The request for time to file additional documents is allowed

On 19.01.2017, regarding the matter in issue, the Hon'ble Supreme Court of Pakistan passed following order: 
“The request of Malik Muhammad Qayyum, learned Sr. ASC for time to file additional documents is allowed. The parties must also come prepared to argue whether the original application of the respondent moved under Section 12(2) of the CPC but subsequently converted in a review petition vide order dated 12.1.2015 can be revived as an application under the provisions of Section 12(2) ibid in light of the law laid down in the judgments reported as Sahabzadi Maharunisa and another Vs. Mst. Ghulam Sughran and another (PLD 2016 SC 358) and Nasrullah Khan and others Vs. Mukhtar-ul-Hassan and others (PLD 2013 SC 478). Re-list.”

Part of Judgment of 
THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT 
Land
3263/19
2020 LHC 781
 

Suit for recovery based on Promisory Note

Suit for recovery based on Promisory Note – delay in filing leave application on the ground that trial court was on leave for nine days due to Winter holidays – held – delay of every single day has to be explained sufficiently, otherwise, the object of summary proceedings will be defeated. Furthermore, only Presiding Officer happened to be on leave while office remained open for filing/institution during this period. Petition for leave is time barred as delay not sufficiently explained.

Muhammad Naeem    V.    Muhammad Javed Iqbal
2012 CLC 175 (Peshawar)

Order. XXXVII Rule. 2 & 3
Limitation Act (IX of 1908) Sect. 5

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.


Part of Judgment of 
THE LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT 
Land
3263/19
2020 LHC 781

Violation of O.XX R .1 (2) C.P.C was in consequential having no material bearing on merits

-    "Provisions of O.XX R. 1 (2) are directory in nature and not mandatory and do not provide for consequence in case it is not strictly adhered. High Court announced judgment after more than five months in violation of O.XX R .1 (2) C.P.C was in consequential having no material bearing on merits".

Jumma Khan & others vs. MST Bibi Zenaba & others
PLD 2002 SC 823.
 Also see 2002 CLC 1704.

Law contained in Order VI Rule 4 CPC which contemplates that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence,

9. Now, I address the other fact in issue. This is the case in which transactions of gift incorporated in mutations No.3760, 3847, 3846 and 3850 were questioned by the plaintiff on the ground of fraud and misrepresentation. The Trial Court, therefore, framed issue No.2 i.e. whether mutations of Hibba No.3760 (17.02.1998), 3847 (16.06.1999), 3846 (16.06.1999) and 3850 (26.08.1999) are against law and facts, null and void on rights of plaintiff Tahira Parveen? OPP; and, issue No.3 i.e. whether plaintiff Tahira Parveen is entitled to the decree for declaration alongwith consequential relief for perpetual injunction as prayed for? OPP. The onus to prove the said issues was placed upon the plaintiff. The Courts below decided these issues on the basis of provisions of law contained in Order VI Rule 4 CPC which contemplates that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with date and items if necessary) shall be stated in the pleading. Applying the above said provisions of law, the issue No.2 was decided against the plaintiff on the ground that the plaint of the plaintiff was lacking particulars of fraud. I am afraid the Courts below while returning findings on this issue not only mis-read and non-read the contents of plaint but were also misdirected in law. The contents of plaint of the plaintiff were required to be appraised on the basis of two fundamental facts of the case, that is, firstly, that the plaintiff is real daughter of the deceased Ghulam Qadir whereas defendant No.1 is step brother of Ghulam Qadir; and, secondly, that initially, the suit land stood transferred through oral gift by way of two mutations i.e. mutation No.3760 dated 17.02.1998 and mutation No.3847 dated 16.06.1999 in favour of Fatima Bibi, who was mother of Ghulam Qadir and subsequently the said land stood transferred in favour of defendant No.1 by way of mutation No.3846 dated 16.06.1999 and 3850 dated 26.08.1999. The allegations of the plaintiff were that defendant No.1 was a cunning and sneak person; that neither there was any offer and acceptance of gift nor there was any occasion to make any gift in favour of Fatima Bibi; that her deceased father neither appeared before any revenue officer nor he thumb marked any document in this regard; that possession of the land was also not delivered to defendant No.1; and, that the defendant No.1 through fraud and in collusion with the revenue staff got transferred the suit land in his favour by way of a fake oral gift so as to deprive her of her right of inheritance. Aforestated allegations pointing fraud and misrepresentation in the sanctioning of disputed mutations as per principle settled in the case of “Mst. Kulsoom Bibi and another v. Muhammad Arif and others” (2005 SCMR 135) were sufficient to meet the requirements of Order VI Rule 4 CPC.  

Part of Judgment
 THE LAHORE HIGH COURT LAHORE 
Civil Revision
1777836.955-15
2018 LHC 701

Petitioners could not point out any illegality or irregularity as well as wrong exercise of vested jurisdiction,

4. Pursuant to the above discussion, it is held that the learned counsel for the petitioners could not point out any illegality or irregularity as well as wrong exercise of vested jurisdiction, alleged committed by the learned Courts below while passing the impugned order, judgment and decrees, warranting interference by this Court. Resultantly, while placing reliance on Attiqullah v. Kafayatullah (1981 SCMR 162), Nazir Ahmad v. Mahmood Ahmad and others (1984 CLC 2658-Lahore) and Abdul Khaliq v. Gul Faraz (PLD 2011 Peshawar 112), the civil revision in hand being without any force and substance stands dismissed in limine. 

Part of judgement 
THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT 
Civil Revision
1820855.2124-15
2018 LHC 742

Exercising revisional jurisdiction provided under section 115 of Code, 1908

8. The argument of learned counsel for the respondents that the concurrent findings of the Courts below cannot be disturbed by this Court while exercising revisional jurisdiction provided under section 115 of Code, 1908 is not tenable as both the judgments and decrees having been found to be the result of misreading and nonreading of evidence as well as non-adherence to the law applicable in this regard are not sustainable in the eye of law. It is correct that normally this Court does not interfere with the concurrent findings of the fact recorded by two Courts below, but when there is gross misreading and non-reading of evidence and patent violation of the law is floating on the surface of such concurrent findings, this Court cannot shut its eyes and is always under obligation to rectify the error by interference in such like illegal findings. Reliance can be placed upon the judgments reported as Ghulam Muhammad and 3 others Vs. Ghulam Ali (2004 SCMR 1001) and Mushtari Khan vs. Jehangir Khan (2006 SCMR 1238).

Part of judgement 
 THE LAHORE HIGH COURT LAHORE 
Civil Revision
1687955.2715-14
2018 LHC 863

Backdrop of the case was that the sale deed under litigation in hand was executed on behalf of an illiterate lady

6. The other glaring backdrop of the case was that the sale deed under litigation in hand was executed on behalf of an illiterate lady and as per judgments of the apex Court rendered in cases reported as Taleh Bibi and others Vs. Mst. Maqsooda Bibi and another (1997 SCMR 459), Mian Allah Ditta through LRs Vs. Mst. Sakina Bibi and others (2013 SCMR 868), Ghulam Farid and another Vs. Sher Rehman through LRs. (2016 SCMR 862) and Phul Peer Shah Vs. Hafeez Fatima (2016 SCMR 1225), the legal protection is to be extended to her, which is available to a pardanashin woman and in such situation, it was sine qua non for the beneficiaries to have proved that not only independent advice was available with her, but she had settled the bargain with conscious mind of transferring the property in dispute to the respondents. The Deed Writer (DW4), Identifier (DW3) and the Attesting Witness (DW2) admitted in their testimonies that either son or a relative of the lady/vendor was available, but non-signing of the document on their part raised serious question about its genuineness. The disputed transaction on behalf of lady was effected in favour of siblings of her brother. The latter was in a position to exert his pressure or had got a relation of great confidence to wield influence upon her and in such situation that was to be seen with doubt and care. The submission of Mr. Sakhawat, learned counsel that each of the DWs specifically deposed in his statement that the Scribe as well as the Registering Officer confirmed from the lady with regard to receipt of sale amount, who thereafter scribed and registered the sale deed, hence there was no further requirement for making the document and transaction understandable to her was not well founded. It was the defence of the lady that the property was never sold out, rather it was leased out, as such it was imperative upon the beneficiaries to have proved that the consideration, if any paid, was for the sale.  

Part of judgement 
 THE LAHORE HIGH COURT LAHORE 
Civil Revision
1687955.2715-14
2018 LHC 863

Land through oral gift in his favour vide mutation

11. It was the case of defendant No.1 that firstly his step brother Ghulam Qadir during his life time gifted the suit land to his mother Fatima Bibi vide mutation No.3847 dated 16.06.1999 (Exh.P-3) and mutation No.3760 dated 17.02.1998 (Exh.P-4); and, that subsequently Fatima Bibi transferred the said land through oral gift in his favour vide mutation No.3846 dated 16.06.1999 (Exh.P1) and mutation No.3850 dated 26.08.1999 (Exh.P-2). According to principle settled in the cases of “Mst. Raj Bibi and others v. Province of Punjab through District Collector , Okara and 5 others” (2001 SCMR 1591),Mst. Kalsoom Bibi & another v Muhammad Arif & others (2005 SCMR 135) “Aurangzeb through L.Rs and others v. Muhammad Jafar and another” (2007 SCMR 236) and “Rehmatullah and others v. Saleh Khan and others” (2007 SCMR 729), , “Aurangzeb through L.Rs and others v. Muhammad Jafar and another” (2007 SCMR 236), “Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs” (2008 SCMR 855) and “Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another” (2010 SCMR 342).”Allah Ditta and others v. Manak alias Muhammad Siddique and others” (2017 SCMR 402) and “Mrs. Khalida Azhar v. Viqar Rustam Bakhshi and others” (2018 SCMR 30), the beneficiary of the transaction, that is, defendant No.1 was bound not only to prove the disputed mutations but also to prove the actual factum of gift by falling back on three ingredients, that is,

  •  (i) declaration of gift by the donor; 
  • (ii) acceptance of gift by the donee; and, 
  • (iii) delivery of possession of corpus. In this perspective, I have examined the evidence available on record. The defendant No.1 neither in his written statement stated the date, time, place and name of witnesses before whom the declaration and acceptance of gift was made nor any of the witness who appeared on behalf of the defendants made any statement that proposal and acceptance of gift was made in his presence. Failure to establish the twin requirement of gift i.e. proposal and acceptance of gift was fatal to the claim of defendant No.1. This aspect of the matter was not considered by either of the Courts below and thus, their findings on issues No.2 & 3 cannot be approved. 

Part of Judgment
 THE LAHORE HIGH COURT LAHORE 
Civil Revision
1777836.955-15
2018 LHC 701

Principle of law to evaluate the above stated evidence led by the parties of the suit for determination of faith of deceased

Now a question arises as to what would be the principle of law to evaluate the above stated evidence led by the parties of the suit for determination of faith of deceased Ghulam Qadir. In order to find out answer to this question, it is essential to survey the relevant case law. 

The first case which may be referred is “Saiyid Rashid Ahmad vs. Mst. Anisa Khatoon” (AIR 1932 PC 25). In that case no suggestion had been made in the pleadings or in the arguments that parties were not Sunni Muhammadan governed by the ordinary Hanafi Law. The Court had to decide the question of Muhammadan Law relating to Talak and it was held that as there was no such suggestion mentioned in the record, the Hanafi Law should be applied. 

The second case is “Akbarally v. Mahomedally” (AIR 1932 Bom 356). In that case Tyabji, J. observed: “it is not easy however to conceive of a case so devoid of all other circumstances from which the religion of the parties can be inferred, that this presumption from numbers should effectually come into operation.” 

Part of Judgment
 THE LAHORE HIGH COURT LAHORE 
Civil Revision
1777836.955-15
2018 LHC 701

Without proof of the execution and the genuineness of the transaction covered by it

Reliance can be placed upon judgments reported as Abdul Ghafoor and others Vs. Mukhtar Ahmad Khan and others (2006 SCMR 1144) and Abdul Majeed and 6 others Vs. Muhammad Subhan and 2 others (1999 SCMR 1245). In the latter case, the apex Court concluded in the following words:- 

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 of 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 of document.

Part of judgement 
 THE LAHORE HIGH COURT LAHORE 
Civil Revision
1687955.2715-14
2018 LHC 863

Estate has to be distributed in accordance with pure Muslim Law, as is stated in Quran in Sura Nisa.

In the case of “Amir Ali v. Gul Shaker and 10 others” (PLD 1985 Karachi 365), the Division Bench of Sindh High Court has held that it is not necessary that a Mussalman must either be a Sunni, or, a Shia and it may well be that he is free from all sectarian feelings, sentiments and faith; and, that if it is not established that deceased was a Sunni or Shia then his estate has to be distributed in accordance with pure Muslim Law, as is stated in Quran in Sura Nisa.

Part of Judgment
 THE LAHORE HIGH COURT LAHORE 
Civil Revision
1777836.955-15
2018 LHC 701

Require independent, clear and indisputable evidence for its proof or disproof.

This Court in the case of “Mst. Jantan through Mazhar Hussain v. Mst. Manzooran Bibi and others” (2005 YLR 233) held that donation receipts could only prove monetary contributions to an organization, but could not be proof of donor’s faith, which would require independent, clear and indisputable evidence for its proof or disproof. 

Part of Judgment
 THE LAHORE HIGH COURT LAHORE 
Civil Revision
1777836.955-15
2018 LHC 701

Misplacing the burden of proof and recording in the impugned judgment

10. The other ground which prevailed upon the Courts below to decide issues No.2 & 3 against the plaintiff was that she had failed to prove the allegation of fraud and misrepresentation. Again the approach of the Courts below to evaluate the evidence available on record was incorrect. The general rule is incumbit probation qui dicit, non qui negat i.e. the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a 10. The other ground which prevailed upon the Courts below to decide issues No.2 & 3 against the plaintiff was that she had failed to prove the allegation of fraud and misrepresentation. Again the approach of the Courts below to evaluate the evidence available on record was incorrect. The general rule is incumbit probation qui dicit, non qui negat i.e. the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a legality of transactions of gift incorporated therein. The facts of the case and principles of law applicable thereto were not properly appreciated and the Courts below misdirected themselves by misplacing the burden of proof and recording in the impugned judgment that the plaintiff had failed to prove issue No.2. Since the Courts below misplaced burden of proof, they clearly vitiated their own judgments. It is well established principle of the Qanun-e-Shahadat that misplacing burden of proof may vitiate judgment. It is also equally and undoubtedly true that the burden of proof may not be of much consequence after both the parties lay evidence, but while appreciating the question of burden of proof, misplacing of burden of proof on a particular party and recording findings in a particular way definitely vitiates the judgment as it has happened in the instant matter where the Courts below illegally and erroneously failed not to cast the burden on defendant No.1 by clearly misconstruing the whole case and thus resulted into recording of findings which are wholly perverse.

Part of Judgment
 THE LAHORE HIGH COURT LAHORE 
Civil Revision
1777836.955-15
2018 LHC 701

While reversing the judgment rendered by this Court reported

Finally, the Hon’ble Supreme Court of Pakistan in the case of Muhammad Bashir and others vs. Mst. Latifa Bibi through L.Rs (2010 SCMR 1915) while reversing the judgment rendered by this Court reported as “Mst. Latif Bibi and 8 others v. Muhammad Bashir and 10 others” (2006 CLC 1076) has held that no principle of universal application is available to determine the faith of a person and determination whereof depends on the surrounding circumstances, the way of life, the paternal faith and faith of other kith and kins.

Part of Judgment
 THE LAHORE HIGH COURT LAHORE 
Civil Revision
1777836.955-15
2018 LHC 701

Not necessary for a donor to furnish reasons for making a gift yet no gift in the ordinary course

14. The fraud and collusion alleged by the plaintiff may also be unearth from the intention and motive of defendant No.1. It is to be noted that defendant No.1 was not the legal heir of deceased Ghulam Qadir nor in the ordinary circumstances was entitled to get the suit property. Though it is not necessary for a donor to furnish reasons for making a gift yet no gift in the ordinary course of human conduct be made without reason or justification unless the donor is divested of power of reasons and logic and unless he/she is a person of unsound mind. The Hon’ble Supreme Court of Pakistan in the case of “Barkat Ali through L.Rs and others v Muhammad Ismail through L.Rs and others” (2002 SCMR 1938) has held that in the wake of frivolous gifts generally made to deprive the females in the family from the course of inheritance prevalent at present times, the Courts are not divested of the powers to scrutinize the reasons and justification for a gift so that no injustice is done to the rightful claimant and no course of inheritance is bye passed. In the instant case, no reason has been furnished for making gift in the impugned mutations. The attorney of defendant No.1, that is, Iftikhar, however, while appearing before the Trial Court as DW-1 stated that Ghulam Qadir had transferred the suit land in favour of Fatima Bibi for God’s sake ( طے ہللاساو .(It means that love and affection of mother was not the consideration of gift but instead the intention behind the transaction was to please God Almighty. If that was the intention of Ghulam Qadir, he could not ignore his real daughter (plaintiff) and deprive her of her share of inheritance, ordained by the Allah Almighty. Even otherwise the fraud and collusion stood established from the date itself i.e. 16.06.1999 on which date the alleged gift mutations No.3847 and 3846 were sanctioned. The defendant No.1 had neither led any evidence to establish the fact that Ghulam Qadir in his life time was aware about the transaction of gift nor explained the reasons as to why Ghulam Qadir had not made gift directly to him; and, that why the land was firstly transferred in the name of Fatima Bibi and from her, it was gifted to him on the same date. All these facts show nothing but fraud on the part of defendant No.1, so as to deprive the plaintiff of her right of inheritance. Since the defendant No.1 had failed to justify the disinheritence of the plaintiff, the disputed gift mutations as per principle settled in the case of “Fareed and others v. Muhammad Tufail and another” (2018 SCMR 139) cannot be held valid. In view of above, findings of the Courts below in respect of issues No.2 & 3 are reversed and the said issues are decided in favour of the plaintiff.

Part of Judgment
 THE LAHORE HIGH COURT LAHORE 
Civil Revision
1777836.955-15
2018 LHC 701

No avail to prove the transaction of gift and thus the gift incorporated in the impugned mutations stood unproved.

12. There is another aspect of the matter which has prompted me to interfere with the findings of the Courts below. The acceptance of gift was a personal act and, therefore, it was required to be proved by the donee through his own statement and attorney cannot substitute the donee under the law. In the present case defendant No.1 i.e. Muhammad Khan was donee of the transaction of gift as incorporated in mutation No.3846 dated 16.06.1999 (Exh.P-1) and mutation No.3850 dated 26.08.1999 (Exh.P2) and thus he was required to appear before the Trial Court as his own witness to make statement with regard to date, time, place and name of witnesses before whom he made the declaration to accept the offer of gift. Instead of appearing as his own witness, the defendant No.1 produced his attorney Iftikhar as DW-1. His statement as per principle settled in the cases of “Shah Nawaz and another v. Nawab Khan” (PLD 1976 Supreme Court 767) “Mst. Gumbad and others v. Member, Board of Revenue and others” (1996 SCMR 1755) “Muhammad Ejaz and 2 others v. Mst. Khalida Awan and another” (2010 SCMR 342) was of no avail to prove the transaction of gift and thus the gift incorporated in the impugned mutations stood unproved.

Part of Judgment
 THE LAHORE HIGH COURT LAHORE 
Civil Revision
1777836.955-15
2018 LHC 701

Law that neither presumption of correctness nor that of truth to the contents of mutation is attached under the law.

13. It is settled principle of law that neither presumption of correctness nor that of truth to the contents of mutation is attached under the law. Once the existence of a transaction itself has been questioned by a party in suit, it was legal obligation of the person claiming benefit thereunder to prove the same. Most important entities in connection with the attestation of mutation were the Patwari Halqa who had to enter the mutation and the Revenue Officer who was to attest the same. The defendant No.1, thus, as per principle settled in the cases of “Muhammad Akram and another v. Altaf Ahmad” (PLD 2003 Supreme Court 688) “Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others” (PLD 2003 Supreme Court 849) was required to produce the said two persons in the witness box to prove the valid attestation of the mutations in question. The defendant No.1 neither produced the Patwari Halqa nor Revenue Officer who sanctioned the impugned mutations and thus the inference which may be drawn is that defendants had failed to prove the valid sanctioning of the impugned mutations. 

Part of Judgment
 THE LAHORE HIGH COURT LAHORE 
Civil Revision
1777836.955-15
2018 LHC 701

Sect of a person cannot be determined

This Court in the case of “Zohran Mai v. Mst. Siftan and others” (1983 CLC 2559) has held that question of sect of a person cannot be determined: 

(i) by opinion of parties but can be inferred from facts creating presumption one way or other; and, 

(ii) merely from sect to which his relatives belonged

Part of Judgment
 THE LAHORE HIGH COURT LAHORE 
Civil Revision
1777836.955-15
2018 LHC 701

Judgment did not conform to the provisions of law as it was to be based on evidence in the case

Judgment did not conform to the provisions of law as it was to be based on evidence in the case and not other material or factor was to be taken into consideration. Furthermore the relief had to follow findings on the issue and should have been consistent with those findings. Such a disposition of the matter could not qualify to be a judgment in law and was liable to be set aside";

Meaple Leaf Cement Factory Ltd vs Waryam etc
PLD 2006 LAH 506. Also see 2006 YLR 108.

Article 127 of Qanoon-e-Shahadat, 1984, wherein it is provided that the burden of proving good faith of a transaction is on the party

 Reference can be made to the rule given in “Arshad Khan. vs. Mst. Resham Jan and others” (2005 SCMR 1859) where the August Supreme Court observed that it is

 “…settled principle of law that if the genuineness of a transaction entered on behalf of a Pardanashin lady is disputed by the said lady, heavy onus would lie on the person who asserts right through it is pertinent to mentioned here that to prove the good faith and genuineness of the transaction as envisaged in Article 127 of Qanoon-e-Shahadat, 1984, wherein it is provided that the burden of proving good faith of a transaction is on the party which is in a position of active confidence. This is settled law regarding the disposition of property of Pardanashin ladies and also the illiterate and ignorant women that the genuineness of the transaction of disposition must be established by the person who claims its genuineness or who is to be benefited by such transaction through the reliable, cogent and convicting evidence…”

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

Conjoint reading of sub-sections (1) and (2) of Section 13 of the Punjab Pre-Emption Act, 1991

7. Conjoint reading of sub-sections (1) and (2) of Section 13 of the Punjab Pre-Emption Act, 1991 suggests that first step to structure the right of pre-emption is to make immediate demand in the sitting or meeting (Majlis) in which the preemptor has come to know of the sale through any source, declaring his intention to exercise the right of pre-emption. Such demand is called Talb-i-Muwathibat. The element of immediacy is embedded in this demand as otherwise it stands extinguished on a delay of the shortest interval. It is for this reason the Hon’ble Supreme Court of Pakistan in the cases of Mian PIR MUHAMMAD and another v. FAQIR MUHAMMAD through L.Rs and others (PLD 2007 SC 302), Mst. Bashiran Begum v. Nazar Hussain and another (PLD 2008 SC 559), Haq Nawaz v. Muhammad Kabir (2009 SCMR 630), Section Officer, Government of the Punjab, Finance Department and others v. Ghulam Shabbir (2011 SCMR 1545), Fazal ur Rehman v. Khurshid Ali and another (2012 SCMR 635), and Muhammad Ismail v. Muhammad Yousaf (2012 SCMR 911) has held that it is mandatory for the pre-emptor to mention in the plaint the place, date, time and name of the witnesses before whom the Talb-i-Muwathibat was made; and, that non-compliance thereof is fatal. 

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

Appellate & Revisional Jurisdiction – Distinction

Revision is:  

  (i) Where Court has exercised jurisdiction not vested in it.
  (ii) Where Court has not exercised jurisdiction vested in it.
  (iii) or has acted in exercise of its jurisdiction “illegally”  or with “material irregularity”.
In the case (ii) above, jurisdiction can be exercise rightly or wrongly and be corrected in “appeal” only not in “revision”.
Appeal & Revision are different species, appeal is continuation of original suit and has wide scope while “Revision” is limited to some illegality, material irregularity or jurisdictional defect.

Abdul Razzak  v.  Lal Bux
2012 CLC 4 (Sindh) (DB).

Holy Qur’an and the Sunnah, the bequest of the deceased will be treated as property which was in his ownership and not the property

In such eventuality, I am fortified by a judgment reported in Zafar alias Mumtaz & another vs. Mst. Sajjad Begum, Widow & others [PLJ 2015 SC (AJ&K) 14] wherein vide its paragraph No.15, it has been held as under:-

“According to the injunctions of Shariah, i.e. Holy Qur’an and the Sunnah, the bequest of the deceased will be treated as property which was in his ownership and not the property of the others whether it was under his control or possession as Manager, Trustee, Benami, Ostensible or under some partnership or contract etc. The Allah almighty has in this regard clearly warned that no one should usurp the property of others. We would like to refer here the English translation of the Qur’anic verses No.29 to 33 of Surah Al Nisa, which almost deal with the material legal proposition involved in this case which reads as follows:-

29-30 “O believers, do not devour one another’s property be unlawful ways; (instead of this) do business with mutual consent. And do not kill yourselves; believe it that Allah is Compassionate to you. We shall throw into the fire the one who commits such acts of aggression and injustice; and this is very easy for Allah. 31. If your abstain from the heinous sins which you are being forbidden, We will remit your trivial offences and admit you to a place of honour. 32. And do not cover what Allah has given some of you more than others: the men shall have their due share according to what they have earned and the women shall have their share according to what they have earned. So pay to Allah for his bounty; most surely Allah has perfect knowledge of everything. 33. We have pointed out rightful heirs to the inheritance which is left by parents and relatives. As for those, with whom you have made a pledge, do give them share: most surely Allah is watching over everything.”

Part of Judgment
Lahore High court
Civil Revision
4894/20
2020 LHC 263
Subscribe to: Posts (Atom)
Powered by Blogger.

Case Law Search