Suit for recovery of money--- Object, scope and purpose---Real benefit of suit under O.XXXVII, C.P.C. is that unless defendant is able to demonstrate a substantial defence in the case, plaintiff is entitled to judgment forthwith---

2021 MLD 1473

Suit for recovery of money--- Object, scope and purpose---Real benefit of suit under O.XXXVII, C.P.C. is that unless defendant is able to demonstrate a substantial defence in the case, plaintiff is entitled to judgment forthwith---Public policy behind suits under O.XXXVII, C.P.C. is expeditious disposal of suit involving financial matters---In suit under O.XXXVII, C.P.C. till such time leave to appear and defend is allowed, the defendant cannot file any other interlocutory application.
Suit for recovery of money on the basis of negotiable instrument---Leave to defend the suit---Pre- conditions-- Summoning of bank record---Respondent-plaintiff sought recovery of money on the basis of dishonoured cheque--- Application for leave to defend the suit filed by petitioner- defendant was dismissed by Trial Court after consulting record summoned from Bank---Validity---In order to satisfy itself to the contents of leave to appear and defend, the Court was required not to act in a mechanical manner---Trial Court had to apply its judicial mind to the contents of application for leave to appear and defend---Trial Court was not debarred to probe and conduct such inquiry so as to satisfy itself as to the genuineness and plausibility of defence of defendant---Plaintiff in such suit was not debarred to move application for summoning a document in custody of any person which prima facie would establish before Court that defence taken in application for leave to appear in summary suit was sham and illusory---Trial Court rightly summoned record from Bank duly supported by an affidavit to controvert stance of petitioner-defendant--

2021 MLD 1473

Case Laws : Framing of Proper issues. Duty of the Court.

Must read judgement

Framing of Proper issues. Duty of the Court.
..............
It is duty of the Court to frame issues from material propositions. To frame issues, Court is to find out questions of fact, question of law and mixed questions of fact and law from pleading of the parties and other materials, which are produced with pleading and parties are to produce their evidence to prove or disprove framed issues.
2021 CC 1491
.............................................................................
Following are the relevant provisions of law regarding the concerned topic:-
i. Order XIV Rule 1 to 6 of CPC 1908
ii. Order XVIII Rule 2 of CPC 1908
iii. Order XX Rule 5 of CPC 1908
iv. Order XLI Rule 31 of CPC 1908
v. Order XV Rule 1 of CPC 1908
2021 CC 1491
..........................................................................
So far as the definition of „issue‟ is concerned, it can be summarized as such that, „A single material point of fact or law in litigation that is affirmed by one side and denied by the other, that subject of the final determination of the proceedings is called „issue‟. The object of framing issues is to ascertain the real dispute between the parties by narrowing down the area of conflict and determining where the parties differ. It is the duty of the Judge himself to frame proper issues. Where parties are not satisfied, it is their duty to get proper issues framed.
2021 CC 1491
..........................................................................
Matters to be considered before framing issues are:-
.....................................
i. The Court shall read the plaint and written statement before framing an issue to see what the parties allege in it.
ii. iii. iv. v. vi. vii. Order X, Rule 1, CPC permits the Court to examine the parties for the purpose of clarifying the pleadings, and the Court can record admissions and denials of parties in respect of an allegation of fact as are made in the plaint and written statement.
iii. If any party admits any fact or document, then no issues are to be framed with regard to those matters and the Court will pronounce judgment respecting matters which are admitted.
iv. The Court may ascertain, upon what material proposition of law or fact the parties are at variance. The Court may examine the witnesses for the purpose of framing of issues.
v. The Court may also in the framing of issues take into consideration the evidence led in the suit.
vi. Where a material point is not raised in the pleadings, comes to the notice of the Court during course of evidence the Court can frame an issue regarding it and try it.
vii.Under Order XIV, Rule 4 CPC any person may be examined and any document summoned, for purposes of correctly framing issues by Court, no produced before the Court.
2021 CC 1491
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Material from where issue may be framed.
.....................................
The court may frame the issue from all or any of the following materials.
i. Allegations made on oath
....................
Issues can be framed on the allegations made on oath by the parties or by any persons present on their behalf or made by the pleader of such parties.
ii. Allegations made in Pleadings
..............
Issues can be framed on the basis of allegations made in the pleadings.
iii. Allegations made in interrogatories
.............
Where the plaint or written statement does not sufficiently explain the nature of the party‟s case, interrogatories may be administered to the party, and allegations made in answer to interrogatories, delivered in the suit, may be the basis of framing of issues.
iv. Contents of documents.
...............
The court may frame issue on the contents of documents produce by either party. v. Oral examination of Parties. Issues can be framed on the oral examination of the parties.
vi. Oral objections of Parties.
..............
Issues may be framed on the basis of oral objection.
2021 CC 1491
Apart from the above, the following points are important in respect of framing, amending, altering or striking out the issues:-
i. Amendment of issues.
...............
At any time before passing of decree, court can amend framed issues on those terms, which it thinks fit. However, such amendment of framed issues should be necessary for determination of matters in controversy between the parties.
ii. Striking out of issues
..................
At any time before passing of decree, court can strike out framed issues especially when it appears to court that such issues have been wrongly framed or introduced.
iii. Discretionary Power
.............
Regarding amendment of frame issues, court possesses discretionary power. Court can exercise this power when no injustice results from amendment of framed issue on that point, which is not present in pleading. However, it cannot be exercised when it alters nature of suit, permits making of new case or alters stand of parties through rising of inconsistent pleas.
iv. Mandatory Power
...........
Regarding amendment of framed issues, court also has mandatory power. In fact, court is bound to amend framed issues especially when such amendment is necessary for determination of matters in controversy, when framed issues do not bring out point in controversy or when framed issues do not cover entire controversy.
v. At any stage.
........
Court can amend or strike out framed issues at any time before final disposal of suit.
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In addition to the above, the framing of an issue does not mean that a court is taking a position on the contentions of the parties on a material question of fact or law. The court is merely engraving the contours of the trial so that the progress of the trial is not accosted by slugfest on immaterial issues that have no bearing on the adjudication of the rights and liabilities of the parties. In the present case, material issues, which go to the roots of the case, have not been framed by the learned trial Court, as observed above; thus, when the position is as such, the judgments and decrees passed by the learned Courts below, though at variance, cannot be allowed to hold field.
2021 CC 1491

اگر ایک پارٹی حلف پر فیصلہ کی آفر کرے اور دوسری پارٹی اسے قبول کرے تو بعد ازاں اس ست منحرف ہونے کی اجازت نہ ہو گی ۔

 ASIF ALI Versus ADDITIONAL DISTRICT JUDGE, FAISALABAD
April 11, 2018 — LAHORE HIGH COURT LAHORE — Honorable Justice Jawad Hassan — Ch. Sadaqat Ali , Azeem Sarwar Baryar — 2018 CLC 1350

اگر ایک پارٹی حلف پر فیصلہ کی آفر کرے اور دوسری پارٹی اسے قبول کرے تو بعد ازاں اس ست منحرف ہونے کی اجازت نہ ہو گی ۔
2018 CLC 1350
Details
JUDGMENT
JAWAD HASSAN, J.---Through this Petition, the Petitioner has prayed to set aside the order dated 17.02.2012, passed by the learned Judge Family Court, Faisalabad and 17.03.2012, passed by the learned Additional District Judge, Faisalabad.
2. Brief facts of the case are that the Respondent No. 3 filed a suit for dissolution of marriage and recovery of dowry articles against the Petitioner before the learned Judge Family Court, Faisalabad and the Petitioner defended the suit by filing the written statement and in that suit the Petitioner stated that the gold ornaments were still lying with the Respondent No.3 which she took away when she left the house of the Petitioner. The learned Judge Family Court dissolved the marriage on 23.02.2012 and framed the issue of dowry articles. After hearing the parties, the learned Judge Family Court passed the judgment against the Petitioner and held that the Petitioner is not entitled to recover the gold ornaments from the Respondent No.3 and also held that as the suit has been filed by the Respondent No.3 against the Petitioner, therefore, he cannot claim the gold ornaments as counterblast from the Respondent No.3. It is further held that the gold ornaments are purely bridal gift which are not recoverable and if the Petitioner has any grievance he would file an appropriate suit before the appropriate forum. When the Petitioner filed an appeal before the learned appellate court, the learned appellate court after hearing the parties, upheld the judgment of the Family Court observing that on the issue of special oath the Respondent No.3 is not required to return the dowry articles and stated that the Petitioner is not entitled to recover the gold ornaments which have been excluded on the basis of special oath.
3. Learned counsel for the Petitioner contended that the Respondent No.3 has obtained the impugned judgment and decree dated 23.02.2011, passed by the learned Judge Family Court by concealing the true facts; that during the trial on 29.06.2011, the learned counsel for the Respondent No. 3 made an offer to the Petitioner that if he gave Oath on Holy Quran that he possessed dowry articles only to the extent of list annexed with the written statement then the Respondent No.3 would have no objection to the decision of the lis on that basis; that he by accepting that offer administered the oath on 21.07.2011 and added that his gold ornaments weighing 5-1/2 Tola still lying with the Respondent No.3 might be got returned to him, which has been admitted by the Respondent No.3, but the Court failed to consider it; that the Respondent No.3 with regard to claim of the Petitioner submitted an application for repeat of oath which was dismissed by the Court; that the observations of both the learned courts below that the Petitioner cannot claim the gold ornaments in the suit filed by the Respondent No.3 is against the norms of law, the Petitioner can put his claim through written statement in the suit filed by the Respondent No.3; lastly argued that both the learned courts below have failed to note that otherwise, after deviation from the offer made by the Respondent No.3, both the parties have reverted to the original position, therefore, the proceedings should have been started from the prior to offer made and its acceptance, therefore, the judgments passed by the learned courts below are required to be set aside.
4. It is contended by learned counsel for the Petitioner that the impugned orders are against the facts and law because the Petitioner in his written statement and while administering oath also claimed the return of his gold ornaments which was also admitted by the Respondent No.3 but the learned courts below did not pass any order to this extent. It is further contended that the Petitioner can put his claim through written statement in the suit filed by the Respondent No.3 and the observation of learned courts below that the Petitioner cannot claim the gold ornaments in that is against the norms of law. It is also maintained that the oath administered by the Petitioner before the appellate court is contrary to the offer and acceptance.
5. Learned counsel appearing on behalf of the Respondent No.3 rebutted the contentions of learned counsel for the Petitioner and supported the judgments and decrees passed by the learned courts below. He maintained that through this Petition and arguments, learned counsel for the Petitioner could not bring on record any illegality and irregularity committed by the courts below while passing it. He argued that the offer made by the Respondent No.3 was accepted by the Petitioner, therefore, the oath was to be administered in view of the offer but while administering the oath the Petitioner travelling beyond it claimed his alleged gold ornaments, so no implicit reliance could be placed on this part of the statement being beyond the offer of the Respondent No.3, thus, application of the Petitioner submitted in this regard has rightly been dismissed by the learned Courts below. Summing his arguments, he maintained that the learned courts below have rightly concluded that the Petitioner is not entitled to the recovery of gold ornaments in the same proceedings which have been concluded on the basis of special oath.
6. Heard. Record perused.
7. Need not to reiterate the facts, which have already been mentioned in Paragraph No.1 of this judgment and also have been discussed by learned counsel for the Parties during their arguments. It has been noted that in response to claim of dowry articles of the Respondent No.3, the present Petitioner in his written statement stated that dowry articles of the Respondent No.3 according to his list attached with the written statement are available and he is ready to return but if the Respondent No.3 administers Special Oath, which was accepted by her and she administered special oath. A discrete study of Article 163 of (Qanun-e-Shahadat) Order, 1984 read with Sections 9 and 10 of the Oath Act, 1873, reveals that when an offer made by one party is accepted by the other party then none can be allowed to travel beyond the offer made. In the instant case, the Respondent No.3 made offer only to the extent of claim of dowry articles which was accepted by the Petitioner who while recording his statement on Special Oath regarding claim of dowry articles travelled beyond the offer and introduced a new factum of gold ornaments alleging the same in possession of the Respondent No.3. It is crystal clear that voluntary portion introduced by the Petitioner during his Special Oath was not the mandate of the offer made by the Respondent No.3. Therefore, the said portion can neither be read in favour of the Petitioner nor against the Respondent No.3, as the recovery of gold ornaments is an assertive question of fact that can only be proved through evidence. As far as nature of claim of the Petitioner regarding gold ornaments is concerned, it is suffice to mention that the gold ornaments are included in the bridal gifts and are exclusive property of a wife, who is the Respondent No.3 in this case. In this regard section 5 of the Dowry and Bridal Gifts (Restriction) Act (XLIII of 1976) clearly states that the articles given as dowry and bridal gifts to the bride shall remain the property of the bride. Reliance in this respect is placed upon Muhammad Arshad v. Additional District Judge and 2 others (2015 CLC 463), Mst. Mussarat Iqbal Niazi v. Judge Family Court and others (2013 CLC 276), Najeeb Ullah v. Mst. Makhdoom Akhtar and another (2009 YLR 1823), Mst. Shahnaz Begum v. Muhammad Shafi and others (PLD 2004 Lahore 290) and Ghulam Rasool v. Judge, Family Court (1991 CLC 1696). As far as counter claim of gold ornaments established by the Petitioner in his written statement is concerned, suffice her to mention that neither section 9 nor Schedule formulated under section 5 of the West Pakistan Family Courts Act, 1964 envisages that the Petitioner could establish aforesaid counter claim in his written statement.
8. The upshot of the above discussion is that learned counsel for the Petitioner has failed to point out any irregularity or illegality committed by the courts below while passing the impugned judgments and decrees, thus upholding the same, the instant writ petition is dismissed being without any force.
SA/A-41/L Petition dismissed.

سپریم کورٹ نے نسلہ ٹاور کی منظوری دینے والے محکموں کے افسران کے خلاف کارروائی کا حکم دے دیتے ہوئے کہا ہے کہ متعلقہ ذمےداروں کیخلاف فوجداری قانون کے تحت مقدمات درج کیے جائیں۔

 سپریم کورٹ نے کراچی رجسٹری میں تجاوزات کے خاتمے سے متعلق ہونے والی سماعت ک ا32 صفحات پر مشتمل تحریری حکم نامہ جاری کردیا گیا۔

حکم نامے میں نسلہ ٹاورکی منظوری دینےوالے محکموں کے افسران کیخلاف کارروائی کا حکم دیا گیا اور کہا گیا ہے کہ بلڈر، سندھ بلڈنگ کنٹرول اتھارٹی (ایس بی سی اے) کےخلاف مقدمات درج کئے جائیں۔
تحریری حکم نامے میں کہا گیا کہ سندھی مسلم سوسائٹی اور دیگر ملوث افراد کیخلاف مقدمات درج کئےجائیں۔
سپریم کورٹ نے مقدمات کے اندراج سے متعلق ڈی آئی جی شرقی کو حکم دے دیا۔
عدالت نے بلڈنگ کی منظوری دینے والے حکام کے خلاف اینٹی کرپشن کو کارروائی اور تحقیقات کا حکم دیتے ہوئے چیئرمین اینٹی کرپشن سے ایک ہفتے میں رپورٹ طلب کرلی۔
سپریم کورٹ نے بلڈنگ کنٹرول اتھارٹی کے ملوث افسران کے خلاف بھی کارروائی کا حکم دے دیا۔
کمشنر کی رپورٹ پر ڈی جی بلڈنگ کنٹرول اتھارٹی کو توہین عدالت کا نوٹس دیتے ہوئے ایک ہفتے میں جواب طلب کرلیا

Const.P.9/2010
Niamatullah Khan Advocate v. Federation of Pakistan, etc
Mr. Justice Gulzar Ahmed
27-12-2021


































Effect of force majeure on payment of rent.

2021 LHC 8153

The relationship between a landlord and tenant or a lessor and a lessee are primarily governed either by the agreement, which the parties execute and/or by and under the law. Qua the agreements between the parties, their respective rights and obligations would be determined by the terms and conditions of the agreement itself. The present matter primarily raises the issue relating to default in payment of rent by the appellant owing to the force majeure event in form of COVID-19 lockdown and the legal questions ancillary thereto. The availability of the relief on the basis of doctrine of force majeure is contingent on the availability of the relevant clause in the contract and the interpretation of applicable law on the subject. Therefore, the term force majeure as well as its applicability in the present case needs to be analysed in the light of relevant provisions of the Contract Act 1872 (“the Act 1872”) and the terms and conditions of the Rent Agreement on the basis of which the appellant was inducted as a tenant in the first place.

A ‘force majeure’ situation or an event, has not been defined in any enactment in vogue in Pakistan. Force majeure is defined by Black's Law Dictionary, Eleventh Edition as an event or effect that can be neither anticipated nor controlled by the parties and includes both acts of nature (e.g., floods and hurricanes) as well as acts of people (e.g., riots, strikes and wars). Effect of COVID-19 lockdown as a force majeure event and its effect on the rights and obligations of parties to a license agreement has been examined by this Court in “Abdul Waheed v. Additional District Judge and others (PLD 2021 Lahore 453) by referring to various pronouncements of superior courts in Pakistan as well as India and England. In Abdul Wahid, supra, a licensee who was awarded a contract to run a hostelry by the petitioner therein instituted a suit for permanent injunction wherein he prayed for grant of interim injunction against recovery of rent due under the contract on the basis of COVID-19 lockdown, which was allowed by the learned trial court whereas the appellate court below in the said case reversed the order of the trial court and the judgment of appellate court was upheld by this Court holding that notifications issued in the wake of COVID-19 nowhere put a restraint upon the landlords to seek eviction in accordance with law.
Rules governing application of principle of force majeure as well as doctrine of frustration, on contracts in general and tenancy agreement, like the Rent Agreement in present case, in particular, which are spelled out as under:
i. If an agreement between the parties have a force majeure clause, Section 32 of the Act 1872, comes into play. Energy Watchdog v. Central Electricity Regulatory Commission and others (2017) 14 SCC 80) is referred in this regard;
ii. The force majeure clause in the contract could also be a contingency under Section 32 of the Act 1872, which may allow the tenant to claim that the contract has become void and surrender the premises; however, if the tenant wishes to retain the premises and there is no clause giving any respite to the tenant, the rent or the monthly charges would be payable as agreed between the parties;
iii. In the absence of a force majeure clause in the agreement between the parties, a party thereto may attempt to invoke the doctrine of frustration embedded in Section 56 of the Act 1872, which deals with impossibility of performance and applies to cases where a force majeure event occurs outside the contract;
iv. There are various conditions that have to be fulfilled to satisfy the conditions of ‘impossibility’ envisaged under Section 56 of the Act 1872 and the Courts cannot travel outside the terms of that section. Case of Raja Dhruv Dev Chand v. Raja Harmohinder Singh & another (AIR 1968 SC 1024) is referred;
v. Section 56 of Act 1872 does not apply to lease agreements as there is a distinction between a ‘completed conveyance’ and an ‘executory contract’ and a lease or a tenancy created under a rent deed is a completed conveyance though it involves monthly payment and hence, Section 56 cannot be invoked to claim waiver, suspension or exemption from payment of rent. Raja Dhruv supra is referred;
vi. A contract is not discharged merely because it turns out to be difficult or onerous for one party to perform and no one can resile from a contract for the said reason. “Alopi Prashad and sons, Ltd. v. Union of India” (1960) 2 SCR 793) and “Panna Lal and others etc. v. State of Rajasthan and others” (1975) 2 SCC 633), are referred;
vii. In the absence of contracts or the covenants relating to force majeure situation, provisions of the Transfer of Property Act, 1882 (“TPA”) would govern tenancies and leases where the doctrine of force majeure is recognised in terms of Section 108 (
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(e) while contemplating the ‘Rights and Liabilities’ of a lessee whereby it has been envisaged that if by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void;
viii. Temporary disruption in enjoyment of demise premises is not a ground to avoid and delay the payment of rent when the tenant does not chose to avoid the lease/tenancy. Sangeeta Batra v. M/s Vnd Foods & Ors., (2015) 3 DLT (Cri) 422) is referred;
ix. Even if the leased premise is rendered substantially and permanently unfit for the purpose for which it was let, the lessee has the option to avoid the lease and unless the lessee so avoids the lease, he cannot avoid his obligation contained in clause (l) of Section 108 of the Transfer of Property Act, 1882 to pay or tender the rent to the lessor.

First Appeal Against Order-Order 43 Rule 1 CPC-Cantonments Rent Restriction Ordinance
8-21
BASHIR AHMAD VS SHAHEEN WAHEED ETC.
Mr. Justice Anwaar Hussain
14-07-2021
2021 LHC 8153














Rent agreement--Deniel of relationship of tenant and landlord--Purchase of property by respondent from previous landlord--Refusal to execution of new rent agreement-

 PLJ 2021 Lahore (Note) 58

Constitution of Pakistan, 1973--

-----Art. 199--Ejectment petition--Accepted--Appeal--Dismissed--Rent agreement--Deniel of relationship of tenant and landlord--Purchase of property by respondent from previous landlord--Refusal to execution of new rent agreement--Challenge to--Petitioner claimed be to be owner of demised property but she failed to bring on record any title document in support of her stance--She also admitted her signatures on rent deed--Although she alleged that said rent deed is forged and fabricated but admittedly same has not been challenged by her in any Court thus far--Her plea qua ownership of demised premises is also inconsistent--Rent agreement Ex.A5 executed between petitioner and Dr--Anwar Nasim Gondal is in field, therefore, respondent after having purchased demised property from said Dr. Anwar Nasim became landlord of petitioner by operation of law and denial of such relation is contumacious as such she is liable to be evicted straightaway--Both Courts below after appreciating evidence in its true perspective have rightly passed impugned order/judgment--Counsel for petitioner is unable to point out any illegality or irregularity in impugned order/judgment warranting interference by this Court in its Constitutional jurisdiction--Petition dismissed.                                                                      [Para 6 & 7] A, B & C

PLD 2009 SC 453 ref.

Miss Gulzar Butt, Advocate assisted by Mr. Irfan Aizad Advocate for Petitioner.

Date of hearing: 30.11.2018.


 PLJ 2021 Lahore (Note) 58
Present: Muhammad Farrukh Irfan Khan, J.
BASHIRAN BIBI--Petitioner
versus
MUNIR HUSSAIN etc.--Respondents
W.P. No. 252571 of 2018, decided on 30.11.2018.


Order

The petitioner through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the validity of impugned judgment dated 06.11.2018 of the learned Addl. District Judge, Sialkot dismissing his appeal against the order dated 4.6.2018 of the learned Special Judge (Rent), Sialkot whereby the said Court accepted the ejectment petition filed by Respondent No. 1 against the petitioner.

2. Facts of the case in brief are that Respondent No. 1 filed an ejectment petition against the petitioner for her eviction from the demised house fully described in Para No. 1 of the petition. It was alleged in the eviction petition that previous owner namely Dr. Muhammad Anwar Naseem Gondal had inducted the petitioner in the demised premises as tenant on the basis of written agreement dated 5.9.2009 for monthly rent of Rs. 200/- that the respondent purchased the demised premises from the previous owner as such he became the landlord by operation of law; that the petitioner was asked time and again to execute fresh tenancy agreement and pay rent but she refused to do so, hence, she is liable to be evicted from the demised premises. The petitioner in her application for leave to contest denied relationship of landlord and tenant between the parties and claimed herself to be the owner of the demised premises.

3. Out of divergent pleadings of the parties, the learned Special Judge Rent framed necessary issues, recorded evidence of the parties thereupon and after hearing the arguments of learned counsel proceeded to accept the ejectment petition vide impugned order dated 04.06.2018. Being aggrieved the petitioner filed appeal before the learned Appellate Court/Addl. District Judge, who vide impugned judgment dated 06.11.2018 dismissed the same. Now the petitioner has challenged the same in this writ petition.

4. Learned counsel for the petitioner contends that the impugned order/judgment of the learned Courts below are based on surmises and conjectures and result of mis-reading and non-reading of the evidence; that the respondent could not prove existence of relationship of landlord and tenant between the parties, therefore, the learned Courts below were not justified in passing of the eviction order; that the petitioner is owner in possession of the demised premises and the rent agreement is a forged and fictitious document; that the evidence in this case has not been properly appreciated and the conclusions drawn therefrom are liable to be set-aside.

5. I have heard the arguments advanced by the learned counsel for the petitioner and gone through the record.

6. The petitioner claimed to be the owner of the demised property but she failed to bring on record any title document in support of her stance. She also admitted her signatures on the rent deed. Although she alleged that the said rent deed is forged and fabricated but admittedly the same has not been challenged by her in any Court thus far. Her plea qua ownership of the demised premises is also inconsistent. In her application for leave to defend she claimed that the demised premises is within Lal Lakir and Tehsildar concerned has made report in this regard in her favour but during cross-examination she improved her stance by alleging that she purchased the demised premises from Anwar Nasim Gondal in lieu of
Rs. 1,50,000/-. by deposing so she admitted the title of said Anwar Nasim Gondal who while appearing in the witness box deposed that he had sold the demised premises to the respondent/landlord. This fact was also admitted by the petitioner as well as her son namely Ali Imran while appearing in the witness box. Rent agreement dated 05.09.2009 Ex.A5 executed between the petitioner and Dr. Anwar Nasim Gondal is in the field, therefore, the respondent after having purchased the demised property from said Dr. Anwar Nasim became the landlord of the petitioner by operation of law and denial of such relation is contumacious as such she is liable to be evicted straightaway. Reliance is placed on case reported as Ahmad Ali alias Ali Ahmad vs. Nasar ud-Din and another (PLD 2009 Supreme Court 453).

7. Both the Courts below after appreciating the evidence in its true perspective have rightly passed the impugned order/judgment. Learned counsel for the petitioner is unable to point out any illegality or irregularity in the impugned order/judgment warranting interference by this Court in its Constitutional jurisdiction. Resultantly, this petition being without any substance is dismissed in-limine.

(Y.A.)  Appeal dismissed

Agreement to sell the disputed property in a consideration of Rs.10,00,000/- in presence of witnesses, thereafter the agreement was reduced into writing on 02.09.2005 and possession was delivered to him, which is still with him, this shows that the requirement of Article 17 of the Order, 1984 was fulfilled in letter and spirit.

 Article 17(2)(a) of the Qanun-e-Shahadat Order, 1984 provides that in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly;‟ meaning thereby when two persons enter into any agreement pertaining to financial or future obligations, the instrument should be attested by two men or one man and two women, so that one may remind the other. In the present case, it is case of the respondent that the petitioner entered into agreement to sell the disputed property in a consideration of Rs.10,00,000/- in presence of witnesses, thereafter the agreement was reduced into writing on 02.09.2005 and possession was delivered to him, which is still with him, this shows that the requirement of Article 17 of the Order, 1984 was fulfilled in letter and spirit.

Article 79 of the Qanun-e-Shahadat Order, 1984 enumerates the procedure of proof of execution of document required by law to be attested.
It is a settled proposition of law that admitted facts need not to be proved; however, in the present case, the respondent produced one marginal witness and scribe of the agreement to sell (Ex.P1). Receiving of earnest money is not denied by the petitioner and she only stated that the respondent did not appear in the office of Sub-Registrar for registration of the sale deed and payment of remaining sale consideration, but as observed above, the petitioner did not provide copy of Fard Milkiyat to the respondent as per settled terms of the agreement to sell; thus, the learned Courts below after evaluating evidence on record in a minute manner have reached to a just conclusion that the respondent is entitled to the decree for specific performance of agreement to sell and discretionary relief has rightly been granted to him (respondent).

Civil Revision No.547 of 2012
Mst. Azizan Bibi Versus Nasir Mehmood










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