Judges have agreed that strikes, breakdown of machinery, which, though normally not included in "vis major" are included in "force majeure". Where reference is made to "force majeure", the intention is to save the performing party from the consequences of anything over which he has no control. This is the widest meaning that can be given to "force majeure", and even if this be the meaning, it is obvious that the condition about "force majeure" in the agreement was not vague. The use of the word "usual" makes all the difference, and the meaning of the condition may be made certain by evidence about a force majeure clause, which was contemplation of parties."

1. After examining the pleadings and considering the cut and thrust of arguments it is manifestly clear that a dispute does exist between the parties which should have been determined in accordance with the Clause 27 of the agreement but the defendant without recourse to the arbitration proceedings unilaterally cancelled the agreement.

2. At this juncture, I would like to quote my own judgment reported in 2013 CLD 681 (M/s Global Energy & Commodity Exchange Group Italy SPA (GECX Group) v. Trading Corporation of Pakistan) (same defendant), in which it was held as under:

"That allegations and counter allegations leveled by parties against each other as to which party committed default and became instrumental in breach of contractual obligations; required evidence. In the present case, there existed certain differences between the parties relating to the terms and conditions of the Letter of Credit and the modalities of shipment and such differences were required to be resolved through arbitration and in presence of an arbitration clause in the agreement, it would be just and proper to appoint arbitrator to the dispute. Existence of a difference or dispute was an essential condition that constitutes a cause of action for an application under Section 20 of the Arbitration Act, 1940. Dispute implied an assertion of a right by one party and repudiation thereof by another. Scope and power conferred on the Court under Section 20 of the Arbitration Act, 1940 was merely limited to determination of the factum of a real dispute and no more; it is not for the Court to go into the questions pertaining to the disputes raised or suggest the manner of decision thereof, which would amount to usurping the jurisdiction of the arbitrator. If the Court passed an order or reference of the matter to arbitrators, it amounted to acceptance of application and no formal order of filing of arbitration agreement was necessary for the Court while passing such an order it would be deemed to have taken the agreement on the file."

1. The first and foremost argument raised by the counsel for the Defendant No. 2 is that after cancellation of contract by the Defendant No. 2 there is no question of appointment of any arbitrator as the contract is no longer in existence. The Defendant No. 2 has also attached a decision passed by its Director (Commercial) in which it was held that the plaintiff has committed various breaches. It is further shown in the decision that Show Cause Notice was issued which was not replied by the plaintiff but the plaintiff filed the constitutional petition in this Court and obtained ad-interim stay which was ultimately withdrawn. The agreement was cancelled on 31.7.2010 and performance guarantee was forfeited and on 19.1.2011 the defendant's General Manager (Imports) also issued a circular that the plaintiff has been black listed by T.C.P. vide decision dated 13.1.2011 issued by the competent authority on account of their default and failure to perform the contract/award. It was further stated in the circular that the plaintiff will not be eligible in any tender floated by T.C.P. or to engage by T.C.P. in any business activity in future. Learned counsel for the defendant did not argue that there was no dispute between the parties but his main focus was on that no agreement is in force, so in such circumstances no arbitrator can be appointed. I do not find any strength nor persuaded with the arguments that in case a contract is terminated the arbitration clause does not survive. The termination/cancellation may occur due to breach in the contractual obligations by any of the parties to the contract which in fact leads towards a dispute and in order to resolve the dispute between the parties and even for the determination of their rights and liabilities and even a wrongful termination can also be made the subject matter of arbitration proceedings otherwise, the whole purpose and Scheme of incorporating an arbitration clause in the contract will become redundant and superfluous and it would be very easy for any party to terminate and or frustrate the contract out rightly in order to avoid arbitration proceedings and claims if any. The cancellation of contract or invoking arbitration proceedings both are two distinct situations, the termination clause cannot be given overriding effect on arbitration proceedings or the provision made for arbitration in the contract.

2. Learned counsel for the plaintiff relied upon the different precedents and what is deducible therefrom is that the arbitration clause survives for the purpose of measuring the claims arising out of breach and determine the mode of their settlement. The contract might have come to end by reason of frustration/rescission or breach of condition but the arbitration clause survives. If a dispute between the parties is covered by arbitration clause and even if the original contract stood novated or modified this would not lead to the abrogation of arbitration clause. In the case of Hub Power Company (supra) the hon'ble Supreme Court quoted the following excerpt from Russell on Arbitration:--

"The doctrine of separability greatly increases the scope of all arbitration clauses. The doctrine of separability establishes that an arbitration agreement has a separate life from the contract for which it provides the means of resolving disputes. This enables the arbitration agreement to survive breach of the contract of which it is a clause. The validity of the main contract can then be determined by using the arbitration clause. Earlier case law showed that the public policy requirement that a contract which is void should not be enforced was superseded by the overriding need to give effect to the parties' wishes to have their disputes resolved by arbitration. The parties were presumed to have wanted their dispute resolved by one tribunal, arbitration, and, in the light of that presumption of one-stop adjudication', the Court strove to give effect to the arbitration agreement and to allow the arbitration tribunal to investigate whether the contract ever existed."

In the judgment of Hub Power Company Ltd., the hon'ble Supreme Court also referred to the case of Hitachi v. Rupali (PLD 1998 SCMR 1618), in which it was held that while the law of an arbitration agreement usually followed the proper law of the main contract, an arbitration agreement was separable from the main contract between the parties and arbitration agreement may have a different law which may be provided within the arbitration agreement.

1. I would also like to quote the following excerpt from Corpus Juris Secundum, Volume-6, 2004, Chapter Arbitration (Page-76-77):--

Separability of arbitration provision

"Agreements for arbitration contained in a contract are treated as separable parts of the contract, so that the illegality of another part of the contract does not nullify an agreement to arbitrate. An arbitration clause itself may be severable, so that the presence of an invalid provision in an arbitration clause does not invalidate the entire clause, especially where the arbitration clause contains a severability provision. The parties intent is the primary factor used to determine whether an invalid provision of an arbitration agreement may be severed and replaced with a more equitable one, so that the remainder of the arbitration clause remains viable. A provision may also be considered severable from an otherwise valid arbitration agreement, if there is no indication that the provision at issue was drafted in bad faith. However, an arbitration agreement is unenforceable if unconscionability permeates the entire agreement, such as due to the arbitration provision's lack of mutuality, so that the unconscionable taint could not be removed from it. Courts have the obligation to decide whether a party's arbitrable and nonarbitrable claims are severable, and should apply a case by case test to determine the severability of claims."

1. Learned counsel for the defendant relied upon various case laws. In the case of Manzoor Construction Co. Ltd. the learned Court only discussed the condition in which the arbitrator can be appointed under Section 20 of the Arbitration Act and in my view all conditions are fulfilled in this case. In the case of Khardah Company Ltd. the controversy was altogether different in which the Court held that a dispute that the contract of which arbitration clause forms an integral part is illegal is not one which the arbitrators are competent to decide. In the present case the validity of the agreement is not under challenge. The case of Das Consultants (Pvt.) Ltd. is neither here nor there but the only issue was that the arbitration agreement should be in writing, while in the case of Muhammad Azam Fazil, Friends Trading Company and Malik Muhammad Mumtaz (supra), the only point decided was that for appointment of arbitrator under Section 20, the existence of substantial dispute is condition precedent. In the case in hand the contract was entered into for the supply of sugar which could not be shipped by the plaintiff and there are various allegations and counter allegations due to which the shipment could not be materialized and the contract was frustrated without realizing or deciding the core issue between the parties, that which party became the instrumental for frustration of contract which could only be adjudicated through the arbitration. Once the arbitrator is appointed through the mechanism and procedure proposed in the agreement itself, it is for the arbitrator to fix the responsibility that who have committed the breach. The purpose of reproducing force majeure clause is to show that the parties were fully cognizant to the force of circumstances and in the same perspective the plaintiff has raised the plea that the initial delay in the shipment was occurred due to heavy rainfall which was beyond their control. All these aspects are required to be considered by the arbitrator and naturally if the breach on the part of plaintiff is proved beyond any shadow of doubt then the action of forfeiting the performance guarantee would be lawful and justified. In the last case of Lahore Stock Exchange (supra), relied upon by the counsel for the defendant, the leave was granted to consider whether there was a valid agreement or not facts of which are distinguishable here.

2. Learned counsel for the defendant also raised objection that the plaintiff is based in UAE and their local agent is not authorized to file present suit. The proper resolution is already attached with the plaint in which the local agent M/s.M.M.Ellahi Traders through their General Manager Dr.Ajmal Jawed is authorized to file the case in the Courts of Pakistan. Even in the decision passed by defendant on 13.1.2011 the plaintiff had been arrayed through its local agent M/s. M.M. Ellahi Traders. So the arguments of learned counsel in this regard is misconceived.

3. Learned counsel then referred to clause (a) of Section 2 of the Arbitration Act, which is a definition of arbitration agreement but it has no relevancy or germane. Here an agreement in writing in which arbitration clause was agreed to submit present or future differences is an admitted fact. Learned counsel also referred to clause (h) of Section 2 of Contract Act, which has again no relevancy as it only provides that an agreement means an agreement enforceable by law is contract. There is no dispute between the parties that the contract entered into between the parties was not enforceable by law. He then referred to Section 230 of the Contract Act which provides that in the absence of any contract to that effect, an agent cannot personally enforce the contract entered into by him on behalf of its principal nor he is personally bound by them. Again the argument of the learned counsel is neither here nor there. The present suit has not been filed by the agent on behalf of the principal, on the contrary, the principal has authorized the agent by its resolution to institute legal proceedings against the defendants.

4. As a result of above discussion, I feel no hesitation in my mind that despite cancellation / termination of contract the provision of arbitration survives and agreement for arbitration contained in the contract is a separable part of contract, therefore, it would be fair and square to appoint arbitrator in this case. Consequently, Justice (retired) Mr. Ali Aslam Jafferi is appointed Arbitrator to resolve and arbitrate the dispute between the plaintiff and Defendant No. 2. The suit is disposed of accordingly.

(R.A.) Order accordingly

PLJ 2013 Karachi 184 (DB) [Bench at Sukkur]

Present: Ahmed Ali M. Shaikh & Salahuddin Panhwar, JJ.

ZUHAIB HASSAN QAZI--Petitioner

versus

PROVINCE OF SINDH through Chief Secretary Government of Sindh at Karachi and 213 others--Respondents

Const. P. No. D-803 of 2011, decided on 14.3.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Appointment as excise and taxation inspector--Qualified written test and viva-voce--Name was placed at merit list by competent selection authority--Appointment on ad hoc basis and appointment of candidate who was at S. No. 59--Subsequent events--Scope of pleading--During pendency of instant petition were subsequent events and such plea was beyond scope of pleading, therefore, benefit of subsequent events and such plea was beyond scope of pleading, therefore, benefit of subsequent events cannot be extended to petitioner. [P. 188] A

Sindh Servant (Appointment, Promotion and Transfer) Rules, 1974--

----R. 19--Public interest--Deviation to normal course had been allowed only when such action was justified to be in interest of welfare of public-at-large. [P. 189] B

Constitution of Pakistan, 1973--

----Art. 18--Pending nomination of candidate by commission--Right of profession--It was not a vested or discretionary right of C.M. (appointing authority) to appoint person in name of such discretion in some colourful manner, because it might result in causing a prejudice to Art. 18 of Constitution which guarantee every citizen a right of profession. [P. 190] C

Ad-hoc Appointment--

----Distinction between regular appointments and ad-hoc appointment--Word ad-hoc is purely relating to any appointment for specific purpose with specific period, it cannot be assumed that ad-hoc appointments will be subjected to conformity without adopting proper procedure provided under statute as there is distinction between regular appointments and temporary/adhoc appointment, because ad-hoc appointments are only to fill vacancy as a stoppage arrangement in public interest and creates no legal right in such appointees to claim an exception for regularization without undergoing process and procedure--If things are legally required to be done in particular then same had to be done in that manner because authorities cannot be allowed to deviate from normal course and procedure for reason that procedure and course is always framed to ensure a sense of equality among equals. [P. 190] D & E

Ad-hoc appointment--

----Public interest--Discretion right of Chief Minister--Validity--Appointment made by C.M. on adhoc basis was not challenged by petitioner, therefore, Court felt is proper to refrain to give any findings in that regard--Petitioner was entitled for his appointment to post for subsequent fallen posts for he was found eligible and was declared successful with an assurance to be considered on falling of vacancies such right would be a denial to very guarantee provided by Art. 18 of Constitution. [P. 191] F & G

Mr. Mukesh Kumar G Karara, Advocate for Petitioner.

Mr. A.M. Mubeen Khan, Advocate for Respondent Nos. 3 to 7 alongwith Respondent No. 6.

Mr. Nizamuddin Baloch, Advocate for Respondents.

Mr. Liaquat Ali Shar, Addl.A.G. for Respondent Nos. 1 and 2.

Date of hearing: 13.2.2013.

Order

Salahuddin Panhwar, J.--Petitioner seeks directions for appointment as Excise & Taxation Inspector, having been selected on merits from District Naushahro Feroze.

1. Succinctly, the facts as set out in the instant petition, are that pursuant to the advertisement dated 13.7.2008 the petitioner applied for the post of Excise & Taxation Inspector; qualified written test and viva-voce examination and was declared as successful candidate, thus his name was placed at S.No. 60 of the merit list; in spite of that he was not appointed on required post; but surprisingly 20 persons from Sukkur Division, who had never appeared in the written test and interview, were appointed.

2. Respondent Nos. 3 to 7 filed their comments, wherein, they stated that the petitioner had appeared for viva-voce test but was not selected as he failed to qualify the same.

3. The petitioner filed rejoinder, wherein, he refuted the plea of respondents and disclosed that he was declared successful candidate, his name was placed at S.No. 60 of the merit list and in support of his contention he appended merit list.

4. In that eventuality, Respondent No. 3 also filed rejoinder, wherein, while, admitting the claim of the petitioner contended that "it was decided by the Departmental Selection Committee that as and when the post of Excise & Taxation Inspector will be available vacant these awaiting candidates in the list, will be considered for appointment to the post of Excise & Taxation Inspector". It was further contended that, however; at present ratio of direct appointment is already filled, therefore no fresh appointment for the post of Excise & Taxation Inspector can be made Respondent No. 6 filed affidavit, wherein, it is disclosed that 15 candidates were appointed on adhoc basis, as those 15 posts were not vacant but were created by the Chief Minister Sindh as intimated by administration of department i.e. Excise & Taxation on telephone.

5. Learned counsel for the petitioner has inter alia contended that the petitioner qualified written test and viva-voce examination; his name was placed at S.No. 60 of the merit list; competent selection authority approved his name, but the respondents, while, bypassing merit list appointed outsider's, who, had not appeared in the examination. During the pendency of instant petition 15 other persons, with the order of Chief Minister; were appointed on adhoc basis, who were subsequently regularized and one another candidate, who was son of Deputy Director Excise & Taxation Department, his name was available at S.No. 59 of the merit list has also been appointed, therefore respondents have negated the basic principle of law and their actions have violated the fundamental right of the petitioner. He has further submitted that his claim is not disputed, plea of nonavailability of vacant seat is unjustified as many persons, who did not appear in selection process have been appointed by the authorities in sheer violation of rules and regulation. He has relied upon Government of NWFP through Secretary Education Department, Peshawar and others v. Qasim Shah (2009 PLC (C.S) 608), Sono v. Province of Sindh through Chief Secretary Government of Sindh (2012 PLC (C.S) 249) and Government of Sindh through Secretary, Home Department and others v. Abdul Jabbar and others (2004 SCMR 639).

6. On the contrary, learned counsel for Respondent Nos. 3 to 7 has argued that it is not disputed that the petitioner's name appears at S.No. 60 of the merit list, but vacant seats were filled according to merit list though, petitioner qualified examination and his name is available in awaiting merit list but vacant seats were limited, thus petitioner cannot claim his legal right for such post. He has further contended that 15 persons were appointed by the direction of the Chief Minister, on Adhoc basis, as such posts were created by the Worthy Chief Minister; therefore department has not committed any illegality. Petitioner cannot take benefit of subsequent events i.e. appointment on adhoc basis and appointment of one person, was placed at S.No. 59 of the merit list; as such plea, is beyond his pleading. He has relied upon citations: Binyameen and 3 others v. Chaudhry Hakim and another (1996 SCMR 336), Muhammad Din v. Abdul Ghani and another (2012 SCMR 1004), Petitioner v. Bahauddin Zakariya University, etc. (NLR 1998 Service 60) and Sono v. Province of Sindh through Chief Secretary Government of Sindh and 228 others (2012 PLC (C.S) 249).

7. Learned counsel for private respondents has contended that the respondents have no concern with the case and their appointments were considered in case of Sono v. Province of Sindh through Chief Secretary Government of Sindh and 228 others (2012 PLC (C.S) 249) and the petitioner has not challenged their appointment; therefore any decision may not affect upon their right and their case is covered under the doctrine of Res-judicata.

8. Learned Addl.A.G has contended that according to rules, Chief Minister is competent to create posts; thereby appointment of 15 persons, by creating post in said department is not an illegal act.

9. Heard the learned counsel and perused the record.

10. It is a matter of record that Respondent No. 3, Secretary Government of Sindh (Excise & Taxation Department) has clearly mentioned that the petitioner qualified for the post of Excise & Taxation Inspector by the Department Selection Committee and it was decided by Department Selection Committee that as and when the post of Excise & Taxation Inspector will be available vacant, then awaiting in the merit list will be considered for the appointment. Thus there is no question regarding the eligibility of the petitioner in respect of said post, therefore, plea of respondent's counsel that only available 24 seats were vacant; and filled-up from merit list; therefore, petitioner is not entitled; has no force under the law. Moreover, it is pertinent to say that the stance taken by the counsel is completely against the version of his client Respondent No. 03; pleaded in the pleadings; therefore, under the law same cannot be considered.

11. As regards to the contentions of learned counsel for the Respondent Nos. 5 to 7 that the petitioner is not entitled for the appointment on the ground of latches and Limitation Act and to strengthen such plea the reliance has been placed upon the case of Muhammad Din (supra) in which it is held:

"If a Court comes to a conclusion that the petition was barred by latches, it is not required that it should also decide the issue, raised in the petition on merits".

There is no cavil on above proposition of law, as held by Honourable Supreme Court. However, we need to add here that before insisting upon applicability of any principle of law or settled proposition of law, one has to establish that the facts and circumstances of his case are such, which have made such principle of law or settled proposition of law applicable to his case. The facts and circumstances of instant case are entirely different as the petitioner passed his examination in the year 2009 subsequently appeared in viva-voce thereafter he was declared as successful candidate and was approaching to the concerned authorities, thereafter filed instant petition in 2011, therefore, it cannot be said that this petition is barred by latches. Moreover, we feel it quite proper to reproduce clear stand of the Respondent No. 3, maintained in his rejoinder, which is as follows:--

"it was decided by the Departmental Selection Committee that as and when the post of Excise & Taxation Inspector will be available vacant these awaiting candidates in the list, will be considered for appointment to the post of Excise & Taxation Inspector".

Bare reading of the above statement makes two things quite clear and obvious that the Departmental Selection Committee not only acknowledged the merit of the successful candidate (s) but also undertook to consider their case for appointment to the said post as and when same falls vacant. Thus it can safely be inferred that right of petitioner continued and continuing when posts fell vacant and were filled without considering the petitioner for such post. Thus, we safely hold that case of petitioner is not hit by latches; therefore the above referred precedent is not helpful to the plea of respondents' counsel.

1. As regards to the plea of respondents' counsel that appointments on adhoc basis and the appointment of the candidate, who was at S.No. 59; during the pendency of this petition are subsequent events and such plea is beyond the scope of pleading; therefore, benefit of subsequent vents, cannot be extended to the petitioner. Before adding any thing in this respect we would again refer to the statement of the Respondent No. 3, reproduced hereinabove, that since the authorities themselves had undertaken to consider the case (s) of successful candidates, including petitioner, in future, therefore, "respondents are not legally justified to take such plea or to call such event(s) subsequent one". Even otherwise it is germane to refer the case of Muhammad Rashid and 4 others v. Member Board of Revenue Punjab and 7 others, reported in 2001 MLD 548 in this dictum it is held that:

"It is settled principle of law that this Court has ample jurisdiction to take into consideration the subsequent events"

Thus, "it is suffice to say that in constitutional jurisdiction, subsequent events can be considered for causing substantial justice".

1. Regarding the case of petitioner v. Behaudin Zakria university (supra) relied by counsel for the respondents, it is manifest that in that case the petitioner was at S.No. 5; whereas respondents, who were at serial number 2, 3 and 4, in the merit list did not challenge appointment, therefore, it was held that petitioner was not aggrieved person but in the instant case one candidate at S.No. 59, has been appointed by the respondents; whereas petitioners name is placed at serial number 60; therefore objection regarding locus standi is not sustainable under the law.

2. As regard, to the plea of Additional A.G that Chief Minister was competent to create posts and appointment on adhoc basis; without referring the same to Public Service Commission or authority, is according to law; it would be conducive to refer the relevant Rules of Part-IV of the Sindh Servant (Appointment, Promotion and Transfer) Rules, 1974, Rules, which is as under:--

Rule-19: When the appointing authority considers it to be in the public interest to fill a post falling within the purview of the Commission urgently, it may, pending nomination of a candidate by the Commission, proceed to fill such post on ad-hoc basis for a period not exceeding six months by advertising the same, in accordance with the procedure laid down for initial appoint in Part-III.

Rule-20: Short-term vacancies in the posts falling within the purview of the Commission and vacancies occurring as a result of creation of temporary posts for a period not exceeding six months may be filled by the appointing authority otherwise through the Commission on a purely temporary basis after advertising the vacancy.

Bare perusal of above rules, it is pertinent to say that above rules relates to the short-term arrangement, in exceptional circumstances; for "public interest"; the appointing authority can sidestep procedure, provided in normal course. It is worth to add here that legislatures in their wisdom did not give a free-hand to such an appointing authority to exercise such jurisdiction in a mechanical manner but the limitations whereof have been explained. Needless to add here that every single word in a provision of law or rule carries importance, purpose and some objective within wisdom of the Legislatures. In relevant Rule i.e. 19 the use of phrase public interest has significance which makes it clear that deviation to normal course has been allowed only when such action is justified to be in the interest of welfare of public at large. Besides this, said Rule also brought another limitation to such exercise with use of phrase "pending nomination of a candidate by the Commission". Thus it becomes obvious that it is not a vested or discretionary right of the Chief Minister (appointing authority) to appoint person(s) in name of such discretion in some colourful manner, because it may result in causing a prejudice to the Article-18 of the constitution, which guarantees every citizen a right of profession. We would like to reproduce the operative part of the judgment of Honourable Supreme Court of Pakistan, reported in 1996 SCMR 1349 which reads as under:

"While inquiring into various complaints of violation of Fundamental Human Rights, it has been found that the Federal Government, Provincial government, Statutory Bodies and the Public authorities have been making initial recruitments both ad-hoc and regular, to posts and offices without publicly properly advertising the vacancies and at times by converting ad-hoc appointments into regular appointments. This practice is prima facie violative of Fundamental Rights (Article 18 of the Constitution) guaranteeing to every citizen freedom of profession".

1. It is significance to add here that the word ad-hoc is purely relating to any appointment for specific purpose with specific period, it cannot be assumed that ad-hoc appointments will be subjected to conformity, without adopting proper procedure provided under statute as there is a distinction between regular appointments and the temporary/ad-hoc appointment; because the temporary / ad-hoc appointments are only to fill a vacancy as a stopgap arrangement in the public interest and creates no legal right in such appointees to claim an exception for regularization without undergoing the process and procedure, so required to be undertaken by an individual for a regular appointment. There can no denial to the admitted position that even if there had been some urgency which could have justified, to resorting Rule 19, even then successful candidates, per waiting list, should have been considered as was assured by Selection Committee. We can safely say that if things are legally required to be done in a particular then the same have to be done in that manner; because the authorities cannot be allowed to deviate from normal course and procedure, for the reason that the procedure and course is always framed to ensure a sense of equality among the equals.

2. It is germane to add here that since recruitment in a department is always subject to certain limitations, including age factor therefore, the authority, within its jurisdiction, can disagree with recommendation of Selection Committee but such disagreement should not only be reasonable but such authority should also keep in view before insisting for initiation of fresh process for recruitment that a person qualifying requirement; may fail on technical reason, in particular age factor, after the lapse of some period, which too without any fault on his part, since there can be no denial to the fact that it is not only the legal obligation and duty of the Federal Government, Provincial government, Statutory Bodies and the Public authorities to ensure job opportunities within limitations but also to ensure that recruitment is made in such a manner and fashion that not a single individual could come and allege any discrimination or colourful deviation at the cost of guaranteed right of an individual, more particularly, when recruitment is made on the basis of skills/qualification and not on the basis of colour, caste, creed and status. If not so, it would result in taking away the very concept of Article 25 of the Constitution which insists that Law should be equal and equally administered among equals according to the guarantees enshrined by our constitution. Whenever legislation invests discretion in an authority, it also creates an undeniable moral and legal duty upon such authority that it should exercise the same in a judicious, transparent, impartial and non-discriminatory manner. The reference can well be made to case law, reported as The Citizens Foundation and another v. Director, SESSI and others (2010 SCMR 1659). However, since the appointment made by the Chief Minister on ad-hoc basis is not challenged by the petitioner; therefore, we feel it proper to refrain ourselves to give any findings in that regard.

3. It is pertinent to mention here that in identical circumstances; related to same department, candidates, who, in pursuant to the advertisement made in the year 2007, applied for the post of excise inspector; declared successful candidate but were not recruited; filed constitutional petition Sono and others v. Government of Sindh and others reported in 2012 PLC (C.S) 249, same was allowed, relevant paragraph number 24 of judgment, is as under:--

"24. Result of the above discussion is that Constitutional Petitions Nos. D-150 of 2008, 584 of 2009, 1063 of 2009, 117 of 2010, 339 of 2010 and 554 of 2011 are allowed and Respondents Nos. 1 and 3 are directed to issue appointment letters to the, persons selected for recruitment through Departmental Selection Committee in respect to advertisement of 2007 within a period of 30 days. Following the principle laid downs by Honourable Supreme Court in the case of Hameed Akhtar Niazi v. Secretary, Establishment Division (1996 SCMR 1185) Respondents Nos. 1 and 3 are directed to give the same treatment to the other persons selected through the process consequent upon 2007 advertisement without compelling them to initiate a spate of litigation".

1. Since the discussion, made above, has made us of the clear view that petitioner was entitled for his appointment to the post for subsequently fallen posts for he was found eligible and was so declared successful with an assurance to be considered on falling of vacancies, therefore, keeping the petitioner out of his such right would be a denial to the very guarantee, provided by Article 18 of the Constitution, to the petitioner, Consequently, respondents are hereby directed to issue appointment order in favour petitioner, within two months, under compliance report.

(R.A.) Petition allowed

PLJ 2013 Karachi 192

Present: Muhammad Ali Mazhar, J.

M/s. NIB BANK LTD., KARACHI--Decree Holder

versus

M/s. APOLLO TEXTILE MILLS LTD. KARACHI & 2 others--Judgment Debtors

Execution Application No. 84 of 2011 in Suit No. B-59 of 2008 and CMA Nos. 376 and 377 of 2012 decided on 2.4.2013.

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----S. 19--Civil Procedure Code, (V of 1908), O. XXI, Rr. 65 66 & 85--Once the provision of Order 21 CPC are opted and invoked then there is no question or lawful justification to depart or decamp from the express provision of CPC relating to the auction proceedings, and issuance of public notice of sale through newspapers. [P. 206] A

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

----O. XXI, Rr. 64 & 65--Executing decree--Any Court executing the decree may order that any property attached by it as may seem necessary to satisfy the decree shall be sold and proceeds of sale shall be paid to the party entitled under the decree--While Rule 65 provides that every sale in execution of decree shall be conducted by an officer of the Court or by such other persons as Court may appoint shall be made by public auction in the manner prescribed. [P. 207] B

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

----O. XXI, Rr. 84 & 85--After proclamation of sale and property auction, the onward procedure is provided under Rule 84 which envisages that on every sale of property the person declared to be purchaser shall pay immediately after such declaration a deposit of 25% and the amount of his purchase money to the person conducting the sale and in default of such deposit the property shall be re-sold--While Rule 85 stipulated that full amount of purchase before Court closes on the 15th day from the sale of property. [P. 208] C

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

----O. XXI, R. 66--Proclamation of sale--Under Order 21 Rule 66 for the public auction in execution of decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court. [P. 208] D

Sindh Chief Court Rules--

----R. 339--Whenever the sale of land or of a house or houses or immoveable property is ordered, the Nazir shall with the permission of the Court advertise such sale in a newspaper as may be ordered by the Registrar (O.S.). [P. 208] E

Sindh Chief Court Rules--

----Rr. 689 & 718--Official Assignee has no powers to draw up a proclamation or even so specific power is mentioned under which he can auction the property but in view High Court can appoint him for auction and sale of property subject to rules. [P. 208] F

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----S. 19--Once the Executing Court has chosen the mode provided in CPC, then it cannot be permitted to divert that mode at subsequent stage without conscious application of mind--Proceedings once commenced under such procedure would be finalized thereunder--No pick and choose authority would be available in law to Court in law. [P. 208] G

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

----O. XXI, R. 66--Provisions of Order XXI, Rule (66) CPC are mandatory in nature and without fulfilling basic requirements, if auction is taken place it would not be consider to have been lawfully made--Absence of the mandatory notice to the judgment-debtors under Order XXI, Rule 66 CPC is by itself, sufficient for setting aside the Court auction--Before calling upon Court Auctioneer to conduct auction, duty of Executing Court was to have satisfied itself that mandatory notice had been issued to judgment-debtors--Such contravention of provisions of Order XXI, Rule 66 CPC by Executing Court had vitiated entire proceedings including sale, which nullity in eyes of law--The word `cause' appearing in Rule 66, Order XXI CPC requires a specific order of Court, which produces the effect of drawing the proclamation envisaging the terms and conditions of sale--Thus, includes the settlement of conditions by Court itself or to approve those filed by parties after hearing them--It is duty of the Court to cause to be made a proclamation of sale--Such proclamation must be drawn after notice to the judgment debtor. [P. 209] H

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

----O. XXI, Rr. 66, 84 & 85--Intention of law was to fix reserve price in proclamation to safeguard rights of judgment debtor--Court auctioneer, without any authority, rather against the provision of Order XXI, Rule 85, CPC fixed 30 days' time for the payment of the balance consideration, which otherwise was required to be paid in terms of Order XXI Rule 85, CPC within a period of 15 days--No reserve price of the property was settled--Where the property was sold in complete disregard of rules and in questionable circumstances, even suo motu action for setting aside the sale would be justified--Proclamation should include the estimate if any, given by either judgment debtor or decree-holder or both the parties. [P. 209] I

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

----O. XXI, Rr 66--It is mandatory that the value so determined by the parties, i.e. the decree holder and judgment debtor, is to be stated in the proclamation, as the word "shall" has been stated therein--Rationale behind stating the value in the proclamation is to ensure full disclosure to the prospective bidders--No reserve price was fixed in the proclamation by the executing Court, auction proceedings were illegal and were liable to be set aside--Such omission had rendered the proclamation to be illegal. [P. 209] J

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

----O. XXI, Rr 66--An auction purchaser shall deposit 25% of the auction amount immediately on being declared as highest bidder--While requirement of Rule 85 of Order 21, CPC that full amount of purchase money must be paid by the purchaser within 15 days from the date of sale, is mandatory--Non-payment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity. [P. 210] K

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

----O. XXI, R. 66--If proclamation of sale has not drawn-up in accordance with Rules 66, 84 and 85 of Order 21 CPC which vitiated the auction proceedings and rendered the proclamation of sale illegal. [P. 211] L

2011 CLD 280, 2003 CLD 1693, PLD 2009 552, PLD 2010 S.C. 993, PLD 1993 Lahore 706, 1994 (1) S.C.C. 131, 2007 YLR 126, 2003 CLD 1318, 2011 CLD 1638, 2000 CLC 863, 2001 CLC 126, 2011 SCMR 1675, AIR 1996 S.C. 2781, AIR 1954 S.C 349, AIR 1926 (Madras) 755, PLD 2010 S.C. 38, 2012 CLC 498, ref.

M/s. Yawar Faruqui & Irfan Memon, Advocates for Decree Holder Bank.

M/s. Mian Raza Rabbani, Saalim Salam Ansari and Zeeshan Abdullah, Advocates for the Judgment Debtor Nos. 1 and 2.

Mr. Naveed-ul-Haq, Advocate for Bank of Punjab.

Mr. S. Nauman Zahid Ali, Advocate for Standard Chartered Bank.

Date of hearing: 14.12.2012.

Order

This order will dispose of two Misc. Applications filed by the Judgment Debtor Nos. 1 and 2 under Order XXI, Rules 65, 66 & 85, CPC read with Section 151, CPC for setting aside the auction notice published on 3.5.2012 and another application moved by the same J.Ds under Order XXXIX, Rule 1 and 2, CPC for the suspension of auction proceedings.

1. The brief facts are that the Decree Holder filed a suit against the J.Ds for recovery under Section 9 of Financial Institutions (Recovery of Finances) Ordinance, 2001. The suit was decreed vide judgment dated 30.7.2011. The plaintiff has filed this execution application which was placed for orders before learned Single Judge of this Court on 1.2.2012. Since the execution was found to have been filed within one year of passing decree, therefore, learned Single Judge dispensed with the notice and allowed the execution application as prayed. Learned Official Assignee of this Court for execution of the decree initiated proceedings for sale/auction of land, plant and machinery of Judgment Debtor No. 1 and issued public notices in the daily Jang Karachi & Lahore, Nawa-e-Waqt Lahore and Dawn Karachi on 20.6.2012 with the following terms and conditions:--

Land with Building & Machinery of Apollo Textile Mills Ltd. at Muzaffargarh for Sale

"Separate offers are invited `As is where is basis' for the sale of following properties, for satisfaction of decretal amount of Rs.319,046,577/- plus cost of fund thereon, being in Execution No. 84 of 2011 (NIB Bank Limited Versus M/s.Apollo Textile Mills Limited and others)

(i) Land bearing Khata No. 05, Khatoni Nos. 41 to 42, admeasuring 196 kanals, 09 Marlas or thereabout, situated at Jasilwahin, Jhang Road, Tehsil and District Muzaffargarh Punjab along with building constructed thereon.

(ii) Hypothecated machinery and equipment details as under:

S.No. List of Machinery & Equipment Quantity

1.................................

2.................................

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

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

20.................................

CONDITIONS

(i) Separate offers be accompanied with 10% of the offered amount in the shape of Pay Order in favour of "Official Assignee of Karachi" and copy of CNIC to reach the undersigned on 23.07.2012 at 1.30 P.M. which will be received (opened) immediately upon receipt in presence of the parties who wish to be present.

(ii) The undersigned may cancel the offers without assigning any reason or call bidders for negotiation and improvement of offers.

(iii) All offers are subject to confirmation of High Court of Sindh, Karachi.

(iv) Balance of the purchase price shall be deposited within 15 days from the date of acceptance of offer, failing which earnest money shall stand forfeited.

(v) The highest/lowest bidder cannot withdraw his offer before acceptance of bid.

(vi) All dues, taxes, and outstanding on the properties shall be paid by the purchaser.

(vii) Inspection of properties on 10.7.2012 from 10.00 A.M. to 2.30 P.M. Further information may be obtained from the undersigned. Telephone No. 021-99203129.

OFFICIAL ASSIGNEE OF KARACHI

1ST FLOOR, OLD ANNEXE BUILDING HIGH COURT OF SINDH, KARACHI"

1. The Judgment Debtor Nos. 1 and 2 have impugned the public notice on the ground that the terms and conditions of auction issued by the Official Assignee are contrary and in violation of various Rules of Order XXI, CPC. During pendency of this application it was further prayed that the auction proceedings which were likely to be held on 23.7.2012 be stayed.

2. Mian Raza Rabbani, learned counsel for Judgment Debtor Nos. 1 and 2 argued that though the suit was decreed against J.Ds but Special H.C.A. No. 144/2011 is pending adjudication in this Court. It was further averred that the J.Ds have also filed the Suit No. B-77 of 2008 which is pending in this Court at evidence stage. Learned counsel argued that vide order dated 1.2.2012 this Court allowed the execution application without issuing any notice to the J.Ds and as a consequence thereof the attachment of sale of J.Ds properties were also ordered to be auctioned through Official Assignee. Learned counsel argued that while drawing up the proclamation of sale/auction and the proceedings ancillary and incidental thereto, the Official Assignee ignored Rules 64, 65, 66, 84 and 85 of Order XXI, CPC which are mandatory in nature and the same should have been complied with and its non-compliance has vitiated the entire auction notice and proceedings. The Official Assignee has committed material irregularity in drawing up the proclamation of sale and published the same in the newspapers. It was further contended that the powers and functions of Official Assignee described in Sindh Chief Court Rules (O.S) does not confer any power to Official Assignee to draw up the proclamation of sale. He further argued that mandatory notice was not issued to the J.Ds for settling the terms and drawing up the proclamation of sale under Rule 66 of Order XXI, CPC. No reserve price was mentioned in the proclamation which was also required to be mentioned. No fresh valuation of the factory, machinery and land under auction was conducted. Learned counsel further argued that prior permission as required under law for advertising the proclamation of sale in the newspapers was not obtained from this Court as envisaged under Rule 67 (2) of Order XXI, CPC read with Rule 339 of Sindh Chief Court Rules (O.S), Learned counsel also attacked proclamation on the ground that Rule 84 of Order XXI, CPC clearly stipulates 25% of the payment shall be made at the time when a person is declared to be purchaser, while remaining 75% amount will be deposited by the buyer in Court within 15 days from the sale/auction, while according to Official Assignee the terms and conditions mentioned in clause 4 of the proclamation the time starts to run from the date of acceptance of sale, which is contrary to the mandatory provision. Learned counsel further argued that besides various other anomalies in the terms and conditions mentioned in the proclamation of sale, it also did not disclose the encumbrances of other financial institutions on the attached properties which is required to be disclosed under Rule 66(2)(c) of Order XXI, CPC. In this regard learned counsel very rightly pointed out that in the very same execution application two interveners i.e. Standard Chartered Bank Ltd. and Bank of Punjab Ltd. filed their two separate applications in which they prayed that the sale proceeds of JDs assets should be distributed amongst the financial institutions on pro rata basis in accordance with their mortgaged and current charges. These two applications i.e. CMA Nos. 386 and 400 of 2012 were fixed for hearing on 14.12.2012 when the learned counsel for the Decree Holder clearly stated that if these financial institutions have any claim against J.Ds they may approach to the Official Assignee for further proceedings and in view of this statement both the applications were disposed of.

3. It was further averred that the Sindh Chief Court Rules (O.S) defines powers and functions of Nazir, Official Liquidator and Official Assignee and the Court may call them to conduct the auction but not to draw up the proclamation of sale, which can only be drawn up by the Court. Under Rule 66 of Order XXI, CPC the proclamation is required to be drawn up after notice to the Decree Holder and Judgment Debtors and even under sub-rule (4) of Rule 66 of Order XXI the Court for the purposes of ascertaining the matter to be specified in the proclamation of sale may summon any person. According to learned counsel the logic entrusting functions of drawing up proclamation by the Court is that the proclamation is the essential and the basic documents on which the structure of the subsequent auction/sale is to be built upon. Learned counsel referred to Section 4 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 which provides that the provisions of the Ordinance shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. He further referred to Section 19 (2) of the Ordinance 2001 which provides that decree of banking Court shall be executed in accordance with C.P.C or in such manner as Banking Court may at the request of Decree Holder consider appropriate including recovery as arrears of land revenue. In this regard he argued that though Banking Court may exercise its discretion but once the law/procedure has been so chosen by the Court then it is bound to follow it and cannot divert from one law to another in the same proceedings and since in this case the Court followed the procedure provided in, CPC and also issued proclamation of sale in the same manner then no departure can be taken place and the basic and mandatory provisions of law while issuing proclamation should have been followed as provided under various Rules of Order XXI, CPC. In support of his arguments learned counsel referred to following case law:

(1) 2011 CLD 280 (Muhammad Amin alias Jaloo v. Judge Banking Court and others). Plea raised by judgment-debtor was that valuable property was auctioned without fixing any reserve price by Executing Court. Validity. Provisions of Order XXI, Rule 66, CPC were mandatory in nature and without fulfilling basic requirements, if some auction had taken place that would not be considered to have been lawfully made. Intention of law was to fix reserve price in proclamation to safeguard rights of judgment debtor. Order passed by executing Court was set-aside and auction proceedings were declared illegal and without lawful authority.

(2) 2003 CLD 1693 (Muhammad Hassan v. M/s. Muslim Commercial Bank Ltd. & others). The provisions of Rule 66, Order XXI, CPC are mandatory in nature and without setting and causing a proclamation of intended sale in terms of said Rule by the Court itself, no sale shall be considered to have been lawfully made. The word `cause' appearing in Rule 66, Order XXI, CPC requires a specific order of Court, which produces the effect of drawing the proclamation envisaging the terms and conditions of sale. Thus, includes the settlement of conditions etc. by Court itself or to approve those filed by parties after hearing them.

(3) PLD 2009 552 (Khursheed Begum & others v. Inam-ur-Rehman Khan & others). Court auctioneer, without any authority, rather against the provision of Order XXI, Rule 85, CPC of his own had fixed 30 days' time for the payment of the balance consideration, which otherwise was required to be paid in terms of Order XXI Rule 85, CPC within a period of 15 days and Court had overlooked the same without any logical reason. Sale was set aside on the ground of material irregularity and fraud in this regard. Role of the Court auctioneer had been highlighted, which was not above board. Court auctioneer was held to be bound to return the entire fee which he had received, within a period of one month.

(4) PLD 2010 S.C. 993 (Muhammad Attique v. Jami Limited & others). Executing Court, under Section 19(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001, has to choose mode of execution in accordance with the provisions of, CPC or any other law for the time being in force or in such manner as the Banking Court may at the request of decree holder consider appropriate. Once the Executing Court has chosen the mode provided in, CPC, then it cannot be permitted to divert that mode at subsequent stage without conscious application of mind.

(5) PLD 1993 Lahore 706 [Brig, (rtd.) Mazhar-ul-Haq & another v. Muslim Commercial Bank Ltd., Islamabad]. Under Order XXI Rule 66, CPC, it was duty of the Court to cause to be made a proclamation of sale. Such proclamation had to be drawn after notice to the judgment debtor. Further, the proclamation should include everything considered a material by the Court, to enable a purchaser to know the nature and value of the property.

(6) 1994 (1) S.C.C 131 (Desh Bandhu Gupta v. N.I. Anand & Rajinder Singh). The proclamation should include the estimate if any, given by either judgment debtor or decree-holder or both the parties, service of notice on judgment debtor under Order XXI Rule 66(2), unless waived by appearance or remained ex parte, is a fundamental step in the procedure of the Court in execution. Judgment debtor should have an opportunity to give his estimate of property. In Gajandhar Prasad v. Babu Bhakta Ratan, Court after noticing the conflict of judicial opinion among the High Courts, held that a review of the authorities as well as the amendments to Rule 66(2)(e) make it abundantly clear that the Court, when stating the estimated value of the property to be sold, must not accept merely the ipse dixit of one side.

(7) 2007 YLR 126 (Mirza Munawar Baig & others v. Bank Alfalah Limited & others). No notice was issued to the judgment-debtors before the terms of sale were drawn up. The absence of the mandatory notice to the judgment-debtors under Order XXI, Rule 66, CPC is by itself, sufficient for allowing this appeal and setting aside the Court auction. If any authority is required for this conclusion, reference may be made to the case titled Muhammad Hassan v. Messrs. Muslim Commercial Bank Ltd. through Branch Manager and 3 others 2003 CLD 1693.

(8) 2003 CLD 1318 (M/s. Ripple Jewelers (Pvt.) Ltd. v. First Woman Bank). Sale by public auction without issuing notices to judgment-debtors. Before calling upon Court Auctioneer to conduct auction, duty, of Executing Court was to have satisfied itself that its order had been implemented and mandatory notice had been issued to judgment-debtors. Such contravention of provisions of Order XXI, Rule 66, CPC by Executing Court had vitiated entire proceedings including sale, which was nullity in eyes of law.

(9) 2011 CLD 1683 (M/s.Spinghar Textile Mills Ltd. & another v. United Bank Ltd. & another). Rule 66 would reveal that it is not mandatory for the Banking Judge to state its own value of the property being auctioned in the proclamation, which is more common referred to as the "reserve price". However, it is mandatory that the value so determined by the parties, i.e. the decree holder and the judgment debtor, is to be stated in the proclamation, as the word "shall" has been stated therein. The rationale behind stating the said value in the proclamation is to ensure full disclosure to the prospective bidders.

(10) 2000 CLC 863 (Mrs.Aziz Fatima & others v. Mrs.Rehana Chughtai & others). Contention by the appellants was that as no reserve price was fixed in the proclamation by the Executing Court, auction proceedings were illegal and were liable to be set aside. Validity. Such omission had rendered the proclamation to be illegal. Even if there was no objection from either side, still it was the duty of the Executing Court to conduct the auction in accordance with law, which had not been done.

(11) 2001 CLC 126 (Mrs.Shahida Saleem & another v. Habib Credit & Exchange Bank Ltd. & others). Neither requisite notice was issued to the judgment-debtor nor the reserve price of the property was settled. Where the property was sold in complete disregard of rules and in questionable circumstances, even suo motu action for setting aside the sale would be justified. High Court directed for re-auction of mortgaged property strictly under the rules.

(12) 2011 SCMR 1675 (Mst.Nadia Malik v. M/s.Makki Chemical Industries (Pvt.) Ltd.). Under Rules 84 and 85 an auction purchaser shall deposit 25% of the auction amount immediately on being declared as highest bidder and the balance amount of 75% shall be deposited within 15 days of the auction. In the present case, the sale was confirmed on 29.04.2002 on which date the appellant had deposited 25% of the auction amount. The default in deposit of the balance amount was violative of the mandatory conditions provided under the proclamation, which language was barrowed from the mandatory provisions of the Order XXI of the, CPC. Failure to deposit the balance amount of 75% of auction money within 15 days by the appellant renders the sale/auction proceedings nullity.

(13) AIR 1996 S.C 2781 (Balram v. Ilam Singh and others). The requirement of Rule 85 of Order XXI that full amount of purchase money must be paid by the purchaser at execution sale within 15 days from the date of sale, is mandatory. Failure to deposit full sale price as per Rule 85 cannot be averted on plea that the shortfall in the deposit was occasioned by a mistake of the Court in the calculation of the amount.

(14) AIR 1954 S.C. 349 (Manilal Mohanlal Shah and others v. Sardar Sayed Ahmed Sayed Mahmad). The provisions of Order XXI Rules 84, 85 and 86 requiring the deposit of 25 per cent of the purchase money immediately, on the person being declared as a purchaser and balance within 15 days of the sale. Nonpayment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity.

(15) AIR 1926 (Madras) 755 (Appu v. Achuta Menon and others). It is for the Court to settle the proclamation of sale and it could not delegate that power to the Commissioner appointed by it. Order XXI Rule 66 directs that when any property is ordered to be sold by public auction in execution of a decree the Court shall cause a proclamation of the intended sale to be made in the language of such Court and that such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale and specify as fairly and accurately as possible the property to be sold and a number of other things. It was further held that if the proclamation was not settled by the Court the sale would be invalid.

(16) PLD 2010 S.C. 38 (Shahid Ali v. Mrs. Aziz Fatima and others). A review of the authorities, cited at the Bar as well as study of the relevant provisions including Rule 66 of Order XXI C.P.C, it is amply clear that in a suit when the situation to sell the property arises, the Court, as a rule, must ask the parties concerned to state before it estimated price of the property which in their opinion is likely to be fetched and although it is not essential for a Court to give its own estimate in the order but in drawing publication, having regard to the express provision of Rule 66 of Order XXI, C.P.C. the Court while passing an order must take into consideration all the material facts, which are necessary for a purchaser to know in forming an opinion regarding valuation of the property.

(17) 2012 CLC 498 (Muhammad Ahmed Sheikh v. J.S. Bank Limited). Cogninance of a matter taken by Court under one procedure. Effect. Proceedings once commenced under such procedure would be finalized thereunder. No pick and choose authority would be available in law to Court in law.

1. Mr.Yawar Farooqui, learned counsel for the Decree Holder argued that both the applications are misconceived. Though judgment debtors have filed appeal in this Court but no stay is operating is against the judgment and decree. So far as the Suit No. B-77 of 2008 is concerned the learned counsel argued that mere pendency of the appeal and above suit has no adverse effect on this execution application. He further argued that at the time of issuance of proclamation of sale all formalities as required to be fulfilled were followed by the Official Assignee. There is no violation of Rules 65, 66 and 85 of Order XXI, CPC. It was further averred that the proclamation is lawful and the notice was also issued by the Official Assignee. It was further contended that the Judgment Debtors in their application have failed to disclose any irregularity or illegality in the proclamation of sale. Learned counsel further argued that since execution application was filed within one year of passing decree, therefore, this Court rightly dispensed with issuance of notice and rightly allowed the application as prayed. Learned counsel further pointed out an order dated 1.6.2012 which shows that an urgent motion was moved with the prayer that CMA No. 299/2012 be fixed in Court. Learned counsel further referred to CMA No. 299/2012 which was moved by the decree holder for attachment and implementation of the Order dated 1.2.2012 be carried out by the Official Assignee. Learned Single Judge of this Court ordered that let this execution application also be placed before Official Assignee for execution proceedings to be carried out in the same manner as earlier done in the other execution. In the supporting affidavit of CMA No. 299/2012 the decree holder stated that this Court already ordered the Official Assignee in the case of Soneri Bank Ltd. to value the assets of the Judgment Debtors, which was carried out by the Official Assignee, therefore, the sale of leased machinery of the decree holder be effected through the office of the Official Assignee to fulfill the decretal amount and remaining decretal amount if any may be recovered from sale consideration of other assets of the judgment debtors which have a pari passu charge. Learned counsel further argued that though the appeal is pending but no decretal amount was deposited in the Court so there is no stay. Learned counsel also referred to Section 19 (2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and argued that in view of this express provision, the decree holder had already availed an option which is clearly reflecting from the order dated 1.6.2012 in which on the request of the decree holder this Court ordered that let this execution be placed before Official Assignee for execution proceedings to be carried out in the same manner as earlier in the other execution application. In support of his arguments he relied upon the following case law:--

(1) 2012 CLC 545 (Feroz Abdul Karim v. Muslim Commercial Bank Ltd.). It is settled position in law that where special provision is applicable, general provision do not apply (see 1993 MLD 1550, 2002 YLR 3712 and PLD 2008 Karachi 25).

(2) 2012 SCMR 669 (Capt. (rtd) Nayyar Islam v. Judge, Accountability Court No. III). It is by now a settled principle of interpretation of statutes that the provisions of special law exclude the application of general law in the context in which the former provision has been enacted.

(3) 1998 PTD 2809 [Commissioner of Income-Tax v. D.P.S.(I) (Pvt.) Ltd.]. When the intention of the legislator is very clear and, when there is no doubt in gathering such an intention by a clear and unambiguous reading of the provisions of law, importing extraneous considerations or giving reasons which were not wholly germane to the points involved is not permissible under the law.

(4) 2012 YLR 805 (Ibrar Hussain v. State). Standard of proofing the case under special law is different, because Special Law is read as a whole while comparing with general law, as Special Law excludes the provisions of general law.

1. Learned Official Assignee has also filed his reply in which he stated that the execution application was allowed by this Court and on 1.6.2012, the execution application was forwarded to him for further proceedings. He issued notice to the Decree Holder and the Judgment Debtors for making compliance of the order of this Court. The letter sent to the Judgment Debtor Nos. 1 to 3 returned unserved with report that they left their addresses two years back. It was further stated in the reply that the Executive Vice President of Decree Holder appeared and submitted draft of sale notice and also requested in writing that the same notice may be published in newspapers without mentioning reserve price hence, Official Assignee invited offer on "as is where is basis" for the sale of mortgaged and hypothecated properties. The Official Assignee further submits in his reply that the Decree Holder and Judgment Debtors may be directed to appear before him for drawing up sale proclamation for its re-advertisement in the newspaper.

2. Heard the arguments. Since the matter directly pertains to the execution of decree and it is also a fact that appeal is pending but no stay order is operating and the objections filed by the judgment debtor through instant application may not be considered objections to the execution application as such, but they have only questioned the auction proceedings initiated in view of public notice issued by the learned Official Assignee, therefore, in order to decide the controversy, it would be most expedient and appropriate to first discuss the applicability and implication of Section 19 of Financial Institutions (Recovery of Finances) Ordinance, 2001, which is related to the execution of decree and sale with or without intervention of the Banking Court. This provision stipulates that upon pronouncement of the judgment and decree the suit shall automatically stand converted into the execution proceedings and sub-section (2) makes it clear that the decree shall be executed in accordance with the provisions of, CPC or other law for the time being in force or in such a manner as the Banking Court may at the request of decree holder consider appropriate including the recovery as arrears of land revenue.

3. There is a distinction between sub-section (2) and sub- section (3) of Section 19. In case of mortgage, pledge or hypothecated property, sub-section (3) authorizes the financial institutions to sell or cause the same to be sold with or without the intervention of the Banking Court either by public auction or by inviting seal tenders and appropriate the proceeds towards total or partial satisfaction of the decree and the decree passed by Banking Court shall constitute and confer sufficient power and authority for the financial institutions to sell or cause the sale of mortgaged, pledged or hypothecated property together with transfer of marketable title and no further order of the Banking Court shall be required for this purpose. It is clear from sub-section (2) of Section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 that execution proceedings before the Banking Court normally commenced under the provisions of, CPC but at the same time, the decree holder has been given a right to request the Banking Court for execution of decree in such a manner as it considers appropriate. While exercising its civil jurisdiction the Banking Court has to follow the procedure laid down in regard to the suits in the, CPC except to the extent any contrary provision is made in the special enactment. Executing Court is well within its right to adopt any mode for execution of decree and it has discretion to execute the decree either in view of, CPC or in any other mode, which the Court may deem fit. On one hand it has the function of executing Court to execute the decree, but on the other hand it is also the duty of Court to protect the rights of judgment debtor which should not be jeopardized. For the execution of decree appropriate price should be fetched through sale of properties and properties of judgment debtor should not be sold at throwaway price.

4. This question is still open to debate as to which option the decree holder has exercised keeping in view the provision of Section 19(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001. There is no specific prayer or request of the decree holder is available on record which may suffice to demonstrate in which manner the decree holder prayed for the execution. Though in paragraph 12 of the execution application the decree holder required the assistance of the Court for attachment and sale of the mortgaged properties of the judgment debtor and the hypothecated properties mentioned in the execution application but there is nothing available on record that any particular mode of assistance was opted other than the procedure mentioned in the, CPC. On 1.2.2012 this Court observed that the execution application has been filed within one year of passing the decree therefore, the notice was dispensed with and the execution application was allowed and the order dated 1.6.2012 shows that on urgent motion the execution application was placed before learned Single Judge and the learned counsel for the decree holder argued that another execution application is pending before the Official Assignee, therefore, this execution application be also placed before the Official Assignee for execution proceeding to be carried out in the same manner as earlier in the other execution. Neither this order reflects in which mode and manner the earlier execution application was being carried out nor it is mentioned that the Official Assignee would execute the decree in any other mode not provided in, CPC nor the counsel for the decree holder argued before the Court to point out that execution application referred to in the order is being proceeded in any other mode than the provisions of, CPC which was allowed by the Court to proceed at the request of decree holder which was considered appropriate. On the contrary, the Official Assignee in his reply stated that he issued notice to the decree holder and the judgment debtor, but the letter sent to the judgment debtor Nos. 1 to 3 was returned unserved. Representative of decree holder appeared and submitted draft of sale notice without mentioning the reserve price. Official Assignee further submitted that the decree holder and judgment debtor may be directed to appear before him for drawing up sale proclamation for its re-advertisement in the newspaper, which shows that he opted the procedure provided in, CPC for auctioning the properties. Once the provision of Order XXI, CPC are opted and invoked then there is no question or lawful justification to depart or decamp from the express provisions of, CPC relating to the auction proceedings, and issuance of public notice of sale through newspapers. One more important aspect which is also relevant to point out that the decree holder in this execution application filed CMA No. 299/2012 for attachment of sale of judgment debtors' properties and in the supporting affidavit he referred to decree of the Suit No. B-59 of 2008. It was further stated that Official Assignee has carried out the valuation of assets of the judgment debtor and it is imperative that the leased machinery of the decree holder be separated and sale may be effected through Official Assignee and remaining decretal amount may be recovered from the sale consideration of other assets of the judgment debtors, which have pari passu charge. In fact this application was disposed of vide order dated 1.6.2012, though it was not fixed for orders on that date. Even this application does not show that the decree holder opted any other procedure or mode or manner of execution except that the property be sold out through Official Assignee. Learned counsel for the judgment debtor invited my attention to various provisions of Order XXI, CPC as well as Sindh Chief Court Rules, which are obviously related to the auction, requirement of public notice of auction, drawing up the proclamation of sale and powers and jurisdiction of Official Assignee.

5. Order XXI Rule 64, CPC provides that any Court executing the decree may order that any property attached by it as may seem necessary to satisfy the decree shall be sold and proceeds of sale shall be paid to the party entitled under the decree. While Rule 65 of the same Order provides that every sale in execution of decree shall be conducted by an officer of the Court or by such other person as the Court may appoint shall be made by public auction in the manner prescribed. Rule 66 of Order XXI on which much emphasis was made by the learned counsel for the judgment debtor pertains to proclamation of sale by public auction, which is reproduced as under:--

"66. Proclamation of sales by public auction.--(1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.

(2) Such proclamation shall be drawn up after notice to the decree holder and the judgment debtor and shall state the time and place of sale, and specify as fairly and accurately as possible.

(a) the property to be sold;

(b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government.

(c) any encumbrance to which the property is liable;

(d) the amount for the recovery of which the sale is ordered; and

(e) every other thing which the Court considers material for a purchaser to know in order to judge the nature and value of the property.

(3) Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation.

(4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto".

After proclamation of sale and property auction, the onward procedure is provided under Rule 84 which envisages that on every sale of property the person declared to be the purchaser shall pay immediately after such declaration a deposit of 25% and the amount of his purchase money to the person conducting the sale and in default of such deposit the property shall be re-sold. While Rule 85 stipulates that full amount of purchase money payable shall be paid by the purchaser into Court before Court closes on the 15th day from the sale of property. Rule 14 of Sindh Chief Court Rules (O.S) is related to the disposal of applications by Registrar (O.S). In sub-rule 28, the Registrar (O.S) has power to dispose of application for the issue of proclamation of sale and for direction as to the publication but under Order XXI Rule 66 for the public auction in execution of decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.

1. Rule 339 of Sindh Chief Court Rules (O.S) articulates that whenever the sale of land or of a house or houses or immoveable property is ordered, the Nazir shall with the permission of the Court advertise such sale in a newspaper as may be ordered by the Registrar (O.S).

2. Rule 689 to 718 of Sindh Chief Court Rules (O.S) enunciate and explicate the function and powers of Official Assignee. The purpose of referring aforesaid rules is to show that Official Assignee has no powers to draw up a proclamation or even no specific power is mentioned under which he can auction the property but in my view the Court can appoint him for auction and sale of property subject to Rule 65 of the Order XXI, CPC.

3. The learned counsel for the judgment debtor referred to plethora of legal precedents and after minute examination of the law cited at bar, the following propositions of law are deducible:--

(a) Once the Executing Court has chosen the mode provided in, CPC, then it cannot be permitted to divert that mode at subsequent stage without conscious application of mind.

(b) Cognizance of a matter taken by Court under one procedure. Proceedings once commenced under such procedure would be finalized thereunder. No pick and choose authority would be available in law to Court in law.

(c) Provisions of Order XXI Rule 66, CPC are mandatory in nature and without fulfilling basic requirements, if auction is taken place it would not be considered to have been lawfully made.

(d) The absence of the mandatory notice to the judgment-debtors under Order XXI, Rule 66, CPC is by itself, sufficient for setting aside the Court auction. Before calling upon Court Auctioneer to conduct auction, duty of Executing Court was to have satisfied itself that mandatory notice had been issued to judgment-debtors. Such contravention of provisions of Order XXI, Rule 66, CPC by Executing Court had vitiated entire proceedings including sale, which was nullity in eyes of law.

(e) The word `cause' appearing in Rule 66, Order XXI, CPC requires a specific order of Court, which produces the effect of drawing the proclamation envisaging the terms and conditions of sale. Thus, includes the settlement of conditions etc. by Court itself or to approve those filed by parties after hearing them. It is duty of the Court to cause to be made a proclamation of sale. Such proclamation must be drawn after notice to the judgment debtor.

(f) Intention of law was to fix reserve price in proclamation to safeguard rights of judgment debtor. Court auctioneer, without any authority, rather against the provision of Order XXI, Rule 85, CPC fixed 30 days' time for the payment of the balance consideration, which otherwise was required to be paid in terms of Order XXI Rule 85;, CPC within a period of 15 days. No reserve price of the property was settled. Where the property was sold in complete disregard of rules and in questionable circumstances, even suo motu action for setting aside the sale would be justified.

(g) The proclamation should include the estimate if any, given by either judgment debtor or decree-holder or both the parties.

(h) It is mandatory that the value so determined by the parties, i.e. the decree holder and the judgment debtor, is to be stated in the proclamation, as the word "shall" has been stated therein. The rationale behind stating the said value in the proclamation is to ensure full disclosure to the prospective bidders.

(i) No reserve price was fixed in the proclamation by the Executing Court, auction proceedings were illegal and were liable to be set aside. Such omission had rendered the proclamation to be illegal.

(j) Under Rule 84 of Order XXI, CPC, an auction purchaser shall deposit 25% of the auction amount immediately on being declared as highest bidder. While the requirement of Rule 85 of Order XXI that full amount of purchase money must be paid by the purchaser within 15 days from the date of sale, is mandatory. Non-payment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity.

1. After minutely examining the facts and circumstances of the case it is clear that this Court though referred to this execution application for execution to the Official Assignee in the same manner in which another execution application of Soneri Bank was being executed against the same judgment debtor but the fact remains that for the purposes of execution of decree, the Official Assignee has adopted the procedure provided under, CPC for executing the decree. There is nothing on record to show that the decree holder had ever approached this Court to execute the decree in the manner other than the procedure provided under the, CPC. For all intents and purposes, the procedure provided under Order XXI, CPC for the proclamation of sale and or drawing up proclamation and other terms and conditions required to be incorporated in the proclamation of sale are applicable. It is also clear beyond any shadow of doubt that the Official Assignee failed to incorporate material particulars in the proclamation of sale of auction and it is an admitted position that the representative of the decree holder submitted a draft of proclamation of sale to the Official Assignee. Keeping in view the guiding principles which are deducible and expounded in the aforesaid dictums, the proclamation of sale is not sustainable unless all necessary ingredients and particulars are incorporated. Under Rule 65 of Order XXI, CPC it is clearly mentioned that every sale in execution of decree shall be conducted by an officer of the Court or by such other person as the Court may appoint in his behalf. There is no hard and fast rule that the Court may not appoint Official Assignee for the purpose of conducting sale. Even otherwise it does not cause any hurt or injury to the judgment debtors if this Court has directed the Official Assignee to execute the decree.

2. By all means, the crucial point and or burning question is whether the Official Assignee while exercising power of Court auctioneer has complied with necessary provisions and procedure envisaged in C.P.C or not. To all intents and purposes, at the time of drawing up the proclamation of sale, Order XXI Rules 66, 84 and 85 should have been kept in mind. In the present form of proclamation neither it was drawn up after notice to the judgment debtors nor are any encumbrances mentioned to which the property is liable nor any reserve price is mentioned. It is an admitted fact that the draft of proclamation was submitted by the representative of decree holder and he also requested to the Official Assignee not to mention any reserve price and same draft of proclamation was issued for publication.

3. The bottom line of the discussion is that the Official Assignee has not drawn up proclamation of sale in accordance with Rules 66, 84 and 85 of Order XXI, CPC which vitiated the auction proceedings and rendered the proclamation of sale illegal. Learned counsel for the decree holder referred to the case law in which the Court held that the provisions of special law exclude the application of general law. There is no cavil to this well settled proposition of law, but I would like to reiterate that nothing is demonstrated from the barebones of the matter that the decree holder ever requested this Court to opt any other mode and method for execution other than, CPC and merely making a request that Official Assignee be allowed to execute the decree in the same manner in which he is executing another execution application does not suffice to show that the Official Assignee has adopted any other method outside and beyond the purview of, CPC.

4. The whys and whereforces lead me to the conclusion that the auction proceedings are not sustainable taking into consideration the impugned proclamation of sale. However in order to accelerate and expedite the auction proceedings, the learned Official Assignee is directed to set down fresh draft of proclamation of sale in terms of Order XXI Rule 66, 84 and 85 C.P.C. The decree holder and judgment debtors are already in attendance hence their representatives are directed to appeal before the Official Assignee within one week for setting down the terms and conditions of proclamation of sale without any further notice and the Official Assignee shall submit the draft of proclamation of sale within ten days in Court, so that this Court may cause the proclamation and envisage the terms and conditions of the intended sale. Both the applications are disposed of in the above terms.

(R.A.) Applications disposed of

PLJ 2013 Karachi 212

Present: Muhammad Ali Mazhar, J.

KOHINOOR TOBACCO COMPANY (PVT.) LTD.--Plaintiff

versus

S.M. IDREES ALLAWALA--Defendant

Suit No. 142 of 1996, CMA No. 1690 of 2013, decided on 2.5.2013.

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

----S. 151 & O. XIII, R. 2--Delivery of title deeds--Application for permission to produce documents--Question of--Whether a good cause or sufficient cause is made--No hard and fast rule but matter is left open to discretion of Court to decide on sound judicial principles depending upon facts and circumstances of each case--Where party fails to produce documents under Order VII, Rule 14, CPC a rider had been provided under Order 13 Rule 2, CPC that no documentary evidence in possession or power of any party which would had been but not had been produced with requirement of rule, shall be received at any stage of proceedings unless good cause is shown to satisfaction of Court for non-production--Mere delay in filing application would not be a reasonable ground or sufficient cause to disentitle or disallow to produce document which would amount negation of Order 13, Rule 2, CPC--Application for permission to produce documents or additional evidence might be filed at any stage when genuineness of documents is beyond any shadow of doubt and it ought not to be shut out of evidence if produced at late stage--Application was allowed. [Pp. 215 & 216] A & B

Mr. Muhammad Haseeb Jamali, Advocate for Plaintiff.

Mr. Adnan Choudhry, Advocate for Defendant.

Date of hearing: 2.4.2013.

Order

This is a suit for Declaration, Injunction and Delivery of Title Deeds. Matter is pending at the stage of plaintiffs evidence. The plaintiff has brought an application under Order XIII Rule 2, CPC read with Section 151, C.P.C., for permission to produce documents mentioned at Sr.No. 1 to 28 in the application.

1. The learned counsel for the plaintiff in support of this application argued that production of the documents mentioned in the application will pave the way to decide the bone of contention between the parties and will not in any way prejudice case of the defendant. So far as explanation for non-producing the documents earlier is concerned, the learned counsel argued that the documents sought to be produced were the part of very old record and the same were mixed up with other documents and papers. The plaintiff recently retrieved the past record which includes the documents mentioned in the application. It was further averred that all these documents are quite relevant to resolve the controversy and will not cause any harm to the other side as still the evidence of the plaintiff is continuing and the plaintiffs witness has not come into witness box except two official witnesses who were summoned to appear and produce official record. In support of his-contention, the learned counsel for the plaintiff referred the following case law:--

2. 2005 CLC Karachi 1305 (M/s.Trading Corporation of Pakistan v. M/s.Rahat & Co. The learned Single Judge of this Court held that the rules and procedure are intended to advance justice rather than to obstruct it and objection in regard to delay could hardly be a ground to deny a party to produce documents. The object of Order XIII Rule 2, C.P.C., is to exclude forged documents and expedite trial but it is never intended to apply this provision to deny a party to produce genuine documents which have the effect of resolving controversy between the parties on the ground that such an application has been made at a belated stage.

3. PLD 1956 Lahore 252 (The Lahore Improvement Trust v. M/s.Khuda Baksh-Meraj Din). It was held that the only reasonable construction of the words "unless good cause is shown for the non-production thereof" occurring in Rule 2 of Order XIII, C.P.C., is to construe them as meaning "unless good cause is shown for reception in evidence in spite of such non-production". The exercise of discretion is governed in each case by the particular circumstances of that case. Statutes are to be interpreted with due regard to their objects. Object of Order XIII Rule 2 is to exclude forged documents and to expedite the trial and not to exclude genuine documents. If there be no doubt as to authenticity of a document and if at the same time its admission were not in any way to delay the trial of a suit, words of Rule 2 should not be allowed to bar its production."

4. PLD 1981 Karachi 255 (United Bank Ltd. v. Shabbir Ahmed & another). The Court has discretion to receive or reject documents not listed as required by Order 7 Rule 14(2) or filed late and this decision is taken in each case in the light of its particular facts and circumstances. While exercising its judicial discretion to receive or reject the documents, the Court will liberally construe the procedural provision in favour of reception of documents rather than their rejection. The object is to exclude the documents which are apparently suspicious, forged or fabricated and to expedite the trial.

5. PLD 1981 Karachi 596 (Shabbir Ahmed Abbasi v. United Bank Ltd.). Documents not produced earlier for the reason of being not traceable and such averment not challenged. The documents admitted in the interest of justice in exercise of judicial discretion. Such order, however, not to be made as a matter of course but on sound judicial discretion.

6. The learned counsel for the defendant argued that issues were settled on 02.04.2001 and list of witnesses was filed by the plaintiff on 13.12.2003. Affidavit-in-evidence of the plaintiffs witness was filed on 28.05.2004. Learned counsel argued that present application has been filed to delay the proceedings and to avoid evidence. He further argued that earlier also the plaintiff moved similar application for producing additional documents which was allowed by consent and another application moved for summing the documents which was also allowed. Learned counsel further argued that two official witnesses Assistant District Officer, CDGK and DDO, Korangi, Karachi, have been examined by the plaintiff and official witnesses produced at least 97 documents. Learned counsel submits that plaintiff is trying to improve the case that is why this application has been filed to set up a plea that plot was applied by Eastern Tobacco, a partnership firm which was converted into private limited company. It was further averred that the plaintiff has failed to disclose any good cause for non-production of documents in question earlier; hence the application is liable to be dismissed. In support of his arguments, learned counsel referred to the following case law:--

7. 1990 SCMR 964 (Muhammad Umair Mirza v. Waris Iqbal). No satisfactory explanation was given by the defendant as to why he did not produce the documents at the first hearing of suit. The trial Court's findings that introduction of the documents at the stage of defendant's evidence would prejudice the case of the plaintiff. The trial Court has thus not acted arbitrarily in circumstances.

8. PLD 2003 Supreme Court 849 (Sher Baz Khan v. Mst, Malkani Sahibzadi Tiwana). Party requesting for production of additional evidence had no satisfactorily answer as to why documents to be produced as additional evidence were not relied under Order VII, Rule 14, C.P.C., as every party in a suit was required to mention the documentary evidence which it would like to produce in evidence in support of its case so that the adverse party had sufficient notice. Unsuccessful party in a suit was not to be granted opportunity to fill up the weaker part of his case by producing additional evidence to the prejudice of other party.

9. Heard the arguments. The phrase "good cause" means adequate, sound and genuine reason and it depends upon the facts and circumstances of individual case as there is no set formula or criterion to determine as to what constitutes a good cause. Whether a good cause or sufficient cause is made out or not? It depends upon the facts of each case, however, the phrase "good cause" used in Order XIII Rule 2, C.P.C., should be construed liberally to serve the ends of justice. Order XIII Rule 2 being a general provision applicable to both i.e., the plaintiff as well as defendant and makes available to both the benefit of the provision liberally. The Court may in its discretion admit the documents at subsequent stage of the proceedings to dispense with justice with the sole aim and objective that the function of the Court is to do substantial justice and decide the rights on merits rather than technicalities.

10. Here I would further like to observe that rational behind Order XIII, Rule 2, C.P.C., is to prevent the fraud and not penalize the parties for non-production of the documents and in this regard there is no hard and fast rule but matter is left open to the discretion of the Court to decide on sound judicial principles depending upon the facts and circumstances of each case. If there be no doubt as to authenticity of documents then the application ought not to be discarded lightly as rules and procedure are intended to advance cause of justice rather than to obstruct it.

11. Order XIII Rule 1, C.P.C., provides that parties or their pleaders shall produce at the first hearing of the suit all documentary evidence of every description in their possession or power on which they intend to rely and which has not already been filed in Court and all documents which the Court has ordered to be produced. Under sub-rule (3), it is further provided that on production of documents under this rule, the Court may call upon the parties to admit or deny the documents produced in Court and record their admission or as the case may be denial. In order to cater the exigency and to cope with this situation where party fails to produce the documents under Rule 1 or under Order VII Rule 14 CPC, a rider has been provided under Order XIII Rule 2, C.P.C. and the letter of law lay down that no documentary evidence in the possession or power of any party which should have been but not have been produced in accordance with requirement of rule, shall be received at any stage of the proceedings unless good cause is shown to the, satisfaction of the Court for non-production thereof and the Court receiving any such evidence shall record the reason for doing so. Mere delay in filing application would not be a reasonable ground or sufficient cause to disentitle or disallow the person/party to produce the document which would amount negation of Order XIII, Rule 2, C.P.C., especially designed to remedy such a situation. Application for permission to produce documents and or additional evidence may be filed at any stage when the genuineness of the documents is beyond any shadow of doubt and it ought not to be shut out of evidence if produced at late stage.

12. I have carefully examined the documents attached with the application. Let me first clarify that learned counsel for the defendant neither argued nor in the counter affidavit a single word has been uttered to dispute the geniuses and/or authenticity of the documents. The crux of arguments of learned counsel for the defendant is that earlier also similar application was allowed by consent and now the purpose of moving this application is to counter 97 documents produced by official witnesses. In addition thereto it was further averred that the plaintiff is delaying the proceedings and avoiding to come into the witness box. However, the explanation offered by the plaintiff for not producing the documents earlier has not been refuted by the defendant except an argument that no good cause was shown.

13. I have also gone through the issues settled by this Court and Issue No. 2 pertains to allotment order issued by KDA to Eastern Tobacco Company proprietor Kohinoor Tobacco Company Private Limited and Issue No. 3 is related to the possession letter allegedly issued by KDA to same Eastern Tobacco Company Proprietor Kohinoor Tobacco Company Private Limited. In Paragraph-1 of the plaint, the plaintiff stated that in 1996 the persons named in Paragraph resolved to launch a Cigarette Manufacturing Venture in the name of Eastern Tobacco Company at Karachi in partnership which was later converted into a private limited company. In the written statement though the defendant denied the contents of Paragraph-1 but he himself submitted that names of persons as appearing in the application form submitted to the department of Investment Promotion and Supply, Government of Pakistan for the purpose of seeking permission to set up a company in the name of Eastern Tobacco Company which would own and operate Cigarette Manufacturing Plant in Karachi and since project was never set up, therefore a private limited company in the name of Kohinoor Tobacco Company Private Limited was set up in the year 1966 with the object of setting up a Cigarette Plant in Dhaka. It is further stated that defendant alone remained as the sole Proprietor of the land allotted in the name of Eastern Tobacco Company. The burning question is roaming around the allotment of land and documents sought to be produced by the plaintiff at this stage more or less related to the same controversy between the parties. The plaintiff has also offered explanation that documents attached with the application could not be produced at the time of filing documents as the same were mixed up with other paper and retrieved later.

14. The case law cited by learned counsel for the plaintiff have direct nexus to the point in issue and in all such precedents the guiding principle expounded is that provision of Order XIII Rule 2 should be construed liberally and the main purpose and object of the rule is to exclude forged documents and to expedite the trial and not to exclude the genuine documents. While precedents cited by learned counsel for the defendant are distinguishable. In the case of Sher Baz Khan supra, the application was not filed in the trial Court but it was filed in the appeal for permission to produce documents mentioned therein as additional evidence while in the case in hand, evidence of the plaintiff is still continuing and he has to be cross-examined and if documents are brought on record, ample opportunity will be available to the counsel for the defendant to cross-examine the plaintiff at length. In the case of Umair Mirza supra, it was held that no satisfactory explanation given by the petitioner as to why he did not produce documents at the first date of hearing of the suit, even otherwise in the case supra, evidence of the plaintiff was concluded and matter was fixed for recording evidence of the defendant, on that date, the defendant attempted to introduce 80 documents in evidence. Again I would like to observe that in the case in hand, plaintiffs evidence has not been completed and if documents are brought on record, the plaintiff may be controverted and confronted with each and every document during the cross-examination of its witness.

15. At this juncture I would like to quote a land mark judgment of Hon'ble Supreme Court in the case of Imtiaz Ahmed v. Ghulam Ali reported in 1963 SC 382 in which his lordship B.Z. Kaikaus J., as he then was, held that proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based, may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive right is defective to that extent. The ideal must always be a system that gives to every person what is his.

16. As a result of above discussion, the application is allowed.

(R.A.) Application allowed

PLJ 2013 Karachi 218 (DB)

Present: Mushir Alam, C.J. and Muhammad Shafi Siddiqui, J.

IRFAN NAWAB through Attorney--Appellant

versus

SONERI BANK LIMITED--Respondent

Special HCA No. 98 of 2012 in CMA No. 10220 of 2011, decided on 7.5.2013.

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----Ss. 15 & 22--Mortgage property--Section 15(2) deals with issuance of three notices to assume powers in terms of S. 15(4), Ordinance empowers the financial institution to sell the mortgaged property or any part thereof without intervention of any Court by way of public auction and to appropriate the proceeds thereof towards total and/or partial satisfaction of the outstanding mortgaged money--It is settled law that when an act is required to be done in a particular way, it is to be performed in the manner provided under special law--If an act provided to be performed in a particular way then it no more remains mere procedural requirement, but assumes mandatory requirement. [P. 230] A

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----S. 15--Presumption--Notice and its service is inevitable before financial institution could assume powers to sell the mortgaged property u/S. 15(a) of the Ordinance, 2001--Assumption of powers u/S. 15(a) of the Ordinance, 2001 are of such nature that it takes away certain valuable rights of the borrower/mortgagor and hence the compliance of the provisions of S. 15(2) of the Ordinance, 2001 becomes mandatory--Purpose behind the scheme of S. 15(2) of the Ordinance, 2001 appears to be unambiguous and nothing was left in doubt. [P. 232] B

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----Ss. 15 & 22--Service of notice--Court was obliged to presume service of notice on the fact that the official registry receipt and A/D of government post office was under consideration whereas in instant case a private courier was engaged to serve the notice and the presumption was drawn by Single Judge even without availability of such receipt of private courier--Suit was filed after the receipt of 1st notice u/S. 15(2) of the FIO, 2001 whereas the 2nd and 3rd notices were allegedly issued subsequent to the filing of the suit and prior to the filing of leave to defend application by the respondent--Despite the fact that leave to defend application is devoid and does not make any assertion of issuance of 2nd and 3rd notices and that the appellants have challenged the recovery process which was taken up by respondent without intervention of Court, yet bank was not vigilant in retaining the disputed receipt of such courier company--Respondent should have been more vigilant in retaining the receipt of such courier company through which 2nd disputed notice was sent, more particularly when assumption of powers u/S. 15(4) of the FIO, 2001 depended on fulfillment S. 15(2) of Ordinance--Loss of such receipts could only yield to establish a presumption which is contrary to presumption drawn by the single judge. [P. 236] C

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----Ss. 15 & 22--Words & Phrases "sent" and "serve"--Service of 3rd notice on appellant is also unambiguous and even under the plain dictionary meaning the word "sent" and "serve" are not interchangeable--This word serve in the entire scheme of the Financial Institutions (Recovery of Finances) Ordinance, 2001 is used S. 15(2)--Thus the legislative intent was on service which is quite different and distinct from the meaning of the word "sent"--Held: Where the statute has provided an act to be done in a particular manner, it ought to have been done in the same manner and any departure from such scheme would render the subsequent proceedings as null and void--Particularly when in a special statute a manner has been prescribed for issuance and service of notice then the room of law of presumption is very restricted in such circumstances. [Pp. 236 & 237] D

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

----Art. 129--Service of notice--Once such fact is established, presumption could be drawn that prima facie, of course until contrary is proved--Respondent has not presented the postal receipt or courier receipt to enable the Court to apply Art. 129 of Qanoon-e-Shahadat Order, 1984 to presume that such letter was posted, therefore, the presumption drawn on assumption and hypo thesis and that too in respect of special law i.e. the Financial Institutions (Recovery of Finances) Ordinance, 2001, the provision of which are mandatory and any departure from such mode would render all subsequent event a nullity. [P. 237] E

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----Ss. 15 & 22--In this special statute the legislature is taking away certain substantial rights from some individuals, therefore, the compliance of S. 15(2), Ordinance, 2001 is sine-qua-non to exercise to acquire such rights under special law must be adhered to in its letter and spirit--If presumptions are to be drawn in such a situation when general and special provisions are consideration before the Court then the general provisions must yield place to the presumption arising under the special provision. [P. 237] F

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----Ss. 15 & 22--Second and 3rd notices were not established at least at such interlocutory stage, therefore, the powers u/S. 15(4) of the Ordinance, 2001 were not passed on to Bank--Question of 2nd notice has not been satisfactory discharged by the Respondents and the 3rd notice was also not established to be served on Appellant beyond reasonable doubt, therefore, the auction of the property under consideration is uncalled for and on this score alone the Appeal is liable to be allowed. [P. 238] G

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----S. 15--Appeal is allowed and the impugned order is set aside to the extent it is challenged in instant appeal as High Court did not agree with the findings of Single Judge recorded in relation to S. 15(2) of Ordinance, 2001--One to serve second and third notice in terms of S. 15(2) of Ordinance, 2001 before taking recourse and assuming authority u/S. 15(4) of Ordinance, 2001 and/or alternatively establish at trial that the second and third notices were in fact sent and served on the appellant. [P. 238] H

2006 SCMR 240; 2008 CLD 186; PLD 1964 SC 536; 1995 SCMR 96; 1996 CLC 45; PLD 1997 Karachi 37; PLJ 1982 Karachi 400; PLD 1976 Karachi 416 & AIR 1963 Mysore 115.

Mr. Raza Rabbani, Advocate alongwith M/s. Saalim Salam Ansari and M. Zeeshan Abdullah, Advocates for Appellant.

Mr. Ijaz Ahmed, Advocate for Respondent.

Date of hearing: 19.12.2012.

Order

Muhammad Shafi Siddiqui, J.--This appeal arising out of an order passed on CMA No. 10220/2011 on 22.05.2012 in terms whereof the injunction application in respect of one of the two mortgaged properties was dismissed.

1. Brief facts leading to filing of this case are that the appellant being a sole proprietor of Nawab & Sons having banking relationship with the respondent availed certain financial facilities and pursuant to such financial facility mortgaged two properties with the respondent. The properties are Faran Cooperative Housing society Property and Jinnah Cooperative Housing Society property hereinafter referred to as `Faran Property" & "Jinnah Property" respectively. The mortgage in respect of Faran property was created by way of Mortgage Deed and deposit of title deed whereas the mortgage in respect of Jinnah property was created only by way of deposit of title deed.

2. The appellant substantially submitted that in fact they have paid the entire amount that was due and payable to the respondent and hence he filed a suit for settlement of account and for redemption of the mortgaged properties referred above. The suit was instituted under Financial Institutions (Recovery of Finances) Ordinance, 2001 in response to a notice purported to be 1st notice under Section 15(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001. Subsequently in the month of October, 2011 appellant also preferred an application being CMA No. 10220/2011 in response to auction notices appearing in "Dawn" and Jang" dated 08.10.2011. It is contended that on issuance of the first notice dated 29.6.2011 the appellant have filed a suit in the month of July 2011 without wasting any time. The appellant has raised many grounds in their injunction application however for the purpose of deciding this appeal, the main grievances of the appellant as raised by them at the time of arguments are as under:--

(i) Non compliance of sub-section (2) of Section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001.

(ii) The criteria laid down by the learned single Judge in the test for considering injunction application, itself is flawed and in violation of the provisions of sub-section (1) of Section 10 of the Ordinance, 2001 or in the alternative non application of the test prescribed in the impugned order to evaluate whether a case in facts or law is made out by the appellant for the grant of interim injunction.

(iii) Non reading of documents and statement of accounts to ascertain that no mortgaged money is due and payable.

1. Learned Counsel for the appellant in response to aforesaid points, stated that the recovery option can be initiated under Section 15(4) of the Ordinance, 2001 without intervention of the Court provided the strict compliance of sub-section (2) of Section 15 of the Ordinance, 2001 is adhered. In this regard learned Counsel submits that the respondent by sending first notice of demand dated 29.6.2011 initiated proceedings for the alleged mortgaged money to be paid within 14 days of the service of notice. On receipt of such notice it was not only replied by the appellant but also instituted a suit for the accounts, declaration, redemption and recovery etc. The mechanism of Section 15(2) of the Ordinance, 2001 is such that in case of failure to respond on the due date given in the 1st notice, the second notice to follow and then lastly the financial institution shall serve a final notice to the mortgager for payment of the mortgaged money. Learned Counsel submits that after filing of the suit the notices and summons were issued and served upon the respondents who filed an application for leave to defend and accordingly they filed leave to defend application in the month of September, 2011. However, such application is devoid of containing any fact of issuing second and third notices as they were purported to have been issued on 16.7.2011 and 01.08.2011 respectively. Learned Counsel for the appellant submitted that the provision of sub-section (2) of Section 15 of the Ordinance, 2001 are to be strictly complied with as being mandatory and relied upon the cases of Izhar Alam Farooqi v. Sheikh Abdul Sattar Lasi (2008 SCMR 240), Mst. Shamim Akhtar v. Muhammad Riaz (2008 CLD 186), Haji Muhammad Yaqoob Akhtar v. Habib Bank Ltd. (2009 CLD 1699), Iftikhar Ahmed v. My Bank Ltd. through President (2009 CLD 374).

2. It is contended that the first notice of demand was replied vide Legal notice dated 01.8.2011 denying that any amount was due and outstanding and called for rendition of accounts. It is contended that the respondent allegedly issued second and third notices under Section 15 of the Ordinance, 2001 which notices were not served upon the appellant and it came to his knowledge only when counter affidavit to injunction application was filed. He contended that in the impugned order it is said about these two disputed notices that they were issued on or about 16.7.2011 and 01.8.2011. Thus it appears that pursuant to the impugned order the said second and third notices were issued on 16.7.2011 and 01.8.2011 i.e. prior to the filing of the leave to defend application and after filing of the suit.

3. Learned Counsel submitted that the word "on or about" used by the respondent creates clear ambiguity in the said dates as in the normal course a clear assertion with regard to the dates on which the notices have been issued, should have been made. Learned Counsel adding to the above submission contended that since leave to defend application was filed in September 2011 yet it did not disclose the fact of issuance of second and third notices on the above referred dates and consequently the auction notices were published in newspapers daily Jang and Dawn dated 08.10.2011 for the auction of the above referred two mortgaged properties.

4. Learned Counsel for the appellant submits that the reasoning assigned in declining the relief with regard to one of the property pursuant to the provision of sub-section (2) of Section 15 of the Ordinance, 2001 are not valid and lawful. Learned Counsel submitted that the observation of the learned single Judge that the distinction is too fine to be drawn for the purpose for which sub-section (2) has been enacted (i.e. financial institution) for whom notices are to be sent. Learned Counsel for the appellant submitted that since it is a special law therefore, its provision to be construed and implemented in the strictest possible terms. Learned Counsel for the appellant submitted that the learned single Judge in view of the close similarity in the signatures of recipients of the first and third notices, as relied upon by the respondents went on to conclude that the third notice was also received by the appellant as the recipients prima facie, appears to be the same person and since the receipt of the first notice was not denied therefore, prima facie the third notice was also said to be served.

5. It is contended that the learned signal Judge did not discuss the issue in the impugned order that the address on the receipt of the first notice was of an address in Jinnah Cooperative Housing Society Karachi and the address of third notice was of PECHS Karachi. Learned Counsel submits that this went on to prove that the third notice which is disputed by the appellant was sent to a wrong address and the conclusion of the learned signal Judge on the basis of close similarity in the signatures is on the basis of photocopies available on record, which is a presumptive conclusion. He argued that such conclusion is too fine to be drawn and it ought to have been referred to the handwriting expert if at all signatures are required to be verified.

6. As regards the second notice learned Counsel for the appellant submitted that the learned single Judge observed that the respondent candidly stated that the receipt for this notice has been misplaced and that the onus of establishing such fact that the second notice has been issued rests upon the financial institution which it must discharged should an objection be taken. Learned Counsel further submitted that the courier receipts of the second notice has not been provided which has been allegedly lost by the respondent therefore, in view of such fact the presumption ought to have been drawn that no second notice has been sent. Learned Counsel for the appellant submitted that the learned signal Judge in the same breath concluded that prima facie the second, notice was also sent to the appellant as he can see no reason why the respondent would go through the exercise of recourse and skipped issuing one of the required notices. Ultimately the learned single Judge concludes that all the three notices were sent and received by the appellant. Learned Counsel submitted that the notices are a mandatory provision and holding service good on mere presumption is not correct. He submitted that the word "presumption" has been defined in Black's Law Dictionary, Ninth Edition at page 1304 as under:--

(i) A legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group of facts.

(ii) Most presumption are rules of evidence calling for a certain result in a given case unless the adversely effected party over comes it with other evidence.

1. Learned Counsel further submitted that in sub-section (2) of Section 15 of the Ordinance, 2001 for the first and second notices the legislature used the word "send" whereas for the third notice the word "serve has been used. Learned Counsel submits that the observation of the learned single Judge that in the impugned order these two words have interchangeably been used, is not correct appreciation as there is a deliberate intent on the part of the legislature that the third and final notices should be served on the mortgager for the reason that the word "serve" is also used in sub-section (5) of Section 9 of the Ordinance, 2001 wherein the intent of the legislature was initially that the service effected and the defendant therein should be made aware that the case has been filed against him/them as within the stipulated time a leave to defend application is to be filed. Thus in terms of sub-section (5) of Section 9 the intent is to ensure that opportunity is provided to file his defence after taking all possible efforts to effect service.

2. Similarly the word used in sub-section (2) of Section 15 of the Ordinance, 2001 for third notice is "serve" with the same intensity to ensure that the mortgagor should be aware that the proceeding under Section 15 has been initiated against him and that the financial institution which is acting without interfering of the Court does not act arbitrarily and deny the mortgagor's due remedies in the Financial Institutions (Recovery of Finances) Ordinance, 2001 as admittedly there is no absolute bar in refusing to grant injunction against the banking companies pursuant to sub-section (12) of Section 15. Learned Counsel submitted that the word "serve" according to Black Law' Dictionary, Ninth Edition at page 1491, is stated to be a verb while the word "service" according Black Law' Dictionary, Ninth Edition at page 1491, is stated to be a noun, hence both are interchangeable and thus have been used accordingly in sub-section (5) of Section 9 and sub-section (2) of Section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. Learned Counsel submitted that the ingredients of Order V of CPC have not been met in terms of third notice for effecting valid service as envisaged by Rules 12 & 14 and another case on the male member of the family as provided in Rule 5 of Order V CPC. Learned Counsel has relied upon the cases of Shakoor Hussain v. Muhammad Sadiq (1991 MLD 67) and Amin Khan v. University of Sind (PLD 1968 Karachi 899).

3. The second point which has been argued by the learned Counsel for the appellant is that the criteria that has been made to test the appellants case, which could pass the appellant in order to avail the relief as claimed. Learned Counsel submitted that the test prescribed is flawed and the same is in violation of sub-section (1) of Section 10 of the Ordinance, 2001. He submitted that the yardstick, which is applied by the learned single Judge is not in consonance with the principles of injunction on which consideration the subject application is to be considered. Learned Counsel for the appellant submitted that the leave to defend application is governed by the provisions of Section 10(1) of, the Ordinance, 2001 and in normal flow it is for the financial institution, which seeks leave to defend to show the substantial question of fact, which requires evidence to be led in response to the said question, Learned Counsel for the appellant submitted that the learned single Judge has placed the shoe on the other foot while laying down criteria of the test prescribed by him in para-8 wherein it is suggested that in order to engage sub-section (12)(b) of Section 15 of the Ordinance, 2001, the appellant's (customer's) claim in plaint should be examined as if it was a leave to defend application filed in a suit by the financial institution. Learned Counsel submitted that this proposition is in violation of Section 10(1), CPC and that the burden in the instant suit is on the financial institution who had filed leave to defend application. Learned Counsel in the alternative also argued that the application of a test prescribed in the impugned order dated 22.5.2012 to evaluate whether a case in facts or law is made out by the appellant for the grant of interim injunction is also violative of law.

4. Learned Counsel argued that the non-reading of various documents and statement of account which are on record to ascertain contention that more money is due and in fact the appellant has paid in excess to the respondent is apparent. Learned Counsel submitted that said ledger of account reflects transaction between the respondent and the appellants as there are total 305 Murabaha transaction out of which 278 Murabaha transactions have been settled and as far as 27 Murabaha transactions are concerned, Reference No. MR/NA/279 to MR/NA/291 are reflected in the ledger accounts and the remaining 14 Murabaha transactions are not reflected in the ledger accounts and these transactions are denied by the appellant in para-7 of the counter affidavit/replication to the leave to defend application.

5. On the other hand learned Counsel for the respondent in reply to the issue of non-compliance of sub-section (2) of Section 15 of the Ordinance, 2001, which relates to issuance of three notices submits that the stance of appellant in terms of para-3 of the rejoinder filed in relation to the injunction application is totally evasive as there is no specific denial of receipt of the second notice. In the same way, the appellant's denial of the service of notice dated 01.8.2011 which is designated as 3rd notice is also completely evasive in terms of para-3 of the rejoinder filed in response to the injunction application. Learned Counsel submits that the denial has to be specific U/O 8 Rules 3 and 4, CPC and an evasive denial amounts to an admission. Learned Counsel submits that it was only a futile attempt to deny the service of notice in an evasive manner.

6. He argued that the it is common practice of the courier companies that they do not state complete addresses and names on receipts as these addresses and names are attached to packages and the address shown on the packages is in fact used for making deliveries, hence any short-fall in the address and name on the receipts are irrelevant for the purpose of effecting deliveries of such packages. He submits that even the first notice which is admittedly served upon the appellant issued by the same courier service as was used and engaged for 2nd and 3rd notices. He contended that the original receipts of first and third notices were examined by the learned signal Judge during the hearing. Learned Counsel submits that the insistence of appellant that the learned signal Judge ought to have referred the signatures on receipts to the handwriting expert instead of examining the same himself, is also not tenable under the law. Learned signal Judge has all the powers in view of the provisions of Article 84 of the Qanoon-e-Shahadat Order, 1984 to compare the signatures, writing or seal. In this regard learned Counsel has relied upon. (i) M/s Waqas Electronics & others v. Allied Bank of Pakistan & others (1999 SCMR 85), (ii) Ghulam Rasool & others v. Sardarul Hassan & another (1997 SCMR 976), (iii) Muslim Commercial Bank Limited & another, v. Aamir Hussain & another (1996 SCMR 464) and S.M. Zahir v. Pirzada Fazal Ali Ajmari (1974 SCMR 490).

7. Learned Counsel submitted that, the, arguments of the learned Counsel for the appellant that the learned single, Judge held the signatures to be similar and not identical are also not tenable under the law since no signature of the same person can be identical as in normal course each signature slightly varies from the other and it is on this yardstick the learned signal Judge held that there is a close similarity in both the signatures which can be adjudged by naked eye.

8. Learned Counsel submitted that the purpose of Section 15 of the Ordinance, 2001 is to inform the mortgagor that there has been default in payment of his obligations and to enable him to pay dues, settle the matter in order to avoid sale of the mortgaged property and seek remedy available under the law. Hence this is not a case in which sub-section (2) of Section 15 of the Ordinance, 2001 has not been complied with. Learned Counsel submits that Section 15 of the Ordinance does not specify any particular form of a subject notice and a simple notice would be sufficient as long as it identifies the default and financial institution's intention to follow the process under Section 15 of the Ordinance, 2001. The service of notice dated 04.6.2011 available at page 665 and the letter dated 15.7.2011 available at page 2826 if read along with the notice dated 29.6.2011 available at pages 673 and 2847 which are clearly served upon the appellant, made compliance of Section 15 of the Ordinance, 2001 even if the two notices, which are under alleged dispute are excluded from consideration.

9. Learned Counsel further submitted that the appellant also unsuccessfully argued that an attempt is made to create ambiguity with regard to the dates of notices by attributing the words "on or about". He submitted that the learned signal Judge used these words as a manner of speech while recording submissions of the respondent. Learned Counsel for the respondent further relied upon sub-section (12) of Section 15 of the Ordinance, 2001 which deals with the powers of the Banking Court and the High Court in relation to passing injunctive order restraining sale or proposed sale of the mortgaged property.

10. Learned Counsel submitted that the creation of mortgage on the mortgaged properties is admitted and accordingly the provision of clause (a) of sub-section (12) of Section 15 of the Ordinance, 2001 is not applicable. Similarly appellant claims that no amounts are payable by the appellant and hence relied on clause (b) of sub-section (12) of Section 15 of the Ordinance, 2001, is misconceived and untenable. Learned Counsel submitted that a complete statement of account is filed and the appellant failed to question the entries in the said account. Learned Counsel submitted that in terms of sub-section (12) of Section 15 of the Ordinance, 2001 the appellant is required to show positive evidence that all amounts secured by mortgaged properties have been paid. He submitted that a large number of receipts have been attached twice and sometime thrice and as such the calculation is based on these misconceptions. Even these receipts have no relevance with the Murabaha transaction and some receipts even do not pertain to the branch of respondent from where the facilities were availed.

11. Learned Counsel further submitted that the test with regard to the threshold that the mortgagor needs to cross in order to secure injunction on the basis of clause (b) of sub-section (12) of Section 15 of the Ordinance, 2001 is justified and lawful. He submitted that the test prescribed by the learned single Judge is lighter than the one he was required to cross to obtain injunction. Learned Counsel submitted that the injunction is a discretionary remedy and the exercise of such discretion cannot be set aside in appeal, unless it is found to be arbitrary and fanciful.

12. We have heard the learned Counsel and perused the record. Before we discuss the first contention with regard to the compliance of Section 15(2) of the Ordinance, 2001, we may discuss second and third point as raised by the Learned Counsel for the appellant.

13. With regard to the application of sub-section (12)(b) of Section 15 the learned single Judge observed that in order to engage sub-section (12)(b) of Section 15 of Ordinance, 2001 the customers claim (in this case plaint) should be examined as a leave to defend application filed in a suit for recovery of amount by the financial institution. Therefore, the minimum test that was prescribed by the learned single Judge is whether a substantial question of fact and law is raised by the borrower or not. Certainly there has to be some criteria in this special law, which is required to be passed by the borrower/customer in his suit to succeed as far as the injunction application is concerned and we feel that perhaps a lighter test is prescribed by the learned single Judge as compare to the one, which is required normally in considering injunction applications i.e. prima facie case, balance of inconvenience and irreparable loss. If this would not be the criteria to be crossed by borrower in his suit for accounts, then it would be very convenient for every borrower to file suit for accounts and object recovery process. While applying the test, the appellant has only to show the substantial question of law and fact or to prima facie show that due money has been paid and since the appellant has failed to come up to the mark of this test, therefore, there is no question of him passing a test, which is meant for injunction application, which in the present case is difficult than the one prescribed by the learned single Judge. Rightly said by the learned single Judge that mere statement that all money secured to the mortgage has been paid is not sufficient for the purpose of the clause (b) of sub-section (12) of Section 15 of the Ordinance, 2001. In terms of sub-section (12) of Section 15 of the Ordinance, 2001 the appellant is required to show a positive evidence that all amounts secured by the mortgaged property has been paid. With the assistance of the learned Counsel we have minutely perused the receipts, which were available on record filed by the appellant as well as the statement of account filed by the respondent and there is no cavil to the proposition that many receipts of repayment have been filed in duplicate and triplicate.

14. From the statement of account it is prima facie clear that apart from the settled Murabaha transaction there are certain outstanding Murabaha transaction. Respondent filed of complete statement of account of all outstanding 27 Murabaha transaction and out of the 27 outstanding Murabaha transaction, the appellant has raised a dispute with regard to a total sum of Rs.1,109,531 in four Murabaha transactions which dispute itself is baseless as each Murabaha transaction has been signed by the appellant and thus he was barred from even producing any evidence contrary to the contents of written documents in terms of Articles 102 and 103 of Qanoon-e-Shahdat Order, 1984. Out of the total outstanding of aforesaid 27 Murabaha transaction which comes to 127,040,570, the appellant disputed only 1,109,531 which is insignificant as far as the outstanding amount is concerned. In view of above submissions we, therefore, conclude that the appellant have failed to establish their case for application of proviso (b) of sub-section (12) of Section 15 of the Ordinance, 2001 and the findings of the learned single Judge are not required to be interfered as far as these two points are concerned.

15. Now we would deal with the first argument of the learned Counsel for the appellant which is the compliance of sub-section (2) of Section 15 of the Ordinance, 2001.

16. In order to appreciate the contentions of the learned counsels it would be appropriate to first take up Section 15 of the FIO, 2001, particularly sub-section (2) of Section 15 which for the sake of assistance is reproduced as under:--

"15. Sole of mortgaged property. (1)........

(a) ....

(b) ....

(c) ....

(2) In case of default in payment by a customer, the financial institution may send a notice on the mortgagor demanding payment of the mortgage money outstanding within fourteen days from service of the notice, and, failing payment of the amount, within due date, it shall send a second notice of demand for payment of the amount within fourteen days. In case the customer on the due date given in the second notice sent, continues to default in payment, financial institution shall serve a final notice on the mortgager demanding the payment of the mortgage money outstanding within thirty days from service of the final notice on the customer.

(3) ......

Provided......

(4) Where a mortgagor fails to pay the amounts demanded within the period prescribed under sub-section (2), and after the due date given in the final notice has expired, the financial institution may, without the intervention of any Court, sell the mortgaged property or any part thereof by public auction and appropriate the proceeds thereof towards total or partial satisfaction of the outstanding mortgage money:

Provided that before exercise of its powers under this sub-section, the financial institution shall cause to be published a notice in one reputable English daily newspaper with wide circulation and one Urdu daily newspaper in the Province in which the mortgaged property is situated, specifying particulars of the mortgaged property, including name and address of the mortgagor, details of the mortgaged property, amount of outstanding mortgage money, and indicating the intention of the financial institution to sell the mortgaged property. The financial institution shall also send such notices to all persons who, to the knowledge of the financial institution, have an interest in the mortgaged property as mortgagees."

1. The sub-section (2) of Section 15 ibid deals with the issuance of three notices to assume the powers in terms of sub-section (4) of Section 15 ibid, empowers the financial institution to sell the mortgaged property or any part thereof without intervention of any Court by way of public auction and to appropriate the proceeds thereof towards total and or partial satisfaction of the outstanding mortgaged money as the case may be. It is settled law that when an act is required to be done in a particular way, it is to be performed in the manner provided under special law. If an act provided to be performed in a particular way is followed by some consequence, then it no more remains mere procedural requirement, but assumes mandatory requirement. Now this sub-section (4) of Section 15 ibid confirms that the provisions of sub-section (2) of Section 15 ibid are mandatory and its strict compliance is inevitable.

2. Before discussing the presumptive assessment of learned single Judge, the issue to be resolved on plain understanding of law as to whether the stage of making a decision or passing an order on presumption has arisen. The production and availability of receipt of courier is a significant question. A question arises whether in the absence of such courier receipt regarding 2nd notice can it be presumed that the respondent did send or serve the second notice. The Ordinance, 2001 is a special law and every provision has to be strictly construed.

3. In the case of Izhar Alam Farooqui v. Shaikh Abdul Sattar Lasi (2006 SCMR 240) the Hon'ble Supreme Court held that the sale of mortgaged property through auction without compliance of the requirement of the law in their letter and spirit certainly invalidates the transaction as a whole. It was further observed that the financial institutions subject to the compliance of mandatory requirement of law are empowered to sell the mortgaged property under Section 15(4) of the Ordinance without intervention of the Court.

4. Similarly in the case of Shamim Akhtar v. Muhammad Riaz (2008 CLD 186) the Division Bench of Lahore High Court held that non-compliance of the statutory requirement would render the transaction questionable and vitiate the entire proceeding of sale. Para 5 of the said judgment is relevant and reproduced as under:--

"5. The Financial Institutions (Recovery of Finances) Ordinance, 2001 is a special law, therefore, every provision contained therein has to be strictly construed and meticulously adhered to. The manner and mode of auction without intervention of Court has been clearly spelt out in Section 15 of the Ordinance, 2001. It is initiated by resorting to the provisions as contained in Section 15(2) by serving notice upon the mortgagor, calling for payment. It clearly envisages service upon "customer" as defined in the Ordinance. Thereafter another notice demanding payment has to be issued within 14 days of service and lastly, in case, of contumacious default in payment, the Financial Institution is required to serve a final notice within 30 days. The proviso to Section 15(4) of the Ordinance makes it imperative that before venturing upon the exercise of sale by auction of mortgaged property, a notice is required to be published in an English and Urdu daily "Newspaper", in the province where the mortgaged property is located. The proclamation is required to contain the name, and address of the mortgagor, the details of the mortgaged property, the amount of outstanding mortgage money and intention of sale of mortgaged property. This exercise also entails a requirement of sending notice to all persons, who, to the knowledge of Financial Institution, have an interest in the mortgaged property as mortgagees. After fulfilling these requirements the Financial Institution, has power to sell the mortgaged property and thereafter, file proper accounts of sale proceeds, with the Bonking Court, within 30 days of sale."

1. The ratio of the impugned order on the point of second and third notices lays heavily on the presumption. The learned single Judge in para-17 of the order held that prima facie the 2nd notice was also sent to the appellant and that there was no reason why the respondent would go through the exercise of taking recourse of Section 15 and skip issuance of one of the required notices. Ultimately the learned single Judge in view of the present facts and circumstances of the case presumed that all the three notices were sent to and received by the appellant and relied on Article 129 (illustration `f') of the Qanoon-e-Shahdat Order, 1984, which talks about presumption.

2. It is difficult to accept such presumption particularly when the law which is under discussion is a special law and the wordings of sub-section (2) of Section 15 of the Ordinance, 2001 is such that notice and its service is inevitable before the financial institution could assume powers to sell the mortgaged property under sub-section (4) of Section 15 of the Ordinance, 2001. The assumption of powers under sub-section (4) of Section 15 of the Ordinance, 2001 are of such nature that it takes away certain valuable rights of the borrower/mortgagor and hence the compliance of the provisions of sub-section (2) of Section 15 of the Ordinance, 2001 becomes mandatory. The articulation and the purpose behind the scheme of sub-section (2) of Section 15 of the Ordinance, 2001 appears to be unambiguous and nothing was left in doubt. A similar question was faced by the Hon'ble Supreme Court in the case of E.A. Evans v. Muhammad Ashraf (PLD 1964 SC 536). The relevant part is as under:--

"It is difficult to accept upon the wording of this section that such a notice could even be implied notice or information received allunde. In face of the language of the proviso, which requires that the notice should be served "by registered post (acknowledgement due)" such an interpretation is not possible. To hold that, notwithstanding such clear and unambiguous words, even implied notice would be sufficient to render the words "by registered post (acknowledgement due)" in the provisio redundant, which cannot be done. Every word in a statute has to has to be given a meaning and the only meaning that these words are capable of bearing is that express notice in writing must be given in the manner prescribed.

The scheme of the section, furthermore, appears to be to leave nothing to doubt; hence even the manner of the service of the notice is clearly provided for and the extent of the protection accurately defined. Even the circumstances in which the tenant would be deprived of this protection have been specified and not left in doubt. Furthermore, sub-section (3) firstly provides that a tenant must pay or tender rents payable under the said section to the transferee within three months from the date of the receipt of a notice of demand sent to him again "by registered post (acknowledgement due)". Secondly, since the protection is a personal protection, the tenant must not sublet or otherwise part with possession of the premises and thirdly, he must not commit acts of waste and must not be in possession of similar premises in the same town or city. It is thus clear from the language of the section that the notices contemplated thereunder must be of two kinds(1) giving intimation of the transfer and (2) containing a demand. It is, of course, possible that both these notices may be combined into one, as, for example the same notice while giving intimation of the transfer might also demand the rent and/or intimation of the transfer might also demand the rent and/or arrears of rent, if any, due for any period after the transfer. But where no such combined notice has been issued, it would, in order to take a tenant out of the protection from eviction granted to him by proviso (b) be contemplated by clause (i) of sub-section (3). It may not be necessary to serve such a notice of demand each time there is a default but, at any rate, at least one notice of demand has of necessity to be served to deprive the tenant of the protection. The decision of the Karachi Bench of the High Court of West Pakistan in the case of Jiando Khan v. Hakim Muhammad Ishaq (1), cited by the learned counsel for the respondent does not lay down any different principle. In that case the notice actually served was a combined notice and, therefore, satisfied the requirements of Section 30. If this decision intended to lay down that the service merely of the first notice under proviso (b) would be sufficient to deprive the tenant of the protection. If thereafter he did not pay rent regularly, then it cannot be held to have laid down the law correctly. One notice of demand is at least necessary for the protection to be lost and that too from the expiry of the period of three months from the date of receipt of such a notice of demand. Unless such a notice of demand is given, the commencement of the period of three months cannot be fixed."

1. The Hon'ble Supreme Court dealt with the question of presumption of service on many occasions. However, all these judgments which we may discuss subsequently rely heavily on the availability of postal receipt of the correct address. These questions have come across before the Hon'ble Supreme Court in the case of Anjum Hayat Mirza v. Rehmat Khan (1996 SCMR 1230) wherein it was observed by the Hon'ble Supreme Court as under:

2. Before institution of ejectment case, landlord served upon tenant notice at his residence through registered post A/D on 26.9.1985. This service is supported by Exhs.G and H which are postal and A/D receipts respectively. Both these documents show that notice is received by Imran. Tenant denied service but took no further steps to show that Imran was not member of his family or inmate of the house. There is nothing wrong with the reasoning of the High Court that under Section 114 of the Evidence Act, there is presumption that in such circumstances letter has been delivered at the address at which it was sent unless addressee proves that notice was not delivered at his address.

3. Similarly in the case of Fakhar Mahmood Gillani v. Abdul Ghafoor (1995 SCMR 96) it is observed as under:--

The exhibits are the copies of different money orders showing the amount remitted and the payee's name along with sender's name and address. In some of the receipts the address of the payee is also mentioned and in the coupons the month for which the rent was remitted are specifically described. Presumption of occurrence is attached to every official act done in the discharge of duty and the burden had shifted to the landlord/petitioner to prove the alleged forgery or that the postman concerned deliberately derelicted his duty to tender the amount to him. Both the Rent Controller and the learned High Court have concurrently held that the rent was duly tendered by the tenant to the landlord through its remission by money orders and that he was not a defaulter within the meaning of Section 12(2)(i) for the Cantonments Rent Restriction Act, 1963. Nevertheless, the learned Counsel for the petitioner stressed that the mere remission of the rent through money order was not due compliance with the mandatory provision of the Cantonments Rent Restriction Act and that it was legally required of him to prove that the amount remitted through money order was offered to the landlord and that he refused to receive the same. We are afraid, this was never the intention of the law-makers while providing for the remission of rent through money order under Section 17 of the Act ibid nor it is practically possible. Under explanation appended to Section 17 it is provided that the rent remitted by money order to the landlord, or, in case the landlord refuses to accept the rent, deposited in the office of the Controller having jurisdiction in the area where the building is situate, shall be deemed to have been duly tendered. This explanation clearly implies that the rent remitted by money order to the landlord albeit on his correct address shall be deemed to be a valid tender and it has nexus with the refusal of the landlord to accept the rent. The responsibility of the tenant is only that he remits the rent through money order and it is not expected of him to follow the postman to its destination.

Resultantly, we do not find any legal flaw in the impugned judgment of High Court and decline leave to appeal and, in consequence, this petition stands dismissed.

1. Similarly in the case of Messers M.A. Khan & Company v. Messers Pakistan Railway Employees Cooperative Housing Society Ltd. (1996 CLC 45) relying on a number of judgment of this Court as well as of the Hon'ble Supreme Court the learned single Judge observed as under:

As stated earlier after filing of the award the Additional Registrar (OS) issued notice to the defendants through bailiff as well as through registered post A/D for filing objection, if any. Both the notices were served on the defendants and the second observation of the Honourable Supreme Court was that the appellant was not served with any notice by the Arbitrators whereas in this case as per record the defendants were issued notices by the learned Arbitrator not only for once but the defendants were issued three notices through registered post A/D on the address of the defendants, postal receipt along with it's A/D receipt has been filed with the R&P of the award. Three registered post A/D letters were issued by the learned Arbitrator but even then they had not participated in the arbitration proceedings. By now it is settled law that a letter which is properly addressed, must be deemed to be received by the addressee unless it is proved to be contrary.

1. This observation was relied upon in the judgment of this Court reported in (PLD 1997 Karachi 37) which discussed Article 114 of the Evidence Act (Article 129 of Qanoon-e-Shahdat Order and Section 27 of the General Clauses Act).

2. Similarly the learned single Judge of this Court in the case of Syed Riazul Hassan v. Zamirul Haque (PLJ 1982 Karachi 400) observed as under:--

3. The main contention of the appellant is that the statutory notices of two months as required by Section 14 of the said Ordinance, was not served upon him. He has denied his signatures on the A.D. Receipt and the Postal Receipt produced by the respondent. However, this A.D. Receipt would show that the appellant's name and address were properly written thereon, hence the presumption shall be that in the normal course it was duly served upon the appellant. Moreover the Postman Zamir Ali has also been examined by the respondent who has given sworn testimony to the effect that he had delivered the registered envelope to the appellant himself and obtained his signatures on the A.D. Receipt and the Postal Receipt. In view of this evidence, the learned Rent Controller rightly came to the conclusion that the statutory notice was duly served upon the appellant/opponent.

4. Similarly in the case of Mrs. Parveen Chaodhry v. Vith Senior, Civil Judge, Karachi 1st class & another (PLD 1976 Karachi 416) it is observed as under:--

Initially, it must be stated that this statement of fact in the impugned order is factually wrong. An affidavit was filed by respondent Dr. Choudhry in the Court of the respondent Civil Judge wherein it was specifically stated that on 16-12-1973 he had not only written a letter to the petitioner intimating about o divorce but also sent a copy of the divorce deed to her. We also find that a postal receipt was placed on the record of the respondent Civil Judge showing that a letter was sent by the respondent husband to the petitioner-wife from New Jersey and along with this postal receipt a photostat copy of the divorce-deed was attached. We had invited Mr. Khalid Anwar to explain the significance of this postal receipt but the learned Advocate was not able to make any satisfactory answer. A postal receipt is an official document which carries a presumption of genuineness with it, and therefore, for this reason alone we have no difficulty in repelling this contention that the divorce was not communicated to the petitioner.

1. One thing which is significant in all aforesaid cases is that the Court was obliged to presume service of notice on the fact that the official registry receipt and A/D of government post office was under consideration whereas in this case a private courier was engaged to serve the notice and the presumption was drawn by the learned Single Judge even without availability of such receipt of private courier. This suit was filed in the month of July 2011 after the receipt of 1st notice under Section 15(2) of the FIO, 2001 whereas the 2nd and 3rd notices were allegedly issued subsequent to the filing of the suit and prior to the filing of leave to defend application by the respondent. Despite the fact that the leave to defend application is devoid and does not make any assertion of issuance of 2nd and 3rd notices and that the appellants have challenged the recovery process which was taken up by the respondent without intervention of the Court, yet the bank/respondent was not vigilant in retaining the disputed receipt of such courier company. In such circumstances, the respondent should have been more vigilant in retaining the receipt of such courier company through which 2nd disputed notice was sent, more particularly when assumption of powers under sub-section (4) of Section 15 of the FIO 2001 depended on fulfillment of sub-section (2) of Section 15 ibid. The loss of such receipts in the above circumstances could only yield to establish a presumption which is contrary to the presumption drawn by the learned single Judge.

2. In addition to this sub-section (2) of Section 15 of the Ordinance, 2001 the service of 3rd notice on appellant is also unambiguous and even under the plain dictionary meaning the word "sent" and "serve" are not interchangeable. This word serve in the entire scheme of Financial Institutions (Recovery of Finances) Ordinance, 2001 is used in sub-section (2) of Section 15 and in sub-section (5) of Section 9. Thus the legislative intent was on service which is quite different and distinct from the meaning of the word "sent". In our view where the statute has provided an act to be done in a particular manner, it ought to have been done in the same manner and any departure from such scheme would render the subsequent proceedings as null and void. Particularly when in a special statute a manner has been prescribed for issuance and service of notice then the room of law of presumption is very restricted in such circumstances.

3. In terms of Article 129 illustration `f' as referred to by the learned Single Judge, is subject to a letter put into a post office. Once such fact is established, the presumption could be drawn that prima facie, of course until contrary is proved, the letter is sent and served. Here the situation is different. The respondent has not presented the postal receipt or courier receipt to enable the Court to apply Article 129 of Qanun-e-Shahadat Order, 1984 to presume that such letter was posted, therefore, the presumption drawn on assumption and hypothesis and that too in respect of special law i.e. Financial Institutions (Recovery of Finances) Ordinance, 2001, the provisions of which are mandatory and any departure from such mode would render all subsequent event a nullity as observed by Hon'ble Supreme Court.

4. In this special statute the legislature is taking away certain substantial rights from some individuals, therefore, the compliance of sub-section (2) of Section 15 ibid is sine-qua-non to exercise and assume jurisdiction by the Bank to sell mortgaged property in terms of sub-section (4) of Section 15 ibid procedure required to acquire such rights under special law must be adhered to in its letter and spirit. If presumptions are to be drawn in such a situation when general and special provisions are in consideration before the Court then the general provisions must yield place to the presumption arising under the special provision.

5. This question came across before a Division Bench of Mysore in the case of Shankareppa v. Shivarudrappa reported in AIR 1963 Mysore 115 and the Bench held as under:--

"Presumptions arising under Section 114, which is a general section, if they come into conflict with presumptions arising from provisions which can be called special provisions then presumptions arising under the general provisions must yield place to the presumptions arising under the special provisions."

1. The provisions of Article 129 of Qanun-e-Shahadat Order, 1984 are pari material to Section 114 of the Evidence Act, 1872 which stood replaced on promulgation of Qanun-e-Shahadat Order.

2. Hence, in our view since prima facie the question of 2nd and 3rd notices were not established at least at this interlocutory stage, therefore, the powers under sub-section (4) of Section 15 of the Ordinance, 2001 were not passed on to respondent/Bank and hence are not available to the financial institution to proceed in terms thereof. Since we have reached to the conclusion that the question of 2nd notice has not been satisfactorily discharged by the respondents and the 3rd notice was also not established to be served on appellant beyond reasonable doubt, therefore, the auction of the property under consideration is uncalled for and on this score alone the appeal is liable to be allowed.

3. Upshot of the above discussion is that the appeal is allowed and the impugned order is set aside to the extent it is challenged in this appeal as we do not agree with the findings of the learned Single Judge recorded in relation to Section 15(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001. Resultantly, in our opinion two course now remain available to the respondent Bank. One to serve second and third notice in terms of sub-section (2) of Section 15 of Ordinance, 2001 before taking recourse and assuming authority under sub-section (4) of Section 15 of Ordinance, 2001 and/or alternatively establish at trial that the second and third notices were in fact sent and served on the appellant.

(R.A.) Appeal allowed.

PLJ 2013 Karachi 245 (DB)

Present: Mr. Justice Sajjad Ali Shah, Chairman & Mr. Justice Muhammad Ali Mazhar, Member

AGHA ASIF KHAN--Appellant

versus

REGISTRAR HIGH COURT OF SINDH, KARACHI and another--Respondents

Service Appeal No. 2 of 2012, decided on 7.9.2013.

Limitation Act, 1908 (IX of 1908)--

----S. 5--Sindh Services Tribunals Act, 1973, S. 4--Dismissal from service on account of unauthorized absence--Condonation of delay of at least 9 months--It is well settled principle of law that before going into merits of the case, appellant had to cross barrier of limitation and service tribunal had to see first grounds advanced for condonation of delay--It is also an elementary principle that for seeking condonation of delay, delay of each and every day had to be explained to satisfaction of the Court. [P. 249] A

Condonation of delay--

----Delay of nine months was admitted in application for condonation of delay--At time of disposal of his departmental appeal, appellant was present in person and an opportunity was also afforded to him--No occasion to say that appellant was not aware regarding fate of his appeal which was dismissed in his presence. [P. 249] B

Sindh Service Tribunals Act, 1973--

----S. 4--Limitation Act, (IX of 1908), S. 5--Condonation of delay--Dismissal from service on account of unauthorized absence--Sufficient reasons--An aggrieved person may file appeal against final order whether original within thirty days of communication of order--A party who seeks condonation of delay u/S. 5 of Limitation Act, is bound to offer plausible explanation constituting sufficient cause in approaching the Court--Delay in filing proceeding cannot be condoned unless it is shown that there are sufficient reasons causing delay. [P. 249] C, D & E

Condonation of delay--

----Law of limitation reduces an effect of extinguishment of a right of a party when significant lapses occurs and no sufficient cause for such lapse, delay or time barred action was shown by defaulting party--Opposite party is entitled to a right occurred by such lapses. [P. 249] F

2013 YLR Sindh 375, ref.

Mr. Irfan Mir Halepota, Advocate for Appellant.

Mr. Sher Muhammad K. Shaikh, AAG for Respondents.

Date of hearing: 24.8.2013.

Judgment

Justice Muhammad Ali Mazhar, Member--The appellant has preferred this Service Appeal against the order dated 30.08.2010 passed by the learned District & Sessions Judge, Karachi East and" the order dated 19.03.2011 passed on his departmental appeal.

1. Brief facts of the case are that the appellant was dismissed from the service on account of unauthorized absence. The details of show cause notices and the period of unauthorized absence are already incorporated in the impugned order dated 30.08.2010 which was affirmed and maintained in the departmental appeal. Along with the memo. of appeal, the appellant has also filed an application under Section 5 of Limitation Act in which he sought the condonation of delay of at least 9 months. It is well settled principle of law that before going into the merits of the case, the appellant has to cross the barrier of limitation and this Tribunal has to see first the grounds advanced for the condonation of delay. It is also an elementary principle that for seeking condonation of delay, the delay of each and every day has to be explained to the satisfaction of the Court.

2. Though in the memo. of appeal it is stated that photocopy of the impugned order passed in the departmental appeal was handed over to the appellant on 07.01.2012 but on the other hand the appellant himself moved an application for condonation of delay admitting the delay of nine months. We have also noted that at the time of disposal of his departmental appeal on 19.03.2011, the appellant was present in person and an opportunity was also afforded to him to argue his case, therefore, there is no occasion to say that the appellant was not aware regarding fate of his appeal which was dismissed in his presence. In the supporting affidavit of application moved under Section 5 of Limitation Act, the appellant has taken the plea that he was suffering from Hepatitis "C" and was advised to take complete bed rest. He has attached two medical certificates with the memo. of appeal. One was issued by Bismillah Taqee Hospital on 16.04.2010 which shows that the appellant was under treatment of Hepatitis "C" since 7th Feb., to 15th April on OPD basis. This certificate was issued in the year 2010 for a limited period but it is a matter of record that on 19.03.2011, the appellant appeared in the departmental appeal in person. Another certificate was issued by Rehman Memorial Hospital on 19.01.2012 which shows that the appellant was under treatment from 05.06.2011 and he was advised to take complete bed rest for 7 months. We do not want to comment on the authenticity of this medical certificate in which even name of doctor is not mentioned under whose treatment the appellant was? However, we would like to observe that even by this medical certificate, the appellant was said to be under treatment since 5th June, 2011 while his departmental appeal was dismissed on 19.03.2011 and present appeal was filed on 19.1.2012. If we assume the contention of appellant to be true and correct regarding his illness from 5th June 2011 onward, even then, the fact remains that the appellant has failed to explain the delay from 19.03.2011 to 04.06.2011 in which the substantial period of time was available to him for filing appeal which he had failed to do so. Under Section 4 of the Sindh Service Tribunal Act, 1973, an aggrieved person may file appeal against final order whether original or appellate made by departmental authority within thirty days of communication of order. Though under Section 6-A, Section 5 of the limitation Act is made applicable but again for invoking the benefit of this section, the appellant is required to show the sufficient reasons or grounds. A party who seeks condonation of delay under section 5 of the Limitation Act is bound to offer plausible explanation constituting sufficient cause in approaching the Court. The Court is required to dilate upon essentials, which required condonation of delay and the same cannot be decided in a cursory manner. Delay in filing proceedings cannot be condoned lightly unless it is shown that there are sufficient reasons causing delay. Law of Limitation reduces an effect of extinguishment of a right of a party when significant lapses occurs and no sufficient cause for such lapses, delay or time barred action is shown by the defaulting party, the opposite party is entitled to a right accrued by such lapses. Reference can be made to my own judgment reported in 2013 YLR (Sindh) 375 (Master Abdul Basit v. Dr.Saeeda Anwar).

3. In the wake of above discussion, the appellant has failed to make out any case for condonation of delay. The application moved under Section 5 of the limitation act along with main appeal was dismissed by our short order dated 24.8.2013. Above are the reasons thereof.

(R.A.) Appeal dismissed

PLJ 2013 Karachi 248 (DB) [Bench at Sukkur]

Present: Ahmed Ali M. Shaikh & Salahuddin Panhwar, JJ.

KALI KHAN and others--Petitioners

versus

BODILO & others--Respondents

C.P. Nos. D-2436 of 2010 & D-250 of 2011, decided on 29.11.2012.

Colonization Government Lands Act, 1912--

----S. 30--Land Revenue Act, 1967, S. 161--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Suo moto powers of Board of Revenue--Vests jurisdiction--Being landless hari was granted agricultural land--Challenged by way of filing an appeal u/S. 161 of Act, 1967--Revenue authorities had no jurisdiction to entertain appeal--Validity--If Board of Revenue, by any source, takes notices and knowledge that any land was allotted illegally or fraudulently, Board of Revenue had jurisdiction to cancel same in revisional jurisdiction--In instant matter, Board of Revenue had not exercised it's suo moto revisional powers regarding subject-matter land but respondent had challenged allotment before E.D.O., therefore, plea raised by counsel regarding applicability of S. 30 and its repeal carries no weight--It would be well within jurisdiction and competence of competent Civil Court to examine earlier allotment and that of its subsequent allotment after considering material, because Civil Court is Court of ultimate jurisdiction would not debar competent civil Court to examine an illegal void and mala fide exercise of jurisdiction and powers by any authorities--Petitions were dismissed. [Pp. 251 & 252] A & E

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

----S. 39--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Claims and allegations cannot be assumed by High Court in writ jurisdiction--Factual controversies requiring evidence and inquiry cannot be undertaken in writ jurisdiction--Validity--It is also and admitted position that one claimant had sold out his whole land by way of registered sale deed, which makes it quite obvious that land stood transferred through a registered sale deeds which were in existence--It is now a well settled principle of law that any registered sale deed cannot be challenged or cancelled in writ jurisdiction because such remedy lies u/S. 39 of Specific Relief Act, by way of filing a declaratory suit. [P. 252] B & C

2011 SCMR 1023, ref.

Audi Alterm Partem--

----In absence of necessary party, ex-parte order cannot be passed--Validity--Parties had right to approach civil Court and agitate all the grounds before Civil Court, which is proper forum to resolve such controversy. [P. 252] D

Mr. Sarfraz A. Akhund, Advocate for Petitioner (in C.P. No. D-2436 of 2010).

Mr. Nisar Ahmed Bhanbhro, Advocate for Respondents (in C.P. No. D-2436 of 2010).

Mr. Nisar Ahmed Bhanbhro, Advocate for Petitioner (in C.P. No. D-250/2011).

Mr. Zulfiqar Ali Sangi, State Counsel for Respondents (in C.P. No. D-250/2011).

Date of hearing: 7.11.2012

Order

Salahuddin Panhwar, J.--The writ petitions captioned above, pertains to same subject-matter, between same parties, on counter claim therefore we decide the same by this common order.

1. Succinctly, the facts, set out in the Constitutional Petition No. D-2436 of 2010, are that petitioner being a landless hari (peasant), was granted 16 Acres agricultural land from U.A.No. 576, situated in Deh Janauji, Taluka Rohri, District Sukkur in the year 1979/80; the land was surveyed and revised numbers were assigned as Survey No(s). 1092, 1093, 1094 & 1095 (18-09 Acres); same was transferred in the name of the petitioner by Transfer Order dated 09.12.1999; mutation was affected in the record of rights , subsequently after about 30 years the Respondents No. 1 & 2 challenged the grant of petitioner by way of filing an appeal u/S. 161 of Land Revenue Act, 1967, before the Executive District Officer (Revenue), Sukkur (Respondent No. 5); the petitioner claims that revenue authorities have no jurisdiction to entertain the appeal, thus, pendency of such appeal before the Respondent No. 5 is "Corum-Non- Judice"

2A. In another Constitutional Petition No. D-250 of 2011, petitioners have contended that sixteen acres agricultural land from U.A.No. 576-A situated in Deh Janooji, Taluka Rohri, District Sukkur, was granted to Bodlo, the father of petitioners by the Colonization Officer (Respondent No. 3) in the year, 1987/88, on harap conditions, A-Form was issued; land was surveyed, new numbers were assigned as Survey No(s). 1092, 1093, 1094 and 1095 (I 8-00) Acres, T.O Form was issued in favour of Bodlo, mutation in record of rights was affected in his favour; during lifetime the father of petitioners sold out the subject matter land to the petitioners through registered sale deed dated 04.11.2003 and an area of 04 acres to Zakir Hussain through registered sale deed in the year, 2002; grant in favour of Respondent No. 6 Kalli Khan is illegal, same is duplicate, hence, same is liable to be cancelled.

1. Mr. Sarfraz A.Akhund, learned counsel for petitioner Kalli Khan, has inter-alia contended that allotment in favour of Respondent Bodlo is illegal, as the same land was not available for second allotment; propriety rights were established in favour of petitioner thus board of revenue has no powers to cancel the same; since Section 30 of Colonization Government Lands Act, 1912 is no more on statute book as same has been repealed; allotment in favour of Bodlo is illegal. He has relied upon the case of Ghulam Muhammad & 08 others Vs. Sijawal & 07 others reported in 1990 MLD 2412; case of Mitho Khan Vs. Member Board of Revenue Sindh, and others reported in PLD 1997 K 294.

2. Conversely, Mr.Nisar Ahmed Bhanbhro, Counsel for petitioners (legal heirs of Bodlo) has maintained that the subject-matter land is in possession of petitioners; such land was validly granted to the father of petitioners as he was landless hari, father of petitioner has sold out entire land through registered sale deed, admeasuring 12 acres in favour of petitioners and 04 acres have been transferred to one Zakir Hussain through registered sale deed; petition is not maintainable under the law; allotment made in favour of Kali Khan is illegal.

3. What comes out, from the pleadings of both the petitions and arguments, as advanced by respective sides, it is patent that subject-matter i.e. agricultural land in both the petitions is same; there are two claimants of subject-matter land, one is Kalli Khan and another is Bodlo Khan; both are claiming the property as legally allotted to them on harap basis and after completion of all the formalities and that ownership was changed in their favour and legal-heirs of Bodlo has challenged the grant of land in favour of Kalli Khan, before revenue authorities and registered sale deed No. 573 dated 25.11.2002 in favour of Zakir Hussain is also in existence.

4. Learned counsel of Kali Khan has emphasized that Section 30 of Colonization Act, if any, stood repealed, hence not existing in the field, therefore, the revenue authorities have no jurisdiction to cancel the allotment made in his favour. To understand such legal proposition, it will be conducive to reproduce the relevant Section:--

Section 30 [b] - If at any time, the Board of Revenue is satisfied that any person had acquired under this Act tenancy rights in respect of any land by means of fraud or misrepresentation or was not eligible to have such rights from any reason whatsoever then notwithstanding the acquisition of proprietary rights by such person in such land or the terms and conditions of any agreement with or rules issued by the Provincial Government and without prejudice to any other liability or penalty to which such person may be liable under any law for the time being in force, the Board of Revenue may, after giving such persons a reasonable opportunity of showing cause, pass an order resuming the land in respect of which proprietary rights have been acquired or reduce the area of such land or pass such order as it may deem fit.]"

1. Bare perusal of germane provision, referred to above, shows that it relates to the suo-moto powers of Board of Revenue and vests Jurisdiction Board of Revenue that if the Board of Revenue, by any source, takes notices and knowledge that any land is allotted illegally or fraudulently, in that eventuality, the Board of Revenue has the jurisdiction to cancel the same in the revisional jurisdiction, in exercise of powers and jurisdiction, vested by said provision. Without prejudice to this, the position in the instant matter is entirely different as Board of Revenue has not exercised it's suo-moto revisional powers regarding the subject-matter land but the Respondents No. 1 to 5 (Petitioners in CP.No. D-250 of 2011), have challenged such allotment before the Executive District Officer (Revenue) Sukkur, therefore, the plea raised by the counsel regarding applicability of Section 30 and it's repeal carries no weight.

2. The counsel for petitioner has relied upon the case of Mitho Khan (Supra) and case of Gul Muhammad and others. First case relates to the jurisdiction of Board of Revenue and its revisional powers. In this case it was held that:--

"If is settled position in law that after the land acquired, the status of Qabooli land, land grant authorities became functus officio and could not deal with transfer or grant of such land. At any rate without the cancellation of grant in favour of the petitioner, disputed land could not be lawfully granted in favour of the respondent which on the face of it is illegal and void"

It is pertinent to say that in said case the Qabooli land was cancelled by Board of Revenue, in its revisional powers, in result of litigation started before revenue authorities; therefore, this citation is not applicable to these petitions. In the case of Ghulam Muhammad & 8 others (supra) the Colonization Officer after grant of land had again exercised the powers regarding the same land, therefore, it is held that said Colonization Officer has become functus officio as such was not competent to cancel such order subsequently and was held that:

"The learned counsel for the appellant also challenged the view taken by the two Courts below that the Civil Court had no jurisdiction in the matter. It is to be noted that the ouster of the jurisdiction of Civil Court is not to be presumed or readily admitted. There is plethora of case-law laying down that despite a clear ouster of jurisdiction of a Civil Court in a particular law, there are situations in which the jurisdiction can be exercised. One of such important cases is of Aslam Zia PLD 1958 SC 101, it was held in Karim Dad v. Arif Ali etc. PLD 1978 Lahore 679 that Section 36 of the Colonization of Government Lands Act would oust the jurisdiction only where the authorities concerned acted within power or the four corners of their jurisdiction and not where their acts are ultra vires, without jurisdiction, void or in excess of their jurisdiction."

As in the above referred case, too, the determination was done by the civil Court because question of fraud or illegal and malafide exercise of jurisdiction can well be examined and determined by a competent civil Court, being the Court of ultimate jurisdiction.

1. Apparently petitioners in both petitions are claiming allotment (s) in their favour and subsequent title to be result of legal, valid and lawful process and likewise alleging the title of opponent to be outcome of fraud and illegal exercise of jurisdiction by the authorities concerned and even claiming possession. Since these respective claims and allegations cannot be assumed by this Court in writ jurisdiction, being the question (s) requiring evidence and production of documents hence, the position, being so, takes away the matter out of the jurisdiction under Article 199 of the Constitution, because, factual controversies requiring evidence and inquiry cannot be undertaken in writ jurisdiction. Besides this, it is also an admitted position that one claimant Bodlo Khan has sold out his whole land by way of registered sale deed, as referred above, which makes it quite obvious that said land (subjection), stood transferred through a registered sale deeds which are in existence. The registered sale deeds were executed in favour of petitioners in CP No. D-250 of 2011, and Zakir Hussain but it is pertinent that Zakir Hussain is not a party in these petitions. Without prejudice to the legality or otherwise of the registered sale deed it would be sufficient to say that it is now a well settled principle of law that any registered sale deed cannot be challenged or cancelled in writ jurisdiction because such remedy lies under Section 39 of Specific Relict Act by way of filing a declaratory suit. On this point, there are series of precedents', reliance can safely be made to the case of Amir Jamal and others V. Malik Zahoorul Haque and others reported in 2011 SCMR 1023. Moreover, in absence of necessary party, ex parte order cannot be passed, same will be against the basic principle of natural "AUDI ALTERM PARTEM" therefore, we have no other alternative, except to hold that both the parties in these petitions have right to approach the civil Court and agitate all their grounds before the civil Court, which is proper forum to resolve such controversy.

2. In view of, what has been discussed above, makes us of the clear view that it would be well within jurisdiction and competence of the competent Civil Court to examine the earlier allotment and that of it's subsequent allotment after considering the material, so brought, on record by respective parties, because, the Civil Court is the Court of ultimate jurisdiction and even a clear ouster, would not debar the competent civil Court, to examine an illegal, void and malafide exercise of jurisdiction and power by any authorities.

3. Thus, with above observations petitions stand dismissed.

(R.A.) Petition dismissed

PLJ 2013 Karachi 253

Present: Muhammad Ali Mazhar, J.

M/s. AZMAT TRADING CO. (PVT.) LTD. through Managing Director--Plaintiff

versus

NDLC-IFIC BANK LIMITED--Defendant

Suit No. B-22 of 2003 and CMA No. 1910 of 2013, heard on 21.5.2013.

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

----Arts. 76 & 77--Permission to produce secondary evidence--Secondary evidence is an exception to general rule--Contents of documents can only be proved through secondary evidence if conditions u/Art. 76 were available which should be satisfied first. [P. 256] A

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

----Art. 76--Secondary evidence--Alternate mode and method of proving document when primary evidence is not available or produced, then law permits secondary evidence which remedy is designed for protection of person who despite best efforts unable from circumstances beyond his control to produce primary evidence--Where a person is unable to bring original document despite all reasonable efforts, the Court is competent to admit secondary evidence but, such should also to be kept in mind that such benefit is not intended for a person who intentionally or with some ulterior motives refused to produce document in Court. [P. 256] B

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

----Art. 77--Secondary evidence--Secondary evidence of contents of document shall not be allowed unless party proposing to give such secondary evidence is previously given to party in whose possession power the document is or to his advocate such notice to produce it as prescribed by law. [P. 256] C

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

----Art. 77--Secondary evidence--Prima facie case and deserve permission to lead secondary evidence--No requirement of notice--Validity--Notice shall not be required in order to render secondary evidence admissible when the person in possession of document is out of reach of, or not subject to process of Court. [P. 256] D

Mr. Kamal Azfar, Advocate for Plaintiff.

Mr. Nabeel Kolachi, Advocate for Defendant.

Date of hearing: 21.5.2013.

Order

The plaintiff has brought this application under Article 76 read with Article 77 of the Qanun-e-Shahadat Order, 1984 for permission to produce secondary evidence.

1. The learned counsel for the plaintiff argued that original documents attached to the affidavit in evidence of Mr.Hafeez Azmat, witness for the plaintiff are either in possession and power of the International Finance and Commerce Bank Ltd. and or Azmat Bangladesh Ltd. Incorporated in Bangladesh. He further argued that said companies are outside the reach of the plaintiff and are not subject to the process of this Court being incorporated and having their Registered Office in Bangladesh, hence he prays that the plaintiff may be permitted to produce copies of the documents attached with the affidavit in evidence of Mr.Hafeez Azmat in secondary evidence.

2. Conversely, the learned counsel for the defendant argued that the plaintiff has wrongly relied upon the provisions of Articles 76 and 77 and also concealed the material facts. The affidavit in evidence of the plaintiff was filed in the month of April, 2009 but no application for production of secondary evidence was filed. He referred to the orders dated 1.10.2009 and 16.10.2009 wherein the counsel for the plaintiff along with his witness were present and made statement that the original documents were not brought by the witness and, therefore, adjournment was sought. The plaintiff produced copies of the documents which are annexed along with affidavit in evidence upon which the Court directed that the originals be produced. The learned counsel also referred to the counter affidavit in which each document has been pointed out separately. Main objection is that affidavit-in-evidence was filed in the month of April, 2009 but no application was moved and now in the year 2013, present application has been moved which is belated. Learned counsel further submits that Memorandum of Settlement dated 20.03.2003 between UBL and Azmat Trading Company should have been in the possession of the plaintiff to which learned counsel for the plaintiff submits that original documents in relation to such MOU with UBL or mentioned in the affidavit-in-evidence will be produced in original except those for which application has been made for producing secondary evidence.

3. Heard the arguments. In the counter affidavit, the authenticity of photocopies of documents has not been questioned nor this aspect has been challenged that documents are not in, possession of the plaintiff nor it is challenged that the person against whom the document is sought to be proved, or of any person is not out of reach of, or is subject to the process of the Court, but the main objection is that application has been moved to delay the proceeding. Article 74 of the Qanun-e-Shahadat Order, 1984 defines secondary evidence and what it includes. The Secondary evidence means and includes certified copies, copies made from original by mechanical process, copies made from or compared with the original, counterparts of documents as against the parties who did not execute them and oral accounts of the contents of a document given by some person who has himself seen it. The documents must be proved by primary evidence but in certain cases the same can be proved by secondary evidence as enumerated under Article 76. Where existence of original document is not in issue and the same is not found available, the only course is to allow the party to lead secondary evidence. In case primary evidence is not found available with the party then recourse could be made to prove the documents by means of secondary evidence as required to be proved under Article 74 of Qanun-e-Shahadat Order, 1984.

4. Article 74 deals and defines the mode of secondary evidence while Article 76 provides the cases and circumstances in which secondary evidence may be given. Whereas Article 77 explicate rules as to notice to produce. For ready reference, relevant excerpts from Articles 76 and 77 of the Qanun-e-Shahadat Order, 1984 are reproduced as under:--

"76. Cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition or contents of a document in the following cases:--

(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Article 77 such person does not produce it;

(b) ..................

(c) ..................

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

In cases (a), (c), (d) and (e), any secondary evidence of the contents of the documents is admissible.

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

1. Rules as to notice to produce.--Secondary evidence of the contents of the documents referred to in Article 76 paragraph (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case.

Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:--

(1)..................

(2)..................

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

(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.

1. The secondary evidence is an exception to general rule and only meant for the purpose to cater a genuine need and hardship. It is not to be allowed in routine or without complying with the requirements mentioned under Articles 76 and 77 of Qanun-e-Shahadat Order, 1984. The contents of documents can only be proved through secondary evidence if the conditions mentioned under Article 76 are available which should be satisfied first. This Article provides an alternate mode and method of proving the document which for various reasons could not be produced. When primary evidence is not available or produced, then law permits secondary evidence which remedy is designed for the protection of person who despite best efforts unable from the circumstances beyond his control to produce the primary evidence, Where a person is unable to bring the original document despite all reasonable efforts, the Court is competent to admit secondary evidence but at the same time, this should also to be kept in mind that this benefit is not intended for a person who intentionally or with some ulterior motives or sinister objects refused to produce the document in Court which is in his possession, power and control. The Court is competent to determine whether sufficient ground has been made out or not for the admission of secondary evidence which discretion is to be exercised keeping in view the parameters and dynamics laid down in Article 76 and the facts and circumstances of each case as secondary evidence is given to prove the existence, condition, or contents of document and nothing more beyond that.

2. Under Article 77 of Qanun-e-Shahadat Order, 1984, secondary evidence of the contents of document shall not be allowed unless the party proposing to give such secondary evidence is previously given to the party in whose possession or power the document is or to his advocate such notice to produce it as prescribed by law. The main purpose of filing this application by the plaintiff is that International Finance and Commerce Bank and or Azmat Bangladesh Ltd. are outside the reach of the plaintiff and are not subject to the process of this Court which fact has not been disputed or denied by the defendant. Taking into consideration the facts and circumstances of the case in hand, I feel no hesitation in my mind to hold that the plaintiff has made out a prima facie case and deserve the permission to lead secondary evidence. So far as the prior notice is concerned the same is not required bearing in mind the proviso No. 6 of Article 77 of Qanun-e-Shahadat Order, 1984 which provides that notice shall not be required in order to render secondary evidence admissible when the person in possession of document is out of reach of, or not subject to, the process of the Court.

3. As a result of above discussion, this application is allowed. Let photocopies of documents attached with affidavit-in-evidence be produced and exhibited in secondary evidence. Application is disposed of.

(R.A.) Application allowed

PLJ 2013 Lahore 1 [Multan Bench Multan]

Present: Rauf Ahmad Sheikh, J.

MUHAMMAD HUSSAIN--Applicant

versus

Mst. SAMINA MAJEED ULLAH, etc.--Respondents

Transfer Application No. 66-C of 2012, heard on 20.11.2012.

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

----S. 24--Transfer of civil suits--Husbands of respondents were practicing Advocate did not constitute a valid ground for transfer of lis--Application was filed in order to hamper disposal of applications did not appear to be without force--Validity--Stereotype allegation that trial Court leans towards opposite-party or its attitude was harsh with petitioner cannot be accepted as such excuses were concocted to create a ground for submission of transfer application--No specific instance was quoted in instant petition--No counsel was ready to provide legal assistance was without force--Self feared or ill founded apprehensions could not be made basis for transfer of civil suits u/S. 24, CPC from one district to other--Application was dismissed. [P. 3] A & B

Mr. Saif Ullah Khan, Advocate for Applicant.

Mirza Aziz Akbar Baig, Advocate for Respondent Nos. 2 & 3.

Date of hearing: 20.11.2012.

Judgment

Learned counsel for the petitioner makes a request for adjournment and further prays that the instant petition be transmitted to the Principal Seat as his client wants that the application under Section 12(2), CPC be heard by some Court or competent jurisdiction at Lahore.

1. On 06.11.2012 and 07.11.2012 learned counsel for the petitioner had prayed for adjournments, which were granted by the Court so no ground for further adjournment is available. The request for transfer of the petition to Lahore cannot be acceded to unless the prayer of the petitioner for transfer of the application under Section 12(2), CPC finds favour with the Court.

2. The petitioner has contended that the husbands of Respondents Nos. 2 and 3 are practicing Advocates of Multan and that the husband of Respondent No. 2 had also held various offices in the Bar Association and the Pakistan Bar Council so the learned trial Court is pressurized by them with the help of group of Advocates on every date of hearing and for this reason the learned trial Court also leans towards the respondents and its attitude with the petitioner is very harsh. It is contended that even uncalled for remarks were passed against the learned counsel for the petitioner by his colleagues and it is difficult for him to represent the petitioner.

3. On the other hand Mirza Aziz Akbar Baig, Advocate, learned counsel for Respondents Nos. 2 and 3 has contended that the application has been moved with the sole object to hamper the disposal of the application as the alleged mutations in favour of the petitioner and others were found to be fake and result of forgery by the revenue authorities; that the Court room of the learned trial Court is too small and that the group of the Advocates can not assemble there and that a false allegation has been leveled just to create a ground for transfer of the application.

4. The petitioner has prayed in the application that the application under Section 12(2), CPC may be transferred to some Court of competent jurisdiction out of District Multan and today his learned counsel has requested that the petition be transferred to the Court of competent jurisdiction at Lahore. The Respondents Nos.2 and 3 are females and it would be rather difficult for them to pursue the matter in some other District. The mere fact that their husbands are practicing Advocates at Multan does not constitute a valid ground for transfer of the lis because the same is to be decided by the learned trial Court on merits alone irrespective of the status or profession of the parties or their spouses. The disputed mutations have been held to be fake by the revenue authorities and the contention of the respondents that the application has been filed in order to hamper the disposal of the application does not appear to be without force. The other petitioner of the application under Section 12(2), CPC has not joined hands with the petitioner. The stereotype allegation that the learned trial Court leans towards the opposite-party or its attitude is harsh with the petitioner cannot be accepted as such excuses are concocted to create a ground for submission of the transfer application. No specific instance has been quoted in the instant petition. The perusal of the record reveals that the petitioner has also professional assistance and legal advice of Ch. Shahzad Saleem, Advocate, Multan, so the contention that no counsel is ready to provide him legal assistance is without force. The self-feared or ill founded apprehensions cannot be made basis for transfer of the civil suits under Section 24, CPC from one District to the other.

5. For the reasons supra, the application is without merits and the same is hereby dismissed.

(R.A.) Application dismissed

PLJ 2013 Lahore 3 [Bahawalpur Bench Bahawalpur]

Present: Amin-ud-Din Khan, J.

ABDUL SATTAR--Petitioner

versus

DISTRICT OFFICER (REVENUE)/COLLECTOR DISTRICT BAHAWALNAGAR and 2 others--Respondents

W.P. No. 2965 of 2004, decided on 2.10.2012.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Maintenance allowance--Arbitration council--Nikah Nama for second marriage was not permissible under law and arbitration council was not having jurisdiction to entertain application to extent and pass order--Validity--Order to the extent of maintenance allowance was maintained but to the extent of grant of dower as well as Rs. 50000/- was set aside. [P. 4] A

Mr. Muhammad Ibrahim Khan, Advocate for Petitioner.

Mr. Zafar Iqbal Awan, Advocate for Respondent No. 3.

Date of hearing: 2.10.2012.

Order

Learned counsel for the petitioner has admitted that to the extent of maintenance allowance order dated 19.07.2002 passed by Respondent No. 2 be maintained but to the extent of granting Rs. 36000/- for dower and Rs. 50000/- as condition mentioned in Nikah-Nama for second marriage, is not permissible under the law and Arbitration Council was not having jurisdiction to entertain the application to this extent and pass the order.

1. Learned counsel for Respondent No. 3 states that Respondent No. 3 will seek her remedy before the Family Court with regard to dower as well as grant of Rs. 50000/- in accordance with the condition mentioned in Nikah-Nama. Further states that the order to the extent of maintenance allowance be maintained.

2. In this view of the matter, the order to the extent of maintenance allowance is maintained but to the extent of grant of dower as well as Rs. 50000/- is set aside. Respondent No. 3 may seek her remedy before the Family Court. In these circumstances, this writ petition is disposed of in the above terms.

(R.A.) Petition disposed of

PLJ 2013 Lahore 4 (DB) [Rawalpindi Bench Rawalpindi]

Present: Sagheer Ahmad Qadri and Ijaz Ahmed, JJ.

JAFAR RAZA--Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU through its Chairman, Islamabad and 3 others--Respondents

W.P. No. 24883 of 2010, decided on 10.5.2011.

Constitution of Pakistan, 1973--

----Art. 199--National Accountability Ordinance, 1999--S. 10--Constitutional Petition--Suspension of sentence and release on bail till final disposal of appeal--Principle of consistency--Co-convicted for purposes of grant of bail by suspending his sentence rather petitioner's case was on better footing as agitated for petitioner--While allowing the petition sentence passed against accused was suspended and it was directed that he be released on bail. [P. 6] A

Mr. Ashtar Ausaf Ali and Sittar Sahil, Advocates for Petitioner.

Barrister Saeed-ur-Rehman, Senior Prosecutor for NAB.

Date of hearing: 10.5.2011.

Order

Petitioner Jafar Raza S/o Muhammad Hussain, Ex-Member (Engineering) C.D.A., Islamabad presently confined in Adyala Jail, Rawalpindi through writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has sought suspension of his sentence and release on bail till the final disposal of the appeal pending before this Court against the judgment dated 25.10.2010 passed by the learned Judge, Accountability Court No. IV, Rawalpindi/Islamabad in Reference No. 95/2004 whereby the petitioner was convicted and sentence under Section 10 of the National Accountability Ordinance, 1999 to undergo 10 years R.I. with fine of Rs.20,00,000/- and in default of payment of fine to undergo further imprisonment for one year R.I.

1. Learned counsel for the petitioner submitted copy of the order dated 27.12.2010 passed by this Court in Writ Petition No. 24338 of 2010 whereby co-convict of the present petitioner namely, Ahmed Junaid Kareem was allowed bail after suspension of his sentence. Learned counsel further argued that as earlier vide order dated 2.12.2010 passed by this Court in W.P. No. 23377 of 2010 another co-convict of the petitioner, namely, Shaukat Abbas Hamdani, Contractor mainly involved for the charge under Section 9(a) of the National Accountability Ordinance, 1999 had been extended the Same concession, therefore, on the principle of consistency the present petitioner is also entitled for the same relief. Learned counsel contends that the case of the petitioner is at par rather on better footings than both of the aforementioned co-convicts/appellants. He next argued that the petitioner is also suffering from different ailments copies of medical record is present at pages 59 to 120 of this writ petition. At the end learned counsel for the petitioner prayed that as total amount involved in the above mentioned Reference was Rs.60,00,000/- which both the co-convicts of the petitioner have already deposited before the Court as a condition for grant of bail and there is no allegation against the petitioner that he either secured or remain involved in mis-appropriation or taking any unlawful benefit in respect of said amount, therefore, he be allowed bail by suspending his sentence subject to furnishing surety bonds as demanded from the co-convicts.

2. Learned Senior Prosecutor for NAB in view of the concession of suspension of sentence of the co-convicts as referred above did not oppose this petition, however, he agitated that the petitioner be also directed to deposit Rs.30,00,000/- in cash in Court as a condition precedent for his release along with the surety bonds.

3. We have heard the learned counsel for the parties and perused the record.

4. Case of the petitioner according to the factual aspects as we have seen at this stage seems at par with his co-convicts for the purposes of grant of bail by suspending his sentence rather petitioner's case is on better footing as agitated by the learned counsel for the petitioner. Therefore, while allowing this petition the sentence passed against the petitioner is suspended and it is directed that he be released on bail subject to furnishing bail bonds in the sum of Rs.20,00,000/- with one surety in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Bench.

(R.A.) Petition accepted

PLJ 2013 Lahore 6 [Bahawalpur Bench, Bahawalpur]

Present: Abdus Sattar Asghar, J.

MUSHTAQ AHMAD--Petitioner

versus

ANJUMAN MADRASSA ARABIA JAMIA FAROOQIA, etc.--Respondents

W.P. No. 604 of 2007, decided on 9.5.2012.

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

----O. VI, R. 17--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Amendment of pleadings--Mere change in nomenclature a duly registered organization was not likely to change nature or form of suit--Application for amendment in plaint regarding change of nomenclature a registered organization was allowed--Challenge to--An amendment likely to change form or nature of suit or to introduce new cause of action was not ordinarily permitted as a matter of principle--Proposed amendment seeking change of nomenclature according to registration certificate duly issued by competent authority was not likely to change nature or form of suit--Courts had always been inclined to allow leave to amend the pleadings liberally to enable to parties to bring all points relating to dispute between the parties before Court so as to avoid multiplicity of proceedings or future complications if considered just and necessary to resolve real matter in controversy at any stage of the lis to ensure proper administration of justice except in cases where distinct cause of action to be substituted for another or to change form, nature or subject matter of the suit--Since proposed amendment was not likely to attract exceptions, therefore, First Appellate Court had rightly granted permission--Petition was dismissed. [Pp. 8 & 9] A, B, C & D

Mr. Moeen-ud-Din Qureshi, Advocate for Petitioner.

Sardar Muhammad Hussain Khan, Advocate for Respondents.

Date of hearing: 9.5.2012.

Judgment

The petitioner has invoked the Constitutional jurisdiction of this Court under Article 199 to impugn the order dated 18.01.2007 passed by the learned Additional District Judge, Khanpur whereby respondent's revision petition was accepted and his application for amendment in the plaint regarding change of nomenclature of the respondent a registered Organization was allowed while setting aside the order dated 14.7.2005 passed by the learned Civil Judge, Khanpur whereby sought for amendment was declined.

1. The facts leading to this petition are that Anjuman Madrassa Arabia Jamia Farooqia (Registered) through its Manager lodged a suit for specific performance against Mushtaq Ahmad petitioner on 04.01.1997. It was contested by the petitioner through written statement. After framing of the issues arising out of divergent pleadings of the parties and recording of their evidence the case was at the stage of final arguments on 22.02.2005 when an application under Order VI Rule 17, CPC for amendment in the plaint was lodged by the respondent with the contentions that the matter with regard to fresh registration of the Mudarassa was pending before the competent Authority which has been duly resolved and a certificate of registration dated 04.03.2004 has been issued by the competent authority whereby respondent/plaintiff's nomenclature has been changed as "Anjuman Jamia Madni Masjid and Madrassa Jamia Farooqia" through its Manager Maulana Ghulam Madni. It was prayed that the respondent/plaintiff be allowed to incorporate its new name as per registration certificate dated 4.3.2004 through amendment in the plaint in order to avoid any future complications. The petitioner resisted the said application with the contentions that registration of the "Anjuman Madrassa Arabia Jamia Farooqia" is still in his name and that the proposed amendment if allowed would change the nature of the suit. The petition for amendment in the plaint was declined by the learned Civil Judge vide order dated 14.07.2005 which was assailed through the revision petition before the learned Additional District Judge. The revision petition was accepted through the impugned order and the amendment was allowed, hence this petition.

2. It is argued by the learned counsel for the petitioner that the proposed amendment is likely to change the nature of the suit therefore the impugned order passed by the learned revisional Court is against law and facts and liable to set aside.

3. It is resisted by the learned counsel for the respondent with the contentions that the mere change in the nomenclature of the respondent a duly registered Organization is not likely to change the nature or form of the suit and that proposed amendment is lawfully allowed by the revisional Court to avoid future complications.

4. Arguments heard. Record perused.

5. At the out-set it will be expedient to reproduce the relevant provision of Rule 17 of Order VI of the Code of Civil Procedure, 1908, as below:--

"17. Amendment of pleadings.---The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be between the parties."

1. Bare reading of the afore-quoted provision of law transpires that the Court has got an authority to allow either party to amend his pleadings if the proposed amendment is just and necessary to resolve real question of controversy between the parties. An amendment likely to change the form or nature of the suit or to introduce the new cause of action is not ordinarily permitted as a matter of principle. In the light of the above quoted principle and provision of law it is crystal clear that the proposed amendment seeking change of nomenclature according to the registration certificate dated 04.03.2004 duly issued by the competent authority is not likely to change the nature or form of the suit. It also does not amount to introduce a new cause of action. It cannot be gainsaid that the Courts have always been inclined to allow leave to amend the pleadings liberally to enable the parties to bring all points relating to a dispute between the parties before the Court so as to avoid multiplicity of proceedings or future complications if considered just and necessary to resolve real matter in controversy at any stage of the lis to ensure proper administration of justice except in the cases where distinct cause of action to be substituted for another or to change the form, nature or subject matter of the suit.

2. In the instant case, since the proposed amendment is not likely to attract the exceptions mentioned above, therefore the learned revisional Court has rightly granted the permission sought for by to the respondent. I do not find any factual or legal infirmity and unlawful exercise of authority in the impugned order passed by the learned revisional Court. Petitioner has no case to seek interference in the impugned order by invoking the Constitutional Jurisdiction of this Court. This writ petition having no merit is therefore dismissed.

(R.A.) Petition dismissed

PLJ 2013 Lahore 9

Present: Mrs. Ayesha A. Malik, J.

Haji BASHIR AHMAD etc.--Petitioners

versus

CANE COMMISSIONER--Respondent

W.P. No. 11483 of 2012, heard on 26.9.2012.

Punjab Sugar Factories Control Rules, 1950--

----R. 17(2)--Petitioners supplied sugarcane to Sugar Mills--No payment was made--Matter was referred to cane commissioner to pass necessary orders--Failed to redress the grievance that cane commissioner to pass necessary orders--Failed to redress the grievance that cane commissioner was not competent authority--Challenge to--Cane Commissioner was competent person to decide claim as not only can be adjudicate on petitioner's claim but he can refer dispute to arbitration--If parties to dispute were unable to nominate a sole arbitrator, cane commissioner can refer dispute to board of arbitrators consisting of two arbitrators and umpire--Decision of cane commissioner was appealable under Rule 17(6) before Provincial Govt. [P. 11] A

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

----S. 80--Punjab Sugar Factories Control Rules, 1950--R. 17(2)--Power for recovery of arrears of land--Collector had sufficient powers for recovery of arrears of land revenue in modes prescribed--Such powers were available to cane commissioner--He can recover amounts due through modes prescribed in S. 80 of Act--Cane commissioner had power to adjudicate upon claim of petitioners--Petition should file their statement of claims with supporting document before cane commissioner--Sugar mills can file reply to statement of claim--Cane commissioner can adjudicate upon the matter--Decision of cane commissioner can be enforced by Civil Court as if his decision was decreed by that Court--Cane commissioner enjoys power u/S. 80 of Act, 1967 to recover amounts which were due and payable--Petition was allowed. [P. 12] B

Mr. Abdul Hameed Rana, Advocate for Petitioners.

Syed Nayyar Abbas Rizvi, Addl. A.G. along with Syed Sibt-e-Hassan, Superintendent for Respondent.

Date of hearing: 26.9.2012.

Judgment

Through this writ petition, the Petitioners have impugned order dated 25.2.2012 passed by the Respondent Cane Commissioner Punjab, Lahore.

1. Brief facts of this case are that the Petitioners are agriculturists who supplied sugarcane to Pasrur Sugar Mills Ltd. in the year 1998-1999. Despite the fact that sugarcane was supplied valuing over Rs.55,35,000/- no payment was made to the Petitioners. The Petitioners filed W.P. No. 27387-2011 wherein the matter was referred to the Respondent to pass necessary orders after hearing all the parties. The Respondent failed to redress the grievance of the Petitioner on the ground that he was not the competent authority to decide the matter and the case should be filed before the Civil Court.

2. It is the case of the Petitioners that the Respondent is the competent authority to entertain the claim of the Petitioners and that he should discharge his duties in accordance with the law.

3. Report/parawise comments have been filed by the Respondent. An application under Order I, Rule 10, CPC was filed by G.B (Pvt.) Ltd. but no one has appeared on their behalf. It is the Respondent's case that the matter was decided on 25.2.2012 wherein he has found that he is not in a position to establish the claim of the Petitioners as it relates to the crushing season of 1998-1999 and the original owners are not available and that this matter should be taken up by the competent Civil Court.

4. I have heard the learned counsel for the Petitioners, the learned Law Officer and have examined the record available on the file.

5. In terms of the record, the Petitioners supplied sugarcane to Pasrur Sugar Mills Ltd. CPRs were duly issued. Thereafter the assets and liabilities of Pasrur Sugar Mills Ltd. were taken over by United Sugar Mills and then by G.B. (Pvt) Ltd. vide agreement dated 25.2.2002. The agreement clearly provides that liabilities provided in clause 1(b) shall be paid by the buyer. It also states that the record has been handed over to the new buyer. Therefore, there is no issue here with respect to the transfer of assets or liabilities upon which the Cane Commissioner is required to deliberate. The only issue is the claim of the Petitioners.

6. On the contention of the Respondent that the Cane Commissioner does not have the requisite-power to adjudicate on the Petitioners' claim, I have reviewed the Punjab Sugar Factories Control Rules, 1950. Rule 17 provides for the dispute resolution mechanism, which is re-produced hereunder:--

"Any dispute touching an agreement referred to in these rules shall be referred to the Cane Commissioner for decision or if he so directs to arbitration. No suit shall lie in a civil or revenue Court in respect of any such dispute."

Rule 17(8) reads as under:--

"On application to the Civil Court having jurisdiction over the subject matter of the decision or award, the decision of the Cane Commissioner, or the award of the arbitrator or arbitrators or the Provincial Government's order in appeal against an award, shall be enforced by all Court as if such decision, award, or orders in appeal were a decree of that Court."

In terms of the Punjab Sugar Factories Control Rules, 1950, the Cane Commissioner is the competent person to decide the claim of the Petitioners as not only can he adjudicate on the Petitioners' claim but he can also refer the dispute to arbitration under Rule 17(2). In such a case if the parties to the dispute are unable to nominate a sole arbitrator, the Cane Commissioner can refer the dispute to a board of arbitrators consisting of two arbitrators and umpire. The decision of the Cane Commissioner or the arbitrator is appealable under Rule 17(6) before the Provincial Government. The decision of the Cane Commissioner or the arbitrator or arbitrators or the Provincial Government's orders in appeal can be enforced by all the Courts as of such decision or award or orders in appeal were a decree of that Court under Rule 17(8) of the Rules (ibid). Furthermore, Section 6(1) of the Punjab Sugar Factories Control Act, 1950 provides as under:--

(1) "The Provincial Government may by notification, appoint any officer, not below the status of a Collector, to be the Cane Commissioner to exercise and perform. In addition to the powers and duties conferred and imposed on him by this Act such powers and duties, as may be prescribed from time to time."

(2) The Cane Commissioner shall be deemed to have powers of a (Collector/DCO) under the Punjab Land Revenue Act, 1887, and the Punjab Tenancy Act, 1887 (or any other enactment relating to Land Revenue and Tenancy in force in any part of the Province.

1. A review of Section 80 of the Land Revenue Act, 1967 shows that the Collector has sufficient powers for recovery of arrears of land revenue in the modes prescribed. The same powers are available to the Cane Commissioner. He can recover amounts due through the modes prescribed in Section 80 of the Land Revenue Act, 1967. Therefore, in view of the aforesaid, the Cane Commissioner has the powers to adjudicate upon the claim of the Petitioners. The Petitioners should file their statement of claims with supporting documents before the Cane Commissioner. The sugar mills can file their reply to the statement of claim. Thereafter the Cane Commissioner can adjudicate upon the matter. The decision of the Cane Commissioner can be enforced by a Civil Court as if his decision was decreed by that Court. The Cane Commissioner also enjoys the powers u/S. 80 of the Land Revenue Act, 1967 to recover amounts which are due and payable.

2. In view of the aforesaid, this petition is allowed and order dated 25.2.2012 is set aside. The Respondent Cane Commissioner is directed to adjudicate upon the claim of the Petitioners and decide the same after hearing all the necessary parties. In this regard, the Respondent should also summon the G.B. (Pvt) Ltd. as they are a necessary party to the proceedings.

(R.A.) Petition allowed

PLJ 2013 Lahore 12

Present: Mrs. Ayesha A. Malik, J.

NAVEED IQBAL--Petitioner

versus

SECRETARY, GOVT. OF PUNJAB, etc.--Respondents

W.P. No. 11490 of 2012, heard on 31.5.2012.

Constitution of Pakistan, 1973--

----Art. 199--Recruitment Policy, 2004--Scope--Constitutional Petition--Vacancy for instructor--Petitioner after interviewed and tested and his name was appeared at Serial No. 1 of merit list--Recruitment process was cancelled--Challenge to--Question of--Whether petitioner was considered for appointment of instructor and a final merit list was issued--Validity--Procedure for recruitment was finalized and there was nothing outstanding in the process--There was no basis to allege that a merit list was not prepared or that existing list was provisional list--It merit list was finalized what were irregularities in recruitment process so detected--In view of irregularity recruitment process was suggested to be cancelled and a fresh advertisement was recommended for the post--Finding in inquiry process did not reveal any irregularities but instead show how respondent utilized his position to process his son's case--As such right had accrued in his favor and he should had been considered for appointment of the post of instructor--Any allegation pertaining to undue favour advance for his son at S. No. 2 should not and cannot be used to cancel entire process--Firstly, a vested right is created when his name appeared at Serial No. 1 on merit list--Secondly, allegations raised have nothing to do with petitioner--He was neither involved in the matter nor was there any complaint against him--No reason to doubt his merit--Since there was only one vacancy for post of instructor, the person enjoying top position on merit list was entitled to appointment--No reason to cancel recruitment process and existing merit list--Petitioner’s merit was not in question as he was deserving candidate--Notwithstanding abuse of authority recruitment process to extent of petition had been finalized--He had a right to be appointed as instructor in terms of final merit list--Petition was accepted. [Pp. 14 & 15] A, B, C, D & E

2012 PLC (CS) 366 & 2005 PLC (CS) 1449, rel.

Mr. Zafar Iqbal Chohan, Advocate for Petitioner.

Mr. Waqas Qadeer Dar, Asstt. A.G. with Dr. Ayaz Ahmad Gulzar, representative of D.C.O. for Respondents.

Date of hearing: 31.5.2012.

Judgment

This writ petition impugns order dated 21.04.2012 passed by the Respondent No. 2 cancelling the recruitment process and the merit list for the post of Instructor Grade-II (BS-8) in the office of District Officer (Civil Defence) Bhakkar.

1. Learned counsel for the Petitioner contends that the vacancy for Instructor Grade-II was advertised in daily "Nawa-i-Waqt", Lahore. The Petitioner applied for the post on 08.03.2012. Candidates were interviewed and the final merit list was posted on 14.04.2012, which showed that the Petitioner had secured 86 marks out of 100 and was placed at Serial No. 1 on the merit list. Therefore, the counsel submits that the Petitioner should have been appointed against the vacancy of Instructor Grade-II. However, on 21.04.2012 the Respondent No. 2 issued a letter to cancel the process of recruitment for the said post. Learned counsel for the Petitioner argued that apparently some inquiry was undertaken wherein it was disclosed that the candidate at Serial No. 2 was the son of Respondent No. 3, who had utilized his position to place the name of his son on the merit list at Serial No. 2 and was also trying to disqualify the Petitioner from his position at Serial No. 1 on the merit list. He further submits that it is on account of the efforts of Respondent No. 3, that the impugned order was passed. Hence this Petition.

2. Respondents have filed their reply and parawise comments. It is their case that no merit list was prepared and if at all there is a list, it was a provisional list and not a final list. Furthermore, it was argued that it was well within the discretion of the Respondents to cancel the merit list, if it is concluded the recruitment process was full of irregularities.

3. Heard learned counsel for the parties and reviewed the record available on the file.

4. The basic legal question arising in this petition is that once the final merit list was issued whether the Petitioner should have been considered for the appointment of Instructor Grade-II. In this regard the first requirement was to ascertain whether a final merit list was issued. Although the Respondents have denied that any merit list was made, the fact of the matter is that the merit list was issued and this is borne out of the impugned order itself, which states that "complaints were received regarding defective preparation of education qualification marks list (merit list), as prescribed in the Recruitment Policy, 2004, for recruitment against the post of Instructor Grade-II (BS-8) in the office of District Officer (Civil Defense), Bhakkar". The Respondents were unable to establish any further steps required to finalize the merit list. As per the record, the procedure for recruitment was finalized and there was nothing outstanding in the process. Therefore, there is no basis for the Respondents to allege that a merit list was not prepared or that the existing list is a provisional list.

5. The next question is, if the merit list was finalized what were the irregularities in the recruitment process so detected. As per the report of the Respondents there were allegations against Respondent No. 3 for managing the recruitment of his son, who was shown at Serial No. 2 on the merit list. The entire objection, irregularity or illegality with the recruitment process is in relation to Respondent No. 3 and his son. In terms of the inquiry report, it was found that the candidate at Serial No. 2 of the merit list was not eligible for the post, yet his name is found on the merit list. Therefore, in view of this irregularity the recruitment process was suggested to be cancelled and a fresh advertisement was recommended for the post. The findings in the inquiry process do not reveal any irregularities but instead show how the Respondent No. 3 utilized his position to process his son's case. This cannot be termed as an "irregularity in the recruitment process". It reveals an abuse of authority, which offends the due process of law. Reliance is placed on a case titled "Shabana Akhtar Vs District Coordination Officer, Bhakkar and two others" (2012 PLC (C.S) 366). In such cases it is necessary to arrest the abuse of authority by ensuring that it does not prejudice the merit of a deserving candidate.

6. The case of the Petitioner is quite simple; he applied in terms of the recruitment policy; was cleared by the competent authority after being interviewed and tested, and his name appeared at Serial No. 1 of the merit list. As such a right had accrued in his favour and he should have been considered for the appointment of the post of Instructor Grade-II. Any allegation pertaining to undue favour advanced by the Respondent No. 3 for his son at Serial No. 2 should not and cannot be used to cancel the entire process. Firstly, a vested right is created in favour of the Petitioner when his name appeared at Serial No. 1 on the merit list. Secondly, the allegations raised have nothing to do with the Petitioner. He is neither involved in the matter nor is there any complaint against him. Therefore, there is no reason to doubt his merit. Furthermore, since there is only one vacancy for the post of Instructor Grade-II, the person enjoying the top position on the merit list is entitled to the appointment. Accordingly, there appears to be no reason to cancel the recruitment process and the existing merit list. Hence there is no reason to re-advertise the post. In this regard, reliance is placed on a case titled "Hafiz Mukhtar Ahmad Vs Government of the Punjab and others" (2005 PLC (C.S) 1449), which holds that a right is created in favour of the Petitioner when his name is displayed on the merit list. There is no doubt that the authority passing or making the list has the power to recall, modify or cancel the same, however, such power is subject to the exception that it must be done in accordance with law and it should not be to the detriment of the right accrued. In the instant case, the Petitioner's merit is not in question, as he was the deserving candidate. Notwithstanding the abuse of authority by the Respondent No. 3, the recruitment process to the extent of the Petitioner has been finalized. He has a right to be appointed as Instructor Grade-II, in terms of the final merit list.

7. For the forgoing reasons, this petition is accepted. The impugned Order dated 21.04.2012 is set aside and the Respondent No. 2 is directed to issue an appointment order in favour of the Petitioner against the post of Instructor Grade-II (BS-8) in the office of District Officer (Civil Defence) Bhakkar.

(R.A.) Petition accepted

PLJ 2013 Lahore 16

Present: Muhammad Khalid Mehmood Khan, J.

M/s. AMSON VACCINES AND PHARMA (PVT.) LTD., etc.--Petitioners

versus

CHAIRMAN DRUG COURT, etc.--Respondents

W.P. No. 16170 of 2009, decided on 16.5.2012.

Drug Act, 1976 (XXXI of 1976)--

----S. 23--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Warranty of drug--Grant of permission to prosecute for violation--If once presented against a specific accused no subsequent accused can be added on statement of accused--Duty of investigating agency to investigate matter and submit challan--Alleged drugs under warranty of petitioner and as such prima facie petitioner was responsible for substandard medicine--Drug Inspector while investigate was duty bound to summon the petitioner and investigate him--Drug Inspector had failed to perform his duties that was reason drug Court directed to file amended plaint--Validity--It is also an established principle of law that Court is not an investigating agency but has to decide allegation against accused as per prosecution story--Court should have direct I.O to reinvestigate the matter and after investigating the petitioner submit amended challan as petitioner has every right to explain allegations leveled against him before investigating agency--Petition was partly allowed. [P. 18] A, B & C

Mr. Atta Mohy-ud-Din, Advocate for Petitioners.

Ch. Muhammad Iqbal, Additional Advocate General, Punjab alongwith Ahmad Tariq, Drug Controller, Gujranwala for Respondents.

Date of hearing: 16.5.2012.

Order

The petitioner is a company incorporated under the Companies Ordinance, 1984 and is licensed pharmaceutical manufacturer. The petitioner is also having ISO certificate for 9001, 14001 and 18001 by Lloyds UK. The petitioner is also registered with the Provincial Health Department.

1. Respondent No. 5 on 10.6.2006 inspected the premises of Respondent No. 8 and collected 10 vials of Forax Inj. 500mg (Cefotaxime Sodium), Batch No. 028, manufactured by petitioner. The sample was sent to Drug Testing Laboratory, Lahore for analyses. The Drug Testing Laboratory declared the said sample substandard vide test report No. 15737 dated 08.8.2006. Respondent No. 4 directed Respondent No. 8 for providing invoice/warranty of the. alleged drug vide letter dated 19.02.2007, Respondent No. 8 failed to provide the said warranty and ultimately Respondent No. 4 referred the case to Respondent No. 6 for grant of permission to prosecute Respondent No. 8 for violation of Section 23 of the Drugs Act and rules thereunder. Respondent No. 6 issued show-cause notice to Respondent No. 8 and after providing opportunity of hearing to Respondent No. 8 approved the prosecution of Respondent No. 8 vide order dated 29.7.2008. Challan was submitted to the learned Drug Court on 5.8.2008. Respondent No. 8 while appearing before the learned drug Court disclosed that he purchased the alleged medicine from Sunshine Traders, an approved distributor of petitioner. One Sohail Ahmad appeared on behalf of Sunshine Traders, before the learned drug Court and deposed that he has purchased the alleged medicine from petitioner under the warranty dated 30.3.2005. The learned drug Court on the statement of one Sohail Ahmad issued a show-cause notice to petitioner. The petitioner replied the said show-cause notice and the learned drug Court on 13.5.2009 directed Respondent No. 4 to file amended complaint arraying the petitioner as accused.

2. The petitioner, thus asserted that impugned order dated 13.5.2009 is against law. Further submits that there is no evidence available on record on the basis of which the petitioner could be arrayed as accused in the challan which admitted has been filed against Respondent No. 4.

3. Learned counsel for petitioner submits that Drug Act, 1976 is a special law and as such the challan, if once presented against a specific accused, no subsequent accused can be added on a statement of accused. Learned counsel further submits that it is the duty of investigating agency to investigate the matter and submit the challan, the Investigating Officer has not called the petitioner nor investigated the petitioner as no material was collected against the petitioner by the Investigating Officer.

4. Learned Additional Advocate General submits that learned Drug Court was within his powers to direct Respondent No. 4 to amend the challan by arraying the petitioner as accused for the simple reason that petitioner is admittedly manufacturer of drugs recovered from Respondent No. 8, the petitioner has issued a warranty of said medicine to its distributor, this fact has not been denied by the petitioner and as such the impugned order is perfectly in accordance with law.

5. Heard. Record perused.

6. Admittedly the petitioner is a manufacturer of medicine allegedly declared as substandard. The prosecution has completed the investigation and submitted challan in the Court. Respondent No. 8 no doubt is the seller of the alleged substandard medicine but he is not the manufacturer of the same. M/S Sunshine Trader is admittedly the distributor of petitioner. Respondent No. 8 purchased the alleged drugs from Sunshine Trader under the warranty of petitioner and as such prima-facie the petitioner is responsible for the substandard medicine.

7. It is an admitted fact that Drug Inspector while investigating the matter was duty bound to summon the petitioner and investigate him but it seems that Drug Inspector has failed to perform his duties in accordance with law and that is the reason the learned drug Court directed Respondent No. 4 to file amended complaint. It is also an established principle of law that Court is not an investigating agency but has to decide the allegation against accused as per the prosecution story. In these circumstances learned trial Court should have direct the Investigating Officer to reinvestigate the matter and after investigating the petitioner, submit the amended challan as the petitioner has the every right to explain the allegations levelled against him before investigating agency.

8. In view of the above, this petition is partially allowed and Respondent No. 4 is directed to reinvestigate the matter by associating the petitioner and after completing the investigation within 2 months be submit the amended challan to learned trial Court if it is established that petitioner is responsible for manufacturing substandard medicine allegedly recovered from Respondent No. 8.

(R.A.) Petition allowed

PLJ 2013 Lahore 18 [Multan Bench Multan]

Present: Sardar Muhammad Shamim Khan, J.

Mst. SUMERA BIBI and another--Petitioners

versus

SHO, POLICE STATION CITY KHANEWAL, DISTRICT KHANEWAL and others--Respondents

W.P. No. 14468 of 2011, decided on 12.12.2011.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 365-B & 380--Quashing of FIR--FIR was registered on basis of mala fide and wrong facts--Alleged abductee contracted marriage out of her own free will with consent of her mother--Delay of about four months of marriage of her daughter--Validity--Possibility cannot be ruled out that when complainant came to know regarding marriage of his daughter with co-accused he pressurized her to get divorce and when she refused to do so, that false FIR was registered by him as stated that complainant wanted to sell her person to some body and for said purpose she was required to get divorce from her husband--FIR was quashed with burdened to pay fine of Rs. 10,000/-. [Pp. 20 & 21] A

Mr. Saghir Ahmad Bhatti, Advocate for Petitioners.

Rana Zia-ur-Rehman, Advocate for Respondent No. 3.

Mr. Mazhar Jamil Qureshi, A.A.G. for Respondents.

Date of hearing: 12.12.2011.

Order

Through this Constitutional Petition, Mst. Sumera Bibi and Mst. Naseem Mai seek quashment of case F.I.R No. 682/2011 dated 11.11.2011. offence u/S. 365-B/380, P.P.C. registered at Police Station City Khanewal, District Khanewal.

1. This F.I.R was registered at the instance of Allah Ditta, Respondent No. 3 with the allegations that his wife Mst. Naseem Mai, accused was residing with Mumtaz Ahmad, accused for a period of 7-years, after getting infuriated with him. On 10.11.2011 at about 04.00/05.00 am, Liaqat, Shafqat, Asghar Ali, Ghulam Akbar, Abdul Rasheed, Khalid Mahmood, Tariq Javed, Mumtaz and Mst. Naseem Bibi along with 3/4 unknown accused persons came in his house on a DALA and forcibly abducted his daughter Mst. Sumera Bibi, aged about 20-years, Mst. Muquddas Bibi, aged 10-years, Mst. Sahiba Bibi, aged 8-years and Sajid aged 12-years, after fastening him with rope. It is further alleged in the F.I.R that when complainant checked his house, his household articles and cash amounting of Rs.70,000/- was also found missing.

2. Learned counsel for the petitioners contended that this false F.I.R has been registered at the instance of Allah Ditta, Respondent No. 3 on the basis of malafide and wrong facts as Mst. Naseem Mai, accused after getting divorce from the complainant contracted marriage with co-accused Mumtaz Ahmad, seven years ago and she is happily living with her husband; that all the minor children as well as Mst. Sumera Bibi was also residing with their mother Mst. Naseem Mai and on 16.07.2011, Mst. Sumera Bibi, the alleged abductee contracted marriage, out of her own free will, with Khalid Mahmood, with the consent of her mother Mst. Naseem Mai; that instant false F.I.R was registered by the complainant after a period of about 4-months when the marriage of Mst. Sumera Bibi, the alleged abductee was solemnized with Khalid Mahmood, accused; that story of F.I.R to the extent of missing of house hold articles is also not believable as alleged occurrence took place in the presence of the complainant and according to his story all the accused persons after abducting Mst. Sumera Bibi and other minor children left his house, therefore, it is submitted that by accepting this petition, this F.I.R is liable to be quashed.

3. On the other land learned counsel for Respondent No. 3/complainant has opposed this petition on the grounds that all the accused persons are nominated in the F.I.R; that there is specific allegation against them that they forcibly abducted Mst. Sumera Bibi daughter of the complainant and his three minor children; that complainant lodged instant F.I.R on the basis of true facts, therefore, this petition is liable to be dismissed.

4. I have heard the arguments advanced by the learned counsel for the parties and perused the record with care.

5. It has been noticed that statement of Mst. Sumera, the alleged abductee has been recorded by the Investigating Officer and in her statement, she has not supported the prosecution version rather she contended that she, her two minor sisters and one minor brother were not abducted by the accused persons nominated in the F.I.R rather she contracted marriage with Khalid Mahmood, out of her own free will and with the consent of her mother Mst. Naseem Mai and that she was happily living with her husband. In her statement Mst. Sumera Bibi, the alleged abductee further contended that infact her father wanted to sale her person for consideration of Rs.2,00,000/- and for this purpose he required her to get divorce from her husband and when she refused to do so, instant false F.I.R was registered.

6. The alleged occurrence of abduction took place on 10.11.2011 at about 04.00/05.00 am but Allah Ditta, Respondent No. 3 lodged this F.I.R on 11.11.2011 at 08.30 am for which no plausible explanation has been given by him. Mst. Sumera Bibi, the alleged abductee contracted marriage with Khalid Mahmood, out of her own free will, on 16.07.2011. Instant F.I.R regarding her abduction was registered at the instance of Allah Ditta, Respondent No. 3 after about 4-months of marriage of her daughter Mst. Sumera Bibi with Khalid Mahmood. All the three minor children have been produced before this Court who are residing with their mother. Thus, this Court has reason to believe that this false F.I.R was registered at the instance of Allah Ditta, on the basis of malafide and on account of concealment of real facts. In the instant F.I.R Allah Ditta, Respondent No. 3 has not disclosed the fact that Mst. Naseem Mai her previous wife has contracted marriage with Mumtaz Ahmad. Possibility can not be ruled out that when complainant came to know regarding the marriage of his daughter Mst. Sumera Bibi with Khalid Mahmood, he pressurized her to get divorce and when she refused to do so, this false F.I.R was registered by him as Mst. Sumera Bibi, categorically stated that Allah Ditta, Respondent No. 3 wanted to sell her person to some body for a consideration of Rs.2,00,000/- and for this purpose she was required by the complainant to get divorce from her husband.

7. For what has been discussed above, case F.I.R No. 682/2011 dated 11.11.2011, offence u/Ss. 365-B/380, P.P.C. registered at Police Station City Khanewal is quashed in the interest of justice.

8. As Allah Ditta, Respondent No. 3/complainant has lodged this false F.I.R, therefore, he is burdened to pay fine of Rs.10,000/-, to be deposited with Deputy Registrar (Judicial) of this Court within 15-days. The fine deposited by the Respondent No. 3 would be delivered to Mst. Sumera Bibi, petitioner. In case of default of payment of fine, amount of fine shall be recoverable from Allah Ditta, Respondent No. 3 as arrears of land Revenue.

(R.A.) FIR quashed

PLJ 2013 Lahore 21 [Multan Bench Multan]

Present: Shahid Waheed, J.

MUHAMMAD SIDDIQUE 14 others--Petitioners

versus

EXECUTIVE DISTRICT OFFICER REVENUE, VEHARI and others--Respondents

W.P. No. 1126 of 2010, decided on 28.6.2012.

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

----S. 161--Colonization of Govt. Lands (Punjab) Act, 1912 S. 7--Constitution of Pakistan, 1973--Art. 199--Implement directions of High Court--Grant of proprietary right of land was allowed--Validity of order--Notwithstanding, order passed by E.D.O.R. warranted no interference by High Court as through the order a simple direction had been issued to D.O.R. to implement the order passed by High Court. [P. 24] A

Mian Muhammad Akram, Advocate for Petitioners.

Malik Muhammad Bashir Lakhesir, AAG for Respondent Nos. 1 to 3.

M/s. Anwar Mubeen Ansari and Mr. Saghir Ahmad Bhatti, Advocates for Respondents No. 4 to 10.

Date of hearing: 28.6.2012.

Order

The petitioners through this petition have called in question the order dated 21.07.2008 passed by the Executive District Officer (Revenue), Vehari whereby he has directed the District Officer (Revenue), Vehari to comply with the order dated 06.04.1999 passed by this Court in W.P. Nos. 316/1986 to 318/1986.

1. Briefly the facts of the case are that the land measuring 208 Kanals 08 Marlas situated in Chak No. 58/WB was leased out to the Respondents No. 4 to 10. Subsequently the Respondents Nos.4 to 10 in pursuance of notification dated 03.09.1979 applied for the grant of proprietary rights of the land under their cultivation. The District Collector vide order dated 14.03.1984 allowed proprietary rights of the land to the extent of 100 Kanal out of the land measuring 208 Kanal 08 Marlas. Feeling dis-satisfied, the Respondents No. 4 to 10 moved an appeal before the Additional Commissioner (Revenue), Multan and the same was dismissed vide order dated 03.07.1985. Thereafter, the Member Board of Revenue also rejected the respondents' appeal vide order dated 05.03.1986. Being aggrieved, the Respondents No. 4 to 10 moved this Court through Writ Petition Nos. 316, 317 and 318 of 1986 which were accepted vide judgment dated 06.04.1999 whereby it was held as follows:--

"Admittedly, the writ petitioners are three brothers. They have independent families. Para 5 of the Notification dated 03.09.1979 has clearly mentioned the persons included in a family. It soya:- `Size of Grant' The size of grant under these conditions shall be one subsistence holding or thereabout per family. The family for the purpose shall include the lessee's parents, minor children, husband, wife or wives and dependents. Thus, the impugned order are patently illegal and those are so declared and set aside. The writ petitions (W.P. No. 316/86, W.P.No. 317/86 and W.P. No. 318/86) are allowed and the petitioner in each of the said writ petitions, is entitled to 100 Kanals of land independently."

The Province of Punjab through Member Board of Revenue (Colonies) filed C.P.No. 1683-L, 1685-L of 1999 and assailed the above cited order of this Court before Hon'ble Supreme Court of Pakistan but the same were dismissed vide order dated 15.11.2000 being time barred. Consequent upon the dismissal of the petitions by the Hon'ble Supreme Court of Pakistan, Respondents Nos.4 to 10 applied for the allotment of land. The District Officer (Revenue), Vehari vide order dated 22.02.2008 rejected the application of Respondent Nos.4 to 10. Thereafter, the Respondent Nos.4 to 10 filed an appeal under Section 161 of the Land Revenue Act, 1967 read with Section 7 of the Colonization of Government Lands (Punjab) Act, 1912 before the Executive District Officer (Revenue) which was accepted vide order dated 21.07.2008 and the case was remanded to the District Officer, Vehari with a direction to implement the afore cited directions of this Court given vide order dated 6.4.1999 passed in the W.P. No. 316/1986. Hence, this petition.

1. Learned counsel for the petitioners submits that a Kachi Basti' was constructed on the state land situated in Chak No. 56/WB and theBasti' is called as Basti Rait Wali'. The land was barren and based on sand dunes and the people of the village including the petitioners, having no home, started living at thisBasti' in the year 1975 and later on their names were duly incorporated in the voters list; that the petitioners applied to the Board of Revenue for the grant of proprietary rights and despite hectic efforts no action has so far been taken on their applications; that the land situated in `Basti' was never allotted to Respondents No. 4 to 10 and, therefore, they with malafide intention and to cause harassment to the petitioners has applied for grant of alternate land in Khasra No. 19/5 to 7, 13 to 19 and 23 to 24; and, that the order dated 21.07.2008 passed by the Executive District Officer (Revenue), Vehari is illegal.

2. Conversely, the learned Assistant Advocate General while making reference to the comments submitted by the District Officer (Revenue) submits that the petitioners are not in possession of the disputed land which is vacant at the spot; and, that no scheme for survey is operative in the field.

3. I have heard the arguments of learned counsel for the parties and perused the available record.

4. The Executive District Officer (Revenue) through impugned order dated 21.07.2008 has directed the District Officer (Revenue), Vehari to implement the order dated 6.04.1999 passed by this Court in W.P. No. 316/1986 and it would be advantageous to reproduce the operative part of the order which reads as under:--

"I have given due consideration to the arguments advanced by learned counsel for the appellants and perused the record. The request of the appellants for the lease of state land situated in Chak No. 56/WB, Vehari has not been acceded to by the Lower Court on the ground that there exists no policy. I am of the view that the Lower Court has not complied with the orders of Hon'ble High Court dated 06.04.1999 passed in Writ Petition No. 316/1986 to 318/1986, whereby the appellants were declared entitled to state land measuring 300 Kanals. Therefore, the appeal is accepted and the impugned order is hereby set-aside. The District Officer (Revenue), Vehari is directed to implement the order of Hon'ble High Court dated 6.4.1999 both in letter and spirit."

The petitioners after the lapse of one year and nine months, have assailed the validity of the above said order and no reason for this delay has been given. The instant petition suffers from laches as the Hon'ble Supreme Court of Pakistan in the case of Manager, Jammu & Kashmir, State Property in Pakistan Vs. Khuda Yar and another' (PLD 1975 SC 678) andDr. Muhammad Shahid Mian and another Vs. Faiz-ur-Rehman Faiz' (PLD 2011 SC 676) has declared that the reasonable period for filing Constitutional Petition is ninty days. Besides above, the issue whether the petitioners are in possession of the disputed land or whether the disputed land is vacant are controversial facts and in view of law declared by the Hon'ble Supreme Court of Pakistan in the case of "Collector of Customs, Lahore and others Vs. Universal Gateway Trading Corporation and another' (2005 SCMR 37), it can not be resolved in constitutional jurisdiction of this Court. Notwithstanding the above, the order dated 21.07.2008 passed by the Executive District Officer (Revenue), Vehari, warrants no interference by this Court as through the impugned order a simple direction has been issued to the District Officer (Revenue), Vehari to implement the order dated 06.04.1999 passed by this Court in W.P. No. 316/1986.

1. In view of above, this petition lacks merits and, therefore, the same is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2013 Lahore 24 [Rawalpindi Bench Rawalpindi]

Present: Rauf Ahmad Sheikh, J.

KARAM ELAHI--Petitioner

versus

Mst. ZAITOON BIBI and 19 others--Respondents

C.R. No. 337-D of 2012, decided on 23.4.2012.

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

----Ss. 97 & 115--Civil revision--Suit for partition of property--Preliminary decree--Local commission had not performed his duties in accordance with order--Question of--Whether petitioner had infact made statement about mode of partition proposed in report of local commission--Validity--If party to suit for partition did not assail preliminary decree then he cannot contend that property was not divisible or shares as determined in preliminary decrees were to correct or private partition had already taken place in view of provisions of S. 97, CPC--All the parties in attendance including petitioner had put their signatures or thumb impressions--Petitioner had agreed to give passage in exchange of passage--Such made was not assailed by any one except petitioner--Parties were litigating against each other for last 16 years--Mode of partition, as approved by trial Court and upheld by appellate Court was equitable--Concurrent findings recorded by Courts of competent jurisdiction did not call for any interference in exercise of revisional jurisdiction--Petition was dismissed. [Pp. 25 & 26] A & B

Mr. Khalid Mahmood Shahzaib Awan, Advocate for Petitioner.

Date of hearing: 23.4.2012.

Order

The petitioner has assailed the vires of judgment and decree dated 15.03.2012 passed by the learned ADJ, Attack, whereby an appeal filed by him against the final judgment and decree for partition dated 29.03.2011 passed by the learned Civil Judge, Attock, was dismissed.

1. The facts in brief as emerge on perusal of the record are that Respondents No. 1 and 2 filed a suit for partition of the property fully described in the head-note of the plaint. The preliminary decree was passed on 13.10.2010. Thereafter, Irfan Ullah Malik, Advocate, Attock was appointed as local commission before whom the parties entered into a compromise and on the basis of his report, the final judgment and decree were passed. The petitioner assailed the final judgment and decree before the learned District Court but his appeal was dismissed. It is urged that the learned local commission had not performed his duties in accordance with order dated 13.10.2010 of the learned trial Court and had wrongly recorded the so called compromise between the parties; that the petitioner had not given any consent and infact if the judgment of the learned trial Court is acted upon, the house of the petitioner would be demolished; that the disputed property has already been partitioned between 1965-70 and the judgments of both the Courts below are not sustainable and that the inquiry should have been conducted as to whether the petitioner had infact made the statement about the mode of partition proposed in the report of local commission.

2. The contention that the property had already been partitioned and as such the impugned judgments & decrees are not sustainable, cannot be agitated in view of the fact that the petitioner had not assailed the preliminary decree. If the party to the suit for partition does not assail the preliminary decree then he cannot contend that the property was not divisible or the shares as determined in the preliminary decrees were not correct or the private partition had already taken place in view of the provisions of Section 97, CPC. The next contention raised to the effect that the petitioner had not given consent before the local commission about the proposed partition is also against the record. The petitioner had not agitated at any stage that he was not present at the time of the proceedings conducted by the local commission. He had agreed to the proposed partition where-under 07-feet wide passage from the Havali of petitioner and others to the plot of the Plaintiffs/Respondents No. 1 & 2 would be given and in lieu thereof the Plaintiffs/Respondents No. 1 & 2 would give 07-feet wide passage from the Northern side of their plot to the Western corner of the plot of the petitioner. All the parties in attendance including the petitioner had put their signatures or thumb impressions. The petitioner and others had agreed to give passage in exchange of the passage. This mode was not assailed by any one except the petitioner. The parties are litigating against each other for the last 16 years. The mode of partition, as approved by the learned trial Court and upheld by the learned appellate Court is equitable. For the above mentioned reasons, the concurrent findings recorded by two Courts of competent jurisdiction do not call for any interference in exercise of revisional jurisdiction. The petition is without merits and the same is hereby dismissed in limine.

(R.A.) Petition dismissed

PLJ 2013 Lahore 26 (DB)

Present: Umar Ata Bandial and Mrs. Ayesha A. Malik, JJ.

MUZAMIL SULTAN--Appellant

versus

FEDERATION OF PAKISTAN, etc.--Respondents

I.C.A. No. 746 of 2011, decided on 19.4.2012.

Constitution of Pakistan, 1973--

----Arts. 175(2) & 199--Civil Procedure Code (Amendment) Ordinance, 1980--S. 15--Original Civil Jurisdiction--Intra Court Appeal u/S. 15 of C.P.C. against an interlocutory order--Application for operation of show-cause notice to be suspended at an interim measure during pendency of writ petition, dismissal of--Challenge to--Question of--Maintainability of I.C.A.--Determination--Two distinctive jurisdiction--Constitutional jurisdiction is a unique jurisdiction as it is created and conferred by constitution--Original civil jurisdiction is jurisdiction created and conferred by under a law--Validity--Constitutional jurisdiction cannot be taken away, curtailed or abridged by any other law whereas jurisdiction created by or under law can be taken away abridged or curtailed by law--Distinction between or curtailed by law--Distinction between two jurisdictions renders it impossible to read ordinary civil jurisdiction in constitutional jurisdiction--High Court when exercising constitutional jurisdiction in a civil matter, is not exercising original civil jurisdiction--Original jurisdiction of Court confers powers to hear a case for first time--Judgment deciding a constitutional petition would not be judgment in exercise of original civil jurisdiction of High Court within meaning of S. 3(1) of Law Reforms Ordinance--An aggrieved person comes directly to the Court u/Art. 199 does not mean that Court exercises original jurisdiction--Original civil jurisdiction when r/w Art. 175(2) will mean original jurisdiction when created by or under any law--Jurisdiction of Court will not be determined by nature of proceedings--By interpreting original civil jurisdiction u/S. 15 of Ordinance, 1980 so as to include constitutional jurisdiction would mean creating artificial categories within constitutional jurisdiction which clearly is not intention of constitution--I.C.A. was not maintainable. [Pp. 32 & 33] A, B, C & F

2008 CLD 1117 & PLD 1983 SC 109, rel.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional jurisdiction or original civil jurisdiction--Scope of--It simply provides for procedural remedy as no parallel remedy was available for review against an order made under Art. 199 of Constitution. [P. 33] D

Words and Phrases--

----Elementary rule of construction is that if words and phrases are used with technical meaning that they must interpreted with technical meaning that they have acquired. [P. 33] E

Maxwell Interpretation of Statute 12th Edition.

Mr. Salman Aslam Butt, Advocate assisted by Mr. Muhammad Haroon Mumtaz, Advocate for Appellant.

M/s. Shahram Sarwar Chaudhry, Jamil Ahsan Gill, Asim Hafeez and M. Ikram, Advocates for Respondents.

Mr. M. Nasim Kashmiri, Deputy Attorney General for Pakistan for State.

Date of hearing: 4.4.2012.

Judgment

Mrs. Ayesha A Malik, J.--This is an Intra Court Appeal filed under Section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980 against an interlocutory order dated 15.12.2011 passed by the learned Single Judge in Chamber in Constitutional Petition No. 27013 of 2001.

1. Brief facts of the case are that the elections of the Respondent No. 3 were to be held on 19.12.2011. By virtue of an order dated 30.09.2011 passed by the DGTO all the actions taken by the Respondent No. 3 for conducting the elections were declared illegal and void. In this regard a show-cause notice dated 25.11.2011 was issued. The said notice was assailed by the Appellants through W.P. No. 27013/2011. The learned counsel for the Appellants also filed an application for the operation of the impugned show-cause notice to be suspended as an interim measure during the pendency of the writ petition. The said application was dismissed by virtue of the impugned order. Hence this I.C.A was filed.

2. The sole question which requires determination in this appeal is with reference to the maintainability of the I.C.A filed under Section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980 against an interlocutory order made in a Constitutional Petition.

3. Mr. Shahram Sarwar learned counsel for the Respondents submitted that an appeal against an interlocutory order is not maintainable under the Law Reforms Ordinance, 1972 nor is it maintainable under Section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980.

4. On the other hand Mr. Salman Butt learned counsel for the Appellants argued that the I.C.A is maintainable under Section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980 notwithstanding the fact that the impugned interlocutory order was passed in constitutional jurisdiction. It is his case that the High Court when exercising jurisdiction under Article 199 of the Constitution in relation to the enforcement of civil right, is exercising "original civil jurisdiction".

5. Section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980 and Section 3 of the Law Reforms Ordinance, 1972 is reproduced hereunder.

"ORDINANCE NO. X OF 1980

Code of Civil Procedure (Amendment) Ordinance, 1980.

An Ordinance further to amend the Code of Civil Procedure, 1980 (Gazette of Pakistan Extra, dated March 26th 1980)

1. Appeal to High Court is certain cases. Notwithstanding anything contained in Section 3 of the Law Reforms Ordinance, 1972(XII of 1972), an appeal shall lie to a Bench of two or more Judges of a High Court from as interlocutory order made by a single Judge of that Court in the exercise of its original civil jurisdiction."

"LAW REFORMS ORDINANCE 1972

Appeal to High Courts in certain cases.

(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction.

(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an Order made under sub-paragraph (i) of paragraph (b) of that clause:

Provided that the appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable, provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order.

(3) No appeal shall lie under sub-section (1) or sub-section (2) from an interlocutory order or an order which does not dispose of the entire case before the case before the Court

(4) Nothing contained in this Ordinance, shall be construed as affecting:--

(a) any appeal under the Provisions of the Letters Patent applicable to a High Court or under Section 102 of the Code of Civil Procedure, 1908 (V of 1908) which was pending immediately before the commencement of this Ordinance; or

(b) any appeal or petition for leave to appeal from a decree, judgment or order of a single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972."

1. The thrust of the arguments advanced by the learned counsel for the Appellants is based on the interpretation of the words "original civil jurisdiction" in Section 15 of Ordinance X. In order to substantiate this argument learned counsel for the Appellants placed reliance on a case titled Brothers Steel Mills Ltd. and others vs. Mian Ilyas Miraj and 14 others (PLD 1996 S.C 543). In this case, the Hon'ble Supreme Court of Pakistan held that since the High Court exercises civil jurisdiction under the Companies Ordinance, 1984 Section 117 of the Code of Civil Procedure, 1908 shall apply. The reasoning advanced in this case was that since the Companies Ordinance redresses a civil right hence the High Court when exercising jurisdiction under the Companies Ordinance is in fact exercising original civil jurisdiction. The term original civil jurisdiction was explained in detail as being a jurisdiction where the Court is empowered to entertain a suit and a proceeding of a civil nature which is initiated before the Court as a Court of first instance. Such jurisdiction is in contradistinction to the appellate jurisdiction. Interestingly, the Court has held:--

"Under Article 175 of the Constitution, a Court is vested with jurisdiction as is or may be conferred on it by the Constitution or by or under any law. Therefore, the jurisdiction can be conferred on any Court including a High Court by a statute which may provide for initiating the proceedings in that Court as a Court of first instance having power to entertain and decide it. Such Court will thus be vested with original jurisdiction. If it relates to civil dispute it will be termed as original civil jurisdiction. It is not uncommon that statutes are promulgated conferring jurisdiction on the High Court to initiate proceeding as a Court of first instance for purpose of exercises of jurisdiction.

Therefore, in the statute under consideration the term original civil jurisdiction has been used in the general sense."

Mr. Salman Butt argued that for the purposes of interpreting original civil jurisdiction as provided for in Section 15 of Ordinance X, it must be given a general meaning such that it is applicable to constitutional jurisdiction when redressing civil matters.

1. In order to determine whether the High Court exercises original civil jurisdiction under Article 199 of the Constitution the first question that arises is what is original civil jurisdiction and what is constitutional jurisdiction. Article 175 (2) of the Constitution provides that no Court shall have any jurisdiction save as may be conferred on it by the Constitution or by or under any law. A bare reading shows that the said Article provides for two distinctive jurisdictions; a constitutional jurisdiction and a jurisdiction conferred by or under any law.

2. It is settled law that jurisdiction is the authority conferred upon a Court to decide a matter before it. It enables the Court to adjudicate on a particular subject-matter in a given case. The Supreme Court has held that in exercising constitutional jurisdiction under Article 199 the High Court has corrective and directory jurisdiction which has to be tempered with equity. Reliance is placed upon a case titled Syed Wajih-ul-Hassan Zaidi vs. Government of Punjab and others (1997 SCMR 1901). It is discretionary jurisdiction and the High Court cannot go into disputed questions of fact. Reliance is placed upon a case titled Secretary to the Government of Punjab, Forest Department, Punjab Lahore through Divisional Forest Officer Vs. Ghulam Nabi and 3 Others (PLD 2001 SC 415). It has also held that this jurisdiction is to provide expeditious remedy in a case where the executive or any other authority has acted illegally without going into an elaborate inquiry as to the facts, disputed or complicated. Reliance is placed upon case titled Messrs Ittehad Cargo Service and 2 others Vs. Syed Tasneem Hussain Naqvi and others (PLD 2001 SC 116).

3. Learned counsel for the Respondents, Mr. Shahram Sawar has argued that the Lahore High Court does not possess original civil jurisdiction in the nature of a principal civil Court of original jurisdiction. He relied on Pakistan Fisheries Ltd, Karachi and Others Vs. United Bank Ltd. (PLD 1993 SC 109) to explain the meaning of original civil jurisdiction, and upon Lahore Race Club through Secretary and others Vs. Raja Khushbakht-ur-Rehman (2008 CLD 1117) wherein it was held that original civil jurisdiction of a Court means that the Court is empowered to entertain a suit and such proceedings of civil nature which are initiated before the said Court. The jurisdiction can be conferred on any Court including a High Court by a statue and such a Court being a Court of first instance would be vested with original jurisdiction. Where the matter relates to a civil dispute it will be termed as original civil jurisdiction. Mr. Asim Hafeez, learned counsel for the Respondents elaborated this point and argued that there is distinction between ordinary original civil jurisdiction and extraordinary original civil jurisdiction. Both the jurisdictions were different from constitutional jurisdiction. Ordinary civil jurisdiction was confined to the trial of suits. Extraordinary original civil jurisdiction was given for the removal and trial of suits pending or falling within the jurisdiction of Courts subordinate to the High Court. Therefore constitutional jurisdiction was neither ordinary nor extraordinary nor was it statutory jurisdiction. He argued that to refer to it as special jurisdiction would be to minimize its standing and importance, for it is given by an Article in the Constitution for the purposes of implementing the high directive in Article 2 that no person should be treated otherwise than in accordance with the law. The jurisdiction under Article 199 may at best be described as a constitutional jurisdiction of an original kind. Reliance was placed upon a case titled Ahmad Khan Vs. The Chief Justice and the Judges of the High Court, West Pakistan, through the Registrar, High Court of West Pakistan, Lahore, The Member, Board of Revenue, West Pakistan, Lahore and Muhammad Saeed (PLD 1968 S.C 171).

4. We have heard all the counsel submissions and have gone through the case law to which reference was made regarding the meaning of original civil jurisdiction. We have also reviewed Article 175 (2) of the Constitution. The said Article provides for two clear jurisdictions. Constitutional jurisdiction and that jurisdiction which is conferred by or under any law. A bare reading of the Article leads us to conclude that these are two distinctive jurisdictions. Constitutional jurisdiction is a unique jurisdiction as it is created and conferred by the Constitution. Original civil jurisdiction is a jurisdiction created and conferred by or under a law. Constitutional jurisdiction cannot be taken away, curtailed or abridged by any other law whereas a jurisdiction created by or under a law can be taken away, abridged or curtailed by a law. This clear distinction between the two jurisdictions renders it impossible to read ordinary civil jurisdiction in the constitutional jurisdiction. Hence even in the most general of meanings constitutional jurisdiction is very different from civil original jurisdiction. Simply put the two jurisdictions cannot be equated nor can there be an overlap.

5. We are also of the considered view that the High Court when exercising constitutional jurisdiction in a civil matter, is not exercising original civil jurisdiction. The original jurisdiction of a Court confers the power to hear a case for the first time. Hence even though at times constitutional jurisdiction has been referred to constitutional jurisdiction of an original "kind" it is not a Court of first instance exercising civil jurisdiction. A judgment deciding a constitutional petition would not be a judgment in the exercise of the original civil jurisdiction of this Court within the meaning of sub-section (1) of Section 3 of the Law Reforms Ordinance. Reliance is placed on a case titled Asad Ali and 9 others Vs. Settlement & claims Commissioner, Karachi and another (PLD 1974 Karachi 345). The distinction between the two jurisdictions as provided for in Article 175(2) of the Constitution must be retained. The mere fact that an aggrieved person comes directly to the Court under Article 199 does not mean that the Court exercises original jurisdiction. Original civil jurisdiction when read with Article 175(2) of the Constitution will mean original jurisdiction when created by or under any law. Obviously the jurisdiction under Article 199 of the Constitution pertains to civil as well as other matters. Therefore the jurisdiction of the Court will not be determined by the nature of the proceedings. The jurisdiction is conferred either by the Constitution or by or under a law. We note that interplay of the words such as original, civil, ordinary and extraordinary are just nomenclatures given to describe a jurisdiction and can be misleading. In a very instructive judgment of the Supreme Court Brothers Steel Mills Ltd. supra it was held as under:--

"Article 175 of the Constitution does not use such expressions as ordinary, extraordinary, statutory or special in relation to jurisdiction or Courts. These expressions may have been useful in a particular context in the past, in the present context; they are equivocal and can, therefore, be misleading."

1. We are therefore not convinced by the cases relied upon by the counsel for the Appellants especially the Brothers Steel Mills case as the same is related to a matter under the Companies Ordinance and does not directly answer the question raised in this ICA. We are equally not convinced by the reliance placed on Hussain Bakhsh vs. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1) wherein the Hon'ble Supreme Court of Pakistan held that the High Court can review an order under Article 199 of the Constitution of Islamic Republic of Pakistan under Section 114 of the Code of Civil Procedure on the grounds that there is no corresponding provision in the Constitution with regard to the High Court's jurisdiction to review its own decision. This judgment does not advance the case of the Appellants' counsel as the said judgment does not give any findings in relation to the nature and the scope of constitutional jurisdiction or original civil jurisdiction. It simply provides for a procedural remedy as no parallel remedy was available for a review against an order made under Article 199 of the Constitution. Finally the most elementary rule of construction is that if word and phrases are used with a technical meaning then they must interpreted with the technical meaning that they have acquired. (Maxwell; interpretation of statute 12th edition). Both the words "original" and "civil" jurisdiction have specific legal meanings, which we might add even in the most general of sense should be interpreted in accordance to the meaning attributed to them. By interpreting original civil jurisdiction under Section 15 of Ordinance X so as to include constitutional jurisdiction would mean creating artificial categories within the constitutional jurisdiction which clearly is not the intention of the Constitution.

For the foregoing reasons we find that the ICA is not maintainable, hence dismissed.

(R.A.) I.C.A. dismissed

PLJ 2013 Lahore 33 (DB)

Present: Umar Ata Bandial and Mrs. Ayesha A. Malik, JJ.

ADDL. ACCOUNTANT GENERAL--Appellant

versus

M.M. MALIK, etc.--Respondents

I.C.A. No. 508 of 2011, heard on 8.5.2012.

Law Reforms Ordinance, 1972--

----S. 3--Constitution of Pakistan, 1973--Art. 199--Intra Court Appeal--Pensionery Scheme Right to receive periodic increase on un-commuted portion of pension paid each month but denies such increase on surrendered portion of pension--New Scheme does not contemplate curtailment of accrued rights of existing pensioners--A bridgement of right--Error to with held increase given by it on surrendered portion of pension--Validity--Pensioner availed a lawful offer by appellant to commute 50% of his pension on specified terms including inter alia, accrual of periodic increase in pension to both recurring and commuted portion of his pension--Pensioner took a decisive step in reliance upon specified time bound terms of commutation and acquired a vested right which cannot be denied or destroyed subsequently by appellant--Commutation scheme issued by a competent authority that was duly acted upon by its beneficiary creates valuable rights--Such vested right although created under executive instrument cannot be revoked without compensation except through legislation--Revocation of terms of commutation operates prospectively but it cannot impair time bound vested or accrued rights of pensioner that were created--Power does not authorized executive to adopt meaning which curtails accrued and vested rights of existing pensioners without compensation--Such result is disapproved by law--Pensionary rights of pensioner were not adversely affected by terms of O.M--Intra Court Appeal was dismissal. [Pp. 36 & 37] A, B, C, D & E

Mr. Naseem Kashmiri, Deputy Attorney General for Pakistan and Mr. Muhammad Ashraf Khan, Deputy Attorney General for Pakistan for Appellant.

Syed Abrar Hussain Naqvi, Advocate, Mr. Khawar Ikram Bhatti, Addl. A.G. and Mian Masood Ahmed, Advocate for Respondents.

Date of hearing: 8.5.2012.

Judgment

Umar Ata Bandial, J.--This Intra Court Appeal is filed against the judgment dated 01.08.2011 given in W.P. No. 3463 of 2011 by the learned Single Judge in Chambers holding that the Federal Government ("Appellant") was in error to withhold increases given by it on the surrendered portion of the pension of Respondent No. 1 ("Respondent Pensioner") until restoration of the said portion, in terms of paragraph 16(f) of the Office Memorandum dated 04.09.2001("OM") issued by the Finance Division of the Appellant.

1. Learned Deputy Attorney General for Pakistan relies on the judgment of the Hon'ble Supreme Court of Pakistan given in case titled Akram ul Haq Alvi vs. Joint Secretary (R-II), Government of Pakistan, Finance Division, Islamabad & others (2012 SCMR 106) to rebut the impugned judgment. This precedent adopts the rule laid down by the Hon'ble Supreme Court of Pakistan in its judgment dated 28.11.2005 given in Civil Appeals No. 1305 to 1327 of 2003 titled Secretary Finance, Government of Pakistan vs. Roshan Ali Mangi holding to the effect that it is the executive prerogative of the Federal Government to decide its financial commitments including increases in the amount of pension payable to retired government servants. There is no law hindering the government's discretion in these matters which are determined in the light of the government's finance policy and depend upon factors like inflation and financial constraints of the government.

2. Based on the said principle, learned Deputy Attorney General for Pakistan contends that Paragraph No. 16(f) of the OM effective from 01.12.2001 permits the Respondent pensioner, who retired on 24.02.1994 a right to receive periodic increases on the un-commuted portion of pension paid each month but denies such increases on the surrendered portion of his pension.

3. On the above point, learned counsel for the Respondent pensioner has referred to the judgment dated 24.04.2012 of Hon'ble Supreme Court of Pakistan passed in Civil Petitions No. 549 to 559 of 2012 titled Federation of Pakistan vs. Ghulam Mustafa etc. wherein a pensioner's entitlement after 1.12.2001 to receive periodic increases also on the surrendered portion of his pension has been affirmed. Such entitlement is founded upon the principle of equal treatment under law as laid down in Article 25 of the Constitution. However, it may be noticed that the said judgment does not consider in detail the applicability of the rule laid down in the Akram-ul-Haq Alvi case (supra) and therefore, does not address the point presently raised by the learned Deputy Attorney General for Pakistan. Although for our purposes, the judgment in Federation of Pakistan vs. Ghulam Mustafa (supra), is on all fours with the facts in the present case and must be applied herein, nevertheless in order to comprehensively deal with the appellant's stand, it is endeavored to presently attend the objection raised by the learned Deputy Attorney General.

4. The significant feature of the pensionery scheme introduced by the Federal Government in its office memorandum of 04.09.2001 is that Paragraph 17 thereof provides an option to existing civil employees of the Federal Government to choose whether to receive their future pension or its commutation under the newly introduced scheme under the OM of 2001 or under the previously in force scheme of 1994. The said option is, however, not offered by the OM to retired persons/existing pensioners. In case the said option is exercised to avail the new pensionery scheme, then the contents of Paragraph No. 16 (f) of the OM having prospective effect provide as follows:

"In future, the increase in pension to the pensioners shall be allowed on net pension instead of gross pension."

1. The learned Deputy Attorney General for the Appellant has urged that the foregoing provision of paragraph 16 of the OM applies to both existing pensioners and serving employees, who would become pensioners at a future date. In answer to the Court's observation that by granting an option only to prospective pensioners and not existing pensioners, the new scheme under the OM does not contemplate the curtailment of accrued rights of existing pensioners, the learned Deputy Attorney General for Pakistan explains that abridgment of such rights is envisaged by Para 16 (f) of OM which effect is lawful under the executive prerogative of the Federal Government as held in Akram ul Haq Alvi vs. Joint Secretary (R-II) Government of Pakistan, Finance Division, Islamabad & Others (2012 SCMR 106) and in I.A. Sherwani vs. Government of Pakistan (1991 SCMR 1041).

2. The explanation given by the learned Deputy Attorney General fails to address the proposition that upon the event of his retirement in 1994, the Respondent pensioner availed a lawful offer by the appellant to commute 50% of his pension on specified terms including, inter alia, the accrual of periodic increases in pension to both the recurring and the commuted portions of his pension. This assurance was to remain in effect throughout the commutation period. By acting on the terms of commutation in 1994, the Respondent pensioner took a decisive step in reliance upon the specified time bound terms of commutation and thereby acquired a vested right which cannot be denied or destroyed subsequently by the appellant. Such a legal bar comes into existence under the doctrine of locus poenitentiae. Reliance is placed on Muhammad Nawaz vs. Federation of Pakistan and 61 others (1992 SCMR 1420) for the rule that a lawful dispensation, herein the commutation scheme, issued by a competent authority that is duly acted upon by its beneficiary creates valuable rights. Such vested rights although created under an executive instrument cannot be revoked without compensation except through legislation. Reliance is placed on Messrs Army Welfare Sugar Mills Ltd. vs. Federation of Pakistan and others (1992 SCMR 1652 at 1696) and Messrs M.Y. Electronics Industries (Pvt) Ltd. through Manager and others vs. Government of Pakistan through Secretary Finance, Islamabad and others (1998 SCMR 1404). In the present case, the revocation of the terms of commutation by the OM dated 04.09.2001 operates prospectively, but it cannot impair the time bound vested or accrued rights of the Respondent pensioner that were created in 1994.

3. It is thus plausible that the OM dated 04.09.2001 fails to expressly deal with existing pensioners in its para 16. Accordingly, the impugned action exceeds the terms of the said OM. In the result the curtailment of the Respondent pensioner's right to receive periodic increases on the surrendered portion of his pension during the balance commutation period is illegal firstly because the OM lacks express deprivation of right of an existing pensioner to the periodic increases given by the Federal Government. Secondly, the executive prerogative, urged by the learned Deputy Attorney General cannot clothe the executive with a power it does not possess, namely to deprive the Respondent pensioner of an accrued and vested right enjoyed since 24.02.1994. Such an accrued right cannot be taken away by executive action without compensation except through legislation.

4. There is yet another reason that refutes the argument adopted by the learned DAG. A perusal of Paragraph No. 16 (f) of the OM reveals that the expression "net pension" has not been assigned any meaning in the OM or anywhere else in the official documentation of the Federal Government. Merely, the fact that in the Akram-ul-Haq Alvi's case, the Hon'ble Apex Court in the context of Paragraph No. 16 (g) of the OM made reference to but did not decide the meaning of the expression "net pension" does not mean that in the present case, the Appellant is authorized to adopt a self styled meaning of that expression. By not defining the term "net pension" the OM leaves it to the discretion of the executive functionaries to pick and choose what falls within the ambit of the expression. That power does not authorize the executive to adopt a meaning which curtails accrued and vested rights of existing pensioners without compensation. Such a result is disapproved by the law. In the present case pensionary rights of the Respondent pensioner are not adversely affected by the terms of Para 16(f) of the OM.

5. For the foregoing reasons, there is no merit in this I.C.A. and the same is dismissed.

(R.A.) I.C.A. dismissed

PLJ 2013 Lahore 38 (DB) [Rawalpindi Bench Rawalpindi]

Present: Sagheer Ahmad Qadri and Ch. Shahid Saeed, JJ.

RISALAT KHAN--Petitioner

versus

SUPERINTENDENT ADYALA JAIL, RAWALPINDI and 2 others--Respondents

W.P. No. 39 of 2012, decided on 7.5.2012.

Transfer of Offenders Ordinance, 2002(XXXVII of 2002)--

----S. 9(4)--Control of Narcotic Substances Act, 1997, S. 9(b)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Agreement between Govt. of Pakistan and Govt. of Thailand--Accused were transferred to Pakistan to serve out sentences--Sentences passed against them were incompatible with sentences in Pakistan--Maximum punishable upto 7 years--Entitlement to release--Drug trafficking--Validity--Competent Court of jurisdiction in Pakistan has power to adopt sentence and to make it compatible with law of Pakistan, as far as practicable to sentences imposed on offender in specified country wherefrom such offender was transferred to Pakistan--If quantity of narcotic substances recovered was seen committed an offence u/S. 9(b) of Act, 1997, which was maximum punishable upto 7 years--Accused had served out sentence more than sentence provided in Pakistan for alleged offence for which they had been convicted abroad--While exercising powers u/S. 9(4) of T.O. Ordinance, Petitions were allowed. [P. 43] A

M/s. Basharat Ullah Khan and Syed Asghar Ali Sherazi, Advocates for Petitioners.

Mr. Rashid Hafeez, AAG and Raja Javed Ashraf, D.A.G. for Respondents.

Date of hearing: 7.5.2012.

Order

By this single order we propose to dispose of Writ Petition Nos. 39/2012, 1008/2012, 41/2012, 1009/2012, 2953/2011, 3106/2011, 2985/2011 and 3102/2011 as common questions of law & facts are involved in all these petitions.

1. Brief facts necessary to dispose of all these petitions are that petitioners in all these writ petitions are involved and arrested under the charges that different kinds of narcotics were recovered from their possession and they were convicted by Court of competent jurisdiction in Thailand. Details of their involvement and conviction as submitted by Superintendent Central Jail, Rawalpindi are reproduced:--

Petitioners as a result of agreement between the Government of Islamic Republic of Pakistan and the Government of The Kingdom of Thailand were transferred to Pakistan to serve out their sentences.

Petitioners have moved the instant writ petitions by invoking Section 9(4) of the Transfer of Offenders Ordinance, 2002 with a prayer that as sentences passed against them are incompatible with the sentences provided of the offences in Pakistan and as they have already served out the sentence exceeding the sentence provided according to Pakistani Law, hence, they are entitled for their release from jail.

1. Learned counsel for the petitioners in all the writ petitions specifically argued that if the quantity of narcotic substance/drug is seen, in all the cases it is above 100 gram and less than 1000 grams, hence, according to Pakistani Law i.e. Control of Narcotic Substances Act, 1997 it falls within the ambit of Section 9(b) which is maximum punishable up to 7 years R.I; that all the convicts/petitioners, if seen, have served out the sentence more than 7 years, hence, they are entitled to their release. Learned counsel for the petitioners further referred Article 9 of the inter se agreement between the Governments i.e. the Government of the Islamic Republic of Pakistan and the Government of Kingdom of Thailand that receiving State may regulate the terms of imprisonment or confinement according to the law of the Country, hence, prayed that these writ petitions be allowed and petitioners be released from jail. Reliance in this respect is placed on "Imran Ali versus Province of Sindh through Secretary, Home Department, Sindh Secretariat, Karachi and 3 others" (2007 P.Cr.LJ 1364) and "Muhammad Iqbal versus Province of Sindh through Secretary, Home Department and 2 others" (PLD 2011 Karachi 32).

2. On the other hand, learned Deputy Attorney General and Learned AAG keeping in view the facts and circumstances of the case specially referring the above mentioned two judgments in the light of Section 9(4) of the Transfer of Offenders Ordinance, (XXXVII of 2002) conceded the Proposition.

3. We have heard both sides and perused the record.

4. Admittedly, all the petitioners were involved in drug trafficking and from their possession the narcotic substance/drug mentioned in the above mentioned report was recovered in different quantities. In cases against all the petitioners if quantity of the narcotic substance/drug is kept in view, it falls within the ambit of Section 9(b) of Control of Narcotic Substances Act, 1997, which is maximum punishable up to 7 years R.I.

All the petitioners were transferred after their conviction by the Court of competent jurisdiction in Thailand under the agreement signed between the Government of Islamic Republic of Pakistan and the Government of Kingdom of Thailand whereby under Article 9 of the said agreement it is provided:--

Article 9

Procedure for Enforcement of Sentence

1. The continued enforcement of the sentence after transfer shall be governed by the laws and procedures of the Receiving State, including those governing conditions for service of imprisonment, confinement or other deprivation of liberty, and those providing for the reduction of the term of imprisonment, confinement or other deprivation of liberty by parole, conditional release, remission or otherwise. "

Under Section 9 of the Transfer of Offenders Ordinance (XXXVII of 2002) it is provided:--

1. Inspector-General of Prisons to have the custody of an offender transferred to Pakistan.--(1) Every offender being transferred to Pakistan from any specified country, upon an order under Section 4 shall be formally handed over to the Inspector-General of Prisons so nominated by the Competent Authority and the concerned Inspector-General of Prisons shall have the authority to keep such offender in custody in any place as may appear to him to be appropriate for giving effect to the sentence of imprisonment imposed on such offender in such specified country for the period of the sentence as if it were a sentence imposed by a Court in Pakistan.

(2) The enforcement of the sentence of imprisonment imposed on any offender who is transferred to Pakistan under sub-section (1) shall be governed by the laws of Pakistan.

(3) Notwithstanding anything contained in sub-section (2) the Competent Authority shall, unless otherwise specified in the agreement, be bound by the legal nature and duration of the sentence of imprisonment imposed on any offender transferred to Pakistan under sub-section (1).

(4). Where the legal nature and duration of the sentence of imprisonment imposed on any offender transferred under sub-section (1), is incompatible with any law of Pakistan, it shall be lawful for a Court of competent jurisdiction in Pakistan however that the sentence as adopted by such Court in Pakistan corresponds, as far as practicable, to the sentence imposed on Court such offender in the specified country from which such offender was transferred to Pakistan. "

If sub-section (4) of Section 9, ibid, is seen, the competent Court of jurisdiction in Pakistan has the power to adopt the sentence and to make it compatible with the laws of Pakistan, as far as practicable to the sentences imposed on the offender in specified country wherefrom such offender was transferred to Pakistan. Admittedly, all the petitioners, if the quantity of narcotic substance recovered is seen, committed an offence under Section 9(b) of Control of Narcotic Substances Act, 1997, which is maximum punishable up to 7 years R.I. All the petitioners have served out the sentence more than the sentence provided in Pakistan for the alleged offence for which they have been convicted abroad. In view of the circumstances, while exercising the powers under Section 9(4) of the Ordinance, ibid, we feel it appropriate to allow all these writ petitions. Resultantly, it is directed that petitioners be released from the jail forthwith, if not required in any other case.

(R.A.) Petitions allowed

PLJ 2013 Lahore 43 [Rawalpindi Bench Rawalpindi]

Present: Sagheer Ahmad Qadri, J.

MUHAMMAD KAUSAR IQBAL--Petitioner

versus

A.D.J., JHELUM and others--Respondents

W.P. No. 4287 of 2010, heard on 8.5.2012.

Constitution of Pakistan, 1973--

----Art. 199--Illegal Dispossession Act, 2005, Ss. 3 & 7--Private complaint was filed u/S. 3 & 7, Illegal Dispossession Act, which was dismissed--No offence u/S. 3 of Act, 2005 was made out--Common object trespassed--Shamlat Deh reserved for common use owners--Being co-sharer every owner was entitled to use Shamlat Deh which was reserved for common purpose--Private complaint u/S. 3 of Act, cannot be filed against co-sharer--Validity--When possession over disputed portion of land was not proved, illegal dispossession when penal actions were to be initiated against respondent cannot prima facie be proved, thus trial Court rightly dismissed complaint, as petitioner neither produced copies of the judgment allegedly passed in favor of his father by Civil Court nor any Revenue Court. [P. 47] A

Constitution of Pakistan, 1973--

----Arts. 4 & 10-A--Right of an individual citizen--Right to fair trial--To level an allegation against a person is easy but to rebut was very difficult task--Whenever an individual was aggrieved of an act or omission which constitutes an offence by another person he has right to get penalized same in accordance with provisions provided under law but at same time every body has right to be provided a safeguard against his false implication under any such charges with mala fides--Illegal Dispossession Act, if seen was enacted with object to protect lawful owners and occupiers of immovable properties from their illegal and forcible dispossessions by property grabbers but unfortunately such provisions were being utilized by people with malafides to achieve their ulterior motives to convert civil litigation into criminal one--Every citizen be no only dealt with in accordance with law and no action detrimental to life, liberty, body, reputation or property of any person shall be initiated except in accordance with law as well as he be provided fair trial--Court should protect innocent people from unlawful and unjustified involvement in such litigations. [P. 48] B & C

PLD 2011 SC 181, rel. PLD 2007 Pesh. 179, 2011 PCr.LJ 315, 2008 YLR 462, 2007 PCr.LJ 891 & 2010 PCr.LJ 575, rel.

Ch. Imran Hassan Ali, Advocate for Petitioner.

Kh. Khalid Farooq, Advocate for Respondents.

Date of hearing: 8.5.2012.

Judgment

Petitioner/complainant filed a private complaint against the respondents under Section 3 read with Section 7 of the Illegal Dispossession Act, 2005 before the learned Sessions Judge, Chakwal, which was entrusted to the Court of learned Additional Sessions Judge/Respondent No. 1 mentioning the facts that he was resident of Mauza Malot, Police Station Kallar Kahar District Chakwal and presently was residing at Satellite Town, Rawalpindi; that his ancestral owned land bearing Khasra Nos. 2231 to 2239, Khewat No. 94 to 163, Khatooni Nos. 737 to 373 situated in the revenue estate of Mauza Malot was in his possession since ancestors; that the respondents previously in the life time of petitioner's father Cap. Muhammad Khan also tried to dispossess him from the land mentioned above and who suit against Respondents Nos. 7 to 14 which was decided in his favour on 7.2.1979 and attained finality as was never challenged before any Court of appeal etc; that on 17.7.2010 at 5:00 p.m. Respondents Nos. 2 to 15 armed with deadly weapons in furtherance of their common object trespassed into the land and in the presence of Akbar Ali son of Sultan, Abdul Rauf son of Muhammad Tasib, Muhammad Israr son of Hazir Muhammad, Basharat son of Umar Hayat, Muhammad Rasheed so of Atta Muhammad and Qaisar son of Riasat Ali PWs threatened for dire consequences and got the illegal possession of the land and also damaged the trees etc. at the spot; that Ali Akbar informed the petitioner/ complainant about the occurrence and he reached at the spot, contacted the respondents through Muhammad Tasib son of Atta Muhammad but they did not consider petitioner's request rather threatened him that he should remain within his limits. Prayed that action be initiated against the respondents accordingly.

1. On filing of the private complaint learned trial Court/ Respondent No. 1 recorded preliminary statement of the petitioner/ complainant Kausar Iqbal wherein he reiterated his stand mentioned in the complaint. The learned trial Court sought report from the concerned SHO, which report was submitted showing that no such occurrence ever took place and respondents are actually co-sharers in the land in dispute. The SHO also did not observe as he visited the spot and found no signs/evidence of cutting the trees etc. Learned trial Court on the basis of report and the available record found that no offence under Section 3 of the Illegal Dispossession Act, 2005 was made out, hence, dismissed the complaint vide impugned order dated 25.8.2010. Feeling aggrieved the petitioner preferred this writ petition, which was admitted for regular hearing on 6.10.2010 and notices were issued to the respondents.

2. Learned counsel for the petitioner argued with vehemence that the impugned order is against the law and facts of the case. Learned counsel argued that if the contents of the complaint are seen, in Para 2 the petitioner-complainant specifically claimed himself as owner in possession of the land in dispute. Learned counsel referred the judgment dated 7.2.1979 in a civil suit titled "Muhammad Khan versus Sooba Khan and others" passed by learned civil Court at Pind Dadan Khan wherein the suit for declaration was decreed in favour of the petitioner's father declaring him in possession of the disputed khasra numbers. Learned counsel argued that the learned trial Court only on the basis of the report by the SHO without affording an opportunity to the petitioner/complainant to lead further evidence at preliminary stage in violation of Section 202, Cr.P.C. dismissed the complaint. Contends that at preliminary stage petitioner was only obliged to make out a prima-facie case to further proceed for disposal of the matter in accordance with law after summoning the other side; that although prima-facie offence under Section 3 of the Illegal Dispossession Act, 2005 was made out but learned trial Court did not consider the evidence available on record and dismissed the complaint vide impugned order which is liable to be set aside; that the police report was misleading specially in the light of the judgments passed by the civil Courts in favour of the petitioner's father; that impugned order in the light of judgments is liable to be set aside. While relying on "Mrs. Mehmooda Aftab through Attorney and another versus Marghoob Hussain and 3 others" (2010 MLD 503), "Abdul Rehman versus Muhammad Shahid Qureshi and another" (PLD 2009 Karachi 117), "Iftikhar Ahmad versus Zulfiqar Ali and 3 others" (PLD 2008 Lahore 59), "Malik Muhammad Naeem Awan versus Malik Aleem Majeed and 5 others" (PLD 2008 Lahore 358), "Muhammad Riaz Ahmed Khan versus Imran Abdullah and 5 others" (2009 P.Cr.L.J 491) and "Mian Sharif Shah versus Nawab Khan and 5 others" (PLD 2011 Peshawar 86) prayed that this petition be allowed.

3. Conversely, learned counsel for Respondents Nos. 2 to 15 vehemently opposed the arguments advanced by learned counsel for the petitioner by contending that except the oral assertion by the complainant while appearing as AW-1 he did not produce any document along with the complaint. Learned counsel argued that land in dispute is "Shamlat Deh" reserved for common use of the owners in the village; that petitioner although mentioned that his father was earlier in possession of the disputed portion of the land but he did not produce any evidence in the shape of documents before the Court. He did not produce any revenue record showing his possession over the land in dispute. He never moved before any of the revenue officials to get the land demarcated and to prove if any encroachment was ever made by the respondents. Even otherwise, being co-sharer every owner in the village is entitled to use the "Shamlat Deh" which is reserved for common purposes; that subsequent to dismissal of complaint, petitioner has also filed suit for possession under Section 9 of the Specific Relief Act against Respondents Nos. 1, 2, 8, 9 and 15 which is still pending in the civil Court at Chakwal; that complaint under Section 3 of the Illegal Dispossession Act, 2005 cannot be filed against a co-sharer in the circumstances of the case; that the learned trial Court rightly dismissed the complaint vide impugned order dated 25.8.2010. While relying on "Jan Pervez versus Haji Fazal Hussain and 6 others" (PLD 2007 Peshawar 179), "Sadiq Husain versus Ghulam Rasul and 6 others" (2011 P.Cr.LJ 315), "Fazal Karim versus The State and 10 others" (2008 YLR 462), "Noor Zada versus Muhammad Khalid and 6 others" (2007 P.Cr.LJ 891) and "Mst. Zahida Nasreen versus Additional Sessions Judge, District Sahiwal and 2 others" (2010 P.Cr.LJ 575) prayed that this petition be dismissed.

4. I have heard the learned counsel for the parties and have gone through the record.

5. If the private complaint filed by the petitioner, the original record of which is available before this Court, is seen, he has claimed himself in possession of Khasra Nos. 2231 to 2239 as a civil suit was decided in favour of his father on 7.2.1979. In para 4 of the complaint he alleged his dispossession by the Respondents Nos. 2 to 14 on 17.7.2010. The private complaint is filed on 27.7.2010 after about 10 days of the alleged dispossession. No report whatsoever was ever lodged to the police as it is evident from the report submitted by Khalid Mehmood, S.I, Police Station Kallar kahar dated 16.8.2010 whereby it was reported that no occurrence as alleged by the petitioner ever took place. The complainant/petitioner has annexed Photostat copy of register haqdaran zameen for the year 2007-2008 showing Shamlat Deh as "Maqbooza Malkaan" in possession of the owners of the village. He has not produced any Khasra Girdawri showing his possession over the disputed portion of the land. In these circumstances, when possession over the disputed portion of land was not proved, the illegal dispossession in these circumstances when penal actions are to be initiated against the respondents cannot, prima-facie, be proved, thus, learned trial Court rightly dismissed the complaint, as petitioner neither produced copies of the judgments allegedly passed in favour of his father by the civil Court nor any revenue record.

6. It has now been settled by the Hon'ble Supreme Court of Pakistan in a judgment titled "Waqar Ali and others versus The State through Prosecutor/Advocate-General, Peshawar and others" (PLD 2011 Supreme Court 181) that the complainant is duty bound to state facts which, without extraneous considerations or evidence, satisfy the Court of the existence of every ingredient of alleged offence and without such, a complainant is not entitled to invoke aid of the Court and to foist travails of criminal trial on person accused by him.

7. Right of an individual/citizen is to be dealt with in accordance with law is guaranteed under Article 4 of the Constitution l of Islamic Republic of Pakistan, 1973. Under Article 10-A further right to fair trial has been guaranteed recently. It is commonly known to everybody that to level an allegation against a person is easy but to rebut the same is a very difficult task. No-doubt, whenever an individual is aggrieved of an act or omission which constitutes an offence by another person, he has the right to get penalized the same in accordance with the relevant provisions provided under the relevant laws but at the same time everybody has the right to be provided a safeguard against his false implication under any such charges with malafides. Illegal Dispossession Act, 2005, if seen, was enacted with the object to protect the lawful owners and occupiers of the immoveable properties from their illegal and forcible dispossessions by the property grabbers etc. but unfortunately these provisions are being utilized by certain people with malafides to achieve their ulterior motives to convert the civil litigation into criminal one. It is thus, as mentioned above, guaranteed under Article 4 read with Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 that every person/individual/citizen be not only dealt with in accordance with law and no action detrimental to the life, liberty, body, reputation or property of any person shall be initiated except in accordance with law as well as he be provided fair trial. The heavy responsibility thus lies on Courts at any stage of the trial to protect the innocent people from their involvement in any such type of litigation either civil or criminal. It is commonly known that due to so many extraneous reasons a very minor litigation either civil or criminal lingers on years and years and innocent people suffer without their being any fault on their part. It has now been settled by this Court as well as the Hon'ble Apex Court of the Country that Court should protect innocent people from unlawful and unjustified involvement in such like cases/litigations. In this respect judgment cited above can be referred again "Waqar Ali and others versus The State through Prosecutor/Advocate-General, Peshawar and others" (PLD 2011 Supreme Court 181), in which their Lordships of the Hon'ble Supreme Court of Pakistan at page 191 in Para 13 observed:--

"Courts which have been authorized to try cases under the Act thus have a responsibility to see that the persons named in the complaint have a case to answer, before they are summoned to face trial. This course, unfortunately has not been followed in the present case. As a result the appellants unnecessarily, have had to face trouble, expense and disruption in their lives. In this process the time and scarce resources of the Court have also been wasted and its docket burdened without cause. It may be clarified that the Court may, in the first instance, issue a notice (rather than summons) to the accused person if it requires clarification or in order to ensure that cognizance is justified. "

1. Keeping in view the above discussion, course adopted by the learned trial Court and the conclusion drawn vide impugned order dated 25.8.2010 is lawful, hence, does not call for interference by this Court in exercise of the writ jurisdiction. Resultantly, this petition being without any force is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2013 Lahore 49 [Rawalpindi Bench Rawalpindi]

Present: Ijaz Ahmad, J.

MUHAMMAD SAJJAD & others--Petitioners

versus

CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE & others--Respondents

W.P. Nos. 1850, 1483, 1791, 1781, 697 and 1678 of 2011, decided on 12.4.2012.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Petitioners were appointed on contract basis for posts of sanitary worker, cook, gardener, water carrier and Daftri--Services were terminated on ground that they were not domiciled in province of Punjab--In case of petty employees cannot be recalled after elapse of sufficient period--Question of--Whether civil servants lacked basic eligibility or not--Determination--Authority while making such appointments shall keep in view that appointments, if made, from outside the province may deprive its own inhabitants of their right of livelihood--Nation today was facing the menace of prejudice on regional, religious, cultural and ethnic basis--Cancellation of appointment orders in favour of the petitioners not hailing from province of Punjab, even if having been passed illegally, would generate misunderstanding and hatred among the people various provinces and Federal Capital Territory--Terminating orders were set aside. [Pp. 53 & 54] A

2005 PLC (CS) 1056 & 2004 SCMR 1077, ref.

Mr. Karamat Hussain, Advocate for Petitioners (in W.P. No. 1850 of 2011).

Raja Ikram Amin Minhas, Advocate for Petitioners (in W.Ps. Nos. 1483, 1791 and 1781 of 2011).

Mr. Jaffar Hussain Kiani, Advocate for Petitioner (in W.P. No. 697 of 2011).

Mr. Musharraf Mehmood Qazi, Advocate for Petitioners (in W.P. No. 1678 of 2011).

Mr. Rashid Hafeez, AAG.

Date of hearing: 12.4.2012.

Order

This order will dispose of Writ Petition No. 1850/2011, Writ Petition No. 1483/2011, Writ Petition No. 1678/2011, Writ Petition No. 1781/2011, Writ Petitions No. 1791/2011 and 697 of 2011, as the similar facts and questions of law are involved in all these petitions.

1. In the captioned petition, the petitioners responding to an advertisement meant to fill in vacancies for the posts of Sanitary Worker, Cook, Gardener, Water Carrier and Daftri etc. applied. The petitioners in W.P. No. 1781 of 2011, W.P. No. 1791 of 2011 and W.P.No. 1678 of 2011, applied for the posts of Naib Qasids and Dhobis (washermen). The petitioners in Writ Petition No. 1483/2011 and 697/2011 were appointed as Constables in BPS--5. All the petitioners in the aforementioned petitions fulfilled the requisite qualifications. They were appointed by the competent authority on contract basis. The petitioners joined and performed their duties till the issuance of the impugned orders dated 20.06.2011 and 07.02.2011 terminating their service on the ground that they were not domiciled in the Province of the Punjab rather they hailed from capital territory Islamabad and other Provinces.

2. It is contended by learned counsel for the petitioners in all these petitions that the advertisement issued by the concerned department in case of the petitioners, required the production of the CNIC, the domicile certificate and testimonials regarding their experience, etc. The same were submitted. On the basis of those documents, the petitioners were found eligible for being appointed- on contract basis. There is no allegation that the petitioners in order to obtain the appointments had made any false statement in their applications or had appended such domicile certificate that would have misled the authority to ascertain the place of their abode or would have helped the petitioners to earn the post reserved for the Province of the Punjab and that instead of regularization of their service in accordance with the Notification No. DS (O&M) 5-3/ 2004/ Contract/(MF), dated 14.10.2009, issued by Government of the Punjab, S&GAD, the service of the petitioners have illegally been terminated; that in fact the regularization is only a formality giving permanence to the service of those who though initially were appointed on the contract basis yet by the passage of time and by continued performance of the duties without any breach have impliedly attained the status of permanent employees. It is further contended that they are equipped with the basic qualifications and have, during their service, incurred no disability, either physical or mental or educational to disentitle them to continue to perform their duties or earn their livelihood. It is added by the learned counsel that any appointment, even if, made contrary to the rules or the procedure especially, in case of the petty employees cannot be recalled after the elapse of sufficient period. If any action is required to be taken, it should be taken against the authority who might have committed the illegality. Reliance is placed on 2004 SCMR 1077 titled Muhammad Akhtar Shirani and others Vs. Punjab Text Book Board and others, 2005 PLC (C.S.) 1056 titled Muhammad Shoaib and 2 others Vs. Government of N.W.F.P. through the Collector, D.I. Khan and others and 1996 SCMR 413 titled Secretary to Government of N.W.F.P. Zakat/Social Welfare Department, Peshawar and another Vs. Sadullah Khan; that if the petitioners had not produced the false certificates and the one produced by them was not objected to by the appointing authority, at the time of initial appointment, the appointment of a person domiciled in any other Province may not be set aside. Reliance is placed on PLJ 1983 Tr.C. (Labour) 132 titled Agricultural Director, Agricultural Engineering Deptt, Multan and Another Vs. Malik Muhammad Amin; that even an admission to a medical college made against the merit on account of the error of a computer may not be set aside, later on, once a candidate has been allocated the roll number and has joined the classes. Reliance is placed on 1997 SCMR 15 titled Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others Vs. Wasif Zamir Ahmad and another and that if the appointing authority was competent but there was some irregularity in following the procedure, the same would not render the appointment illegal and liable to be set aside. Reliance is placed on 2004 SCMR 303 titled Collector of Customs and Central Excise, Peshawar and 2 others Vs. Abdul Waheed and 7 others. Lastly argues that an authority cannot take the benefit of its own lapses. Relies on the judgment dated 02.02.2012, passed in Writ Petition No. 1970 of 2011 titled Nazir Ahmad Vs. Commandant Police Sihala etc.

3. On the other hand, it is contended by the learned AAG that any illegality committed on behalf of the competent authority gives no benefit to the persons appointed illegally; that even if a person having been so appointed has joined the service, he cannot be extended the protection under the principle of locus poenitentiae. Relies on 2000 SCMR 907 titled Abdul Haque Indhar and others Vs. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others, 2009 PLC (C.S) 161 titled Nazir Ahmad Panhwar Vs. Government of Sindh through Chief Secretary, Sindh and others and 2007 SCMR 318 titled Muhammad Sidiq through L.Rs. Vs. Punjab Service Tribunal, Lahore and others; and that the petitioners lack the basic eligibility, therefore, they could not draw any benefit from the appointment orders which are ab initio void. Relics on 2006 SCMR 285 titled Muhammad Zahid Iqbal and others Vs. D.E.O. Mardan and others. Further argues that the contract employment bestows no right on a person. Relies on PLD 2011 Supreme Court 132 titled Pakistan Telecommunication Co. Ltd. through Chairman Vs. Iqbal Nasir and others.

4. I have heard the learned counsel for the petitioners as well as the learned AAG and also gone through the record.

5. The basic question is whether the petitioners lack the basic eligibility or not? In 2006 SCMR 285 titled Muhammad Zahid Iqbal and others Vs. D.E.O. Mardan and others, relied upon by the learned AAG, the petitioners holding various posts as teachers in the Education Department lacked the basic qualifications and training courses which were a pre-requisite for the posts in question. Moreover, those affectees had a recourse before the learned Service Tribunal in all the cases after the elapse of five years. In the cases in hand, the petitioners do not lack the basic qualifications. In 2000 SCMR 907 titled Abdul Haque Indhar and others Vs. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others, the petitioners had obtained the lease rights to temporary cultivation of the Forest Land for three years without a public auction and the period was extended without lawful authority. In that case, it was held that the orders were ab initio void and had been passed and period had been extended without lawful authority. In 2009 PLC (C.S) 161 titled Nazir Ahmad Panhwar Vs. Government of Sindh through Chief Secretary, Sindh and others, it was held that the principle of locus poenitentiae was available only in the case if an order was passed by the competent authority. In the instant cases, it cannot be said that the orders had been passed by any incompetent authority. In fact, the same were passed by an authority competent to do it. The domicile in the particular Province is not such a qualification without which an appointee cannot properly perform his duties. It is only a mode of making the appointments in an area from amongst its residents. This factor, no doubt, has to be considered in order to safeguard the rights of the residents of a particular Union Council, Tehsil, District or a Province at the time of appointment. But the authorities had demanded and considered the domiciles of the petitioners and had held them legible for the appointment. They have, during the course of their service, not incurred any fresh disability. They have not become physically or mentally incapacitated. They have not changed their places of abode and they have also not made any false statement or produced any false certificates that would have misled the authorities. The petitioners are petty servants. Nature of their assignments will only facilitate them to earn their livelihood which is their basic and fundamental right, as has been held in 2003 PLC (C.S.) 69 titled Dr. Naveeda Tufail and 72 others Vs. Government of Punjab and others. The candidates seeking employment in the lower grades generally possess the basic education only. They do not understand the technicalities and intricacies of law. On the other hand, the appointing authorities having served their departments and having dealt with relevant rules for a long time, know the technicalities of law. It is the appointing authority who in case of an illegal appointment is to be punished and not the petitioners who if punished will be deprived of their right to earn livelihood and will be disabled to perform their duties towards their dependants. Reliance is placed on 2004 SCMR 1077 titled Muhammad Akhtar Shirani and others Vs. Punjab Text Book Board and others and 2005 PLC (C.S.) 1056 titled Muhammad Shoaib and 2 others Vs. Government of N.W.F.P. through the Collector, D.I. Khan and others. The authorities while making such appointments shall keep in view that the appointments, if made, from outside the Province may deprive its own inhabitants of their right of livelihood. It is pertinent to mention that the Nation today is facing the menace of prejudice on regional, religious, cultural and ethnic basis. At this juncture, the cancellation of appointment orders in favour of the petitioners not hailing from the Province of the Punjab, even if having been passed illegally, would generate misunderstanding and hatred amongst the people of various Provinces and the Federal Capital Territory.

For what has been discussed above, the impugned orders terminating the service of the petitioners are held illegal and the same are set aside. These petitions are accepted.

(R.A.) Petitions accepted

PLJ 2013 Lahore 54 [Multan Bench Multan]

Present: Abdul Sami Khan, J.

SOHAIL MEHMOOD--Petitioner

versus

STATE and 4 other--Respondents

W.P. No. 9003 of 2011, decided on 4.9.2012.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Deletion of S. 392, PPC and added S. 341, PPC--No incriminating material was available--Question of legality and validity of order--Validity--After registration of the case, investigation was conducted by I.O. and during investigation I.O. had deleted S. 392, PPC and inserted Ss. 341 & 34, PPC as accused remained on physical remand but nothing incriminating was recovered--Question of addition of S. 392, PPC or deletion of S. 341, PPC will be seen by trial Court at time of framing of charge--Order passed by prosecution was without substance and was set aside--Petition was allowed. [P. 55] A

Mr. Nadeem Ahmad Tarar, Advocate for Petitioner.

Mr. Aziz-ur-Rehman, AAG for Respondents.

Date of hearing: 4.9.2012.

Order

Through this petition the petitioner has called in question the legality and validity of order dated 30.03.2012 of Assistant District Public Prosecutor, Khanewal whereby he issued direction to the I.O. for inserting Section 392, PPC.

1. Learned counsel for the petitioner submits that after registration of the case, thorough investigation was conducted by the I.O. and Section 392, PPC was deleted and Section 341/34, PPC was inserted. He further submits that the petitioner remained on physical remand but no incriminating material was available against the petitioner, so the I.O. had rightly deleted Section 392, PPC. Learned counsel contends that order dated 30.03.2012 of Assistant District Public Prosecutor whereby he directed the I.O. to add Section 392, PPC is against the facts of the case and the same is against the law which is liable to be set aside.

2. Learned AAG while supporting the impugned order submits that under Section 9 sub-section (7) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act:, 2006, a prosecutor is competent to pass an order in writing as per available evidence and applicability of offences against all or any of the accused as per facts and circumstances of the case. He relied upon 2009 Lahore 135.

3. I have heard the arguments of learned counsel for the petitioner as learned AAG and perused the available record with their able assistance.

4. Admittedly, after registration of the case, the investigation was conducted by the I.O. and during investigation I.O. has deleted Section 392, PPC and added Section 341/34, PPC as the petitioner remained on physical remand but nothing incriminating was recovered from him. The question of addition of Section 392, PPC or deletion of Section of 341 or 341/34, PPC will be seen by the learned trial Court at the time of framing of charge. The order passed by the Assistant District Public Prosecutor is without substance and the same is hereby set aside. Resultantly, this petition is allowed. However, the learned trial Court shall look into the matter regarding the offence committed by the petitioner at the time of framing of charge.

(R.A.) Petition allowed

PLJ 2013 Lahore 55

Present: Shahid Waheed, J.

ARSHAD ALI etc.--Petitioners

versus

MUHAMMAD TUFAIL, etc.--Respondents

C.R. No. 2109 of 2010, heard on 11.10.2012.

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

----S. 11--Principles of res judicata--Applicability--Suit was dismissed--Debar from re-agitating matter afresh by a civil suit--Doctrine of res-judicata--When any matter which might and ought to have been made a ground of defence or attack in former proceedings but was not so made, then such a matter in eye of law, to avoid multiplicity of litigation and to bring finality in it, was deemed to have been constructively in issue and was taken as decided--It is correct that Court cannot examine or reject a suit on ground of res-judicata unless an issue was framed focusing the parties on that bar to suit--Pleadings in earlier suit should be exhibited or marked by consent or at least admitted by both the parties--Before civil Court the same issue was re-agitated and sought to be reiterated all over again--Thus they were precluded from doing both on general principle of res-judicata and on ground that decision of High Court deciding question of law was binding on all Courts subordinate to it--Petition was dismissed. [Pp. 60 & 61] A, D & F

Res-judicata--

----Scope of--Object and purpose of principle of resjudicata is to uphold rule of conclusiveness of judgment, as to points decided earlier of the fact, or of law in every subsequent suit between same parties--Once matter which was subject matter of lis stood determined by competent Court, no party thereafter can be permitted to reopen it in a subsequent litigation. [P. 60] B

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

----S. 11--Resjudicata--Jurisdiction of civil Court--It is true that any order made by Revenue authorities under W.P. Land Revenue Act do not bar any party to establish his right or title in respect of immovable property by invoking jurisdiction of civil Court--There is no cavil to proposition that order passed by Revenue authorities does not operate as resjudicata U/S. 11, CPC. [P. 61] C

Constitution of Pakistan, 1973--

----Art. 201--Finding was binding on subordinate Courts--Such being legal position, civil Court could not have held same orders to be illegal and ultra vires, when High Court had already found them to be legal and valid--Judgment of High Court, which was passed in exercise of its constitutional jurisdiction, had left no question in issue undecided. [P. 62] E

Mr. Muhammad Iqbal Mohal, Advocate for Petitioners.

M/s. Ch. Mushtaq Masud and Muhammad Sultan Kasuri, Advocates for Respondents.

Date of hearing: 11.10.2012.

Judgment

Challenge in this revision is to the judgment and decree dated 13.4.2010 passed by the learned Addl. District Judge, Pasrur who affirmed the judgment and decree dated 3.10.2009 passed by the learned Civil Judge, Pasrur whereby the petitioners' suit was dismissed on the principle of res judicata.

1. The facts which form the background of the instant petition are that the Petitioners Nos. 1 and 2 and predecessor of the Petitioner Nos. 3 to 7 through Mutation No. 6030 dated 15.3.1963 sold the land measuring 105 Kanals 9 Marlas to Respondent No. 4 (Muhammad Bashir). Thereafter, Muhammad Bashir resold half of the above said land in favour of the petitioners vide Mutation No. 6078 dated 24.2.1964. On 24.2.1964 Sultan Ali, predecessor of Respondent Nos. 1 to 3, instituted a suit for possession through pre-emption against Muhammad Bashir (Respondent No. 4) in respect of Mutation No. 6030. Muhammad Bashir contested the suit. It is worth mentioning here that in this suit the petitioners were not impleaded. The suit filed by Sultan Ali was decreed by the learned trial Court vide judgment and decree dated 17.7.1967 and as a consequence thereof Mutation No. 6328 was attested in favour of Sultan. On coming to know about the attestation of above said Mutation, the petitioners on 3.5.1968 filed a suit against the respondents and called in question Mutation No. 6326. In the meantime, on the application of Sultan Ali, Mutation No. 6328 was cancelled on 9.5.1973 and resultantly the suit was dismissed as withdrawn on 23.6.1973. Pursuant to cancellation of the said mutation, the Respondent Nos. 1 to 3 on 16.1.1974 filed a suit against the petitioners for possession of the suit land. The petitioners contested the suit. This suit was dismissed as withdrawn vide order dated 15.9.1990 with a permission to file a fresh suit. Meanwhile, Mutation No. 1141 was attested on 4.8.1983 in favour of the respondents. Feeling aggrieved, the petitioners challenged Mutation No. 1141 but the same was dismissed vide order dated 27.12.1986 by the Assistant Commissioner, Sialkot. Against the said order, the petitioners' revision was dismissed by the Addl. Commissioner vide order dated 21.8.1989. Being dissatisfied, the petitioners filed a revision before the Member Board of Revenue and it was accepted vide order dated 01.12.1991 and the case was remanded to the District Collector, Sialkot who while accepting the petitioners' appeal vide order dated 27.2.1996 set aside the Mutation No. 1141 dated 4.8.1983. The respondents challenged the vires of order dated 27.2.1996 before the Commissioner, Gujranwala Division and the same was accepted vide order dated 23.9.1996. The petitioners assailed order dated 23.9.1996 before the Board of Revenue, Punjab through a revision petition (ROR 1995 of 1996) but the same was dismissed vide order dated 23.10.2000. Feeling aggrieved, the petitioners filed Writ Petition No. 2988/2001 before this Court and the same was dismissed vide order dated 26.2.2003. The petitioners challenged the order dated 26.2.2003 passed by this Court in the above mentioned writ petition before the Hon'ble Supreme Court of Pakistan through C.P.L.A. No. 769-L/2003 but the same was dismissed as withdrawn vide order dated 19.01.2007. Thereafter, the petitioners instituted a suit for declaration along with permanent injunction against the respondents and called in question Mutation No. 1141 dated 4.8.1983. In response to summons, the respondents entered appearance before the learned trial Court and contested the suit by filing a written statement. The learned trial Court by invoking the provisions of Section 11, C.P.C. dismissed the suit vide judgment and decree dated 3.10.2009. The petitioners assailed the legality of the above said judgment and decree through an appeal before the learned Addl. District Judge but it was dismissed vide judgment and decree dated 13.4.2010. Hence, this petition.

2. Learned counsel for the petitioners submits: (i) that the suit filed by the petitioners could not be dismissed on the principle of res judicate without framing issues. In support of this plea, learned counsel for the petitioners referred GHULAM RASOOL son of KALU VS. GHULAM RASOOL and others (2007 SCMR 1924), ABDUL HAMEED and another Vs. DILAWAR HUSSAIN Alias BHALLI and others (2007 SCMR 945), Q.B.E Insurance (International) Ltd. vs. JAFFAR FLOUR AND OIL MILLS LTD. and others (2008 SCMR 1037), ZAHIR SHAH and others Vs. BAHADAR KHAN and others (2001 MLD 1785), NAWAB VS. REHMAT KHAN (1995 MLD 1014), RAJA GHULAM HAIDAR Vs. Major (R) JAMSHAID ALAMA (1991 MLD 1284), MUHAMMAD ANWAR AND OTHERS V. MIAN NOOR AHMAD AND OTHERS (1995 MLD 269) and MEHBOOB ELAHI V. WAPDA and others (1994 CLC 1337); (ii) that the order passed by the Revenue Authorities neither operate as res judicata nor debar the aggrieved party to establish his right or title in respect of immovable property by invoking the jurisdiction of civil Court. In support of this contention, the learned counsel for the petitioners relied upon GHULAM RASOOL son of KALU VS. GHULAM RASOOL and others (2007 SCMR 1924), Mir REHMAN KHAN and another Vs. Sardar ASADULLAH KHAN and 14 others (PLD 1983 Quetta 52), Mst. GUL PARTI alias GULBARO Vs. ZARIN KHAN and others (PLD 1994 Pesh. 249) and ABDUL KHALIQ and others Vs. KHUDA-E-DAD and others (2008 YLR 781); (iii) that the matter in the suit was different from earlier litigation and, therefore, principle of res judicata could not be applied to the instant case. He made a reference to MUHAMMAD SALEEM ULLAH and others VS ADDL. DISTRICT JUDGE, GUJRANWALA and others (PLD 2005 SC 511), GHULAM MUHAMMAD and others Vs. MUHAMMAD HUSSAIN and others (PLD 2006 Lah. 223), HUSSAIN SHAH Vs. BANO BIBI and 9 others (2007 CLC 680), SARDAR MENHAJUDIN AHMAD VS. SUDHIR KUMAR SINHA and others (PLD 1959 Dacca 316).

3. Conversely, the learned counsel for the respondents vehemently opposes this petition and submits that principles of res judicata in the instant case clearly attracted to debar the petitioners from re-agitating the matter afresh by a civil suit, which had been put at rest by a judgment of this Court passed in W.P. No. 2988/2001. Learned counsel for the respondent further contends that the Civil Court cannot by-pass or over-ride the orders of the High Court competently made in constitutional jurisdiction on the same subject between the same parties. In support of his contention learned counsel for the respondent placed reliance on MUHAMMAD CHIRAGH-UD-DIN BHATTI Vs. THE PROVINCE OF WEST PAKISTAN (Now Province of Punjab) through COLLECTOR, BAHALWAPUR and 2 others (1971 SCMR 447), FAZAL DIN and 14 others Vs. THE CUSTODIAN, EVACUEE PROPERTY, LAHORE and 21 others (PLD 1971 SC 779), MUHAMMAD SHAFI and another Vs. MUHAMMAD BAKHSH and another (PLD 1971 Lah. 148), SHAHIDA PERVEEN VS. DISTRICT JUDGE, SIALKOT and another (PLD 1980 Lah. 7), AZAD GOVERNMENT OF THE STATE OF AZAD JAMMU & KASHMIR and another Vs. KASHMIR TIMBER CORPORATION (PLD 1979 SC (AJK) 139), SYED MIR AHMAD SHAH VS. THE PAKISTAN and 2 others (PLD 1979 Lah. 599), ABDUL MAJEED and others vs. ABDUL GHAFOOR KHAN and others (PLD 1982 SC 146), Mr. SAGHIR ALAM etc. Vs. Mst. KANIZ FATIMA etc. (1982 CLC 68), MUHAMMAD ANWAR Vs. Mst. NAWAB BIBI etc. (1989 SCMR 836), Sh. ABDUL AZIZ vs. MIRZA and three others (PLD 1989 SC (AJK) 78), MUHAMMAD ISMAIL vs. PROVINCE OF PUNJAB through Collector, District Jhang (PLJ 1986 Lah. 16), Mst. RABIA BIBI and others Vs. FATEH MUHAMMAD through legal heirs (1994 CLC 1151), and KHURSHID KHAN and 7 others Vs. SARDAR MUHAMMAD (PLJ 2002 Lah. 1842).

4. I have heard the learned counsel for the parties and perused the record.

5. The question raised and argued before me with considerable emphasis is that the learned Courts below have erred in holding that the general principles of resjudicata are applicable to the case. It is well known that the doctrine of res judicata is codified in Section 11 of the Code of Civil Procedure. Section 11 generally comes into play in relation to civil suits but apart from the codified law, the doctrine of res judicata has been applied since long in various kinds of other proceedings and situation by the superior Courts. The rule of constructive resjudicata is engrafted in Explanation IV of Section 11 of the C.P.C. and in many other situations also the principles not only of direct res judicata but of constructive res judicata are also applied, if by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceedings between the same parties. The principle of res judicata comes into play when by judgment/order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication even then the principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceedings but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided. The object and purpose of the principle of res-judicata is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of the fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject matter of lis stood determined by a competent Court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute book with a view to bring the litigation to an end so that the other side may not be put to harassment. In the instant case Mutation No. 1141 attested on 4.8.1983 in favour of predecessor of the Respondent Nos. 1 to 3 is the bone of contention between the parties. The validity of the said Mutation came up for consideration before this Court in W.P. No. 2988/2001. Having examined the entire available record, relied upon by both the parties, this Court did not exercise jurisdiction to set aside Mutation No. 1141 dated 4.8.1983. It is worth mentioning here that the High Court also considered the issue of referring the party to the Civil Court but it was not found advisable and, therefore, writ petition was decided on merit and all the pleas raised by the petitioners were repelled. The learned counsel for the petitioners canvassed with vehemence that the Hon'ble Supreme Court of Pakistan in C.P. No, 796-L/2003 granted permission to the petitioners to approach the civil Court for the enforcement of rights and, therefore, the suit could not be dismissed on the principle of res judicata. I am afraid this contention has no force. The Hon'ble Supreme Court recorded the statement of the learned counsel for the petitioners and disposed of the petition as withdrawn vide order dated 19.1.2007. In the above said order the Hon'ble Supreme Court has not granted permission to the petitioners to approach the civil Court so as to impugn the findings recorded by the High Court in W.P. No. 2988/2001. It is true that any order made by Revenue Authorities under the West Pakistan Land Revenue Act, 1967 do not bar any party to establish his right or title in respect of immovable property by invoking jurisdiction of civil Court. There is also no cavil to the proposition that order passed by the Revenue Authorities does not operate as resjudicata under Section 11, C.P.C. In the instant case, it is not the decision of the Revenue Authorities but the order passed by this Court in W.P. No. 2988/ 2001 which is operating as res judicata. Hence, the contention raised by the learned counsel for the petitioner to this effect has no substance as the law is now well established that where the validity of certain orders passed by a statutory or quasi judicial authority are questioned through a constitutional petition before the High Court but this attack fails and the High Court finds that the orders impugned before it are valid and not liable to be interfered with, any subsequent attempt to again impugn the same orders and to question their validity by filing a civil suit before the ordinary Civil Court will be barred on the general principle of res judicata. In this regard, guidance may be had from MUHAMMAD SHAFI and another Vs. MUHAMMAD BAKHSH and another (PLD 1971 Lah. 148), FAZAL DIN and 14 others Vs. THE CUSTODIAN, EVACUEE PROPERTY, LAHORE and 21 others (1971 SCMR 447), ABDUL MAJID and others Vs. ABDUL GHAFOOR and others (PLJ 1982 SC 286) and Ch. REHMAT ALI Vs. Haji JAN MUHAMMAD and others (PLJ 1983 SC 463). The findings recorded by the learned Courts below are unexceptionable and do not warrant any interference.

6. Mr. Muhammad Iqbal Mohal, learned counsel for the petitioner, in his usual eloquence laid much emphasis on the point that the learned trial Court could not dismiss the suit on the principle of res judicata without framing an issue to this effect. It is correct that the Court cannot examine or reject a suit on the ground of res judicata unless an issue is framed focusing the parties on that bar to suit. The pleadings in the earlier suit should be exhibited or marked by consent or at least admitted by both the parties. It is settled principle of law that the plaintiff should have an opportunity to explain or demonstrate that the second suit was based on a different cause of action. But the above said principles, in the instant case, in my view, are not applicable and the learned trial Court was not required to frame an issue to examine or reject the suit for the reasons: firstly, the petitioners in their plaint not only recorded all the facts in detail but also highlighted the pleadings of the earlier litigation and the judgment passed by this Court in W.P. No. 2988/2001; and, secondly, the parties were not at variance on question of earlier litigation. It may be added that the judgment of the High Court in the petitioners' Writ Petition No. 2988/2001, wherein the validity of the impugned Mutation No. 1141 dated 4.8.1983 was upheld, was, indeed, a decision rendered by the High Court on a point of law and, as such, this finding was binding on the subordinate Courts by virtue of Article 201 of the Constitution of Islamic Republic of Pakistan, 1973. Such being the legal position, the learned civil Court could not have, in the present case, held the same orders to be illegal and ultra vires, when the High Court had already found them to be legal and valid. The judgment of the High Court, which was passed in exercise of its constitutional jurisdiction, had left no question in issue undecided. It had, on the other hand, after applying its mind to the questions in issue, given a clear position on it for the reasons stated in the said judgment and proceeded to uphold the Mutation No. 1141 sanctioned by the Revenue Authorities. It is obvious that before the Civil Court the same issue was re-agitated and sought to be reiterated all over again. Thus they were precluded from doing both on the general principle of res judicata and also on the ground that the decision of the High Court deciding question of law is binding on all Courts subordinate to it. In view of this matter, the learned Courts below are clearly justified in dismissing the petitioners' suit.

7. In view of above, this petition lacks merit and is dismissed with no order as to cost.

(R.A.) Petition dismissed

PLJ 2013 Lahore 63 (DB) [Multan Bench Multan]

Present: Ijaz Ahmad and Amin-ud-Din Khan, JJ.

Mst. MAH RUKH BATOOL--Appellant

versus

JUDGE BANKING COURT NO. III, MULTAN and 5 others--Respondents

EFA No. 2 of 2011, decided on 22.10.2012.

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

----S. 47 & O. IX, R. 9--Execution Petition--Objection petition was dismissed on account of non prosecution--Second petition was also dismissed--Second application after dismissal of earlier one--Judgment debtor will not equip with any right to dislodge decree holder--Ground for restoration of that application but not for making for another application--An agreement to sell does not equip a person with any legal right--Decree holder had not been implead as one of defendants in suit for specific performance of contract instituted by appellant--Second application was not maintainable and appellant was precluded from making such application--Appeal was dismissed. [P. 64] A & B

Malik Muhammad Riaz Khokhar, Advocate for Appellant.

Mr. Muhammad Saleem Iqbal, Advocate for Respondent No. 2.

Mr. Muhammad Wasem Thaheem, Advocate for Respondents Nos. 3 to 5.

Mr. Mughees Aslam Malik, Advocate for Respondent No. 6/auction purchaser.

Date of hearing: 22.10.2012.

Order

The respondent Bank instituted a suit for recovery of Rs.47,19,096.33/- against present Respondent No. 3. The suit was decreed by judge Banking Court vide decree dated 12.04.2010. The decree was converted into an execution petition. The present petitioner made an objection petition contending that she had purchased the property sought to be put to auction through an agreement to sell. Written reply was filed. The petition was dismissed on account of non prosecution vide order dated 19.10.2010. A second petition on the same subject was made, it was dismissed by the learned judge Banking Court No. III, Multan vide order dated 18.05.2011.

1. It is contended by the learned counsel for the appellant that the dismissal of the application does not preclude the appellant to make another application; that the earlier application was made under Section 47, CPC. Even, the dismissal of the said application will not preclude the petitioner from making another application challenging the auction proceeding after having earned a right in the property and a suit for specific performance of contract having been filed against the judgment debtor which is now pending adjudication; that the date when the earlier application was dismissed, the case was not fixed for hearing of the case.

2. This appeal is opposed by the learned counsel for the respondent-bank the decree holder, the auction purchaser and the learned counsel for Respondents No. 3 to 5. It is contended that this application is not maintainable under Order IX Rule 9, C.P.C which precludes a plaintiff and also an applicant or appellant from instituting a suit or making an application after dismissal of the earlier one. He could however, seek for restoration after furnishing the reasonable grounds for his absence; that even the alleged agreement to sell by the judgment debtor in favour of the appellant will not equip him with any right to dislodge the decree holder.

3. We have heard the learned counsel for the parties and also gone through the record.

4. The stance taken by the learned counsel for the appellant that the order dated 19.10.2010 is illegal as the case was not fixed on that day for hearing and it was only fixed for submission of the written reply which had been submitted, is not acceptable. It could be a ground for restoration of that application, but not for making for another application. Even otherwise, an agreement to sell does not defeat the right of the decree holder and does not equip a person with any legal right. The decree holder has not been impleaded as one of the defendants in the suit for specific performance of the contract instituted by the appellant. In view of the principle laid down under Order IX Rule 9, CPC, we are of the view that the second application is not maintainable and the appellant is precluded from making such application. The impugned order is not illegal. This appeal has no merit. It is, hereby, dismissed.

(R.A.) Appeal dismissed

PLJ 2013 Lahore 65

Present: Muhammad Farrukh Irfan Khan, J.

PIONEER CEMENT LTD. through its Company Secretary--Appellant

versus

FECTO CEMENT LTD. through its Cheif Executive Officer and 3 others--Respondents

F.A.O. 213 of 2012, decided on 28.9.2012.

Pleadings--

----Dispute of Trade Mark--Pleadings and documents attached--Memo of appeal--Pleading before Appellate Court was not prepared and filed by practices adequately and sufficiently as was necessary in trade mark disputes--Appellant had not made sufficient efforts to prepare memo of appeal with clarity and sufficiency--Validity--With memo of appeal several documents were filed which were not accompanied with plaint filed before trial Court or thereafter and such documents were inadmissible of that stage in appeal against impugned order. [P. 69] A

Trademarks Ordinance, 2001--

----S. 5(2)--Civil Procedure Code, (V of 1908), O. XXXIX, Rr. 1 & 2--Registration of two elephants device and stylized "P" in Afghanistan--Applying in Pakistan a trademark to goods to be exported from Pakistan and any other act done in Pakistan in relation to goods--Use of trademarks in Pakistan--Originator owner and user of trademark--New brand of cement for export to Afghanistan--Application for registration of trademark--Matter was pending with Registrar of Trademarks--To restrain from using trademarks--Suit for infringement coupled with passing off goods alongwith application u/Order 39, Rules, 1 & 2, CPC--Restraining order was granted--Claim of proprietorship of trademark was challenged--Injunction order was dismissed--Assailed--Prima facie dishonest act and efforts to deceive Courts--Validity--Even though cement under trademark two elephants and stylized exported and sold in Afghanistan but as trademark was applied to goods within Pakistan with an intention to export such goods to Afghanistan, it will be deemed as if trademark had been used in Pakistan by appellant by virtue of the provision of law and hence prior use and reputation and goods will would be deemed to have existed as well giving appellant right to restrain from manufacturing or exporting cement under trademark in dispute to another country or selling it is Pakistan. [P. 70] B

Distributor in Trademark--

----Scope of--A distributor is merely representative of owner of Trademark for a specified territory supply or distribution of goods manufactured assembled by owners under his trademark--For such service distributor get a commission--Distributor had no other relationship with assembled goods who was owner of trademark and merely by distributing goods on behalf of owner distributor cannot become entitled to claim ownership of mark to register the trademark in his own name and if he succeeded in securing trademark registration, that will be liable to be cancelled after true owner obtains knowledge of existence of registration. [Pp. 71 & 72] C

Trade-Mark--

----Correct principle in trademark cases--Prior user of trademark--Such principle is in applicable--When none of contesting parties is armed with registered trademark--When he concluded that company did not produce any cogent and convincing material in such regard--Trial Judge did not pay much attention to pleadings of the parties nor perused documents available on record. [P. 82] D

Trade Mark--

----Proprietorship of un-registered trademark--It is settled principle of trade mark law that prior use and hence proprietorship of an un-registered trademark can be prima facie, proved at interim stage by filing independent documentary evidence such as copies of undisputable sale invoices, advertisements, sale figures, publicity figures--Such proof does not merely depend on volume of documents but on quality and undisputable character to clearly show that a certain party was prior user and prior proprietor of trademark. [P. 72] E & F

2000 YLR 1376, 1984 CLC Kar. 348 & 1985 CLC Kar. 3015, ref.

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

----O. XXXIX, Rr. 1 & 2--Trademarks Ordinance 2001, Ss. 5(2) & 46(2)--Registration of trademark--Originator owner and user of trademarks--Application for registration of trademark was still pending with Registrar of trademark--Prima-facie case--Application to restrain from using trademark--No denial or challege that trademark stylized "P" and two Elephants device was not first used by appellant and cement with trademark was not sold in Afghanistan as distributor of appellant and thus there was no denial that appellant was prior user of the trademark--Trademark rights were lifelines of business and unauthorized use of owner's trademark by third parties result in un-quantifiable loss and damage to its good will and business which was irreparable in nature--Appellant was likely to suffer as a result of use of appellant's trademark cannot be calculated in terms of monetary compensation and would be irreparable in nature--Balance of convenience was also in favour of appellant--All such relief by way of damages, injunction, accounts were available to proprietor of trademark simultaneously and not as an alternate to each other and just because to interim injunction a plaintiff might claim damages and compensation in a suit relating to trademark rights, interim relief cannot be denied on that ground--Appeal was allowed. [P. 73] G, H, I & J

Syed Azeem Abbas Naqvi, Advocate for Appellant.

Mian Bilal Ahmad, Advocate for Respondents.

Date of hearing: 24.8.2012.

Judgment

Appellant herein is a public limited company and claims to be the creator, originator, owner and user of trademark "P" in stylized form (hereafter stylized "P" logo) which it claims to be using since the inception of its business of cement manufacturing, marketing and selling for more than two decades. It claims to have launched a new brand of cement for export to Afghanistan and Central Asian Republics with the stylized "P" logo and Two Elephants device. It is claimed that cement bags with the said trademark stylized "P" logo and Two Elephants device were designed and printed for the Appellant first time by a company called Syntronics Limited in May, 2010.

1. The Appellant claims to have engaged Respondent No.3, a Pakistani company having its office in Peshawar as its distributor and submits that Respondent No.3, as a distributor of the Appellant, entered into a contract with an Afghan company named Shirkat-ul-Faisal and started exporting cement to Afghanistan under the trademark stylized "P" logo with Two Elephants device. It is alleged that after some time relationship between the Appellant and Respondent No.3 came to an end, where-after Respondent No.3 contracted Appellant's competitor, Respondent No. 1, and started exporting cement to Shirakat-ul-Faisal in Afghanistan under Appellant's trademark stylized "P" logo with Two Elephants device in utter disregard of law and violation of business ethics and with dishonesty and mala fide.

2. It appears that Appellant as well as Respondent No.3 have filed their respective applications for registration of trademark comprising of stylized "P" logo and Two Elephants device and the matter is still pending with the Registrar of Trademarks and none of the parties so far has obtained trademark registration thereof.

3. To restrain Respondents from using the aforesaid trademark, the Appellant filed a suit for infringement coupled with passing off the goods before the learned District Judge, Lahore, along with an application under Order XXXIX, Rules 1 & 2, CPC and the learned Additional District Judge granted a restraining order on 24th June, 2011 which was withdrawn through the impugned order dated 29.03.2012.

4. The Respondents resisted the suit and inter alia challenged the claim of proprietorship of the trademark by the Appellant. Certain allegations about concealment of some facts concerning dealership were also raised and it was also asserted that Shirkat-ul-Faisal Limited has obtained registration of Two Elephants device in Afghanistan. Strong reliance by the Respondents was placed on obtaining trademark registration in Afghanistan by Shirkat-ul-Faisal Limited in Afghanistan.

5. After hearing both sides the learned Additional District Judge dismissed the injunction application vide order dated 29.03.2012 which has been assailed by the Appellant herein through the present appeal. In the operating part of the impugned order, the learned Additional District Judge has mentioned that it is an admitted fact that the Plaintiff Company (appellant herein) is using the trademark with Two Elephants and letter "P" for which Plaintiff has applied for its registration and the application is still pending with the Trademarks Registry.

6. The learned Additional District Judge also specifically noted that the Defendants (Respondents herein) are selling their cement with similar get up with the difference that the letters "Ps" have been used instead of letter "P" and noted that in trademark cases most important factor is "who is prior user of the trademark". The main ground for refusing the injunction application which prevailed with the learned Additional District Judge was that though the Appellant claimed to be using alleged trademark with Two Elephants with letter "P" but the Appellant company did not produce any cogent and convincing material before the learned trial Court in that regard and he also seems to be influenced by the argument that Shirkat-ul-Faisal Limited has obtained the trademark registration in Afghanistan.

7. The respective trade marks of the parties are reproduced below:--

GRAPH

1. I have heard the learned counsel representing the parties in detail, who mostly repeated the same arguments as they advanced before the learned Additional District Judge, and which have been succinctly mentioned in the impugned order and also noted above by me briefly.

2. I have gone through the impugned order, pleadings and documents attached thereto filed before the Learned Additional District Judge and also the memo. of appeal and I am constrained to observe that pleadings before the learned Additional District Judge have not been prepared and filed by the parties adequately and sufficiently as is necessary in trademark disputes. Also, unfortunately, the Appellant has not made sufficient efforts to prepare the memo. of appeal with clarity and sufficiency.

3. At the hearings both the counsel argued their respective cases very strenuously.

4. It appears that with the memo. of appeal several documents have been filed, which were not accompanied with the plaint filed before the trial Court or thereafter and such documents are inadmissible at this stage in Appeal against the impugned order. Reliance is placed on M/s. Ghulam Muhammad Dossul & Co. vs. M/s. Vulcan Co. Ltd. and another (1984 SCMR 1024). Also no effort has been made by the Appellant to make a separate application and seek permission of this Court to introduce such documents so that the Court, if it deemed appropriate, may have issued notice of such documents to the Respondents; before allowing or disallowing such a request on merit.

5. The respondents have neither denied the existence of their distributorship with the Appellant cement company at the relevant time nor export of cement in the said capacity to Afghanistan with the trademark in dispute. It was, however, strongly stressed by Respondents that Do Phee/two Elephants was the brainchild of Respondent No. 4 and Appellant is not the proprietor thereof and therefore appeal be dismissed. On the facts and circumstances of the case this argument has no force at all.

6. If Do Pheel/two Elephants was the brainchild of Respondent No.4, a Director of Respondent No.3, it seems inconceivable that they would continue to use it with stylized "P" logo, as stylized "P" logo is admittedly the trademark of Appellant. This, prima fade, shows dishonesty on the part of the Respondents. In this respect even if, for argument's sake, it is considered that two Elephants was the brainchild of Respondent No.4, then if, as per Respondent's own stance that their dealership was unlawfully cancelled by the Appellant, it was their legal, moral and ethical duty to have only taken their alleged two Elephants device trademark to Respondents Nos. 1 and 2 (Fecto Cement Limited) to start export with two Elephants device replacing Appellant's stylized "P" logo with that of Fecto's own logo. This was apparently not done for obvious reasons that Respondents desired to take advantage of the reputation and goodwill acquired by two Elephants and stylized "P" logo as a trademark of the Appellant by virtue of its use on cement exported to Afghanistan.

7. There is a further aspect to Respondents' prima facie dishonest act and their efforts to deceive the Courts. If two Elephants was the brainchild of Respondent No.4 (Mr. S. Mehtab Hussain), a Director of Respondent No.3, then it is not understandable why they would allow Shirkat-ul-Faisal Limited, which is a separate entity, to register it in its name in Afghanistan and not in the name of the said Respondent or Respondent No.3. To my mind the above prima facie shows that Respondents No.3 and 4 are not owners of the mark two Elephants devices. After Respondent No.3 was appointed distributor for Afghanistan through Appellant's letter dated 29th March 2010 for sale of two Elephants brand cement, Respondent No.3 applied to register the said trademark in its own name on 31st August, 2010, which is also much subsequent to the date of said distributor's appointment letter.

8. As far as registration of two Elephants device and stylized "P" in Afghanistan is concerned, that has no bearing on the present proceedings as these are concerned with the manufacture, sale and export of cement from Pakistan. Also Shirkat-ul-Faisal is not a party to these proceedings.

9. Moreover, under sub-section (2) of Section 5 of the Trade Marks Ordinance, 2001 applying in Pakistan a trademark to the goods to be exported from Pakistan and any other act done in Pakistan in relation to goods to be so exported constitutes use of the trademark within Pakistan. Therefore, even though cement under the trademark two Elephants and stylized "P" logo was exported and sold in Afghanistan but as the said trademark was applied to goods within Pakistan, with an intention to export such goods to Afghanistan, it will be deemed as if the trademark two Elephants and stylized "P" has actually been used in Pakistan by the Appellant by virtue of the said provision of law and hence prior use and reputation and goodwill would be deemed to have existed in Pakistan as well giving the Appellant a right to restrain the Respondents from manufacturing or exporting cement under the trade mark in dispute to another country or selling it in Pakistan.

10. As far as Distributorship is concerned it is pertinent to note that Respondents in their written statement have admitted the existence of distributorship and have referred to it as well as attached a copy of said letter in Paragraphs 1, 2 & 3 of the Factual Matrix of the written statement as reproduced below:

"1. That the Plaintiff approached Defendant(s) No.3 and 4 in order to subscribe to their services as exclusive and sole distributor(s)/dealer(s). The Plaintiff, at all material times, represented and assured that Defendant No.3 would be engaged to the exclusion of all others. It is submitted that Dho Pheel (the two elephants) was the brainchild of Defendant No.4, who is and was at all material times, the Director of Defendant No.3.

1. That the Plaintiff through its General Manager (Marketing & Sales), Mr. Rizwan Butt, confirmed the appointment of Defendant No.4 as the authorized Sole Distributor for Afghanistan and CARs (Central Asian Republics) through a letter dated 29.03.2010. A copy of the letter dated 29.03.2010 is placed herewith as Annex-E.

2. That the albeit it is beyond the scope of the present proceedings, it is nevertheless the case that the Plaintiff flagrantly breached the Dealership Agreement, which it had struck with Defendant No.3. Consequently, the latter, on the Plaintiff's contractual repudiation, was but only impelled to enter into a Dealership Agreement dated 20.04.2011 with Defendant No. 1 (viz, Fecto Cement Limited). A copy of an email written by Defendant No.4 to the General Manager of Defendant No. 1 substantiating these state of affairs is placed herewith as Annex-F."

3. Unless otherwise shown, the concept of a distributor in trademark matters is that a distributor is merely a representative of the owner of the trademark for a specified territory for supply or distribution of goods manufactured/assembled/packed by the owners under his trademark. For such service the distributor gets a certain commission. In such cases distributor has no other relationship with the manufacturer/ packer/ assembler of goods, who is also the owner of trademark, and merely by distributing goods on behalf of the owner a distributor does not, and cannot, become entitled to claim ownership of a mark to register the said trademark in his own name and even if he succeeds in securing trademark registration, that will be liable to be cancelled/ rectified after the true owner obtains knowledge of existence of such registration. Therefore Respondents' admission to be distributors of Appellant for selling two Elephants brand cement to Afghanistan, prima facie, prevents them from claiming to be the owners of the said trademark and, prima facie, the Appellant is the owner of the said trademark as if Respondents were the owners of the trademark in dispute there was no need for the Respondents to accept their appointment as distributors of Appellant, and this aspect alone is sufficient to prima facie conclude that Respondents are not the owners of the trademark in dispute.

4. The learned trial Court has stated the correct principle that in trademark cases most important factor is who is prior user of trademark. This principle is in particular applicable when none of the contesting parties is armed with a registered trademark. Despite stating the correct principle, in my humble view, the learned trial Judge committed a serious error when he concluded that the plaintiff company (Appellant) did not produce any cogent and convincing material in this regard. This apparently reflects that the learned trial Judge did not pay much attention to the pleadings of the parties nor perused the documents available on the record. While if has been observed earlier that Appellant did not diligently prepare and file the suit and supporting documents, the factual situation remains that at the time of arguments on application under Order XXXIX, Rules 1 & 2 CPC and passing of impugned order the learned trial Court had on record the distributorship appointment letter from Appellant to Respondent No. 3 appointing the latter distributor for sale of two Elephants cement in Afghanistan and this letter of appointment of Respondent No. 3 as the distributor is admitted by the Respondents in their written statement in Paragraphs 1, 2 & 3 of the "Factual Matrix" of the written statement as reproduced above filed by the Respondents with their written statement.

5. It is a settled principle of Trade Mark law that prior use and hence proprietorship of an unregistered trademark can be, prima facie, proved at the interim stage by filing independent documentary evidence such as copies of undisputable sale invoices, advertisements, sale figures, publicity figures etc. Reference in this respect is made to the cases of The Welcome Foundation Limited vs. M/s. Karachi Chemicals Industries (Private) Limited (2000 YLR 1376), Mehtabur Rehman vs. Saeed Ahmed and 2 others (1986 CLC Karachi 348) and Syed Muhammad Maqsood vs. Naeem Ali Muhammad (1985 CLC Karachi 3015). I may add here that such proof does not merely depend on the volume of the documents but on the quality and their undisputable character to clearly show that a certain party is a prior user, and hence prior proprietor of a trademark.

6. In the present case, however, there is admittance on the part of the Respondents that Respondent No.3 has acted as a distributor for the Appellant and sold Appellant's cement with the trademark stylized "P" and two Elephants device to Afghanistan. Therefore, there is no denial or challenge that the trademark stylized "P" and two Elephants device was not first used by the Appellant and cement with this trademark was not sold in Afghanistan through Respondent No.3 as a distributor of Appellant and thus there is no denial that Appellant is the prior user of the disputed trademark.

7. In my humble opinion the distributor's appointment letter and above admitted facts were sufficient to, prima facie, show that Appellant was the prior user and prior owner of the two Elephants and stylized "P" trademark for cement. Moreover the Respondents have not explained the reason for their choice to use the stylized "P" logo along with two Elephants, when Respondent No. 1 itself seems to be a well known company, it should have chosen to use its own independent logo and not that of its competitors. It is in particular not appreciable that big business groups resort to copying their competitors trademarks, as, prima facie, seems to be the case here.

8. In the light of the above, it clearly appears that the Appellant has made out a prima facie case in its favour and is likely to suffer irreparable loss if the Respondents are not restrained from using the stylized "P" logo and the two Elephants device. I must add here that trademark rights are lifelines of businesses and unauthorized use of owner's trademark by third parties results in un-quantifiable loss and damage to its goodwill and business which is irreparable in nature. Thus the loss that the Appellant is likely to suffer as a result of use of Appellant's trademark by the Respondents cannot be calculated in terms of monetary compensation and would be irreparable in nature. The balance of convenience is also in favour of the Appellant. I must also observe that under Section 46(2) of the Trademarks Ordinance, 2001 all such reliefs by way of damages, injunction, accounts are available to the proprietor of a trademark simultaneously and not as an alternate to each other and just because in addition to interim injunction a Plaintiff may claim damages and compensation in a suit relating to trademark rights, interim relief cannot be denied on that ground.

9. In the light of the above, this appeal is allowed and consequently the impugned order dated 29.3.2012, is set aside. The respondents are restrained to use the appellant's trademark stylized "P" logo and two Elephants device till the final disposal of the suit. It is however noted that the observations made above are tentative in nature and would not influence the decision of the suit on merits after recording of evidence. As valuable rights of parties are involved it is ordered that the trial Court shall decide the suit within six months from the date of receipt of certified copy of this judgment.

(R.A.) Appeal allowed

PLJ 2013 Lahore 74 [Multan Bench Multan]

Present: Abdus Sattar Asghar, J.

GHULAM YASIN--Petitioner

versus

STATE and 3 others--Respondents

W.P. No. 13941 of 2010, decided on 18.9.2012.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 516-A--Constitutional Petition--Superdari of Vehicle--Vehicle to FSL for examination of chassis number and engine number--Opinion of FSL--Open transfer letter--Determination of ownership in vehicle--Validity--An open transfer letter was not a valid document of title and does not bear any legal worth to claim ownership on that basis--He had not been able to bring on record any confidence inspiring speck of material to claim his genuine ownership in the vehicle--Criminal Courts were not competent to determine question of title or ownership of the case property rather it falls within exclusive domain of civil Court of plenary jurisdiction--Petitioner had lodged a suit for declaration with regard to ownership of vehicle against respondent pending adjudication before civil Court--Even disputed ownership of a vehicle was factual controversy which cannot be resolved by invoking constitutional jurisdiction of High Court--Petition was dismissed. [Pp. 77 & 78] A

Mr. Sardar Tariq Sher Khan and Mr. Abdul Rehman Laskani, Advocates for Petitioner/Respondent No. 2 (in Writ Petition No. 229 of 2011).

Mr. Muhammad Ramzan Khalid Joyia, Advocate for Respondent No. 4/Petitioner (in Writ Petition No. 229 of 2011).

Date of hearing: 18.9.2012.

Order

By virtue of this single order I intend to dispose of the this writ petition as well as Writ Petition No. 229-2011 (Muhammad Tariq Vs. S.H.O., etc.) involving same question of law and facts.

1. Brief facts leading to these constitutional petitions are that Ghulam Yasin (to be called hereinafter as petitioner) lodged F.I.R No.855/2010, dated 11.11.2010, under Section 420, P.P.C., at Police Station Jattoi, District Muzaffargarh against three unknown persons alleging that his truck/vehicle bearing Registration No.3289/PRM was snatched some times ago by three unknown persons; that now it has come to his knowledge that his vehicle is on the road bearing Registration No.2886/OK, which is a bus running on Jatoi Alipur Road; that the body of truck has been changed and converted into Bus with the connivance of M.V.E. and E.T.O.

2. During investigation, the disputed vehicle has been recovered from one Muhammad Tariq (to be called hereinafter as respondent). Petitioner and respondent both lodged applications for Superdari before the Magistrate Section 30, Jatoi. Learned Magistrate Section 30 after obtaining reports from the S.H.O. and Forensic Science Laboratory with regard to Engine number and Chassis number of the vehicle dismissed the application of Muhammad Tariq respondent and allowed the application of Ghulam Yasin petitioner to hand over the disputed vehicle on Superdari to him subject to furnishing surety bond to the tune of Rs. 10,00,000/- (rupees ten lacs) with one surety in the like amount to his satisfaction vide order dated 15.12.2010. Being aggrieved Muhammad Tariq respondent preferred an appeal against order dated 15.12.2010 before the learned Additional Sessions Judge Jatoi, which was disposed of vide order dated 23.12.2010 in the following manner:--

"In these circumstances I think it proper that till the final disposal of case the vehicle should remain in the possession of Police. However, the parties are at liberty to file civil suit to prove their ownership. Moreover presently Tariq applicant is also not owner of the Vehicle. He has only a transfer letter in his favour. The original owner is some Wazeer. As the engine number and Chassis number are not the same as mentioned in the Registration book of Ghulam Yasin and mentioned in the report of Forensic Science Laboratory, therefore, the order passed by the learned trial Court dated 15.12.2010 is set aside. With these observations this appeal is disposed of. The copy of this order be sent to the learned trial Court and S.H.O. P/S Jatoi for information and compliance in accordance with law."

1. Ghulam Yasin petitioner has assailed the order dated 23.12.2010 while invoking the constitutional jurisdiction of this Court through this petition on the grounds that learned Additional Sessions Judge had no jurisdiction to pass the impugned order as order of a Magistrate granting Superdari is not appealable; that a length of time is required to get establish ownership of the disputed vehicle by filing a civil suit and vehicle in dispute could not be retained for an indefinite period as there is every likelihood of severe damage to the vehicle; that the impugned order is passed on wrong premises of law and facts, without application of judicious mind causing miscarriage of justice and liable to set aside.

2. Conversely, Muhammad Tariq respondent has lodged constitutional petition (W.P. No. 229-2011) calling in question the vires of order dated 15.12.2010 passed by learned Magistrate whereby his application for superdai has been dismissed and order dated 23.12.2010 passed by learned Additional Sessions Judge whereby his appeal was disposed of with the above quoted order. He contends that originally the vehicle was owned by one Humayun Khan, who sold the same to Muhammad Islam and Khizar Hayat and the vehicle was transferred in their names on 10.10.2005 after its conversion into Bus with approval of the competent Authority on 01.1.1985; that later on vehicle was purchased by one Wazir Ahmed from whom the respondent purchased it through a transfer deed dated 05.10.2010. It is argued by learned counsel that the vehicle taken into custody would be restored to a person from whose custody it was taken into possession by the police. He has placed reliance upon Zahurudin Vs. Muhammad Inayatullah Khan and another (1973 P.Cr.LJ. 288) and Ali Muhammad Vs. Addl.Sessions Judge and others (2007 MLD 1096 Lahore).

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 hereunder Section 516-A, Cr.P.C. for ready reference:--

"516-A. Order for custody and disposal of property pending trial in certain cases. When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or nature decay, may after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of."

1. As per F.I.R No.855/2010, case of Ghulam Yasin petitioner is that his truck/vehicle bearing Registration No.3289/PRM, Engine No.LS19750, Chassis No.WGP602635 has been allegedly stolen some times before, however, the vehicle has been recovered from Muhammad Tariq respondent bearing Registration No.2886/OK. Whereas, case of Muhammad Tariq respondent is that police took into custody his vehicle bearing Engine No.LS18679, Chassis No.NJM606125 during investigation of said case. Record reveals that learned Magistrate referred the vehicle in-question to Forensic Science Laboratory for examination of Chassis number and Engine number. The opinion of Forensic Science Laboratory dated 02.12.2010 is reproduce as under:--

"Opinion

Chassis Number before Examination =NJM-606125

Chassis Number after Examination=XXX6026X5.

Engine Number before Examination=LS18679

Engine Number after Examination=LS18679

The chassis number has been deciphered as=XXX6026X5

The engine number could not be deciphered due to deep filings.

NOTE, The, X, indicate that the digits could not be deciphered due to deep fillings."

1. At this juncture I would like to take reliance upon Republic Motors Ltd. Vs. M.Anwar and others (1980 SCMR 954). In the above cited case Hon'ble Apex Court has laid down that case property though to be restored to the party from whom taken yet such rule of law could be departed from under special circumstances. In the light of the above dictum I am of the considered view that in the instant case special circumstances do exist to depart from the general rule. In this regard suffice to say that as per report of Forensic Science Laboratory the vehicle in-question does not bear chassis numbers alleged by both the parties. During the course of investigation Muhammad Tariq respondent has failed to produce Wazir Khan the alleged owner/vendor of the vehicle. He has simply brought on record an open transfer letter in his favour from Wazir Khan. An open transfer letter is not a valid document of title and does not bear any legal worth to claim ownership on this basis. He, therefore, has not been able to bring on record any confidence inspiring speck of material to claim his genuine ownership in the vehicle in question.

2. It is reported that after conclusion of the investigation of case F.I.R No.855/2010, the Investigating Officer has recommended cancellation of case. The vehicle in question has been recovered during the investigation. Both the parties are claiming their ownership over the said vehicle, therefore, learned Additional Sessions Judge has rightly passed the impugned order dated 23.12.2010 while directing the parties to approach the Civil Court for determination of their ownership in the vehicle in question. Needless to say that the criminal courts are not competent to determine question of title or ownership of the case property rather it falls within the exclusive domain of the Civil Court of plenary jurisdiction. Admittedly, Ghulam Yasin petitioner has lodged a suit for declaration with regard to ownership of vehicle in question against respondent pending adjudication before the Civil Court. Even otherwise, disputed ownership of a vehicle is a factual controversy which cannot be resolved by invoking the constitutional jurisdiction of this Court.

3. For the above discussion and reasons, I do not find any factual or legal infirmity in the impugned order dated 23.12.2010 passed by learned Additional Sessions Judge, therefore, the parties have no case at all to invoke the constitutional jurisdiction of this Court to impugn the said order.

4. I have gone through the above-cited cases of Zahurudin and Ali Muhammad. The facts of the cases cited by learned counsel for the respondent are altogether distinct and distinguishable from the facts of this case. The dictums laid down in the cited cases cannot be siphoned on to the facts of this case and thus are of no avail to the respondent.

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 2013 Lahore 78 [Multan Bench Multan]

Present: Amin-ud-Din Khan, J.

Mst. NOOR BEGUM, etc.--Petitioners

versus

MUHAMMAD AKRAM, etc.--Respondents

C.R. No. 1176 of 1994, heard on 31.10.2012.

Gift Mutation--

----Proceedings of conferment of proprietory rights--Gift mutation was sanctioned in favor of wife--Proof of--Validity--No doubt, it is settled law that beneficiary must prove transaction but there are some further principles that when a suit to challenge any transaction through any mode was filed, onus shifted upon other side only when plaintiff appeared before the Court and made statement on oath in witness box as his own witness and denied from the transaction, then onus shifted upon other side. [Pp. 84 & 85] A

Muhammadan Law--

----Under Muhammadan Law when a Muhammadan transfers the property in favour of his wife, physical transfer of possession is not necessary--Only symbolic transfer of possession is sufficient. [P. 85] B

Gift--

-----Corpus of land--Physical possession of donor--It is settled that in such like cases when a corpus of land is gifted to a lady who was dependent upon donor, physical possession of donor after gift was presumed on behalf of the donee. [P. 85] C

West Punjab Muslim Personal Law (Shariat) Application Act, 1948 (IX of 1948)--

----S. 3--Termination of limited ownership of a female--Validity--In accordance with S. 3 of Act, 1948, termination of limited ownership of a female, inheritance was to be open at time of death of last male owner and successors of propositus were entitled to inherit. [P. 85] D

Inheritance--

----Misapplied law--Matter of inheritance--It was not simple and clear case of matter of inheritance for plaintiff only, whereas on other side defendants were sisters of plaintiff who had acquired rights through inheritance of their mother. [P. 85] E

Sahibzada Mehboob Ali Khan, Advocate for Petitioners.

Ch. M. Anwar-ul-Haq, Advocate for Respondents No. 1-A, 1-B.

Ch. Pervaiz Akhtar Gujjar, Advocate for Respondents No. 15, 17 & 18.

Ex-parte for Respondents Nos. 2, 3-A to E, 4-A, B, 5 to 7, 8-A, B, 9, 10, 11, 13-A, B and 16-A to D (vide Order, dated 26.9.2012).

Date of hearing: 31.10.2012.

Judgment

Through this civil revision, petitioners have challenged the judgment & decree dated 25.04.1994 passed by learned Addl: District Judge, Sahiwal, whereby the appeal filed by the petitioners was dismissed and the appeal filed by the respondents-plaintiffs was accepted, by way of which, suit for declaration filed by the respondents-plaintiffs was fully decreed. The petitioners have also challenged the Judgment & decree dated 14.1.1991 passed by learned Civil Judge 1st Class, Chichawatni, whereby the suit filed by the respondents-plaintiffs was partially decreed.

1. This civil revision was accepted by this Court vide judgment dated 06.12.2010 and the case was remanded to learned trial Court with the direction to decide the suit afresh after hearing learned counsel for the parties. This remand order was challenged before the august Supreme Court of Pakistan through Civil Petition No. 51 of 2011, which was converted into appeal and allowed on 28.11.2011 and the remand order/judgment passed by this Court was set aside. This Court has been directed to decide the civil revision on the basis of evidence already recorded.

2. The facts as leading to this case are that plaintiff, Muhammad Akram, predecessor of respondents on 8.03.1983 filed a suit for declaration praying therein that he is co-sharer to the extent of 234-kanals 15-marlas in the property mentioned in Ziman No. 1 of the plaint. The case of plaintiff as pleaded by him was that suit land fully described in Para 1 of the plaint measuring 400-kanals 02-marlas was allotted to the father of plaintiff, namely Ghulam Muhammad s/o Qaim Deen in lieu of "Abadkari" Scheme under the Colonization of Government Lands (Punjab) Act (V of 1912). The plaintiff pleaded that 133-kanals 16-marlas is disputed land. The case of plaintiff is that at the time of death of his father on 25.01.1925 he was entitled to inherit the whole of the property but as the plaintiff was minor at that time, therefore 1/3rd share was given to his mother, Mst. Bahisht Bibi because she was to bear the expenses upon marriage of sisters of plaintiff, one of whom was blind also. In Para 4 of the plaint, plaintiff has stated that Mst. Bahisht Bibi, his mother under the family settlement transferred land in the name of plaintiff and he became owner of land measuring 234-kanals 15-marlas. The plaintiff has also asserted the mutation of inheritance of Mst. Bahisht Bibi, which was sanctioned after her death on 31.01.1960. He has further challenged in this suit the transfer of 1/2 share in 77-kanals 01-marla, the property in the name of Mst. Mumtaz Begum, his wife at the time of her death in favour of her brother and sisters. The plaintiff has challenged the gift of suit property allegedly on the basis of fraud and stated that he has never gifted the property.

It will be important to mention here that in original plaint, the legal heirs of Inam Ullah Khan were not made party who is the grandson of Ghulam Muhammad in whose favour 1/3rd of the property left by Ghulam Muhammad was mutated. Afterwards they were also impleaded as party as defendants in the suit.

1. Filing written statement the suit was contested. Out of the divergent pleadings of the parties, learned trial Court framed issues and invited the parties to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their contentions. After the close of trial, vide judgment and decree dated 14.1.1991 the trial Court decreed the suit to the extent of matter in issue regarding Mutation No. 76 dated 14.12.1962 of gift in favour of wife of plaintiff and to the extent of Mutation No. 25 attested on 22.05.1925 and Mutation No. 49 dated 31.06.1960 suit was dismissed. Both the parties preferred appeals before the first appellate Court, whereby vide judgment & decree dated 25.04.1994 the appeal filed by the respondent/plaintiff, Muhammad Akram was accepted and suit was fully decreed, whereas the appeal filed by the petitioners-defendants was dismissed. Hence, this civil revision, which was earlier accepted by this Court vide judgment dated 06.12.2010 and case was remanded to learned trial Court for decision afresh. The remand order was challenged before the august Supreme Court, whereby through the order dated 28.11.2011 passed in Civil Petition No. 51 of 2011 converting it into appeal the same was allowed and order of this Court was set aside. This Court has been directed to decide the civil revision afresh on the basis of evidence already recorded.

2. Learned counsel for the petitioners-defendants states that the plaintiff has claimed allotment of land in favour of his father under Abadkari' scheme. Admittedly the father of plaintiff died on 25.01.1925. Learned counsel states that the stand of plaintiff is contradictory one, as in Para 4 of the plaint he has claimed that property transferred in favour of his mother through the inheritance mutation of father Bearing No. 25 dated 22.05.1925, the same was transferred in his favour by his mother after performing her duties and obligations i.e. getting the daughters of deceased father married, therefore this contention of plaintiff in Para 4 contradicts his claim of inheritance of whole of the land. Further states that nowhere plaintiff has asserted that how he came to know about the sanction of mutation at the time of filing of suit; that plaintiff when appeared as P.W-2 has admitted that Mutation No. 25 was sanctioned in his favour, in favour of his mother and in favour of his nephew Inam Ullah Khan, 1/3rd each. He also admitted that in the year 1936 theSanad' for rights of Dakheekari' was issued in favour of above mentioned three poisons. He also admitted that he was pursuing all the proceedings. He admitted that proprietary rights were conferred upon the plaintiff, his nephew and his mother and also stated that he has got sanctioned the mutation of conferment of proprietary rights. He has admitted that at that time it was in his knowledge that 1/3rd property is in the name of his mother, who died in the year 1959. He admitted that mutation of inheritance of his mother was in his knowledge and it was also in his knowledge that the same has been transferred in his favour and in favour of his sisters. Learned counsel further states that the custom asserted by the plaintiff has not been proved by him. He has referred Ex.P-13, Mutation No. 10 sanctioned on 17.06.1923 whereby the State conferred the property upon Jamadar Rehmat Khan under the Army grant scheme. Ex.P-14 is Mutation No. 19 sanctioned on 06.06.1924, the father of plaintiff got the suit property in exchange from said Rehmat Khan. Ex.P-4 is Mutation No. 25 sanctioned on 22.05.1925 inheritance of Ghulam Muhammad, through this mutation the property has been transferred 1/3rd in favour of grandson of the propositus, 1/3rd in favour of plaintiff and 1/3rd in favour of widow of the deceased. Learned counsel has even referred Ex.P-7, Mutation No. 55 sanctioned on 02.07.1930 wherein the name of plaintiff was corrected, as previously in Mutation No. 25 his name was written as Muhammad Akbar Khan and his name has been corrected as Muhammad Akram Khan. Ex.P-15 is Mutation No. 59 sanctioned on 08.02.1937 regarding the conferment of rights ofDakheekari' which is according to learned counsel for the petitioners in accordance with Section 8 of the Tenancy Act. In this mutation also the rights have, been conferred in equal share upon the plaintiff as son of deceased, Inam Ullah Khan as grandson and Mst. Bahisht Bibi as widow of deceased. Ex. P-17 is Mutation No. 249 sanctioned on 24.02.1950 on the basis of sale of suit land by the Government. Mutation No. 49 was produced as Ex.P-6 sanctioned on 31.01.1960, which relates to the inheritance of Mst. Bahisht Bibi. Learned counsel for the petitioners states that the suit has been filed in the year 1983, which was clearly time barred and further that through Mutation No. 76 sanctioned on 14.12.1962 plaintiff himself gifted 77-kanals 01-marla land in favour of his wife, Mst. Mumtaz Begum. Learned counsel states that actually at the time of death in the year 1982 when inheritance mutation of Mst. Mumtaz Begum bearing No. 405 was sanctioned on 19.01.1982, the plaintiff started the controversy and prior to that there was absolutely no controversy and the matter was never agitated by the plaintiff. It has been further contended by learned counsel that plaintiff has not proved Ghulam Muhammad, propositus of the parties as an original tenant, therefore the claim of plaintiff that it is a case of Section 20 of the Colonization of Government Lands (Punjab) Act (V of 1912) is incorrect. While referring "2010 SCMR 760 (Mst. Fateh Bibi and others vs. Mst. Fatima Bibi and others)" learned counsel states that the suit was clearly time barred.

3. On the other hand, Learned counsel, for the Respondents No. 1-A & 1-B argues that the case pleaded by the plaintiff was factually admitted by both the Courts below, therefore there are concurrent findings of facts and law in favour of the respondent-plaintiff, Muhammad Akram; that only on the basis of some technicalities and with regard to the limitation learned trial Court has not fully decreed the suit. Even while exercising jurisdiction under Section 115 of C.P.C. this Court ordinarily does not interfere with the concurrent findings recorded by two Courts below, therefore learned counsel has supported the findings of two Courts below and prayed for dismissal of instant civil revision. It has been further argued that as the plaintiff is in possession of the suit land, therefore limitation was not a bar for filing the suit in the year 1983. With regard to the limitation learned counsel has relied upon "2005 CLC 33 (Muhammad Saddiq and 6 others vs. Zafar Iqbal and 9 others), 1983 CLC 1643 (Mst. Fazal Begum and another vs. Municipal Corporation, Lahore and 5 others), NLR 2006 Civil 299 (Muhammad Yousaf, etc. vs. Mst. Zainab Bibi), 2004 SCMR 1502 (Rehman vs. Yara through L.Rs. and others), 2005 MLD 376 (Mst. Jameela Begum vs. Additional District Judge and 3 others), 2011 YLR 2991 (Ghulam Ahmed vs. Muzafara Begum and 8 others), PLD 2004 Lahore 1 (Mohsin Khan and 3 others vs. Ahmad Ali and 2 others) and 2008 SCMR 905 (Muhammad Anwar and 2 others vs. Khuda Yar and 25 others)". Learned counsel for the respondent-plaintiff while relying upon "1970 SCMR 246 (Muhammad alias Muhammad Ali vs. Raja and 7 others)" states that by widow the property which was granted for her own right, cannot be transferred by her.

Learned counsel for Respondents No. 15, 17 and 18 has adopted the arguments of learned counsel for the petitioners.

1. The rest of the respondents have been proceeded against ex-parte vide order dated 26.09.2012. Learned counsel for the parties have advanced arguments on Issues No. 1, 2 and 9 to 11-A. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance.

2. There are two transactions in issue in this suit about the suit land. One is the Mutation No. 25 of inheritance sanctioned on 22.05.1925 through which the rights in the land left by Ghulam Muhammad were transferred in favour of his son/the plaintiff, his widow Mst. Bahisht Bibi and his grandson Inam Ullah Khan. Second is gift Mutation No. 76 sanctioned on 14.12.1962 part of suit land measuring 77-kanals 01-marla in favour of Mst. Mumtaz Begum, wife of the plaintiff.

3. It is settled that plaintiff has to prove the case pleaded by him. At one side, it is the case of plaintiff that he is entitled to whole of the property left by his father, who left 400-kanals 02-marlas land, whereas he is claiming 133-kanals 16-marlas as disputed land and claiming owner to the extent of 234-kanals 15-marlas. It has also been pleaded by the plaintiff himself that his mother transferred the property in his name under the family settlement, therefore he became owner of 234-kanals 15-marlas. As the case of plaintiff is that in accordance with Section 20 of the Colonization of Government Lands (Punjab) Act (V of 1912) he was entitled to inherit whole of the suit property, therefore for proving the application of Section 20 he was bound to prove Ghulam Muhammad, propositus to be the original tenant. The plaintiff failed to prove so.

4. I have noticed that at the time of sanctioning of Mutation No. 25 there were deliberations and even the Revenue Officer noted that the son i.e. plaintiff who was marked in that mutation as Muhammad Akbar Khan is minor and the grandson of deceased, namely Inam Ullah Khan is also minor. The Revenue Officer noted that widow of deceased is alive and there are six daughters of the deceased; one of whom is married and one is blind. They were resident of Pind Dadan Khan District Jehlum, therefore he sent Band Sawalat', with the consent of widow of deceased and in accordance with reply ofBand Sawalat' the Revenue Officer sanctioned the Mutation No. 25 giving 1/3rd each to the son of deceased, to his grandson and to his widow and mutation was sanctioned on 27.11.1925. It seems that in accordance with the prevailing custom, this mutation was sanctioned. When through Mutation No. 55 on 02.07.1930 the name of plaintiff was corrected and when through Mutation No. 59 sanctioned on 08.02.1937 rights of `Dakheekari' were mutated in the name of transferees of Mutation No. 25 and further when Mutation No. 249 was sanctioned on 24.02.1950 in favour of the transferees of Mutation No. 25 through sale deed by the Government and further when through Mutation No. 49 sanctioned on 31.01.1960 the inheritance of Mst. Bahisht Bibi was transferred in favour of her legal heirs, therefore the filing of suit in the year 1983 was patently time barred. The case law referred to by learned counsel for the petitioners-defendants "2010 SCMR 760" is fully applicable to the facts of this case, whereas the case law cited by learned counsel for the respondent/plaintiff is not applicable to the facts of this case, rather "PLD 2004 Lahore 1 and 2008 SCMR 905" are against the stand of respondent-plaintiff, as if the plaintiff be admitted a co-Sharer in the suit property with the defendants, then certainly he is admitting the defendants also the co-owner in the suit property. His claim is for total ouster of the defendants and claiming himself to be the exclusive owner of suit property, therefore these citations are not helpful to the plaintiff, rather the same are against the plaintiff's claim and if he admits the defendants also to be the co-sharer, then his claim vanishes.

5. The plaintiff has nowhere stated that all the proceedings of conferment of proprietary rights and further mutations were not in his knowledge when the defendants-petitioners were recorded as owner in the suit property on the basis of inheritance, therefore filing of suit by the plaintiff 58 years after the mutation challenging the same in the suit was certainly time barred. Further, after the attestation of impugned Mutation No. 25 various mutations have not been challenged whereby the plaintiff impliedly admitted the validity of Mutation No. 25. Furthermore, when in Para 4 of the plaint the claim of plaintiff is that his mother transferred the property in his name under the family settlement after she got the daughters married, negates his claim to inherit exclusively whole of the property left by his father.

6. So far as Mutation No. 76 is concerned. It is a gift mutation in favour of his wife sanctioned on 14.12.1962 involving land measuring 77-kanals 01-marla. No doubt, it is settled law that a beneficiary must prove the transaction but there are some further principles that when a suit to challenge any transaction through any mode is filed, onus shifts upon the other side only when a plaintiff appears before the Court and makes statement on oath in the witness box as his own witness and denies from the impugned transaction, then certainly onus shifts upon the other side. In this case, the Defendants No. 1 to 3 have received the portion of property gifted by him through the inheritance of their deceased sister, who was the wife of plaintiff and further the transaction of gift is of the year 1962 and the lady died and her mutation of inheritance No. 405 was sanctioned on 19.1.1982. Even the plaintiff has not pleaded that how his wife got the mutation of gift sanctioned by the plaintiff in her favour and what was the interest of Defendants No. 1 to 3 who have now received the share, as unfortunately the lady died in the life time of the donor i.e. the plaintiff and she was issueless. This also is sufficient to substantiate to disbelieve the version of the plaintiff pleaded by him. Furthermore, he has uttered not a single word about this gift mutation when he appeared as his own witness as P.W-2, therefore he also failed to prove the case pleaded by him against this mutation.

7. Under the Muhammadan Law when a Muhammadan transfers the property in favour of his wife, the physical transfer of possession is not necessary. The only symbolic transfer of possession is sufficient. It is settled that in such like cases when a corpus of land is gifted to a lady who is dependent upon the donor, the physical possession of the donor after the gift, is presumed on behalf of the donee.

8. Even otherwise, in accordance with Section 3 of the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) the termination of limited ownership of a female, the inheritance was to be open at the time of death of last male owner and successors of the propositus were entitled to inherit.

9. In this view of the matter, the findings recorded by both the Courts below are against the facts and evidence available on the file as well as settled law, as the Courts below misapplied the law presuming it to be a matter of inheritance. It was not a simple and clear case of matter of inheritance for the plaintiff only, whereas on the other side the defendants are the sisters of plaintiff who have acquired the rights through inheritance of their mother. In these circumstances, suit filed by the plaintiff was not competent.

10. In the light of what has been discussed above, this civil revision is allowed and the impugned judgments and decrees passed by both the Courts below being against the evidence and contrary to law are set aside. Resultantly, the suit filed by the respondent/plaintiff shall stand dismissed.

(R.A.) Revision allowed

PLJ 2013 Lahore 86 [Multan Bench Multan]

Present: Muhammad Farrukh Irfan Khan, J.

ASHIQ MUHAMMAD KHAN--Petitioner

versus

ADDL. DISTRICT JUDGE, MUZAFFARGARH and 4 others--Respondents

W.P. No. 12844 of 2011, decided on 6.11.2012.

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

----O. VI, R. 17--Punjab Pre-emption Act, 1991, S. 13--Constitution of Pakistan, 1973, Art. 199--Suit for pre-emption--Time, place and date of performance of talb-i-muwathibat could not mention in plaint--Mistake can be cured through seeking amendment of plaint--Application u/Order VI, Rule 17 of CPC was dismissed by Courts below--Proposed amendment would not change nature of suit--Right of pre-emption--No retrospective effect--Validity--Petitioner did not disclose date, time and place of making talb-i-muwathibat which was fatal in a pre-emption suit--Performance of requisite talbs was envisaged in Section 13 of Punjab Pre-emption Act, which was promulgated in year 1991 and all the suits for pre-emption filed after enactment would be in consonance with Pre-emption Act--In a suit for pre-emption it is mandatory for pre-emptor to mention requisite particulars of talbs in plaint and any omission was fatal and was not curable defect which can be cured through filing application u/O. VI, Rule 17, CPC--Petitioner had not fulfilled requisite talbs in accordance with law and granting petitioner an opportunity to fill up that lacuna by way of amendment would adversely effect rights of respondent--Trial Court was fully justified in declining application for amendment of plaint which had rightly been maintained by appellate Court--Petition was dismissed. [Pp. 87 & 88] A, B, C & D

PLD 2009 Lah. 356 & PLD 2008 SC 559, rel.

Malik Junaid Farooq, Advocate for Petitioner.

Sh. Habib-ur-Rehman, Advocate for Respondents Nos. 3 to 5.

Date of hearing: 6.11.2012.

Order

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner calls in question the validity of impugned orders dated 16.02.2010 and 15.06.2011. Through the former learned trial Court dismissed the application of the petitioner U/O VI Rule 17 of CPC and through the latter the learned lower Appellate Court dismissed the revision petition of the petitioner filed against the order of the learned trial Court.

1. Learned counsel for the petitioner contends that the learned Courts below erred in law while passing impugned orders; that inadvertently the petitioner could not mention the time, place and date of performance of Talb-i-Muwathibat in his plaint and the said mistake can be cured through seeking amendment of plaint; that the Hon'ble Apex Court in case reported as Mian Pir Muhammad Vs. Faqir Muhammad PLD 2007 SC 302 has observed that the "plaint wherein the date, place and time of Talb-i-Muwathibat and date of issuing of notice of performance of Talb-i-Ishhad in terms of Section 13 of the Act is not provided it would be fatal for the pre-emption suit." Adds that the said judgment was pronounced on 12.12.2006, whereas, the petitioner has filed instant suit in the year 2001 as such the said judgment would not apply retrospectively, however, there is likelihood that the learned trial Court would non-suit the petitioner on that technical ground; that the proposed amendment would not change the nature of suit that the impugned orders of the learned Courts below are not sustainable in the eyes of law and liable to be set-aside.

2. Conversely, learned counsel for Respondents No. 3 to 5 vociferously defended the impugned orders while arguing that the proposed amendment would entirely change the nature of plaint; that the petitioner has not made Talbs in accordance with the law and the respondents have raised specific point in their written statement in this regard and granting the petitioner permission for making proposed amendments would tantamount to overcome the objection of the respondents; that the proposed amendments would change the entire nature of the suit; that the impugned orders of the Courts below are well reasoned and needs no interference by this Court in its Constitutional jurisdiction.

3. I have heard the arguments advanced by the learned counsel for the parties and gone through the record.

4. The right of pre-emption is a very feeble right and in order to succeed in the same a pre-emptor has to fulfill the requisite Talbs as envisaged in Section 13 of the Punjab Pre-emption Act, 1991. In the present case bare perusal of the plaint of the petitioner would reveal that the petitioner did not disclose the date, time and place of making Talb-i-Muwathibat which is very fatal in a pre-emption suit. The contention of the learned counsel for the petitioner that the Hon'ble Supreme Court of Pakistan in Mian Pir Muhammad's case supra pronounced the judgment on 12.12.2006 and the said judgment would have no retrospective effect in the suit pending prior to said judgment is concerned the same is misconceived. Performance of requisite Talbs is envisaged in Section 13 of the Punjab Pre-emption Act which was promulgated in the year 1991 and all the suits for pre-emption filed after this enactment should be in consonance with the said Act. The Act ibid requires performance of Talbs in particular manner and a pre-emptor has to perform the same in that manner. Even otherwise, dictum laid down in Mian Pir Muhammad case supra will be applicable to the pending cases. Reliance is placed on case reported as Mst. Bashiran Begum Vs. Nazar Hussain and another (PLD 2008 SC 559), wherein it has been laid down as under:--

"According to the dictum laid down by the Larger Bench of this Court mentioned above, the requirement of Talbs with requisite details in the plaint is also essential even in the pending cases."

1. In a suit for pre-emption it is mandatory for the pre-emptor to mention the requisite particulars of Talbs in the plaint and any omission in this regard is fatal and is not a curable defect which can be cured through filing application U/O VI Rule 17 of CPC. The respondents in their written statement categorically stated that the petitioner has not fulfilled the requisite Talbs in accordance with law and granting the petitioner an opportunity to fill up that lacuna by way of amendment would adversely effect the rights of respondents. In case reported as Karamat Ali Shehbaz Vs. Muhammad Zulqarnain (PLD 2009 Lahore 356), it has been laid down as under:--

"The assertions of the two Talbs and averments in this behalf in the plaint are foundational and vital to the case of the pre-emptor to propound and sustain his right at the very inception of the lis and any omission is fatal; thus, such an omission is not a mere defect, which can be termed to be inadvertent or a curable, rather it is a fundamental flaw, which in the pre-emption cases cannot be allowed to be supplied and rectified. And if it is so permitted through an amendment of the plaint, it shall tantamount and shall be analogous to the change of the nature of the case and/or the defence, which according to the settled laws regarding the amendment of the pleadings cannot be granted; besides, it shall defeat the mandate of Section 13 of the Act; and where a proposed amendment amounts to infringe and frustrate the law and destroy a right accrued to the opposite such an amendment is impermissible by virtue of Order VI, Rule 17 CPC."

1. For the reasons discussed supra, the learned Trial Court was fully justified in declining the application of the petitioner for amendment of plaint, which has rightly been maintained by the learned lower Appellate Court. Learned counsel for the petitioner has failed to point out any illegality or irregularity in the impugned orders warranting interference by this Court in its constitutional jurisdiction. Resultantly, instant writ petition stands dismissed with no order as to costs.

(R.A.) Petition dismissed

PLJ 2013 Lahore 89 [Multan Bench Multan]

Present: Rauf Ahmad Sheikh, J.

MUHAMMAD SALEEM AKHTAR--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, MULTAN and 5 others--Respondents

W.P. No. 11592 of 2011, heard on 6.11.2012.

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

----O. VI, R. 17 & O. IX, R. 9--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Application for amendment in plaint--Ex-parte proceedings--Trial Court could have not passed an order for ex-parte proceedings in main suit on that date--Valuable rights of parties--Validity--Mere fact that ex-parte evidence had been recorded was not sufficient to deprive petitioner of right to defend the suit--Petitioner could have joined proceedings even after initiation of ex-parte proceedings--Trial Court acted illegally in proceedings ex-parte against petitioner and then failed to exercise jurisdiction vested in it u/Order IX, Rule 7 of CPC by declining request to set aside exparte proceedings and First Appellate Court had failed to rectify illegality committed by trial Court--Petition was accepted. [P. 91] A & C

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

----O. IX, Rr. 7 & 13--Limitation Act, 1908, Art. 164--No period of limitation is prescribed for moving an application u/O. IX, R. 7, CPC--Art. 164 of Limitation Act, prescribes limitation of 30 days for filing of petition under Order IX, Rule 13, CPC to set aside a decree passed ex-parte and that period starts from date of decree or where summons were not duly served from date of knowledge of applicant--An application to set aside exparte proceedings can be filed at any stage before decision of suit--Art. 164 of Limitation Act, does not apply to application under Order IX, Rule 7, CPC--Parties should be given full opportunity to prove their contentions as valuable rights were involved in such cases. [P. 91] B

Mr. Munawar Iqbal Thaheem, Advocate for Petitioner.

Malik Muhammad Latif Khokhar, Advocate for Respondent No. 3.

Nemo for remaining respondents.

Date of hearing: 6.11.2012.

Judgment

The petitioner has assailed the vires of order dated 07.07.2011 passed by the learned Additional District Judge, Multan, whereby a civil revision filed by him against order dated 11.02.2011 of the learned Civil Judge 1st Class was dismissed.

1. The facts as emerge on perusal of the record are that Respondent No. 3 filed a suit for specific performance of the contract against the petitioner and Respondents Nos.4 to 6. On 17.03.2010 an application for amendment in the plaint was fixed for hearing but Defendant No. 4/petitioner was proceeded against ex-parte due to his non-appearance. The petitioner moved an application for setting aside the ex-parte proceedings and to review the order dated 17.03.2010 with the contention that he had been appearing on each and every date of hearing and the dates were duly entered on the brief of the learned counsel but due to some misunderstanding, he was proceeded against ex-parte through an order recorded by the Reader of the Court. This application was dismissed by the learned trial Court. The civil revision filed by the petitioner was also dismissed.

2. Learned counsel for the petitioner has contended that the petitioner is a bona fide purchaser of the disputed property for consideration and a false suit has been filed on the basis of alleged agreement to sell, which has been maneuvered collusively; that he was present on 17.03.2010 in the Court but was he was marked absent subsequently and ex-parte proceedings were wrongly initiated against him; that he has been deprived of the right to defend the suit illegally and that he was marked absent due to some misunderstanding.

3. Learned counsel for Respondent No. 3 has vehemently opposed the petition. It is contended that the petitioner contumaciously absented himself and has tailored a lame excuse regarding his non-appearance; that the ex parte proceedings cannot be set aside unless it is proved that the defendant was unable to appear due to the reasons beyond his control and that the ex parte evidence has already been recorded so at this stage no ground is available to set aside the ex parte proceedings.

4. On 17.03.2010, only the application for amendment in the plaint was fixed for hearing. If was not a date of hearing in the main suit. The learned trial Court, therefore, could have not passed an order for ex-parte proceedings in the main suit on the said date and only the petitioner could have been proceeded against to the extent of the application under Order VI Rule 17, CPC. The suit has yet not been decided. Valuable rights of the parties are involved in the lis. The Superior Courts of the country have always appreciated the decision of the civil matters on merits rather than technicalities. The mere fact that the ex-parte evidence has been recorded is not sufficient to deprive the petitioner of the right to defend the suit. Under the law the petitioner could have joined the proceedings even after initiation of ex-parte proceedings. The record reveals that he had been appearing on 08.04.2010, 20.05.2010, 01.09.2010 and some other subsequent dates of hearing. He should have been afforded an opportunity to cross-examine the witnesses. No period of limitation is prescribed for moving an application under Order IX Rule 7, CPC. Article 164 of the Schedule of the Limitation Act, 1908, prescribes limitation of 30 days for filing of the petition under Order IX Rule 13 CPC to set aside a decree passed ex-parte and this period starts from the date of the decree or where the summons are not duly served, from the date of knowledge of the applicant. An application to set aside ex parte proceedings under Order IX Rule 7, CPC can be filed at any stage before the decision of the suit. Article 164 of the Schedule of the Limitation Act does not apply to application under Order IX Rule 7, CPC. In the civil suit regarding property, parties should be given full opportunity to prove their respective contentions as valuable rights are involved in such cases. The learned trial Court initially acted illegally in proceedings ex-parte against the petitioner and then failed to exercise the jurisdiction vested in it under Order IX Rule 7 CPC by declining the request to set aside the ex-parte proceedings and the learned ADJ also failed to rectify illegality committed by the learned trial Court.

5. For the reasons supra, the writ petition is accepted and the impugned orders are set aside. The ex-parte proceedings against the petitioner are set aside subject to payment of Rs. 5,000/- as costs. The learned trial Court will proceed further from the stage, where the suit was on 17.03.2010 and decide it in accordance with law within shortest possible time by avoiding unnecessary adjournments.

(R.A.) Petition accepted.

PLJ 2013 Lahore 92 (DB) [Multan Bench Multan]

Present: Abdus Sattar Asghar and Malik Shahzad Ahmad Khan, JJ.

MUHAMMAD NAWAZ--Appellant

versus

ZARAI TARAQIATI BANK LIMITED, RAJANPUR through its Manager and 2 others--Respondents

R.F.A. No. 51 of 2012, decided on 5.9.2012.

Financial Institutions (Recovery of Finances) Ordinance, 2001--

----S. 9(1)--Procedure of Banking Courts--Suit for declaration against Bank--Facility of agriculture loan was availed--Clearance certificate was not issued--Bank was not inclined to make any rendition of accounts--If a financial institution committed default in fulfillment of any obligation with regard to any finance customer was competent to institute a suit in banking Court by presenting a plaint--Process for determination of civil rights and obligations--Validity--Appellant’s suit could be dismissed for want of cause of action merely on premises that Bank had made a statement that Bank would not adopt any coercive measures against plaintiff for recovery of loan without determination from competent Court--Parties were not only expedient in interest of justice as well as in the interest of parties but it was necessary to avoid conflict of judgments--Case was remanded to trial Court. [P. 97] A & B

2004 SCMR 108 & 2006 CLD 1181 Lahore, ref.

Sheikh Shahid Mehmood, Advocate for Appellant.

Mian Abdul Aziz Nasim, Advocate for Respondents.

Date of hearing: 5.9.2012.

Judgment

Abdus Sattar Asghar, J.--This Regular First Appeal is lodged against the order dated 08.02.2012 passed by the learned Judge, Banking Court No. II, Multan, whereby the appellant's suit for declaration etc., against the respondent Bank has been dismissed.

1. Brief facts leading to this appeal are that appellant filed a suit for declaration against the respondent Bank alleging that he had availed the facility of agriculture loan/finance in May 1999 and returned a sum of Rs. 2,21,000/- on 28.2.2005 but the clearance certificate was not issued to him; that the appellant has also returned subsequently availed further agricultural loan facility amounts and nothing is outstanding against him; that the respondent Bank is not inclined to make any rendition of accounts with the appellant and is adamant to sell out his mortgaged agricultural land through auction besides initiating other actions. Thus the suit was lodged on 07.07.2005.

2. The respondent Bank initially moved an application under Order VII, Rule 11, CPC and another application seeking leave to defend the suit. Later on the learned counsel for the respondent Bank withdrew his application under Order VII, Rule 11, CPC on 01.07.2006 which was dismissed accordingly. Consequently leave to defend was allowed and vide order dated 12.5.2007 following issues were framed as arising out of the divergent pleadings of the parties;--

3. Whether the suit is mala fide and plaintiff has not come with clean hands. If so, its effect? OPD

4. Whether earlier similar suit of the plaintiff has already been dismissed for want of prosecution. If so its effect?OPD

5. Whether the plaintiff is liable to pay Rs. 2,25,784/- till 30.6.2005? OPD

6. Whether the plaintiff is entitled to declaration claimed for? OPP

7. Relief

8. Record further reveals that since 12.5.2007 up till 07.02.2012 on six occasions plaintiff brought his witnesses whose statements could not be recorded due to non-availability of the learned counsel for the respondent or some other reasons. On 7.2.2012 when the case was fixed for appellant's evidence, learned counsel for the respondent Bank stated that the respondent Bank shall not adopt any coercive measures against the plaintiff (appellant) for recovery of loan without determination from the competent Court. On the same day learned counsel for the appellant/plaintiff advanced his arguments and made a request for adjournment to produce case law to substantiate his plea. The matter was therefore adjourned to 8.2.2012. On the said date i.e. 08.02.2012 the learned trial Court dismissed the appellant's suit through the impugned order, which reads below:--

"Plaintiff has filed this suit for declaration mainly praying for restraining defendants to adopt coercive measures for recovery of loan amount without its determination by a competent Court.

1. On 07-02-2012 learned counsel for defendant made statement that defendant/bank shall not adopt any coercive measures against plaintiff for recovery of loan without determination from competent Court.

2. In view of above statement made by learned counsel for defendant, plaintiff has no more cause of action. Although learned counsel for plaintiff has produced case law cited as 2003 (CLD) 911 [Lahore] (Muhammad Khalid Butt versus United Bank Limited) and 2007 CLD 634 [Lahore] (M.L. Traders versus Judge, Banking Court No. IV, Lahore) in order to plea that issues in the case has already been framed and this ease was transferred to this Court by the order of Honourable High-Court on transfer application filed by plaintiff.

3. The referred ease law are distinguishable as in the said cases there were different proposition, whereas in the instant case, counsel for defendant has fairly stated that defendant shall not adopt any coercive measures against plaintiff for recovery of loan without its determination by competent Court as is prayed in plaint. Further that suit for recovery of outstanding amount against present plaintiff has already been filed, which is sub-judice before this Court and fixed for today, wherein determination as to whether plaintiff has paid or not the loan amount as per agreement can be conveniently determined. Reliance is placed on 2006 CLD 1811.

4. As far as transfer of the case from Banking Court-I. Multan to this Court by the order of Honourable High Court is concerned, suffice it to observe that order was to the effect of transfer of case and not for consolidation of the case with suit for recovery filed by defendant bank. That's being so instant suit stands dismissed accordingly. Defendant shall be bound by the statement made by its counsel. File be consigned to the record room after due completion."

5. It is argued by the learned counsel for the appellant that the impugned order is against law and facts, passed without lawful authority, untenable in law and liable to set aside. He has also taken reliance upon (i) Muhammad Khalid Butt vs. United Bank Limited (2003 CLD 911 Lahore) (ii) M.L. Traders through Proprietor and others vs. Judge, Banking Court No. IV, Lahore and 2 others (2007 CLD 634-Lahore).

6. On the other hand, learned counsel for the respondent Bank has argued that since the Bank has also lodged a suit for recovery of the disputed amount against the appellant which is pending adjudication before the learned trial Court therefore in the light of his statement dated 07.02.2012 the learned trial Court had rightly dismissed the suit through the impugned order in accordance with law.

7. We have given patient hearing to the learned counsel for the parties and carefully gone through the record.

8. Perusal of the impugned order transpires that the learned trial Court has dismissed the appellant's suit maintaining that since the recovery suit lodged by the respondent Bank is subjudice therefore the matter in question can be conveniently determined in the recovery suit lodged by the respondent Bank and in view of the statement of the learned counsel for the respondent, the appellant no-more has a cause of action.

9. At the out-set, it is pertinent to mention that in terms of Section 9(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter to be called the Ordinance) if a financial institution commits a default in fulfillment of any obligation with regard to any finance the customer is also competent to institute a suit in the Banking Court by presenting a plaint. Provision of Section 9(1) of the Ordinance is reproduced hereunder for ready reference:--

"9. Procedure of Banking Courts.--(1) Where a customer or a financial institution commits a default in fulfillment of any obligation with regard to any finance, the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath, in the case of a financial institution by the Branch Manager or such other officer of the financial institution as may be duly authorized in this behalf by power-of-attorney or otherwise."

1. The Financial Institutions (Recovery of Finances) Ordinance, 2001 is a special law, however fact remains that a Banking Court shall, in all matters with respect to which the procedure has not been provided for in the Ordinance, follow the procedure laid down in the Code of Civil Procedure, 1908. In this regard relevant provisions of Section 7(1)(a) and (2) of the Ordinance are reproduced hereunder for ready reference:--

"7. Powers of Banking Courts. (1) Subject to the provisions of this Ordinance, a Banking Court shall--

(a) in the exercise of its civil jurisdiction have all the powers vested in a Civil Court under the Civil Procedure Code, 1908 (Act V of 1908);

(2) A Banking Court shall in all matters with respect to which the procedure has not been provided for in this Ordinance, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908) and the Code of Criminal Procedure, 1898 (Act V of 1898)."

1. The Ordinance itself does not furnish any procedure with regard to scrutiny of the plaint, therefore, in the light of the provision of Section 7(2) of the Ordinance, procedure laid down under Order VII, Rule 11, CPC is applicable to the plaints lodged before the Banking Court. For ready reference provision of Order VII, Rule 11, CPC is reproduced hereunder:

"O. VII (11) Rejection of plaint.--The plaint shall be rejected in the following cases:--

(a) where it does not disclose a cause of action;

(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued. but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) Where the suit appears from the statement in the plaint to be barred by any law."

1. In the instant case respondent's earlier plea for rejection of the plaint under Order VII, Rule 7, CPC has been dismissed as withdrawn vide order dated 01.07.2006 passed by the learned trial Court and consequently leave to defend was allowed to the respondent Bank resulting into framing of issues on the basis of divergent pleadings of the parties and thereafter appellant's suit was adjourned for recording of evidence.

2. The expression, cause of action' means the cause for which the suit was brought. The termaction' means the proceedings in which a legal demand of a right is made. The term `cause of action' refers to every fact which, if traversed, it should be necessary for the plaintiff to prove in order to support his right to judgment and which if not proved gives the defendant a right to judgment and for this purpose only facts stated in the plaint are to be construed to determine whether they constitute a cause of action. Therefore it is obvious that relevant material to determine as to whether the appellant had a cause of action to file the suit was only the facts stated in the plaint. It is astonishing that the learned trial Court instead of taking into consideration the facts given in the plaint has formulated the opinion in the impugned order that in the light of the statement of the learned counsel for the respondent Bank the plaintiff lacks a cause of action. It is also pertinent to notice that on formulating an erroneous opinion that the appellant lacks cause of action the learned trial Court instead of rejecting the plaint has dismissed the suit which is not warranted in law. Certainly the appellant could not be non-suited in the circumstances of this case merely on the basis of a statement made by the learned counsel for the respondent Bank.

3. There is no cavil to the proposition that in the suit for declaration lodged by the appellant and the recovery suit instituted by the respondent Bank subject matter and the issues directly and substantially are the same. Certainly if the appellant's suit is decreed the respondent's suit for recovery is bound to fail and vice versa. At this juncture learned counsel for the appellant has submitted that his application for leave to defend in the suit for recovery lodged by the Bank is yet pending adjudication. Therefore dismissal of appellant's suit will render him remediless if his application for leave to defend in the suit for recovery lodged by the Bank is not allowed. Be that as it may, such state of affairs therefore would be violative to the provisions of Article 10-A of the Constitution which ensures right of fair trial and due process to the appellant for determination of his civil rights and obligations. Besides, appellant's suit could be dismissed for want of cause of action merely on the premises that the learned counsel for the respondent Bank has made a statement that the respondent Bank shall not adopt any coercive measures against the plaintiff (appellant) for recovery of loan without determination from the competent Court. In the attending circumstances consolidated trial of both the suits between the parties was not only expedient in the interest of justice as well as in the interest of parties but it was also necessary to avoid conflict of judgments. Reliance be made upon Messrs First Women Bank Limited vs. Registrar, High Court of Sindh, Karachi and 4 others (2004 SCMR 108).

4. We have carefully gone through the case of Messrs A-Umar Fabrics through Proprietor and 2 others vs. Habib Bank Limited through General Attorney/Manager (2006 CLD 1181-Lahore) relied upon by the learned trial Court in support of the impugned order. Facts of the cited case are altogether distinct and distinguishable from the facts of the case in hand, therefore the dictum laid down in the cited case cannot be siphoned on to the facts of this case and is of no avail to the respondent Bank.

5. For the above discussion and reasons, this appeal is allowed, the impugned order dated 08.02.2012 is set aside and the case is remanded back to the learned trial Court with the direction to consolidate both the suits and after framing of issues arising out of divergent pleadings of the parties conduct the trial in accordance with law to avoid conflicting judgments.

(R.A.) Appeal allowed

PLJ 2013 Lahore 98 (DB) [Multan Bench Multan]

Present: Rauf Ahmad Sheikh and Syed Iftikhar Hussain Shah, JJ.

Syed FARHAT GHAUS GILANI--Petitioner

versus

JUSTICE OF PEACE, RAJANPUR and 6 others--Respondents

I.C.A. No. 43 in W.P. No. 2253 of 2012, decided on 19.9.2012.

Law Reforms Ordinance, 1972--

----S. 3--Criminal Procedure Code, (V of 1898), Ss. 22-A, 22-B & 154--Civil Procedure Code, (V of 1908), O. XXXVII, R. (2)--Intra Court Appeal--Controversy over possession of land cannot be resolved in exercise of writ jurisdiction--Remedy of private complaint--Suspicion qua correctness of contents--Single judge erred in rectifying illegality committed by Addl. Sessions Judge--Order was sustainable--Validity--Dispute of civil nature regarding possession of land forming subject matter of suit for specific performance of contract--If any injunction was violated appellant had efficacious remedy in form of an application u/O. XXXVII, R. 2(3), CPC--Contents of petition moved by appellant revealed that respondent had beaten tenants and extended threats--No medical certificate was appended with writ petition--There was factual controversy over possession of land which could not be resolved in exercise of writ jurisdiction--An attempt was made to culminate dispute of civil nature into criminal proceedings--In case of suspicion regarding correctness of contents of application u/S. 22-A, & 22-B, Cr.P.C.--Justice of Peace can lawfully decline to issue direction for registration of the case--Appellant had efficacious remedy in form of private complaint and might avail of the same, if so desired advised--Impugned order did not call for any interference--Intra Court Appeal was dismissed. [Pp. 99 & 100] A, B, C & D

PLD 2010 SC 691 & PLD 2007 SC 539 & 2006 SCMR 512, ref.

Mr. Muhammad Faisal Bashir Chaudhary, Advocate for Appellant.

Date of hearing: 19.9.2012.

Order

The appellant has assailed the vires of order dated 21.02.2012 passed by learned Single Judge in Chamber, whereby Writ Petition No. 2253 of 2012 filed by him was dismissed.

1. The appellant moved an application before the learned Additional Sessions Judge/J.O.P. praying therein that S.H.O. Police Station City Rajanpur be directed to register a case against Respondents No. 4 to 7 as they were involved in commission of cognizable offence. It was contended that he had filed a suit for specific performance of the contract and interim injunction was granted in his favour by the learned Civil Court. It was urged that on 30.04.2011 the Respondents No. 4 to 7 alongwith 7/8 unknown persons tried to take possession of the land per force and extended threats to kill. This petition was dismissed by the learned Additional Sessions Judge/J.O.P. vide order dated 17.05.2011 which was assailed through the above mentioned petition with the contention that the learned Additional Sessions Judge/J.O.P. had failed to perform his duties in accordance with law. It was prayed that appropriate writ be issued requiring the Respondent No. 3 to register the case.

2. The learned counsel for the appellant has contended that under Section 154, Cr.P.C. it was imperative for the Respondent No. 3 to reduce the information regarding commission of cognizable offence into writing but he failed to perform his duties in accordance with law so the appellant was constrained to move application under Sections 22-A & 22-B, Cr.P.C. which was wrongly dismissed by the learned Additional Sessions Judge/J.O.P. It is urged that the learned Single Judge in Chamber also ignored the principles laid down by the apex Court in PLD 2007 S.C. 539 (Muhammad Bashir vs. S.H.O) and 2006 SCMR 512 (Rafique Bibi vs. Muhammad Sharif and others). It is urged that the learned Single Judge in Chamber erred in rectifying the illegality committed by the learned Additional Sessions Judge/J.O.P. so the order is not sustainable.

3. Admittedly there is a dispute of civil nature regarding possession of the land forming subject matter of the suit for specific performance of the contract. If any injunction was violated the appellant had efficacious remedy in form of an application under Order XXXVII Rule 2(3), CPC. The contents of the petition moved by the appellant reveal that according to him the respondent had beaten the tenants of the appellant and extended threats. No medical certificate was appended with the writ petition. The S.H.O. concerned had reported that no cognizable offence was committed. In these circumstances the learned Additional Sessions Judge/ J.O.P. was fully justified in declining the prayer. The learned Single Judge in Chamber also for cogent reasons rightly held that there is factual controversy over the possession of the land, which cannot be resolved in exercise of writ jurisdiction. It appears that an attempt was made to culminate the dispute of civil nature into criminal proceedings. In case of suspicion regarding correctness of the contents of the application under Sections 22-A & 22-B Cr.P.C. Justice of Peace can lawfully decline to issue direction for registration of the case. The learned Single Judge in Chamber rightly refused to interfere in order of the learned Additional Sessions Judge/J.O.P. and rightly observed that the appellant has efficacious remedy in form of private complaint and may avail of the same, if so desired/advised. The reliance was also rightly placed on case law reported as PLD 2010 S.C. 691 (Rai Ashraf & others vs. Muhammad Saleem Bhatti & others). The case law cited at the bar by the learned counsel for the appellant is not applicable on the facts of the present appeal. The impugned order does not call for any interference. The I.C.A. is without merits and the same is hereby dismissed in limine.

(R.A.) I.C.A. dismissed

PLJ 2013 Lahore 100 [Rawalpindi Bench Rawalpindi]

Present: Ali Baqar Najafi, J.

DR. MALIK HAFEEZ-UR-REHMAN etc.--Petitioners

versus

PAKISTAN MEDICAL ASSOCIATION JHELUM, etc.--Respondents

W.P. No. 3255 of 2012, decided on 20.12.2012.

Constitution of Pakistan, 1973--

----Art. 17--Eligibility for membership of Constitution and bye-laws of Pakistan Medical Association--Scope of--Entitlement of vote--Right of freedom of association guaranteed--Process of scrutiny--Violation of Constitution--Minority cannot hamper democratic process--Art. 17 of Constitution guaranteed right of freedom of association to every citizen who is well with in his right to form an association or union subject to any reasonable restrictions and that right to vote in such an association is right of basic nature of foremost importance--Such right cannot be derogated on some technical grounds as when late subscription was made as ground which debarred petitioners and others to cast their votes--High Court had ample jurisdiction to safeguard fundamental rights of individuals as against associations--It is not only a professional but also service for which association's members are presumably committed--High Court is also mindul of fact that to promote democratic order and encourage election process in such professional associations will buildup institutions in accordance with democratic norms--Perhaps right to form an association, contest elections and cast vote is as important a fundamental right as any other fundamental right enshrined in Constitution--Petition was allowed. [Pp. 103 & 104] A, B, C & D

Malik Abdul Ghafoor, Advocate for Petitioners.

Mr. Mujeeb-ur-Rehman Kiani, Advocate for Respondents No. 2 to 5.

Date of hearing: 20.12.2012.

Order

Through this writ petition the petitioners seek setting aside of termination letter dated 03.12.2012 (Annex-A) with the further direction to the respondents to incorporate the names of 53 members in the voters list (Annex-C) as shown in the subscription list (Annex-B).

1. Brief facts giving rise to the filing of this writ petition are that the Pakistan Medical Association Jhelum (hereinafter referred to as PMA Jhelum) is an affiliated body of Pakistan Medical Association Punjab and centrally with Pakistan Medical Association Centre; a registered body under the Societies Registration Act, 1860 with the Registrar, Joint Companies Karachi and Lahore. The petitioners are the medical practitioners at District Jhelum in Punjab, who as per their contention are entitled to vote under Article 6 (Eligibility for Membership) of the Constitution & Bye-Laws of Pakistan Medical Association Jhelum (Amended up-till 29th December, 1997). The PMA Jhelum has two main groups, namely, "Doctors' Amal Group" and "United Democratic Forum" and the petitioners are the members of the former whereas the respondents belong to the latter group. The existing elected body could not perform well and could induct only 14 new members till 30.06.2012 and managed to collect biennial renewal fee from 34 members only. In the General Body meeting convened in June 2012, a move to enhance the membership was adopted. Under Article 15(ii) ibid the eligibility of petitioners' members to vote or contest in election is subject to their being inducted as members three months prior to the election which date by convention is accepted as 30th of September of an election year. Respondents No. 1 to 3 took it personal and started a campaign to technically knock out their probable adversaries i.e. Petitioners No. 1 and 2 by leveling vague and baseless allegations. They have gone to the level that they unilaterally terminated the membership of Petitioners No. 1 and 2 vide letter dated 03.12.2012 impugned in this petition being in violation of Article 17 of the Constitution of Islamic Republic of Pakistan, 1973. Surprisingly, Respondents No. 1 to 3 struck off the names of 53 members including the Petitioners No. 3 to 19 whose names appeared in the subscription list dated 15.10.2012 (Annex-B) for the period 2011-2012 and issued the impugned voter list dated 06.12.2012 (Annex-C) on the pretext that membership fee was received after 30.09.2012, whereas according to the petitioners the same was received by Respondent No. 3 well before 30.09.2012 i.e. the cut-off date. The amount of subscription of the doctors was presented through two cheques dated 20.09.2012 and 24.09.2012 amounting to Rs. 18000/- and Rs. 15000/-respectively to Respondents No. 2 and 3, who delayed in presenting the same for encashment. The petitioners to avoid late payment paid the amount in cash against receipts annexed with the petition but even the petitioners were debarred from casting vote. Hence this writ petition.

2. Learned counsel for the petitioners submits that right of freedom of association guaranteed under Article 17 of the Constitution of Islamic Republic of Pakistan, 1973, has been denied to the petitioners when they were free from casting votes even after their payment well in time; that the process of scrutiny implemented by Respondents No. 1 to 3 is in violation of the Constitution of PMA Jhelum; that under Clause 15(ii) of the Constitution ibid the yearly subscription has already been paid in time; that 53 votes have been mentioned in the subscription list (Annex-B) but not mentioned in the voter list (Annex-C); that the minority cannot hamper the democratic process; that as per election schedule last date for objections on the list was 15.12.2012 whereas the petitioners moved an application raising objections to the respondents within time to include the petitioners in the voter list but the same remained unattended; that the final voter list dated 17.12.2012 deprives the petitioners and others from their valuable right to cast vote; that the petitioners do not fall in the disqualification criteria as defined in Article 10 of the Constitution of PMA Jhelum ibid. Places reliance on Khawaja Waseem Humayun Vs. Registrar Cooperative, Punjab, Lahore and 3 others (2010 YLR 2562) and prays for the acceptance of the writ petition.

3. Conversely, learned counsel for Respondents No. 2 to 5 questions the maintainability of the writ petition on the ground that the PMA Jhelum is not a person running the affairs of Federation but that of group of persons; that Respondent No. 6 is just arrayed in the list of respondents, whereas no claim is sought against it. Places reliance on Mrs.Kausar Iqbal Bhatti, Advocate High Court Bahawalpur Vs. Shafqat Atta and 25 others (2010 CLC 224), United Bank Limited Pensioners Welfare Association of Pakistan through President Vs. United Bank Limited through President and 5 others (2011 CLC 831), Mst.Umm-e-Roman Vs. Regulatory Authority Oil & Gas, Islamabad through Chairman and another (2009 MLD 759), Maqsood Ahmed Toor and 4 others Vs. Federation of Pakistan through the Secretary to the Government of Pakistan Ministry of Housing and Works, Islamabad and others (2000 SCMR 928), Federation Government Employees' Housing Foundation through Director General, Islamabad and another Vs. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad (PLD 2002 SC 1079) and 2011 SBLR-Sindh 1249 to argue that an association managing its own affairs does not come within the definition of a person dealing with the affairs of the Federation; that no statutory violation is alleged. He, however, does not address on merits of the case and has neither admitted the documents annexed with the writ petition nor denied the same.

4. I have heard the learned counsel for the parties and perused the record.

5. Admittedly, Respondent No. 1 is an association whereas Respondents No. 2 and 3 are its office bearers while Respondents No. 4 and 5 are the members of the Election Committee but Respondent No. 6 has issued a certificate of incorporation of the association. The subscription list (Annex-B) as well as voter list (Annex-C) is also not denied by the respondents. The only reason available to the authority to terminate the membership of the petitioners and not to enroll them and others in the voter list is that they submitted their subscription after the due date. The available documents reveal that their subscription was deposited before the stipulated date through two cheques dated 20.09.2012 and 24.09.2012 to Respondents No. 2 and 3. If the same were not presented or not accounted in the accounts of the respondents, it was not the fault of the members.

6. Article 17 of the Constitution of Islamic Republic of Pakistan, 1973, guarantees the right of freedom of association to every citizen who is well within his right to form an association or union subject to any reasonable restrictions and that right to vote in such an association is the right of basic nature of a foremost importance. This right cannot be derogated on some technical grounds as in the present case when late subscription was made as a ground which debarred the petitioners and others to cast their votes.

7. As far as maintainability of this petition is concerned, this Court has ample jurisdiction to safeguard the fundamental rights of the individuals as against the societies/associations. I am fortified by the judgment rendered by this Court in Khawaja Waseem Humayun Vs. Registrar Co-operative, Punjab, Lahore and 3 others (2010 YLR 2562). The judgments cited at bar by the learned counsel for Respondents No. 2 to 5 do not relate to an association of doctors who are professionals and have a peculiar status in the society which they have attained by saving the lives of the people. It is not only a profession but also a service for which the association's members are presumably committed. This Court is also mindful of the fact that to promote the democratic order and encourage the election process in such professional associations will ultimately build up institutions in accordance with democratic norms. It will ultimately build up a democratic culture in our society which is the only way of survival of this nation. This Court time and again has come forward in order to rescue an individual by protecting his fundamental rights. To my humble understanding, perhaps right to form an association, contest elections and cast vote is as important a fundamental right as any other fundamental right enshrined in Constitution of Islamic Republic of Pakistan, 1973.

8. In view of what has been discussed above, I allow this petition and direct Respondents No. 4 and 5 to incorporate 53 members in the voter list (Annex-C) as shown in the subscription list (Annex-B). The termination letter dated 03.12.2012 (Annex-A) is also set-aside as having been passed illegally.

A copy of this order be sent to Respondent No. 6 for Information and compliance.

(R.A.) Petition allowed

PLJ 2013 Lahore 104 [Rawalpindi Bench Rawalpindi]

Present: Ali Baqar Najafi, J.

Mst. MUSSARAT IQBAL NIAZI--Petitioner

versus

JUDGE FAMILY COURT, etc.--Respondents

W.P. No. 200 of 2008, decided on 18.12.2012.

Khulla--

----Under Islamic Sharia, marriage between a muslim man and woman can be dissolved on basis of khulla for which some consideration is formed--Form of dower which the wife was entitled to receive at time of demand. [P. 106] A

Bridal Gift--

----Wife is also entitled to receive bridal gifts at time of marriage which is solely her property--As land of gift would go, once a gift is made title/ownership of same is departed from original donor and vests to donee which without consent of latter cannot be returned. [P. 106] B

Dower--

----Land and gold ornaments were mentioned in nikahnama--Validity--Marriage on basis of Khulla can be dissolved on basis of dower mentioned in Column No. 13 of Nikahnama. [P. 106] C

Mr. Muhammad Aslam Malik, Advocate for Petitioner.

Mr. Muhammad Amin, Advocate for Respondents No. 2-A to 2-G.

Date of hearing: 18.12.2012.

Order

This judgment shall dispose of Writ Petition No. 200 of 2008, Writ Petition No. 206 of 2010 and Writ Petition No. 207 of 2010 as common question of law and facts are involved.

1. Through this writ petition the petitioner challenges judgment and decree dated 22.01.2008, whereby the suit of the petitioner/ plaintiff for dissolution of marriage was decreed under Section 10(4) of the Family Courts Act, on the condition that she will return 15 tola gold ornaments and 5 Marlas of land to the defendant as consideration for khulla given to her in lieu of dower at the time of marriage.

2. Brief facts giving rise to the filing of this writ petition are that the petitioner filed a suit for dissolution of marriage against Respondent No. 2 before the Judge Family Court at Rawalpindi in which written statement was filed. On failure of re-conciliation their statements were recorded. A decree for dissolution of marriage was passed conditionally on 22.01.2008 restoring 15 tolas gold ornaments and 12 Marlas of land in favour of Respondent No. 2 under Section 10(4) of the Family Court Act which is challenged in this writ petition.

3. Learned counsel for the petitioner contends that the imposition of condition of return of 15 tolas gold ornaments and 5 Marlas of land is against law and facts; that Nikahnama reveals that Rs.50,000/- as dower was mentioned in Column No. 13 which was to be payable on demand and the same is not paid up till now which is consideration for khulla; that under Column No. 16 of the Nikahnama land of 5 Marlas have been transferred as gift to the petitioner which is not Haq Mehr and cannot be restored; that gold ornaments weighing 15 tolas have been given as bridal gift which although already snatched by the Respondent No. 2 cannot be formed basis for khulla; that Respondent No. 2 appeared as DW-1 in the earlier case and admitted that she was turned out from his house. Places reliance on Tariq Mehmood vs. Mst. Farah Shaheen (2010 YLR 349) and Perveen Umar and others vs. Sardar Hussain and others (2004 SD 215) to argue that gold ornaments mentioned in Column No. 16 are bridal gift which are not part of the dower and at least cannot be based as consideration for Khulla.

4. Conversely, the learned counsel for the respondents submits that the suit for recovery of Rs.50,000/- and recovery of maintenance were dismissed whereas suit for restitution of conjugal rights was decreed, against which the appeal was filed in which the same order was upheld on 14.06.2007. This order was challenged in Writ Petition No. 206 of 2010 and Writ Petition No. 207 of 2010 filed by the petitioner; that on 25.07.2007 i.e. immediately after the said judgment suit for dissolution of marriage on the basis of khulla was filed; that no strict principle of CPC and Qanoon-e-Shahadat Order, 1984 are applicable in the cases relating to matrimonial disputes; that Writ Petition No. 206 of 2010 and Writ Petition No. 207 of 2010 were filed on 15.01.2010 and as such the same are hit by laches. Places reliance on Muhammad Husain Munir and others vs. Sikandar and others (PLD 1974 Supreme Court 139), Abdul Rehman Bajwa vs. Sultan and 9 others (PLD 1981 Supreme Court 522) and State Bank of Pakistan through Governor and another vs. Imtiaz Ali Khan and others (2012 SCMR 280).

5. I have heard the learned counsel for the parties and perused the available record.

6. Under Islamic Sharia the marriage between a Muslim man and woman can be dissolved on the basis of khulla for which some consideration is formed. This is in the form of dower which the wife is entitled to receive at the time of demand. Apart from that, a wife is also entitled to receive bridal gifts at the time of marriage which is solely her property. As the land of gift would go, once a gift is made the title/ownership of the same is departed from the original donor and vests to the donee which without consent of the latter cannot be returned.

7. In the instant case, an amount of Rs.50,000/- mentioned in Column No. 13 as dower money, 5 Marlas of land and 15 tolas gold ornaments are also mentioned meaning thereby that the land of 5 Marlas and the said gold ornaments are part of the bridal gift. Consideration for khulla can be the dower amount which is specifically mentioned to be Rs.50,000/-. I rely upon the judgment (2008 SCMR 186), wherein it was held that the marriage on the basis of khulla can be dissolved on the basis of dower mentioned in Column No. 13.

8. The impugned order in Writ Petition No. 206 of 2010 and Writ Petition No. 207 of 2010 upholding order dated 07.06.2006, whereby suit for recovery of dowry has been satisfied; therefore, no further order is required. Suit for maintenance was dismissed and as Respondent No. 2 is no more alive, no further proceedings would be required in that petition. Similarly, suit for restitution of conjugal rights was decreed in view of the judgment and decree dated 22.01.2008, the same has already become infructuous.

9. The learned counsel for the respondents under misconception that Writ Petition No. 206 of 2010 and Writ Petition No. 207 of 2010 were filed on 20.01.2010 whereas record reveals that these were filed on 08.09.2007, therefore, no question of laches is involved. In this view of the matter, Writ Petition No. 206 of 2010 and Writ Petition No. 207 of 2010 are dismissed whereas Writ Petition No. 200 of 2008 is allowed with the result that it is declared that marriage between the petitioner and Respondent No. 2 dissolved on 22.01.2008, for a consideration of Rs.50,000/- as khulla which she would forgo. The property 5 Marlas and 15 tolas gold ornaments are bridal gifts and are ownership of the petitioner.

With the above terms these writ petitions stand disposed of.

(R.A.) Petition disposed of

PLJ 2013 Lahore 107 [Rawalpindi Bench Rawalpindi]

Present: Ali Baqar Najafi, J.

SARDAR ZULFIQAR ALI KHAN and 8 others--Petitioners

versus

MALIK SAJID BASHIR--Respondents

C.R. Nos. 490 & 491 of 2010, heard on 10.12.2012.

Court Fees Act, 1870 (VII of 1870)--

----S. 7(1)--Suit Valuation Act, 1887, S. 8--Value of Court fee for purpose of jurisdiction in matter of appeal--Recovery of possession and claimed recovery of damages for loss of business--Value of Court fee and jurisdiction was fixed beyond Rs. 200,000/- Validity--If the suit was for money including suit for damages or compensation or arrears of maintenance of annutaties as of other sums payable periodically, the amount of fee is payable according to value of subject matter--But u/S. 8 of Suit Valuation Act, in suits not attracting para (v)(vi)(ix)(x) and clause (d) of S. 7 of Court Fee Act, the value for Court fee and jurisdiction shall be the same--Since recovery of possession money was involved, therefore, subject matter will determine jurisdiction--Claims made went beyond jurisdiction of Addl. Distt. Judge hence appeals were rightly returned--Revisions were dismissed. [P. 109] A

Syed Zulfiqar Abbas Naqvi, Advocate for Petitioners (in C.R. Nos. 490 & 491 of 2010).

Qazi Muhammad Tariq and Malik Muhammad Iqbal, Advocates for Respondents (in C.R. No. 490 of 2010).

Mr. M. Bilal, Advocate for Respondent (in CR No. 491 of 2010).

Malik Sajid Bashir, Advocate for Respondents.

Date of hearing: 10.12.2012.

Judgment

This judgment will dispose of titled civil revision as well as Civil Revision No. 491 of 2010, as both these matters have arisen out of one order dated 23.04.2010 passed by the learned Addl. District Judge, Fateh Jang, whereby he returned the memo. of appeals filed by the petitioners against the consolidated judgment and decree dated 06.02.2008. By filing these civil revisions the petitioners seek setting aside of the said order.

1. The brief facts giving rise to these civil revisions are that the predecessor-in-interest of the petitioners namely Sardar Asad Ali Khan died on 08.07.2006, where-after his legal heirs filed a suit under Section 39 of the Specific Relief Act, 1877 for cancellation of registered lease deed along with suit for declaration, whereas Malik Sajid Bashir/respondent filed a suit for declaration and recovery of damages, stating therein that he was lessee of the Petrol Pump under the name and style of "Iqbal and Sons PBS" situated in Khasra No. 866 comprising of land measuring 15 Marlas within the area of mauza Old Bus Stand Khoar Road, Fateh Jang District Attock along with the restoration of the petition, therefore, sought recovery of possession and also claimed recovery of damages for loss of business.

Both the suits were consolidated and consolidated issues were framed. The suit of the respondent was decreed to the effect that he (respondent) was held entitled to recover the possession of the suit property until the lease is cancelled and also to recover the mesne profit from the petitioners for the period they again put in possession. However, the suit of the petitioners stood dismissed. Later on the petitioners filed the appeals in both the suits before the learned Addl. District Judge who returned the memo. of appeals on the ground that he had no pecuniary jurisdiction to adjudicate upon the matter. Hence these civil revisions.

1. Learned counsel for the petitioners submits that the impugned order regarding the return of memorandum of appeals is against the law and facts of the case; that the pecuniary jurisdiction has to be determined on the basis of fixation of the suit value for the purpose of Court fee and jurisdiction as mentioned in the plaint; that in para-11 of the plaint the value is fixed at Rs.200,000/- and as such the learned Addl. District Judge enjoyed the jurisdiction as he had the power to adjudicate upon the matters upto Rs.2.5 Million. Places reliance on Ilahi Bakhsh and others versus Mst Bilqees Begum (PLD 1985 S.C. 393) to argue that value of the Court fee for the purpose of jurisdiction in the matter of appeal is the same as in the plaint, for ascertainment of the forum of appeal and as such the determining factors would be the value of the original suit and not the market value of the sale price of the subject matter under Section 7 of the Court Fee Act 1870. Further places reliance on Mehtab Khan versus Faiz Muhammad (PLD 2003 Peshawar 46), to argue that under Section 18 of the West Pakistan Civil Courts Ordinance (2) of 1962 the forum of appeal is to be determined according to the value of suit as mentioned in the plaint.

2. Conversely, learned counsel for the respondent submits that no issue was framed on the subject and refers to Para No. 1 of the plaint wherein various claims were made beyond the jurisdiction of the Addl. District Judge. Places reliance on Budha Mal versus Rallia Ram and others (A.I.R. 1928 Lahore 157(2), to argue that the value of the appeal is the amount found due to plaintiff by Court and not the sum at which the value is claimed.

3. I have heard the learned counsel for the parties and perused the available record.

4. A perusal of the plaint of the respondent reveals that the claim of declaration and possession, recovery of Rs.2,00,000/- as loss, Rs.50,000/- as damages, recovery of price of diesel of Rs.9,22,640/-, Rs.5,00,000/- in cash, Rs.38,46,250/-, Rs.49,68,000/- as rent, Rs.20,00,000/- as loss to business, etc. and in Para-11, the value of Court fee and jurisdiction is fixed beyond Rs.200,000/-. Under Section 7(1) of the Court Fees Act, 1870, if the suit is for money (including suit for damages or compensation or arrears of maintenance of annutaties as of other sums payable periodically) the amount of fee is payable according to the value of the subject matter. But under Section 8 of the Suit Valuation Act, 1887, in suits not attracting para (v)(vi) (ix)(x) and clause-d of Section 7 of the Court Fee Act 1870 the value for Court fee and jurisdiction shall be the same. In the instant case since the recovery of possession and money is involved, therefore, the subject matter will determine the jurisdiction. The claims thus made went beyond the jurisdiction of the learned Addl. District Judge, hence the appeals were rightly returned.

5. In view of the above, these civil revisions are dismissed.

(R.A.) Revision dismissed

PLJ 2013 Lahore 109 [Rawalpindi Bench Rawalpindi]

Present: Ali Baqar Najafi, J.

TIBRAK MASOOD, etc.--Petitioners

versus

E.D.O. (E), etc.--Respondents

W.P. No. 2293 of 2010, decided on 25.9.2012.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Recruitment policy--Minimum acknowledgement of which his family was entitled--More qualified than anybody else being local residents as well as on fact that their father had donated land for school--Having date of birth, matric qualified could secure only 20 marks in interview--Validity--Without going into question as to what objective criteria was available to committee for awarding marks in interview, one fact cannot be ignored that promotion of education in society for children was not only a basic human right but also fundamental right provided under Constitution--No denial of fact that through education only living standard and literacy can be improved--Petition was disposed of. [P. 111] A

Raja Abdul Rehman, Advocate for Petitioners.

Mr. Khursheed Ahmad Satti, A.A.G with Shamim Akhtar Kiani, Dy. D.E.O(W) Sohawa.

Date of hearing: 25.9.2012.

Order

Through this writ petition, the petitioners seek a direction to Respondents No. 1 and 2 for a chance to prove their worth as Naib Qasid and Chowkidar in Govt. Girls School, Dihali, Tehsil Sohawa, District Jhelum.

1. The brief facts giving rise to filing of this writ petition are that Petitioners No. 1 and 2 applied for the post of chowkidar and Naib Qasid in Govt. Girls School Dihali, Tehsil Sohawa, District Jhelum, for the reason that they considered themselves to be the local residents as well as duly qualifying the requisite academic qualification. The interviews were conducted on 28.05.2009 in response to the advertisement published in the newspaper, where after they did not receive any intimation of their result.

2. Learned counsel for the petitioners submits that the petitioners are more qualified than anybody else being the local residents as well as on the fact that their father namely Muhammad Anwar had donated 25 kanals of land for the school in the said village and they should have at-least a job at the lower level in the said school; the minimum acknowledgment of which his family is entitled.

3. The respondents have filed the report and parawise comments on 05.06.2010 wherein they disclosed that one Yasir Arfat stood at No. 1, and, therefore, was appointed as Naib Qasid whereas Muhammad Tariq son of Muhammad Riaz was appointed as Chowkidar who also stood at No. 1 in the separate list on merit. Respondents No. 1 and 2 further informed this Court that the said two persons were senior in age who must be preferred, in order to secure their future, from any untoward incident of overage; the said post being non-teaching attracts different qualities of candidates; under the policy no provision of any preferential treatment is permissible to a family/person who donated the land for college/school in the village. Hence prays for dismissal of this writ petition.

4. I have heard the learned counsel for the parties and perused the available record.

5. The record reveals that one Abdul Rasheed son of Muhammad Din having date of birth 09.02.1977, a Matric qualified secured 40 marks in interview and stood at Serial No. 2, whereas Petitioner No. 2 stood at Serial No. 3, Sajjad Hussain son of Muhammad Banaras who secured 65 marks stood at Serial No. 1, whereas Petitioner No. 2 having date of birth 13.06.1979, Matric qualified could secure only 20 marks in Interview. Likewise Petitioner No. 1 having date of birth 02.02.1.980, with primary qualification, secured only 15 marks in interview and stood at Serial No. 25. Without going into the question as to what objective criteria was available to the committee for awarding marks in interview; one fact cannot be ignored that promotion of education in the society for the children is not only a basic human right but also a fundamental right provided under the Constitution of Islamic Republic of Pakistan, 1973. There is no denial of the fact that through the education only the living standard and literacy can be improved. The villagers are the main stake holders, who are to be persuaded not only to send their children to the school but also to encourage them to facilitate for new schools. Obviously, this requires the resources as well as will on their part and a seat to acknowledge their aptitude is bound to encourage them to engage in such activities. Ultimately this will allow the nation building measures for those who donate their properties for this noble cause, for which they must not only be respected but also be given some sense of belonging. A simple token in the form of one seat at the level of chowkidar or Naib Qasid may be helpful in achieving this objective. In this view of the matter I dispose of this writ petition with the direction to the Secretary Education Government of Punjab as well as Respondent No. 1 to accommodate the petitioners in the next seat falling vacant for the post against their eligibility, with a further direction to incorporate in recruitment policy a provision of such acknowledgement through some posts for those who have donated their land for their noble projects of the government schools.

(R.A.) Petition disposed of

PLJ 2013 Lahore 112

Present: Ali Baqar Najafi, J.

PERVAIZ AKHTAR--Petitioner

versus

FEDERAL GOVERNMENT--Respondent

W.P. No. 1870 of 2012, heard on 4.9.2012.

Civil Servant Act, 1973--

----S. 9--Promotion Rules, 2010, R. 4--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Right of civil servant--Ante-dated promotion--Seniority list--Unblemished record of service with honesty, efficiency and compatibility--Non availability of record for promotion including ACRs--Validity--Condition of three years, working for promotion becomes open to exception if not followed in other similar cases--Right of civil servant as contemplated u/S. 9 of Civil Servants Act, was neither illusory nor perfunctory ritual and with holding of promotion of any officer was a major penalty in accordance with Rules, 1973--To be considered for promotion is a vested right of petitioner which was to be based on seniority cum fitness and best assessment of such tangible material can at all be made by competent authority--Secretary was directed to decide in accordance with law, rules, policy and precedents to cases to petitioner, expeditiously and preferably within a period from receipt of copy of the order. [P. 114] A & B

Mr. Sahibzada Anwar Hamid, Advocate for Petitioner.

Mr. Sajid Tanoli, Standing Counsel for Respondent.

Date of hearing: 4.9.2012.

Judgment

The petitioner, through this writ petition, seeks direction to the respondents to decide appeal of the petitioner under Rule FR 17 as per his seniority list prepared in May 2012 for ante-dated promotion in BS-21 without further loss of time in the light of the precedents quoted with further direction Respondents No. 1 to 3 to convene the meeting of Special High Powered Board to consider the promotion of the petitioner in BS-22, as he qualifies for all other conditions of Rule 4 of Promotion Rules, 2010.

1. Briefly the facts relevant for the disposal of this writ petition are that the petitioner has joined the police service as ASP in 4th Common, in the year 1977, where after he acquired/good record for serving at various posts. In February, 2007 to October, 2008 he remained Officer on Special Duty without any complaint and during this period his ACRs remarks incomplete without his fault whereby he was deprived of his valuable rights when his promotion in the next grade was hampered. Meanwhile his other colleagues were promoted to BS-21 in the year 2009. On 01.02.2011 a seniority list was issued wherein the petitioner was mentioned at Serial No. 5 but on 26.04.2012 in the second seniority list he was placed at Serial No. 1. Meanwhile, vide clause-B of paragraph-4 of the working papers of FR 17 Committee was constituted for consideration of antedated promotion of the petitioner from BS-20 to BS-21 but the case of the petitioner was deferred on the ground of incomplete record allegedly on the part of the petitioner. An appeal was preferred before the Secretary Establishment, Government of Pakistan which is still pending without any progress, hence this writ petition.

2. The learned counsel for the petitioner submits that vide Rule 2.87 of A Guide to Performance Evaluation Report, the reports of the Officers on Special Duty who have been assigned any job, are to be written in the normal manner which benefit was not extended to the petitioner; that under Section 9(2)(a) of the Civil Servants Act, 1973; admittedly, the petitioner is entitled to promotion; Rule 4 of Promotion Rules, 2010, is ultra vires of the Civil Servants Act, 1973 and Article 25 the Constitution of Islamic Republic of Pakistan, 1973; that the August Supreme Court of Pakistan has encouraged the promotion on merits in suo moto case reported as TARIQ AZIZ-UD-DIN and others (2010 SCMR 1301); that the case of the petitioner is at par with his colleagues who have been granted ante dated promotion by the respondents under FR 17; that it is also an established principle of law that deferment does not deprive a government servant from his right from grant of promotion to the next higher grade with effect from the date his juniors were promoted; that in view of the law laid down in Mirza Shamas ul Hassan vs. Secretary Establishment and others passed in Writ Petition No. 64 of 2007 vide order dated 13.10.2008 the supersession of government official on the basis of intelligence reports was held to be against law and as such promotion on the basis of seniority list was held to be the vested right of the petitioner; that the Writ Petition No. 10825 of 2012 challenging vires of the rules on the similar issue is pending at Principal Seat. He prays for decision on appeal of the petitioner after suspension of Rule-4 of Promotion Rules, 2010.

3. Conversely, the learned standing counsel has vehemently opposed the prayer made at the instance of the petitioner by submitting that eligibility of the petitioner for promotion is a question of fact which can not be probed into under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973; that Section 9 of Civil Servants Act, 1973 is applicable to the case of the petitioner in view of the law laid down in re: Tariq Aziz-ud-Din and others (2010 SCMR 1301); and that the petitioner is not qualified for promotion as prayed for.

4. I have heard the learned counsel for the parties and perused the record.

5. Admittedly, petitioner has an unblemished record of service with honesty, efficiency and compatibility. Non availability of the record for promotion including ACRs by the Department was obviously not the fault of the petitioner for which he could not be made to suffer as recently held in Secretary Schools of Education and others vs. Rana Arshad Khan and others (2012 SCMR 12). Rule 2.87 ibid is attracted as admittedly the petitioner is now at No. 1 vide seniority list circulated on 26.04.2012 and has a fair chance of being promoted on the basis of FR 17 ibid. Even otherwise, Hon'ble Supreme Court of Pakistan in its wisdom always encouraged the promotion on merits, especially from Grade-21-22, which obviously will also be endeavour of the respondent- department. Reliance in this behalf can be placed upon in re-Tariq Aziz-ud-Din and others (2010 SCMR 1301). In my humble view the condition of three years service, working in Grade-21, for promotion in grade-22 becomes open to exception, if not followed in other similar cases. Right of a Civil Servant as contemplated under Section 9 of Civil Servants Act, 1973 was neither illusory nor a perfunctory ritual and with-holding of promotion of any officer was a major penalty in accordance with Government Servants (E&D) Rules, 1973. To be considered for promotion is a vested right of the petitioner which is to be based on seniority cum fitness and the best assessment of such tangible material can at all be made by the competent authority.

6. Since the petitioner is approaching his superannuation and his appeal agitating all his grievances is pending before Respondent No. 1/Secretary Establishment Division since December 2011, therefore, he is directed to decide the same in accordance with law, rules, policy and the precedents/guidelines of the apex Court applicable to the case of the petitioner, expeditiously and preferably within a period of fortnight from the receipt of copy of this order, under intimation to the Deputy Registrar (Judicial) of this Court. With the above observations/ directions this writ petition is disposed of.

(R.A.) Petition disposed of

PLJ 2013 Lahore 115

Present: Ali Baqar Najafi, J.

MANZOOR AHMAD--Petitioner

Versus

DPO etc.--Respondents

W.P. No. 1203 of 2011, heard on 6.9.2012.

Police Order, 2002 (22 of 2002)--

----Art. 18(5)--Constitution of Pakistan, 1973, Art. 199--Transfer of investigation--DPO had no power to delegate power for change of investigation to any other police officer--No power to change investigation--Validity--Investigation can only be changed by Board constituted under provision comprising S.S.P to S.P, one being incharge of investigation of Distt.--High Court was of considered view that report conducted by D.S.P. was without lawful authority and was hereby declared so--Delegation of power of D.P.O for transfer of investigation as under Art. 18(5) of Police Order--D.P.O had no power to interfere with process of investigation, therefore, no question for further delegation can possibly be arisen in respect of investigation--Petition was allowed. [P. 117] A & B

Mr. Muhammad Ilyas Siddiqui, Advocate for Petitioner.

Mr. Saif-ur-Rehman, AAG with Dar Ali Khan, DPO, Jhelum and Zulfiqar Ahmad, DSP (Legal) for Respondents.

Mr. Zamir Hussain Malik, Advocate for Complainant.

Date of hearing: 6.9.2012.

Judgment

The petitioner, Manzoor Ahmad, seeks direction for Constitution of Board under Article 18 of the Police Order, 2002 for transfer of investigation in case FIR No. 60 dated 23.03.2011 registered under Sections 452/34, PPC at Police Station Jalalpur Sharif District Jhelum besides further prayer for setting aside report of inquiry conducted by the Deputy Superintendent of Police (Legal) on 03.05.2011.

1. Brief facts of the case are that according to demarcation conducted by the revenue authorities 9 marlas of land of Safdar Ali, complainant of the FIR No. 60 registered under Sections 452/337 F(i)/337-F(v)/334 at Police Station Jalalpur Sharif District Jhelum, falls in the land possessed by Haji Fazal Hussain, who on 23.03.2011 at about 5.30 P.M. armed with danda, Muhammad Akbar son of Manzoor armed with hatchet and Masood son of Manzoor, armed with danda came to his house and said that if he agrees to have consideration of his land at the rate of Rs.5,000/- per marla, he is ready to pay otherwise he would neither leave the land nor pay the amount. This resulted into exchange of hot words whereupon Haji Fazal Hussain, Muhammad Akbar and Masood Ahmed inflicted injuries with the respective weapons on the different parts of his (Safdar Ali) body. All the three accused chased the complainant and by entering into his house gave him beating.

2. Malik Afzaal, Assistant Sub-Inspector, Respondent No. 4 completed investigation and later on receiving final result of injuries kept under observation, Sections 337-F(v)/337-L(ii)/148/149, PPC were added.

3. Fazal Ahmed, accused party in the FIR, on 22.03.2011 approached the Station House Officer, Police Station Jalalpur Sharif District Jhelum with a written application stating therein that at about 6.30 P.M. Amjad son of Yaqoob came there and by extending abuses said that he would possess his haveli tomorrow and on his forbidding to extend abuses, he flared up and raised lalkara that Fazal Ahmed would not let off whereupon Fakhar armed with danda, Shaukat, Zafar, Ali Raza, Zeshan, Kamran, Naveed-ul-Hasan, Ali, Raja Yaqoob, Raja Safdar and Iftikhar Haider with his gunman chased to beat Fazal Ahmed who entered in his house to avoid fear of beating but the accused persons trespassed and gave him and women sever beating of kicks and fists resulting into registration of cross-version to the FIR under Sections 337-F(v)/337-L(ii)/147/149, PPC on receipt of medico legal report of Fazal Ahmed, injured against the complainant party. Fazal Ahmed also filed petition under Sections 22-A/22-B of Cr.P.C. which was disposed of on 28.03.2011 with the direction to Respondent No. 1 to proceed in the matter strictly in accordance with law as the cross-version had been registered.

4. On 18.05.2011 this Court directed submission of report from Respondent No. 1 who submitted the same vide Memo. No. 6581/M dated 18.06.2011 besides narrating the above averments in the report in the last it is stated that Zafar Ali also moved an application before Respondent No. 1 showing lack of confidence upon the Investigating Officer whereupon the Deputy Superintendent of Police (Legal) was deputed to conduct discrete enquiry. Safdar Ali and Fakhar Ali of first complainant party for the FIR and Fazal Ahmed, Masood Ahmed and Muhammad Akbar, accused in cross-version were found guilty while the other have been let off in investigation. Fazal Ahmed, complainant of cross-version also approached the Regional Police Officer for transfer of investigation which was directed to be placed before the District Standing Board.

5. Learned counsel for the petitioner argues that the investigation conducted by the Deputy Superintendent of Police (Legal) is without any law and the only Article deals with the investigation in the Police Order, 2002 is Article 18 where the Deputy Superintendent of Police (Legal) has no power to conduct investigation. Further submits that the District Police Officer has no power to delegate power for change of investigation to any other police officer as he himself does not possess the power to change the investigation. He relies on Muhammad Farooq Khan Versus The State (PLJ Cr.C (Karachi) 195 (D.B.), Mirza Jahangeer Baig Versus D.I.G. of Police, Gujranwala Range and 7 others (PLJ 2007 Cr.C, (Lahore) 758) and Aziz Ahmad Versus Provincial Police Officer (I.G.P), Punjab Lahore and 6 others (PLD 2005 Lahore 185) and (2006 MLD 501) to argue that such investigation is without legal authority and therefore, is liable to be set aside.

6. Learned Assistant Advocate General Punjab assisted by the learned counsel for complainant in the FIR opposed the prayer by submitting that the investigation cannot be changed after submission of challan in the Court. Further adds that vide order dated 29.06.2011, the District Standing Board unanimously disapproved the change of first investigation as challan has already been submitted in the cross version, therefore, the petitioner has alternative remedy by filing of an appeal.

7. I have heard the learned counsel for the parties as well as learned Assistant Advocate General and perused the record.

8. The arguments advanced by the learned counsel for the parties have brought two propositions; whether the investigation conducted by the Deputy Superintendent of Police (Legal) is without lawful authority and whether the District Police Officer-Respondent No. 1 has any authority to further delegate a power which he himself does not possess. The only Article which deals with transfer of investigation is Article 18 of the Police Order and bare perusal of the same leads to an irresistible conclusion that the investigation can only be changed by the Board constituted under the said provision comprising of Senior Superintendent of Police and two Superintendents of Police; one being Incharge of the investigation of the concerned district. Therefore, this Court is of the considered view that the report/investigation conducted by the Deputy Superintendent of Police (Legal) is without lawful authority and is hereby declared so.

9. So far as the delegation of powers by the District Police Officer for transfer of investigation is concerned, as under Article 18(5) of the Police Order, 2002, the District Police Officer himself has no power to interfere with the process of investigation, therefore, no question for its further delegation can possibly arisen in respect of investigation.

10. For what has been discussed above, this petition is allowed in view of the above terms.

(R.A.) Petition allowed

PLJ 2013 Lahore 118 [Rawalpindi Bench Rawalpindi]

Present: Ali Baqar Najafi, J.

SAJID AZIZ--Petitioner

versus

SECRETARY SCHOOLS, etc.--Respondents

W.P. No. 1972 of 2012, decided on 6.9.2012.

Punjab Civil Servants Recruitment (Relaxation of Upper Age limit) Rules, 1976--

----R. 3(v)--Punjab Civil Servants Act, 1974, S. 23--Constitution of Pakistan, 1973, Arts. 194 & 199--Constitutional Petition--Appointment as S.S.E. by excluding 15 years 5 month period consumed in service to relax upper-age limit--Validity--Right of government servant was always available to him and he can always available to him and he can always press into service for his further employment on contract or permanents posts--Department was directed to entertain application of petitioner without raising objection as to upper-age limit as he was fully entitled to benefit of Rule 3(v) of Punjab Civil Servants Act, 1974. [Pp. 119 & 120] A & B

Malik Muhammad Kabir, Advocate for Petitioner.

Mr. Khursheed Ahmad Satti, AAG for Respondents.

Date of hearing: 6.9.2012

Order

The petitioner, through this writ petition, seeks direction to the respondents to entertain application of the petitioner for appointment as Secondary School Educator (English) as per Rule No. 3 (v) of the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 by excluding 15 years 5 months period consumed in the services rendered by the petitioner in the Government departments and to relax the upper age limit.

1. Brief facts giving rise to the filing of this writ petition are that the petitioner is continuously working as EST (V) in Government Elementary School Pira Janla, Tehsil Talagang, District Chakwal, with qualification of M.A (English) MED. Respondent No. 3 invited applications for the recruitment of the post of Secondary School Educator (English) with the age limit of 20 to 35 years. He applied for the post but his application was rejected being over age. Even the petitioner sent application through proper channel but the same was also not entertained and refused through letter dated 09.07.2012, hence this writ petition.

2. Learned counsel for the petitioner submits that he is still in service, therefore, under the rules framed under Section 23 of the Punjab Civil Servants Act, 1974 and Rule-3(v) of the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rule, 1976, the petitioner was to be considered for the purpose of upper age limit and an inaction on the part of the respondent is an illegality. Places reliance on various judgments including the judgment passed on 02.06.2011 in Writ Petition No. 257 of 2011 titled "Shahid Akhter vs. Secretary School Education and others" and the judgment passed in Writ Petition No. 157 of 2012 titled "Shahzada vs. Secretary Education, etc.," to fortify his arguments and prays for the grant of relief.

3. Conversely, the learned Assistant Advocate General has vehemently opposed the prayer made by the petitioner by submitting that to approach against the judgments cited are pending in the Hon'ble Supreme Court the recruitment process was initiated on the basis of Recruitment Policy, 2010, where under no such provisions for relaxation of upper age limit for government servant is provided; the petitioner did not challenge the policy is not entitled to the relief being government employee; the claim of the petitioner involves terms and condition of service; therefore, this Court has no jurisdiction in the matter.

4. I have heard the learned counsel for the parties and perused the record.

5. The Rule 3 sub-rule (v) of the Punjab Civil Servants Recruitment (Relaxation of upper age limit) Rules, 1976, reads as under:--

"In the case of a candidate already working as a Government servant, the period of his continuous service as such shall for the purpose of upper age limit prescribed under any service rules of the post for which is a candidate, be excluded from his age."

This right of government servant is always available to him and he can always press into service for his further employment on contract or permanent posts. The law and the rules framed under the Punjab Civil Servants Act, 1974 have certainly a higher value than the policy letters. The argument of the learned AAG that the reference case is still subjudice before the Apex Court of this Country is not of much help to him as, firstly, the impugned order was not suspended and, secondly, in the event of final verdict of Apex Court the entire law will have to be changed without any reservation as contemplated under Article 179 of the Constitution of Islamic Republic of Pakistan, 1973.

1. For what has been discussed above, this writ petition is allowed and the respondents are directed to entertain the application of the petitioner without raising objection as to upper age limit as he is fully entitled to the benefit of the rule 3(V) of the Punjab Civil Servants Act, 1974.

(R.A.) Petition allowed

PLJ 2013 Lahore 120 (DB) [Rawalpindi Bench Rawalpindi]

Present: Kh. Imtiaz Ahmad and Ali Baqar Najafi, J.

Syed TAHIR HUSSAIN SHAH--Appellant

versus

Syed SAEED ANWAR, etc.--Respondents

R.F.A. No. 81 of 2002, heard on 17.12.2002.

Contract Act, 1872 (IX of 1872)--

----Ss. 182, 186 & 213--Settlement of account--Rendition of account--Co-sharer in joint property--Decree regarding rendition of accounts of suit property--Dispute was claim in profit of commercial cinema and related business--Validity--Settlement of account, it can be made with mutual consent of partners at any time or at time of conclusion of partnership--Status of co-sharer who was running affairs of commercial business was either an agent or principal--If such criteria was applied plaintiff had established business of commercial cinema which had earned some profit or even loss at end of day which can be ascertained on basis of business--Agent of co-sharer running a joint business was that of an agent having authority either expressly or impliedly who was bound to render proper accounts to principal on demand--Claim was not merely on enjoyment of immovable property simpliciter for which an ascertained claim of specific calculated amount should have been filed--R.F.A was dismissed. [Pp. 123 & 124] A, C, D & E

Rendition of Account--

----In a suit for rendition of account plaintiff was required to establish partnership, share of each member in partnership, profit or loss, type of business, duration of partnership and accounts. [P. 124] B

Mr. Altaf Elahi Sheikh, Advocate for Appellant.

Sheikh Zamir Hussain, Advocate for Respondent.

Date of hearing: 17.12.2012.

Judgment

Ali Baqar Najafi, J.--This regular first appeal is directed against the judgment and decree dated 11.04.2002 recorded by the learned Civil Judge 1st Class, Rawalpindi, whereby he decreed the suit of the plaintiffs/ respondents and a preliminary decree in the following terms was passed:--

(1) Plaintiffs are declared to be joint owners in suit property to the extent of 1/2 shares.

(2) They are entitled to decree in rendition of accounts regarding suit property since institution of this suit till final decision of suit.

Mr. Mukhtar Ahmad Chaudhry, Advocate was appointed local commissioner to visit the spot for proposing the partition of the suit property. He was also directed to get accounts from Defendant No. 1, work out the accounts and submit his report as to how much amount was due against Defendant No. 1, Fee was to be paid by the plaintiffs.

1. Briefly, the facts giving rise to the filing of this Regular First Appeal are that the property Bearing No. 105 A & B commonly known as Capital Cinema situated at Bank Road, Rawalpindi was acquired by Respondent No. 1, Syed Khurshid Anwar, Mrs.A.Ghafoor, and Syed Mumtaz Hussain vide deed of exchange registered at No. 344, Book No. 1, Volume No. 80 at page 398 in the office of Joint Registrar, Rawalpindi on 13.04.1955. The shares of the parties in the suit property are as follows:--

(a) Plaintiff No. 1 1/6th

(b) Plaintiffs No. 2 to 11 1/3rd

(c) Defendants No. 1 to 3. 1/3rd

(d) Defendants No. 4 to 8. 1/6th

The plaintiffs and the defendants are in possession of the joint property and the affairs of the said property have been managing by Defendant No. 1. The income being derived from the cinema business and income including business and rental income has been under the control of Defendant No. 1 but he has been paying meager amount to the plaintiffs from time to time and he has always avoided to render proper accounts in order to pay the due shares of the plaintiffs in the business and as such it was derived and appropriated by him. The plaintiffs called upon the defendants to effect partition for separation of shares of the plaintiffs. Defendant No. 1 was also called upon to render accounts and to pay up the share of plaintiffs but in vain. The plaintiffs sought decree for possession by partition of 1/2nd share in the suit property, rendition of accounts and for recovery of amount found due be passed in favour of the plaintiffs and against the defendants. The suit was contested by the defendants stating therein that it is not maintainable in its present form; the plaintiffs were estopped by their words and conduct. Defendant No. 1 through his written statement submits that Cinema was running in loss and other partners were not prepared to share the losses and requested the answering defendants to run the cinema and to invest the money all by himself and prayed for dismissal of the suit. The learned trial Court framed the following issues:--

(1) Whether the suit is not maintainable in its present form?OPD

(2) Whether proper Court fee is not affixed? OPD

(3) Whether Defendant No. 1 is entitled to get special costs? OPD

(4) Whether Cinema is not partitionable? OPD

(5) Whether legal heirs of Begum A. Ghafoor have not been impleaded correctly ?OPD

(6) Whether property in dispute is joint property of the parties, if so, what are legal share of parties ?OPP

(7) Whether the plaintiff is entitled to get possession of 1/2 share of suit property through partition against defendants as prayed for ?OPP

(8) Whether the plaintiff is entitled to get decree for rendition of accounts and for mesne profits against defendants as prayed for?OPD

(8A) Whether plaintiffs are estopped by their words and conduct to bring this suit ?OPD

(8B) Whether Defendant No. 1 has spent from his own pocket on construction, renovation, repairs, development, improvements and replacement of machinery etc., as detailed in schedule AB&C ?OPD-1.

(9) Relief

1. Both the parties adduced their respective evidence oral as well as documentary. The learned trial Court after hearing the parties passed the judgment impugned herein.

2. Learned counsel for the Appellant/Defendant No. 1 contends that the Military Estate Officer has not been arrayed as necessary party; that there is no discussion on schedule A, B &C which were relevant for the Issue No. 8-B and the learned trial Court erroneously decided the said issue; that no specific amount was claimed; that Issue No. 8 is relating to the decree for rendition of account and for mesne profit which has been wrongly decided in favour of the plaintiffs; that the Defendant No. 1 was not empowered to run any business, therefore, there is no liability of the appellant; the trial Court has failed to exercise jurisdiction vested in it while deciding the case; that findings of the learned trial Court on all the issues are not sustainable in the eyes of law and liable to be set aside; that the procedure adopted by the trial Court in deciding the suit in question is also illegal and in violation of provisions of C.P.C; that the learned trial Court has acted in grave illegality in passing the decree of rendition of accounts against the appellant; that the remedy was the recovery of amount and not rendition of account. Places reliance on Pakistan International Airlines Corporation vs. Karachi Municipal Corporation through Chairman/Administrator, Karachi and another (PLD 1994 Karachi 343).

3. On the other hand, learned counsel for the respondents has vehemently opposed the appeal by submitting that admittedly, they are co-sharer in the joint property, a commercial cinema; that partnership is still intact; that nothing was paid to the respondents-plaintiffs; that the respondents are either co-sharer, or co-owners; that the appellant could only manage the property but nothing was paid; that the appellant is either acted as an agent or principal under Sections 182, 186 & 213 of the Contract Act; that the appellant was bound to run the business under the customary law; that the commission will work out the amount on the basis of original documents.

4. We have heard the learned counsel for the parties and perused the available record.

5. The status of the partners is admitted as co-owners; therefore, the first part of decree that plaintiffs/respondents are entitled 1/2 shares is not seriously challenged. The second part of the decree regarding rendition of accounts of suit property since institution is under challenge. The dispute is the claim in the profit of commercial cinema and related business, which according to the appellants, went in losses and even then some shares have been paid. It means that the claim of the respondents in the profit is true. As far as the settlement of the account is concerned, it can be made with the mutual consent of the partners/sharers at any time or at the time of conclusion of the partnership. Even otherwise, the status of a co-sharer who is running the affairs of commercial business is either an agent or a principal.

6. In a suit for rendition of account the plaintiff is required to establish (a) partnership (b) share of each member in the partnership (c) profit or loss (d) type of business (e) duration of partnership (f) accounts.

7. If this criteria is applied respondent/plaintiff has established the business of commercial cinema which had earned some profit or even loss at the end of the day which can be ascertained on the basis of accounts. The finding of the trial Court on Issue No. 8-B is based on evidence and an admitted position. Since a commission has been appointed to work out the accounts, therefore, no illegality is committed by the trial Court. The agent of the co-sharer running a joint business is that of an agent having authority either expressly or impliedly who is bound to render proper accounts to his principal on demand, as mentioned in Sections 182, 186 and 213 of the Contract Act.

8. Even otherwise, the claim is not merely on the enjoyment of the immovable property simpliciter for which an ascertained claim of a specific calculated amount should have been filed.

9. The learned trial Court has rightly appreciated the legal as well as factual points and therefore, no interference is called for.

10. In view of what has been stated above, the RFA is dismissed leaving the parties to bear their on costs.

(R.A.) R.F.A. dismissed

PLJ 2013 Lahore 124 [Rawalpindi Bench Rawalpindi]

Present: Ali Baqar Najafi, J.

AYMEN SAFDAR & 4 others--Petitioners

versus

M.S. ISHRAT SADIQ, PRINCIPAL, etc.--Respondents

W.P. No. 3249 of 2012, decided on 20.12.2012.

Educational Institution--

----Standard of school was job of administration--Admission forms for taking examination were not forwarded--Undoubtedly, it was responsibilities of any school to simultaneously give importance to students as they could not discard in trash box--School must accept responsibility for educational standard of a student--Student of class was expected to attend class, remain in discipline of school, work hard and attempt in all required tests and finally deposits fee in time--In such modern era ignored students had tendency to pull back outstanding students which was not good for institution--If weak student was left out she would go weaker as a direct result of inhuman policy of institution--Policy has to be for benefit of its subject to encourage a hard work and realization of weakness of student which was first step towards his brightness. [P. 126] A

Mr. Tahir Mehmood Abbasi, Advocate for Petitioners.

Syed Sajid Shah, Accountant, Representing Respondent Nos. 1. to 4.

Date of hearing: 20.12.2012.

Order

Through this writ petition the petitioners seek a direction to Respondents No. 1 to 4 to send their admission forms to the office of Respondent No. 5, as they are already registered as students in Registration SSC Part-I for the Session 2012-2014 (Batch No. 1).

1. Brief facts giving rise to the filing of this writ petition are that Respondent No. 5 announced the schedule for examination of Secondary School Certificate Part-I for the Session 2012-2014 (Batch No. 1) in which the petitioners' registration was made through Presentation Convent High School for Girls, Murree. The petitioners are their old students and have reached class-9 but surprisingly their admission forms were not forwarded to Respondent No. 5. The parents of the petitioners were informed that as the petitioners could not obtain 75% marks in the internal tests; hence their admission forms will not be forwarded to Respondent No. 5 whereas the eligibility criteria for appearing in the examination by Respondent No. 5 is 33% marks as private student, hence this writ petition.

2. Learned counsel for the petitioners contends that the petitioners were ignored against law and their precious one year will be wasted; that the petitioners have already scored more than 55% marks in the internal tests whereas eligibility as determined by respondents is 33%; that the petitioners were informed very late, which act of Respondents No. 1 to 4 by itself smacks mala fide; that to bring up to the level of the standard of school is the job of administration for which they have been paid heavily.

3. Conversely, Syed Sajid Shah, Accountant, representative of Respondents No. 1 to 4 appeared and stated that as per the policy of school the petitioners have failed to score 75% marks, in the first term, second term as well as in the send up result, the petitioners could not do well, as they failed in various subjects which did not make them eligible to appear from the school as it will damage the reputation of the school, who have already proved outstanding.

4. I have heard the learned counsel for petitioners and the representative of Respondents No. 1 to 4.

5. Admittedly, Respondent No. 5 has already accepted the admission forms of the petitioners as they have fulfilled the criteria laid down by them for the forthcoming examination of class 9 students. Respondents No. 1 to 4 are under misconception that they will increase standard of the school by ignoring those students who could not do well in their internal send up exams. Undoubtedly, it is the responsibilities of any school to simultaneously give importance to the petitioners/students as they could not discard the in trash box. The school must accept the responsibility for the educational standard of a student. A student of class 9 is expected to attend class, remain in the discipline of the school, work hard and attempt in all the required tests, and finally deposits the fee in time. In this modern era, ignored students have the tendency to pull back the outstanding students which is not good for institution. If weak student is left out she would go weaker as a direct result of inhuman policy of institution. The policy has to be for the benefit of its subject to encourage a hard work and realization of weakness of student which is first step towards his brightness.

6. Since Respondent No. 5 has already accepted the admission forms which is the sole exams taking authority of the petitioners, therefore, Respondents No. 1 to 4 are just post office, precisely to forward their admission forms for taking examination. Needless to state that certificate of post office is a must who is entitled to impose only reasonable conditions.

7. In this view of the matter, I dispose of this writ petition directing Respondent No. 5 to accept admission forms of the petitioners, to be submitted through Respondents No. 1 & 4 and permit them to sit in the forthcoming examination of SSC Part-I for the Sessions 2012-2014 (Batch No. 1).

(R.A.) Petition disposed of

PLJ 2013 Lahore 127 [Rawalpindi Bench Rawalpindi]

Present: Ali Baqar Najafi, J.

DR. MOBINA EHSAN--Petitioner

versus

CHAIRMAN, PPSC and 4 others--Respondents

W.P. No. 3195 of 2012, decided on 13.12.2012.

Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974--

----Rr. 3(1), 3(3), 19(1), 20 & 22--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Application for recruitment to post of professor of pathology--Employee on basis of domicile of Islamabad, refusal to entertain application--Principle of estoppel--Discriminatory treatment--Policy was not applicable to employees already in service prior to year 2000--Condition of domicile--Question of--Whether a person possessing a domicile of place than Punjab may apply to prescribed lost--Validity--An appointment to post was made either by promotion, transfer or initial recruitment as may be prescribed, among such persons possessing required qualification and fulfilling conditions prescribed by Govt. from time to time--Candidate must possess prescribed educational qualification and experience for initial appointment--Only disqualification for appointment is that a person must be a citizen of Pakistan--To retain a domicile is right of individual and so is its change depending on priorities--Although, only a person not having citizenship is disqualified to apply for an appointment on regular basis but it is mandatory for him to prescribe any criteria permissible under law--If Govt. wants to consider its domicile holders for regular vacancies, no constitutional right of inhabitants of Federal Territory is infringed. [P. 131] A, B & C

Mr. Arif Karim, Advocate for Petitioner.

Mr. Saif-ur-Rehman, AAG for Respondents.

Date of hearing: 13.12.2012.

Order

Through this single order I intend to dispose of the instant petition (Writ Petition No. 3195 of 2012) and Writ Petition No. 3109 of 2012, as both involve common question of law and facts.

1. The brief facts giving rise to filing of this writ petition are that the petitioner has challenged order dated 20.11.2012 rejecting her application for recruitment to the post of Professor of Pathology in the Punjab Health Department and order dated 01.12.2012 on the ground that on her representation regretting to accede her request in the light of the relevant regulation/policy decision as the Punjab Public Service Commission has not considered the domicile of District Islamabad being Federal Territory after 2000. She prays direction to Punjab Public Service Commission to allow her to appear in forthcoming examination for the post stated above.

2. In Writ Petition No. 3109 of 2012, the petitioner prays to declare the policy of the respondents to fill the post of Professor of Pathologist on adhoc basis as illegal and fill the same on regular basis through Punjab Public Service Commission by promotion amongst the regular employees besides prayer that she be promoted for the post being eligible.

3. Learned counsel for the petitioner submits that the petitioner served the health department of Government of Punjab for more than 21 years as regular employee on the basis of domicile of Islamabad without any objection; even after 2000 she was not asked either to retain or change it for her future prospects and their refusal to entertain the application for the post of Professor of Pathology now is hit by principle of estoppel and as such the order has been passed without lawful authority; that the candidate of other Provinces are working in Islamabad and to restrict the candidates having Islamabad domicile for employment in the other Provinces the Punjab) is discriminatory treatment which is not warranted under Article 25 of the Constitution of Islamic Republic of Pakistan; that the condition of "District Islamabad as Federal Territory in 2000" may be applied to those residents of Islamabad who got the domicile after the promulgation of above condition; that the said policy is not applicable to the employees already in service prior to the year of 2000 rather it may be enforced for the new candidates applying for the post; that after granting permission to the petitioner to appear in the examination of the Punjab Public Service Commission earlier, the Chairman of the Punjab Public Service Commission has no authority to reject the candidature of the petitioner; that prior to the commencement of dissolution of West Pakistan Order, 1970, the Islamabad was part of the Province of Punjab and its residents were eligible to apply for Federal Services as well as services in the Province of Punjab, therefore, the impugned orders are not sustainable in the eyes of law; that the policy of the respondents to fill the post on adhoc basis is illegal. Lastly, he prays for acceptance of the writ petition.

4. Learned Assistant Advocate General has opposed the grant of petition on the ground that the petitioner is not eligible to apply for the post of Professor of Pathology having domicile of Islamabad as it was specifically debarred. He further, by relying on Rule 20 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974, submits that vacancies in various posts shall be filled from the persons domiciled in the Province of Punjab in accordance with merit as these are reserved for persons domiciled in such area; that under Rule 22 of the Rules ibid the respondents are within its competence to make appointment on adhoc basis and that the petitioner being domiciled of Islamabad and is ineligible to apply for the said post; that the petitioner is not entitled to object the policy meant for candidates of Punjab Domiciled especially in the writ jurisdiction. He prays for dismissal of the writ petition.

5. I have heard the learned counsel for the parties and perused the record minutely.

6. Admittedly, the petitioner is a regular employee and already appointed as Woman Medical Officer in 1991 and then regular Assistant Professor in 1999, then promoted as Associate Professor in 2006 and is working in Rawalpindi Medical College as reflected in the Experience Certificate dated 04.10.2012 (No. PF/6803/RMC). Respondent No. 3 has also been sent a "No Objection Certificate" dated 04.10.2012 (No. PF/6802/RMC) by the Principal of the said college, where-after no specific order was passed by him. The advertisement dated 23.09.2012 prescribes the condition of domicile of Punjab under the head of Qualification for recruitment against three regular posts and admittedly the petitioner has a domicile of Islamabad. The Government servants are neither included nor excluded in the said advertisement, meaning thereby that they can apply. The sole question before this Court is as to whether a person possessing a domicile of a place other than Punjab may apply to the prescribed post notwithstanding fulfilling other qualifications.

7. To answer this it is important to peruse Rules 19, 20 and 22 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974. Rules 3(1) and 3(3), Rule 19(1), Rule 20 and Rule 22 read as under:--

"3. (1) Appointment to posts shall be made by promotion, transfer or initial recruitment, as may be prescribed by the Government in relation to the posts in a grade from time to time:

(Provided that where as a result of retrenchment in, or reorganization of a Government Department/office or an Autonomous or Semi-Autonomous Organization set up by the Government, certain posts or cadres are abolished and Government decides, by a special order, to absorb persons rendered surplus in consequence thereof, such person may be absorbed against such posts in such manner and on such terms and conditions as may be determined by the Government:

Provided that absorption of such persons shall be made on recommendations of the Punjab Public Service Commission in case of posts carrying BS-16 and above and in case of other posts on the recommendation of the Committee constituted by the Chief Minister or any officer authorized by him in that behalf:

Provided further that for purposes of seniority, persons absorbed as above shall be treated as having been appointed by initial recruitment with effect from the date they take over charge in the absorbing functional unit/cadre)

(2) -----------------------------------

(3) The appointment shall be made from among such persons possessing such qualifications and fulfilling such other conditions as may be prescribed by the Government from time to time.

1. (1) No person shall be appointed to a post unless he is a citizen of Pakistan, provided that this restriction may be relaxed by the Government in suitable cases.

(2) -----------------------------------

1. Vacancies in various posts shall be filled from persons domiciled in the Province of the Punjab in accordance with merit; provided that for a period not exceeding (20 years) from the commencing day of Constitution of the Islamic Republic of Pakistan, such posts may be reserved for persons domiciled in such areas as may be specified.

2. (1) When a post is required to be filled, the appointing authority shall forward a requisition to the selection authority immediately after decision is taken to fill the post.

(2) After forwarding a requisition to the Selection Authority, the appointing authority may, if it considers necessary in the public interest, fill the post on ad hoc basis for a period not exceeding (one year) pending nomination of a candidate by the selection authority:

Provided: (1) The vacancy is advertised properly in the newspapers;

(2) the appointment is made of a person duly qualified in accordance with the provisions of the rules and orders applicable to the post;

(3) the selection is made on the basis of merit determined by objective criteria;

(4) the appointment order certifies that a requisition has been sent to the selection authority; and

(5) the appointment is made subject to revocation at any time by the competent authority:

Provided further that ad hoc appointment shall not confer any right on the persons so appointed in the matter of regular appointment to the same post nor the service will count towards seniority in the grade."

A perusal of the above provisions reveals that an appointment to the post is made either by promotion, transfer or initial recruitment as may be prescribed, among such persons possessing required qualification and fulfilling conditions prescribed by the Government from time to time. But the candidate must possess the prescribed educational qualification and experience for initial appointment. However, the vacancies in various posts are filled from persons domiciled in the Province of Punjab in accordance with merit. The only disqualification for appointment is that a person must be a citizen of Pakistan. However, ad hoc appointments may be made under strict compulsions.

1. The argument of the learned counsel for the petitioner that by virtue of being in service of Government in Punjab, the condition of domicile of Punjab is required to be dispensed with, is to be first answered by the Government/Respondent No. 5 as the advertisement dated 23.9.2012 does not prescribe any such concession or embargo to the Government servant such as the petitioner. To retain a domicile is the right of the individual and so is its change depending on the priorities. Although, only a person not having citizenship of Pakistan is disqualified to apply for an appointment on regular basis but it is mandatory for him to have a domicile of Punjab. The Government is within its right to prescribe any criteria permissible under the law. If the Government wants to consider its domicile holders (inhabitants) for regular vacancies, no constitutional right of the inhabitants of Federal territory is infringed. Since the Letter No. PF/6802/RMC dated 04.10.2012 addressed by Respondent No. 5 to Respondent No. 3 has not been considered/decided determining the eligibility of the petitioner, therefore, it is observed that he may decide this letter strictly in accordance with law and the policy. It is further observed that all the requirements of Ad hoc Appointment as per rules must be strictly complied with.

In this view of the matter, these writ petitions are disposed of.

(R.A.) Petitions disposed of

PLJ 2013 Lahore 132 [Multan Bench Multan]

Present: Abdus Sattar Asghar and Malik Shahzad Ahmed Khan, JJ.

NEELAM KHAN and 22 others--Petitioners

versus

UNIVERSITY OF HEALTH SCIENCES, (UHS) LAHORE through

Vice Chancellor/Registrar and 7 others--Respondents

W.P. No. 11495 of 2012, heard on 13.9.2012.

Educational Institution--

----Admission in BDS Course--Registration Fee of BDS Students cannot decline registration of those students just a couple of weeks before commencement of annual examination scheduled--Validity--Since petitioners and other students had successfully completed their academic year without being apprised of any technical dispute among institutions, therefore, refusal to grant writ petitions will certainly cause them an irreparable loss and severe hardship--It would rather amount of spoil their academic career without any fault of them--Students kept in dark about any technical dispute among UHS cannot be condemned at that stage--Registration of students allowed admission under drop-out scheme did not effect right of any third party--Deserve one time dispensation in relaxation of regulations--Their academic career cannot be put at stake for acts and omissions of all the institutions--Petitions were allowed. [P. 137] A

PLD 2007 SC 323 & PLD 2005 Lah. 261, ref.

Mr. Muhammad Suleman Bhatti and Mr. Muhammad Ramzan Khalid Joya, Advocates for Petitioners.

Mr. Javed Iqbal Ansari, Standing Counsel and Mehr Nazar Abbas Chawan, AAG for Respondents.

Mr. M.A. Harris, Advocate for Respondent No. 1.

Mr. Abdus Salam Alvi, Advocate for Respondent No. 3.

Mr. Abdus Sattar Guraya, Advocate for Respondents Nos. 5 & 8.

Date of hearing: 13.9.2012.

Judgment

Abdus Sattar Asghar, J.--This order will dispose of instant Writ Petition No. 11495/2012 (Neelam Khan etc vs. University of Health etc), as well as Writ Petition No. 11721/2012 (Ayesha Sajid etc vs. University of Health and Sciences etc) and Writ Petition No. 11818/2012 (Aatka Ali Khan vs. University of Health Sciences, Lahore etc) involving common question of law and facts.

1. Brief facts leading to the above captioned writ petitions are that petitioners were allowed admission in Multan Medical and Dental College, Multan/Respondent No. 5 in BDS Course in October, 2011 and are attending the classes regularly; that each of the petitioners has deposited the fees to the tune of Rs.5,50,000/- through pay orders; that Respondent No. 5 had allowed admission to 90 students in BDS Course Session 2011-12; that after completion of the educational year it has come to the knowledge of the petitioners that Respondent No. 5 has decided to send list of 51 students to the University of Health Sciences, Lahore/Respondent No. 1 for annual examination 2012 scheduled to be held on 17.9.2012; that it has also come to the knowledge of the petitioners that the Respondent No. 5, had admitted 90 students in BDS Class for the Session 2011-12 instead of sanctioned strength of 50 students allocated by Respondent No. 1; that without any fault at their end the petitioners and other remaining students are being denied registration by the University of Health Sciences as well as issuance of Roll Number Slips to participate in the forthcoming annual examination scheduled to be held on 17.9.2012, hence this Constitutional petitions seeking a direction to the Respondent Nos. 1 and 3 to register the petitioners as students of BDS Session 2011-12 and to allow them to sit in the said Examination. They have further sought direction to the effect that the respondents be restrained from interrupting in the study plan of the petitioners in future without any victimization and that Respondents No. 1 and 3 may be directed to take appropriate action against Respondent No. 5 in accordance with law.

2. Respondents No. 5 and 8 in their parawise comments have categorically admitted that petitioners were allowed admission in BDS Course for the session 2011-12. It is further explained in the comments that as many as 90 students were allowed admission in BDS Course for the Session 2011-12 as against 50 allocated seats for the Session and 40 available seats under the drop-out scheme; that registration fee to the tune of Rs.96000/- for 90 students of BDS Course along with list was paid through Cheque No. 92344883 dated 9.5.2012 vide letter dated 10.5.2012 addressed to the Register, PM&DC/Respondent No. 3 which was got encashed by the respondent after scrutiny of the record; that simultaneously registration fee to the University of Health Sciences/Respondent No. 1 pertaining to 90 students of BDS Course and 102 MBBS for the Session 2011-12 have also been paid through Cheques which were got encashed by the said respondent after due scrutiny of the record; that the answering respondents tried their level best to get the students registered with the University of Health Sciences, Lahore/Respondent No. 1 and PM&DC/Respondent No. 3 by providing relevant details and registration fees but the matter of registration was kept pending by Respondents No. 1 and 3 without any cogent reason; that the petitioners and other students are competent to appear in the forthcoming Annual Examination, 2012 scheduled to be held on 17.9.2012.

3. Respondents No. 1 to 3 have submitted their parawise comments with the contentions that demands made by the Respondent No. 5 in view of 41 students under drop-out scheme from the preceding sessions could not be entertained in view of Regulation No. 12 of the Conditions for Admission in MBBS/BDS Courses and Conditions for House-Job Regulations 2010; that the matter was clarified to the College vide letter dated 30.7.2011 well before admissions for the Session 2011-12. Receipt of list of 90 students along with registration fee and encashment by the University of Health Science/Respondent No. 1 and PM&DC/Respondent No. 3 however, is not denied.

4. Arguments heard. Record perused.

5. It may be expedient to reproduce hereunder the provision of Regulation No. 12 of the Admission in MBBS/BDS Courses and Conditions for house job/internship/foundation year Regulations 2010, which reads below:--

"12. In lieu of dropout students/vacant seats in the first two years, the institution may admit students in subsequent admission so as to maintain total admission strength allowed to the institution in the first two years only. The failures/detained students shall be counted in the strength of the class in this connection. A dropout student will be a registered student of the college, admitted after due process and all dropped out students shall be reported to the Council with evidence. The dropouts will also be those students who are expelled after failure to succeed in four attempts in the professional Examination. Details of all failures/detained students and dropout students shall be submitted to the PM&DC office. Once the PM&DC office gives permission and defines the number of admissions which can be done in lieu of dropouts/vacant seats after study of record and upon satisfaction that vacancies existed as per seat allocation after deduction of retained students, only then new students can admitted till 30th January each year and the office shall register the new students. New students admitted without permission or over and above total allowed strength of first two years shall not be registered by Council office. A final report shall then be placed before the Executive Committee for information.

Example:--If a college is allowed admission of one hundred seats annually but only eighty students remain including retained failures or only that many were admitted then the college can admit one hundred and twenty students in the next year and this will make two hundred students in these first two years. Vacancies in the third year cannot be filled in a new admission."

1. The student registration state of Dental Section Multan Medical and Dental College, Multan is reproduced below:--

Seat Allocation Year No. of No. of Over Student Student Admitted admitted registered students by by PM&DC not college. registered

Seat Allocation: 50 2008-2009 11 11 --

and the decision 2009-2010 19 19 --

convoyed on dated 6th 2010-2011 83 50 33

October 2009, vide 2011-2012 90 -- 40 letter No. PF.12-F-

2009(Multan/BDS) /140199.

1. Learned counsel for PM&DC/Respondent No. 3 vehemently argued that the Principal/Respondent No. 8 submitted his request for BDS registration of students against drop-out scheme/vacant seats; that the case was heard by Executive Committee on 08.9.2012, however, minutes of the Executive Committee are awaited; that Principal/ Respondent No. 8 had appeared before the Executive Committee and was given a detailed personal hearing and that violation of regulations was pointed; that as per Regulation No. 12 ibid Respondents No. 5 to 8 were not authorized to admit more than prescribed limit of 50 students in BDS Course for the year 2011-2011 Session, therefore, over-admitted 40 students could not be registered with the Council.

2. Learned counsel for the University of Health Sciences, Lahore/Respondent No. 1 endorsed the arguments advanced by learned counsel for Respondent No. 3 on behalf of the Council.

3. Parawise comments furnished by Council/Respondent No. 3 reveals that in the Session 2010-2011 the college had admitted 83 students as against sanctioned strength of 50 students and out of the remaining 33 students 31 students were also allowed registration under the drop-out scheme while calculating the vacant vacancies pertaining to the year 2008-2009 and 2009-2010.

4. It is also evident on the record that the College/Respondent No. 5 has deposited the prescribed registration fee to the tune of Rs.96,000/- for 90 students of BDS Course along with list of said students through Cheque No. 92344883 dated 9.5.2012 vide letter dated 10.5.2012 addressed to the Register, PM&DC/Respondent No. 3, which was got encashed by the said respondent after scrutiny of the record. Simultaneously the prescribed registration fee pertaining to the 90 students along with list was also paid to the University of Health Sciences/Respondent No. 1 through Cheques which have been got encashed by the said respondent after due scrutiny of the record. The encashment of the cheques pertaining to the registration fee of 90 students is not denied by both Respondents No. 1 and 3. Acceptance of registration fee by Respondents No. 1 and 3 pertaining to the 90 students for BDS Session 2011-2012 as against Regulation No. 12 ibid certainly fall within the ambit of principle of locus poenitentiae. Keeping in view the above referred table furnished by Respondent No. 3 in his parawise comments it is obvious that as against 200 sanctioned seats @ 50 per year the College/Respondent No. 5 allowed admission to 201 students. It, therefore, reflects over admission of only one student. It is pertinent to mention that if University of Health Sciences, Lahore/ Respondent No. 1, Council/Respondent No. 3 and College/Respondent No. 5 had indulged in some sort of correspondence with regard to the difference of calculation of seats, the same was neither brought to the knowledge of the petitioners nor their parents throughout the academic year. The negligence and failure on the part of Respondents No. 1, 3 and 5 in this case cannot be termed as a bona fide mistake. It is hard to believe that all the three institutions acted bona fide in the absence of due care and diligence. It is important to notice that annual allocation of seats for BDS course to the College/Respondent No. 5 was neither furnished in the prospectus published for the Sessions 2011-2012 nor advertised in the newspaper by any of the above three institutions, therefore, with no stretch of imagination petitioners and other students could be held responsible for the willful negligence of the said institutions.

5. Certainly petitioners and the other students who were allowed admission in the Session 2011-2012 cannot be punished on account of willful negligence of all the three institutions engaged in the business of education. It is an established principle of law as enunciated in Section 21 of the General Clauses Act that the power conferred to amend, vary, or rescind any notification, order, rule or by-law can only be exercised before any decisive step has been taken. Reliance be made upon Pakistan through the Secretary Ministry of Finance Vs. Muhammad Himayatullah Farukhi (PLD 1969 SC 407). The relevant extract whereof is reads below:

"There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of Section 21 of the General Clauses Act, locus poenitentiae, i.e., the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."

1. In view of the above quoted dictum of the Hon'ble Apex Court, Respondents No. 1 and 3 having accepted the registration fee of 90 BDS students for the Session 2011-2012 cannot decline the registration of those students at 11th hour i.e. just a couple of weeks before commencement of their annual examination scheduled to be held on 17.9.2012. In the peculiar circumstances of this case since the petitioners and other students have successfully completed their academic year without being apprised of any technical dispute among three institutions, therefore, refusal to grant the writ petitions will certainly cause them an irreparable loss and severe hardship. It would rather amount to spoil their academic career without any fault of them. Certainly the students kept in dark about any technical dispute among the Respondents No. 1, 3 and 5 cannot be condemned at this stage. Besides it is also noteworthy that registration of the petitioners and other students allowed admission under the drop-out scheme does not effect the right of any third party, therefore, deserve one time dispensation in relaxation of Regulations. Their academic career cannot be put at stake for the acts and omissions of all the three institutions. Reliance be made upon Pakistan Medical and Dental Council Vs. Ziauddin Medical University and others (PLD 2007 Supreme Court 323) and Tahmasub Faraz Tayyab and 13 others Vs. Vice-Chancellor, University of Health Science, Lahore and 3 others (PLD 2005 Lahore 261).

2. For the above reasons we allowed all the three captioned writ petitions by short order on 13.9.2012 as follows:--

"For the reasons to be recorded later through a detailed order, all the three captioned writ petitions are allowed with a direction to Respondents No. 1 and 3 to register all the 90 students of BDS Course including the petitioners and allow them to sit in the forthcoming Annual Examination 2012 scheduled to be held on 17.9.2012 by issuing Roll Number Slips immediately. Respondents are further directed not to interrupt in the study plan of the petitioners in future by way of any sort of victimization. Respondents No. 1 and 3 however may take appropriate action against Respondent No. 5 for causing delay in initiating the registration process of the admitted students if so warranted by law, rules and regulations."

(R.A.) Petitions accepted

PLJ 2013 Lahore 138 [Multan Bench Multan]

Present: Amin-ud-din Khan, J.

HASHIM--Petitioner

versus

DISTRICT OFFICER REVENUE/COLLECTOR KHANEWAL and 5 others--Respondent

W.P. No. 4307 of 2004, heard on 23.10.2012.

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

----S. 12(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Land was allotted under 15 years temporary cultivation scheme--Conferment of proprietary rights--Allotment was cancelled for non-payment of price of land--No notice was given before passing order--Application for restoration of lot was dismissed--Payment of price of land was allowed subject to penalty--Application u/S. 12(2), CPC did not lie before Board of Revenue--High Court while exercising constitutional jurisdiction cannot go into factual controversy between the parties--Only legal questions can be looked by High Court while exercising jurisdiction under Art. 199 of Constitution--Validity--Order of conferment of proprietary rights was passed by Board of Revenue while exercising jurisdiction conferred by law and there was no jurisdictional defect in the order--When proprietary rights were conferred through order of Board of Revenue land was not available for allotment before collector--When order for restoration of lot in name of writ petitioner, passed by M.B.R. was in field, order of D.C. was without jurisdiction--It was not denied by any one of parties that such lot at time of initial allotment was available--High Court had not seen any order for reservation of land for Army Welfare Scheme--Petition was allowed. [P. 141] A & B

West Pakistan Board of Revenue Act, 1974--

----S. 8--Civil Procedure Code, (V of 1908), S. 12(2)--Limitation Act, 1908, S. 5--Delay of six years--Review petition--Power of review--Limitation scope--Jurisdiction--Validity--Order of review and order which had been reviewed were almost two independent orders which were not permissible under law as in review the Court exercising such jurisdiction had limitation u/S. 8 of Act, 1957--Power of review had been used ignoring statute giving powers to review the order--Without notice to writ petitioner exercise of review was without jurisdiction--Review petition was filed after a delay of six year from passing of original order--Section 5 of Limitation Act, is not applicable in revenue proceedings, as same were governed under Act, 1975 which is special law and also provides a special period of limitation--Though limitation can be condoned in revenue proceedings but it depends upon satisfying Court exercising jurisdiction with regard to cause of delay--Petitions were allowed. [Pp. 141 & 142] C

Mr. Zauq Muhammad Sipra, Advocate for Petitioner.

Sh. Jamshaid Hayat, Advocate for Respondent No. 6.

Date of hearing: 23.10.2012.

Judgment

Through this single judgment I intend to decide W.P. No. 4307/2004 and W.P. No. 1057/08.

1. The brief facts as narrated by the petitioner in the writ petition are that the land mentioned in the petition was allotted to the petitioner by the Assistant Commissioner, Kabirwala on 26.6.1971 under 15 years Temporary Cultivation Scheme. The Assistant Commissioner declared the petitioner eligible for the conferment of proprietary rights on 29.10.1980. As per the petitioner, the Deputy Commissioner concurred with the order of the Assistant Commissioner on 28.8.1986 and the price of the land was determined as Rs. 40900/-. It is further asserted that the Assistant Commissioner cancelled the lot for non-payment of the price of the land vide order dated 27.11.1986, which was passed behind the back of the petitioner and it was not in the knowledge of the petitioner as no notice was given to the petitioner before passing the said order. Then the petitioner moved an application before the Assistant Commissioner/Collector for restoration of the lot in his name. The application was dismissed on 12.2.2001 by the Assistant Commissioner/Collector. The appeal was preferred before the Additional Commissioner (Revenue), which was also dismissed on 23.4.2001. Revision petition bearing R.O.R No. 722/2001 was filed before the Member (Judicial-IV), Board of Revenue, Punjab, which was accepted on 28.8.2002 and the lot was restored in the name of the petitioner and finding that the non-payment was a rectifiable breach, imposed a fine of Rs. 5000/- on the petitioner.

2. The learned counsel states that when the petitioner moved an application before the Assistant Commissioner/Collector for deposit of the price he was informed that some more money is to be deposited as interest, therefore, he filed Review Petition No. 293/02 and prayed for payment of the price of the land in instalments whereupon vide order dated 23.7.2003, he was allowed to deposit the price of the land along with the amount of the penalty in three equal instalments. The Assistant Commissioner/Collector issued the Challan Form for the payment of Rs. 46657/-, which was deposited and the second challan Form was issued for the same amount, which was also paid. Then the petitioner came to know that vide order dated 22.6.2004, passed by the District Officer (Revenue)/Collector, Khanewal, the suit land along with the other land total measuring 400 kanals has been allotted to Respondent No. 6/Maj. General (Retd.) Asad Mahamud Malik under the Army Welfare Scheme, whereupon the petitioner filed the writ petition in hand.

3. Learned counsel submits that the Deputy Commissioner in his comments has stated that at the time of allotment in favour of Respondent No. 6 the order of Member Board of Revenue was not in his knowledge. Learned counsel further states that on 22.6.2004 this land was not available for allotment, therefore, the allotment order passed by the District Officer/Collector, Khanewal is absolutely without jurisdiction.

4. In the other writ petition, an application was filed by the General Headquarters (W& R Directorate through Commander Military Families Rehabilitation Organization (MFRO), Multan under Section 12(2) of the C.P.C, before the Member, Board of Revenue, Punjab, against the order dated 28.8.2002, passed by Mr. Muhammad Ayub Malik, Member Judicial-IV, Board of Revenue, Punjab in ROR No. 722/2001 titled "Hashim v. The State". This application was accepted on 11.2.2008 treating it to be a review petition. The said order has been challenged in the second writ petition (W.P.No. 1057/08). With regard to this petition, the learned counsel states that the application under Section 12(2) of the C.P.C. does not lie before the Member Board of Revenue. Further states that the arguments were heard on application under Section 12(2) of the C.P.C. Submits that when Mr. Muhammad Ayub Malik, Member (Judicial-IV), Board of Revenue, Punjab, who passed the order under review, was available treating it to be a review and decision as such by Mr. Aftab Ahmed Manika, the other Member, Board of Revenue Member, Punjab was against the law, Further that this review petition was barred by limitation as the same was filed after a period of six years. Further that no notice was issued on this review to the writ petitioner. He argues that under Section 8 of the Board of Revenue Act, 1957 a review can be filed within 90 days. He further argues that Section 5 of the Limitation Act, 1908 is not applicable in the proceedings before the Board of Revenue and the revenue hierarchy, as special period of limitation is provided in the Board of Revenue Act, 1957.

5. On the other hand, learned counsel for Respondent No. 6 states that there is no fault on the part of Respondent No. 6. Submits that the land was allotted to him by the Collector and without fulfilling the conditions of the allotment the writ petitioner was not entitled for the conferment of the proprietary rights as he had not made the land cultivable and therefore, the orders passed by the revenue hierarchy for conferment of proprietary rights and for deposit of the price of the land are not sustainable under the law.

6. I have heard the learned counsel for the parties at full length and have also gone through the record.

7. This Court while exercising constitutional jurisdiction cannot go into the factual controversy between the parties. The argument of the learned counsel for Respondent No. 6 to attack the eligibility and right of conferment of proprietary right upon the writ petitioner relates to the factual controversy. This Court cannot afford to go into the factual controversy between the parties. Only the legal questions can be looked into by this Court while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. I have noticed that the order of conferment of proprietary rights dated 28.8.2002 in favour of the writ petitioner, in ROR No. 722/2001, was passed by the Member, Board of Revenue, Punjab while exercising jurisdiction conferred by law and there is no jurisdictional defect in the said order. When the proprietary rights were conferred through the order of the Member Board of Revenue on 28.8.2002 certainly on 22.6.2004 the land was not available for allotment before the Collector. It is sufficient to hold that the allotment by the District Collector in favour of Respondent No. 6, vide order dated 22.6.2004, when the order for restoration of lot in the name of the writ petitioner, passed by Member Board of Revenue in ROR No. 772/2001 on 2.8.2002 was in field, the order of the District Collector was without jurisdiction. I have further noticed that it is not denied by any one of the parties that this lot at the time of initial allotment was available for Temporary Cultivation Scheme and in the record I have not seen any order for reservation of the said land for the Army Welfare Scheme.

8. Now I come to the order dated 11.8.2008, passed by the Member, Board of Revenue treating the application under Section 12(2) of the C.P.C. to be a review petition. A review is filed under Section 8 of the West Pakistan Board of Revenue Act, 1957 and in review petition certainly there is a limited scope. I have noticed that the order of review and the order which has been reviewed are almost two independent orders which are not permissible under the law as in review the Court exercising such jurisdiction has some limitations under Section 8 of the West Pakistan Board of Revenue Act, 1957. In the case in hand the powers of review have been used ignoring the statute giving the powers to review the order. Further no notice was given to the writ petitioner before converting the application under Section 12(2) of the C.P.C. into a review. Without notice to the writ petitioner exercise of review is without jurisdiction. Further the review petition was filed after a delay of six years from the passing of the original order. Section 5 of the Limitation Act, 1908 is not applicable in revenue proceedings, as the same are governed under the West Pakistan Board of Revenue Act, 1957, which is a special law and also provides a special period of limitation. Though the limitation can be condoned in the revenue proceedings but certainly it depends upon satisfying the Court exercising jurisdiction, with regard to the cause of delay. In this case even no prayer for condonation of delay has been made. Therefore, there is no question of condoning the delay.

9. In the above circumstances, both the writ petitions are allowed and the impugned orders/actions, to the extent of the suit land are declared to be without lawful authority.

10. Before parting with this judgment, I must observe that even there is no fault on the part of the allottee/Respondent No. 6/Maj. Gen. (Retd.) Asad Mahmood Malik, therefore, the Collector may consider his case for alternate allotment as in all these proceedings I have seen no fault on the part of Respondent No. 6 rather it was the negligence of the revenue officials for which both the parties suffered a lot.

(R.A.) Petition allowed

PLJ 2013 Lahore 142 [Multan Bench Multan]

Present: Ijaz Ahmad, J.

CH. MUHAMMAD ASLAM--Petitioner

versus

CIVIL JUDGE/RENT TRIBUNAL RAJANPUR and 3 others--Respondents

W.P. No. 3418 of 2011, decided on 3.10.2012.

Punjab Rent Premises Act, 2009 (VII of 2009)--

----Ss. 2(b) & 24--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Eviction application alleging willful default--Relationship between parties were denied--Dismissal order--Leave to contest--Direction tenant to deposit rent agreed or if disputed tentative rent--Validity--Such amount might be directed by Rent Tribunal was to be deposited in account of landlord or in tribunal--Prima facie, an interim order to pay rent might not be a final order as S. 24 that tenant shall keep on paying rent till final order--Order of Rent Tribunal to extent of directing petitioner to execute rent agreement being violative of law and in view of concession made by respondent was declared illegal, set aside and was expunged and was no more part of the order passed by special judge rent--Petition was accepted. [Pp. 145 & 146] A & C

Punjab Rent Premises Act, 2009 (VII of 2009)--

----S. 2(b) & 28--Interim order for payment of arrears or future rent was not appealable--Impugned order passed by Rent Tribunal directing petitioner to pay arrears of Rent was a final order u/S. 2(b) was appealable u/S. 28 of Act, 2009--An interim order for payment of arrears or future rent was no appealable. [P. 146] B

Mr. Aftab Alam Yasir, Advocate for Petitioner.

Mian Ahmad Mehmood, Advocate for Respondents.

Date of hearing: 3.10.2012.

Order

Respondents No. 3 and 4 claiming to be the landlords of Shop No. 167, Darbar Road, Mithan Kot, Tehsil and District Rajanpur made an application for eviction of the petitioner alleging willful default for the month of May, 2009 till the making of the application at the rate of Rs. 2500/- per month. The arrears till then totaled Rs. 47,000/-. The petitioner filed an application for leave to contest. It was averred therein that the property in question was the subject-matter of a civil suit already pending and that the petitioner was in fact a tenant of Mst. Allah Bachai who had died and thereafter the petitioner was paying the rent due to her legal heirs. Thus, the relationship between the petitioner and Respondents No. 3 and 4 was denied. This application was resisted by Respondents No. 3 and 4. Respondents No. 3 and 4 also made an application soliciting an order directing the present petitioner to deposit the rent with the Special Judge Rent. Both these applications were decided vide the impugned order dated 21.01.2011. The learned Special Judge Rent directed the petitioner to deposit the arrears of rent from the month of May, 2009 till January, 2010 at the rate of Rs. 2500/- per month rent and future rent at the same rate till the finalization of the case. The petitioner was also directed to execute a rent deed between him and Respondents No. 3 and 4. The application for leave to defend was accepted. Aggrieved by this order, the petitioner preferred an appeal before the learned District Judge which was dismissed vide order dated 21.02.2011 on the ground that an appeal did not lie against an order directing the petitioner/tenant to pay the rent and an appeal would lie against a final order.

1. It is contended by the learned counsel for the petitioner that an appeal against an order requiring a tenant to pay the arrears of rent is maintainable in view of the provisions of Sections 2(b) and 28 of the Punjab Rented Premises Act, 2009. Thus, the order dismissing the petitioner's appeal on this score is illegal; that since the petitioner has denied the relationship of landlord and tenant between him and Respondents No. 3 and 4, the order passed by the learned Special Judge Rent directing the petitioner to pay the rent is illegal altogether and that the learned Special Judge Rent directing the petitioner to execute a rent deed with Respondents No. 3 and 4 has thus, made a premature decision of the issue of relationship of landlord and tenant while deciding the application for leave to defend. Relies on Muhammad Iqbal Haider and another vs. VTH Rent Controller/Senior Civil Judge, Karachi Central and 2 others" (2009 YLR 136), "Mst. Parveen Bibi vs. Shahan Masih and 2 others" (2007 CLC 1106) and "Muhammad Wakil Khan vs. Additional District Judge, Lahore and 3 others" (2008 C.L.R. 1485) (Lahore).

2. On the other hand, the learned counsel appearing on behalf of Respondents No. 3 and 4 supports the impugned order passed by the learned District Judge and the learned Special Judge Rent. Contends that an appeal as is laid down in Section 28 of the Act of 2009, is not maintainable against an order for payment of rent under Section 24 of the Act; that the language of this section itself differentiates and distinguishes between a final order culminating in eviction of the tenant or dismissal of the application and an interim order. The order in question requiring the petitioner to pay the arrears and future rent is not a final order and is not appealable; that the order directing the petitioner to pay the arrears and future rent does not decide the issue of relationship of landlord and tenant as Issue No. 6 which is yet to be decided pertains to this relationship. The learned counsel appearing on behalf of Respondents No. 3 and 4 however concedes that the impugned order passed by the learned Special Judge Rent directing the petitioner to execute the agreement at the initial stage is illegal and expresses his no objection if the finding regarding the payment of rent in the impugned order passed by the learned Special Judge Rent is expunged.

3. I have heard the learned counsel for the petitioner, for Respondents No. 3 and 4 and also gone through the record.

4. Section 24 of the Act provides that while granting leave to contest, the Rent Tribunal, shall direct the tenant to deposit the rent agreed or if disputed, the tentative rent. This amount as may be directed by the Rent Tribunal is to be deposited in the account of the landlord or in the tribunal. Prima facie, an interim order to pay the rent may not to be a final order as Section 24 continues further and provides that the tenant shall keep on paying the rent till the final order. It may either by the one culminating in the eviction of the tenant or in the dismissal of the eviction application. This Section has however to be read along with Section 2(b) of the Act. It reads as follows:

(b) "final order'' means a final order passed by a Rent Tribunal culminating the proceedings including an order in respect of adjustment of pagri, advance rent, security, arrears of rent, compensation or costs but shall not include an order passed in an execution proceedings.

The provisions of both these Sections shall now be read in juxtaposition and contradistinction with the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959. Section 15 (1) of the Ordinance reads as follows:--

"15. Appeal (1) Any party aggrieved by an order of the Controller finally disposing of an application made under this Ordinance may within thirty days of the date of such order, prefer an appeal in writing to the District Judge having jurisdiction over the area where the building or rented land in relation to which the order is passed, is situated:

Provided that no appeal shall lie against an order made by a Controller under sub-section (6) of Section 13 determining approximately the amount of rent due or the rate of rent and directing the tenant to deposit all the rent due:

Provided further that no appeal shall lie from an interlocutory order passed by the Controller."

The provisions of Section 15 ibid firstly segregate an appealable order from all other orders by qualifying the former as the one, finally disposing of an application made under the Ordinance. By supplementing sub-section (1) of Section 15 with two provisos, it completely bars an appeal against an order passed under sub-section (6) of Section 13 of the Ordinance i.e and order to pay the arrears or the future rent and also against an interlocutory order. The corresponding provisions under Section 28 read with Section 2(b) of the Act ibid are distinctive and different. The judgments referred by the learned counsel for the petitioner will not apply to a case under the Rent law now in vogue.

A final order under the Act ibid includes an order for arrears of rent. Thus, the impugned order passed by the Rent Tribunal directing the petitioner to pay the arrears of Rent is a final order under Section 2(b) of the Act and is appealable under Section 28. In the Ordinance, to the contrary, an interim order for payment of the arrears or the future rent is not appealable.

1. At this stage, shall the instant writ petition be accepted and the case be remanded to the appellant Court for decision afresh or be decided by this Court itself. In my view, there is sufficient material available in the file to enable this Court to pronounce the judgment. The order of the Rent Tribunal to the extent of directing the petitioner to execute a rent agreement with Respondents No. 3 & 4, being violative of law and in view of the concession made by the learned counsel for the said respondents is declared illegal, set-aside and is expunged and is no more the part of the impugned order passed by the Special Judge Rent. This petition to that extent stands accepted. The impugned order passed by the Special Judge Rent directing the petitioner to pay the arrears and the future rent does not determine the relationship of landlord or tenant as the Rent Tribunal has already framed Issue No. 6 on this point that is yet to be decided. As the relationship of landlord and tenant between the parties is denied by the petitioner, he however admits his character of being a tenant though under another landlord therefore, he will not be depositing the tentative rent in the bank account of the respondents but will be tendering the same before the Rent Tribunal. This will safeguard the rights of both the parties and also of a third person whom the petitioner attorns to be his landlord. Either of them who ultimately wins, will have the money deposited with the Tribunal. The order passed by the learned Appellate Court refusing to entertain the appeal is declared illegal and is set-aside as an appeal against the order impugned before it was maintainable. The impugned order passed by the Special Judge Rent is partly set-aside as far it binds the petitioner to execute a rent deed with Respondents No. 3 and 4. The said order to the extent of payment of the arrears and the future rent by the petitioner and payment of fine by Respondents No. 3 & 4, stays. This petition stands partly accepted. The case is remanded to Special Judge Rent. He will further proceed with the eviction application from the stage after the acceptance of petitioner's application for leave to contest the eviction application.

(R.A.) Petition accepted

PLJ 2013 Lahore 147

Present: Ali Baqar Najafi, J.

GAKHAR HUSSAIN--Petitioner

versus

Mst. SURAYYA BEGUM, etc.--Respondents

W.P. No. 2232 of 2012, decided on 10.12.2012.

Muhammadan Law--

----Ss. 367 & 370--Maintenance--Disobedient daughter--Entitlement to maintenance by father--Under S. 370, a father is bound to maintain his daughter until she is married and father is not bound to maintain a child which is capable of being maintained out of his or her own property. [P. 149] A

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Maintenance--Father is bound to maintain even a divorced daughter if she is living with her mother instead of father--Validity--A daughter is entitled to receive maintenance regardless of her age till such time she is married--Even on her attaining age of majority the father is responsible for her maintenance as she would lead an independent life and is always in need of protection her parents. [P. 150] B

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Maintenance--Entitlement to maintenance by father--Mother of minor could not provide her maintenance due to limited sources--Validity--Father was admittedly living at U.K and notwithstanding his means of subsistence, he has been providing enough maintenance to other children from his other wives and as such he treated daughter with discrimination. [P. 150] C

PLD 2005 SC 24, ref.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Maintenance--Disobedient daughter even assume for moment without conceding was entitled to maintenance by father--Daughter was entitled to maintenance by father--Validity--Contention--Disobedient daughter is not entitled to maintenance has no force for the reasons, (i) father was unable to show his love, affection or even intimacy for daughter and, therefore, cannot expect her to return, precisely when no instance was mentioned showing disobedience, (ii) that ever since he divorced his wife, he never turned up or saw face of his daughter, (iii) under Islamic law, there is no institution of abandonment (Aaq) for disgruntled son/daughter depriving her from inheritance and a daughter cannot be deprived of her right of maintenance by father during his life time. [P. 150] D

PLD 2001 SC 31, PLD 2006 SC 457, PLD 2007 CLC 656, PLD 1972 SC 302, PLD 2012 Lah. 154 & PLD 2005 SC 24, ref.

Ch. Muhammad Waris Khan, Advocate for Petitioner.

Mr. Abid Hussain Abid, Advocate for Respondents.

Date of hearing: 10.12.2012.

Order

Through this writ petition, the petitioner challenges two orders dated 09.07.2012 passed by Respondent No. 3 and that of dated 08.02.2012 passed by Respondent No. 4.

1. Brief facts giving rise to filing of this writ petition are that petitioner married Respondents No. 1 on 28.10.1981. Respondent No. 2 was born from their wedlock on 02.09.1983. The petitioner is foreign nationality holder and his earning exceeds Rs. 1 1/2 lac per month. He expelled the respondents in the year 1987 and married one Saadia Bibi who was his third wife. The respondents claim maintenance to the tune of Rs. 25,000/- each besides other expenses including educational expenses of Respondent No. 2.

Conversely, the petitioner filed written statement on 29.06.2011 through his attorney controverting the claim of the respondents on the ground of limitation, estoppel, concealment of facts and that Respondent No. 2 his daughter is disobedient as she refused to marry with his nephew proposed by him. Hence this writ petition.

1. Learned counsel for the petitioner submits that the impugned judgments and decrees are against law and facts; that Respondent No. 2 is an educated lady and is of earning hand and has been a school teacher whereas the petitioner is an ailing and sick old man depends upon his children and is at the mercy of the State in U.K.; that the grant of past maintenance for six years is not only harsh, excessive but also is illegal; that according to the Injunctions of Islam the children who were earning financially are bound to feed their sick parents to get the blessing of Allah Almighty; that Respondent No. 2 is earning her livelihood and asset of society, but unfortunately she is acting as a tool in the hands of his ex-wife who is exploiting his daughter/ Respondent No. 2. He gave reference to the statement of Respondent No. 2, frustrating his claim but no proof either documentary or oral was produced by Respondent No. 2 which could determine financial status of the father. Further submits that in Section 369 of the Mohammedan Law by D.F. Mullah's, Food, Raiment and lodging are defined for maintenance, as such the expenses for education are not covered. Places reliance on Mukhtarul Hassan Siddiqui versus Judge Family Court, Rawalpindi and 4 others (1994 CLC 1216(Lahore) in support of his argument that a disobedient daughter is not entitled to recover the maintenance; that the disobedient respondent being major should in-fact support the petitioner; that the maintenance for period of six years is not sustainable in the eyes of law.

2. Conversely, learned counsel for the respondents submits that the petitioner has married three ladies and is feeding and maintaining the children from other wives but Respondent No. 2 was not only discriminated but also ignored totally; that she with a great difficulty could sustain and set up at the level of MA. (English Literature); that a disobedient daughter, even assume for a moment without conceding, is also entitled to the maintenance by the father; that Respondent No. 2 is also entitled to maintenance by the father; that the petitioner has abandoned the said respondent, however, since he divorced her mother and did not even bother to know as to whether they were surviving or dead. Places reliance on Article 120 of the Limitation Act, 1908; Abdul Rauf and others versus Mrs. Shereen Hassan (PLD 2001 Supreme Court 31), Muhammad Nawaz versus Mst. Khurshid Begum and others (PLD 1972 Supreme Court 302), Mst. Anar Mamana and another versus Misal Gul and 2 others (PLD 2005 Peshawar 194), Farkhanda Mumtaz versus Muhammad Sharif and 2 others (PLD 2006 Peshawar 96) & (PLJ 2006 Peshawar 206(DB), Mst. Farah Naz versus Judge Family Court, Sahiwal (PLD 2006 Supreme Court 457); Rasheed Ahmad versus Mst. Shamshad Begum and 3 others (PLD 2007 CLC 656) Arbah Mir Muhammad versus Mst. Iram Iltimas (PLD 2005 Supreme Court 24) and Muhammad Asadx versus Mst. Humera Naz and others (2000 CLC 1725 (Lahore), to argue that the respondent is legally entitled to the maintenance until she gets married or her custody is changed through process of law, which the petitioner has been avoiding.

3. I have heard the learned counsel for the parties and perused the record.

4. Under Chapter XIX of the Muhammadan Law by D.F. Mulla's, the authentic codified text (though a personal opinion) so far available, the maintenance as defined in Section 369 includes food, raiment and lodging. Under Section 370 a father is bound to maintain his daughter until she is married and the father is not bound to maintain a child which is capable of being maintained out of his or her own property. The definition of maintenance is to be liberally interpreted which includes the process of maintaining or being maintained and the provisions of the means to support life as held in Abdul Rauf versus Mrs. Shereen Hassan (PLD 2001 Supreme Court 31). The claim for past maintenance is governed by Art. 120 of the Limitation Act which describes a period of six years from the date when the right to sue is accrued. The time during which the petitioner remained away from Pakistan would be excluded for reckoning the period of limitation as held in Mst. Farah Naz versus Judge Family Court Sahiwal (PLD 2006 Supreme Court 457). The said respondent is also entitled to past maintenance, six years prior to institution of the suit as already said that Article 120 of the Limitation Act is applicable to the suit for maintenance. Reliance can be placed on Rasheed Ahmad versus Mst. Shamshad Begum and 3 others (PLD 2007 CLC 656) and also Muhammad Nawaz versus Mst. Khurshid Begum and 3 others (PLD 1972 Supreme Court 302) wherein the past maintenance subject to limitation was held to be permissible in relevant circumstances of the case. Even in the recent judgment given by learned single bench of this Court in case Mian Muhammad Sabir versus Mst. Uzma Parveen and 2 others (PLD 2012 Lahore 154) it was held that father is bound to maintain even a divorced daughter if she is living with her mother instead of the father. Hence, by now, it can be safely said that a daughter is entitled to receive the maintenance regardless of her age till such time she is married. Even on her attaining age of majority the father is responsible for her maintenance as she would lead an independent life and is always in need of protection of her parents. In the instant case the mother of Respondent No. 2 could not provide her maintenance due to limited resources. The father is admittedly living at U.K., and, notwithstanding his means of subsistence, he has been providing enough maintenance to the other children from his other wives and as such he treated Respondent No. 2 with discrimination. Reliance can be placed on Arbab Mir Muhammad versus Mst. Iram Iltimas (PLD 2005 Supreme Court 24).

5. The contention of the petitioner that disobedient-daughter is not entitled to maintenance has no force for the reasons; firstly, the father was unable to show his love, affection or even intimacy for the daughter and, therefore, cannot expect her to return, precisely when no instance was mentioned showing disobedience; secondly, that ever since he divorced his wife (mother) Respondent No. 1 he never turned up or saw the face of his daughter; thirdly, under Islamic Law there is no institution of abandonment (Aaq) for a disgruntled son/daughter depriving him/her from the inheritance and, therefore, a daughter cannot be deprived of her right of maintenance by the father during his life time. Even otherwise, the concurrent finding of facts cannot be interfered as the learned counsel for the petitioner could not point out any illegality, misreading or non-reading of evidence to substantiate that the petitioner had no resources to maintain his only ignored daughter ever since his birth.

6. For the foregoing reasons this writ petition being without any force, is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2013 Lahore 151

Present: Abdus Sattar Asghar, J.

EHSAN ULLAH etc.--Petitioners

versus

MARYAM BIBI through legal heirs--Respondents

C.R. No. 3498 of 2012, decided on 27.11.2012.

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

----Ss. 117 & 135--Specific Relief Act, (I of 1877), S. 8--Civil Procedure Code, (V of 1908), S. 115 Report of local commission cannot be termed as reliable piece of evidence--Partition of land--Revisional jurisdiction--Co-sharer--Validity--Since petitioners were not exclusive owners of land, therefore, they could not claim possession of any land without seeking partition of joint khata--Disputed land was agricultural land--It was also admitted that petitioners had never moved revenue officer for partition of disputed land of joint khata u/S. 135 of Act, 1967 or for demarcation of land owned by them u/S. 117 of Act--Simplicitor suit for possession u/S. 8 of Specific Relief Act, 1877 was not maintainable. [P. 153] A

Mian Muhammad Faheem Bashir, Advocate for Petitioners.

Date of hearing: 27.11.2012.

Order

The petitioners have invoked the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure, 1908 to impugn the judgment and decree dated 28.08.2012 passed by the learned Additional District Judge, Gujranwala whereby appeal filed by the petitioners against dismissal of their suit for possession vide judgment and decree dated 20.09.2010 by the learned Civil Judge, Gujranwala, has been dismissed and the judgment and decree passed by the learned Civil Judge was confirmed.

1. It is argued by the learned counsel for the petitioner that the learned Additional District Judge has passed the impugned judgment and decree dated 28.08.2012 without application of judicious mind based on misreading and non-reading of evidence, against law and facts and liable to set aside.

2. Arguments heard. Record perused.

3. Brief facts leading to this civil revision are that the petitioners lodged a suit for possession of land after removal of superstructure against the respondents alleging their ownership on an area measuring 03-Kanals and 02-Marlas comprising Khasra No. 762, Khewat No. 63, Khatooni No. 354 vide Register Haqdaran Zamin for the year 1998-99 situated at Mauza Ladhewala Warraich, Tehsil and District Gujranwala. They also averred in the plaint that the respondents by encroaching upon the disputed land had started construction thereupon and consequently Petitioner No. 1 had lodged a suit for permanent injunction before the Civil Court; that the learned Civil Judge during the proceedings of the said suit for permanent injunction had appointed Rana Muhammad Jamil Tehsildar Gujranwala as Local Commission for demarcation who submitted his report dated 13.10.2003 indicating that the respondents have encroached upon the petitioner's land measuring 2/149/272 Marlas, hence the suit for possession.

4. Suit for possession was resisted by the respondents with the contentions that they are owner-in-possession of the suit land as co-sharer and that report of the Local Commission in earlier suit is not admissible in evidence. After framing of the issues on the divergent pleadings of the parties and recording of evidence produced by the parties, the learned trial Court dismissed the suit vide judgment and decree dated 28.09.2010. Being aggrieved thereof the petitioners filed an appeal which was also dismissed by the learned Additional District Judge through the impugned judgment and decree dated 28.08.2012, hence the instant revision petition.

5. Perusal of the record transpires that the petitioners are not exclusive owners of Khasra No. 762, Khewat No. 63, Khatooni No. 354 rather the respondents are also co-sharers in the said Khata. It is also evident on the record that the suit for permanent injunction lodged by Muhammad Aslam and Ehsan Ullah wherein Rana Muhammad Jamil Tehsildar Saddar, Gujranwala was appointed as Local Commission has been dismissed as withdrawn by the petitioners vide statement dated 03.10.2006. It is also pertinent to mention that in the instant case no fresh Local Commission was appointed by the Court to conduct the demarcation, rather the plaintiffs opted to produce the said Tehsildar as PW-1 who stated that report dated 13.10.2003 (Exh.P.1) was prepared by him in the earlier suit and that Naqsha Tajawaz' (Exh.P.2) is part of the said report. While facing cross-examination he admitted it correct thatNaqsha Tajawaz' was neither prepared nor signed by him. He also expressed his ignorance to the suggestion that the respondents are co-sharers in the said Khewat. Admittedly he had never checked the revenue record to ascertain the ownership of the respondents. Report does not indicate the mode of demarcation adopted by the Local Commission. It also fails to show as to whether the contiguous Khasra Numbers as well as Khasra No. 762 were duly measured and demarcated. Therefore such a report of the Local Commission cannot be termed as reliable piece of evidence.

6. At this stage it may be expedient to reproduce the provisions of Sections 117 and 135 of the Land Revenue Act, 1967, which reads below:--

7. Power of Revenue Officer to define boundaries.--(1) A Revenue Officer may, for the purpose of framing any record or making any assessment under this Act, or on the application of any person interested, define the limits of any estate, or of any holding, field or other portion of an estate, and may, for the purpose of indicating those limits, require boundary marks to be erected or required.

(2) In defining the limits of any land under sub-section (1), the Revenue Officer may cause boundary marks to be erected on any boundary already determined by, or by order of, any Court or Revenue Officer or any Forest Settlement Officer appointed under the Forest Act, 1927 (Act XVI of 1927), or restore any boundary mark already set up by, or by order of, any Court or any such officer.

1. Application for partition.--Any joint owner of land may apply to a Revenue Officer for partition of his share in the land if--

(a) at the date of the application the share is recorded under Chapter VI as belonging to him; or

(b) his right to the share has been established by a decree which is still subsisting at the date; or

(c) a written acknowledgment of that right has been executed by all persons interested in the admission or denial thereof.

Since the petitioners are not the exclusive owners of Khewat, No. 63, Khatooni No. 354, Khasra No. 762 therefore they cannot claim possession of any land in the said Khasra Number without seeking partition of the joint Khata. Admittedly the disputed land is agricultural land. It is also admitted on the record that the petitioners have never moved the Revenue Officer for partition of the disputed land of the joint Khata under Section 135 of the West Pakistan Land Revenue Act, 1967 or for demarcation of the land owned by them under Section 117 of the Act ibid. Therefore, simplicitor suit for possession under Section 8 of the Specific Relief Act, 1877 is not maintainable.

1. It is therefore obvious that petitioner's suit for possession was rightly dismissed by the learned trial Court through the impugned judgment and decree dated 28.09.2010. Learned Additional District Judge thoroughly scrutinizing the evidence produced by the parities has rightly dismissed the petitioners' appeal. The impugned judgment and decree dated 28.08.2012 passed by the learned Additional District Judge therefore does not suffer from any misreading and non-reading of evidence. Petitioner has no case to invoke the revisional jurisdiction of this Court to interfere in the concurrent findings of facts arrived at by the Courts below.

2. For the foregoing reasons, I do not find any legal or factual infirmity in the impugned judgment and decree dated 28.08.2012 passed by the learned Additional District Judge, Gujranwala. Therefore, this civil revision having no merit is dismissed in limine.

(R.A.) Revision dismissed

PLJ 2013 Lahore 154

Present: Abdus Sattar Asghar, J.

SHAUKAT ALI--Petitioner

versus

MUHAMMAD SHARIF--Respondent

C.R. No. 2975 of 2012, decided on 10.12.2012.

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

----O. XLI, R. 1--Memorandum of appeal was not accompanied by copy of preliminary decree--Decree sheet was prepared by trial Court rendering it lacuna on part of trial Court required to be rectified--Essential--Effect--Copy of decree shall be accompanied with memorandum of appeal is a mandatory provision certainly rectificable in interest of justice following golden principle of law that a party cannot be penalized for act or neglect of Court--Appellate Court itself ought to have required trial Court to prepare correct decree sheet and call upon appellant to file its certified copy in Court to comply with requirements of Order 41, Rule 1, CPC--Petitioner after filing civil revision also lodged application to trial Court seeking preparation of decree sheet but same had been declined on ground that no such direction was ever passed by High Court--Since appeal before Appellate Court was incompetent due to non-preparation of decree sheet, therefore, appellate Court fell in gross error while granting appeal through impugned order which was untenable in law--Revision was allowed. [P. 156] A, B, C, & D

Mr. Saif-ul-Malook, Advocate for Petitioner.

Nemo for Respondent.

Date of hearing: 10.12.2012.

Order

Through this Civil Revision under Section 115 of the Civil Procedure Code, 1908 the petitioner has impugned the legality and propriety of the judgment dated 21.5.2012 passed by learned Additional District Judge Chunia District Kasur granting the appeal lodged by Muhammad Sharif respondent against the judgment and preliminary decree dated 23.6.2011 passed by learned Civil Judge Chunian.

1. Succinctly the facts leading to this petition are that Shaukat Ali petitioner filed a suit for possession through partition against Muhammad Sharif respondent. It was contested by the respondent through written statement. After framing of issues and recording of evidence of the parties the learned trial Court vide judgment dated 23.6.2011 passed preliminary decree in favour of the petitioner. Respondent being dissatisfied with the judgment and preliminary decree dated 23.6.2011 preferred an appeal before the learned Additional District Judge, Chunian which was allowed through the impugned judgment.

2. Record reveals that memorandum of appeal was not accompanied by copy of the preliminary decree. It was also noticed by the learned appellate Court that decree sheet was not prepared by the learned trial Court rendering it a lacuna on the part of the learned trial Court required to be rectified.

3. It is argued by the learned counsel for the petitioner that despite taking notice of the negligence of the learned trial Court and deficiency in preparation of the decree sheet the learned appellate Court fell in gross error by accepting the appeal; that the appeal lies against the decree and non-preparation of the decree-sheet renders the appeal incompetent; that the impugned order passed by the learned appellate Court therefore is against law and facts causing miscarriage of justice and liable to set aside.

4. Despite accepting service respondent has not turned up therefore he is proceeded against ex-parte.

5. Arguments heard. Record perused.

6. It is evident on the record that the learned trial Court miserably failed to draw up a formal decree-sheet in accordance with the judgment dated 23.6.2011. This deficiency was also noticed by the learned appellate Court in the impugned judgment. Needless to say that it was incumbent upon the learned trial Court to prepare a proper and complete decree-sheet in line with its judgment. Requirement of Order XLI Rule 1 of the Civil Procedure Code, 1908 to the effect that copy of the decree shall be accompanied with the memorandum of appeal is a mandatory provision certainly rectifiable in the interest of justice following the golden principle of law that a party cannot be penalized for the act or neglect of the Court. In such circumstances the learned appellate Court itself ought to have required the learned trial Court to prepare correct decree sheet and call upon the appellant to file its certified copy in the Court to comply with the requirements of Order XLI Rule 1 of the Civil Procedure Code, 1908. It is astonishing that instead of doing the needful the learned appellate Court granted the appeal through the impugned judgment. It is also on the record that the petitioner after filing this Civil Revision also lodged an application to the learned trial Court seeking preparation of the decree sheet but the same has been declined vide order dated 1.10.2012 on the ground that-no such direction was ever passed by this Court.

7. In the attending circumstances since the appeal before the learned appellate Court was incompetent due to non-preparation of the decree sheet therefore the learned appellate Court fell in gross error while granting appeal through the impugned order which is untenable in law.

8. For the above reasons this Civil Revision is allowed, the impugned judgment dated 21.5.2012 passed by first appellate Court is set aside and the case is remanded to the learned appellate Court with the direction that the appeal shall be deemed as pending. Simultaneously learned trial Court is directed to prepare the decree sheet in line with its judgment dated 23.6.2011 and furnish an attested copy of the same to the learned appellate Court within a period of seven days from the date of receiving the copy of this order and thereafter the learned appellate Court shall decide the appeal afresh after providing opportunity of hearing to the parties within a period of 60 days. Delay in furnishing the certified copy of the decree sheet to the learned appellate Court shall be deemed condoned in the interest of justice. Parties are left to bear their own costs.

9. Deputy Register (Judicial) of this Court is directed to transmit the copy of this order to the learned appellate Court as well as to the learned trial Court concerned through the learned District Judge Kasur forthwith by fax.

(R.A.) Revision allowed

PLJ 2013 Lahore 157

Present: Mrs. Ayesha A. Malik, J.

ICI POLYESTER EMPLOYEES UNION (CBA) REGISTERED etc.--Petitioners

versus

TRUSTEES and others--Respondents

C.O. No. 31 of 2009, decided on 19.12.2012.

Companies Ordinance, 1984--

----Ss. 7 & 227--Power of Court to declare election of directors as invalid--Direction to pay loss of money--Objections on maintainability--No justification for seeking a direction from High Court--Validity--Review of prayer clause showed that petitioner was not entitled to prayer sought as High Court, vested with jurisdiction u/S. 7 of Companies Ordinance, cannot direct to pay loss of more than Rs. 100 million as claimed by petitioner--In order to claim loss, evidence has to be led and petitioner would have to establish their relationship--Terms of relationship, breach and loss suffered--High Court cannot determine loss suffered by petitioner, if any under Petition u/S. 227 of Ordinance--Petition was not maintainable. [P. 160] A

PLD 1996 SC 543 & PLD 1996 Lah. 1.

Mr. Haris Azmat, Advocate for Petitioner.

Mr. Shahzad Ata Elahi, Advocate for Respondent Nos. 1 to 5.

Mr. Umair Mansoor, Assistant Director, Law, SECP for Respondent No. 6.

Date of hearing: 28.11.2012.

Judgment

Through this CO. instituted under Section 227 of the Companies Ordinance, 1984 (the Ordinance), the Petitioner has prayed that Respondents No. 1 & 2 be directed to pay the loss of money amounting to more than Rs. 100 million in the Provident Fund to the members of the Petitioner and furnish all receipts of money deposited in the Provident Fund in accordance with Section 228 of the Ordinance. The Petitioner has also prayed that Respondent No. 3 be directed to carry out a detailed investigation of the matter, especially regarding the careless and negligent conduct of Respondent No. 1 and take strict action against them in accordance with law and be granted costs of the case.

1. Two preliminary objections with respect to the maintainability of this petition were taken up by the counsel for Respondents No. 1 to 5. The first objection was that this Court does not have jurisdiction to decide this Petition. In this regard, he argued that an application under Section 227 of the Ordinance lies before Respondent No. 6. The jurisdiction conferred upon this Court under the Ordinance does not empower this Court to look into, investigate or adjudicate upon affairs of a company with regard to any alleged violation of Section 227 of the Ordinance nor can this Court impose any fine or issue any direction under Section 229 of the Ordinance. The second objection is that the Petitioner has no locus standi to file the instant petition as any application referencing violation of Section 227 of the Ordinance can only be made by a `person' depositing money or making contributions to a provident fund in terms of Section 227. In the instant case, the Petitioner is not making any contribution to the ICI Pakistan Non-Management Staff Provident Fund (the Provident Fund) established by Respondent No. 5 pursuant to the deed of trust dated February 26, 1954. Hence the Petitioner has no locus standi and is not entitled to claim any loss.

2. Learned counsel for Respondent No. 6 also raised objections on the maintainability of this Petition. He stated that in terms of Sections 227 to 229 of the Ordinance read with Section 476(1), no such petition can be filed before this Court and the remedy, if any, lies with the Respondent No. 6, who can take up such matters and impose penalty under the law. He argued that the Petitioner has not filed any petition before Respondent No. 6 for redressal of their grievance, and as such, cannot seek a direction from the Court to conduct a detailed investigation against the Respondent No. 6.

3. In rebuttal to the preliminary objections, learned counsel for the Petitioner argued that the High Court is vested with jurisdiction by virtue of Section 7 of the Ordinance. He placed reliance on the law laid down in case 2003 CLD 981 (Gulzar Ahmed Vs. The State) to argue the point that the jurisdiction exercised by the Company Judge under Section 7 of the Ordinance is a jurisdiction of civil nature. He argued that this means that the High Court as a Company Court exercises jurisdiction in all civil matters. Since the dispute is of a civil nature, hence it can be decided by this Court. He has also placed reliance on the law laid down in case 2008 CLD 1117 (Lahore Race Club through Secretary and others Vs. Raja Khushbakht ur Rehman) to advance his arguments that the High Court under the Ordinance has original civil jurisdiction. Meaning that this Court is the Court of first instance for the disputes in relation to and under the Ordinance. The thrust of his argument was that since the dispute of the Petitioner is a civil dispute, hence this Court being the competent Court has jurisdiction under Section 7 of the Ordinance to grant the relief claimed by the Petitioners.

4. Arguments heard. Record perused.

5. A petition under Section 227 of the Ordinance is filed for ensuring deposits into the Provident Fund, and for safeguarding the said deposits. Any irregularities or failure by any company in this regard can be challenged or questioned under the said Section. The question that arises in this Petition is that who is to decide upon a petition filed under Section 227, i.e. is it the Company Court or is it the Respondent No. 6. Section 7 of the Ordinance provides for the jurisdiction of Courts. Section 7(1) provides that:

"7(1) The Court having jurisdiction under this Ordinance shall be the High Court having jurisdiction in the place at which the registered office of the company is situate:

Provided that the Federal Government, may, by notification in the Official Gazette and subject to such restrictions and conditions as it thinks fit, empower any civil Court to exercise all or any of the jurisdiction by this Ordinance conferred upon the Court, and in the case such Court shall, as regards the jurisdiction so conferred, be the Court in respect of companies having their registered office within the territorial jurisdiction of such Court."

The Section, no doubt, vests original civil jurisdiction with the High Court as was held in case PLD 1996 SC 543 (Brother Steel Mills Ltd. and others Vs. Mian Ilyas Miraj and 14 others). However, the context or meaning of original civil jurisdiction as decided in the case PLD 1996 Lahore 1 (M/s Sunrise Textiles Ltd. and others Vs. Mashreq Bank PSC and others) is that jurisdiction is conferred by statute and is in contradiction to criminal jurisdiction.

1. A further review of the Ordinance shows that the Ordinance specifically mentions "the Court" where it empowers "the Court" to exercise jurisdiction. For example, Section 152 of the Ordinance is the power of the Court to rectify the register of members. Section 179 of the Ordinance is the power of the Court to declare the election of directors as invalid, or Section 305 is the Section where the Court has the powers of winding up etc. The expression "having jurisdiction" means that the High Court is the authorized legal authority to hear and determine issues under the Ordinance, but Section 7 does not necessitate the High Court to adjudicate upon all disputes which arise under the Ordinance. Where it is required under the Ordinance, specific Sections of the Ordinance provide that the Court shall adjudicate upon the matter.

2. The argument of the counsel for the Petitioner that the High Court, while exercising jurisdiction under Section 7, must adjudicate upon the instant Petition under Section 227, being an original civil dispute is flawed as this interpretation goes against the spirit of the Ordinance and the rational of Section 7. I am of the opinion that the Petitioner should have filed its grievance before Respondent No. 6, being the competent authority to adjudicate upon irregularities and management of a Provident Fund under Section 227. A review of the Petitioner's prayer will also testify to this fact as the Petitioner itself seeks a direction to Respondent No. 6 to carry out a detailed investigation of the matter, and take strict action against Respondents No. 1 to 5. As such the Court, under Section 7 of the Ordinance cannot direct the Respondent No. 6 to carry out an investigation under Section 227 of the Ordinance.

3. In the case at hand, the Petitioner has not moved any application or complaint before Respondent No. 6, yet they seek a direction from this Court that Respondent No. 6 conduct a detailed investigation in the matters. Without approaching the Respondent No. 6 for adjudication on the dispute, there is no justification for seeking a direction from this Court in the manner sought by the Petitioner.

4. Even otherwise, a review of the prayer clause shows that the Petitioner is not entitled to the prayer sought as this Court, vested with jurisdiction under Section 7 of the Companies Ordinance, cannot direct Respondents No. 1 to 5 to pay the loss of more than Rs. 100 million as claimed by the Petitioner. In order to claim loss, evidence has to be led, and the Petitioner would have to establish their relationship with Respondents No. 1 to 5, the terms of their relationship, the breach and the loss suffered. This Court cannot determine the loss suffered by the Petitioner, if any, under a Petition under Section 227 of the Ordinance.

5. Therefore, in view of the aforesaid, I find that the Petition is not maintainable.

6. The second objection was with reference to the locus standi of the Petitioner. The Petitioner is a registered union of Respondent No. 5. Since jurisdiction under Section 227 of the Companies Ordinance vests with Respondent No. 6, I leave it for them to decide upon this issue, in the event that the Petitioner files any petition before them.

7. In view of the aforesaid, this C.O. has no merit, hence dismissed.

(R.A.) C.O. dismissed

PLJ 2013 Lahore 161 (DB) [Multan Bench Multan]

Present: Abdus Sattar Asghar and Malik Shahzad Ahmad Khan, JJ.

MANZOOR AHMAD and 2 others--Petitioners

versus

MUHAMMAD NAWAZ and 18 others--Respondents

I.C.A. No. 127 and C.M. No. 5192 of 2012, decided on 10.9.2012.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 561-A--Law Reforms Ordinance, 1972, S. 3--Intra Court Appeal--Constitutional jurisdiction of High Court--Quashing of FIR--Maintainability--Order recorded in writ petition quashing FIR was passed in exercise of constitutional jurisdiction--Held: It is an established principle that I.C.A. against order of High Court passed in constitutional jurisdiction u/Art. 199 of Constitution quashing FIR was not maintainable. [P. 163] A

2003 SCMR 1597, ref.

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

----Ss. 369 & 561-A--Power of review--It is established principle of law that like an appeal and revision, power to review is a statutory power and no Court or authority can exercise power of review unless it is expressly conferred by law. [P. 164] B

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

----S. 114 & Order XLVII--Power to review an order--High Court might exercise powers of review with reference to Order 47 and Section 114 of CPC--General rule that power to review does not exist unless it expressly conferred by law, however has got two well established exceptions namely (1), Court has inherent jurisdiction to set aside judgment or order which it had delivery without jurisdiction, a Court or authority has power to review an order or judgment obtained by fraud. [P. 164] C

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

----S. 114 & O. XLVII--Criminal Procedure Code, (V of 1898), Ss. 369 & 561-A--Power to review--Jurisdiction--High Court has got ample power to review its order in light of letters patent inherent jurisdiction and power conferred upon it in terms of Ss. 369 and 561-A, Cr.P.C. and Ss. 114 and Order 47, CPC. [P. 165] D

Mr. Masood Ahmad Dogar, Advocate for Petitioner.

Date of hearing: 10.9.2012.

Order

Abdus Sattar Asghar, J.--This review petition under Section 561-A, Cr.P.C. is lodged to recall the order dated 24.7.2012 passed by this Court whereby petitioner's Intra Court Appeal No. 127/2012 was dismissed in limine.

1. Succinctly, the facts leading to this petition are that FIR No. 429/2011 dated 6.9.2011 under Sections 489-F, PPC, P.S. Chowk Azam was got registered by complainant Muhammad Nawaz/Respondent No. 1 against Naseer Ahmad. Conversely, Manzoor Ahmad/Petitioner No. 1, real brother of the above said Naseer Ahmad, lodged case FIR No. 531/2011 dated 14.12.2011 under Sections 420, 468, 471, 419, 406, PPC, P.S. Chobara, District Layyah against Muhammad Nawaz and others. Muhammad Nawaz/Respondent No. 1 invoked the constitutional jurisdiction of this Court under Article 199 through Writ Petition No. 16187/2011 for quashing of FIR No. 531/2011. After hearing the parties the said writ petition was allowed vide judgment dated 7.6.2012 and the FIR was quashed having been registered with mala-fide intention and ulterior motive just to abuse process of law. Petitioner/ Respondent No. 2 as in the said writ petition was duly represented through his counsel namely Mehr Muhammad Saleem Akhtar, Advocate. Later on, petitioner filed CM. No. 4952/2012 under Section 12(2) of CPC in Writ Petition No. 16187/2011 against the order dated 7.6.2012 on the ground that the same was procured by practicing fraud and misrepresentation. The said petition under Section 12(2) of CPC was dismissed by the learned Single Judge of this Court in Chambers vide order dated 16.7.2012. Being aggrieved of the said order, petitioner preferred Intra Court Appeal No. 127/2012 which was also dismissed by this Court through the impugned order dated 24.7.2012.

2. Learned counsel for the petitioner has vehemently argued that the impugned order under review is passed without referring the judgment of the superior Court and without appreciating that order dated 7.6.2012 passed in Writ Petition No. 16187/2011 is contradictory to the order dated 11.4.2012 passed in Crl. Misc. No. 38-CB/2012; that the impugned order is against law and facts, untenable in law and liable to set aside.

3. Arguments heard. Record perused.

4. At the outset, it is pertinent to mention that vide Crl. Misc. No. 38-CB/2012 Manzoor Ahmad petitioner had sought cancellation of post arrest bail granted to Respondents No. 1 to 3 in case FIR No. 531/2011 which was disposed of vide order dated 11.4.2012. After having argued at some length, learned counsel for the petitioner did not press the said Crl. Misc. provided a direction be issued to the learned trial Court to conclude the trial expeditiously. In the light of his statement, the said Crl. Misc. was disposed of vide order dated 11.4.2012 with a direction to the trial Court to accelerate the trial and conclude the same as early as possible preferably within the period of 4 months.

5. In this regard, suffice to say that order dated 11.4.2012 was passed in presence of petitioner's counsel namely Mehr Muhammad Saleem Akhtar, Advocate. Similarly, order dated 7.6.2012 passed in Writ Petition No. 16187/2011 was also passed in presence of the petitioner's same counsel namely Mehr Muhammad Saleem Akhtar, Advocate. Record reveals that the learned counsel for the petitioner did not bother to point out to the learned Single Judge that any order dated 11.4.2012 had already been passed, therefore, petitioner's subsequent plea raised in the application under Section 12(2) of CPC that order dated 7.6.2012 was obtained through fraud or misrepresentation, is devoid of any force. Petitioner's application under Section 12 (2) of, CPC, therefore, was rightly dismissed by the learned Single Judge in Chambers vide order dated 16.7.2012. Keeping in view the above state of affairs, this Court had dismissed petitioner's lntra Court Appeal in limine through the impugned order dated 24.7.2012.

6. It is pertinent to mention that order dated 7.6.2012 recorded in WP-16187/201 1 quashing FIR No. 531/2011 was passed in exercise of constitutional jurisdiction. It is an established principle that lntra Court Appeal against the order of Single Judge of the High Court passed in constitutional jurisdiction under Article 199 of the Constitution quashing the FIR was not maintainable. It is so held by the Hon'ble Apex Court in the case of "Nawaz-ul-Haq Chowhan vs. The State (2003 SCMR 1597). Perhaps for this reason petitioner did not challenge the order dated 7.6.2012 passed by learned Single Judge through an Intra Court Appeal. However, he adopted a device to challenge the said order dated 16.7.2012 through an application under Section 12(2), CPC alleging that the same was obtained through fraud and misrepresentation, whereas he was duly represented by his counsel before learned Single Judge. His application under Section 12(2), CPC was accordingly dismissed by learned Single Judge vide order dated 16.7.2012. The said order was assailed by the petitioner through ICA No. 127/2012 which was also dismissed vide impugned order dated 24.7.2012. It is called in question through this review petition. It is pertinent to mention that the impugned order was passed taking into consideration the material fact that counsel for the petitioner Mehr Muhammad Saleem Akhtar, Advocate was present before the Court in proceedings of both the petitions, therefore, petitioner's plea that order 7.6.2012 passed by learned Single Judge in Chambers obtained through fraud and misrepresentation was devoid of any force.

7. It is established principle of law that like an appeal and revision, power to review is a statutory power and no Court or authority can exercise power of review unless it is expressly conferred by law. It may be expedient to refer to the provisions of Sections 369 and 561-A of the Code of Criminal Procedure, which read as under:--

Section 369.--"Save as otherwise provided by this Code or by any other law for the time being in force, or in the case of a High Court by the Letters Patent of such High Court, no Court, when it has signed its judgment, shall alter or review the same except to correct a clerical error."

Section 561-A.--"Saving of inherent power of High Court: Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such order as may be deemed necessary to give effect to any other under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice"

Bare reading of afore-quoted provisions makes it crystal clear that irrespective of the stipulation made therein, High Court in exercise of criminal jurisdiction is competent to exercise power of review conferred upon it by the Letters Patent besides its inherent power. The expression of inherent jurisdiction is also expounded in the case of: Sardar Ali vs. State (PLD 1987 Lah. 633), an extract whereof reads below:--

"The concept of inherent jurisdiction is a concept of the law of England, where there is no written constitution. There, most of the jurisdiction which the Courts exercise, including the supervisory jurisdiction of the High Court to issue writs is inherent jurisdiction. It appears therefore that Section 561A was enacted under the influence of the English (common) law."

1. Besides above, this Court may exercise the powers of review with reference to Order XLVII and Section 114 of the Civil Procedure Code. The general rule that power to review does not exist unless it is expressly conferred by law, however has got two well-established exceptions namely: (i) a Court has inherent jurisdiction to set aside judgment or order which it had delivered without jurisdiction; (ii) a Court or authority has the power to review an order or judgment obtained by fraud. Reliance be made upon: "Chief Election Commissioner vs. Muhammad Fazil (PLD 1975 SC 331). It is, therefore, obvious that apart from its power to correct error apparent on the face of record in exercise of its inherent jurisdiction, the High Court has power under Civil Procedure Code to review its order in exercise of its writ jurisdiction. Reliance be made upon: Hussain Bakhsh vs. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1).

In the light of afore-quoted principles of law, there is no cavil to the proposition that this Court has got ample power to review its order in the light of Letters Patent, inherent jurisdiction and the power conferred upon it in terms of Sections 369 and 561-A of, Cr.P.C, Section 114 and Order XLVII of CPC.

1. In this case, it is pertinent to mention that the impugned order does not suffer from any ambiguity or legal error. In the absence of any ambiguity or legal error petitioner has no case to seek review of the impugned order dated 24.7.2012. This petition, therefore, having no merit is dismissed in limine.

(R.A.) Petition dismissed.

PLJ 2013 Lahore 165 (DB) [Multan Bench Multan]

Present: Sagheer Ahmad Qadri and Muhammad Qasim Khan, JJ.

KHAN MUHAMMAD JAHANZEB KHAN KHICHI--Appellant

versus

ELECTION COMMISSION OF PAKISTAN through Secretary Election Commission, Islamabad and 12 others--Respondents

I.C.A. No. 16 in W.P. No. 868 of 2013, heard on 30.1.2013.

Representation of the People Act, 1976--

----S. 12(3)(6) & 11--Constitution of Pakistan, 1973, Arts. 199, 224 & 254--Constitutional petition--Nomination papers were submitted beyond time fixed outrightly refusal to entertain without passing any order or endorsement itself tantamount to non-exercise of jurisdiction vested in authority--Challenged declining of receipt of nomination papers--Candidate must submit nomination papers to returning officer--Validity--When returning officer has not exercised jurisdiction vested in accordance with law as provided u/S. 12(3)(6) of Act, and valuable right to contest election was denied to appellant, action of returning officer was declared as illegal, without any lawful justification and ultra vires--While allowing ICA order passed by single Judge was set aside--Nomination papers of the appellant which had already been submitted in compliance of order be scrutinized and all contesting candidates be provided opportunity to raise objection of filing of appeal if necessary accordingly--Election commission was directed that for purpose a fresh schedule be issued. [P. 171] A

Rana Asif Saeed, Advocate for Appellant.

Ch. Muhammad Bilal, Advocate for Respondents Nos. 5, 7 & 8.

Mr. Ali Raza Alvi, Advocate for Respondent No. 6.

Mr. Muhammad Saleem Shehzad, Advocate for Respondent No. 9.

Mian Muhammad Khalid, Advocate for Respondent No. 11.

Mr. Tariq Mustafa, Advocate for Respondent No. 12.

Respondent No. 13 in Person.

Nemo for Respondents Nos. 3, 4 and 10.

Sh. Ghias-ul-Haq, Standing Counsel.

Amir Ashfaq/Respondent No. 2/Returning Officer in Person.

Date of hearing: 30.1.2013.

Judgment

Sagheer Ahmed Qadri, J.--Appellant Khan Muhammad Jahanzeb Khan Khichi son of Muhammad Nawaz Khan Khichi alias Dilawar Khan Khichi resident of Fada Town Mailsi District Vehari has preferred this Intra Court Appeal against the order dated 24.1.2013 passed by the learned Single Judge in Chamber in Writ Petition filed by the appellant whereby he challenged the declining of the receipt of nomination papers to be filed by him as a candidate of Punjab Provincial Assembly in respect of Constituency No. PP-239 Vehari-VIII being held on 18.2.2013.

1. Facts necessary to dispose of this appeal are that Election Commission of Pakistan Respondent No. 1 vide Notification dated 11.1.2013 issued the programme/schedule for filing of the nomination papers as well as its further process in respect of bye-Election to be held on 18.2.2013 in respect of Constituency No. PP-239 Vehari-VIII. According to the schedule given in the said Notification dates for filing of nomination papers before the Returning Officer by the candidates were 21.1.2013 and 22.1.2013. The appellant according to the assertion in the Writ Petition approached the office of Returning Officer/Respondent No. 2 on 22.1.2013 at 3:54 PM but he without any lawful justification refused to allow him to submit the nomination papers accompanied by all relevant documents which according to the appellant procured and to be filed alongwith duly filled nomination papers. Feeling aggrieved due to above mentioned non-action of Respondent No. 2/the Returning Officer Writ Petition was filed on the ground that nomination papers were dully filled, accompanied by all the relevant papers like deposit slip of the security fee, copies of the voters list in respect of the appellant, proposer and seconder, hence, prayer was made that writ of mandamus be issued declaring the action on the part of Respondent No. 2 as without any lawful justification, illegal, ultra vires and direction be issued to allow the appellant to submit the nomination papers and after due process he be allowed to contest the election. The learned Single Judge in Chamber, however, vide impugned order dated 24.1.2013 dismissed the writ petition, hence, this ICA.

2. This Court at preliminary stage after hearing the learned counsel for the appellant admitted this ICA and passed the following order:--

"Learned counsel for the appellant contends that on the last date of filing of the nomination papers i.e. 22.1.2013, the appellant after completion of all formalities i.e. deposit of security in the bank, procuring the voter list for himself as well as that of proposors and seconders appeared before Respondent No. 2/Returning Officer for submission of his form within the time frame at 3:54 pm while time was to expire at 4:00 pm but the Returning Officer with malafide did not entertain his nomination papers, hence, he was illegally debarred from contesting election for member of Provincial Assembly in Constituency No. PP-239 Vehari-8; that the appellant filed Writ Petition giving all facts and submitted arguments supported by case laws reported as "Babar Khan Ghori versus Election Tribunal No. 1 for Sindh and 2 others" (1998 CLC 1304), "Intesar Hussain Bhatti Versus Vice-Chancellor, University of Punjab, Lahore and others D.I.G. etc." (2008 PSC 650) and "Intesar Hussain Bhatti versus Vice-Chancellor, University of Punjab, Lahore and others" (2008 PSC 670) that the factual & controversial questions only can be decided after recording evidence but at this stage prima-facie case was made out for interference by this Court on the basis of malafide on the part of Respondent No. 2/Returning Officer, Learned counsel referred photographs (Annexure-B) showing that appellant appeared before the Returning Officer in the same room, which is depicted from the photographs present at Pages 11 & 12 of this file; that if appellant is not allowed to participate in the election at this stage and he is not allowed to submit the nomination papers, it will tantamount to deny his right to contest the election; that learned Single Judge in Chamber did not consider all these aspects and only on the ground that these factual controversies can be decided after recording the evidence, dismissed the writ petition.

1. Points raised need consideration. Let pre-admission notice be issued to respondents for 30.1.2013 through Respondent No. 2, who shall make the arrangement for service to be effected on Respondents Nos. 3 to 13 by using all necessary measures, DPG, Vehari is also directed to get effected the service of Respondents Nos. 3 to 13, Officer to issue notices to Respondents Nos. 3 to 13 through special messenger.

2. To come up on 30.1.2013.

C.M. No. 1-2013.

1. Notice. In the meanwhile, Returning Officer is directed to entertain the nomination papers to be submitted by the appellant provisionally and continue the scrutiny process, objections etc, in accordance with law. It is, however, clarified that fate of submission of the nomination papers shall be subject to the final decision of this ICA."

2. Accordingly notices were issued to the respondents. Respondents Nos. 3 & 4 according to report submitted by Respondent No. 2 have withdrawn their nomination papers as they are not intending to contest the election. Today on behalf of Respondents Nos. 5, 7, 8, 9 and 12 no objection was raised on allowing this ICA subject that they would reserve their right to raise objection against filing of nomination papers by the appellant before the Returning Officer during the scrutiny process. Respondent No. 10 in spite of service did not put in appearance.

3. Learned counsel for the appellant argued that learned Single Judge in Chamber while passing the impugned order did not consider the factual aspects and application of law was not in accordance with the settled norms on the subject. Learned counsel while referring Section 12(6) of the Representation of the People Act, 1976 argued that it was mandatory for the Returning Officer to entertain the nomination papers if submitted, assign a serial number, make endorsement thereon along with the name of the person presenting it, date, time of its receipt and then further convey, if any scrutiny is to be conducted at a relevant time.

4. Learned counsel argued that as the appellant submitted the nomination papers within stipulated time but it was not entertained and received by the Returning Officer/Respondent No. 2, hence, his action and conduct is malafide. Had nomination papers were submitted beyond the time fixed outrightly its refusal to entertain without passing any order or endorsement itself tantamount to non-exercise of jurisdiction vested in authority. Learned counsel referred that during hearing before the Hon'ble single Judge in Chamber it was inquired from the Returning Officer/Respondent No. 2, if, appellant ever appeared before him for submission of nomination papers and it was totally denied by him, which fact has been recorded in the impugned order but today on the asking of this Court written reply is submitted showing that appellant appeared before him at 4:30 PM on 22.1.2013 and as the final list of candidates had already been conveyed to the Provincial Election Commissioner, hence, nomination papers were not entertained. It was contended that the conduct of Respondent No. 2 itself is evident from these two contradictory statements before the Court. As far as the factual controversies are concerned whether appellant appeared or otherwise within time or beyond time period fixed, in these circumstances, if any objection is raised by the rival candidates at the time of scrutiny or at latter stage these question can be resolved. While relying on "Babar Khan Ghori versus Election Tribunal No. 1 for Sindh and 2 others" (1998 CLC 1304) it was prayed that ICA be allowed impugned order passed by learned Single Judge in Chamber be set aside and direction be passed to Respondent No. 2 to entertain the nomination papers filed by the appellant, scrutinize the same and he be allowed to contest the election accordingly.

5. Learned Standing Counsel, however, on behalf of Respondents No. 1 & 2 agitated that Writ Petition was not maintainable as firstly appellant appeared before Respondent No. 2 after the expiry of the time fixed i.e. after 4:00 pm on 22.1.2013, hence, his nomination papers were not entertainable; secondly, as on one hand it is being agitated by the appellant that he appeared within time stipulated and it is being denied by the Returning Officer that he did not approach as alleged, hence, this controversial questions could have not been decided by the learned Single Judge in Chamber while disposing of the writ petition and to support his arguments he referred "Col. Shah Sadiq vs. Muhammad Ashiq and others" (2006 SCMR 276). It was further argued that learned Single Judge in Chamber has thrashed all these aspects and passed a well reasoned order which cannot be interfered in these circumstances. As far as photographs attached by the appellant along with this ICA are concerned, it is submitted that these are the fresh grounds raised at appellate stage although during the pendency of writ petition no such proof whatsoever was placed nor it was a ground urged hence, it cannot be looked into by this Court at this stage, hence, prayed that this ICA being without any merit is liable to be dismissed.

6. We have considered the arguments raised by learned counsel for the parties and have gone through the record.

7. Section 12 of the Representation of the People Act, 1976 deals with the filing of nomination papers. Under sub-sections (3) and (6) of the Act, ibid it is provided:--

"(3). Every nomination paper shall be delivered to the Returning Officer by the candidate in person and the Returning Officer shall acknowledge receipt of the nomination paper specifying the date and time of receipt.

(4). --------

(5). --------

(6). The Returning Officer shall assign a serial number to every nomination paper and endrose thereon the name of the person presenting it, and the date and time of its receipt, and inform such person of the time and place at which he shall hold scrutiny."

If the above mentioned provisions are seen, at a simple glance it is clear that a candidate must submit/deliver the nomination papers to the Returning Officer, who shall acknowledge its receipt specifying the date and time of the so submission. It is also mandatory for the Returning Officer that he shall assign a serial number to every nomination paper and then endorse the name of the person presenting it, date, time of its receipt and then inform the person, if necessary, the date and time of the scrutiny. Herein this case, although it is agitated by Respondent No. 2/Reutrning Officer that the nomination papers were submitted at 4:30 pm i.e. beyond the stipulated time on the last day of filing of the nomination papers but he clearly violated the mandatory provision of sub-sections (3) and (6) of Section 12 as he did not acknowledge the receipt of the nomination papers nor made any endorsement about date & time of so submission. Had the nomination papers been filed/submitted by the appellant beyond the specified time i.e. after 4:00 pm then the Returning Officer was duty bound to acknowledge its receipt, mention the time and date of so submission and then he might have rejected the same on the ground that it was submitted after the stipulated period. This exercise has not been done by the Returning Officer/Respondent No. 2 and at this stage when on one side it is claimed by the appellant that he submitted the nomination papers within time and Respondent No. 2 although made statement before the learned Single Judge in Chamber although it was not in writing but it is incorporated in the order that appellant never appeared. But today in this Court he has submitted that appellant appeared before him at 4:30 pm. The relevant paragraph of the order passed by learned Single Judge in Chamber is hereby reproduced:--

"Returning Officer, Respondent No. 2 along with learned Standing Counsel and the record is present. It is submitted on his behalf that the petitioner never approached and submitted any nomination papers."

Today when such a question was put to him, the Returning Officer/Respondent No. 2 submitted in writing :--

The conduct of Respondent No. 2 itself shows that he perhaps did not bring on record before the learned Single Judge in Chamber the factual aspects, hence, in these circumstances when Respondent No. 2 has not exercised the jurisdiction vested in him in accordance with law as provided under Section 12(3) and (6) of the Representation of the People Act, 1976 and the valuable right to contest election was denied to the appellant, therefore, the action of Respondent No. 2 is declared as illegal, without any lawful justification and ultra vires. Resultantly, while allowing this ICA impugned order dated 24.1.2013 passed by learned Single Judge in Chamber is setaside. It is directed that the nomination papers of the appellant which have already been submitted in compliance of this Court's order dated 28.1.2013, be scrutinized and all the contesting candidates be provided opportunity to raise objections and filing of appeal if necessary accordingly. Election Commission of Pakistan/Respondent No. 1 is also directed that for this purpose a fresh schedule under Section 11 of the Representation of the People Act, 1976 read with Section 108 thereof, Clause 4 Articles 224 and 254 of the Constitution of Islamic Republic of Pakistan, 1973 be issued immediately so that process of nomination papers, its scrutiny, objections, if any, appear, be completed and revised list of the candidates as required under Section 15 of the Act ibid be issued accordingly.

(R.A.) I.C.A. allowed

PLJ 2013 Lahore 172 (DB) [Multan Bench Multan]

Present: Ijaz Ahmed and Shahid Waheed, JJ.

MUHAMMAD AMEEN SHAHID--Appellant

versus

BOARD OF REVENUE, etc.--Respondents

R.F.A. Nos. 176 & 284 of 2011, heard on 28.11.2011.

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

----Ss. 4(1) & 18--Punjab Land Acquisition Rules, 1983, R. 10(1)(iii)(C)--Enhancement of compensation of acquired land--Compulsory land acquisition--Determination compensation of land--Award was announced after completion of codal formalities--Failed to discharge burden of proving his claim for enhancement of compensation--Validity--It is an established principle of law that in land acquisition cases a party interested for enhancement of compensation owe a duty to discharge burden to disprove determination of compensation by land acquisition collector by producing convincing and legal evidence--Period while determining market value was one prevalent during one year preceding to notification u/S. 4 of Land Acquisition Act--Appellant in order to discharge burden of proving issue and produced sale deeds--It is settled principle of law that transactions which take place subsequent to notification were not considered proper for determination of compensation--Appellant had failed to show that compensation fixed by collector was illegal or inadequate. [Pp. 175 & 176] A, B & D

2010 SCMR 1523, PLD 2002 SC 84 & 1979 CLC 523, rel.

Oral evidence--

----Oral statement of witness--Oral evidence is not sufficient as in land acquisition cases it is a consistent view that bald statements of witnesses produced by land owner were not sufficient to accept claim for higher price of acquired land. [P. 176] C

2010 SCMR 1523, rel.

Ch. Imtiaz Ahmad Zia, Advocate for Appellant.

Malik Muhammad Bashir Lakhesir, AAG for Respondents.

Date of hearing: 28.11.2012.

Judgment

Shahid Waheed, J.--This judgment will govern RFA No. 176/2011 and RFA 284/2011 as the same have arisen out of the judgment and decree dated 31.5.2011 passed by the learned Senior Civil Judge, Multan on a reference under Section 18 of the Land Acquisition Act, 1894. RFA No. 176/2011 has been filed by a land owner, Muhammad Ameen Shahid (hereinafter called the appellant) for the enhancement of compensation of acquired land whereas RFA No. 284/2011 has been filed by the Board of Revenue Punjab and three others (hereinafter referred to as the respondents) for maintaining the compensation assessed by the land Acquisition Collector in the award dated 5.11.2007.

1. Briefly, the facts of the case are that on 02.06.2005, the District Officer (Revenue)/District Collector, Multan issued Notification No. 171-DOR/LAC, published in the Punjab Government Gazette on 24.8.2005, under Section 4 of the Land Acquisition Act, 1894 for the acquisitions of land measuring 401 Kanals-14 Marlas situated in Mauza Dera Muhammdi and Mauza Samurana, Tehsil Multan City, District. Multan for the construction of a hospital. Thereafter, notification under Sections 17(4) and 6 of the Land Acquisition Act was issued by the Executive District Officer (Revenue), Multan and the same was published in the Punjab Gazette on 21.2.2007. The Deputy District Officer (Revenue)/ Land Acquisition Collector on 5.11.2007, after completing the formalities of law, declared the award under Section 11 of the Land Acquisition Act and determined compensation of land, that is, Rs. 800,000/- per acre of the land measuring 185 Kanals-01 Marla (agricultural land) situated in Mauza Dera Muhammadi and Rs. 1200,000/- per acre for the land measuring 47 Kanals-16 Marlas (residential land) situated in Mauza Dera Mohammadi alongwith 15% compulsory land acquisition charges, superstructure and trees. Consequent upon Award, being dissatisfied the appellant on 14.2.2008 filed an application under Section 18 of the Land Acquisition Act, 1894 before the Deputy District Officer (revenue)/Collector for sending the reference to the Civil Court for the determination of amount of compensation. After having received the reference, the learned Senior Civil Judge, Multan issued notices to the respondents. In response to notices, the respondents entered appearance before the learned trial Court; and contested the reference by filing replies. On pleadings of the parties, the learned trial Court framed the following issues:--

2. Whether the reference petitioner has no cause of action and locus standi to bring this reference? OPR

3. Whether the reference petitioner has no come to the Court with clean hands? OPR

4. Whether the petitioner is estopped to file this reference on account of his words and conduct? OPR

5. Whether the reference is time barred? OPR

6. Whether the reference is not maintainable in its present form? OPR

7. Whether the reference petitioner has already received the consideration? If so up to what extent in terms of money? OPR

8. Whether the reference petitioner has not been adequately compensated through impugned award? OPA

9. If above issue is proved in affirmative, what should be the actual extent of compensation to be paid to the reference petitioner? OPA

10. Relief.

11. After framing issues the learned trial Court called upon the parties to produce evidence in support of their respective claims. On behalf of the appellant his son Nadeem Shahid appeared as AW-1. In support of his version the appellant produced Jamshaid Ali (AW-2) and Rashid Jameel (AW-3). The appellant, in documentary evidence, tendered special power of attorney (Ex.A-1), award (Ex.A-2), sale-deed dated 9.7.2007 (Ex.A-3), sale-deed dated 12.7.2017 (Ex.A-4), sale-deed dated 27.6.2007 (Ex.A-5), sale-deed dated 20.6.2007 (Ex. A-6), copy of Mutation No. 7604 dated 6.5.2000 (Ex.A-7), Aks Shajra (Ex.A-8) and Letter No. 714/DOR/LAC dated 30.6.2007, (Mark-A). Conversely, the respondents in support of their version produced Muhammad Ahsan, Assistant (RW-1). The respondents also produced documentary evidence i.e. copy of acquisition proceedings (Ex. R-1), certified copy of valuation of property (Ex.R-2), copy of Aust Bai Yaksala 2004-05 of Mauza Dera Muhammadi (Ex.R-3), copy of Aust Bai Yaksala 25.8.2004 to 24.8.2005 of Mauza Dera Muhammadi (Ex.R-4), copy of Khasragirdawri (Ex.R-5), Minuets of the meeting of District Price Assessment Committee (Ex.R-6), copy of Notification No. 441/EDOR/LAC dated 26.12.2006 (Ex.R-7), copy of Letter No. 525/EDOR/LAC dated 5.3.2007 (Ex.R-8), copy of Letter No. 1930, 2006/3206-S.II dated 23.12.2006 (Ex.R-9), copy of appellant's application (Ex.R-10), copy of Letter No. 726/DOR/LAC dated 10.7.2007 (Ex.R-11) and copy of Letter No. 851-2007/767-S.II dated 5.7.2007 (Ex.R-12).

12. The learned trial Court after recording evidence partly accepted the reference and the compensation was enhanced from Rs. 5,000/- per Marla to Rs. 30,000/- per Marla along with 15 % compulsory charges and 8 % compound interest. The learned trial Court also held that the appellant was entitled to Rs. 400,000/- as costs of superstructure. Being aggrieved by the judgment and decree dated 31.5.2011 passed by the learned Senior Civil Judge the appellant as well the respondents have filed the appeals before this Court.

13. Learned counsel for the appellant in support of the present appeal submits that findings of the learned trial Court on Issue No. 8 are against law and facts; that the appellant produced different sale-deeds i.e. Ex.A-3 to Ex.A-6 for the determination of compensation of the land acquired but the learned trial Court did not take into consideration the sale-deeds particularly sale-deed (Ex.A-3) which shows that the property was sold at the rate of Rs. 300,000/- per Marla; and, that the value of the land at the time of acquisition was more than Rs. 250,000/- per Marla but the learned trial Court misread and non-read the evidence available on record and, therefore, fell in error while passing the impugned decree. Conversely, the learned Assistant Advocate General, Punjab contends that the compensation of the acquired land was rightly fixed in the award as the same was in consonance with the prevailing rates in the market at that time and therefore, the same could not be enhanced by the learned trial Court; that according to survey report of the revenue field staff the land acquired was Nall Nehri at the spot and, therefore, the District Price Assessment Committee rightly assessed the price of the land as agricultural; that the award was announced after completion of codal formalities; and, that the appellant has failed to discharge the burden of proving his claim for the enhancement of compensation.

14. We have heard the learned counsel for the appellant as well as the learned Assistant Advocate-General Punjab and perused the record.

15. It is an established principle of law that in land acquisition cases a party interested for enhancement of the compensation owe a duty to discharge the burden to disprove the determination of compensation by the Land Acquisition Collector in producing convincing and legal evidence. As per Rule 10(1)(iii)(c) of the Punjab Land Acquisition Rules, 1983, the relevant period while determining the market value is the one prevalent during the one year preceding to the notification under Section 4 of the Land Acquisition Act and in this case the said notification was published on 24.08.2005. The appellant in order to discharge the burden of proving Issue Nos. 7 and 8 produced sale-deed dated 9.07.2007 (Ex. A-3), sale-deed dated 12.7.2007 (Ex.A-4), sale-deed dated 27.6.2007 (Ex.A-5) and sale-deed dated 20.6.2007 (Ex.A-6). All these sale-deeds are not relevant as the same do not precede, the notification under Section 4 of the Land Acquisition Act. It is settled principle of law that the transactions which take place subsequent to the Notification under Section 4(1) of the Land Acquisition Act are not considered proper for determination of compensation and in this regard reference may be made to the case of Land Acquisition Collector vs. Ch. Muhammad Ali (1979 CLC 523). Besides the afore-stated reasons for not accepting the above said sale-deeds, we further add that the appellant did not take any step to prove the contents of these documentary evidence. It is to be noted that merely by tendering a document in evidence, it gets no evidentiary value unless its contents are proved according to law and for this purpose reference may be made to the case of Hyderabad Development Authority through M.D. Civic Center Hyderabad vs. Abdul Majeed and others (PLD 2002 SC 84). Now the only evidence which is left for consideration is oral statement of the witnesses. We are afraid that oral evidence is not sufficient as in the land acquisition cases it is a consistent view of the Hon'ble Supreme Court of Pakistan that me bald statements of witnesses produced by land owner are not sufficient to accept the claim for a higher price of acquired land. In this regard reliance may be made to the case of Abdul Sattar vs. Land Acquisition Collector Highway Department and others (2010 SCMR 1523). In view of above, the appellant failed to discharge the burden of proving Issue Nos. 7 and 8 and, therefore, findings to this effect recorded by the learned trial Court are reversed.

16. For the reasons stated above, we are of the view that the appellant has failed to show that the compensation fixed by the Land Acquisition Collector is illegal or inadequate. Accordingly, we dismiss RFA No. 176/2011 and accept RFA No. 284/2011 and set aside the judgment and decree dated 31.5.2011 passed by the learned Senior Civil Judge, Multan and upheld the award of the Land Acquisition Collector. No order as to costs.

(R.A.) RFA dismissed

PLJ 2013 Lahore 176 (DB)

Present: Sagheer Ahmad Qadri and Shahid Hameed Dar, JJ.

MUHAMMAD ALI ATHAR--Petitioner

versus

DIRECTOR GENERAL NAB PUNJAB, LAHORE and 2 others--Respondents

W.P. No. 3412 of 2012, decided on 26.9.2012.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 420, 468, 471, 409 & 109--Constitutional petition--Sought release on bail--Custody by NAB authorities being accused of reference--Ground of sickness--Suffering from terminal diseases including multi-infarcts dementia--Infirm person whose continued incarceration in jail effect on his life--Validity--Petitioner showed signs of fragility and poor health when taken into custody--Medical board constituted under a direction of High Court Medical Board medically examined the petitioner in light of investigations and they after through check-up and found that petitioner suffered from require constant care including periodical tests and treatment, round clock attendant special diet and availability of quick medical advice which were not available in jail--High Court considered petitioner entitled to bail and order accordingly--Bail was allowed. [PP. 177, 178 & 179] A, B, C & D

1997 SCMR 320 rel.

M/s. Naveed Rasool Mirza and Muhammad Anum Saleem, Advocates for Petitioner.

Mr. Haroon-ur-Rasheed Cheema, Additional Deputy Prosecutor General, NAB.

Mr. Adnan Shuja Butt, Advocate for Complainant-Bank.

Date of hearing: 26.9.2012.

Order

Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Muhammad Ali Athar (petitioner) seeks his release on bail, having been taken into custody by the NAB authorities on 01.02.2012, being accused of a reference filed by the NAB against him in relation to case FIR No. 21/10, dated 09.01.2010, under Sections 420, 468, 471, 409, 109, PPC, registered at Police Station Johar Town, Lahore. The accused-petitioner faced NAB Inquiry S.1 (9)HQ/787/NAB-P, under Sections 9 and 10 of the NAB Ordinance, 1999 since then. The instant petition has been moved on the sole ground of sickness, the petitioner allegedly suffers from.

1. It is stated that he is suffering from some terminal diseases including multi infarcts dementia with history of two brain haemorrhages leading to gradual memory loss besides having poor sphincter control. The vehemence shown is that petitioner is sick and an infirm person whose continued incarceration in jail has been imprinting hazardous effects on his life. Further submits that two different medical boards constituted at Services Hospital, Lahore and King Edward Medical University, Lahore, found the petitioner to be suffering from the aforesaid complex diseases and prospects of life of the petitioner increasingly diminished day by day.

2. Learned Additional Deputy Prosecutor General for NAB assisted by learned counsel for complainant have vehemently opposed the application with the submission that the petitioner did not suffer from any serious ailment entitling him to grant of bail.

3. We have heard learned counsel for the parties and perused law on the subject. The petitioner admittedly showed signs of fragility and poor health when taken into custody on 01.02.2012. A medical board constituted under a direction of this Court at Services Hospital, Lahore examined the petitioner on 12.07.2012 and formulated the following report:--

"\ He is diagnosed case of HTN + chronic smoker. He developed recent stroke leading to progressive deterioration in memory + behavioral disturbance. He also has poor sphincteric control.

\ He is a case of Multi-infarcts dementia that has lead to irreversible change to brain. (Clinical as well as investigations).

\ No active management is required right now.

\ However, he needs one attendant whole time for routine activities in jail."

Thereafter another medical board comprising senior medical-men, was constituted at Kind Edward Medical University, Lahore, the members whereof medically examined the petitioner on 09.08.2012 in the light of investigations including C.T.Brain, M.R.I. Brain etc. and they after thorough check-up, arrived at the following conclusions:--

"He is a case of Hypertension, chronic heavy smoker and had history of ischemic stroke with left sided weakness about a year ago and since then there is history of progressive memory deterioration, poor sphincter control and behavior disturbance.

The Board is of the opinion that Mr. Muhammad Ali Athar is suffering from Vascular Dementia due to multiple small cerebral infarcts.

The condition is likely to persist and may get worse with time. He needs good control of blood pressure, lipids, use anti platelets and abstain from smoking.

He needs Psychiatric opinion for control of hallucinations and behavior disturbance."

1. The above said reports categorically revealed that the diseases, the petitioner suffers from require constant care including periodical tests and treatment, a round the clock attendant, special diet and availability of quick medical advice etc. which are not available in jail. The age of the petitioner, 60 years, as stated by his learned counsel, renders him an elderly man faced with such an ailment which requires advance medical treatment, advice and psycho therapy. The jail is certainly not a place where such a facility can be extended to the petitioner. It has been held in Haji Meer Aftab's case (1997-SCMR-320) that once a person is found to be sick and infirm, it is not open to the Courts to quantify his sickness and infirmity. It looks essential from the medical reports reproduced hereinabove, that the patient must continue his medication with regular follow up for control of the serious nature of his ailment and health condition.

2. In light of the aforesaid circumstances, we consider the petitioner entitled to bail and order accordingly. He shall be released on bail subject to furnishing bail bonds in the sum of Rs. 5 lacs with two sureties each in the like amount to the satisfaction of learned trial Court.

(R.A.) Petition allowed

PLJ 2013 Lahore 179 [Multan Bench Multan]

Present: Rauf Ahmad Sheikh and Abdul Sami Khan, JJ.

KHALID SALEEM alias KHALDI--Petitioner

versus

STATE and another--Respondents

W.P. No. 11287 of 2012, decided on 20.11.2012.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 35(2), 384-B & 397--Constitution of Pakistan, 1973--Constitutional Petition--Convictions and sentences awarded in different criminal cases to run concurrently instead of consecutively--Question of--Whether High Court had jurisdiction to pass an order for considering sentences passed in different cases to run concurrently--Validity--Wherein a mandatory stipulation was put upon the Court passing sentence on accused person to include period of detention which he had served before earning his conviction--If period undergone by petitioner before conclusion of trial shall also be considered in stricto senso--Petition was accepted and sentences passed in different cases was ordered to run concurrently. [P. 181] A & B

Rana Muhammad Asif Saeed and Malik Imtiaz Haider Marth, Advocates for Petitioner.

Mr. Muhammad Saeed Ahmad Mumtaz, Additional Prosecutor-General for State.

Mirza Muhammad Saleem Baig, Additional Advocate-General for State.

Date of hearing: 20.11.2012.

Order

Through this petition the petitioner has prayed for considering his convictions and sentences awarded to him in different criminal cases to run concurrently instead of consecutively. He has also prayed to include the period of his detention in FIR No. 36/92 in his convictions and sentences.

1. The learned counsel for the petitioner contend that the law bestows to an accused a privilege to consider his entire convictions and sentences passed in different cases to run concurrently and the sentence in every cost should not be surpassed to life imprisonment due to the proviso (a) to sub-section (2) of Section 35, Cr.P.C. Even Section 397, Cr.P.C. also safeguard the basic and legal rights of an accused and any violation of the provisions of supra section would infringe the rights of accused which would cause great miscarriage of justice. It is not understandable that in case of any unspecified order the jail authority always consider the sentence of an accused to be consecutive. The petitioner was shut in jail from April 1993 to April 1996 and thereafter since 22.07.1998 to till now he is continuously behind the bars, therefore, in this way he has already served out whole of his sentences passed in different cases. The provisions of Section 382-B, Cr.P.C. also covers the period of his detention undergone by the petitioner in connection with case FIR No. 36/92. Apart from that the petitioner has already suffered inexorable mental agony and anguish for such a long continuous incarceration which was deprecated by the superior Courts of the country.

2. On the other hand the learned Additional Prosecutor-General and the learned Additional Advocate-General contend in unison that the petitioner can only avail benefit of Section 382-B, Cr.P.C. once pertaining to the single transaction of criminal act despite the fact that the he remained as under-trial prisoner in different cases and he could not patronize with the benefit of supra section in all the subsequent cases. According to the provisions of Section 397, Cr.P.C. the convictions and sentences of the petitioner would run only on the expiry of his earlier sentence. The petitioner is carrying a stretched background of criminal history which shows that he is a criminal bent of mind so he does not deserve any concessional treatment from this Court.

3. We have heard the learned counsel for the parties and also have gone through the relevant provisions of law invoked in this petition with their able assistance. It is an admitted fact that the petitioner remained behind the bars from April 1993 to April 1996 and thereafter he was again put into confinement on 27.07.1998 and since then he is under lock-up. According to the learned counsel for the petitioner if the detention of the petitioner is commutated in aggregate then he has already served out his entire sentences of imprisonment passed in all the criminal cases as detailed in Paragraph No. 1 of the instant writ petition. The pivotal question revolved around this matter is that whether this Court has jurisdiction to pass an order for considering the sentences passed against the petitioners in different cases to run concurrently or not. To meet out this proposition we minutely peruse the provisions of Section 397, Cr.P.C. wherein the procedure to observe sentences by an accused person in different cases has been provided. An unadorned reading of the section shows that an order regarding running of the sentences of an accused either consecutively or concurrently should be passed at the time of deciding the case or deciding the appeal and if for any reason or due to some inadvertent mistake the same is not passed, the matter could be settled by invoking the jurisdiction of High Court. To resolve the controversy which is subject-matter of this writ petition we have also carefully undergone the provision of proviso (a) to sub-section (2) of Section 35, Cr.P.C, wherein a categorical mandatory proviso imposed that in no way the sentences should not exceed for a longer period of fourteen years. Thus, in the light of above said provisions of law considering the sentences of the petitioner to run consecutive would not serve the interest of just rather the same would be contrary to the law discussed above.

4. The other point of ponder to be discussed here is that the petitioner has also prayed for considering the period of detention which he had undergone in connection with case FIR No. 36/92 because according to the petitioner that Respondent No. 2 did not consider the period till 01.05.2000. In this context we have gone through the provisions of Section 382-B, Cr.P.C. wherein a mandatory stipulation has been put upon the Court passing the sentence on an accused person to include the period of his detention which he had served before earning his conviction. Thus, it shall be in the fitness of thing if the period undergone by the petitioner before conclusion of trial in case FIR No. 36/92 shall also be considered in stricto senso.

5. For the discussion made above this writ petition is accepted and the sentences passed against the petitioner in different cases mentioned and detailed in Paragraph No. 1 of the instant writ petition is ordered to run concurrently. Respondent No. 2 is also directed to consider the period of detention undergone by the petitioner in connection with case FIR No. 36/92 as prayed for through this writ petition. He is further directed after commutating the period of the petitioner, to run concurrently, proceed with the matter strictly in accordance with law. This writ petition is disposed of in these terms.

(R.A.) Petition disposed of

PLJ 2013 Lahore 182

Present: Nasir Saeed Sheikh, J.

MUHAMMAD JAMEEL--Appellant

versus

IJAZ HASSAN AWAN, ADDL. DISTRICT JUDGE, PATTOKI and another--Respondents

F.A.O. No. 516 of 2012, decided on 15.1.2013.

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

----O. XXXVII, Rr. 1 & 2--Suit for recovery--Application for restoration of application for leave to appear and defend the suit, dismissal of--Counsel for appellant could not appear on account of death of some relative and because of long vacations of August--Validity--No specific relationship of deceased on account of whose death counsel did not appear nor even date of death of deceased relative was mentioned--Perhaps due to long vacations counsel for appellant did not appear before First Appellate Court and that was the only reason which was prominently readable from the application--No illegality was found in impugned order nor any such illegality was pointed out--FAO was dismissed. [Pp. 183 & 184] A & C

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

----O. XXXVII, Rr. 1 & 2--Suit for recovery--Application for restoration of application for leave to appear and defend the suit--Application was not supported by any affidavit of counsel--Validity--Even if the factum of non-submission of an affidavit by counsel for appellant did not appear before First Appellate Court--Concept of general adjournment was not brought to notice of ASJ and was not even mentioned in application moved for restoration of application for leave to appear and defend the suit--Reason was recorded in impugned order for dismissing application for restoration of application for leave to appear and defend the suit. [P. 183] B

Malik Akhtar Javaid, Advocate for Appellant.

Date of hearing: 15.1.2013.

Order

A suit for the recovery of Rs. 654,000/- under Order XXXVII Rules 1 & 2 of, CPC was instituted by the respondent against the appellant which was pending before the learned Additional District Judge Pattoki.

1. The appellant moved an application for leave to appear and defend the suit on 03.3.2012. This application was pending when on 16.8.2012 nobody appeared on behalf of the appellant before the learned Additional District Judge Pattoki and the application was dismissed for non prosecution.

2. An application for restoration of the application for leave to appear and defend the suit was moved on 10.9.2012 in which it was stated that the learned counsel for the appellant Malik Akhtar Javaid, Advocate did not appear on account of death of some relative and because of the long vacations of August. This application was dismissed by the learned Additional District Judge vide order dated 15.10.2012.

3. Through the instant F.A.O. the order dated 15.10.2012 passed by the learned Additional District Judge Pattoki has been assailed.

4. It is contended by the learned counsel for the appellant that he was the counsel for the appellant before the learned first appellate Court and he was on general adjournment granted by the High Court from 02.7.2012 to 05.9.2012. It is next contended by the learned counsel for the appellant that no affidavit controverting the contents of the application was sought from the respondent nor was it presented before the learned first appellate Court. It is next contended that the impugned order passed by the learned Additional District Judge has resulted into miscarriage of justice and therefore be set aside.

5. I have considered the arguments of the learned counsel for the appellant.

6. The application moved for restoration of the application for leave to appear and defend the suit presented on 10.9.2012 has been placed as Annexure-F and has been perused. No specific relationship of the deceased on account of whose death the learned counsel for the appellant did not appear before the learned Additional District Judge is stated therein nor even the date of the death of said relative is mentioned. It is further observed that perhaps due to the long vacations the learned counsel for the appellant did not appear before the learned first appellate Court and this is the only reason which is prominently readable from the application dated 10.9.2012. This application is not even supported by any affidavit of the learned counsel for the appellant. Even if the said factum of non submission of an affidavit by the learned counsel for the appellant is overlooked no reason has been mentioned as to why the appellant did not appear before the learned first appellate Court. The concept of general adjournment was not brought to the notice of the learned Additional District Judge and was not even mentioned in the application moved for restoration of the application for leave to appear and defend the suit. The learned Additional District Judge recorded the following reason in the impugned order dated 15.10.2012 for dismissing the application moved by the appellant for restoration of the application for leave to appear and defend the suit:

"I have gong (gone) through the record and considered the arguments. According to order passed my learned predecessor dated 16.08.2012 due to non appearance of defendant his application for leave to appear and. defend was dismissed in default of prosecution and he was proceeded against ex-parte. Said ground recorded in the petition for restoration of application to appear and defend the suit is that on the date of hearing learned counsel for the defendant could not appear due to death of some relative. However, no reason for the absence of defendant himself has been recorded in the application. Moreover, the said application is not supported by any affidavit of the defendant in support of this petition. So, in the given circumstances I have no reason to accept the application and the same is hereby dismissed. Now to come up for ex-parte evidence of the plaintiff be put up on 24.10.2012."

1. It is a case of sheer negligence by both the learned counsel for the appellant as well as by the appellant. No illegality is found in the impugned order dated 15.10.2012 nor any such illegality is pointed out. The order passed by the learned Additional District Judge is based upon sound reasons as per record of the case. The instant F.A.O. being devoid of any merits is dismissed in limine.

(R.A.) F.A.O. dismissed

PLJ 2013 Lahore 184

Present: Muhammad Ameer Bhatti, J.

NAVEED-UL-HASSAN--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, GUJRAT and another--Respondents

W.P. No. 9137 of 2009, decided on 30.11.2012.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Suit for maintenance for a period from date of institution--Entitlement of past maintenance granted by First Appellate Court--Misreading and non-reading of evidence in judgment--Validity--Whereby First Appellate Court granted past maintenance for last one and half years which stands established from the record of case--Contention of counsel for petitioner was hereby repelled being pointless--Petition was dismissed. [P. 185] A

Mr. Muhammad Ijaz Anwar, Advocate for Petitioner.

Mr. Azmat Ullah Warriach, Advocate for Respondents.

Date of hearing: 30.11.2012.

Order

Through this constitutional petition, the petitioner has challenged the judgment and decree passed by the learned Addl. District judge/Respondent No. 1, whereby the learned Judge while reversing the finding of the learned trial Court, decreed the suit of the respondent for maintenance for a period of one and half years from the date of institution of the suit proceedings, period of "lddat" at the rate of Rs. 2500/- per month. Learned counsel for the petitioner contends that the respondent has failed to bring on record any tangible evidence regarding the entitlement of the past maintenance granted by the learned first appellate Court. Hence, the judgment impugned is based on misreading and non-reading of evidence and not tenable in the eye of law.

1. I have considered the arguments of the learned counsel for the petitioner and also gone through the record of the case with the assistance of the learned counsel for the petitioner. I do not find any misreading and non-reading of the evidence in the judgment of the learned first appellate Court, whereby he granted the past maintenance for the last one and half years which stands established from the record of the case. Therefore, the judgment of the learned first appellate Court is in line with the evidence available on record. Thus, the contention of the learned counsel for the petitioner is hereby repelled being pointless. This petition is dismissed having no merits.

(R.A.) Petition dismissed

PLJ 2013 Lahore 185 [Multan Bench Multan]

Present: Maulvi Anwar-ul-Haq, J.

Khawaja JAMEEL AHMAD--Petitioner

versus

JUDGE FAMILY COURT, MULTAN and another--Respondents

W.P. No. 6269 of 2004, decided on 26.11.2004.

Punjab Family Courts Act, 1964 (XXXV of 1964)--

----S. 10(4)--Constitution of Pakistan, 1973--Art. 199--Constitutional Petition--Dissolution of marriage on ground of Khulla--Validity of order--Decree was made subject to relinquishment of dower and maintenance--Matter of benefits in matter of dissolution of marriage on the ground of Khulla was appealable. [P. 186] A

PLD 1987 Lah. 420, ref.

Ch. Sarfraz Ahmad Zia, Advocate for Petitioner.

Date of hearing: 26.11.2004.

Order

A suit filed by Respondent No. 2 against the petitioner for dissolution of marriage on the ground of Khula was decreed by the learned Judge Family Court in terms of Section 10(4) of the Family Court Act, 1964 on 29.9.2004. The decree was made subject to relinquishment of dower and maintenance and consequently the suit filed for the said two reliefs by the respondent lady were also dismissed on the same date.

1. Learned counsel for the petitioner contends that it was plea of the petitioner that he has paid the dower and some other benefits to the lady and the learned Judge Family Court has not decided the said question in accordance with law.

2. Without making any comments on the said plea of the learned counsel, I find that the matter of the condition/benefits in the matter of dissolution of marriage on the ground of Khula is appealable. Reference be made to the case of "Muhammad Sanaullah versus Muhammad Ilyas, Senior Civil Judge/Family Court Judge, Toba Tek Singh and 2 others" (P.L.D. 1987 Lahore 420). The writ petition is accordingly disposed of with the observation that if deemed proper, the petitioner may file first appeal against the decision of the question of consideration for Khula.

(R.A.) Petition disposed of

PLJ 2013 Lahore 186 [Multan Bench Multan]

Present: Muhammad Qasim Khan, J.

MUHAMMAD ASHFAQ--Petitioner

versus

ADDITIONAL INSPECTOR GENERAL OF POLICE (INVESTIGATION) PUNJAB, LAHORE and 3 others--Respondents

W.P. No. 9719 of 2012, decided on 9.10.2012.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 173--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Change of investigation--Re-investigation of case was not tenable in law--Transfer of investigation was challenged through writ petition--Reinvestigation of a criminal case even after submission of final report u/S. 173, Cr.P.C.--Validity--Where claim of complainant that during investigation the I.O. did not record statement of witnesses, wrongly entered statement of any of witness u/S. 161, Cr.P.C. either complainant omitted to produce any document before I.O. or I.O. did not consider such material before making his final opinion or that report u/S. 173, Cr.P.C. was in any way defective as it did not carry all material tendered by complainant at time of investigation--Unless any of ingredient was alleged by complainant pointing serious flaw in investigation which was not attributable to him alone, it might not be justified to allow reinvestigation of the case during subsistence of earlier report u/S. 173, Cr.P.C. where upon, trial Court had not only taken cognizance by framing of charge but had also summoned accused who had been declared innocent during first investigation and attempt of complainant desiring summoning of co-accused with allegation of having hatched conspiracy had been turned down--Order of Addl. I.G. of Police would be a futile effort, as trial Court had to proceed with trial on basis of report already submitted u/S. 173, Cr.P.C., whereupon cognizance had been taken by it and charge had been framed--Petition was allowed. [Pp. 189 & 190] A & B

PLD 2007 SC 31 & 2004 SCMR 1924, rel. 2006 SCMR 373, ref.

Sardar Mehboob, Advocate for Petitioner.

Mr. Mubashir Latif Gill, Assistant Advocate General, Mr. Tahir Mehmood, Advocate for Respondents.

Date of hearing: 9.10.2012.

Order

Briefly the facts are that Ghulam Jeelani (Respondent No. 4) got lodged an FIR No. 176/2011 on 06.05.2011 under Sections 302/34/109, PPC at Police Station Makhdoom Rasheed, Multan, alleging that the present petitioner and others inflicted injuries to Khizar Hayat who succumbed to these injuries. During investigation the present petitioner and Muhammad Usman were declared innocent and report under Section 173, Cr.P.C. was submitted only to the extent of Muhammad Hashim and Safdar Hussain co-accused. However, on the application of Respondent No. 4/complainant the learned trial Court also summoned the petitioner and Muhammad Usman to face trial vide order dated 06.01.2012. After this summoning order, Respondent No. 4/complainant filed an application before the Additional Inspector General of Police (Investigation) Punjab, Lahore for change of investigation and ultimately pursuant to letter/order dated 13.03.2012 the investigation has been entrusted to RIB Multan Region, Multan.

1. The above letter/order dated 13.03.2012 with regard to transfer of investigation, has been assailed through the instant writ petition, on the ground that the final report under Section 173, Cr.P.C. had already been submitted by the police before the Court concerned, wherein, although the present petitioner and one co-accused namely Muhammad Usman were not cited us accused, but subsequently on the application of Respondent No. 4/complainant these two were also summoned by the learned trial Court to face the trial, as such, the cognizance has been taken by the learned trial Court, attempt on the part of respondent/complainant for reinvestigation of the case was not tenable in law. The learned counsel contended that during investigation the complainant produced all the witnesses before the Investigating Officer and after complete and thorough investigation the petitioner and Muhammad Usman were declared innocent and others were sent to Court; even the persons declared innocent by the I.O. have been summoned by the trial Court; all the material is available before the Court of trial, application of Respondent No. 4/complainant to the extent, of summoning of accused of Section 109, PPC has already been dismissed, therefore, the impugned order of transfer of investigation is not backed by any law. In support of his submissions learned counsel for the petitioner placed reliance on the case "Muhammad Nasir Cheema versus Mazhar Javaid and others" (PLD 2007 SC 31), "Muhammad Ashfaq versus Amir Zaman and others" (2004 SCMR 1924) and "Liaqat Ali Virk versus Inspector General of Police, Lahore and 8 others" (PLD 2010 Lahore 224).

2. The learned Assistant Advocate General assisted by learned counsel for Respondent No. 4/complainant opposed this application by contending that reinvestigation of a criminal case even after submission of final report under Section 173, Cr.P.C. was not barred by any law, therefore, the order of Respondent No. 1/Additional Inspector General of Police (Investigation) Punjab, Lahore, does not violate any provision of law.

3. I have heard the arguments of learned counsel for the parties and perused the available record with their assistance.

4. There is no dispute that in the light of verdict by Hon'ble Supreme Court of Pakistan in the case "Bahadur Khan versus Muhammad Azam" (2006 SCMR 373), no legal bar exists for reinvestigation of a criminal case even after submission of final report under Section 173, Cr.P.C. but in the same judgment the apex Court held that "System of reinvestigation is a recent innovation which is always taken up at the instance of influential people for obtaining favourable reports, which in no way assists the Court in coming to a correct conclusion, rather they create more complications in the way of administration of justice--Such system of reinvestigation and successive investigations, therefore, was disapproved". The above reproduced observation of the apex Court disapproving the process of repeated investigations had made it obligatory for the Court to consider each case in its own peculiar perspective and reinvestigation may not be allowed in every case.

5. Here in this case it is no where the claim of Respondent No. 4/complainant that during investigation the Investigating Officer did not record the statement of any one of his witnesses, wrongly entered the statement of any of the witness under Section 161, Cr.P.C., either the Respondent No. 4/ complainant himself omitted to produce any document before the Investigating Officer or the Investigating Officer did not consider such material before making his final opinion, or that report under Section 173, Cr.P.C., was in any way defective as it did not carry all the material tendered by the complainant at the time of investigation. Unless any of the above ingredient is alleged by the complainant pointing serious flaw in the investigation, which otherwise is not attributable to him alone, it may not be justified to allow reinvestigation of the case during subsistence of earlier report under Section 173, Cr.P.C., whereupon, the learned trial Court has not only taken cognizance by framing of the charge but had also summoned the accused who had been declared innocent during the first investigation and attempt of the complainant desiring summoning of the co-accused with the allegation of having hatched conspiracy, has been turned down. Reliance is placed on the case "Muhammad Nasir Cheema versus Mazhar Javaid and others" (PLD 2007 SC 31), wherein the Hon'ble Supreme Court settled the guidelines by holding that "As investigation report (challan) had already reached trial Court, where trial had already commenced, changing of investigation or ordering further investigation in the matter thereafter was an exercise unsustainable in law." In this context the judgment of Hon'ble Supreme Court of Pakistan in the case "Muhammad Ashfaq versus Amir Zaman and others" (2004 SCMR 1924) further clarifies the position, wherein it has been conclusively held that "Apprehension of the complainant was misconceived as trial Court could proceed with the trial on the basis of the report already submitted under S.173, Cr.P.C.--Trial Court was not bound by the opinion given in the final report or expressed in the report being submitted pursuant to re-investigation and it was always the judicial consideration of the material collected by police which weighed with the Court while issuing process." In the light of above reproduced judgment of the, apex Court, the order of Respondent No. 1/Additional Inspector General of Police (Investigation) Punjab Lahore would be a futile effort, as the trial Court has to proceed with the trial on the basis of the report already submitted under Section 173, Cr.P.C., whereupon, the cognizance has already been taken by it and charge has been framed. Consequently, this writ is allowed, the order/letter dated 13.3.2012 passed by Respondent No. 1/Additional Inspector General of Police (Investigation) Punjab Lahore is hereby set-aside.

(R.A.) Petition allowed

PLJ 2013 Lahore 190

Present: Shahid Waheed, J.

NAWAB DIN etc.--Petitioners

versus

MUHAMMAD ARSHAD--Respondent

C.R. No. 713-D of 1999, decided on 19.6.2012.

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

----O. XLI, R. 31--Writing of agreement to sell and pronote reflected heavy doubt on version of respondent--Suit for specific performance of agreement--Agreement to sell and pronote were got executed through fraud and torture--Marginal witnesses of pronote and agreement to sell--Essential to make comparative examination of documentary evidence and oral evidence--Petitioner was on illiterate person and was 70/80 years old at time of execution of alleged pronote and agreement to sell--Validity--In case of transaction with old age and illiterate persons and parda nasheen ladies the burden to prove would always be an beneficiary of transaction--Beneficiary would not only be required to prove genuineness of transaction but also that transaction was effected by such person with his free will and consent having independent advice, that there was no undue influence and coercion on such person--Entire evidence if considered then it would reveal that same was not worthy of reliance--Neither pronote nor agreement to sell can be held validly executed documents--Proof of execution was with regard to writing, signature of the parties as well as author but it had nothing to do with proof of contents of document--Where execution of document is denied then heavy burden lies on beneficiary of document not only to prove execution of document but also its contents--Respondent had failed to prove contents of document and fact that agreement to sell and promote were executed with free will. [Pp. 196 & 197] A, B & C

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

----O. XLI, R. 31--Agreement to sell--Stamp paper for agreement to sell was purchased in Lahore, agreement was allegedly executed in Lahore whereas the parties, witnesses and agreement had no nexus with Lahore--Validity--Agreement was allegedly executed and transfer of title was purportedly agreed to be effected--Respondent had failed to explain reason behind unusual circumstances--No cause of action against petitioner and therefore, was not entitled to specific performance of agreement. [P. 197] D

2006 YLR 2446, ref.

Mr. Muhammad Aslam Zar and Ch. Sarfraz Ahmad Zia, Advocate for Petitioner.

Khawaja Qaisar Butt, Advocate for Respondent.

Date of hearing: 19.6.2012.

Judgment

This civil revision is directed against the judgment and decree dated 02.11.1999 passed by the learned Additional District Judge, Layyah who while accepting the appeal of the respondent reversed the judgment and decree dated 19.03.1996 of the learned Senior Civil Judge, Layyah whereby the respondent's suit was dismissed.

1. Briefly the facts of the case are that Muhammad Arshad (Respondent) instituted a suit against Nawab Din for specific performance of agreement dated 13.10.1988 (Exh.P2) to sell the suit land and it was stated in the plaint that Nawab Din, in connivance with some other persons through mis-representation obtained Rs. 118,000/- from the respondent for getting the land allotted in his favour in a Live Stock Scheme; that on coming to know the fraud committed by Nawab Din, the respondent firstly approached the Police at Layyah and then at Lahore for redressal of his grievance and on their refusal a constitutional petition i.e W.P. No. 3382/1988 (Exh.D3) was moved before this Court wherein vide order dated 04.09.1988 (Exh.P4) direction was issued to the Station House Officer (S.H.O) Police Station New Anarkali, Lahore to hear the respondent and thereafter to proceed with the matter strictly in accordance with law and in pursuance thereof F.I.R No. 232/1988 (Exh.D1) was registered under Sections 406/420/468/471 PPC; that consequent upon registration of above said FIR, Nawab Din contacted the respondent and admitted the liability by executing a pronote dated 24.09.1988 (Exh.P1) and receipt of pronote (Exh.P1/B) as a surety for the return of Rs. 118,000/- within a period of one week; that after the expiry of one week, the respondent demanded the money but Nawab Din did not return the amount and in lieu thereof offered the suit land and executed agreement to sell dated 13.10.1988 (Exh.P2) whereby Nawab Din had agreed to execute sale-deed in favour of the respondent in respect of suit land; and, that on the refusal of Nawab Din, the respondent instituted the suit for specific performance.

2. In response to summons, issued by the learned trial Court, Nawab Din appeared and submitted the contesting written statement stating therein that the respondent by taking undue benefit of his simplicity, old age and illiteracy took him to Lahore on the pretext of getting allotment of land but on reaching Lahore, he was handed over to Police which after torturing him firstly got executed pronote and subsequently on 08.10.1988 arrested him and during custody, the respondent in connivance with the Police got executed agreement to sell (Exh.P2) under coercion; and, that the agreement to sell (Exh.P2) is without consideration and bogus.

3. On the pleading of the parties, the learned trial Court framed the following issues:--

ISSUES:

1. Whether the defendant validly executed a pronote in plaintiff's favour? OPP

2. Whether the defendant entered into an agreement to sell to transfer the suit land to the plaintiff and an agreement to sell dated 13.10.1988 was validly executed in this regard? OPP

3. Whether the plaintiff is entitled to the specific performance of the alleged agreement to sell or for an alternate decree of recovery of Rs. 118,000/-? OPP

3-A. Whether the plaintiff has no cause of action against the defendant? OPD

1. Relief?

2. The parties to the suit produced oral as well as documentary evidence in support of their respective claims. The respondent, Muhammad Arshad, appeared as PW-1 and got examined Bashir Ahmad as PW-2, Sakhi Muhammad PW-3 and Muhammad Ashraf as PW-4. In documentary evidence Muhammad Arshad/respondent produced pronote dated 24.09.1988 (Exh.P1), receipt of pronote (Exh.P1/B), agreement to sell dated 13.10.1988 (Exh.P2) copy of register Haqdaran Zamin 1988-89 (Exh.P3), copy of order dated 04.09.1988 passed in W.P. No. 3382/1988 (Exh.P4).

3. Conversely Nawab Din appeared before the learned trial Court as DW-2 and produced Abdul Qayyum (Constable) as DW-1 and Ghulam Akbar as DW-3. In documentary evidence Nawab Din tendered copy of FIR No. 232/1988 dated 08.10.1988 (Exh.D1), copy of W.P.No. 364/1988 (Exh.D2), copy of W.P.No. 3382/1988 (Exh.D3), copy of order dated 04.09.1988 passed in W.P.No. 3382/1988 (Exh.D4) and copy of order dated 14.03.1992 (Exh.D5).

4. The learned trial Court after recording evidence and granting opportunity of hearing to the parties, dismissed the suit with special compensatory cost of Rs. 25,000/- vide judgment and decree dated 19.03.1996. Feeling aggrieved, the respondent preferred an appeal before the learned Additional District Judge, Layyah. During the pendency of appeal, Nawab Din died and, therefore, his legal heirs i.e the present petitioners were impleaded. The learned Additional District Judge vide judgment and decree dated 02.11.1999 accepted the appeal and decreed the suit. Hence, this revision petition.

5. Learned counsel for the petitioners contends that the learned Additional District Judge while passing the impugned judgment and decree disregarded the mandatory provision of Order XLI, Rule 31 C.P.C. by not deciding all the controverted points/issues; that the judgment passed by the learned Additional District Judge suffers from mis-reading and non-reading of evidence; that writing of agreement to sell and pronote at hotel in Lahore reflects heavy doubt on the version of respondent; that there is no reference in the agreement to sell that Nawab Din had already received the consideration amount through pronote; and, that the evidence led by the respondent was contrary to the facts stated in the pleadings.

6. The learned counsel for the respondent submits that Nawab Din admitted the execution of agreement to sell and, therefore, the learned Additional District Judge has rightly decreed the suit. In this regard he placed reliance on Bashir Ahmad Vs. Muhammad Luqman' (1999 SCMR 378), Mst. Baswar Sultan Vs. Mst. Adeeba Alvi' (2002 SCMR 326) andMst. Gul Shahnaz Vs. Abdul Qayyum Soomro and another' (PLD 2002 Karachi 333).

7. I have heard learned counsel for the parties and perused the record with their able assistance.

8. The fate of Issue No. 3, that is, whether the plaintiff is entitled to specific performance of agreement to sell (Exh.P2) hinges upon the findings of Issues No. 1 and 2. The learned Trial Court has decided Issues No. 1 and 2 against the plaintiff-respondent, Muhammad Arshad, and declared that the pronote (Exh.P1) and agreement to sell (Exh.P2) were got executed through fraud and torture. These findings were reversed by the learned Additional District Judge and held that the plaintiff-respondent had got examined all the marginal witnesses of pronote (Exh.P1) and agreement to sell (Exh.P2) who had proved their execution. In order to understand the facts and circumstances under which the pronote dated 24.09.1988 (Exh.P1) and agreement to sell dated 13.10.1988 (Exh.P2) were executed, it is essential to make comparative examination of the documentary evidence and oral evidence. In this regard, the first documentary evidence is copy of Writ Petition No. 364/1988 (Exh.D2) which was moved by one Barkat Ali against: (i) S.H.O Police Station City, Layyah (ii) S.P. Layyah (iii) Respondent (Muhammad Arshad); and (iv) Abdul Ghani wherein prayer was made that a direction be issued to the police for not causing any harassment. In this petition Barkat Ali stated that on 20.05.1986 the respondent, Muhammad Arshad, borrowed Rs. 250,000/- from him for expenses in relation to allotment for chak with a clear understanding that after allotment he would give two lots each consisting of 12« acres of land. It was further agreed that in case of no allotment, the respondent Muhammad Arshad, would pay back Rs. 275,000/- to Barkat Ali. It is stated in the petition that Muhammad Arshad neither got allotted the land in his name nor returned the amount and in this state of affair, Muhammad Arshad in connivance with the S.H.O. Police Station City, Layyah got summoned Barkat Ali and one Muhammad Sharif, son-in-law of Nawab Din, and started exerting pressure to withdraw civil suit from the Civil Court, Lahore. It would be proper to reproduce Paragraphs No. 8 and 12 of the above said writ petition:-

"8. The Respondent No. 3 with the connivance of Respondent No. 1 had got summoned, the petitioner and one Muhammad Sharif, a witness to the giving of Rs. 250,000/- in Police Station Layyah, on 06.03.1988, where the petitioner and Muhammad Sharif were abused and the petitioner was threatened to withdraw civil suit from Civil Court, Lahore. The petitioner refused, to do so and in consequence thereof the petitioner and Muhammad Sharif aforesaid were made to sit in the police station from 06.03.1988 to 11.03.1988.

1. That the petitioner and Muhammad Sharif were illegally confined for 6-7 days by Respondent No. 1 without registration of any case against the petitioner. In this way, the independence of the petitioner, provided to him under the Constitution of Islamic Republic of Pakistan has been jeopardized and injured. This act of Respondent No. 1 is quite illegal and clear-cut favour to Respondent No. 3".

Thereafter, Muhammad Arshad moved this Court through W.P. No. 3382/1988 (Exh.D3) wherein the prayer was made that S.H.O be directed to register the case against the accused. Muhammad Arshad in this petition has stated the following facts:

"That the petitioner who is a resident of District Layyah was known to one Barkat Ali son of Muhammad Hassan Caste Rajput resident of Ward No. 8 Near Police Station Leih, Tehsil and District Layyah at present resident of 38-Nabha Road, Lahore. Moreover, one Muhammad Sharif son of Khushi Muhammad caste Arain resident of Bet Diwan Tehsil and District Layyah was also known to the petitioner. Both of them approached the petitioner at Al-Mehran Hotel, New Anarkali, Lahore with the offer that the Punjab Government is granting a lease of land to the cultivators under the scheme known as `Live Stock Scheme'. It was further given understanding by them that if petitioner pays them Rs. 118,000/- they can manage allotment of land equivalent to 90 lots which can be allocated among interested persons and no further expenses will be involved. The petitioner being a simple villager was thus defrauded having paid this amount to them in Al-Mehran Hotel, New Anarkali, Lahore in the presence of one Bashir Ahmad S/O Noor Muhammad and Muhammad Boota S/O Ghulam Muhammad. The letter dated 25.07.1987 showing this payment is appended as Annexure-B. The petitioner collected this amount from various interested persons 22

The above said writ petition (Exh.D3) was disposed of vide order dated 04.09.1988 (Exh.D4) with a direction to the S.H.O Police Station New Anarkali, Lahore to hear the respondent and thereafter proceed in the matter in accordance with law. In compliance with order dated 04.09.1988 (Exh.D4) an FIR No. 232/1988 (Exh.D-1) was registered under Sections 406/420/468/471 PPC wherein slight modification was made in the facts which were stated in the W.P. No. 3382/1988 (Exh.D-3) and an attempt was made to rope in Nawab Din in the case. The cumulative reading of W.P. No. 364/1988 (Exh.D2), W.P. No. 3382/1988 (Exh.D-3) and FIR No. 232/1988 (Exh.D1) shows that the respondent, Muhammad Arshad, neither paid sum of Rs. 118,000/- to Nawab Din nor Nawab Din promised the respondent to get the land allotted in any government scheme. Contrary to above stated documentary evidence, the respondent, Muhammad Arshad, in his plaint and thereaftrer while appearing as PW-1 stated that Nawab Din had fraudulently obtained Rs. 118,000/- from him for the purposes of allotment of land in Live Stock Scheme. The statements made by Abdul Qayyum, Constable (DW1) and Nawab Din (DW2) are in line with the facts stated in the above referred documentary evidence. The juxtapositional reading of above stated documentary evidence and oral evidence leads to conclusion that (i) the assertions made in the plaint and statement made by the PWs are false; and (ii) that pronote dated 24.09.1988 (Ex.P1) and agreement to sell dated 13.10.1988 (Exh.P2) are without consideration and void as the respondent, Muhammad Arshad, got executed the above said documents in connivance with Police through coercion and fraud.

1. It is an admitted fact that Nawab Din was an illiterate person and was 70/80 years old at the time of execution of alleged pronote (Exh.P1) and agreement to sell dated 13.10.1988 (Exh.P2). The law on the subject have become settled that in case of transaction with old age and illiterate persons and Parda Nasheen' ladies the burden to prove would always be on the beneficiary of the transaction. The beneficiary would not only be required to prove the genuineness of the transaction but also that the transaction was effected by such person with his free will and consent having independent advice; that there was no undue influence and coercion on such person. The entire evidence of the respondent if considered in this perspective then it would reveal that the same is not worthy of reliance. Nawab Din in his written statement categorically denied the execution of pronote (Exh.P1) and agreement to sell (Exh.P2). In these circumstances, the respondent was required to prove that Nawab Din executed the above said agreement with his free will and after having received independent advice. None of the witnesses who were produced by the respondent in support of his claim has stated a single word that Nawab Din executed the pronote and agreement to sell after having received independent advice. On the contrary, as stated above, the respondent got executed the agreement to sell and pronote through coercion and mis-representation and in connivance with the local police. In these circumstances, neither pronote (Exh.P1) nor the agreement to sell (Exh.P2) can be held validly executed documents. Hence, the reliance of the learned counsel for the respondent on the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case ofBashir Ahmad Vs. Muhammad Luqman' (1999 SCMR 378), Baswar Sultan Vs. Mst.Adeeba Alvi' (2002 SCMR 326) and the judgment ofMst.Gul Shahnaz Vs. Abdul Qayyum Soomro and another' (PLD 2002 Karachi 333) are inapt as Nawab Din did not admit the execution of pronote (Exh.P1) and agreement to sell (Exh.P2).

2. The salient features of alleged agreement to sell dated 13.10.1988 (Exh.P2) are that: (a) Nawab Din was in need of money so as to meet his domestic requirement and, therefore, he agreed to sell the suit land to the respondent for a consideration of Rs. 118,000/- which he received from the respondent in presence of the witnesses namely Muhammad Sharif (PW-4) and Bashir Ahmad (PW-2); (b) the possession of the suit land was handed over to the respondent; (c) Nawab Din was bound to execute the sale-deed in favour of the respondent up to 23.11.1988; (d) agreement to sell was written by Muhammad Aslam, Wasiqa Navees, Neela Gumbad, Lahore; (c) if, Nawab Din refused to execute the sale-deed in favour of the respondent, then the respondent would be entitled to get double the amount of Rs. 118,000/-. All the witnesses which were produced by the respondent in support of his claim have stated nothing with regard to the above said contents of the agreement to sell dated 13.10.1988 (Exh.P2). The proof of execution is with regard to the writing, signature of the parties as well as of the author but it has nothing to do with the proof of the contents of the document. In such like cases where execution of document is denied by other party, then heavy burden lies on the beneficiary of the document, not only to prove the execution of the document but also its contents. Besides, he is also required to prove that the such document was executed by the person with his free will, without any undue influence and coercion. In the instant case, the respondent has failed to prove the contents of the document and the fact that Nawab Din executed the agreement to sell (Exh.P2) and pronote (Exh.P1) with his free will.

3. The other startling aspect of the case is that the stamp paper for the agreement to sell (Exh.P2) was purchased in Lahore, agreement was also allegedly executed in Lahore whereas the parties, witnesses and the subject matter of the agreement have no nexus with Lahore. I also find it very strange that according to the respondent/plaintiff, he had paid the total consideration of Rs. 11,8,000/- but he did not obtain any conveyance deed. This is even more surprising that the agreement was allegedly executed on 13.10.1988 and the transfer of title was purportedly agreed to be effected on 23.11.1988. Learned counsel for the respondent failed to explain the reason behind these unusual circumstances: The respondent/plaintiff, for reasons noted above, has failed to prove Issue Nos. 1 and 2 and, therefore, he has no cause of action against the petitioners/Nawab Din and, therefore, is not entitled to the specific performance of the agreement (Exh. P2). In this regard reference may be made to the case of `Muhammad Aslam vs. Musarrat Iqbal Akhtar' (2006 YLR 2446).

4. In view of above, the judgment and decree dated 2.11.1999 passed by the learned Additional District Judge, Layyah is set aside and resultantly the judgment and decree dated 19.3.1996 passed by the learned Senior Civil Judge, Layyah stands restored with no order as to cost.

(R.A.) Revision accepted

PLJ 2013 Lahore 198 [Multan Bench Multan]

Present: Abdul Sami Khan, J.

SABAL MAI--Petitioner

Versus

DEPUTY INSPECTOR-GENERAL OF POLICE and 5 others--Respondents

W.P. No. 11268 of 2012, decided on 16.10.2012.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 176--Constitution of Pakistan, 1973--Art. 199--Constitutional Petition--Inquiry by magistrate into cause of death--Registration of criminal case against delinquent police officials--Suicide under policy custody--Question of maintainability of writ petition--Cause of death was partial hanging--Report of chemical examiner--Validity--Report of medical board was also obtained who gave final opinion that cause of death was partial hanging--Report from forensic Histopathologist was obtained who opined that injury to hyoid bone was ante-mortem--Deceased was not tortured to death rather his death occurred due to partial hinging--Matter had got no force and same was dismissed. [P. 200] A & B

Sahibzada Muhammad Nadeem Fareed, Advocate for Petitioner.

Mr. Aziz-ur-Rehman, Assistant Advocate-General for Respondents.

Sh. Abdul Samad, Advocate for Respondent No. 6.

Date of hearing: 16.10.12012.

Order

Through this petition the petitioner has prayed for registration of a criminal case against the delinquent police officials, i.e. Respondent Nos. 4 to 6 and has also challenged the vires of the inquiry report conducted by the learned Magistrate Section 30, Jampur.

1. It has been contended by the learned counsel for the petitioner that during an incident the police officials lost their lives and thereafter the police officials has abducted the son of the petitioner namely Karam Hussain and later on he was done to death in the police custody but now the police is trying to give colour to said death of the petitioner's son to be a suicide. It is not possible that a man can commit suicide with a tap which is three and a half feet in height. Further submits that the inquiry conducted in this matter by the learned Magistrate but he has failed to apply judicial mind in this context by agreeing with the plea taken by the police. Respondents No. 4 to 6 have committed a heinous offence by taking the life of petitioner's son so a direction be issued to the District Police Officer, Rajanpur to get register a criminal case under the relevant provisions of law. The son of the petitioner was severely tortured by the hands of the police and to save their skin the police had committed his murder. There was no occasion for the said Kareem Hussain son of the petitioner to commit suicide under police custody.

2. On the other hand the learned Assistant Advocate-General assisted by the learned counsel for Respondent No. 6 has raised objection to the maintainability of the instant petition and submits that the inquiry conducted by the Magistrate Section 30, Jampur was conducted under Section 176, Cr.P.C. and a judicial order can be assailed through a revision petition and not through writ petition. The learned counsel for Respondent No. 6 relied upon PLD 2007 Lahore 176 and PLD 1978 Lahore 1259.

3. I have heard the learned counsel for the petitioner, the learned Assistant Advocate-General and the learned counsel for Respondent No. 6 and have also gone through the documents appended with this petition. Before taking up and appreciating the merits of this case this Court deems it appropriate to first take up the question of maintainability of this writ petitioner because the learned counsel for Respondent No. 6 has laid a great emphasize on the argument that the conclusions of inquiry were following a judicial inquiry and against a judicial verdict the writ petition is not maintainable rather the same could be questioned through a revision petition before the Court of Session. To better appreciate this pivotal point Section 176, Cr.P.C. is reproduce herein under:--

4. Inquiry by Magistrate into cause of death.--(1) When any person dies while in the custody of the police, the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in Section 174, clauses (a), (b) and (c) of sub-section (1), any Magistrate so empowered, may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police-officer, and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence. The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any of the manners hereinafter prescribed according to the circumstances of the case."

From the bare perusal of the supra section it has become crystal clear that the word "judicial" is nowhere, mentioned and only word of inquiry is written therein for the purpose inquiry it can be considered executive in nature, hence can be challenged in writ jurisdiction.

1. So far as the remaining arguments raised at bar by the learned counsel for the parties are concerned, without going into deeper appreciation of the evidence or material available in this case, it has been observed that according to the Post-mortem Examination Report: there is no mark of violence on the body of the deceased Kareem Hussain and only mark of ligature has been found around the neck so the contention of the learned counsel for the petitioner that the said Kareem Hussain was tortured by the police to death has no force. It has also been observed that regarding the death of Kareem Hussain in police custody a judicial inquiry was ordered which was carried out by learned Judicial Magistrate Section 30, Jampur and according to the report and the judicial inquiry conducted by the Magistrate Section 30, Jampur the petitioner has committed suicide and the cause of death was partial hanging. In this regard report of the Chemical Examiner, the report of Medical Board were also obtained who gave their final opinion that the cause of death is partial hanging. The report from Forensic Histopathologist was also obtained who opined that the injury to the hyoid bone is ante-mortem.

2. For what has been discussed above it is crystal clear that the deceased was not tortured to death rather his death occurred due to partial hanging. In this view of the matter this petition has got no force and the same is dismissed as such. However, the petitioner may file a private complaint, if so advise.

(R.A.) Petition dismissed

PLJ 2013 Lahore 200

Present: Syed Asghar Haider, J.

AHMAD KHAN--Petitioner

versus

GUL MUHAMMAD--Respondent

C.R. No. 2064 of 2006, decided on 14.4.2009.

Punjab Pre-emption Act, 1991--

----S. 13--Suit for possession through pre-emption--Dismissal of--Concurrent findings--Sacrosanct with pleadings of plaintiff and witnesses produced and documentary evidence was tendered--Error was merely typographical--Omission had not impleded deposition of witnesses--Plaintiff fulfills procedural requirements of time, date, place and date of dispatch of notice--Contradictions of plaintiff's witnesses qua time were very minor and of no consequence, because they were in conformity with overall time frame mentioned in plaint--It was clear unambiguous and fully corroborated contents of plaint, thus plaintiff had adequately discharged onus and established performance of talabs as ordained by law and enunciated in S. 13 of Punjab Pre-emption Act--There were concurrent findings of facts on all material issues by Courts below--No grave misreading or non-reading of evidence was pointed out--Discrepancy was mere typographical and that too, was no corner stone or edifice of the judgment--Petition was dismissed. [P. 202] A & B

Mr. Akhtar Javed, Advocate for Petitioner.

Mian Muhammad Nawaz, Advocate for Respondent.

Date of hearing: 14.4.2009.

Order

The respondent filed a suit for possession through pre-emption qua the disputed land, the petitioner filed written statement, of the divergent pleadings of the parties, issues were framed, they were put to trial and thereafter the suit decreed. Aggrieved thereof, the petitioner filed an appeal, the same was dismissed hence the present petition.

1. The learned counsel for the petitioners contended that Talabs as ordained under Section 13 of the Punjab Pre-emption Act, 1991 were not performed in accordance with law, especially date of notice of Talab-e-Muathibat was not mentioned in the pleadings and therefore, the same is fatal to the cause of the respondent, as the time, date, place and notice of Talab-e-Muathibat is required to be incorporated in the plaint with other requirements. To fortify his contentions, the learned counsel referred to Mst. Bashiran Begum vs. Nazar Hussain and another (PLD 2008 SC 559). To further advance his arguments the learned counsel stated that the impugned judgment is also full of errors of fact as DW-2 has been referred to as PW3, therefore, there is error apparent on the face of record and this alone vitiates the entire proceedings. Reference Sardar Muhammad Nawaz vs. Mst. Firdous Begum (2008 SCMR 404).

2. The learned counsel for the respondent submitted that there are concurrent findings of fact by the trial Court and the lower appellate Court, which are sacrosanct with the pleadings of the plaintiff and the witnesses produced and the documentary evidence tendered, therefore, the petition is not competent.

3. Heard.

4. The controversy in hand has been addressed by the learned trial Court by framing six issues, the plaintiff/respondent produced PW1 to PW3, PW4, PW5 and PW6 and also produced Ex. P1 to Ex. P4, the petitioner also produced DW1 and Ex. D1 and Ex. D2 only. The learned counsel for the petitioner laid much emphasis on the deposition of Atta Muhammad as DW2 mentioned in the impugned judgment as PW-3, it also is worthwhile to mention here that no one appeared as DW2, as Ghulam Hussain himself appeared as a solitary witnesses for the defendant as DW1. As far as the error is concerned, it is merely typographical as the impugned judgment has taken stock of the entire deposition made by the witnesses but mis-describing him, this omission has not impeded the deposition of the witnesses produced, as it was appraised and deciphered on its own strength and weakness, alongwith other witnesses. In the present matter, the record and depositions made clearly reflect that the plaint fulfils the procedural requirements of time, date, place and date of dispatch of notice, they have been clearly mentioned. The contradictions referred to in respect of plaintiff's witnesses qua time are very minor and of no consequence, because they are in conformity with overall the time frame mentioned in the plaint. The lower appellate Court and the trial Court, both appraised concurrently the material produced by the rival contestants, I also have perused the evidence produced by the plaintiff, it is clear, unambiguous and fully corroborates the contents of the plaint, thus the plaintiff has adequately discharged onus and established performance of talabs, as ordained by law and enunciated in Section 13 of Punjab Pre-emption Act, 1991. Even otherwise, there are concurrent findings of facts on all material issues by the learned trial Court and the lower appellate Court, no grave misreading or non-reading of evidence has been pointed out, the discrepancy referred to is mere typographical and that too, is also not the corner stone or edifice of the impugned judgment, there is no material illegality or irregularity, the precedents referred to by the learned counsel have no bearing upon the proceedings, therefore, this petition has no merits and is dismissed.

(R.A.) Petition dismissed

PLJ 2013 Lahore 203 [Multan Bench Multan]

Present: Rauf Ahmad Sheikh, J.

SAFDAR HUSSAIN--Petitioner

versus

SUB-DIVISIONAL CANAL OFFICER, OLD SINDHNAI, TEHSIL KABIRWALA, DISTRICT KHANEWAL and 2 others--Respondents

W.P. No. 14549 of 2011, heard on 6.11.2012.

Canal and Drainge Act, 1873 (VIII of 1873)--

----S. 68-A--Civil Procedure Code, (V of 1908), O.XXXIX, Rr. 1 & 2--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Restoration of dismantled water course--Khall was illegally demolished--Matter was subjudice before Civil Court--Merely an internal khall so no sanction was required for same--Marks of demolished Khall and Pakki Pullies were present at spot--Unauthorized interruption or disturbance in watercourse order cannot be interfered with through exercise of constitutional jurisdiction u/Art. 199 of Constitution--Neither khall was being constructed on the land exclusively owned by petitioner nor any approval was required for internal arrangement made by farmers--Validity--Matter was not only sub-judice before Civil Court but appeals filed by father of petitioner and others were pending before DCO and their application for grant of interim injunction had been dismissed--Respondent had been deprived of means of irrigation and contention that crop would be spoiled was not without substance--He would suffer irreparable loss if khall was not stored--A co-owner cannot deprive the other co-owner of means of irrigation per force--Petition was dismissed. [P. 205] A

Ch. Khalid Mahmood Arain, Advocate for Petitioner.

Rao Muhammad Saleem Khan, Advocate for Respondent 3.

Mr. Zafar Ullah Khan Khakwani, AAG for remaining Respondents.

Date of hearing: 6.11.2012.

Judgment

The petitioner has assailed the vires of order dated 27.07.2011 passed by the SDCO/Respondent No. 1 under Section 68-A of the Canal &. Drainage Act, 1873 on an application of Respondent No. 3 for restoration of the dismantled watercourse from Khasra No. 84/6-7-8 of Haveily Mubarik Shah Tehsil Kabirwala, District Khanewal. The Respondent No. 3 had contended that he has been using the "Khal" for irrigation of his land for a long time but Bashir Ahmad, Manzoor Hussain, Ashiq Hussain and Haji Zafar etc. had demolished the same per force and resultantly he has been deprived of the means of irrigation and there was an apprehension that his crops would be spoiled. After spot inspection and local inquiry, the impugned order was passed.

1. The learned counsel for the petitioner has contended that as per observations made in Para No. 3 of the impugned order, the disputed "Khal" had never been sanctioned and as such no order for its restoration could be passed; that the land in dispute is owned by the petitioner, which was lawfully gifted to him by his father namely Manzoor Hussain and as such neither the Respondent No. 4 nor the Canal Authorities have any right to excavate the watercourse from it that under Section 68-A of the Canal and Drainage Act, 1873 old watercourse is to be restored on the original site and the new watercourse cannot be excavated; that the old watercourse came under the road and was demolished by the revenue authorities so neither it cannot be restored nor new "Khal" can be excavated from the land of the petitioner and that the appeals pending before the DCO or the civil suits pending before the civil Courts have no bearing on the outcome of this petition because the petitioner is not party to the litigation or proceedings. In support of the contentions raised reliance is placed on PLD 1992 Lahore 370 and 1994 CLC 1178 (Lahore).

2. On the other hand, the learned AAG and the learned counsel for the Respondent No. 3 have contended that the local inquiry revealed that the "Khal" was illegally demolished and the Respondent No. 3 has been deprived of the means of irrigation; that the marks of demolished "Khal" and "Pakki Pullies" (small bridges) are still present at the spot, which prove an illegal act on part of the petitioner; that the matter is subjudice before the civil Court and the appeals filed by the father of the petitioner and other relatives are also pending before the DCO and that their petitions for grant of ad-interim injunction have already been disallowed. The learned counsel for Respondent No. 3 further contended that infact the land comprising of Khasra No. 84/6-7-8 forms part of the joint Khata so Respondent No. 3 is owner of every inch of the same being co-sharer in the Khata and as such he has the right to get the "Khal" restored from it and that it was merely an internal "Khal" so no sanction was required for the same.

3. The plan maintained by the Irrigation Department dearly reveals that the "Khal" was on the line of Khasra No. 84/6-7-8 and 13-14-15. The Respondent No. 1 not only held the local inquiry but also inspected the spot and found that the marks of demolished "Khal" and "Pakki Pullies" were present at the spot. The notice was issued to all the concerned, they were heard and thereafter, the impugned order was passed by the competent authority by exercising the jurisdiction vested in it under the law. The impugned order is neither without jurisdiction nor illegal. It is clear from the report that the internal "Khal" leading from the sanctioned watercourse to the land of the Respondent No. 3 has been demolished and he has been deprived of the means of irrigation. Section 68-A of the Canal and Drainage Act, 1873 was added with the sole object to provide interim relief to the farmers in case of unauthorized interruption or disturbance in the watercourses. An order under above mentioned provisions of law is final and cannot be interfered with through exercise of constitutional jurisdiction under Art. 199 of the Constitution of Islamic Republic of Pakistan, 1973 unless it is proved that the same is patently illegal or the concerned land owners have not been afforded an opportunity of hearing or that the requisite inquiry was not conducted by the Canal Officer before passing the order. The Respondent No. 1 not only afforded full opportunity of hearing to the concerned parties but also inspected the spot and verified the position existing thereon. Neither the "Khal" is. being constructed on the land exclusively owned by the petitioner nor any approval was required for internal arrangement made by the farmers. The petitioner

may agitate his contention before the concerned authorities during hearing of the main petition under Section 68 of the Canal and Drainage Act, 1873. The case law cited at the bar by the learned counsel for the petitioner is not applicable on the facts of the present petition. It is also an admitted fact that the matter is not only sub-judice before the civil Court but appeals filed by the father of the petitioner and others are also pending before the DCO and their applications for grant of interim injunction have been dismissed. It is clear from the order that Respondent No. 3 has been deprived of the means of irrigation and his contention that his crops would be spoiled, is not without substance. He would suffer irreparable loss if the "Khal" is not restored. A co-owner cannot deprive the other co-owner of the means of irrigation per force. For the reasons supra, the petition is without merit and the same is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2013 Lahore 206 [Multan Bench Multan]

Present: Rauf Ahmad Sheikh, J.

Mst. RUKHSANA BIBI--Petitioner

versus

S.H.O., POLICE STATION CANTT., MULTAN and 3 others--Respondents

W.P. No. 13182 of 2012, decided on 11.10.2012.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1908), S. 491--Constitutional petition--Issuance of warrant for search, recovery and production of minor--Jurisdiction for whole of province of Punjab--Place of removal was immaterial for purposes of jurisdiction to hear petition u/S. 491, Cr.P.C. or habeas petition u/Art. 199 of Constitution--Principal seat--No cavil to proposition that all areas in the province of Punjab fall within appellate criminal jurisdiction of High Court but different areas were attached with principal seat and Benches of High Court keeping in view the convenience of litigant public--Petition u/S. 491, Cr.P.C. can be filed before Court in appellate criminal jurisdiction of which detenue was illegally or improperly detained--Where minor was detained was attached with principal seat so it was expedient for ends of justice that petition be filed at principal seat--High Court Multan Bench had authorized Sessions Judges in Province of Punjab to exercise powers u/S. 491, Cr.P.C. in respect of areas falling within their jurisdiction--Petition might file application before Sessions Judge or at principal seat if so as desired--Petition was disposed of. [P. 207] A, B & C

Mr. Nadeem Ahmad Tarar, Advocate for Petitioner.

Date of hearing: 11.10.212.

Order

The petitioner has prayed for issuance of a warrant for search, recovery and production of minor Iman Kalsoom aged about one year. It is contended that the minor was born out of the wedlock between her and Respondent No. 2. It is alleged that on 7.10.2012, the Respondents Nos. 2 to 4 forcibly snatched the minor from the petitioner, who was living in the house of her brother at Multan and had removed her to Chak No. 35/36-ML District Bhakkar, where she has been kept under improper custody.

1. The learned counsel for the petitioner has contended that this Court has the jurisdiction for whole of the Province of Punjab and that the minor was removed from Multan so the petition may be filed before this Bench. In support of the contention raised, reliance is placed on 2011 PSC(Crl.) 100 (Supreme Court of Pakistan).

2. The minor is allegedly detained in Chak No. 35/36-ML Tehsil Kaloor Kot District Bhakkar. District Bhakkar is attached with the Principal Seat of this Court. There is no cavil to the proposition that all the areas in the Province of Punjab fall within the appellate criminal jurisdiction of this Court but different areas are attached with the Principal Seat and Benches of this Court keeping in view the convenience of the litigant public. A petition under Section 491, Cr.P.C., can be filed before the Court in the appellate criminal jurisdiction of which the detenue is illegally or improperly detained. As the place, where the minor is allegedly improperly detained, is attached with the Principal Seat so it is expedient for the ends of justice that the petition be filed at the Principal Seat. The place of removal is immaterial for the purposes of jurisdiction to hear the petition under Section 491, Cr.P.C. or habeas petition under Article 199 of the Constitution. The case law cited at the bar by the learned counsel for the petitioner is not applicable on the facts of the present petition. Even otherwise this Court has authorized the Sessions Judges/Additional Sessions Judges in the Province of Punjab to exercise the powers under Section 491, Cr.P.C., vide Notifications Nos.58/RHC dated 18.4.2002, 351-JOB(1)VI.F.6 dated 23.11.2009 and 114-JOB(1).VI.F.6 dated 20.5.2010 in respect of the areas falling within their jurisdiction. The petitioner may file the application before the learned Sessions Judge, Bhakkar or at the Principal Seat, if so as desired/advised. With this observation, the petition stands disposed of.

(R.A.) Petition disposed of

PLJ 2013 Lahore 207 [Multan Bench Multan]

Present: Amin-ud-din Khan, J.

ALLAH DITTA through L.Rs.--Petitioners

versus

ALI MUHAMMAD through L.Rs. & others--Respondents

C.R. No. 561 of 1992, heard on 30.10.2012.

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

----S. 115--Civil revision--Property was transferred 11 years ago through registered gift deeds--Fraud was alleged--When plaintiff challenged registered document, therefore, he was bound to prove case--When fraud was alleged, so he was bound under law to plead fraud with full detail and prove pleadings--Witnesses contradicted his pleadings--Compromise affidavits to effect--No objection if civil revision was accepted--Validity--As a person praying Court to declare a document or a transaction to be null and void, therefore, plaintiff was duty bound to be specific in stand when he alleged fraud and to plead same with full detail--Plaintiff had not pleaded alleged fraud with detail, as was required under law--After transfer of suit property in favor of petitioner it was preempted and filing of suit--When plaintiff was lumberdar and a literate person, suit was certainly time barred--It is settled now that when on material point alleged by a witness in his examination-in-chief if he was not cross examined that portion of his statement will be presumed to have been admitted by other party--Statement of attorney of plaintiff cannot be read in affirmative evidence of plaintiff because defendant had to rebut evidence led by plaintiff and when plaintiff did not appear in person or through attorney, in affirmative evidence defendant was not having opportunity at that time to rebut his statement--Onus shifts only in such like cases when plaintiff appeared before Court and made a statement on oath that he had not got registered impugned document--When plaintiff opted not to appear in affirmative evidence and not to produce his attorney in affirmative evidence, then there was no question of shifting onus of proof--Civil revision was allowed. [Pp. 209, 210 & 211] A, B, C, D, E & F

Mr. Tahir Mehmood, Advocate for Petitioner.

Ex-parte for Respondent No. 1(iii) to 3.

Date of hearing: 30.10.2012.

Judgment

Through this civil revision, petitioner has challenged the judgment & decree dated 4.10.1990 passed by learned Addl: District Judge, Muzaffargarh, whereby the appeal filed by the petitioner was dismissed and the judgment & decree dated 01.04.1989 passed by learned Civil Judge, Muzaffargarh, whereby the suit for declaration filed by Respondent No. 1/plaintiff was decreed.

1. The petitioner has filed C.M.No. 1593 of 2010 stating therein that Respondents No. 1(i) and (ii) have compromised with the petitioner and they have sworn their affidavits to this effect, which have been appended with this application. Even Mr. Sarwar Awan, Advocate appeared on behalf of said respondents and states that he has no objection if the civil revision is accepted. All other respondents have been proceeded ex-parte vide order dated 4.3.2011.

2. Learned counsel for the petitioner-defendant states that the suit property was transferred through registered documents; that actually the petitioner purchased the suit property and to avoid from pre-emption it was shown as a gift, otherwise he paid the price and through registered document it was transferred in favour of petitioner; that the documents were registered on 3.8.1977, whereas the suit in hand was filed on 11.1.1987. Learned counsel further states that when plaintiff has challenged the registered document, therefore he was bound under the law to prove the case pleaded by him but he miserably failed to prove the same and that when fraud was alleged by him, so he was bound under the law to plead the fraud with full detail and prove his pleadings as well; that his witnesses also contradict his pleadings but the learned Courts below failed to exercise the jurisdiction vested in them by law and misinterpreted the evidence led by the parties and the findings recorded by the Courts below are result of misreading and non reading the material evidence available on the file. It has been further argued that as the suit was clearly time barred and Issue No. 5-A was also framed but the findings of learned Courts below are absolutely wrong on this point also.

3. I have heard the learned counsel for the petitioner at full length and also gone through the evidence available on the file.

4. It is admitted position that the plaintiff was a Lumberdar, as this fact has been admitted by his witnesses, who deposed that he is an educated person. Whereas, Allah Ditta petitioner-defendant was admittedly an illiterate person. Even the possession of defendant/ petitioner upon the suit land has been admitted by P.W-3. He admitted that the suit property was transferred in the name of defendant 11 years ago through registered gift deeds. This transfer was pre-empted by Mukhtiar Ahmad through a pre-emption suit filed on 9.09.1978 but subsequently according to the petitioner-defendant, said Mukhtiar Ahmad taking some money from him withdrew that suit, copy of plaint is Ex.D-1 and copy of statement and order of the Court for withdrawal of that pre-emption suit is Ex.D-2. The registered documents have some presumptions in accordance with, the Registration Act. The plaintiff is admittedly an educated person and also Lumberdar of Mouza. He has alleged fraud. For alleging the fraud, there are certain principles to plead the same with full detail. As a person praying the Court to declare a document or a transaction to be null and void, therefore the plaintiff is duty bound to be specific in the stand when he alleges fraud and also to plead the same with full detail. The plaintiff has not pleaded the alleged fraud in detail, as was required under the law. The witness of plaintiff, P.W-3 has admitted the possession of transferee i.e. petitioner-defendant over the suit property. Further, after the transfer of suit property in favour of petitioner it was pre-empted and filing of suit in hand after 10 years of registered document in the above circumstances when the plaintiff is Lumberdar and a literate person, the suit was certainly time barred. Even the witnesses of plaintiff have not deposed that when the transaction came in their knowledge, as P.W-3 stated that 11 years ago the land was transferred through a registered document. On material points the witnesses of petitioner and even the petitioner have not been cross-examined by the plaintiff. It is settled now that when on material point alleged by a witness in his examination in chief if he is not cross-examined, that portion of his statement will be presumed to have been admitted by the other party.

5. The most important factor in this case which has been ignored by the Courts below is that plaintiff himself never appeared in the trial of the case as his own witness, as it was a case of allegation of fraud played upon him. P.W-4, his son, appeared as his Attorney and there is nothing mentioned that why his father himself is not appearing before the Court as a witness. Further, the Attorney of plaintiff appeared after the close of evidence of defendant, in affirmative as well as rebuttal evidence. The statement of Attorney of plaintiff can be read only in the rebuttal evidence, as the same has been got recorded after the close of defendant's evidence. Therefore, the statement of P.W-4 who is Attorney of plaintiff cannot be read in affirmative evidence of plaintiff because I am clear in my mind that defendant has to rebut the evidence led by the plaintiff and when the plaintiff did not appear in person or through attorney, in affirmative evidence the defendant was not having opportunity at that time to rebut his statement. As in this case the fraud has been alleged by the plaintiff, therefore the onus to prove the pleading was upon him what he has pleaded. The onus shifts only in such like cases when plaintiff appears before the Court and makes a statement on oath that he has not got registered the impugned document. In this case, when the plaintiff, opted not to appear in affirmative evidence and not to produce his Attorney in affirmative evidence, then there is no question of shifting the onus of proof. In these circumstances, both the Courts below by ignoring this legal position fell in error while recording the findings against the petitioner-defendant. The findings recorded by the Courts below are absolutely against the law and evidence available on the file and also the result of unaware with the settled principles of law as well as non-reading the evidence led by petitioner-defendant.

6. For the foregoing reasons, this civil revision is allowed and the impugned judgments & decrees passed by two Courts below are hereby set aside. Resultantly, the suit filed by Respondent No. 1/plaintiff shall stand dismissed with costs throughout.

(R.A.) Petition allowed

PLJ 2013 Lahore 211 [Rawalpindi Bench Rawalpindi]

Present: Ali Baqar Najafi, J.

Raja MUHAMMAD NASIR KHAN--Petitioner

versus

ACTING VICE CHANCELLOR, etc.--Respondents

W.P. No. 2431 of 2012, decided on 12.12.2012.

University of Wah Act, 2009--

----Ss. 2(p)(q), 12 & 18(1)(a)--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Post of vice-chancellor--Question of appointment--Recommendation of search committee can appoint a person as V.C. for specified period--Validity--If office of V.C. was vacant or he was absent or unable to perform of functions due to illness, Board might make arrangement for performance of duties of V.C. by any other person as it deems fit--High Court can easily visualize disastrous--Consequences which might ensure for a university being run without its V.C. for indefinite period--Serious search for V.C. was lacking in the matter for simple reason that there cannot be any dearth of an appropriate and duly qualified person for appointment as vice chancellor--Petition was allowed. [P. 214] A & B

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Appointment as acting vice chancellor--Post of V.C. was described as tenure post--Tenure post was to be filled-up in accordance with rules--Validity--Two posts cannot be equated as one being tenure post described as office university and second bound by empowering instrument issued by Board--Office of acting vice chancellor cannot be dispensed with even temporarily and definitely for longer period--During that period acting V.C. will not be substitute for vice chancellor--Petition was allowed. [P. 214] C

Syed Nazim Hussain, Advocate for Petitioner.

Mr. Abdul Rehman Khan, Legal Advisor for Respondents.

Date of hearing: 12.12.2012.

Order

This single order disposes of Writ Petition No. 2431 of 2012, Writ Petition No. 2063 of 2012, Writ Petition No. 2680 of 2012, Writ Petition No. 2485 of 2012 and Crl.Original No. 141-W of 2012, as common questions of law and facts are involved in all these cases.

W.P. NO. 2431 OF 2012

The petitioners through this writ petition calls in question the appointment of Respondent No. 1 and all his orders/action, taken after 01.04.2010. He prays to declare his appointment as null and void and his orders to have been passed without lawful authority with the further prayer that the concerned authority be directed to make necessary arrangement for the appointment of Vice Chancellor of Wah University in accordance with the University of Wah Act, 2009.

W.P. NO. 2063 OF 2012

This petition challenges order dated 10.08.2012 transferring the petitioner, Raja Muhammad Nasir to Wah Engineering College (WEC) against the vacant post of Lecturer and his immediate relieving order 12.08.2012 without completing the process of handing/taking over charge, passed by newly appointed subordinates of Respondent No. 1/ Vice Chancellor University of Wah, Wah Cantt.

W.P. NO. 2680 OF 2012

Omer Nadeem, petitioner, who was appointed as Lab. Supervisor on 15.07.2006 on contract basis for one year impugns verbal order dated 31.08.2012 passed by Respondent No. 1 with the further direction to Respondent No. 1 to extend his contract and to regularize the his services in the respondent-University.

W.P. NO. 2485 OF 2012

Ms. Shahla Riaz who is wife of Raja Muhammad Nasir Khan, petitioner in the connected writ petitions applied for the post of Principal Mashal Degree College, advertised in daily Urdu Newspaper on 20.08.2012 and has challenged notification dated 18.09,2012 appointing Respondent No. 1, Acting Vice Chancellor, University of Wah, Wah Cantt. head/member of the penal for conducting interviews for the said post. She prays direction for change of Respondent No. 1 and appointment as head/member of the interview penal, some other competent and impartial person.

Crl. Orig. No. 141-W-2012

Raja Muhammad Nasir Khan, petitioner, has filed the instant contempt petition praying initiation of contempt proceedings against the respondents under Sections 3/4 of the Contempt of Court Act for violating order of this Court dated 17.08.2012 in Writ Petition No. 2063 of 2012 as vide letter dated 11.10.2012 the respondents processed for approval of an agenda known as "Approval of the Agenda of 1/2012 meeting of Board of Governors of the University of Wah, Wah Cantt".

1. learned counsel for the petitioner submits that Respondent No. 1 is not a legally constituted authority in terms of Sections 2(p), (q), 12 ad 18 (1)(a) of the University of Wah Act, 2009; that no rules were framed there under; that the Board constituted under Section 18 of the Act ibid does not convene meeting and the consent/signatures of the members is received by circulation; that Respondent No. 1 is appointing and ousting number of teaching and other staff by using the powers of Vice Chancellor which is illegal and not provided in the Act ibid as post of Vice Chancellor has been lying vacant since April, 2010; that the tenure post is to be filled up in accordance with the rules and the policy, as huge funds are to be received by them. By placing reliance on Dr. Aftab Ahmad Malik vs. University of Engineering and Technology and others [2005 PLC (C.S.) 80] and Board of Governor Aitchison College, Lahore vs. Punjab Labour Appellate Tribunal and others [2001 SCMR 1928)

2. Conversely, the learned Legal Advisor questions the maintainability of the writ petition and submits that the University does not have statutory rules; that no rules are framed under Sections 26, 27 & 29 of the Act IV of 2009; that no fundamental rights of the petitioners are violated; that the petitioners have approached this Court with unclean hands as the facts were distorted; that the learned counsel on merits, submits that in the background of the fact that on 1.4.2012, the then Vice Chancellor had abruptly resigned, therefore, in order to deal with the emergency situation the Acting Vice Chancellor was appointed under Section 10 of the Act; that the efforts of the Search Committee is underway and the post of Vice Chancellor has already been advertised on 21.10.2012, where after the same is in process; that the petitioners have a personal interest, therefore, the petitions cannot be regarded as filed in the capacity of pro bono publico; that the petitioner himself remained posted as Registrar from 2007 to 2010, therefore, he cannot put a blame upon the respondents solely for not taking steps for filling up the vacancy.

3. I have heard the learned counsel for the parties and perused the record.

4. The office of the Vice Chancellor has been maintained as Officer of the University under Section 7 of the University of Wah Act, 2009. The Government, on the recommendation of the Search Committee can appoint a person as Vice Chancellor for three years on terms and conditions as determined by the Board constituted under Section 18 ibid. However, under Section 12 ibid if the office of the Vice Chancellor is vacant, or he is absent or unable to perform functions due to illness, the Board may make arrangement for the performance of the duties of the Vice Chancellor by any other person as it deems fit which in this case has not been done.

5. This means that the post of Vice Chancellor is described as Tenure Post whereas the Acting Vice Chancellor is a temporarily arranged post until the regular incumbent is made available. Surely, this is for the interim period. Moreover, the exact powers of such an official have to be defined in unequivocal terms for a definite period by the Board. This Court can easily visualize the disastrous consequences which may ensue for a university being run without its Vice Chancellor for indefinite period. A serious search for a Vice Chancellor is also lacking in the matter for the simple reason that there cannot be any dearth of an appropriate and duly qualified person for appointment as Vice Chancellor.

6. The two posts cannot be equated as one being a tenure post described as the officer of the University and, second bound by the empowering instrument issued by the Board. The Office of the Acting Vice Chancellor cannot be dispensed with even temporarily and definitely for a longer period such as in this case. Needless to state that during this period the Acting Vice Chancellor will not be the substitute for the Vice Chancellor.

7. For what has been discussed above, Writ Petition No. 2431 of 2012 is allowed and appointment order of Respondent No. 1 as Acting Vice Chancellor, University of Wah, Wah Cantt. is declared to have been passed without lawful authority and following the prescribed procedure/ rules provided under the University of Wah Act, 2009. The concerned authority under the Act is directed to follow its own prescribed procedure and appoint Vice Chancellor of the University. This exercise will be completed without further delay.

(R.A.) Petition allowed

PLJ 2013 Lahore 215 [Rawalpindi Bench, Rawalpindi]

Present: Ali Baqar Najafi, J.

MUHAMMAD ZAMAN KHAN NIAZI--Petitioner

versus

PROVINCE OF PUNJAB, etc.--Respondents

W.P. No. 697 of 2012, decided on 1.2.2013.

Constitution of Pakistan, 1973--

----Art. 199--Punjab Medical and Health Institutions Act, 2003, S. 18--Quo warranto petition--Appointment of doctor on administrative posts in health department--Neither possessed requisite postgraduate qualification nor grade yet was posted as M.S.--Required to amend--Petitioner was interested person and was direct beneficiary, hence, cannot be a petitioner in writ of quo warranto--Quo-warranto petition was not maintainable by an interested person--Question of--Whether writ of quo warranto can be issued--Validity--Petitioner being a doctor but an interested person will be direct beneficiary of a writ of quo warranto--Petitioner had failed to amend writ petition after order was passed by High Court--Petition was motivated, therefore, writ of quo warranto cannot be issued. [Pp. 219 & 220] A & B

PLJ 2012 SC 73, 2010 CLD (Lah.) 1572 & 2007 SCMR 97, rel.

2012 PLC (CS) 1057, 2012 PLC (CS) 502, 2011 YLR 2899 & 2011 PLC (CS) 482 rel.

Sardar Asmatullah Khan, Advocate for Petitioner.

Mr.Rashid Hafeez, Assistant Advocate General for Resondents.

Mr. Kashif Ali Malik, Advocate with Respondent No. 3.

Syed Nayyar Hussain, Advocate/petitioner in person (in W.P. No. 2189-2012).

Date of hearing: 30.1.2013.

Order

This order shall dispose of the instant writ petition as well as W.P. No. 2189-2012 as both these matters involve common question of law and facts.

1. Through this writ petition, the petitioner has challenged the Notification No. SO(GC)M-226/99 dated 18.02.2012 (Annex-C') and prayed for upholding of Notification No. S.O(GC)M-226/99 dated 16.02.2012 (Annex-B') with further prayer to direct Respondents No. 1 & 2 to fill in the Administrative and Executive posts in the general cadre under the rules on merits amongst the eligible Principal Medical Officers (PMOs) possessing the requisite Post Graduate Qualification. While addressing the question of maintainability, learned counsel for the petitioner did not press the first part of prayer and confine only to the issuance of writ of quo-warranto vide order of this Court dated 4.10.2012.

2. In W.P. No. 2189/2012 the petitioner sought that the appointments of Respondents No. 3, 4, 5 & 6 may be declared as illegal, unlawful being non qualified and ineligible with further direction to Respondents No. 1 and 2 to appoint eligible and qualified doctors of BS-20 on all BS-20 administrative posts in the Health Department in accordance with the rules and merits without further delay.

3. The brief facts giving rise to filing of this writ petition as contained therein are that Respondent No. 3 is an Additional Principal Medical Officer (APMO) of BS-19. Vide Notification No. SOR-III-1-30/94 dated 21.11.1994 Respondent No. 2 created following four tier structure of general cadre doctors:--

S/No. Designation Grade

a. Principal Medical Officer (PMO) BS-20

b. Additional Principal Medical Officer (APMO) BS-19

c. Senior Medical Officer(SMO) BS-18

d. Medical Officer(MO) BS-17

In the said Notification at Serial No. 7 the qualification and postings of PMOs, a Principal Medical Officer(PMO) is mentioned as follows :--

(I) A Principal Medical (PMO ) of BS-20 with an additional post graduate qualification will be designated as under :--

(a) MS of DHQ hospitals at Divisional Headquarters, (b) MS, of DHQ Hospitals of 250 beds and above

(c) Director Provincial Health Dev Centre Lahore

(d) Director Health Services

(e) MS Teaching hospitals

(f) MS Punjab Institute of Cardiology, Lahore

(g) MS Government Mental Hospital, Lahore

(h) Surgeon Medico-legal Punjab, Lahore

(i) Executive Director Special Projects, (j) Surgeon General, Punjab, Lahore

(k) Gen. Manger Government MSD, Lahore

(l) Director Blood Transfusion Services Punjab, Lahore, and

(m) Chief Chemical Examiner to Government of the Punjab Lahore.

The Government of the Punjab created 45 executive and 75 general duty posts for the doctors of the rank of Principal Medical Officer and as Respondent No. 3 is an APMO of BS-19 who neither possessed of the requisite Postgraduate qualification nor the grade yet was posted as Medical Superintendent DHQ Hospital, Rawalpindi on 09.02.2010 and after completing 2-years month and 7-days the petitioner was appointed in his place vide Notification No. S.O (GC) M-226/99 dated 16.02.2012. But only after two days of taking over the charge by the petitioner i.e. on 18.02.2012 vide Notification No. S.O(GC)M-266/99 Respondent No. 3 was reappointed at the place of the petitioner. The petitioner within this background seeks issuance of a writ in the nature of quo-warranto questioning his eligibility/ qualification to be appointed and hold the said post.

1. Learned counsel for the petitioner submits that Respondent No. 3 neither possesses B.S. 20 grade nor any requisite post graduate qualification, thus is not qualified to hold such post; that the Notification dated 18.02.2012 is ultra vires of constitution and needs to be set aside as the same is corum non-judice; that under Section 18 of the Punjab Medical and Health Institutions Act 2003 the government is required to appoint a whole time M.S. of Institution possessing such qualification on such terms and conditions as it may determine from a panel of three individuals recommended by the board and vide notification dated 15.09.2003 the board was constituted which was empowered to recommend the appointments against BS 17 and above that vide notification dated 21.11.1994 at Serial No. 7 of the schedule the requisite qualification for appointment of Principal Medical Officer or equivalent (BS-20) is DHQ/DPH/DMCH/MPH/DHA/MCPS/FCPS in community medicine/M.Sc. (Med. Admn) and 5-years service as DHO/MS of the hospitals/Addl. Director Health services/MS THQ Hospital/AMS and In-service training at the provincial Health Development Centre but Respondent No. 3 did not possess such degrees. Places reliance on PLJ 2012 S.C. 73 (Original Jurisdiction); Muhammad Iqbal Khattak versus Federation of Pakistan (2010 CLD 1572(Lahore); PLD 2011 Supreme Court 927 (Suo Motu Case No. 18 of 2010); PAKISTAN TOBACCO BOARD and another versus Tahir Raza and others (2007 SCMR 97) to argue that in fact the merit is the qualification which is made basis for seniority-cum-fitness.

2. Conversely, learned Assistant Advocate General questions the maintainability of this writ petition on the ground that after order dated 4.10.2012 the petition was required to be amended, which was not; that the petitioner himself is interested person and is direct beneficiary, hence cannot be a petitioner in a writ of quo warranto; that earlier in Writ Petition No. 607/12 titled Muhammad Afzal Sajid versus Government of Punjab through Chief Minister & 2 others on the same subject matter was dismissed by this Court on 07.03.2012, where after ICA No. 32 of 2012 titled Muhammad Afzal Sajid versus Government of Punjab, etc. filed against the said order was also dismissed on 7.05.2012 by a Division Bench of this Court where after CPSLA No. 1306 of 2012 was dismissed by the Hon'ble Supreme Court of Pakistan on 10.08.2012, which fact was concealed from this Court; that in the writ of quo warranto it is the qualification of a person to hold the post is challenged and not the appointment; that in the subsequent Notification dated 18.10.2004 the Medical Superintendent can be appointed from BS-19 by a competent authority, which criteria is laid down for seats in District Headquarters Hospitals in Punjab for the Principal Medical Superintendents in the Punjab from B.S. 19/20. Learned A.A.G also argued that as per news items the Chief Minister of Punjab has expressed his strong resentment over the poor cleanliness arrangement in the hospitals and thereafter he immediately transferred the petitioner by posting him as OSD and initiated action against him while accompanying the sitting MNA, namely, Muhammad Hanif Abbasi and Malik Shakil Awan and the Commissioner Rawalpindi. Places reliance on Dr. Shazia Khawaja versus Chairman and Dean of Sheikh Zayed Post Graduate Medical Institute and Hospital, Lahore and 7 others (2012 PLC(C.S.) 1057 (Lahore), Asghar Ali and others versus Mansoor Muzaffar Ali and 3 others (2012 PLC(C.S.) 502 (Islamabad High Court), Tariq Mehmood A. Khan and 3 others versus Sindh Bar Council through Secretary and 3 others (2011 YLR 2899 (Karachi) and Arbab Imtiaz Khan versus Assim Jamil Zubedi and another (2011 PLC (C.S.) 482 (Sindh High Court) & prays for dismissal of the writ petition.

3. Learned counsel for Respondent No. 3 adds that the present writ petition was filed immediately after dismissal of earlier Writ Petition No. 607 of 2012 on 07.03.2012 and the matter has already attained finality when the Hon'ble Supreme Court of Pakistan had dismissed CP No. 1306/2012 after consulting the available record, which establishes that all the points now raised before this Court were raised and dealt with through an authoritative pronouncement. Places reliance on Syed Masood Alam Rizvi and others versus Dr. Muhammad Saeed (2009 SCMR 477), Amanul Mulk vs. Mian Ghafoor-Ur-Rehman and others (1997 SCMR 1796) and Muhammad Yasin Saqib versus Chairman, Pakistan Telecommunication Corporation, Islamabad and 7 others (2003 PLC(C.S.) 1105) to argue that repetitive writ petition by or on behalf of the litigant is deplorable and the matter is hit by the principle of constructive res judicata. Submits that the petition for quo warranto is not maintainable by an interested person.

On merits the learned counsel submits that the petitioner is duly qualified as per Notification dated 18.10.2004; that the petitioner has been in Grade-19 and occupies the post as M.S, he possesses the degree of Masters in Public Health which is required therefore, prays for the dismissal of the petition.

1. I have heard the learned counsel for the parties and perused the record.

2. The question before this Court is as to whether writ of quo warranto can be issued against Respondent No. 3. The petitioner remained Medical Superintendent of the concerned Hospital but was substituted by Respondent No. 3 on the indulgence of Chief Minister and the sitting M.N.A and the Commissioner, Rawalpindi Division, Rawalpindi. Respondent No. 3 occupies BPS-19 and holds a degree in Public Health. The earlier Writ Petition No. 607 of 2012 challenged the posting of BPS-19 as Principal Medical Officer was dismissed for the reason that the petitioner therein was not a doctor, hence not an aggrieved person which order has attained finality.

3. This leads me to the point that the petitioner being a doctor but an interested person will be the direct beneficiary of a writ of quo warranto. The petitioner has also failed to amend the writ petition accordingly after the order dated 04.10.2012 passed by this Court. The law on the scope of writ of quo warranto is based upon the illuminating judgments given by the august Court in Aziz-ur-Rahman Chowdhury vs. M. Nasiruddin etc. (PLD 1965 Supreme Court 236) when Court can inquire into conduct and motives and can dismiss the writ petition where information laid was of vexatious nature. In esteemed judgment given in Hafiz Hamdullah vs. Saifullah Khan and others (PLD 2007 Supreme Court 52), it is held that to invoke jurisdiction under Article 199 for quo warranto a person is not required to fulfill the conditions so as to bring him in to the meaning of an aggrieved person and is not required to establish his locus standi. He just has to show that the incumbent is not legally qualified to hold or remain in the office. In Pakistan Tobacco Board and another vs. Tahir Raza and others (2007 SCMR 97) the proceedings are held as primarily inquisitorial and not adversarial as the incumbent must be a person holding a public office without any legal warrant. View taken by the Division Bench of Sindh High Court in Arbab Imtiaz Khan vs. Assim Jamil Zubedi and another [2011 PLC (C.S) 482] and provides the condition i.e. holder of a public office, without requisite qualification not appointed by the competent authority. However, recent judgment of Single Bench of this Court in Dr. Shazia Khawaja vs. Chairman and Dean of Sheikh Zayed Post Graduate Medical Institute and Hospital, Lahore and 7 others [2012 P L C (C.S)1057], wherein this Court has held that the conduct of the petitioner is relevant.

4. Scanning of the above-referred judgments and applying the dicta laid down therein, it is safely concluded that the petition is motivated; therefore, the writ of quo warranto cannot be issued. However, Respondent No. 1 is directed to re-scrutinize the qualification and grade of Principal Medical Officers already posted in District Headquarter Hospitals throughout Province of the Punjab as per their eligibility criteria and intimate this Court through the Deputy Registrar (Judicial) of this Court.

Disposed of in the above terms.

(R.A.) Petition disposed of

PLJ 2013 Lahore 220

Present: Abdus Sattar Asghar, J.

IQBAL AHMAD DHUDHI--Petitioner

versus

FEDERATION OF PAKISTAN and 5 others--Respondents

W.P. No. 2133 of 2013, decided on 30.1.2013.

Words & Phrases--

----Public interest litigation--Black Law Dictionary defines public interest litigation as legal action initiated in a Court of law for enforcement of public interest or general interest in which public or class of community had pecuniary interest of some interest by which their legal rights or liabilities were affected. [P. 223] A

Public Interest Litigation--

----Scope of--There is no cavil to proposition that concept of public interest litigation provides opportunity to all citizens to have inviolable access to justice for protection and enforcement of their fundamental human rights to life and liberty. [P. 223] B

Constitution of Pakistan, 1973--

----Arts. 199 & 184(3)--Role of protection and enforcement of fundamental human, constitutional and statutory rights--Jurisdiction to issue writs and orders--In case of infringement of fundamental rights even involving a question of public importance Courts had earnestly guarding long standing concept of other adequate remedy provided by law and aggrieved person while assuming extraordinary jurisdiction to issue writs and orders u/Arts. 199 & 184(3) of Constitution. [P. 223] C

Rule of locus-standi--

----Issue of--Violations of fundamental rights of class--Where there are violations of fundamental rights of a class or group of persons who were unable to seek redressal of grievance from Court, then traditional rule of locus standi can be dispensed with and procedure available in public interest litigation can be made use of if it was brought to notice of Court by a person acting bona fide. [P. 223] D

Public Interest Litigation--

----Object--Object of public interest litigation is to provide remedy to wrongs done to poor, unprivileged people and weaker segments of society lacking power or resources to have an access to justice. [P. 224] E

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Bona fide interest to maintain a petition--Principles or aggrieved person having been liberally interpreted by Courts in recent past provide a right to person having bona fide interest to maintain a petition in larger public interest subject to fulfilling other requirements u/Art. 199 of Constitution--Petition was dismissed. [P. 224] F & H

Rule of Pleadings--

----Charge of malpractice would not be entertained unless precise information was supplied to person against it was leveled in order to provide a fair opportunity of reply and hearing--In absence of necessary details of alleged corrupt practices law would protect dignity any person in casual manner. [P. 224] G

Petitioner in person.

Date of hearing: 30.1.2013.

Order

The petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeking declaration to the effect that the posting of Mubarik Ali Chaudhry, Zonal Chief Manager, M/s Zarai Taraqiati Bank Ltd. Faisalabad/Respondent No. 6 is illegal, void, ultra vires and also to restrain him from exercising the powers as such.

1. It is argued by learned counsel for the petitioner that Respondent No. 6 is going to be superannuated on 30.4.2013 and being a relative of Ch. Sultan Ali, Chairman Board of Directors, M/s. Zarai Taraqiati Bank Ltd./Respondent No. 3 has been posted violative to Circular No. HRD/29/2008 dated 4.4.2008 issued by the Human Resources Division Policy and Regulations Department, Zarai Taraqiati Bank Ltd. Islamabad manifesting that no officer and above shall be posted as MCO or Manager/Chief Manager of the Branch one year before the date of proceeding on mandatory Leave Preparatory to Retirement; that Respondent No. 6 is indulged in corrupt practices in his domain; that no bank employee can dare to point out illegalities and corrupt practices of Respondent No. 6 due to his influence.

2. Arguments heard. Record perused.

3. Petitioner is a practicing lawyer at Lahore. In the contents of this writ petition he has failed to mention any personal grievance qua the alleged posting or any act of Respondent No. 6. When confronted with the proposition with regard to his grievance if any petitioner in attendance submits that he has invoked the constitutional jurisdiction of this Court as pro bono publico in public interest. In support of his plea he has taken reliance upon the case of Javed Ibrahim Paracha vs. Federation of Pakistan and others (PLD 2004 SC 482).

4. At the outset it may be expedient to re-produce an extract from the above cited case which reads as below:--

"No doubt with the development of new concept of public interest litigation in the recent years, a person can invoke the Constitutional jurisdiction of the superior Courts as pro bono publico but while exercising this jurisdiction, he has to show that he is litigating, firstly, in the public interest and, secondly, for the public good or for the welfare of the general public. The word pro bono publico' as defined in Black's Law Dictionary, Chambers Dictionary and Oxford Dictionary generally means' for the public good' orfor welfare of the whole' being or involving uncompensated legal services performed especially for the public good. Public interest' in the Black's Law Dictionary, has been defined as the general welfare of the public that warrants recognition and protection. Something in which the public as a whole has a stake; esp. an interest that justifies governmental regulation. It thus signifies that in case of public interest litigation, one can agitate the relief on his own behalf and also on behalf of the general public against various public functionaries, where they have failed to perform their duties relating to the welfare of public at large which they are bound to provide under the relevant laws. Viewing the bona fide of petitioner in the above context, we are of the opinion that the petitioner has not been able to show that he was aggrieved person within the meaning of Article 199 of the Constitution and can agitate his grievance aspro bono publico'."

1. Black's Law Dictionary defines `public interest litigation' as the legal action initiated in a Court of Law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest of some interest by which their legal rights or liabilities are affected. There is no cavil to the proposition that concept of public interest litigation provides opportunity to all the citizens to have inviolable access to justice for the protection and enforcement of their fundamental human rights to life and liberty etc.

2. In the leading public interest litigation case titled Muhammad Bin Ismail vs. Tan Sri Haji Othman Satt (1982-2 MLJ 133) Justice Wan Yahya (Malaysia) laid the dictum as under:--

"If they (public authorities) transgress any law or constitutional directive, then any public-spirited citizen, even if he has no greater interest than a person having regard for the due observation of the Law, may move the Courts and the Courts may grant him the appropriate legal remedy in its discretion. "

1. In the constitutionally governed States, judiciary is provided pivotal role of protection and enforcement of the fundamental human, constitutional and statutory rights. In the cases of infringement of fundamental rights even involving a question of public importance superior Courts in Pakistan have been earnestly guarding the long standing concept of other adequate remedy provided by law' andaggrieved person' while assuming extraordinary jurisdiction to issue Writs and Orders under Articles 199 and 184(3) of the Constitution of Islamic Republic of Pakistan, 1973. Hon'ble Supreme Court of Pakistan in the case of Ms. Benazir Bhutto vs. Federation of Pakistan (PLD 1988 SC 416) dealing with the issue of locus-standi' maintained that where there are violations of fundamental rights of a class or a group of persons who are unable to seek redressal of their grievance from the Court, then the traditional rule of locus-standi can be dispensed with, and the procedure available in public interest litigation can be made use of if it is brought to the notice of the Court by a person acting bonafide. Reliance was also made upon the earlier dictum of the Hon'ble Apex Court in the case of Miss Asma Jilani vs. Government of the Punjab (PLD 1972 SC 139) wherein it was laid down that the law cannot standstill nor can the Judges become mere slaves of the precedents and that the rule ofstare decisis' does not apply with the same strictness in criminal, fiscal and constitutional matters where the liberty of the subject is involved or some other grave injustice is likely to occur by strict adherence to the rule.

2. Object of the public interest litigation is to provide remedy to the wrongs done to the poor, unprivileged people and weaker segments of the society lacking power or resources to have an access to justice. The principles of locus standi' oraggrieved person' having been liberally interpreted by the Courts in the recent past provide a right to a person having bonafide interest to maintain a petition in the larger public interest subject to fulfilling other requirements under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

3. In the light of above legal position, it is important to note that the petitioner in this case is neither an employee of Zarai Taraqiati Bank Ltd. nor he has furnished particulars of alleged corrupt practices of Respondent No. 6 to constitute a bona fide sufficient grievance in his favour to invoke the constitutional jurisdiction of this Court. Rule of pleadings and fair play require that charge of malpractice should not be entertained unless precise information was supplied to the person against it was levelled in order to provide him a fair opportunity of reply and hearing. In the absence of necessary details of alleged corrupt practices law would protect dignity of every person by not allowing to plead such plea against any person in a casual manner.

4. In view of all above petitioner has not been able to show himself as an `aggrieved person' in terms of Article 199 of the Constitution of Islamic Republic of Pakistan to agitate any bonafide grievance as pro bono puhlico therefore he has no case at all to invoke the constitutional jurisdiction of this Court through this writ petition.

5. For the above reasons this constitutional petition being not maintainable and having no merit is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2013 Lahore 224

Present: Abdus Sattar Asghar, J.

SH. MUHAMMAD IJAZ--Appellant

versus

SH. MUHAMMAD MUSHTAQ--Respondent

F.A.O. No. 267 of 2011, heard on 21.1.2013.

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

----S. 12(2) & O. IX, R. 13--Signatures on application and attached affidavit were forged and fictitious--Ex-parte judgment and decree--Appellant did not appear despite summons and proclamation in newspapers--Jurisdiction of trial Court to make direction that a party shall appear in person--Validity--Appellant willfully had failed to appear before Court despite having knowledge of the fact that his personal appearance was directed by the Court--It was not denied by appellant that he was fugitive from law being a proclaimed offender in criminal cases pending against him--He was under legal obligation to join proceedings before Court to abide by direction--No lawful excuse to avoid his appearance as directed by Court--If party failed without lawful excuse to appear in person on day so appointed, Court might pronounce judgment against him or make such order in relation to suit as it thinks fit--Trial Court had no power to dismiss application for default of appearance; was devoid of any force--Appellant willfully had failed to appear in person as directed despite number of opportunities provided by Court, therefore, he had no case to challenge legality and propriety of the order--Appeal was dismissed. [P. 228] A, B & C

2006 CLD 1301, ref.

Mr. Fayyaz Ahmad Baloch, Advocate for Appellant.

Syed Muhammad Kaleem Ahmed Khurshid and Mr. Ansar Mahmood, Advocates for Respondents.

Date of hearing: 21.1.2013.

Judgment

This first appeal under Order XLIII, Rule 1(e) of the Code of Civil Procedure 1908 is directed against order dated 21.5.2011 passed by learned Additional District Judge Gujranwala whereby appellants' application under Order IX, Rule 13 read with Section 12(2) of CPC was dismissed.

1. It is argued by learned counsel for the appellant that the impugned order is against law and facts without application of judicious mind; that learned trial Court has failed to appreciate that appellant had appointed his special attorney to appear before the Court to answer the question if any and that there was no reason to disbelieve the appellant's counsel with regard to appellant's signatures; that special attorney as well as learned counsel for the appellant categorically stated before the learned trial Court that appellant could not appear in person apprehending danger to his life having been involved in various false FIRs; that the impugned order being untenable in law is liable to set aside.

2. It is resisted by learned counsel for the respondent with the contentions that the impugned order is in accordance with law and based on salutary appreciation of the material available on record; that the findings of the learned Court below not suffering from any legal infirmity or perversity do not call for interference by this Court, therefore, this appeal be dismissed.

3. I have given patient hearing to learned counsel for the parties and gone through the record.

4. Perusal of the record transpires that Sh. Muhammad Mushtaq respondent filed a suit for recovery under Order XXXVII of the Code of Civil Procedure 1908 against Sh. Muhammad Ijaz appellant. The appellant did not appeal before the learned trial Court, despite summons and proclamation in the newspaper, therefore, he was proceeded against ex-parte vide order dated 18.9.2010 and the suit was decreed against him vide judgment and decree dated 08.12.2010. An application under Order IX, Rule 13 read with Section 12(2), CPC was lodged on 09.10.2011 on behalf of the appellant alleging that no summon was served upon him as his address was wrongly mentioned in the suit with mala fide intention by the respondent. The said application was resisted by the respondent with the contentions that appellant was a proclaimed offender in criminal cases and that signatures on the application under Order IX, Rule 13 read with Section 12(2), CPC and attached affidavit were forged and fictitious. On facts it was contended that ex-parte proceedings and ex-parte judgment and decree were lawfully passed against the appellant. Respondent also lodged an application before the learned trial Court seeking summoning of the appellant before the Court in person to verify his signatures on the application. Vide order dated 10.3.2011, learned trial Court directed the appellant to appear before the Court in person on 15.3.2011. On the said date i.e. 15.3.2011, learned counsel for the appellant made statement before the learned trial Court that the appellant had affixed signatures in his presence and thereafter he filed the petition and that he was not in a position to produce the appellant in the Court as the appellant was required in some criminal cases. The respondent maintained his objection that the petition was not signed by the appellant, therefore, appellant was given another opportunity to appear before the Court in person on 26.3.2011 with a caution that in case he fails to appear in person it will be presumed that petition has not been filed by him and an appropriate order will be passed in accordance with law. After obtaining a number of adjournments ultimately on 14.5.2011 learned counsel for the appellant produced a special power of attorney on behalf of the appellant and stated that appellant was not in a position to appear before the Court due to his other engagements and has appointed his wife Robina Bibi a special attorney present in the Court. The learned trial Court vide order dated 14.5.2011 maintained as under:--

"3. Sh. Muhammad Ijaz was directed by this Court to appear before this Court in person vide order dated 10.3.2011 when the respondents had alleged that the petition filed by Sh. Muhammad Ijaz bears his forged and fake signature. Therefore, the appearance of Sh. Muhammad Ijaz petitioner was deemed necessary by this Court in order to ascertain from him about his alleged forged signature and not for the purpose to pursue this petition because he had already appointed Mr. S.A. Hameed Advocate as his counsel who was pursuing this petition. As personal appearance of petitioner is required and appropriate order has already been passed by this Court for his appearance before this Court, therefore, appearance of special attorney cannot be deemed as compliance of the order of his Court dated 10.3.2011. The petitioner is given last and final opportunity to appear before this Court in person on 21.5.2011 failing which it shall be presumed that the petition has been filed with his forged signature."

1. On the adjourned date of hearing i.e. 21.5.2011, appellant did not appear before the learned trial Court consequently his application under Order IX, Rule 13 read with Section 12(2), CPC was dismissed through the impugned order dated 21.5.2011 which reads below:--

"Robina Bibi special attorney of petitioner Sh. Muhammad Ijaz is present and states that Sh. Muhammad Ijaz petitioner has not come. On previous date of hearing this Court had clearly directed the petitioner Sh. Muhammad Ijaz to appear before this Court in person failing which it shall be presumed that the petition was filed with his forged signatures. There is allegation from the respondent that Sh. Muhmmad Ijaz petition himself has not filed this petition and the instant petition was filed with his forged signatures. Keeping in view this allegation of the respondents Sh. Muhammad Ijaz petition was directed to appear before this Court in person but he has failed to comply with the order of this Court. In these circumstances, it is presumed that the petition in question has not been filed by him and same is hereby dismissed. Record of the suit and that of this petition be consigned to the record room."

1. In this case respondent had taken up an objection that application under Order IX, Rule 13 read with Section 12(2), CPC was not signed by the appellant. Certainly the objection could have been answered by the appellant alone. Neither his learned counsel nor his special attorney could depose about this fact therefore presence of the appellant was necessary to meet the objection. At this stage it may be expedient to reproduce the provisions of Rule 2 and 4 of Order X, of the Code of Civil Procedure 1908 which reads below:--

"Order X, Rule 2.--Oral examination of the party or companion of party.--At the first hearing of the suit, or at any subsequent hearing, any party appearing in person or present in Court, or any person able to answer any material question relating to the suit by whom such party or his pleader is accompanied, [shall] be examined orally by the Court; and the Court may, if it thinks fit, put in the course of such examination questions suggested by either party.

Rule 4:--Consequence of refusal or inability of pleader to answer.--(1) Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in Rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if Interrogated in person, the Court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day.

(2) If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit."

1. Bare reading of the afore quoted provisions makes it crystal clear that the learned trial Court had the Jurisdiction to make the direction that a party shall appear in person on the date fixed by the Court. It is evident on the record that the appellant willfully failed to appear before the Court despite having knowledge of the fact that his personal appearance is directed by the Court. It is not denied by the appellant that he was fugitive from law being a proclaimed offender in some criminal cases pending against him in those days. He was under legal obligation to join the proceedings before the Court to abide by the direction. Appellant had no lawful excuse to avoid his appearance as directed by the Court. He had also never sought for any exemption from appearance. Rule 4(2) of Order X, of the, CPC clearly manifest that if a party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit. Argument of the learned counsel for the appellant that learned trial Court had no power to dismiss his application for default of appearance, therefore, is devoid of any force. There is nothing to preclude the Court from not pronouncing judgment on merits but dismissing it for default of appearance. Appellant willfully failed to appear in person as directed despite number of opportunities provided by the Court, therefore, he has no case to challenge the legality and propriety of the impugned order. Reliance be made upon Chaudhry Muhammad Aslam Vs. SME Bank Limited through Chairman/President and 2 others (2006 CLD 1301).

2. For the above reasons, I do not find any factual or legal infirmity in the impugned order. This appeal having no merit is dismissed.

(R.A.) Appeal dismissed

PLJ 2013 Lahore 229

Present: Abdus Sattar Asghar, J.

MUHAMMAD JAVED--Petitioner

versus

MANAGING DIRECTOR SUI NORTHERN GAS etc.--Respondents

C.R. No. 240 of 2013, decided on 30.1.2013.

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

----S. 115 & O. XVII, R. 3--Civil revision--Suit was dismissed for want of evidence--Closing of evidence--Law favours vigilant and not indolent--Opportunities were granted to produce evidence with costs and specific warnings--Failure to produce evidence--Conduct of party--Rules of procedure were enacted to regulate the administration of justice to check unnecessary delay in resolving dispute between parties--Validity--Conduct of petitioner revealed that he had least interest in pursuing the matter and had failed to show any good sufficient reason for non-production of evidence on fixed date of hearing--Trial Court exercising its jurisdiction in terms of Order 17, Rule 3 of, CPC had rightly closed evidence and dismissed petitioner's suit in accordance with law--Petition was dismissed. [P. 231] A

1983 SCMR 619, rel.

Mr. Muhammad Muzammil Qureshi, Advocate for Petitioner.

Date of hearing: 30.1.2013.

Order

This civil revision under Section 115 of the Code of Civil Procedure, 1908 is directed against the order dated 16.05.2012 passed by the learned Civil Judge, Sialkot whereby petitioner's suit under Order XVII, Rule 3 of the Code ibid was dismissed for want of evidence. It also assails the judgment and decree dated 14.11.2012 passed by the learned Additional District Judge, Sialkot whereby petitioner's appeal was dismissed and the order passed by the learned Civil Judge was confirmed.

1. It is argued by the learned counsel for the petitioner that the impugned order and judgment passed by learned Courts below are against law and facts without providing reasonable opportunity of hearing to the petitioner causing miscarriage of justice and liable to set aside.

2. Arguments heard. Record perused.

3. Succinctly facts leading to this civil revision are that the petitioner lodged a suit for declaration etc. against the Managing Director Sui Northern Gas etc/respondents alleging that act of removal of gas meter and disconnection of the gas supply to the petitioner's factory as well as demand bill for Rs. 1157840/- pertaining to the month of June 2009 are against law and facts, void and ineffective as against his rights. As consequential relief he also sought for a mandatory injunction directing the respondents to restore his gas connection by installing new meter. Respondents resisted the suit with contesting written statement contending that petitioner's gas meter was replaced on 4.4.2009 as found not showing EVC reading and the same was sent to the Central Meter Shop Lahore for inspection; that as per report received from the Central Meter Shop Lahore the meter was found tampered and not working properly and whereupon the detection bill amounting to Rs. 11,14,159/- pertaining to the period 01.11.2008 to 04.04.2009 was issued to the petitioner in accordance with law. Respondents further contended that the sui-gas connection of the petitioner cannot be restored without payment of the detection bill and that petitioner's suit based on misrepresentation of facts is liable to be dismissed.

4. On the basis of divergent pleadings of the parties learned trial Court framed issues on 01.10.2009. Since the framing of issues till closing of evidence under Order XVII, Rule 3 of the Code of Civil Procedure, 1908 and dismissal of suit vide order dated 16.5.2012 as many as 28 adjournments were given to the plaintiff/petitioner. On seven occasions adjournments were given due to strike of the Bar. On four dates of hearing learned Judicial Officer was on leave and on two occasions adjournments were sought by learned counsel for the respondents. The remaining adjournments were granted on the request of the learned counsel for the petitioner for non-availability of evidence. On 4.7.2011 adjournment was allowed on the request of the learned counsel for the petitioner due to non-availability of his evidence subject to cost of Rs.300/- with the caution of last opportunity besides warning that in case plaintiff failed to produce evidence his right to produce evidence will be closed. On the next date i.e. 8.10.2011 counsel for the petitioner appeared, however memo. turned up on behalf of the respondents therefore ex-parte proceedings were taken against the respondents and the case was adjourned for ex-parte evidence of the petitioner. Consequently an application for setting aside of exparte proceedings was lodged by the respondents which remained pending up till 5.3.2012 when the said application was granted subject to cost of Rs.300/- and the case was again fixed for petitioner's evidence. On the adjourned date of hearing i.e. 9.4.2012 petitioner failed to produce evidence. On his request case was further adjourned to 19.4.2012. On the said date the petitioner again failed to produce the evidence and on the request of his counsel adjournment was granted with the caution of final and last opportunity in the interest of justice subject to cost besides warning that in case he failed to produce evidence his right to produce evidence would be closed under Order XVII, Rule 3, CPC. On the adjourned date i.e 16.5.2012 the petitioner again failed to produce the evidence therefore the learned trial Court closed the petitioner's evidence under Order XVII, Rule 3, CPC and dismissed the suit for want of evidence.

5. Above scanning of the interim orders/proceedings before the learned trial Court therefore makes it crystal clear that ample opportunities were granted to the petitioner to produce his evidence, with costs and specific warnings. No cogent reason is advanced by the learned counsel for the petitioner for his failure to produce the evidence on the fixed date of hearing i.e. 16.5.2012. Needless to say that conduct of a party is a relevant fact in the administration of justice. Certainly a party to the lis cannot be allowed to play hide and seek with the Court and to prolong the matter unnecessarily as well as to engage the machinery of the State department unnecessarily as per his whims and caprice besides wasting precious time of the Court. Needless to say that Rules of Procedure are enacted to regulate the safe administration of justice in accordance with law and to check unnecessary delay in resolving the dispute between the parties. It is noteworthy that law favours the vigilant and not the indolent. In this case conduct of the petitioner clearly reveals that he was least interested in pursuing the matter and has also miserably failed to show any good sufficient reason for non-production of the evidence on the fixed date of hearing. Therefore learned trial Court exercising its jurisdiction in terms of Order XVII, Rule 3, CPC has rightly closed the evidence and dismissed the petitioner's suit in accordance with law. Reliance is made upon Executive Engineer Peshawar vs. Messrs Tour Muhammad & Sons and 4 others (1983 SCMR 619).

6. I do not find any jurisdictional error, factual or legal infirmity in the impugned orders passed by the learned Courts below. Therefore this civil revision having no merit is dismissed in limine.

(R.A.) Revision dismissed

PLJ 2013 Lahore 232 [Multan Bench Multan]

Present: Ijaz Ahmad, J.

MUHAMMAD EJAZ--Petitioner

versus

JUDGE FAMILY COURT, KHANEWAL and 3 others--Respondents

W.P. No. 15680 of 2012, decided on 15.1.2013.

Punjab Family Courts Act, 1964 (XXXV of 1964)--

----S. 17-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Struck off right to cross examine witnesses--Suit for payment of maintenance allowance--Order to pay interim maintenance to minor--Right of defence was right to contest and endeavour to defeat claim of plaintiff--Validity--Fight to defend was lost u/S. 17-A of Family Courts Act, 1964, when defendant ordered to pay interim maintenance allowance fails--Since right to defend was right to contest and to endeavour to defeat claim made by plaintiff set forth in plaint, it was done by defendant by presenting written statement of his defence, by production of his own evidence by subjecting witnesses of plaintiff to cross examination and by objecting to admissibility and relevance of document produced by plaintiff--On account of failure to do facts or on account of breach of conditions, defendant loses his right to defend claim set forth by plaintiff--Petitioner had neglected to pay interim maintenance allowance--Court might strike off right of defence of petitioner--Husband had lost his right of defence that includes right of filing written statement production of evidence, subjecting plaintiff witnesses to cross examination and of objection to admissibility or relevance of plaintiff's documents--Court has right to examine genuineness of claim, needs of minors and financial capacity to maintenance allowance--Impugned order was decided to strike off defence of petitioner u/S. 17-A, his right to produce evidence would be deemed to have been struck off--Petition was dismissed. [P. 234] A, B, C, D, E & F

1999 SCMR 2832 & 2007 CLD 1649, ref.

Khawaja Qaiser Butt, Advocate for Petitioner.

Malik Farooq Ahmad Thaheem, Advocate for Respondents.

Date of hearing: 15.1.2013.

Order

The Respondents No. 2 & 3, sons and Respondent No. 4, wife of the petitioner, instituted a suit for payment of maintenance allowance @ Rs.5000/- each per month. The suit was contested. The learned Judge, Family Court vide order dated 02.10.2012 ordered the petitioner to pay Rs.1500/- per month to the minor Respondents No. 2 and 3 as interim maintenance. It was not paid. The learned Judge, Family Court vide order dated 28.11.2012 struck off the right of the petitioner to cross-examine the witnesses, under Section 17-A of the West Pakistan Family Courts Act, 1964.

1. It is contended by the learned counsel for the petitioner that in case of failure to comply with the interim order for the payment of maintenance allowance, the learned judge could strike off the defence of the petitioner which includes the submission of written statement if already not made and the right to produce his own evidence. The right of the petitioner to cross examine the respondents/plaintiffs' witnesses could not be struck off.

2. On the other hand, it is contended by the learned counsel for the respondents that in case, the interim order of Family Court for the payment of maintenance is not complied with, the plaintiffs are entitled to a decree for payment of maintenance allowance forthwith and that the striking off defence of the defendant includes refusing him the right to submit written statement, produce his own evidence and to cross examine the witness produced by the plaintiffs.

3. I have heard the learned counsel for the parties and have also gone through the record.

4. The right of defence is the right to contest and endeavour to defeat the claim of the plaintiff. It is a set of acts placing the defence between the force exerted by plaintiff by initiation of suit and the object to have the relief from the Court. Various statutes bestow this right on the defendant as a matter of right. It accrues to the defendant, the movement a plaintiff institutes a suit. Rule 1 of Order VIII C.P.C provides that the defendant may, and, if so required by the Court, shall at or before the first hearing present a written statement of his defence. Same is the case in a suit instituted under West Pakistan Family Courts Act, 1964 and many other provisions of law. However, in a suit instituted under Order XXXVII, C.P.C, under Financial Institutions (Recovery of Finances) Ordinance, 2001 and under Punjab Rent Premises Act, 2009, the right to defend or contest has to be sought. This fight to defend is lost under Section 17-A of West Pakistan Family Courts Act, 1964 when defendant ordered to pay the interim maintenance allowance fails. Under Section 10(11) of the Ordinance, 2001 ibid if an application for leave to contest is rejected or the defendant fails to fulfill the conditions, a decree will be passed in favour of the plaintiff and against the defendant forthwith. Same is the case in an application made under PRPA, 2009. Similar are the provisions under Order XXXVII, Rule 2(2) C.P.C. Since the right to defend is the right to contest and to endeavour to defeat the claim made by the plaintiff set forth in the plaint, it is done by the defendant by presenting the written statement of his defence, by production of his own evidence, by subjecting the witnesses of plaintiff to cross-examination and by objecting to the admissibility and relevance of the document produced by the plaintiff. On account of failure to do certain facts or on account of breach of certain conditions, the defendant loses his right to defend the claim set forth by the plaintiff.

5. In the instant case, the petitioner/defendant had neglected to pay the interim maintenance allowance. The penalty provided under Section 17-A of the West Pakistan Family Courts Act, 1964, the Court might strike off the right of the defence of the petitioner. The Court had on the previous date warned the defendant that it could be done. The petitioner/defendant has lost his right of defence that includes the right of filing the written statement, production of evidence, subjecting the plaintiff's witnesses to cross-examination and of objection to the admissibility or the relevance of the plaintiff's documents.

6. However, this penalty imposed on the petitioner will not automatically entitle the respondents/plaintiffs to a decree for payment of maintenance allowance as prayed in the plaint. The Court has the right to examine the genuineness of the claim of the plaintiff, the needs of the minors and the financial capacity of the petitioner to pay the maintenance allowance. I seek support from the judgments Col. (Retd.) Ashfaq Ahmed and others vs. Sh. Muhammad Wasim' (1999 SCMR 2832) andKings Tyre Industries Limited through Director and 5 others vs. Union Bank Limited through Manager and 2 others' (2007 CLD 1649). Since the Judge Family Court, in view of the impugned order has decided to strike off the defence of the petitioner under Section 17-A of the Act ibid, his right to produce evidence shall also be deemed to have been struck off. This petition fails and is dismissed.

(R.A.) Petition dismissed

PLJ 2013 Lahore 235

Present: Abdus Sattar Asghar, J.

NASEELA SHAUKAT--Petitioner

versus

NASEEM ASGHAR--Respondent

C.R. No. 1464 of 2011, heard on 6.12.2012.

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

----S. 115 & O. XXI, Rr. 30, 42--West Pakistan Urban Rent Restriction Ordinance, 1959, Ss. 13 & 15--Civil revision--Ejectment petition--Attachment of property was ordered--Order determination of rent and utility bills was executable by Special Judge Rent as decree of Civil Court--No jurisdictional error or legal or factual infirmity--No case to invoke revisional jurisdiction of High Court--Ejectment petition was disposed of on basis of that of rent between parties was determined--Execution petition was lodged seeking execution of order alleging default in payment of rent and claimed recovery of possession and arrears of rent--Order of attachment against petitioner--Being dissatisfied preferred an appeal which was dismissed--Challenge to--Special Judge Rent while exercising powers of Rent Controller had jurisdiction to determine finally amount of rent/dues from tenant as well as utility bills pertaining to period of tenancy till delivery of vacant possession of premises to landlord and to order its payment to landlord and in default to execute such order as a decree of Civil Court in terms of Ss. 13 & 15 of Ordinance--Impugned order for attachment of property of judgment debtor passed by Special Judge did not suffer from any illegality or jurisdictional error--Revision was dismissed. [P. 239] A & B

PLD 1968 SC 230, 1974 SCMR 704 & PLD 1990 Lah. 457, rel.

Mr. Iftikhar Ullah Malik, Advocate for Petitioner.

Mr. Abdul Manan Sipra, Advocate for Respondent.

Date of hearing: 6.12.2012.

Judgment

This Civil Revision under Section 115 of Code of Civil Procedure 1908 impugns the order dated 01.2.2011 passed by learned Special Judge (Rent) Lahore whereby attachment of the petitioner's property is ordered. It also assails the order dated 30.3.2011 passed by learned Additional District Judge Lahore whereby petitioner's appeal against the order dated 01.2.2011 has been dismissed.

1. It is argued by learned counsel for the petitioner that the impugned orders are against law and facts without application of judicious mind and liable to set aside; that the arrears of rent and utility bills claimed by the respondent through execution petition are beyond the period of tenancy as well as liable to be adjusted towards the security amount paid to the respondent in advance at the time of commencement of tenancy.

2. It is resisted by learned counsel for the respondent with the contentions that the learned Special Judge (Rent) Lahore has got the authority to determine the rent and utility bills payable to landlord/respondent by the petitioner/tenant and a final order of determination of rent and other utility bills is executable by the learned Special Judge (Rent) Lahore himself as a decree of civil Court; that there is no jurisdictional error or any legal or factual infirmity in the impugned orders passed by learned Courts below, therefore, petitioner has no case to invoke the revisional jurisdiction of this Court.

3. Arguments heard. Record perused.

4. Perusal of record transpires that on 05.11.2004 respondent lodged an ejectment petition under Section 13 of the Urban Rent Restriction Ordinance 1959. The petitioner resisted the said ejectment petition which was ultimately disposed of on 07.3.2009 on the basis of the statements of the parties in the manner that rate of rent between the parties was determined at the rate of Rs.30,000/- per month to be paid on 15th of the succeeding month through deposit in the Bank and in default petitioner will be liable to ejectment. The tenancy period was fixed up till 31.7.2011 and thereafter petitioner will liable to vacate the premises otherwise respondent will be entitled to recover the possession through filing of execution petition and that maintenance of the rented premises will be responsibility of the respondent. On 06.10.2009, respondent lodged an execution petition seeking execution of the order dated 07.3.2009 alleging default in the payment of the rent and claimed recovery of possession and arrears of rent, etc. Respondent/decree holder also submitted a chart of outstanding amounts against the petitioner/judgment debtor. Learned counsel for the judgment debtor obtained a couple of opportunities from the learned executing Court with the commitment to pay the outstanding amount/dues to the decree holder but failed. Consequently respondent submitted fard-taleeqa of the property owned by the petitioner/judgment debtor whereupon the learned Special Judge (Rent) Lahore passed an order of attachment against the petitioner. Being dis-satistted petitioner preferred an appeal before the learned Additional District Judge, Lahore, which was also dismissed vide impugned order dated 30.3.2011.

5. On 03.5.2011 learned counsel for the petitioner while arguing his case at pre-admission stage categorically submitted that the amount claimed by the respondent is not due rather only a sum of Rs.60,000/- i.e. rent for two months was due and adjustable against security held by the respondent in the sum of Rs.48,000/- and further pointed out that the bill raised by WASA in the sum of Rs. 1,90,790/- was being contested by the petitioner and he has undertaken to clear the same and that in view of the matter the order of attachment was harsh and illegal. In the light of the above `noted contentions of learned counsel for the petitioner pre-admission notice was issued. Record further reveals that on account of default in the payment of rent fixed by virtue of the order dated 07.3.2009 against the petitioner possession of disputed premises was delivered to the respondent on 11.10.2010. Therefore, learned Special Judge (Rent) is competent to determine the final rent due against the petitioner. Reliance be made upon Ghulam Rasool Vs. Said Rasool and 2 others (PLD 1990 Lahore 457). Simultaneously, learned counsel for the petitioner himself during his preliminary arguments before this Court on 03.5.2011 at pre-admission stage categorically stated that the utility bills raised by WASA in the sum of Rs. 1,90,790/- was being contested by the petitioner and he has undertaken to clear the same.

6. At this juncture it may be expedient to note that the West Pakistan Urban Rent Restriction Ordinance, 1959 stood repealed by the Punjab Rented Premises Ordinance, 2007 w.e.f. 16.11.2007. Section 35 of the Punjab Rented Premises Ordinance 2007 rends below:--

Repeal and savings.--(1) The Punjab Urban Rent Restriction Ordinance, 1959 (late)(VI of 1959), is hereby repealed.

(2) Notwithstanding the repeal of the Ordinance VI of 1959 (late);

(a) a proceeding pending before a Rent Controller shall stand transferred to the Rent Tribunal of the district or the area and the same shall be decided by the Rent Tribunal in accordance with the provisions of the repealed Ordinance;

(b) an appeal may be filed against an order passed under the repealed Ordinance in accordance with the provisions of the repealed Ordinance.

(c) an appeal pending under the repealed Ordinance may be decided in accordance with the provisions of the repealed Ordinance; and

(d) a Rent Controller appointed under the repealed Ordinance shall exercise and perform the functions of a Rent Tribunal and a Rent Registrar till the appointment of a Special Judge (Rent) and a Rent Registrar for the district or the area under this Ordinance."

1. The above noted provisions of Ordinance of 2007 held the field up till the enforcement of the Punjab Rented Premises Act, 2009 promulgated on 17.11.2009 whereby Ordinance of 2007 stood repealed. Sections 35 and 36 of the Punjab Rented Premises Act, 2009 are reproduced as under:--

"35. Repeal and savings.--(1) The Punjab Urban Rent Restriction Ordinance, 1959 (late)(VI of 1959), is hereby repealed.

(2) Notwithstanding the repeal of the Ordinance VI of 1959 (late):

(a) a proceeding pending before a Rent Controller shall stand transferred to the Rent Tribunal of the district or the area and the same shall be decided by the Rent Tribunal in accordance with the provisions of the repealed Ordinance;

(b) an appeal may be filed against an order passed under the repealed Ordinance in accordance with the provisions of the repealed Ordinance.

(c) an appeal pending under the repealed Ordinance may be decided in accordance with the provisions of the repealed Ordinance; and

(d) a Rent Controller appointed under the repealed. Ordinance shall exercise and perform the functions of a Rent Tribunal and a Rent Registrar till the appointment of a Special Judge (Rent) and a Rent Registrar for the district or the area under this Act.

1. Repeal and validation.--(1) The Punjab Urban Rent Restriction Ordinance, 2007 (XXI of 2007) is hereby repealed.

(2) Notwithstanding anything contained in any law, anything done, proceedings or action taken, order or rule made, liability incurred or right acquired under the Ordinance XXI of 2007 or purported to have been done, taken, made, incurred or acquired under that Ordinance, from the date of promulgation of the Ordinance till the coming into force of this Act, shall be deemed to have been done, taken, made, incurred or acquired under this Act."

1. In the above factual and legal position it is crystal clear that learned Special Judge (Rent) Lahore while exercising the powers of Rent Controller has the jurisdiction to determine finally the amount of rent/dues from the tenant as well as utility bills pertaining to the period of tenancy till the delivery of the vacant possession of the disputed premises to the landlord and to order its payment to the landlord and in default thereof to execute such order as a decree of civil Court in terms of Sections 13 and 15 of the West Pakistan urban Rent Restriction Ordinance, 1959. Rule 30 of the Order 21 of the Code of Civil Procedure, 1908 manifest mode of execution of decree which reads below:--

"Decree for payment of money.--Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in [-] prison of the judgment--debtor, or by the attachment and sale of his property or by both."

1. Simultaneously, Rule 42 of Order XXI of the Code of Civil Procedure 1908 provides the provision of attachment of the property for execution of the decree. The same is reproduced hereunder for ready reference:--

"Attachment in case of decree for rent or mesne profits or other mutter, amount of which to be subsequently determined.--Where a decree directs an inquiry as to rent or mesne profits or any other matter, the property of the judgment-debtor may, before the mount due from him has been ascertained, be attached, as in the case of an ordinary decree for the payment of money."

1. Careful and accumulative appraisal of the above quoted provisions of law and facts, therefore, makes it crystal clear that the impugned order dated 01.2.2011 for attachment of the property of the petitioner/judgment debtor passed by learned Special Judge (Rent) does not suffer from any illegality or jurisdictional error. Simultaneously, order dated 30.3.2011 passed by learned Additional District Judge Lahore dismissing the petitioner's appeal and confirming the order dated 01.2.2011 is also in accordance with law and facts and does not call for any interference by this Court through revisionsal jurisdiction. Reliance is made upon Ashfaq ur Rehman Vs. Ch. Muhammad Afzal (PLD 1968 Supreme Court 230), Syed Akhlaque Hussain Vs. Habib Ismail Bajwa, Advocate (1974 SCMR 704) and Ghulam Rasool Vs. Said Rasool and 2 others (PLD 1990 Lahore 457).

2. For the above reasons, I do not find any legal infirmity in the impugned orders passed by learned Courts below. Therefore, this Civil Revision having no merit is dismissed.

(R.A.) Revision dismissed

PLJ 2013 Lahore 240

Present: Abdus Sattar Asghar, J.

ABDUL MAJEED etc.--Petitioners

versus

MANZOOR HUSSAIN etc.--Respondents

C.R. No. 3675 of 2012, decided on 12.12.2012.

Words and Phrases--

----Malicious prosecution--Prosecution exists where criminal charge was made before judicial officer or tribunal. [P. 241] A

Halsbury's Laws of England (Fourth Edition)

Malicious Prosecution--

----Malicious prosecution is an abuse of process of Court by wrongfully setting law in motion on a criminal charge. [P. 241] B

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

----S. 115 & VII, R. 11(a)--Rejection of plaint--Suit for recovery of damages on basis of malicious prosecution, rejected--Cancellation report did not amount to termination of prosecution--Private complainant u/S. 200, Cr.P.C. pending trial against petitioner, therefore, petitioner lack any cause of action to file suit for recovery of damages for malicious prosecution merely on basis of cancellation report of Police Officer--Trial Court had rejected plaint in terms of Order VII, R. 11(a), CPC--Legal infirmity and jurisdictional defect in judgment and decrees passed by Courts below--Petitioner had no case to invoke revisional jurisdiction of High Court--Petition was dismissed. [P. 242] C

Malikzada Hameed-ur-Rehman, Advocate for Petitioners.

Date of hearing: 12.12.2012.

Order

Through this Civil Revision under Section 115 of the Code of Civil Procedure 1908 petitioners have impugned the order and decree dated 22.9.2010 passed by learned Civil Judge Okara whereby their plaint in the suit for recovery of damages on the basis of malicious prosecution was rejected under Order VII Rule 11 of Code of Civil Procedure 1908. They have also assailed the judgment and decree dated 24.8.2012 passed by learned Additional District Judge Okara whereby their appeal against the order and decree dated 22.9.2010 was dismissed.

1. It is argued by learned counsel for the petitioners that the impugned judgments and decrees passed by learned Courts below are passed in excess of jurisdiction against the settle principles of law; that the plaint was rejected by the learned trial Court during the trial when on the divergent pleadings of the parties issues had already been framed and examination in chief of the petitioners' witnesses had been recorded; that both the learned Courts below passed the impugned judgments and decrees on wrong premises of law and facts causing miscarriage of justice and are liable to set aside.

2. Arguments heard. Record perused.

3. Perusal of the record transpires that Respondent No. 1 lodged case FIR No. 550/2006 dated 11.10.2006 under Section 406 PPC, Police Station Chochak against the petitioners. During the police investigation the petitioners were found innocent and accordingly cancellation report dated 03.11.2006 was prepared by S.H.O. Police Station Chochak. Consequently petitioners lodged suit for damages on account of malicious prosecution against the respondents. The suit was resisted by respondents with the contentions that the police being connived have wrongfully declared the accused/petitioners innocent while making the cancellation report and that they have lodged a private complaint against the petitioners. It is not denied by the petitioners that private complaint on the same allegation is pending adjudication before the learned trial Court.

4. In Halsbury's Laws of England (Fourth Edition) Volume 45 Page 612 Para 1342 it is observed that a prosecution exists where criminal charge is made before a judicial officer or tribunal. A malicious prosecution is an abuse of the process of the Court by wrongfully setting the law in motion on a criminal charge. To be actionable as a tort the prosecution must have been malicious and terminated in favour of the plaintiff. In an action for malicious prosecution the plaintiff has to prove that:--

(i) he was prosecuted by the defendant of a criminal charge;

(ii) the proceeding complained of terminated in his favour;

(iii) the defendant instituted or carried on such prosecution maliciously or in other words the prosecution was instituted and carried on with a Malicious intention;

(iv) there was absence of reasonable and probable cause for such proceeding; and

(v) he has suffered damage.

1. In this case mere cancellation report by the police officer does not amount to termination of prosecution in favour of the petitioners. In the peculiar circumstances of this case since the Respondent No. 1 has also lodged a private complaint under Section 200 of the Code of Criminal Procedure, 1898, pending trial against the petitioners, therefore, petitioners lack any cause of action to file the suit for recovery of damages for malicious prosecution merely on the basis of cancellation report of the police officer. Learned trial Court therefore has rightly rejected the plaint in terms of Order VII Rule 11 (a) of the Code of Civil Procedure, 1908. I do not find any factual or legal infirmity and jurisdictional defect in the impugned judgments and decrees passed by learned Courts below. Petitioners have no case to invoke the revisional jurisdiction of this Court.

2. For the above reasons, this petition having no merit is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2013 Lahore 242 [Multan Bench Multan]

Present: Rauf Ahmad Sheikh, J.

MUHAMMAD SHARIF through his Legal Heirs and others--Petitioners

versus

NASRA @ NASIRA and 3 others--Respondents

C.R. No. 523-D of 2010, decided on 4.1.2013.

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

----S. 115 & 9--Specific Relief Act, 1877, S. 42--Displaced Persons (Compensation and Rehabilitation) Act, 1958, S. 25--Consequent mutation--Registered tamleek deed--Mutation of inheritance was attested by giving equal shares in disputed land--Evasive denial was made to effect--Civil Court being Court of ultimate jurisdiction to decide matter u/S. 9, CPC--Neither any order of settlement authorities was assailed nor any proceedings were called so ouster of jurisdiction--Constructive possession--Validity--Ouster of jurisdiction was not absolute--Plaintiff had not challenged any order of settlement authority rather his grievance was that after attestation of mutation under orders of competent authority entries in revenue record were illegally changed and such fact was established on record beyond any doubt--Concurrent findings of Courts of competent jurisdiction on question of fact cannot be interfered with in exercise of revisional jurisdiction u/S. 115, CPC--Petition was dismissed. [P. 247] A

Ch. Abdul Ghani, Advocate for Petitioners.

Mr. Anwar Mubeen Ansari, Advocate for Respondents No. 2 to 4.

Date of hearing: 14.12.2012.

Judgment

The petitioners have assailed the vires of judgment and decree dated 08.04.2010 passed by the learned ADJ, Khanewal, whereby an appeal filed by them against the judgment and decree dated 09.12.2004 passed by the learned Civil Judge 1st Class, Khanewal was dismissed.

1. The facts in brief as emerge on perusal of the record are that Respondent No. 1/plaintiff filed a suit for declaration to the effect that he is exclusive owner in possession of the land measuring 10-kanals fully described in the headnote of the plaint on the basis of the Mutation No. 68 dated 31.07.1954 and that the registered tamleek deed executed by Siraj Din (who died during the pendency of the suit and is now represented by Petitioners No. 2 to 5 i.e Defendants No. 3-A to 3-D) in favour of Muhammad Sharif (who died during the pendency of the appeal and is now represented by Petitioners No. 1-a to 1-c) and the consequent Mutation No. 580 dated 19.01.1993 are illegal, against the facts, void and liable of cancellation so revenue record based on the above mentioned documents are liable of correction and that the plaintiff/Respondent No. 1 is owner in possession of 1/2 share of the disputed land. As consequence relief, it was prayed that Defendant No. 4 be restrained for ever from claiming the ownership over the property and transferring the same. It was contended that the predecessor of the plaintiff and Defendants No. 3-A to 3-D was resident of Tehsil Narwala of Patiala State. On independence, they along with their father Fattoo left their native place but Fattoo died on the way, whereas the plaintiff and Siraj Din original Defendant No. 3 arrived in Pakistan. The units of agricultural and left by their late father were transferred to Pakistan and land measuring 20-kanals was allotted to them jointly vide Mutation No. 68 dated 31.07.1954. Siraj Din deceased, predecessor of Defendants No. 3-A to 3-D was elder than the Plaintiff/Respondent No. 1, who asked him to settle in the City and start some business there and that his share in produce would be given to him regularly. On this the plaintiff shifted to Khanewal City, where he used to earn his livelihood through labour, whereas Siraj Din continued the cultivation of the disputed land but he used to give share in produce to the Respondent No. 1 regularly. It is alleged that two years prior to the institution of the suit, deceased Siraj Din stopped the payment of share in produce so the plaintiff/respondent made a demand in this regard but he fraudulently refused and told that he was exclusive owner of the land. On this the plaintiff/respondent checked the revenue record and found that Siraj Din with the help of the officials of the settlement and revenue Departments did not get Mutation No. 68 dated 31.07.1954 entered in the revenue record and has illegally transferred the land to his grandson in order to deprive the Respondent No. 1 of his proprietary right. It is contended that the disputed tamleek deed and mutation are illegal and liable of cancellation.

2. The Defendants No. 3 and 4 contested the suit. It was contended that land measuring 20-kanals was allotted to predecessor of Defendants No. 3-A to 4 and that the Plaintiff/Respondent No. 1 had no link with or right over it. It was also alleged that the Civil Court lacked the jurisdiction to hear the suit and it was also barred by time. It was further urged that Plaintiff/Respondent No. 1 had no locus standi or cause of action to file the suit. Accordingly the learned trial Court framed the following issues:--

(1) Whether the plaintiff is owner in possession of the suit land in pursuance of Mutation No. 68 dated 31.07.1954? OPP

(2) Whether the registered tamleek by the Defendant No. 3 in favour of the Defendant No. 4 vide Mutation No. 580 dated 19.01.1993 is against law and facts, against the principle of natural justice and liable to be set aside? OPP

(3) Whether the plaintiff is entitled to get the decree for declaration and in consequential relief decree for perpetual injunction for the reasons mentioned in plaint?OPP

(4) Whether the plaintiff has no cause of action and locus standi to file the suit?OPD

(5) Whether the suit is not maintainable in its present form?OPD

(6) Whether this Court lacks jurisdiction to hear the matter in question? OPD

(7) Whether the plaintiff is estopped to bring the suit by his words and conduct? OPD

(8) Whether the suit is badly time barred? OPD

(9) Whether the suit is improperly valued for the Court fee and jurisdiction? OPD

(10) Whether the defendants are entitled to get costs from the plaintiff? OPD

(11) Relief.

1. After recording the evidence and hearing the arguments the learned trial Court passed the decree for declaration as prayed for in favour of Respondent No. 1 and against the petitioners. The same was assailed through an appeal before the learned Additional District Judge, which was dismissed through impugned judgment and decree dated 08.04.2010.

2. The learned counsel for the petitioners has contended that both the Courts blow have miserably failed to appreciate the evidence available on record; that under Para No. 67 of the Settlement Scheme, the mutation of succession of the deceased owner was to be attested but thereafter, the owners were required to seek allotment of their respective shares in accordance with law but Respondent No. 1 never made prayer for allotment so he has no right over the land and lacked the locus standi to file the suit; that the jurisdiction of Civil Court is clearly barred under section 25 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 so the impugned judgment and decree are void ab-initio and the same are not sustainable in the eyes, of law; that both the Courts have miserably failed to appreciate that the suit having been filed on 29.12.1998 was hopelessly barred by time and that admittedly the Respondent No. 1 is in possession of the land so the suit for declaration without a prayer for a decree for possession is hit by proviso to section 42 of the Specific Relief Act, 1877. In support of the contentions raised reliance is placed on 2002 SCMR 829 and PLD 2011 SC 916.

3. On the other hand, the learned counsel for Respondent No. 1 has contended that neither any order of the Settlement Authorities is assailed nor any proceedings have been called in question so the ouster of jurisdiction as embodied in Section 25 of the Act ibid is not attracted; that the Settlement Authorities rightly allotted the land to both the brothers being heirs of the deceased land owner, who died before arrival in Pakistan and thereafter, the mischief was committed by the deceased with the help of the Revenue Officers & officials of the Settlement Department and as such the civil Court being the Court of ultimate jurisdiction had the jurisdiction to decide the matter under Section 9 of the Code of Civil Procedure, 1908; that the possession over the land by Siraj Din was as coheir/sharer and the plaintiff/petitioner was also in constructive possession of the same and as such the suit having been brought within two years of attaining of the knowledge of the fraud committed by the deceased and officials of the Departments was not barred by time. In support of the contentions raised reliance is placed on PLD 1990 SC 1.

4. According to the plaintiff/Respondent No. 1, he and deceased Siraj Din were real brothers, who migrated from India and the mutation of inheritance was attested in their favour by giving equal shares to them in the disputed land. This contention was not specifically refuted in the written statement and only an evasive denial was made to the effect that the remaining contents of Para No. 1 are incorrect. However, the Petitioner No. 2 as D.W-1 had stated for the first time that Naseer @ Nasira brother of his father had gone back to India after attestation of mutation and did not come back. This contention is totally false as both the brothers had also inherited land in village Kot Chutta, District D.G Khan and jointly alienated it on 16.02.1972 as is clear from the copy of mutation Ex.P14. The mutation of inheritance Ex.P1 was attested on statement of Siraj Din, who categorically stated that he and Nasra are sons of Fattoo, who had died while coming to Pakistan at the time of independence. The mutation was attested on 03.09.1954 under the scheme by giving equal shares to his both sons. Thereafter, in Jamabandi for the years 1956-57 (Ex.P11) both the brothers were shown to be in possession of the land under the Settlement Commissioner but then after 1960-61, the land was firstly shown to be in exclusive possession of the Siraj Din and then he was entered as owner of the same. It is thus obvious that the entries were not carried forward properly after 1956-57. Admittedly, the land was initially allotted to both the brothers in equal shares but thereafter, Siraj Din predecessor of the petitioners maneuvered entries in the revenue record. There is nothing on the record to show that this land was given to him in lieu of his 1/2 share only. Admittedly, he himself remained, in possession till execution of the impugned tamleek deed in favour of his son's son Muhammad Sharif, who was predecessor of Petitioners No. 1 to 3. According to Muhammad Sharif, the tamleek deed was made in his favour in 1993-94 so till 1993-94 the Respondent No. 1 would be deemed to be in constructive possession. According to him, he has filed the suit on attaining the knowledge of the forged tamleek deed and mutation attested in pursuance thereof. The suit having been filed on 29.12.1998, therefore, was not barred by time. Even if it is admitted that Muhammad Sharif lawfully got 1/2 sharer of his father's father, he became co-sharer with Respondent No. 1, as his share could have not been transferred. As such, the petitioner is in constructive possession with him also and the suit is not hit by proviso of Section 42 of the Specific Relief Act, 1877. The next question raised by the learned counsel for the petitioners is that the civil Court lacks the jurisdiction. Section 25 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 provides as under:--

"Save as otherwise provided in this act, no Civil Court shall have jurisdiction in respect of any matter which the Central Government or an officer appointed under this Act is empowered under this Act to determine, and no injunction, process or order shall be granted by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act."

The mutation of inheritance was attested by the Settlement Authorities, where-under both the sons of the deceased land owner were given their due shares. These entries were duly carried to Jamabandi for the years 1956-57, but thereafter, the same were unauthorizedly changed without any order of the competent authority. The ouster of jurisdiction under the above mentioned provision is not absolute. The plaintiff/respondent had not challenged any order of the Settlement Authority rather his grievance is that after attestation of the mutation under the orders of the competent authorities, the entries in the revenue record were illegally changed and this fact is established on the record beyond any doubt. The case law cited at the bar by the learned counsel for the petitioners is not applicable on the facts of the present petition. The concurrent findings of the Courts of competent jurisdiction on the question of fact cannot be interfered with in exercise of revisional jurisdiction under Section 115, CPC. The impugned judgments and decrees do not suffer from any illegality or infirmity. The revision petition is without merits and the same is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2013 Lahore 247 [Multan Bench Multan]

Present: Ibad-ur-Rehman Lodhi, J.

MUHAMMAD AZHAR--Petitioner

versus

MEMBER JUDICIAL-VII, BOARD OF REVENUE, PUNJAB & 5 others--Respondents

W.P. No. 1700 of 2010, decided on 21.1.2013.

West Pakistan Land Revenue Rules, 1968--

----R. 17--West Pakistan Land Revenue Act, 1967, S. 164--Constitutional petition--Revisional jurisdiction--Age difference in between two contestants--In addition to hereditary claims of candidate--Validity--Authorities in revenue hierarchy had decided matter after taking into consideration of case and law on subject and in absence of any jurisdictional error or any illegality on part of authorities who decided issue of appointment of lambardar, order was not liable to be interfered with in constitutional jurisdiction of High Court. [Pp. 249 & 250] A

Mr. Abdul Jabbar Khan, Advocate for Petitioner.

Mr. Muhammad Zafarullah Khan Khakwani, Assistant Advocate-General for Respondents No. 1 to 3.

Mr. Tariq-ur-Rehman Hashmi, Advocate for Respondent No. 4.

Nemo for Respondents No. 5 and 6.

Date of hearing: 21.1.2013.

Order

Notices issued to Respondents No. 5 and 6 viz, Din Muhammad and Abdul Qayyum have been received bail with the report of the Process Server that both have refused to accept the service of notices. There is consensus in between the parties present that both are pro-forma respondents and in fact they are not practically interested in the proceedings of the present writ petition. They are, therefore, proceeded against ex-parte.

1. The Member (Judicial-VII), Board of Revenue Punjab, while exercising the revisional jurisdiction under Section 164 of the West Pakistan Land Revenue Act, 1967, proceeded to dismiss the revision, filed by the present petitioner, against the judgment passed by the Executive District Officer (Revenue), Layyah, accepting the appeal of Respondent No. 4 on 10.09.2008, which was filed against the original findings of the District Officer (Revenue), Layyah, arrived at on 24.08.2005, appointing the petitioner as Lambardar/headman of Chak No. 219/TDA, Tehsil Karor, District Layyah.

2. The learned counsel for the petitioner has argued that the District Officer (Revenue), who is Collector, in fact, acted on the reports of the field staff and ultimately appointed the petitioner as permanent Lambardar/headman. He further maintained that the petitioner is also a member of Zakat & Ushr Committee of the village and being an ex-Army Personnel, is a better choice as compared to Respondent No. 4.

3. As against this, the learned counsel appearing for contisting Respondent No. 4 has argued that although the rule of primogeniture has been declared repugnant to the Injunctions of Islam by the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan, nevertheless the same is yet the first consideration for appointment of headman of a village as provided in Rule 17 of the West Pakistan Land Revenue Rules, 1968. In addition to such qualification, being son of the deceased Lambardar, Respondent No. 4 is owner of a much more chunk of land than that of the petitioner. With regard to social status of the petitioner, it is argued that he is facing criminal proceedings in case registered under Sections 379 and 411 of P.P.C, and a person, implicated in an offence of theft, which is, no doubt, a crime of moral turpitude, cannot claim to be considered for appointment as headman of the village. The age difference in between two contestants is also claimed to be in favour of Respondent No. 4. According to the learned counsel for Respondent No. 4, the petitioner is an old man of 70 years and is a feeble person, whereas, Respondent No. 4 is not only 40 years of age but also a stout and active person.

4. I have heard the learned counsel for the parties and perused the record with their able assistance.

5. Keeping in view the provision of Rule 17 of the West Pakistan Land Revenue Rules, 1968, in addition to hereditary claims of the candidate, the extent of property in the estate, services rendered to the Government by him or by his family, his personal influence, character, ability and freedom from indebtedness, the strength and importance of the community from which selection of a headman is to be made and the ability to undergo training in Civil Defence, are the main considerations.

6. In case of Abdul Majeed vs. Member (Judicial-II), Board of Revenue Punjab, Lahore and 2 others (2006 YLR 1730), this Court while dealing with the same question, has considered a young man to be more suitable to be appointed as a headman and a person having previous history of anti-social activities, was not held to be considered against such appointment. The educational qualification and holding of sufficient land to meet the requirement of Zar-e-Bharat are also held relevant considerations for a person to be appointed as headman in order to cope with the demands of the said office.

7. In another judgment reported as Noor Ahmad, vs. Member (Judicial-VI), Board of Revenue, Punjab, Lahore and 2 others (2008 CLC 1141), it has been held that no one has a vested right to be appointed as a Lambardar and if the authorities in revenue hierarchy selects a person best suited for the purpose with a view to facilitate performance of administrative functions entrusted to such headman, that appointment cannot be disturbed in Constitutional Jurisdiction of this Court. In the reported matter, the considerations for appointment of Lambardar in addition to the earlier one are included as strength of character, education, knowledge, engagement in nation building activities and capacity to discharge rights and obligations towards his fellow-beings.

8. The learned counsel for the petitioner has placed his reliance on a view expressed by a Member Board of Revenue in case reported as Fazal Din vs. Bashir Ahmad (PLD 1961 W.P (Rev.) 98) to contend that age is not an important factor as against experience and understanding of social and human relationship.

9. After going through the record and hearing the arguments of the parties, I am of the view that the authorities in revenue hierarchy have decided the matter after taking into consideration of the case and the law on the subject and in absence of any jurisdictional error or any illegality on the part of the authorities, who decided the issue of appointment of Lambardar, the order impugned herein is not liable to be interfered with in Constitutional Jurisdiction of this Court.

10. Resultantly, the petition having no force is dismissed and the findings passed by the learned Member (Judicial-VII), Board of Revenue Punjab, Lahore in R.O.R No. 1048 of 2008 by means of order dated 22.12.2009 are maintained.

(R.A.) Petition dismissed

PLJ 2013 Lahore 250

Present: Mrs. Ayesha A. Malik, J.

AMMARIS MEHTAB CHAUDHRY--Petitioner

versus

VICE CHANCELLOR, SARGODHA UNIVERSITY, etc.--Respondents

W.P. No. 30214 of 2012, decided on 22.2.2013.

Educational Institution--

----Cancellation of admission--Gross violation in admission process--Admission in university, deposited requisite dues with university--Admissions were cancelled at the time when admissions in other universities had already been closed--Question of--Whether university could have cancelled admission--No allegation of procuring admission through chairman admission committee--Validity--Case against petitioner was based on presumption, being that since chairman of admission committee acted contrary to rules, hence, petitioners must have been involved in process of getting admission unlawfully--Neither any show-cause notice was served nor investigation was made against petitioner linking directly to fact of over admission of students by Chairman Admission Committee--No cavil to proposition that once a student was granted admission, a vested right is created in her favour--When a right is created, then admission can only be cancelled by due process of law--Chairman of admission committee acted negligently or against policy but petitioners cannot be held responsible for acts of chairman admission committee--Although it was not computer error nonetheless it is an act stated to be contrary to policy committed by chairman of admission committee--In order to cancel admission, university was obligated to follow due process and prove their case involvement in obtaining admission with connivance of committee for admission for which they were not entitled--Petitioners knowingly got admission contrary to admission policy--University cannot cancel admissions of petitioner, therefore, order cannot be sustained in eye of law--Petition was accepted. [Pp. 253 & 254] A, B, C & D

Mian Jameel Akhtar and Azmat Ali Chohan, Advocates for Petitioner.

Syed Zulfiqar Ali Bokhari and Mian Muhammad Shahid Nazeer, Advocates and Prof. Dr. Muhammad Afzal, University of Sargodha for Respondents.

Syed Nayyar Abbas Rizvi, Addl. A.G. on Courts Call for Respondents.

Date of hearing: 7.2.2013.

Judgment

Through this consolidated judgment, I intend to dispose of Writ Petitions Bearing Nos. 30214/2012, 30569/2012, 30570/2012 and 2029/ 2013 as common questions of law and fact are involved therein.

1. There are 13 Petitioners in the above mentioned Petitions. Facts of the case are almost similar in all the cases. Brief facts are that the Petitioners applied for their admission in B.S./M.A. English Session 2012-2016/2012-2014 at University of Sargodha, deposited the requisite dues with the University and joined their respective classes. Thereafter, Respondent No. 5 vide order dated 28.11.2012 cancelled the admission of the Petitioners stating that the admissions were given to them without observing the merit policy of the University. Hence these petitions.

2. Learned counsel for the petitioners inter alia contended that the impugned order was issued without any notice to the petitioners. That the petitioners were attending classes, when their admissions were cancelled. He also argued that the order impugned is a non-speaking order. That the admissions of the petitioners were cancelled at the time when admissions in all universities had already closed, therefore, with the cancellation of admission of the petitioners, their one educational year is lost and they would suffer irreparably. Learned counsel for the petitioners prayed that this writ petition be allowed, the impugned order dated 28.11.2012 be set aside and the Petitioners be allowed to join their respective classes.

3. On the other hand, learned counsel for the respondents opposed these petitions on the grounds that the petitioners were admitted to the University against the merit policy and in addition to the approved number of seats mentioned in the Admission Regulations, University of Sargodha. That the names of the petitioners were not on any merit list, hence their admissions were against the University Policy. That the University is well within its right to cancel an admission made contrary to the merit. In this regard, learned counsel relied upon Regulation 4.2.1 of the Admission Regulations 2011 (Amended) 2012 which provides that the admissions contrary to the Regulations are void. That the admission of the petitioners was cancelled in accordance with law and no illegality, whatsoever, has been committed by the respondents, therefore, the instant writ petitions in hand be dismissed.

4. Arguments heard. Record perused.

5. The matter in issue in these petitions is whether the respondent University could have cancelled the admission of the petitioners. The petitioners were granted admission in September, 2012. They attended classes till 28.11.2012 when their admissions were cancelled. Pursuant to a complaint with respect to the admissions in BS and M.A. English Program of the University, a committee reviewed the admission process and came to the conclusion that the Chairman of the Admission Committee admitted 60 students beyond the approved number of seats. These students did not satisfy the merit requirements and were not included in the merit lists issued by the University. The Committee came to the conclusion that a gross violation in the admission process was committed by the Chairman Admission Committee and it was recommended that action be taken against the Chairman of the Admission Committee and the admissions of those students who were admitted without merit be declared null and void. Learned counsel for the respondent-University argued at length. He stated that the admission process was flawed. That the petitioners did not come on any merit list, hence the respondents were well within their right to cancel the admission of the petitioners.

6. The record shows that the Committee which reviewed the admission process did not call the petitioners to inquire as to whether they were involved in any wrongful act for the purpose of procuring admission in the BS English and M.A. English Program of the University. On a query put by this Court, learned counsel for the respondent-University admitted that the petitioners were never called and no inquiry took place in this regard. As a consequence, neither the petitioners were called to explain as to how they got admissions nor their involvement in getting admissions with the connivance of the Chairman Admission Committee was investigated.

7. This Court gave the respondents an opportunity on 21.01.2013 to inquire from the petitioners about their admissions. The transcript of the questions asked by the respondents from the petitioners has been provided to the Court. Review of the transcript shows that the petitioners were asked five questions by the respondent No. 1 but not a single question imputing any fraud or misrepresentation was put to the petitioners with respect to their admissions. No allegation of procuring admission through the Chairman Admission Committee was put to the petitioners. Consequently, the respondents have not been able to show to this Court what illegal act was committed and how they managed to get admissions with the connivance of the Chairman Admission Committee at the relevant time. The entire case of the respondents is based on their understanding that the previous Chairman of the Admission Committee, without adhering to the rules and policy, admitted 60 students over and above the approved number of seats. Essentially, the case against the petitioners is based on a presumption, being that since the Chairman of the Admission Committee acted contrary to the rules, hence the petitioners must have been involved in the process of getting admission unlawfully in the University. Admittedly, neither any show-cause notice was served on the petitioners nor investigation was made against the petitioners linking them directly to the fact of over admission of students by the Chairman Admissions Committee. There is no cavil to the proposition that once a student is granted admission, a vested right is created in his/her favour. As such, when a right is created, then admission can only be cancelled by following due process of law.

8. Cancellation of admission tantamounts to a penalty. In order to impose a penalty, it was necessary for the respondents to follow due process which involved an inquiry, a show-cause notice, hearing and a decision by the competent authority after having heard all those concerned. In this case, the respondents themselves concluded upon an act of over admission and cancelled the petitioners' admissions. As such, they have not proven that the petitioners, in any manner, were involved in obtaining their admissions contrary to the merit and policy.

9. The record produced by the respondents shows that they put up five different merit lists wherein the petitioners' names were not included in any of the merit lists. However, hearing was given to the petitioners at the direction of this Court made vide order dated 21.01.2013. On a question as to how they came to know about the admission, most of the students replied that they were informed telephonically. On the basis of this response, the respondents concluded that the petitioners obtained their admissions by using unlawful means. At this point, it is necessary to note that during the course of arguments, it was revealed that one of the petitioners namely Suba Khan was adjusted in the L.L.B. Program as his merit satisfied the requirements of the said program.

10. Learned counsel for the respondent-University also argued that he who seeks equity must do equity and must approach this Court with clean hands. He argued that ill-gotten gains cannot be protected through an order of the Court. He placed reliance on the dictums laid down in case titled "Muhammad Ali and 11 others Vs. Province of KPK through Secretary, Elementary and Secondary Education, Peshawar and others (2012 SCMR 673)." I have reviewed the judgment cited by learned counsel for the respondent-University and found that the petitioners of that case admittedly got their appointment from the back door without advertising vacancies calling for applications and their appointments were made without observing codal formalities. Based on this information, the Hon'ble Supreme Court of Pakistan concluded that they could not challenge the termination letters issued to them. The case of the petitioners of the instant petitions is distinguishable from the case cited as there is no admission on the part of the petitioners and there is no proven case against the petitioners by the respondents. The admission was liable to be cancelled if the petitioners were found guilty of suppression or misrepresentation of material facts or it was proven that they were involved in procuring their admissions by using unlawful means. In this case, it may be said that the Chairman of the Admission Committee acted negligently or against the policy but the petitioners cannot be held responsible for the acts of the Chairman Admission Committee. Reliance is placed on the ratio laid down in case titled Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others Vs. WASIF Zamir Ahmad and another (1997 SCMR 15)" wherein it was held that the petitioners of that case were not at fault, hence a vested right was created in their favour which could not be taken back arbitrarily. In the said case, the admission was given, fee was accepted and classes were attended. Subsequently, the University cancelled the admission of the students stating that the petitioners were granted admission through unfair means. It was on account of a computer error that the admission was given, hence the Hon'ble Supreme Court held that for a mistake or negligence on the part of the University, the students could not be made liable. Although in this case, it is not a computer error, nonetheless it is an act stated to be contrary to the policy committed by the Chairman of the Admission Committee. In order to cancel the admission of the petitioners, the respondents were obligated to follow due process and prove their case with respect to the involvement of the petitioners in obtaining admission with the connivance of the Chairman of the Admission Committee for admissions for which they were otherwise not entitled to.

11. There is nothing on record to show that the petitioners knowingly got admission contrary to the admission policy. Without such proof, the respondents cannot cancel the admissions of the petitioners, therefore, the impugned order cannot be sustained in the eye of law.

12. For what has been discussed above, this writ petition is accepted, the impugned order dated 28.11.2012 is set aside and the petitioners are allowed to continue their classes. It is clarified that the petitioners in the interregnum will be treated as they were attending their respective classes and their absence for the said period will not make basis to stop them to appear in the examination for want of attendance.

(R.A.) Petition accepted

PLJ 2013 Lahore 255

Present: Muhammad Khalid Mehmood Khan, J.

SYED BASHARAT ALI--Petitioner

versus

WASA through its Managing Director and 4 others--Respondents

W.P. No. 28767 of 2012, decided on 15.1.2013.

Constitution of Pakistan, 1973--

----Art. 199--PEEDA Act, 2006, S. 21--Constitutional petition--Pensionary benefits of retired employee under PEEDA Rules--Validity--It was admitted fact that petitioner was reinstated, his matter was sent to anti-corruption department--Application remained pending for release of pensionary benefits but WASA was withholding the pensionary benefit due to pendency of case before anti-corruption department--Anti-Corruption Court will either acquit petitioner or will convict even after his retirement--Pension and its benefits were nothing to be with conviction of petitioner and as such withholding of pensionary benefits was an illegal act on part of WASA--Petition was allowed. [P. 256] A

Mr. Sarmad Ghani Chattha, Advocate for Petitioner.

Mr. Iftikhar Ahmad Qureshi, Advocate for Respondents.

Falak Sher Malik, D.D.L.

Date of hearing: 15.1.2013.

Order

The petitioner filed a Writ Petition No. 24371/2012 claiming the release of pensionary benefits gratuity and 6 month's salary which was not paid inspite of the fact that petitioner was retired 03 years ago, the petitioner was orally informed that due to pendency of departmental inquiry and proceedings in Anti Corruption Court he is not entitled for pensionary benefits. This Court directed the respondents to decide the petitioner's grievance through a reasoned order after providing opportunity of hearing to petitioner. The petitioner appeared before respondent on 13.10.2012. The petitioner's request was accorded subject to providing undertaking as per letter dated 19.10.2012. The petitioner thus has assailed the impugned order dated 01.11.2012.

1. The petitioner asserts that the case pending against the petitioner before Anti-Corruption Court has no nexus with the release of pensionary benefits of a retired employee. The Deputy Director (Legal) WASA has already given his opinion to Respondent No. 1 on 1.11.2012 for release of petitioner's salary w.e.f 11.11.2009. Learned counsel for petitioner submits that petitioner has been retired 03 years ago and no inquiry can be initiated against him under the PEEDA Rules. Show-cause notice was issued on 11.5.2009 and after that no proceedings took place and as such initiation of inquiry against the petitioner is without lawful authority.

2. Notices were issued to respondents, they filed report and parawise comments. The respondents in their report and parawise comments have admitted that an office order has been issued vide No. Admn/ADA-II/16450-55 dated 01.11.2012. It is further admitted that the show-cause notice was issued under the PEEDA Act, the Deputy Director (Legal) present in Court confirms that under Section 21 of the PEEDA Act, 2006 the petitioner is entitled for grant of his benefits of retirement.

3. Learned counsel for respondents when confronted with the Section 21 of the PEEDA Act that all proceedings initiated against the employees having retired or in service, shall be governed by the provisions of this Act and the rules made thereunder and in case of retired employee, the proceedings so initiated against him shall be finalized not later than two years of his retirement. The petitioner has been retired from service 03 years ago and as such if the disciplinary proceedings initiated against the petitioner have not been finalized within 02 years the proceedings could not continue, the petitioner's pensionary benefits cannot be withheld. Learned counsel is unable to controvert the legal position.

4. Learned counsel for petitioner submits that petitioner was retired on 10.11.2009, earlier the petitioner's services were terminated but on 3.1.2009 the petitioner was reinstated. The petitioner was again issued show-cause notice under the earlier proceedings which stand finalized and petitioner's case was sent to Anti-corruption department.

5. The above said facts are not denied by learned counsel for respondents. It is an admitted fact that petitioner was reinstated on 03.1.2009, his matter was sent to Anti-corruption department, the petitioner was released on bail by the Court, he retired on 10.11.2009 after completing 41 years with WASA, his application remained pending for release of pensionary benefits but respondents are withholding the said amount due to pendency of case before Anti-corruption department. Admittedly Anti-corruption Court will either acquit the petitioner or will convict him even after his retirement. The pension and its benefits are nothing to do with the conviction of petitioner and as such withholding of petitioner's pensionary benefits is an illegal act on the part of respondents.

6. In view of above, the petition is allowed, the respondents are directed to release the petitioner's pensionary benefits etc.

(R.A.) Petition allowed

PLJ 2013 Lahore 257 [Multan Bench Multan]

Present: Ijaz Ahmad, J.

MUHAMMAD TAHIR and 2 others--Petitioners

versus

MUHAMMAD ASHRAF and 16 others--Respondents

W.P. No. 7566 of 2012, decided on 30.1.2013.

Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--

----Ss. 15(10) & 22--Civil Procedure Code, (V of 1908), S. 12(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional--Petition--Auction proceedings--Mechansim for sale of mortgaged property of mortgagor--Without intervention of Court might sell property by public auction--Application u/S. 12(2), CPC against a decree was not maintainable as Ordinance, 2001 provides an appeal u/S. 22--Notice to one of partners shall be deemed to be notice to all partners and partner living abroad cannot press non-service of notice--Availing of loan facility was not denied--Validity--After property having been put to auction, highest successful bid offered by respondent was only to file proper accounts of sale proceeds in Banking Court which was done--Application made after elapse of ten years was of no avail to them--Petitioner had actual remedy of preference an appeal against any judgment, decree or a final order passed by Banking Court--Order being a final order in that matter was appealable--An application u/S. 12(2), CPC was not maintainable--After receipt of an application u/S. 15(10) of Ordinance, petitioner will be deemed to have been validly served by Banking Court by publication in newspaper--Petition was dismissed. [P. 260] A & B

2000 MLD 421, 2002 CLD 401, 2006 CLD 528 & 2009 CLD 1389, ref.

Mr. Tariq Zulfiqar Ahmed Choudhary, Advocate for Petitioners.

Mr. S.M. Baqir, Advocate for Respondent No. 15.

Syed Zumrad Hussain, Advocate for Respondent No. 16.

Date of hearing: 21.1.2013.

Order

Respondents No. 1, 7, 8 and 9 have already been proceeded ex-parte. Respondents No. 10, 11, 13 and 14 are represented through Ch. Mubarak Ali, Advocate. The name of learned counsel appears in the cause list. No one has turned up on their behalf. They are proceeded ex-parte.

1. M/s. Choudhary Cotton Factory whose proprietors were the petitioners, Respondent Nos. 1 and 2 and the predecessor of Respondents No. 3 to 8, availed loan facility from Allied Bank, Grain Market Branch. Vehari. The loan was not returned. It swelled to Rs.77,41,509/-. In order to satisfy the loan, the respondent/Bank put the mortgaged property to auction. The said respondents, then made an application under Section 15(10), Financial Institutions (Recovery of Finances) Ordinance, 2001, for filing proper accounts in the sale, proceeds in the Banking Court within the stipulated period. The present petitioners were arrayed as Respondents No. 8, 9 and 11 therein. Notices were sent to the respondents, named therein. Respondents No. 1, 2 &, predecessor of Respondents No. 3 to 8 appeared in the Banking Court and made a statement that they admitted their liability for repayment of the loan Rs.77,41,509/-. They also accepted the auction proceedings and expressed their no objection. The learned Banking Court vide order dated 19.02.2003, in view of the above statement, accepted the application, made by Respondent No. 16. The auction proceedings were confirmed. The excessive amount was ordered to be remitted to Respondents No. 1 to 8. The petitioners made an application under Section 12(2) C.P.C. on 10.08.2010 for setting aside the order dated 19.02.2003 on the allegation of fraud, mala fide, mis-representation of facts and law, want of jurisdiction and connivance. It was alleged therein that no notice was issued to the petitioners; that Respondents No. 1 to 8 had connived with respondent-Bank to cast away the property at a through away price. Respondent No. 15, the successful bidder made an application for rejection of the application made by the petitioners. The application was accepted and the petitioners' application under Section 12(2) C.P.C. was rejected vide the impugned order dated 28.04.2012.

2. It is contended by the learned counsel for the petitioners that no notice was served to the petitioners in accordance with law; that the order dated 19.02.2003 has been obtained by connivance and a criminal combination between Respondents No. 1 to 8, 15 and 16; that valuable property of the petitioners has been cast away at a through away price and the petitioners have been deprived of their due share; that Respondents No. 1 to 8 had no authority to make a statement and to acquiesce to the auction proceedings on behalf of the petitioners; that an application under Section 12(2) C.P.C. to set aside the order passed by the Banking Court is competent. Relies on `Muhammad Aslam and another Vs. National Bank of Pakistan and 7 others' (2009 CLD 1389).

3. On the other hand, it is contended by the learned counsel appearing on behalf of Respondents No. 15 & 16 that Section 15 of Financial Institutions (Recovery of Finances) Ordinance, 2001 provides a complete mechanism for the sale of mortgaged property of the mortgager. It is provided under sub-section (4) of the Section 15 of the Ordinance ibid that in case of failure of mortgager to pay the amount as demanded and after due date given in the final notice, the Financial Institution may without the intervention of the Court may sell the property by public auction, provided a notice is published in two newspapers, one reputed English and one Urdu' daily newspaper with wide circulation in the Province in which the property situates. He submits the record which transpires that the notices were so published. The Court after receipt of application under Section 15(10) of Ordinance ibid caused to be issued notice through registered post and by publication in newspaper and it was so published. The service in any one of the modes referred to in Section 9 of Ordinance ibid would deem to be a valid service; that an application under Section 12(2) C.P.C. against a decree passed or a decision made is not maintainable as the Ordinance ibid provides an appeal under Section 22. Relied onGhulam Mustafa Bughio and another Vs. Judge Banking Court No. 4, Karachi and another' (2006 CLD 528), Messrs Gold Star International and another Vs. Muslim Commercial Bank Limited' (2000 MLD 421) and Mst. Ruqiyya Rhazes Vs. Al-Falah Bank and 7 others' (2002 CLD 401). He further contends that upon execution and registration of the sale-deed of the mortgaged property in favour of the purchaser, all rights shall vest to him free from all encumbrances and the mortgagor shall divest of any right, title and interest in the mortgaged property. The Financial Institution under Section 15(10) of Ordinance ibid, has only to file the proper accounts of the sale proceeds in the Court. No confirmation by the Court is required in this case and that the application made by the petitioners after elapse of ten years is a futile exercise to retrieve the property after its appreciation many times over since 2002. Relies onMessrs Unicon Enterprises Vs. Banking Court No. 5, City Court Building, Karachi and 2 others' (2004 CLD 1452); that the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 provides that the provisions of the Ordinance will not be in derogation to the existing laws whereas Ordinance, 2001 ibid contains the ouster clause borne its Sections 4 and 15(4) that the provisions of the Ordinance shall have effect notwithstanding any thing inconsistent contained in any other law for the time being inforce. Relies on Muhammad Umer Rathore Vs. Federation of Pakistan' (PLD 2009 Lahore 268). It is further contended that notice to one of the partners shall be deemed to be notice to all the partners and any partner living abroad cannot press the non-service of the notice. Relies onJavaid Mahmood Vs. United Bank Limited and 4 others' (2001 CLC 2011)

4. I have heard the arguments of learned counsel for the parties and perused the record.

5. Availing of the loan facility is not denied. The respondent/Bank retrieved the financial facility advanced by it by putting to auction the mortgaged property of the mortgagor/loanee under the provision of Section 15 of Ordinance ibid. The Bank has adopted the procedure laid down under Section 15(4) of Ordinance ibid and has issued notices through two, one English and one Urdu' daily newspapers, having country wide circulation and circulation in the Province concerned. After the property having been put to auction, the highest successful bid offered by Respondent No. 5, the Financial Institution was only to file the proper accounts of the sale, proceeds in Banking Court, which was done. The application made by the petitioners after elapse of ten years is of no avail to them. The petitioners had the actual remedy of preference an appeal against any judgment, decree or a final order passed by a Banking Court under Section 22 of the Ordinance 2001 ibid. The order dated 19.02.2003 being a final order in that matter was appealable. An application under Section 12(2) C.P.C. is not maintainable in view of the judgments titledGhulam Mustafa Bughio and another Vs. Judge Banking Court No. 4, Karachi and another' (2006 CLD 528), Messrs Gold Star International and another Vs. Muslim Commercial Bank Limited' (2000 MLD 421) andMst. Ruqiyya Rhazes Vs. Al-Falah Bank and 7 others' (2002 CLD 401), referred by the learned counsel for the respondents and was not maintainable as there is no element of fraud, misrepresentation or lack of jurisdiction apparent from the record. The judgment Muhammad Aslam and another Vs. National Bank of Pakistan and 7 others' (2009 CLD 1389), referred to by the learned counsel for the petitioners will be of no avail to petitioners as the same have only the persuasive value whereas the judgmentsGhulam Mustafa Bughio and another Vs. Judge Banking Court No. 4, Karachi and another' (2006 CLD 528) and Mst. Ruqiyya Rhazes Vs. Al-Falah Bank and 7 others' (2002 CLD 401) given by the Lahore High Court, Lahore and the judgmentMessrs Gold Star International and another Vs. Muslim Commercial Bank Limited' (2000 MLD 421) given by the learned Divisional Bench of the Lahore High Court, Lahore are to be followed. The Act of 1997 contracts its own extent and opts not to derogate from the existing law. The Ordinance of 2001 ibid overlaps the existing laws. After receipt of an application under Section 15(10) of Ordinance ibid, the petitioners will be deemed to have been validly served by the Banking Court by publication in the newspaper. The said section is exhaustive in nature and provides a complete procedure and mechanism for recovery of finances.

6. For what has been discussed above, I am of the view that the learned Judge Banking Court has rightly rejected the application of the petitioners under Section 12(2) C.P.C. This appeal has no merits and is dismissed.

(R.A.) Appeal dismissed

PLJ 2013 Lahore 261

Present: Ch. Shahid Saeed, J.

ABDUL RASHEED--Petitioner

versus

CIVIL JUDGE SANGLA HILL, DISTRICT NANKANA SAHIB and others--Respondents

W.P. No. 13360 of 2010, decided on 4.5.2012.

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

----S. 13--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Secondary evidence--Application for secondary evidence was dismissed by Courts below--Challenge to--Secondary evidence intended to produce original notice of talb-e-ishhad which has to be attached with plaint at time of filing suit--Contention--At time of filing the suit, notice was misplaced and now had been traced--Validity--It was primary duty of petitioner to annex the notice with plaint at time of filing the suit but procedure was not adopted at that time--Now at belated stage, petitioner intends to fill in lacuna by filing application for secondary evidence--No illegality or material irregularity in orders passed by Courts below--Petition was dismissed. [P. 262] A

Mr. Muhammad Tariq Butt, Advocate for Petitioner.

Date of hearing: 4.5.2012.

Order

Brief history of the case is that petitioner filed a suit for possession through pre-emption against the respondents. Respondent Nos. 3 to 5 contested the same by filing their written statement. Out of divergent pleadings of the parties, learned trial Court framed necessary issues including relief. Both the parties got recorded their evidence. Learned trial Court after hearing the arguments of both the parties, ultimately dismissed the suit of the petitioner. Petitioner preferred an appeal which was allowed and the case was remanded to the trial Court with a direction to decide the same afresh. In post remand proceedings petitioner filed an application for secondary evidence which was dismissed by the learned trial Court vide order dated 22.12.2009. Petitioner filed a civil revision which also met with the same fate by the learned Revisional Court vide order dated 25.02.2010. Feeling aggrieved by the said orders petitioner has filed the instant writ petition.

1. Learned counsel for the petitioner contends that the impugned orders are against law and facts and also based upon surmises and conjectures.

2. Heard. Record perused.

3. Undeniably, through the secondary, evidence petitioner intended to produce the original notice of Talb-e-Ishhad which has to be attached with the plaint at the time of filing the suit. The contention of learned counsel for the petitioner was that at the time of filing the suit the said notice was misplaced and now the same has been traced out. As per Section 13 of the Pre-emption Act, it was the primary duty of the petitioner to annex the said notice with the plaint at the time of filing the suit but said procedure was not adopted at the relevant time. Now at belated stage petitioner intends to fill in the lacuna by filing the application for secondary evidence. There are concurrent findings of both the Courts below against the petitioner. I find no illegality or material irregularity in the impugned orders passed by the Courts below.

4. For the foregoing reasons, there is no force in the instant writ petition and the same is dismissed with no order as to costs.

(R.A.) Petition dismissed

PLJ 2013 Lahore 262

Present: Muhammad Khalid Mehmood Khan, J.

KABIR HUSSAIN, ASSTT. SUB-INSPECTOR HIGHWAY PATROLLING DISTRICT GUJRAT--Petitioner

versus

REGIONAL POLICE OFFICER, REGION-II, GUJRANWALA and 2 others--Respondents

W.P. No. 24883 of 2012, decided on 6.3.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Request of ante-dated promotion to rank of officiating ASI--Word "Considere" was used in judgment--Promotion to rank of ASI was to be made as per promotion list which was maintained at range level and not at district level--Petitioner’s confirmation in rank of H.C., date of out of turn promotion did not make petitioner senior to HCS as all of them were senior in promotion list which was basic step for promotion in rank of SI--Order was set aside by Pb. S.T. where word consider was used in judgment, authority was bound to decide case after due consideration--Order was without any reason and same was set aside and matter was remanded for deciding afresh--Petition was allowed. [P. 264] A & B

Mr. Muhammad Iqbul Mohal, Advocate for Petitioner.

Ch. Muhammad Iqbal, Additional Advocate General, Punjab, alongwith Akhtar Mehmood DSP (Legal).

Date of hearing: 6.3.2013.

Order

Through this constitutional petition, the petitioner has prayed that the judgment dated 17.1.2011 passed by the Punjab Service Tribunal, Lahore be directed to be implemented strictly in its true letter and spirit.

1. The learned Punjab Service Tribunal, Lahore on 17.1.2011 passed a judgment in Appeal No. 1062/2009 in the following terms:

"In view of the above discussion, the appeal is accepted and the impugned orders are set-aside. The respondent department is directed to consider the case of the appellant for ante-dated promotion as ASI and SI qua his juniors who were so promoted".

1. Notices were issued to respondents, they filed report and parawise comments and placed on record order dated 26.10.2011 confirming that the petitioner's request of ante-dated promotion to the rank of ASI and SI prior to qualification of Intermediate (HCs) Class Course is not justified.

2. Learned counsel for petitioner submits that the said order has not been passed according to the judgment of learned Punjab Service Tribunal, Lahore and as such the same is liable to set-aside.

3. The petitioner has relied on Abdul Hameed Anjum and others V. Federation of Pakistan and others (PLD 2010 Supreme Court 857) and Rana Mahmood Hussain, Officer Grade-II Habib Bank Limited, Sahiwal V. Chairman, National Industrial Relations Commission, Camp at Lahore and 2 others (2001 PLC 697).

4. Learned counsel submits that the word "consider" has been used in the judgment dated 17.1.2011 which has specific significance. Learned counsel submits that word "consider" means serious, reasonable, fair, bona fide interest and genuine application of mind. The impugned order clearly shows that it has been passed without considering the facts available on record.

5. Learned Additional Advocate General, Punjab submits that the impugned order has been passed after giving serious consideration to the facts available on record. The claim of petitioner for ante-dated promotion to the rank of ASI/SI prior to the qualification of Intermediate (HCs) Class Course was not justified under the Rule 13.9 of Police Rules. Learned Additional Advocate General, Punjab submits that Punjab Service Tribunal, Lahore in his judgment dated 17.1.2011 has not directed to override the Rule 13.9 of Police Rules and as such the order is perfectly in accordance with law.

6. Heard. Record perused.

7. The petitioner's representation for ante-dated promotion to the rank of officiating ASI as well as promotion to the rank of officiating S.I. on the analogy of (Sis) that Shaukat Ali etc become senior to him, the said representation was considered by respondents and was rejected on 28.7.2007 on the ground that petitioner's case was not supported by rules nor fall under the instructions of Inspector General Police. Promotion to the rank of ASI is to be made as per promotion list-D which is maintained at the range level and not at the district level. The petitioner's confirmation in the rank of H.C w.e.f 19.2.1992, the date of out of turn promotion did not make the petitioner senior to HCs (now S.Is) as all of them were senior to him in promotion list-D which is basic step for promotion in the rank of S.I. This order was set-aside by the learned Punjab Service Tribunal, Lahore. The respondent again passed the order on the same analogy which was set-aside by the learned Punjab Service Tribunal, Lahore. The Hon'ble Supreme Court of Pakistan has held that word "consider" has a significance and where the word "consider" has been used in the judgment, the authority is bound to decide the case after due consideration. The impugned order thus is without any reason and as such the same is set-aside and matter is remanded to respondent for deciding the same afresh keeping in view the judgment of learned Punjab Service Tribunal, Lahore dated 17.1.2011. The petition is allowed in the above terms.

(R.A.) Petition allowed

PLJ 2013 Lahore 265

Present: Abdus Sattar Asghar, J.

MATLOOB RABBANI and 5 others--Petitioners

versus

MANZOORAN BEGUM and another--Respondents

C.R. No. 564 of 2011, heard 29.1.2013.

Ocular account--

----Plea of forgery and fraud alleged by respondent was not substantiated through any reliable ocular or documentary account. [P. 269] A

Muhammadan Law--

----Matter of gift and divorce--It is an established principle of Muhammadan Law that in matters of gift and divorce, a Muslim can confer the authority to an agent--There is no cavil to proposition that matters like gift and divorce being personal act of principal are to be based upon his own mental decision. [P. 270] B

Gift--

----Declaration of gift is prerogative of donor who after making such declaration however can appoint an agent conferring authority upon him to take necessary steps for accomplishment of gift. [P. 270] C

Muhammadan Law--

----Tamlik means assignment of ownership--It is a kind of gift in favor of expected legal heir. [P. 270] D

Power of Attorney--

----Contents of general power of attorney--Bona-fide intention of its executant to make a gift in favour of his son--Execution of general power of attorney in favour of his real brother reflected that he had taken a conscious decision of making a gift and for implementation of object executed general power of attorney in favour of his real brother. [P. 271] E

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

----S. 115--Valid gift--Petitioners had established a lawful valid gift of the suit property--Respondent had failed to establish that gift of suit property was invalid or based on fraud--Judgment and decree passed by First Appellate Court was based on misreading or non-reading of evidence against law and fact suffering from factual and material illegalities and liable to set aside--Revision was allowed. [P. 271] F

Mr. Muhammad Mujtaba Hassan Khan, Advocate for Petitioners.

Mr. Arif Hussain Cheema, Advocate for Respondents.

Date of hearing: 29.1.2013.

Judgment

This Civil Revision under Section 115 of Civil Procedure Code, 1908 is directed against the judgment and decree dated 20.10.2009 passed by learned Additional District Judge Shorkot, District Jhang whereby judgment and decree dated 10.4.2008 passed by learned Civil Judge Shorkot, District Jhang was set aside and respondents' suit for declaration etc. was decreed.

1. Succinctly facts leading to this Civil Revision are that Manzooran Begum/Respondent No. 1 as widow and Fatima Bibi/Respondent No. 2 as daughter of Muhammad Ali lodged the suit for declaration etc. on 22.11.2002 against Muhammad Yaqoob/predecessor of the petitioners and Ch. Din Muhammad/Defendant No. 2 (not impleaded in this revision petition) alleging that as legal heirs of Muhammad Ali they are owners-in-possession of 10/24 share in the suit property comprising 1 Kanal, 9 Marlas in Khata No. 1324/1239 situated at Mauza Shorkot Shumali, Tehsil Shorkot, District Jhang as described in the head note of the plaint and that Gift-Deed No. 59 dated 27.2.1994 and on the basis thereof Mutation No. 9507 dated 24.7.1994 in favour of Muhammad Yaqoob are against law and facts, based on fraud, void ab-initio and ineffective against their rights. As a consequential relief respondents also sought decree for possession through partition of their share as well as permanent injunction restraining the petitioners from interfering in the ownership, use and possession of the suit property. Respondents averred in the plaint that Muhammad Ali died on 1.8.2002 and Muhammad Yaqoob is also one of his legal heirs as real son. Respondents also averred in the plaint that Muhammad Ali had neither gifted out the suit property in favour of Muhammad Yaqoob nor executed the impugned power of attorney dated 5.1.1994 in favour of his real brother Ch. Din Muhammad/Defendant No. 2 authorizing him to execute the gift in favour of Muhammad Yaqoob; that the impugned power of attorney dated 5.1.1994 is based on fraud, forgery and ineffective as against the facts.

2. Muhammad Yaqoob resisted the suit by filing contesting written statement with the contentions that his father Muhammad Ali (deceased) had orally gifted out the suit property in his favour and thereafter executed general power of attorney dated 5.1.1994 in favour of real brother Ch. Din Muhammad to execute the gift in his favour; that Ch. Din Muhammad lawfully executed the Gift-Deed No. 59 dated 27.2.1994 in his favour; that he is owner in possession thereof on the basis of gift; that the gift in his favour was in the knowledge of every member of the family; that Mutation No. 9507 dated 24.7.1994 was correctly attested on the basis of registered gift-deed No. 59 dated 27.2.1994.

3. On account of divergent pleadings of the parties, learned trial Court framed the following issues.--

ISSUES:

(1) Whether the plaintiffs are owners in possession of Bungalow of Muhammad Ali deceased to the extent of 10/24 share being legal heirs of the deceased? OPP

(1-A) Whether the power of attorney Bearing No. 3 dated 5.1.1994 in favour of Muhammad Ali deceased from the Defendant No. 2 is against the law and facts and liable to be cancelled? OPP

(2) Whether Gift-Deed No. 59 dated 27.2.1994 and Mutation No. 9507 dated 24.7.1994 on the basis of gift-deed is against law and facts, based on fraud, ineffective quo the rights of the plaintiffs and liable to be set aside? OPP

(3) Whether the plaintiffs are entitled to the decree for declaration and partition as prayed for? OPP

(4) Whether the suit is not maintainable in its present form? OPD

(5) Whether the description of the suit property is incorrect? OPD

(6) Whether the plaintiffs have no cause of action or locus standi? OPD

(7) Whether the suit is time barred? OPD

(8) Whether the suit is false and baseless and defendants are entitled to special cost under Section 35-A of CPC? OPD

(9) Relief.

1. After recording parties' evidence and hearing the learned counsel for the parties, the learned trial Court dismissed respondents' suit vide judgment and decree dated 10.4.2008. Respondents assailed the said judgment and decree which was accepted and the suit was decreed vide judgment and decree dated 20.10.2009 passed by learned first appellate Court. Hence this Civil Revision.

2. It is argued by learned counsel for the petitioners that the impugned judgment and decree dated 20.10.2009 passed by learned Additional District Judge Shorkot, District Jhang is against law and facts, based on misreading and non-reading of evidence and liable to set aside; that the respondents have failed to establish alleged fraud in execution of impugned general power of attorney, gift-deed and mutation; that the petitioners have established a valid gift by Muhammad Ali in favour of the petitioners' predecessor Muhammad Yaqoob as well as lawful execution of general power of attorney in favour of Ch. Din Muhammad who executed the impugned gift-deed in favour of Muhammad Yaqoob.

3. On the other hand learned counsel for the respondents has argued that the learned trial Court had dismissed respondents' suit against law and facts through judgment and decree dated 10.4.2008 based on misreading and non-reading of evidence; that the learned first appellate Court granted the appeal while appreciating the evidence in a salutary manner in accordance with law; that the petitioners have miserably failed to establish a valid gift in favour of their predecessor Muhammad Yaqoob; that the impugned judgment and decree dated 20.10.2009 passed by learned first appellate Court neither suffer from any legal infirmity nor misreading or non-reading of evidence therefore petitioners have no cause to invoke the revisional jurisdiction of this Court and that this civil revision is liable to be dismissed.

4. Arguments heard. Record perused.

5. Since the judgment of the learned Courts below are at variance therefore think it appropriate to scan material evidence produced by the parties on the record. Mst. Manzooran Begum/Respondent No. 1 herself appeared in the witness box as PW-1 and reiterated the assertion as set forth in her plaint. While facing the cross-examination she expressed her ignorance with regard to the marginal witness of the impugned gift-deed. She also could not tell the square number, Killa number, location or description of the suit property. Faqir Muhammad (PW-2) in his examination-in-chief stated that any gilt by Muhammad Ali in favour of Yaqoob is not in his notice. In the next sentence he stated that it is in his notice that Muhammad Ali had not made any gift or executed any power of attorney with his thumb-impressions. He stated that the gift may be forged or maneuvered by Yaqoob to disgrace Manzooran Bibi. While facing cross-examination he admitted that Manzooran Bibi is his neighbour and he has appeared in the witness box on her asking. He also expressed his ignorance with regard to the registered gift-deed and mutation. While lacing the cross-examination he also stated that it is possible that Muhammad Ali had gifted out the suit property with the consent of the family. He admitted that Yaqoob is in possession of the suit property.

6. Careful appraisal and analysis of the respondents' ocular account therefore makes it crystal clear that plea of forgery and fraud alleged by the respondents is not substantiated through any reliable ocular or documentary account.

7. On the other hand petitioners being beneficiaries of the registered gift-deed have produced Haq Nawaz/Stamp Vendor as DW-1 who stated that he had issued the stamp papers in favour of Muhammad Ali to execute general power of attorney (Ex.D-1) in favour of Din Muhammad and that the same bear his signature as well as signature of Muhammad Ali. He further stated that Muhammad Ali was personally known to him. Allah Dad/Deed Writer (DW-2) deposed that general power of attorney dated 5.1.1994 (Ex.D-1) was scribed by him on the instructions of the parties who had put their signatures in his presence and that he had also obtained the signature of Muhammad Ali on his register. He also stated that Muhammad Ali was personally known to him. Mirza Afzal Baig/Registery Moharrer (DW-3) produced the original record of registered general power of attorney dated 5.1.1994, The registered power of attorney (Ex.D-1) was attested by Saeed Ahmad Shah/Sub-Registrar Tehsil Abdul Hakeem, District Khanewal who has died. Rao Muhammad Akbar an official of the DOR Office Khanewal being an associate of Saeed Ahmad Shah appeared in the witness box as DW-4 and verified the signatures of Saeed Ahmad Shah/Sub-Registrar on Ex.D-1. Din Muhammad General Attorney (DW-5) real brother of Muhammad Ali while appearing in the witness box deposed that his real brother Muhammad Ali had executed the registered general power of attorney (Ex.D-1) in his favour at his own accord and freewill with regard to his land situated at village 10 Gagh and Shorkot and on the basis thereof he had executed registered Gift-Deed No. 59 dated 27.2.1994 (Ex.D-2) in favour of Yaqoob son of Muhammad Ali. He further deposed that Muhammad Ali died in 2002 and had never challenged the registered gift-deed in his life time. Talib Hussain (DW-6) marginal witness of general power of attorney (Ex.D-1) while appearing in the witness box verified his signature thereupon and categorically stated that Muhammad Ali had executed the general power of attorney in favour of his brother Din Muhammad at his own accord and freewill. Muhammad Hanif the other marginal witness of general power of attorney (Ex.D-1) admittedly has died. His son Muhammad Irshad (DW-7) appeared in the witness box and verified the signature of his father on Ex.D-1. Muhammad Asif (DW-8) tenant of the disputed property appearing in the witness box stated that he had obtained the shops comprising the disputed property on rent from Muhammad Ali and had been paying rent to Muhammad Ali who later on directed him to pay rent to his son Muhammad Yaqoob and thereafter he had been paying rent to Muhammad Yaqoob. Matloob Rabbani/Petitioner No. 1 son of Muhammad Yaqoob (deceased) appeared in the witness box as DW-9 and reiterated their contentions as set forth in the written statement.

8. It is an established principle of Muhammadan Law that in the matters of gift and divorce etc. a Muslim can confer the authority to an agent. There is no cavil to the proposition that matters like gift and divorce etc. being personal act of the principal are to be based upon his own mental decision. It is therefore obvious that declaration of gift is the prerogative of the donor who after making such declaration however can appoint an agent conferring the authority upon him to take necessary steps for accomplishment of the gift.

9. The Hon'ble Supreme Court of Pakistan in the case titled Mst. Bandi vs. Province of Punjab and others (2005 SCMR 1368) has held that in case of a gift made by an attorney it must be shown that the power of attorney had specifically authorized the said attorney to make a gift of the land in favour of specified person. In the light of above quoted dictum of the Hon'ble Apex Court it will be appropriate to examine the contents of the general power of attorney (Ex.D-1) in this case allegedly executed by Muhammad Ali in favour of his brother Din Muhammad, which read as below:

1. According to Muhammadan Law the word tamlik means assignment of ownership. It is a kind of gift in favour of expected legal heir. Above referred contents of the general power of attorney therefore clearly manifest bona-fide intention of its executant Muhammad Ali to make a gift in favour of his son Muhammad Yaqoob. Execution of the general power of attorney (Ex.D-1) by Muhammad Ali in favour of his real brother Din Muhammad therefore clearly reflects that he had taken a conscious decision of making a gift in favour of his son Muhammad Yaqoob and for the implementation of the object executed the general power of attorney in favour of his real brother. General power of attorney (Ex.D-1) was executed on 5.1.1994 and on the basis thereof Din Muhammad executed the registered gift-deed (Ex.D-2) in favour of Muhammad Yaqoob on 27.2.1994. Admittedly Muhammad Ali died in the year 2002. He had never challenged the validity of the general power of attorney (Ex.D-1) and registered gift-deed (Ex.D-2) in his life time. Petitioners therefore have established a lawful valid gift of the suit properly in favour of their predecessor Muhammad Yaqoob. On the other hand the respondents have failed to establish that the gift of the suit property in favour of Muhammad Yaqoob was invalid or based on fraud. For all above, the learned Civil Judge Shorkot had rightly dismissed the respondents' suit for declaration etc. vide judgment and decree dated 10.4.2008. Conversely impugned judgment and decree dated 20.10.2009 passed by learned Additional District Judge Shorkot is based on misreading and non-reading of the evidence against law and facts suffering from factual and material illegalities and liable to set aside.

2. For the above reasons, this Civil Revision is allowed. Impugned judgment and decree dated 20.10.2009 passed by learned Additional District Judge Shorkot District Jhang is set aside and the judgment and decree dated 10.4.2008 passed by learned Civil Judge Shorkot District Jhang is upheld.

(R.A.) Revision allowed

PLJ 2013 Lahore 271 [Multan Bench Multan]

Present: Amin-ud-Din Khan, J.

Hafiz MAKHTAR AHMAD and another--Petitioners

versus

QABOOL AHMAD--Respondent

C.R. No. 457-D of 1997, heard on 1.11.2012.

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

----S. 115--Civil revision--Suit for specific performance was dismissed--Question of--Whether or time was essence of contract--Vendor had failed to perform their duty, vendee will be entitled to file suit for specific performance--Ordered for payment of remaining price alongwith as compensation--Due to like in price of land refused to received remaining price and perform their part of contract--Validity--Even vendors had not issued any notice about their plea that time was essence of agreement before cut date, therefore, contract the time was not an essence of contract and it was not intention of the parties--Terms mentioned in contract can be termed to strick parties to perform contract at specific date but it was not equal to, time as essence of contract--Time was not an essence of contract in instant case, therefore, decree granted by Appellate Court in suit for specific performance was in accordance with law even for delay of payment of two months, petitioners had been compensated--Petition was dismissed. [Pp. 273 & 274] B & C

Essence of Contract--

----Time was not an essence of contract in contract for sale of immovable property but time can be essenced if it is intention of the parties--Intention of parties can be gathered from language of agreement--Intention must be in clear word that essence of that contract was time factor. [P. 273] A

Mr. Muhammad Ali Siddiqui, Advocate for Petitioner.

Mr. Muhammad Shakeel Ch., Advocate for Respondent.

Date of hearing: 1.11.2012.

Judgment

Through this civil revision petitioners have challenged the judgment and decree dated 24.06.1997 passed by learned Additional District Judge, Jampur, whereby the appeal filed by the respondent was accepted and the judgment and decree dated 19.12.1995 passed by learned Civil Judge 1st Class, Jampur dismissing the suit for specific performance filed by the plaintiff/respondent was set aside.

1. Learned counsel for the petitioners, at the very out set, states that he will press only the point that whether time was essence of the contract. Learned counsel states that the agreement to sell is admitted between the parties and plaintiff/respondent was bound under the law to make the remaining payment till 15.10.1993 and agreement is dated 5.6.1993. The total sale price was Rs.65,000/- whereas Rs.45,000/- was paid at the time of agreement and Rs.20,000/- was remaining sale price. Learned counsel states that respondent/plaintiff has not paid the remaining price within the stipulated period and as in the agreement the date for performance is specifically mentioned and it is mentioned that if the purchaser i.e. plaintiff will not pay the remaining price within stipulated period the agreement will be cancelled and the purchaser will return the possession of the suit land to the petitioners/defendants, therefore, states that the findings recorded by the learned 1st Appellate Court are against the evidence available on the file. Learned counsel for the petitioners has relied upon "Muhammad Idrees JAG vs. Mst. Unezab Shahid and another" (2004 MLD 1033 (LHR) and Mst. Gulshan Hamid vs. Kh. Abdul Rehman and others" (2010 SCMR 334).

2. On the other hand, learned counsel for the respondent states that the agreement is admitted one. The possession was delivered in part performance of the agreement and he has paid the major portion of the transaction to the petitioners and within two months from the date of performance he has filed the suit. Me remained ready every time to pay the remaining price but due to the construction raised by the plaintiff/respondent and the hike in the price of the land it was the petitioners who refused to receive the remaining price and perform their part of contract, therefore, states that the learned 1st Appellate Court has ordered to pay Rs.20,000/-, the remaining price as well as Rs.3200/- more as a penalty which otherwise compensate the petitioners.

3. I have heard the learned counsel for the parties and gone through the record, the evidence and the findings recorded by both the Courts below.

4. Ordinarily time is not an essence of the contract in a contract for sale of immovable property but time can be essence if it is the intention of the parties. The intention of the parties can be gathered from the language of the agreement. The intention must be in clear words that the essence of this contract is time factor. I have noticed that there is no such factor mentioned in this contract which has been produced as Exh.P-1. No doubt in the contract it is mentioned that date for performance is fixed for non-payment of the remaining price on the date fixed by the vendee earnest money will be confiscated and he will be bound to return the possession of the suit land and in case the vendors failed to perform their duty the vendee will be entitled to file a suit for specific performance. In these circumstances of this case the total sale price is Rs.65,000/- out of which Rs.45,000/- was paid at the time of agreement which is not disputed. Only Rs.20,000/- was remaining price and it is also admitted that plaintiff/respondent raised construction over the suit property and as he has pleaded and made the statement that Rs. 10,000/- more was paid by him to the petitioners but as this fact has not been established by him and the learned 1st Appellate Court has not admitted this fact, therefore, ordered for the payment of the remaining price alongwith Rs.3200/- as compensation. The suit has been filed within two months from the date of performance of the agreement. Even the vendors have not issued any notice about their plea that time is essence of the agreement before the cut date, therefore, in my view in this contract the time was not an essence of the contract and it was not the intention of the parties. The terms mentioned in this contract can be termed to stick the parties to perform the contract at specific date but it is not equal to, time as essence of contract. The law relied by the learned counsel for the petitioners is, therefore, not applicable to the facts of this case. In view of the matter, I am clear in my mind that the time was not an essence of contract in this case, therefore, the decree granted by the learned 1st Appellate Court in a suit for specific performance filed by the respondent is in accordance with law even for the delay of payment of two months the petitioners/defendants has been compensated. In view of the matter, no misreading, non-reading or defect in the judgment has been shown.

5. In view of the matter no case for interference by this Court while exercising jurisdiction under Section 115 of the CPC is made out. This petition is dismissed with no order as to costs.

(R.A.) Petition dismissed

PLJ 2013 Lahore 274 [Multan Bench Multan]

Present: Shahid Waheed J.

FARMERS' EQUITY (PRIVATE) LTD. (FEP) through Chief Executive and 3 others--Appellants

versus

MEHBOOB ALAM--Respondents

F.A.O. No. 255 of 2004, heard on 26.11.2012.

Arbitration Act, 1940 (X of 1940)--

----Ss. 34 & 39--Proceeding of suit--Question of--Whether on basis of agreement, proceedings of suit could be stayed--Validity--Procedure for making reference to arbitration in pending suit was provided in Arbitration Act--If parties want to get their suit decided through arbitration, they must resort to provisions of Ss. 21 to 25 of Act--Reference to arbitration and an award procured in pending suit without intervention of Court were nullity and such award cannot be made rule of Court in accordance with provisions of S. 14 and 17 of Act, 1940--Award procured without recourse were saved by S. 47 from being altogether nullity, provided requirements. [P. 276] A

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

----O. XXIII, R. 3--Arbitration Act, 1940, S. 34--Proceeding of suit--Compromise or adjustment--No bar on parties to get their case decided by mutual agreement at any time prior to final adjudication--Validity--If parties enter into a lawful agreement or compromise adjusting their suits wholly or partly and Court is satisfied of such adjustment, it is bound to record such compromise and pass a decree in accordance therewith--In case of a valid adjustment in pending suit through compromise of parties, Court cannot pass a decree except in accordance with terms of compromise. [P. 276] B

Arbitration Act, 1940 (X of 1940)--

----S. 34--Civil Procedure Code, (V of 1908), O.XXIII, R. 3--Proceedings of suit--Compromise--Lawful agreement is one of essential pre-requisite--Applicability--An arbitration agreement without orders of Court in pending suit, being departure from mondatory provisions cannot be categorized as lawful agreement--Such an agreement is not enforcebale in law and therefore, application to stay proceedings of suit must fail. [P. 276] C

Sahibzada Mahboob Ali, Advocate for Appellants.

Nemo for Respondent.

Date of hearing: 26.11.2012.

Judgment

The appellant, through this appeal under Section 39 of the Arbitration Act, 1940 ("the Act") has called in question order dated 24.11.2004 passed by the learned Civil Judge 1st Class, Multan whereby an application filed by the appellant under Section 34 of the Act for staying the proceedings of the suit was dismissed.

1. Briefly, the facts of the case are that the respondent on 07.01.2000 instituted a suit for recovery of Rs. 3,744,695/- against the appellant. In response to summons, the appellant entered appearance before the learned trial Court and filed an application under Section 34 of the Act for staying the proceedings of the suit on the plea that parties to the suit through an agreement dated 27.01.2000 had decided to refer the matter in issue to arbitration. The respondent, despite availing opportunities, did not submit reply to the above said application. The learned trial Court vide order dated 25.5.2000 struck off the right of the respondent to submit written reply of the above said application. However, the respondent opposed this application during the course of arguments. The learned trial Court vide order dated 24.11.2004 dismissed the application filed under Section 34 of the Act. Hence, this appeal.

2. Learned counsel for the appellant in support of this appeal submits that notwithstanding the pendency of the suit it was open to the parties to enter into an agreement to arbitrate privately, without leave of the Court, and to proceed to have that private reference to arbitration or the resulting award converted into an independent decree of the Court.

3. I have heard the learned counsel for the appellant and perused the record.

4. The respondent on 7.1.2000 brought a suit against the appellant for recovery of Rs. 3,744,695/- which was subsequently referred by them to arbitration, without leave of the Court, through an agreement dated 27.1.2000. Now a question arises as to whether on the basis of agreement dated 27.1.2000 the proceedings of the suit could be stayed under Section 34 of the Act. In my view Section 34 of the Act is restricted to cases in which the suit complained of has been instituted after the agreement to refer to arbitration. The procedure for making reference to arbitration in a pending suit is provided in the Act. If the parties want to get their suit decided through arbitration, they must resort to the provisions of Sections 21 to 25 of the Act. Reference to arbitration and an award procured in a pending suit without intervention of the Court, are nullity and such an award cannot be made rule of the Court in accordance with the provisions of Sections 14 and 17 of the Act. However, an award procured without recourse to the provisions of Sections 21 to 25 of the Act are saved by Section 47 of the Act from being altogether a nullity, provided the requirements of the proviso to Section 47 are complied with. The proviso confers power on the Court to take into consideration the award obtained, other than through the procedure prescribed in the Act as the compromise or adjustment of the suit, if all the parties to the award give consent thereto. There is no bar on the parties to get their case decided by mutual agreement at any time prior to the final adjudication. Under Order XXIII, Rule 3 CPC, if the parties enter into a lawful agreement or compromise adjusting their suits wholly or partly, and the Court is satisfied of such adjustment, it is bound to record such compromise and pass a decree in accordance therewith. Thus, in case of a valid adjustment in a pending suit through compromise of the parties, the Court cannot pass a decree except in accordance with the terms of the compromise. As per the language of Rule 3 of Order XXIII, CPC existence of lawful agreement is one of the essential pre-requisite for applicability of this provision. An arbitration agreement without the orders of the Court in a pending suit, being a departure from the mandatory provisions of Sections 21 to 25 of the Act cannot be categorized as a lawful agreement. Such an agreement is not enforceable in law and, therefore, application under Section 34 of the Act to stay the proceedings of the suit must fail. In this regard reference may be made to the case of Peruri Suryanarayan & Co. Vs. Gullapudi China Narsingham and others (4 IC 133) and Vyankatesh Mahadev Vs. Ramachandara Krishna (27 IC 46).

5. In view of above, I find no illegality in the order passed by the learned trial Court and resultantly this appeal is dismissed with no order as to costs.

(R.A.) Appeal dismissed

PLJ 2013 Lahore 277

Present: Abdus Sattar Asghar, J.

LIAQAT HUSSAIN ZIA--Petitioner

versus

MUHAMMAD DIN etc.--Respondents

W.P. No. 11119 of 2010, heard on 19.2.2013.

Stamp Act, 1899 (II of 1899)--

----Ss. 11 & 6(2)--Pronote was not stamped--Not to admit in evidence an instrument which was not duly stamped--De-exhibit pronote being not duly stamped--Validity--Deficiency in payment of stamps duty in any can be made up in accordance with law--Object was to collect dues of state revenue for public use and not to deprives any party of his valuable rights arising out of instrument--Plea of petitioner to cancel or de-exhibit pronote from evidence was untenable. [P. 281] A

Mr. Umair Khan Niazi, Advocate for Petitioner.

Malik Saleem Iqbal Awan, Advocate for Respondents.

Date of hearing: 19.2.2013.

Judgment

Liaquat Hussain Zia the petitioner has invoked the constitutional jurisdiction of this Court under Article 199 to impugn the order dated 18.11.2009 passed by the learned Civil Judge, Mianwali whereby his application for rejection of pronote (Exh.P1) has been dismissed. It further assails the order and decree dated 08.4.2010 passed by the learned Additional District Judge, Mianwali whereby petitioner's revision petition filed against the order dated 18.11.2009 was also dismissed.

1. Succinctly the facts leading to this constitutional petition are that Muhammad Din respondent lodged a suit for recovery of Rs. 1,27,000/- against the petitioner on the basis of a pronote dated 03.6.2003. Petitioner resisted the suit by filing contesting written statement. After framing of issues during examination in chief of Muhammad Din (PW-1) the pronote was admitted in evidence as (Exh.P1). Statement of Respondent No. 1 and his witnesses namely Muhammad Noor Elahi (PW-2), Zia Ullah Khan (PW-3) and Iqbal Hussain Shah (PW-4) however could not be cross-examined due to non-availability of counsel for the petitioner on the said date and their right to cross-examine was reserved. Learned counsel for the petitioner before cross-examination upon the P.Ws. lodged an application before the learned trial Court to de-exhibit the pronote being not duly stamped as required under Section 11 of the Stamp Act, 1899. The application was resisted by respondent and the learned trial Court after providing opportunity of hearing to the parties dismissed the application vide order dated 18.11.2009. Petitioner being dissatisfied with the order of learned trial Court dated 18.11.2009 assailed the same through revision petition which was also dismissed vide order decree dated 08.4.2010, hence, this writ petition.

2. It is argued by learned counsel for the petitioner that both the learned Courts below while passing the impugned orders have failed to appreciate relevant provisions of law and material facts brought by the petitioner on the record; that the impugned orders are based on wrong premises of law and facts and liable to set aside.

3. It is resisted by learned counsel for the respondent with the contentions that the impugned orders are in accordance with law, that there is no legal infirmity in the impugned orders and the same do not call for interference by this Court in exercise of constitutional jurisdiction, therefore, this writ petition is liable to be dismissed.

4. Arguments heard. Record perused.

5. Perusal of record transpires that in this case admittedly pronote (Exh.P1) is not stamped as required under Section 11 of the Stamp Act, 1899. At this stage it may be expedient to reproduce hereunder the relevant provisions of Sections 35, 36 and 61 of the Stamp Act, 1899 which reads below:--

"35. Instruments not duly stamped inadmissible in evidence. Etc.--No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:

Provided that--

(a) any such instrument not being an instrument chargeable with a duty [not exceeding twenty-five paisa] only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five-rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;

(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;

(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters, and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;

(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898;

(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of [the Government], or where it bears the certificate of the Collector as provided by Section 32 or any other provision of this Act.

1. Admission of instrument where not to be questioned.--Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61 be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.

2. Revision of certain decisions of Courts regarding the sufficiency of stamps.--(1) When any Court in the exercise of its civil or revenue jurisdiction or any Criminal Court in any proceedings under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under Section 35, the Court to which appeals lie from, or reference are made by, such first mentioned Court may, of its own motion or on the application of the Collector, take such order into consideration.

(2) If such Court, after such consideration, is of opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under Section 35, or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty with which such instrument is chargeable, and may require any person in whose possession or power such instrument then is, to produce the same, and may impound the same when produced.

(3) When any declaration has been recorded under sub-section (2), the Court recording the same shall send a copy thereof to the Collector, and, where the instrument to which it relates has been impounded or is otherwise in the possession of such Court, shall also send him such instrument.

(4) The Collector may thereupon, notwithstanding anything contained in the order admitting such instrument in evidence, or in any certificate granted under Section 42, or in Section 43, prosecute any person for any offence against the Stamp-law which the Collector considers him to have committed in respect of such instrument:

Provided that--

(a) no such prosecution shall be instituted where the amount (including duty and penalty) which, according to the determination of such Court, was payable in respect of the instrument under Section 35, is paid to the Collector, unless he thinks that the offence was committed with an intention of evading payment of the proper duty;

(b) except for the purposes of such prosecution, no declaration made under this section shall affect the validity of any order admitting any instrument in evidence, or of any certificate granted under Section 42."

1. Bare reading of the afore-referred provisions manifests that Section 35 enjoins upon the Court not to admit in evidence an instrument which is not duly stamped and also not to act upon such document however if the Court has wrongly admitted such document in evidence the legislature in its wisdom for safe administration justice has provided remedy to such wrongs by enacting provision of Section 36 of the Act ibid which contemplates that where an instrument is admitted in evidence such admission shall not except as provided in Section 61 of the Act ibid, be called in question at any stage in the same suit or proceedings on the ground that the instrument has not been duly stamped.

2. At this juncture learned counsel for the respondent in attendance submits that he is ready to affix the stamps upon the pronote (Exh.P1) as required under Section 61(2) of the Stamp Act, 1899.

3. It is crystal clear that deficiency in payment of stamps duty if any can be made up in accordance with law. Needless to say that object of above quoted provisions is to collect the dues of State revenue for public use and not to deprive any party of his valuable rights arising out of an instrument. Therefore plea of learned counsel for the petitioner to cancel or de-exhibit the pronote from the respondent's evidence is untenable. Reliance is made upon Abul Hashem Vs. Serajul Hague and others (PLD 1961 Dacca 596) and Muhammad Ashiq and another Vs. Niaz Ahmad and another (PLD 2004 Lahore 95).

4. For the above reasons and keeping in view the statement of the learned counsel for the respondents this writ petition is disposed of with a direction to the learned trial Court to get the document/pronote (Exh.P1) impounded by the respondent in terms of Section 61(2) of the Stamp Act, 1899 within ten days from receiving the copy of this order.

5. Deputy Registrar (Judicial) of this Court is directed to transmit the copy of this order to the learned trial Court through learned District & Sessions Judge concerned immediately through fax.

(R.A.) Petition disposed of

PLJ 2013 Lahore 281 [Multan Bench Multan]

Present: Rauf Ahmad Sheikh, J.

FARZAND ALI and another--Petitioners

versus

MUHAMMAD RAFIQUE--Respondent

C.R. No. 1240 of 1996, heard on 12.11.2012.

Revisional Court--

----Civil revision--Duty of--It is an established law that civil revision once admitted to hearing cannot be dismissed in default because it is duty of revisional Court to see if judgment and decree of sub-ordinate Court is based on proper exercise of jurisdiction lawfully vested in it and whether jurisdiction had been exercised legally and without any material irregularity. [P. 283] A

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

----S. 115--Civil revision--Jurisdiction--If parties to civil revision do not render necessary assistance, revisional jurisdiction u/S. 115, CPC makes it imperative for revisional Court to make an appropriate order if judgment or order was found to be in exercise of jurisdiction not vested in law or the Court had failed to exercise jurisdiction vested in it or had acted in exercise of its jurisdiction illegally or with material irregularity. [P. 283] B

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

----S. 13(2)--Suit for possession through pre-emption--Co-sharer in Khata--Superior right of pre-emption--Exact time and specific place of making talb-i-muthibat were not mentioned--Validity--Pre-emptor was required to give date, time and place of attaining knowledge and making talb-i-muwathibat u/S. 13(2) of Act--If any one of detail was missed, then it would be presumed that the same was not made in accordance with law--Even in witness box, plaintiff did not give full details of date, place and time of making talb-i-muwathibat--Courts below committed material irregularity in holding that talbs were made in accordance with law--Revision was accepted. [P. 284] C

PLD 2007 SC 302, rel.

Nemo for Petitioners.

Malik Nazar Hussain Arain, Advocate for Respondent.

Date of hearing: 12.11.2012.

Judgment

The petitioners have assailed the vires of judgment and decree dated 05.10.1996 passed by the learned District Judge, Multan, whereby an appeal filed by them against the judgment and decree dated 11.07.1994 of the learned Civil Judge, Multan, was dismissed.

1. The facts, in brief, as emerge on perusal of the record are that the respondent filed a suit for possession through pre-emption in respect of land measuring 4 Kanals and 8 Marlas fully described in the head note of the plaint. It was stated that the land was owned by one Muhammad Rafiq son of Alam Ali, who alienated the same in favour of the petitioners for a sum of Rs.50,000/- through Mutation No. 2218 dated 21.03.1993 but a fictitious sale price of Rs.80,000/- was entered in the mutation. It was urged that the plaintiff/respondent is a co-sharer in the Khata so has a superior right of pre-emption qua the petitioners/defendants, who don't possess any such right. It was urged that he attained knowledge about the sale on 27.03.1993 and made the Talb-i-Muwathibat on the same day and thereafter made Talb-i-Ishhad by sending a notice through registered cover envelope.

2. The suit was contested by the petitioners/defendants. It was urged that the Talbs were not made in accordance with law and that the plaintiff/respondent had waived of his right, if any. The learned trial Court framed the following issues:--

3. Whether the plaintiff waived his right of pre-emption, if so, what is its effect? OPD.

4. Whether the plaintiff is estopped to file this suit through his words and conduct? OPD.

5. Whether the defendants are entitled to get special costs U/S 35-A of CPC, if so, to what extent? OPD.

6. Whether the plaintiff has preferential right of pre-emption? OPD.

7. Whether the plaintiff has fulfilled all the conditions precedent of Talabs? OPP.

8. Whether the sale price of the property in dispute was bonafidely fixed and paid Rs.80,000/-? OPD.

9. If the above issue is not proved, then what is the market value of the property in dispute? OP parties.

10. Whether the plaintiff is entitled to get decree for possession through pre-emption? OPP

11. Relief.

After recording the evidence and hearing the arguments, the learned trial Court decreed the suit to the extent of half of the disputed property subject to payment of Rs.40,000/- as price of the same alongwith the compensation of Rs. 15,000/- for the expenses incurred on improvements. The petitioner filed an appeal against the said judgment and decree, which was dismissed.

1. Today, nobody appeared on behalf of the petitioners. Learned counsel for the respondent has vehemently contended that the civil revision is liable of dismissal under Order IX Rule 8, CPC.

2. It is an established law that civil revision once admitted to hearing cannot be dismissed in default because it is the duty of the revisional Court to see if the judgment and decree of the subordinate Court is based on proper exercise of jurisdiction lawfully vested in it and whether jurisdiction has been exercised legally and without any material irregularity. Even if the parties to the civil revision do not render, necessary assistance, the revisional jurisdiction under Section 115, CPC makes it imperative for Revisional Court to make an appropriate order if the judgment or order is found to be in exercise of jurisdiction not vested in law in it or the Court has failed to exercise the jurisdiction vested in it or has acted in exorcise of its jurisdiction illegally or with material irregularity. In this respect, reliance is placed on Muhammad Sadiq v. Mst. Bashiran and 9 others (PLD 2000 SC 820).

3. In the plaint it was contended that the respondent/plaintiff acquired the knowledge about the sale on 27.03.1993 and made Talb-i-Muwathibat at the same time. The exact time and specific place of making the Talb-i-Muwathibat are not mentioned. The pre-emptor is required to give the date, time and place of attaining the knowledge and making the Talb-i-Muwathibat under Section 13(2) of the Punjab Pre-emption Act, 1991. If anyone of the above details is missing, then it would be presumed that the same was not made in accordance with law. Even in the witness box, the plaintiff/respondent did not give full details of the date, place and time of making of Talb-i-Muwathibat. In these circumstances, both the Courts below committed material irregularity in holding that the Tlabs were made in accordance with law. In this respect, reliance is placed on Mian Pir Muhammad and another v. Faqir Muhammad Through L.Rs. and others (PLD 2007 SC 302).

4. For the reasons supra, both the judgments and decrees of the learned trial Court dated 11.07.1994 and of the learned ADJ dated 06.10.1996 are not sustainable in the eyes of law. The revision petition is accordingly accepted and the impugned judgments and decrees are hereby set aside. Resultantly, the suit filed by the respondent is dismissed. As the petitioners have not appeared in the Court so the parties to left their own costs.

(R.A.) Petition accepted

PLJ 2013 Lahore 284 [Multan Bench Multan]

Present: Rauf Ahmad Sheikh, J.

MUHAMMAD MAHMOOD SAEED etc.--Petitioners

versus

MEHDI HASSAN SHAH etc.--Respondents

C.R. No. 196 of 1992 and C.Ms. Nos. 276-C, 278-C, 279-C of 2011, decided on 26.11.2012.

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

----Ss. 12(2), 115 & O. VIII, R. 13, O. XXII, R. 4--Limitation Act, (IX of 1908), Art. 181--No ground to condone delay--Application was moved after more than five years of attaining knowledge--Affidavit was not submitted regarding not receiving cause list or had no knowledge about fixation of civil revision--Fake entry in death register--Court can decide civil revision in exercise of its revisional jurisdiction--Proceeding do not abate on demise of one of defendant--Validity--No period of limitation is prescribed in schedule of Limitation Act for filing of application u/S. 12(2), CPC so same falls u/Art. 181, Limitation Act which provides a period of three years from date of accruing of right to apply--Petition was moved after five years nine months and 6 days of judgment--Petitioners were not in position to move same in time for reasons beyond their control--Petition was hopelessly barred by time. [P. 286] A & B

Ch. Abdul Ghani, Advocate learned counsel for Petitioners.

Mr. Sagheer Ahmad Bhatti, Advocate learned counsel for Respondents.

Date of hearing: 26.11.2012.

Order

The petitioners have assailed the vires of consolidated judgment dated 02.05.2005 passed by this Court in Civil Revisions Nos.196-D-1992 & 627-D-1992, It is contended that Muhammad Saeed, respondent had died on 19.09.1999 but his legal representatives were not brought on the file and as such the petitioners had no information about the fixation of the petition for the above mentioned date and that the predecessor in interest of the petitioners had never appointed Mr. Javed Akhtar Wains, Advocate as his counsel so his appearance on behalf of the deceased was unauthorized. In CM No. 278-C-11 an interim injunction was prayed for till decision of the main CM. In CM No. 279-C-11, it was prayed that delay in filing the appeal be condoned.

1. The learned counsel for the petitioners has contended that Saeed Ahmad, respondent had died prior to decision of the civil revision vide judgment dated 02.05.2005 but unfortunately the report about his demise could not be made in time so it was got entered on 01.1.2005. It is urged that the petitioners had no knowledge about the judgment dated 02.05.2005 so no delay was caused by them in filing the petition under Section 12(2), CPC and as such the delay, if any, should be condoned in the larger interest of justice. It is also urged that Malik Javed Akhtar Wains, Advocate was never appointed as attorney by their late predecessor and as such they were condemned unheard.

2. The learned counsel for the respondent has vehemently opposed all these C.Ms. It is contended that fake entry in the death Register was maneuvered after six months of the passing of the impugned judgment and six years of demise with the sole object to concoct a ground for submission of the application; that the petitioners attained the knowledge of the judgment of this Court on 01.11.2005 on submission of an application for partition of the property but they remained indolent and did not move the application in time. On merits, it is urged that Sh. Ahsan Hafeez, Advocate learned counsel for the deceased Saeed Ahmad did not submit his affidavit to show that he did not receive the cause list or had no knowledge about the fixation of the civil revision.

3. The perusal of the record reveals that C.R No. 196-D-92 and C.R No. 627-D-92 were decided through consolidated judgment. Infact Malik Javed Akhtar Wains, Advocate was counsel for the respondent in C.R No. 627-D-92. Sh. Ahsan Hafeez, Advocate was counsel for late Saeed Ahmad. He has not submitted any affidavit to show that the cause list was not delivered to him and that he had no knowledge about the fixation of the civil revision. Even if the learned counsel for the parties do not appear on the date fixed, the Court can decide the civil revision in exercise of its revisional jurisdiction under Section 115, CPC. Moreover, under Order XXII, Rule 4, CPC the proceedings do not abate on demise of one of the defendants or sole defendant. Infact under the amended law it is the duty of the one of the legal representatives nominated under Order VIII, Rule 13, CPC to give an intimation to the Court about the demise and list of legal representatives. No such effort was made by the petitioners so they cannot be allowed to say that they or their predecessor in interest were contemned unheard.

4. No period of limitation is prescribed in schedule of Limitation Act, 1908 for filing of the application under Section 12(2), CPC so the same falls under Article 181, which provides a period of three years from the date of accruing of right to apply. The instant petition was moved after five years nine months and six days of the judgment dated 02.05.2011. The petitioners acquired the knowledge of the same on submission of an application before the DOR on 07.05.2005, wherein the Respondent No. 3(i) had clearly mentioned the factum of passing of judgment dated 02.05.2005 of this Court. The petitioners had been appearing in the partition proceedings before the AC-I so they had attained the knowledge during the partition proceedings. The application has been moved after more than five years of attaining the knowledge. There is nothing on the record to show that the petitioners were not in a position to move the same in time for the reasons beyond their control. No ground to condone the delay, therefore is available. The petition is hopelessly barred by time. For the reasons supra, the C.Ms No. 276-C-11 and 279-C-11 are without merits and the same are hereby dismissed. CM No. 278-C-11 has become infructuous and is disposed of as such.

(R.A.) Order accordingly

PLJ 2013 Lahore 287 (DB) [Multan Bench Multan]

Present: Rauf Ahmad Sheikh and Syed Iftikhar Hussain Shah, JJ.

COLLECTOR, MODEL CUSTOMS COLLECTORATE--Appellant

versus

M/s. TREND INTERNATIONAL, 30-B SMALL INDUSTRIAL ESTATE, SAHIWAL through Partner and 4 others--Respondents

I.C.A. No. 164 of 2011 in W.P. No. 11062 of 2010, decided on 7.11.2012.

Customs Act, 1969--

----S. 81(4)--Law Reforms Ordinance, (XII of 1972), S. 3--Intra Court Appeal--Imported consignments of low grade soap noodles--Extra payment--Final assessment was made after more than 2 years and 9 months of revisional assessment--Time was consumed in obtaining final report from laboratory--Final assessment of customs duty and other taxes payable on import of goods was to be made within one year of provisional assessment or clearance of goods--Grace period of 90 days is provided for such purpose of maximum period which can be consumed for finalization of matter was one year and 90 days--Delay of more than 2 years and 9 months remained unexplained--No circumstance was put forth by department for that delay--Date of sending samples to laboratory and receipt of reports were not mentioned--Naturally laboratory could have not consumed period spreading more than over 2 years and 9 months--Delay was result of time consumed in obtaining final result of analysis/tests was without force--Assessment was made at specific rate and that had become final in view of S. 81(4) of Customs Act--Department was authorized to receive and respondent was under obligation to pay dues in accordance with provisional assessment only which had attained finality under law--ICA was dismissed. [Pp. 288 & 289] A, B & C

Mr. Ahmad Raza, Advocate for Appellant.

Mian Abdul Basit, Advocate for Respondent No. 1.

Date of hearing: 7.11.2012.

Order

The appellant has assailed the vires of order dated 5.5.2011 passed by the learned Single Judge in Chamber whereby Writ Petition No. 11062/2010 filed by Respondent No. 1 against the appellant and pro forma respondents was accepted.

1. The facts in brief as emerge on perusal of the record are that the appellant imported two consignments of low grade soap noodles as per goods declaration GD-1 form on 09.07.2007 & 11.08.2007. Provisionally, the goods were assessed at the rate of US $ .45 and US $ .25 per KG. On payment of sums of Rs.5,41,175/ and Rs.11,50082, the same were cleared subject to final assessment. Subsequently through letters/demand notices dated 13.5.2010 it was conveyed that the sums of Rs.7,87,604/- and 11,40,580/- were due from him as per final assessments made by the competent authority and the same would be recovered by presenting the cheques issued by him for encashment to the Standard Charted Bank, Lahore. These letters/demand notices were assailed by the Respondent No. 1 through writ petition contending therein that the assessments made provisionally had attained finality in view of Section 81(4) of the Customs Act, 1969 so it was not under obligation to make extra payment.

2. The learned Single Judge in Chamber accepted the writ petition by relying on the law reported as 2005 PTD 2116.

3. The learned counsel for the appellant has contended that the learned Single Judge in Chamber has erred in holding that the provisional assessment was confined to the actual money paid at the time of clearance of the goods because the explanation added under Section 81(4) of the Customs Act, 1969 through the Finance Act 2 of 2005, clearly provides that the provisional assessment means the amount of duty and taxes paid or secured against bank guarantee or post dated cheques. It is further contended that the judgment relied upon by the learned Single Judge in Chamber (2005 PTD 2116) was pronounced before the disputed provisional assessment and also the promulgation of the Finance Act, 2005 (Act No. 7 of 2005) so the learned Single Judge in Chamber fell in error and as such the impugned order is not sustainable and that the time was consumed in obtaining the report of laboratory so the department cannot be held responsible for delay and cannot be deprived of the lawful duty due to it.

4. Controverting these arguments, the learned counsel for the respondent has contended that the final assessment was made after more than 2 years and 9 months of the provisional assessment whereas the law clearly provides a period of one year for finalization of the assessment under sub-section (2) of Section 81 of the Customs Act, 1969.

5. Under Section 81(2) of the Customs Act, 1969 the final assessment of the customs duty and other taxes payable on import of goods is to be made within one year of the provisional assessment or clearance of the goods. However, in exceptional circumstances, a grace period of 90 days is provided for this purpose so the maximum period which can be consumed for finalization of the matter is one year and 90 days. The inordinate delay of more than 2 years and 9 months remains unexplained. No exceptional circumstance has been put forth by the department for this delay. The learned counsel for the appellant half heartedly contended that the time was consumed in obtaining the final report from the laboratory, which revealed that the imported commodities were not actually the lower grade soap noodles rather the same were laundry soap. The date of sending the samples to the laboratory and receipt of reports were not mentioned. Naturally the laboratory could have not consumed a period spreading more than over 2 years and 9 months. In these circumstances the contention that the delay was result of time consumed in obtaining the final result of analysis/tests is without force. The assessment was made at a specific rate and that had become final in view of Section 81(4) of Customs Act, 1969. The rate of customs duty provisionally assessed was US $ 045 per KG and 025 per KG in respect of both consignments cleared on 9.11.2007 and 11.8.2007. This assessment had attained finality and nothing could be charged more than that. In this respect, reliance is placed on 2011 PTD 1185 and PTCL 2004 CL 196. The learned Single Judge in Chamber rightly held that the disputed demand notices are illegal. The department is authorized to receive and Respondent No. 1 is under obligation to pay the dues in accordance with the provisional assessment only which has attained finality under the law. The impugned order does not suffer from any illegality or infirmity. The ICA is without merits and the same is dismissed.

(R.A.) ICA dismissed

PLJ 2013 Lahore 289

Present: Shahid Waheed, J.

SH. MUKHTAR AHMAD, etc.--Petitioners

versus

MUHAMMAD SALEEM BUTT, etc.--Respondents

C.R. No. 2687 of 2011, heard on 18.3.2013.

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

----O. V, R. 17--Ex-parte proceeding--Substituted service of summons was not valid--Service could be affected personally, by registered post, through authorized agent or an male member of Family--Validity--Where serving officer, after using all due and reasonable diligence, cannot find defendant and there is no person on whom service can be made, serving office shall affix a copy of summons on other door or some other conspicuous part of house and shall then return original to Court from which it was issued, with report endorsed stating that he has so affixed the copy and name and address of the person by whom house was identified and in whose presence copy was affixed--No resort to such ordinary ways of service of summons on petitioners was at all made--Substituted service was bad in law. [P. 292] A

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

----O. V, R. 20--Limitation Act, (IX of 1908)--S. 5--Ex-parte proceedings--Application for condonation of delay in filing application for setting aside ex-parte order--Publication of summons was not made--Service of summons be effected--Order for affecting substituted service of petitioners by means of publication of proclamation in newspaper loses aura of validity and consequently substituted service cannot be treated as effective for purpose of proceeding ex-parte against them--Trial Court by considering substituted service of petitioners without justifiable legal basis committed material irregularity--Summons, could not be said to have been served upon the petitioners--Terminus quo for filing application for setting aside ex-parte proceedings was date of acquisition of knowledge of the order--Application filed by petitioners was well within time. [Pp. 292 & 293] B

1979 SCMR 85 & 2006 MLD 963, ref.

Mr. Muhammad Nasir Zahid, Advocate for Petitioners.

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

Mian Jamil Ahmad, Advocate for Respondent No. 2.

Date of hearing: 18.3.2013.

Judgment

The petitioners through this civil revision under Section 115, CPC have called in question the order dated 04.06.2011 passed by the learned Civil Judge, 1st Class, Faisalabad, whereby their two applications; one for recalling of order dated 24.01.2007 through which ex-parte proceedings were initiated against them; and, second under Section 5 of the Limitation Act seeking condonation of delay were dismissed.

1. Briefly, the facts of the case are that Muhammad Saleem Bhatti (Respondent No. 1) instituted a suit against Pervez Ahmed (Respondent No. 2) for possession of the suit property through specific performance of agreement to sell dated 18.07.2003. During pendency of the suit Respondent No. 1/plaintiff filed an application under Order I, Rule 10, CPC for impleading Ijaz Ahmed (Respondent No. 3) and the legal heirs of Muhammad Yasin(the present petitioners) as defendants in the suit. Respondent No. 2, Pervaiz Ahmed, resisted this application by filing a reply. The learned trial Court vide order dated 15.06.2006 allowed the application and impleaded Ijaz Ahmed and the present petitioners as Defendants No. 2 & 3-a to 3-g respectively in the suit. Thereafter, the learned trial Court vide order dated 14.07.2006 issued summons to the newly added defendants through registered post A.D. and adjourned the case to 19.09.2006. Respondent No. 1/plaintiff did not deposit the process fee and resultantly on 19.09.2006 the learned trial Court again issued summons to the petitioners and Ijaz Ahmed through registered post A.D. and fixed the case for 19.10.2006. The service of summons could not be effected due to incomplete address. Notwithstanding the above report of the Process Server, the learned trial Court, vide order dated 02.11.2006 directed that the service of summons on the petitioners and Respondent No. 3 be effected by publication in Daily Express. Consequent upon publication of summons, the learned trial Court initiated ex parte proceedings against the petitioners vide order dated 24.01.2007.

2. After getting knowledge of ex parte proceedings, the petitioners on 18.01.2011 filed an application before the learned trial Court for setting aside order dated 24.01.2007 on the ground that they had not received any notice or summons through any mode. The petitioners also filed an application under Section 5 of the Limitation Act seeking condonation of delay in filing the application for setting aside the ex parte order. Respondent No. 1, Muhammad Saleem Bhatti, resisted the application by filing reply to the application. The learned trial Court vide order dated 04.06.2011 dismissed both the applications; hence this petition.

3. The question involved in this petition is as to whether the ex. Parte proceedings initiated against the petitioners vide order dated 24.01.2007 was valid in the eye of law. The perusal of the order sheet maintained by the learned trial Court shows that the petitioners alongwith Respondent No. 3 were impleaded as defendants in the suit filed by Respondent No. 1 vide order dated 15.06.2006. After filing of amended plaint by Respondent No. 1, the learned trial Court vide order dated 14.07.2006 issued summons to the petitioners and Respondent No. 3 through registered post, acknowledgement due, and adjourned the case to 19.09.2006. The Respondent No. 1/plaintiff did not deposit the process fee and resultantly the learned trial Court vide order dated 19.09.2006 again issued summons to the petitioners through registered post A.D. On the next date of hearing, the Process Server submitted report that service could not be effected due to incomplete address. The learned trial Court, without getting complete address of the newly added defendants/petitioners and giving any reason, passed order dated 02.11.2006 for effecting service of summons on the petitioners by publication in "Daily Express". On receipt of publication of proclamation the learned trial Court initiated ex parte proceedings against the petitioners vide order dated 24.01.2007. The order impugned in this petition unfolds another startling fact that substituted service of summons was effected by publication in Daily Soorat-e-Haal instead of Daily Express. This flaw also escaped from the notice of the learned trial Court while initiating ex-parte proceedings against the petitioners vide order dated 24.01.2007. The order dated 02.11.2006 and substituted service of summons was not valid for the following reasons: Firstly, Rule 20 of Order V, CPC lays down that when the Court is satisfied that there is reason to believe that "the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way", the Court may order that the substituted service may be effected on him in the manner as the Court thinks fit. In this context, the ordinary way in which the service of the summons could be effected on the defendant has reference to the provisions contained in Rules 9 to 17 of Order V, CPC. Under these provisions the service could be effected on the defendant personally, by registered post, through his authorized agent, or on a male member of his family in accordance with these provisions. It is specifically laid down in Rule 17 that where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no person on whom service can be made, the serving office shall affix, a copy of the summons on the outer door or some other conspicuous part of the house and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. It is clearly borne out from the record of the instant case that no resort to these ordinary ways of service of the summons on the defendant/present petitioners was at all made. In these circumstances, the substituted service was bad in law and this view finds support from the case of Mrs. Nargis Latif vs. Mrs. Feroz Afaq Ahmad Khan (2001 SCMR 99) and Syed Muhammad Anwar vs. Sheikh Abdul Haq (1985 SCMR 1228). Secondly, the Plaintiff/Respondent No. 1 obtained order from the learned trial Court for effecting substituted service by willful suppression of petitioners'/defendant's correct addresses and thus as per principle laid down by the Honourable Supreme Court of Pakistan in the case of Muhammad Aslam vs. Addl. District Judge, Rawalpindi etc. (1979 SCMR 85) played fraud on the learned trial Court. Thirdly, in the absence of issuance of summons at correct addresses, order of substituted service as per principle laid down in the case of Muhammad Younis and 4 others vs. Additional District Judge, Jhelum and 2 others (2006 MLD 963) was nullity in the eye of law. Fourthly, the publication of summons was not made as per order dated 02.11.2006. The learned trial Court directed that the service of summons be effected by publication in Daily Express whereas it was published in Daily Soorat-e-Haal. Thus, the order for effecting substituted servicey of the petitioners by means of publication of proclamation in the newspaper loses the aura of validity and consequently the substituted service cannot be treated as effective for the purpose of proceeding ex parte against them. The learned trial Court by ordering substituted service of the petitioners without justifiable legal basis committed material irregularity. The summons could not be said to have been served upon the petitioners. Therefore, the terminus a quo for filing application for setting aside ex parte proceedings was the date of acquisition of knowledge of the order. It is the case of the petitioners that they came to know about the ex parte proceedings three days ago before filing the application. Thus, in these circumstances the application filed by the petitioners was well within time.

4. In view of above, this petition is allowed; order dated 04.06.2011 passed by the learned Civil Judge, 1st Class, Faisalabad, is set aside and resultantly, the application field by the petitioners for recalling of order dated 24.01.2007 whereby ex parte proceedings were initiated against them, is accepted as prayed for. No order as to costs.

(R.A.) Petition allowed

PLJ 2013 Lahore 293 [Multan Bench Multan]

Present: Ijaz Ahmad, J.

Mst. SIDDIQAN, etc.--Petitioners

versus

MEMBER, BOARD OF REVENUE, (JUDICIAL-III) CHIEF SETTLEMENT COMMISSIONER, BOARD OF REVENUE, LAHORE and others--Respondents

C.M. No. 4832 of 2012 in W.P. No. 2-R of 1995, decided on 29.1.2013.

Pakistan (Administration of Evacuee Property) Act, 1957--

----Ss. 2(2), (3) & S. 3--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Land was resumed on account of non-payment of last installment--Eligibility for grant of land under well sinking scheme--Board of Revenue cancelled the mutation--Challenged through writ petition--Hidden property can be treated as evacuee property--Purpose of treating property as evacuee property--Purpose of treating property as evacuee property in order to term it, evacuee property is much less than proprietary rights--It extends to any right or interest whether personally or as trustee or beneficiary or in any other capacity--Evacuees in instant case had a right in property that would make the property evacuee property--It is character of property that makes property, evacuee or not--MBR had lost sight of such legal aspect--Over act of settlement authorities was only an evidence that property was recorded as evacuee property--Order passed by MBR was violative of law and had been passed in illegal exercise of the jurisdiction--Property was declared to be an evacuee property never having lost such character--Petition was accepted. [P. 297] A & B

1974 SCMR 92, rel.

Mr. Hakeem-ud-Din Qureshi, Advocate for Petitioner.

Ch. Muhammad Hussain Jahanian and Mr. Muhammad Riaz Jahanian, Advocates for Respondent No. 3-A.

Mr. M. Wakeel Ch. Advocate for Respondents No. 8 to 16.

Mr. Sohail Iqbal Bhatti, Addl. Advocate General.

Date of hearing: 29.1.2013.

Order

Land measuring 47 acres 01 Kanal and 16 Marlas in Mouza Jungle Khan Muhammad Wala, Tehsil and District Multan belonged to the Provincial Government. This land was purchased by Pujara Ram and Roshan Das, who later became evacuees for Rs.47462/- through an open auction held on 24.05.1946. The possession was delivered to them. They paid Rs.35596.50/- up till 10.12.1946. After the partition of the subcontinent, both the purchasers migrated to Indian part of the subcontinent. The property was resumed by the Government of the Punjab vide letter dated 03.03.1948. It was allotted to Mst. Hafeezan Khanum under the Well Sinking Scheme, vide order dated 24.05.1960. Subsequently this land was treated as evacuatee property on the basis of official Letter No. 3036-C and was allotted to Shadi son of Barkat, the predecessor in interest of the petitioners, vide order dated 02.06.1966, in order to satisfy his claim for the land left by in India against Khata No. 3 in RL-II of Mauza Mangal Khan. The parties were locked against each other in a long round of litigation. The Board of Revenue passed the order dated 17.08.1966 in favour of Mst. Hafeez Khanum. Tehsildar, Multan vide order dated 03.11.1966 cancelled the mutation of the lands in question sanctioning in favour of Shadi. It was challenged through Writ Petition No. 1232/1967. Learned Judge of this Court seized with the writ petition, vide order dated 16.12.1989 declared the orders/letters dated 17.08.1966 and 28.08.1966 passed/issued by Member Board of Revenue and the order dated 03.11.1966 passed by the Tehsildar, illegal and set aside the same. The case was remanded to the Board of Revenue for deciding the same afresh, after hearing both the parties. The learned Member (Judicial-III) Chief Settlement Commissioner, Board of Revenue, Punjab Lahore vide order dated 03.05.1994 held that the land stood resumed in favour of the Government on account of non-payment of full auction price by Pujara Ram and Roshan Das and never acquired the status of evacuee property and dismissed the revision petition submitted by Mst. Hafeez Khanum, predecessor in interest of respondents.

1. It is contended by learned counsel for petitioners that the land in question had attained the character of evacuee property and had been so treated before 01.01.1957 by the Settlement Authorities. Only an overt act by the competent Settlement Authority suffices to come to a conclusion that certain property had been treated as evacuee property and no declaration by a Court of law is required for that purpose. Places reliance on Settlement Commissioner (L) and another Vs. Mauj Din and others' (1989 SCMR 1351); that the Government of Punjab as custodian of land vide its Letter No. 523/TH dated 04.07.1992 declared that all lands irrespective whether the payment has been made or not for acquisition of propriety rights should be treated as evacuee property for the purpose of rehabilitation and settlement scheme. Refers toMuhammad Alam Khan and 3 others Vs. Mahmud Ahmad and 2 others' (1974 SCMR 92) wherein the said notification has been relied upon; that the land in question has been utilized by the rehabilitation authorities by making allotment to the refugees, temporarily. Thus, the property stands treated as evacuee property before 01.01.1957, the crucial date mentioned in Section 3 of Pakistan (Administration of Evacuee Property) Act, 1957; that under Section 3 of the Act supra, even the hidden property can be treated as evacuee property after 01.01.1957; that for the purpose of treating property as evacuee property, the confirmation of propriety any rights in favour of an evacuee is not necessary. It is enough if the evacuee has any right or interest whether personally or as a trustee or a beneficiary or in any other capacity of the property. He refers to Sections 2(2), 2(3) of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 and Sections 2(2), 2(3) of the Pakistan (Administration of Evacuee Property), Act 1957. He also argues that the land in question could not be allotted to Mst.Hafeeza Khanum under the Well Sinking Scheme as she did not fulfill the conditions laid down under the scheme.

2. On the other hand, it is contended by learned Additional Advocate General appearing on behalf of Respondents No. 1 & 2 and learned counsel appearing on behalf of rest of the respondents that Pujara Ram and Roshan Das having failed to pay all the installments had not yet become the owners of the land. They were yet the tenants. The land under their control or possession could not be termed the evacuee property. He refers to Section 15 of the Colonization of Government Land Act, 1912; that evacuee property not earlier so treated can not be treated as evacuee property after 01.01.1957, the crucial date said up in Act of 1957 ibid. Relies on Muhammad Yaqub and others Vs. Tufail Muhammad and others' (1991 CLC Note 262),Mst. Nazeeran Vs. Wali Muhammad Nagar, Deputy Custodian, Lahore and others' (PLD 1969 Lahore 701) and Abdul Khaliq-Abdul Razzaq Vs. Kishanchand and others' (PLD 1964 S.C 74). He lastly argues that the respondent, Member Board of Revenue/Chief Settlement Commissioner, Board of Revenue Punjab, Lahore had decided all the disputed question of fact and law, High Court could not go into such disputed question in exercise of its Constitutional jurisdiction. Relies onMuhammad Rafique Vs. Nazir Ahmed and others' (2007 SCMR 287) and `Secretary to the Government of the Punjab, Forest Department, Punjab Lahore through Divisional Forest Officer Vs. Ghulam Nabi and 3 others' (PLD 2001 Supreme Court 415).

3. I have heard the arguments of learned counsel for petitioners, learned Additional Advocate General and learned counsel for rest of respondents and perused the record.

4. First of all it is to be seen whether Pujara Ram and Roshan Das were the evacuee and then whether the land held by them was evacuee property or not. Under Section 2(2)(i) of the Ordinance, 1949 ibid, evacuee means a person who:--

(i) on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbances, on or after the first day of March, 1947, leaves or has left any place the territories now comprising Pakistan for any place outside those territories.

Same is the definition given in Section 2(2)(a) of the Act of 1957. There is no denial of the fact that Puja Ram and Roshan Das had purchased the land in an auction held on 24.05.1946. They paid Rs.35,596.50/- till 10.12.1946 out of the total price of Rs.47,462/-. There is no denial of the fact that they left this part of the Subcontinent which formed part of Pakistan. There is no record and no order available on file to show that this land was ever resumed on account of the non-payment of the last installment. The respondents M.B.R/CSC has relied only on entries made in Khasra Girdawari for the crops of Kharif 1952 to Rabi 1952. The entries so made do not render the land resumed.

1. In order to term a property, an evacuee property, the evacuee need not have acquired complete proprietary rights in the property in question. Section 15 of the Colonization of the Government Land Act, 1912 cannot be interpreted in a manner so as to take away all the rights of Pujara Ram and Roshan Das over the land in question. Section 2(3) of the Ordinance of 1949 ibid and Section 2(3) of the Act, 1957 ibid define the evacuee property:--

`Evacuee property, means any property in which an evacuee has any right or interest, or which is held by or for him in trus.'

According to this definition, the property in question was an evacuee property on the day of partition of sub-continent and on 01.01.1957 and had never during the intervening time lost this character as no order of resumption of land is available on the record. Moreover, the Government of Punjab as custodian of land, vide its Letter No. 523/TH dated 04.07.1992 had declared all such lands the evacuee property whether the full payment had been made or not. This property was never available for allotment to Mst.Hafiza Begum, the wife of a beaurucrate. I need not discuss her eligibility for grant of the land under Well Sinking Scheme. The right or the interest of an evacuee in a property in order to term it, the evacuee property, is much less than the proprietary rights. It extends to any right or interest whether personally or as trustee or beneficiary or in any other capacity. The evacuees in this case had a right in the property that would make this property evacuee property. It is the character of property that makes property, the evacuee or not. It always remained evacuee property. The Member Board of Revenue has lost sight of this legal aspect. The overt act of the Settlement Authorities is only an evidence that the property was recorded as evacuee property. No formal document or declaration is required as per the definition given in the Act or the Ordinance ibid. I rely on `Muhammad Alam Khan and 3 others Vs. Mahmud Ahmad and 2 others' (1974 SCMR 92). For what has been discussed, I am of the opinion that the impugned order passed by the M.B.R/CSC is violative of law and has been passed in illegal exercise of the jurisdiction vested in him. The same is set aside. The property in question is declared to be an evacuee property never having lost this character. Accordingly, the order dated 24.05.1960, allotting the land to Mst. Hafeeza Khanum under Well Sinking Scheme is also declared illegal. Resultantly, the allotment order passed by the Rehabiliation and Settlement Authorities in favour of Shadi son of Barkat, the predecessor in interest of petitioners, holds the field. This petition is accepted.

(R.A.) Petition accepted

PLJ 2013 Lahore 298

Present: Shahid Waheed, J.

Dr. ZAHRA HASSAN--Petitioners

versus

GOVT. OF PUNJAB, etc.--Respondents

W.P. No. 9956 of 2007, heard on 13.3.2013.

Constitution of Pakistan, 1973--

----Art. 199--Notification No. SO (South) 910/R. 185--Constitutional petition--Financial benefits--Obituary notification--Family members of civil servant who died on or after 10-11-2004--Question of--Whether petitioner might claim financial benefits under Notification--Applicability of notification--Case was sent to Chief Minister for approval of financial assistance--Challenge to--Neither summary was submitted to Chief Minister nor he passed any order for grant of financial benefit u/Notification to widow of deceased employee--Approval of C.M. was not required for grant of financial benefits to family of a civil servant who died during service--Govt. of Punjab had failed to bring on record any fact on basis of which deceased servant might be distinguished--Notification being violative of Art. 25 of Constitution was not sustainable in eyes of law and Constitution--Petition was allowed. [P. 303] A

Mr. Muhammad Aurangzeb, Advocate for Petitioner.

Mr. Shahid Mubeen, Addl. A.G. alongwith Mr. Ijaz Farrukh, Senior Law Officer, Health Department for Respondents.

Date of hearing: 13.3.2013.

Judgment

Petitioner, Dr. Zahra Hassan widow of Dr. Sibt-e-Hassan, ex-Senior Demonstrator BS-18, Pharmacology Department, Punjab Medical College, Faisalabad has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeking direction to the respondents for grant of following financial benefits:

(a) Payment of four months salary (last pay drawn and allowances) in addition to other benefits in pursuance of Finance Department's Letter No. FD.1/3-2/99 dated 1.7.2002.

(b) Sanction of financial assistance to the tune of Rs. 800,000/- (Eight hundred thousand only) in pursuance of Finance Department's Letter No. FD.SR. 1/3-10/2004 dated 10.11.2004 in addition to other benefits admissible under the rules.

1. Briefly the facts of the case are that Dr. Sibt-e-Hassan, ex-Senior Demonstrator, Punjab Medical College, Faisalabad died on 29.8.2004 and his obituary notification was issued on 18.1.2005. The Secretary Health, Government of the Punjab vide order No. SO (South) 910/R/85 dated 23.4.2005 accorded sanction to the grant of 180 days leave encashment in respect of Dr. Sibt-e-Hassan under Revised Leave Rules, 1981. The petitioner Being widow of Dr. Sibt-e-Hassan moved an application for grant of financial benefits in terms of Finance Department's Letter No. F.D.1/3-3/99 dated 1.7.2002 ("Notification, 2002") and Finance Department's Letter No. F.D.SR. 1/3-10/2004 dated 10.11.2004 ("Notification 2004"). In response to above said application, the Health Department, Government of the Punjab vide Letter No. SO(South) 910/R/85 dated 7.7.2005 asked the Principal, Punjab Medical College, Faisalabad to provide the Succession Certificate and No Marriage Certificate in respect of the petitioner. The Principal, Punjab Medical College, Faisalabad vide Letter No. PT/705/10837/PMC/2005 dated 30.7.2005 supplied the afore-stated documents to the Secretary Health, Government of the Punjab; and, thereafter vide Letter No. PT/705/2844/PMC/2006 dated 21.2.2006 requested the Secretary Health for the sanction of financial benefits to the petitioner. The Health Department, Government of the Punjab, vide Letter No. SO (South) 910/R/85 dated 20.5.2006 informed the petitioner that her request for grant of financial assistance under Notification, 2004 was considered and rejected as Dr. Sibt-e-Hassan was died on 28.9.2004 while Notification, 2004 was issued on 10.11.2004. In these circumstances, the petitioner firstly on 23.6.2006 by relying upon the precedent of Order No. SO(AMI)2-59/86 dated 29.1.2005 whereby widow of Dr. Altaf Hussain, (late), Assistant Professor of Physiology, Punjab Medical College, Faisalabad was granted financial assistance, moved an application before the Chief Minister, Government of the Punjab and requested for the grant of financial assistance under Notification, 2004; and, secondly, through proper channel filed an application dated 28.6.2006 for grant of financial benefit, that is, four months salary (last pay drawn and allowances) under Notification, 2002. The second application was recommended by the Principal, Punjab Medical College, Faisalabad vide Endorsement No. PT-705/9072/PMC/06 dated 3.7.2006 and forwarded to the Secretary Health for necessary sanction. The petitioner on 31.7.2007 also sent reminder/ application to the Secretary Health for grant of benefits under Notification, 2002 but all in vain. Being aggrieved, the petitioner has filed the instant petition.

2. In response to notice issued by this Court, the Health Department, Government of the Punjab, has filed report and para-wise comments wherein it has been stated that Government of the Punjab vide order dated 29.8.2007 has issued sanction for grant of four months salary as per Notification, 2002 to the petitioner. However, with regard to financial benefit under Notification, 2004 it was stated that the same was available to family members of a civil servant who died on or after 10.11.2004. It was also explained that case of Dr. Altaf Hussain was distinguishable as he during service suffered Neuro disease and due to which his case for invalidation was in pipeline; in the meantime he died on 11.10.2004; and, therefore, the case being already in process was sent to Chief Minister for approval for grant of financial assistance and accordingly it was sanctioned vide order dated 29.1.2005.

3. After perusing report and para-wise comments, this Court vide order dated 6.6.2008 directed the departmental representative, who was present in Court, to submit the case of the petitioner before the Chief Minister in line with the case of Dr. Altaf Hussain because the petitioner's grievance seemed to be justified. The case was adjourned for the decision on the summary to be submitted by the department before the Chief Minister. The respondent department did not comply with the above said order and resultantly the petitioner filed contempt petition (i.e. Crl. Org. 772-W/2010) before this Court wherein notice was issued to the Secretary Health. Pursuant to the notice issued in above stated contempt petition, a summary containing proposal for not applying Notification, 2004 with retrospective effect was put up before the Chief Minister and the same was accordingly approved. The petitioner was informed about the decision of the Chief Minister vide Letter No. SO (South) 910/R/85 dated 12.1.2011. Consequent upon the decision of the Chief Minister, the petitioner filed an application under Order VI Rule 17, CPC (i.e. CM. No. 1 of 2011) before this Court seeking permission to amend the petition and to challenge the validity of letter dated 12.1.2011. This application was allowed vide order dated 18.5.2011. Thereafter, vide order dated 5.7.2012 the respondents were directed to produce the relevant record of Dr. Sibt-e-Hassan and Dr. Altaf Hussain. In compliance with orders dated 5.7.2012 and 16.11.2012 the respondents submitted additional reply and placed on record a copy of summary put up before the Chief Minister.

4. The perusal of record, available in this file, and the summary submitted to the Chief Minister reveals that the Health Department, Government of the Punjab has sanctioned: (i) vide Order No. SO (South) 910/R/85 dated 23.4.2005 180 days leave encashment in respect of Dr. Sibt-e-Hassan under Revised Leave Rules, 1981; and, (ii) in pursuance of Notification 2002 four months salary (last pay drawn and allowances) vide Order No. SO (North)910/R/85 dated 29.8.2007 in favour of the petitioner. Confronted with above said two orders, the learned counsel for the petitioner has submitted that although the Health Department, Government of the Punjab has sanctioned the financial benefits under Notification, 2002 yet the payment has not so far been made. In reply thereto the learned Addl. Advocate General, Punjab assisted by Mr. Ejaz Farrukh, Senior Law Officer, Health Department, has submitted that the payment under the above said two orders would be made to the petitioner. Thus, the issue to the extent of grant of benefits under Notification, 2002 stands settled.

5. Now, sole point which requires determination by this Court is as to whether the petitioner may claim financial benefits under Notification, 2004. It is the case of the petitioner that the respondents have already extended facility of Notification, 2004 to the family of Dr. Altaf Hussain (late), Assistant Professor of Physiology, Punjab Medical College, Faisalabad, who died on 11.10.2004 and, therefore, she is also entitled to get the benefit of Notification, 2004. Conversely learned Additional Advocate General has canvassed that Notification, 2004 cannot be applied retrospectively as husband of the petitioner had died on 29.8.2004 i.e. before issuance of above said notification. I am afraid the contention canvassed by the learned Addl. A.G has no force. The recital of Notification, 2004 unfolds that it was issued because Government of Punjab felt need to provide umbrella cover to all families of civil servants who expire during service so that they may meet the financial problems that crop up after the death of earning hand. This notification is indeed a beneficial notification. It is well settled principle of law that all notifications are applied prospectively and not retrospectively but beneficial notification which seeks to confer certain rights can only be interpreted to apply retrospectively. This principle was recognized by the Hon'ble Supreme Court of Pakistan in case of M/s Army Welfare Susar Mills Ltd. and others v. Federation of Pakistan and others (1992 SCMR 1652) wherein it was held as follows:--

"It seems to be well-settled proposition of law that a notification which purports to impair an existing or vested right or imposes a new liability or obligation, cannot operate retrospectively in the absence of legal sanction, but the converse i.e. a notification which confers benefit cannot operate retrospectively, does not seem to be correct proposition of law."

The aforesaid judgment was followed by Full Bench of the apex Court in the case of Federation of Pakistan and others vs. Shaukat Ali Mian and others (PLD 1999 SC 1026) and relevant extract thereof reads as under:

"Reference may also be made to the case of Messers Army Welfare Sugar Mills Limited and others v. Federation of Pakistan and others 1992 SCMR 1652, in which it has been held that a notification adversely affecting the right of any person cannot operate retrospectively but if the same confers any benefit, it can be made applicable retrospectively."

Thereafter the Hon'ble Supreme Court in the case of Anoud Power General Limited and others Vs. Federation of Pakistan and others (PLD 2001 SC 340) held as follows:

"At this juncture another important aspect of the retrospectivity of notification may also be noted that if the notification has been used for the benefit of the subject then it can be made operative retrospectively but if its operation is to the disadvantage of a party who is the subject of the notification then it would operate prospectively."

The aforesaid view was reiterated by the Hon'ble Supreme Court of Pakistan in the case of Government of Pakistan Vs. M/s. Village Development Organization (PTCL 2005 CL. 138). In view of above stated principle laid down by the Hon'ble Supreme Court of Pakistan, the Notification, 2004 can be applied to the case of Dr. Sibt-e-Hassan and the Financial assistance thereunder can be extended to the petitioner.

1. There is yet another angle to address the question of applicability of Notification, 2004 to the case of the petitioner. The petitioner for getting the benefits of Notification, 2004 has invoked fundamental right guaranteed under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 which contemplates that all citizens are equal before law and are entitled to equal protection of law. Learned counsel for the petitioner has contended that both Dr. Sibt-e-Hassan and Dr. Altaf Hussain died before the issuance of Notification, 2004; date of death of Dr. Sibt-e-Hassan and Dr. Altaf Hussain is 29.8.2004 and 11.10.2004 respectively whereas date of issuance of Notification, 2004 is 10.11.2004; and, the government has extended benefit of Notification, 2004 to Dr. Altaf Hussain but denied to Dr. Sibt-e-Hassan which is discriminatory. Conversely, the learned Addl. Advocate General by making reference to the report and para-wsie comments submitted that Dr. Altaf Hussain during service suffered Neuro disease and due to which his case for invalidation was in pipeline; in the meantime he died on 11.10.2004; and, therefore the case being already in process was sent to the Chief Minister for approval for grant of financial assistance which was sanctioned vide order dated 29.1.2005. The record does not bear out the contention canvassed by the learned Addl. Advocate General. The Secretary Health in his additional reply (compliance report) has stated that "original file of the case of Dr. Altaf Hussain is not available as it was sent to the Central Record Room of S & GAD alongwith other weeding files at the time of clearance of encroachments from the corridors of the Health Department's building and the same has not been traced back from the Central Record Room of S&GAD. Therefore, approval of the then Chief Minister on the case could not be traced out despite best efforts to locate the file". Thereafter, the Secretary Health on the basis of "institutional memory" submitted summary to the Chief Minsiter for rejecting the petitioner's application for grant of financial benefits under Notification, 2004. This shows that the Health Department firstly made an attempt to mislead this Court by concealing or mis-stating the facts; and, secondly pulled the wool over the eyes of the Chief Minister by stating incorrect facts in the summary. This conduct cannot be appreciated on any cannon of morality and justice. This indeed constitutes, misfeasance and malfeasance, The public servants or departments should help and not to thwart the grant to the people of their rights. The facts stated in the report and para-wsie comments, additional reply (compliance report) and summary for Chief Minister stand negated from the contents of order No. SO(AMI) 2-59/86 dated 29.01.2005 whereby financial benefits in terms of Notification 2004 were extended to the widow of Dr. Altaf Hussain. Order dated 29.1.2005 reads as under:--

"Sanction is hereby accorded to the grant of financial assistance to the tune of Rs. 8,00,000/- in respect of widow of Dr. Altaf Hussain (Late), Assistant Professor of Physiology, Punjab Medical College, Faisalabad who died on 11.10.2004 during his service, in pursuance of Finance Department's Letter No. FD.SR. 1/3-10/2004 dated 10.11.2004, in addition to other benefits admissible to his family under the rules.

1. Expenditure involved will be met out of the existing budget grant of Punjab Medical College, Faisalabad."

The examination of above said order shows that neither a summary was submitted to the Chief Minister nor he passed any order for the grant of financial benefit under Notification, 2004 to the widow of Dr.Altaf Hussain. Had the Chief Minister passed any order, then this fact, as was done in the case of the petitioner vide Letter No. SO.(SOUTH) 910/11/85 dated 12.01.2011, should have been mentioned in the order. Moreover, as per contents of Notification, 2004 the approval of Chief Minister is not required for the grant of financial benefits to the family of a civil servant who dies during service. Thus, the respondents have failed to bring on record any fact on the basis of which the case of Dr. Altaf Hussain, may be distinguished. In fact the case of the petitioner and that of the widow of Dr. Altaf Hussain are at par and, therefore, impugned Letter No. SO (SOUTH) 910/R/85 dated 12.01.2011 being violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 is not sustainable in the eye of law and the Constitution.

1. In view of above, this petition is allowed Letter No. SO (South) 910/R/85 dated 12.1.2011 issued by the Health Department, Government of the Punjab is set aside and declared to have been passed without lawful authority and of no legal effect; and respondents are directed to make payment of financial assistance to the petitioner in pursuance of Finance Department's Letter No. FD. 1/3-2/99 dated 1.7.2002 and Finance Department's Letter No. FD.SR. 1/3-10/2004 dated 10.11.2004 within a period of two weeks from receipt of certified copy of this order.

(R.A.) Petition allowed

PLJ 2013 Lahore 304

Present: Umar Ata Bandial, J.

MADAWA--Petitioner

versus

I.G. PUNJAB, etc.--Respondents

W.P. No. 3657 of 2012, decided on 29.3.2012.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1864), S. 489-F--Negotiable Instrument Act, 1881, S. 30--Constitutional petition--Investigation of criminal case u/S. 489-F, PPC was assailed--Pre-conditions for registration of FIR--Conflict with settled law--Commission of cognizable offence was sole basis for registration of FIR--Validity--No dispute on duty of police officer to register an FIR, whether complainant disclose commission of a cognizable offence--It was directed that respondent in matter of registration of FIR u/S. 489-F, PPC satisfied regarding, prima facie, disclosure of an offence by provision of dishonour slip and notice u/S. 30 of Negotiable Instrument Act, prior to registration of FIR for that offence--Petition was disposed of. [Pp. 305, 306 & 307] A & F

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 489-F--Negotiable Instruments Act, 1881--S. 30--Prerequisite documents--Dishonour slip and a notice were valid demands by police officer before registering a case u/S. 489-F, PPC--Condition, establishment of dishonesty obligation and genuiness of signatures of drawer were matters that require probe and evidence. [P. 306] B & C

Police Rules, 1974--

----R. I--Chapter, 34--Criminal Procedure Code, (V of 1898), S. 154--Elements cannot prevent registration of FIR--Elements by I.O. might be justified before arresting accused--Assert of suspect or an accused person is necessary or sine qua non for investigation of a crime--Validity--It was wrong presumption on part of police authorities that upon registration of FIR for cognizable offence, person accused must be arrested immediately--Held: A suspect is not to be asserted straightaway upon registration of an FIR or as a matter of course--Arrest is to be deferred till such time that sufficient material or evidence becomes available on record of investigation prima facie satisfying investigation officer about correctness of allegation leveled by complainant party against a suspect's involvement in commission of crime alleged. [P. 306] D & E

Mr. Faiz Rasool Jalbani, Advocate for Petitioner.

Mr. Khawar Ikram Bhatti, Addl. A.G. for Respondents.

Date of hearing: 29.3.2012.

Order

Learned counsel for the petitioner has assailed guidelines for investigation of cases under Section 489-F, PPC issued by the Inspector General of Police on 15.8.2011. Submits that three pre-conditions for registration of FIR alleging the offence under Section 489-F, PPC have been imposed which are beyond the legal authority and competence of the respondent I.G.P. He submits that the Police Order, 2002 does not permit the I.G.P. to issue instructions that conflict with the settled law declared by superior Courts that the commission of a cognizable offence is the sole basis for registration of FIR and no inquiry into the commission of such offence may be launched by a SHO prior to registration of the FIR. Relis on Muhammad Bashir vs. SHO etc. (PLD 2007 S.C 539) and Chapter 34, Rule 1 of the Police Rules, 1934 read with Section 154 of the Cr.P.C. Learned counsel further adds that he acknowledges the wisdom of the police authorities to regulate their investigative powers, however, such regulation should take place after registration of FIR. He has candidly pointed out one category of cases that unnecessarily benefits from the impugned guidelines. This is the case of the habitual offenders who fraudulently issue cheques in consideration of money received with the intention that the cheque will be dishonoured.

1. After hearing the learned counsel for the petitioner, the learned Addl. A.G. and perusing the parawise comments filed by the Respondent No. 2, it emerges that there is no dispute on the duty of a police officer to register an FIR under Section 154 of Cr.P.C. where a complaint discloses the commission of a cognizable offence. In the context of an offence under Section 489-F, PPC two of the pre-requisite documents noted in the instructions, namely, dishonour slip and a notice under Section 30 of the Negotiable Instruments Act, 1881 are valid demands by a police officer before registering a case under Section 489-F of PPC. However, the third pre-condition, namely, establishment of dishonesty, obligation and genuiness of signatures of the drawer-accused are matters that require probe and evidence. A police officer does not have authority to carry out an inquiry prior to legislation of a case as held by the Hon'ble Supreme Court in Muhammad Bashir Vs. SHO etc. (PLD 2007 S.C. 539) and as reflected in Chapter 34, Rule 1 of the Police Rules, 1934 read with Section 154, Cr.P.C. Consequently, the three elements noted in the impugned instructions cannot prevent registration of FIR. However, initial probe in those three elements by an Investigating Officer may be justified before arresting an accused-drawer of a cheque. It is wrong presumption on the part of the police authorities that upon registration of FIR for a cognizable offence, the person accused therein must be arrested immediately. Reliance is placed on Khizer Hayat and others Vs Inspector General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470) wherein a learned Full Bench of this Court has rejected the view that an arrest of a suspect or an accused person is necessary or sine qua non for investigation of a crime. "A suspect is not to be arrested straightaway upon registration of an F.I.R. or as a matter of course... Arrest is to be deferred till such time that sufficient material or evidence becomes available on the record of investigation prima facie satisfying the Investigating Officer" about correctness of the allegation levelled by a complainant party against a suspect's involvement in the commission of the crime alleged. The law disapproves depriving of a person of his liberty on the basis of unsubstantiated allegations. Insistence by the complainant party for the immediate arrest of an accused should not swamp an Investigating Officer to ignore the rules governing exercise of his discretion and jurisdiction in the matter. Accordingly, the appropriate course for the Respondent No. 1 is to establish a protocol to regulate the authority of an investigating officer by specifying the steps to be taken by him with reference to the type of offence in issue. Consequently, whilst the relevance of the criteria noted in the instructions is not doubled, it is the stage of application of one of these which is disputed by the petitioner on the basis of binding law.

2. It is accordingly, directed that the respondents shall in the matter of registration of FIR under Section 489-F of PPC satisfy themselves regarding, prima facie, disclosure of an offence by the provision of a dishonour slip and a notice under Section 30 of the Negotiable Instruments Act, 1881 prior to registration of FIR for the said offence. However, in so far as the remaining criterion noted in the impugned instructions is concerned the same shall be applied after registration of FIR and if justified by the facts, before the arrest of an accused-drawer of a dishonoured cheque.

3. Petition disposed of.

(R.A.) Petition disposed of

PLJ 2013 Lahore 307

Present: Shahid Waheed, J.

M. SHAUKAT HAYAT--Petitioner

versus

FAZAL MAHMOOD--Respondent

C.R. No. 2266 of 2004, heard on 7.3.2013.

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

----S. 115--Civil revision--Suit for recovery on basis of oral agreement was decreed--Transaction by producing independent witnesses--Suit was dismissed by First Appellate Court--Conduct of affairs relating to financial transaction, as pleaded was not natural--Question of--Whether Appellate Court was justified in reversing findings of trial Court--Determination--Validity--It is now well established that contract can be in writing as well as oral, and that oral agreement was also enforceable as written agreement provided it fulfills all requirements of a valid contract--Giving of Qarz-e-Hasnah for six months did not appeal to logic as it is matter of common experience that when master/employer lends money to his servant as Qarz-e-Hasnah then ordinarily amount was deducted from salary of employee when total salary was Rs. 800/- pm. and he was not in a position to repay loan in lump sum--If petitioner had made an effort to make payment in presence of witnesses then he would have obtained a receipt from respondent--All facts cost doubt on claim of petitioner--In view of nature of relationship between petitioner and respondent and conduct of parties, First Appellate Court rightly dismissed the suit as petitioner had failed to establish oral agreement on basis of which he claimed recovery from respondent--Petition was dismissed. [Pp. 309, 310 & 311] A, C, D & E

Oral Agreement--

----It is also well settled that oral agreement requires for its proof clearest and most satisfactory evidence. [P. 309] B

Mr. Ikram Ullah and Mr. Dost Muhammad Kahoot, Advocates for Petitioner.

Proceeded Ex-parte for Respondent.

Date of hearing: 7.3.2013.

Judgment

Petitioner, Muhammad Shaukat Hayat, through this civil revision under Section 115, CPC has called in question the judgment and decree dated 12.6.2004 passed by the learned District Judge, Sargodha, who while setting aside the judgment and decree dated 12.01.2004 passed by the learned Civil Judge Shahpur, dismissed the suit for recovery of Rs.24,800/- filed by him against the respondent.

1. The case, as set out by the petitioner, was that the respondent being his employee asked for Qarz-e-Hasanah of Rs.35,000/- for construction of house. The petitioner paid Rs.24,800/- to the respondent in presence of Muhammad Riaz (PW-2), Khan Muhammad (PW-3) and Muhammad Nawaz on 10.6.2000 at 9.00 a.m at his dera. The respondent had promised to repay the amount within six months. After expiry of six months, when the petitioner demanded his money, the respondent further sought extension of three months. Later on, the respondent refused to repay the amount. The petitioner, therefore, filed a suit for recovery of Rs.24,800/- against the respondent, who in response to summons, entered appearance before the learned trial Court and contested the suit by filing a written statement. The respondent in his written statement asserted that he had been working with the petitioner for ten months and after ten months when he demanded his salary the petitioner firstly got registered a criminal case against him under Section 506, PPC; and thereafter instituted the instant false case as he had never received any loan from him. On pleadings of the parties learned trial Court framed the following issues:--

2. Whether the plaintiff is entitled to recover Rs.24800/- from the defendant on the grounds mentioned in the plaint? OPP

3. Relief

After recording evidence the learned trial Court vide judgment and decree dated 12.01.2004 decreed the suit in favour of the petitioner and against the respondent. Feeling aggrieved, the respondent preferred an appeal before the learned District Judge who accepted the same and dismissed the suit filed by the petitioner. Hence, this petition.

1. Learned counsel for the petitioner in support of instant petition has submitted that the judgment and decree passed by the learned District Judge suffers from misreading and non-reading of evidence available on record and, therefore, it is liable to be set aside; and, that the petitioner by producing witnesses before whom the amount was paid to the respondent had established his claim for recovery of suit amount but this fact was not properly appreciated by the learned District Judge while passing the impugned judgment and decree.

2. Notices were issued to the respondent but despite service he did not turn up to contest this petition and, therefore, he is proceeded against ex-parte.

3. I have heard the learned counsel for the petitioner and perused the record appended with this petition.

4. It is the case of the petitioner that the respondent in the presence of Muhammad Riaz (PW-2), Khan Muhammad (PW-3) and Muhammad Nawaz borrowed Rs.24800/- as Qarz-e-Hasana from him. The learned trial Court decreed the suit in favour of the petitioner on the ground that he had proved the transaction by producing two independent witnesses. The learned District Judge reversed the findings of the trial Court in respect of Issue No. 1 and dismissed the suit for the reason that conduct of affairs relating to financial transaction, as pleaded, was not natural. The only question which falls for determination in the present petition is as to whether the District Judge was justified in reversing the findings of the trial Court on Issue No. 1. As the judgment of the two Courts below are at variance I have, respectfully following the dictum of Hon'ble Supreme Court in the case of Madan Gopal v. Maran Bepori (PLD 1969 S.C 617), compared the two judgments for their comparative merits and perused the evidence in order to find out as to whether the view taken by the District Judge is valid.

5. The petitioner instituted the suit for recovery of amount on the basis of oral agreement. It is now well established that the contract can be in writing as well as oral; and, that oral agreement is also enforceable as written agreement provided it fulfills all requirements of a valid contract. Reliance in this regard is placed on the case of Bashir Ahmad v. Muhammad Yousaf (1993 SCMR 183). It is also well settled that oral agreement requires for its proof clearest and most satisfactory evidence. The question of sufficiency and insufficiency of proof of an oral contract came up for consideration before the Hon'ble Supreme Court in the case of Ch. Muhammad Hussain and another v Hidayat Ali and 6 others (NLR 1981 SCJ 469) wherein it was held that the subject matter of the controversy, the conduct of the parties, nature of relationship and experience of the parties are all relevant facts for determining the credibility of oral evidence on such matter. Following is the relevant portion of the said reported case:--

"11. As regards the oral evidence and its effect and credibility, the learned counsel is not correct in insisting that oral evidence should be tested for its own worth and should not be related to the contemporaneous human conduct of affairs concerning matter in issue. Voluminous oral evidence may have little, weight where documents are ordinarily required to be prepared or are usually prepared and no satisfactory explanation for departure from the practice is forthcoming. Courts were correct in assuming that in case of agricultural land and transactions spread over a long period and involving huge amounts there should have been some evidence in the nature of writing receipt or acknowledgment to evidence the transactions. In giving effect to such a standard the Courts were not laying down the absolute rule that there could be no oral contract or that an oral contract wherever existing could be upset on such conjectural grounds or that oral evidence carries no weight. The conduct of the parties, the subject-matter of the controversy, the nature of the relationship and experiences of the parties and their handling of the matter, all are relevant for determining the credibility of oral evidence on such matters."

The petitioner in support of the assertions made in the plaint appeared before the learned trial Court as PW-1. During the course of evidence the petitioner admitted that the respondent served as his employee for 10 months and left the job on 20.4.2001; that he got the case registered against the respondent under Section 506, PPC; that he had not obtained any receipt or writing from the respondent while giving Rs.24800/- as Qarz-e-Hasnah; and, that salary of the respondent was Rs.800/- per month alongwith one maund wheat. The statements of other witnesses also support the version of the petitioner. In the light of statements of PWs and aforesaid principle laid down by the Hon'ble Supreme Court of Pakistan in the case of Ch. Muhammad Hussain (supra), I am inclined to agree with the findings recorded by the learned District Judge that in the given circumstances giving of Qarz-e-Hasnah by the petitioner to the respondent only for six months did not appeal to logic as it is a matter of common experience that when master/employer lends money to his servant/employee as Qarz-e-Hasnah then ordinarily the amount is deducted/adjusted from the salary of the employee particularly when total salary of the respondent was Rs.800/- per month and he was not in a position to repay the loan in lump sum. There is yet another awkward aspect of the case. The petitioner has asserted in the plaint and also during the course of evidence that he gave a sum of Rs.24800/- to the respondent in the presence of witnesses i.e PW-2 and PW-3. If the petitioner had made an effort to make the payment in presence of two witnesses then he should have also obtained a receipt from the respondent. In this perspective the learned District Judge has rightly dismissed the suit as the Hon'ble Supreme Court in the case of Muhammad Hussain (supra) has held that oral evidence may have little weight where documents are ordinarily required to be prepared or are usually prepared and no satisfactory explanation for departure from the parties is forthcoming. All the aforesaid facts cast doubt on the claim of the petitioner. Thus, in view of the nature of relationship between the petitioner and the respondent; and, conduct of the parties the learned District Judge rightly dismissed the suit as the petitioner had failed to establish oral agreement on the basis of which he claimed recovery of Rs.24800/- from the respondent.

1. This petition has no merits and is dismissed leaving the parties to bear their own cost.

(R.A.) Petition dismissed

PLJ 2013 Lahore 311

Present: Abdus Sattar Asghar, J.

MUHAMMAD NADEEM--Petitioner

versus

KAUKAB WASEEM--Respondent

C.R. No. 272 of 2013, decided on 1.2.2013.

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

----Ss. 115 & 144--Restoration of possession--Application for restoration of possession of property delivered to decree holders in lieu of ex-parte judgment--Execution of ex-parte judgment--Validity--There is no cavil to proposition that any benefit received by decree-holder under a decree which had been reversed was refundable to party entitled to such benefit by restoration--Restoration, therefore, is a consequential relief on account of reversal of decree for safe administration of justice--Impugned order passed by trial Court did not suffer from any jurisdictional error, factual or legal infirmity and did not call for any interference by High Court in exercise of its revisional jurisdiction. [P. 314] B & C

Act of Court--

----It is settled principle of law that an act of a Court should not injure rights of any party. [P. 314] A

Mian Muhammad Abbas, Advocate for Petitioner.

Date of hearing: 1.2.2013.

Order

This Civil Revision under Section 115 of Civil Procedure Code, 1908 is directed against the order dated 26.1.2013 passed by learned Civil Judge Lahore on an application under Section 144 of Civil Procedure Code, 1908 lodged by Kaukab Waseem respondent.

1. It is argued by learned counsel for the petitioner that the impugned order is against law and facts, without jurisdiction, untenable and liable to set aside.

2. Arguments heard. Record perused.

3. Allegedly petitioner being owner in possession of a house measuring 5 Marlas Bearing No. 52-E, Block-J-III, Jauhar Town Lahore, entered into an agreement to sell the said house in favour of respondent for a consideration of Rs. 45,50,000/- vide agreement to sell dated 23.9.2011 and the target date for completion of the sale was fixed as 2.12.2011. It is further alleged by the petitioner that later on respondent fraudulently replaced first page of the agreement to sell dated 23.9.2011 with the connivance of the stamp-vendor to show bogus and fictitious payments of some amounts through cheques and also illegally and forcibly trespassed into the disputed house and later on filed a suit for permanent injunction and obtained stay order from the Civil Court and that petitioner on having knowledge of the fraud also filed a suit for cancellation of the agreement to sell dated 23.9.2011. Respondent was proceeded ex-parte in the said suit which was later on decreed ex-parte in favour of the petitioner against the respondent vide judgment and decree dated 18.10.2012 passed by learned Civil Judge Lahore. Being aggrieved respondent lodged Regular First Appeal No. 893/2012 before this Court against the ex-parte judgment and decree dated 18.10.2012. During the pendency of the appeal petitioner lodged an application before the learned executing Court seeking Execution of the ex-parte judgment and decree dated 18.10.2012. The learned executing Court issued warrant of possession of the disputed house in favour of the decree-holder vide order dated 22.10.2012 which was executed through Bailiff and the possession was handed over to the petitioner/decree-holder as revealed through orders dated 24.10.2012 and 2.11.2012 passed by learned executing Court. Respondent being aggrieved of the said orders preferred Execution First Appeal No. 938/2012 before this Court. The same was dismissed vide order dated 22.11.2012 on the ground that respondent has already availed the remedy of appeal against the ex-parte decree pending before this Court and that EFA was tiled directly without obtaining the remedy of objection petition before the executing Court and respondent accordingly was advised by this Court to file objection petition before the learned executing Court. In due course RFA No. 893/2012 lodged by the respondent was allowed by a Division Bench of this Court vide judgment dated 6.12.2012 and ex-parte judgment and decree dated 18.10.2012 was set aside in the following manner:--

"The nutshell of the above discussion is that the impugned judgment was passed when a restraint order issued by the appellate forum was in field, therefore, the impugned judgment is in contravention of the restraint order issued by the learned Additional District Judge and suffers from legal infirmity. If such course is allowed to hold the field, it would amount to perpetuate injustice, hence not sustainable in the eye of law. For this reason, we have no option except to set aside the judgment and decree passed by the learned trial Court as well as the order dated 15.10.2012 and 30.07.2012. Resultantly, this appeal is allowed and the judgment and decrees/orders mentioned above are hereby set aside with the result that the suit of the respondent shall be deemed to be pending with the learned trial Court which shall proceed with the case after providing the opportunity to the appellant for filing her written statement. It is also ordered that the suit of the appellant for specific performance (if pending with any Civil Judge) shall also be consolidated with this suit and after framing the consolidated issues, the opportunity to lead evidence shall be provided to the parties in accordance with law."

1. Consequently respondent lodged an application under Section 144 read with Section 151 of Civil Procedure Code, 1908 for restitution/ restoration of possession of the disputed property delivered to the decree-holder in lieu of ex-parte judgment and decree dated 18.10.2012, later on set aside by a Division Bench of this Court. After providing an opportunity of hearing to the parties the learned trial Court through the impugned order has directed the restoration of possession of ground floor of the disputed house to the respondent. Hence this Civil Revision.

2. At this stage it may be expedient to re-produce the provision of Section 144 of Civil Procedure Code, 1908:--

"144. Application for restitution.--(1) Where and in so far as a decree is varied or reversed the Court of first instance, shall on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.

(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section(1)."

1. In this case admittedly possession of the disputed house was handed over to the petitioner in execution of the ex-parte judgment and decree dated 18.10.2012 which later on was set aside by a Division Bench of this Court vide judgment dated 6.12.2012 passed in RFA No. 893/2012.

2. It is settled principle of law that an act of a Court should not injure the rights of any party. Provision of Section 144 of Civil Procedure Code, 1908 is also based on the same principle. Since the respondent had lost the possession of the disputed house in execution of the ex-parte decree which has been later on set aside by a Division Bench of this Court therefore respondent is entitled to the restoration, of possession in accordance with law to meet the ends of justice and to restore the parties to the same position they were in prior to the decree that has been reversed. There is no cavil to the proposition that any benefit received by a decree-holder under a decree which has been reversed is refundable to the party entitled to such benefit by restoration. Needless to say that the principle laid down in the provision of Section 144 of Civil Procedure Code, 1908 is applicable irrespective of the fact that restoration has or has not been directed in the appellate decree. Restoration therefore is a consequential relief on account of reversal of the decree for the safe administration of justice. The impugned order passed by the learned trial Court dated 26.1.2013 does not suffer from any jurisdictional error, factual or legal infirmity and does not call for any interference by this Court in exercise of its revisional jurisdiction.

3. For the above reasons, this Civil Revision is dismissed in limine.

(R.A.) Revision dismissed

PLJ 2013 Lahore 314 (DB) [Multan Bench Multan]

Present: Ijaz Ahmad and Muhammad Yawar Ali, JJ.

IMTIAZ AHMAD KHAN--Appellant

versus

Mst. AQSA MANZOOR and 2 others--Respondents

I.C.A. No. 154 of 2012, decided on 20.12.2012.

Punjab Family Courts Act, 1964 (XXXV of 1964)--

----S. 14--Civil Procedure Code, (V of 1908), S. 11--Law Reforms Ordinance, (XII of 1972), S. 3--Intra Court Appeal--Suit for maintenance and return of articles--Second suit was hit by principles of res-judicata--Applicability under Punjab Family Courts Act--Dismissal of suit for want of evidence does not amount to final adjudication--Question of--Whether order dismissing application seeking dismissal of suit was a decision given or an interlocutory order--Order impugned in writ petition was passed on application made by applicant--Question of--Whether Court could try subsequent suit when earlier one had already dismissed for want of evidence was finally decided--No further order was to be passed on application--Order passed falls within term of decision given--Order assailed in writ petition finally decided application made by appellant cannot be termed to be an interlocutory order--It was a decision given and was appealable--Intra Court Appeal arising out of proceedings whereby law provides remedy by was of an appeal or revision was not competent--Appeal was dismissed. [P. 316] A, B & C

1991 Law Notes (Kar.) 411, rel.

Mr. Abdul Quddus Khan Tareen, Advocate for Appellant.

Mr. Muhammad Tanveer Hussain Ansari, Advocate for Respondents No. 1 & 2.

Date of hearing: 20.12.2012.

Order

Respondents No. 1 and 2 instituted a suit for maintenance and return of articles of dowry in the Court of learned Judge Family Court, Multan. The petitioner made an application contending that the learned trial Court shall not try the suit as the respondents had previously instituted a suit for the same relief. It was contested, issues were framed and the same was finally dismissed vide decree dated 29.07.2008. The earlier suit having been finally decided, the second suit was hit by principles of res judicata as contained in Section 11 of the Civil Procedure Code, 1908 which is applicable in cases instituted under the West Pakistan Family Courts Act, 1964. This application was dismissed by the learned Judge Family Court, Multan vide order dated 12.11.2009. Contends that order dated 12.11.2009 is illegal. The earlier suit between the same parties, the subject matter being the same and having finally been decided the subsequent suit could not be tried and that the learned Single Judge has erred in law while dismissing the petitioner's Writ Petition No. 10898-2012 and by upholding the order passed by the learned Judge Family Court, Multan.

1. Learned counsel appearing on behalf of Respondents No. 2 and 3 supports the order passed by the learned Single Judge. Contends that the earlier suit dismissed for want of evidence does not amount to final adjudication and therefore, the provisions of Section 11 of the Civil Procedure Code, 1908 do not restraint the Court from trying the suit and that the order dated 12.11.2009 is in its nature a decision given and is appealable under Section 14 of the West Pakistan Family Courts Act, 1964. Since, the order impugned in writ petition was appealable, therefore, the Intra Court Appeal under 3 of the Law Reforms Ordinance, XII of 1972 is not maintainable.

2. We have heard the learned counsel for the parties and have also gone through the record.

3. The basic question to be resolved is, whether the order dated 12.11.2009 dismissing the petitioner's application seeking the dismissal of respondent's suit is a decision given or an interlocutory order, the two terms used in Section 14 of the West Pakistan Family Courts Act, 1964.

The order dated 12.11.2009 impugned in the writ petition was passed on the application made by the applicant. The question whether the Court could try the subsequent suit when the earlier one had already dismissed for want of evidence was finally decided vide the above referred order. No further order was to be passed on the said application. The order passed falls within the term of "a decision given". Reliance is placed on Rao Muhammad Owais Qarni versus Mst. Tauheed Aisha and others (1991 Law Notes (Karachi) 411). In view of the ratio of the referred judgment the order assailed in writ petition finally decides the application made by the appellant cannot be termed to be an interlocutory order. It is a decision given and is appealable. The instant Intra Court Appeal arising out of the proceedings whereby the law provides a remedy by way of an appeal or revision is not competent. This appeal is dismissed.

(R.A.) Appeal dismissed

PLJ 2013 Lahore 316 [Multan Bench Multan]

Present: Syed Iftikhar Hussain Shah, J.

SYED BAQIR HUSSAIN RIZVI, CONSOLIDATION OFFICER ALIPUR, DISTRICT MUZAFFARGARH--Petitioner

versus

SENIOR MEMBER BOARD OF REVENUE, GOVERNMENT OF THE PUNJAB, LAHORE and 2 others--Respondents

W.P. No. 8520 of 2011, heard on 20.12.2012.

Punjab Civil Servants Act, 1974--

----S. 9--Constitution of Pakistan, 1973, Art. 212--Constitutional petition--Civil servant--Political victimization--Transferred from one place to another within short span of time--Conditions of service--Transfer of civil servant as a matter relating to terms and conditions of service and bar contained in Art. 212 of Constitution would be fully attracted. [P. 319] A

Civil Servant--

----Transfer from one place to another place within short spam of time--Validity--If transfer order is based on malafide even then service tribunal had jurisdiction to interference and set aside the same. [P. 319] B

Constitution of Pakistan, 1973--

----Art. 189--Question of law are binding on all other Courts--Under Art. 189 of Constitution, all decisions of Supreme Court deciding question of law are binding on all other Courts in Pakistan. [P. 319] C

Constitution of Pakistan, 1973--

----Art. 212--Punjab Civil Servants Act, 1974, S. 9--Constitutional petition--Transfer of civil servant is a part of terms and conditions of civil servant--Jurisdiction of--Art. 212 of Constitution ousts jurisdiction of all other Courts and orders of departmental authority even though without jurisdiction or mala fide can be challenged only before Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted--Petitioner has not vested right to remain posted at a particular place--Petition was dismissed. [Pp. 319 & 320] D

2011 SCMR 592, 1997 SCMR 169, 2011 PLC (CS) Lah. 782, 2012 PLC (CS) Lah. 31 & 2012 PLC (CS) Lahore, 609, rel.

Malik Muhammad Saleem, Advocate for Petitioner.

Syed Athar Hussain Shah Bokhari, Advocate for Respondents.

Date of hearing: 20.12.2012.

Judgment

The petitioner has assailed the legality of order dated 30.06.2011, whereby he was transferred from the post of Consolidation Officer, Alipur District Muzaffargarh and was directed to report to Board of Revenue, Punjab on the administrative ground in the public interest.

1. The learned counsel for the petitioner has contended that the petitioner has been, transferred from one place to another within a short span of time and he has been made rolling stone on the direction of MPA and it is a case of political victimization. Therefore, his transfer is based on malafide and same is liable to be cancelled. Learned counsel for the petitioner has relied on "Zahid Akhtar Vs. Govt. of Punjab through Secretary, etc." (PLD 1995 S.C. 530) and "Muhammad Saleh Asim Vs. Secretary Schools Education" (PLJ 2008, Lahore 772).

2. On the other hand, learned counsel for Respondent No. 4 has stated that the petitioner has been transferred on administrative ground as he was involved in corruption and forgery of record, who was also convicted by Special Judge, Anti-Corruption, D.G. Khan. The transfer and posting of Government servant is a part of terms and conditions of civil servant, which falls within exclusive jurisdiction of Punjab Service Tribunal and constitutional jurisdiction of this Court cannot be invoked in the matter of transfer. The leaned counsel for the respondent has relied upon the following case law:--

"Govt. of Sindh through Secretary, etc. Vs. Nizakat Ali.etc." (2011 SCMR 592)

"Ayyaz Anjum. Vs. Government of Pb. H.P.P.D. etc." (1997 SCMR 169)

"Abdul Ghafoor, etc. Vs. Govt. of Punjab and others" (2011 PLC (CS), Lahore 782)

"Ms. Anyesha Bashir Wani, etc. Vs. Govt. of Pak, etc." (2012 PLC (CS) Lahore 31)

"Imran Arif Ranjha, etc. Vs. Pb. Public Service, etc" (2012 PLC (CS) Lahore 609)

1. Arguments heard and record perused.

2. The petitioner being civil servant was performing his duties as Consolidation Officer at Alipur, District Muzaffargarh and he has been transferred with the direction to report to Board of Revenue.

3. The matters of posting and transfer of civil servants are dealt under Section 9 of the Punjab Civil Servants Act, 1974 which read as under:--

"Posting and transfer."

Every civil servant shall be liable to serve any where within or outside the province on any post under the Government of the Punjab or the Federal Government or any Provincial Government or a Local Authority or a Corporation or a body set-up or established by an such Government.

1. A bare reading of Section 9 of the Punjab Civil Servants Act, 1974 reveals that a civil servant is bound to serve anywhere within or outside the Province in any post under the Government of the Punjab or the Federal Government or any Provincial Government or local authority or a corporation or body set-up or established by any such Government.

2. The transfer of 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. It has been held by the August Supreme Court in case of "Khalid Mehmood Wattoo. Vs. Government of the Punjab, etc." (1998 SCMR 2280) 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 malafide still the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan 1973, would be attracted. The Hon'ble Supreme Court of Pakistan while deciding case of "Peer Muhammad. Vs. Govt. of Baluchistan." (2007 SCMR 54), held that the question of posting of a Government Servant squarely falls within the jurisdiction and domain of competent authority, only the Service Tribunal has exclusive jurisdiction to dilate upon and decide such matters and constitutional jurisdiction of High Court cannot be invoked to get such controversies resolved. It has also been held by the Hon'ble Supreme Court of Pakistan in case "Secretary, Education NWFP, etc. Vs. Mustamir Khan, etc" (2005 SCMR 17) that transfer of any civil servant could only be made by competent authority in the exigency of service and public interest and civil servant had no right to remain posted at a particular place. If transfer order is based on malafide even then the Service Tribunal has jurisdiction to interfere and set aside the same. It has also been held by the Hon'ble Supreme Court of Pakistan in case "Ayyaz Anjum Vs. Government of Punjab, Housing & Physical Planning Department etc." (1997 SCMR 169) that matter relating to the posting and transfer of civil servant relates to the terms & conditions of his service and such matter would fall within the exclusive jurisdiction of appropriate Service Tribunal. The jurisdiction of High Court is barred in such matter under Article 212(2) of the Constitution.

3. The case law produced by the learned counsel for the petitioner is not directly applicable in the facts and circumstance of the case. Under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, all the decisions of Hon'ble Supreme Court deciding the question of law are binding on all other Courts in Pakistan. Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 ousts the jurisdiction of all other Courts and orders of departmental authority even though without jurisdiction or malafide can be challenged only before the Service Tribunal and the jurisdiction of Civil Court including the High Court is specifically ousted. The petitioner has no vested right to remain posted at a particular place.

Resultantly, the instant writ petition is without merits and same is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2013 Lahore 320

Present: Abdus Sattar Asghar, J.

RAB NAWAZ--Petitioner

versus

MUHAMMAD KABEER--Respondent

C.R. No. 1366 of 2011, decided on 28.1.2013.

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

----S. 115 & O. XXIII, R. 3--Civil revision--Cancellation of appointment of referee--Application was accepted--Agreement before Court of decide case on statement of third person was retracted by expressing lack of confidence on referee before recording statement--Validity--There is no cavil to proposition that parties to a lis can enter into an agreement that suit might be decided in accordance with statement to be made by third person as to matter in between them--Such a statement between parties being a mere agreement, therefore could be retracted by any of party on ground of lack of confidence upon the referee--Application for cancellation of appointment of referee on ground of lack of confidence, therefore, recording of statement of referee by trial Court was without jurisdiction and of no legal effect qua rights of respondent--Trial Court was not obliged to decide suit in light of statement of referee recorded after application earlier lodged showing his lack of interest on the referee--Petition was dismissed. [Pp. 321 & 322] A, B, C & D

Ch. Muhammad Anees Khatana, Advocate for Petitioner.

Mr. Ghulam Mujaddid Rabbani and Mr. Zafar Ahmad Gondal, Advocates for Respondents.

Date of hearing: 28.1.2013.

Judgment

This civil revision under Section 115 of the Code of Civil Procedure 1908 is lodged against the order dated 02.3.2011 passed by learned Additional District Judge Jhang whereby respondent's application for cancellation of appointment of referee was accepted and order of appointment of referee was set aside.

1. It is argued by learned counsel for the petitioner that impugned order is against law and facts, based on misreading and non-reading of evidence and material available on the record; that appointment of referee once consented by the parties cannot be annulled; that the impugned order being violative to law and facts is liable to set aside.

2. On the other hand it is resisted by learned counsel for the respondent with the contentions that parties' agreement before the Court to decide the case on the statement of third person was retracted by the respondent expressing his lack of confidence on the referee before recording his statement in the Court; that the learned trial Court has rightly cancelled the appointment of referee through the impugned order in accordance with the law and facts.

3. Arguments heard. Record perused.

4. There is no cavil to the proposition that parties to a lis can enter into an agreement that suit may be decided in accordance with the statement to be made by third person as to matter in dispute in between them. In this case Muhammad Kabir respondent had lodged a suit against Rabnawaz petitioner under Order XXXVII of the Code of Civil Procedure 1908 for recovery of Rs.5,00,000/- on the basis of promissory note dated 27.3.2008. The said suit was contested by petitioner by filing written statement. Issues were framed by learned trial Court as arising out of divergent pleadings of the parties. On 15.12.2010, the suit was at the stage of evidence when parties made a joint statement for appointment of Muhammad anwar Cheema as referee. Record reveals that on 09.2.2011 respondent lodged an application before the learned trial Court expressing his lack of confidence on the referee. On 11.2.2011 referee made his statement before the Court against the respondent/plaintiff. On the same day learned trial Court required the petitioner to file the written reply to the application lodged by respondent on 09.2.2011 seeking cancellation of appointment of referee. Later on petitioner lodged his written reply to the said application and thereafter learned trial Court granting opportunity of hearing to the parties allowed the application vide order dated 02.3.2011.

5. It is vehemently argued by learned counsel for the petitioner that appointment of referee once consented by the parties cannot be retracted and that consequent upon the statement of referee before the Court such appointment cannot be recalled. It is resisted by learned counsel for the petitioner while relying upon the dictum laid down by the Hon'ble Apex Court in the case titled Muhammad Akbar and another Vs. Muhammad Aslam and another (PLD 1970 Supreme Court 241). Careful perusal transpires that facts of the cited case are identical to the facts of this case. In the cited case it is. observed by Hon'ble Apex Court that a statement between the parties to the suit for decision of the same on the statement of a third person neither falls within the ambit of Order XXIII, Rule 3 of the Code of Civil Procedure 1908 nor in the provisions of the Arbitration Act, 1940. Such a statement between the parties being a mere agreement, therefore, could be retracted by any of the party on the ground of lack of confidence upon the referee. The Hon'ble Apex Court in the cited case has further held that in such circumstances learned trial Court had no jurisdiction to record the statement of the referee. The matter therefore was remanded to the learned trial Court to dispose of the suit on merits.

6. In this case it is evident on the record that respondent had lodged the application for cancellation of appointment of referee on the ground of lack of confidence on 09.2.2011 therefore recording of statement of referee by the learned trial Court on 11.2.2011, was without jurisdiction and of no legal effect qua the rights of the respondent. The learned trial Court was not obliged to decide the suit in the light of the statement of referee recorded after the application earlier lodged by the respondent showing his lack of interest on the said referee. The learned trial Court therefore has rightly granted the application of the respondent for cancellation of appointment of referee through the impugned order. It does not suffer from any legal infirmity or jurisdictional error.

7. For the above reasons, petitioner has no case to invoke the revisional jurisdiction of this Court. This revision petition having no merit is dismissed.

(R.A.) Petition dismissed

PLJ 2013 Lahore 322

Present: Abdus Sattar Asghar, J.

AKHTAR ABBAS--Petitioner

versus

MUHAMMAD ANWAR, etc.--Respondents

W.P. No. 6805 of 2011, decided on 29.1.2013.

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

----O. XXI, Rr. 32(5) & 35(2)--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Suit for possession--Order passed by executing Court was within domain of jurisdiction--No case to invoke constitutional jurisdiction of High Court--Executing Court directed Revenue Officers to record and sanction mutation--Issuance of warrant dakhl through DDO(R) to restore possession in joint khata to decree holder--Validity--Impugned order passed by executing Court regarding attestation of mutation on basis of decree as well as issuance of warrant of possession in joint khata without making direction for partition thereof being merely incidental to execution of decree for specific performance, do not suffer from any jurisdictional error, material irregularity or legal infirmity--Petitioner had no case to invoke constitutional jurisdiction of High Court--Petition was dismissed. [P. 325] A & B

2010 PLC 789, Lah. Rel.

Syed Faiz-ul-Hassan, Advocate for Petitioner.

Mr. Shahid Ali Shakir, Advocate for Respondent.

Date of hearing: 29.1.2013.

Judgment

Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitutional of Islamic Republic of Pakistan, 1973 to impugn the orders dated 19.4.2010 and 04.5.2010 passed by learned Civil Judge and judgment dated 18.10.2010 passed by learned Additional District Judge Chiniot.

1. It is argued by learned counsel for the petitioner that the impugned orders and judgment are against law and facts without jurisdiction and liable to set aside; that the decree for possession through specific performance pertaining to undivided share in the joint Khata passed in favour of respondent Muhammad Anwar could not be executed through warrant of possession and the only course with the respondent/decree holder was to lodge a suit for partition of the joint khata and obtain an order in this regard from the Court of competent jurisdiction.

2. It is resisted by learned counsel for the respondent with the arguments that the impugned orders passed by learned Executing Court and the learned Additional District Judge are within the domain of their jurisdiction in accordance with law and that petitioner has no case to invoke the constitutional jurisdiction of this Court.

3. Arguments heard. Record perused.

4. Perusal of the record reveals that Muhammad Anwar respondent lodged suit for possession Malkana of the land measuring 44 kanals 10 marlas comprising 890/8445 share in khata No. 1 out of total area measuring 422 kanals 5 marlas situated in Chak No. 22 J.B. Tehsil Chiniot through specific performance of the agreement to sell. The suit was decreed in his favour against the petitioner by the learned Civil Judge Chiniot vide judgment and decree dated 23.4.1998. The petition for execution of the decree was lodged on 25.11.1998 however it remained pending for about 12 years. During the pendency of execution petition petitioner/judgment debtor mortgaged his land measuring 211 kanals 3 marlas in favour of United Bank Limited Pul Dhingro in lieu of some loan vide Mutation No. 430 dated 30.5.2005. The learned executing Court vide order dated 19.4.2010 however directed the Revenue Officer and Patwari Halqa to record and sanction the mutation in favour of the decree holder in the light of decree dated 23.4.1998. Consequently Mutation No. 440 dated 20.4.2010 was attested by the Revenue Officer in favour of decree holder and copy thereof was produced before the learned Executing Court on 04.5.2010. The learned Executing Court after receiving the copy of Mutation No. 440 ordered issuance of warrant-dakhl through DDO(R) concerned to restore the possession in the joint khata to the decree holder in accordance with the said mutation. Petitioner being aggrieved of the order dated 19.4.2010 and 04.5.2010 lodged a revision petition before the learned Additional District Judge Chiniot which was dismissed vide impugned judgment dated 18.10.2010, hence this constitutional petition.

5. At the outset it may be expedient to reproduce hereunder the relevant provisions of Order XXI, Rule 32(5) and Rule 35(2) of the Code of Civil Procedure 1908 for ready reference:--

"Order XXI, Rule 32.--Decree for specific performance, for restitution of conjugal rights, or for an injunction:--

(5) Where a decree for specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the process aforesaid, direct that the act required to be done may be done so for as practicable by the decree-holder or some other person appointed by the Court, a the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.

Order XXI Rule 35(2).--Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree."

1. There is no denying the fact that decree issued in favour of the petitioner pertains to undivided share of the joint khata. Since no direction was issued in the decree for partition of the land perhaps for this reason learned Executing Court in the impugned order dated 04.5.2010 has also not directed partition of the joint khata rather warrant of possession was issued in accordance with the mutation sanctioned on the basis of the decree. The above state of affairs, therefore, attracts the provisions of Order XXI Rule 35(2), CPC pertaining to the delivery of symbolic possession. It is obvious that impugned orders passed by learned Executing Court regarding attestation of mutation on the basis of decree as well as issuance of warrant of possession in the joint khata without making a direction for partition thereof being merely incidental to the execution of the decree for specific performance, do not suffer from any jurisdictional error, material irregularity or legal infirmity. Reliance is made upon Manzoor Ahmed and another Vs. Sain Ahmed and others (2010 CLC 789 Lahore). The learned Revisional Court therefore has rightly dismissed the revision petition lodged by the petitioner against the orders passed by learned Executing Court. Petitioner has no case to invoke the constitutional jurisdiction of this Court. This petition having no merit is dismissed.

(R.A.) Petition dismissed

PLJ 2013 Lahore 325

Present: Abdus Sattar Asghar, J.

TALIB HUSSAIN--Appellant

versus

Mst. PARVEEN AKHTAR--Respondents

FAO No. 224 of 2012, decided on 24.1.2013.

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

----S. 51 & O. XXI, R. 37--Executant Court passed order to send judgment debtor to civil prison for one year due to non-payment of decreetal amount--Challenge to--Validity--There is no cavil to proposition that judgment debtor can be arrested and sent to civil prison in execution of money decreed as contemplated--When judgment debtor appears before Court after being arrested it is incumbent upon Court to furnish an opportunity of hearing to decree holder and also to give opportunity to judgment debtor to show-cause why he would not be detained in prison--Neither a notice was served upon judgment debtor nor any inquiry was conducted by executing Court before passing impugned order of detention of judgment debtor in civil prison for a term of one year--Impugned order being flagrant violation of provisions of S. 51 r/w. Order 21, Rule 31 and 40 of CPC is untenable in eyes of law--Appeal was allowed. [Pp. 328 & 329] A, B & D

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

----S. 51--Judgment debtor--Detention of a judgment debtor in prison can be ordered only after conclusion of inquiry by executing Court subject to satisfaction of pre-requisites of S. 51 of CPC. [P. 329] C

Mr. Muhammad Akhtar Rana, Advocate for Appellant.

Mr. Qamar-ul-Haq Bhatti, Advocate for Respondent.

Date of hearing: 24.1.2013.

Judgment

Through this FAO Talib Hussain judgment debtor has assailed the order dated 13.4.12012 passed by learned Executant Court to send him to civil prison for one year due to non-payment of decretal amount.

1. It is argued by learned counsel for the petitioner that the impugned order is against law and facts, violative to the provisions of Sections 51 and Order XXI, Rule 37 of the Code of Civil Procedure 1908 causing miscarriage of justice and liable to set aside.

2. It is resisted by learned counsel for the respondent/decree holder with the contentions that appellant/judgment debtor having knowledge of the decree after appearing before the learned Executing Court later on willfully disappeared to avoid the payment of decreetal amount; that his attendance was procured by the learned Executing Court through issuance of non-bailable warrants, therefore, impugned order is lawfully passed to execute the money decree.

3. Arguments heard. Record perused.

4. At the outset it may be expedient to reproduce hereunder relevant provisions of Section 51, Order XXI, Rules 37 and 40 of the Code of Civil Procedure 1908 for ready reference:--

"Section 51. Powers of Court to enforce execution.--Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree--

(a) by delivery of any property specifically decree;

(b) by attachment and sale or by sale without attachment of any property;

(c) by arrest and detention in prison;

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require:

[Provided that, execution by detention in prison shall not be ordered unless, after giving the judgment debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied--

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,--

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) has, after the institution of the suit in which the decree was passed dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property; or

(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.

Order XXI, Rule 37. Discretionary power to permit judgment--debtor to show cause, against detention in prison.--(1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in [=] prison of a judgment debtor who is liable to be arrested in pursuance of the application, the Court [shall], instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be [detailed in] prison:

[Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.]

(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.

Order XXI, Rule 40. Proceedings on appearance of judgment-debtor in obedience to notice or after arrest.--(1) When a judgment debtor appears before the Court in obedience to a notice issued under Rule 37, or is brought before the Court after being arrested in execution of a decree for the payment of money, the Court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution, and shall then give the judgment-debtor an opportunity of showing cause why he should not be [detained in] prison.

(2) Pending the conclusion of the inquiry under sub-rule (1) the Court may, in its discretion, order the judgment-debtor to be detained in the custody of an officer of the Court or release him on his furnishing security to the satisfaction of the Court for his appearance when required.

(3) Upon the conclusion of the inquiry under sub-rule (1) the Court may, subject to the provisions of Section 51 and to the other provisions of this Code, make an order for the detention of the judgment-debtor in [=] prison and shall in that event cause him to be arrested if he is not already under arrest:

Provided that in order to give the judgment-debtor an opportunity of satisfying the decree, the Court may, before making the order of detention, leave the judgment-debtor in the custody of an officer of the Court for a specified period not exceeding fifteen days or release him on his furnishing security to the satisfaction of the Court for his appearance at the expiration of the specified period if the decree be not sooner satisfied.

(4) A judgment-debtor released under this rule may be re-arrested.

(5) When the Court does not make an order of detention under sub-rule (3), it shall disallow the application and, if the judgment-debtor is under arrest, direct his release."

1. There is no cavil to the proposition that a judgment debtor can be arrested and sent to the civil prison in execution of money decree as contemplated in the afore quoted provisions of procedural law. Bare reading of the above referred provisions of the Code of Civil Procedure 1908 reveals that before issuing a warrant of arrest a notice to show cause has to be given to the judgment debtor to explain as to why he should not be detained in the prison. Such a notice can be dispensed with only if the Court, is satisfied by affidavit or otherwise that the judgment debtor was likely to abscond or leave the local limits of the jurisdiction of the Court to avoid the payment of decreetal amount. Afore referred provisions also manifest that if appearance is not made in obedience of the notice the Court shall, if the decree holder so requires, issue a warrant the arrest of the judgment debtor. It also contemplates that when the judgment debtor appears before the Court in obedience of the notice or is brought before the Court after being arrested it is incumbent upon the Court to furnish an opportunity of hearing to the decree holder and also to give an opportunity to the judgment debtor to show cause why he should not be detained in prison. Pending such inquiry it is discretionary with the Court to order the detention of the judgment debtor or his release subject to furnishing of surety to the satisfaction of the Court for his appearance as and when required. It is therefore obvious that the detention of a judgment debtor in prison can be ordered only after the conclusion of the inquiry by the learned Executing Court subject to the satisfaction of the pre-requisites of Section 51 of the Code of Civil Procedure, 1908.

2. In the light of the above legal position careful appraisal of the record reveals that neither a notice was served upon the judgment debtor nor any inquiry was conducted by the learned Executing Court before passing the impugned order of detention of judgment debtor in the civil prison for a term of one year. The impugned order therefore being a flagrant violation of the provisions of Section 51 rend with Order XXI, Rules 37 and 40 of the Code of Civil Procedure 1908 is untenable in the eye of law.

3. For the above reasons, this appeal is allowed and impugned order dated 13.4.2012 passed by learned Executing Court is set aside. The appellant is allowed to join the execution proceedings on furnishing surety bond equal to the decreetal amount to the satisfaction of learned Executing Court within a period of thirty days for his appearance in the execution proceedings. The learned Executing Court is directed to proceed with the execution proceedings on its merits in accordance with law.

(R.A.) Appeal allowed

PLJ 2013 Lahore 329 [Multan Bench Multan]

Present: Rauf Ahmad Sheikh, J.

MUSHTAQ AHMAD--Petitioner

versus

DISTRICT JUDGE, VEHARI and 2 others--Respondents

W.P. No. 4772 of 2008, decided on 19.12.2012.

Oath Act, 1873--

----S. 10--Statement on Holy Quran--Nikah-Nama--Administered by Court--Conditions in Nikah Nama were same which were settled by the parties at time of Nikah then suit be decreed--Oath was accordingly administered by Court in terms of S. 10 of Oath Act, 1873. [P. 332] A

Oath Act, 1873--

----S. 11--Nikah Nama--Thumb-impression alongwith signatures of counsel in margin of order sheet in token of acknowledgment--Statement would amount to an admission on part of petitioner and was conclusive evidence against him--Findings of trial Court could not be assailed in that regard. [P. 333] B

Punjab Family Courts Act, 1964 (XXXV of 1964)--

----S. 5--Exclusive jurisdiction of Family Court--Dispute of dower--Maintenance as claimed falls within exclusive jurisdiction of Family Court--If husband would turn wife out of house or pronounce divorce without any lawful exerise he would pay a sum of specified amount--Such amount was neither part of dower nor amounts to personal property, so claim in that regard does not fall within jurisdiction of Family Court--Offer and acceptance of special oath would not confer powers on Family Court to adjudicate upon matter, which was purely of civil nature and falls within jurisdiction of Civil Court--Courts below had failed to perform their duties in accordance with law--Petition was partly accepted. [P. 333] C & D

Syed Athar Hassan Bukhari, Advocate learned counsel for Petitioner.

Ch. Pervaiz Akhtar Gujjar and Malik Ghulam Muhammad Langrial, Advocate learned counsel for Respondent No. 3.

Date of hearing: 4.12.2012.

Order

The petitioner has assailed the vires of judgment and decree dated 16.10.2006 passed by the learned Judge Family Court Vehari, whereby a suit for maintenance recovery of gold ornaments weighing 05-tolas as dower, a sum of Rs.5,00,000/- under Condition No. 19 of the "Nikah Nama" and maintenance @ Rs.12,000/- per month w.e.f 07.05.2005 till expiry of period of "Iddat" was decree against him and in favour of Respondent No. 3 and also the judgment & decree dated 07.07.2007 passed by the learned District Judge, Vehari, whereby an appeal filed by him, was dismissed.

1. The facts in brief as emerge on perusal of the record are that the Respondent No. 3 filed a suit for recovery of gold ornaments weighing 05-tolas, a sum of Rs.5,00,000/- as per entry in column No. 19 of the "Nikah Nama" and maintenance @ Rs. 12,000/- per month w.e.f 07.05.2005 till the expiry of period of Iddat.

2. It was contended that marriage between her and the petitioner was solemnized on 07.5.2005 and he agreed to give her gold ornaments weighing 05-tolas and also transferred a house measuring 05-marlas, which has become her property and she is in possession of the same as owner. It is contended that under Condition No. 19, he had undertaken to pay a sum of Rs.5,00,000/- in case he turned her out of the house or pronounced divorce without any justification. It was alleged the petitioner is a person of bad character, who used to treat her with habitual cruelty and finally divorced her on 05.01.2006. She contended that she was entitled to a sum of Rs.5,00,000/- for turning her out of the house and pronouncement of divorce by the petitioner without any cogent reason, gold ornaments weighing 5-tolas and maintenance @ Rs.12,000/- per month w.e.f 07.5.2005 till the expiry of period of Iddat.

3. The defendant/petitioner contested the suit. It was contended that Columns Nos. 16, 19 and 20 were not filled in at the time of the "Nikah" and subsequently the entries were made without his consent. The other allegations were also controverted.

4. The learned trial Court framed the following issues:

(1) Whether the plaintiff is entitled to get Gold ornaments as mentioned under Column No. 16 Rs.5,00,000/- as mentioned under Column No. 19 of Nikah Nama and also Rs.12,000/- as maintenance of plaintiff on Iddat period?OPP

(2) Whether the plaintiff has no cause of action and locus standi to file the suit?OPD

(3) Whether the plaintiff has not come to the Court with clean hands?OPD

(4) Relief.

1. On 04.10.2006, the Respondent No. 3/piaintiff made an offer that if the defendant/petitioner would take Oath on Holy Quran that the terms mentioned in Nikah Nama Ex.P1 were not settled between the parties, her suit might be dismissed. On this, the defendant/petitioner made an offer that if father's father of the petitioner would make a statement on Holy Quran to the effect that the conditions mentioned in Ex. P1 were settled at the time of Nikah then the suit be decreed otherwise, the same be dismissed. On this, the father's father of Respondent No. 3 namely Khuda Bukhsh appeared before the Court and stated on Oath on Holy Quran that conditions of "Nikah Nama" Ex.P1 are correct and the same are as were settled by the parties. This statement was recorded before the Court in presence of the petitioner and his counsel so the learned trial Court proceeded on to pass the decree. The defendant/petitioner assailed the decree before the learned District Judge through an appeal, which was dismissed.

2. The learned counsel for the petitioner has contended that the condition embodied in Column No. 19 is against the basic principle of law, which requires the spouses to remain respectably, peacefully & amicably by observing the limits of God and any such stringent condition is against the basic notion of matrimonial ties under the Islamic Law. In support of the contentions raised reliance is placed on 2008 SCMR 186. It is Further contended that this condition revolves around the promise that he would not divorce the Respondent No. 3 without lawful excuse and would not turn her out of the house so it is a question of fact as to whether he had divorced her or such pronouncement was result of demand made by her, which primarily is a dispute of civil nature and should have been decided by the civil Court so even the statement made in this regard will not confer jurisdiction on the Family Court; that the rate of maintenance was very excessive and that Condition No. 16 regarding ornaments also did not create any right in favour of the Respondent No. 3 so she should have proved this contention also before the family Court. In this respect reliance is placed on 2009 MLD 671 (Lahore) and PLD 2007 Lahore 515.

3. On the other hand, learned counsel for the Respondent No. 3 has argued that the petitioner had agreed for decision of all disputed matters on the basis of special oath, which was accordingly administered and he & his counsel respectively put thumb impression and signatures in the margin of the order sheet and this fact is sufficient to prove that oath was accordingly taken so he cannot assail the judgment and decree on any ground whatsoever. In support of the contentions raised reliance is placed on PLJ 2005 Lahore 961.

4. There was a clear offer by the petitioner that if the father's father of the Respondent No. 3 would make a statement on Holy Quran that the conditions in "Nikah Nama" Ex.P1 are the same, which were settled by the parties at the time of Nikah then the suit be decreed. This offer was accepted by the Respondent No. 3. The Oath was accordingly administered by the Court in terms of Section 10 of the Oaths Act, 1873. The petitioner put his thumb impression along with the signatures of his counsel in the margin of the order sheet in token of acknowledgement. Under Section 11 of the Oaths Act, 1873, this statement would amount to an admission on part of the petitioner and is conclusive evidence against him. He cannot assail the findings of the learned trial Court in this regard. The "Nikah Nama" clearly shows that gold ornaments weighing 05-tolas and a house on land measuring 05-marlas were given in lieu of dower and would become property of the Respondent No. 3. This also shows that the possession of the house was delivered to her. She had become the owner of the property and the ornaments. Even otherwise, these were given in lieu of dower and the dispute in this regard would fall within the exclusive jurisdiction of the Family Court, in view of Section 5 of the Family Courts Act, 1964 read with Item No. 2 of the schedule of the Act ibid. Similarly, the maintenance as claimed falls within the exclusive jurisdiction of the Family Court. However, the Condition No. 19, inter alia, provides that if the husband would turn the wife out of the house or pronounces divorce without any lawful excuse, he would pay a sum of Rs.5,00,000/- to her. This amount is neither part of the dower nor amounts to personal property of the Respondent No. 3 so the claim in this regard does not fall within the jurisdiction of the Family Court. Even otherwise, the offer and acceptance of Special Oath would not confer the powers on the Family Court to adjudicate upon the matter, which is purely of civil nature and falls within the jurisdiction of civil Court. According to "Nikah Nama", the Respondent No. 3 is entitled to recover this amount only in case it is established that the petitioner had turned her out of the house and had divorced her without any justification. Even if for the sake of arguments, it is accepted that the petitioner had pronounced the divorce without any justification and was liable to pay a sum of Rs.5,00,000/- this was neither personal belonging of the Respondent No. 3 nor dower and as such did not fall within the jurisdiction of the Family Court established under the Family Courts Act, 1964. Even the offer of statement on special oath and acceptance of the same would not confer the jurisdiction on the Family Court to decide this controversy. This part of the judgment and decree of the learned trial Court as upheld by the learned District Judge are not sustainable for want of jurisdiction. Both the Courts below have failed to perform their duties in accordance with law in this respect. The remaining findings and judgments & decrees of both the Courts are not open to any interference as held above. In the light of foregoing findings, the writ petition is partly accepted and judgments & decrees of the learned trial Court and the learned District Judge are modified and set aside to the extent of recovery of sum of Rs.5,00,000/- under condition No. 19 of the "Nikah Nama". The remaining judgments and decrees will remain intact.

(R.A.) Petition accepted

PLJ 2013 Lahore 334 (DB) [Multan Bench Multan]

Present: Ijaz Ahmed and Muhammad Yawar Ali, JJ.

SAIF ULLAH SALEEM ARSHAD--Petitioners

versus

STATE, etc.--Respondents

W.P. No. 16056 of 2012, decided on 20.12.2012.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Constitution of medical board--No material of mala fides attributed to M.O.--No roving inquiry can be held in matter and no direction can be given for constitution of medical board--Validity--Petitioner filed an application for constitution of a medical board before Judge Anti Terrorism Court after an inordinate delay of 22 days--No plausible explanation was forthcoming as to why petitioner wanted for 22 days before approaching Anti Terrorism Court for constitution of medical board--Petition was dismissed. [P. 335] A

M/s. Rana M. Asif Saeed and Ch. Muhammad Afzal Jatt, Advocates for Petitioner.

Date of hearing: 20.12.2012.

Order

Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 the petitioner seeks setting aside of impugned order 13.12.2012 passed by Respondent No. 2 and issuance of a direction for constitution of a medical board.

1. Briefly stated the facts of the case necessary for the disposal of this petition are that on the complaint of Respondent No. 3 Malik Zafar Hussain FIR No. 725/2012 dated 10.11.2012 for offence under Sections 324, PPC, 7 Anti-Terrorism Act, 1997 was registered against the petitioner and his sister Mst. Nazia Arshad at Police Station Chehlyak District Multan. As per the prosecution case, a co-accused Mst. Nazia Arshad, sister of the petitioner threw acid on the private parts of the complainant. The complainant was medically examined on 10.11.2012. The petitioner filed an application for constitution of a medical board on the ground that a false and fake medico-legal certificate had been obtained by the complainant in order to falsely implicate the petitioner and his sister with the commission of offence.

2. The learned counsel for the petitioner submits that a false, frivolous and concocted FIR has been registered at the instance of the complainant against the petitioner and his sister Mst. Nazia Arshad. The petitioner's sister never threw acid on the private parts of the complainant. The doctor who medically examined the complainant issued a bogus medico-legal certificate in order to help the complainant of the FIR. Miscarriage of justice would be occasioned in case a medical board is not constituted to determine as to whether or not the injuries sustained by the complainant are from a friendly hand.

3. We have heard the arguments advanced at the limine stage and perused the documents annexed with this petition.

4. In pith and substance, the learned counsel for the petitioner has alleged mala fides against the Medical Officer who examined the victim, complainant namely Respondent No. 3. After going through the contents of the application dated 30.11.2012 filed by the petitioner for constitution of a medical board it is clear that no material particulars of the mala fides attributed to the Medical Officer, who medically examined the victim, have been given therein. It is trite that in order to establish a case of mala fides some specific allegations are necessary and it must be supported by some prima facie proof to set-aside the impugned order by this Court. The learned counsel for the petitioner has made a bald assertion that the concerned Medical Officer has been won over by the complainant. In the absence of specific allegations being levelled against the Medical Officer no roving inquiry can be held in the matter and no direction can be given for the constitution of a medical board. The principles of law laid down by the august Supreme Court of Pakistan in The Federation of Pakistan through The Secretary, Establishment Division, Government of Pakistan Rawalpindi Vs. Saeed Ahmad Khan and others (PLD 1974 Supreme Court 151) can be read with considerable advantage. The petitioner filed an application for the constitution of a medical board before Respondent No. 2 after an inordinate delay of 22 days. No plausible explanation is forthcoming as to wahy the petitioner waited for 22 days before approaching Respondent No. 2 for the constitution of a medical board.

5. For what has been stated above, this petition being without any merit is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2013 Lahore 336 [Rawalpindi Bench Rawalpindi]

Present: Ali Baqar Najafi, J.

MUHAMMAD MEHBOOB & another--Petitioners

versus

NOOR ELLAHI (deceased) through his Legal Heirs, etc.--Respondents

C.R. No. 297 of 2013, decided on 21.5.2013.

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

----O. XLI, R. 27--Production of additional evidence--Neither birth certificate nor pedigreetable was produced--Question of parentage--Substantial cause by way of additional evidence--Validity--Although production of additional evidence was not normally encouraged but when some document was directed bearing on lis the Court could not close its eyes--Application for additional evidence was permissible at any stage of proceedings--Documents sought to be produced through additional evidence comprise of revenue record--Since very basis of claim of petitioner was parentage, therefore, documents were relevant in order to establish his parentage--This will certainly not fill up also not set up a new point--Case was remanded. [Pp. 337 & 338] A & B

1985 SCMR 1232, ref.

Mr. Muhammad Abdul Hayee Alvi, Advocate for Petitioners.

Ch. Nisar Ahmad Gujjar, Advocate for Respondents.

Date of hearing: 21.5.2013.

Order

Through this civil revision the petitioners challenge the order dated 27.02.2013 passed by the Additional District Judge, Rawalpindi, whereby the application of the petitioners for additional evidence was dismissed.

1. The brief facts giving rise to the filing of this revision petition are that the petitioners filed a suit for declaration, cancellation, mandatory and permanent injunction stating therein that their forefather, namely, Keema was owner of the land in question and after his death his estate was devolved upon his sons, namely, Bostan, Sultan and Dost Muhammad. Petitioner No. 1 is the son of Dost Muhammad and Petitioner No. 2 is the daughter of Sultan. The said Bostan died issueless and as such his estate devolved upon his widow Mst. Hussan Jan as limited owner, who was earlier married to Alaf Din and out of her said earlier wedlock Karam Ellahi (respondent) was born. After the death of Mst. Hussan Jan the estate of her deceased husband, namely, Bostan was illegally and fraudulently with the connivance of revenue staff transferred and mutated in favour of Karam Ellahi deceased, who was shown as son of Bostan. The written statement was filed and out of divergent pleadings of the parties nine issues were framed. The learned trial Court while deciding Issues No. 7 and 8 observed that neither the birth certificate of Karam Ellahi nor pedigreetable of Alaf Din was produced, therefore, the suit was dismissed. The petitioners preferred an appeal and during the pendency thereof they filed an application under Order XLI Rule 27, CPC for producing additional evidence in the form of Mutation No. 401 dated 05.08.1992, Mutation No. 411 dated 06.09.1992 and Register Haqdaran Zamin for the year 1989-1990 pertaining to Khewat No. 115, Khatooni No. 166 to substantiate that Karam Ellahi was son of Alaf Din and Mst. Hussan Jan was the widow of Alaf Din and that the respondents are the sons and daughters of Karam Ellahi, therefore, not entitled to inherit from the property of Bostan. The learned appellate Court while dismissing the application observed that in the absence of birth certificate of Karam Ellahi and the pedigreetable of Alaf Din no case for additional evidence was made out.

2. Learned counsel for the petitioners submits that the said referred documents are relevant and also important for the just decision of the case as the question of parentage of Karam Ellahi will be finally decided.

3. Conversely, learned counsel for the respondents submits that the petitioners have failed to produce any evidence in the form of death certificate to prove his claim. Places reliance on Mst. Bibi Baghdiya Vs. Abdullah Khan and others (2012 CLC 165) and Fateh Muhammad through Legal Heirs and others (2012 CLC 1172).

4. I have heard the learned counsel for the parties and perused the available record.

5. Under Order XLI Rule 27, C.P.C. the appellate Court may require any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause by way of additional evidence. Although the production of additional evidence is not normally encouraged but when some document has direct bearing on the lis in question the Court cannot close its eyes. An application for additional evidence is permissible at any stage of the proceedings. The documents sought to be produced through additional evidence comprise of revenue record whereby the parentage of Karam Ellahi appears to Alaf Din and not Bostan. Since the very basis of the claim of the petitioners is the parentage of said Karam Ellahi, therefore, these documents are relevant in order to establish his parentage. This will certainly not fill up the lacuna in the plaintiff/petitioner's evidence and will also not set up a new point. Moreover, this Court feels that such documents need to be appreciated. I place my reliance Bashir Ahmad Vs. Ahmad-ul-Haq Sddiqui (1985 SCMR 1232).

6. In this view of the matter, I allow the instant civil revision and remand the case to the appellate Court and the application of the petitioners will be deemed to have been pending.

(R.A.) Case remanded

PLJ 2013 Lahore 338 [Rawalpindi Bench Rawalpindi]

Present: Ali Baqar Najafi, J.

HAFEEZ FATIMA--Petitioner

versus

PHUL PEER SHAH--Respondent

C.R. No. 100 of 2005, decided on 16.5.2013.

Valid Gift--

----Ingredients of gift--No description of any property was mentioned--Question of--Whether petitioner was explained nature and contents regarding transaction--Petitioner explained in cross examination that she being an illiterate pardanashin and simple villager lady got thumb impression affixed on false pretext and that she was not explained as to real purpose behind--Transaction with pardanashin lady had four pre-requisite, proper advice before execution of documents, explaining contents of documents, conscious mental act and lastly entire transaction was to be free from any shadow of doubt or suspicion--Such requirement of law had not been fulfilled in instant case--Neither declaration nor acceptance, transfer of possession for consideration on exercise of free will was visible from record--Departing possession of property required solid evidence and mutation was not enough--Revision was allowed. [Pp. 342 & 343] A & F

Muhammadan Law--

----Gift--Quality of evidence--Under law if gift was denied by lady the onus to prove same shifts upon those who claim such gift which fact was required to be proved by maintaining quality of evidence, including requirement that the lady should have been explained nature of such transaction in detail. [P. 342] B

1998 SCMR 1354, rel.

Pardanshin Lady--

----Donor was a pardanshin lady--Onus lies upon donee--Gift was made without exerting influence--Transaction with pardanshin lady had four pre-requisite, proper advice before execution of document, explaining contents of documents, conscious mental act and lastly entire transaction was to be free from any shadow of doubt. [P. 342] C

Mutation--

----Deed of title--Oral sale--When challenged burden squarely lies on beneficiary of mutation to prove not only mutation but also original transaction which was required to fall back upon. [P. 342] D

Hiba-bil-Iwaz--

----Pre-requisite--Payment of consideration and bona fide intention of donor to divest property to donee. [P. 343] E

Ch. Imran Hassan Ali, Advocate for Petitioner.

Ch. Muhammad Azam Minnas, Advocate for Respondent.

Date of hearing: 16.5.2013.

Order

Through this Revision Petition the petitioner challenges both the concurrent judgments and decrees dated 26.10.2004 passed by the learned Addl. District Judge, Chakwal and 01.07.2004 passed by the learned Civil Judge 1st Class Choa Saidan Shah District Chakwal, whereby the suit of the petitioner was dismissed.

1. Brief facts giving rise to the filing of this revision petition are that the petitioner filed a suit for declaration of ownership and possession to the extent that gift Mutation No. 4021 dated 18.12.1993 (Exh.D.Q7) was not at-all made by her and as such the same was forged, fictitious and ineffective upon her rights with consequential relief of protection of possession. The property subject matter of land measuring 56 Kanals 16 Marlas fully described in the head note of the plaint was owned and possessed by the petitioner through her tenant and she being an illiterate, simple "Pardanashin" villager lady, was earlier married with Tahzeeb ul Hassan in the year 1967 but was deserted and ever since she was residing with her aged mother. The father of the petitioner had already died, who was a police employee, where after there was no male member in her family.

2. Since the pension of her father was not disbursed to her as well as her mother, therefore, the respondent, who is also her collateral, on the pretext to help them obtained her thumb impressions on a stamp paper in her house. About three months before filing the suit she came to know that the impugned mutation (Exh.D.7) was prepared in his own name. It was further averred that she has not received an amount of Rs.2,60,000/- in presence of the witnesses by making "Hiba-bil-Iwaz" and in alternate prayer if any gift is assumed the same has been revoked at her option. Written statement was filed and out of the divergent pleadings of the parties following issues were framed:--

(1) Whether the plaintiff is owner in possession of the suit land?OPP.

(2) Whether the gift mutation pertaining to the suit land bearing No. 4021 attested on 18.02.1993 is an outcome of connivance between the defendant and revenue staff and is illegal, void and ineffective against the rights of the plaintiff?OPP

(3) Whether the suit is not properly valued for the purposes of Court fee, if so, what is the correct valuation for the purpose? O P Party.

(4) Whether the plaintiff is entitled to the decree as prayed for? OPP

(5) Relief.

1. In support of her claim, the petitioner examined herself as PW-1 and produced copy of Jamanbandi for the years 1992-1993 Exh.P.1 and Exh.P.2, whereas the respondent examined Haji Muhammad Bashir DW-1, Muhammad Lehrasab Patwari, DW-2, Mehboob Alam Tehsildar DW-3, Muhammad Liaqat DW-4, Hadi Hussain Shah, DW-5, Muhammad Aslam, Patwari DW-6, Muhammad Ashraf Patwari DW-7, Qazi Mehboob Alam, DW-8, Haji Muhammad Akhtar, DW-9 and the respondent-defendant himself appeared as DW-10. He also produced documents Exh.D.1 to Exh.D.10 in support of his claim. The learned trial Court while returning joint findings on Issues No. 1, 2 & 4 treating them interconnected, placed onus to prove upon the petitioner that the gift was not made, where after the learned Civil Judge vide judgment dated 01.07.2004 dismissed the suit filed by the petitioner and appeal preferred by the petitioner also met the same fate vide judgment dated 26.10.2004 passed by the learned Addl. District Judge, Chakwal, hence this revision petition.

2. Learned counsel for the petitioner submits that the Courts below have drawn erroneous presumption on facts contrary to the evidence on record by giving reference to inadmissible piece of evidence; that the impugned judgments are result of non-reading, misreading of the material on file; that onus to prove the existence of a valid gift was to be placed upon the respondent and not on the petitioner; that the said onus was not discharge by the respondent as he has failed to prove the ingredients of gift namely, declaration, acceptance of gift, transfer of possession and consideration; that the plea of "Hiba-bil-Iwaz" was just made in order to avoid pre-emption, which fact was even noted by the appellate Court; that as the petitioner is a Pardanashin, illiterate and simple villager lady, the execution of document was not with her free will by understanding its contents; that the required independent evidence was lacking; that there are grave discrepancies in the statements of Muhammad Liaqat DW-4 and Hadi Hussain Shah, DW-5 the alleged witnesses of transaction, who denied the presence of the petitioner at the relevant time; that the original mutation was admittedly not on record as observed in Para-23 of the judgment of appellate Court, which fact cannot be ignored especially without explaining any reason; that the transaction is not even "Hiba-bil-Iwaz" which lacks its pre-requisite. Lastly, submits that the findings of two Courts below are not sacrosanct, which can be interfered with on the basis of illegality and material irregularity resulting into grave miscarriage of justice. Place reliance on Malik Muhammad Khaqan vs. Trustees of The Port of Karachi (KPT) and another (2008 SCMR 428), Abdul Sattar vs. Mst. Anar Bibi and others (PLD 2007 SC 609), Allah Ditta and 5 others vs. Mst. Rasoolan Bibi through Legal Heirs and 6 others (PLD 2006 Lahore 693), Syed Sharif-ul-Hassan through L.Rs. vs. Hafiz Muhammad Amin and others (2012 SCMR 1258), Mst. Rasheeda Bibi and others vs. Mukhtar Ahmad and others (2008 SCMR 1384), Fateh Khan etc. vs. Surriya Begum (2006 SCMR 930), Muhammad Nazir vs. Khurshid Begum (2005 SCMR 941), Noor Muhammad and others vs. Mst. Azmat-e-Bibi (2012 SCMR 1373), Mst. Bhagni vs. Manzur Hussain Shah [PLD 1957 (W.P.) Lahore-574] and D.F. Mulla's Principles of Mahomedan Law at page-168 and prays for setting aside of two judgments passed by the Courts below.

3. Conversely, learned counsel for the respondent submits that revision petition is filed against the concurrent findings of fact, which cannot be up-set in exercise of Section 115, CPC by this Court as there is neither any illegality nor irregularity which has been pointed out; that in Para-3 of the plaint the petitioner herself has admitted to have thumb marked but narrated different unbelievable story that the documentations were required for the payment of pension of her late father for which such affixation of her thumb impression was required; that in Para-22, 27, 28 & 29 of the judgment of appellate Court the possession of the respondent as a tenant has been admitted by the petitioner; that the respondent has produced cogent evidence to prove his case believed as such by the Courts below and prays for dismissal of the revision petition.

4. I have heard the learned counsel for the parties and perused the available record.

5. A perusal of Exh.D.1 reveals that no description of any property has been mentioned for which amount of Rs.2,60,000/- was paid to the petitioner on 02.02.1993. Both marginal witnesses/DW-4 Muhammad Liaqat, and Hadi Hassan Shah, DW-5 had admitted that the transaction had not taken place in their presence and that the said receipt was already written. They do not say anything as to whether the petitioner was explained the nature and contents regarding the transaction in question. The respondent appeared as DW-10, who himself has stated to have paid the amount of Rs.2,60,000/- to the petitioner in presence of Hadi Hussain Shah DW-5, Muhammad Liaqat/DW-4 and Syed Asghar Shah but they have not corroborated his statement. He has also admitted that the petitioner appeared in the Court by observing veil. He has also stated that the petitioner herself came to his house in November, 1992 in order to sell the suit land as there is no male member in the family of the petitioner. However, none of the witnesses have explained anywhere that at the time when the petitioner affixed her thumb impression upon the receipt, she was explained about the contents of Exh.D.1 with regard to its nature and consequence which was necessary and mandatory requirement of law. DW.2 did not remain posted as Patwari at the relevant time, therefore his statement is not relevant. DW-3 is admitted not to have possessed record of pert sarkar which he was required to possess. DW-7 admitted that the said mutation in question was presented by the respondent himself. He has also admitted that he did not know whether the petitioner was present at the given time. DW-8, the Tehsildar, also admitted not to have possessed the pert sarkar and DW-9 has admitted that his signature is not affixed on pert sarkar.

6. On the other hand, the petitioner appeared as PW-1 who has explained in her cross-examination that she being an illiterate pardanashin and simple villager lady got her thumb impression affixed on the false pretext by the respondent and that she was not explained as to the real purpose behind. She also stated that she never ever appeared before the Revenue Officer for sanctioning of mutation in question.

7. Under the law if the gift is denied by the lady the onus to prove the same shifts upon those who claim such gift, which fact is required to be proved by maintaining the quality of evidence, including the requirement that the said lady should have been explained the nature of such transaction in detail. Reliance can be placed on Muhammad vs. Mst. Rehmon through Mst. Sharifan Bibi (1998 SCMR 1354). In all the transactions in which the donor is a pardanashin lady though not observing parda heavy onus lies upon the donee to show that the gift was made without exerting influence. The transaction with pardanashin lady has four pre-requisite namely, the proper advice before execution of the document, explaining the contents of documents, conscious mental act and lastly the entire transaction was to be free from any shadow of doubt or suspicion. Such requirement of law have not been fulfilled in the instant case. The petitioner was not even identified by a person who could advise or protect her interest. Reliance can be placed on Mst. Rasheeda Bibi and others vs. Mukhtar Ahmad and others (2008 SCMR 1384) and Syed Sharif-ul-Hassan through L.Rs. vs. Hafiz Muhammad Amin and others (2012 SCMR 1258).

8. Reverting to the question of mutation suffice it to say that it is not a deed of title and is merely indicative of some previous oral sale between the parties. When challenged, the burden squarely lies on the beneficiary of the mutation to prove not only the mutation but also the original transaction which he is required to fall back upon. In the instant case the original pert sarkar was not produced, the revenue officials have not identified the petitioner. The mutation was not sanctioned in open assembly by the revenue officer. Reliance, therefore can be placed on Fida Hussain through Legal Heirs Muhammad Taqi Khan and others vs. Murad Sakina (2004 SCMR 1043).

9. A "Hiba-bil-Iwaz" is sale in reality, having two pre-requisite namely, payment of consideration and, bona fide intention of the donor to divest the property to donee. I am afraid, they are missing from the record.

10. As far as the proof of requirement of gift is concerned, suffice it to say that neither the declaration nor acceptance, transfer of possession for consideration on the exercise of free will is visible from the record. Departing the possession of property requires solid evidence and mutation simplicitor is not enough.

11. As to the concurrent judgments which can always be interfered with if the same are contrary to law for the reason that they are not sacrosanct. Erroneous conclusion if based on misreading and non-reading of documentary as well as oral evidence and wrong application of law is always a ground to interfere with. Reliance can be placed on Fida Hussain through Legal Heirs Muhammad Taqi Khan and others vs. Murad Sakina (2004 SCMR 1043).

12. For what has been discussed above, this civil revision is allowed, the impugned concurrent judgments passed by the Courts below are set aside, and consequently the suit of the petitioner-plaintiff is hereby decreed.

(R.A.) Revision allowed

PLJ 2013 Lahore 344 (DB) [Rawalpindi Bench Rawalpindi]

Present: Ijaz Ahmad and Ali Baqar Najafi, JJ.

MUHAMMAD ASIF--Appellant

versus

MUHAMMAD IDREES--Respondent

R.F.A. No. 132 of 2010, heard on 14.5.2013.

Negotiable Instruments Act, 1881 (XXVI of 1981)--

----S. 118--Suit for recovery--No date, time and place for issuing of cheque was mentioned in complaint--Presumption as to negotiable instruments--Validity--A presumption was drawn in respect of consideration, date, time of acceptance, time of transfer, endorsement and holder in due course. [P. 347] A

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

----Art. 76(1)--Certificate copy of cheque was presented instead of original cheque--Validity--Under Art. 76(1) of Order, secondary evidence might be given if acceptances or contents of document when original documents had form part of judicial record, which was not available and only certificate copy thereof was available which was admissible as a secondary evidence. [P. 348] B

Oath Act, 1973 (X of 1973)--

----S. 9--Adverse presumption--Failed to take oath on solemn affirmation--Court might ask a party or witness whether he would make oath as proposed by opposite party and if he accepted such an offer, oath would be administered and after such an oath, evidence so given would be conclusive proof of matter in issue--If party or witness refused to take oath or solemn affirmation, he would not be compelled to make such an oath. [P. 348] C

Kh. M. Asghar Farooq, Advocate for Appellant.

Qazi Ibrar Hussain, Advocate for Respondent.

Date of hearing: 14.5.2013.

Judgment

Ali Baqar Najafi, J.--This appeal has arisen out of judgment and decree dated 30.4.2010, whereby a suit for the recovery of Rs.6,60,000/- filed by the respondent under Order XXXVII, CPC was dismissed.

1. Brief facts giving rise to the filing of the present appeal are that the respondent filed a suit under Order XXXVII, CPC for recovery of Rs.6,60,000/- on the basis of Cheque No. 16919855 regarding A/c No. 2642-31 stating that he had paid the said amount as a loan in January, 2004 to the appellant in presence of witnesses, which he promised to repay in June, 2005. Upon expiry of the said period, the respondent contacted the appellant who issued the above said cheque with his signatures in presence of witnesses. The cheque (Exh. PA) so issued when presented was dishonoured by the bank and the dishonour slip (Exh. PA/1) was issued. Meanwhile, the appellant was arrested in some other criminal case. The respondent, therefore, had to file a petition under Sections 22-A/22-B, Cr.P.C. before the Ex Officio Justice of the Peace, Chakwal where he appeared on 18.7.2006 in police custody and admitted to have issued the said cheque, whereafter the concerned SHO was directed to register the said criminal case. Consequently, FIR No. 247 dated 8.8.2006 under Section 489-F, PPC was registered at Police Station City, Chakwal. The appellant was tried and on 23.2.2007 was convicted, whereafter he filed an appeal and the respondent also preferred a revision petition.

2. In the said suit, the appellant filed an application for leave to defend, which was accepted on 3.10.2009, whereafter he filed written statement and out of pleadings of the parties, the following issues were framed:

ISSUES

1. Whether the defendant borrowed an amount of Rs. 6,60,000/- from the plaintiff in January 2004 and issued Cheque No. 16919855 worth Rs. 6,60,000/- regarding Account No. 2642-31 in presence of the witnesses in the month of June 2006, which was dishonoured by the concerned bank? OPP

2. Whether the plaintiff is entitled to the decree for recovery of Rs. 6,60,000/- as prayed for? OPP

3. Whether the plaintiff has got no cause of action and locus standi to file this suit? OPD

4. Whether the plaintiff is estopped by his words and conduct to bring this suit? OPD

5. Whether the suit is time-barred? OPD

6. Whether the plaint is liable to be rejected under Order VII, Rule 11, CPC? OPD

7. Whether the suit is false, frivolous and vexatious and the defendant is entitled to get special costs under Section 35-A, CPC? OPD.

8. Relief

9. The appellant appeared as PW1 and produced copy of Cheque (Exh. PA), copy of dishonour slip (Exh.PA/1), copy of another cheque (Exh. P/2) and copy of dishonour slip (Exh. P2/1), copy of suit titled Asif Mehmood versus Muhammad Idrees (Exh.P-3), copy of order dated 9.10.2006 (Exh. P/4), copy of application filed under Sections 22-A/22-B, Cr.P.C. (Exh. P/5) and copy of order-sheet (Exh. P/6) in support of his case. On the other hand, the respondent appeared as DW1 and tendered in evidence the documents Exh. D1 to Exh. D20 in support of his defence. The trial Court decided Issues No. 1 and 2 jointly in favour of the respondent and decreed the suit on 30.4.2010 to the full claim of Rs. 6,60,000/-.

10. The learned counsel for the appellant submits that the respondent failed to produce the witnesses, in whose presence the cheque in question was issued; no date, time and place for issuing of the cheque was mentioned in the complaint; the respondent had no enough sources to pay the said amount to the appellant; the respondent filed various suits, which were dismissed and this fact is evident from the documents Exh. D-1 to Exh. D-20; during the proceedings, the appellant offered the respondent in the Court to solemnly affirm his oath on the Holy Qur'an in support of his claim, which he refused, therefore, adverse presumption be drawn against his claim; the original cheque was not presented and only its certified copy was presented; under the law, the burden of proof to deliver and execute the cheque was upon the respondent, which he failed to discharge; even otherwise, the account of the appellant was already closed; the respondent has taken the advantage of his relationship with the appellant and manoeuvred and had stolen away the cheque and presented the same after its fabrication by practising fraud and forgery; that the appellant neither issued any cheque nor is liable to pay any amount; Reliance is placed upon the cases of United Bank Limited v. Ch. Ghulam Hussain [1998 CLC 816] and Syed Ali Hussain Naqvi v. Ali Sher Naqvi [2005 CLC 1751] and prays for setting aside of the decree.

11. Conversely, the learned counsel for the respondent submits that issuance of the cheque is admitted by the appellant as he appeared before the Court of Additional Sessions Judge/Ex-officio Justice of the Peace on 18.7.2006 and admitted to have executed the cheque; that the said cheque was dishonoured and Exh. PA/1 is the copy of dishonour slip; the proceedings under Order XXXVII, CPC are summary in nature, as already it stands established that the appellant issued a cheque of Rs. 6,60,000/, which was dishonoured; a criminal case was also stood registered against the appellant at the behest of the respondent, in which he has been convicted; earlier suit filed by the appellant was dismissed under Order VII, Rule 11, CPC; that no application of money laundering was ever filed by the appellant against the respondent. Therefore, prays for dismissal of the appeal.

12. We have heard the learned counsel for the parties and perused the available record.

13. Under Section 118 of Negotiable Instruments Act, 1881, a presumption is drawn in respect of consideration, date, time of acceptance, time of transfer, endorsement, and holder in due course. The said provision is reproduced hereunder for ready reference:

"118. Presumptions as to negotiable instruments of consideration:

Until the contrary is proved, the following presumptions shall be made:

(a) of consideration: that every negotiable instrument was mare or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, endorsed 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 endorsement: that the endorsement 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 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 burden of proving that the holder is a holder in due course lies upon him".

The respondent has, therefore, discharged his liability, accordingly. Even otherwise, the respondent has also made a statement as PW1 to the extent that he was running a shop with a name earlier but at the time of his evidence he was not running any shop, meaning thereby that earlier he had the capacity to pay the amount to the appellant. The next argument is that the original cheque was not presented and that only its certified copy was presented. A perusal of the record in this behalf reveals that Exh. PA/1 mentions the stamp of the Additional District Judge, Chakwal who verified after its comparison with the original forming part of record of the file. Under Article 76(1) of Qanun-e-Shahadat Order, secondary evidence may be given of the acceptances or contents of a document when the original document has form part of a judicial record, which is not available and only a certified copy thereof is available, which is admissible as a secondary evidence. The said provision of Qanun-e-Shahadat Order is also reproduced hereunder for ready reference:

"76. Cases in which secondary evidence relating to document may be given.--Secondary evidence may be given of the existence, condition or contents of a document in the following cases:--

"(i) When an original document forming part of a judicial record is not available and only a certified copy thereof is available, certified copy of that certified copy shall also be admissible as a secondary evidence------------".

Therefore, we conclude that absence of the original is not fatal to the claim of the respondent.

1. The next argument of learned counsel for the appellant is that an adverse presumption be drawn against the respondent when he had failed to take the oath on solemn affirmation. Under Section 9 of Oaths Act, 1973, the Court may ask a party or a witness whether he would make oath as proposed by opposite party and if he accepts such an offer, the oath shall be administered and after such an oath, the evidence so given shall be conclusive proof of the matter in issue. However, if the party or the witness refuses to take the oath or solemn affirmation, he shall not be compelled to make such an oath. The Court shall record this fact as a part of the proceedings together with reasons, which may be assigned for such refusal. Since the oath offered by the appellant was not accepted by the respondent and he rested his claim before the Court on the basis of evidence by showing enough confidence, therefore, the case was to be decided on its own merits and, thus, we conclude that the appellant has failed to discharge his burden as required under the law.

The trial Court has rightly passed the judgment and decree impugned before this Court in the present appeal. Moreover, the judgments cited at bar are not applicable to the facts of the case. The learned counsel for the appellant has not been able to point out any illegality and misapplication of law upon the facts on the basis of re-appraisal of evidence. Therefore, we dismiss this appeal, with no order as to casts.

(R.A.) Appeal dismissed

PLJ 2013 Lahore 349 [Rawalpindi Bench Rawalpindi]

Present: Ali Baqar Najafi, J.

JAVED IQBAL, Ex. No. 1079940, SOWAR--Petitioner

versus

S.H.O., etc.--Respondents

W.P. No. 2222 of 2012, decided on 14.5.2013.

Constitution of Pakistan, 1973--

----Art. 199(3)--Pakistan Penal Code, (XLV of 1860), S. 311--Constitutional Petition--Sentence commuted by competent authority was in excess of powers--Entitlement of remissions--Whenever compromise was accepted, convict was required to be acquitted--Legal heirs had not forgiven and principle fisad-fil-arz was attracted--After commutation of sentence, accused entitled to all remissions including presidential remission--Contention of--Jail authorities were required to acquit petition in view of compromise affected between legal heirs of deceased--Petitioner was not tenable as sentence was commuted from death to 14 years in view of principle of Fisad-fil-Arz. [P. 352] A

Constitution of Pakistan, 1973--

----Art. 45--Entitlement of remissions--Contention of--All legal heirs had not forgiven--Principle Fisad-fil-Arz was attracted--Remissions which was made permissible under Art. 45 of Constitution might be extended to petitioner was accordance with law--Petition was accepted. [P. 352] B

Mr. Muhammad Wasif Khan, Advocate for Petitioner.

Mr. Sardar Maqbool, Standing Counsel for Federation of Pakistan.

Lt. Col. Tahir, JAG Department, GHQ.

Date of hearing: 14.5.2013.

Order

Through this constitutional petition, a direction is sought in the form of a declaration against the respondents that the sentence commuted by the competent authority under the Pakistan Army Act was in excess of powers, without any backing of law and may be declared illegal and of no legal effect, with a further direction to count the sentence of the petitioner from the date of military custody, i.e. 17th of June, 2005 and to grant the petitioner all remissions entitled under the law from the said date.

1. The brief facts giving rise to filing of the present writ petition are that during the service of the petitioner in Headquarters Squadron 14 Independent Armoured Brigade Group of the Pakistan Army at Bahawalpur Cantonment on the night between 13/14th June, 2005, the petitioner was abused by his fellow soldier, namely, Sowar Sadiq Shah, which infuriated the petitioner. The petitioner picked up a bamboo stick lying close by and struck on the head of said follow soldier, which led to his death. The petitioner was taken into military custody on 17th of June, 2005 and thereafter he was tried by a Field General Court Martial under the Pakistan Army Act. On 18.1.2006, he was awarded death sentence as Ta'zir, which was promulgated on 8.6.2006. The petitioner filed an appeal within the Military hierarchy, which was heard by Court of Appeals constituted under Section 133-B of the Pakistan Army Act who rejected the same on 7.8.2006. Subsequently, the petitioner entered into a compromise on 20th December, 2008 whereby the legal heirs of said fellow soldier forgave him, whereas for minor legal heirs, a sum of Rs. 6,00,000/- was deposited in the bank, in accordance with the injunctions of Islam. The said compromise was duly verified by Magistrate 1st Class, Shab Qadar, District Char Sadda, upon which on 6.3.2009 the competent authority commuted the sentence of death of the petitioner to fourteen years' R.I, as Ta'zir coupled with dismissal from service. In the month of September, 2011, the petitioner learnt that the Jail authorities have not counted the general remissions granted by the Government from time to time, whereafter on 3rd November, 2011 the GHQ Adjutant General's Branch sent a letter to the Jail authorities stating therein that conviction of the petitioner remained intact and that he was not entitled to any benefit u/S. 382-B, Cr.P.C. read with Rule 53 of Pakistan Army Act as the period of confinement has already been taken into consideration while maintaining the sentence. The petitioner also claims acquittal in view of Section 338-F read with Section 338-E, PPC and Section 345 of Cr.P.C. notwithstanding Section 311, PPC.

2. The learned counsel for the petitioner submits that under Verse Nos. 178 and 179 of Sura Al-Baqra, it is ordained in Holy Qur'an that whenever a compromise is accepted, the convict is required to be acquitted; that after the compromise the conviction slides from Section 302, PPC to Section 311, PPC only in cases where all the legal heirs have not forgiven and principle Fisad-Fil-Arz was attracted; that such provisions are not attracted as the occurrence had taken place in Cantonment Area at night, not witnessed by anyone except the petitioner, who having performed Hajj in the year 2005, has a clean past record of service; that after the commutation of sentence, the petitioner has become entitled to all the remissions including Presidential remissions granted from time to time w.e.f. the date of custody; that the sentence has been made to start from 18.1.2006, i.e. the date when the death sentence was signed and not from the date when he was taken into custody, i.e. 17.6.2005 and places reference to decision dated 9.7.2012 passed by this Court in Writ Petition No. 1534/2011 titled Ex. Lt Col. Shahid Bashir v. Federation of Pakistan, etc.; that the respondents authorities have violated the Fundamental Rights of the petitioner as enshrined under Articles 4, 9, 25 read with 2-A and 227 of the Constitution of Islamic Republic of Pakistan, 1973. Places reliance on the cases of Shah Hussain v. The State [PLJ 2011 SC 210], Muhammad Ramzan alias Ramzani v. The State [1996 SCMR 906], Abdul Ghafoor v. The State [2000 P.Cr.L.J. 1841], Muhammad Nazir alias Jeera v. The State [PLD 2001 Lahore 212] and Muhammad Ashraf v. The State [PLD 1996 Lahore 46].

3. Conversely, the learned Standing Counsel for the Federation of Pakistan submits that this Court has no jurisdiction in view of an embargo under Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973 to adjudicate upon the matter in question; that the petitioner was tried under the Pakistan Army Act and the provisions thereof were correctly applied as under Section 143 ibid, he was given the due benefit of the compromise; the petitioner filed appeal after a lapse of six years; that Section 345, PPC is not attracted to the Army Act; that the commutation cannot proceed from the date of detention and in the judgment referred to passed by this Court, a leave to appeal has been granted by the apex Court. Places reliance on the cases of Tariq Mehmood v. The State [2011 SCMR 1880], Mushtaq Ahmad and others v. Secretary, Ministry of Defence through Chief of Air and Army Staff and others [PLD 2007 SC 405] and Muhammad Zaman v. The State [PLD 2006 Peshawar 82] and prays for dismissal of this petition.

4. I have heard the learned counsel for the parties and perused the available record.

5. The ouster clause of Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973, wherein an embargo has been imposed for exercising the jurisdiction under Article 199 of the Constitution, is subject to three exceptions, namely the order was coram non judice, passed without lawful authority and on mala fides. The contention of the learned counsel for the petitioner that the Jail authorities were required to acquit the petitioner in view of the compromise affected between the legal heirs of deceased, namely Sadiq Shah and the petitioner is not tenable as the sentence was commuted from death to 14 years' R.I. in view of the principle of Fisad-Fil-Arz as laid down under Section 311, PPC duly followed by the Hon'ble Supreme Court of Pakistan in the case of Tariq Mehmood v. The State [2011 SCMR 1880]. Secondly, no above said exceptional circumstances shown to have existed to interfere in the findings of commutation from death sentence to 14 years' R.I. Thirdly, the provisions of Section 345, Cr.P.C. are not attracted to Army Act, 1954, which law being related to disciplinary force is a special law dealing with a classified persons. Additionally, the armed forces are custodian of the rights of its employees both of assailants and victims and both living and dead. Any policy decision is aimed at maintaining discipline in the force in a situation, where fights between two armed personnels has resulted in to one's death even by using a Danda that too in an isolated place. The learned counsel for the petitioner has not challenged the provisions of Section 143 of the Army Act being ultra vires of Article 2-A and injunction of Islamic Law, therefore, no observation can be given in that respect. The next contention of the learned counsel for the petitioner is that the petitioner is entitled to the benefit of Section 382-B, Cr.P.C. This Court has already expressed its view in the judgment dated 9.7.2012 passed by this Court in Writ Petition No. 1534/2011 titled Ex. Lt Col Shahid Bashir v. Federation of Pakistan, etc. based on a judgment rendered by the Hon'ble Shariat Appellate Bench in the case of Shah Hussain v. The State [PLJ 2011 SC 210], whereby the benefit of Section 382-B, Cr.P.C. has been extended to the convicts under the Pakistan Army Act. There does not exist any exceptional circumstances to deviate from my already expressed view. As far as the last contention of the learned counsel for the petitioner at bar that the petitioner is entitled to the remissions including those granted under Article 45 of the Constitution by the President of Pakistan is concerned, suffice it to say that those remissions, which have been made permissible under the Jail Manual as well as Code of Criminal Procedure and also under Article 45 of the Constitution of Pakistan, 1973 may be extended to the petitioner in accordance with law.

6. For the foregoing reasons, this petition is partially accepted and consequently, a direction is issued to the respondents to extend the benefit of Section 382-B, Cr.P.C. to the petitioner with a further direction to record the remissions earned by him from time to time, in accordance with law.

(R.A.) Petition accepted

PLJ 2013 Lahore 353 [Multan Bench Multan]

Present: Syed Iftikhar Hussain Shah, J.

MUNAWAR HUSSAIN--Petitioner

versus

CH. FAYYAZ AHMAD--Respondent

C.R. No. 686 of 1996, decided on 12.2.2013.

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

----S. 24--Suit for pre-emption--Probable sale price--Specifically direction to deposit of specified amount as zar-e-soam--Legality of order--Civil Court was not competent to pass any order and to reduce amount of zar-e-soam--Validity--Application for ascertaining probable value of the suit property was made alongwith suit, which was entertained and notice was given to petitioner--When application was pending before trial Court, order for depositing of zar-e-soam was passed in advertently--Court shall require plaintiff to deposit zar-e-soam of sale price of property in cash within thirty day of filing of suit and in case sale price appears to be inflated, Court would require deposit of zar-e-soam of probable value of property--Application u/S. 24 of Act, was pending before trial Court and order for deposit of same was passed in advertently--Civil Judge had in-advertently directed to deposit zar-e-soam of specified amount, in spite of fact that application u/S. 24 of Act was pending and notice was also issued to petitioner on that date--Trial Court relying on documents placed with application was fixed probable price of land and directed to deposit as sale price--If sale price appeared to be inflated, Court shall require deposit of zar-e-soam of probable value of property--Trial Court had not committed any material irregularity or illegality while exercising power conferred u/S. 24(1) proviso (2)--Petition was dismissed. [Pp. 355 & 356] A, B, C, D & E

PLD 2002 SC 491, 1998 CLC 2162, NLR 1992 Civil 345 & PLD 2001 Pesh. 47.

Mian Shamas-ul-Haq Ansari, Advocate for Petitioner.

Respondents are ex-parte.

Date of hearing: 12.2.2013.

Order

This revision calls in-question the legality of the order dated 18.06.1995 & 25.06.1995 passed by learned Senior Civil Judge, Lodhran, whereby order dated 06.06.1995 was reviewed and plaintiff-respondent was directed to deposit Rs.1,00,000/- as Zar-e-Soam instead of Rs.2,66,667/- and order dated 03.04.1996 passed by learned Addl: District Judge, Lodhran, whereby appeal preferred against the said order was dismissed.

1. Ch, Fayyaz Ahmad, plaintiff-respondent instituted a suit for possession through pre-emption in respect of land measuring 23-kanal & 8-marlas situated in the village Chak No. 347/W.B. Tehsil Dunyapur, District Lodhran, which was sold by one Riaz Ahmad to Munawar Hussain-petitioner vide Mutation No. 736 dated 08.02.1995.

2. The suit was instituted on 06.06.1995 and learned trial Court on the said date directed the respondent-plaintiff to deposit of Rs.2,66,667/- as 1/3rd of sale price by 11.06.1995. On 18.06.1995, learned trial Court observed that Zare-Soam was not ascertained and no order had been passed regarding its deposit. Therefore, Paragraph No. 2 of order dated 06.06.1995 regarding the deposit of 1/3rd of sale price by 11.06.1995 was taken off the file. On 25.06.1995, learned trial Court after going through the affidavit and documents annexed with application made under Section 24 of the Pre-emption Act, 1991 fixed ostensible/probable sale price of the suit land as Rs.3,00,000/- and directed the plaintiff-respondent to deposit Rs.1,00,000/- as 1/3rd of the sale price by 05.07.1995. The petitioner-defendant being aggrieved by order dated 25.06.1995 preferred an appeal before learned Addl: District Judge, Lodhran, which was dismissed on 30.04.1996. Hence, the present revision petition.

3. Respondent did not appear in spite of his service through proclamation in the newspaper, therefore, he was proceeded against ex-parte.

4. Learned counsel for the petitioner has contended that learned trial Court has specifically directed the respondent-plaintiff to deposit a sum of Rs. 2,66,667/- as 1/3rd of sale price till 11.06.1995 vide order dated 06.06.1995. There-after, learned trial Court was not competent to pass any order on the application made by the plaintiff-respondent under Section 24 of the Punjab Pre-emption Act, 1991 and to reduce the amount of Zare-Soam. Learned trial Court committed material irregularity while reviewing its own order arbitrarily and learned appellate Court also failed to appreciate this aspect of the case. Further more, respondent-plaintiff has not proved the Talabs in accordance with law, therefore, the suit is liable to be dismissed summarily. Learned counsel for the petitioner has relied upon "Saad-ullah Khan, etc. Vs. Sheikh Ghulam Qasim" (PLD 2001 Peshawar 47), "Muslim Commercial Bank Ltd. Vs. Continental Engineers Ltd. etc." (NLR 1992 Civil 435) & "Muhammad Anwar Khan and others, Vs. Ch. Riaz Ahmad" (PLD 2002 S.C. 491).

5. I have heard the learned counsel for the petitioner and perused the available record.

6. The suit was instituted on 06.06.1995 and on the said date, learned trial Court had directed the respondent-plaintiff to deposit 1/3rd of the sale price of Rs.2,66,667/- by 11.06.1995, and in Paragraph No. 12 observed as under:--

"Therefore, let notices be issued with regard to application for reduction of 1/3rd of sale price, to respondents against the deposit of process fee, registered envelope and the copies of the petition, etc. within two days for reply and arguments for 11.06.1995."

On 18.06.1995, learned trial Court had observed that Zare-soam has not been ascertained, therefore, Paragraph No. 2 of order dated 06.06.1995 is taken off the file. There after on 25.06.1995, learned trial Court after perusal of the affidavit and documents annexed with the petition made under Section 24 of the Punjab Pre-emption Act, 1991 observed that probable sale price of the suit land comes to be Rs.3,00,000/- and directed to deposit of Rs.1,00,000/- as Zare-Soam.

1. Admittedly, an application under Section 24 of the Pre-emption Act, for ascertaining the probable value of the suit property was made along with suit, which was entertained on 06.06.1995 and notice thereof was given to the petitioner-defendant as apparent from Paragraph No. 11 of the said order mentioned above. When the said application was pending before learned trial Court, the order for the deposit of Zare-Soam as Rs.2,66,667/- was passed in-advertently.

2. Under Section 24 of the Punjab Pre-emption Act, 1991 in every suit for pre-emption, the Court shall require the plaintiff to deposit 1/3rd of the sale price of property in cash within 30-days of filing of suit and in case sale price so mentioned appears to be inflated, the Court shall require deposit of 1/3rd of the probable value of the property. The learned trial Court after perusing the documents annexed with the petition under Section 24 supra fixed probable price as Rs.3,00,000/- and directed the plaintiff to deposit Rs, 1,00,000/- as Zare-Soam accordingly. Zare-Soam was directed to be deposited within 30-days and no time beyond 30-days was given in this case.

3. According to the learned counsel for the petitioner, learned trial Court was not competent to alter order dated 06.06.1995. Admittedly, application under Section 24 of Pre-emption Act, 1991 was pending before learned trial Court on 06.06.1995 and order for the deposit of same was passed inadvertently. Therefore, question of review of any order, did not arise at all. In case titled "Saad-ullah Khan, etc. Vs. Sh. Ghulam Qasim," (PLD 2001 Peshawar 47), it was held that learned trial Court was not competent to extend the time for the deposit of remaining decretal amount. In the instant case, Zare-Soam was directed to be deposited within prescribed period of limitation. Therefore, said case law is not directly applicable to the facts and circumstances of present case. Similarly facts of case titled "Muslim Commercial Bank Ltd. Vs. Continental Engineers Ltd. etc". (NLR 1992 Civil 435) were quite different and do not apply to the facts and circumstance of present case. Case titled "Sultan Ahmad and others Vs. Riasat Ali and others" (1988 C.L.C. 2162) also relates to non-deposit of pre-emption amount in terms of decree, whereas in the instant case suit is yet to be decided so the above said case law is also not applicable to the facts and circumstances of present case.

4. The petitioner has assailed the legality of order dated 6.6.1995, 25.6.1995 and 03.04.1996 and there was no issue before both the Courts below that whether respondent had fulfilled the required Talab in accordance with law or not. Therefore, provision of case law titled "Muhammad Anwar Khan and others. Vs. Ch. Riaz Ahmad" (PLD 2002 S.C. 491) is not attracted at this stage.

5. Learned Civil judge has in-advertently directed the plaintiff-respondent to deposit Zare-Soam of Rs.2,66,667/- in spite of the fact that application under Section 24 of the Pre-emption Act was pending before him and notice thereof was also issued to the present petitioner-defendant on the said date. There-after, learned trial Court relying on the documents placed by the plaintiff with the application supra, fixed probable price of land in accordance with Section 24 (1) 2nd proviso and directed to deposit of Rs.1,00,000/- as sale price. The aforesaid proviso to Section 24(1) is mandatory in nature. According to the said proviso, if a sale price mentioned in the sale deed or mutation or the price so mentioned appears to be inflated, the Court shall require deposit of 1/3rd of the probable value of the property. The learned trial Court has not committed any material irregularity or illegality while exercising the powers conferred under Section 24 (1) proviso (2). The impugned order dated 25.06.1995 is in accordance, with law and learned Addl. District Judge vide impugned order dated 03.04.1995 has rightly maintained the same. The learned counsel for the petitioner could not point out any infirmity or illegality in both the impugned orders passed by competent Courts of law, which are hereby maintained.

Resultantly the instant civil revision is without merit and same is hereby dismissed.

(R.A.) Revision dismissed

PLJ 2013 Lahore 357

Present: Shahid Waheed, J.

Major (R) M. JAVED AKHTAR--Appellant

versus

Mst. MUMTAZ AKMAL, etc.--Respondents

FAO No. 178 of 2013, decided on 27.3.2013.

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

----O. XLIII, R. 1--Dismissal of suit for non-prosecution--Applications one for restoration of suit and second for grant of interim injunction till restoration of suit--Dismissal of application for grant of interim injunction on ground that suit was not pending--Validity--Interim injunction can only be granted in a pending case and Court Court not grant an injunction after suit had been dismissed in default. [P. 358] A

AIR 1924 Oudh 345, ref.

Mr. Iqtidar-ul-Hassan Hashmi, Advocate for Appellant.

Date of hearing: 27.3.2013.

Order

Appellant, Major (R) Muhammad Javed Akhtar, through this appeal under Order XLIII, Rule 1, CPC has called in question the order dated 27.2.2013 passed by the learned Civil Judge, 1st Class, whereby his application for grant of interim injunction was dismissed.

1. Briefly the facts of the case are that the appellant instituted a suit for specific performance of agreement to sell dated 26.7.2000 against the respondents. The respondents contested the suit by filing a written statement. The learned Trial Court vide order dated 16.2.2013 dismissed the suit for non-prosecution. On 18.2.2013 the appellant filed an application before the learned trial Court for restoration of the suit. The appellant also filed an application for grant of Interim injunction till the restoration of suit. The learned trial Court vide order dated 27.2.2013 dismissed the application for grant of interim injunction. Hence, this appeal.

2. Learned counsel contends that the application of the appellant for restoration of suit is pending before the trial Court and there is every likelihood of its success and in these circumstances refusal of injunction would adversely affect the rights of the appellant.

3. I have heard the learned counsel for the appellant and perused the record appended with this appeal.

4. Consequent upon dismissal of the suit for non-prosecution by the learned trial Court vide order dated 16.2.2013, the appellant filed two applications, i.e, one, for restoration of the suit; and, second for grant of interim injunction till the restoration of the suit. The learned trial Court dismissed the application for grant of interim injunction on the ground that suit was not pending. The order passed by the learned trial Court is unexceptionable for the reason that interim injunction can only be granted in a pending case and a Court cannot grant an injunction after the suit has been dismissed in default. This view finds support from the judgment rendered in the case of Ram Sarup and others v. King Emperor (AIR 1924 Oudh 345) and relevant extract thereof reads as under:

"One aspect of the matter which does not appear to have been emphasized or considered is the fact that the Subordinate Judge's order was passed after the suit had once been dismissed and before it had been restored to the file. There was, therefore, no suit pending at the time before the Court and it had no jurisdiction to pass any orders. I am of opinion that the injunction granted by the Subordinate Judge was void ab initio and having been made without jurisdiction it can, therefore, be no bar to the release of the property."

1. This appeal being devoid of any merit is dismissed in limine.

(R.A.) Appeal dismissed

PLJ 2013 Lahore 358 [Multan Bench Multan]

Present: Ibad-ur-Rehman Lodhi, J.

MUHAMMAD ISMAEEL--Petitioner

versus

S.H.O., POLICE STATION GULGASHT, DISTRICT MULTAN and another--Respondents

W.P. No. 5380 of 2012, decided on 3.12.2012.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code (V of 1898), S. 561--Prohibition (Enforcement of Hadd) Order, 1979, Arts. 3 & 4--Quashing of FIR--Allegation of recovery of liquor and raw material for preparation of liquor--Only offending material was recovered and not the accused--Failed to connect accused with premises--Validity--No justification to continue with registered F.I.R. against petitioner, which was to be culminated with no positive result for prosecution--It will be a sheer wastage of time of Court to put case on trial--Such like cases must be buried in their inception--FIR was quashed. [P. 359] A

Rana Khalid Mahmood, Advocate for Petitioner.

Mr. Muhammad Aurangzeb Khan, Asstt. A.G. for Respondents.

Date of hearing: 3.12.2012.

Order

The petitioner seeks quashment of F.I.R No. 221, dated 27.03.2012, registered under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, at Police Station, Gulgasht, District Multan.

1. The case has been registered on the allegation of recovery of liquor and raw material for preparation of said liquor under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979.

2. From the contents of F.I.R., the petitioner has nowhere found participating either in any offence under Article 3 or Article 4 ibid. It is an admitted position that when the police raided the premises regarding which a spy information was available with the police, only some offending material was recovered and not the petitioner. The prosecution has failed to connect the petitioner with the premises from-where allegedly the contraband items were recovered.

3. The petitioner has completely refused his any connection with the premises raided and from where the material allegedly recovered. Even if the police prepare a challan under Section 173 of Cr.P.C, there is no remote possibility of conviction of the petitioner in the above given background. There is no justification to continue with the registered F.I.R against petitioner, which is otherwise to be culminated with no positive result for the prosecution. It will be a sheer wastage of time of the Court to put the present case on trial. Such like cases must be buried in their inception.

4. Resultantly, this petition is allowed and F.I.R No. 221, dated 27.03.2012, registered under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, at Police Station, Gulgasht, District Multan, is hereby quashed.

(R.A.) Petition allowed

PLJ 2013 Lahore 360 (DB) [Bahawalpur Bench Bahawalpur]

Present: Amin-ud-Din Khan and Muhammad Ameer Bhatti, JJ (Appellate Tribunal)

MUHAMMAD FAHEEM AKHTAR GILL--Appellant

versus

RETURNING OFFICER and 3 others--Respondents

Election Appeal No. 29 of 2013, decided on 17.4.2013.

Constitution of Pakistan, 1973--

----Art. 63(D, E & K)--Nomination paper--Objection regarding dis-qualification--Objection of validity of candidate, elected as V.C. by Town Nazim--Advisor did not fall within ambit of disqualification--Validity--Candidate could not be deprived of contesting election whereas, if at any stage it is proved on record that post held by candidate fell within ambit of dis-qualification, matter can be re-agitated before appropriate forum as enunciated by S.C.--Denial to candidate to contest election amounts to divert him of his legitimate rights on uncertain ground which was not permissible, rather could only be established by recording evidence in according with law--Appeal was dismissed. [P. 361] A & B

Appellant in person.

Respondent (Muhammad Bilal Butt) in person.

Malik Mumtaz Akhtar, Addl. A.G. with Moosa Khan, Deputy Director Multan Development Authority.

Date of hearing: 15.4.2013.

Order

This appeal has been directed against the order dated 05.04.2013 of the Returning Officer, whereby the nomination papers of the Respondent No. 4 have been accepted. Despite the fact that the appellant had raised the objection regarding the dis-qualification suffered by the candidature of Respondent No. 4, it is not denied by the respondent that before filing the nomination papers, he was performing his duties as elected Vice Chairman of Multan Development Authority and he resigned from his Vice Chairmanship before filing his nomination papers. The objection filed by the appellant was repelled by the Returning Officer on the ground that the Vice Chairman, Multan Development Authority is an elected office, therefore, Respondent No. 4 does not fall in the purview of Government Servant.

1. Appellant submits that Respondent No. 4 suffered dis-qualification under Article 63 Clauses D, E & K being a Government Servant as he filed the nomination papers one day after filing the resignation, therefore, the order impugned passed by the R.O. suffered from legal infirmity. To elaborate his arguments, he submits that Respondent No. 4 received a heavy amount in consideration of his services rendered as a legal advisor, therefore, he was holding a post which falls within the definition of the employees of Multan Development Authority. In this view of the matter, unless two years lapsed to cease to be in service, the Respondent No. 4 could not contest election. He has placed reliance on (NLR 2006 Civil 39), (PLD 1996 S.C. 717), (PLD 1997 Peshawar 137) and (1997 MLD 3079).

2. On the other hand Respondent No. 4 has entered appearance and in response to the objection raised by the appellant regarding the validity of the candidature of Respondent No. 4, submits that Respondent No. 4 had been elected as Vice Chairman by the Town Nazim of the Multan as an advisor which does not fall within the ambit of the dis-qualification as envisaged under Article 63 of the Constitution of Islamic Republic of Pakistan, 1973.

3. We have considered the arguments of the parties and have gone through the record of the case.

4. The record available on the file does not reflect that Respondent No. 4 was appointed against any post which falls within the ambit of the Clauses D, E & K of Article 63 of the Constitution of Islamic Republic of Pakistan, 1973. Further reflects that the appellant was elected as advisor to the Town Nazim by their elected Nazims, therefore, without reaching to this conclusion that under what lawful authority against which particular post the Respondent No. 4 was elected to perform his duties, the Respondent No. 4 could not be considered to have fallen within the ambit of the dis-qualification as envisaged under Article 63 of the Constitution of Islamic Republic of Pakistan, 1973. The induction of the appellant through election conducted by the then Nazims of Towns does not reflect any recognized/confirm post of the department, which otherwise require detailed inquiry but at this stage, Respondent No. 4 could not be deprived of contesting the election whereas, if at any stage it is proved on record that the post held by Respondent No. 4 fell within the ambit of the disqualification, the matter can be re-agitated before the appropriate forum as enunciated by the Hon'ble Supreme Court. Therefore, at this juncture the denial to Respondent No. 4 to contest the election amounts to divest him of his legitimate rights on an uncertain ground which is not permissible under given circumstances, rather could only be established by recording the evidence in accordance with law.

5. For what has been discussed above, this appeal has no merits and is dismissed.

(R.A.) Appeal dismissed

PLJ 2013 Lahore 362 [Multan Bench Multan]

Present: Syed Iftikhar Hussain Shah, J.

NOORANG--Petitioner

versus

UMAR DARAZ, etc.--Respondents

C.R. No. 474-D of 1994, C.M. No. 656-C of 1995 and C.M. No. 1156-C of 2012, decided on 4.12.2012.

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

----Ss. 12(2) & 141--Petition for setting aside judgment and decree passed in civil revision on basis of fraudulent compromise--Dismissal of petition--Restoration of--Absence of petitioner was neither intentional nor due to his negligence--Judgment and decree obtained by practicing fraud and misrepresentation can be challenged and no separate suit lies--Procedure can be made applicable in all proceedings in any Court of civil jurisdiction--Validity--If an application made under S. 12(2), CPC is dismissed due to non-appearance, then obviously procedure prescribed for restoration of the suit under Order, IX, CPC will be applicable for restoration of the application--No knowledge of fixation of petition before High Court and application was made within time which was duly supported by an affidavit--Law favours adjudication of disputes among litigants on merits and technicalities should not be made hurdle in way of justice--Application was allowed. [P. 363] A & B

Syed Muhammad Ali Gilani, Advocate for Applicant.

Ch. Habib Ullah Nehang, Advocate for Respondents.

Date of hearing: 4.12.2012.

Order

C.M. NO. 1156-C OF 2012

The petitioner has made this petition for the restoration of C.M. No. 656-C/1995 moved under Section 12(2), CPC in Civil Revision No. 474/1994, which was dismissed in default due to the non-appearance of the petitioner on 14.5.2012.

1. Learned counsel for the petitioner has contended that the learned counsel representing the petitioner before this Court had passed away and the petitioner had no knowledge about the fixation of the petitioner before this Court; that the absence of the petitioner was neither intentional nor due to his negligence, therefore, the same is liable to be restored.

2. On the other hand, learned counsel for the respondents has contended that there is no provision for the restoration of application made under Section 12(2), CPC and the application for the restoration lies only when a suit is dismissed. Furthermore, different Advocates had been representing the petitioner on different dates and late Mirza Manzoor Ahmad, Advocate was not the only learned counsel representing the petitioner throughout the proceedings, therefore no cogent reason exists to restore the petitioner.

3. Arguments heard. Record perused.

4. The petitioner made a petition under Section 12(2), CPC for setting aside judgment and decree dated 24.5.1995 passed in Civil Revision No. 474-D/1994 on the basis of fraudulent compromise. On 14.5.2012 no body appeared on behalf of the petitioner despite repeated calls, therefore, the petition was dismissed. The petitioner has made application for the restoration of the said petition. Under Section 12(2), CPC, a judgment, a decree or order obtained by practicing fraud and misrepresentation can be challenged and no separate suit lies. The procedure for deciding he said petition is the same which is applied for the adjudication of civil suits and appeals. Even otherwise under Section 141, CPC the procedure prescribed in the Code of Civil Procedure in respect of suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. If an application made under Section 12(2), CPC is dismissed due to non-appearance of the petitioner, then obviously the procedure prescribed for the restoration of the suit under Order IX, CPC will be applicable for the restoration of the application.

5. The petitioner has alleged that his original counsel had passed away and he had no knowledge of the fixation of the petitioner before this Court and the application has been made within time which is duly supported by an affidavit. The law favours the adjudication of disputes among the litigants on merits and the technicalities should not be made hurdle in the way of justice.

Therefore, in the interest of justice, the application in hand is allowed and C.M. No. 656-C of 1995 is restored to its original number Office to fix the same on 19.12.2012.

(R.A.) Application allowed

PLJ 2013 Lahore 364 [Multan Bench Multan]

Present: Shahid Waheed, J.

INAM-UL-HAQ--Petitioner

versus

MUHAMMAD ALI SHAHEEN and another--Respondents

W.P. No. 11336 of 2011, heard on 4.12.2012.

Punjab Rented Premises Act, 2009--

----Ss. 22(2) & 28(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Application for eviction of tenant from rented premises--Written reply was patently beyond period of 10 days--Application for leave to contest ejection petition--If practice of entertaining time barred petition then it would defeat spirit of legislation--Question of maintainability--Interlocutory order--Impugned order was interlocutory and, therefore, same cannot be challenged by way of constitutional petition would amount negate provisions of S. 28(2) of Punjab Rented Premises Act which do not provide for an appeal against interlocutory order--Tribunal had passed the order in exercise of jurisdiction which was not vested in it under mandatory provisions of S. 22(2) of Act, and, therefore, principles of law can be assailed before High Court by invoking Art. 199 of Constitution--Petition was accepted. [Pp. 366 & 367] A & C

Constitution of Pakistan, 1973--

----Arts. 199 & 203--Constitutional Petition--Scope of High Court--Powers--Interlocutory order--Principle of--Principle of non-interference in interlocutory orders of the Courts below by High Court is a matter of rule and refusal is an exception. [P. 366] B

Ch. Muhammad Arshad, Advocate for Petitioner.

Ch. Muhammad Afzal Jat, Advocate for Respondents.

Date of hearing: 4.12.2012.

Judgment

Petitioner, Inam-ul-Haq, through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has called in question the order dated 30.7.2011 passed by the learned Rent Controller whereby petitioner's application under Section 22(6) of the Punjab Rented Premises Act, 2009 was dismissed.

1. Briefly the facts of the case are that the petitioner filed an application for eviction of the Respondent No. 1 from the rented premises on the ground of default in payment of rent and expiry of tenancy period. The learned Rent Tribunal issued notice to Respondent No. 1. The Respondent No. 1 on 07.07.2011 through counsel entered appearance before the learned Rent Tribunal and sought time for submissions of written reply. On 26.7.2011, the Respondent No. 1 submitted written reply to the ejectment petition. Simultaneously, on the same date the petitioner also filed an application under Section 22(6) of the Punjab Rented Premises Act, 2009 for passing final order as Respondent No. 1/ tenant failed to file application for leave to contest within the stipulated time. The learned Tribunal vide order dated 30.7.2011 dismissed the application. Hence, this petition.

2. Learned counsel for the petitioner submits that Respondent No. 1 under Section 22(2) of the Punjab Rented Premises Act, 2009 was bound to file an application for leave to contest within a period of 10 days of his first appearance in the learned Rent Tribunal. In the instant case, the Respondent No. 1 entered appearance on 7.7.2011 and filed written reply on 26.7.2011 i.e. after a lapse of 10 days and, therefore, in these circumstances the Rent Tribunal had no option but to pass final order as it could neither condone delay nor entertain time-barred reply or application for leave to contest the ejectment petition. Conversely, the learned counsel for Respondent No. 1 submits that no notice in the prescribed form was received by the Respondent No. 1/tenant and, therefore, on first appearance it was the duty of the learned Rent Tribunal to inform the tenant to file application for leave to contest within 10 days. He further urges that the learned Rent Tribunal did not pass any speaking order to the above effect and, therefore, the order dated 30.7.2011 passed by the learned Rent Tribunal is valid in all respects. Learned counsel for the Respondent No. 1 also contends that in view of Section 28(2) of the Punjab Rented Premises Act, 2009 the instant petition is not maintainable as the order impugned therein is an interlocutory order passed by the Rent Tribunal.

3. I have heard the learned counsel for the parties and perused the record.

4. The petitioner being a landlord filed an application under the provisions of the Punjab Rented Premises Act, 2009 for the eviction of Respondent No. 1/tenant from the rented premises. According to Section 22(2) of the Punjab Rented Premises Act, 2009 a tenant is required to file an application for leave to contest within a period of 10 days from the date of first appearance in the Rent Tribunal. The perusal of the order-sheet of Rent Tribunal (Annex.B-1) shows that the Respondent No. 1 for the first time appeared before the learned Rent Tribunal on 7.7.2011. Malik Waqas Bashir, Advocate filed power of attorney on behalf of Respondent No. 1 and sought time for filing written reply. The case was accordingly adjourned to 13.7.2011. The Respondent No. 1 did not submit reply on 13.7.2011 and resultantly the case was adjourned to 20.7.2011. Thereafter, the Respondent No. 1 on. 26.7.2011, filed a written reply to the ejectment application. The written reply filed by Respondent No. 1 was patently beyond the period of 10 days as prescribed in Section 22 (2) of the Punjab Rented Premises Act, 2009. This Court in the case of Tayyab Hussain Vs. Rent Controller, Gujrat and others (PLD 2012 Lah. 41) has held that the Rent Tribunal does not enjoy any jurisdiction to condone the time for filing application for leave to contest. Thus, the learned Rent Controller exercised jurisdiction in entertaining written reply (or application for leave to contest ejection petition) which is not vested in it under mandatory provisions of the Statute. For the sake of emphasis, the learned Rent Controller exercised jurisdiction in entertaining written reply (or application for leave to contest ejection petition) which is not vested in it under mandatory provisions of the Statute. For the sake of emphasis, I reiterate the observations recorded in the above cited precedent, that if the practice of entertaining time-barred petition under Section 22(2) of the Punjab Rented Premises Act, 2009 is not curbed, then it would defeat the spirit of legislation.

5. Now, I advert to the objection raised by the learned counsel for the Respondent No. 1 qua the maintainability of the instant petition. Learned counsel for Respondent No. 1 submits that the order impugned in this petition is interlocutory and, therefore, the same cannot be challenged by way of constitutional petition as allowing such an order to be impugned by way of constitutional petition would amount to negate the provisions of Section 28(2) of the Punjab Rented Premises Act, 2009 which do not provide for an appeal against an interlocutory order. It is correct that interlocutory order under Section 28(2) is not amenable to appeal but if the same is arbitrary or capricious or against the well-settled proposition of law, this Court is bound to interfere with the same in order to obviate miscarriage of justice. The principle of non-interference in interlocutory orders of the Courts below by this Court is a matter of rule and refusal is an exception. The analysis of the various precedents on the scope of the High Court's powers under Articles 199 and 203 gives the following principles:--

(a) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of appeal or revision has been excluded are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court;

(b) Certiorari, under Article 199 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate Court is found to have acted (i) without jurisdiction--by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction--by overstepping or crossing the limits of jurisdiction or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice;

(c) Supervisory jurisdiction under Article 203 of the Constitution is exercised for keeping the subordinate Courts within the boundaries of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction; and

(d) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (1) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

I have already held that the learned Rent Tribunal has passed the impugned order in exercise of jurisdiction which was not vested in it under the mandatory provisions of Section 22(2) of the Punjab Rented Premises Act, 2009 and, therefore, the same in view of above stated principles of law can be assailed before this Court by invoking Article 199 of the Constitution of Islamic republic of Pakistan, 1973. Thus, the objection raised by the learned counsel for Respondent No. 1 is without any substance and the same is over-ruled.

1. In view of above, this petition is accepted by setting aside order dated 30.7.2011 passed by the learned Rent Tribunal and the same is declared to have been passed without lawful authority and of no legal effect. The learned Special Judge Rent/Rent Tribunal is directed to proceed with the matter and pass an order under Section 22(6) of the Punjab Rented Promises Act, 2009.

(R.A.) Petition accepted

PLJ 2013 Lahore 368 (DB) [Multan Bench Multan]

Present: Muhammad Qasim Khan and Ibad-ur-Rehman, JJ.

NATIONAL BANK OF PAKISTAN through Attorney--Appellant

versus

KHALID JAVED QURESHI and 12 others--Respondents

ICA No. 180 of 2012 in W.P. No. 12185 of 2011 and C.M. No. 2 of 2012, decided on 3.12.2012.

Law Reforms Ordinance, 1972--

----S. 3--Limitation Act, (IX of 1908), S. 12 & Art. 151--Intra Court Appeal was barred by time--Certificate copy of order or judgment was required--Time consumed in obtaining such copies could not be excluded--By making S. 12 of Limitation Act, applicable even in computing period of limitation about I.C.A.--Although filing of certified copy of order of single judge was not required to be attacked with an I.C.A. but by liberal interpretation it can be said deviation from settled practice of appending certificated, copy of judgment was just a facility for litigant and where under a prima facie, bona fide impression a party considers that a certified copy was required for filing Intra Court Appeal and that solely formed reason in delayed filing of appeal, such delay has to be condoned in suitable cases depending upon the facts of such cases, where valuable rights of the parties were involved and technical knockout was expected to infringe such rights--When no specific prohibition is available in rules about procurement of certificate copies for S.C. use or for any other purpose, it would be highly unjust to import negative impression. [P. 370] B & C

High Court Rules and Order--

----Volume-V--Chapt. 1--R. 4--Intra Court--Appeal had to be filed within twenty days but appeal was preferred with delay of eight days--Memorandum of appeal was not required to be accompanied by a copy of decree, order or judgment appealed from, but it is to be seen that Rule 4 itself further provided that the period of limitation prescribed in the rule shall be computed in accordance with provisions of S. 12 of Limitation Act. [P. 370] A

M/s. Mughees Aslam Malik and Ch. Muhammad Ashraf Khan, Advocates for Appellant.

Malik Muhammad Latif Khokhar, Advocate for Respondents.

Date of hearing: 3.12.2012.

Order

MAIN CASE C.M. NO. 2/2012

The learned counsel representing the respondents raised a preliminary objection that instant Intra Court Appeal is barred by time and contended that in view of Article 151 of the Limitation Act, Intra Court Appeal had to be filed within twenty days of the order or judgment passed by learned Single Judge in chamber and attaching certified copy of order or judgment was not required. The learned counsel argued that here in this case the order was passed by learned Single Judge in chamber on 12.09.2012, the last date of filing the ICA was 02.10.2012, but this appeal was filed on 10.10.2012, therefore, it is barred by eight days. Lastly, the learned counsel while referring to certified copies of documents including that of the impugned order, urged that certified copies had been obtained by the appellant for Supreme Court purpose, therefore, even otherwise, the time consumed in obtaining such copies, could not be excluded. In support of his contentions learned counsel placed reliance on the case "Board Of Governors, Areas Study Centre For Africa And North America, Quaid-e-azam, University, Islamabad and another versus Ms. Farah Zahra (PLD 2005 SC 153), "Muhammad Islam versus Inspector-General Of Police, Islamabad and others" (2011 SCMR 8).

1. On the other hand, learned counsel appearing on behalf of the appellant argued that High Court Rules and Orders Volume-V Chapter-I Rule 4 has specifically provided that Section 12 of the Limitation Act, 1908 would be applicable to compute the period of limitation in filing the ICA, therefore the instant Intra Court Appeal is within time, as the period consumed in obtaining certified copy of the order, impugned herein, has to be excluded from consideration. In support of his contentions learned counsel placed reliance on the case "Aftab Alam Khan versus The Settlement Commissioner and 3 others" (PLD 1972 Quetta 97), "Additional Chief Engineer (Army), Okara Cantt and others versus Messrs Nasim Co. (Pvt) Ltd" (1901 CLC 1475).

2. We have heard the arguments of learned counsel for the parties and perused the record.

3. There is no dispute about the factual position that the order was passed by learned Single Judge in chamber on 12.09.2012, the Intra Court Appeal had to be filed within twenty days but the instant appeal was preferred on 10.10.2012 i.e. with delay of eight days. There is also no cavil to the proposition that under High Court Rules and Orders Volume-V Chapter-1 Rule 4, the memorandum of appeal is not required to be accompanied by a copy of decree, order or judgment appealed from, but it is to be seen that this Rule itself further provides that the period of limitation prescribed in this rule shall be computed in accordance with the provisions of Section 12 of the Limitation Act, 1908." Section 12 of the Limitation Act, 1908 deals with computation of period of limitation, which includes the time consumed in obtaining certified copies of the impugned order/judgment. Therefore, by making Section 12 of the Limitation Act, 1908 applicable even in computing the period of limitation about Intra Court Appeal, it can safely be said that although filing of certified copy of the order/judgment of learned Single Judge in chamber, is not required to be attached with an Intra Court Appeal, but by a liberal interpretation of the above rules it can be said a deviation from settled practice of appending certified copy of impugned order/judgment is just a facility for the litigant and where under a prima facie bona fide impression a party considers that a certified copy was required for filing intra-Court Appeal and that solely formed the reason in delayed filing of Appeal, such delay has to be condoned in suitable cases depending upon the facts and circumstances of such case, especially where valuable rights of the parties are involved and technical knockout is expected to infringe such rights. Therefore, we hold that benefit of Section 12 of the Limitation Act, 1908 is available to the present appellant and when the time consumed in applying for certified copy of the impugned order till its preparation and filing of Intra Court. Appeal is excluded, the instant appeal becomes within time. As regards the objection of learned counsel for respondents i.e. use of certified copies for instant Intra Court Appeal, which infact particularly had been obtained for Supreme Court purpose, a careful perusal of the relevant rules would show that there does not exist any distinction in this respect, nor could any case law be referred by the learned counsel. In this view of the matter, when no specific prohibition is available in the rules about procurement of certified copies for Supreme Court use or for any other purpose, it would be highly unjust to import a negative impression in this respect. Consequently, the preliminary objection of learned counsel for the respondents is therefore, overruled.

4. The main Intra Court Appeal along with CM.No. 2/2012 shall be listed for arguments on merits on 20.12.2012 and meanwhile the operation of the impugned order dated 12.09.2012 shall remain stayed.

(R.A.) Order accordingly

PLJ 2013 Lahore 371

Present: Abdus Sattar Asghar, J.

GHULAM MUSTAFA and another--Petitioners

versus

DISTRICT JUDGE, JHANG and 3 others--Respondents

W.P. No. 6121 of 2013, decided on 14.3.2013.

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

----O. IV, R. 17--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Suit for specific performance of an agreement to sell--Valuable right--Being legal representative cannot be permitted to get rid of admission already made in written statement--Validity--There is no cavil to proposition that provisions of Order VI, Rule 17 of, CPC are to be construed liberally however petitioners cannot be allowed to abuse law of procedure by resiling from admission made by their deceased father in earlier written statement or to put up a new and inconsistent defence--Admission made by a party in pleadings cannot be revoked without permissing of Court--Since on basis of earlier admission a valuable right had been accrued in favor of respondent there proposed amendment based on ulterior motive cannot be allowed--Constitutional petition being not maintainable was dismissed in limine. [P. 373] A & B

Mehr Ahmad Bakhsh Bharwana, Advocate for Petitioners.

Date of hearing: 14.3.2013.

Order

Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 to impugn the order dated 16.1.2013 passed by learned District Judge Jhang whereby their revision petition against the order dated 03.10.2012 passed by learned Civil Judge Jhang was dismissed.

1. Brief facts leading to this constitutional petition are that Rustam Respondent No. 3 filed a suit for specific performance of an agreement to sell dated 13.4.2005 against the petitioners' father namely Gul Muhammad (since died), Shahadat Respondent No. 2 and Zarai Taraqiati Bank Ltd. Respondent No. 4 alleging that he purchased the suit land in consideration of Rs.30,00,000/- out of which advance money Rs.25,00,000/- was paid to Gul Muhammad and remaining Rs. 5,00,000/- has to be paid at the time of registration of sale deed. The suit was resisted by Gul Muhammad by filing written statement denying impugned agreement to sell as well as receipt of earnest money and further contended that in fact he has sold out the suit land with delivery of possession in favour of Shahadat Respondent No. 2 vide agreement to sell dated 11.12.2006 and that Rustam Respondent No. 3 has manipulated the impugned agreement to sell dated 13.4.2005 and receipt through cheating and fraud. During the pendency of suit said Gul Muhammad died consequently petitioners were impleaded as his legal representatives. Petitioners while filing written statement to the amended plaint took a different stance admitting the claim of Rustam Respondent No. 3/plaintiff and consented to decree his suit against them as per terms of the impugned agreement to sell.

2. Feeling aggrieved Shahadat Respondent No. 2 lodged an application before the learned trial Court with the prayer to ignore unauthorized amendments in the written statement lodged by the petitioners on 06.10.2009. The learned trial Court vide order dated 02.2.2012 allowed the said application lodged by Shahadat Respondent No. 2 with the observation that petitioners being legal heirs of Gul Muhammad had no right to change or alter the contentions raised in the original written statement without permission of the Court and unauthorized amended written statement was ordered to be ignored.

3. Consequently petitioners lodged another application before the learned trial Court seeking permission to amend the written statement contending that written statement lodged by their deceased father was collusive with Shahadat Respondent No. 2 and that they intend to make amendment in the written statement in this regard. The application was resisted by Shahadat Respondent No. 2. The learned trail Court dismissed the petitioners' application vide order dated 03.10.2012 with the observation that petitioners being legal representatives of Gul Muhammad deceased cannot be allowed to get rid of the admission made by their father in his earlier written statement. Being dissatisfied petitioners assailed the order dated 03.10.2012 passed by learned Civil Judge before the learned District Judge Jhang through revision petition which was also dismissed through impugned order dated 16.1.2013.

4. It is argued by learned counsel for the petitioners that the impugned order passed by learned revisional Court is against law and facts; that provisions of Order VI, Rule 17 of Code of Civil Procedure 1908 for amendment in the pleadings are to be construed liberally to meet the ends of justice; that the learned revisional Court has passed the impugned order on wrong premises of law and facts and suffering from jurisdictional error is liable to set aside. He added that petitioners have no other remedy except to invoke the constitutional jurisdiction of this Court, therefore, this writ petition is maintainable.

5. Arguments heard. Record perused.

6. The questions involved in this writ petition are as under:--

(i) As to whether a party can be allowed to amend the pleadings to get rid of an admission already made therein;

(ii) As to whether a writ petition against the order of the revisional Court is competent.

1. It is evident on the record that Gul Muhammad father of the petitioners while filing the written statement categorically denied the execution of impugned agreement to sell dated 13.4.2005 and receipt in favour of Rustam Respondent No. 3 and admitted the agreement to sell dated 11.12.2006 in favour of Shahadat Respondent No. 2. It is pertinent to mention that Shahadat Respondent No. 2 has also filed a suit for specific performance which has been consolidated with the suit lodged by Rustam Respondent No. 3. A valuable right has been accrued in favour of Shahdat Respondent No. 2 on the basis of written statement lodged by the petitioners' father. Petitioners being legal representatives cannot be permitted to get rid of the admission already made by their father in his written statement in favour of Respondent No. 2. There is no cavil to the proposition that provisions of Order VI, Rule 17 of Code of Civil Procedure 1908 are to be construed liberally however petitioners cannot be allowed to abuse the law of procedure to favour Rustam Respondent No. 3 by resiling from the admission made by their deceased father in earlier written statement or to put up a new and inconsistent defence. Admission made by a party in the pleadings cannot be revoked without permission of the Court. In the instant case since on the basis of earlier admission a valuable right has been accrued in favour of Shahadat Respondent No. 2 therefore proposed amendment based on ulterior motive cannot be allowed. Reliance is made upon Secretary to Government (West Pakistan), Now N.W.F.P. Department of Agriculture and Forests, Peshawar and 4 others Vs. Kazi Abdul Kafil (PLD 1978 SC 242).

2. For all above learned Courts below have rightly observed that in the absence of bona fides it was not a fit case to allow the proposed amendment. Concurrent findings of the learned Courts below are based on cogent reasons and do not call for any interference. I do not see any jurisdictional error, legal or factual infirmity in the impugned order passed by learned Revisional Court.

3. As regards question of maintainability of this constitutional petition guidance is sought from the dictum laid down by the Hon'ble Apex Court in the case of Muhammad Khan and 6 others Vs. Ghulam Fatima and 12 others (1991 SCMR 970). In the cited case petitioner's application for amendment was disallowed by the learned trial Court and their revision petition against the said order was dismissed by the learned District Judge which was assailed in a constitutional petition before this Court. The writ petition was dismissed by this Court and leave to appeal against the order of this Court was also declined by the Hon'ble Supreme Court of Pakistan. In the light of above dictum this constitutional petition against the impugned revisional order passed by learned District judge is not maintainable.

4. For the above reasons, this constitutional petition having no merit and being not maintainable is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2013 Lahore 374 [Multan Bench Multan]

Present: Rauf Ahmad Sheikh, J.

MUHAMMAD SARWAR--Petitioner

versus

MEMBER (JUDICIAL-II) BOARD OF REVENUE and 4 others--Respondents

W.P. No. 1068 of 2005, heard on 17.12.2012.

Colonization of Govt. Lands (Punjab) Act, 1912 (V of 1912)--

----S. 24--Land Revenue Act, 1967, S. 164--Allotment of land under Horse Breeding Scheme--Notification--Applicability on there preceding scheme--Breach of terms of tenancy--Collector might impose a penalty not exceedings Rs. 10,000 or pass an order for resumption of tenancy but resumption cannot be ordered if breach can be rectified--Validity--Previous conduct did not inspire confidence was not sufficient to pass the order because he could had not been condemned for abortion or mis-carriage because it is not established that he was negligent in looking after more--He cannot be penalized for ill fated acts of nature--No doubt resumption can also ordered if breach was not rectifiable but in instant case breach was rectifiable and in fact stood rectified on delivery of foal--It is basic principle of administration of justice that where any enactment provides two penalties then more harsh would not be imposed--Petitioner was entitled to relief which was given to other allottees placed in similar conditions in the order and could had not been treated discriminately--Petition was accepted. [P. 376] A & B

Mian Muhammad Siddique Kamyana, Advocate for Petitioner.

Mahar Nazar Abbas Chawan, AAG for Respondent.

Date of hearing: 17.12.2012.

Judgment

The petitioner has assailed the vires of order dated 08.02.2005 passed by the Member, Board of Revenue. Punjab, whereby a revision filed by him against order dated 17.09.2004 of the E.D.O.(R), Sahiwal was dismissed.

1. The facts in brief as emerge on perusal of the record are that the petitioner is an allottee of the disputed land under Horse Breeding Scheme. The District Officer (Revenue) vide order dated 30.7.2003 extended the lease w.e.f., 1.7.2001 to 30.6.2006 on the previous terms and conditions but subject to payment of Rs.2000/- as fine. The District Remount Officer, Sahwial challenged the order before the E.D.O.(R), who vide impugned order directed that the rectifications as prescribed in para 33 of Notification No. 4292-83-2537-CL-1 dated 9.8.1983 be got effected and in case of failure on part of the tenant the land be resumed in favour of the State. The petitioner assailed the said order through revision petition under the said order through revision petition under Section 164 of the Land Revenue Act, 1967, which was dismissed through impugned order.

2. The learned counsel for the petitioner has contended that the impugned order by itself shows that the petitioner had supplied the foal and that the previous abortion had taken place without any fault of the petitioner; that the District Officer (Revenue) and E.D.O.(R) were not bound by the recommendation of the District Remount Officer, Sahiwal as he is only a technical advisor; that Notification No. 4292-83/2537-CL-1 dated 9.8.1983 is not applicable on the Horse Breeding Scheme, which is governed under Notification No. 2838-C dated 1.7.1942; that under Section 24 of the Colonization of Government Lands Act in case of any breach of the terms of tenancy, the Collector may impose a penalty not exceeding rupees ten thousands or pass an order for the resumption of the tenancy but the resumption cannot be ordered if the breach can be rectified; that the Board of Revenue vide orders dated 15.11.2005 and 29.9.2010 passed in ROR No. 2218/04 and ROR 1684/06 respectively has categorically held that notification dated 9.8.1983 relates to Animal Breeding Scheme and not to the Horse Breeding Scheme and that Raja Sultan Javed Khan and Iqbal Ahmad against whom the E.D.O.(R) had passed similar orders vide impugned order dated 17.9.2004 had filed the abovementioned revision petitions, which were accepted with the above observations that notification dated 09.8.1983 was applicable on Horse Breeding Scheme so the petitioner has been illegally penalized although the alleged breach in his case stood rectified.

3. The learned AAG has vehemently opposed the petition. It is contended that the Board of Revenue is the highest forum in the revenue hierarchy and was competent to decide the revision petition under Section 164 the Colonization of Government Lands Act, 1912; that E.D.O.(R) was fully competent to pass the order under Section 24 for rectification as per para 33 of the Notification dated 9.8.1983 within three months or resumption of the land by cancelling the tenancy and that the petitioner has been responsible for contumacious breach of the conditions.

4. The order of the learned Member, Board of Revenue, vividly reveals that the mare of the petitioner had subsequently delivered a foal, which was supplied to the concerned authorities. The observation that his previous conduct did not inspire confidence was not sufficient to pass the impugned order because he could have not been condemned for the abortion or mis-carriage because it is not established that he was negligent in looking after the mare. He cannot be penalized for ill fated acts of nature. Moreover the learned Member, Board of Revenue, in orders dated 15.11.2005 and 29.9.2010 passed in ROR 2218/04 and 1684/06 has clearly held that Para No. 33 of Notification dated 9.8.1983 is not applicable on the tenancy under Horse Breeding Scheme so the impugned orders of E.D.O.(R) and the learned Member, Board of Revenue are illegal on this account alone. Moreover under Section 24 of the Colonization of Government Lands Act the penal action in form of imposition of fine up to Rs. 10,000/- in case of breach is clearly provided. No doubt, the resumption can also be ordered if the breach is not rectifiable but in this case the breach was rectifiable and in fact stood rectified on delivery of the foal. It is the basic principle of administration of justice that, where any enactment provides two penalties then the more harsh should not be imposed. Moreover, the petitioner was also entitled to the relief which was given to the other allottees placed in similar conditions in the abovementioned orders and could have not been treated discriminately.

5. For the reasons supra the petition is accepted and both the impugned orders are hereby set aside. Resultantly the petitioner would be entitled to the extension in terms of order dated 30.7.2003 passed by the learned District Officer (Revenue).

(R.A.) Petition accepted

PLJ 2013 Lahore 377 [Multan Bench Multan]

Present: Ibad-ur-Rehman Lodhi, J.

FIDA MUHAMMAD--Petitioner

versus

PROVINCE OF PUNJAB through Collector Muzaffargarh & 4 others--Respondents

C.R. No. 535-D of 1999 and C.M. Nos. 898-C and 108C of 2011, decided on 10.12.2012.

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

----O. XLI, R. 27 & S. 151--Additional evidence--Concept of--If Court from whose decree the appeal was preferred had refused to admit evidence which ought to had been admitted or appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, appellant might be allowed to produce such additional evidence or to cause production of witnesses to be examined and Court allowing such additional evidence was bound to record reasons for such admission of additional evidence--Although all documents intended to be produced in additional evidence relate to period prior to date of decision by First Appellate Court, neither any effort was made by petitioner nor First Appellate Court felt any requirement to ask for production of additional evidence--No mechanism to enable any party in such revision petition to pray for production of additional evidence in revisional jurisdiction. [Pp. 379 & 380] A, B & C

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

----S. 115--Civil revision--Correction of order--Production of additional evidence--Revisional Court can revise and correct the orders passed by sub-ordinate Courts, but cannot correct the errors made by parties to the case. [P. 380] D

Additional evidence--

----Documents intended to be produced in additional evidence, came to knowledge of petitioner but neither any particular point of time had been given as to when petitioner gained such knowledge nor any source of such information was provided--It was a vague assertion and errors, if made by a party to appeal, cannot be corrected by revisional Court. [P. 380] E

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

----S. 115 & O. XLI, R. 27--Civil revision--Production of additional evidence--Scope of--Revisional Court is denuded from taking into consideration import of documents, new intended to be produced in additional evidence for first time at revisional stage--Production of additional evidence was required in order to arrive at just decision for exercising suo motu power and it was no party right to agitate in order to fill-up gaps of its case. [P. 381] F & G

Malik Muhammad Rafiq Rajwana, Advocate for Petitioner.

Mr. Muhammad Aurangzeb Khan, Asstt. A.G. for Respondent.

Date of hearing: 10.12.2012.

Order

C.M. No. 898-C and 108-C of 2011

I propose to dispose of C.M. No. 898-C of 2011 in Civil Revision No. 535-D of 1999 and CM No. 108-C of 2011 in Civil Revision No. 536-D of 1999, as in both these petitions, production of additional evidence is prayed for.

1. First appeal i.e. Civil Appeal No. 7-13 of 1999 was decided by a learned Additional District Judge, Kot Addu, camp at Muzaffargarh, on 09.07.1999. The findings arrived at by the said first appellate Court were challenged in Civil Revision No. 535-D of 1999. Once it was heard and the judgment was reserved, but before the judgment was announced, C.M.No. 898-C of 2011 was filed from petitioner's side under the provisions of Order XLI Rule 27 read with Section 151 of CPC for additional evidence and rehearing of the case.

2. It is the contention of the petitioner in the CM that after completion of arguments in the revision petition in this Court, the issuance and existence of under-mentioned documents, which in his opinion, have material bearing upon the facts of the case, came to his knowledge :--

"1. Application of the contractor of Trimmu Barrage (Indical/Same).

1. The letter of the S.E to the Chief Engineer Irrigation dated 27.01.1998 recommending the rebate.

2. The Notification dated 16.7.1998 (which further clarifies the position)

3. Decision of S.E Heveli Canal Circle Multan dated 14.8.1998 in Arbitration."

and, thus, the acceptance of such documents in additional evidence was prayed.

1. The contention, as has been raised by the petitioner, has seriously been opposed by the learned Law Officer with the assertion that the concept of production of additional evidence as provided under Order XLI Rule 27, CPC is not meant for revisional jurisdiction as it is provided only in Order XLI, which regulates the proceedings of appeals from original decrees.

2. In support of the CM., the learned counsel for the petitioner has reiterated the version taken in the CM and with the help of the cases reported as Haji Muhammad Zaman vs. Zafar Ali Khan and others (PLD 1986 Supreme Court 88), Ghulam Muhammad and another vs. Muhammad Aslam and others (PLD 1993 Supreme Court 336) and Ghulam Muhammad vs. Mian Muhammad and another (2007 SCMR 231), has contended that even in revisional jurisdiction, this Court has ample powers to allow production of additional evidence.

3. I have considered the arguments of the learned counsel for the petitioner, as well as, the learned Law Officer and after going through the record, I am of the view that the contention of the petitioner has no force.

4. In view of the provisions of Order XLI Rule 27, CPC, only if the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellant may be allowed to produce such additional evidence or to cause the production of witnesses to be examined, and the Court allowing such additional evidence is bound to record the reasons for such admission of additional evidence.

5. In the case, in hand, although all the documents intended to be produced in additional evidence relate to the period prior to the date of decision by the learned first appellate Court, which is 09.07.1999, but till such date, when the first appeal was pending before the first appellate Court, neither any effort was made by the petitioner nor the first appellate Court felt any requirement to ask for production of any additional evidence, 9. Even otherwise, the provisions of Order XLI Rule 27, CPC are strictly applicable to the proceedings to be carried out in appeals against original decrees. Section 115, CPC, itself is a complete code, which provide no mechanism to enable any party in such revision petition to pray for the production of additional evidence in revisional jurisdiction.

Keeping in view the contents of Section 115, CPC, it can safely held that the revisional Court can revise and correct the orders, passed by the subordinate Courts, but cannot correct the errors made by the parties to the case. CM, under discussion, is essentially intended to put a cover on the omission of the revision petitioner before the First appellate Court in not moving that Court for production of additional evidence.

1. Although in the CM., it has been noted that after the arguments in the revision petition, the documents intended to be produced in additional evidence, came to the knowledge of the petitioner, but neither any particular point of time has been given as to when the petitioner gained such knowledge nor any source of such information has been provided. It is a vague assertion and the errors, if made, by a party to appeal, cannot be corrected by the revisional Court. The revision petition is not meant to fill up the lacunae left by the parties to the lis.

2. In Ghulam Muhammad's case (PLD 1993 Supreme Court 336), para-9 of the same would be relevant for the present purposes, which is reproduced herein-below:--

"9. Upshot of the discussion on the point briefly stated is 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".

From the perusal of the above findings of the apex Court, it is thus clear that if in exercise of the jurisdiction vested in the first appellate Court under the provisions of Order XLI Rule 27, CPC, the appellate Court acts illegally or with material irregularity and on that account some factual error is committed only then in revisional jurisdiction, additional evidence can be admitted in a fit. and proper case for clarification if that is essential for just decision of the case.

1. As noted earlier, the revision petitioner has never opted before the first appellate Court to invoke its jurisdiction under the enabling provisions for additional evidence, thus, no question of any illegality or irregularity on the part of the first appellate Court in dealing with such prayer arises, therefore, the revisional Court is denuded from taking into consideration the import of the documents, now intended to be produced in additional evidence, for the first time, at revisional stage. I am fortified by holding this by an authoritative judgment of the Hon'ble Supreme Court of Pakistan in the case of Mohabbat v. Asadullah Khan etc. (PLD 1989 SC 112).

2. Similarly, in Ghulam Muhammad's case (2007 SCMR 231), it was held with regard to only public documents, authenticity and genuineness of which could not be doubted to be brought on record even in revisional jurisdiction. The documents intended to be produced in the case, in hand, are not public documents of such character, which can per-se be entertainable in evidence without first introduction of the relevant witnesses to be in the witness-box. I am afraid this practice cannot be permitted in revisional jurisdiction to allow the examination of witnesses and then through such witnesses, the production of documents.

3. With reference to the case of Mst. Fazal Jan vs. Roshan Din and 2 others (PLD 1992 Supreme Court 811), it is the contention of the learned counsel for the petitioner that suo motu exercise of power as provided in Section 115, CPC are justified in circumstances.

Again the argument of the Learned counsel for the petitioner is not convincing one, as for exercise of suo motu power under Section 115 of, CPC, it is always the opinion of the Court to be based on some reasoned order that some extraordinary direction can be issued, whereas, in the present case, it was never felt by the Court itself that in the case, production of additional evidence is required in order to arrive at just decision for exercising the suo motu power and it is no party's right to agitate in order to fill up the gaps of its case.

1. The peroration of the above discussion is that the applications, under consideration, are not maintainable and the same are dismissed.

2. The office is directed to fix Civil Revision No. 535-D of 1999, as well as, Civil Revision No. 536-D of 1999 for arguments on any date according to the convenience of the schedule.

(R.A.) Applications dismissed

PLJ 2013 Lahore 382 (DB) [Multan Bench Multan]

Present: Ijaz Ahmad and Ibad-ur-Rehman Lodhi, JJ.

MUHAMMAD ARSHAD SOHAIL--Appellant

versus

HBL, etc.--Respondents

F.A.O. No. 65 of 2011, decided on 16.1.2013.

Financial Institutions (Recovery of Finance) Ordinance, 2001--

----S. 12--Suit for recovery--Ex-parte decree--Application for setting aside ex-parte decree had consumed considerable time--Application for condonation of delay did not disclose any valid ground--Knowledge of ex-parte decree through his brother--Application was made after 62 days after knowledge--Validity--Such an application would be made within twenty one days of ex-parte decree or knowledge--Application did not disclose any ground for condonation of delay--Banking Court had dismissed the application--Appeal was dismissed. [P. 383] A

Mr. Muhammad Shakeel Ch., Advocate for Appellant.

Ch. Saleem Akhtar Warriach, Advocate for Respondents.

Date of hearing: 16.1.2013.

Order

The respondent Bank instituted a suit for recovery of Rs. 16,68,000/-. An ex-parte decree dated 21.06.2010 was passed. The appellant made an application for setting aside the ex-parte decree on 17.09.2010. It was dismissed by the learned Judge Banking Court No. I, Multan vide order dated 21.03.2011.

1. It is contended by the learned counsel for the appellant that the appellant was living abroad in Sharja and was never served; that as per the Bailiff's report, he was apprised by a lady that the appellant was not at home and the service should have been repeated; that the making of application for setting aside the ex-parte decree had consumed a considerable time as some formalities had to be completed by the Consulate of Pakistan at Sharja for sending the power of attorney.

2. This appeal is opposed by learned counsel for the respondent Bank. It is contended that the service had been effected on the appellant through all the four modes simultaneously and service through any one of the modes shall be deemed an effective service; that the application was made after sixty two days, i.e after forty one days of the expiry of period of limitation and that the application for condonation of delay does not disclose any valid ground.

3. We have heard the learned counsel for the parties and gone through the record.

4. As per application made by the appellant, he had the knowledge of the ex-parte decree through his brother. The application was made after sixty two days after the knowledge. Section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 lays down that such an application should be made within twenty one days of the ex-parte decree or knowledge. The application does not disclose any ground for condonation of delay. The learned Judge Banking Court-I, Multan has rightly dismissed the application. We do not see any merit in this appeal. It is hereby dismissed.

(R.A.) Appeal dismissed

PLJ 2013 Lahore 383

Present: Abdus Sattar Asghar, J.

FAQIR MUHAMMAD--Petitioner

versus

MUHAMMAD SHAKIL--Respondent

C.R. No. 3700 of 2011, decided on 14.5.2013.

Defamation--

----Scope of--It is settled principle of law that defamation is publication of a statement which reflects on a person's reputation and tends to lower him in estimation of right thinking members of society generally or tends to make them shun or avoid him--Defamation ordinarily takes the form of two separate torts i.e. libel and slander. [P. 384] A & B

Libel--

----There is no cavil to proposition that libel is actionable per se and injury to reputation will be presumed--Question of--Whether case is one of libel or slander elements must be proved by claimant. [P. 384] C

Defamation--

----Suit for recovery as damages for defamation, loss of reputation, mental and physical torture--Derogatory statements--Allegations of theft of cattles--Petitioner bears a good reputation and commands honour and respect--He had not stated that alleged imputation had lowered respect or reputation of petitioner in his estimation or in estimation of right thinking members of society in general or made him shun to avoid petitioner--Petitioner had not been able to establish allegation for causing defamatory imputation amounting to libel or slander to claim any damageds. [P. 385] D

Mr. Rashid Gill, Advocate for Petitioner.

Date of hearing: 14.5.2013.

Order

This civil revision under Section 115 of Civil Procedure Code, 1908 is directed against the judgment and decree dated 30.6.2011 passed by learned Civil Judge Nankana Sahib whereby petitioner's suit for recovery of damages amounting to Rs.25,000/- against Muhammad Shakil respondent has been dismissed. It further assails the judgment and decree dated 28.9.2011 passed by learned Additional District Judge Nankana Sahib whereby petitioner's appeal was also dismissed.

1. It is argued by learned counsel for the petitioner that both the learned Courts below misconceived while rendering the impugned judgments and decrees considering it a case of malicious prosecution instead of defamation; that the impugned judgments and decree are against law and facts, based on misreading and non-reading of evidence causing serious miscarriage of justice and liable to set aside.

2. Arguments heard. Record perused.

3. Succinctly facts leading to this civil revision are that petitioner lodged a suit for recovery of Rs.25,000/- as damages for defamation, loss of reputation, mental and physical torture allegedly caused by the respondent by filing an application before District Police Officer Nankana Sahib on 7.3.2009 attributing false implication of theft of his cattles against the petitioner and imputing derogatory statements against the petitioner in the locality, brotherhood and relatives of the petitioner. Respondent was proceeded against ex-parte evidence. Petitioner produced Alamdar Hussain ASI Incharge Complaint Office DPO Nankana Sahib. He brought original record of application No. 154-RC dated 7.3.2009 and produced a copy thereof (Ex.P-1) and report thereupon (Ex.P-2). Petitioner himself appeared in the witness box as PW-2 and reiterated his assertions as set-forth in the plaint. He also produced Mehboob Ali (PW-3) who corroborated the petitioner.

4. It is settled principle of law that defamation is the publication of a statement which reflects on a person's reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him. Defamation ordinarily takes the form of two separate torts i.e. libel and slander. There is no cavil to the proposition that libel is actionable per se and injury to reputation will be presumed. However, whether the case is one of libel or slander the following elements must be proved by the claimant:--

(a) The imputation must be defamatory;

(b) It must identify or refer to the claimant;

(c) It must be published/communicated to at least one person other than the claimant

1. In the instant case documentary evidence produced by the petitioner fails to contain any defamatory imputation. Ex.P-1 & Ex.P-2 do not reveal that respondent had leveled any allegation of theft of cattles against the petitioner therefore the contents of the petition (Ex.P-1) do not fall within the ambit of libel. As regards the other part of the petitioner's plea that respondent has been giving defamatory statement against him in the locality before the other members of the society, suffice to say that Mehboob Ali (PW-3) appearing in the witness box has categorically stated that petitioner bears a good reputation and commands the honour and respect in the area. He has not stated that the alleged imputation of the respondent had lowered the respect or reputation of the petitioner in his estimation or in the estimation of right thinking members of the society in general or made him shun to avoid the petitioner. Petitioner has not been able to establish the allegation against the respondent for causing defamatory imputation amounting to libel or slander to claim any damages.

2. I do not find any misreading or non-reading of evidence, material illegality or irregularity in the impugned judgments and decrees passed by learned Courts below.

3. For the above reason this civil revision having no merit is dismissed in limine.

(R.A.) Revision dismissed

PLJ 2013 Lahore 385 [Multan Bench Multan]

Present: Ibad-ur-Rehman Lodhi, J.

WALI MUHAMMAD and 2 others--Petitioners

versus

JAVED MUKHTIAR and 4 others--Respondents

W.P. No. 2004 of 2013, decided on 26.4.2013.

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

----O. XXIII, R. 3--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Lawful agreement or compromise--Fact of execution of settlement was denied--Comparison of signatures and thumb marks--Validity--When application intimating settlement in between parties was brought before the Court, it was incumbent upon Court to satisfy itself as to execution and existence of compromise--Application for decision of suit on basis of a settlement was moved, was directed to hold a regular inquiry as to execution and existence of compromise in between parties by granting ample opportunities to both sides to produce their respective versions and then to decide same by means of speaking order. [P. 388] A & D

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

----O. XXIII, R. 3 & O.XLVIII, R. 1(m)--Lawful agreement or compromise--Comparison of signatures thumb impression--Question of--Whether compromise in between parties was decided after regular inquiry by taking evidence and rejection of such application was not proper--Validity--Refusal to enter into such inquiry would in fact militate against letter and spirit of provision contained in Order XXIII of Rule 3 of CPC--Under provision of law, recording of compromise was not a mere formality but mandatory one, as such order was made appealable in terms of Order XLIII, Rule 1(m), CPC--Holding of regular inquiry in such circumstances had been held mandatory step to be taken by Court moved in that regard--Petition was accepted. [P. 388] B & C

NLR 1981 UC 642, 1981 CLC 1257, PLD 1994 Kar. 52, 1997 MLD 2180 & 1990 CLC 1614, rel.

Mr. Muhammad Akbar Sajid, Advocate for Petitioners.

Mr. Muhammad Javed Iqbal Thaheem, Advocate for Respondents.

Date of hearing: 26.4.2013.

Order

By means of single order, I intend to dispose of the instant writ petition and the other three writ petitions viz. Writ Petition Nos. 2005, 2006 and 2007 all of 2013, as common question is involved in all the matters.

1. In a suit for pre-emption, the plaintiffs-appellants by filing an agreement in between the parties to the suit prayed for the decision of the same on the settled terms of that agreement. In alternate, it was prayed that the plaintiffs-appellants may be allowed to produce additional evidence. The factum of execution of such settlement was straightaway denied by the respondents-defendants, which resulted into filing another application by the plaintiffs for getting the comparison of signatures and thumb-marks of Hakeem Malik Haqnawaz and by means of another application, the documents viz. agreement purported to have been arrived at in between the parties before a `Jirga' was prayed to be put to the relevant defendants for its admission. In addition to such petitions, another petition under Section 163 of Qanun-e-Shahadat Order, 1984 was also moved seeking decision of the suit on special oath.

2. The learned trial Court on 21.06.2012 dismissed all the petitions, which findings were maintained in revision, which was dismissed by the learned Additional District Judge, Multan, on 07.02.2013; hence, this petition.

3. The learned counsel for the petitioners by making reference to the provisions of Order XXIII, Rule 3 of the Civil Procedure Code, 1908, has contended that where it improved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit. According to the learned counsel for the petitioners, the words "satisfaction of the Court" used in the said provision of law do create a necessity of some inquiry by the Court and such plea cannot be brushed aside summarily. The learned counsel further contends that the agreement placed before the Courts-below for disposal of the suit on the basis of the terms arrived at therein was already acted upon in some other proceedings and the said proceedings were decided by the forums, where these were pending in view of the terms of settlement arrived at in between the parties through the said agreement. The refusal on the part of the respondents-defendants with regard to the existence of such document is, thus, termed as mischievous and contumacious.

4. The learned counsel for the respondents has controverted the arguments raised by the petitioners' learned counsel and is of the view that the suit for pre-emption has to be decided on its own merits ignoring what has been allegedly arrived at in between the parties through the document purported to be introduced on record by way of additional evidence. The request for comparison of the signatures/thumb impression of Hakeem Malik Haqnawaz with his admitted signatures/thumb impression is also controverted by the respondents.

5. After hearing the learned counsel for the parties and going through the record, I am of the view that in view of the language used in Order XXIII, Rule 3 of the Civil Procedure Code, 1908, in any suit; when application intimating the settlement in between the parties is brought before the Court, it is incumbent upon the Court to satisfy itself as to the execution and existence of compromise. In any suit, when a question arises as to whether or not, there had been a compromise in between the parties; the same had to be decided after a regular inquiry by taking evidence and rejection of such application summarily is not proper. Refusal to enter into such inquiry would in fact militate against the letter and spirit of the provision contained in Order XXIII of Rule 3 of the Civil Procedure Code, 1908. Under the said provision of law, recording of compromise was not a mere formality but a mandatory one, as such, order has been made appealable in terms of Order XLIII, Rule 1(m) of the Civil Procedure Code, 1908.

6. The learned counsel for the petitioners in support of his contentions has rightly placed his reliance on Syed Abdul Baqi vs. Syed Nisar Ahmad Shah etc. (NLR 1981 UC 642), Messrs Mohammad Ilyas & sons Ltd vs. Abu Ahmad Khan and 2 others (1981 CLC 1257), Rana Abdul Ghafoor vs. Government of Sindh and others (PLD 1994 Karachi 52), Farid Gul and others vs. Gul Mast (1997 MLD 2180) and Mst. Khurshid Begum vs. Mir Muhammad and 8 others (1990 CLC 1614).

In all such cited cases, holding of a regular inquiry in such circumstances has been held a mandatory step to be taken by the Court moved in this regard.

1. In the instant case, the Courts-below have not exercised their jurisdiction vested in them and have committed illegality in dismissing the applications moved by the petitioners. The order dated 21.06.2012, passed by the learned Civil Judge, as well as, the judgment dated 07.02.2013 are, therefore, declared as illegal and the same are set-aside.

2. The learned first appellate Court before whom application for decision of the suit on the basis of a settlement was moved, is directed to hold a regular inquiry as to the execution and existence of the compromise in between the parties by granting ample opportunities to both the sides in order to produce their respective versions and then to decide the same by means of a speaking order.

3. Writ petition stands accepted.

(R.A.) Petition accepted

PLJ 2013 Lahore 389 [Multan Bench Multan]

Present: Amin-ud-Din Khan, J.

MUHAMMAD ASHRAF QADRI--Petitioner

versus

BANK OF PUNJAB through its Chairman and another--Respondents

W.P. No. 5977 of 2012, decided on 6.5.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Auction of various properties was offered owned by Bank--Sealed tenders/bids were collected alongwith 1% of offered bid amount--Tender submitted by petitioner was found highest but after some days tenders were cancelled--Pay orders were returned to unsuccessful bidders--Entitlement to take property on basis of amount offered--Terms and conditions published in newspaper that all bids can be rejected by Bank without assigning any reason--Validity--When decreeing pendency of writ petition, process of re-auction was taken place whereby an amount of rupees was offered for property for which petitioner had offered 3-10 million only, therefore, High Court has to protect interest of tax payers as well as public exchequer notwithstanding follies or illogical and some times even casual attitude of custodians of public exchequer--Custodian of properties had not discharged their duties with regard to fixation of reserve price as well as assignment report, as according to defence of Bank that evaluation report was prepared with connivance of writ petitioner, therefore, High Court has to see national interest that national interest must take priority over private interest and individual rights. [Pp. 392 & 393] A & B

PLD 1989 SC 166, rel.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Discretionary powers--Sealed tenders were collected for auction of properties owned by Bank--Highest tender was cancelled without any reasons--Price was offered more than five time for same property--High Court was bound to see that person who had come to Court for discretionary relief, whether said relief was equitable--When any violation of contractual obligation was made, petitioner had alternate remedies ordinarily High Court refrains itself to exercise constitutional jurisdiction--It is not a case where any third person has just offered more amount than amount offered by petitioner but in instant case full fledge process of re-auction of suit property was carried out and there is final offer for suit--Petition was dismissed. [Pp. 393] C & D

Malik Waqar Haider Awan, Advocate for Petitioner.

Mr. Muhammad Saleem Iqbal, Advocate for Respondents.

Date of hearing: 6.5.2013.

Judgment

Through this writ petition, the following prayer has been made:-

"In these above mentioned circumstances it is respectfully prayed that this writ petition may kindly be graced with acceptance and issuance of cancellation letter by Respondent No. 2 dated 13.04.2012 (Annex-G) may kindly be declared illegal, without lawful authority, without jurisdiction, arbitrary, based on malafides, unjust, unfair, against natural justice may kindly be set aside/quashed.

It is further respectfully prayed that respondents may kindly be directed to receive the remaining amount and execute Registered Sale Deed in favour of the petitioner."

1. Learned counsel for the petitioner argues that the respondent-Bank previously offered auction of various properties owned by the Bank in October, 2011 through publication in the newspaper and its agent namely Green Wood Estate Consultants invited the interested parties to submit their sealed tenders/bids along with 1% of the offered bid amount in shape of pay order/demand draft in favour of the Bank of Punjab; that the petitioner along with others on 28.10.2011 participated in the bid process and submitted sealed tenders/bids; that the petitioner submitted his sealed tender/bid of rupees thirty lacs (three million) for the property reflected at Sr. No. 1 in the publication, which is situated at Multan road Muzaffargarh measuring 1705 square feet; that on opening of tenders, the tender submitted by the petitioner was found highest but after some days he was informed that the management has cancelled all the tenders; that again the respondent-Bank published in the newspapers Jang' andDawn' on 29.02.2012 invited bids for the sale of its various properties in open auction through Respondent No. 2; that the interested parties were asked to submit pay order/CDR of Rs. 500000/- (five lacs) till 12.03.2012; that again the petitioner fulfilling all the conditions mentioned in the publication submitted pay order of Rs. 500000/- (five lacs) in favour of Bank for the properties mentioned at Sr. No. 5 situated at Multan road Muzaffargarh. Learned counsel for the petitioner further states that the reserve price fixed in the publication for the said property was Rs.2600000/- (2.60 million) and the petitioner as well as others took part in the bidding process on 12.03.2012 and petitioner was declared highest bidder by offering Rs.3100000/- (thirty one lacs), therefore pay order of petitioner was retained and rest of the pay orders were returned to the unsuccessful bidders; that the petitioner was formally informed about the acceptance of bid through Letter No. BOP/GSD/2012/272/03/3510 dated 15.03.2012 and schedule for rest of the payment was also mentioned in this letter of acceptance; that even prior to the formal acceptance letter petitioner has sent through fax the copy of pay order of Rs.9,30,000/-; that when on 26.03.2012 petitioner tried to submit the original pay order of said amount, which was refused on the pretext that one Faiz Ahmad Khan has filed a suit in the civil Court of Muzaffargarh, therefore the petitioner was forced to file this writ petition; that during the pendency of this writ petition the respondent-Bank again advertised for auction of said property, then the petitioner moved CM No. 4927 of 2012, which was heard on 06.07.2012 as the auction was scheduled for 12.07.2012. The order dated 06.07.2012 is as follows:

"This is an application under section 151 CPC for staying the auction scheduled to be held on 12.07.2012.

1. Notice. Meanwhile the auction may take place but it shall be held subject to decision of this writ petition."

Learned counsel further states that the contract was completed and there was no occasion and power with the respondent-Bank to revoke the same, as the proposal became promise when the acceptance, letter dated 15.03.2012 was issued in favour of the petitioner and after that the respondents have no authority to refuse the transfer of property in favour of petitioner. He has relied upon "PLD 2001 Supreme Court 116 (Messrs Ittehad Cargo Service and 2 others vs. Messrs Syed Tasneem Hussain Naqvi and others), 2007 YLR 2887 (Faisal Razzaq vs. Tehsil Municipal Administration, Khairpur Tamewali and 5-others), 1999 MLD 2418 (Messrs Hotel Summer Retreat Nathiagali through Managing Partner vs. Government of N.W.F.P through Secretary, C&W Department Peshawar and 5 others), 2006 SCMR 721 (Messrs M.A. Khan & Co. through Sole Proprietor Muhammad Ali Khan vs. Messrs Pakistan Railway Employees Cooperative Housing Society Ltd. Through Principal officer/Secretary, Karachi), 2009 CLP 1336 (Fateh Muhammad Agha and another vs. City District Government, Karachi through District Coordination Officer and 5 others), PLD 1972 Supreme Court 279 (The Murree Brevery Co. Ltd. Vs. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others), PLD 1992 Karachi 283 (Messrs Pacific Multinational Pvt. Ltd. Vs. Inspector General of Police, Sindh Police Headquarters and 2 others), PLD 1993 Lahore 141 (Islamia University, Bahawalpur through Vice Chancellor vs. Dr. Muhammad Khan Malilk), PLD 1975 Supreme Court 244 (Salahuddin and 2 others vs. Frontier Sugar Mills & Distillery Ltd. Tokht Bhai and 10 others), PLD 2000 Lahore 489 (Muhammad Zubair Akram vs. Aitchison College, Lahore), PLD 2002 Supreme Court 452 (Town Committee, Gakhar Mandi vs. Authority under the Payment of Wages Act, Gujranwala and 57 others), 1998 SCMR 2268 (Messrs Airport Support Services vs. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others), PLJ 1998 Lahore 665 (FB) (M/s. Wak Orient Power & Light Limited Gulberg III, Lahore vs. Govt. of Pakistan Ministry of Water and Power through its Secretary, Islamabad & 2 others) and PLD 1975 Lahore 575 (Umar alias Umar Hayat and another vs. The State)." Learned counsel for the petitioner prayed that this writ petition be accepted and refusal by the respondent-Bank be declared against the law and he be declared entitled to take property on the basis of amount offered by the petitioner.

1. On the other hand, learned counsel for the respondents-Bank argues that actually the process of auction whereby the petitioner stood successful bidder was with the connivance of evaluator of property and whole the process is based upon fraud and that a huge public exchequer is involved in this matter. Further states that when during the pendency of this writ petition the suit property has been auctioned and a successful bidder has offered an amount of rupees 15.200 million which is five time more than the offer of petitioner. While relying upon "2003 YLR 1597 (Muhammad Safdar Gogar vs. Province of Punjab through Secretary and 4 others), 2005 YLR 1443 (Babu Javed Ahmad, Tehsil Nazim and 2 others vs. Abdul Hafeez) and 2012 YLR 174 (Mehmood Medical Store through Proprietors vs. Services Hospital, Lahore through Medical Superintendent and 3 others)" learned counsel prays for dismissal of this writ petition.

2. I have heard the learned counsel for the parties at length and also gone through the record appended with this petition by the petitioner as well as the respondents-Bank with the comments.

3. It is not denied that one Adeel Mukhtar has been declared successful bidder in the last auction, who has offered an amount of rupees 15.200 million, whereas the highest offer of petitioner was rupees 3.10 million. It is also not denied that in the terms and conditions published in the newspaper it is mentioned that any or all bids can be rejected by the Bank without assigning any reason. When during the pendency of this writ petition the process of re-auction has taken place whereby an amount of rupees 15.200 million has been offered for the property for which the petitioner has offered rupees 3.10 million only, therefore this Court has to protect the interest of taxpayers as well as public exchequer notwithstanding the follies or illogical and some times even casual attitude of the custodians of public exchequer. In this context light can be taken from the judgments reported as "1993 SCMR 508 (Province of Punjab and 3 others vs. Dr. Muhammad Daud Khan Tariq) and 1996 SCMR 1433 (Javed Iqbal Abbasi & Co. vs. Province of Punjab)". In this case it transpires that the custodians of properties have not discharged their duties with regard to fixation of reserve price as well as assignment report, as according to the defence of Bank that the evaluation report was prepared with the connivance of writ petitioner, therefore this Court has to see the national interest and that the national interest must take priority over private interest and individual rights. Reliance is placed upon "PLD 1989 Supreme Court 166 (Federation of Pakistan and others vs. Haji Saifullah Khan and others)," It is also the duty of custodians of properties at the time of auction that they must be ensured that the auction proceedings are transparent and the price procured is fairly closer to market value. When these are the circumstances where it is visible that the price has been offered more than five time for the same property and for exercising discretionary powers conferred upon this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, therefore this Court is also bound to see that the person who came to the Court for discretionary relief, whether this relief is equitable or not. Furthermore, when any violation of contractual obligation is made, the petitioner has certainly alternate remedies available to him. In case of availability of alternate remedy ordinarily this Court refrains itself to exercise constitutional jurisdiction. In the matter in issue if the petitioner presumes that he has no fault on his behalf and he has deposited the amount for the purchase, of property and same has been used by the respondent-Bank for some period, he has a right to seek his efficacious remedy before the proper forum. In these circumstances, keeping in view the principles of equity and interest of the public exchequer I am not inclined to exercise extra ordinary constitutional jurisdiction in favour of the petitioner.

4. So far as the acceptance of offer by the Bank is concerned, learned counsel for the petitioner ably proved that it became a contract but this Court while exercising extra ordinary jurisdiction has to see that whether in every case this Court has to order for the performance of contract. It is not a case where any third person has just offered more amount than the amount offered by the petitioner but in this case full fledge process of re-auction of suit property has been carried out and there is a final offer of rupees 15.200 million for the suit property whereas the petitioner has offered rupees 3.100 million.

5. In the light of what has been discussed above, this writ petition having no force is dismissed with no order as to costs.

6. Before parting with this order I expect that the Bank will take action against the evaluator as well as its officials who contributed in the auction of disputed property for such a low rate in favour of petitioner. The Bank will forthwith return the amount received from the petitioner.

(R.A.) Petition dismissed

PLJ 2013 Lahore 394 (FB)

Present: Ijaz-ul-Ahsan, Syed Mansoor Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ.

RASHID--Petitioner

versus

RETURNING OFFICER, NANKANA SAHIB and 4 others--Respondents

W.P. No. 8680 of 2013, decided on 23.4.2013.

Representation of the People Act, 1976--

----S. 14(3-A)--Constitution of Pakistan, 1973, Arts. 63(1)(n) & 199--Constitutional petition--Objections against candidature--Loan remained unpaid for more than a period of one year from due date--Disqualification--Validity--Disqualification u/Art. 63(1)(n) of Constitution becomes complete only when loan remains unpaid for over a year till date of filing of nomination papers--S. 14(3-A) of Act, 1976 is inconsistent with scheme of constitution in general--Unpaid loan was admittedly paid after filing of nomination paper which did not cure disqualification--Order of acceptance of nomination paper was set aside. [Pp. 396 & 397] A & B

Rana Javed Iqbal, Advocate for Petitioner.

Mr. Shehram Sarwar Ch., Advocate for Respondent.

Mr. Nasir Javed Ghuman, Standing Counsel assisted by Rana Muhammad Aslam Khan, Deputy Director, ECP.

Mr. Ali Akhtar Khan, Law officer, ECP.

Ch. Muhammad Yasin Zahid, Advocate alongwith Muhammad Umar Tarrar, Ahlmad to Addl. Sessions Judge, Nankana.

Date of hearing: 19.4.2013.

Order

The petitioner, who is an objector/elector assails order dated 07.04.2013 passed by the Returning Officer, Nankana Sahib, whereby, objections raised by the petitioner against the candidature of Respondent No. 2 have been rejected.

1. The learned counsel for the petitioner submits that the petitioner stands disqualified in terms of Article 63(1)(n) of the Constitution of Islamic Republic of Pakistan, 1973 in as much as the loan obtained by Respondent No. 2 remained unpaid for more than a period of one year from the due date. He submits that a sum of Rs.21,16,644/- alongwith cost of funds was decreed by the learned Banking Court, Lahore on 5-4-2013 and has remained unpaid for over a period of one year from the due date with an admitted date of default as 12.06.2009. The said liability was deposited with the bank by the respondent after the decree was passed on 05.04.2013 while the nomination papers of Respondent No. 2 were filed on 31.3.2013.

2. Learned counsel for Respondent No. 2 while admitting the above facts has relied on Section 14(3-A) of the Representation of People Act, 1976 (ROPA) to submit that the petitioner has deposited the loan amount before the rejection of the nomination paper, hence the disqualification under Article 63(1)(n) of the Constitution is not attracted.

3. The learned standing counsel appearing for the Federal Government as also for the learned Attorney General for Pakistan in pursuance of the notice under Order 27-A of the CPC has supported the contention of the petitioner.

4. Arguments heard. Record perused.

5. Admittedly, Respondent No. 2 had obtained a loan of over two million, which remained unpaid and finally a decree in the sum of Rs. 21,16,644/- was passed against the respondent by the learned Banking Court, Lahore on 05-04-2013. Respondent No. 2 filed his nomination paper on 31.03.2013 but deposited the said loan amount after the decree was passed on 05.04.2013 and before the acceptance of the nomination paper on 07.04.2013.

6. The question before this Court is whether Article 63(1)(n) of the Constitution is attracted in the present case. Article 63(1)(n) of the Constitution states as follows:

"63(1)(n): he has obtained a loan for an amount of two million rupees or more, from any bank, financial institution, cooperative society or cooperative body in his own name or in the name of his spouse or any of his dependents, which remains unpaid for more than one year from the due date, or has got such loan written off" (emphasis supplied)

The above article provides for a disqualification on the ground that if a candidate has obtained a loan for an amount of Rs.2 million or more from any bank etc. which remains unpaid for more than one year from the due date, the said candidate stands disqualified from being elected or chosen as Member of the Parliament. The word "remains" in the above article connotes a continuous default, which means, that the loan must continue to remain unpaid for a period of over one year and till the time the candidate opts to present himself to be elected to the Parliament. The above disqualification is not attracted if the loan simply remains unpaid for more than one year from the due date, but stands attracted if the loan `remains' unpaid at the time when the candidate presents himself for election.

1. What is then the cut off date for the deposit of unpaid loan to avoid the mischief of disqualification under Article 63(1)(n) or the last date for curing the said disqualification? First, parallel can be drawn with Article 63(1)(o) of the Constitution that also deals with similar disqualification regarding government dues and utility expenses. In the said article disqualification is attracted when the default in the payment of government dues or utility expenses subsists for over a period of six months till the time of filing of nomination papers. The importance of the time of filing of the nomination papers cannot be over emphasized. It is the entry point for a candidate to step into the electoral process and in the wisdom of the Constitution the candidate must not only be qualified but must also be free from any taint of disqualification at this initial stage. Similarly Article 63(1)(n) also crystalizes if the loan remains unpaid till the time of filing of the nomination papers. Any payment made after filing of the nomination papers does not cure this constitutional disqualification. Reading the time of the "filing of the nomination papers" as the cut off date in both the above constitutional disqualifications advances a harmonious interpretation of the Constitution and avoids the possibility of discrimination in the application of the above articles, which carry similar objectives and purposes.

2. We are aware that Section 14(3-A) of Representation of the People Act, 1976 provides that if the payment of unpaid loan is made before the rejection of the nomination papers, the disqualification under Article 63(1)(n) is not attracted. We are afraid the said provision of Representation of the People Act, 1976 besides being inconsistent with Article 63(1)(o), disrupts the harmony of the constitutional provisions leading to discriminatory application of the above two constitutional disqualifications, which cannot be permitted through sub constitutional legislation. We therefore hold that disqualification under Article 63(1)(n) becomes complete only when the loan remains unpaid for over a year till the date of filing of the nomination papers. We therefore also held that Section 14(3-A) of Representation of the People Act, 1976 is inconsistent with the scheme of the Constitution in general and Articles 63(1)(o) and (n) in particular.

3. In the present case the unpaid loan was admittedly paid after the filing of the nomination paper which does not cure the disqualification as discussed above. Hence the order of acceptance of the nomination paper passed by the Returning Officer dated 7.4.2013 is set aside, resultantly the nomination papers of Respondent No. 2 are

rejected. Returning Officer is directed to remove the name of Respondent No. 2 from the list of validly nominated candidates.

(R.A.) Petition accepted

PLJ 2013 Lahore 397 [Rawalpindi Bench Rawalpindi]

Present: Ijaz Ahmad, J.

IMRAN KHAN--Petitioner

versus

RIZWAN ULLAH, SHO OF P.S. ATTOCK KHURD and another--Respondents

W.P. No. 1134 of 2011, decided on 15.5.2013.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 420, 468 & 471--Criminal Procedure Code, (V of 1898), Ss. 195 & 173--Quashing of FIR--Superdari of vehicle--Forged registration booking vehicle--Preparation of false document and its presentation in Court were not result of sporadic acts--Complaint having not been made by Court, criminal case could not be registered--Validity--Under Section 195, Cr.P.C., a Court is not to take cognizance of such an offence except on complaint in writing made by such Court--Court had taken cognizance on report made u/S. 173, Cr.P.C., after registration of criminal case lodged at instance of SHO--Neither FIR could be lodged nor Court could take cognizance of offence u/S. 173, Cr.P.C.--FIR was quashed. [P. 398] A & B

PLJ 2010 Lah. 506 & PLJ 2013 Islamabad, 74, rel.

Sh. Ahsan-ud-Din, Advocate for Petitioner.

Mr. Shahid Mehmood Abbasi, AAG for Respondent.

Date of hearing: 15.5.2013.

Order

Seeks quashment of FIR No. 36 dated 26.02.2011 registered under Sections 420, 468 & 471 PPC at Police Station Attock Khurd.

1. The prosecution case is that in a case of Superdari, Imran Khan the petitioner produced a forged registration book of the vehicle in question in the Court of the learned Illaqa Magistrate. He was thus accused of commission of the offence under the above said sections.

2. Contends that as per the provisions of Section 195 Cr.P.C., no Court shall take cognizance of any offence described in Section 463 PPC which is punishable under Section 468 PPC or under Section 471 PPC except on a complaint in writing of such Court. The complaint having not been made by the Court, a criminal case could not be registered. Since the registration of the criminal case is illegal, a Court could not take the cognizance of the matter.

3. On the other hand, it is contended by the learned AAG that the petitioner himself prepared or had a document prepared and then dishonestly used the same as genuine which he knew to be a forged document. A criminal case has legally been registered against him; that a complaint in writing by a Court is not necessary for taking the cognizance of an offence if the document alleged to be false was prepared at a previous occasion.

4. I have heard the learned counsel for the petitioner, the learned AAG and also gone through the record.

5. The document in question was got prepared in order to have the Superdari of the vehicle in question and was submitted in the Court. The preparation of a false document and its presentation in the Court are not the result of sporadic acts, they were committed in the same series of unlawful acts. Under Section 195 Cr.P.C., a Court is not to take the cognizance of such an offence except on a complaint in writing made by such Court. A complaint has been defined under Section 4(h) of Cr.P.C. It is a statement of accusation or allegation of fact or information put forth to a Magistrate incurring commission of an offence to be taken cognizance. No other definition of complaint is available under the Code of Criminal Procedure or Pakistan Penal Code. In the instant case, the Court has taken cognizance on a report made under Section 173 Cr.P.C after the registration of a criminal case lodged at the instance of SHO Police Station Attock, Khurd. Neither the FIR could be lodged nor the Court could take the cognizance of the offence under the above referred sections. The continuation of the illegality cannot be allowed. Relying on "PLJ 2010 Lahore 506" titled Muhammad Ashfaq Vs. State and 2 others & "PLJ 2013 Islamabad 74" titled Rimsha Masih Vs. Station House Officer, Police Station Ramna, etc., this petition is accepted. FIR No. 36 dated 26.02.2011 registered under Sections 420, 468 & 471 PPC at Police Station Attock Khurd and the proceedings before the Illaqa Magistrate in the criminal case are quashed.

(R.A.) FIR quashed

PLJ 2013 Lahore 399 [Rawalpindi Bench Rawalpindi]

Present: Ali Baqar Najafi, J.

MUHAMMAD SHIRAZ--Appellant

versus

LEARNED ADJ, GUJJAR KHAN, etc.--Respondents

W.P. No. 4734 of 2010, heard on 24.5.2013.

Constitution of Pakistan, 1973--

----Art. 199--Muslim Family Courts Act, 1964, S. 5--Transfer of Property Act, S. 130--Clause 17 of Nikah Nama--Past maintenance allowance--Suit for restitution of conjugal rights and suit for recovery of maintenance allowance--Implementation of clauses 17 & 20 of Nikah Nama--Judgment and decree to extent of gold ornaments and recovery was challenged--Validity--In presence of decree for restitution of conjugal rights, condition of payment on desertion does not become operative--Clause 17 of Nikah Nama imposing such condition does not come within ambit of S. 130 of Transfer of Property Act as actionable claim--Petition was partly allowed to extent of imposition of condition of clause 17 and claim under Clause 20 of Nikah Nama and dismissed to extent of maintenance granted to wife for carrying marriage bond intact, since decree for restitution of conjugal rights, had already become final. [Pp. 401 & 402] A & C

Maintenance Allowance--

----Payment of past maintenance to wife--As long as wife carries name of husband, she was entitled to at least some acknowledgement in form of maintenance by husband. [P. 402] B

2003 SD 350 & 2002 CLC 1450, ref.

Raja Saghir-ur-Rehman, Advocate for Petitioner.

Mr. S. Mansoor Hussain Bukhari, Advocate for Respondents No. 3 & 4.

Date of hearing: 24.5.2013.

Judgment

Through this constitutional petition, the petitioner seeks setting aside of the judgment and decree passed by the learned Additional District Judge, Gujjar Khan, whereby Respondent No. 3 was granted past maintenance allowance at the rate of Rs. 2000/- per month and 10-Tolas of gold ornaments on the basis of clause-17 of Nikah Nama.

1. The brief facts giving rise to filing of the present petition are that the petitioner filed a suit for restitution of conjugal rights against Respondent No. 3 who, in turn, also filed a suit for recovery of maintenance allowance and for implementation of clauses-17 and 20 of the Nikah Nama, besides the maintenance of Respondent No. 4. Both the suits were consolidated and issues were framed out of the divergent pleadings of the parties. The documentary as well as oral evidence was led by both the parties, whereafter the learned Judge Family Court passed the judgment and decree dated 30.1.2010, whereby Respondent No. 3 was granted past maintenance allowance at the rate of Rs.2000/- per month from October, 2009 till decision of the suit whereas Respondent No. 4 was granted maintenance allowance at the rate of Rs.2000/- per month with 10% annually increase from December, 2009 till she married or custody is shifted. However, the suit for restitution of conjugal rights was also decreed in favour of the petitioner subject to the condition that petitioner would pay past maintenance for the purpose of marital obligations in future. However, the gold ornaments and, Rs.50,000/ were not granted to the said respondent. Respondent No. 3 and petitioner challenged the said judgment and decree to the extent of gold ornaments and recovery of Rs. 50,000/- which was granted by the learned Additional District Judge, Gujjar Khan. Hence, this writ petition.

2. The learned counsel for the petitioner submits that the grant of past and future maintenance to Respondent No. 3 is against law and facts; that Respondent No. 3 is leading a deserted life of her own and without any justification and, therefore, is not entitled to any maintenance, especially in the presence of decree for restitution of conjugal rights; that Respondent No. 3 herself admitted in the plaint that on the next day of marriage 7-Tolas of gold ornaments in the form of bangles were taken back by the petitioner and thereafter there is no evidence of snatching away the other gold ornaments; that the learned Additional District Judge passed his judgment on surmises and conjectures and has also committed illegality; that the judgment of the learned Additional District Judge is arbitrary, capricious and in variation of the judgment and decree passed by the learned Judge Family Court; that an exaggerated quantum of maintenance was granted by the appellate Court and prays for setting aside of the said judgment. Places reliance upon the cases of Sakina Bibi v. Muhammad Latif, etc. [2003 S.D. 350], Arshad Ali v. Additional District Judge, Vehari and others [2002 CLC 1450], Muhammad Akram v. Mst. Hajra Bibi and two others [PLD 2007 Lahore 515] and Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and other [PLD 2011 S.C. 260].

3. Conversely, the learned counsel for the respondents submits that the petitioner has admitted in Paragraph No. 3 of the written statement that although Respondent No. 3 brought 10-Tolas of gold ornaments but had taken it back at the time when she accompanied her father; that in Paragraph No. 5 of the plaint of the suit for restitution of conjugal rights, the petitioner admitted that on 7.10.2009, Respondent No. 3 went to her parents by taking the said gold ornaments, leaving ten months' old daughter, which is not appealing to reason; that Respondent No. 3 had to file a habeas corpus petition to get the minor suckling baby; that in her statement, Respondent No. 3 categorically stated that the said gold ornaments were snatched by the petitioner; that conduct of the petitioner led Respondent No. 3 to file a suit for maintenance and recovery of 10-Tolas of gold ornaments and prays for dismissal of this writ petition.

4. I have heard the learned counsel for the parties and perused the available record.

5. In paragraph No. 6 of the plaint of the suit for recovery of maintenance and for implementation of clause-17 of the Nikah Nama, Respondent No. 3 has admitted that on the next date of the marriage, the petitioner has already taken 7-Tolas of gold bangles with a promise that he would purchase gold articles of equal weight for Respondent No. 3 in future but he could not do so. In the written statement to the suit for restitution of conjugal rights, Respondent No. 3 in Paragraph No. 4 stated that she was beaten and expelled by the petitioner on 5.10.2009 without the gold ornaments. She could not prove either through her pleadings or in her statement that apart from the said bangles, she had any other gold ornaments. On the other hand, her plea that vide clause-17 of the Nikah Nama she was to retain 10-Tolas of gold ornaments were the same which, according to her, were given to her on the eve of marriage by the petitioner and were taken on the following morning. Admittedly, they were not purchased by the petitioner. Meaning thereby that they were not in her use since the wedding night. Under clause-20 of the Nikah Nama, the maintenance at the rate of Rs.2000/ per month and Rs.50,000/- were the conditions imposed which were made applicable only on the desertion by Respondent No. 3. Any such condition does not come within the category of Item No. 9 of the schedule under section 5 of the Muslim Family Courts Act, 1964. Moreover this condition was also required to be mentioned on a document before writing under the clause-20.

6. Admittedly, the stand of the petitioner is that he is willing to take the respondent back and will abide by all reasonable conditions imposed by Respondent No. 3 were not reciprocated her. In the presence of decree for restitution of conjugal rights, the condition of payment of Rs.50,000/- on desertion does not become operative. Moreover, clause-17 of the Nikah Nama imposing such condition does not come within the ambit of Section 130 of Transfer of Property Act as actionable claim. Reliance is placed upon the case of Syed Mukhtar Hussain Shah vs. Mst. Saba Imtiaz (PLD 2011 SC 260)

7. As far as payment of maintenance to the wife is concerned, suffice it to say that as long as wife carries the name of the husband, she is entitled to at least some acknowledgement in the form of maintenance by the husband. After all, in this case, Respondent No. 3 is bringing up Respondent No. 4, the minor who is his daughter. I, therefore, respectfully disagree with the judgments of Single Judge of this Court reported as Sakina Bibi v. Muhammad Latif. etc. [2003 S.D. 350], Arshad Ali v. Additional District Judge, Vehari and others [2002 CLC 1450].

8. For the foregoing reasons, this writ petition is partly allowed to the extent of imposition of condition of clause-17 and claim under clause-20 of the Nikah Nama and dismissed to the extent of maintenance granted to Respondent No. 3 for carrying the marriage bond intact, since the decree for restitution of conjugal rights has already become final.

(R.A.) Petition allowed

PLJ 2013 Lahore 402

Present: Shahid Waheed, J.

MATLOOB HUSSAIN--Petitioner

Versus

M.B.R., etc.--Respondents

W.P. No. 14620 of 2013, decided on 11.6.2013.

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

----O. XXIII, R. 1--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Unconditionally withdrawn of petition--Tenor of order--Not to seek permission to file a fresh petition and had withdrawn unconditionally--Under Order 23, Rule 1 of CPC, suit can be withdrawn at any time whenever plaintiff desires and it is not possible for Court to compel plaintiff to continue a suit--Principles embodied in Order 23 Rule 1, CPC are applicable to constitutional petition as proceeding u/Art. 199 of Constitution relating to civil matters are civil proceedings--Petitioner was precluded to institute instant petition in view of unconditional withdrawal of earlier petition involving the same subject matter--Petition was dismissed. [P. 405] A, B & C

PLD 1968 Pesh. 134, PLD 1971 Lah. 395, PLD 1970 SC 1 & 1989 SCMR 995, ref.

Mr. Muhammad Ashraf Pasha, Advocate for Petitioner.

Date of hearing: 11.6.2013.

Order

Respondent No. 5, Namdar Khan, had filed an application under Section 135 of the Land Revenue Act, 1967 before the Tehsildar/ Respondent No. 4 for partition of jointly owned landed property against 23 persons including the present petitioner, Matloob Hussain. The Tehsildar/AC-I(Respondent No. 4) vide order dated 28.9.2004 approved the "Naqsha Jeem". The petitioner alongwith 8 others, feeling aggrieved by order dated 28.9.2004, preferred an appeal under Section 161 read with Section 142(ii) of the Land Revenue Act, 1967, before the District Officer (Revenue)/Collector (Respondent No. 3) which was dismissed vide order dated 12.7.2005 (Annex. C). Thereafter, the petitioner alongwith others filed an appeal under Section 161 of Land Revenue Act, 1967 before the Executive District Officer (Revenue)/Respondent No. 2 and the same was also dismissed vide order dated 16.2.2007. The petitioner assailed the order dated 16.2.2007 before the Board of Revenue, Punjab, through a revision petition under Section 164 of the Land Revenue Act, 1967. Learned Member (Judicial-V), Board of Revenue, Punjab vide order dated 2.4.2007 dismissed the revision (i.e. ROR No. 639-07) filed by the petitioner. Finally, the petitioner moved a review petition before the learned Member (Judicial-V), Board of Revenue, Punjab. The review petition (i.e. Review Petition No. 116-07) filed by the petitioner was also dismissed vide order dated 9.10.2008. The petitioner being dis-satisfied with the afore-stated orders moved this Court through W.P. No. 9019-13 which was dismissed as withdrawn vide order dated 15.4.2013. Now, the petitioner has filed the petition in hand for assailing orders dated 28.9.2004 and 12.7.2005, passed by the Tehsildar/AC-I and Executive District Officer (Revenue) respectively; and orders dated 2.4.2007 and 9.10.2008, passed by the Board of Revenue Punjab.

1. The matter directly and substantially in issue in the present petition is the same matter which was directly and substantially in issue in the former petition, that is, W.P. No. 9019-13. The earlier petition was withdrawn unconditionally from this Court vide order dated 15.4.2013. In this context, at the outset of hearing, I confronted the learned counsel for the petitioner with the bar contained in Order XXIII, Rule 1, CPC and asked as to how, the instant petition is maintainable. In response to Court query, learned counsel for the petitioner has submitted that consequent upon the dismissal of Review Petition No. 116-07 by the Board of Revenue, parties to the petition agreed to resolve the dispute through arbitration and in consequence thereof an arbitrator was appointed who after hearing the parties announced award on 2.11.2012. At the time of hearing of earlier petition, i.e. W.P. No. 9019-13, copy of award was not available and, therefore, the same was withdrawn for the time being. He has further submitted that the petitioner after obtaining a copy of the award has filed the instant petition; which is maintainable.

2. I am afraid the contention raised by the learned counsel for the petitioner has no force. The petitioner in earlier petition i.e. W.P. No. 9019-13 made the following prayer:--

"It is, therefore, most respectfully prayed that this writ petition may kindly be allowed and the impugned orders dated 28.9.2004, 12.7.2005 passed by the EDO and DO(Revenue) and orders dated 2.4.2007 and 9.10.2008 passed by the Board of Revenue, Punjab may kindly be set aside, in the interest of justice.

It is also prayed that meanwhile, operation of the impugned orders may kindly be suspended and status quo regarding the possession of the parties may kindly be ordered to be maintained, in the interest of justice.

Any other relief which this Hon'ble Court deems fit and appropriate under the aforementioned facts and circumstances of the case may also be granted to the petitioner".

Above said petition was dismissed as withdrawn vide order dated 15.4.2013 which reads as under:--

"After arguing the case at some length, learned counsel for the petitioner requests to withdraw this writ petition. Therefore, the same is dismissed as withdrawn."

Now, the petitioner has filed the instant petition with following prayer:--

"It is, therefore, most respectfully prayed that this writ petition may kindly be allowed and the impugned orders dated 28.9.2004, 12.7.2005 passed by the EDO and DO(Revenue) and orders dated 2.4.2007 and 9.10.2008 passed by the Board of Revenue, Punjab may kindly be set aside, in the interest of justice.

It is also prayed that meanwhile, operation of the impugned orders may kindly be suspended and status quo regarding the possession of the parties may kindly be ordered to be maintained, in the interest of justice.

Any other relief which this Hon'ble Court deems fit and appropriate under the aforementioned facts and circumstances of the case may also be granted to the petitioner".

The afore-stated facts evince that subject matter of both the petitions is same; prayer of W.P. No. 9019-13 and prayer made in the petition in hand is verbatim; and, that tenor of order dated 15.4.2013 shows that the petitioner's counsel did not seek permission to the a fresh petition and had withdrawn W.P. No. 9019-13 unconditionally. Under Order XXIII, Rule 1, CPC a suit can be withdrawn at any time whenever plaintiff desires and it is not, possible for the Court to compel plaintiff to continue a suit as was held in the case of "Karim Gull and another vs. Shehzad Gull and others" (PLD 1968 Peshawar 134), "Malik Mumtaz Ali vs. Pakistan through Secretary, Refugee and Works, Government of Pakistan, Rawalpindi and three others" (PLD 1971 Lah 395). The principles embodied in Order XXIII, Rule 1, CPC are applicable to a constitutional petition as proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 relating to civil matters are civil proceedings in view of judgment of their Lordships of the Supreme Court of Pakistan in "Hussain Bukhsh vs. Settlement Commissioner and others" (PLD 1970 SC 1), "Muhammad vs. Addl. Secretary Government of NWFP Home and Tribal Affairs Department and 8 others" (1989 SCMR 995). Thus, I hold that the petitioner is precluded to institute present petition in view of unconditional withdrawal of the earlier petition involving the same subject matter.

1. This petition is, therefore, dismissed as being incompetent.

(R.A.) Petition dismissed

PLJ 2013 Lahore 405 (DB)

Present: Amin-ud-Din Khan and Shahid Waheed, JJ.

ALI RAZA & another--Appellants

versus

MUHAMMAD ASHFAQ, etc.--Respondents

R.F.A. No. 275 and C.M. Nos. 1, 2-C of 2010, heard on 13.6.2013.

Limitation Act, 1908 (IX of 1908)--

----Ss. 5 & 14--Condonation of delay in filing of appeal--Filing of appeal before wrong forum--Validity--All proceedings and fixation of validation was in his knowledge then filing of appeal in wrong forum does not entitle for condonation of delay u/S. 14 of Limitation Act for not filing appeal vigilantly and with due care plaintiffs were also practicing Advocates--Applicants were not entitled for condonation of delay when no explanation was given for delay after receipt of appeal back from wrong forum when certified copies were also received till filing of appeal before High Court--Applications were dismissed. [Pp. 406 & 407] A & B

1999 SCMR 1892, ref.

Syed Kazim Bukhari, Advocate for Appellants.

Mr. Najaf Muzammil Khan, Advocate for Respondents.

Date of hearing: 13.6.2013.

Judgment

Amin-ud-Din Khan, J.--(C.M.No.1-C-2010) This is an application under Section 5 read with Section 14 of the Limitation Act for condonation of delay in filing of this appeal.

1. Learned counsel for the applicants argues that mistakenly the appeal was filed before the wrong forum i.e. learned District Judge, against the decree of dismissal of their suit dated 19.11.2009, Appeal was filed on 18.12.2009, same was returned to the appellants on 4.3.2010 and it was re-filed in this Court on 15.3.2010, therefore, prays that delay which occurred by filing the appeal before the wrong forum as well as after return of appeal and filing before this Court be condoned.

2. On the other hand, learned counsel representing respondents has vehemently opposed this application by arguing that the appeal was filed by the same learned counsel who was counsel before the learned trial Court and he was well aware of the jurisdictional value and that even the appellants have not disputed the jurisdictional value of the suit as well as appeal i.e. Rs. 29,00,000/-, Further states that both the applicants-appellants are themselves practicing Advocates and states that the delay cannot be condoned when the appeal has been filed negligently before the wrong forum. Reliance has been placed upon "Bashir Ahmad versus Muhammad Sharif and 4 others" (PLD 2001 Supreme Court 228), "Mst. Khadija Begum and 2 others versus Mst. Yasmeen and 4 others" (PLD 2001 Supreme Court 355), "Mujahid Shah and another versus Suhail Ikram and 3 others'" (PLD 2006 Lahore 26) and a judgment passed by this Court in C.M. No.1-C-2005 in RFA.No.275 of 2005 on 16.5.2006.

3. We have heard learned counsel for the parties and have gone through the record with their able assistance.

4. So far as filing of the appeal before the wrong forum is concerned, in this case when the learned counsel who was the counsel for the plaintiffs in the trial Court and all the proceedings and fixation of valuation was in his knowledge then filing of appeal in the wrong forum docs not entitle the plaintiffs-appellants for condonation of delay under Section 14 of the Limitation Act for not filing the appeal vigilantly and with due care when plaintiffs-appellants themselves are also the practicing Advocates as per arguments of learned counsel for the respondents. Furthermore, when appeal was returned, it was to be filed before this Court and if the story of the applicants that they applied for certified copy on 5.3.2010 and same was handed over to them on 9.3.2010, filing of appeal before this Court on 15.3.2010, therefore, they were bound under the Law to explain the delay of each and every day after receipt of the appeal back by the appellants on 4.3.2010 or at least after 9.3.2010 when certified copies of the impugned judgment & decree in the appeal were also received by the appellants-applicants. In the light of case law referred by the learned counsel for the respondents as well as the light which we have taken from the law declared by the August Supreme Court of Pakistan reported as "Raja Karamatullah and 3 others versus Sardar Muhammad Aslam Sukhera" (1999 SCMR 1892), applicants are not entitled for condonation of delay when no explanation has been given for the delay after receipt of the appeal back from the wrong forum, when certified copies were also received on 9.3.2010, till the filing of the appeal before this Court on 15.3.2010. In view of the above discussion, this C.M is dismissed. Result would be that RFA as well as applications stand dismissed.

(R.A.) Applications dismissed

PLJ 2013 Lahore 407 (DB)

Present: Amin-ud-Din Khan and Shahid Waheed, JJ.

M/s. ATTIQ-UR-REHMAN, etc.--Applicants

versus

BANK OF OMAN--Respondent

EFA No. 514 of 2006 and C.M. Nos. 1-C, 2-C of 2012, decided on 11.6.2013.

Limitation Act, 1908 (IX of 1908)--

----S. 5 & Art. 168--Civil Procedure Code, (V of 1908), O. XLI, R. 19--Financial Institutions (Recovery of Finances) Ordinance, 2001, S. 22--Application for recalling of order whereby appeal was dismissed for non-prosecution--Application for obtaining certified copy was filed after five months--Time begins to run from date of dismissal and not from date of knowledge of dismissal--Period of 30 days was provided for filing an application for readmission of an appeal--Plea for non appearance before High Court was due to non-receiving of daily cause list--Validity--Ground of non-receiving of cause list from Bar now a days hardly constitutes a sufficient cause for reason that cause list was not only provided to Bar but was also displayed on website of High Court office of High Court also communicates cause list to counsel to get cause list from Bar or to check website or e-mail or SMS was not excusable on well known maxim; nullus commodum capare potest de injuria sua propria--Appeal was filed by a panel of Advocates and there was no explanation with regard to their absence--No sufficient was disclosed for recalling of order--In application neither exact date of knowledge nor name of employee was stated--Such bald and wild assertion was not sufficient for condonation of delay--Application had neither disclosed a sufficient cause for restoration of appeal nor explained delay of each and every day--Both applications were dismissed. [P. 409] A, B, C & D

Mian Javed Jalal, Advocate for the Applicant.

Mr. Muhammad Asif Ismail, Advocate for Respondent.

Date of hearing: 11.6.2013.

Order

C.M. No. 1-C/12 is an application under Order XLI, Rule 19, CPC for recalling of order dated 5.7.2011 whereby appeal (EFA No. 514/2006) was dismissed for non-prosecution whereas CM. No. 2-C/12 is an application under Section 5 of the Limitation Act for condonation of delay in filing C.M. No. 1-C/2012.

1. The applicant through an appeal (EFA No. 514/06) under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 assailed the legality of order dated 11.10.2006 passed by the learned Banking Court-II, Lahore whereby his objection petition was dismissed. The above said appeal was dismissed for non-prosecution vide order dated 5.7.2011. Learned counsel for the applicant submits that his non-appearance before this Court on 5.7.2011 was neither deliberate nor willful but was due to non-receiving of daily cause-list; and, that the applicant being a heart patient was under medical treatment and, therefore, had no knowledge about the date of hearing. Conversely the learned counsel for the respondent vehemently opposes this application and submits that no sufficient cause has been disclosed in the application; and, that the applicant has failed to explain the delay of each day in filing the application and thus both the applications are liable to be dismissed.

2. We have heard the learned counsel for the parties and examined the record.

3. The perusal of record shows that after dismissal of appeal (i.e. EFA No. 514/06) for non-prosecution vide order dated 5.7.2011, the applicant on 21.12.2011, that is after five months, filed an application for obtaining certified copy of the above said order. The certified copy of order dated 5.7.2011 was supplied on 22.12.2011. After getting certified copy of the order dated 5.7.2011 the applicant on 10.01.2012 filed CM. No. 1-C/12 and CM. No. 2-C/12. As per Article 168 of the Limitation Act the time begins to run from the date of dismissal and not from the date of knowledge of the dismissal. The period of 30 days has been provided for filing an application for the readmission of an appeal dismissed for want of prosecution. The petitioner after a lapse of 6 months filed the application for restoration of the appeal. The ground of non-receiving of cause-list from the Bar now-a-days hardly constitutes a sufficient cause for the reason that cause-list is not only provided to the Bar but is also displayed on the Website of the High Court. The office of the High Court also communicates the cause-list to the learned counsels through e-mail and SMS. The negligence of the counsel to get cause list from the Bar or to check the Website or e-mail or SMS is not excusable on the well-known maxim: nullus commodum capere potest de injuria sua propria (no man can take advantage of his own wrong). As regards the ailment of the applicant it is suffice to say that the prescriptions attached with the application pertain to the year 2009 and, therefore, do not substantiate the plea raised by the applicant. We have also noticed that this appeal has been filed by a panel of Advocates and there is no explanation with regard to their absence on 5.7.2011. Thus, no sufficient cause has been disclosed in C.M. No. 1-C/2012 for recalling of order dated 5.7.2011.

4. The applicant in para (vi) of the grounds of C.M. No. 2-C/12 has stated that he came to know about the order dated 5.7.2011 through an employee of the decree-holder/bank. In the application neither the exact date of knowledge nor the name of the employee has been stated. This bald and wild assertion is not sufficient for the condonation of delay.

5. The applicant has neither disclosed a sufficient cause for restoration of appeal in C.M. No. 1-C/12 nor explained the delay of each and every day in CM. No. 2-C/12 and thus both the applications are devoid of any merit and substance.

6. In view of above, C.M. No. 1-C/12 and CM. No. 2-C/12 are dismissed.

(R.A.) Applications dismissed

PLJ 2013 Lahore 410 [Rawalpindi Bench Rawalpindi]

Present: Ijaz Ahmad, J.

SH. AFTAB AHMAD--Petitioner

versus

ELECTION COMMISSION OF PAKISTAN through Secretary, Islamabad and others--Respondents

W.P. No. 1217 of 2013, decided on 17.5.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Re-counting of ballat papers--Elections Commission had not given reasons for ordering recounting of ballot-papers--Assailed--No reason whatsoever was mentioned in order while directing re-counting of ballot-papers--Commission had not exercised powers vested in it in a fair and legal manner--Impugned order was set aside. [P. 411] A

2011 CLC 48, PLD 1986 SC 483 & PLD 2008 SC 663, rel.

Sh. Ahsan-ud-Din and Sh. Waqar Azeem Siddiqui, Advocates for Petitioner.

Mr. Tanveer Iqbal, Advocate for Respondent No. 3.

Date of hearing: 17.5.2013.

Order

The petitioner and Respondents No. 3 to 12 were the candidates for the Election to the National Assembly from NA-57, District Attock. The petitioner bagged almost 60,000/- votes and Respondent No. 3 was a runner up with approximately 56,000/- votes. Respondent No. 3 made an application before the Election Commission of Pakistan for recounting of the ballot-papers. The Election Commission directed the Returning Officer to recount the complete ballot-papers in presence of the petitioner and the other contesting candidates and to submit a report to it on 17.05.2013. Aggrieved by the said order, the petitioner has filed the instant petition. On receipt of the petition, this Court sent notices over the Radio and Television. Respondent No. 3 has put in his appearance. Rest of the respondents are ordered to be proceeded against ex parte, as none represents them.

1. It is contended by the learned counsel for the petitioner that the impugned order has been passed without affording an opportunity of hearing to the petitioner; that the Commission has not given the reasons for ordering recounting of the ballot-papers. Relies on 2011 CLC 48 titled Mst. Ashifa Riaz Fatyana Vs. Mst. Nazia Raheel and 10 others, PLD 1986 Supreme Court 483 titled Kanwar Ijaz Ali Vs. Irshad Ali and 2 others and PLD 2008 Supreme Court 663 titled Moulana Atta-ur-Rehman Vs. Al-Hajj Sardar Umar Farooq and others.

2. On the other hand, it is contended by the learned counsel appearing on behalf of Respondent No. 3 that under Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 and under Section 52 of the Representation of the People Act, 1976, no election to the Parliament shall be called in question except by an election petition and that under Section 105 of the ROP, Act, 1976, the jurisdiction of the Courts is barred against any order passed or action taken by the Commission and that under Section 103 of the Act ibid, the Commission may issue such instructions and exercise such powers, as may be necessary for ensuring that an election is being conducted honestly, justly and fairly. Relies on 2000 SCMR 907 titled Abdul Haque Indhar and others Vs. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others and 2005 SCMR 1814 titled Nazir Ahmad Panhwar Vs. Government of Sindh through Chief Secretary, Sindh and others.

3. I have heard learned counsel for the parties and gone through the impugned order and the case law.

4. The order passed or an action taken by the Election Commission of Pakistan enjoys an indemnity as long it is taken in good faith by or under the Authority of the Commission and is not coram non judice. The instant order has been passed without hearing the petitioner. No reason whatsoever has been mentioned in the impugned order while directing recounting of the ballot-papers. In my view, the Commission has not exercised the powers vested in it in a fair and legal manner. In this view of the matter, the impugned order is set aside. However, the parties are directed to appear before the Election Commission at 1030 hours today, who will pass an order on the application made by Respondent No. 3 after hearing both the parties. This petition is accepted in terms of the observations made above.

(R.A.) Petition accepted

PLJ 2013 Lahore 412

Present: Shahid Waheed, J.

MUHAMMAD SHAFIQ--Petitioner

versus

SUI GAS, etc.--Respondents

W.P. No. 10748 of 2013, heard on 11.6.2013.

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

----O. XXXIX, Rr. 1 & 2--Permanent injunction--Restore gas supply to petitioner's premises subject to payment of monthly gas consumption charges--Violation of principle of natural justice--Valid ground for assailing revisional order--It is an elementary principle of natural justice that no party can be bound by an order passed behind his back--Principle of natural justice is implied in all provisions of, CPC an order which affected a party was to be passed only after notice to him--This is a clear violation of principle of natural justice and depicts that Distt. Judge had exercised jurisdiction illegally and with material irregularity. [Pp. 413 & 414] A & B

Mr. Muhammad Imran, Advocate for Petitioner.

Rana Zia-ul-Islam Manj, Advocate for Respondents.

Date of hearing: 11.6.2013.

Judgment

Petitioner, Muhammad Shafiq, feeling aggrieved by Gas Bill for the month of December, 2011 amounting to Rs.387,900/- instituted a suit for declaration with permanent injunction against the respondents before the learned Civil Judge, Lahore. In response to summons the respondents entered appearance before the learned trial Court and contested the suit by filing written statement. The learned trial Court while disposing of petitioner's application under Order XXXIX, Rules 1 & 2, CPC vide order dated 8.3.2013, directed the respondents to restore gas supply to the petitioner's premises subject to payment of monthly gas consumption charges. Feeling aggrieved by order dated 8.3.2013, the Sui Northern Gas Pipe Lines (Respondent No. 1) filed a revision petition under Section 115, CPC. The learned Addl. District Judge, Lahore vide orders dated 9.4.2013 disposed of the revision and modified the order of learned trial Court in the following terms:--

"The impugned order prima facie is defective on this score. Hence is modified that the respondent must deposit the consumption, liability to the tune of Rs. 1,93,404/- under protest with the Sui Gas Department and then his restoration of connection be made, according to the direction passed in the impugned order and the amount of Rs. 1,87,756/- levied on the tempering of Meter is also a liability which is not acceptable to respondent, on this score the respondent must amend his pleadings according to new grounds, available to him relating with the bill of December, 2012 as explained by the Sui Gas department and thus the learned trial Court may proceed further on the subject. If any grievance is still available to the respondent side then learned trial Court will procure his version in writing before itself and after giving opportunity to the Sui Gas Department, for hearing on the subject will pass an order. So any aspect of the matter which is not attended by the Court may be re addressed."

Through the petition in hand, the petitioner has called in question the order dated 9.4.2013, passed by the learned Addl. District Judge.

1. Since a short question is involved, this petition is heard today as a pacca matter.

2. Learned counsel for the petitioner has urged a sole ground that the learned Addl. District Judge, Lahore without issuing any notice and affording opportunity of hearing to the petitioner could not modify the order dated 8.3.2013, passed by the learned trial Court. Conversely, learned counsel for the respondents though admits that the learned Addl. District Judge has passed the impugned order without issuing any notice to the petitioner yet submits that this irregularity does not vitiate the impugned order.

3. I have heard the learned counsel for the parties and perused the record.

4. Violation of principle of natural justice is a valid ground for assailing a revisional order passed by the learned Addl. District Judge before this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It is an elementary principle of natural justice that no party can be bound by an order passed behind his back. Principle of natural justice is implied in all provisions of Civil Procedure Code, that an order which affects a party is to be passed only after notice to him. In this regard it would be apposite to cite following extract from the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case of "Commissioner of income Tax, East Pakistan vs. Saeedur Rehman" (PLD 1964 SC 410):--

"We don't think the mere absence of a provision as to notice can override the principle of natural justice that an order affecting the rights of a party cannot be passed without an opportunity of hearing to that arty. A reference to provision in other statute will show that the existence of a provision of notice as to one proceeding has not been accepted as an argument against the need of notice in the case of proceeding with respect to which there is no express provision of notice. Under the Criminal Procedure Code there is a distinct provision in the case of an appeal for notice of hearing to the appellant, but there is no such provision in the case of a revision petition in the High Court. It cannot be urged, however, that the right of hearing in a revision petition has thereby been excluded. In the Civil Procedure Code similarly there is a provision in Order XLI, Rule 22 directing notice of the hearing of appeal to be given to the appellant and, there is no such provision with respect to a proceeding under Section 115, CPC, yet it cannot be said that it is not necessary to hear the parties affected in a proceeding under Section 115, CPC. The fact that the proceedings are judicial or quasi-judicial in nature is sufficient to entitle a party to a hearing in the absence of a specific provision to the contrary".

In the instant case, the learned Addl. District Judge, Lahore has passed the impugned order without issuing notice to the petitioner. This is a clear violation of the principle of natural justice and depicts that the learned Addl. District Judge has exercised the jurisdiction illegally and with material irregularity. Thus, the order impugned in this petition being illegal is not sustainable in the eye of law.

1. Without going in other questions raised in this petition, I am inclined to allow this petition on the basis of aforesaid preliminary substantial question of law raised by the petitioner. The impugned order dated 9.4.2013 passed by the learned Addl. District Judge, Lahore is set aside and declared to have been passed without lawful authority and of no legal effect. The learned Addl. District Judge, Lahore is directed to decide the revision petition afresh on merits and after affording opportunity of hearing to the parties to the revision petition. Parties are directed to appear before the learned Addl. District Judge, Lahore on 27.6.2013.

(R.A.) Petition allowed

PLJ 2013 Lahore 415

Present: Shahid Waheed, J.

MUHAMMAD SIDDIQUE--Petitioner

versus

DIVISIONAL FOREST OFFICER, OKARA--Respondent

W.P. No. 1089 of 2011, heard on 30.5.2013.

Constitution of Pakistan, 1973--

----Art. 199--Punjab Employees Efficiency, Discipline and Accountability Act, 2006--Scope--Ss. 21 & 2(n)--Punjab Civil Service Pension Rules, 1963--R. 1.8--Show cause notice--Pension for retired employee--Proceeding under PEEDA Act, might be initiated against retired employee--Sanctioned pension cannot initiate proceedings--Question of--Whether D.F.O. after retirement of petitioner could initiate proceeding--Right to effect recovery of disputed amount--Validity--It is well established principle that when an authority passes an order which was within its competence it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its power under any other rule and validity of impugned order would be judged on consideration of its substance and not of its form--Court must ascribe the act of public servant to an actual existing authority under which it would have validity rather than to one under which it would be void--High Court can entertain instant petition as orders/notices impugned were void ab initio. [Pp. 420 & 424] A & C

Punjab Employees Efficiency, Discipline and Accountability Act, 2006--

----Ss. 2(b)(ii) & 19--Constitution of Pakistan, 1973--Art. 199--Appeal to Punjab Service Tribunal--Remedy of appeal--Sanction of pension--Lapse of four years--Proceeding under PEEDA Act may be initiated against retired employee of government during his service or within one year of his retirement and finalized not later than two years of retirement--Validity--Only a person in government service or who was a member of civil service of province or who holds a civil post in connection with affairs of province or any employee serving in any Court or tribunal being aggrieved by an order passed u/S. 16 or 17 might--Preferred an appeal before Punjab Service Tribunal--Petitioner being retired person does not fall within definition of employee given in S. 2(h) and therefore, had no remedy of appeal--PEEDA Act was not applicable to petitioner and respondent by initiating proceedings against petitioner went out of law and exercised a jurisdiction not vested in him by law--It is settled principle of law that High Court might y control action of an administrative or executive officer by an appropriate order. [P. 423] B

Dr. Ehsan-ul-Haq Khan, Advocate for Petitioners.

Mr. Shahid Mubeen, Addl. A.G. for Respondent No. 1.

Date of hearing: 30.5.2013.

Judgment

The petitioner, Muhammad Siddique, through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has called in question the show-cause Notice No. 1582/EC dated 22.12.2010 issued by the respondent under the provisions of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 and Notice No. 998/AC dated 31.12.2010 for depositing Rs.2550/- in the Government Treasury.

1. It has been stated in the petition that the petitioner after having rendered service of 37 years 5 months and 11 days stood retired on 14.5.2004 as Forest Guard from the Forestry, Wildlife and Fisheries Department, Government of the Punjab and the Competent Authority released his pension vide Pension Payment Order dated 11.06.2004; that consequent upon sanction of pension and after a lapse of about four years, the respondent, under the provisions of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (PEEDA) issued a notice dated 22.12.2010 whereby the petitioner was called upon to show-cause as to why one or more of the penalties as prescribed in Section 4 of the PEEDA be not imposed in respect of the allegation set out therein; that on 31.12.2010 the respondent issued another Notice No. 998/AC whereby the petitioner was asked to deposit Rs. 2550/- in the Government treasury; and, that the above said notices are void as the same have been issued without lawful authority and jurisdiction.

2. In response to notice issued by this Court the respondent has submitted parawise comments in which with respect to show-cause notice dated 22.12.2010 it has been stated that petitioner while posted at Renala Forest Range got registered FIR No. 548/2002 dated 17.12.2002 at Police Station Saddar Renalakhurd, in respect of theft of trees worth valuing Rs. 70,000/- which was filed by the Court on 16.10.2006 due to non-prosecution by the petitioner. The Audit Party conducted the audit of the year 2003-04 and raised audit objection vide para No. 5.6.4/2003-04 about the above said government loss. In pursuance of above audit objection a show-cause notice dated 22.12.2010 has been issued to the petitioner. As regards recovery notice dated 31.12.2010, the respondent in his comments has submitted that the petitioner during service issued the damage report (i.e. forest case No. 199/2002-03) but he did not adopt any legal action in this regard and this inaction caused loss of Rs. 2550/-to the Government and resultantly in pursuance of Audit Para No. 14/2002-03 the proceedings were initiated under PEEDA and finally vide Order No. 160/OFD dated 24.6.2010 recovery of Rs. 2550/- was imposed on the petitioner.

3. The instant petition, with the concurrence of the learned counsel for the parties, is heard today as pacca matter.

4. It has been canvassed with vehemence by the learned counsel for the petitioner that the respondent after having sanctioned the petitioner's pension cannot initiate proceedings against the petitioner under PEEDA and, thus, the notices impugned in this petition have been issued without lawful authority and jurisdiction. Learned Addl. Advocate General controverts the above plea and submits that provisions of PEEDA are applicable to retired employees of government and, therefore, the notices, impugned in this petition, are valid. The question which requires determination in this petition is as to whether the respondent after the retirement of the petitioner could initiate proceedings under PEEDA and impose penalty upon him? The answer to this question is available in Section 1 and 21 of the PEEDA which read as under:--

"1. Short title, extent, commencement and application:

(1) This Act may be called the Punjab Employees Efficiency, Discipline and Accountability Act, 2006.

(2) It extends to the whole of the Punjab.

(3) It shall come into force at once.

(4) It shall apply to:--

(i) employees in government service;

(ii) employees in corporation service; and

(iii) retired employees of government and corporation service; provided that proceedings under this Act are initiated against them during their service or within one year of their retirement."

Section 21 of PEEDA is also relevant and the same reads as under:

"Proceedings under this Act.--Subject to this Act, all proceedings initiated against the employees having retired or in service, shall be governed by the provisions of this Act and the rules made thereunder:

Provided that in case of retired employee, the proceedings so initiated against him shall be finalized not later than two years of his retirement.

(2) The competent authority may by an order in writing, impose one or more penalties specified in clause (c) of Section 4, if the charge or charges are proved against the retired employee."

The afore-cited provisions evince that proceedings under PEEDA may be initiated against a retired employee of government provided the same are: (i) initiated against him during his service or within one year of his retirement; and, (ii) finalized not later than two years of his retirement. The time lag inserted in the above referred provision of law is manifestly intended to safeguard the interest of the pensioners so that the sword of Democles should not hang upon them for an indefinite period. It is an admitted fact that the petitioner stood retired as Forest Guard on 14.5.2004; the pension was sanctioned on 11.6.2004; and, the proceedings under PEEDA were initiated after a lapse of about four years, from the date of retirement, against the petitioner. In these attending circumstances the provisions of PEEDA were not applicable to the petitioner as neither the proceedings under PEEDA were initiated against him during his service nor within one year of his retirement. Thus, due to lapse of time the proceedings under the PEEDA could not be initiated against the petitioner and resultantly no punishment could be inflicted thereunder.

1. Learned Addl. Advocate General, Punjab by relying upon Notification No. FD(M-REC)2-18/2001 (Advice) dated 19.11.2001 issued by the Finance Department, Government of the Punjab has contended that cases where any audit para is pending against the retiring government servant the pension for such employee is not withheld and the same is released after obtaining an undertaking on the stamp paper from the retiring government servant to the effect that in case the recovery is established at any stage against him then he will be liable to pay the amount of recovery. He submitted that in pursuance of above said notification the petitioner also executed an undertaking and made himself liable for any arrears against him; and, thus notwithstanding the lapse of four years the respondent in pursuance of Audit Paras was well within his right to effect recovery of disputed amount from the petitioner. The Notification relied upon by the learned Addl. Advocate General reads as under:--

"No:FD(M-Rec)2-18/2001(Advice)

GOVERNMENT OF THE PUNJAB

FINANCE DEPARTMENT

November 19, 2001

To, All Administrative Secretaries, Government of the Punjab.

Subj: GRANT OF NDC TO RETIRING GOVERNMENT SERVANTS INVOLVED IN MISAPPROPRIATION/EXBEZZLEMENT & IRREGULARITIES ETC.

Reference subject cited above.

1. The instructions issued by Finance Department vide No. FD(M-11)-10/98-2000(P), dated 11.7.2000 provide guide lines to the departments that the government losses pointed out in the audit paras should be finalized well before the retirement of the employee concerned. Further to ensure that No Demand Certificate should not be issued to officials involved in audit para/observation in connection with the financial irregularities.

2. It has been observed that amount mentioned in the audit para relating to the retiring government servants is with-held from commuted pension of retired government servant till the settlement of audit para. The D.G. Civil Audit has also mentioned that with-holding of pension case of an employee for clearance of audit para/report relating to his tenure of posting, is unfair unless the personal involvement of an employee is established.

3. It is, therefore, clarified that in cases where any audit para is pending against the retiring government servants the pension for such employees may not be with-held and an undertaking on the stamp paper may be obtained from the retiring government servants that in case the recovery is established at any stage against the individual then he will be liable to pay the amount of recovery.

Sd/-

(Karim Bakhsh Abid)

Addl. Finance Secy. (Monitoring)."

A bare perusal of the above said notification reveals that in respect of issuance of No Demand Certificate (NDC) for the purpose of release of pension the following guidelines have been provided to the Government Departments:

(i) the Government losses pointed out in the audit paras should be finalized well before the retirement of an employee;

(ii) No Demand Certificate should not be issued to officials involved in audit para/observation in connection with the financial irregularities; and

(iii) where any audit para is pending against the retiring government servant the pension for such an employee may not be withheld and an undertaking on the stamp paper may be obtained from the retiring government servant that in case a recovery is established at any stage against the individual then he will be liable to pay the amount of recovery.

In the case in hand, no audit para in respect of financial irregularities was pending against the petitioner at the time of his retirement and, therefore, No Demand Certificate (NDC) was issued for the sanction of pension. Needless to observe here that allegations on the basis of which impugned notices have been issued neither pertain to misappropriation/embezzlement and financial irregularities nor the same can be attributed to the petitioner as they relate to departmental inaction/slackness/negligence for the reason that after retirement of the petitioner, it was the duty of his successor to pursue the criminal cases i.e. FIR No. 548/2002; and, forest case No. 199/2002-03. Without delving into the issue as to whether the allegations levelled against the petitioner constitute "misconduct"' within the contemplation of Section 2(n) of PEEDA, it is suffice to say that the respondent by absolving the successor incumbent and relying upon the above said notification dated 19.11.2001 could not saddle the petitioner with the responsibility/ losses which were determined after the sanction of his pension.

1. It is well established principle that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its power under any other rule, and the validity of the impugned order should be judged on a consideration of its substance and not of its form. The principle is that the Court must ascribe the act of a public servant to an actual existing authority under which it would have validity rather than to one under which it would be void. (See "P. Balakotaiah Vs. Union of India and others" AIR 1958 SC 232 at p. 236). Being conscious of above said principle of law, I asked the learned Addl. Advocate General to cite any provision of law under which disciplinary proceedings could be initiated and penalty could be imposed on the petitioner. In response to above query, learned Addl. Advocate General referred Rule 1.8 of the Punjab Civil Service Pension Rules, 1963. It is necessary to set out in extenso Rule. 1.8 which reads as under:

"1.8 (a) Good conduct is an implied condition of every kind of pension. Government may withhold or withdraw a pension or any part of it if the pensioner be convicted of serious crime or be found to have been guilty of grave misconduct either during or after the completion of his service, provided that before any order to this effect is issued, (the pension sanctioning authority shall give full opportunity of to the pensioner to vindicate his position).

(b) Government reserves to themselves the right of recovery from the pension of Government pensioner on account of losses found in judicial or departmental proceedings to have been caused to Government by the negligence, or fraud of such Government pensioner during his service, provided that such departmental proceedings shall not be instituted after more than a year from the date of retirement of the Government pensioner.

(Note: If the departmental proceedings are not completed within one year after retirement of the government servant, he may be allowed to draw up to 80% or less of full pension so as to ensure that government loss in full is recovered from the balance. In the case of judicial proceedings, judgment of the Court may be awaited. If the proceedings are delayed beyond one year after retirement, reduced pension may be allowed as in the case of pensioners facing departmental proceedings.}

(c) In case the amount of pension granted to a government servant be afterwards found to be in excess of that to which he is entitled under the rules, he shall be called upon to refund such excess."

A plain reading of both clauses (a) and (b) of above cited rule would however, make it at once clear that each clause is a self-contained and independent provision designed to cover two entirely different situations. Under clause (a) maintenance of "good conduct" is made an inseparable condition for the grant or continuance of pension to a government servant and the government reserves to itself plenary power to withhold or withdraw a pension or any part thereof if the pensioner is convicted for serious crime or found guilty of grave misconduct whether during or after completion of his service. Admittedly clause (a) is not attracted to the facts of instant case as the petitioner has neither been convicted for serious crime nor found guilty of grave misconduct during or after completion of his service. Clause (b) of Rule 1.8, however, empowers the government to order recovery from the pension of the whole or any part of any pecuniary loss caused to the government if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct or negligence during his service. This clause also does not rescue the respondent as neither the petitioner during his service was found, in judicial or departmental proceedings, guilty of causing losses due to his negligence or fraud nor any departmental proceedings were initiated against the petitioner within a year from the date of his retirement and this view finds support from the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case of The Government of NWFP through Secretary of the Government NWFP Communication and Works Department, Peshawar Vs. Muhammad Said Khan and another (PLD 1973 SC 514) and relevant extract whereof reads as under:

"It must now be taken as well-settled that a person who enters Government service has also something to look forward after his retirement, to what are called retirement benefits, grant of pension being the most valuable of such benefits. It is equally well-settled that pension like salary of a civil servant is no longer a bounty but is a right acquired after putting in satisfactory service for the prescribed minimum period. A fortiori, it cannot be reduced or refused arbitrarily except to the extent and in the manner provided in the relevant rules. Conversely full pension admissible under the rules is not be given as a matter of course unless the service rendered has been duly approved (See Art. 470, Civil Service Regulations). It is equally well settled that if the service has not been thoroughly satisfactory, the authority sanctioning the pension is empowered under the said Article to make such reduction in the amount as it may deem proper. This power is however exercisable only before pension is actually sanctioned."

1. The learned Addl. Advocate General also raised an objection regarding the maintainability of this petition. In this context he submitted that the respondent under the provisions of PEEDA passed an Order No. 16O/OFD dated 24.06.2010 and imposed a penalty of recovery of Rs.2550/-; that the Notice No. 998/AC was issued for the implementation of above said order; and, that against order dated 24.6.2010 the petitioner had the remedy of appeal under Section 19 of the PEEDA before the Punjab Service Tribunal. The objection raised by the learned Addl. Advocate General requires appraisal of Section 19 of PEEDA which reads as under:

"19. Appeal before Punjab Service Tribunal.--(1) Notwithstanding anything contained in any other law for the time being in force, any employee aggrieved by any final order passed under Section 16 or Section 17 may, within thirty days from the date of communication of the order, prefer an appeal to the Punjab Service Tribunal established under the Punjab Service Tribunals Act, 1974 (Pb. Act, IX of 1974).

(2) If a decision on a departmental appeal or review petition, as the case may be, filed under Section 16 is not received within a period of sixty days of filing thereof, the affected employee may file an appeal in the Punjab Service Tribunal within a period of thirty days of the expiry of the aforesaid period, whereafter, the authority with whom the department appeal or review is pending, shall not take any further action."

The reading of above said Section 19 unfolds that any employee aggrieved by any final order under Section 16 or Section 17 may, within thirty days from the date of communication of the order, prefer an appeal to the Punjab Service Tribunal. The word "employee" has been defined in Section 2(h) of the PEEDA and the same is reproduced below for facility of reference:

"(h) "employee" means a person:--

(i) in the employment of a corporation, corporate body, autonomous body, authority, statutory body or any other organization or institution set up, established, owned, managed or controlled by the Government, by or under any law for the time being in force or a body or organization in which the Government has a controlling share or interest and includes the chairman and the chief executive and the holder of any other office therein; and

(ii) In government service or who is a member of a civil service of the province or who holds a civil post in connection with the affairs of the province or any employee serving in any Court or tribunal set up or established by the Government, but does not include a Judge of the High Court or any Court subordinate to the High Court, or any employee of such Courts;"

The cumulative reading of Section 19 and Section 2(h)(ii) leads to irresistible conclusion that only a person in government service or who is a member of a civil service of the province or who holds a civil post in connection with the affairs of the province or any employee serving in any Court or tribunal being aggrieved by an order passed under Section 16 or Section 17 may prefer an appeal before the Punjab Service Tribunal. The petitioner being a retired person does not fall within the definition of "employee" given in Section 2(h) and, therefore, had no remedy of appeal as canvassed by the learned Addl. Advocate General. In the case in hand, as stated above, the PEEDA was not applicable to the petitioner and, therefore, the respondent by initiating the proceedings thereunder against the petitioner went out of the law and exercised a jurisdiction not vested in him by law. It is settled principle of law that the High Court may control action of an administrative or executive officer by an appropriate order if he:

(a) goes out of law, i.e. exercises jurisdiction not vested in him by law;

(b) wrongly denies or omits to exercise a jurisdiction;

(c) where the law under which he acts prescribes the manner in which he is to act, materially departs from that law.

Thus this Court can entertain this petition as the orders/notices impugned therein are void ab initio.

1. In view of above, this petition is accepted and the impugned show-cause Notice No. 1582/EC dated 22.12.2010 and Notice No. 998/AC dated 31.12.2010, both issued by the respondent, are set aside and declared to have been issued without lawful authority and of no legal effect.

(R.A.) Petition accepted

PLJ 2013 Lahore 424

Present: Shahid Waheed, J.

Syed MUSHTAQ HUSSAIN BUKHARI--Petitioner

versus

PEPCO, etc.--Respondents

W.P. No. 7539 of 2013, heard on 29.5.2013.

Judicial Review--

----Scope of--Reappraise and review material touching question of performance--It is true that judicial review of matters that fall in realm of contracts is also available before superior Courts but scope of any such review is not all pervasive--It does not extend to Court substituting its view for that taken by decision making authority--Judicial review is not so much with correctness of ultimate decision as it is with decision making process unless of course decision itself is so perverse or irrational or in such outrageous defiance of logic that person taking decision can be said to have taken leave senses. [Pp. 427 & 429] A & B

AIR 2010 SC 463 & 2013 SCMR 455, rel.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Service contract was terminated--Sought for issuance of direction for regularizations of service--There is no doubt that if a person is employed on contract basis and if terms of employment provide manner of termination of his service, same can be terminated in terms thereof--Authority in exercise of condition of service was terminated the services of petitioner without any stigma--Petitioner having entered into contract of service had not vested right to seek regularization of his employment, which was discretionary with the master--Master is well with his right to retain or dispense with service of an employee on basis of satisfactory or performance--Petitioner after having accepted conditions of service had no locus standi to file constitutional petition seeking writs of prohibition and mandamus to authority to refrain from terminating his service and to retain on his existing post on regular basis--Petition was dismissed. [P. 427] C & H

2005 SCMR 642, PLD 2010 SC 841, 2011 PLC (CS) 623 & 2013 SCMR 304, rel.

Master and Servant--

----Rules of PEPCO--Non-statutory--Relationship between petitioner and company was of master and servant--If master rightfully ends the contract, there can be no complaint--If master wrongfully ends contract, then servant can pursue a claim for damages--So, even if master wrongfully dismisses servant in breach of contract, employment was effectively terminated. [P. 428] D

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Writ of mandamus--Service contract was terminated--Prayed for issuance of direction for regularizations of his service--Question of--Whether termination of contractual appointment stands vitiated by any legal infirmity to call for interference--Maintainability of writ of mandamus--Validity--It is also well settled principle of law that contract employee cannot file a writ petition to seek redress in respect of grievance relating to terms and conditions of service--Appointment of petitioner was contractual in nature and there is no statutory obligation as between company and petitioner--Any duty or obligation falling upon public servant out of contract entered into by him as such public servant cannot be enforced by machinery of a writ under Art. 199 of Constitution--Petition was dismissed. [P. 429] E, F & G

PLD 1962 SC 108, 1984 CLC 2168 & 1987 MLD 153, rel.

Mr. Khalid Khan, Advocate for Petitioner.

Mr. Muhammad Ilyas Khan, Advocate for Respondent No. 1.

Mr. Salman Mansoor, Advocate for Respondent No. 2.

Date of hearing: 29.5.2013.

Judgment

The Petitioner, Syed Mushtaq Hussain Bukhari, through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has called in question the notice dated 28th February, 2013 whereby his service contract has been terminated; and, prayed for the issuance of direction to the respondents for regularizations of his service as Director Finance of the Multan Electric Power Company (MEPCO).

1. Briefly the facts of the case are that the Chief Executive Officer, Pakistan Electric Power Company (PEPCO), through an advertisement, which appeared in daily Dawn dated 21st July, 2003, invited applications for appointment to the post of Finance Director in Hyderabad Electric Supply Company (HESCO) and the Multan Electric Power Company (MEPCO) on contract basis. The petitioner being Fellow of Chartered Accountancy (FCA) ventured his application for the post of Finance Director in MEPCO. The petitioner was found suitable and, therefore, the Chief Executive Officer PEPCO vide Letter No. 2684-86/PEPCO/CEO/DDA/PF-138 dated 30th October, 2003 ("Offer Letter") offered him the position of Finance Director (MEPCO) on contract basis for a period of two years. The petitioner after accepting the terms and conditions of the Offer Letter assumed the charge of the said post. The tenure of petitioner's appointment-contract was extended from time to time; and, finally in pursuance of terms and conditions contained in the Offer Letter, a Notice No. 19158-63 CE/MEPCO/EA-I/PF-53 dated 28th February, 2013 ("Termination Letter") was served upon the petitioner whereby his services stood terminated with effect from 31st March, 2013.

2. Learned counsel for the petitioner through the instant petition has asked for an order in the nature of mandamus under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for quashing the Termination Letter on the plea that the same is unreasonable, violative of rules, policy and law applicable thereto.

3. The question which requires determination by this Court is as to whether the termination of contractual appointment stands vitiated by any legal infirmity to call for interference under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. This question has to be answered in two distinct parts. The first part relates to the aspect whether the Termination Letter issued by the respondent-Company is amenable to judicial review and if so what is the scope of such review. The second part of the question is whether on the standards of judicial review applicable to it, the Termination Letter is seen to be suffering from any legal infirmity. At the outset it is pertinent to mention that there is no challenge before this Court as to the competence of the authority that issued the Termination Letter. What is contended on behalf of the petitioner is that the respondent-company did not act fairly and objectively in taking the decision to terminate the contract. It is contended that the decision to terminate the contractual employment is not a fair and reasonable decision having regard to the fact that the petitioner had performed well during his tenure; and, the requirement of the Company to have Director Finance continues to subsist. In substance, the contention urged on behalf of the petitioner is that this Court should reappraise and review the material touching the question of performance of the petitioner as Director Finance. I am afraid this cannot be done by this Court. It is true that judicial review of matters that fall in the realm of contracts is also available before the superior Courts, but the scope of any such review is not all pervasive. It does not extend to the Court substituting its own view for that taken by the decision-making authority. The legal position is settled that judicial review is not so much concerned with the correctness of the ultimate decision as it is with the decision-making process unless of course the decision itself is so perverse or irrational or in such outrageous defiance of logic that the person taking the decision can be said to have taken leave of his senses. In this regard reference may be made to the cases of "State of Maharashtra vs. Prakas Prahlad Patil" (AIR 2010 SC 463) and "Dr. Akhtar Hussain Khan and others vs. Federation of Pakistan and others" (2012 SCMR 455).

4. The services of the petitioner were governed by the terms and conditions of Offer Letter dated 30.10.2003 which, inter alia, contained the following condition:

"This contract may be terminated by either party giving the other party one month's notice or one month's salary in lieu thereof Notwithstanding the foregoing your services can be terminated by Chairman PEPCO and / or Chairman/ Chief Executive Officer of MEPCO without any notice if you are found guilty of dishonesty, misconduct negligence, indiscipline or breach of trust."

There is no doubt that if a person is employed on contract basis and if the terms of employment provide the manner of termination of his services, the same can be terminated in terms thereof. In the case in hand the competent authority in exercise of above referred condition of service has terminated the services of the petitioner without any stigma. Thus the termination letter, impugned in this petition, in view of the principle laid down by the Hon'ble Supreme Court in the cases The Secretary, Government of the Punjab, through Secretary Health Department, Lahore and others v. Riaz ul Haq (1997 SCMR 1552) and Agha Salim Khurshid and another v. Federation of Pakistan and others (1998 SCMR 1930) does not suffer from any infirmity.

1. The PEPCO is a Government owned Management Company which has been established to manage re-structuring of WAPDA and corporatization, and, commercialization of its Generation, Transmission and Distribution Companies. The Hon'ble Supreme Court of Pakistan in the case of Brig (R) Sakhi Marian, CEO, PESCO, Peshawar v. Managing Director PEPCO, Lahore and others (2009 SCMR 708) has held that rules of PEPCO are non-statutory. Thus, the relationship between the petitioner and respondent-company is of master and servant. If the master rightfully ends the contract, there can be no complaint. If the master wrongfully ends the contract, then the servant can pursue a claim for damages. So, even if the master wrongfully dismisses the servant in breach of the contract, the employment is effectively terminated. Jenkins, L.J., in his dissenting judgment, in Vine vs. National Dock Labour Board [(1956)1 AER 1], which was approved in appeal by the House of Lords in 1956(3) AER 939 stated:

"In the ordinary course of master and servant, however, the repudiation or the wrongful dismissal puts an end to the contract, and a claim for damages arise. It is necessarily a claim for damages and nothing more. The nature of the bargain is such that it can be nothing more".

Similarly, in Ridge v. Balowin (1963) 2 WLR 935, Lord Reid said in his speech:

"The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence; it depends on whether the facts empowering at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under same statutory or other restrictions as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them?

As a consequence, if an employee is dismissed in breach of a contractual requirement, he may recover damages and cannot claim re-instatement, whatever hardship he suffers as a result of his dismissal. In this regard reliance may be placed on Addis v. Gramophone Co. Ltd (1909) AC 488, Vide Collier v. Sunday Referee Publishing Co. Ltd., [1940(4) AII.E.R. 234] Rogan-Gardiner v. Woolworths Ltd. (2010) WASC 290), Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhammad Azam Chattha (2013 SCMR 120)

1. It is also well settled principle of law that a contract employee cannot file a writ petition to seek redress in respect of grievance relating to terms and conditions of service. The reason is that a writ of mandamus may be granted only in a case where there is statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge that statutory obligation. The chief function of the writ is to compel the performance of public duties prescribed by statute and to keep the subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. In the present case, the appointment of the petitioner as Director Finance is contractual in nature and there is no statutory obligation as between the respondent-company and the petitioner. In my view, any duty or obligation falling upon a public servant out of a contract entered into by him as such public servant cannot be enforced by the machinery of a writ under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. This view finds support from the case of M/s. Momin Motor Company vs Regional Transportation Authority Dacca and others" (PLD 1962 S.C 108) wherein Hon'ble Supreme Court has held contractual rights are not enforceable by recourse to writ jurisdiction; Major (R) Khalil ur Rehman v. Overseas Pakistan Foundation and others (1984 CLC 2168) wherein it was observed that contractual obligation and liabilities relating to a service matter cannot be enforced by resort to writ jurisdiction; and M. A Rashid v. Province of Punjab and 2 others (1987 MLD 153) wherein it was held that the constitutional jurisdiction cannot be exercised in respect of petitioner whose services have been terminated in accordance with terms of his contract.

2. As regards prayer for issuance of direction to the respondents for regularization of service of the petitioner as Director Finance, it is suffice to say that the petitioner having entered into contract of service has no vested right to seek regularization of his employment, which is discretionary with the Master. The Master is well within his right to retain or dispense with services of an employee on the basis of satisfactory or otherwise performance. As per settled principle of law, the petitioner after having accepted the conditions of service has no locus standi to file constitutional petition seeking writs of prohibition and mandamus to authority to refrain from terminating his services and to retain him on his existing post on regular basis. In this regard reliance may be placed on the cases of "Government of Balochistan, Department of Health through Secretary, Civil Secretariat, Quetta v. Dr. Zahida Kakar and 43 others (2005 SCMR 642), Abid Iqbal Hafiz and others v. Secretary, Public Prosecution Department, Government of the Punjab, Lahore and others" (PLD 2010 S.C 841), "Pakistan Telecommunication Co. Ltd through Chairman vs. Iqbal Nasir and others" (2011 PLC (CS) 623) and HRC No. 44517-K/2010 regarding Regularization of the contract Employees of Zakat Department (2013 SCMR 304).

3. This petition sans merit and is accordingly dismissed.

(R.A.) Petition dismissed

PLJ 2013 Lahore 430

Present: Shahid Waheed, J.

NAEEM TARIQ--Petitioner

versus

RPO SHEIKHUPURA, etc.--Respondents

W.P. No. 14783 of 2013, decided on 13.6.2013.

Constitution of Pakistan, 1973--

----Art. 199--Punjab Police (Efficiency & Discipline) Rules, 1975--Scope--Constitutional Petition--Disciplinary proceedings--Right to assail legality of impugned order before High Court--Validity--Departmental proceedings were initiated against sub-inspector under provisions of Punjab Police (Efficiency and Discipline) Rules, 1975 which did not confer any right on complainant to assail legality of any order passed by competent authority--Purpose of disciplinary proceedings was to examine desirability of a civil servant to continue in service and such any order passed in pursuance thereof does not injure rights of complaint--Petition was dismissed. [P. 431] A

Mr. Muhammad Ahsan Farooq, Advocate for Petitioner.

Date of hearing: 13.6.2013.

Order

The petitioner, Naeem Tariq, through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has called in question the Order No. 1686-89/PA dated 20.2.2013 passed by the District Police Officer, Nankana Sahib, whereby Ghulam Rasool, Sub Inspector has been exonerated from the charges.

1. The petitioner filed an application before the Regional Police Officer, Sheikhupura Range (Respondent No. 1) for initiation of departmental disciplinary proceedings against Ghulam Rasool, Sub Inspector. Pursuant to above said application, the disciplinary proceedings were initiated against Ghulam Rasool, S.I. under the provisions of the Punjab Police (Efficiency & Discipline) Rules, 1975. After holding regular inquiry, the District Police Officer, Nankana Sahib vide Order No. 1686-89/PA dated 20.2.2013 exonerated Ghulam Rasool, Sub Inspector from the charges. Hence this petition.

2. At the outset of hearing, I asked the learned counsel about the locus-standi of the petitioner to file the instant petition against the order dated 20.2.2013 whereby Ghulam Rasool, Sub Inspector has been exonerated from the charges. In response to the query, he submitted that being a complainant of the disciplinary proceedings, the petitioner has a right to assail the legality of the impugned order before this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

3. I am afraid the contention raised by the learned counsel for the petitioner has no force. Although the departmental disciplinary proceedings were initiated against Ghulam Rasool, Sub Inspector on the complaint of the petitioner, yet he has no right to file the instant petition before this Court for assailing the legality of the impugned order dated 20.2.2013. The order in the nature of mandamus may be issued: (i) in favour of a person who establishes a legal right in himself; and, (ii) against a person who has a legal duty to perform but has failed and/or neglected to do so. In this regard guidance may be had from the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case of Hafiz Hamd Ullah versus Saif Ullah Khan and other' (PLD 2007 SC 52). The legal right is one which flows from a statute. In the instant case, the departmental proceedings were initiated against Ghulam Rasool, Sub Inspector, under the provisions of Punjab Police (Efficiency & Discipline) Rules, 1975 which do not confer any right on the complainant to assail the legality of any order passed by the Competent Authority. The purpose of disciplinary proceedings is to examine the desirability of a civil servant to continue in service and, thus, any order passed in pursuance thereof does not injure the rights of complainant.

4. The petitioner has no locus standi to file the petition, therefore, the same is dismissed in limine.

(R.A.) Petition dismissed

PLJ 2013 Lahore 432

Present: Shahid Waheed, J.

FAQIR MUHAMMAD etc.--Petitioners

versus

MUHAMMAD ASHRAF--Respondent

C.R. No. 1950 of 2010, heard on 17.6.2013.

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

----S. 13--Civil Procedure Code, (V of 1908) S. 115--Civil revision--Suit for possession through preemption, decreed--Appeal was dismissed--Challenge to--Talb-e-muwathibat was not performed--Detail of making talb-e-muwathibat--Principle of law--Question of--Whether he had fulfilled requirement of talbs--Determination--It is well settled that mentioning of date, place, time and name of witnesses regarding talb-e-muwathibat in suit for preemption is sine qua non--Assertions made in plaint statement of plaintiff and statement of prosecution witness showed contradiction with regard to time of making talb-e-muwathibat and lead to conclusion that plaintiff did not make talb-e-muwathibat in accordance with S. 13 of Punjab Preemption Act--Findings of Courts below were reversed as same suffer from misreading and non-reading of evidence available on record--Plaintiff was held not entitled to a decree as prayed for--Petition was allowed. [Pp. 434 & 435] A & B

2010 SCMR 1087, ref.

Mr. Salah-ud-Din Siddiqui, Advocate for Petitioners.

Mr. Zubda-tul-Hussain, Advocate for Respondent.

Date of hearing: 17.6.2013.

Judgment

Challenge in this Civil Revision Petition under Section 115, CPC is to the judgment and decree dated 20.4.2010 passed by the learned Additional District Judge, Jaranwala who affirmed the judgment and decree dated 02.04.2009 passed by the learned Civil Judge 1st Class, Jaranwala, whereby the suit filed by the predecessor-in-interest of respondents for possession through Pre-emption was decreed.

1. Briefly, the facts of the case are that the suit land was purchased by the petitioners from Mehtab Bibi, Muhammad Ali, Muhammad Siddique, Muhammad Rafique and Muhammad Bashir for a consideration of Rs.900,000/- vide registered sale deed No. 150/1136 dated 14.1.2003. As per plaint, Muhammad Ashraf (respondent/ plaintiff) came to know about the above said sale on 20.1.2003 at 05.00 p.m. when he came back from Okara, through Abdul Rasheed (PW-3) in the presence of Muhammad Latif and Muhammad Bilal; that on coming to know about the sale, the respondent/plaintiff immediately made declaration that he would exercise the right of pre-emption in respect of the suit land; that the sale price was actually Rs.600,000/- and, that on 23.01.2003 notice of Talb-e-Ishad were sent to the petitioners. The respondent/plaintiff on 8.5.2003 filed suit for possession through pre-emption which was contested by the petitioners by filing written statement. On divergent pleadings of the parties, the learned trial Court framed the following issues:--

2. Whether the plaintiff has superior right of pre-emption over the suit property? OPP

3. Whether the plaintiff has fulfilled the requirement of Talbs? OPP.

4. Whether the actual price of the suit land is Rs.6,00,000/- and the sale price mentioned in the registered deed i.e. 9,00,000/- is fictitious? OPP.

5. Whether the plaintiff is entitled to a decree is prayed for? OPP.

6. Whether the suit is not maintainable in its present form? OPD.

7. Whether the suit is time barred? OPD.

8. Whether the plaintiff is estopped by his words and conduct to file the instant suit? OPD.

9. Whether the suit is baseless, false and frivolous, hence, the defendants are entitled for the recovery of special costs? OPD

10. Relief.

11. Parties to the suit in respect of their respective claims produced oral as well documentary evidence before the learned trial Court. After recording evidence, the learned trial Court decreed the suit vide judgment and decree dated 02.04.2009. Feeling aggrieved, the petitioners preferred an appeal before the learned Additional District Judge, Jaranwala and the same was dismissed vide judgment and decree dated 20.4.2010. Hence, this petition.

12. Learned counsel for the petitioners in support of this petition has submitted that judgments and decrees of the Courts below suffer from misreading and non-reading of evidence available on record; and that the respondent-plaintiff did not make Talb-e-Muwathibat in accordance with Section 13 of the Punjab Pre-emption Act and evidence to this effect was not properly considered by the Courts below while passing the impugned judgments and decrees.

13. Conversely learned counsel for the respondents-plaintiff vehemently opposes this petition and submits that the respondent-plaintiff made Talbs in accordance with law and, therefore, the suit was rightly decreed by the Courts below. He further contended that mere difference of time stated by the witnesses with regard to the making of Talbs is a natural variation due to lapse of time and would not be fatal to pre-emption cause. In this regard, he relied upon `Abdul Latif alias Muhammad Latif alias Babu versus Dil Mir and others' (2010 SCMR 1087).

14. I have heard the learned counsel for the parties and perused the record.

15. The pivotal issue in the instant case was Issue No. 2 whereby the respondent-plaintiff was required to prove as to whether he had fulfilled the requirement of Talbs. It is now well settled that mentioning of date, place, time and name of witnesses regarding Talb-e-Muwathibat in a suit or preemption is sine-qua-non. The respondent-plaintiff, being conscious of the above said principle of law, stated the details of making Talb-e-Muwathibat in para 5 of the plaint which read as under:--

In order to prove the assertions made in the above cited paragraph, the respondent-plaintiff appeared before the learned trial Court as PW-2. The respondent-plaintiff in his examination-in-chief stated as follows:--

However, during the course of cross-examination, the respondent-plaintiff made the following statement:--

The petitioner in support of his contentions also produced Abdul Rasheed as PW-3 who in his examination-in-chief stated as follows:--

The above said witness during his cross-examination stated as follows:--

In view of the above peculiar facts of the instant case and the above contradictory statements, the reliance of learned counsel for the respondents on the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case of `Abdul Latif alias Muhammad Latif alias Babu versus Dil Mir and others' (2010 SCMR 1087) is inapt. The Hon'ble Supreme Court in a recent Judgment rendered in the case of Shahid Mehmood Vs. Sharafat Ali (C.P. No. 2210-L/2012 decided on 11.3.2013) has held that principle laid down in the case of Abdul Latif would not apply to the case of vital discrepancies and contradictions. The assertions made in the plaint; the statement of the plaintiff/respondent; and, statement of Abdul Rasheed (PW-3) clearly show contradiction with regard to time of making Talb-e-Muwathibat and lead me to the conclusion that the plaintiff/respondent did not make Talb-e-Muwathibat in accordance with Section 13 of the Punjab Pre-emption Act, 1991. Thus, findings of the Courts below in respect of Issue No. 2 are reversed as the same suffer from misreading and non-reading of evidence available on record. Resultantly the respondent-plaintiff is held not entitled to a decree as prayed for. In view of above, there is no need to discuss other issues.

1. In the light of foregoing discussion, this petition is allowed, the judgments and decrees of the Courts below are set aside and resultantly suit of the respondent-plaintiff is dismissed with no order as to costs.

(R.A.) Petition allowed

PLJ 2013 Lahore 436

Present: Sh. Azmat Saeed, C.J.

MUHAMMAD MUNAWAR JANG SHER QADARI--Petitioner

versus

GOVERNMENT OF PUNJAB through Chief Secretary and 3 others--Respondents

W.P. No. 19417 of 2011, decided on 9.4.2012.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Selection process for appointment as DDA and ADA--Eligibility--LLB Degree as well as equivalent qualification--Validity--High Court had no hesitation in holding that condition of 50% aggregate marks as prescribed is applicable only to equivalent qualification recognized by HEC and not candidates having LLB Degree--By accepting instant petition it was held that candidate possessing LLB Degree with requisite active practice were eligible to be considered for appointment even if they had not succeeded in obtaining 50% aggregate marks--Petition was accepted. [P. 438] A

1993 MLD 399 Kar & 2012 CLC 54 rel.

Mr. Shahram Sarwar Ch., Mr. Mushtaq Ahmed Mohal and Mr. Waqar Ahmad Hanjra, Advocates for Petitioner.

Mr. Muhammad Azeem Malik, Addl. A.G. and Mr. Muhammad Sultan, Dy. Director P.P.S.C. for Respondents.

Date of hearing: 5.4.2012.

Judgment

The petitioner who claims to hold LLB Degree has filed the captioned Constitutional Petition primarily praying that he be considered eligible to participate in the selection process for appointment as Deputy District Attorney and Assistant District Attorney.

1. Brief facts necessary for the adjudication of the lis at hand are that apparently on the requisition of the Punjab Government, Respondent No. 4 Punjab Public Service Commission on 7.8.2011 issued advertisement in the Press soliciting applications for appointments of DDA and ADA. The qualification/eligibility as specified in the advertisement relevant for adjudication of the instant writ petition reads as under:

"LLB or equivalent qualification (with 50% aggregate marks) recognized by the Higher Education Commission having four years active practice as an Advocate."

1. While it is the case of the petitioner that holding of LLB Degree with the requisite work experience is sufficient to become eligible to be considered for the appointments in question.

On the other hand it is case of the respondents that in addition to LLB Degree, petitioner must have also obtained 50% aggregate marks therein. In the above context, it is contended by the learned counsel for the petitioner that the condition of 50% aggregate marks would be applicable only to those having equivalent qualification and not the LLB Degree. In the alterative it is contended that for similar posts in the Prosecution Service of the Government of the Punjab of the same grade to appear before the same course, no such condition has been specified, hence, the condition is discriminatory.

1. The learned Additional Advocate General Punjab as well as the learned counsel for the respondents have controverted the contentions being raised on behalf of the petitioner. It is further contended that the word or' has been used in a conjunctive rather than disjunctive sense in the eligibility criteria reproduced ibid. In fact it is case of the respondents that wordor' should be read as `and'.

2. Heard. Record perused. The word `or' came up for interpretation before this Court in the case reported as 2002 CLC 54 Master Said Vs. Ch. Iftikhar Hussain, District Judge Jhang and others, wherein the learned Judge of this Court after quoting passages from treatise on the subject by Maxwell and Crawford held as under:

"From the above quoted passages from the above celebrated treatises on the interpretation of Statutes, it is evident that the words and' andor' are interchangeable. However, in ordinary uses the word and' is conjunctive and the wordor' is disjunctive. But to implement the legislative intent, it may become imperative to read and' in place of the conjunctionor' and vice versa. This cannot be done if the meaning of the relevant provision of the statute is clear or if the above construction will operate to change the meaning of the law."

1. In the case reported as 1993 MLD 399 (Karachi) Muhammad Sana Ullah Vs Allah Din it was held as under:

"The use of word or' signifies a disjunctive sense and it cannot be read asand' unless of course the context provides so. It, therefore, follows that the needs of the spouse' orchildren' could be independent from the needs of appellant"

1. Similar view was expressed in the case reported as 1986 CLC 1784 (Election Tribunal) Hakim Ali Bhatti Vs. Qazi Abdul Hakim and others.

2. Examining the qualification criteria at hand reproduced ibid in the light of the aforesaid judgments leads to an irresistible conclusion that word or' in the facts and circumstances of the case has been used in disjunctive sense. A candidate must either have LLB Degree or the equivalent qualification. It is nobody's case that such candidates must have an LLB Degree as well as equivalent qualification. Said equivalent qualification has been subjected to two riders, firstly, recognition by the Higher Education Commission and secondly the 50% aggregate marks. Latter conditionality cannot travel beyond the disjunctiveor' especially as two alternate separate and distinct qualifications have been set forth. Therefore, this Court has no hesitation in holding that the condition of 50% aggregate marks as prescribed is applicable only to the equivalent qualification recognized by the Higher Education Commission and not the candidates having the LLB Degree. Consequently, by accepting this petition it is held that the candidates possessing LLB Degree with requisite active practice are eligible to be considered for appointment even if they had not succeeded in obtaining 50% aggregate marks.

Petition accepted in terms articled ibid.

(R.A.) Petition accepted

PLJ 2013 Lahore 439 (DB) [Rawalpindi Bench Rawalpindi]

Present: Ijaz Ahmad and Ali Baqar Najafi, JJ.

FAUJI FOUNDATION--Appellant

versus

M/s. CHANAN DIN & others--Respondents

Regular First Appeal No. 226 of 2011, decided on 3.7.2013.

Arbitration Act, 1940 (X of 1940)--

----S. 17--Rule of Court--Charitable Trust was registered for welfare of ex-servicemen of Armed Forces of Pakistan--Contract for construction of Hospital was awarded to appellant--Construction work could not completed within stipulated period--Arbitration for resolution of dispute--Appointment of arbitrator--Time was essence of contract--Legality of award--Under Section 17 of Arbitration Act, 1940, an appeal shall lie on the ground that decree is in access of or not in accordance with award but such provision is attracted when Court found no reason either to remit or to set aside award--It was true that Court while examining correctness and legality of award did not act as a Court of appeal and could not undertake reappraisal of evidence recorded by arbitration in order to discern the error or infirmity in the award--When award was given by Arbitrator against terms of submissions made before him, adverse inference can be drawn against him. [P. 443] A

Arbitration Act, 1940 (X of 1940)--

----S. 14--Notice before sending award--Requirement of arbitration to send a notice to appellant--Misconducted proceedings--Nature of moral turpitude--Validity--In judicial sense the misconduct of an arbitrator means his failure to perform his essential duty resulting in substantial miscarriage of justice between parties. [P. 443] B

PLD 2006 SC 169 & PLD 1977 SC 237, fol.

Arbitration Act, 1940 (X of 1940)--

----S. 20(4)--Appointment of arbitrator--Arbitrator is not competent to enlarge scope of agreement between parties--Award was sent to Civil Court without its formal pronouncement--Decree was not sustainable in law--Validity--Judgment and decree based on award was beyond terms of reference for being without notice and was against clause 40-A of contract and was, therefore, not sustainable in eyes of law. [P. 443] C

1992 SCMR 1496, ref.

Mr. Muhammad Azam Chattha, Advocate for Appellant.

Mr. Waqar-ul-Haq Sheikh, Advocate for Respondents.

Date of hearing: 6.6.2013.

Judgment

Ali Baqar Najafi, J.--This regular first appeal is directed against the judgment and decree dated 20.09.2011 passed by the learned Civil Judge 1st Class, Rawalpindi, whereby the award dated 05.08.2010 given by the learned Arbitrator was made rule of the Court to the tune of Rs. 49,00,000/- along with the interest at the rate of 11 percent per annum.

1. Brief facts giving rise to the filing of this appeal are that the appellant is a Charitable Trust registered under Charitable Endowments Act, 1890 created for the welfare of ex-servicemen of the Armed Forces of Pakistan (Army, Navy and Air Force) in the fields of education, health and all other welfare activities including the widows and orphans of the Martyr (Shaheeds) Army Personnel. The appellant awarded contract for Rs. 2,66,92,065/- to the respondent for the construction of 200 beds Hospital at Fauji Foundation Medical Centre, Rawalpindi. The date of commencement of the contract was 12.09.1984 and its completion period was within 24 months. As the respondent could not complete the construction work till 30.11.1987, therefore, on his request three extensions of 14 months and 19 days in total were granted to the respondent. The work still remained incomplete and the respondent, again requested for 4th extension which was turned down as earlier extensions have earned bad name for the appellant and added to the miseries of the beneficiaries of the hospital.

2. Since the said contract contained the provisions of arbitration for resolution of the dispute, the respondent served a notice on the appellant and on 01.10.1987, whereby a claim of a sum of

Rs. 1,13,78,207/- was made and the appellant has also asked for the appointment of arbitrator. Consequently, an application under Section 20 of the Arbitration Act, 1940, for the appointment of arbitrator was moved to refer the matter to the arbitrator. With the agreement of the parties, initially, Mr. Justice (R) K.M.A Samdani, a former Judge of the Lahore High Court, Lahore, was appointed as Arbitrator vide order dated 04.12.1988 by the learned Civil Judge 1st Class, Rawalpindi. As the respondent submitted claim of Rs. 2,24,18,619/- instead of Rs. 1,13,78,207/- therefore, the learned Arbitrator conveyed through his letter dated 01.10.1987 to the learned Civil Judge that the matter was beyond his jurisdiction. On 09.01.1992 the learned Civil Judge allowed the application under Sections 32/33 of the Arbitration Act, 1940 directing the said arbitrator to consider all the claims submitted by the respondent. Being aggrieved, the appellant assailed the said order in Civil Revision No. 124 of 1992 which was allowed by this Court on 15.06.1995, whereby the order dated 09.01.1992 passed by the learned Civil Judge 1st Class, Rawalpindi was set aside. The reasons advanced by this Court were that vide clauses 69 & 72 of the condition of contract, only the claim of the respondent to the extent of Rs. 1,13,78,207/- will be considered by the arbitrator, who was otherwise not competent to enlarge the scope of agreement between the parties. Later, the said learned arbitrator was substituted by Mr. Justice (Retired) Ghulam Ahmad. However, upon showing no confidence Mr. Justice Akhtar Hassan was appointed as arbitrator. The latter sent his award dated 20.09.2011 to the Civil Court without its formal pronouncement. The learned Civil Court made the said award as rule of the Court on 05.08.2010 which is challenged in the instant appeal.

1. The learned counsel for the appellant submits that the impugned judgment and decree is not sustainable in law as the same is in violation of Section 20(4) of the Arbitration Act, 1940 as no reference was sent by the Civil Court to the learned arbitrator; that under Section 14 of the Act ibid the learned arbitrator was required to send a notice to the appellant before sending the award which was not complied with; that learned arbitrator has mis-conducted himself and mis-conducted the proceedings as apparent from the face of the award; that in Para-10 of the award the learned arbitrator has incorrectly mentioned that the witnesses of the respondent were cross-examined at length which fact is not reflected from the record; that vide clause 38 of the agreement the time was essence of the contract which aspect was ignored while delivering the award; that under Clause 48-A of the contract no escalation/ compensation could be awarded to the respondent-contractor; that the judgment rendered by this Court on 15.06.1995 in Civil Revision No. 124 of 1992 was ignored while passing the impugned judgment & decree whereby it was held that the scope of dispute was confined only to the amount for which notice under Section 69/72 of the condition of the contract was given to the appellant and no Court was competent to enlarge the scope of reference; that the findings on the differential amount of Rs. 4.9 millions was not based on any cogent evidence, as no issue in that respect was ever framed. Places reliance on Fauji Foundation and another vs Shamimur Rehman and (PLD 1983 SC 457) Shamim-ur-Rehman vs. Fauji Foundation-Rawalpindi and another (1992 SCMR 1496) and prays for setting aside the impugned judgment.

2. Conversely, learned counsel for the respondent submits that under Section 17 of the Arbitration Act, 1940 the appeal is not competent as the decree was passed exactly in accordance with the award; that the arbitration was convened on the basis of notices which were issued in accordance with the terms of reference; that another agreement dated 03.09.1984 had supplemented the earlier agreement whereby claim on the basis of escalation/compensation was made permissible; that the respondent accepted the contract with clear understanding that he will be fully protected; that the attitude of the appellant was adamant that they have failed to perform their part of the contract by fulfilling the responsibilities.

3. We have heard the learned counsel for the parties and perused the available record.

4. Although the time was essence of the contract, yet its period of 24 months was further extended to another 14 months and 19 days by the appellant at the request of the respondent. On the failure of the respondent to complete contract, (even after extended time), the work was completed by another contractor for which 03.05 million rupees was paid by the appellant. The award of the differential amount of 4.9 million was granted which was later made rule of the Court under Section 14 of the Arbitration Act, 1940; On the other hand, a perusal of Clause 40-A of the contract reveals that no claim for escalation/compensation due to rise in prices of material/labour and overhead will be acceptable by the employer for the completion of work. The respondent claim that this clause of the original contract was modified/diluted by a supplementary agreement dated 03.09.1984, is not correct. Last clause of the said agreement specifically stipulates that the employer agreed to pay to the contractor in consideration of the construction, completion, maintenance of the work, contract price, and time in the manner prescribed by the original contract. This means that clause 40-A expressly stipulates that no claim of escalation/compensation can be allowed. We rely on the judgment of the Honourable Supreme Court of Pakistan rendered in House Building Finance Corporation vs. Shahinshah Humayun Corporative House Building Society and others (1992 SCMR-19) wherein it is held that stipulation not expressed in a written contract was not to be implied merely because the Court thought that it would be reasonable thing to imply. It was observed as follows:--

"A stipulation not expressed in a written contract should not be implied merely because the Court thinks that it would be a reasonable thing to imply it. Such an implication can be made only on consideration of the terms of the contract in a reasonable manner and if the Court is satisfied that it should necessarily have been intended by the parties when the contract was made. In documents of contracts where terms and conditions have been exhaustively specified dealing with all possible future and foreseeable contingencies but if certain fundamental contingencies have been left out which necessarily in the context, facts and circumstances of the case should have been incorporated and can be spelt out, then the Court may imply such conditions."

1. The observation passed in Civil Revision No. 124 of 1992 vide order dated 26.03.1995 is to the extent that the agreement between the parties contained stipulation that contractor's claim would be confined only to the amount for which a notice under Clause 69 & 72 was given to the appellant, neither the Court nor the arbitrator was competent to enlarge the scope of the agreement or the application made under Section 20 of the Arbitration Act. This means that the award of differential amount between the contract given to the respondent and those mentioned in the contract given to the 3rd party was beyond the scope of jurisdiction of learned arbitrator. Additionally, Section 20 of the Arbitration Act requires that the Court shall issue notice to the parties to the agreement requiring them to file agreement and if no sufficient cause is shown, the Court shall order the agreement to be filed and make an order of reference to the arbitrator. This means that a notice in terms of reference to the arbitrator is the requirement of law, which was not complied with.

2. Under Section 17 of the Arbitration Act, 1940, an appeal shall lie on the ground that the decree is in access of or not in accordance with the award but this provision is attracted when the Court finds no reason either to remit or to set aside the award. However, we find reasons to differ with the learned Civil Judge. It is true that Court while examining the correctness and legality of award does not act as a Court of appeal and cannot undertake reappraisal of evidence recorded by the arbitrator in order to discern the error or infirmity in the award. But when the award was given by the Arbitrator against the terms of the submissions made before him, adverse inference can be drawn against him. Misconduct of proceedings was not only alleged but proved against the learned arbitrator, for which it does not necessarily imply anything in the nature of moral turpitude. In the judicial sense the misconduct of an arbitrator means his failure to perform his essential duty resulting in substantial miscarriage of justice between the parties. We follow the dictum laid down by the apex Court in Mian Corporation through Managing Partner vs. Messrs Lever Brothers of Pakistan Ltd. through General Sales Manager. Karachi (PLD 2006 SC 169) and Brooke Bond (Pakistan) Ltd. vs. Conciliator Appointed by the Government of Sindh and 6 others (PLD 1977 Supreme Court 237).

3. Even otherwise, it is not the function of the arbitrator to be influenced by his own imagination and opinion ignoring relevant clauses of the contract between the parties as he is required to apply already agreed clauses of the contract. We, therefore, are of the opinion that the judgment and decree based on award is beyond the terms of reference for being without notice and was against the clause 40-A of the contract and is therefore, not sustainable in the eyes of law. We may observe and adopt the observation given by the Hon'ble Supreme Court of Pakistan in the case cited Shamim-ur-Rehman vs. Fauji Foundation Rawalpindi and another (1992 SCMR 1496) that Islam protects trust funds more and its protection, retrieval is justified by all means.

4. For what has been discussed above, we allow this appeal, set aside the judgment passed by the learned trial Court and remand the case to the trial Court to decide it afresh in accordance with clear terms of reference and on the basis of contract between the parties.

(R.A.) Appeal allowed

PLJ 2013 Lahore 444 [Bahawalpur Bench Bahawalpur]

Present: Atir Mahmood, J.

Dr. MUHAMMAD JAVED ARIF--Petitioner

versus

PROVINCE OF PUNJAB, etc.--Respondents

W.P. No. 993 of 2013/BWP, heard on 13.6.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Appointment against post of Medical Officer demonstrator--Selected as reserve candidate--Awarding marks was incorrect for reason that petitioner cleared his examination in more than one attempt--Not entitled to grant of that one marks--Question of--Whether petitioner was eligible age--Subsequent to recruitment process--Validity--Filing of writ petition was an exercise in futility for simple reason that process of recruitment was already completed, selected candidates joined service and no fresh post was advertised for which petitioner could had sought relaxation of upper age limit--Petition was dismissed. [P. 447] A

Dr. Malik Muhammad Hafeez, Advocate for Petitioner.

Mr. Manzoor Ahmad Warriach, AAG with Mr. Muhammad Iqbal Sial, Legal Adivsor (QMC) for Respondents.

Date of hearing: 13.6.2013.

Judgment

Brief facts as narrated in the writ petition are that the petitioner after being awarded MBBS decree by the Quaid-i-Azam Medical College/Bahawalpur joined the Health Department as Medical Officer on ad hoc basis and served at different Basic Health Units (BHUs) for the period of more-than two years. The Respondent No. 3/Principal of Quaid-i-Azam Medical College/Bahawalpur Victoria Hospital invited the applications against the post of Medical Officer/demonstrator through advertisement dated 15.06.2007 published in Daily Nawa-i-Waqt. A call letter was issued by Respondent No. 3 for written examination for the post of Medical Officer/demonstrator. The petitioner was declared as selected candidate however he was amongst the four reserve candidates. It is averred in the petition that during the year 2008-10, 40 posts became vacant on different occasions and the petitioner wrote letters to the Respondent No. 3 for his appointment as Medical Officer/ demonstrator but of no avail. The petitioner raised many factual grounds regarding preparation of merit by stating that his marks were wrongly calculated by the Respondent No. 3 due to which petitioner filed writ petition No. 5157 of 2012 which was disposed of by this Court with a direction to the Secretary Health to decide the representation of the petitioner in accordance with law and merit policy. The petitioner further submitted that the representation of the petitioner was dismissed by Respondent No. 2 vide order dated 26.01.2013. He further submitted that six seats in Quaid-i-Azam Medical College/Bahawalpur Victoria Hospital, Jubilee Female Hospital & School of Nursing are still lying vacant.

1. Learned counsel for the petitioner submitted that the application for relaxation of age limit was accepted by the Principal of College/Chairman Selection Board but Respondent No. 2 did not consider that the Principal was empowered to relax the upper age limit of the petitioner upto 3 years under Article/Sr. No. 42 of the Schedule-V of the Punjab Medical and Health Institution Rules, 2003 made under Section 18 of the Punjab Medical and Health Institutions Act, 2003. It is further submitted that the petitioner has served as Medical Officer in the Health Department for a period of more-than two years which period is required to be excluded from the age of the petitioner while determining the issue of over age and prayed for setting aside the order dated 26.01.2013 passed by Respondent No. 3 and sought a direction for his appointment as Medical Officer/demonstrator. He has relied upon the cases reported as Muhammad Yaqoob v. Secretary, Local Government and Rural Development Department, Lahore and others (2005 SCMR 76) and Ghulam Mustafa v. Punjab Public Service Commission, Lahore through Secretary and another ("2008 PLC (C.S.) 1117) Lahore.

2. On the other hand, Respondents No. 1 & 2 by filing parawise comments submitted that the writ petition is not maintainable on the ground that earlier Writ Petition No. 5157/2010 was disposed of by this Court vide order dated 26.11.2012 with the direction to the Secretary Health to decide the same in accordance with law. Further submitted that the petitioner was not selected or appointed as Medical Officer as he was ineligible for such appointment being overage because the maximum age on the closing date was required to be 45 years whereas the petitioner's age was more-than 46 years.

3. Respondent No. 3 submitted independent para-wise comments and almost reiterated the stance taken by Respondents No. 1 & 2 with further observation that 82 candidates were selected for the post of Medical Officer/demonstrator and 4 were kept as reserve candidates and out of those 82 candidates all joined their services and no post remained vacant at that relevant time and as the petitioner was not selected on merit, therefore, he was not offered the job. The learned counsel for the respondent submitted that out of 4 reserved candidates 3 applied afresh in the next advertisement and all of them were recruited but the petitioner could not be selected being overage. Another aspect of awarding wrong marks as 26 out of 50 marks in the recruitment process held in April, 2007, the learned counsel for the respondent submitted that the petitioner obtained 25 marks and awarding of 26 marks was incorrect for the reason that the petitioner cleared his examination in more-than one attempt and for this reason he was not entitled to grant of that one mark.

4. Arguments of learned counsel for the parties have been heard and record also perused.

5. Precisely the question which is to be determined by this Court is whether the petitioner was eligible to be appointed as Medical Officer/demonstrator by relaxation of age and whether the petitioner was entitled for the said post on merit. From the perusal of the record it is revealed that subsequent to recruitment process the petitioner wrote a letter to the Chief Minister Punjab which has been annexed with the petition as annexure P/7 whereby he admitted, that he was selected as a reserve candidate. It further transpires that the petitioner when selected as reserved candidate was duly considered and at that relevant time the question of relaxation of age did not come in the way but he could not succeed being lower in merit and all the 82 vacancies were filled by the candidates who were selected on merit.

6. Thereafter, the petitioner filed Writ Petition No. 5157/2010 BWP with the following prayer:

"that by accepting this petition, petitioner may very kindly be declared entitled to be selected as Medical Officer/Demonstrator by issuing direction to respondent Secretary from the date of selection made by the respondent at the relevant time, with approval for the appointment for the post applied for, in the interest of justice. Any other relief whatsoever this Hon'ble Court deems fit may also be granted in favour of the petitioner in the high interest of justice."

This petition was filed after almost three years of the recruitment process. However, the said petition was transmitted to Respondent No. 2/Secretary Health, vide order dated 26.11.2012 passed by this Court. The Respondent No. 2 dismissed the same vide impugned order dated 26.01.2013. In my opinion filing of this petition as well as earlier Writ Petition No. 5157/2010 BWP by the petitioner is an exercise in futility for the simple reason that the process of recruitment was already completed, the selected candidates joined the service and no fresh post was advertised for which the petitioner could have sought the relaxation of upper age limit. The case law relied upon by the learned counsel for the petitioner is quite distinguishable and is not attracted in this case.

1. In view of the above discussion, the petitioner has not been able to make out a case for interference by this Court in its writ jurisdiction. Resultantly, this writ petition being devoid of any merit, is dismissed.

(R.A.) Petition dismissed

PLJ 2013 Lahore 447

Present: Ali Baqar Najafi, J.

FAKHAR IMAM--Petitioner

versus

GOVT. OF PUNJAB, etc.--Respondents

W.P. No. 14377 of 2013, decided on 20.6.2013.

Punjab Civil Servants (Appointment and Condition of Service) Rules, 1974--

----R. 17-A--Constitution of Pakistan, 1973, Arts. 4 & 199--Appointment as Fisheries Watcher on seat vacated by his father on medical ground--Qualification for post was matric with science 2nd division from recognized board--Validity--One child of government servant who had been declared invalidated/incapacitated of other services would be provided a job against post in BS-1 to 5 in department without observance of formalities prescribed under rules/procedure, if such child was eligible for the post--Minimum qualification for Fisheries Watcher was matric with Science from recognized Board--Petitioner obtained grade-E but the certificate did not mention 2nd division or third division--Only mention word 2nd division without prescribed grades A, B, C, D or E having different percentages of pass marks which means that petitioner was not disqualified to be appointed u/Rule 17-A of Rules, 1974--It had been made mandatory to appoint at least one child of such government servant. [P. 449] A, B & C

Syed Muhammad Ahmad Abbas Bukhari, Advocate for Petitioner.

Syed Abid Ali Tahir, AAG with Rukhsana Kausar, Law Officer, F.D. for Respondents.

Date of hearing: 20.6.2013.

Order

Through this constitutional petition the petitioner seeks direction to issue appointment letter to the petitioner and meanwhile restrain them to fill the post vacated by the father of the petitioner.

1. Brief facts giving rise to the filing of this writ petition are that father of the petitioner namely Muhammad Siddique served respondent department for about 26 years and retired on medical ground on 18.3.2013. The petitioner being entitled to the benefit of Rule 17-A of the Punjab Civil Servants (Appointment and Condition of Service) Rules, 1974, made an application for his appointment as Fisheries Watcher BS-1 on the seat vacated by his father on medical ground. He was asked to submit the requisite documents, whereafter the Respondent No. 4 wrote a letter refusing such appointment on the ground that the petitioner did not qualify as he passed the Matric in third division.

2. The learned counsel for the petitioner submits that the petitioner is entitled to have the benefit of Rule 17-A of the Punjab Civil Servants (Appointment and Condition of Service) Rules, 1974; that the father of the petitioner was the only source of livelihood for the family, who has already been retired on medical ground; that the petitioner being citizen of Pakistan is entitled to the equal protection of law and under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 he is required to be dealt with only in accordance with law.

3. Conversely, the learned AAG on the basis of parawise comments submitted by Respondent No. 2 submits that the petitioner does not qualify for appointment as Fisheries Watcher BS-1 as he is Matric E-Grade/third division and under the Punjab Fisheries Department Service Rules 2011 in Item No. 42 the requisite qualification for the post is Matric with Science (Second Division) from a recognized board and the respondent Department is bound by rules and as such the petitioner is not entitled for the appointment.

4. I have heard the learned counsel for the parties and perused the available record.

5. Under proviso of Rule 17-A of the Punjab Civil Servants (Appointment and Condition of Service) Rules, 1974, one child of a government servant who has been declared invalidated/incapacitated of other services shall be provided a job against the post in the BS-1 to 5 in the department without observance of formalities prescribed under the rules/procedure, if such child otherwise is eligible for the post. Under Punjab Fisheries Department Services Rules, 2011, in Item No. 42, the minimum qualification for Fisheries Watcher is Matric with Science (Second Division) from a recognized Board. However, the perusal of the Matric Certificate of he petitioner reveals that the petitioner obtained grade-E, but said certificate does not mention Second Division or Third Division. In my opinion, Item No. 42 of the Rule ibid, only mentions the word second division without prescribing the grades either A,B,C,D or E having different percentages of pass marks which means that the petitioner is not specifically disqualified to be appointed under Rule 17-A of the Punjab Civil Servants (Appointment and Condition of Service) Rules, 1974. Additionally, it has been made mandatory for the respondent to appoint at-least one child of such a government servant. The petitioner has also completed his FA and the Rules ibid are silent as to the benefit/effect of his changed status after having improved his qualification. There is no other competitor for the said post, therefore, the Rule 17-A is required to be interpreted in order to advance benefit to the petitioner.

6. In this view of the matter, I dispose of this petition with the direction to Respondent No. 3 to consider the petitioner for his appointment under Rule 17-A of the Punjab Civil Servants (Appointment and Condition of Service) Rules, 1974 in view of the observations supra, as he cannot be disqualified on the basis of his educational qualification.

(R.A.) Petition disposed of

PLJ 2013 Lahore 449 [Bahawalpur Bench Bahawalpur]

Present: Atir Mahmood, J.

ABDUL MAJEED SHEIKH--Petitioner

versus

ZARAI TARAQIATI BANK LIMITED etc.--Respondents

W.P. No. 2385 of 2006, heard on 3.6.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Illegal gratification--Employee of ZTB was removed from service--Allegation of receiving illegal gratification were proved to be false in inquiry report--No penalty could be imposed on account of baseless charges--Entitlement of reinstated in service with back benefits--Question of--Whether any employee can be imposed penalty on a set of charges from which he was acquitted from a Court of law--Determination--It is settled law that acquittal of any person by a competent Court from charges will be deemed to be an honorable acquittal meaning thereby that such person had committed no offence--There is no denial that petitioner had been acquitted from the charge--When petitioner was acquitted from allegation, it was duty of competent authority to reinstate him in service forthwith and there was no lawful justification for depriving from lawful right of having been reinstated into service--Charges were not proved and I.O suggested for final decision by Special Judge to further proceed in the matter without adhering to recommendation of I.O and without giving opportunity of personal hearing to petitioner removed him from service--Competent authority should have waited for decision by competent Court before which criminal proceedings were pending and should have acted upon decision of the Court according rather than penalizing petitioner unheard in haste and in an arbitrary manner--Petition was allowed. [Pp. 454, 455 & 456] A, B, D & E

Principle of Natural Justice--

----There was nothing on record to infer that petitioner was served any show-cause notice for personal hearing before imposing major penalty of removal from service--Under principles of natural justice, none can be condemned without giving him proper opportunity of defence which was missing in instant case. [P. 454] C

Mr. Mukhtar Ahmed Malik, Advocate for Petitioner.

Mr. Muhammad Afzal Siddique Chaudhry, Advocate for Respondents.

Date of hearing: 3.6.2013.

Judgment

Through this constitutional writ petition, the petitioner has called in question the legality of order dated 10.08.1993 whereby the penalty of removal from service has been imposed upon him. He has also challenged the orders dated 30.10.1993 and 05.12.1998 dismissing his appeal and review petition by Executive Director (Per.) and Chairman ZTBL respectively.

1. The cause of action as given in the instant petition is that the petitioner Abdul Majeed Sheikh was employed in the respondent bank (Zarai Taraqiati Bank Limited) in the year 1969 and is now posted as Mobile Credit Officer/Assistant Director, ADBP, Bahawalnagar. On 15.10.1992, an FIR No. 36/92 for the offences, under Section 161 PPC and Section 5(2) PCA 1947 was lodged against the petitioner with the Police Station FIA, Bahawalnagar. A charge sheet dated 26/28.07.1992 was issued to the petitioner containing the allegations mentioned in the FIR that the petitioner got illegal gratification of Rs. 1500/- while recommending input loan of Rs. 18360/- to Muhammad Hanif s/o Dilawar in the presence of M/s. Muhammad Fazal son of Muhammad Ali and Allah Rakhsh son of Pir Bakhsh. It was also alleged that the petitioner demanded further Rs. 1000/- as bribe from said Muhammad Hanif at the time of payment of loan. Muhammad Hanif lodged a complaint/F.I.R. No. 10/92 with Anti-Corruption Department Bahawalnagar and handed over Rs. 1000/- to the petitioner which were recovered from the petitioner by the raiding party. The petitioner filed reply to the charge sheet denying allegations levelled against him. He took plea that Muhammad Hanif was defaulter of Rs. 1004/- in loan case No. 054981 for the purchase of Spray Machine. The petitioner asked the petitioner to deposit the said amount to which Muhammad Hanif agreed. Accordingly, I.O. Receipt No. 6 was prepared and issued on 13.07.1992 but Muhammad Hanif showed his inability to pay the defaulted amount and requested the petitioner to pay the same on his behalf to be returned to the petitioner shortly. Accordingly, the petitioner deposited the amount of Rs. 1004/- on the insistence of Muhammad Hanif on his behalf on 13.07.1992, recommended his case for sanction of loan on 14.07.1992 which was sanctioned on 15.07.1992 by Manager ADBP Bahawalnagar. After completing the codal formalities, the payment was released on 18.07.1992 and credited in the account of Muhammad Hanif. Meanwhile, Muhammad Hanif paid Rs. 1004/- to the petitioner and also arranged raid upon him. The petitioner also stated in the reply that one of alleged eye-witnesses namely Muhammad Fazal in his affidavit dated 28.7.1992 has categorically denied the allegations levelled against the petitioner whereas the other witness of FIR, i.e. Allah Bakhsh is closely related to Muhammad Hanif complainant and has personal grudge against the petitioner as the petitioner did not recommend his case for remission of interest amounting to Rs. 40,000/-.

2. The matter was inquired into by Rana Maqsood Khan, Joint Director, ADBP in the capacity of Inquiry Officer who submitted his report on 05.04.1993 concluding that the allegation of illegal gratification of Rs. 1500/- against the petitioner could not be proved whereas he remained inconclusive regarding allegation of receiving bribe of Rs. 1000/- by the petitioner and suggested to wait the decision of Special Judge Anti-Corruption. However, Respondent No. 2 without waiting for decision and fate of the criminal case terminated the petitioner vide order dated 10.08.1993. The petitioner filed departmental appeal which was rejected vide order dated 30.10.1993. Feeling aggrieved, the petitioner filed a Writ Petition No. 2615/1993. During the pendency of the writ petition, the petitioner was acquitted vide order dated 21.04.1996 passed by learned Special Judge (Central) Multan. Pursuant to order dated 21.04.1996, the petitioner filed a representation dated 22.05.1996 which was responded to by respondent-bank that since the writ petition is pending before the High Court, the case of the petitioner will be considered after decision of petitioner's Writ Petition No. 2615/1993. On 18.03.1998, learned counsel for respondent bank made statement before this Court that the case of the petitioner for his reinstatement into service will be considered by the bank. In light of the statement made on behalf of the respondent bank, the writ petition was disposed of. After receiving no response to petitioner's representation dated 30.03.1998, the petitioner filed another W.P. No. 4895/1998 wherein direction was issued to the respondent bank for decision of the representation of the petitioner vide order dated 07.10.1998. Consequently, the representation of the petitioner was rejected vide order dated 05.12.1998. Feeling dissatisfied, the petitioner filed an appeal before the Federal Service Tribunal under Section 4 read with Section 2-A of Federal Service Tribunal Act, 1973 which was partly accepted and removal order was converted into compulsory retirement vide order dated 20.02.2002. Thereafter, the petitioner filed a petition before the apex Court which was decided on 27.06.2002 and Section 2-A of Service Tribunal Act, 1973 was declared ultra vires. The petitioner served a grievance notice upon the respondent bank for redress of his grievance which was not responded to. The petitioner filed a grievance petition before the learned Punjab Labour Court No. 8, Bahawalpur for redress of his grievance. In the meantime, the respondents vide letter dated 08.09.2006 replied to the grievance notice that the petitioner was not a workman, therefore, the grievance notice has no force. The petitioner withdrew his grievance petition on 20.09.2006 from the Labour Court and filed the instant petition.

3. Learned counsel for the petitioner inter alia contends that the allegations of receiving illegal gratification were proved to be false in the inquiry report as well as in the proceedings conducted by Special Judge Anti-Corruption, therefore, no penalty could be imposed on the petitioner on account of baseless charges; that after acquittal of the petitioner by the Special Judge Anti-Corruption, the petitioner could not be tried again on the same set of charges and was entitled to be re-instated in service with all back benefits; that in view of the recommendations of the Inquiry Report, the respondents were obliged to serve show cause notice upon the petitioner giving him opportunity to defend himself but they failed to do so and the petitioner was condemned unheard which is against the principles of natural justice; that the charge sheet is badly barred by time. Learned counsel avers that the order impugned dated 10.08.1993, 30.10.1993 and 05.12.1998 are illegal and cannot sustain in the eye of law, therefore, this writ petition be allowed and the orders impugned be set aside re-instating the petitioner with all back benefits. In support of his assertions, learned counsel has relied upon the law laid down in cases titled "Dr. Muhammad Islam Vs. Govt. of NWFP through Secretary, food, Agriculture, Livestock and Cooperative Department Peshawar and 2 others (1998 SCMR 1993). "Superintending Engineer GEPCO, Sialkot Vs. Muhammad Yousaf (2007 SCMR 537", "Muhammad Iqbal Zaman, Vernacular Clerk, Marwat Canal division, Bannu Vs. Superintending Engineer. Southern Irrigation Circle. Bannu and 4 others (2000 PLC (CS) 331)" and "Dr. Muhammad Islam, Instructor, Animal Husbandry in-Service Training Institute, Daudzai, Peshawar District Vs. Government of NWFP through Secretary Food. Agriculture, Livestock and Cooperative Department, Peshawar and 2 others (1998 PLC (CS) 1430)."

4. On the other hand, learned counsel for the respondents has vehemently opposed this writ petition mainly on the grounds that the petitioner received illegal gratification of Rs. 1000/- which was recovered from him during a raid conducted by a Magistrate alongwith Inspector, Anti-Corruption Bahawalpur; that the petitioner managed to win-over the witnesses of the criminal case due to which he was awarded benefit of doubt and thus acquitted; that the petitioner has already attained the age of superannuation, as such, he cannot be re-instated into service; that the orders passed by the competent authority cannot be challenged in writ jurisdiction being question of facts and prayed for dismissal of the petition.

5. Arguments advanced by learned counsel for the parties have been heard and record perused with their able assistance.

6. The moot points in this case are whether any employee can be imposed penalty on a set of charges from which he has been acquitted from a Court of law and whether any employee can be awarded penalty without affording him opportunity of hearing.

7. Specific allegations of taking bribe against the petitioner were levelled in an F.I.R. No. 36/92, dated 15.10.1992 wherein the criminal proceedings were initiated before the Special Judge Anti-Corruption. Simultaneously, inquiry proceedings were initiated against the petitioner by the department through Inquiry Officer Rana Maqsood Khan, Joint Director, ADBP who submitted in his report dated 05.04.1993 that the allegation of illegal gratification of Rs. 1500/- could not be proved. However, with regard to allegation of taking bribe of Rs. 1000/-, he could not reach, and decision and asked, for waiting decision by the Special Judge Anti-Corruption who ultimately acquitted the petitioner from the charges levelled against him vide order dated 21.04.1996. In the meanwhile, the petitioner was removed from his service vide order dated 10.08.1993 without affording him opportunity of personal hearing depriving him from the right of defence.

8. It is settled law that acquittal of any person by a competent Court from the charges levelled against him will be deemed to be an honourable acquittal meaning thereby that such person has committed no offence. There is no denial that the petitioner has been acquitted from the charges levelled against him by the Special Judge Anti-Corruption. When the petitioner was acquitted from the allegations levelled against him, it was the duty of the competent authority to reinstate him in service forthwith and there was no lawful justification for depriving him from his lawful right of having been instated into service. In this regard, I am fortified by the dictums laid down by the Hon'ble Supreme Court of Pakistan laid down in case titled "Superintending Engineer GEPCO, Sialkot Vs. Muhammad Yousaf (2007 SCMR 537)". Relevant portion is reproduced below:

"In this behalf it may be noted that in the case of Muhammad Iqbal Zaman, Vernacular Clerk, Marwat Canal Division, Bannu v. Superintending Engineer, Southern Irrigation Circle, Bannu and 4 others 1999 SCMR 2870 identical question came for consideration and this Court considered that acquittal of a civil servant, even if based on benefit of doubt was honourable. Applying same principle we are of the opinion that the respondent who statedly was acquitted by extending him benefit of doubt would be deemed to have acquitted honourably. Therefore, under the circumstances we are of the opinion that the Service Tribunal rightly directed the petitioner to treat him on duty and give him all financial benefits during the period of his confinement in custody on account of his involvement in the murder case."

1. According to Departmental Inquiry Report, charges against the petitioner were not proved and also that the Inquiry Officer suggested for final decision by the Special Judge Anti-Corruption to further proceed in the matter but Respondent No. 2- Director (E& D), ADBP without adhering to the recommendation of the Inquiry Officer and also without giving opportunity of personal hearing to the petitioner removed him from his service vide order dated 10.08.1993 which shows mala fide on his part. There is nothing on the record to infer that the petitioner was served any show-cause notice for personal hearing before imposing major penalty of removal from service. Under the principles of natural justice, none can be condemned without giving him proper opportunity of defence which is missing in this case. In my considered view, the competent authority should have waited for the decision by the competent Court before which criminal proceedings were pending and should have acted upon the decision of the Court accordingly rather than penalizing the petitioner unheard in haste and in an arbitrary manner. This act of the competent authority lacks support from any law in force in the country.

2. Another aspect of the matter is that in a Writ Petition No. 2615/1993 filed by the petitioner, learned counsel for the respondent-bank made a statement before this Court that the request of the petitioner for reinstatement into service will be considered by the bank in light of the judgment dated 21.04.1996 passed by the learned Special Judge Anti-Corruption if the writ petition is withdrawn. In this view of the matter writ petition was withdrawn by the Petitioner vide order dated 18.3.1998 but the respondent-bank did not honour to its commitment shown before the Court and did not decide the representation pending before it. The petitioner instituted another W.P. No. 4895/1998 wherein a direction was issued to the respondent bank to decide the representation of the petitioner vide order dated 07.10.1998. Accordingly, the Chairman ADBP dismissed the representation/review appeal of the petitioner vide order dated 05.12.1998 which is reproduced as under:

"In compliance with the Orders dated 07.10.1998 of the honourable Lahore High Court, Bahawalpur Bench in Writ Petition No. 4895/98, the Chairman, Agricultural Development Bank of Pakistan reconsidered the case of Mr. Abdul Majeed Sheikh, Ex-Assistant Director, ADBP, Bahawalnagar Branch. He was caught red handed by a raiding party for taking bribe. In the departmental proceedings, the charge of corruption was proved against him and he was rightly dismissed from service of the Bank by the competent authority under the ADBP Officers Service (E&D) Regulations, 1975. His formal appeal has been rejected by the Competent Appellant Authority.

1. The honourable Lahore High Court, Bahawalpur Bench desired to reconsider his appeal in light of the Judgment passed by the Special Judge (Central), Multan who acquitted him by giving him benefit of doubt.

2. The Chairman thoroughly examined the whole case and was of the firm opinion that an employee who has been caught red handed for taking bribe cannot be retained in the Bank's service. The Chairman, therefore, rejected his review appeal."

Bare perusal of the above order clearly reveals that the Chairman did not honour to the statement made by learned counsel for the respondent-bank before this Court in W.P. No. 2615/1993 on 18.03.1998 that the case of the petitioner would be decided in light of the judgment dated 21.04.1996 passed by the Special Judge Anti-Corruption and dismissed the representation/review appeal of the petitioner merely depending upon the allegations levelled against him without assigning any cogent reason. Therefore, this order being not speaking one does not merit to be sustained in the eyes of law.

1. Regarding contention of learned counsel for the respondent-bank that the petitioner having attained the age of superannuation cannot be reinstated in service, I agree to the contention of the learned counsel to the extent of putting him back in service after reaching the age of superannuation but there is no embargo on rectification of wrong done with him to the extent of award of monetary benefits to him which he is entitled to under the law.

2. In light of what has been stated above, this writ petition is allowed, the impugned orders dated 10.08.1993, 30.10.1993 and 05.12.1998 are set aside. Resultantly, the petitioner will be deemed to be in service from the date of removal of his service, i.e. 05.12.1998, to the date of attaining the age of superannuation and entitled to all the benefits accordingly.

(R.A.) Petition allowed

PLJ 2013 Lahore 456 [Bahawalpur Bench Bahawalpur]

Present: Atir Mahmood, J.

Mst. BALQEES AKHTAR--Petitioner

versus

ADDITIONAL DISTRICT JUDGE etc.--Respondents

W.P. No. 2585 of 2005, heard on 10.6.2013.

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

----O. XIII, O.XVIII, R. 2 & O. XVI, R. 2--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Production of additional evidence by way of production of documents through summoning of witness which was dismissed--Challenge to--Denial of justice and technicalities cannot be recouraged--No right of affirmative evidence--Revision was accepted--Assailed--No good cause for acceptance of application at belated stage--Validity--Litigant party has to show a good cause for having not either furnished list of witnesses within time or omission of name of such witness in the list, but condition has been imposed and a rider had been placed by law on exercise of jurisdiction of the Court and discretion in that behalf in other words the Court is not free to grant such permission as per its own whim and caprice and in an arbitrary manner--Court was not vested within restricted authority and discretion to pass any whimsical discretion and capricious order it feels like but obviously order allowing permission has to conform to those reasons which were justifiable in eyes of law which reflects judicial application of mind by Court--While disallowing application of the party for summoning the witness, the Court is required to record the reasons--In instant case neither any good cause was shown by petitioner nor there was any justification as to why application was filed at such a belated stage--Petition was accepted. [P. 460] A, B & C

PLD 1994 Lah. 100, 2003 CLC 504 & PLD 1992 Lah. 92, rel.

PLD 2013 SC 255, ref.

Mr. S.M. Hussain, Advocate for Petitioner.

Rais Abdul Qadir Warind, Advocate for Respondents.

Date of hearing: 10.6.2013.

Judgment

Through this constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 the petitioner has challenged the order dated 25.05.2005 passed by the learned Additional District Judge, Sadiqabad whereby revision petition filed by Respondent No. 2 was accepted subject to payment of Rs. 500/- as costs with the observation that defendant/respondent is also at liberty to produce any documentary evidence to rebut this additional evidence.

1. The brief facts of the case are that Respondent No. 2 filed a suit for pre-emption regarding agricultural land in Khata No. 86 measuring 115 kanals 17 marlas through registered Mutation No. 111 dated 30.09.1999 against the petitioner in the Court of learned Civil Judge, Sadiqabad. The petitioner/defendant filed written statement and contested the suit and out of divergent pleadings of the parties learned trial Court framed issues and evidence of the parties was recorded and the petitioner was afforded opportunity to produce his evidence in rebuttal. Then an application under Order XIII, Order XVIII Rule 2 and Order XVI Rule 2 of CPC was filed for production of additional evidence by way of production of documents through summoning of the witnesses which was dismissed by the learned trial Court vide order dated 14.04.2004. There-after Respondent No. 2/plaintiff filed revision against the said order before the learned Additional District Judge, Sadiqabad who accepted the same vide order dated 25.05.2005 subject to payment of Rs. 500/- as costs with the observation that defendant/respondent is also at liberty to produce any documentary evidence to rebut this additional evidence, hence this writ petition.

2. Learned counsel for the petitioner has contended that order passed by learned Additional District Judge, Sadiqabad is illegal, without lawful authority, without jurisdiction, perverse and ultra vires; that Respondent No. 1 failed to consider the merits of the case, contentions of the parties, case law of superior Courts on the subject; that Respondent No. 1 exercised jurisdiction not vested in it, the order of the trial Court being not amendable to revisional jurisdiction as that could only be attacked under Section 105, CPC in appeal against final judgment; that Respondent No. 1 failed to consider that Respondent No. 2 had spent more than two years for producing eight witnesses and seven documents of choice; that only reason given in the order of Respondent No. 1 is denial of justice and technicalities cannot be encouraged; that no right of affirmative evidence being available to Respondent No. 2 after closure of evidence, petitioner having exhausted her evidence after that, no allowance could be given to Respondent No. 2 for second right of evidence; that, the order of Respondent No. 1 is one sided, deficient, improper, unwarranted, contrary to law and has resulted in gross injustice to petitioner, therefore, the impugned order dated 25.05.2005 passed by learned Additional District Judge, Sadiqabad is liable to be set-aside. He has relied upon the cases reported as Jhanda through Legal heir Vs. Muhammad Younas (PLD 1994 Lahore 100), Province of the Punjab through Secretary, Irrigation and Power Department, P.W.D. Secretariat Old Anarkali, Lahore and 3 others (2003 CLC 504) and Naseer Ahmad Vs. District Judge, Multan and four others (PLD 1992 Lahore 92).

3. On the other hand, learned counsel for Respondent No. 2 has controverted the contentions raised by the petitioner and has submitted that the revisional Court has rightly exercised the jurisdiction by way of allowing the application under Order XIII Rule 8 Order XVIII Rule 2 and Order XVI Rule 2 of CPC. He has further submitted that no prejudice is caused to the petitioner by the impugned order. He has relied upon (1999 MLD 2295).

4. Arguments of learned counsel for the parties have been heard and I have also gone through the record with their able assistance.

5. It transpires that the application for additional evidence was filed by the petitioner contending therein that the petitioner wants to produce the copies of the documents which are the register record of rights, copy of Aksh-Shajra regarding the suit property, copy of Warabandi Mogha etc. on the grounds that all these documents are public documents. He further submitted that for production of the said documents the record keeper of the concerned agency i.e Patwari Halqa and Zila Dar of Canal Department be summoned. The relevant portion of the application is reproduced as under:--

From the perusal of above contents it is established that Respondent No. 2-plaintiff did not give any good cause for acceptance of his application at a belated stage. In this regard, I am guided by a landmark judgment given by the Hon'ble Supreme Court of Pakistan reported as (PLD 2013 SC 255). The relevant portion of the judgment reads as under:--

"The clear language of Rule 1(1), undisputably stipulates that the parties to a lis are required to furnish the list of witnesses, whom they propose to call either to give evidence or to produce the documents, within seven days of the framing of issues; meaning thereby that the process and the authority of the Court in terms of Order XVI(1), to call and summon the witness by a party, has been made subject to, rather conditional to the list of witnesses which a party is mandated to file in terms thereof; in other words, the power and the machinery of the Court for summoning/calling of the witnesses through the process of Court and law, as is envisaged by certain subsequent relevant rules of Order XVI, C.P.C, can only be invoked if such a list has been provided and not otherwise. From sub-Rule (2), the afore-stated intention of the legislature is fortified and augmented, as a specific prohibition has been placed, preventing a party to call the witnesses and, as per the High Court Amendment-Lahore dated 02.10.2001, even to produce witnesses other than those whose names are mentioned in the list required to be filed under sub-rule (1). Undoubtedly, this is a mandatory provision of law as it entails serious consequences of precluding a party from calling, through-aid of law (Court), or even to produce the witnesses if their names do not appear in the requisite list. However, in the same sub-rule (2), a room has been provided to a delinquent party, who either fails to file the list of witnesses at all, or omits a name of the witness (es) therein (if filed) to make up its default and delinquency and ask for the indulgence of the Court to summon and produce the witnesses (es), but only after meeting and fulfilling the command of law, [sub-Rule (2)] i.e, " after showing good cause (emphasis supplied) for the omission of the said witnesses from the list"; besides, the authority and power of the Court, in this behalf has been regulated, in that, "and if the Court grants such permission, it shall record reasons for so doing (emphasis supplied).

Coming to the second limb of sub-rule (2), as noted earlier, not only that the litigant party has to show a good cause for having not either furnished the list of witnesses within time or the omission of the name of such witnesses in the list, but a condition has been imposed and a rider has been placed by law on the exercise, of jurisdiction of the Court and discretion in that behalf; in other words the Court is not free to grant such permission as per its own whim and caprice and in an arbitrary manner, rather it shall record the reasons for such a permission (emphasis supplied). The condition of recording the reasons obviously is a check on the unbridled and absolute discretion of the Court, which (reasons) should have nexus to the good cause as set out by the delinquent party. At the cost of repetition, it may be mentioned that the Court is not vested within unrestricted authority and discretion to pass any whimsical discretion and capricious, order it feels like, but obviously the order allowing the permission has to conform to "those reasons which are justifiable in the eyes of law", which reflects the judicial application of mind by the Court and the disposal of the request in a judicial manner. It may be pertinent to state here that while disallowing the application of the party for summoning the witnesses, the Court is also required to record its reasons."

1. In the present case neither any good cause was shown by the petitioner nor there was any justification as to why the application was filed at such a belated stage. The case of the petitioner is purely covered by the judgment of Hon'ble Supreme Court of Pakistan (supra). In the present case the order of the learned trial Court was set-aside by the revisional Court without assigning any reason. I am again guided by the above judgment of the Hon'ble Supreme Court which also reads as under:--

"In the instant case, the learned Revisional Court while overturning the trial Court order has absolutely failed to assign any valid reasons, except invoking the general principle of law that the technicalities of law should not be allowed to thwart the rights of the litigants. I fail to understand as to how the noted principle can be used as a tool to avoid, shun or to defeat the specific rules of law and to save a party from the consequences of its delinquency against the clear command of law on the concept and in terms of legal technicality. It is a well known principle of law that where the law requires an act to be done in a particular manner it has to be done in that manner alone and such dictate of law cannot be termed as a technicality."

1. In view of what has been discussed above, the petition filed by the petitioner/defendant is accepted. The order dated 25.05.2005 passed by the learned Additional District Judge, Sadiqabad is set-aside and the order dated 14.04.2004 passed by the learned trial Court is up-held.

(R.A.) Petition accepted

PLJ 2013 Lahore 461 [Multan Bench Multan]

Present: Ibad-ur-Rehman Lodhi, J.

QAISAR KHAN & 74 others--Petitioners

versus

GOVERNMENT OF PUNJAB & 4 others--Respondents

W.P. No. 184 of 2013, decided on 15.5.2013.

Punjab Local Government Ordinance, 2001--

----Ss. 49(2) & 195--Post remand proceedings--Felt feasible to shift holding of such cattle market in order to avoid nuisance, traffic hazards, sanitation problem--Grievance was public notice issued by Administrator--Establishment of new cattle market--TMA had established a cattle market with all allied facilities and no other place will be permitted to be used as cattle market--Fee of Rs. 135/- per cattle as entry fee had been introduced according to schedule in newly established cattle market--However in addition to such entry fee, no other charges were being claimed either from sellers or purchasers of cattle--Even if one was licenced to establish and run a cattle market in private sector, receipt of commission would again be an action having no legal sanctity and no one can competently ask for decree of the Court--Petitioners or any other individual, if had any claim, as against their stated investments either in establishing cattle market or in providing some facilities there, they had every right to raise such claim in Court of law, where after recording of evidence--Petitioners had no vested right enforceable through constitutional jurisdiction of High Court--They were asking for a relief in negation of statutory provisions, which at no cost, can be granted--Petitions were dismissed. [Pp. 463, 465 & 466] A, D, E & F

Punjab Local Government Ordinance, 2001--

----S. 54--Conditions for grant of licence for private market or slaughter house--Exclusive power of a local government either to establish house or any part--Concept of private markets was although provided in Ordinance, but that had been made conditional with licencing system to be issued to such interested person desirous of establishing a private market within area of local government and without such licence functioning of any individual in business of any private market was nullity in the eyes of laws. [P. 465] B & C

M/s. Khalid Ashraf Khan and Mehmood Ashraf Khan, Advocates for Petitioners.

M/s. Ch. Sagheer Ahmad, Abdul Salam Alvi and Haji Malik Muhammad Aslam, Advocates and Mr. Aziz-ur-Rehman Khan, AAG for Respondents.

Date of hearing: 8.5.2013.

Judgment

With the concurrence of the parties, the hearing of this petition is being considered as a Pacca case.

1. Through this judgment, the instant writ petition, as well as, Writ Petition No. 324 of 2013 are to be disposed of together as similar questions of law and facts are involved in both the matters.

2. The Hon'ble Supreme Court of Pakistan while converting the Civil Petitions No. 223 and 268 of 2013 into appeals and by allowing the same remanded back the Writ Petitions No. 184 and 324 of 2013 to this Court for decision on merits, thus, in such post-remand proceedings, the parties were heard and record has been perused.

3. The background of the controversy pending since long is that from the time immemorial in Multan City, there has been a cattle market adjacent to the Shrine of Shah Shamas Tabraiz near Dolat Gate, Multan and by the passage of time, when such place became a part of almost centre of the city, it felt feasible to shift holding of such cattle market somewhere else in order to avoid the nuisance, traffic hazards, sanitation problem etc., which was started to be confronted to the inhabitants of the areas concerned and, therefore, the cattle market was shifted to an area, which was known as "village Samu Rana" in U.C.No. 48, Sher Shah Town, Multan at Southern Bypass in 2006.

4. Prior to such shifting, there have been deliberations by the local administration, wherein some persons, who were known as `Commission Agents' with regard to such cattle market also participated in the meetings held in order to consider the shifting or relocation of the cattle market and some private persons, including some Commission Agents were also assigned some responsibilities to arrange the purchase of land or to take some rented property on lease for holding such cattle market. After such shifting, there have been some disputes over the point of calculation of commission from sellers and purchasers of the cattle and also entry fee. By then, the Local Government felt its statutory duty to levy and collect such fee, whereas, the persons calling themselves as "Commission Agents" attained a self-styled role of collectors of such fee in their individual capacity and such controversy was either had been pending before this Court or before the Government. Everywhere, however, the status of Commission Agents was never accepted as per their own wishes, of having some claim to collect, what they call the commission, fee, tax or " "

5. Now what has been prompted to the petitioners to raise their grievance is a public notice issued by the Administrator, TMA Sher Shah Town, Multan, on 05.01.2013, under the provisions of Section 195 read with Sixth Schedule and Section 49(2) of the Punjab Local Government Ordinance, 2001, intimating that for onwards use, said Town Municipal Administration has established a cattle market at Shuja Abad Road, Multan with all allied facilities and no other place will be permitted to be used as cattle market. The fee of Rs. 135/- per-cattle as entry fee has been introduced according to the sanctioned schedule in the newly established cattle market. However, in addition to such entry fee, no other charges are being claimed either from sellers or purchasers of cattle.

6. Precisely, grievance raised by the petitioners is that notwithstanding the establishment of new cattle market, where earlier one has been ordered to be relocated, their right to carry out the business of administrating the affairs of cattle market at village Samu Rana would remain intact and the respondent-authority viz. Local Government has no right whatsoever to cause interference into their such, what they have called "lawful business". In an indirect way, a compensation has been claimed by the petitioners for stated damage caused to some fixtures at previous cattle market at village Samu Rana over which according to petitioners, they have invested on the asking of Local Administration in year 2006. It has further been prayed that the claim of fee by the TMA Sher Shah Town with regard to such cattle market be also declared as illegal.

7. On 02.08.2001, feeling it expedient to devolve political power and decentralize administrative and financial authority to accountable local governments for good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at grass roots level, the Punjab Local Government Ordinance, 2001 was promulgated. In view of Section 195 of the said Ordinance, every Local Government was empowered to perform functions conferred by or under the Ordinance and in performance of such functions was competent to exercise such powers and follow such procedures as are enumerated in the Sixth Schedule, thereof.

8. Section 49 of Sixth Schedule reads as under:--

"49. Public markets and slaughter-houses--(1) A local government may provide and maintain within its own local area public markets and public slaughter-houses, in such number as it thinks fit, together with stalls, shops, sheds, pens and other buildings or conveniences for the use of persons carrying on trade or business in or frequenting such markets or slaughter-houses and may provide and maintain in any such market buildings, places, machines, weights, scales and measures for the weightment or measurement of goods sold therein.

(2). The concerned local government may at any time, by public notice either close or relocate any public market or public slaughter-house or any part thereof."

By virtue of Section 53 of Sixth Schedule, the following provision was made:

"53. Private markets and slaughter-houses.--(1) No place in a local area other than a public market shall be used as a market, and no place in a local area other than a public slaughter-house shall be used as a slaughterhouse, unless such place has been licensed as a market or slaughter-house, as the case may be, by the concerned local government.

(2) Nothing in sub-paragraph (1) shall be deemed to restrict the slaughter of any animals in any place on the occasion of any festival or ceremony, subject to such conditions as to prior or subsequent notice as the concerned local government with the previous sanction of the local council may, by public or special notice, impose in their behalf."

Section 54 of Sixth Schedule provides conditions for grant of licence for private market or slaughter-house.

1. From the above referred scheme of law, it is, thus, clear that it is the exclusive power of a local government either to establish or relocate any public market or public slaughter-house or any part thereof.

2. The concept of private markets is although provided in the Ordinance, but that has been made conditional with a licencing system to be issued to such interested person desirous of establishing a private market within the area of that local government and without such licence the functioning of any individual/individuals in the business of any private market is nullity in the eyes of law.

3. The petitioners, in both the petitions, have never surrendered to the jurisdiction of licencing authority i.e. Local Government by seeking permission to establish any private market, rather they only want to recognize their status of "Commission Agents" and to permit them to continue with their such illegal practice in an area, which once was being used as a public market and where according to their own claim, they have invested some amount for provision of some facilities felt necessary at the relevant time for establishment of a cattle market. In fact, what the petitioners want is a completely parallel system to that of a public market being legally run by the respondent-Local Administration and without adopting legal procedure to get licence before establishment of a private market, they intend to continue with their illegal practice under the cover of some judicial order.

4. If at any point of time, some individuals were associated in some arrangements of establishing a cattle market in public sector, either by investing some amount in purchasing/taking some property on lease or by providing some allied facilities in the cattle market once established at village Samu Rana, that would not provide any legal status to such individuals to claim that they have attained the right to collect what they have termed the "commission" from the sellers or purchasers of cattle using cattle market for such purpose. Even if, in past, any individual was associated in such like arrangements, that would not confer any right defeating the statutory provisions of law on the subject. One, who intends to involve in the business of cattle market by establishing the same in private sector, he has to undergo the licencing process as introduced in the Ordinance, without which, he has no right to establish or run a cattle market in private sector.

5. The term "commission" is alien to the scheme of law provided for the establishment of a cattle market, thus, even if one is licenced to establish and run a cattle market in private sector, the receipt of commission would again be an action having no legal sanctity and no one can competently ask for a decree of the Court in this regard.

6. The petitioners or any other individual, if have any claim, as against their stated investments either in establishing the cattle market at village Samu Rana or in providing some facilities there, they/he have/has every right to raise such claim in a Court of law, where after recording of evidence, adjudication can be made.

7. The petitioners have no vested right enforceable through the Constitutional Jurisdiction of this Court. They are asking for a relief in negation of the statutory provisions, which at no cost, can be granted.

8. For whatever has been discussed above, the petitions have no force and the same are dismissed.

(R.A.) Petitions dismissed

PLJ 2013 Lahore 466 [Bahawalpur Bench Bahawalpur]

Present: Atir Mahmood, J.

SALEEM AKHTAR, etc.--Petitioners

versus

PROVINCE OF PUNJAB, etc.--Respondents

C.R. No. 775 of 2012, decided on 20.5.2013.

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

----O. XXXIX, Rr. 1 & 2--Temporary injunction was granted by trial Court--Application u/Order XXXIX, R. 1 & 2, CPC was dismissed by First Appellate Court--Challenge to--Ingredients of--Legality and jurisdictional error was committed--Validity--Petitioner had not even challenged registered sale deeds and merely sought cancellation of mutation--Petitioner had not been able to establish any of ingredients for grant of temporary injunction i.e. prima facie case, irreparable loss and balance of in-convenience in their favour--Petition was dismissed. [P. 468] A & B

Ch. Shehzad Ashraf Mohandra, Advocate for Petitioners.

Mr. Saeed Ahmad Chaudhry, AAG for Respondents No. 1 to 7.

Mr. Aftab Ahmad Goraya, Advocate for Respondents No. 8 to 15.

Date of hearing: 20.5.2013.

Order

Briefly facts giving rise to this petition, are that the petitioners, filed a suit for declaration to the effect that they are the owners of the property, fully explained in the head-note of the plaint and the Defendants No. 8 to 13 (present Respondents No. 8 to 13) have no right or concern with the same; further sought a declaration that the order, dated 07.01.2011 passed by Defendant No. 2/Respondent No. 2, orders dated 9.09.2010 and 21.10.2010 passed by Defendant No. 3/Respondent No. 3 regarding review of Mutation No. 1414 attested on 01.03.1968 and subsequent orders of. imitations No. 21079 and 21080 attested on 14.09.2010 passed by Defendant No. 5/Respondent No. 5 are illegal, unlawful and inoperative against the rights of the plaintiffs; further sought the possession and permanent injunction against the defendants/respondents restraining them from alienating the suit property to anybody else. Alongwith the plaint, the petitioners filed an application under Order XXXIX Rules 1 and 2, CPC for temporary injunction.

1. The learned trial Court below accepted the application, under Order XXXIX Rules 1 and 2, CPC, of the plaintiffs, vide order dated 16.04.2011 which was assailed in appeal by the present Respondents No. 8 to 11 before the lower appellate Court. The appeal of the Defendants No. 8 to 11/Respondents No. 8 to 11 was accepted by the learned Additional District Judge, Rahim Yar Khan vide judgment dated 19.09.2012 whereby the application under Order XXXIX Rules 1 and 2 CPC of the plaintiffs/petitioners was dismissed. Being aggrieved of the judgment of the lower appellate Court, the petitioners filed the instant writ petition.

2. The learned counsel for the petitioner contended that the learned Additional District Judge has unlawfully dismissed the application of the petitioners for grant of temporary injunction; that the order of the learned trial Court is based on cogent reasons; that the balance of convenience lies with the petitioners; that the petitioners are owners of the property; that if the temporary injunction is not granted to the petitioners they will suffer irreparable loss. He prays that this civil revision be allowed, the impugned order be set aside and the order of the learned trial Court be restored.

3. On the other hand, learned counsel appearing on behalf of Respondents No. 8 to 15 as well as learned AAG while supporting the impugned judgment passed by the learned Additional District Judge have submitted that the respondents are owners in possession of the property vide registered Sale-Deed No. 518 dated 21.2.1959, registered Sale-Deed No. 55 dated 23.02.1960 and registered Sale-Deed No. 685 dated 12.12.1959 and exchange Deed No. 72 dated 3.5.1991 on the basis of which the mutations under challenged were attested by the competent authorities; that the petitioners have no right over the suit property, therefore, this civil revision be dismissed.

4. I have heard the learned counsel for the parties and have also gone through the available record.

5. It is evident from the record that the petitioners, while filing the suit, have not challenged or sought the cancellation of the sale deeds on the basis of which the impugned mutations were attested; possession of the suit, property is admittedly with the respondents. The petitioners have not been able to point out any illegality or jurisdictional error committed by the learned Additional District Judge while passing the impugned judgment. I am guided by the dictum laid down by the Hon'ble Supreme Court of Pakistan in the case cited as Mst. Feroz Begum Vs. Mst. Amtul Farooq (1976 SCMR 291), which reads as under:-

"Having perused the impugned judgment, we find that the District Judge had brushed aside a registered sale deed in respect of the disputed house placed on the record by the respondent purporting to show that her late husband had transferred the house in her favour. The view taken by the High Court was that this document could not be lost sight of merely on account of the challenge to its genuineness as at any rate the finding required to be given at this stage was to be merely tentative in nature and the document was good enough to justify the inference of a prim facie case in favour of the respondent. The petition is completely devoid of force and is hereby dismissed".

1. In the present case the petitioners have not even challenged the registered sale deeds in favour of the respondents and merely sought the cancellation of the mutations in favour of the Respondents No. 8 to 13. In view of the above discussion, the petitioners have not been able to establish any of the ingredients for the grant of temporary injunction i.e. prima facie case, irreparable loss and balance of in-convenience in their favour. This petition being devoid of merits is hereby dismissed.

(R.A.) Petition dismissed

PLJ 2013 Lahore 468 [Multan Bench Multan]

Present: Ibad-ur-Rehman Lodhi, J.

MUHAMMAD YASIR ANWAR--Petitioner

versus

VICE CHANCELLOR, BZU and 3 others--Respondents

W.P. No. 4259 of 2013, decided on 30.5.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Jobs in University including lecturer with qualification of M.A./B.Sc--Petitioner was appointed as lecturer on contract basis--Request to regularize in service was not responded--Added some more qualifications for obtaining by Semester Implementation Committee--Question of eligibility criteria for appointment of lecturer--Validity--Subsequent change in eligibility criteria and that too by completely irrelevant committee which was alient to scheme provided in rules cannot be relied upon in order to defeat right which already been accrued in favour of petitioner--Petitioner was eligible to be regularized in service of university as lecturer in computer engineering and university authorities had acted in illegality is not accepting his such status--Petition was allowed. [Pp. 471 & 472] A & B

2008 SCMR 598, ref.

Mr. Khadim Nadeem Malik, Advocate for Petitioner.

Malik Muhammad Tariq Rajwana, Advocate/Legal Advisor for Respondent/University.

Date of hearing: 30.5.2013.

Order

By means of an advertisement dated 24.07.2008, the respondent-Baha-ud-Din Zakariya University, Multan invited the applications from Pakistani Nationals for different jobs in the University including four vacancies of Lecturer in Computer Engineering with qualification of Master's Degree/B.SC.(Engineering) (First Class) in the relevant filed with no 3rd Division in the academic career, from HEC recognized University/Institution. No experience was required for the said job. The petitioner applied for the said job and by means of office Order No. PF/Cont.C Engg/Admin-1824, dated 11.02.2010, the Vice-Chancellor on the recommendations of the Director Academcis approved the recommendations of Selection Board arrived at in its 01/2009 meeting held on 10-11 January, 2009 and appointment of the petitioner was ordered as Lecturer in Computer Engineering in University College of Engineering & Technology, on contract basis initially for a period of one year. A condition amongst others was imposed upon the petitioner in case of his acceptance of said job was to withdraw the earlier filed writ petition praying therein for the said job, which petition was withdrawn. The petitioner joined services of the University. By means of office Order No. PF/18/Cont.C.Engg./Admin-1250 dated 1.2.2011, the services of the petitioner were extended for a period of further one year from 11.02.2011 to 10.02.2012 in BPS-18. In similar manner, it was further extended vide office Order No. PF/18/Cont.C.Engg. /Admin-1469 dated 10.02.2012 till 10.08.2012 in the same scale.

1. The Registrar of the University, vide Notification No. Univ-597-Admin/8002, dated 12.08.2010 conveyed the decision of the Syndicate arrived at in its 5/2010 meeting held on 17.07.2010 for regularization of the services of contract faculty members who were appointed through Selection Board and completed two years services satisfactorily.

2. The petitioner having been appointed and joined the services in University on 11.02.2010 completed his two years service on 10.02.2012 and even before expiry of said period, he moved the concerned authorities in University for his regularization through application dated 15.11.2011 seeking his regularization w.e.f. 10.02.2012. The office Order No. Admin.UCE&T-22/11809 dated 03.12.2012 indicates that the petitioner even at that point of time was being treated as Lecturer in Computer Engineering in University and in his such capacity assigned the part time duties of Controller of Examination (Personal Computing Examination) for B.Sc. Computer Engineering Session 2011-2012 w.e.f. 01.12.2011 to 31.10.2012 with an additional remuneration for said additional work at the rate of Rs. 2000/- per month.

3. Having no response for his request to regularize him in the service, the petitioner again on 02.04.2013 sought the same relief which although has not been responded to but the petitioner was made to believe that he was not going to be regularized on the strength of a recommendation by Semester Implementation Committee arrived at in its meeting on 25.09.2012 which added some more qualifications for obtaining CGPA under Semester System and also a 1st Division under Annual System.

4. In such background, the petitioner prays for his regularization which prayer is seriously resisted by the University mainly on the plea that firstly the constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 is not maintainable with regard to the affairs of the University and secondly that in view of the changed criteria as was recommended by the Semester Implementation Committee the petitioner was not qualified to be considered for regularization.

5. After hearing the learned counsel for the parties and going through the record, I find that in whole scheme of law deal with the affairs of the University and relevant chapter in calendar of University providing a process of selection and allied matters in the University, "Semester Implementation Committee" figures nowhere. It is only Syndicate, Senate and in some emergent situation the Vice Chancellor which are competent to take necessary steps to run the administrative affairs of the University. The addition in eligibility criteria for appointment of Lecturer as was recommended by said Committee is, thus, not sustainable and refusal on the part of University by placing reliance on such recommendations stands nowhere.

6. A right was accrued in favour of the petitioner on 10.02.2012 to be regularized on the strength of eligibility criteria provided by the Syndicate on 17.07.2010 and conveyed on 12.08.2010 which was in existence and holding the field on the relevant date, therefore, eligibility of the petitioner was to be adjudged on the touchstone of the criteria prevailing on 10.02.2012, the relevant date in case of the petitioner when he completed two years service on contract, satisfactorily. The subsequent change in eligibility criteria and that too by completely irrelevant Committee which is alien to the scheme provided in the relevant rules cannot be relied upon, particularly, in order to defeat a right which has already been accrued in favour of the petitioner. The Hon'ble Supreme Court of Pakistan in a case reported as "Mian Tariq Javed versus Province of Punjab through Chief Secretary, Government of Punjab, Lahore and 2 others" (2008 SCMR 598) has authoritatively held that the principle of locus poenitentiae would not permit even the competent authority to undo any appointment even if found defective after a long time and the incumbent would not liable to be removed from service.

7. Learned counsel for the respondent-University has vehemently stressed for dismissal of the petition having not maintainable within the meaning of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

8. Hon'ble Supreme Court of Pakistan in a case reported us "Rana Aamer Raza Ashfaq and another versus Dr. Minhaj Ahmad Khan and another" (2012 SCMR 6) while dealing with a case relatable to Baha-ud-Din Zakariya University which incidentally is the respondent in the present petition also and on the question of maintainability of a constitutional petition with regard to affairs of University following was the dictum laid down:

"Adverting to the validity of the judgment under challenge, the submissions of petitioner's learned counsel qua the maintainability of petition before the High Court have been considered by us. However, we find that the impugned judgment even if having some element of jurisdictional defect has been passed in aid of justice and any interference would not be in record with the canons of equity".

1. Even otherwise, learned counsel for the respondent-University himself has placed reliance on the case reported as "University of the Punjab, Lahore and 2 others versus Ch. Sardar Ali" (1992 SCMR 1093) to contend that "normally" a right against a University would not be enforced by maintaining a constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. The use of word "normally" in the said reported judgment do indicate the intention and command of the Apex Court that there is no complete bar in entertaining the constitutional petitions dealing with the affairs of a University which otherwise is creation of a statue. The respondent-University is creation of Baha-ud-Din Zakariya University Act (III) of 1975.

2. For what has been discussed above, I am of the view that the petitioner was eligible to be regularized in service of the University as Lecturer in Computer Engineering w.e.f. 10.02.2012 and the University Authorities have acted in illegality in not accepting his such status.

3. Resultantly, this writ petition is allowed and the respondents are directed to treat the petitioner as a Regularized Lecturer in Computer Engineering w.e.f. 10.02.2012 and issue appropriate orders with all consequential benefits within next fifteen days.

4. I have been informed by the learned counsel for the petitioner that notwithstanding the fact that the petitioner is continuously performing his duties in the University, he is not being paid any salary/remuneration since August, 2012.

5. The University Authorities are also directed to immediately arrange the release of withheld remuneration of the petitioner again within a period of next fifteen days and to continue making payment in future without any break according to his entitlement.

(R.A.) Petition allowed

PLJ 2013 Lahore 472 [Bahawalpur Bench Bahawalpur]

Present: Atir Mahmood, J.

MUHAMMAD IMTIAZ, etc.--Petitioners

versus

CHIEF EXECUTIVE MEPCO, etc.--Respondents

W.P. No. 2625 of 2013, heard on 16.5.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Disconnection to--Electricity connections were sanctioned by competent authority after fulfilling all codal formalities and petitioners were enjoying basic amenity of life i.e. electricity which was disconnected without issuing any prior show-cause notice--Held: No notice was issued prior to disconnection of electricity supply rather disconnection was made first and then notice was issued--It is settled law that no one will be condemned unheard--If there was any illegality on part of petitioners, MEPC were under legal obligation to issue notice to petitioner prior to taking any penal action--Disconnection of electricity supply, which was undeniably a basic amenty of life without issuing prior notice to petitioner was illegal, unlawful and against principle of natural justice i.e. audi-alteram partem--Without adopting such procedure, no penal action will be deemed to be valid and lawful--Petition was allowed. [Pp. 474 & 475] A & B

PLJ 2012 Lah. 751 & PLD 2011 SC 163, ref.

Mr. Muhammad Imran Lodhi, Advocate for Petitioner.

Mr. Ozair Qayyum, Advocate for Respondents.

Date of hearing: 16.5.2013.

Judgment

This writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 challenges the disconnection of electricity connections of the petitioners by the respondents-MEPCO.

1. Learned counsel for the petitioners submits that the petitioners applied for electricity connections at their respective premises situated at Shadab Colony, Bahawalpur. After survey, demand notices, were issued to the petitioners. The petitioners paid the demand notices. After completion of formalities, the electricity connections were approved and the meters were installed at the premises of the petitioners. Thereafter, the petitioners had been paying monthly bills issued by the respondents for some months. All of a sudden, on 09.04.2013 the respondents disconnected the electricity connections of the petitioners without issuing any prior notice. Learned counsel contends that this act of the respondents is against the law amounting to denial of their fundamental rights, therefore, this writ petition be allowed and the respondents be directed to immediately restore the electricity of the petitioners.

2. On the other hand, learned counsel for the respondents submits that the meters installed at the premises of the petitioners were illegal as these were installed at premises located in an unapproved scheme. He maintains that it is a policy of the MEPCO that no connection will be given to premises situated in unapproved housing schemes. He further submits that during the survey, the petitioners with mala fide intention showed the premises other than the premises where the meters were required to be installed and managed to get connections in this way, therefore, the meters were lawfully removed. He prays that this writ petition is without any merit, hence it be dismissed. In support of his contentions, he has relied upon the law laid down by the Hon'ble Supreme Court of Pakistan in Human Rights Case No. 56878-P of 2010 cited at "PLD 2011 SC 163".

3. Arguments heard. Record perused.

4. When confronted with the question about the existence of "non-approved and illegal housing scheme" where the electricity connections of the petitioners were installed, learned counsel for the respondents has not been able to establish anything on record. It is admitted fact that the electricity connections were sanctioned by the competent authority after fulfilling all the codal formalities and the petitioners were enjoying the basic amenity of life, i.e. electricity, which was discontinued by the respondents without issuing any prior show-cause notice. The notice dated 17.04.2013 clearly establishes that the electricity connections were disconnected and the meters were removed from the premises of the petitioners and deposited in the office of the respondents and then the notice dated 17.04.2013 was allegedly issued. The wording of the said notice is reproduced as under:

1. It is crystal clear from the wording of the notice that no notice was issued by the respondents prior to disconnection of electricity supply rather the disconnection was made first and then the notice was issued. It is settled law that no one will be condemned unheard. If there was any illegality on the part of the petitioners, the respondents were under legal, obligation to issue notice to the petitioners prior to taking any penal action against them. Disconnection of electricity supply, which is undeniably a basic amenity of life, by the respondents without issuing prior notice to the petitioners is illegal, unlawful and against the principle of natural justice, i.e. audi alterant partem which says that anybody against whom some allegation is levelled and likely to be penalized on this account will be intimated before initiating any such proceedings so as to enable him to defend himself in accordance with law. Without adopting such procedure, no penal action will be deemed to be valid and lawful. In this regard, the petitioners were unlawfully deprived from their fundamental right guaranteed under the Constitution of Islamic Republic of Pakistan, 1973. I am guided by the principles laid down in case titled "Haji Muhammad Latif Vs. Chief Executive GEPCO, Gujranwala and 3 others (PLJ 2012 Lahore 751 (DB)", Relevant para of the said judgment is reproduced as under:

"8. According to Article 9 of the Constitution of Islamic Republic of Pakistan, 1973 no person can be deprived of his life save in accordance with law. The expression "life " does not mean, physical existence but it means enjoyment of all facilities which enable a person to lead a life in a graceful and dignified manner. Electricity is a basic necessity of life and in this age of science and technology no one can lead a conducive life and play effective role in the society without electricity. The denial of electricity connection to the appellant is a violation of fundamental right and the respondents have failed to furnish any reasonable explanation for not providing electricity connection to the appellant."

1. With utmost respect to the Hon'ble Supreme Court of Pakistan, the case law cited by learned counsel for the respondents cited at PLD 2011 SC 163 is not applicable to the present case as the petitioners in this case are not seeking connections in an un-approved housing society but asserting their right of continuation of electricity supply at their premises which was duly approved by the competent authority and not located in any unapproved housing scheme.

2. In view of the above, this writ petition is allowed and the respondents are directed to restore the electricity connections of the petitioners forthwith. However, if there is any illegality committed by the petitioners, the respondents may proceed against the petitioners after having them issued a prior notice, strictly in accordance with law.

(R.A.) Petition allowed

PLJ 2013 Lahore 476 [Multan Bench Multan]

Present: Muhammad Qasim Khan, J.

MEHR ZAMAN and 2 others--Petitioners

versus

STATE and 3 others--Respondents

W.P. No. 6235 of 2013, decided on 14.6.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Cranes were taken into possession by wild life department--Custody of cranes and cages--Superdari of birds--Accused conferred found guilty and paid fine in Court--For superdari accused had failed to produce original licence/export licence of wildlife Animal Birds in Court--Orders were challenged--Undisputedly cranes/birds and cages were recovered from petitioners and except petitioners none else had come forward to claim ownership of birds--Held: Since trial was still under progress, petitioners were found entitled to get birds and cages on superdari--Petition was allowed. [P. 477] A

Malik Muhammad Ramzan Khalid Joiya, Advocate for Petitioner.

Mr. Mubashir Latif Gill, Assistant Advocate General for State.

Date of hearing: 14.6.2013.

Order

Briefly the facts of the case are that present petitioners were booked under Wild Life Act, 1974 with an allegation that they caught and kept the Cranes in their possession illegally, as such, 125-Cranes were taken into possession by Wild Life Department, Dera Ghazi Khan. Pursuant to alleged confession by the accused persons, certain fines were imposed on them vide order dated 01.04.2013 passed by learned Special Judicial Magistrate. On revision petition filed by the petitioners, the learned Sessions Judge, Dera Ghazi Khan vide order dated 11.04.2013 remanded the case to the learned Special Judicial Magistrate with a direction to decide the matter afresh after framing the charge properly. As regards the claim of the accused/petitioner about custody of the cranes and cages, the learned Sessions Judge observed that petitioner/ accused may approach learned Special Judicial Magistrate. Pursuant to the direction of learned Sessions Judge, the petitioner moved application for getting Superdari of the birds, vide order dated 30.04.2013, the applications were consigned to record with the observations "Accused confessed, found, guilty and paid fine in the Court. For the "Superdari" they have been failed to produce original licence/NOC/Export Licence of Wildlife Animal/Birds in the Court for handing over the cranes." Said order was again assailed through criminal revision, which has been dismissed by learned Sessions Judge, Dera Ghazi Khan vide order dated 07.05.2013. The petitioners have assailed the above orders through the instant writ petition.

1. Heard.

2. During hearing of this case, Assistant Director Wildlife, Multan was called and explained that as a matter of fact the petitioners did not carry transit permission at the time when they were hauled up. It is admitted position that Cranes were recovered from the possession of the petitioners and under the orders passed by learned Special Judicial Magistrate, Dera Ghazi Khan, the same were given in the custody of Wildlife Department, Dera Ghazi Khan. The impugned orders passed by learned Special Judicial Magistrate and the learned Sessions Judge are solely based on the ground that original licence were not produced by the claimants/petitioners. The record shows that at one point of time the licences produced by the petitioners were sent by the learned Special Judicial Magistrate to the Chief Conservator Wild Life, Khyber Pakhtankhwa for verification of the licence and vide letter No. 1055/WL(B) dated 25.04.2013 the Divisional Forest Officer, Bannu Wildlife Division, Bannu, verified the licences of the petitioners. Without further commenting on the merits of the case, suffice it to observe that undisputedly the Cranes/birds and cages were recovered from the petitioners and except the petitioners; none else has come forward to claim ownership of the birds. In this view of the matter, since the trial is still under progress, the petitioners are found entitled to get the birds and cages on Superdari. Consequently, this writ petition is allowed. Since the value of the birds has been assessed by the Wildlife authorities as Rs. 1,50,000/- approximately, therefore, subject to petitioners furnishing security equal to Rs. 300,000/- to the satisfaction of learned Special Judicial Magistrate, Dera Ghazi Khan, the birds/Cranes and cages in question are ordered to be handed over to them. The petitioners shall also submit their undertaking before the said Court to produce the birds/Cranes and cages before the learned trial Court as and when required.

(R.A.) Petition allowed

PLJ 2013 Lahore 478 [Bahawalpur Bench Bahawalpur]

Present: Atir Mahmood, J.

NAZEER AHMED KHAN BALOCH--Petitioner

versus

ELECTION COMMISSION OF PAKISTAN, etc.--Respondents

W.P. No. 2517 of 2013, heard on 26.4.2013.

Constitution of Pakistan, 1973--

----Arts. 16 & 199--Constitutional Petition--Freedom to each and every citizen to assemble peacefully and without arms subject to any reasonable restrictions imposed by law in interest of public order--Right to convey manifesto of party to public-at-large--Code of conduct issued by Election Commission--Public processions will be held by political parties--Validity--There is a specific prohibition for holding a public meeting at a place of candidate's own choice--Art. 16 of Constitution allows every citizen of country to assemble peacefully and without arms subject to any reasonable restriction imposed by law in interest of public order--Respondent had not been able to show any law on basis of which restriction had been imposed on holding a public meeting by petitioner at a place of his own choice--It was right of petitioner to convey them what he or his party wants to do if they come in power which right cannot be taken away from him on any pretext--No execute to refuse petitioner to hold a public meeting at place of his own choice on pretext of law and order situation--No body can be allowed to endanger safety of public or interfere in smooth running of public life--Petition was allowed. [P. 480] A, B, C & D

Mr. Muhammad Aslam Khan Dhukkar, Advocate for Petitioner.

Mr. Muhammad Iqbal Mehr, Asstt. A.G. for Respondents.

Date of hearing: 26.4.2013.

Judgment

Through this constitutional writ petition, the petitioner has prayed that the respondents be directed not to create hurdles in holding a public meeting/jalsa at Khan Baila Sub-Tehsil in connection with the forthcoming general elections within the constituency of the petitioner, i.e. PP-286 RYK-II.

1. Briefly stated the facts rising to the institution are that the petitioner belongs to Pakistan Tehreek Insaaf. He is a candidate for the seat of PP-286 RYK-II and has been allotted symbol of `BAT'. He wants to hold a public meeting at Khan Baila Sub-Tehsil of Tehsil Liaquatpur on 27.04.2013 but the respondents are not allowing him to do so on the pretext of law and order situation. Hence this writ petition.

2. Learned counsel for the petitioner inter alia contends that Article 16 of the Islamic Republic of Pakistan, 1973 gives freedom to each and every citizen to assemble peacefully and without arms subject to any reasonable restrictions imposed by law in the interest of public order; that there is no prohibition by any law in vogue upon holding public meetings; that the elections are forthcoming and the petitioner being a candidate of PP-286 has a right to convey the manifesto of his party to the public at large; that no consultation with any of the candidates of the constituency has been made by the respondents while specifying the places of rallies and processions which is against the code of conduct issued by the Election Commission of Pakistan; that the place of Liaquatpur Stadium specified by the District Administration is 30 Km away from the place identified by the petitioner; that it would not be possible for the petitioner to carry the people to Liaquatpur Stadium to apprise them with his party manifesto, therefore, this writ petition be allowed and the respondents be restrained from creating hurdles in the way of holding of public meeting by the petitioner.

3. On the other hand, learned Law Officer submits that Clause 34 of Code of Conduct issued by Election Commission of Pakistan clearly says that the rallies, processions and meetings will be held on the places specified by the District Administration; that keeping in view the law and order situation in the country, places have been specified by the District Administration for holding rallies, processions and public meetings vide notification dated 25.04.2013; that the petitioner may hold the jalsa at Liaquatpur Stadium Liaquatpur; that the public meeting at the choice of the petitioner will endanger the life and property of the public. He prays that this writ petition be dismissed.

4. Arguments heard. Record perused.

5. I have gone through the report submitted by Respondent No. 5. The Code of Conduct issued by the Election Commission of Pakistan is also appended with the report. Perusal of the Code of Conduct shows that political parties and candidates can carry out the rallies and processions at the places specified by the District Administration in consultation with the candidates of the relevant constituency or their representatives. Learned Law Officer has stressed more on Clause 34 of the Code of Conduct, however, it pertains to rallies and processions and not to the public meetings. The code of conduct issued by Election Commission does not prohibit holding of public meetings in any manner. Learned Law Officer has also drawn my attention to notification dated 25.04.2013 issued by District Coordination Officer Rahim Yar Khan which provides that the public processions will be held by the political parties and the candidates at places specified below:

"Public Places for Jalsas

1. Khawaja Fareed Park, Kachi Mandi, Liaquatpur

2. Liaquatpur Stadium, Liaquatpur.

For Rallies:

. Khawaja Fareed Park, Kachi Mandi to Railway Chowk via Allah Chowk Liaquatpur."

1. Apparently, no prohibition on holding public meetings has been imposed vide notification dated 16.04.2013 or notification dated 25.04.2013. When confronted with, learned Law Officer has not been able to show that there is a specific prohibition for holding a public meeting at a place of candidate's own choice. Article 16 of the Constitution of Islamic Republic of Pakistan, 1973 allows every citizen of the country to assemble peacefully and without arms subject to any reasonable restriction imposed by law in the interests of the public order. The respondents have not been able to show any law on me basis of which restriction has been imposed on holding a public meeting by the petitioner at a place of his own choice.

2. Furthermore, Liaquatpur Stadium, Liaquatpur is 30-Km away from the place of choice, of the petitioner and the petitioner may not be able to carry the people of his constituency to such a distant place. Being a candidate in the general elections to be held on 11.05.2013, it is the right of the petitioner to convey them what he or his party wants to do if they come in power which right cannot be taken away from him on any pretext.

3. Undoubtedly, public safety is of paramount consideration but the public functionaries are expected to act strictly in accordance with law. There is no excuse to refuse the petitioner to hold a public meeting at a place of his own choice on the pretext of law and order situation. At the same time, no body can be allowed to endanger the safely of the public or interfere in the smooth running of the public life. Learned counsel for the petitioner on behalf of his client undertakes that no public thoroughfare will be obstructed in any manner on the eve of the public meeting in question.

4. In view of the above, this Writ Petition is allowed. The respondents are directed not to create hurdles in the way of holding the public meeting by the petitioner at the place of his own choice, i.e. Khan Baila Sub-Tehsil. They are also directed to manage security to maintain law and order situation at the place of the said public meeting.

(R.A.) Petition allowed

PLJ 2013 Lahore 481 (DB) [Multan Bench Multan]

Present: Muhammad Yawar Ali and Ibad-ur-Rehman Lodhi, JJ.

SAIF ULLAH SALEEM ARSHAD and another--Petitioners

versus

STATE and 2 others--Respondents

W.P. No. 2902 of 2013, heard 23.4.2013.

Constitution of Pakistan, 1973--

----Art. 199--Anti-Terrorism Act, 1997, Ss. 7 & 23--Pakistan Penal Code, (XLV of 1860), Ss. 324, 336-B & 337-F(i)--Transfer of trial proceedings to Court of ordinary jurisdiction--Lacking of spread of sense of insecurity and fear in common mind--Validity--Occurrence took place in a room of Hotel--It was not a public place and, therefore, element of striking terror or creating sense of fear in the people or any section of people was not made discernible in FIR--Offences would have nexus with object of Act proceedings of trial of case were ordered to be transferred to Court of ordinary jurisdiction. [P. 483] A & B

M/s. Rana Muhammad Asif Saeed, Muhammad Afzal Jatt and Rana Muhammad Nadeem Kanjoo, Advocates for Petitioners.

Ch. Faqir Muhammad, Advocate and Mirza Muhammad Saleem Baig, Addl. A.G. for Respondents.

Date of hearing: 23.4.2013.

Judgment

Ibad-ur-Rehman Lodhi, J.--After having been involved in a criminal case registered through FIR No. 725/12 dated 10.11.2012 under Sections 324, 336-B, 337-F(i), PPC and 7 Anti-Terrorism Act, 1997 in Police Station Chehlyak District Multan, the petitioners were put to trial by the Special Court, constituted under Anti-Terrorism Act in Multan. Before the charge was framed by the Special Court, an application under Section 23 of Anti-Terrorism Act, 1997 was moved before the learned trial Court seeking transfer of the trial proceedings to the Court of ordinary jurisdiction. The learned Trial Judge after taking up the application on 05.03.2013 proceeded to dismiss the same and directed that the charge be framed against the petitioners.

1. The findings arrived at by the learned Special Judge Anti-Terrorism Court-I, Multan have been challenged through the present proceedings wherein a pre-admission notice to Respondents No. 1 and 3 was ordered to be issued by this Court on 11.03.2013. Today with the consensus of the parties, the petition is being treated as admitted one and final hearing was provided to the parties.

2. In support of the petition, the learned counsel for petitioners after making reference to preamble of Anti-Terrorism Act, 1997 Section 6 thereof and Section 336-B of PPC have submitted that by no stretch of imagination, the case falls within the ambit of "Terrorism" and therefore, dismissal of application moved under Section 23 of Anti-Terrorism Act, 1997 is illegal and impugned order is not sustainable.

3. Controverting the stance taken by the petitioners, it has been argued on behalf of the State and the complainant that for the reason that corrosive substance was used in order to cause injuries to the complainant, therefore, irrespective of the fact that the alleged act come within the definition of "Terrorism" or not; the same is triable by the Special Court constituted under Anti-Terrorism Act, 1997, particularly for the reasons that such penal offence has been included in third Schedule to the said Act.

4. We have heard the learned counsel for the parties and perused the record with their assistance.

5. In exercise of power as provided under Section 34 of Anti-Terrorism Act, 1997, Government of the Punjab in Home Department by means of a notification dated 26.9.2012 deleted the Entry No. 6 in the third Schedule of the Act by virtue of which Section 336-B of PPC was made part of the said Schedule but on the very next day i.e. 27.09.2012 by way of another notification under the same powers, the Provincial Government added paras-IV & V in the third Schedule providing that in case a hurt is caused by corrosive substance, the offence would be triable by the Special Court under the Anti-Terrorism Act, 1997.

Section 6 of Anti-Terrorism Act, 1997 defines "Terrorism" which inter alia means that any act which create a sense of fear or insecurity in the Society or involves grievous violence against a person or grievous bodily injury or harm to a person would be called as "Terrorism". Significant to note that Section 336-B of PPC has specifically been deleted from third Schedule of the Anti-Terrorism Act, 1997 whereas subsequently the offence causing hurt by corrosive substance was added in the said Schedule.

Joint reading of preamble of Anti-Terrorism Act, 1997 Section 6 thereof and Section 336-B, PPC would lead us to conclude that the offences mentioned in the Schedule to Anti-Terrorism Act, 1997 should have nexus with the objects mentioned in Sections 6 and 7 of the Act.

1. In the present case, nothing has been brought on record to show that the alleged occurrence created terror, panic or sense of insecurity among people and the society. Even in FIR, got registered by the complainant, no allegation of creating terror was levelled. Motive for the occurrence as was shown is enmity inter-se the parties and for that reason, the application of Section 7 of the Act which primarily required the spread of sense of insecurity and fear in common mind was Licking in the instant case. Admittedly the occurrence took place in a room of a hotel. It was not a public place and therefore, the element of striking terror or creating sense of fear in the people or any section of the people was not made discernible in the FIR. The offences mentioned in the Schedule to the Act should have nexus with the object of the Act and the offence covered by Sections 6 and 7 thereof.

2. We are fortified in our such view by the dictum laid down in the cases of Mehram Ali and others versus Federation of Pakistan and others (PLD 1998 Supreme Court 1445), Ch. Bashir Ahmad versus Naveed Iqbal and 7 others (PLD 2001 Supreme Court 521), Basharat Ali versus Special Judge. Anti-Terrorism Court-II, Gujranwala (PLD 2004 Lahore 199), Fazal Dad Versus Col. (Rtd.) Ghulam Muhammad Malik and others (PLD 2007 Supreme Court 571) and Bashir Ahmed Versus Muhammad Siddique and others (PLD 2009 Supreme Court 11).

3. For what has been discussed above, we are of the view that the case as was registered against the petitioners is triable by the Court of ordinary jurisdiction and therefore, we allow this petition by setting aside the order dated 05.03.2013 passed by the learned Special Judge, Anti-Terrorism Court-I, Multan, Section 7 of Anti-Terrorism Act, 1997, as inserted in FIR, is ordered to be deleted and resultantly the petition moved under Section 23 of Anti-Terrorism Act, 1997 is accepted, the proceedings of the trial of the case are ordered to be transferred to the Court of ordinary jurisdiction. The learned Special Judge, Anti-Terrorism Court-I, Multan is directed to transmit the record of the same to the learned Sessions Judge, Multan, who shall entrust it to some Court of competent jurisdiction.

(R.A.) Petition allowed

PLJ 2013 Lahore 484 [Bahawalpur Bench Bahawalpur]

Present: Atir Mahmood, J.

Mst. SHAHNAZ AKHTAR--Petitioner

versus

DEO, etc.--Respondents

W.P. No. 266 of 2013, decided on 9.5.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Appointment as S.E.S.E. on contract basis--Services were terminated on account of fake appointment letter--Factum of appointment through fraudulent means came into knowledge of the authorities--Validity--There was a fault on part of departmental authorities and not on that employees but in instant case, fault was admittedly on part of employees--Appointment letters through which petitioners were inducted in service were fake ones being prepared with fictitious signature of appointing authorities--Petition was dismissed. [P. 486] A

2007 SCMR 1835, rel.

Mr. Jamshaid Akhtar Khokhar, Advocate for Petitioner.

Mr. Saeed Ahmed Chaudhry, Asstt. A.G. for Respondents.

Date of hearing: 9.5.2013.

Judgment

Through this consolidated judgment, I intend to dispose of Writ Petition No. 266/2013/BWP and Writ Petition No. 224/2013/BWP as common questions of law and fact are involved therein.

1. Facts of both the cases are the same. The petitioners were appointed as Senior Elementary School Educator (SESE) in BPS-14 vide order dated 30.03.2007 on contract basis initially for a period of five years which was extended for a further period of five years and performed their duties till 31.12.2012 when Respondent No. 1 vide order dated 31.12.2012 terminated their services on the allegation that their appointment letters were fake which order has been impugned in these writ petitions.

2. Learned counsel for the petitioners submits that even if the petitioners were appointed through bogus appointment letters, it was necessary for the respondents to hold a proper inquiry to look into the allegation and then reach a just and fair conclusion that the appointment of the petitioners are fake or otherwise. He admits that the petitioners were appointed through fake appointment letters but asserts that their services could not be terminated without holding a proper inquiry. In support of his contentions, learned counsel has relied upon the law laid down by the Hon'ble Supreme Court of Pakistan in cases titled "Executive District Officer (Edu), Rawalpindi and others Vs. Mst. Rizwana Kausar and 4 others (2011 SCMR 1581), "The Secretary, Government of the Punjab, through Secretary, Health Department, Lahore and others Vs. Riaz-ul-Haq (1997 SCMR 1552)" and "Secretary to Government of NWFP Zakat/Social Welfare Department, Peshawar and another Vs. Saadullah Khan (1996 SCMR 413)." He prays that both the writ petitions in hand be allowed and the petitioners be re-instated into service while declaring the impugned termination letter dated 31.12.2012 illegal and unlawful.

3. On the other hand, learned Law Officer submits that neither any advertisement was made for the posts in question nor the petitioners submitted applications for their appointment against the posts of SESE. He avers that the petitioners managed the appointment letters in their favour in connivance with the departmental authorities through fraudulent means and in this way, usurped the rights of lawful prospective candidates of these posts. He argues that the offer letter allegedly issued by Mst. Shahida Hafeez, Ex-DEO(W-EE), Bahawalnagar was under the fake signatures. He contends that no fraud committed by any person can be protected by the Courts as it will encourage others to do the same rather than stopping them from using unfair means. He requests that this writ petition being devoid of any force be dismissed.

4. Arguments heard. Record perused.

5. It appears from the record that the factum of appointment of the petitioners through fraudulent means came into the knowledge of concerned authorities when a complaint was filed by one Munawar Hussain s/o Barkat Ali before the Director Anti-Corruption, Bahawalpur Division, Bahawalpur asserting that the appointment of the petitioners was result of bogus and fake orders. A fact finding report was obtained by the departmental authorities. After considering the fact finding report, the competent authority vide order dated 01.11.2012 dispensed with the requirement of further inquiry and directed the petitioners to appear before him for the purpose of personal hearing which was duly given to them whereafter the impugned order was passed. Relevant paragraph of the impugned order is as under:

"The appointment of Educators of various categories were made school specific according to the recruitment policy 2006-07. Neither the vacancy of SESE (Arts) BS-14 of Govt. Girls E/S 199/8-R Tehsil Fortabbas was advertised nor the said so called Educator submitted her application for appointment as SESE (Arts) in BS 14 on contract basis. The offer letter has been shown to be issued under the fake signature of Mst. Shahida Hafeez EX-DEO (W-EE) Bahawalnagar. The entry of the dispatch register is also fabricated which is evident that the dispatch register was closed at Serial No. 1250 on 30.03.2007 whereas the dispatch No. 1432-34 has been shown in the offer letter dated 30.03.2007. Thus the forgery rises to the surface of the dispatch register as well as relevant record of this office."

1. Learned counsel for the petitioners has nowhere, either in writ petition or his arguments, asserted that the appointment orders were genuine and issued by the competent authority rather he has frankly admitted before this Court that the appointment orders were bogus and fake.

2. In the cases referred to by learned counsel for the petitioners, there is a fault on the part of the departmental authorities and not on that of the employees but in this case, the fault is admittedly on the part of the employees. This particular feature distinguishes the instant case from the cases referred to by learned counsel for the petitioners. I am guided by the judgment of the Hon'ble Supreme Court of Pakistan in case titled "Executive District Officer (Education), Rawalpindi Vs. Muhammad Younas (2007 SCMR 1835)". Relevant portion is as under:

"It is a settled law that when the basic order is without lawful authority then the superstructure shall have to fall on the ground automatically as law laid down by this Court in Yousaf Ali's case PLD 1958 SC 104. It is also a settled law that where the order of appointment was secured by fraud and misrepresentation then principle of locus poenitentiae is not attracted as law laid down by this Court in Jalal-ud-Din's case PLD 1992 SC 207."

1. Learned counsel for the petitioners has also not been able to rebut the contentions of learned Law Officer that the appointment letters through which the petitioners were inducted in service were fake ones being prepared with fictitious signatures of the appointing authority.

2. In view of the above, both the writ petitions in hand are devoid of any merit, hence dismissed.

(R.A.) Petitions dismissed

PLJ 2013 Lahore 487 [Bahawalpur Bench Bahawalpur]

Present: Atir Mahmood, J.

Syed MUNEEB AHMED SHAH--Petitioner

versus

ADDITIONAL COLLECTOR, etc.--Respondents

W.P. No. 4937 of 2012, decided on 25.4.2013.

West Pakistan Urban Immovable Property Tax Act, 1958--

----S. 8(2)--Punjab Local Government Ordinances, 2001, S. 190--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Property tax--Administrator is competent to declare any area within his jurisdiction as a rating area and impose tax--Remedy of appeal--Question of maintainability of writ petition--After amalgamation of Punjab Local Government Ordinance, administrator, T.M.A. was competent to issue notification against which petitioner filed on objection petition u/S. 8(2) of Act which was dismissed by Addl. Collector--Undeniably u/S. 190 of Ordinance, appeal was provided against any order passed local government or its functionaries which remedy had not been availed by petitioner--Petition was dismissed. [P. 489] A

Syed Saleem-ud-Din, Advocate for Petitioner.

Mr. Saeed Ahmed Chaudhry, A.A.G. for Respondent.

Date of hearing: 25.4.2013.

Judgment

Through this writ petition, the petitioner has challenged the Notification No. 1613, dated 27.06.2011 issued by Respondent No. 1 whereby Kot Samaba Tehsil and District Rahim Yar Khan, has been declared as Rating Area and property tax has been levied thereupon. He has challenged the order dated 03.05.2012 passed by Respondent No. 1.

1. Learned counsel for the petitioner contends that the Kot Samaba is absolutely a rural area situated in U/C No. 40; that the people of the area being very poor and illiterate are unable to pay the properly tax; that as per Section 2(b) of West Pakistan Urban Immovable Property Tax Act, 1958, only a Collector can declare any area as `rating area' and such powers do not vest with the Additional Collector/Administrator who has issued the impugned notification and passed the impugned order dated 03.05.2012, as such, these are illegal having no effect qua the rights of the petitioner and be set aside.

2. On the other hand, learned Law Officer states that the Kot Samaba is not a rural area as it has more facilities supposed to be in a village; that it is not true that all the people of the area are illiterate and poor; that under Section 67 of Punjab Local Government Ordinance, 2001, hereinafter referred to as the Ordinance, Administrator is competent to declare any area within his jurisdiction as a rating area and impose tax thereupon; that the remedy of appeal is available to the petitioner under Section 190 of the Ordinance which has not been availed by the petitioner, therefore, this writ petition is not maintainable. He prays that this writ petition having no merit be dismissed.

3. Arguments heard. Record perused.

4. I have gone through the provisions of the Ordinance, Section 3 of the Ordinance is reproduced as under:--

"Ordinance to over-ride other laws.--The Provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force".

1. As per Section 67(i) of the Punjab Local Government Ordinance, 2001, the functions and powers of the Tehsil Council are "to approve taxes, cess, rates, rents, fees, user-charges, tolls, levies, fines and penalties proposed by Tehsil Municipal Administration specified in (part-III) of the Second Schedule", Section 116 of the Ordinance empowers a council to levy taxes, cesses, fees, rates, rents, tolls, charges, surcharges and levies specified in the second schedule. The clause (5) of the Part-III of the said schedule is as follows:--

"Property tax rate as specified in Section 117"

1. Section 117 of the Ordinance is reproduced as under:

"Rating Areas and Property Tax.--(1) On commencement of this Ordinance every Tehsil and Town shall be rating areas within the meaning of the Punjab Urban Immoveable property Tax Act, 1958 (V of 1958)

(2) The Tehsil Council or Town Council, as the case may be, shall subject to the provisions of Section 116, determine the rate of property tax in an area within the Tehsil or Town:

Provided that in the areas within a Tehsil or Town where rate has not been determined, the rate shall remain as zero.

(3) Unless varied under sub-section (2), the existing rates in the areas within a Tehsil or Town shall remain in force."

1. Keeping in view the above-mentioned provisions of law I am of the considered opinion that after the amalgamation of the Ordinance the Administrator/Tehsil Municipal Administration, R.Y. Khan was competent to issue the impugned notification against which the petitioner filed an objection petition under Section 8(2) of the West Pakistan Urban Immoveable Property Tax Act, 1958 which was dismissed by Respondent No. 1 vide impugned order dated 03.05.2012. Undeniably, under Section 190 of the Punjab Local Government Ordinance, 2001, the appeal is provided against any order passed by Local Government or its functionaries which remedy has not been availed by the petitioner.

2. In view of the above, this writ petition has no force and the same is accordingly dismissed.

(R.A.) Petition dismissed

PLJ 2013 Lahore 489

Present: Ali Baqar Najafi, J.

RASHID AHMAD KHAN--Petitioner

versus

SECRETARY, GOVERNMENT OF PUNJAB, etc.--Respondents

W.P. No. 17335 of 2013, decided on 10.7.2013.

Punjab Civil Servants Act, 1974--

----S. 8(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Promotion case--Retired civil servant might be considered for proforma promotion--Observation of department that proforma promotion cannot be claimed by any civil servant as of right and that civil servant being no longer in service ceases to be civil servant hence he cannot avail benefit of promotion--Validity--If department had delayed matter of promotion without any justifiable reason, then civil servant cannot be made to suffer and notwithstanding his retirement, department is required to promote him, if found entitled otherwise--High Court had also observed in same view that a retired government servant was directed to be considered for promotion as his case was not processed until superannuation--Petition was disposed of with direction to consider petitioner. [Pp. 490 & 491] A, B & C

2012 SCMR 126, rel.

Rao Farid ul Haque Khan, Advocate for Petitioner.

Date of hearing: 10.7.2013.

Order

Through this Constitutional Petition, the petitioner seeks setting aside of order dated 04.06.2013 passed by the Secretary Local Government and Community Development, Department and prays for direction to act upon in accordance with law and place the promotion case of the petitioner before the , concerned Departmental Promotion Committee in the light of Notification dated 19.4.2003.

1. Brief facts giving rise to the filing of this writ petition are that vide order dated 19.04.2013 passed by this Court in Writ Petition No. 9549 of 2013 a direction was issued to Respondent No. 1 to decide the pending application of the petitioner dated 15.04.2013 attached with the said petition as "Annex-B" in accordance with law through a speaking order after providing him an opportunity of hearing within one month of the receipt of the certified copy of the said order but Respondent No. 1 was reluctant to decide the representation within a stipulated period and as such the petitioner was constrained to file a petition bearing Criminal Original No. 1224-W of 2013 for compliance of the said order. However, Respondent No. 1 has rejected the representation filed by the petitioner vide order dated 04.06.2013, hence this writ petition.

2. Learned counsel for the petitioner submits that the petitioner was inducted into the Punjab Local Council Service (L.C.S) as Sub Engineer BPS-11 and after qualifying the service for selection Grade BS-16; that being the senior most Sub Engineer the petitioner was entitled for promotion as Sub Divisional Officer BPS-17 as his juniors are promoted to the said rank; that the petitioner was neither promoted as SDO on permanent nor on officiating basis for several years but he was not regularized as such; that case of the petitioner is required to be considered for promotion by placing it before the concerned Departmental Promotion Committee; that in the light of Section 8 of the Punjab Civil Servants Act, 1974 the petitioner is also entitled to be promoted at the relevant time but his case was not processed before the concerned Departmental Promotion Committee; that even the retired government servant may be considered for proforma promotion, provided he files a representation to this effect during his service.

3. I have heard the learned counsel for the petitioner and perused the available documents attached with this petition.

4. Vide order dated 04.06.2013 passed by Respondent No. 1, it has been observed in Para-4 that as per clause 8(2) of the Punjab Civil Servants Act, 1974 promotion/proforma promotion cannot be claimed by any civil servant as of right and that civil servant being no longer in service ceases to be a civil servant, hence he cannot avail the benefit of promotion/proforma promotion. I am afraid this is against the dictum laid down in Secretary Schools of Education and others v. Rana Arshad Khan and others (2012 SCMR-126), wherein it is held that if the Department had delayed the matter of promotion without any justifiable reason, then civil servant cannot be made to suffer and notwithstanding his retirement, department is required to promote him, if found entitled otherwise. This Court has also observed the same view in the judgment dated 18.09.2012 passed in Writ Petition No. 21006 of 2012 titled "Mst.Shamim Usman, Associate Professor vs. Chief Secretary, etc." in which a retired government servant was directed to be considered for promotion as his case was not processed until superannuation.

5. In this view of the matter, this writ petition is disposed of with the direction to the respondents to consider the petitioner in the above terms.

(R.A.) Petition disposed of

PLJ 2013 Lahore 491 [Bahawalpur Bench Bahawalpur]

Present: Atir Mahmood, J.

KANWAR MEHMOOD AHMED, etc.--Petitioners

versus

RAO TAHIR ALI KHAN, etc.--Respondents

C.R. No. 238-D of 2009, decided on 24.4.2013.

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

----S. 172(2)(xviii)--Jurisdiction of Civil Court in cases of family partition--Barred by--Family partition between parties through convincing evidence--Possession was challenged before revenue authorities--Validity--Mere possession of petitioners over the suit land was not sufficient to prove alleged family partition which was under challenge before revenue authorities--Since alleged family partition was oral, onus probandi lies heavily over petitioners--Only witness, produced by plaintiff who can be presumed independent who admits in his cross-examination that neither family partition took place in his presence nor he knows about numbers given to petitioners pursuant to family partition meaning thereby he does not know about alleged family partition--Petitioners had badly failed to prove their case--Petition was dismissed. [P. 493] A

Ch. Muhammad Shafi Mayo, Advocate for Petitioners.

Mr. Muhammad Naveed Farhan, Advocate for Respondents Nos. 1 to 4 & 7.

Date of hearing: 24.4.2013.

Judgment

Through this civil revision, the petitioners have impugned the judgment and decree dated 15.05.2009 passed by learned Additional District Judge, Ahmedpur East who accepted the appeal of Respondents No. 1 to 4 and set aside the judgment and decree dated 14.09.2006 passed by learned trial Court whereby the suit for declaration filed by the petitioners was decreed.

1. Brief facts of the case are that the petitioners filed a suit for declaration and permanent injunction regarding the property fully described in the head-note of the plaint with the averment that the petitioners arc in possession of the suit property on the basis of family partition, therefore, the respondents be restrained from interfering with their possession. The suit was contested by Respondents No. 1 to 4 and 7 by filing written statements whereas Respondents No. 5 and 9 to 15 filed a conceding statement. Respondents No. 6 & 8 were proceeded against ex parte. Out of divergent pleadings of the parties, the learned trial Court framed as many as five issues including that of relief. After recording oral as well as documentary evidence adduced by the parties, learned trial Court proceeded to decree the suit of the petitioners-plaintiffs vide judgment and decree dated 14.09.2006. Respondents No. 1 to 4 feeling dissatisfied filed an appeal which was accepted by the learned lower appellate Court and the judgment and decree dated 14.09.2006 passed by learned trial Court was set aside vide judgment and decree dated 15.05.2009 which is under challenge in this civil revision.

2. Learned counsel for the petitioners inter alia contends that there was a family settlement between the parties, in result of which, the suit property was given to the petitioners and the respondents were given the adjacent land. He maintains that the respondents resiled from the settlement, therefore, the instant suit was filed. He avers that the petitioners have successfully proved their case by producing cogent evidence; that the judgment and decree passed by learned trial Court is based on law and fact; that the learned lower appellate Court has failed to appreciate the evidence produced by the petitioners and dismissed their suit without any lawful justification. He prays that this civil revision be allowed, the impugned judgment and decree be set aside and the judgment and decree passed by learned trial Court be restored.

3. Conversely, learned counsel for the Respondents No. 1 to 4 and 7 submits that no family partition took place; that no documentary evidence, in support of their version that there was a family settlement, could be produced by the petitioners; that only two witnesses were produced out of one was the plaintiff himself whereas the other witness who appeared as PW-2 does not state anywhere that there was a family partition but that the possession lies with the petitioners-plaintiffs; that the possession of the petitioners over the dispute land was challenged before the revenue authorities which matter has already been decided by the District Officer (Revenue) in favour of the respondents and now the matter is pending before the Member Board of Revenue. He avers that there is nothing on record to show that there was any family settlement with regard to the suit property, therefore, this civil revision merits dismissal.

4. I have heard the arguments advanced by learned counsel for the parties and also perused the record with their able assistance.

5. It is admitted fact that the parties being successors of Kanwar Khawaja Zajar Ali Khan are inter se related and joint owners in the suit property regarding which the petitioners filed the suit for declaration and permanent injunction asserting their independent rights on the basis of a family settlement/partition.

6. The scanning of record shows that the petitioners have not been able to establish that there was any family partition between the parties through convincing evidence. Mere possession of the petitioners over the suit land is not sufficient to prove the alleged family partition which is also under challenge before the revenue authorities. Since the alleged family partition was oral, the onus probandi lies heavily over the petitioners. The only witness, produced by the petitioners-plaintiffs, who can be presumed independent is PW-2 Muhammad Nawaz who admits in his cross-examination that neither family partition took place in his presence nor he knows about 'numbers' given to the petitioners pursuant to the family partition meaning thereby he does not know about the alleged family partition. In the circumstances, the petitioners have badly failed to prove their case.

7. Another aspect of the matter is that the jurisdiction of the Civil Court in the cases of family partition is barred by Section 172 (2)(xviii) of the Land Revenue Act, 1967 which is reproduced below:

"(2) ...a Civil Court shall not exercise jurisdiction over any of the following matters namely"

(xviii) any claim for partition of an estate or holding, or any question connected with or arising out of proceedings for partition, not being a question as to title in any of the property of which partition is sought:"

1. Learned counsel for the petitioners has also failed to point out any illegality, infirmity or misreading/non-reading of evidence in the impugned judgment calling for interference by this Court.

2. For the aforementioned reasons, this revision petition has no force, hence dismissed leaving the parties to bear their own costs.

(R.A.) Petition dismissed

PLJ 2013 Lahore 494 [Multan Bench Multan]

Present: Amin-ud-Din Khan, J.

MANZOOR HUSSAIN, etc.--Respondents

versus

SHAH NAWAZ, etc.--Respondents

C.R. No. 1156-D of 2010, heard on 25.4.2013.

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

----S. 115--Civil revision--Mutation of gift was challenged--When mutation of gift was challenged by any legal heir of deceased doneer, statement of plaintiff on oath before Court--No such gift made in life of donor then onus to prove valid gift and valid attestation of mutation--Validity--When there is no pleading, no case can be established through evidence on the point which had not been pleaded by a party--When there is no pleading, no question of proof of event of gift independent of attestation of mutation--As respondents were beneficiary of transaction--It was their duty to prove event of gift independent of attestation of mutation and then valid attestation of gift mutation on basis of gift already completed in all respects by proving offer, acceptance and delivery of possession. [P. 496] A & B

Handwriting Expert Reports--

----Denial their signature upon mutation--Reports of handwriting experts were conflicting with each other--Validity--There were two reports having confliction with each other, therefore, none of report can be relied upon--Report of expert with regard to handwriting is an opinion, which is not binding upon the Court--In such view of the matter, statement on oath by prosecution witnesses cannot be ignored. [P. 497] C

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

----S. 115--Civil revision--Concurrent findings--Beneficiary of transaction was bound to prove transaction independent of attestation of mutation--Validity--Courts below fell in error while not applying correct law while deciding lis, therefore, Courts below were not sustainable under law because High Court while exercising jurisdiction u/S. 115, CPC was not precluded from touching concurrent findings of Courts below when same were based upon misapplication of law or misreading and non reading of evidence, as such there was no hurdle in way of exercising jurisdiction by High Court--Petition was allowed. [P. 497] D

M/s. Ch. Abdul Sattar Goraya, Masud Bilal & Muhammad Shabbir Anjum Khokhar, Advocates for Petitioner.

M/s. Qamar-uz-Zaman Butt & Ch. Muhammad Habib, Advocates for Respondents.

Date of hearing: 25.4.2013.

Judgment

Through this civil revision, the petitioners have impugned the judgment & decree dated 19.08.2010 passed by learned Addl: District Judge, Burewala, whereby the appeal filed by them was dismissed, and the judgment & decree dated 26.06.2009 passed by learned Civil Judge, Burewala, whereby the suit for declaration filed by the petitioners-plaintiffs was dismissed.

1. Briefly, the facts as leading to this civil revision are that the plaintiffs on 07.07.1997 filed a suit for declaration challenging therein the mutation of Gift Bearing No. 344 attested on 29.03.1994 by the predecessor of plaintiffs, Sardar Ali, in favour of Defendants No. 1 to 5. who are also the successors of said Sardar Ali. The written statement was filed and suit was contested. Learned trial Court framed issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the closing of trial, vide judgment & decree dated 26.06.2009 suit was dismissed by the trial Court. Feeling aggrieved thereby, an appeal was preferred by the petitioners-plaintiffs before the first appellate Court, which also met with the same fate vide judgment & decree dated 19.08.2010. Hence, this civil revision.

2. Learned counsel for the petitioners argue that Sardar Ali, the predecessor of parties was patient of Asthma and died in the age of 90 years, 5/6 years before his death he was seriously ill, he was having three wives and also issues from them; that he was owner of suit land and after his death the petitioners-plaintiffs came to know about the alleged gift in favour of Defendants No. 1 to 5, therefore they filed the suit, as the said Sardar Ali never gifted the suit land in favour of the defendants. Learned counsel argue that when the mutation of gift was challenged by the legal heirs of alleged donor and claim of Defendants No. 1 to 5 is on the basis of oral mutation of gift, therefore they were bound under the law to prove the event of gift independent of attestation of mutation of gift and also to prove offer, acceptance and delivery of possession of suit land under the gift to the donees but they miserably failed to prove the same. Learned counsel for the petitioners have referred to the statement of PW-2, Amjad Ali Lumberdar, who allegedly identified the donor at the time of attestation of gift and that of PW-3, Anwar Hussain who is shown as Pattidar on the impugned gift mutation, both of them have denied their signatures upon the mutation in question. Further by referring the statement of DW-3 (Muhammad Nawaz) one of the defendants, learned counsel state that the defendants miserably failed to prove the gift in their favour as well as valid attestation of mutation.

3. On the other hand, learned counsel for the respondents-defendants argue that the petitioners-plaintiffs failed to establish that the donor was insane at the time of attestation of mutation; that even his illness has not been proved through the evidence and pleadings are never part of the evidence; that there are concurrent findings recorded by two Courts below against the petitioners, therefore this Court ordinarily does not endorse the reinterpretation of evidence already interpreted by the Courts below, therefore prays for dismissal of the instant civil revision.

4. I have heard the learned counsel for the parties at full length and have gone through the record with their able assistance.

5. I am of the view that when a mutation of gift is challenged by any legal heir of the deceased donor in favour of some of his legal heirs, the statement of plaintiff on oath before the Court that there was no such gift made in the life of donor, then the onus to prove the valid gift in favour of the donee/defendant and valid attestation of mutation etc. in favour of said donee shifts upon the latter to establish the same. In this case, even the making of gift or offer, acceptance and delivery of possession prior to the attestation of mutation is missing from the pleading of defendants-donees. It is clear that when there is no pleading in this context, no case can be established through evidence on the point which has not been pleaded by a party. Further, when there is no pleading, therefore no question of proof of event of gift independent of attestation of mutation. As the defendants-respondents are the beneficiary of transaction, it was their duty to prove the event of gift independent of attestation of mutation and then valid attestation of gift mutation on the basis of gift already completed in all respects by proving offer, acceptance and delivery of possession. By the careful scanning of evidence, pleadings and record it seems that the donees/respondents are of the impression that it is the plaintiff who has to disprove the attestation of mutation and event of gift because they have not even tried to plead and prove the making of valid gift by proving offer, acceptance and delivery of possession of suit land under the gift to them. Even I have noticed that in `Khasra-Girdawari' which was produced as Ex.D-15, at the time of gift and even thereafter Manzoor Hussain one of the plaintiffs is in possession of various portions of suit land.

6. Further, when PW-2 & PW-3 have denied their signatures upon the impugned mutation and there are two reports of handwriting Experts, which are conflicting with each other, in this eventuality in the light of law laid down by the august Supreme Court of Pakistan in the judgment reported as "PLD 1980 Supreme Court 228 (Major Sher Afzal vs. Shamim Firdaus and another)", none of the report can be relied upon. In this case, as there are two reports having confliction with each other, therefore none of the report can be relied upon. Even otherwise, report of Expert with regard to handwriting is an opinion, which is not binding upon the Court. In this view of the matter, the statement on oath by both these P.Ws cannot be ignored.

7. So far as the concurrent findings of two Courts below against the petitioners-plaintiffs are concerned, as I have noticed that both the Courts below have ignored the law declared on the point that the beneficiary of a transaction is bound to prove the same and further in case of gift the beneficiary is also bound to prove the transaction independent of attestation of mutation. As I have observed supra not even the event of gift prior to the attestation of mutation has been pleaded, thus, both the Courts below fell in error while not applying the correct law of the subject while deciding the lis, therefore the findings of two Courts below are not sustainable under the law because this Court while exercising jurisdiction under Section 115 of the CPC is not precluded from touching the concurrent findings of two Courts below when the same are based upon misapplication of law or misreading and non-reading of evidence, as such there is no hurdle in the way of exercising the jurisdiction by this Court.

8. In the light of what has been discussed above, this civil revision is allowed and the impugned judgments & decrees dated 19.08.2010 & 26.06.2009 passed by both the Courts below are set aside. Resultantly, the suit filed by the petitioners-plaintiffs shall stand, decreed.

(R.A.) Revision allowed

PLJ 2013 Lahore 498

Present: Abdus Sattar Asghar, J.

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through its Principal Office etc.--Petitioners

versus

Mst. MAQSOODAN BIBI--Respondent

C.R. No. 1656 of 2002, decided on 12.6.2013.

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

----Art. 78--Insurance Act, 1938, S. 39--Civil Procedure Code, (V of 1908), S. 115--Insurance Policy--Terms and conditions of contract of insurance and declaration signed by insured deceased--Insurance policy was obtained without any medical examination--Photocopies of documents were not duly proved--Amount of insurance policy were duly verified and paid after death of insured person--Corporation cannot claim refund of amount without having any reliable and valid proof of any misstatement regarding health of deceased policy holder--Validity--Copies of documents other than judicial record could not be received in evidence without proof of signature and handwriting of person alleged to have signed or written as required Art. 78 of Order, therefore, investigation report made by prosecution witness cannot be termed as a valid, reliable or conclusive proof of alleged fact that deceased policy holder was suffering from blood cancer or liver disease at time of purchase of insurance policy--Petitioner had miserably failed to establish any false or fraudulent statement on part of deceased policy holder at time of purchase of insurance policy, therefore, petitioners were not competent to claim refund of same after its payment--Revision petition stood abated that legal representatives of deceased were not liable to any financial liability of their predecessor. [Pp. 501 & 502] A, C & D

Insurance Act, 1938--

----S. 45--Insurance Policy--Payment of death claim was paid to policy holder--Debarred from making investigation after expiry of two years from date on which it was effected on ground of misstatement of health--Validity--Such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by policy holder that policy holder knew at time of making it that statement was false or that it suppressed facts which it was material to disclose. [P. 502] B

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

----S. 115 & O. XXII, R. 4--Civil revision--Applicability--Scope of--Provisions of Order 22, Rule 4 of CPC are not applicable to revision petition rather same were applicable to suits and appeals only. [P. 502] E

Sheikh Shahzad Ahmad, Advocate for Petitioners.

Mr. Abdul Latif Chaudhry, Advocate for Respondent.

Date of hearing: 12.6.2013.

Judgment

This Civil Revision under Section 115 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 15.3.2002 passed by learned Additional District Judge Lahore whereby appeal lodged by the respondent was accepted setting aside the judgment and decree dated 4.11.2000 passed by learned Civil Judge Lahore and petitioner's suit for recovery of Rs. 75,000/- as refund of paid up death claim of an insurance policy, was dismissed.

1. It is argued by learned counsel for the petitioners that the impugned judgment and decree dated 15.3.2002 passed by learned first appellate Court is against law and facts, based on non-reading and misreading of evidence, outcome of surmises and conjectures, untenable and liable to set aside; that terms and conditions of the contract of insurance and the declaration made/signed by the insured deceased husband of the respondent have not been properly and legally interpreted and construed by the learned first appellate Court; that the impugned insurance policy was obtained without any medical examination; that Muhammad Munir Ahmad deceased husband of the respondent died on 3.7.1984 and on submission of relevant documents, petitioners accepted the declaration of the deceased in good faith and paid the amount of impugned insurance claim to the respondent as wife of the deceased/insured person; that thereafter an inquiry was got conducted regarding respondent's claim of another insurance policy amounting to Rs. 25,000/- when it revealed that deceased at the time of purchasing the insurance policy had concealed his chronic ailment i.e. cancer and liver disease in the declaration therefore he was not competent to obtain any policy; that the respondent was liable to refund Rs. 75,000/- i.e. amount of the insurance policy.

2. It is resisted by learned counsel for the respondent with the contentions that the investigation report (Ex.P-10) with regard to cause of death of Muhammad Munir Ahmad deceased produced by Babu Khan (PW-1) was not worth consideration for the simple reason that alleged sources of the report i.e. Dr. Muhammad Hanif and Abdul Majeed were not produced in the witness-box; that the photo-copies of some documents relating to Businessmen Hospital Trust Lahore were also not duly proved in terms of Article 78 of Qanun-e-Shahadat Order 1984; that Muhammad Munir Ahmad being an employee of the petitioners had been performing his routine duty regularly while attending the office of the Area Manager to deposit the premium and proposals for various other insurance policies before his death which reveals that the deceased was hale and hearty and was not suffering from any serious disease like cancer; that terms and conditions and declaration of the impugned insurance policy were duly verified by the Area Sales Officer and the amount of the insurance policy was paid to the respondent after the death of her husband/insured person; therefore petitioners cannot claim refund of such amount without having any reliable and valid proof of any misstatement regarding the health of the deceased/policy holder; that the learned first appellate Court while appreciating the ocular and documentary evidence available on the record allowed the appeal setting aside the judgment and decree dated 4.11.2000 passed by learned trial Court and dismissed petitioners' suit on merits in accordance with law that the impugned judgment and decree does not suffer from any jurisdictional error, factual or legal infirmity or perversity therefore petitioners have no case to invoke the revisional jurisdiction of this Court; that revision petition lodged by the petitioners without any merit is liable to be dismissed.

3. Arguments heard. Record perused.

4. Perusal of the record transpires that Insurance Policy No. 503063680 worth Rs. 75,000/- in favour of Muhammad Munir Ahmad deceased husband of the respondent was not denied by the petitioners at the time of its payment to the respondent. Life Insurance Proposal (Ex.P-1) of the said policy manifests that wife of the insured deceased namely Maqsoodan Bibi/respondent was a nominee under Section 39 of the Insurance Act, 1938. In Column No. 7 of the Personal Statement of Health (Ex.P-2), Muhammad Munir Ahmad declared that he did not suffer from any serious disease like cancer etc. The declaration made by him was verified by the Area Sales Officer through his confidential report. At the time of submission of second claim of another insurance policy worth Rs. 25,000/- petitioners got conducted an inquiry by Babu Khan (PW-1) who submitted his report of investigation (Ex.PW-1/1) contending that late Muhammad Munir Ahmad was suffering from blood cancer and liver disease for the last 10 years. He based his investigation report on the statement of one Abdul Majeed/real brother of the deceased, Dr. Muhammad Hanif MBBS and photo copies of the treatment chart of the deceased obtained from Businessmen Hospital Trust Lahore. Admittedly no inquiry was conducted with regard to respondent's claim of Rs. 75,000/- as against Insurance Policy No. 503063680. On the other hand respondent's case is that her husband Muhammad Munir Ahmad died because of heart attack on 3.7.1984 and in this regard furnished copy of Death Certificate issued by Lahore Municipal Corporation. Babu Khan (PW-1), the Investigator as well as scribe of investigation report (Ex.P-10) while appearing in the witness box during cross-examination admitted that he did not conduct the inquiry with regard to the claim of insurance policy amounting to Rs. 75,000/-. He also admitted that Abdul Majeed did not accompany him at the time of his visit to the house of the deceased. He did not remember that who had met him and whose statement he had recorded at the house of the deceased.

5. It is pertinent to note that petitioners have miserably failed to produce the original record of the hospital before the trial Court to prove the photostat copies of certain documents attached with the investigation report. The scribe of the said documents is also not examined by the petitioners. Dr. Muhammad Hanif and Abdul Majeed brother of the deceased who allegedly made statements before the Investigating Officer with regard to the alleged disease of the deceased are not produced in the witness box by the petitioners. Needless to say that copies of the documents other than the judicial record could not be received in evidence without proof of signature and handwriting of person alleged to have signed or written them as required Article 78 of Qanun-e-Shahadat Order, 1984 therefore investigation report (Ex.P-10) made by Babu Khan (PW-1) cannot be termed as a valid, reliable or conclusive proof of the alleged fact that Muhammad Munir Ahmad was suffering from blood cancer or liver disease at the time of purchase of insurance policy worth Rs. 75,000/-.

6. At this juncture it may be expedient to reproduce the provisions of Section 45 of the Insurance Act, 1938 which reads below:--

"45. Policy not to be called in question on ground of misstatement after two years.--No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall, after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate of false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose: