Act under Order VI rule 17, C.P.C. to allow the amendment

(2012 CLC 1630-Peshawar), it was observed that:-

‘9. Since rule 11 of Order ibid being penal provision, to have construed strictly by considering the statement made in the plaint in the light of law applicable thereto and not to be resorted to unless, conditions for exercise of such drastic powers are fully satisfied. Moreso, if the plaint is suffering from any legal infirmity entailing its rejection, in such eventuality, the plaintiff has the right to amend his plaint for the clarity of vagueness appearing in the plaint, so that it may conform with the relevant provisions of law, as the cherished goal of law is that the matter to be decided on its merits so that the litigants are not to be deprived of their valuable rights in the wake of their technical knockout. The Court is empowered that instead of rejecting the plaint may act under Order VI rule 17, C.P.C. to allow the amendment of pleadings, inasmuch as under this rule the Court is not precluded from allowing an opportunity to remove the defect. Thus, this ground cannot be availed by the petitioners/defendants for rejection of the plaint.’

Used in judgment of
Lahore High Court
Civil Revision
192956/18


What is provided in O. 23, R. 3

“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

Source
2019 LHC 1994

Cases required sympathetic consideration.

It is imperative to note that the learned Judgein-Chamber accepted the Writ Petitions mainly for the reason that during proceedings most of them crossed the upper age limit, thus, their cases required sympathetic consideration. In our view, the said fact could hardly be made a ground for acceptance of the Writ Petitions inasmuch as if a person does not fulfill the eligibility criteria he cannot be accommodated merely in view of sympathetic aspect of the matter. Reliance in this regard is placed on the case reported as Abdul Wahab and others. v. HBL and others (2013 SCMR 1383).

Used in Judgement of
Lahore High Court

WP- Against Civil Proceeding
162-15

Provision of section 34 of the Arbitration Act

11……….Provision of section 34 of the Arbitration Act would indicate that the party has to promptly act raising the plea of referring the matter to the arbitrator at the very first opportunity and delay on any pretext in raising the plea would estop the party from raising the said plea of staying all proceedings. It may be observed that the appellant/defendant made the aforesaid application after about six months of service of summons of the suit and during the said period he went on seeking adjournment twice for filing written statement. He had even contested the application for interim injunction and had also applied for rejection of plaint and thus the appellant/defendant had taken positive steps for furtherance of the proceedings in the suit. Consequently application for stay of suit under the aforesaid provision of law was rightly rejected by the first appellate Court and affirmed by the learned Single Judge.”

This Court in the case of “YEZDIAR HOMI KAIKOBAD and another versus FEROZSONS LTD. through Chief Executive and 3 others” (2005 YLR 783) also adopted the same principles.

Used in Judgement of
Lahore High Court
Civil Revision
249999/18

Supported the impugned order and judgment

Naysaying the above submissions, learned counsel representing the respondents has supported the impugned order and judgment and has prayed for dismissal of the civil revision in hand.

 Relies on Mian Muhammad Akram and others v. Muhammad Rafi (1989 CLC 15-Lahore), Mst. Shahnaz Begum v. Mst. Zulaikha Bibi and 5 others (1989 CLC 1526-Lahore), Asgharali v. P.K.Shahani and 2 othes (1992 CLC 2282-Karachi), Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited (PLD 2012 Supreme Court 247) and Haji Abdul Mateen Akhundzada and another v. District Coordination Officer/Deputy Commissioner, Quetta and 5 others (PLD 2012 Balochistan 154).

Used in Judgement of
Lahore High Court
Civil Revision
192956/18

Give finding contrary to the findings of the 1st Division Bench

 reported as Messrs Wak Limited Multan Road, Lahore v. Collector Central Excise and Sales Tax, Lahore (Now Commissioner Inland Revenue, LTU, Lahore) and others (2018 SCMR 1474), Ardeshir Cawasjee v. Karachi Building Control Authority (1999 SCMR 2883) and Multilines Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423). In the case of Multilines Associates (Supra) the Apex Court of the country while dealing with the preposition under discussion has inter-alia observed as under: -

“18. In such circumstances, legal position which emerges is that the second Division Bench of the High Court should not have given finding contrary to the findings of the 1st Division Bench of the same Court on the same point and should have adopted the correct method by making a request for constitution of a larger Bench, if a contrary view had to be taken. In support reference can be made to the cases of the Province of East Pakistan v Dr. Azizul Islam (PLD 1963 SC 296) and Sindheswar Ganguly v. State of West Bengal (PLD 1958 SC (Ind.) 337), which is a case of Indian jurisdiction. We therefore, hold that the earlier judgment of equal Bench in the High Court of the same point is binding upon the second Bench and if a contrary view had to be taken, then request for constitution of a larger Bench should have been made.”

Used in Judgement of
Lahore High Court

WP- Against Civil Proceeding
162-15

Application under section 34 of the Act

” (PLD 2006 Supreme Court 196) held as under :

“8. The admitted position is that the appellant/defendant for the first time appeared in the Court on 28th of March, 1998 when the same was adjourned to 17-4-1998 for submission of the written statement and filing power of attorney. The written statement was not filed as such suit was adjourned to 30-4- 1998 when the learned Presiding Officer was on leave. The suit was accordingly adjourned to 13-5-1998 yet on the said date written statement was not filed. Learned counsel for the appellant/defendant requested for adjournment to file written statement which was allowed and suit was adjourned to 18-5- 1998 but as the Presiding Officer was on leave, therefore the suit was again adjourned to 30-5-1998 when application under section 34 of the Arbitration Act was moved. From the above proceedings in the Court it would be clear that the appellant even after the receipt of notice of the plaint got three clear dates for filing written statement but the application under section 34 of the Act was moved on the fourth date. Above acts of the appellant on number of dates stated above would show that he intended to participate and defend the suit before the Court. In this process he engaged a counsel and filed adjournment application or requested for adjournment on the above dates. We may also observe that test for determining whether an act is a step in the proceedings or not, this Court in the case of Pakistan International Airlines Corporation v. M/s. Pak Saaf Dry Cleaners PLD 1981 SC 553 at page 559 in the last para. has observed:--- "As would be seen from above, the mere existence of a clause providing for arbitration does not bar a suit or other legal proceeding in Court. It only entitles a party to have the legal proceedings stayed. In order that a stay may be granted under the provisions of this section, certain conditions must be fulfilled. The party must take the objection and apply for stay proceedings before taking any step, for example, the filing 'of the written statement, that is, before he placed his cards on the table. The provisions of the section, further imply that the Court should, first of all, examine whether the arbitration clause applies to the dispute, and if it does, whether the nature of the dispute is such that the ends of justice will be better met by the decision of the Court than by that of private forum chosen and agreed upon, and to which the parties had made themselves bound to adhere and adopt in case that type of dispute arose between them. The Legislature has, of course, clearly implied in the language used in the section  that the arbitration clause should be respected, but has also made it abundantly clear that the party seeking to avail of the provision of stay under this section must clarify his position at the earliest possible opportunity, so as to leave no manner of doubt that he wishes to have resort to arbitration proceeding. If he hesitates in this regard, or allows the suit to proceed in any manner, that conduct would indicate that he has abdicated his claim to have the dispute decided under the arbitration clause, and to have thereby forfeited his right to claim stay of the proceedings in the Court." In para. 3 at page 564 of the above cited decision this Court has observed:-- "In my opinion, the true test for determining whether an act is a step in the proceedings is not so much the question as to whether the party sought an adjournment for filing the written statement although of course that would be a satisfactory test in many cases but whether taking into consideration the contents of the application as well as all the surrounding circumstances that led the party to make the application display an unequivocal intention to proceed with the suit, and to give up the right to have the matter disposed of by arbitration. An application of such nature, therefore, should prima facie be construed as a step in the proceedings within the meaning of section 34 and the whole burden should be upon the party to establish why effect should not be given to the prima facie meaning of the application."

Used in Judgement of
Lahore High Court
Civil Revision
249999/18

Litigation in a suit for pre-emption, which is a feeble right.

In “Ch. SAIFULLAH. vs. ALI SALEEM and another” (2015 MLD 247) while dealing with the plea of recording evidence in one case and reproducing in another case it was observed by this Court as follows: - 

“11. The said view has further been affirmed by this court in another case reported as Muhammad Ramzan v. Muhammad Jahangir and another (2012 CLC 844), wherein, it was held that 'unnecessary technicalities should not be allowed to deter the due process of law on trifling grounds, particularly where no prejudice is likely to be caused to any litigant, meaning thereby, the procedural environment must be made conducive to facilitate the flow of the stream of justice.' The identical controversy was also clinched in many other cases by this court as well as the august Supreme Court of Pakistan. Reference can be made on the cases reported as Muhammad Sharif v. Muhammad Yousaf (2008 MLD 307) and Khushi Muhammad v. Muhammad Yousaf (2008 YLR 362). After placing reliance upon the case reported as Salehon Muhammad and another v. Allah Yar (1989 SCMR 540) this court is of the firm view that the plea raised by the appellant/plaintiff that evidence recorded in one case copied in verbatim over the other file in the peculiar facts and circumstances of the instant case cannot be declared fatal and the appellant/plaintiff could have objected the mode of recording of evidence before the learned trial court, if he was prejudiced in any manner, but he having failed to do so, at this stage before the third forum such an objection cannot be considered. Even today, the learned counsel for the appellant has not been able to point out that how the appellant was prejudiced by the alleged mode adopted by the learned trial court in recording the evidence of the parties and that how the evidence of one case has damaged the stance of the appellant in the other case and how the same were different from each other. It is not the case of the appellant that there were different sets of witnesses in both the cases and separate witnesses were to be examined, whose mind set would vary from each other. There could be substance in the argument of learned counsel for the appellant that the evidence of a witness recorded in one case was copied in verbatim in the other case of a different witness on the similar issue. Even otherwise, the appellant has been nonsuited on his own omissions and commissions made during the proceedings of the cases, but he is not aggrieved of any procedural defect on the part of the learned trial court in losing the cases on merits. Hence, after the elapse of about 12 years, I do not find any good ground to throw the parties in another round of litigation in a suit for pre-emption, which is a feeble right.”

Used in Judgement of
Lahore High Court
Civil Revision-Civil Revision (against Decree)-Und...
472-18

Cannot deviate from the view of an earlier Bench

“19. Before concluding the above judgment, we may refer to the conflict of views between the two judgments of this Court in the case of Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512) (supra) and Multiline Associates v. Ardeshir Cowasjee and others (PLD 1995 SC 423) (also reported in 1995 SCMR 362) (supra) noticed in the leave granting order which is to be resolved. The former case was decided on 31-3-1994 by a Bench comprising Ajaml Mian, Sajjad Ali Shah and Saleem Akhtar, JJ. (as then they were), whereas in the latter case judgment was rendered on 22-1-1995 by a Bench comprising Sajjad Ali Shah, C.J., Mir Hazar Khan Khoso and Muhammad Munir Khan, JJ. (as then they were). It appears that while deciding the latter case notice of the above earlier judgment of Abdul Razak was not taken though, according to Mr. Nairnur Rehman, the same was cited. It may be pointed out that a Bench of the same number of Judges of the same High Court, or of the Supreme Court, cannot deviate from the view of an earlier Bench ………...” (emphasis provided)

Ardeshir Cawasjee v. Karachi Building Control Authority (1999 SCMR 2883)

Used in Judgement of
Lahore High Court

WP- Against Civil Proceeding
162-15

Suit should have been independently recorded; the witnesses in each case should have been separately

In “KHUSHI MUHAMMAD v. MUHAMMAD YOUSAF” (2008 YLR 362) also the proposition supra was reiterated. In “MUHAMMAD ASLAM and another v. IMAM BAKHSH and two others” (1980 SCMR 879), the August Supreme Court was pleased to observe as below:-

“5…Facing this difficulty learned counsel for the petitioners firstly argued that the three suits in this case were not tried in accordance with any correct legal procedure. He submitted that evidence was recorded only in one suit, and copies of the statements of the witnesses were then placed in the other two suits after initials of the learned civil Judge. He submitted that each suit should have been separately tried; the evidence in each suit should have been independently recorded; the witnesses in each case should have been separately examined three times, and the consolidation of evidence in one file in the manner above explained was all illegal. The contention raised has no merit. The trial continued for a period of about three years, and during all that long period no objection of the present kind was raised before the learned civil Judge. This implies that the procedure aforesaid was adopted with the consent of the parties who were duly represented by their respective counsel. The point was not raised either in the memorandum of appeal or at the time of arguments before the learned Additional District Judge and in these circumstances the High Court refused to attach any importance to the same. We agree with the High Court that on the facts in the peculiar circumstances of this case, it was too late to raise this plea before the High Court and we should say now before this Court, when in the relevant Courts below the mode of recording evidence and maintaining the record was not objected to at any stage. The defendants cross-- examined the witnesses of the plaintiffs; they produced their own witnesses in rebuttal and also led documentary evidence in support of their case and at no stage expressed any grievance of the technical kind, which is now being pressed before us. The contention raised in the circumstances cannot be accepted.”

Used in Judgement of
Lahore High Court
Civil Revision-Civil Revision (against Decree)-Und...
472-18

Pleadings and the issues as originally framed show that the parties

 Reference can be made to the rule in the “The PROVINCE OF EAST PAKISTAN v. MAJOR Nawab Khawaja HASAN ASKARI AND OTHERS” (PLD 1971 SC 82). In “FAZAL MUHAMMAD BHATTI v. Mst. SAEEDA AKHTAR and 2 others” (1993 SCMR 2018) it was held as follows: -

“The pleadings and the issues as originally framed show that the parties were fully aware what was the subject-matter of controversy and what evidence was to be led by each one. The court did prevent the parties from leading evidence at the trial with regard to the defects in the gift. The non-framing of a specific issues in such circumstances is inconsequential. It was held by this court in Province of East Pakistan v. Major Nawab Khawaja Hasan Askari and others (PLD 1971 SC 82) that if issues are not framed but allegation made in the plaint are challenged in the written statement and the court has allowed evidence to be led, then a decision rendered without framing of the issues is not illegal. That has been the established law in the subcontinent as would appear from Sayed Muhammad. vs. Fateh Muhammad (22 Indian Appeals 4)”

Used in Judgement of
Lahore High Court
Civil Rev. Against Decree
111-D-11

Petitioner cannot possibly claim any prejudice

Even otherwise, in view of the findings of the two courts below that the petitioner could not prove the requisite Talbs as envisaged by law, the alleged claim to preempt the land would stand extinguished, in view of the rule in “GOVERNMENT OF N.W.F.P. THROUGH SECRETARY, LAW v. Malik SAID KAMAL SHAH” (PLD 1986 SC 360). In result the petitioner cannot possibly claim any prejudice due to the non-framing of any alleged plea of having a superior right to preempt.

Used In Judgment of
Lahore High Court
Civil Rev. Against Decree
111-D-11

Mandate of Article 189 of the Constitutions of Islamic Republic of Pakistan, 1973

The aforesaid Article of the Constitution came under discussion before the Honorable Supreme Court of Pakistan in the case reported as lfiikharul Haq vs. District Canal Officer and others (2005 CLC 1740) wherein it has been held as under:-

''7. The judgments and decrees or both the Courts below are not only violative of the provisions of law as contained in order Vll, rule 11, B C.P.C. but also in clear disregard to the law declared by the Honorable Supreme Court of Pakistan in Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826, referred to above, which to me amounts to contempt of Court, because it is the mandate of Article 189 of the Constitutions of Islamic Republic of Pakistan, 1973 that decisions of the Honorable Supreme Court of Pakistan are binding on all the . Courts in Pakistan, so far as such decisions decide a question of law 1(t. or enunciate a principle of law. The judgment of the Honorable Supreme Court cited above since constitutes a law in terms of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, hence binding on all the Courts in terms of said Article."

Used in Judgment of
Lahore High Court
Civil Revision
83-12


Contract of sale of immovable property

“…. however, in a case where party comes forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the party to prove that there was consensus ad idem between both the parties for a concluded oral agreement”.

2013 SCMR 1300

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

Enforcement of the agreement under the Specific Relief Act 1877

It has been observed by the honourable Supreme Court in “Hamood Mehmood v. Mst. Shabana Ishaque and others” (2017 SCMR 2022) that “it is mandatory for the person whether plaintiff or defendant who seeks enforcement of the agreement under the Specific Relief Act 1877, that on first appearance before the Court or on the date of institution of the suit, it shall apply to the Court getting permission to deposit the balance amount and any contumacious/omission in this regard would entail in dismissal of the suit or decretal of the suit, if it is filed by the other side”.

Used in Judgement of
Lahore High court
Civil Revision
93336/17

Transaction of gift irrespective

In a similar case “Fareed and others v. Muhammad Tufail and another” (2018 SCMR 139) honourable Supreme Court while dealing with the plea as taken by the petitioner observed as under: -

“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…”

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