Decision regarding dissolution of partnership

In “Irshad Ali v Sajjad Ali and 4 others” (PLD 1995 SC 629) the August Supreme Court observed as under:

“…Sound decision of the question of limitation depended on a wellconsidered decision regarding dissolution of partnership and since the parties were not allowed an opportunity to lead evidence with regard to the question of dissolution by framing a specific issue in this behalf, the case was not properly tried. It is pertinent to mentioned here that therefore, deserved to be remanded for fresh decision…”

Used in Judgment of
Lahore High Court
Civil Original Suit (C.O.S)
1343554.643-12
2019 LHC 1410

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

endorsed by the August Supreme Court in “Muhammad Akram v. Mst. Farman Bi” (PLD 1990 SC 28) wherein it was observed that: “…

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…”

Used in Judgment of
Lahore High Court
Civil Original Suit (C.O.S)
1343554.643-12
2019 LHC 1410

Proof required by law for determining the execution and genuineness of document.

The conclusion drawn by the apex Court in Abdul Majeed’s case (supra) in this regard being directly applicable in the situation discussed herein above is reflected below:- (Abdul Majeed and others versus Muhammad Subhan and 2 others (1999 SCMR 1245),)

“It is axiomatic principle of law that a registered deed by itself, without proof of the execution and the genuineness of the transaction covered by it, would not confer any right. Similarly, a mutation although acted upon in Revenue Record, would not by its own force be sufficient to prove the genuineness of the transaction to which it purports unless the genuineness of the transaction is proved. There is no cavil with the proposition that these documents being part of public record are admissible in evidence but they by their own force would not prove the genuineness and execution of that to which they relate unless the transaction covered by them is substantiated from independent and reliable source. Admissibility is to be distinguished from proof required by law for determining the execution and genuineness of document.”


Used in Judgment of
Lahore High Court
Civil Rev. Against Decree
784-D-06
2018 LHC 3056

Rejecting a plaint under Order VII rule 11 CPC

In “Jewan and 7 others v. Federation of Pakistan through Secretary Revenue Islamabad and 2 others” (1994 SCMR 826)

“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…”

Used in Judgment of
Lahore High Court
Civil Original Suit (C.O.S)
1343554.643-12
2019 LHC 1410

Provisions of the Order, 1984, relating to hostile witness

Court in a case reported as Hafiz Tassaduq Hussain Vs. Muhammad Din through Legal Heirs and others (PLD 2011 SC 241)

“12. For the argument that as the second attesting witness of the agreement was the son of the respondent, therefore, the appellant cold not take the risk of examining him, it may be held that as ordained above the mandatory provisions of law had to be complied and fulfilled and only for the reason or the perception that such attesting witness if examined may turn hostile does not absolve the concerned party of its duty to follow the law and allow the provisions of the Order, 1984, relating to hostile witness take its own course. Before parting it may be mentioned that the judgment reported as Abdul Wali v. Muhammad Saleh (1998 SCMR 760) which find mention in the leave granting order is not relevant for the proposition in hand as it relates to a document before the enforcement of the Order, 1984 when Article 17 was not there.”


Used in Judgment of
Lahore High Court
Civil Rev. Against Decree
784-D-06
2018 LHC 3056

Prove that questioned document was not thumb marked by the ladies,

The next argument on behalf of petitioners that to prove that questioned document was not thumb marked by the ladies, it was obligatory for them to have requested for referring the specimen of their imprints for comparison to the Finger Print Bureau is not tenable. The onus as discussed earlier was shifted upon the petitioners and in such eventuality, they being beneficiaries especially when no direct evidence to prove the questioned document was examined, could avail this alternative mode while making a prayer for the matching test, but no such effort at their end was made and by not resorting to this exercise, they themselves incurred a presumption against them. See Muhammad Qayyum and 2 others Vs. Muhammad Azeem Through Legal Heirs and another (PLD 1995 SC 381).

Used in Judgment of
Lahore High Court
Civil Rev. Against Decree
784-D-06
2018 LHC 3056

Scope of Order VII, Rule 11, C.P.C.

In “Jewan and 7 others v. Federation of Pakistan through Secretary Revenue Islamabad and 2 others” (1994 SCMR 826) while considering the scope of Order VII, Rule 11, C.P.C. the August Supreme Court observed that:

“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…”

Used in Judgment of
Lahore High Court
Civil Original Suit (C.O.S)
1343554.643-12
2019 LHC 1410

Final adjudication of the case as the plaintiff was dismissed

case of “MUHAMMAD IMRAN v. PRESIDENT KASB BANK LTD. and another” (2014 CLC 561) as under: - “

10. From the perusal of the above record available with the plaint and the examination of the contents of the plaint, it seems that the presence of defendant No.2 is necessary for the final adjudication of the case as the plaintiff was dismissed from service on the basis of the said report issued by the defendant No.2 and so also from the fact, that the defendant No.1 has categorically stated that they have relied upon the report of defendant No.2 for taking such an extreme action against the plaintiff. Therefore, since the claim of the plaintiff against the defendant No.1 is based upon the inspection report of defendant No.2, as such the presence of defendant No.2 is very much a necessity and things would only be crystallized after completion of the evidence of defendant No.2 as the plaintiff relies and depends upon the report of defendant No.2 for making out its case of damages against the defendant No.1.

11. It is also a matter of record that the defendant No.2 has already taken a stance in the written statement to the effect that defendant No.2 is not liable for any of the acts as alleged by the plaintiff in its pleadings; that no cause of action had accrued against the defendant No.2 that the suit as framed is not maintainable. Therefore, the right path for the defendant No.2 was to lead its own evidence to this effect, and not to hold back or retard by filing this application after such lapse of time.”

Used in Judgment of
Lahore High Court
Civil Revision-Civil Revision (Against Interim Order) u/s. 115, C.P.C.
293-I-14

Adverting to the judgments

Adverting to the judgments in the case of “PROVINCE OF THE PUNJAB through Secretary, Sports Government of the Punjab and another v. Messrs QAVI ENGINEERS PVT. LTD. through Director and 2 others” (2007 MLD 89) as well as “NAVEED MERCHANT v. SAFDAR GONDAL and 4 others” (2013 CLD 66), it is observed that in both the said judgments, facts run on entirely different premises to the instant case and as such principles laid down therein are not applicable to the case in hand.

Part of Judgment of
Lahore High Court
Civil Revision-Civil Revision (Against Interim Order) u/s. 115, C.P.C.
293-I-14
2019 LHC 4199

Under Order I Rule 10 (2) “CPC"

11. As already observed that the powers under Order I Rule 10 (2) “CPC" are discretionary and in exercise of such powers, the learned Trial Court after due diligence formed an opinion that the petitioners are necessary and proper party to the suit and as such their application seeking deletion of their names was dismissed, so exercise of revisional jurisdiction in absence of any material illegality or irregularity would not be safe for the purposes of administration of justice. Guidance in this respect can be sought from “EJAZ INAYAT v. Rt. Rev. Dr. A.J. MALIK and others” (PLD 2009 Lahore 57).

Part of Judgment of
Lahore High Court
Civil Revision-Civil Revision (Against Interim Order) u/s. 115, C.P.C.
293-I-14
2019 LHC 4199

Learned Civil Judge has rightly exercised such power.

Contrary to the submissions of learned counsel for the petitioners, learned counsel representing the “respondent” submitted that services of the petitioners were hired by “CAA” prior to entering into agreement with the “respondent”. He added that the petitioners may not be a direct subject to the cause asserted in the plaint but they are not alien to the matter in issue. Learned counsel emphatically argued that the cause of action rests upon IPCs, which make the petitioners as necessary and proper party to the suit. It is contended that power to add or strike out rests with the Court and the learned Civil Judge has rightly exercised such power. Learned counsel further contended that impugned order suffers with no illegality or material irregularity justifying interference in revisional jurisdiction. Reliance has been placed on “ALI S. HABIB and others v. Dr. SHER AFGAN KHAN NIAZI and others” (2004 SCMR 1627), “MUHAMMAD IMRAN v. PRESIDENT KASB BANK LTD. and another” (2014 CLC 561) and “EJAZ INAYAT v. Rt. Rev. Dr. A. J MALIK and others” (PLD 2009 Lahore 57).

Used in Judgment of
Lahore High Court
Civil Revision-Civil Revision (Against Interim Order) u/s. 115, C.P.C.
293-I-14

Impleaded in oblivion of Order I Rule 10 “CPC"

4. Learned counsel for the petitioners submitted that the petitioners were appointed as contract administrator and engineer by the “CAA” through an independent agreement. It is added that by virtue of said agreement, the petitioners are only answerable to the “CAA”. It is submitted that the suit hinges upon an independent agreement executed between “CAA” and the “respondent”. Learned counsel emphasized that the petitioners being stranger to the said agreements, are neither proper nor necessary party to the suit but they have been impleaded in oblivion of Order I Rule 10 “CPC". In order to supplement his contentions, learned counsel has pointed out certain relevant part of the pleadings as well as agreements in question. It is emphatically contended that impleadment of the petitioners in the array of defendants will amount to burdening them with unnecessary litigation. In order to supplement his contentions, learned counsel has mainly relied upon “PROVINCE OF THE PUNJAB through Secretary, Sports Government of the Punjab and another v. Messrs QAVI ENGINEERS PVT. LTD. through Director and 2 others” (2007 MLD 89) and “NAVEED MERCHANT v. SAFDAR GONDAL and 4 others” (2013 CLD 66).

Used in Judgment of
Lahore High Court
Civil Revision-Civil Revision (Against Interim Order) u/s. 115, C.P.C.
293-I-14

To prove the transaction being legitimate and free from all suspicious and doubts surrounding it,

8. In a case of such transaction with old, illiterate/rustic village ‘Parda Nasheen’ lady onus to prove the transaction being legitimate and free from all suspicious and doubts surrounding it, can only be dispelled if the lady divesting herself of a valuable property, the following mandatory conditions are complied with and fulfilled through transparent manner and through evidence of a high degree. Amongst this condition, the pre-dominantly followed are as follows: -

(i) That the lady was fully cognizant and was aware of the nature of the transaction and its probable consequences;

(ii) That she was having independent advice from a reliable source/person of trust to fully understand the nature of the transaction;

(iii) That witnesses to the transaction are such, who are close relatives or fully acquainted with the lady and were having no conflict of interest with her;

(iv) That the sale consideration was duly paid and received by the lady in the same manner; and

(v) That the very nature of transaction is explained to her in the language she understands fully and she was apprised of the contents of the deed/receipt, as the case may be.”

2016 SCMR 1225

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

Judgment-debtor fails to deliver possession of the land

Reliance is placed on case law reported as “Shahra and others v. Member, Board of Revenue, Punjab and others” (2004 SCMR 117). Relevant portion of the judgment is reproduced herein below:- 

“6. The Executing Court in such matters would be involved in case the judgment-debtor fails to deliver possession of the land which is required to be delivered by the Executing Court by issuance of warrant of possession, therefore, there was no requirement of law that before sanction of mutation on the basis of pre-emption decree, the Revenue Court should have required the petitioners to obtain order from the Executing Court.”

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

Prescribed period of limitation and therefore, had become ineffective

Further reliance is placed on case law reported as “Ali Ahmad and another v. Muhammad Fazal and another” (1972 SCMR 322) and “Shahra and others v. Member, Board of Revenue, Punjab and others” (2004 SCMR 117), wherein it has been held that revenue authorities are under obligation to sanction mutation on basis of decree passed by civil court and cannot refuse mutation on ground that decree had not been put into execution within prescribed period of limitation and therefore, had become ineffective.

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