(i) the plaintiff was prosecuted by the defendant,
In some events the person denying its execution has to prove that it was not executed but in some cases the beneficiary of the document has to prove that it was validly executed. The usual denial from the execution of document is on the grounds
2021 C L C 87
Scope---Petitioner filed suit for specific performance, defendant during pendency of the suit transferred the suit property in favour of others, subsequent purchasers were impleaded as parties in the suit on their application under O.I, R.10, C.P.C. and the petitioner filed application under O.VI, R.17, C.P.C. for amendment to the extent of cancellation of mutations in favour of subsequent purchasers, which was concurrently dismissed---Validity.
2021 S C M R 1068
PLJ 2021 Lahore 603
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 115 & O.XXXVII--Suit for recovery--Application for permission to producing of additional evidence--Dismissed--Competence of application for additional evidence--Grounds for permission--Non-availability of grounds--Challenge to--No application for additional evidence is competent before trial Court, though an application for permission to produce further evidence is competent--Grounds for permission to produce further evidence are synonymous with a slight difference--For permission to produce further evidence is also a discretion of Court if Court is satisfied that for determination of real controversy in question between parties evidence is necessary, only then permission can be granted--mover of application is further obliged to satisfy Court that either evidence sought to be produced was not in knowledge of petitioner or circumstances beyond control of petitioner that evidence could not be produced at relevant stage--None of said grounds are available in application and when trial Court has exercised jurisdiction vested in it by law this Court cannot differ with order passed validly by a Court of competent jurisdiction--Revision petition dismissed.
[P. 604] A & B
Rai Ashfaq Ahmed Kharal, Advocate.
Date of hearing: 18.1.2019.
Order
Through this civil revision the petitioner, who is defendant in a suit filed under Order XXXVII of the CPC for recovery against the petitioner, has challenged the order dated 24.11.2018 passed by the learned District Judge/trial Court whereby an application moved by the petitioner for permission to produce additional evidence was dismissed.
2. I have heard the preliminary arguments advanced by the learned counsel for the petitioner at length and also gone through the record available on the file.
3. The suit was filed on the basis of a cheque under Order XXXVII of the CPC on 27.09.2014. The leave was granted and written statement was filed. After framing of issues the parties were directed to produce their evidence. The pendency of suit for the last more than five years speaks volumes. The petitioner/defendant after completion of his evidence moved an application for permission to produce additional evidence, same has been dismissed by the learned trial Court vide impugned order.
application and when the learned trial Court has exercised the jurisdiction vested in it by law this Court cannot differ with the order passed validly by a Court of competent jurisdiction. Therefore, I see no force in this civil revision as there is no defect in the order passed by the learned trial Court. Consequently, same stands dismissed in limine.
(Y.A.) Revision petition dismissed
PLD 2021 SC 373
PLJ 2021 SC 113
Sindh Local Government Act, 2013 (XLII of 2013)--
----S. 36(1)(i)--Appellant was a government contractor the disqualification under Section 36(1)(i) of Act, 2013, does not apply to appellant because the disability thereunder extends to a contractor of a local Council. [P. 114] A
Constitution of Pakistan, 1973--
-----Art. 63(1)--Applicability of law--Scope of disqualification--Modification of--Question of--Whether appellant is disqualified under clause (i) of Section 36(1) of Act because that would attract clause (1) of Art. 63(1) of Constitution--Challenge to--Scope of disqualifications under Art. 63(1) have been modified in Act to cater to requirements of elected representatives of local Councils-- Modifications of disqualifications contained in Art. 63(1) of Constitution for incorporation into Act have made Provincial Legislature's intention clear about nature and extent of disability of candidates for election to a Council under Act--Supreme Court are not inclined to agree with impugned judgment that appellant is disqualified under clause (j) of Section 36(1) of Act for admittedly being a Government Contractor--Relevant disqualification is Section 36(1)(i) which disbars only a contractor of Council and not a contractor of Government--Findings recorded in impugned judgment of ECP dated 16.01.2018 and affirmed by High Court in its impugned judgment were in error--Appeal allowed.
[Pp. 116 & 117] B & C
Mr. Zulfiqar Khalid Maluka, Advocate Supreme Court for Appellant.
Mr. Afnan Karim Kundi, Advocate Supreme Court for Respondent No. 5.
Syed Shabbir Shah, Additional A.G. Sindh for Government of Sindh.
Date of hearing: 11.3.2020.
Order
Umar Ata Bandial, J.--The learned High Court through the impugned judgment dated 31.05.2019 has upheld the findings of the learned Election Commission of Pakistan ("ECP") vide its order dated 16.01.2018, which held as follows:
"In the light of above discussion, we are of the considered view that respondent violated the provisions of Section 36(1)(i)(j) and Section 80(2) of the Sindh Local Government Act, 2013 and Article 63(1)(1) of the Constitution. It is proved through the documentary evidence that respondent was a Government contractor (owner of Dhatti one Transport Company Umerkot) and received a huge amount of Rs. 40,27,450/- from Government. Being a Government Contractor the respondent was not eligible to file nomination papers or take part in the Local Government Election held in 2015 for the seat of Member, Town Committee, Kheme Jo Par and thereafter for the seat of Chairman of the said Town Committee. The petition is accepted."
2. Learned counsel for the appellant has contended that the disqualification of the appellant is confined to Section 36(1)(i) of the Sindh Local Government Act, 2013 ("the Act"), which reads as follows:
Admittedly, the appellant is a Government Contractor but he is not a Contractor with any Council nor does he have any direct pecuniary interest in the affairs of such Council. Consequently, it is submitted that the appellant has been wrongly disqualified for holding the elected office of the Chairman, Town Committee, Kheme Jo Par, District Tharparkar Sindh. The learned counsel for the appellant has then urged that the ECP is the original forum for directing removal of a member of a Council under Section 36(2) of the Act. No appeal is provided against such decision of the ECP. On the other hand, the ECP is the appellate forum under Section 30 of the Act against a similar direction for removal of a member of the Council by the Provincial Government under Section 25 of the Act. There is a duality of roles of the ECP in respect of the same relief which can lead to a conflict.
3. Learned counsel for the respondents submit that the impugned order of the ECP dated 16.01.2018 not only disqualifies the appellant under clause (i) of Section 36(1) of the Act but also on the basis of clause (j) of the said section. The language of that clause is reproduced below:
(j) "he is for the time being disqualified or chosen as a member of the Provincial Assembly under any law for the time being in force."
His submission is that clause (j) ibid is a residuary or blanket provision that incorporates additional disqualifications in Article 63(1) of the Constitution. Consequently, the admitted status of the appellant as a Government Contractor attracts the sanction under Article 63(1)(1) of the Constitution which disqualifies a candidate who is a Government Contractor. It applies fully to the appellant and therefore he is disqualified in the present election.
4. After hearing the learned counsel for the parties, it transpires that since the appellant is a Government Contractor the disqualification under Section 36(1)(i) ibid does not apply to the appellant because the disability thereunder extends to a contractor of a local Council. Accordingly, the only issue in controversy between the parties is whether the appellant is disqualified under clause (j) of Section 36(1) of the Act because that would attract clause (1) of Article 63(1) of the Constitution. The language of clause (j) ibid leaves much to be desired because it is not clear how "disqualified or chosen as a member of the Provincial Assembly" makes any sense. If as suggested by the learned counsel for the respondents, the words 'or chosen' are to be ignored to arrive at the intended meaning then that amounts to ignoring the literal words and to reading down in order to ascertain the meaning of the statutory provision. On the other hand, if the words "from being elected" are read into the said provision after the word "disqualified" then such reading in is also avoided by the courts unless the intention of the law maker is clear. To ascertain the intention of the law maker if one looks at the other provisions of Section 36(1) ibid, it is noticeable that these reproduce almost verbatim clauses (a), (b), (c) and (d) of Article 63(1) of the Constitution. Clause (c) of the Act, that reproduced clause (c) of Article 63(1) of the Constitution, was subsequently repealed on 27.08.2015. Clauses (f) and (g) of Section 36(1) ibid correspond with the terms of clauses (h) and (g) of Article 63(1) of the Constitution but with the reduction of the period of disqualification. Clause (h) of Section 36(1) ibid mirrors the provisions of clauses (i) and (j) of Article 63(1) of the Constitution. In the same manner clause (i) of Section 36(1) ibid adopts the disqualification listed in clause (1) of Article 63(1) of the Constitution. The scope of the disqualifications under Article 63(1) have been modified in the Act to cater to the requirements of elected representatives of local Councils. In the above context, the modifications of the disqualifications contained in Article 63(1) of the Constitution for incorporation into the Act have made the Provincial Legislature's intention clear about the nature and extent of disability of candidates for election to a Council under the Act. The statedly general or blanket disqualification incorporated through clause (j) of Section 36(1) of the Act, therefore, cannot again import the disqualifications under Article 63(1) of the Constitution that have already been incorporated with modification in clauses (a) to (d), (f), (g), (h) and (i) of Section 36(1) of the Act. Otherwise, clause (j) of Section 36(1) ibid would either be repeating the incorporated disqualifications from Article 63(1) of the Constitution or undoing the modifications made thereto in Section 36(1) of the Act. Although clause (j) of Section 36(1) ibid is unclear and vague, we are not convinced that clause (j) of the Act intends to repeat what is already stated in clauses (a) to (i) of Section 36(1) of the Act. Accordingly, the rule of reading in or reading down is not attracted to the facts of this case. The application of such an aid while interpreting or construing a statutory provision has been dealt with in the case reported as Abdul Haq Khan and others v. Haji Ameerzada and others (PLD 2017 SC 105, at page 117):
particular provision leads to manifestly absurd or anomalous results, which could not have been intended by the legislature. However, this power is to be exercised cautiously, rarely and only in exceptional circumstances."
5. The Provincial Government is also directed to re-examine and amend the language of Section 36(1)(j) of the Act as necessary to bring it in conformity with the intention of the legislature.
(Y.A.) Appeal allowed
