According to section 52 of the West Pakistan Land Revenue Act 1967 presumption of truth is attached to the entries made in the periodical record of rights i.e. jamabandis/khasra girdawari until contrary is proved.

 According to section 52 of the West Pakistan Land Revenue Act 1967 presumption of truth is attached to the entries made in the periodical record of rights i.e. jamabandis/khasra girdawari until contrary is proved.

It is settled law that mutation by itself does not create title and it carries a rebuttable presumption.

C.P.L.A.394-P/2010
Mst. Jehan Bano & others v. Mehraban Shah & others








 




دستاویز متدعویہ کو وکیل کے بیان میں Exhibit نہ کرایا جا سکتا ہے

 i). Distinction between a suit for cancellation and suit for declaration.

ii). Applicability of Articles 91 and 120 of the Limitation Act, 1908

iii). Scope and import of Section 202 of the Contract Act, 1872

iv). Agreement to sell (Exhibit-P1)was produced in the statement of counsel for the "appellant" is not permissible at all. R.F.A.71-21

ABDUL GHAFOOR ETC VS BABAR SULTAN JADOON
ETC
Mr. Justice Mirza Viqas Rauf 18-04-2024
2024 LHC 1561
























Correction in Date of birth case law of LAHORE HIGH COURT.

COMPLETE : 2018 YLRN 55 LAHORE-HIGH-COURT-LAHORE

Side Appellant : MUHAMMAD ZAHIR SAJJAD
Side Opponent : NATIONAL DATABASE AND REGISTRATION AUTHORITY
S. 42---Suit for declaration---correct ion of Date of birth in educational testimonials---Scope---Contention of plaintiff was that his Date of birth was 10-01-1986 instead of 10-09-1992---Suit was dismissed concurrently--- Validity--- Plaintiff through oral and documentary evidence had proved that his actual Date of birth was 10-01-1986 and not 10-09-1992---Documents produced by the plaintiff were of ficial record and their authenticity could not be doubted---Findings recorded by the Trial Court were based on presumptions---Appellate Court without formulating points for determination had relied upon the stance of defendants and had not considered the impact of oral and documentary evidence of plaintiff---Both the Courts below had failed to exercise jurisdiction vested in them---Findings recorded by the Courts below were result of mis-reading and non-reading of evidence---Impugned judgments and decrees passed by the Courts below were set aside and suit was decreed---Revision was allowed in circumstances.
: 2018 CLCN 10 LAHORE-HIGH-COURT-LAHORE
Side Appellant : BOARD OF INTERMEDIATE AND SECONDARY EDUCATION LAHORE
Side Opponent : ADDITIONAL DISTRICT JUDGE, SHEIKHUPURA
Ss. 42 & 54---Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976), Ss. 29 & 31---Date of birth , correct ion of ---Ex parte decree, setting aside of ---Petitioner, Board of Secondary Education against which an ex parte decree was passed in a suit for correct ion of Date of birth of respondent---Trial Court, on application of the Board set aside ex parte judgment and decree but Lower Appellate Court in exercise of revisional jurisdiction set aside order passed by Trial Court---Validity---Trial Court had passed ex parte decree after taking into consideration evidence produced by respondent and Board had failed to defend the suit at the relevant time---No reason was available with Trial Court to set aside ex parte judgment especially when none of the grounds raised by the Board in its application was made out from the record---Lower Appellate Court was justified in entertaining revision for setting aside order especially when representative of the Board appeared in court and did not raise any question of lack of jurisdiction before Lower Appellate Court and absented himself therefrom--- High Court declined to interfere in order passed by Lower Appellate Court as no illegality, perversity or erroneous exercise of jurisdiction could be pointed out in the order passed by Lower Appellate Court---Constitutional petition was dismissed in circumstances. : 2017 YLR 1485 LAHORE-HIGH-COURT-LAHORE
Side Appellant : BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE
Side Opponent : AKBAR ALI
S. 42---Suit for declaration---Limitation---Change of Date of birth ---Scope--- Rectification of school Certification--- Scope--- Contention of plaintiff was that his Date of birth was 06-12-1983 instead of 06-12-1978---Suit was decreed concurrently---Validity---Ossification test was conducted on the instructions of defendant---Result of ossification test was in favour of plaintiff which had not been rebutted by the defendant through documentary evidence---Date of birth of plaintiff was 06-12-1983---Mistake might have occurred in the admission form and same was rectifiable---Suit for which no period of limitation was provided could be filed within a period of six years when right to sue accrued---Civil Court being court of ultimate jurisdiction could look into the illegality committed by any forum---Plaintiff had taken all possible steps for rectification of school certificate---Decisions of courts below were based on reasons---No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the courts below---correct ion of Date of birth did not affect right of any person or policy of Education Board---Revision was dismissed in circumstances.
: 2017 CLCN 200 LAHORE-HIGH-COURT-LAHORE
Side Appellant : CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, MULTAN
Side Opponent : MUHAMMAD SHAHZAD ASLAM
S. 29---Civil Procedure Code (V of 1908), S. 9---correct ion of Date of birth and father's name in matriculation certificate---Defendant/Education Board challenged jurisdiction of Civil Court---Education Board contended that Punjab Boards of Intermediate and Secondary Education Act, 1976 barred jurisdiction of Civil Court to adjudicate the matter and further submitted that plaintiff himself filled up Date of birth and parentage in his admission form---Respondent/plaintiff contended that decree and judgment of the two courts below were justified as his Date of birth in Union Council certificate was correct , similarly correct name of his father was incorporated in CNIC of his father---Validity---Respondent/plaintiff himself appeared before the court and got his statement recorded to the effect that his actual Date of birth was 01-01-1983 which had wrongly been inserted as 01-01-1981 in the matriculation certificate whereas his father's name had also been wrongly mentioned and at the time of issuance of the CNIC such was pointed out by the NADRA authorities---Respondent/plaintiff was cross-examined but no material discrepancy was found regarding the said facts---Exhibited birth certificate issued by the Secretary Union Council corroborated the stance taken by the plaintiff/respondent---Moreover, CNIC of the father of the respondent also revealed the correct name of father---No evidence was produced by the petitioner/defendant to rebut the contents of the plaint except that the entries, age and father's name, were made in the documents of the Board by the respondent himself---Contention about ouster clause, in terms of S. 29 of the Punjab Boards of Intermediate and Secondary Education Act, 1976 was repelled because, S. 9 of the Civil Procedure Code 1908 conferred the plenary jurisdiction to the civil court which could not be taken away in a situation where the aggrieved person found himself remediless, particularly, when a dispute required detailed evidence in order to resolve a factual controversy---Respondent had no alternate forum for redressal of his grievance---High Court declined interference in the concurrent findings of the courts below---Revision petition was dismissed accordingly. : 2016 PLD 539 LAHORE-HIGH-COURT-LAHORE
Side Appellant : AHMAD NAWAZ KHAN BAKHTIARI
Side Opponent : APPELLATE AUTHORITY
S. 27(1)(b)---National Database and Registration Authority Ordinance (VIII of 2000), Ss. 9, 10 & 19---Election for local government---Dispute with regard to age of candiDate ---Entries of National Identity Card and birth Registration Certificate---Scope---Nomination papers were rejected by the Returning of ficer on the ground that candiDate did not qualify being under twenty-five years of age---Appellate authority accepted the nomination papers holding that candiDate was more than twenty five years according to birth Registration Certificate---Validity---National Identity Card was a public document having probative value---Presumption of truth was attached to the National Identity Card which could be considered as evidence---Entries of National Identity Card were considered to be more authentic and admitted to be correct ---Such entries should be given preference over other documents/certificates unless same were rebutted by better and strong evidence---Entries of National Identity Card should be considered for determining the age of any person---Preference should be given to the entries made in the National Identity Card over the entries made in the birth Registration Certificate---Computerized National Identity Card of the candiDate , in the present case, was duplicate or had been issued after expiry of old one---Nothing was on record that any effort was made by the candiDate for correct ion of his Date of birth if wrongly mentioned on Computerized National Identity Card before filing of his nomination papers---CandiDate had used present National Identity Card for many years without any complaint---Date of birth of candiDate was less than twenty five years at the time of filing of nomination papers and he was not eligible to contest the election---Impugned order passed by the appellate authority was set aside and that of Returning of ficer was restored---Nomination papers submitted by the candiDate were rejected---Constitutional petition was allowed in circumstances.: 2016 YLR 2435 LAHORE-HIGH-COURT-LAHORE
Side Appellant : CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION
Side Opponent : MUHAMMAD UMAIR
S. 42---Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976), Ss. 29 & 31---Suit for declaration---Date of birth , correct ion of ---Malice---Scope---Contention of plaintiff was that his correct Date of birth was 14-11-1993 and not 07-11-1991---Suit was decreed concurrently---Validity---Malice on the part of defendants (Board of Secondary Education) had been asserted in the plaint---Plaintiff was not under any obligation to specify any person of the Education Board with an allegation of any enmity rather it was ridiculous to presume that there would be any enmity or personal grudge of the of ficials of Education Board against a student---Non-performance of duties in accordance with rules, regulations and principle of natural justice would amount to mala fide on the part of Board of ficials---Where rights of any one were infringed then civil court had ample jurisdiction to adjudicate upon the matter--Plaintiff had proved his case through cogent evidence---Actual Date of birth of plaintiff was 14-11-1993---Revision was dismissed in circumstances
: 2016 YLR 1625 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD ASHRAF
Side Opponent : MUHAMMAD ASLAM SHAD
S. 27---Constitution of Pakistan, Art. 199--- Constitutional petition---Nomi-nation of a candiDate ---Disqualification of candiDate for being under age---Scope---According to CNIC, Date of birth of respondent was 25-09-1986 whereas its entry in CNIC varied from the Date preserved with NADRA where his Date of birth was recorded as 25-09-1991---Copies of both CNIC's had the same number and even Date of issuance and Date of expiry was the same---Photocopy of CNIC attached with nomination papers of respondent was tampered with to change his actual Date of birth ---Respondent had placed on record same photocopy of CNIC of respondent, which had already been appended by petitioner with the petition---Photocopy of CNIC produced by petitioner had been obtained by him from online verification of NADRA ---- High Court observed that there was no force in the argument that Date of birth had wrongly been recorded in CNIC of respondent---CNIC was issued to respondent on 21-12-2013 and he remained silent for about two years and did not make any effort to get his Date of birth correct ed from NADRA---Date of birth of respondent shown in his computerized birth Certificate also did not tally with his Date of birth mentioned in the photocopy of ID card appended with nomination papers ---Respondent at the time of filing of his nomination papers was having inherent defect of disqualification, therefore, he was not qualified to hold any public of fice on such basis ---- Respondent was disqualified from being elected as General Councillor and Election Commission of Pakistan was ordered to hold re-election within a period of two months---Constitutional petition was allowed accordingly.
: 2011 YLR 2062 LAHORE-HIGH-COURT-LAHORE
Side Appellant : SALMAN ILYAS
Side Opponent : VICE-CHANCELLOR, BZU
Art. 199---Constitutional petition---Petitioner challenged cancellation of his admission to M.B.A. on account of his being overage---Validity---Petitioner had already passed his first semester before his admission was cancelled---Denial of re-admission to petitioner could put his future prospects at stake---Vacancy resulting from cancellation of petitioner's admission would cause loss of public money---No fraud or misrepresentation had been alleged against the petitioner who mentioned his correct Date of birth on the application Form---If petitioner had been found ineligible, his application should have been rejected at initial stage allowing him opportunity to apply for admission to some other course or degree---Negligence was committed by the University Staff in scrutinizing the application of petitioner---Constitutional petition was allowed with direction to the University to allow the petitioner to rejoin his studies in M.B.A. programme.
: 2007 PLD 453 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Malik MUHAMMAD FAISAL
Side Opponent : STATE LIFE INSURACNE CORPORATION through Chairman, Karachi and 2 others
---Date ----Date of birth , proof of ---National Identity Card and School/Board Record both containing different Date s of birth of same person---Validity---Date of birth mentioned in National Identity Card would ordinarily be taken to correct unless proved to the contrary by cogent and convincing evidence---Date of birth recorded in School/Board record, though different, but earliest in time than National Identity Card, would be taken to be true---Principles.
: 2002 MLD 1966 LAHORE-HIGH-COURT-LAHORE
Side Appellant : BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE
Side Opponent : Miss GHAZALA ROOHI
Specific Relief Act 1877 ----S.42.---Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976), Ss.29 & 31 Educational institution- correct ion of Date of birth of candiDate - Suit for declaration---Jurisdiction of Civil Court--Criteria to determine, jurisdiction of Civil Court---If any action had been taken in good faith though same might not have been done strictly in accordance with relevant provisions of law, jurisdiction of Civil Court would be excluded under Ss.29 & 31 of Punjab Boards of Intermediate end Secondary Education Act, 1976---Wheie -no allegation was levelled with regard to mala fides and lack of good faith on part of Board's committee, jurisdiction of Civil Court would stand ousted---If Board's Committee had acted against provisions of Statute or allegations of mala fides were made against Board regarding any act, jurisdiction of Civil Court could not be ousted despite provisions of Ss.29 & 31 of Punjab Boards of Intermediate and Secondary Education Act, 1976---If there was no allegations of mala fides and bad faith on part of of ficials of Board of Intermediate and Secondary Education, Civil Court had no jurisdiction to entertain suit regarding correct ion of entries of Date of birth of plaintiff candiDate

It is settled rule that in the event of filing a fresh suit time will run against the plaintiffs from the date of institution ...........

It is settled rule that in the event of filing a fresh suit time will run against the plaintiffs from the date of institution of the first suit and that the institution of the fresh suit could not affect limitation. Order XXIII, Rule 2, C.P.C. mandates that in any fresh suit instituted on permission granted under the last preceding rule the plaintiff shall be bound by law of limitation in the same manner as if the first suit had not been instituted. In view of the clear rule the petitioners were responsible for the time consumed in the former suit and the same period will have to be counted against them.

C.R. No.12352 of 2022
Dost Muhammad Khan (deceased) through L.Rs Versus Fareed Muhammad Khan and others
2024 Y L R 793

-Suits for specific performance, declaration possession recovery and permanent injunctions--Consolidated judgment--Penal clause--Agreement to sell--Possession of house--Suit plot was mortgaged-

 PLJ 2024 Peshawar (Note) 64
Present: Ijaz Anwar, J.
Mst. SHAMSHAD BEGUM and others--Petitioners
versus
MOHAMMAD BASHIR and others--Respondents
C.R. No. 363-P of 2012, decided on 27.11.2023.

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

----Ss. 9, 12, 42 & 54--Suits for specific performance, declaration possession recovery and permanent injunctions--Consolidated judgment--Penal clause--Agreement to sell--Possession of house--Suit plot was mortgaged--Outstanding amount was not paid--Conditional deed--Modification in judgments--The predecessor of petitioners was required under law to had first redeemed house in question from HBFC and also to clear it from charge of NBP, only then he could attribute non-performance of agreement to respondent--The respondent, after filing suit for specific performance, had  neither deposited remaining sales consideration nor any such request was made for such deposit before Court--It is pertinent to mention here that law on point was by now well settled--Only remedy available for deceased Respondent No. 1 was to had insisted for penal consequences for failure on part of predecessor of petitioners to perform agreement to sell--Judgments and decrees of Courts below were legally not sustainable--Respondent, in response to suit filed by predecessor of petitioners, also claimed that he had  made certain improvements in suit house and had  claimed an amount of Rs. 3,00,000/- at relevant time, he had  enjoyed possession of suit house since year, 1994, as such, he was not entitled to claim cost of improvement--The predecessor of respondent No. 1 had  paid an amount of Rs. 2,20,000/- at time of execution of agreement to sell and it was duly agreed that in case, predecessor of petitioners failed to clear house from charges i.e. mortgage and loan from NBP, then he was obligated to pay double amount of earnest money--Petition allowed.   

                                                   [Para 6, 9, 11 & 12] A, B, C, D, E & F

PLD 2014 SC 506, 2022 SCMR 918, 2021 SCMR 1241 &
2021 SCMR 07 ref.

Mr. Muhammad Taif Khan, Advocate for Petitioners.

Mr. Kashif Zaman, Advocate for Respondents.

date of hearing: 27.11.2023.

Judgment

This civil revision petition is filed against the judgment and decree dated 03.12.2011 passed by the learned Additional District Judge-XII, Peshawar, whereby, appeal filed by the petitioners was dismissed and the consolidated judgment and decree dated 31.07.2010 passed by the learned Civil Judge-I, Peshawar was maintained, whereby, suit filed by Respondent No. 1 (now his LRs) was decreed while that of the predecessor of the petitioners was dismissed.

2. Facts leading to the institution of this civil revision petition are that the predecessors of the parties have filed suits for specific performance, declaration, possession, recovery and permanent injunction etc against each other before the Court of learned Senior Civil Judge, Peshawar (details are given in the plaints). Both the parties have contested the suits by filing their written statements. The learned trial Court, thereafter, framed issues and also directed the parties to produce and record evidence in support of their respective cases, which they produced and recorded. Both the suits were consolidated and the learned Civil Judge-I, Peshawar, after hearing arguments of learned counsels for the parties, decreed the suit of the predecessor of respondent No. 1 while dismissed the suit of the predecessor of the petitioners vide the consolidated judgment and decree dated 31.07.2010. Being aggrieved, the present petitioners filed appeal before the learned District Judge, Peshawar and vide the impugned judgment and decree dated 03.12.2011, their appeal was dismissed and the consolidated judgment and decree of the learned trial Court was maintained. Hence, this Civil Revision petition.

3. Arguments heard and record perused.

4. The bone of contention between the parties is the agreement to sell dated 07.07.1993, whereby, the predecessor of the petitioners namely Salah-ud-Din has sold out the house measuring 08 Marla to the predecessor of respondent No. 1 namely Mohammad Bashir on a sale consideration of Rs. 4,70,000/-. Possession of the house in question was given to the respondent and an amount of Rs. 2,20,000/- was duly received. The deceased Salah-ud-Din has agreed in the said deed that on clearing the charge of mortgage from the House Building Finance Corporation, the house in question shall be transferred in the name of the deceased Mohammad Bashir after the receipt of the outstanding amount. There was, however, a penal clause in the agreement to sell dated 07.07.1993 that in case, either party failed to discharge his liability i.e. payment of the outstanding amount by the respondent and clearance of House Building Finance Corporation by the seller would entail forfeiture of the earnest money and payment of Rs. 4,40,000/- to the respondent in case the house in question is not transferred, as the case may be.

5. The predecessor of the petitioners filed a declaratory suit for ineffectiveness of the agreement to sell dated 07.07.1993 on the ground that failure on the part of the respondent No. 1 to pay the remaining outstanding amount and also claimed possession of the house, besides, forfeiture of the earnest money while Mohammad Bashir has also filed a suit for specific performance of the contract for the payment of the remaining amount of Rs. 2,50,000/- and for the transfer of the suit house in his name. He, in the alternate, has also claimed recovery of Rs. 4,40,000/- as double of the earnest money in view of the penal clause. Both the suits were consolidated and ultimately, vide judgment and decree dated 31.07.2010, the learned Civil Judge decreed the suit of the respondent No. 1 while dismissed the suit filed by the predecessor of the petitioners. It appears that during the pendency of the suit, the said Salah-ud-Din, the original plaintiff, died and as such, his LRs, the present petitioners, have filed an appeal before the learned District Judge, Peshawar and vide the judgment and decree dated 03.12.2011, their appeal was dismissed by the learned Additional District Judge-XII, Peshawar.

6. There were certain admitted facts which have not been taken into account by the learned Courts below which goes to the very root of the case. The agreement to sell was infact a conditional deed in which the predecessor of the petitioners was firstly required to have redeemed the mortgage; similarly, it came to light later that even on the house in question, there was also a charge of the National Bank of Pakistan, because, the said Salah-ud-Din has also obtained loan from the National Bank of Pakistan and has not cleared the house in question. The predecessor of the petitioners was required under the law to have first redeemed the house in question from House Building Finance Corporation and also to clear it from the charge of the National Bank of Pakistan, only then he can attribute non-performance of agreement to the respondent.

7. The arguments of learned counsel representing the petitioners that since the respondent has failed to make good the requisite sales consideration within the period specified in the agreement to sell i.e. 06.07.1994, as such, the earnest amount is to be forfeited to them, is against the record, because, as stated above, failure was mainly on the part of the predecessor of the petitioners in clearing the house in question from the charge and has not redeemed it in time. Even the house in question was not redeemed when a decree was passed in favour of the predecessor of the Respondent No. 1 by the learned Civil Judge on 31.07.2010. As stated above, where the terms of contract were not complied, in such circumstances, the only legal solution was the penal consequences provided under the deed and under no circumstances, suit for the specific performance can be decreed.

8. Mohammad Bashir/respondent was conscious of this fact that’s why he, in his suit, has first claimed the relief of specific performance and in the alternate has claimed recovery of Rs. 4,40,000/- as penalty agreed in agreement to sell. The Hon’ble Supreme Court of Pakistan in the case titled “Rao Abdul Rehman (Deceased) through legal heirs vs. Muhammad Afzal (Deceased) through legal heirs and others (2023 SCMR 815)” has held as under:

“(e) Contract Act (IX of 1872)--

S. 10---Contract---Terms and conditions of contract---Where an effective and enforceable contract is not structured by the parties, it is not the domain or province of the Court to make out a contract for them, and the lis would be decided on the basis of terms and conditions agreed and settled down in the contract.

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

S. 12---Decree for specific performance--­Scope---Decree for specific performance may not be passed if the substratum of the contract suffers from shortcoming or legal infirmities which renders the contract unacceptable and unenforceable”.

9. There is yet another aspect of the case. The respondent, after filing the suit for specific performance, has neither deposited the remaining sales consideration nor any such request is made for such deposit before the Court. It is pertinent to mention here that the law on the point is by now well settled. Reliance is placed on the case titled “Nazar Hussain and another vs. Syed Iqbal Ahmad Qadri (deceased) through his LRs and another (2022 SCMR 1216)”, wherein, the apex Court held that “buyer’s primary obligation in a contract of sale is to make payment of the balance sale consideration as stipulated in the contract---If the seller refuses to receive payment the buyer must establish that he had the required money which was kept aside for the seller for instance. by making a pay order or cashier cheque in his name; this would show that the buyer no longer had access to the sale consideration---Alternatively, the buyer could deposit it (the balance sale consideration) in court. If a buyer does not fulfill his primary obligation to secure/tender the sale consideration and files suit (for specific performance of agreement to sell) and does so without depositing the sale consideration in Court, the buyer is placed in an advantageous position”.

10. Same view was earlier expressed in the cases titled “Mst. Noor Jehan and another vs. Saleem Shahadat (2022 SCMR 918). Reference can also be made to the cases titled Muhammad Yousaf vs. Allah Ditta and others (2021 SCMR 1241), Mst. Samina Riffat and others vs. Rohail Asghar and others (2021 SCMR 07), Hamood Mehmood vs. Mst. Shabana Ishague and others (2017 SCMR 2022) and Liaqat Ali Khan and others vs. Falak Sher and others (PLD 2014 SC 506)”.

11. In view of the above, as stated above, the only remedy available for the deceased Mohammad Bashir was to have insisted for the penal consequences for failure on the part of the predecessor of the petitioners to perform the agreement to sell. As such, the judgments and decrees of the learned Courts below are legally not sustainable.

12. It is pertinent to mention here that the respondent, in response to the suit filed by the predecessor of the petitioners, also claimed that he has made certain improvements in the suit house and has claimed an amount of Rs. 3,00,000/- at the relevant time, however, he has enjoyed the possession of the suit house since the year, 1994, as such, he is not entitled to claim cost of improvement. Moreover, the predecessor of the respondent No. 1 has paid an amount of
Rs. 2,20,000/- at the time of execution of agreement to sell dated 07.07.1993 and it was duly agreed that in case, the predecessor of the petitioners failed to clear the house from the charges i.e. mortgage and loan from the National Bank of Pakistan, then he was obligated to pay double the amount of the earnest money, total comes to Rs. 4,40,000/- , as such, while setting aside the judgments and decrees and modifying the same, the respondent No. 1 is held entitled to Rs. 4,40,000/- with interest at the bank rate from the year, 1995 till its realization.

13. This civil revision petition is allowed in the above terms.

(J.K.)   Revision allowed

Suit for cancellation of documents and perpetual injunction--Change in parentage--Negative declaration--Legal character--Time-barred--Unexplained--delay--Maintainability--Non-joinder of necessary party--

 PLJ 2024 Peshawar (Note) 66
[Mingora Bench (Dar-ul-Qaza) Swat]
Present: Shahid Khan, J.
SANA ALI KHAN--Petitioner
versus
BEHRAM KHAN and 6 others--Respondents
W.P. No. 909-M of 2023 (with Interim Relief), decided on 2.11.2023.

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

----O.VII, R. 11--Specific Relief Act, (I of 1877), Ss. 39 & 54--Constitution of Pakistan, 1973, Art. 199--Application for rejection of plaint--dismissed--Perpetual injunction--Suit for cancellation of documents and perpetual injunction--Change in parentage--Negative declaration--Legal character--Time-barred--Unexplained--delay--Maintainability--Non-joinder of necessary party--Respondent No. 1 had actually sought negative declaration and cancellation of documents with respect to parentage of petitioner--Petitioner had obtained his domicile certificate & MNIC for first time in year 2000 and CNIC in year 2003, whereas, Respondent No. 1 has challenged parentage of petitioner through subject suit in year 2021 after lapse of about 21 years, which delay had not been plausible explained by respondent for any good reason--The Respondent No. 1 had two/three sisters from same parents but he had made party to suit only his one sister, in array of defendants for about 9/10 months unexplained delay after institution of subject suit--The suit of Respondent No. 1 was barred by time, even suit was not maintainable for seeking negative relief u/S. 42 of Specific Relief Act, 1877, as well as for non-joinder & misjoinder of necessary & proper party--Petition allowed.     [Para 6, 9 & 10 ] A, B, D & E

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

----S. 42--Declaration--A Court of law can make a declaration in a suit in favour of a person who is entitled to any legal character or to any right, as to any property, which another is denying.      [Para 7] C

Mr. Aurangzeb, Advocate for Petitioner.

Mr. Zia-ur-Rehman, Advocate for Respondent No. 1.

Mr. Fawad Ahmad, legal representative of Respondents/NADRA.

Date of hearing: 2.11.2023.

Judgment

Sana Ali Khan, the petitioner herein, has invoked the constitutional jurisdiction of this Court under Art. 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:

“In the light of above and so many other grounds to be advanced at the time of arguments, it is therefore humbly prayed that by accepting the instant writ petition, the impugned judgment/order dated 05.05.2023 passed by Respondent No. 6 in Civil Suit No. 116/1 Need of 2022 and judgment/decree dated 16.06.2023 passed by Respondent No. 7 be set aside and suit filed by Respondent No. 1 be rejected under Order 7 Rule 11 CPC without further proceedings.

Any other remedy, which is just, equitable and efficacious, in peculiar circumstances of the case, may also be graciously awarded to petitioner by exercising inherent jurisdiction.”

2. Facts in small compass of the subject petition are that on 25.11.2021, the plaintiff (“the Respondent No. 1”) approached to the learned trial Court of Senior Civil Judge/A’ala Illaqa Qazi, Malakand at Batkhela, through filing a civil suit No. 116/1(Neem) of 2022 against the Defendant No. 1 (“the petitioner”) & other defendants (“the Respondents No. 2 to 5”), sought therein perpetual/mandatory injunctions coupled with cancellation of documents of the petitioner, manifesting “Abdur Rehman and Mst. Rahema” in the columns of his parentage. The Respondent No. 1 averred in his plaint that he is the only real son of Abdur Rehman and Mst. Rahema and also having three sisters, Mst. Samara Bibi, Mst. Shamaila Bibi and Mst. Gul Andama, whereas, the petitioner through misrepresentation manifest himself in the column of his parentage as the son of Abdur Rehman and Mst. Rahema, in his National Identity Card and prayed for its cancellation.

3. The petitioner turned up before the learned trial Court and submitted his written statement, whereas, the official Respondents Nos. 2 to 4/NADRA have submitted their separate written statement along with supportive documents obtained from their official record. The petitioner, in his written statement, fully negated the stance of the Respondent No. 1 through various legal and factual objections in addition that the petitioner and the Respondent No. 1 also have another brother, namely, Din Muhammad, who has left the house in childhood due to the cruel behaviour of the Respondent No. 1.

4. On 03.02.2023, the official Respondents No. 2 to 4 submitted an application for rejection of the plaint under Order VII Rule 11, C.P.C, on certain grounds but mainly objected therein that the Respondent No. 1 cannot seek negative declaration under Section 42 of the Specific Relief Act, 1877, against the legal character of the petitioner in the light of verdict of the Apex Court, reported in PLD 2019 Supreme Court 449. The Respondent No. 1 contested the said application by submitting his written reply. The learned trial Court after hearing arguments of learned counsel for the parties, dismissed the same vide order dated 05.05.2023. The official Respondents No. 2 to 4 didn’t challenge the same in the upper forum, however, the petitioner, being aggrieved therefrom, approached to the learned revisional Court by filing a civil revision petition but the same was dismissed vide impugned judgment, dated 16.06.2023. It obliged the petitioner to knock the door of this Court through filing the subject writ petition.

5. Arguments heard and record gone through with the able assistance of learned counsel for the parties.

6. It is transparent from the floating facts surfaced on the face of record that the Respondent No. 1 has actually sought negative declaration and cancellation of documents with respect to parentage of the petitioner. He averred in the plaint that the petitioner is neither his brother nor has been born from his parents, namely, Abdur Rahman and Mst. Rehema. He challenged the NADRA record as to the parentage of the petitioner representing himself the son of Abdur Rahman and Mst. Rahema. The Respondent No. 1 showed himself as the only real son of Abdur Rahman and Mst. Rahema, whereas, he has three sisters, i.e., Mst. Samara Bibi, Mst. Shamaila Bibi and Mst. Gul Andama. Both, the parents of the Respondent No. 1 have already been died much earlier than filing the present suit. The record reflects that the petitioner has obtained his domicile certificate on 14.11.2000, manual National Identity Card (“MNIC”) on 22.11.2000, Computerized National Identity Card (“CNIC”) on 05.11.2003 lastly updated on 11.07.2019 and passport 16.08.2019. The NADRA family registration certificate available at page 44 of this petition manifests that the petitioner and Respondent No. 1 are inter-se real brothers, sons of Abdur Rahman and Mst. Rahima. Similarly, the family registration certificate of the petitioner also reflects the fathers’ name of the petitioner as “Abdur Rahman”. Admittedly, Abdur Rahman and Mst. Rahima have been died prior to the institution of the suit but none of them have ever objected on the parentage of the petitioner. Similarly, the petitioner has obtained his domicile certificate & MNIC for the first time in the year 2000 and CNIC in the year 2003, whereas, the Respondent No. 1 has challenged the parentage of the petitioner through the subject suit in the year 2021 after lapse of about 21 years, which delay has not been plausible explained by the respondent for any good reason.

7. Apart from the above, a Court of law can make a declaration in a suit in favour of a person who is entitled to any legal character or to any right, as to any property, which another is denying. A declaratory suit is filed under Section 42 of the Specific Relief Act, 1877, which provide as under:

‘42. Discretion of Court as to declaration of status or right.

Any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Bar to such declaration. Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief that mere declaration of title omits to do so.

Explanation. A trustee of property is a ‘person interested to deny’ a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.”

8. The petitioner has not denied either the legal character of the Respondent No. 1 or his right to any property but even then, the Respondent No. 1 has challenged the parentage of the petitioner and sought cancellation of his parentage documents so as to deprive the identity of the petitioner and not anything else. In this respect, the Apex Court, in the case of “Mst. Laila Qayyum v. Fawad Oayum and others”, reported as PLD 2019 Supreme Court 449, has held:

“16. Fawad sought to deprive Laila of her identity and of her inheritance. The Court cannot legally make the declarations the plaintiff seeks nor can it order the cancellation of the documents. The suit filed by Fawad cannot be decree. To keep such a suit pending only harasses the petitioner further and may deprive her of her inheritance. Already a lot of Court time has been taken up to attend to this frivolous suit. Therefore, we invoke our ancillary powers, granted to us under Article 187 of the Constitution, as it is necessary for doing complete justice, and exercising such powers dismiss the suit pending before the Senior Civil Judge Gulkada, Swat. We also award costs throughout, to be paid by the Respondent No. 1 to the petitioner.”

Similarly, in the case of “Munir Hussain and others vs Riffat Shamim and others”, reported as 2023 SCMR 6, the Apex Court has observed as follows:

“4. The learned Judge of the High Court had referred to a number of decisions including the decision in the case of Laila Qayyum v. Fawad Qayum (PLD 2019 Supreme Court 449) which had considered in detail the scope of a declaratory suit filed under Section 42 of the Specific Relief Act, 1877 and like in that case the paternity of another was denied by the plaintiffs. In other words, the plaintiffs (petitioner herein) through their suit sought a negative declaration. After considering the scope of the said section 42 and precedents this Court held in Laila Qayyum’s case that to challenge another’s paternity/legitimacy was not an assertion of one’s own legal character in terms of Section 42. However, a person whose legal character, including paternity, was being denied such person could file a suit to claim it, but the instance case is not such a case. In Laila Qayyum ‘s case the plaintiffs lacked legal character under Section 42 of the Specific Relief Act, 1877, and the same principle is attracted in this case.”

9. It is also important to note that admittedly, the Respondent No. 1 has two/three sisters from the same parents i.e., Abdur Rahman and Mst. Rahima but he has made party to the suit only his one sister, namely, Mst. Shamaila Bibi, in the array of defendants for about 9/10 months unexplained delay after institution of the subject suit, whereas, the other two sisters have not been made party to the suit either in the column of plaintiff or defendants without any plausible explanation on the record. Similarly, in para 2 of the plaint, the Respondent No. 1 has given the detail of his parents, namely. Abdur Rahman and Mst. Rahima, and their legal heirs, wherein, he showed himself as their only real son and two real daughters, namely, Mst. Samara Bibi & Mst. Shamaila Bibi. Later on, after the lapse of about 9/10 months, he introduced one Mst. Gul Andama as his third sister and her name was added on his request in the said para of the plaint vide Order No. 16 dated 08.09.2022.

10. In the above scenario, this Court is of the firm view that the suit of the Respondent No. 1 is barred by time, even the suit is not maintainable for seeking negative relief under Section 42 of the Specific Relief Act, 1877, as well as for non-joinder and misjoinder of necessary and proper party. As such, the subject petition is allowed, the orders/judgments of the learned two Courts below are set aside and consequently, the plaint of the Respondent No. 1/plaintiff is hereby rejected under Order VII Rule 11 of the C.P.C.

(J.K.)   Petition allowed

-S. 18--Construction of fly-over--Acquisition of land--Bifurcation of land--Reference filed--Assessment of price--Reference allowed--order of trial Court was challenged--Referenced dismissed--Time-barred--Direction to--Opportunity of producing evidence--Appeal--Delay of five months--

 PLJ 2024 Quetta (Note) 67
Present: Muhammad Ejaz Swati and Sardar Ahmed Haleemi, JJ.
SECRETARY COMMUNICATION AND WORKS, GOVERNMENT OF BALOCHISTAN, QUETTA and others—Appellant
versus
MIRWAIS KHAN and another--Respondents
C.M.A. No. 11 of 2022, decided on 17.10.2022.

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

----S. 18--Construction of fly-over--Acquisition of land--Bifurcation of land--Reference filed--Assessment of price--Reference allowed--order of trial Court was challenged--Referenced dismissed--Time-barred--Direction to--Opportunity of producing evidence--Appeal--Delay of five months--The impugned judgment and decree was challenged after delay of five (05) months which had not been explained--Initially Law and Parliamentary Office’s vide letter addressed to AG Balochistan requested for filing appeal against impugned judgment, which was duly replied to Appellant No. 2 that no plausible reason had been provided for delay caused in filing appeal, further appellant No. 2 was directed to explain reason of delay caused and also initiate enquiry against concerned officials who sent appeals to AG Office after lapse of stipulated period--The query of AG Balochistan was not replied with, appeal was not filed through AG Office--It is settled principle of law that where an appeal is not filed within stipulated period creates valuable rights in favour of opposite party, such valuable rights cannot be taken away unless very strong, convincing and solid Grounds are shown for condoning delay--In absence of any valid explanation of delay for each and every day, mere assertion that appellants were unable to accord necessary sanctions timely from law department was not sufficient to condone delay of 5 months and 6 days, as such, instant appeal was not maintainable--Appeal dismissed.

                                                                          [Para 9 & 10] A, B & C

Mr. Shahid Baloch, Additional A.G for Appellant.

M/s. Rehmatullah Barrech and Ahsanullah Kakar, Advocates for Respondents.

Date of hearing: 3.10.2022.

Judgment

Sardar Ahmad Haleemi, J.--This appeal is directed against the judgment and decree dated 13th March, 2021 (hereinafter the “impugned judgment and decree”) passed by the learned Additional Sessions Judge-X, Quetta (hereinafter the “trial Court”), whereby the Reference filed by the respondents under Section 18 of the Land Acquisition Act, 1894 (hereinafter the “Act, 1894”) against the award dated 14th May, 2011 was accepted, wherein the rate of the property in question total measuring 2061 sq.ft. was enhanced from Rs. 4200/- Per sq.ft. to Rs. 5,000/- per sq.ft. in addition to 15% compulsory acquisition charge from the date of accrual till realization of amount.

2.  The facts, in brief of the instant appeal are that the predecessor in interest of the respondents filed a reference under Section 18 of the Act, 1894 against the appellants with the averments that the Government of Balochistan for the purpose of construction of fly-over at SariabPhatak, Quetta acquired lands measuring 145019 sq.ft. comprising Ward Nos. 7,8 and 9 Urban-II, Tehsil and District, Quetta City, wherein the Respondent No. 4 while bifurcating lands into following categories also fixed compensation/price lands as under:

Category-A the lands fall in Ward No. 9 @ 5000/- per sq.ft. Category-B the lands fall in Ward No. 8 @ Rs. 4,200/- per sq.ft. Category-C the lands fall in Ward No. 7@ Rs. 3,500/- per sq.ft.

3. It was further case of the respondents that the compensation/price assessed on the basis of average rate of three years lands transaction affected in the said Mohal and Mouza during the years 2008-2009 and 2010 and as regards the Ward No. 8 where the land of the respondents was situated, same had neither been sold out by the respondents or their co- owners nor any transaction during such period had been affected; that the land of the respondents situated at Ward No. 8, was very costly; the respondents through Respondent No. 1 contacted the appellants and demanded Rs. 15,000/- per sq.ft as compensation, which was not entertained and thereafter the respondents repeatedly approached the appellants, but no response was given, as such, the respondents filed a complaint to the higher authorities i.e. The Chief Secretary, wherein while taking action, the Board of Revenue was directed to submit report in this regard; consequent thereto, report was submitted, wherein the compensation of the land of the respondents was not at par worth market rates, hence the respondents approached this Court by way of filing C.P., which was later on withdrawn. After completion of acquisition proceedings, the appellant No. 2 announcement the award dated 14th May, 2011 wherein the price of commercial property of respondents was assessed less than of the market value; which had caused great prejudice to the respondents, thereafter, the respondents filed the reference.

4 The appellants contested the reference on the ground that after given due consideration, the award was announced after completion of all codal formalities under the Act, 1894 as well as per market rate prevailing in the area.

5.  Out of divergent pleadings of the parties, issues were framed. Whereafter, the trial Court after adducing evidence from both the parties, allowed the reference vide impugned judgment and decree, hence this appeal.

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

7. Perusal of record reveals that the Government of Balochistan acquired lands for the purpose of over-fly at Sariab Phatak, Quetta, which was carried out under the Act, 1894, wherein, the Respondent No. 4 bifurcated the lands into three categories, detail whereof is given in Para No. 2 (supra). Consequent thereto, for the said purpose, the Communication and Works Department acquired the landed property of the respondents measuring 145019 sq.ft. bearing different Khasra numbers situated at Mahal and Mouza Ward Nos.7, 8 and 9, Tappa Urban 2 & 3, Tehsil City, District Quetta after fulfilling all the codal formalities and thereafter the Appellant No. 2 announced the award on 14th May, 2011 in presence of land owners and valued the same as per categories mentioned in Para No. 2 supra.

8. The respondents thereafter filed a Reference under Section 18 of the Act, 1894, which was dismissed by the learned Additional District Judge-III, Quetta vide judgment dated 5th September, 2013 being barred by time, which was challenged before this Court. This Court vide order dated 10th April, 2017 remanded the matter back to the Court of learned Additional District Judge-III, Quetta with the direction to decide the same after providing opportunity of producing evidence.

9. Perusal of memo. of appeal reveals that the impugned judgment and decree dated 13.03.2021 was challenged on 16.09.2021 after delay of five (05) months which has not been explained. It further reveals that initially the Law and Parliamentary Office’s vide letter dated 8th July, 2021 addressed to Advocate General Balochistan requested for filing appeal against the impugned judgment, which was duly replied vide letter dated 11.08.2021 to Appellant No. 2 that no plausible reason has been provided for the delay caused in filing the appeal, further the Appellant No. 2 was directed to explain the reason of delay caused and also initiate enquiry against the concerned officials/officers, who sent the case/appeals to Advocate General Office after lapse of stipulated period. The query of Advocate General Balochistan was not replied with, therefore, the appeal was not filed through the Advocate General Office.

10. The contents of application for condonation of delay reveals that the Appellants have not been able to sufficiently explain the inordinate delay of 5 months and 6 days within the parameters of law and the only reason furnished by the appellants is that they have been unable to accord necessary sanctions from law department timely, therefore, we see no sufficient cause to condone the delay. It is settled principle of law that where an appeal is not filed within stipulated period creates valuable rights in favour of the opposite party, such valuable rights cannot be taken away unless very strong, convincing and solid Grounds are shown for condoning the delay. In this regard reliance is placed in the case of Government of Pakistan through Ministry of Works and another v. Messrs Malbrow Builders, Contractor, Sialkot, 2006 SCMR 1248, wherein it held as follows:

“The question of limitation being not a mere technicality cannot be taken lightly and the rights accrued to the other party due to limitation cannot be snatched away without sufficient cause and lawful justification.”

Similar view has been taken in the case of Imtiaz Ali v. Atta Muhammad and another PLD 2008 S.C. 462, wherein it held as under:

“The appeal, having been filed after one day of the period of limitation, had created valuable right in favour of the respondents, and as such even the delay of only one day was not condoned by the Hon’ble Supreme Court as no sufficient cause was found for filing the appeal beyond the period of limitation.”

Thus, in absence of any valid explanation of the delay for each and every day, mere appellants were unable to accord necessary sanctions timely from the law department assertion that the is not sufficient to condone the delay of 5 months and 6 days, as such, the instant appeal is not maintainable.

11. For the above reasons, the appeal is dismissed.

(J.K.)   Appeal dismissed

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