Transaction through reliable, cogent and convincing evidence

In the case of “Arshad Khan v. Mst. Resham Jan and others” (2005 SCMR 1859) it was observed by the honourable Supreme Court to the effect that in case of transaction involving pardanashin lady, heavy burden rests on party in position of active confidence to prove good faith and genuineness of transaction as envisaged in Article 127 of the Qanoon-e-Shahadat Order, 1984. The august Court was please to observe that “this is a settled law regarding the disposition of properties of Parda Nasheen Ladies and also the illiterate and ignorant women that the genuineness of the transaction of disposition must be established by the persons who claims its genuineness or who is to be benefitted by such transaction through reliable, cogent and convincing evidence.”

Used in Judgement of
Lahore High court
Civil Revision
130272/18

Absence of direct evidence.

In “Shah Muhammad and 2 others v. Dulla and 2 others” (2000 SCMR 1588), it was observed that the admission of a co-plaintiff or co-defendant does not bind the other in the absence of direct evidence.

Used in Judgement of
Lahore High court
Civil Revision
130272/18

Examining the plea of transaction

Likewise in “Ghulam Farid and another v. Sher Rehman through LRs” (2016 SCMR 862) while examining the plea of transaction by a pardanashin lady it was observed by the honourable Supreme Court as under:-

“14. The inflexible, hard and fast rule is, that when any transaction is made by any one where “Parda Nasheen” lady’s vital interest is involved then, the following conditions are to be invariably and essentially fulfilled: -

 (i) to establish through evidence that the transaction was free from any influence, misrepresentation or fraud;

(ii) that, the amount of consideration equal to the value of the property was indeed paid to the ladies;

(iii) in the case of “Parda Nasheen” rustic village ladies at the time of transaction such ladies were fully made to understand the nature of the transaction and the consequences, emanating therefrom and;

(iv) That at the time of transaction, the ladies were having access to independent advice of their nearer or dearer, who have no hostile interest to them.”

Used in Judgement of
Lahore High court
Civil Revision
130272/18

Suit is maintainable and not hit by the principle of resjudicata,"

"As regard to issue No.2 and 3, the findings of the learned trial court are not tenable. In the previous suit the appellant has challenged the validity of mutation No.9 sanctioned in favour of the respondent and that suit was although dismissed but the mutation No.9 was also set aside and the revenue officer was directed to sanction a fresh mutation according to law. In the suit in hand, the appellant has challenged the mutation No.1168 sanctioned by the revenue officer which according to him is illegal and void and he sought a declaration that the said mutation is not according to the share of the parties and the respondent has been given more land than her due share, So, the instant suit is maintainable and not hit by the principle of resjudicata,"

Reliance in this regard is placed on the cases reported as Muhammad Aslam &02 others vs' SYed Muhammdd Azeem Shah (1996 SCMR 1862) & Kanwal Nain vs. Fateh Khan (PLD 1983 SC 53 ).

Used in Judgement of
Lahore High court
Civil Revision
130272/18

Prove three ingredients of gift

 In “Fayyaz Hussain and others v. Haji Jan Muhammad and others” (PLD 2018 SC 698) it was observed by the honourable Supreme Court that even in the cases of death of the executant prior to the suit and in the face of the denial of the execution by the plaintiff, the requirement of two attesting witnesses could not be dispensed with, and that the alleged beneficiary is legally required to prove three ingredients of gift:
 (i) offer by donor, 
(ii) acceptance of gift by the donee and 
(iii) delivery of possession; and all these ingredients need to be proved and established through independent evidence.

Used in Judgement of
Lahore High court
Civil Revision
130272/18

“proceedings” is to be understood with reference

“At this place we would like to observe that connotation of word “proceedings” is to be understood with reference to the text, the law, the subject-matter, and the intention of the Legislature discernible from the overall examination of the aims and objects of the relevant enactment under scrutiny. In our view, subsections (2) and (3) of section 2 leave no room for doubt, that their intention was to allow the cases of old applicants for allotment of land which were pending on the relevant date of repeal, to continue so as to be disposed of in accordance with the provisions of the Act repealed to which the proceedings related. There is no ambiguity in this case that the application of Rehmatullah for claiming the land in dispute was under Act XLVII of 1958 and as such it was to continue under the same Act despite its repeal. When the words used in the statute are “all proceedings” it is not justified to diminish the totality of those proceedings by introducing jurisprudential concepts, for example of judicial proceedings, quasi-judicial proceedings, executive proceedings, administrative proceedings, penal proceedings, fiscal proceedings, and proceedings before a Court etc. the focus should remain on the words deployed in the statute and so long as the proceedings are under the Act repealed; before the competent authorities, and are of the kind and for the purpose indicated in that Act, for the enforcement of rights mentioned therein on the applicants concerned, they are the proceedings which are saved so as to continue under the relevant law repealed. The provision made is of the kind which is contained in section 6 of the General Clauses Act X of 1897 where it has never been doubted that legal proceedings for enforcement of substantive rights are such proceedings which can continue after the repeal of the enactment under which may they were initiated and were pending at the relevant time.”

PLD 1979 S.C 846

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

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 Judgment of
Lahore High Court
Civil Revision
68495/17

Recovery of arrears and for ejectment was not maintainable

Ss.7 & 8, Art. 199
-    Plea of tenants that one suit both for recovery of arrears and for ejectment was not maintainable. Held, there was no bar to collect both the remedies in one suit, however, W.P. was dismissed for there being factual controversies.
Allah Rakha        Vs.    Member (J.I.) Board of Revenue
2012 CLC 217. Lah.

Evacuee property

“It is settled law once a property is treated to be an evacuee property even erroneously, then the same cannot be held to be otherwise and the Civil Court in this behalf would have no jurisdiction.”

2017 SCMR 468

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

Inheritance devolves from the descendants of true grandfather

“The learned counsel for the petitioners is not correct in saying that as among the residuaries the remoteness or closeness of the relationship is of no consequence. The table of residuaries in order of succession under Sunni Law itself shows that the inheritance devolves from the descendants of true grandfather how highsoever the full paternal-uncle’s son and thereafter on full paternal-uncle’s sons’ son”.

1985 SCMR 947

Used in Judgement of
Lahore High Court
Civil Revision
1433028.3207-12

Section 54 of the Transfer of Property Act, 1882 and 17 of the Registration Act, 1908

“……….There is no documentary evidence about the sale, which obviously could not be legally concluded except in accordance with section 54 of the Transfer of Property Act, 1882 and 17 of the Registration Act, 1908. Moreover, even no oral independent evidence has been led by the respondent to establish the exact day, date, month, year, the venue as to when the sale transaction was allegedly negotiated and finalized between the parties and in whose presence”

PLD 2011 SC 161

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

High Court could alter the decree which had become merged in the decree of the High Court

Certain contentions raised by Mr. T.H. Khan may be very briefly disposed of. He contended that the Trial Court lacked jurisdiction to interfere with the decree because it had become final through being upheld in appeal in the High Court and not having been appealed against further, and secondly, that only the High Court could alter the decree which had become merged in the decree of the High Court. The mere fact of the decree having become immune to further appeal by the dismissal of the appeal in the High Court and the lack of further appeal does not render the decree a decree of any other Court except that of first instance. No modification was made in the decree by the High Court, and the argument of merger is rendered of no weight by the consideration that in fact the High Court rejected the appeal.

PLD 1965 Supreme Court 37

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

Correction of mistake in the decree sheet

3. It was contended by learned counsel for the petitioners that the learned Executing Court had no jurisdiction to correct the clerical error in the plaint. He was not much worried about the correction of mistake in the decree sheet. His plea was that after the finalization of the judgment and decree, the Executing Court had no jurisdiction to allow the correction of the plaint.

4. A similar question came up before this Court in the case reported as Nazir Ahmad and 6 others Vs. Ghulam Mustafa (1995 SCMR 163). The case also related to a pre-emption matter. At the stage of execution of the decree, passed in the pre-emption suit, correction of particulars of the land involved was sought and the same was allowed by the learned Executing Court. While so doing, the learned Executing Court had directed the plaintiff (decreeholder) to make the necessary correction in the plaint as well. When order made in the said case, was assailed before this Court, it was ruled by a learned Bench comprising Mr. Justice Ajmal Mian and Mr. Justice Muhammad Rafique Tarar (as he then was) that no infirmity or legal flaw in the order of the High Court, sought to be challenged by means of an appeal, had been pointed out so as to warrant interference by this Court. The petition for leave to appeal was, therefore, dismissed.

5. The case before us stands on a better footing as compared to the case of Nazir Ahmad and 6 others, inasmuch as, in the case under report, there was no application for amendment of plaint and yet the learned executing Court had directed the plaintiff (decree- holder) to amend the plaint so as to do away with the same error which had been pointed out in the decree-sheet and was desired to be corrected. As against this, in the case in hand, there was an application by the plaintiff (decree-holder) herself, which was allowed by the learned executing Court while permitting correction of the decree-sheet, so as to do away with the clerical error.

6. Respectfully relying on the opinion expressed in the case of Nazir Ahmad and 6 others, we find nothing wrong with the order of the learned Bench of the Lahore High Court and, therefore, leave is refused to the petitioners to appeal against the said order.

1996 SCMR 875

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

Shall not be used as evidence

This Article in clear and unambiguous words provides that a document required to be attested shall not be used as evidence unless two attesting witnesses at least have been called for the purpose of proving its execution. The words “shall not be used as evidence” unmistakably show that such document shall be proved in such and no other manner. The words “two attesting witnesses at least” further show that calling two attesting witnesses for the purpose of proving its execution is a bare minimum. Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution. Construing the requirement of the Article as being procedural rather than substantive and equating the testimony of a Scribe with that of an attesting witness would not only defeat the letter and spirit of the Article but reduce the whole exercise of re-enacting it to a farce. We, thus, have no doubt in our mind that this Article being mandatory has to be construed and complied with as such.

2015 SCMR 1044

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

Recognize those rights and liabilities and pass its formal expression

“Now this determination may be arrived in one of two ways; either after contest by the Court coming to its own conclusion on the materials placed before it, or on the parties themselves agreeing to settle their difference on certain lines and asking the Court to adjudicate their respective rights and liabilities in accordance with that settlement. In both cases the Court has to pass orders. In one case the order is based on the decision of the Court itself, and in the other the Court, after being informed of the agreement of the parties makes a formal adjudication on the basis of the agreement. In both cases the court will generally order the parties to carry out their respective obligations. An adjudication may in some cases, be purely declaratory; this will happen if a declaration be sufficient to give the party having a right all the relief he is in need of. If on the other hand, a declaration is not enough, the Court will order the party, who has infringed the right of another to restore that right to the rightful party as found by the Court, or as admitted by the other party. What the parties do in a compromise of a suit is to adjust their rights and liabilities outside the Court and then come and ask the Court to recognize those rights and liabilities and pass its formal expression of adjudication accordingly. This is what is provided in O. 23, R. 3. The Court is required to record the compromise, which thus really takes the place of a judgment in a contested suit.”

AIR 1933 Patna 306

Used In Judgment Of
Lahore High Court
Civil Revision
922439.2224-07
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