Attesting witness

The relevant extract from Para- 9 of Hafiz Tasadduq’s case for ready reference is reproduced below:-

“9.Coming to the proposition canvassed by the counsel for the appellant that a scribe of the document can be a substitute for attesting witnesses; the point on which leave was also granted. It may be held that if such witness is allowed to be considered as the attesting witness it shall be against the very concept, the purpose, object and the mandatory command of the law highlighted above. The question, however, has been examined in catena of judgments and the answer is in the negative.”

PLD 2011 SC 241

USed in Judgment of
Lahore High Court
Civil Revision
1075272.2383-09

Compromise is an agreement

“a compromise is an agreement to put an end to disputes and to terminate or avoid litigation, and in such cases, the consideration which each party receives is the settlement of the dispute, the real consideration is not, the sacrifice of a right but the abandonment of claim.”

AIR 1916 Calcutta 843

Used in Judgment of
Lahore High Court
Civil Revision
922439.2224-07

Undivided immovable property

Suffice it to say that this legal point has already been discussed by the honourable Supreme Court of Pakistan in a judgment reported as “Taj Wali Shah Vs Bakhti Zaman” (2019 SCMR 84) and held as under;

viii. In an undivided immovable property one of the cosharers can maintain a suit for ejectment of a possessor in respect of the entire property and in such a case the following may ensue:

firstly, the said suit of the co-sharer cannot be considered as evidence of his-denial of the title of the other co-sharers;

secondly, that the suit brought by said co-sharer would be deemed to be for the benefit of the other co-sharers; and

thirdly, when the said co-sharer acquired possession in consequence of the said proceedings, he would be in possession of the entire property, on behalf of all cosharers and his said possession cannot be deemed as adverse to the other co-sharers.

Used in Judgment of
Lahore High Court
Civil Revision
1599246.137-14

Revisional jurisdiction under section 115, C.P.C

“6.Before considering the contentions of the parties on merit, we would like to mention here that the scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C is very limited. The High Court while examining the legality of the judgment and decree in exercise of its power under section 115, C.P.C cannot upset a finding of fact, however erroneous it may be, on reappraisal of evidence and taking a different view of the evidence. Such findings of facts can only be interfered with by the High Court under section 115, C.P.C if the Courts below have either misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence which has direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under section 115, C.P.C if the approach of the Courts below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below on the basis of the evidence on record.***”

(1997 S C M R 1139)

Used in Judgment Of
Lahore High Court
Civil Revision
1075272.2383-09

Adverse possession

Section 28

Adverse possession- even if sec. 28 was assumed to ne no more valid law still it will not affect part and closed transaction-judgment of F.S.C.will be effective from August 1992 whole transaction in question taken place and cause of action accrued before that period.

1995 MLD 1962

Jurisdiction to enforce the same and the law does not allow its machinery to be clogged in this respect

Compromise is admitted which became part of the order, which stipulated the withdrawal of the suit by the respondent. Under section 36 Civil Procedure Code, 1908, the provisions of the Code relating to the execution of decree are also applicable to orders. Even if there was no decree in existence an order disposing of the suit in terms of the compromise is very much there, binding upon and operative qua the parties. In Kilachand Devchand and Co. V. Ajodhuaprasad Sukhamnand and others AIR 1934 Bombay 452, it was observed that if the Court had jurisdiction to make the order it had necessarily the power and jurisdiction to enforce the same and the law does not allow its machinery to be clogged in this respect.

(2003 CLC 1306)

Source
2019 LHC 1994
Civil Revision
2539875.1339-17

Entitled to a decree for protection of possession

“Even this document does not tend to confer any right or title in favour of respondent No.1, except the right to possession, therefore, merely on the basis of extracts containing entries in his favour in PT-I maintained by Excise and Taxation Officer M. Division Karachi could not be held to be the owner of the property. At best the plaintiff/respondent No.1 would be entitled to a decree for protection of possession on the basis of the evidence adduced by him and not controverted by other side. In the absence of any concrete evidence on the question of mesne profits we are in a manner of doubt whether such decree could be passed in his favour as against petitioner and respondent Rehmat Hussain.”

2007 SCMR 181

Used in Judgment of:
Lahore High Court
Civil Revision
35042/19

Court has jurisdiction to correct the clerical or arithmetical mistake or errors

“The Court has jurisdiction to correct the clerical or arithmetical mistake or errors caused due to accidental slip or omission in a judgment, decree or order. Depending on facts, it confers a wide direction on the Court to correct, 
(i) clerical or arithmetical mistake, 
(ii) errors caused due to accidental slip or omission in the judgment, decree or order. Such power can be exercised at any time. Where the Court is bound to grant relief even without it being sought by a party and if unintentionally or inadvertently the Court does not grant such relief, it would be justified at any time to correct such accidental omission or error by exercising power under Section 152.”

PLD 1992 SC 472

Used in Judegment of
Lahore High Court
Civil Revision
68495/17

Section 35 essentially deals with the actual costs of the ‘suit’

“… It would be seen that Section 35 essentially deals with the actual costs of the ‘suit’ while under section 35-A they are ‘compensatory’. Their nature is well summarized by Mr. Amer Raza A. Khan in his well known commentary on CPC that: costs awardable by a court can either be compensatory costs (S. 35-A) or actual costs (S. 35). Actual costs are awarded by a Court in order to secure the expenses undergone by a successful litigant in the assertion of his rights before a Court. They are not awarded by way of penalty or punishment against the unsuccessful party nor are they to be made a source of profit for the successful party. They are also not awarded by way of compensation, but by its very nature, actual costs are awarded to reimburse a successful party for the expenses incurred by him. And further that even under section 35-A “Costs are compensatory and are not awarded as penalty against an unsuccessful party”. All this shows that though the costs awarded under section 35-A CPC can be taken into account when awarding “damages”, they are not even by statutory dispensation, the same as the “damages”. The conditions for application of section 35-A are different and much less than the elements set out earlier for an action for malicious prosecution. The actual costs of the suit under section 35, C.P.C. are at a much lower level when considered in this behalf. Besides this, a combined reading of sub section (4) of section 35-A and sub section (2) of section 95 which deal with the effect of the orders under these provisions on actions for “damages”, are clearly indicative of the legislative intent; that unless a case is fully covered by section 95(2), the award of costs, under section 35 and 35-A instead of barring a suit for damages supports the right for such an action…”

PLD 1990 SC 28

Used in judgment of
Lahore High court

 Civil Original Suit (C.O.S)
1343554.643-12

Law to establish the original transaction of gift

“2. The principal issue, whether the respondentplaintiff Muhammad Tufail could claim as a legal heir of Gomaan, is settled by a concurrent finding of fact given by three learned courts below. In the light thereof the rule laid down by this court in “Kulsoom Bibi v. Muhammad Arif” (2005 SCMR 135) and Ghulam Haider v.Ghulam Rasool (2003 SCMR 1829) that a done claiming under a gift that excludes an heir, is required by law to establish the original transaction of gift irrespective of whether such transaction is evidenced by a registered deed. In the present case there is no evidence of declaration of gift or of its acceptance on record. The mere transfer of possession to a done is not sufficient to constitute a valid gift under the law. Furthermore, in the judgment of this court reported as “Barkat Ali v. Muhammad Ismail” (2002 SCMR 1938) a gift deed as in the present case must justify the disinheritance of an heir from the gift…”

2018 SCMR 139

Used in:
2019 LHC 1562

Case was not pending in terms of section 2(2) of the Repealing Act.

“It was also urged by the appellant in its written arguments that respondent No.1’s case was not pending in terms of section 2(2) of the Repealing Act. In our view, since respondent No.1’s claim against the garden land was not satisfied, it cannot be said that his case was not pending.”

1993 SCMR 1062

Used Judgment of:
Lahore High Court
Civil Revision
637-12

Rejecting a plaint under Order VII rule 11 CPC

“However, the courts while rejecting a plaint under Order VII rule 11 CPC on the ground that the plaintiff failed to disclose any cause of action or the suit is barred under some provision of law, to the extent of examination of relevant facts by the court to reach these conclusions has to be on the basis of the averments made in the plaint…”

1994 SCMR 826

Used in Judgment of
Lahore High Court Civil Original Suit (C.O.S)
1343554.643-12

The terms “pending proceedings”

“The terms “pending proceedings” as used in these laws would mean that an initial step taken as contemplated under the settlement laws for allotment of land against verified claim of the claimants but the same did not finalize before the repeal of the same, therefore, it was with reference to such cases that it was provided that those would be taken forward and concluded under the repealed settlement laws as if they had not been repealed for the said limited purpose and in order to pass final order in such cases a provision was made to appoint a Notified Officer to deal with such cases.”

PLD 2002 S.C 5

Used In Judgment of:
Lahore High Court
Civil Revision
637-12

Order VII rule 11 CPC and the High Court also correctly upheld the said order

“…After hearing the learned counsel for the petitioner and the respondents who appeared in person, we are of the view that the learned Civil Judge had already framed issue No.2 to the effect that the suit was within time and besides that the learned Civil Judge also gave finding that the question of limitation in the case was a mixed question of law and fact and thus the issue can only be resolved after recording of evidence touching the controversy. In our view, no error had been committed either by the learned Civil Judge or the High Court while arriving at the aforesaid finding and thus the learned Civil Judge had rightly rejected the application under Order VII rule 11 CPC and the High Court also correctly upheld the said order”

1999 SCMR 2396

Uesd in Judgment Of:

 Civil Original Suit (C.O.S)
1343554.643-12

Controversy in the two proceedings,

“Until such time the documents relating to the earlier proceedings were brought on record in accordance with law and the matter was thoroughly examined with regard to the controversy in the two proceedings, it was not possible for the courts below to reach the conclusion that the present suit involves the same controversy which was decided in the earlier proceedings…”

1994 SCMR 826

Used In Judgment Of
Lahore High Court

 Civil Original Suit (C.O.S)
1343554.643-12
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