Examining the plaintiff’s witnesses

especially when she was not called upon to prove any other aspect but her defence only by cross-examining the plaintiff’s witnesses and, therefore, no adverse inference could be drawn against the first defendant because she did not enter the witness-box

1 Mitti Bewa v. Daitari Nayak and others (AIR 1982 Orissa 174) & Umesh Bondre v. Wilfred Fernandes (AIR 2007 Bombay 29)

Used in judgement of
Lahore High court
Civil Revision
2302034.3204-15
2019 LHC 190

For proving the oral financial transaction

15. The third component of the issue No.1 is whether on 14th October, 2007 the first defendant had received a further amount of Rs.130,000/- from the plaintiff. It was maintained in paragraph No.3 of the plaint that a sum of Rs.130,000/- under the agreement was paid to the first defendant on 14th October, 2007 in presence of the witnesses but receipt thereof was not obtained as the plaintiff had been maintaining cordial relations with the first defendant. The above stated assertion of the plaintiff makes the matter pellucid that the transaction of payment of Rs.130,000/- was oral. The plaintiff was, therefore, required to state in the plaint the date, time, place and names of the witnesses before whom the transaction of payment of amount had taken place. Such requirement was sine qua non for proving the oral financial transaction. Though the plaintiff had stated the date and place of making payment of Rs.130,000/- in the plaint yet omitted to mention the names of the witnesses before whom the said amount was paid to the first defendant, and thus the statement of the witnesses could not be considered as per principle settled in the case of Moiz Abbas1 and the conclusion would be that the plaintiff had failed to prove the making of payment of Rs.130,000/- to the first defendant.

Moiz Abbas v. Mrs. Latifa and others (2019 SCMR 74)

Used in judgement of
Lahore High court
Civil Revision
2302034.3204-15
2019 LHC 190

Settled principle of law that after making payment the property

7. It is well settled principle of law that after making payment the property in dispute which is subject matter of preemption absolutely vests with the respondent/decree holder which is based on compromise between the parties as a result of which petitioner has received the amount before the court by admitting the same in his statement. In taking the above view reliance is placed on case laws reported as “Shahra and others v. Member, Board of Revenue, Punjab and others” (2004 SCMR 117), “Ali Ahmad and another v. Muhammad Fazal and another” (PLD 1973 Lahore 207) and “Jumma and 8 others v. Mst. Zainab Khatoon” (PLJ 1996 Lahore 329).

Used In Judgement of
Lahore High court
Civil Revision
1268684.2325-11
2019 LHC 239

Burden of proof in respect of genuineness of a transaction

The case law on the subject, under consideration, suggests that the burden of proof in respect of genuineness of a transaction with an illiterate person and a document allegedly executed by such a person lies on the beneficiary of the document, who is legally obliged to prove and satisfy the Court: firstly, that the document was executed by an illiterate person; secondly, that illiterate person had complete knowledge and full understanding about the contents of the document; thirdly, the document was read over to him/her and terms of the same were adequately explained to him/her; and, fourthly, that he/she had independent and disinterested advice in the matter before coming into the transaction and executing the document. The essence of the above stated principle is to prevent any overreaching out or fraud being perpetrated on illiterates by reason of their inability to read and write. In furtherance of this object it is, therefore, incumbent upon a person who writes any document at the request, or on behalf, or in the name of any illiterate person also to write on such document, his own name as the writer thereof and his address as well as the endorsement to the effect that document was written in presence of the seller’s consultant (that is, who
 (i) can read and write the language of the document;
 (ii) understands the contractual transaction; and
 (iii) having no conflict of interest has advised the illiterate person about the contractual transaction). Such Verification Note/Statement shall be equivalent to a statement:
(a) that he was instructed to write such document by the person it purports to have been written and the document fully and correctly represents his/her instructions; and
(b) if the document purports to be signed with the signature or mark of the illiterate person, that prior to being so signed or marked, it was read over and explained to the illiterate person, and that the signature or mark was made by such person. 

Used in judgement of
Lahore High court
Civil Revision
2302034.3204-15
2019 LHC 190

Mt. Farid-ud-Nisa v. Munshi Mukhtar Ahmad and another (AIR 1925 PC 204), Chainta Dasya v. Bhalkur Das (AIR 1930 Calcutta 591), Parasnath v. Tileshra Kuav (1965) All LJ 1080), Daya Shankar v. Smt. Bachi and others (AIR 1982 All 376), Janat Bibi v. Sikandar Ali and others (PLD 1990 SC 642), Amirzada Khan and another v. Itbar Khan and others (2001 SCMR 609), Khawas Khan through legal heirs v. Sabir Hussain Shah and others (2004 SCMR 1259), Muhammad Ashraf Khan v. Khan Siddique and others (2010 SCMR 1116), Mian Allah Ditta through L.Rs. v. Mst. Sakina Bibi and others (2013 SCMR 868) & Phul Peer Shah v. Hafeez Fatima (2016 SCMR 1225)

Present case the essential term of the agreement

17. In the present case the essential term of the agreement (Ex.P-1) was that the plaintiff would make the balance payment on 20th October, 2007; and, that upon payment the first defendant would appear on the same date before the concerned officer for transfer of suit property in favour of the plaintiff. The plaintiff neither in the plaint nor during the course of evidence while appearing before Trial Court as PW-3 stated that he adhering to the terms and conditions of the agreement (Ex.P-1) tendered balance amount to the first defendant and went to the office of the concerned officer for transfer of suit land. Same is the status of the statement of other witnesses who appeared on behalf of the plaintiff. In other words the plaintiff had violated the essential term of the agreement (Ex.P-1) and, therefore, per Section 24(b) of the Specific Relief Act, 1877, he was not entitled to specific performance.

Mubarak Ali v. Tula Khan alias Sadullah Khan (1985 SCMR 236) & Muhammad Yaqub v. Muhammad Nasrullah Khan and others (PLD 1986 SC 497)

Used in judgement of
Lahore High court
Civil Revision
2302034.3204-15
2019 LHC 190

Plaintiff prior and subsequent to the filing of the suit

To adjudge whether the plaintiff was ready and willing to perform his part of the agreement (Ex.P-1), the conduct of the plaintiff prior and subsequent to the filing of the suit was relevant. It was for this reason it was mandatory for the plaintiff to prove that at the relevant time he had sufficient money to pay the remaining sale price

 Bootay Khan through legal heirs v. Muhammad Rafiq and others (PLD 2003 SC 518)

Used in judgement of
Lahore High court
Civil Revision
2302034.3204-15
2019 LHC 190

Good ground for which the suit must fail.

There is yet another good ground for which the suit must fail. The plaintiff, as stated above, in his suit ought to have pleaded and proved not only his willingness, which was mental process, but also his readiness, which was something to do with translating that will into action and was preceded by necessary preparation for being in a position to be ready, that is, to be financially able to pay the purchase price.

1 Bishambhar Nath Agrawal v. Kishan Chand and others (AIR 1998 Allahabad 195)

Used in judgement of
Lahore High court
Civil Revision
2302034.3204-15
2019 LHC 190

No vested right or conclusive allotment can be claimed by the allottee.

Now applying the test, in terms of the distinction drawn inter-se ‘condition precedent’ and ‘condition subsequent’, it is evident that respondent allottee cannot unilaterally waive the conditions, required to be performed and it cannot be construed that conditions required to be performed were only for the benefit of the respondent. No right can be claimed without fulfillment of requisite conditions, that too by or before 31st May, 1989. Therefore, the allotment per-se creates no enforceable rights unless requisite conditions were met / performed – which requirement is a condition precedent and survival of the agreement is dependent thereupon. Reference is made to judgment reported as “G.R. Syed Vs. Muhammad Afzaal” (PLD 2007 Lahore 93), wherein distinction was drawn between condition precedent and condition subsequent, in the light whereof the requisite conditions referred in allotment letter are conditions precedent. It is evident from the contents of the allotment letter that in case of non-fulfilment of the formalities / conditions till a specific date, allotment would be deemed or treated as canceled, without any overt act on the part of the petitioners. Both the courts below have failed to appreciate the fact that allotment was conditional and unless such conditions were fulfilled, no vested right or conclusive allotment can be claimed by the allottee. The contents of the allotment letter speak for itself; and so, does factum of nonfulfilment of requsite conditions.

Used In Judgement of
Lahore High court
 Civil Revision-Civil Revision (Against Decree)
495-11
2019 LHC 4072

Evidence in all three suits should have been recorded separately.

 Taken in “MUHAMMAD SHARIF v. MUHAMMAD YOUSAF” (2008 MLD 307) where it was observed as funder: -

“8…I also find that evidence of the parties was recorded in suit titled as "Khushi Muhammad v. Muhammad Yousaf" and was reproduced in the other two cases. The petitioner did not object to the course adopted by the trial Court which exercise appears to have been undertaken with the concurrence of the parties and their counsel. The petitioner could not point out any prejudice caused to his right by the complained activity and this defect, if any, being of procedural nature, does not affect the findings of the Courts or trial of the suit. The petitioner having acquiesced to the procedure adopted is now estopped to turn back and say that evidence in all three suits should have been recorded separately. I find that the objection of the petitioner is only of technical nature and does not defeat the ends of justice.”

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

Under section 36 Civil Procedure Code, 1908,

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

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

No right to overrule the decision of another Judge

A Full Bench of Gujrat High Court (India) in the case of “State of Gujarat v. Gordhandas Keshavji Gandhi and others” AIR 1962 Gujarat 128, observed:-

One Judge of a High Court has, however, no right to overrule the decision of another Judge of the same High Court nor has one Division Bench of a High Court the legal right to overrule another decision of a Division Bench of the same High Court. (Emphasis added)

Used in Judgement of
Lahore High court
WP- Criminal Proceeding
9027-17
2018 LHC 1465

Misreading or non-reading of evidence

 (2010 SCMR 1630), wherein it has in variably been held:--

"17. Indeed, the concurrent findings of three Courts below on a question of fact, if not based on misreading or non-reading of evidence and not suffering from any illegality or material irregularity effecting the merits of the case, are riot open to question at the revisional stage, but where on record the position is contrary to it, then the revisional  Court in exercise of its jurisdiction under section 115, C.p.C. or this Court in exercise of jurisdiction under Article 185 (3) of the Constitution, €.re not denuded of their respective powers to interfere and upset such findings.


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


Limited application with regards to the provisions of Order VI, Rule 16 and 17 of the C.P.C.

It is a settled principle, by now, that a plaint cannot be rejected in piecemeal as the concept of partial rejection of plaint is inapplicable to the provisions of Order VII, Rule 11 of the Code of Civil Procedure, 1908 and it would have its limited application with regards to the provisions of Order VI, Rule 16 and 17 of the C.P.C. There could be partial striking out of pleadings but not rejection of plaint, because partial acceptance or rejection of plaint is always considered as improper exercise of jurisdiction. In this regard reliance is placed on Feroze Din and another v. Master Muhammad Sher Khan (1979 CLC 742), Moinuddin Paracha and 6 others v. Sirajuddin Paracha and 23 others (1993 CLC 1606), Valuegold Limited and 2 others v. United Bank Limited (PLD 1999 Karachi 1), E.F.U. General Insurance Company Ltd. through Branch Manager and 2 others v. Zahidjee Textile Mills Ltd. through Assistant Director and another (2005 CLC 848-Lahore), Maxim Advertising Co. (Pvt.) Limited v. Messrs Z&J Hygenic Products and 2 others (2007 YLR 2252-Karachi), Mst. Nishat Ishaq v. Amjad Khan and 2 others (2014 CLC 71-Sindh), Ata Ullah and 6 others v. Sana Ullah and 5 others (PLD 2009 Karachi 38), Muhammad Afzal v. Muhammad Manzoor & 40 others (PLJ 2013 SC (AJ&K) 198), Muhammad Khalid Pervez Ramay v. Talat Mehmood (PLJ 2015 Lahore 425), Mariam Bibi and 7 others v. Hakam Ali and others (PLJ 2017 SC (AJ&K) 142).

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

Question of appointment of arbitrators

‘...... shall be stringently applicable when it comes to the question of appointment of arbitrators; as the conferment of jurisdiction upon the arbitrator should be strictly in line with the letter and spirit of the agreement between the parties and the express provisions of the law. Obviously, any award passed by such an arbitrator who is not appointed in the above manner shall also be invalid, having been passed by an arbitrator without jurisdiction.’

PLD 2016 Supreme Court 121

Used in Judgement of
Lahore High court
Civil Revision
38920/19

Wrongly been sanctioned depriving the petitioner from his lawful share in the property

At the very outset, learned counsel for the petitioner while relying upon the judgment reported as Mst. Rashidan Bibi v. Bashir Ahmad and others (PLD 1983 Lahore 549) and Mukhter Ahmed v. Mst. Rasheeda Bihi Ml--sngtheL (2003 SCMR 1664), submits that in view of an admitted position that Mst. Mithan had died leaving behind the respondent as her sole legal heir, therefore, in absence of any male heir of the said lady, there petitioner is entitled to 7/2 share out of her inheritance but Mutation No.1168 dated 19.06.2008 has wrongly been sanctioned depriving the petitioner from his lawful share in the property; that the impugned mutation is liable  to  be cancelled and as such is ineffective upon his rights.

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

Evidence was led, the petitioners claimed superior right

Reference can also be made to “MUHAMMAD and 9 others v. Hasham Ali” (PLD 2003 SC 271).

 In the present case as is discernable, the evidence clearly indicates that the parties were fully conscious of the points of issue on which the evidence was led, the petitioners claimed superior right of preemption on account of the property being joint and claimed to have asserted this. The respondent has also led evidence in defense. Being so, no prejudice could be claimed to have been caused. It is also observed that issue No.11 was framed to the effect “Whether the plaintiff is entitled for the decree of possession through preemption as prayed for”, which being the comprehensive issue, the petitioner could not possibly object on the plea of any alleged non-framing of issue. In “MST. Sughran BIBI alias MEHRAN BIBI v ASGHAR KHAN and another” (1988 SCMR 4) it was ruled that if no prejudice was caused to the parties due to the framing of an omnibus issue, objection relating to the framing of improper issue will be of no consequence.

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