Impugned memos of gift were fictitious,

6. The next argument of learned counsel for the beneficiaries that suits were badly time barred having been filed after many years of the departure of Maula Bakhsh is also not forceful. In the present case, perspicuous stance of the plaintiffs was that the impugned memos of gift were fictitious, forged as well as fabricated and on having been proved as such beyond any shadow of doubt, the same could not be perpetuated, but those can be assailed at any point of time. Reliance in this respect can be placed on the case law reported as Abdul Rahim and another Vs. Mrs. Jannatay Bibi and 13 others (2000 SCMR 346) and Khair Din Vs. Mst. Salaman and others (PLD 2002 SC 677).

Part of Judgment
Lahore High court
Civil Revision
1759717.546-15
2018 LHC 2949

Plaint to that extent and direct him to pray court-fee,

The denial of relief to a party simply on the ground that consequential relief was not claimed would, in no circumstances, advance the cause of justice. It has been held time and again that the natural result of declaration would be that consequential relief has to be given by the Court even if it is not claimed. The trial Court in such like circumstances may call upon a party to amend the plaint to that extent and direct him to pray court-fee, if any. Reliance in this respect is placed upon the case of Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762) where it was observed as under:- 

“The contention of the learned counsel for the appellant that the suit could not fail merely by reason of the fact that the consequential relief by way of possession had not been claimed is not altogether without substance. If his suit was otherwise maintainable and he was otherwise entitled to the relief it was open to the Courts to allow him to amend the plaint by adding a prayer for possession and paying the appropriate ad valorem court-fees and then to grant him relief even though he had not specifically asked for it.”

Part of Judgment
Lahore High court
Civil Revision
1250088.1744-11
2018 LHC 2340

Order 37 rule 1& 2 related Case Laws

Leave to defendant refused even when following pleas raised 

– on confirmation slips defendant’s signature forged 

–suit barred from last deposit beyond 3 years 

– mortgage deed relating to different loan from different branch 

– penal interest wrongly claimed- blank pronote fraud by bank.


PLD 1990 LAH 99

The rule unanimously prescribes that the rights of the party to the suit,

 Reference can be made to the rule given in “Muhammad Ashraf Butt and other v. Muhammad Asif Bhatti and others” (PLD 2011 SC 905) where the August Supreme Court, while interpreting the effect of the rule of lis pendens, observed that:

“…The rule unanimously prescribes that the rights of the party to the suit, who ultimately succeed in the matter are not affected in any manner whatsoever on account of the alienation and the transferee of the property shall acquire the title to the property subject to the final outcome of the lis. Thus the tranferree of the suit property, even the purchaser for value, without notice of the pendency of suit, who in ordinary judicial parlance is known as a bona fide purchaser in view of the rule/doctrine of lis pendens shall be bound by the result of the suit stricto sensu in all respects, as his transferor would be bound. The transferee therefore does not acquire any legal title free from the clog of his unsuccessful transferor, in whose shoes he steps in for all intents and purposes and he has to swim and sink with his predecessor in interest…”

Part of Judgment
Lahore High court
Civil Revision
2394758.1990-16
2018 LHC 3615

Section.35 & 35-A---Constitution of Pakistan (1973), Art.199

--Constitutional petition---Costs, awarding of ---Scope---In addition to actual costs and compensatory costs, High Court in its Constitutional jurisdiction can award compensatory costs even in excess of twenty five thousands Rupees as prescribed under S.35-A,C.P.C.---Special costs can also be awarded by High Court in exercise of its inherent powers---Costs including compensatory costs as well as exemplary costs can be imposed by High Court in its Constitutional jurisdiction.

Kawas B . Aga
Versus
City District Government, Karachi (CDGK) through Nazim-e-Ala
2010 PLD 182
Karachi-High-Court-Sindh

Application under Section 11 of the Code, 1908 seeking rejection of plaint

7. The next submission of learned counsel for the beneficiaries that after dismissal of earlier suit instituted by Mehmood Ahmed respondent No.3, a fresh suit could not be instituted on behalf of the defendants of afore-noted lis and both the Courts below failed to apply principle of res judicata is again not tenable. Admittedly, during trial of suits in hand, application under Section 11 of the Code, 1908 seeking rejection of plaint being barred by law was filed by the petitioners, but was declined and maintained upto the level of this Court, hence interlocutory order having attained finality could not be re-agitated. Reliance in this respect is placed on the judgment reported as Gulistan Textile Mills Ltd. and another Vs. Soneri Bank Ltd. and another (PLD 2018 SC 322). Moreover, in cases reported as Ghulam Muhammad, etc Vs. Muhammad Hussain, etc (2006 CLJ 633) and Muhammad Zubair and others Vs. Muhammad Sharif (2005 SCMR 1217) the Superior Courts have already concluded that right of inheritance could not be defeated by law of limitation or principle of res judicata as no law or judgment could override law of Sharia being a superior law, hence the arguments in this regard being meritless are repelled.

Part of Judgment
Lahore High court
Civil Revision
1759717.546-15
2018 LHC 2949

Conversion of revisional petition into a constitutional

“conversion of revisional petition into a constitutional petition-petitioner’s request for treating revisional petition as a constitutional petition ,declined by high court in circumstances of the case and in view of the fact that court fee required to be paid for constitutional petition had not been paid. Revisional petition was dismissed as not maintainable.


1991 CLC 1768

Regarding the disposition of property

In “Taleh Bibi and others v. Mst. Maqsooda Bibi and others” (1997 SCMR 459) the August Supreme Court was pleased to observe that the law

“…regarding the disposition of property by Pardanashin ladies which is equally applicable to illiterate and ignorant women is fairly well-settled that it is for the person claiming the benefit of such disposition to establish affirmatively by the strongest and most satisfactory evidence that the transaction was real, genuine and bona fide…”.

Part of Judgment
Lahore High court
Civil Revision
1641981.1354-14
2018 LHC 3624

Beneficiaries had managed fictitious documents through forgery,

3. M/s. Maqbool Elahi Malik, Ch. Khalil Ahmed, Muhammad Umar Riaz, Muhammad Sajid Chaudhry, Shahzada Babar and Hassan Iqbal Warriach, Advocates appearing on behalf of Civil Revisioners/beneficiaries inaugurally emphasized that mere affirmation of plaintiffs regarding denial of ownership rights of the defendants/beneficiaries did not absolve them of their obligation to produce cogent evidence in order to substantiate their assertions, who not only failed to lead tangible evidence, but also remained unsuccessful to plead and prove the alleged forgery with regard to acknowledgement of gift executed by Maula Bakhsh in their favour was not well founded. Ex facie Paras-4 to 7 of the plaint of respondent No.1 were very much elaborated to disclose the wrongdoings engineered by beneficiaries to usurp the shares of the other co-owners. Moreover, the moment Ch. Muhammad Khursheed/plaintiff (PW1) while appearing in the witness-box deposed that their father had never alienated the house and his brothers/beneficiaries had managed fictitious documents through forgery, onus was shifted upon the latters to prove the original transaction as well as documents executed in this regard.  Reliance can be placed upon judgment reported as “Allah Ditta and others Vs. Manak alias Muhammad Siddique and others (2017 SCMR 402). Before embarking any further, I would like to add that under the Mohammadan Law, a gift, in order to be valid and binding upon the parties, must fulfil the following conditions:- (a) a declaration of gift by the donor; (b) acceptance of gift by the donee; and (c) delivery of possession of corpus. On the accomplishment of these ingredients, a valid gift comes into existence. A written instrument in any case would not create a gift but was mere piece of paper to record a past transaction and in such eventuality it was sine qua non for its gainer to independently prove the aforenoted three components of the gift besides the execution of the document as well.

Part of Judgment
Lahore High court
Civil Revision
1759717.546-15
2018 LHC 2949

Is not a deed of title and is merely inductive of some previous oral sale between the parties

15. In “Fida Hussain through Legal Heirs Muhammad Taqi Khan and others. v. Murid Sakina” (2004 SCMR 1043) it was observed by the August Supreme Court that “it is known principle of law that a mutation is not a deed of title and is merely inductive of some previous oral sale between the parties. This principle being in view, whenever any mutation is challenged, the burden squarely lies on the beneficiary of the mutation to prove not only the mutation but also the original transaction which he is acquired to fall back upon”. Similar view was taken in “Abdur Rasheed through L.Rs and others v. Manzoor Ahmad and others” (PLD 2007 SC 287)

Part of Judgment
Lahore High court
Civil Revision
2504305.125-17
2018 LHC 3528

The requirement of, “sending a notice in writing”

In the case of Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105), the implication of acknowledgment card was emphasized in the following terms:-

“11. The requirement of, “sending a notice in writing” is followed by a rider i.e. “under registered cover acknowledgement due”. This signifies that the intention of law is not merely a formal notice on the part of the pre-emptor conveying his intention to pre-empt but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere “sending of notice” is enough would make the expression “acknowledgement due” redundant. The service of the addressee, as prescribed in law therefore, is imperative. If the acknowledgement card carries an endorsement of “refusal” or “not accepted”, a presumption of service would arise unless it is rebutted. The expression “sending notice” came up for consideration in Thammiah, b. v. Election Officer (1980) 1. Kant L.J. 19 and the Court held that it means, “that it should reach the hands of the person to whom it has been given and the giving is complete when it has been offered to a person but not accepted by it”.

Part of Judgment
Lahore High court
Civil Revision
1809271.1798-15
2018 LHC 1956

Technicalities, unless offering insurmountable hurdles, should not be allowed to defeat the ends of justice.

Reference is also made to the case of Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678) wherein the learned Judge of this Court held that mere technicalities, unless offering insurmountable hurdles, should not be allowed to defeat the ends of justice. The learned Judge further quoted the following passage from an earlier illuminating judgment of this Court rendered by Kaikaus, J. in Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC 382):- 

“I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on ground of public policy. The English system of administration of justice on which our own is based may be to certain extent technical but we are not to take from that system its defect. Any system which by given effect to the form and not to the substance defects substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his.”

Part of Judgment
Lahore High court
Civil Revision
1250088.1744-11
2018 LHC 2340

Memo of gift or record of the Society that for what evil deeds rest of the sons as well as daughters were deprived of the said benefit

 The additional setback of the controversy would be that the alleged donor had five sons and two daughters or their siblings, if any out of them had already departed, but no reason was ever furnished either in the memo of gift or record of the Society that for what evil deeds rest of the sons as well as daughters were deprived of the said benefit. See Sadar Abbas Vs. Province of Punjab and others (2015 CLC 822) and Barkat Ali through Legal Heirs and others Vs. Muhammad Ismail through Legal Heirs and others (2002 SCMR 1938). The apropos of entire discussion is that beneficiaries failed to discharge onus of issue No.5 duly shifted upon them and this Court being sanguine to unanimous findings returned by the Courts below feels no hesitation to confirm it.

Part of Judgment
Lahore High court
Civil Revision
1759717.546-15
2018 LHC 2949

Arrears of land revenue can be recovered

-    Arrears of land revenue can be recovered only after determination as fixed, ascertained etc.-procedure for determination mist be adopted and duly certified.

PLD 1988 SC 67 (ADBP VS SANAULLAH) H.N. (f) (g)
PLD 1992 PESHN 87 (B)

Setting aside exparte decree

– Purpose of service is that the defendant should be heard, but he cannot be allowed to frustrate proceedings by staying away. Once “summons are duly served” exparte decree can follow and execution can be levied against defendant because then he becomes “judgment debtor”. Any irregularity can be disregarded in service, if the court is convinced that the defendant had the knowledge of proceedings.

Usman Punjwani    Vs.    Ayaz Ali
PLD 21012 Sindh 78.

Application under O.XII, R.6, C.P.C.

-    S. 12(2), O.XII, R.6 & O.XXIII, R.3---Decree on basis of alleged compromise challenged by petitioner on grounds of fraud and misrepresentation---General power of attorney containing power to sell, had allegedly been executed by petitioner at the time when petitioner was in Saudi Arabia as indicated by entries of his passport---Exceptional and unusual haste which was quite evident culminating in compromise decree on the 3rd day of institution of suit, which was first date of hearing and events that followed in quick succession, were impracticable except in collusive proceedings--- Compromise application did not contain even reference to admitted amount of balance sale consideration---Expansion of scope of suit through order passed on application under O.XII, R.6, C.P.C. in absence of any admission in tacit terms, could hardly be termed as lawful and would create serious doubts about bona fides on part of those who were party to compromise---Fraud had, thus, been committed in obtaining decree for transfer of property in question, on basis of void agreement and respondents were guilty of deliberate misstatement amounting to fraud---Decree in question was set aside being based on fraud and misrepresentation

John Paul       V.     Irshad Ali and others
PLD 1997 Karachi 267

Civil Judge had rightly rejected the application under Order VII rule 11 CPC

In “Tariq Mehmood Chaudhry Kamboh v. Najam Un Din” (1999 SCMR 2396), it was observed by the August Supreme Court as follows:

“…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”

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

Criminal Prosecution and Civil Liability

-    Criminal Prosecution and Civil Liability - Risk of both is always there once footprints of fraudulent transaction are traced to one’s door.
Pakistan State oil Co.    Vs.    Dr. Abdul Rauf etc.
PLD 2012 Sindh 71.

O.XXIII, R.3---Consent---Challenged on ground of fraud



---Decree---Limitation---Decree passed without hearing and notice to the party whose presence was essential before the Court as also without express consent and signatures of the representative of the parties on the compromise application was nullity and question of limitation would not arise.

Government of Sindh through the Chief Secretary and others
Versus
Khalil Ahmed and others
1994 S C M R 782

Strong evidence to rebut the same because

Ss. 39 & 52.

-    Entries made in the revenue record carry presumption of correctness and it would require a strong evidence to rebut the same because entries were made  on the spot after thorough inquiry and verification by the locals.
Muhammad Shafique & 30 others    V.    Taj Muhammad & 34 others.
2012 CLC 136 (Peshawar)

Land Laws


W.P. Land Revenue Act, 1967(XVII of 1967)
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