Concurrent jurisdiction of both High courts

In this judgment question of jurisdiction of Lahore High Court and Islamabad High Court has been considered. Upholding the concurrent jurisdiction of both courts, when order emanates from a person /office not only localized in Islamabad but in entire Pakistan, relief was granted against order of Prime Minister: The Prime Minister is deemed to be functioning in the entire Pakistan and as such there is no doubt in my mind that the impugned order can be assailed successfully before the Lahore High Court, Lahore…the Lahore High Court Lahore and Islamabad High Court are enjoying concurrent jurisdiction on Islamabad capital territory.

2014 PLC (C.S.) 203

“Creditor” and “consent decree”

In this case while deciding a civil lis court defined terms “creditor” and “consent decree” in a beautiful manner. Consent Decree “A consent decree is a kind of agreement/contract between two parties with a superadded command of the court but it would not bind a third party who was not party to the said suit”. While refereeing to section 53 of the Transfer of Property Act and after quoting from Black’s Law Dictionary, the august court gave extended meaning to term “creditor”. “In the afore-quoted definition of ‘creditor’ various shades of its meanings have been encapsulated. The ‘creditor’ thus includes someone who has a right to require someone to fulfill a promise, an obligation or a contract”.

2014 SCMR 33

Transfer his Session case from the trial court of learned II Additional Sessions Judge

      The Under Trial Prisoner/ applicant Allah Juryo son of Allah Bux Leghari presently confined in Central Prison Hyderabad, sent an application to this Court with prayer to transfer his Session case from the trial court of learned II Additional Sessions Judge, Hyderabad. Accordingly, said application was entertained by this Court and same was converted into Criminal Revision Application for transfer of case vide order dated 11.01.2014, and simultaneously, comments were called from the learned trial court of II Additional Sessions Judge, Hyderabad through learned Sessions Judge, Hyderabad.
2.       The grievance of the applicant / UTP as per the contents of his application is that he and his father are facing their trail in Sessions Case No.817/2011 bearing crime No.180/2011 of P.S. Hatri, Hyderabad under section 302, 324, 34 PPC, and Sessions Case No.818/2011 under section 13-E Arms Ordinance in the court of learned II Additional Sessions Judge, Hyderabad and applicant seeks transfer of both criminal cases to any other court for its adjudication on the following grounds:-
(i)  The complainant has falsely implicated them with the collusion of police
(ii)     The Reader of the trial court is close friend of the complainant
(iii)    The Trial Judge threatened them through his Reader to reject the bail of his father.
(iv)    There are so many UTPs of the Prison, who are not satisfied from the Judge and have no any hope of free and fair trial.   
 3.      In the comments, the learned trial Judge has submitted that the case is old one pertaining to year 2011, wherein charge was framed on 03.01.2012 and the P.Ws are regularly appearing before the Court, but the case is being adjourned from time to time due to absence of counsel for applicant. He has denied the allegations leveled by the applicant and stated that in fact the applicant is trying to linger on the case. He, however, raised no objection for transfer of the case to any other court.
4.       The applicant is produced in custody. On query made by the Court, the applicant stated that learned trial Judge and his Reader are pressing hard and compelling the applicant to proceed with the case and the Reader of court is close friend of the complainant, however, he neither alleged any reasonable ground for transfer of the case nor leveled any other serious allegations regarding integrity of the learned Judge.
5.       Learned Assistant P.G. opposed the request of applicant and submitted that there is no reasonable ground for transfer of the case from the learned trial court to any other court, and mere loss of faith by any party is not sufficient ground to transfer the case from any court of law.

6.       I have heard the applicant/ UTP in person, learned Assistant P.G and perused the material available on record meticulously.

7.       Perusal of the record reflects that the applicant and his father are facing their trial in two criminal cases including the heinous crime of murder; despite of framing charge by the learned trial court on 03.01.2012, the counsel for the applicant is delaying the trial and avoiding to proceed the case while the prosecution witnesses are attending the proceedings regularly, but during the period of more than two years, the learned trial court could not record the evidence of witnesses.

8.       The allegations leveled by the applicant indicate that instant application devoid of any cogent ground for transfer of the case except that the Reader is close friend of the complainant and the trial Judge conveyed through the Reader to the applicant the bail of his father would be rejected. These allegations have neither any substance for consideration nor could be believed, and the trial court intends to reject the bail of co-accused then there was no need to convey such fact to the applicant through his Reader while UTP is being produced in open court.

9.       The next ground urged by the UTP in this Court that the trial Judge and Reader of the court are compelling the applicant to proceed the case, it is prime duty of the trial court to proceed the case on merits to ensure administration of justice, the case of prosecution shall not be defeated on the sole ulterior motive of the defence to cause unnecessary delay to frustrate the prosecution witnesses who are continuously attending the trial court for the period more than two years. It is also prime duty of the court to ensure impartiality and maintain transparency during the course of the trial and must afford equal opportunity to both the parties. The court also not be influenced by the vague allegations leveled by any of the party and strictly act in accordance with law to achieve the task of administration of justice. 
10.     The next important aspect is the alleged statement of applicant regarding lost of his faith upon the learned trial court; while dealing with transfer applications moved by any of the aggrieved party at litigation, it is mandatory responsibility of the appellate forum to scrutinize these kind of allegations deeply and mere word of the allegations must not be treated as gospel truth. Such statement must be scanned by considering the peculiar circumstances of the case and focusing upon the entire behaviour of the said party during the proceedings to reach on the right conclusion, and appellate forum must not oblige the any party who is bent upon to pressurize or compel the trial court for achievement his ulterior motive by showing his eyes.    

11.     Admittedly, the applicant has not denied that prosecution witnesses are regularly attending the court, but on the other hand, the trial of the cases is freezed due to the deliberate absence of the counsel for applicant which has been causing the unnecessary adjournments and postponement of the trial of murder case before the learned trial court and despite lapse of about two years, case has yet not been proceeded.

12.     I am of the considered opinion that practice of frequent filing of  transfer applications which are not supported by any solid and convincing grounds, if allowed, it would on the contrary cause embarrassing and discouragement to trial Court, therefore, such malpractice shall be discouraged and dejected which otherwise also causes delay in proceedings of main the case.     
13.     For the foregoing reasons, I find no cogent substance and convincing merits in the instant criminal revision application which stands dismissed. However, learned trial court is directed to proceed with the matter expeditiously as the subject case pertains to the year 2011.

Article 173 of the Limitation Act, 1908,

 I have heard the learned counsel for the parties and have also examined the law cited at the bar. The order under review was passed by me on 28.10.2013, whereas the application for its review was presented on 26.11.2013, that is, after 29 days of passing the order. Article 173 of the Limitation Act, 1908, provides a limitation of 90 days for review of judgment except in cases provided for by Articles 161 and 162 of the said Act. Article 161 is not relevant to the instant case, as it deals with the review of a judgment by the Court of Small Causes or by a Court invested with the jurisdiction of a Court of Small Causes. Article 162 of the Limitation Act, 1908, prescribes limitation period of 20 days “For a review of judgment by a High Court in the exercise of its original jurisdiction” from “The date of the decree or order”. It is significant to note that Article 162 ibid has been made applicable specifically to cases where review is sought before the High Court in its original jurisdiction ; and, it has been made applicable not only to judgment / decree, but also to an order passed by the High Court. In view of the limitation prescribed specifically for the review of the judgment / decree or order of High Court, I have no hesitation in holding that the instant review application shall be governed by Article 162 ibid and not by Article 173 ibid. This view is supported by the cases of Riyaz Qasim (supra) and Sardar Ali (supra) relied upon by the learned counsel for the plaintiff. In the former case, it was held by a learned Division Bench of this Court that Article 162 ibid was applicable, under which an application for review before the High Court could be filed within 20 days from the date of decree or order ; and, since the application was not filed within the prescribed period, the same was barred by time. The same view was taken in the latter case by a learned Division Bench of the learned Lahore High Court.

 ORDER ON C.M.A. No. 13240 OF 2013

Rule that no limitation ran against a void order

Rule that no limitation ran against a void order was not an inflexible rule; that a party could not sleep over to challenge a void order and it was bound to challenge the same within the stipulated/prescribed time period of limitation from the date of knowledge before the proper forum in appropriate proceedings.

2013 SCMR 587

Provision of Article 181 of the Limitation Act

Relying on 2008 SCMR 287, the Court held (at p. 480):
…that provision of Article 181 of the Limitation Act, 1908 are applicable only to the ex parte judgments and decrees where the defendant never joined the proceedings whereas in the cases where the defendant does not appear after joining the proceedings the provisions of Article 164 of the Limitation Act 1908 are applicable.

Sections 54 & 55 read with Order 21 of the Civil Procedure Code

Civil court is empowered Under sections 54 & 55 read with Order 21 of the Civil Procedure Code to adopt coercive method to execute a civil decree. The petitioner had given an undertaking to produce the judgment debtor as and when required but he has failed to fulfill the said undertaking.
When the judgments and orders of courts are not implemented, they simply become a paper decree and would lose its legal value which creates insurmountable difficulties, not only for the courts but also for the decree holder as well, who has got a lawful right and has submitted himself to the jurisdiction of court without taking the law into his own hands. If his trust and confidence is not honoured it would get shatter and that would further weaken the social fabric of the society.

High Court in the exercise of its extraordinary jurisdiction

The Hon’ble apex Court formulated the following question for determination: The significant question which thus would arise is, that where a claim of a person emerging from the breach of contract, which (claim) admittedly is barred by time if agitated before the Court of plenary / original civil jurisdiction, whether such claim can be directed to be enforced by the High Court in the exercise of its extraordinary jurisdiction, within the parameters of Article 199 of the Constitution of Pakistan 1973.

2013 SCMR 238

Defence Housing Authority are on commercial basis earning

The notification under section 4 of the Land Acquisition Act 1894 in favour of Army Welfare Housing Society was declared as null and void on the ground that the AWHS is not meant for ‘public purpose’. The learned Single Bench of Lahore High Court has held (at p. 163): …housing schemes being launched under the banner of Defence Housing Authority are on commercial basis earning a lot of profit therefrom, therefore, these cannot be said a ‘public purpose’.

2013 CLC 158

Limitation period for filing of execution petition

When appeal is decided in continuation of a suit, the doctrine of merger comes into field and the date of judgment / decree of the appellate court will be relevant for counting limitation period for filing of execution petition. Reliance was also placed on 1992 SCMR 241. (p. 265)

PLJ 2012 Peshawar 262
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