Record that concurrent findings are fraught with legal infirmities hedged in Section 115 of the Code ibid, it becomes the boudan duty of court exercising revisional powers to curb and stifle such illegalities and material irregularities.

12. There is no cavil that revisional jurisdiction is always exercised with great care and caution, while interfering with the concurrent findings of the courts below but such findings are neither sacrosanct nor it is an inflexible rule that despite observing material flaws, the revisional court will abdicate to exercise its jurisdiction. The judgment of both the learned courts below are not based on proper appraisal of evidence and the learned Civil Senior Judge, while dismissing the suit filed by the petitioner has grossly mis-read the evidence as already noted above. The learned lower Appellate Court, while maintaining the judgment of learned Senior Civil Judge also committed a procedural defect. This amounts to a material irregularity on the part of the learned courts below. Thus this Court under Section 115 of The Code of Civil Procedure (V of 1908) is obliged and fully competent to correct such error in exercise of its revisional jurisdiction contemplated under the said provision of law. When once it is established on the record that concurrent findings are fraught with legal infirmities hedged in Section 115 of the Code ibid, it becomes the boudan duty of court exercising revisional powers to curb and stifle such illegalities and material irregularities. Reliance in this respect if needed, can be placed on “Malik MUHAMMAD KHAQAN versus TRUSTEES OF THE PORT OF KARACHI (KPT) and another” (2008 SCMR 428) and “IMAM DIN and 4 others versus BASHIR AHMED and 10 others” (PLD 2005 Supreme Court 418).

 Part of Judgment 

 IN THE LAHORE HIGH COURT RAWALPINDI BENCH RAWALPINDI JUDICIAL DEPARTMENT

Civil Revision-Civil Revision (Against Decree) u/s. 115, C.P.C.
672-11

2017 LHC 1965

The objection to the jurisdiction of the Civil Court ought to have been raised before the trial Court. Sections 29 and 31 of the Punjab Board of Intermediate and Secondary Education Act, 1976 runs as under:-

8. Reference is also made to the judgment reported as Board of Intermediate and Secondary Education and others vs. Khalil Ahmad and others (2008 SCMR 116), the relevant portion of which is reproduced below: 

“The question of ouster of jurisdiction being a mixed question of facts and law in the present case as the provision of sections 29 and 31 of the Punjab Board of Intermediate and Secondary Education Act, 1976 would reveal, the objection to the jurisdiction of the Civil Court ought to have been raised before the trial Court. Sections 29 and 31 of the Punjab Board of Intermediate and Secondary Education Act, 1976 runs as under:- "29. Bar of suit.--- No act done, order made or proceeding taken by a Board in pursuance of the provisions of this Act shall be called in question in any Court. 31. Protection of acts and order under the Act.--- No suit for damages or other legal proceedings shall be instituted against Government, the Controlling Authority, a Board, a Committee, a Member or a Committee or an Officer or employee of a Board in respect of anything done or purported to have been done in good faith in pursuance of the provisions of this Act and the regulation and rules made thereunder." Bare reading of section 31 shows that the same does not oust the jurisdiction of the Civil Court generally but only bars suits against the official of the Board acting in good faith. Section 29 also does not completely oust the jurisdiction of the Civil Court preventing the Courts to examine as to whether the action taken was within the framework of the law. A factual foundation therefore, was required to be laid in order to examine whether the ouster clause would be attracted. Such foundation was only possible if objection to the jurisdiction of the Civil Court was raised in the written statement and issue framed, thereby providing opportunity to the plaintiff to furnish relevant evidence. That not done the said objection cannot be now raised for the first time. Interestingly the point was not even taken up in the petition for leave to appeal. (emphasis supplied)

 Part of Judgment 

IN THE LAHORE HIGH COURT, LAHORE. JUDICIAL DEPARTMENT

Writ Petition-Miscellanous-Civil Suit
30622-14

2017 LHC 2371

Application filed by the plaintiff containing a prayer which had been found to be just by the learned Courts below, therefore, does constitute malice in law and consequently the learned Courts below were vested with the jurisdiction to come to the aid of the respondent.

10. In this regard, reference has been made to Board of Intermediate and Secondary Education, Lahore through Chairman Versus Sardar Ghias Gul Khan (2001 YLR 729). The relevant portion of the said judgment is reproduced as under: 

“Inaction on the part of the Board coupled with non-application of mind to the application filed by the plaintiff containing a prayer which had been found to be just by the learned Courts below, therefore, does constitute malice in law and consequently the learned Courts below were vested with the jurisdiction to come to the aid of the respondent.”

  Part of Judgment 

IN THE LAHORE HIGH COURT, LAHORE. JUDICIAL DEPARTMENT

Writ Petition-Miscellanous-Civil Suit
30622-14

2017 LHC 2371

Elementary principle of pleadings that where allegations of fraud, misrepresentation, collusion or malafide are attributed, necessary particulars and details in that context are to be unfolded in the application/pleadings, and any bald or vague statement to this effect is of no legal consequence.

Besides a party cannot be allowed to argue the matter beyond its pleadings. Reliance in this behalf is placed on Messrs Lanvin Traders, Karachi vs. Presiding Officer, Banking Court No.2, Karachi and others (2013 SCMR 1419). The relevant portion of the said judgment is reproduced below: 

“In the present case, the contents of the two applications, as reproduced above, reveal that in none of the two, any grievance of fraud, collusion, misrepresentation, manipulation or malafide was attributed either by the judgment debtor/petitioner or by objector Younus Habib, though it is an elementary principle of pleadings that where allegations of fraud, misrepresentation, collusion or malafide are attributed, necessary particulars and details in that context are to be unfolded in the application/pleadings, and any bald or vague statement to this effect is of no legal consequence.” 

Part of Judgment 

IN THE LAHORE HIGH COURT, LAHORE. JUDICIAL DEPARTMENT

Writ Petition-Miscellanous-Civil Suit
30622-14

2017 LHC 2371

Basis of Rule 89,90 and 91 CPC whereas right given in Rule 69 Order XXI CPC relates to the stage when property was not sold in execution of decree.

18. This Court in Muslim Commercial Bank through Branch Manager/General Attorney vs. Fashion Pride (Private) Ltd through Chief Executive and 5 others (2016 CLD 124) held that Order XXI CPC is bifurcated into two stages and once the property is sold, the sale can only be set aside on the basis of Rule 89,90 and 91 CPC whereas right given in Rule 69 Order XXI CPC relates to the stage when property was not sold in execution of decree. On this ground also, aforesaid irregularities pointed out in auction proceedings are not sufficient to set aside the sale unless case under Order XXI Rule 90 CPC is made out as discussed above. The relevant observation of this Court in judgment referred supra is reproduced hereunder:- 

“Order XXI is a code into itself. A close analysis of Order XXI reads to an ineluctable conclusion that the matter relating to auction can be bifurcated into two stages. At the conclusion of the first stage, the property shall be deemed to have been “sold in execution of a decree” (see Order XII, R.89, C.P.C). This stage shall be ‘taken to have been crossed once the purchase-money has been paid in full. Once this threshold is crossed, the auction and the sale of property can only be set aside on the basis of rules 89 to 91, C.P.C. and the reversal or setting aside of a decree will not impact its continuance. To complete the analysis, rule 92 of Order XXI, C.P.C. does not envisage any other ground to set aside a sale except those given in rules 89 to 91 of Order XXI, C.P.C. The use of the expression “where immovable property has been sold in execution of a decree” are significant and convey a meaning that the property has in fact been sold and the positon to that extent is irretrievable. In other words, the matter of sale, having passed through the conductor of auction proceedings, has shaped into a right to vest in the auction purchaser to have the sale confirmed in terms of rules 89 to 91 of Order XXI, C.P.C. The right comprised in rule 69 of Order XXI, C.P.C. relates to a stage when the immovable property has not been sold in execution of the decree. It has to be exercised before ‘the lot in knocked down’. This is the stage where the sale may be stopped.  

 Part of Judgment 

 IN THE LAHORE HIGH COURT MULTAN BENCH, MULTAN JUDICIAL DEPARTMENT.

Civil Revision-Civil Revision (Against Interim Order)
375-15

2017 LHC 1880

Setting aside of sale under Order XXI Rule 90 CPC, mere irregularity is not sufficient but there must be material irregularity or fraud in the process and in addition, there must be substantial injury to the judgment debtor

Hon’ble Supreme Court in Zakaria Ghani and 4 others vs. Muhammad Ikhlaq Memon and 8 others (PLD 2016 Supreme Court 229) held that for setting aside of sale under Order XXI Rule 90 CPC, mere irregularity is not sufficient but there must be material irregularity or fraud in the process and in addition, there must be substantial injury to the judgment debtor. The relevant observation of apex Court is reproduced hereunder:- 

“A mere allegation is not sufficient. It has to be established that not merely an irregularity but a material irregularity has taken place, or, in the alternative, that fraud has been perpetrated in the process of carrying out the sale. Then is super added the requirement that even if these conditions are complied with the judgment debtor must satisfy the Court that he has sustained a substantial injury by reason thereof. Finally, in order to discourage frivolous applications intended to delay the execution of the decree it is mandatory on the judgment debtor to deposit 20% of the sale amount or furnish such security as the Court may direct. It is also material to note that once again a time frame of 30 days has been specified under Article 166 of the Limitation Act in this behalf. Failing compliance with the provisions of Order XXI Rule 90 once again the inevitable consequence is that the judgment debtor is precluded from making any such allegation in order to challenge the validity of the sale at a subsequent stage”. 

 Part of Judgment 

 IN THE LAHORE HIGH COURT MULTAN BENCH, MULTAN JUDICIAL DEPARTMENT.

Civil Revision-Civil Revision (Against Interim Order)
375-15

2017 LHC 1880

Order without any legal and lawful justification and without any basis is nothing but an act of mala fide, therefore, the objection of the learned counsel for the petitioners that under sections 29 and 31 of the Act the suit was not maintainable,

9. Reference may be made to Chairman, Board of Intermediate and Secondary Education and 2 others Versus Muhammad Umair (2016 YLR 2435) wherein it is held as under:

 “The Board has given no reason whatsoever as to how the register having entry of date of birth of the respondent was bogus one. It is held that passing such like order without any legal and lawful justification and without any basis is nothing but an act of mala fide, therefore, the objection of the learned counsel for the petitioners that under sections 29 and 31 of the Act the suit was not maintainable, is repelled. It is a settled principle of law that civil courts are the courts of plenary jurisdiction where the rights of any one are infringed, a civil court has ample jurisdiction to adjudicate upon the matter, within the framework of law.” (emphasis supplied)

 Part of Judgment 

IN THE LAHORE HIGH COURT, LAHORE. JUDICIAL DEPARTMENT

Writ Petition-Miscellanous-Civil Suit
30622-14

2017 LHC 2371

Have committed fraud and got transferred the property in their names in connivance of the revenue officials

3. Learned counsel for the petitioners inter alia contends that the judgments and decrees of learned courts below are against law and fact; that the learned courts below have failed to apply their judicious mind; that the evidence of the parties has not been appreciated in its true perspective; that the plaintiffs being legal heirs of predecessor of the parties namely Raheem Bukhsh are entitled to their legal share in the property left by him; that the defendants have committed fraud and got transferred the property in their names in connivance of the revenue officials, therefore, the revenue entries showing ownership of the defendants over the suit property be struck down; that the instant civil revision be allowed, the impugned judgments and decrees be set aside and the suit of the petitioners-plaintiffs be decreed as prayed for. He has relied upon the law laid down in cases titled Mst. Farida Malid and others v. Dr. Khalida Malik and others (1998 SCMR 816) and Mst. Asia Bibi v. Dr. Asif Ali Khan and others (PLD 2011 SC 829). 

Part of Judgment 

 IN THE LAHORE HIGH COURT,LAHORE JUDICIAL DEPARTMENT

Civil Revision (Against Interim Order) Decree US. 115 C.P.C
3123/15

2017 LHC 3590

The provisions of Article 124 of the Qanun-e-Shahadat Order are thus, fully attracted and there is a presumption of law that he is dead.

 Reliance is placed upon the case reported as Lal Hussain Versus Sadiq and others (2001 SCMR 1036). The relevant portion of the said judgment is reproduced as under for ready reference:-

 “It is common ground between the parties that Roshan Din is unheard of since 1947. The provisions of Article 124 of the Qanun-e-Shahadat Order are thus, fully attracted and there is a presumption of law that he is dead. However, the date of his death is not discernible from the record, therefore, the point for determination is whether his inheritance had opened seven years after 1947 or before the attestation of Mutation No.2868 or institution of the petitioner’s suit. The point can be conveniently determined in the light of the provisions of Article 124 of the Qanun-eShahadat Order and its interpretation made in Muhammad Sarwar and another V. Fazal Ahmad and another PLD 1987 SC 1. Article 124 of Qanun-e-Shahadat Order clearly spells out that where a person has not been heard of for seven years by those who would naturally have heard of him if he had been alive the burden of proving that he is alive is on the person who affirms it”. (Emphasis provided) 

  Part of judgment 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT

Civil Revision (Against Interim Order) Decree US. 115 C.P.C
2400516.2216-16

2017 LHC 4609

Appointment of a licensed architect or engineer to visit the site and demarcate the plaintiffs’ property, together with appurtenances, if any, with the necessary aid and assistance of the city survey staff

(2000 SCMR 91) 

“ None of the above, can be construed to be an impediment invocable against the impugned judgment. The only thing amiss in the original and the appellate judgments lies in the possibility that completed justice, in accordance with law, may not have been done. Thus, while it was for the plaintiffs to have established the dimensions of their property and while the plaintiffs could succeed only on the strength of their own case, as distinguished from any weakness in the defence, the material on the record suggests that there may have been a piece and parcel of land, catering to an easement, either belonging to one or the other party or both of them, should have embarked upon an inquiry of their own to determine the actual extent of the plaintiffs’ land and the easementry attachments, if any, belonging to either or both of the parties. This, therefore, was fit case for appointment of a licensed architect or engineer to visit the site and demarcate the plaintiffs’ property, together with appurtenances, if any, with the necessary aid and assistance of the city survey staff but, initially, at the expense of the plaintiffs, because it is they who had approached the Court for relief. For such purpose the High Court appeal is remanded. The needful may be done by the Division Bench within four months of the communication, whereafter, depending upon the emerging circumstances, such Bench may either maintain  its earlier findings or come to a different conclusion. This appeal, accordingly, stands allowed in terms, but with no order as to costs.”

 Part of Judgment 

 IN THE LAHORE HIGH COURT,LAHORE JUDICIAL DEPARTMENT

Civil Revision
1803-10

2017 LHC 4755

Contrary in the Vakaltnma putting restriction on the authority of the Advocate to compromise or abandon claim on behalf of the client.

In the case of “HASSAN AKHTAR and others versus AZHAR HAMEED and others” (PLD 2010 Supreme Court 657) the Hon’ble Supreme Court of Pakistan, while dealing with the issue akin to issue in hand held as under :- 

“13. It is by now well-settled that an Advocate has authority to make statement on behalf of his client, which is binding upon the client, unless there is any thing contrary in the Vakaltnma putting restriction on the authority of the Advocate to compromise or abandon claim on behalf of the client. The Advocate’s power in the conduct of a suit allows him to abandon the issue, which in his discretion, advisable in the general interest of his client.” 

The above view was previously affirmed in the case of “AFZAL and others versus ABDUL GHANI” (2005 SCMR 946). 

 Part of judgment 

IN THE LAHORE HIGH COURT, RAWALPINDI BENCH, RAWALPINDI 

Civil Revision
891-12

2017 LHC 2523

Exercising jurisdiction under Article 204 of the Constitution or under the provisions of Contempt of Courts Ordinance 2003,

It is expedient to reproduce the nutshell of the judgment reported as Dr. Nazeer Saeed v. Muhammad Javaid and 16 others (PLD 2014 Lahore 660), last in series in this regard:- 

“Upon going through the above cited law and the judgments on the subject, it becomes crystal clear that while exercising jurisdiction under Article 204 of the Constitution or under the provisions of Contempt of Courts Ordinance 2003, the Court can only “PUNISH” the contemnor and no more. Even if, for a while, this is presumed that the Court could look into the vires of an order passed in pursuance to its direction, it can only do the same with the perspective of punishing the contemnor”.

  Part of judgment 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT

I.C.A (Civil) Contempt
31697-17

2017 LHC 2135

Adds, this Court is not competent to take cognizance of civil contempt committed in respect of an order of Civil Court passed under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908.

4. Contention of learned counsel for the appellant is that the Arbitrator was not a party before the learned trial Court nor any relief had been sought against him by the parties of the suit rather the parties were allowed to avail the remedy provided under Article 18 of the agreement–Arbitration proceedings, therefore, the learned Judge-in-Chamber travelled beyond his jurisdiction while issuing direction to the Arbitrator. No direction of any nature, negative or positive, can be passed by a Court while exercising jurisdiction under Contempt of Court Ordinance, 2003. Adds, this Court is not competent to take cognizance of civil contempt committed in respect of an order of Civil Court passed under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908. Reliance is placed on Syed Yousaf Raza Gillani, Prime Minister of Pakistan v. Assistant Registrar, Supreme Court of Pakistan and another (PLD 2012 SC 466), Justice Hasnat Ahmad Khan and others v. Federation of Pakistan/State (PLD 2011 SC 680), Dr. M. O. Ghani, Vice-Chancellor, University of Dacca v. Dr. A.N. M. Mahmood (PLD 1966 SC 802), Muhammad Siddique v. Mr. Basit, Additional Director, K.D.A. and 2 others 1991 MLD 1832 (Karachi), Bimal Chandra Sen v. Kamla Mathur and Anr 1983 CriLJ 495), Rudraiah v. State of Karnataka and Ors. AIR 1982 Kant 182, Dalib Singh v. Ram Nath and Anr. 2003 CriLJ 2984, Shiv Nath Prasad Khandelwal v. Ram Kuma, District Magistrate and Anr. 2003 CriLJ 1853, Dr. Nazeer Saeed v. Muhammad Javaid and 16 others (PLD 2014 Lahore 660), Mehdi Hassan, Additional Secretary, Food and Forests Department, Government of West Pakistan and another v. Zulfiqar Ali, Conservator of Forests, Development Circle, Lahore PLD 1960 (W.P.) Lahore 751, Prithawi Nath Ram, v. State of Jharkhand and others AIR 2004 SC 4277, State of Bihar and others v. Rajendra Singh and another, AIR 2004 SC 4419, K.G. Derasari and another v. Union of India and others (2001) 10 Supreme Court Cases 496, Muhammad Swaleh and another v. Messers United Grain & Fodder Agencies (PLD 1964 SC 97), Mian Sultan Ali Naghiana v. Mian Nur Hussain (PLD 1949 Lahore 301), S.M. Waseem Ashraf v. Federation of Pakistan through Secretary, M/o Housing and Works, Islamabad and others (2013 SCMR 338) and Abdul Haleem v. Raja Qurban Hussian and others PLD 1965 (W.P.) Lahore 570.  

 Part of judgment 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT

I.C.A (Civil) Contempt
31697-17

2017 LHC 2135


Case concerning application under Section 73 of the Ordinance for the revocation of the trademark.

21. The learned counsel for Himont referred to Royal PVC (Pvt.) Ltd. through Authorized Officer v. Registrar of Trade Marks and another (2011 CLD 833) which was a case concerning application under Section 73 of the Ordinance for the revocation of the trademark. It was held in this judgment that the application ought to be filed with the Registrar and the only exception which allows the filing of such an application before the High Court if proceedings were already pending with the High Court. This precedent can be cited as a complete answer to the arguments raised by the learned counsel for the applicant that the applicant has a choice to file the proceedings either before the High Court or before the District Court. Messrs H & B, General Trading Company through Director v. Messrs International Marketing Company through Proprietor and 2 others (2009 CLD 1028) is a Division Bench judgment of the Karachi High Court which held that proceedings under Section 73 and 80 of the Ordinance require such proceedings to be filed before the forum where proceedings concerning the trademark is already pending. This judgment is on all fours with the facts in the instant application and primarily supports the findings rendered in the instant application. The Division Bench came to the conclusion that all such proceedings must be decided by the same forum and this was based on sound principles of administration of justice and judicial governance and proceeded thereafter to return the application to be filed at the proper forum. The appeal before the Division Bench arose out of a judgment of the Single Bench of the Karachi High Court reported as 2009 CLC 354 which substantially arrived at the same conclusion which was affirmed by the Division Bench. 

 Part of judgment 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT

Civil Original (Civil)
751-10

2017 LHC 2017

Pre-emptor must prove the factum of Talb-i-Ishhad by producing affirmative evidence which is always recorded before the evidence of a defendant.

 5. There is no substance in the arguments raised by the learned counsel for the petitioner as Hon’ble Supreme Court of Pakistan in Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105) and Allah Ditta through L.Rs and others Vs Muhammad Anar (2013 SCMR 866) has already held that the pre-emptor must prove the factum of Talb-i-Ishhad by producing affirmative evidence which is always recorded before the evidence of a defendant. Even otherwise proving of Talbs is mandatory and no question does arise of making a specific plea vis-à-vis its effectiveness by the defendant by producing affirmative evidence. Besides this, examining of record further reveals that the petitioner/plaintiff took a specific plea in his plaint that the respondent/defendant/vendee had refused to receive notice of Talb-i-Ishhad, whereas the sealed envelope dispatched to the respondent/vendee at his address received back unserved had not been produced in the Court rather photocopy of notice of Talb-iIshhad, envelope alongwith acknowledgement due and receipt of Post Office were alleged to have been attached with the plaint, whereas neither the original sealed envelope alongwith acknowledgement due were produced in evidence nor the same had been exhibited reflecting from record. Due course in case of return of un-served notice of Talb-i-Ishhad is that the sealed envelope alongwith acknowledgement due containing report of refusal or otherwise of Postman received back by the plaintiff must be produced in the Court and the Court in presence of the parties by de-sealing the envelope not only exhibits the original notice of Talb-i-Ishhad but also the acknowledgement due and envelope should always be exhibited to confirm that the envelope contains the same notice of Talb-i-Ishhad which was sent to the defendant/vendee. The above noted deficiency in the evidence sufficiently established that the petitioner/plaintiff failed to discharge his mandatory obligation in accordance with law.

Part of judgment 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT

Civil Revision
2570-11

2017 LHC 4791

Plaintiff sought decree on the basis of oral agreement

7. This is a case where plaintiff sought decree on the basis of oral agreement. The decree as prayed for in the plaint could be issued in favour of the plaintiff provided he would have firstly mentioned in the plaint: 

(i) the date, month, time and name of persons before whom the oral agreement stood concluded; 

(ii) the complete details of the terms and conditions of sale; and, 

(iii) a satisfactory explanation for not reducing the terms and conditions of sale into writing and thereafter corroborate the same through reliable oral and as well as documentary evidence. 

The above requirements of law were not complied with by the plaintiff. In fact the plaint was silent about all the above cited necessary details of the oral agreement to sell. This omission was fatal. The evidence which was led by the plaintiff was beyond pleadings and, therefore, it could not be read and relied upon. The documentary evidence was also not brought on record through witnesses and therefore, the same as per principle settled in the case of “Khan Muhammad Yousaf Khan Khattak V. S.M Ayub and 2 others” (PLD 1973 SC 160), “Messrs Aluminium Processing Industries International (Pvt.) Ltd., through Director and Chairman and another Karach. V. Federation of Pakistan through Chairman, Central Board of Revenue, Islamabad and 2 others” (2003 PTD 1411) and “Federation of Pakistan through Secretary Ministry of Defence and another V. Jaffar Khan and others” (PLD 2010 SC 604) could not be taken into consideration by the court. Even otherwise documents produced by the plaintiff were not title documents and, therefore, were of no significance. These aspects of the case were taken into consideration by the learned trial court and, thus, it rightly dismissed the suit of the plaintiff. Since, the learned first appellate court proceeded on incorrect premises, its judgment and decree are not valid.  

 Part of judgment 

IN THE LAHORE HIGH COURT, RAWALPINDI BENCH, RAWALPINDI 

Civil Revision
75-D-10

2017 LHC 2119

Necessary to prove the factum of Talb-i-Ishhad and this deficiency in his evidence alone is sufficient to dismiss the suit

3. Learned counsel for the petitioner on last date of hearing i.e. 24.05.2018, when confronted about missing of the testimony of the postman which was necessary to prove the factum of Talb-i-Ishhad and this deficiency in his evidence alone is sufficient to dismiss the suit in view of law declared by Hon’ble Supreme Court in cases reported as Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105) and Allah Ditta through L.Rs and others Vs Muhammad Anar (2013 SCMR 866), he obtained a short date to advance his arguments in this regard. Today, he pointed-out that the written statement of the respondent/defendant/vendee qua the query raised i.e. the factum of Talb-i-Ishhad was silent as no specific plea regarding denial of issuance or service of notice has been alleged and his evasive denial in respect of whole sentence is no denial in the eye of law. Moreover, the respondent, when appeared in the witness box, in his testimony admitted receiving of notice of Talb-i-Ishhad. In such eventuality, it was not mandatory for the petitioner/plaintiff to produce the postman for recording his testimony with regard to effectiveness of notice of Talb-i-Ishhad .

Part of judgment 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT

Civil Revision
2570-11

2017 LHC 4791

These judgments elaborate upon the concept and contours of Order VII, Rule 11 CPC.

20. The learned counsel for the applicant relied upon Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others (1994 SCMR 826), Rafiuddin v. Karachi Metropolitan Corporation and 2 others (1994 MLD 874) and Iqbal Begum v. Farooq Inayat and others (PLD 1993 Lahore 183). These judgments elaborate upon the concept and contours of Order VII, Rule 11 CPC. However, in my opinion, it is not necessary to allude to these precedents as the concept is very well settled and the issue regarding the applicability or otherwise of Order VII, Rule 11 CPC does not arise as it is not denied that in these proceedings the general provisions of civil procedure apply and in case this Court comes to the conclusion that the present proceedings are caught by the mischief of sub-section (4) of section 80 of the Ordinance, this Court has the power to make necessary directions in order to give effect to those provisions and there is no cavil with this proposition.

  Part of judgment 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT

Civil Original (Civil)
751-10

2017 LHC 2017

literary meaning and the, interpretation of the word 'proceeding'

It would suffice to refer to a judgment of the Supreme Court of Pakistan reported as the State through Advocate General, N.W.F.P., Peshawar v. Naeemullah Khan (2001 SCMR 1461) for an elaboration to the term ‘proceedings’. It was held that:-

 “Keeping in view the literary meaning and the, interpretation of the word 'proceeding' as interpreted in various pronouncements given above, we are of the opinion that the word 'proceedings' is a comprehensive expression which includes every step taken towards further progress of a cause in Court or Tribunal, from its commencement till its disposal. In legal terminology the word "proceedings" means the instituting or carrying on of an action of law. Generally, a 'proceeding' is the form and manner of conducting judicial business before a Court or judicial officer, including all possible steps in an action from its commencement to the execution of a judgment and in a more particular sense it is any application to a Court of justice for aid in enforcement of rights, for relief, for redress of injuries, or damages or for any remedial object. It in its general use comprehends every step taken or measure adopted in prosecution or defence of an action.” 

  Part of judgment 

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT

Civil Original (Civil)
751-10

2017 LHC 2017

Before recording his fresh judgment the learned trial Court shall afford reasonable opportunity to the parties to address arguments.

It do it expedient to reproduce the guidance given in the judgment reported as Anwar Club and another vs Muhammad Sarwar (PLD 1992 Lahore 63) to carryout the demarcation. “

i) Tehsildar, Sialkot, shall be appointed as Local Commissioner to demarcate the land mentioned in the plaint. 

ii) He shall do the aforesaid exercise personally in accordance with the aforesaid law and rules relating to demarcation of land.

 iii) The Local Commissioner shall also record such evidence as might be produced before him by the parties.

iv) On the receipt of the report of the Local Commissioner the learned trial Court shall invite objections of the parties, and if objections were received, they would be disposed of in accordance with law.

 v) Before recording his fresh judgment the learned trial Court shall afford reasonable opportunity to the parties to address arguments.”  

  Part of Judgment 

 IN THE LAHORE HIGH COURT,LAHORE JUDICIAL DEPARTMENT

Civil Revision
1803-10

2017 LHC 4755

Mandatory to avail the right of Talb-i-Khasoomat and deficiency in this regard entails dismissal of suit as declared fatal in a case

Mandatory to avail the right of Talb-i-Khasoomat and deficiency in this regard entails dismissal of suit as declared fatal in a case reported as Khan Afsar vs. Afsar Khan and others (2015 SCMR 311), relevant portion whereof is as under:-

 “The fact that the notice was merely sent would not suffice for the making of Talb-i-Ishhad. The vendee must be apprised about the intention of the preemptor. The acknowledgement due slip that was presented (Exhibit P.W.6/2) was also signed by the said Rashid Khan, and not by Muhammad Aslam Khan. Therefore, it cannot be stated that the requisite Talb-iIshhad had been made. The notice should have been served upon the vendee/addressee, Muhammad Aslam Khan.” 

 Part of Judgment 

 IN THE LAHORE HIGH COURT,LAHORE JUDICIAL DEPARTMENT

Civil Revision-Civil Revision(Against Decree)-Suit for Possession
2599-10

2017 LHC 5087

Could not be of any advantage to them for claiming the share on the basis of section 20 of the Act.

Collector, Bahawalpur v. Haji Muhammad PLD 1976 SC 469 and Hakim Ali v. Muhammad Salim and another 1992 SCMR 46. It is expedient to reproduce the relevant paragraph of said case-law:- 

“In this case, as pointed out above, the respondent never took up the defence of having purchased the share in the Khata and this is the reason why no issue was framed; this plea was never a part of their appeal or grounds of revision, therefore only for the reason that they were able to produce in the evidence, the mutation No.2518 could not be of any advantage to them for claiming the share on the basis of section 20 of the Act. The arguments that such mutation has been admitted in evidence by the trial Court without any objection from the petitioner, suffice it to say that even that being so, the evidence which is brought on the record by a litigant, even not subjected to objection by the opposing side, but it is outside the purview of his pleadings, should not be looked into by the Court, rather should be ignored. Resultantly the High Court on account of the above could not consider the said mutation and grant relief to the respondent, which was not within the parameters of their defence. The learned High Court in this regard has committed a grave illegality in the exercise of its jurisdiction, thus the impugned judgment cannot sustain in law. 

  Part of Judgment 

 IN THE LAHORE HIGH COURT,LAHORE JUDICIAL DEPARTMENT

Civil Revision-Civil Revision(Against Decree)-Suit for Possession
2599-10

2017 LHC 5087

Plaint of the suit may be rejected by accepting application under Order VII Rule 11, C.P.C.

3. Learned counsel for the petitioners while relying upon Mubarak Ahmad, etc v. Hassan Muhammad (2002 SCJ 172 and Ch. Javed Iqbal v. Mst. Zainab Bibi and 8 others 2005 CLC 197 (Lahore) contends that both the learned Courts below failed to consider the law laid down by Hon’ble Supreme Court as well as this Court inasmuch as non-fulfillment of deficiency of court fee within the time stipulated by the Court, the Court had no option except to reject plaint declaring the act of the delinquent as contumacious, therefore, both the learned Courts below have failed to exercise the jurisdiction vested with them within the parameters framed by Hon’ble Supreme Court as well as this Court in the judgments referred ibid, hence the orders impugned are nullity in the eye of law and same may be set-aside declaring the same illegal, unlawful and in consequence whereof the plaint of the suit may be rejected by accepting application under Order VII Rule 11, C.P.C. 

 Part of Judgment 

 IN THE LAHORE HIGH COURT,LAHORE JUDICIAL DEPARTMENT

WP- Civil Suit
1759-11

2017 LHC 4774

Normally not interfered with in revision but in cases where the finding of fact has been recorded either by ignoring the material evidence on record or as a result of complete misdirection and missing the real issues in controversy

(1984 CLC 935) 

“ It is no doubt true that finding on questions of fact is normally not interfered with in revision but in cases where the finding of fact has been recorded either by ignoring the material evidence on record or as a result of complete misdirection and missing the real issues in controversy, no such sanctity would attach to that finding whether that be of fact or law. In the present case, I have been left with the impression that the two Courts below have adopted rather relaxed attitude and not realized the seriousness of the allegations and that valuable rights of two parties were involved and these rights are not to be dealt with in a cursory manner. It is bounden duty of the civil Courts not to get caught up in technicalities or hyper-technicalities as the case may be, but try to reach the truth because all jurisdictions are designed for that purpose. In a matter of this nature all that was required to be done was to hold a proper inquiry. The Court have appointed a commission who could have submitted his report after associating both the parties and carried out the measurement at the site and worked out the area which was being claimed by the two parties on the basis of transfer under Settlement Scheme No. VII as well as on the basis of allotment made by the Settlement and Rehabilitation authority, the cat would have been out of bag within 10 minutes. There has been failure of justice in this case and that has obliged me to come to the aid of petitioners by setting aside the impugned orders and sending the case back to the learned trial Court.”

 Part of Judgment 

 IN THE LAHORE HIGH COURT,LAHORE JUDICIAL DEPARTMENT

Civil Revision
1803-10

2017 LHC 4755

He controversy between the parties qua contiguity is factual in nature hence it has to be proved through evidence.

Case law reported in Muhammad Akram and another v. Mst. Farida Bibi and others (2007 SCMR 1719), relevant portion whereof is as under:- 

“As mentioned above, Aks Shajra, has to prove by the respondents/plaintiffs by producing Patwari, therefore, this document did not explain and prove the fact of contiguity. The controversy between the parties qua contiguity is factual in nature hence it has to be proved through evidence.”

  Part of Judgment 

 IN THE LAHORE HIGH COURT,LAHORE JUDICIAL DEPARTMENT

Civil Revision-Civil Revision(Against Decree)-Suit for Possession
2599-10

2017 LHC 5087

Clear the demand of Talb-i-Ishhad is to be expressly made in presence of two witnesses and for its prove, it is mandatory that both be examined and face the test of cross-examination to determine their truthfulness.

 Reliance in this regard is placed on Akbar Ali v. Muhammad Abdullah (2007 SCMR 1233) and Mst. Rooh Afza v. Aurangzeb and others (2015 SCMR 92). In the former judgment, it has been observed as under:- 

“On perusal of above provisions Mahomedan Law as well as of Punjab Pre-emption Act it is clear the demand of Talb-i-Ishhad is to be expressly made in presence of two witnesses and for its prove, it is mandatory that both be examined and face the test of cross-examination to determine their truthfulness.” 

However, in the latter referred case-law, it has been held that, 

“Besides, in our opinion, non-appearance of the other attesting witness of “Talb-i-Ishhad” regarding the exercise of right of pre-emption, by the appellant is also fatal to her case. Moreso, as even if at the relevant time he was in Dubai, he could have come to Pakistan to appear in the witness box in support of his mother’s claim. The submission of Mr. Kiyani in this regard with reference to Article 17 of the Qanun-e-Shahadat Order, 1984 has also no relevance, as the said Article of Qanun- e-Shahadat Order, 1984 has not diluted the affect of Article 79 of the said Order, particularly in a suit for preemption, which as per legal requirement of section 13 of the Khyber Pakhtunkhwa Pre-emption Act, required attestation of the notice of Talb-i-Ishhad by two truthful witnesses, who could depose as to the same before the Court. The ratio of the case of Abdul Khan (supra) and the case of Muhammad Mal Khan (supra) cited by the learned Advocate Supreme Court for the respondents fully endorses this view.”

 Part of Judgment 

 IN THE LAHORE HIGH COURT,LAHORE JUDICIAL DEPARTMENT

Civil Revision-Civil Revision(Against Decree)-Suit for Possession
2599-10

2017 LHC 5087

Respondents has vehemently opposed this civil revision and fully supported the impugned judgments and decrees.

4. On the other hand, learned counsel for the respondents has vehemently opposed this civil revision and fully supported the impugned judgments and decrees. He has placed reliance on the dictums laid down in cases titled Ghulam Murtaza v. Mst. Asia Bibi and other (PLD 2010 SC 569), Muhammad Nawaz Minhas and others v. Mst. Surriya Sabir Minhas and others (2009 SCMR 124), Muhammad Sher and another v. Muhammad Sher and others (1986 SCMR 1592) and Chuttal Khan Chachar v. Mst. Shahida Rani and another (2009 CLC 324 Karachi).

 Part of Judgment 

 IN THE LAHORE HIGH COURT,LAHORE JUDICIAL DEPARTMENT

Civil Revision (Against Interim Order) Decree US. 115 C.P.C
3123/15

2017 LHC 3590

Permitted to lead additional evidence but the petitioners were not allowed to rebut those documents which were produced by predecessor-ininterest of the respondents;

5. Learned counsel for the petitioners submits that as predecessor-in-interest of the respondents did not produce copy of mutation No.652 during the course of affirmative evidence she could not be allowed to produce the same at the time of recording of evidence in rebuttal; that in the garb of additional evidence, the predecessor-in-interest of respondents could not be allowed to improve her case and remove lacunas surfaced on the scene after recording evidence of the parties; that though predecessor-in-interest of the respondents was permitted to lead additional evidence but the petitioners were not allowed to rebut those documents which were produced by predecessor-ininterest of the respondents; that as predecessor-in-interest of the respondents only produced part patwar of mutation No.652, the same could not be brought on record through the statement of the learned counsel for predecessor-in-interest of the respondents as it had no sanctity in the eye of law; that the hollowness of the claim of predecessor-in-interest of the respondents/the respondents is clear from the fact that the land mentioned in the plaint does not tally with that mentioned in the mutation and that it is a fit case for remand. To fortify his contentions learned counsel for the petitioners has relied upon the cases reported as Farman Ali v. Muhammad Ishaq (PLD 2013 SC 392), M/s Bata Shoe Company and 2 others v. Muhammad Arshad Siddiqui (1991 SCMR 1775), Tariq Mehmood v. Contractor Ahmed Din and 4 others (2009 PSC 724), Allah Diwaya and others v. Mst. Sukah Khatoon and others (2012 MLD 1300), Mst. Sharman and 11 others v. Syed Ali Hussain and 8 others (2006 YLR 130), Haji Nazir Muhammad Khan and others v. Maulvi Muhammad Hassan and others (2006 PLR 573), Haji Abdul Ghafoor Akhtar v. Malik Tahir Mukhtar Asghar (2001 CLC 1721), Naseer Ahmed v. District Judge Multan and 4 others (PLD 1992 Lahore 92), Rana Muhammad Shabbir (deceased) through his L.Rs. v. Muhammad Ismail and 3 others (1990 CLC 546) and Murid Hussain v. Muhammad Lal (1987 CLC 101).

 Part of Judgment 

 IN THE LAHORE HIGH COURT BAHAWALPUR BENCH, BAHAWALPUR

Civil Rev. Against Decree

337-09

2017 LHC 4412

Failed to prove execution of valid gift in favour of their predecessor-in-interest by predecessor-in-interest of the respondents.

14. Another important facet of the instant case is that there is nothing on record that at the time of gift predecessor-in-interest of the respondents being female had the facility of independent advice from a male member, especially when she was only twelve years of age. The Apex Court of the Country in the cases reported as Syed Sharif ul Hassan through L.Rs v. Hafiz Muhammad Amin and others (2012 SCMR 1258), Muhammad v. Mst. Rehmon through Mst. Sharifan Bibi (1998 SCMR 1354) and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) has laid down certain criteria to adjudge the veracity of transaction entered on behalf of a female and if the present case is adjudged on the basis of parameters laid down in the afore-referred judgments, the findings of the Courts below seems to be unexceptionable especially when the petitioners failed to prove execution of valid gift in favour of their predecessor-in-interest by predecessor-in-interest of the respondents. 

 Part of Judgment 

 IN THE LAHORE HIGH COURT BAHAWALPUR BENCH, BAHAWALPUR

Civil Rev. Against Decree

337-09

2017 LHC 4412

The ratio, deducible from the preceding examination, is

 14. The aforesaid question after discussing the earlier judgments rendered by superior Courts in pros and cons on the proposition in hand has already been authoritatively clinched by this Court in the judgment reported as Muhammad Ismail Vs. Muhammad Akbar Bhatti (PLD 1997 Lahore 177) and the relevant para No. 7 thereof is reproduced hereunder:- 

“The ratio, deducible from the preceding examination, is:

 Firstly, that decree passed by court, in an action for specific performance of agreement of sale, is in the nature of preliminary decree. It actually partakes the character of a contract; vendee has to deposit the purchase price, cost for purchase of necessary stamps for the execution of conveyance deed and so on so forth; while the seller had to appear in the Court, sign the conveyance deed and receive purchase price. In these state of affairs, it clearly follows that decree, passed in such an action, is not final but preliminary in nature and the court passing the decree retain seisin over the lis and has power to enlarge/extend the time for payment of purchase price fixed therein. The court, however, had to pass such orders after objectively assessing the merits of such applications. 

Secondly, Specific Relief Act is an adjective law and substantive law is to be looked for elsewhere. It presents a codification of principles derived from long series of precedents and practices of English Courts of Equity. Specific Relief Act so is based upon principle of Equity, reason and good conscience. The most leading principle is that ‘who comes to get the equity, must do equity to others’. 

Thirdly section 35 of the Specific Relief Act lays down a procedure for rescission of the written contract. It applies to both vendor and vendee. Any one of such party may move the Court by motion in the action for an order for putting an end to contract. This mechanism is, however, subject to following limitation/namely where the trial court has decreed the suit for specific performance of contract subject to condition that purchase price shall be deposited in court within a specific time and also ordered that if that money is not put in within that time, the suit shall stand dismissed, the court has no power to extend the time as in such a case; that the decree by court is final and self-operative and in case of default of payment of purchase price; the mandate of court tantamounts to rescission of the contract. In such a case recourse to section 148 of C.P.C or section 151, C.P.C will not be permissible. 

Fourthly, the court will not allow the plea for extension of time if it finds that it will occasion a wrong to the other side. Furthermore, in order to succeed in an action for specific performance, the plaintiff had to show that he had been willing and ready to perform his part of contract.” 

This view has also been followed by this Court in case reported as Muhammad Iqbal through Legal Heirs Vs. Bashir Ahmad and 19 others (PLD 2002 Lahore. 88).

Part of Judgment

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN. 

Civil Rev. Against Decree

419-12

2017 LHC 4490 

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