Bona fide purchaser for valuable consideration without notice--Scope--- Agreement to sell immoveable property-

 2021 SCMR 1241

Bona fide purchaser for valuable consideration without notice--Scope--- Agreement to sell immoveable property---Vendee failing to pay balance consideration within stipulated time---Vendor selling property to third party/petitioner---Whether petitioner entitled to protection under S. 41 of the Transfer of Property Act, 1882 and S. 27(b) of the Specific Relief Act, 1877---Held, that the sale was recorded by the Patwari and the transaction between the seller and petitioner stood finalized before the suit for Fact that the specific performance was filed by the vendee --- sale was subsequently sanctioned, when neither party thereto had repudiated the sale, would be of little significance as it was an administrative act of the revenue authorities, and one over which the petitioner and seller had no control---Petitioner had demonstrated that the transaction stood completed and the entire sale consideration had been paid before the suit was filed and he had also received possession of the land, therefore, he was entitled to the protection accorded to him by S. 41 of the Transfer of Property Act, 1882 and S. 27(b) of the Specific Act.

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--O.XLI R. 31--Suit for declaration, permanent injunction, cancellation of mutation--

 PLJ 2021 Quetta (Note) 129

Civil Procedure Code, 1908 (V of 1908)--

----O.XLI R. 31--Suit for declaration, permanent injunction, cancellation of mutation--Dismissed--Appeal--Concurrent findings--Challenge to--It appears from record that judgment and decree of appellate Court is not according with provisions of Order XLI Rule 31, CPC--It is mandatory upon appellate Court to state points for determination, decision thereon, reasons for decision and where decree appealed from is reversed or varied--Appellate Court should state points for determination and apply its independent judicial mind to controversy involved between parties--Phrase “points for determination” referred in Rule 31 (a) of Order XLI, CPC refers to all important questions involved in case--Revision petition accepted.

                                                                           [Para 3 & 4] A, B & C

2012 YLR 2108 (Sindh) ref.

Mr. Gul Hassan Advocate for Petitioners.

Mr. Bangul Marri Advocate for Respondent No. 1.

Mr. Kaleemullah Kakar Advocate for Respondent No. 3.

Mr. Bilal Mohsin, Advocate for Respondent No. 6 and Mr. Ahmed Yar Assistant Advocate General for official Respondents.

Date of hearing: 6.11.2020.

 PLJ 2021 Quetta (Note) 129
Present: Abdul Hameed Baloch, J.
NIAMATULLAH and 2 others---Petitioners
versus
ESSA KHAN and 9 others--Respondents
C.R. No. 323 of 2016, decided on 18.11.2020.

Judgment

Through this judgment I Intend to dispose of above tilted civil revision petition filed by the petitioners/plaintiffs against the judgments and decrees dated 30th March, 2016 and 30th June, 2016 (impugned judgments and decrees) passed by learned Civil Judge, Duki and learned Additional District Judge, Loralai (trial and appellate Court) respectively, whereby the suit of the petitioners/plaintiffs was dismissed and appeal filed by the petitioners/ plaintiffs was also dismissed.

2. Concise facts of the case are that the petitioners/plaintiffs filed amended representative suit for declaration, permanent injunction, cancellation of Mutation No. 240 dated 16th July, 1975, Mouza Viala Duki and partition of land bearing khasra No. 1066, 1185, 1187, 3-Qilas, measuring 241 rods 33 poles Mouza Viala Duki Halqa Saddar Thsil Duki, which was contested by the respondents/ defendants on legal as well as tactual grounds by filing written statements. The trial Court framed issues, on which the parties led their respective evidence.

On conclusion the learned trial Court heard arguments and thereafter, vide impugned judgment and decree dated 30th March, 2016 dismissed the suit of the petitioners/plaintiffs. Being aggrieved of the same the petitioners/plaintiffs preferred appeal but the same was also dismissed vide impugned judgment and decree dated 30th June, 2016 by learned Additional District Judge, Loralai, hence this revision petition.

3. I have perused the record, which reveals that the petitioners/plaintiffs filed a suit, which was contested by the respondents/defendants by filing separate written statements. On conclusion the trial Court dismissed the suit vide impugned judgment and decree dated 30th March, 2016. The learned appellate Court upheld the judgment and decree of the trial Court vide impugned judgment and decree dated 30th June, 2016. It appears from the record that the judgment and decree of the learned appellate Court is not according with the provisions of Order XLI Rule 31, CPC. It would be appropriate to reproduce Order XLI Rule 31, CPC:

“Order XLI Rule 31. The judgment of the Appellate Court shall be in writing and shall state -

a. the points for determination;

b. the decision thereon;

c. the reasons for the decision; and,

d. where the decree appealed from is reversed or varied, the relief to which the appellant is entitled:

          and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.

4. Under the referred to Rule it is mandatory upon the appellate Court to state the points for determination, the decision thereon, the reasons for the decision and where the decree appealed from is reversed or varied. The appellate Court should state points for determination and apply its independent judicial mind to the controversy involved between the parties. The phrase “points for determination” referred in Rule 31 (a) of Order XLI, CPC refers to all important questions involved in the case. Reference is made to the case of Gul Muhammad v. Kaimuddin 2012 YLR 2018 [Sindh], wherein it was held:

“8. The statutory right of appeal confers the right of rehearing the whole dispute unless expressly restricted in its scope and the appellate Court, is not confined to the reasons which have been given by the subordinate Court or the grounds for its decision. The right of appeal is a substantive and vested right and not as a matter of mere procedure. According to Order XLI, Rule 31, C.P.C., it is mandatory that judgment passed, by the appellate Court shall state the points for determination, the decision thereon, the reasons for the decision and where the decree appealed from is reversed or varied, the relief to which, the appellant is entitled. This rule makes it apparent that for just and proper decision, the appellate Court should state the points for determination and apply its independent judicial mind to the controversy involved between the parties and also examine the record for the purposes of pronouncing its judgment. The phrase “points for determination” refers to all important questions involved in the case, therefore, this rule has been incorporated in the Code for framing the points for determination so that the judgment should be self-explanatory, illuminative and in the nature of a speaking order.

9. Every finding of fact is not immune from interference in revisional jurisdiction when the Courts below commit jurisdictional illegality and this concept of jurisdictional illegality has been considered by the honourable Supreme Court in the case of Kanwal Main PLD 1983 SC 53 and held that to cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result, revisional jurisdiction is justified when the findings are based on conjectural presumptions, erroneous assumptions of facts and wrong proposition of law and where unreasonable view on evidence has been taken. In 2010 SCMR 786, Brig. (R) Sher Afghan v. Mst. Sheeren Tahira and others, it was held that by now a well-settled principle of exercise of revisional jurisdiction under Section 115, C.P.C. is that if a finding of first Court of Appeal is based on no evidence or is arbitrary and fallacious, the Revisional Court is not denuded of its power to interfere with such a finding. This view was reiterated in Naziran Begum v. Khurshid Begum 1999 SCMR 1171 wherein it was held a finding on a question of fact arrived at by the First Appellate Court which is based on no evidence or is the result of conjectures or fallacious appraisal of evidence on record is not immune from scrutiny by ihe High Court in exercise of its power under Section 100 or 115, C.P.C. In 2008 SCMR 1454, (Nabi Bakhsh v. Fazal Hussain), it was held that no exception could be taken to the exercise of revisional powers and setting aside of the findings of the lower Courts even if they be concurrent if it had found that the said findings were based on misreading or non-reading of the material available on record. Similarly, in 2007 SCMR 838, (Ch. Muhammad Shafi v. Shamim Khartum, it was held that First Appellate Court has a right to reverse the finding/conclusions of the trial Court while exercising power under Section 96 of the C.P.C. subject to the condition that First Appellate Court has to meet the reasoning of the trial Court in the first instance and thereafter reappraise the evidence on record while reversing the finding of the trial Court as law laid down by this Court in Madan Gopal’s case PLD 1969 SC 617. The High Court has wide power to reverse the finding of the First Appellate Court while exercising power under Section 115, C.P.C. having supervisory jurisdiction.”

In view of the above discussion the instant civil revision petition is accepted. The judgment and decree dated 30th June, 2016 passed by learned Additional District Judge, Loralai is set aside and appeal is remanded to the appellate Court for decision afresh in accordance with the provisions of Order XLI Rule 31, CPC after hearing the parties. The parties are left to bear their own costs.

(M.M.R.)         Petition accepted

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اگر وکیل مخالف پارٹی سے مل جاۓ تو اس کو بھی12 ( 2) کی درخواست میں پارٹی بنایاجاسکتاھے..

1987 S C M R 171

 Decree obtained by fraud‑‑Validity of same challenged on ground that counsel had colluded with opposite party‑‑Petitioner's application under S.151, C.P.C. to delete counsel from list of respondents as he was neither necessary nor proper party to proceedings, not granted‑‑High Court's view that counsel could be impleaded as respondent in application under S.12(2), C.P.C. upheld‑

S. 12(2) & S.151‑­Abuse of process of Court‑‑Counsel colluding with opposite party—Decree obtained by fraud, challenged‑‑Plea that counsel was neither necessary nor proper party, repelled‑‑Counsel could be impleaded as respondent in proceedings under S.12(2), C.P C. in circumstances.

1987 S C M R 171

Present: Aslam Riaz Hussain and Nasim Hasan Shah, JJ

MUNIR AHMAD KHAN‑‑Petitioner

Versus

SAMIULLAH KHAN and another‑‑Respondents

Civil Petitions Nos. 833 and 834 of 1986, decided on 27th October 1986.

(On appeal from the Judgment dated 25‑5‑1986 of the Lahore High Court in Civil Revision Nos. 746 and 747 of 1981).

(a) Constitution of Pakistan (1973)‑‑

‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S. 12(2)—Decree obtained by fraud‑‑Validity of same challenged on ground that counsel had colluded with opposite party‑‑Petitioner's application under 5.151, C.P.C. to delete counsel from list of respondents as he was neither necessary nor proper party to proceedings, not granted‑‑High Court's view that counsel could be impleaded as respondent in application under S.12(2), C.P.C. upheld‑‑Leave to appeal refused.

(b) Constitution of Pakistan (1973)—

‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S. 12(2) & S.151‑­Abuse of process of Court‑‑Counsel colluding with opposite party—Decree obtained by fraud, challenged‑‑Plea that counsel was neither necessary nor proper party, repelled‑‑Counsel could be impleaded as respondent in proceedings under S.12(2), C.P C. in circumstances.

Ch. Muhammad Hasan, Advocate Supreme Court and Rana Maqbool Ahmad, Advocate‑on‑Record for Petitioner.

Muhammad Ghani, Advocate Supreme Court and Inayat Hussain, Advocate‑on‑Record for Respondents Nos. 2 to 6.

Date of hearing: 27th October, 1986.

ORDER

NASIM HASAN SHAH, J.‑‑These two petitions are being disposed of by a common order because they arise also from a common order passed by the learned Single Judge of the Lahore High Court.

The facts necessary to be stated for purposes of this order are that Mr. Amir Ali Malik, Advocate was impleaded as a respondent in an application under section 12(2), C.P.C. (subject‑matter of Civil Petition No.833 of 1986) while Malik Mohammad Salim, Advocate, was impleaded as a respondent in another (subject‑matter of Civil Petition No. 834 of 1986). Both these applications under section 12(2), C.P.C. were filed to challenge the validity of the two decrees on the ground that the Advocates (who were impleaded as) had filed written statements in two suits wherein they accepted the claim of the plaintiff in the said suits by colluding with him and, therefore, the decrees had been obtained by fraud.

The petitioner herein moved applications under section 151. C . P. C . in both these proceedings wherein he prayed for deleting the said Advocates from the array of the respondents on the ground that they were neither necessary nor proper parties to the said proceedings as were only witnesses therein.

The applications of the petitioner were dismissed by the trial Court and the revision filed against them under section 115, C.P.C. were also dismissed by the High Court observing:‑

"Since Messrs Ameer Ali Malik and Malik Muhammad Saleem Advocates allegedly colluded with the petitioner and others and filed written statements admitting the claim of the petitioner and others pursuant to their collusion with the petitioner and others. They have, therefore, rightly been impleaded as respondents in the applications under section 12(2), C.P.C."

By these two petitions leave is sought against the said order of the High Court. We have heard Ch. Muhammad Hasan, Advocate, in support of these petitions and are inclined to agree with the view taken by the High Court that the said two Advocates could be impleaded as respondents in the application under section 12(2), C.P.C.

These petitions are dismissed.

M.I. Petitions dismissed.

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Immediately on the death of a person, his/her legal heirs become owners of his estate under Muslim law.

It is extremely regrettable that in the Islamic Republic of Pakistan, male heirs continue to deprive female heirs of their inheritance by resorting to different tactics and by employing dubious devices as was done in the instant case. The shares in the property of a deceased Muslim are prescribed in the Holy Qur’an and Shari’ah.

To deny an heir his/her share in the property left by the deceased is disobedience to Almighty Allah’s decree and those who do so, while they may obtain a temporary benefit in this world, leave themselves accountable to divine punishment in the Hereafter. The verses dealing with the laws of inheritance are followed by two verses, the first which gives good tidings to those who abide by the ‘limits set by Allah’followed by the verse prescribing the torment of Hell for those who disobey: ‘But those who disobey Allah and His Apostle and transgress His limits will be admitted to a fire, to abide therein: And they shall have a humiliating punishment.’

This Court has repeatedly castigated attempts to deprive female heirs of their right to inheritance. In the case of Atta Muhammad v Mst. Munir Sultan12 this Court noted that depriving female heirs of their inheritance has become ‘all too common’ and directed the revenue authorities to be extra vigilant.

We sadly note that despite our repeatedly pointing out that effective measures must be put in place to protect the rights of inheritance of females, this has still not been done. Those few ladies who have the independence, determination and resources to take their brothers to court are left embroiled in slow grind litigation, as in the present case, which started in the year 2008 and took thirteen years to culminate, having seen its way through four courts. The adage prevention is the best medicine is equally applicable when female rights are impaired. The State must ensure the protection of rights which is far easier, cheaper and less wasteful of public resources than restoring rights through the courts, which is laborious, expensive and needlessly wasteful of resources. In this case, a sister’s right to inheritance would have been safeguarded if the revenue authorities had exercised due care and caution, but this was not done. Either the revenue officials were inept and negligent or else complicit and corrupt, in either eventuality the system permitted the exploitation of the weak. This is all the more disconcerting in an Islamic Republic, the Constitution of which specifically protects property rights and enables the making of ‘special provision for the protection of women and children’.

The people through their elected representatives enacted the Constitution of the Islamic Republic of Pakistan and in it set out the course for the country to take by setting out therein the Principles of Policy (‘Principles’). These include enabling Muslim citizens to live their lives in accordance with Islam,and promoting ‘Islamic moral standards’.Depriving females of their inheritance prescribed by Shari’ah violates these Principles. Denying females their inheritance also undermines their economic independence, prevents a rise in their standard of living and concentrates wealth in male descendants, which offends another three Principles. Economic deprivation of women prevents their full participation ‘in all spheres of life’ which is another Principle which is violated. In Employees of Pakistan Law Commission v Ministry of Works, this Court held that provisions relating to Fundamental Rights ought to be interpreted harmoniously with the Principles of Policy and this was reiterated in Lahore Development Authority v Imrana Tiwana.n Beena v Raja Muhammad it was held that the Principles represent ‘the path and the destination that the nation has set for itself’. A three-member Bench of the Supreme Court in the case of Attiyya Bibi Khan v Federation of Pakistan held that ‘Article 29 of the Constitution requires each organ or authority of the State to act in accordance with those Principles’ and the same was echoed in Farhan Aslam v Nuzba Shaheen.

The Principles especially protect the under-privileged and aim at ameliorating the condition of the vulnerable and establish the well-being of the powerless. Therefore, non-adherence to the Principles affects those who are most in need of protection, those at the mercy of predators. The Principles are ‘the conscience of the Constitution and the basis of all executive and legislative action’ as held by an eleven-member Bench of this Court in the case of Benazir Bhutto v Federation of Pakistan.

Almost half a century has passed since the 1973 Constitution came into effect which stipulates that the State has ‘to act in accordance with those Principles’. The President and Governors are required to annually submit ‘a report on the observance and implementation of the Principles of Policy’ but they are not doing so. A three-member Bench of the Supreme Court in the case of Jawad Beg v The State had also drawn attention to this failure to comply with this constitutional provision. The reports to be submitted by the President and Governors are a ‘mandatory duty’, akin to a performance audit of the Government. When the required reports are not submitted by the President and the Governors respectively to the Parliament and the Provincial Assemblies, then these legislative bodies may not possess information which would help them to legislate where there are weaknesses and disparities. It is expected that the President and the Governors shall fulfil their constitutional duty, in this regard, under Article 29(3) of the Constitution.

C.P.957/2020
Ghulam Qasim & others v. Mst. Razia Begum & others

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-It appears from record that judgment and decree of appellate Court is not according with provisions of Order XLI Rule 31, CPC--It is mandatory upon appellate Court to state points for determination, decision thereon, reasons for decision and where decree appealed from is reversed or varied-

 PLJ 2021 Quetta (Note) 129

Civil Procedure Code, 1908 (V of 1908)--

----O.XLI R. 31--Suit for declaration, permanent injunction, cancellation of mutation--Dismissed--Appeal--Concurrent findings--Challenge to--It appears from record that judgment and decree of appellate Court is not according with provisions of Order XLI Rule 31, CPC--It is mandatory upon appellate Court to state points for determination, decision thereon, reasons for decision and where decree appealed from is reversed or varied--Appellate Court should state points for determination and apply its independent judicial mind to controversy involved between parties--Phrase “points for determination” referred in Rule 31 (a) of Order XLI, CPC refers to all important questions involved in case--Revision petition accepted.

                                                                           [Para 3 & 4] A, B & C

2012 YLR 2108 (Sindh) ref.

Mr. Gul Hassan Advocate for Petitioners.

Mr. Bangul Marri Advocate for Respondent No. 1.

Mr. Kaleemullah Kakar Advocate for Respondent No. 3.

Mr. Bilal Mohsin, Advocate for Respondent No. 6 and Mr. Ahmed Yar Assistant Advocate General for official Respondents.

Date of hearing: 6.11.2020.

 PLJ 2021 Quetta (Note) 129
Present: Abdul Hameed Baloch, J.
NIAMATULLAH and 2 others---Petitioners
versus
ESSA KHAN and 9 others--Respondents
C.R. No. 323 of 2016, decided on 18.11.2020.

Judgment

Through this judgment I Intend to dispose of above tilted civil revision petition filed by the petitioners/plaintiffs against the judgments and decrees dated 30th March, 2016 and 30th June, 2016 (impugned judgments and decrees) passed by learned Civil Judge, Duki and learned Additional District Judge, Loralai (trial and appellate Court) respectively, whereby the suit of the petitioners/plaintiffs was dismissed and appeal filed by the petitioners/ plaintiffs was also dismissed.

2. Concise facts of the case are that the petitioners/plaintiffs filed amended representative suit for declaration, permanent injunction, cancellation of Mutation No. 240 dated 16th July, 1975, Mouza Viala Duki and partition of land bearing khasra No. 1066, 1185, 1187, 3-Qilas, measuring 241 rods 33 poles Mouza Viala Duki Halqa Saddar Thsil Duki, which was contested by the respondents/ defendants on legal as well as tactual grounds by filing written statements. The trial Court framed issues, on which the parties led their respective evidence.

On conclusion the learned trial Court heard arguments and thereafter, vide impugned judgment and decree dated 30th March, 2016 dismissed the suit of the petitioners/plaintiffs. Being aggrieved of the same the petitioners/plaintiffs preferred appeal but the same was also dismissed vide impugned judgment and decree dated 30th June, 2016 by learned Additional District Judge, Loralai, hence this revision petition.

3. I have perused the record, which reveals that the petitioners/plaintiffs filed a suit, which was contested by the respondents/defendants by filing separate written statements. On conclusion the trial Court dismissed the suit vide impugned judgment and decree dated 30th March, 2016. The learned appellate Court upheld the judgment and decree of the trial Court vide impugned judgment and decree dated 30th June, 2016. It appears from the record that the judgment and decree of the learned appellate Court is not according with the provisions of Order XLI Rule 31, CPC. It would be appropriate to reproduce Order XLI Rule 31, CPC:

“Order XLI Rule 31. The judgment of the Appellate Court shall be in writing and shall state -

a. the points for determination;

b. the decision thereon;

c. the reasons for the decision; and,

d. where the decree appealed from is reversed or varied, the relief to which the appellant is entitled:

          and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.

4. Under the referred to Rule it is mandatory upon the appellate Court to state the points for determination, the decision thereon, the reasons for the decision and where the decree appealed from is reversed or varied. The appellate Court should state points for determination and apply its independent judicial mind to the controversy involved between the parties. The phrase “points for determination” referred in Rule 31 (a) of Order XLI, CPC refers to all important questions involved in the case. Reference is made to the case of Gul Muhammad v. Kaimuddin 2012 YLR 2018 [Sindh], wherein it was held:

“8. The statutory right of appeal confers the right of rehearing the whole dispute unless expressly restricted in its scope and the appellate Court, is not confined to the reasons which have been given by the subordinate Court or the grounds for its decision. The right of appeal is a substantive and vested right and not as a matter of mere procedure. According to Order XLI, Rule 31, C.P.C., it is mandatory that judgment passed, by the appellate Court shall state the points for determination, the decision thereon, the reasons for the decision and where the decree appealed from is reversed or varied, the relief to which, the appellant is entitled. This rule makes it apparent that for just and proper decision, the appellate Court should state the points for determination and apply its independent judicial mind to the controversy involved between the parties and also examine the record for the purposes of pronouncing its judgment. The phrase “points for determination” refers to all important questions involved in the case, therefore, this rule has been incorporated in the Code for framing the points for determination so that the judgment should be self-explanatory, illuminative and in the nature of a speaking order.

9. Every finding of fact is not immune from interference in revisional jurisdiction when the Courts below commit jurisdictional illegality and this concept of jurisdictional illegality has been considered by the honourable Supreme Court in the case of Kanwal Main PLD 1983 SC 53 and held that to cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result, revisional jurisdiction is justified when the findings are based on conjectural presumptions, erroneous assumptions of facts and wrong proposition of law and where unreasonable view on evidence has been taken. In 2010 SCMR 786, Brig. (R) Sher Afghan v. Mst. Sheeren Tahira and others, it was held that by now a well-settled principle of exercise of revisional jurisdiction under Section 115, C.P.C. is that if a finding of first Court of Appeal is based on no evidence or is arbitrary and fallacious, the Revisional Court is not denuded of its power to interfere with such a finding. This view was reiterated in Naziran Begum v. Khurshid Begum 1999 SCMR 1171 wherein it was held a finding on a question of fact arrived at by the First Appellate Court which is based on no evidence or is the result of conjectures or fallacious appraisal of evidence on record is not immune from scrutiny by ihe High Court in exercise of its power under Section 100 or 115, C.P.C. In 2008 SCMR 1454, (Nabi Bakhsh v. Fazal Hussain), it was held that no exception could be taken to the exercise of revisional powers and setting aside of the findings of the lower Courts even if they be concurrent if it had found that the said findings were based on misreading or non-reading of the material available on record. Similarly, in 2007 SCMR 838, (Ch. Muhammad Shafi v. Shamim Khartum, it was held that First Appellate Court has a right to reverse the finding/conclusions of the trial Court while exercising power under Section 96 of the C.P.C. subject to the condition that First Appellate Court has to meet the reasoning of the trial Court in the first instance and thereafter reappraise the evidence on record while reversing the finding of the trial Court as law laid down by this Court in Madan Gopal’s case PLD 1969 SC 617. The High Court has wide power to reverse the finding of the First Appellate Court while exercising power under Section 115, C.P.C. having supervisory jurisdiction.”

In view of the above discussion the instant civil revision petition is accepted. The judgment and decree dated 30th June, 2016 passed by learned Additional District Judge, Loralai is set aside and appeal is remanded to the appellate Court for decision afresh in accordance with the provisions of Order XLI Rule 31, CPC after hearing the parties. The parties are left to bear their own costs.

(M.M.R.)         Petition accepted

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Lease agreement for a period of ten years not registered.

2019 C L C 909 

S.17--Transfer of Property Act of 1882, S.107-- Registration Act of 1908.

Lease agreement for a period of ten years not registered.

In case a lease agreement was so required to be registered but not registered with the Registrar of documents then the lease agreement was bad in law.

Lease of immovable property from year to year or for a term exceeding one year or reserving a yearly rent could only be made through a registered instrument, as mandated by S.107 of the Transfer of Property Act, 1882 and S.17(d) of the Registration Act, 1908.

Consequently, the relationship between such a landlord and the tenant beyond the initial period of eleven (11) months was to be regulated by the provisions of the statute in question i.e. the Cantonments Rent Restriction Act, 1963.

Such a tenant became a statutory tenant and the tenancy continued on a month to month basis.

In the present case, the lease agreement was for a period of ten years, however it was not registered.

Admittedly, the initial eleven (11) months of the tenancy had already lapsed.

Tenant was, therefore, a statutory tenant thereafter and the tenancy was to continue on a month to month basis.

Plea of tenant that the lease agreement was for a period of 10-years and was not terminable prior to the lapse of the stipulated 7-years was not sustainable and was accordingly repelled.

Appeal was dismissed in circumstances.

2019 C L C 909

[Lahore]

Before Mamoon Rashid Sheikh, J

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The term "interlocutory order" does not find any specific definition attributed to it in the statutory provisions of Civil Procedure Code of 1908 or ..

 The term "interlocutory order" does not find any specific definition attributed to it in the statutory provisions of Civil Procedure Code of 1908 or the Law Reforms Ordinance, 1972. The ordinary meaning of an interlocutory order or judgment is given in the Concise Oxford English Dictionary to be "(of a decree or judgment) given provisionally during the course of a legal action". In the Black's Law Dictionary Fifth Edition, the term "interlocutory" has been defined as "Provisional' interim; temporary; not final, something intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy". Similarly, the term "interim" has been defined in the Black's Law Dictionary Fifth Edition as "in the meantime; meanwhile; temporary, between". In Volume-II of Words and Phrases by Mian Muhibullah Kakakhel, interlocutory has been defined as "An application or order or judgment which is made during the pendency of an action and has not the intention or effect of finally determining it".

The test to determine the finality of an order is whether the judgment or order finally disposed of the rights of the parties. The finality must be a finality in relation to the suit. If after the order, the suit is still alive suit in which the rights of the parties have still to be determined, no appeal lies against it. The fact that the order decides an important and even a vital issue is by itself not material. If the decision on an issue put an end to the suit, the order will undoubtedly be a final one, but if the suit is still left alive and has got to be tried in the ordinary way, no finality could attach to the order. A bare reading of subsection (3) of the section 3 of the Law Reforms Ordinance, 1972 thus clearly provides that no appeal is competent against an interim order.

Intra Court Appeal No. 81 0f 2020

Muhammad Sher Awan . Vs.Government of the Punjab, through Chief Secretary Lahore and six others.

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Civil and criminal proceedings go side by side due to their ultimate outcome and difference in standard of proof.

 Civil and criminal proceedings go side by side due to their ultimate outcome and difference in standard of proof. It is equally appreciated that even after civil proceedings, there is no bar for initiation of criminal proceedings and vice versa; evidence recorded in one proceeding cannot be read in other proceedings except in some cases where any question in criminal proceedings wholly and entirely depends upon the determination by civil court.

Criminal Revision No.42994/2021
Tariq Irshad Vs Special Judge, etc.

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Case Law : Section 43 of the Benami Transaction (Prohibition) Act, 2017

2021 LHC 4054

The preamble to Benami Act recites that it has been enacted to prohibit benami transactions and the right to recover property held benami as well as for matters connected therewith or incidental thereto. A reading of Benami Act discloses that, no person shall enter into any benami transaction in terms of Section 3; it applies both to the person who lends his name and also to the real purchaser; however, this does not apply to a situation where a person purchases property for the benefit of, inter alia, his spouse or child etc., as envisaged under Section 2(8)(A)(b)(ii); entering into a benami transaction is declared to be an offence by virtue of Section 51 which is non-cognizable in terms of Section 57 and Benami Act disables the real owner from enforcing any right in respect of a property held benami or putting forward a similar defence; however, this disability does not apply where the person in whose name the property is held stands in a fiduciary capacity to the beneficiary. In addition to the above referred salient features, Benami Act also provides for and establishes authorities to exercise jurisdiction and initiate proceedings under the law. Section 15 provides for the authorities and their jurisdiction. The Initiating Officer, Approving Authority, the Administrator and the Adjudicating Authority, which are to exercise powers and perform functions conferred or assigned to them under Benami Act or in accordance with such rules as may be prescribed. Under Section 22 of the Benami Act, an Initiating Officer having a reasonable believe on the basis of information in his possession may issue a notice to person holding benamiproperty, recording reasons for issuance of such notice. In the meanwhile, if the Initiating Officer is of the opinion that the person in possession of such property may alienate the same during the period provided in the notice, he may pass attachment order with respect to such property for sixty days. In terms of Section 22 (4), the Initiating Officer on the basis of material available before him may continue the provisional attachment order made earlier or may revoke the same. Moreover, if provisional attachment order was not passed earlier under subsection (3) of Section 22, he may make it under sub-section (4) thereof on the basis of material available. Where the Initiating Officer has passed an attachment order on the basis of material available, he shall within 60 days of such order draw a statement of case and refer it to the Adjudicating Authority. The Adjudicating Authority after fulfilling codal formalities and in accordance with the procedure prescribed in Section 24 may either set aside the attachment order by holding that property is not benami or hold that such property is benami and confirm such attachment order made by the Initiating Officer. Any person aggrieved of the order of adjudicating Authority may prefer an appeal to the Tribunal under Section 44 of the Benami Act. The decision of the Tribunal is appealable before the High Court in terms of Section 47 of the Benami Act. Similarly, the offences triable under Benami Act may be tried by the Courts of Sessions designated as special court under Section 48 of the Act, 2017. Section 43 of Benami Act stipulates bar as to the jurisdiction of the civil courts in relation to any proceedings before the civil court.

On the other hand, civil courts in terms of Section 9 of CPC are courts of ultimate and plenary jurisdiction and any suit of civil nature is to be tried by the civil courts unless jurisdiction is expressly or impliedly barred. It is well settled that any curtailment and/or ouster of jurisdiction of civil courts under some legislative instrument has to be construed strictly. This Court in Hakam and others v Tassaduq Hussain Shah (PLD 2007 LAH 261) held that the civil courts are courts of ultimate jurisdiction to try all suits of civil nature except the suits of which their cognizance is either expressly or impliedly barred and in such situations the ouster of jurisdiction of civil courts should not be lightly inferred or the lack of jurisdiction be assumed as a matter of course rather there should either be express provision in any law/statute, which debars and takes away the jurisdiction of such court, and the provision must be strictly construed and applied leaving no room for doubt that the jurisdiction of the civil courts has been ousted, or if the ouster is claimed on the basis of implication, the implication must be founded and adjudged on the touchstone that the forum or the tribunal created by the special law have been conferred with the exclusive jurisdiction to try the matter of a specific civil nature.

Civil Revision-707-21
SYED TEHWAR HUSSAIN RIZWI VS
SYED JAVED ALI RIZVI
Mr. Justice Anwaar Hussain
30-06-2021
2021 LHC 4054

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-Suit for cancellation of mutation and declaration---Second appeal--- Financial liability---Proof--- Single witness, production of--

 2021 MLD 608

Punjab Land Revenue Act (XVII of 1967)---

----S.42---Qanun-e-Shahadat (10 of 1984), Art.79---Suit for cancellation of mutation and declaration---Second appeal--- Financial liability---Proof--- Single witness, production of--- Plaintiff/petitioner assailed mutation of sale in favour of defendant/respondent on the plea of fraud--- Suit was decreed by Trial Court in favour of plaintiff/petitioner but Appellate Court reversed the findings and dismissed the suit--- Validity--- Mutations in question containing sale transactions were documents pertaining to financial liability and were required to be proved as per yardstick laid down in Art.79 of Qanun-e-Shahadat, 1984--- Examination of only one marginal witness by beneficiary was not enough to meet with legal requirement--- Mutations in question were not liable to be taken as evidence as neither their attestation was established nor sale transaction embodied therein was proved, when other marginal witness while appearing on behalf of plaintiff/petitioner created serious doubts in the veracity of disputed mutations--- Plaintiff/petitioner proved that alleged transaction never happened and mutations in question were manoeuvred through. collusiveness-- High Court set aside judgment and decree passed by Lower Appellate Court as the same was tainted with misreading/non-reading of evidence and was suffering from jurisdictional defect---

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