Case is not governed by section 9 of the Specific Relief Act.

 In another case titled as S.M.Shafi Ahmad Zaidi through Legal Heirs Vs. Malik Hassan Ali Khan (Moin) through Legal Heirs (2002 SCMR 338), the Hon‟ble Supreme Court of Pakistan has observed that incompetent suit shall be buried at its inception for the saved with the time and unnecessary expenses and the Courts get more time to devote it for the genuine causes and held as under:-

“17. Provisional transfer order does not, ipso facto, confer absolute title over the property. Admittedly, this case is not governed by section 9 of the Specific Relief Act. Without clear title the suit for possession could not be filed. The Government gave the land to the Society and the latter surrendered it back to the former. The predecessor-in-interest of the petitioners had no independent right. His right, if any, was through the Society, and it ceased to exist before it became perfect and enforceable in law. It is the requirement of law that incompetent suit shall be buried at its inception. It is in the interest of the litigating parties and the judicial institution itself. The parties are saved with the time and unnecessary expenses and the Courts get more time to devote it for the genuine causes. The findings of the learned Single Judge and of Division Bench are based upon material available on record and no legal infirmity has been pointed out. Under the circumstances, the plaint was rightly rejected.”

Used in Judgment of
LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT
Land
3263/19
2020 LHC 781

Civil Court under section 172, subsection (2), clause VI of the West Pakistan Land Revenue Act, 1967

 Reference in this respect can be made to Rasta Mal Khan and others v. Nabi Sarwar Khan and others (1996 SCMR 78) wherein the Hon'ble Supreme Court of Pakistan held as under

"10. Regarding bar of jurisdiction of the Civil Court under section 172, subsection (2), clause VI of the West Pakistan Land Revenue Act, 1967 it may be pointed out that exclusion of jurisdiction of Civil Court relates to the correction of the entries made by the Revenue Officer in performance of his duty without touching the right of the persons in the land, but whenever such entries interferes with the rights of a person in the land record in the Record of Rights, and such person feels aggrieved, for correction of such entries he has to approach Civil Court for declaration under section 53 of the Act or in other words under section 42 of the Specific Relief Act both the relief available being of the same nature and identical. The dispute herein pertained to the nature of the transactions in the suits for preemption based on the impugned mutation. The suits were therefore rightly held triable by the Civil Court."

Used in Judgment of
IN THE LAHORE HIGH COURT M U L T A N B E N C H M U L T A N JUDICIAL DEPARTMENT
Writ Petition-Land-Miscellaneous
11548-15
2020 LHC 937

Section 9 of C.P.C. can try all suits of civil nature except those of which their jurisdiction is barred

15. It is an established principle of law that the mutation proceedings are of summary nature under the Revenue Act. A Civil Court is a court of plenary jurisdiction and fraud can always be challenged before the Civil Court because it requires to be proved through evidence of the parties. Reliance is placed on Jan Muhammad through Mubarik Ali and others v. Nazir Ahmad and others (2004 SCMR 612). It has also been held that rights of parties qua disputed property require determination after giving them fair opportunity to adduce evidence. Factual controversies can only be resolved by the Civil Court having plenary jurisdiction. Reliance in this respect is placed upon Nemat Ali and another v. Malik Habib Ullah and others (2004 SCMR 604). The Revenue Courts have no power to correct the longstanding entries in the revenue record in summary manner. Reliance in this respect is placed upon Muhammad Naeem v. Siraj-Ud-Din and 6 others (2015 CLC 1084). It has been settled that the Civil Court being the court of plenary jurisdiction, is competent to inquire into the question, whether impugned mutation is attested by practicing fraud and if it is so, it has the jurisdiction to declare the same to be void. The Civil Court under Section 9 of C.P.C. can try all suits of civil nature except those of which their jurisdiction is barred either expressly or by necessary implication. In this context reliance can be placed on the case reported as Muhammad Jameel Asghar v. The Improvement Trust Rawalpindi (PLD 1965 SC 698) wherein it was held that where the question of fraud, misrepresentation or want of jurisdiction is raised, the civil court has jurisdiction to adjudicate upon the same. Reliance is also placed on Hafiz Kalu and others v. Muhammad Bakhsh and others (2019 YLR 1523)

Used in Judgment of
IN THE LAHORE HIGH COURT M U L T A N B E N C H M U L T A N JUDICIAL DEPARTMENT
Writ Petition-Land-Miscellaneous
11548-15
2020 LHC 937

Attract application of Rule 11 of Order VII of CPC,

In another case titled as Abdul Rasheed Vs Ali Bux through L.Rs & Others (2016 CLC 1824) wherein it is held as under:-

“9. It is well settled that Courts should look attentively to plaints at initial stage to find whether they attract application of Rule 11 of Order VII of CPC, if facts of the case justify application of Rule 11 of Order VII of CPC, it must be applied for rejection of the plaints, irrespective of fact whether it is stage of disposal of application for temporary injunction and it is somewhat earlier stage. It is also well settled that plaint can be rejected if it does not disclose cause of action or the same is barred by any law as enumerated in clauses (a) to (d) of Rule 11 of Order VII, CPC. If from the face of record any infirmity enumerated in clauses (a) to (d) of Rule 11 of Order VII, CPC, then the Court shall order for rejection of the plaint as the fruitless litigation requires to be buried at its inception, to avoid wastage of time of Courts and unnecessary expenses and wastage of time of the litigants as well.” (emphasis supplied)

Used in Judgment of
LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT
Land
3263/19
2020 LHC 781

Application under Section 12(2) C.P.C. is hereby allowed

10. As per record/National Identity Card, the respondent/writ petitioner (Muhammad Yaqoob) was minor about 5 ½ years of age at the time of creation of Pakistan and was only 10 years of age when the alleged allotment order was passed showing him as an A-Class allottee being Government Employee. This is an astonishing fact that how can be a minor boy of 10 years became an government servant, as such, the alleged allotment was procured through practicing fraud and misrepresentation of the real facts. The respondent on the basis of fake and forged document of Khata RL.II.123 obtained the order from this Court by committing fraud and misrepresentation of the true facts. It is well settled law that fraud vitiates the most solemn proceedings and any edifice so raised on the basis of such fraudulent transaction stood automatically dismantled and any ill-gotten gain achieved by committing fraud cannot be validated under any laws. Reliance in this regard is placed on Muhammad Attique v. Jami Limited and others (PLD 2010 SC 993), Khursheed Begum and others v. Inam-ur-Rehman Khan and others (PLD 2009 Lahore 552), Nawab Syed Raunaq Ali etc. Vs. Chief Settlement Commissioner & Others (PLD 1973 SC 236), The Chief Settlement Commissioner, Lahore Vs. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) and Lahore Development Authority Vs. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097). Moreover in the judgment reported as Lal Din and another Vs. Muhammad Ibrahim (1993 SCMR 710), the Hon‟ble Apex Court has held that fraud vitiates the most solemn proceedings and no party should be allowed to take advantage of his own fraud. As discussed above the order dated 03.05.1991 passed in W.P.No.1049/1991 was obtained by practicing fraud and misrepresentation of the true facts, as such, the same is hereby reversed and application under Section 12(2) C.P.C. is hereby allowed.

Used in Judgment of
LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT
Land
3263/19
2020 LHC 781

Provincial Board of Revenue being at the apex of Revenue hierarchy

The Honorable Supreme Court in Haji Noorwar Jan v. Senior Member, Board of Revenue, N.W.F.P. Peshawar and 4 others PLD 1991 SC 531 has already observed as follows:

 "Provincial Board of Revenue being at the apex of Revenue hierarchy was charged with the statutory duty of interpreting the laws applying the same to individual cases coming up before it and lying down the law for subordinates in the hierarchy to follow. Any error on the part of Board of Revenue in understanding the law, in applying it or in laying down the law can and must be corrected in the Constitutional jurisdiction." (emphasis added) 

Used in Judgment of
IN THE LAHORE HIGH COURT M U L T A N B E N C H M U L T A N JUDICIAL DEPARTMENT
Writ Petition-Land-Miscellaneous
11548-15
2020 LHC 937

Interfering in the complicated question of title based on alleged fraud.

16. It has been repeatedly held by the Superior Courts, and similarly law itself provides, that proceedings before the Revenue Courts are of summary nature. Whenever complicated question of fact is involved, the exclusive jurisdiction vests in the Civil Court to decide the same. The Revenue Courts have exceeded from their jurisdiction and have erred while interfering in the complicated question of title based on alleged fraud. The longstanding entries qua the allegation of fraud should be dealt by the Civil Court because Revenue Courts have no jurisdiction to interfere in such like matters. The mutation being summary proceedings Revenue authorities could not clinch such complicated matter in summary proceedings. At the time of attestation of mutation, no detailed evidence is recorded by the Revenue Officers and it is otherwise the function of the Civil Court to decide matters after framing of issues and recording of evidence of both the parties. Reference is placed on case-law reported as Muhammad Naeem v. Siraj-U-Din and 6 others (2015 CLC 1084), Mst. Khurshid Bibi and others v. Liaqat Ali and others (2010 Y L R 2729), Muhammad Nawaz and others v. Pir Bakhsh and others (1990 CLC 1968) and Muhammad Ishaq v. Member (R), Board of Revenue, Punjab, Lahore and 18 others (1994 MLD 2254).

Used in Judgment of
IN THE LAHORE HIGH COURT M U L T A N B E N C H M U L T A N JUDICIAL DEPARTMENT
Writ Petition-Land-Miscellaneous
11548-15
2020 LHC 937

Civil Court under Section 9 of C.P.C. can try all suits of civil nature except

15. It is an established principle of law that the mutation proceedings are of summary nature under the Revenue Act. A Civil Court is a court of plenary jurisdiction and fraud can always be challenged before the Civil Court because it requires to be proved through evidence of the parties. Reliance is placed on Jan Muhammad through Mubarik Ali and others v. Nazir Ahmad and others (2004 SCMR 612). It has also been held that rights of parties qua disputed property require determination after giving them fair opportunity to adduce evidence. Factual controversies can only be resolved by the Civil Court having plenary jurisdiction. Reliance in this respect is placed upon Nemat Ali and another v. Malik Habib Ullah and others (2004 SCMR 604). The Revenue Courts have no power to correct the longstanding entries in the revenue record in summary manner. Reliance in this respect is placed upon Muhammad Naeem v. Siraj-Ud-Din and 6 others (2015 CLC 1084). It has been settled that the Civil Court being the court of plenary jurisdiction, is competent to inquire into the question, whether impugned mutation is attested by practicing fraud and if it is so, it has the jurisdiction to declare the same to be void. The Civil Court under Section 9 of C.P.C. can try all suits of civil nature except those of which their jurisdiction is barred either expressly or by necessary implication. In this context reliance can be placed on the case reported as Muhammad Jameel Asghar v. The Improvement Trust Rawalpindi (PLD 1965 SC 698) wherein it was held that where the question of fraud, misrepresentation or want of jurisdiction is raised, the civil court has jurisdiction to adjudicate upon the same. Reliance is also placed on Hafiz Kalu and others v. Muhammad Bakhsh and others (2019 YLR 1523)

Used in Judgment of
IN THE LAHORE HIGH COURT M U L T A N B E N C H M U L T A N JUDICIAL DEPARTMENT
Writ Petition-Land-Miscellaneous
11548-15
2020 LHC 937

Was not violative of O XX R. 5 C.P.C


-    "Ground in the Appellate Court, inter alia, that Trail Court was not legally competent to decide four issues collectively being against O XX R.5 C.P.C -held - no doubt Trial Court should have given finding on each issue separately, but where certain issue were linked with each other and where considered together, such consideration was not violative of O XX R. 5 C.P.C".

MUHAMMAD AFZAL & OTHERS VS WALI MUHAMMAD
2004 CLC 658 AND
KARIM BUX & 2-OTHERS VS MANZOOR AHMAD ETC.
PLD 2005 (Kar) 50;
Also see generally 2004 CLC 1438; 2004 CLC 370.

Case under Order 37 C.P.C

-    "Mere observation in a case under Order 37 C.P.C based on Pronote while considering the grounds of leave on P.L.A that the defendant has not given any justification for grant of leave not considering the affidavit attached thereto , and asking the plaintiff to prove his case , the conclusion drawn by the trial judge was wrong. Judgment feel short of requirements of order XX C.P.C";

Muhammad Yousaf vs Allah Yar
PLD 1987 LAH 101

Case cannot be made basis to reverse unanimous impugned judgments,

8. Learned counsel for the beneficiaries while relying upon judgments reported as Yasmeen Qureshi Vs.Tariq Qureshi and 2 others (PLD 2006 Lahore 311), Mehbub Alim Vs. Razia Begum and others (PLD 1949 Lahore 263), Syed Mehdi Hussain Shah Vs. Mst. Sahadoo Bibi and others (PLD 1962 SC 291), Muhammad Sharif and 2 others Vs. Mst. Aisha Bibi (1994 MLD 677), Chanar Gul and 4 others Vs. Province of Sindh through Secretary, Sindh Secretariat and 3 others (2017 YLR Note 434), Murad Bakhsh and 4 others Vs. Mst. Syeda Ashraf Jhan and 4 others (2017 CLC 646), Chandu Lal Agarwala and others Vs. Khalil ur Rehman and others (PLD 1949 Privy Council 239), Muhammad Akbar and others Vs. Mst. Sahib Khatoon and others (1991 SCMR 1196) and Rashid Ahmed and others Vs. Allah Ditta and others (2014 YLR 1748) put their best to persuade that concurrent findings of two Courts below were liable to be interfered with, but minute perusal of the referred case law reveals that these being distinguishable from the facts and circumstances of the instant case cannot be made basis to reverse unanimous impugned judgments, which having been based upon well appreciation of evidence and application of law on the subject are approved and confirmed.

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

Statutory provisions of Order XXXII of the Code of Civil Procedure, 1908 have been ignored.

11. There is one other aspect of the matter at hand, which is worth consideration. The petitioner had instituted the suit against Abid Hussain son of Abdul Rehman. The documents that have been appended by the petitioner with the instant civil revision depict that Abid Hussain at the time of sale, that is, 16.12.2009 was 6 or 6 & ½ years of age and was a student of Class 2 in the year 2014. A certificate from the office of Principal, Oxford Public High School, Darya Khan (Bhakkar) was also placed on the record as Mark-A notifying his parenthood and his class in which said Abid Hussain was studying. It is also noted that during the evidence of the respondent, it was pointed out that he was a minor and that his father had actually bought land in question but the same had been transferred in Abid Hussain’s name. Neither of the parties nor the learned trial court impleaded his father Abdul Rehman, who throughout had been defending the case on behalf of his son Abid Hussain. It is also noted that he was not sued through his father. This aspect was also not taken into consideration by the learned appellate court where again Abid Hussain was impleaded without his next friend nor a guardian was appointed. The petitioner again has not impleaded the said minor through his father nor did the learned counsel for the petitioner pointed out this aspect of the matter during the course of hearing of the instant petition. Statutory provisions of Order XXXII of the Code of Civil Procedure, 1908 have been ignored. However, in view of the above noted facts and circumstances, no prejudice has been caused to the minor. The suit as well as appeal against him were being defended by his real father, who has no interest adverse to him and secondly the concurrent findings of the learned courts below are against the petitioner. Moreover, considering the fact that the provisions of Code of Civil Procedure, 1908 do not relate to the substantive rights of the individuals and these being simply a machinery to achieve an end and that the object and purpose of the above noted Order is to ensure due and proper representation on behalf of the minor, therefore, noncompliance of the said Order ought to be treated as inconsequential in the peculiar facts and circumstances of this case. In this regard reliance is placed on the cases reported as Manager Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 S.C. 678) and Adil through Legal Heirs and others v. Ashiq Hussain and others (2003 CLC 945).

Part of Judgment
Lahore High court
Civil Revision
194717/18
2020 LHC 311

He was bound to sell in the event of non proof transaction until the trial court resiled it

14. It is appreciable that the learned Civil Judge had correctly taken note of all these factors and recorded a finding that oral transaction could not be proved inasmuch as the payment of consideration and the transfer of possession was never established. The learned Addl. District Judge was persuaded by the existence of mutation of oral sale little appreciating that where the mutation is questioned on the plea that no oral sale was ever  made, the beneficiary of the transaction is under obligation to prove the oral sale by credible evidence. In “Muhammad Akram and another v. Altaf Ahmad” (PLD 2003 SC 688) it was observed by the August Supreme Court that “…it is settled principle of law that a mutation confers no title. Once a mutation is challenged, the party that relies on such mutations is bound to revert to the original transaction and to prove such original transaction which resulted into the entry or attestation of such mutation(s) in dispute. This oft repeated principle of law is quite logical because a mutation not being a title deed is merely an evidence of some original transaction between the parties that had been struck by someone prior to the entry of mutation. Respondent Altaf Ahmad has utterly failed to revert back to any transaction and bring on record any oral and documentary evidence thereof. The burden squarely lay on him to prove the transaction because the existence thereof has throughout been alleged by him in affirmative. He was bound to sell in the event of non proof transaction until the trial court resiled it…”

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

Order XX, R.1 ,High Court Rules & Orders (Lahore) Vol .V Chap IV R. 5 -not only O. XX R.1 C.P.C or Rules 5 of the Chapter IV

-    TIME FOR PRONOUCEMENT OF JUDGMENT "Order XX, R.1 ,High Court Rules & Orders (Lahore) Vol .V Chap IV R. 5 -not only O. XX R.1 C.P.C or Rules 5 of the Chapter IV of the High Court Rules and Orders Vol V but also the fiscal statutes had no prescribed time for pronouncement of the judgment, nevertheless , it was desirable to deliver the judgment without inordinate delay so that the justice must not only be done by manifestly appear to be done";


M.A.N0.338/L.B of 2003, 2005 PTD (TRIB) 318.

Findings of the Rent Controller on the issue

-    "Findings of the Rent Controller on the issue of default were given in a single sentence and did not discuss the accumulative effect of statement of the tenant where he had explained reasons for non-tendering of the rent. Judgment was violative of O .XX irrespective that C.P.C did not apply in the rent matters".


Mujib-ur- Rehman vs  Zafar ali Khan
2004 CLC 189 (B)

Impugned judgment but could not conceive its ratio in its true perspective,

When such a point came up before the Hon’ble Supreme Court, it was settled through reported judgment Mst. Arshan Bi through Mst. Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor and others (2003 SCMR 318), referred by learned appellate Court in its impugned judgment but could not conceive its ratio in its true perspective, and it was invariably held:-

 ‘……………… If a party seeking declaration has failed to claim consequential relief, he should not have been non-suited on technical grounds. It has been held time and again by this Court that technicalities shall not create hurdles in the way of substantial justice. Rules and regulations are made to foster the cause of justice and they are not to be interpreted to thwart the same. A heavy duty is cast upon the Courts to do substantial justice and not to deny the same on mere technicalities. Reference in this regard is made to the case of Ch. Akbar Ali v. Secretary,

 Ministry of Defence, Rawalpindi and another (1991 SCMR 2114) where it was held as under :-

“In the exercise to do justice in accordance with law the Court and forums of law cannot sit as mere spectators as if at a high pedestal, only to watch who out of two quarreling parties wins. See the judgment of this Court in the case of Muhammad Azam v. Muhammad Iqbal and others (PLD 1984 SC 95 at page 132) and Civil Appeal No.789 of 1990, decided on 26-6-1991 (Syed Phul Shah v. Muhammad Hussain PLD 1991 SC 1051). On the other hand deep understanding and keen observance of proceedings is a sine qua non for doing justice in the Constitutional set up of Pakistan. Those Rules of adversary system based merely on technicalities not reaching the depth of the matter, are now a luxury of the past. Neither of the parties can be permitted to trap an improperly defended or an undefended or an unsuspecting adversary by means of technicalities when the demand of justice is clearly seen even through a perfect trap. It will make no difference if the litigant parties are citizens high or low and/ or is Government or a State institution or functionary acting as such.”

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

Correction in judgment except u/s 152 C.P.C or a review after announcement

-    "Order XX , High Courts Rules & Orders Vol. 1 , Chapter 1, R.2 Correction in judgment except u/s 152 C.P.C or a review after announcement , when the court becomes " functus officio". Therefore "correction" was not sustainable in the eye of law";


MIS Norrani Traders vs. Civil Aviation
2001 YLR 2277 Kar.
Pakistan Industrial Promoters vs Nawazish Ali Jafari
2003 YLR 1277
Govt NWFP vs. Arsala Khan and others
2003 CLC 1189 & PLD 2001 Pesh.47

Revisional court cannot interfere with discretion of a competent court unless discretion was arbitrary,

Revisional court cannot interfere with discretion of a competent court unless discretion was arbitrary, fanciful & whimsical, Sec.115 confers revisional jurisdiction not High Court where subordinate court exercised jurisdiction not vested in it or failed to exercise jurisdiction vested in ti or in exercise of jurisdiction acted illegally or with material irregularity.


1995 SCMR 105

Judgment passed without hearing and without informing the party

-    "Judgment passed without hearing and without informing the party of the existence of the ex-parte order is no judgment question of limitation does not arise against void order";

Sayeed Nazir hasan vs settlement commissioner

PLD 1974 Lah 434.
See also case titled Muhammad Ashraf etc. vs. Muhammad Usman etc.
(1973 SCMR 403;).
Also see generally PLD 1971SC 61.

No right to claim declaration in absence of prayer for possession

3. On the contrary, learned counsels for the respondents have argued that suit of the petitioners has rightly been dismissed by the learned appellate Court, because they had no right to claim declaration in absence of prayer for possession, as such the suit was incompetent. They have supported the impugned judgment and decree and have prayed for dismissal of the civil revision in hand. Reliance has been placed on Dilmir v. Ghulam Muhammad and 2 others (PLD 2002 Supreme Court 403) and Ali Muhammad and another v. Muhammad Bashir and another (2012 SCMR 930).

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

Vitiated the entire oral evidence, subsequent stance

13. Notwithstanding the fact that the entire stance taken in the post-remand evidence by the respondent were never incorporated in the pleadings nor they were ever asserted in the earlier depositions and in law the respondent could not even permitted to produce evidence for which there was no foundation in the pleadings. As ruled by the August Supreme Court in “Abdul Haq and others v. Shaukat Ali and others” (2003 SCMR 74) and “Sardar Muhammad Naeem Khan v. Returning Officer” (2015 SCMR 1698) evidence beyond pleadings would be inadmissible, but also this subsequent stance, vitiated the entire oral evidence and also the pleadings in the post-remand proceedings where the respondents’ stance was that the alleged payment was made on 23.11.2003. So much so that in both pre and post-remand evidence of the D.Ws it was not denied that the possession was never transferred. D.W4, Muhammad Saeed, claimed that because of the standing crop the possession was given later while the respondent Zulfiqar appearing as D.W5 claims that petitioner forcibly continued the possession.

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

Failure of the Court to frame a proper issue in the suit arising out of the pleadings of the parties.

Being so the petitioner could not be permitted to raise the plea of non-framing of issues at the revisional stage. Reference can be made to the rule laid in “Mehr Din (represented by his Legal heirs) v. Dr. Bashir Ahmad Khan and 2 others” (1985 SCMR 1) where the August Supreme Court observed as under:

“Nonetheless, we find that throughout the trial the parties were fully cognizant of this issue which really arose out of the pleadings of the parties and they had also adduced their evidence in respect thereof. So, that in our considered opinion no prejudice was done to any parties in the failure of the Court to frame a proper issue  in the suit arising out of the pleadings of the parties.”

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