S.62---Novation of contract---Principles---Adjudication to determine whether there was novation of contract-

 S.62---Novation of contract---Principles---Adjudication to determine whether there was novation of contract----Scope---When parties agreed to substitute a new contract in place of a pervious one, then performance of original contract was dispensed with, and Court had to examine the fact whether original agreement was validly rescinded, whether all rights and liabilities in the old contract were extinguished by such novation, and said questions were questions of fact depending on circumstances of each case.

2021 C L C 892
[Sindh]
Before Irfan Saadat Khan and Muhammad Faisal Kamal Alam, JJ
SUI SOUTHERN GAS COMPANY LIMITED----Appellant
Versus
DATA STEEL PIPE INDUSTRIES (PVT.) LIMITED and others----Respondents
High Court Appeal No.428 of 2018, decided on 30th September, 2020.

Contract Act (IX of 1872)---

----S.62---Novation of contract---Principles---Adjudication to determine whether there was novation of contract----Scope---When parties agreed to substitute a new contract in place of a pervious one, then performance of original contract was dispensed with, and Court had to examine the fact whether original agreement was validly rescinded, whether all rights and liabilities in the old contract were extinguished by such novation, and said questions were questions of fact depending on circumstances of each case.

Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Habib Ahmad v. Meezan Bank Limited and 5 others 2016 CLD 527; Haji Baz Muhammad Khan and another v. Noor Ali and another 2018 SCMR 1586; Zulqarnain and 2 others v. Surbuland Khan and another 2004 SCMR 1084; Dr. Khalid Kamal Khan v. Dr. Arshad Kamal Khan and another 1992 CLC 1887; Iftekhar Ahmed Lari v. Messrs Federal Chemical and Ceramics Corporation, 15th Floor, PNSC Building, Karachi through Secretary/Chairman and 2 others 1999 YLR 1094; Babib Ahmed v. Meezan Bank Limited and 5 others 2016 CLD 527; Nooruddin and others v. Mst. Amiran Bibi and others 1999 SCMR 2878 rel.

Sindbad Travels (Pvt.) Ltd., Lahore v. P.I.A. Corporation, Lahore 1990 MLD 2049 and Mrs. Tahira Sultana v. Saleem Rajput and another 2010 YLR 1883 distinguished.

Asim Iqbal for Appellant.

Taimur Ahmed Qureshi for Respondent No.1.

Nemo. for Respondent No.2.

Dates of hearing: 18th August and 8th September, 2020.

JUDGMENT

MUHAMMAD FAISAL KAMAL ALAM, J.----The Appellant has challenged the order dated 23.11.2018 (the impugned order), whereby the Performance Guarantee given by Respondent No.2 [SILK Bank Limited] on behalf of Respondent No.1 [Data Steel Pipe Industries (Pvt.) Limited] was discharged and directed to be given back to the said Respondent No.1, while granting interim injunction.

2. Succinctly, present Appellant awarded a contract to Respondent No.1 [Data Steel Pipe Industries (Pvt.) Limited] for supply of line pipes of different grades vide Local Purchase Order No.12/TKT/17486 dated 12.08.2015. For reference, this document is referred to the subject Purchase Order, which is available at page-291 along with a copy of the Contract-'subject Contract' [inclusive of General Terms and Conditions], at page 299 (of the Court File).

3. Since delivery schedule in the above contract for supply of line pipes was not adhered to, it resulted in litigation between present Appellant and Respondent No.1, when the latter instituted a Suit No.1681 of 2016; but in due course the same was compromised by the order dated 09.08.2016 passed on a joint application filed by the above parties under Order XXIII Rule 3 of the Civil Procedure Code, 1908 (CPC) [may be referred as 'compromise application']. It would be relevant to reproduce the terms mentioned in the said application being CMA No.11213 of 2016_

"It is respectfully submitted that the parties above-named have settled their dispute out of Court on the following terms and conditions:-

1. That the Plaintiff has already delivered 609 meters of 42" OD x 0.812" WT line pipe out of the total contract and agrees to deliver another 2694 meters of 42" OD x 0.812" WT pipe on or before 30th August, 2016.

2. That the parties agreed that on completion of the delivery as stated in paragraph 1 above, the entire payment for the items delivered shall be paid within a period of 30 days from the receipt of the invoice without deduction of any amount towards losses, penalty or late payment charges.

3. That on completion of the delivery and after payment being made against the delivery, as mentioned in paragraphs 1 and 2 above, the contract being Purchase Order No.12/TKT/17485 shall stand terminated in terms of the contract.

4. That the instant suit may be disposed of in the above terms with no order as to costs."

4. The present Suit No.1165 of 2017 (latest lis) was preferred by Respondent No.1 against the Appellant, primarily challenging the correspondence dated 21.04.2017 (at page-247) (being the impugned letter) of the latter, wherein it demanded, inter alia, liquidated damages for non-delivery of line pipes under the aforesaid Purchase Order. It would be relevant to reproduce the Prayer Clause of this latest lis_

"It is prayed on behalf of the Plaintiff above named that this Hon'ble Court may be pleased to pass judgment and decree in favour of the Plaintiff as under.

1. Declaration that the Defendant No.1 is not legally entitled to deduct any amount under the garb of liquidated damages/consequential losses and subsequently claim under the Performance Guarantee bearing No.001/16/129/LG/TC as no event giving rise to a claim under the same has arisen;

2. Direct the Defendant No.1 to discharge/release the Performance Guarantee bearing No.001/16/129/LG/TC issued by the Defendant No.2 on behalf of the Plaintiff;

3. Permanently and pending the disposal of the suit, restrain the Defendant No.1, its employees, agents or any other person acting for and/or on its behalf, directly and indirectly from taking any steps/action towards black listing the Plaintiff as envisaged under the Notice dated 21.04.2017;

4. Permanently and pending the disposal of the suit, restrain the Defendant No.1, its employees, agents or any other person acting for and/or on its behalf, directly and indirectly from taking any steps/action towards encashing the Performance Guarantee bearing No.01/16/129/LG/TC and further restrain the Defendant No.2, its employee, agents or any other person acting for and/or on its behalf, directly or indirectly from making any payments to the Defendant No.1 in relation to the Performance Guarantee bearing No.001/16/129/LG/TC;

5. Costs of this suit;

6. Any other relief(s) which this Hon'ble Court may deem fit having regard to the circumstances of the case."

5. Mr. Asim Iqbal, Advocate, representing Appellant-SSGCL, argues that the terms of settlement between Appellant and Respondent No.1 in the earlier Suit No.1681 of 2016, vide said compromise application, was not intended to novate the subject contract, but to address exigency faced by Appellant at the relevant time, because non adherence to delivery schedule by Respondent No.1 was causing delay in completing the public work. He further argued that the impugned letter of Appellant (ibid) is with regard to quantity of line pipes, which was not delivered by Respondent No.1 as per the schedule mentioned in the subject contract, whereas, the line pipes, which were delivered as per the above compromise application, no monetary claim was either made nor mentioned in the impugned letter. The learned counsel has relied upon the following case law to augment his arguments_

i. 1994 SCMR page-2189

[Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others]

ii. 2016 CLD page-527 [Sindh]

[Habib Ahmad v. Meezan Bank Limited and 5 others]

iii. 2018 SCMR page-1586

[Haji Baz Muhammad Khan and another v. Noor Ali and another]

iv. 2004 SCMR page-1084

[Zulqarnain and 2 others v. Surbuland Khan and another]

v. 1992 CLC page-1887 [Karachi]

[Dr. Khalid Kamal Khan v. Dr. Arshad Kamal Khan and another]

vi. 1999 YLR page-1094 [Karachi]

[Iftekhar Ahmed Lari v. Messrs Federal Chemical and Ceramics Corporation, 15th Floor, PNSC Building, Karachi through Secretary/Chairman and 2 others]

vii. 2016 CLD page-527 [Sindh]

[Babib Ahmed v. Meezan Bank Limited and 5 others]

viii. 1999 SCMR page-2878

[Nooruddin and others v. Mst. Amiran Bibi and others]

6. Mr. Taimur Ahmed Qureshi, learned counsel for Respondent No.1, while making submissions has also filed Written Synopsis. He argued in favour of the impugned order and stated that it is not necessary to record evidence in every matter, if the entire controversy can be decided on the basis of legal issue or undisputed facts. He elaborated his submissions, that since the delivery of line pipes were made in terms of the above compromise application, as also reflected in the impugned letter of 21.04.2017 itself, the Appellant is estopped from claiming any liquidated damages under the subject contract, which stood novated in view of the afore referred compromise application. He argued that after delivery of above 2694 meters of line pipes, the Appellant released the payment but retained five percent (5%) retention money. When Respondent No.1 approached the Appellant for releasing the Performance Guarantee and the retention money amounting to Rs.98,224,761/- and Rs.10,376,767/-, respectively, the same was refused, followed by the impugned letter [ibid]. While relying on the case law cited by the Appellant's learned Advocate, which according to the learned for Respondent No.1 in fact supports the stance of Respondent No.1, he has cited the following reported precedents to fortify his arguments about disposal of entire Suit on the basis of legal issues and without a full-dress trial_

i. 1990 MLD page-2049 [Lahore]

[Sindbad Travels (Pvt.) Ltd., Lahore v. P.I.A. Corporation, Lahore]

ii. 2010 YLR page-1883 [Karachi]

[Mrs. Tahira Sultana v. Saleem Rajput and another]

7. Arguments heard and record perused.

8. Vide impugned order two interlocutory applications were allowed; the first one is C.M.A. No.7382 of 2017 and the other one was 17604 / 2017. The first C.M.A. is filed under Order XXXIX Rules 1 and 2 of C.P.C., seeking restraining orders against present Appellant and Respondent No.2 from encashing the subject Performance Guarantee No.001/1616/129/LG/TC so also from blacklisting present Respondent No.1; whereas, the second application is filed under Section 151 of C.P.C. requesting the Court to direct the present Appellant to discharge / release the above subject Performance Guarantee issued by present Respondent No.2 (SILK Bank Limited); both these applications are in the record of present proceeding at pages-93 and 169.

9. Written Statement and Counter Affidavit to the above interlocutory applications, filed by the present Appellant are also available in record and the same have been perused. Besides questioning the maintainability of the latest lis, the stance of present Appellant is that due to delay in supplying the line pipes by Respondent No.1, the public work carried out by present Appellant was halted and substantial losses were incurred; that Respondent No.1 failed to fulfill its contractual obligations; that manufacturing facility of Respondent No.1 lacked production capacity. Similarly, in the para-wise Comments filed by Respondent No.1 in the present Appeal, it is averred, inter alia, that intention of Appellant and Respondent No.1 was that after delivery of subject line pipe (referred to as 'Goods' by Respondent No.1), no claim with regard to loss or late delivery would be raised by Appellant and thus the impugned notice of 21.04.2017 is uncalled for and fanciful, in which damages to the tune of Rs.237,745,105/- is claimed.

10. Undisputedly, under the Purchase Order dated 12.08.2015, issued in pursuance to the Subject Contract, Respondent No.1 was required to supply 31000 meters of line pipes of different specification(s) to the Appellant by 06.02.2016. For certain reasons timely deliveries were not made by Respondent No.1 as also reflected from its pleadings of earlier Suit No.1681 of 2016 and finally the above compromise application was signed in which it is specifically stated in Clause-1 that Respondent No.1 (at the relevant time) delivered 609 meters of line pipes and agreed to deliver another 2694 meters of line pipes / Goods on or before 30.08.2016. It is also not disputed that Clause-1 of the compromise application was complied with against which the Appellant made payment to Respondent No.1 without deducting any amount towards loss, penalty or late payment surcharge as stipulated in Clause-2 of the said compromise application. The impugned Letter (of Appellant) is in respect of 27,695.76 meters of line pipes, which were not supplied (remained undelivered) to Appellant.

It is relevant to observe that when the above settlement was effected through the said compromise application [between Appellant and Respondent No.1] the Performance Guarantee (dated 15.02.2016 at page-267 of the Court file) was neither released nor the Respondent No.1 was asked to submit a fresh Performance Guarantee corresponding to the reduced quantity of line pipes as mentioned in the compromise application. Secondly, the termination clause of Original Contract was retained.

11. If the arguments of Respondent No.1 is accepted then it means that Appellant has given up its claim (waived its claim) with regard to such a huge quantity of Goods, which is almost nine times of the quantity that was delivered (in the manner stated above). Conversely, the stance of Appellant is completely different. Such intricate question can only be decided after Parties hereto lead the evidence in support of their respective claims, as also held in the reported decisions cited above. The finding in the impugned order that the original contract, which in fact is the subject contract, stood novated, with respect, cannot be sustained, inter alia, when both contracting parties have raised serious dispute with regard to novation and non-novation of the contract, coupled with the fact that the undelivered quantity is many times higher than the delivered quantity. By implication a 'waiver' cannot be invoked against present Appellant, firstly, because its essential ingredient is that a known right is consciously given up; and secondly, in the given circumstances, particularly, in the presence of Clauses 25 and 27 in the 'subject Contract' (about Delivery Failure and Liquidated damages), so also, considering Appellant is a public sector Company. At the cost of repetition (as already stated above), the above significant aspect requires evidence.

12. Both learned Advocates have relied upon the same case law in respect of novation of contract. Crux of the principle laid down in the cited judgments, while interpreting Section 62 of the Contract Act (1872) is that when parties to a contract agree to substitute a new contract in place of the previous one, then performance of original contract is dispensed with; Court has to examine the fact that whether the original agreement was validly rescinded; whether all rights and liabilities also extinguished (under the old contract) by novation, is a question of fact depending on the circumstances of each case.

13. Looking at the controversy in light of the case law discussed in the foregoing paragraphs, We are of the considered view, that when Appellant and Respondent No.1 have specifically alleged their respective interpretation about the above compromise application, wherein admittedly a certain part of the original subject contract has been retained (concerning the termination of the contract being Purchase Order No.12/TKT/17486), then, it was not correct to give a definite finding in the impugned order that the earlier contract stood novated, while releasing the performance guarantee and granting injunctive relief. In effect through the impugned order the entire suit has been decided, although pleadings of Parties clearly show that triable issues are involved in the latest lis. The decisions relied upon by the learned Advocate for Respondent No.1, about disposal of entire cause on the basis of legal issue(s), are not applicable to the peculiar facts of the present controversy, although the rule laid down in these reported decision is an establishment one.

14. The upshot of the above discussion is that the impugned order dated 23.11.2018 is set-aside with an observation that learned Bench seized of the case will rehear the afore-referred CMAs in the latest lis, without being influenced by any observation made in this Judgment, which is also of tentative nature.

KMZ/S-132/Sindh Order accordingly.

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--Rr. 134, 152 & 172---Duty of enrolled advocate---Professional honour---Code of conduct---Honour of profession is advanced when an advocate renders professional services or give advice undertaking exact compliance with the strictest principles of moral law--

 P L D 2021 Islamabad 169

(a) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----Rr. 134, 152 & 172---Duty of enrolled advocate---Professional honour---Code of conduct---Honour of profession is advanced when an advocate renders professional services or give advice undertaking exact compliance with the strictest principles of moral law---Integral part of prescribed code of conduct is that an advocate himself has to observe and advices his client to obey and respect statute law---Advocate has his/her highest honour in a deserved reputation for fidelity to private trust and to public duty as an honest man and or a patriotic and loyal citizen---Status of enrolled advocate in a society is extraordinary and unique---Advocates are foot soldiers of no one except the Constitution and law, they have distinction of being members of the most noble amongst the professions---Advocates are guardians of the Constitution and law and their professional obligation requires each member of legal fraternity to serve the society---Legal profession is not a business but service to the society and the nation---Every enrolled advocate is to act in the best interest of society having regard to strict compliance with enforced laws.

(b) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----R. 175-A---Professional misconduct---Regulatory bodies, duty of---Scope---Non-observance or violation of professional conduct and etiquettes are deemed to be professional misconduct under R.175-A of Pakistan Legal Practitioners and Bar Councils Rules, 1976, exposing him to disciplinary proceedings---Respective statutory Bar Councils are competent forums to regulate conduct of enrolled advocates and hold them accountable for violations of canons of conduct and etiquettes---Enrolled advocates cannot indulge in deception or betrayal of public---If giving advice to a client in any manner, in violation of law is misconduct then it is a graver misconduct for an enrolled advocate to take law into his or her own hands---Such enrolled advocate besides committing misconduct, is no more eligible to be certified as 'fit and proper' by High Court to be considered for pleading or appearing before Supreme Court---Enrolled advocate who has taken law into his or her own hands also cannot be certified as having 'character and conduct' worthy of being considered for being enrolled as advocate of High Court.

(c) Constitution of Pakistan---

----Art. 9---Right to life---Unregulated and illegal construction---Effect---Unregulated and illegal construction has profound consequences in the context of irreversible damage to environment---Enforcing existing enforced laws and regulatory framework in Islamabad Capital Territory has become inevitable because right to life guaranteed under Art.9 of the Constitution is being flagrantly violated.

(d) Pakistan Legal Practitioners and Bar Councils Rules, 1976---

----Rr. 134, 152, 172 & 175-A---Capital Development Authority Ordinance (XXIII of 1960), S.12---Illegal possession---Amenity and public utility plots---Restoring status of plots---Petitioner alleged that allotments made to advocates by Islamabad District Bar in playground or elsewhere were without lawful authority and jurisdiction and sought restoring the status of amenity plots---Validity---Allotments made to advocates by Islamabad District Bar in playground or elsewhere without lawful authority and jurisdiction---Office bearers of District Bar were exposed who were involved in such illegal acts to disciplinary proceedings for misconduct---Enrolled advocates who accepted such illegal allotments had also no lawful justification to construct chambers on State land---High Court declared purported allotments made by Islamabad District Bar in playground as illegal, void and without jurisdiction and authority---Encroachments on any State land and any construction thereon in violation of Capital Development Authority Ordinance, 1960, and rules or regulations made thereunder were illegal, void and liable to be removed---Any advocate who took law into his or her own hands or had violated law in any manner whatsoever was not eligible to be certified by High Court as 'fit and proper' to plead and appear before Supreme Court---Any enrolled advocate who volunteered to take law in his/her own hands could not be certified as having 'character and conduct' for the purposes of being enrolled as an advocate of High Court---High Court directed members of Bar to clear illegal construction and restore playground for public use as small fraction of total number of members of Islamabad District Bar were beneficiaries of illegal construction of chambers---High Court further directed Federal Government and Capital Development Authority to restore the playground for use of public in case the same was not restored within specified time---High Court also directed Federal Government to enquire into inaction of public functionaries and to proceed against those officials who were responsible for depriving general public from exercising constitutionally guaranteed rights-

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-S. 3(1)--Order of detention of 30 days passed by Deputy Commissioner on the ground of activities prejudicial to public safety and tranquility-

 PLJ 2022 Lahore 1

West Pakistan Maintenance of Public Order Ordinance, 1960 (XXXI of 1960)--

----S. 3(1)--Order of detention of 30 days passed by Deputy Commissioner on the ground of activities prejudicial to public safety and tranquility--Challenge to--There is no concrete and tangible evidence in support of impugned order--S. 3 of Ordinance cannot be based on conjectures and surmised--Grounds of detention must have support of sufficient cogent material and it would satisfy issuance of preventive order--Order issuing u/S. 3 of MPO, must satisfy itself that evidence before authority is sufficient to justify detention order, without it, it would be violative of Art. 9 of Constitution--Preventive detention order is declared illegal, unlawful and issued without application of independent mind.                                                                                             

                                                                    [Pp. 2, 3 & 5] A, B, C, & F

PLD 2003 SSC 442; PLD 2016 Pesh 89; 2004 MLD 1541;
2004 PCr.LJ 1604.

Constitution of Pakistan, 1973--

----Art. 9 & 10--A person cannot be deprived of his liberty on basis of flimsy/shaky and insufficient material/evidence--Article 9 of Constitution provides for security of person "No person shall be deprived of life and liberty save in accordance with law". Now under provision of Section 3 of Ordinance authority which is issuing preventive detention order under Section 3 of MPO, must satisfy itself that material produced before him is sufficient to justify detention order, without it, it would be violative of Article 9 of Constitution. [Pp. 3 & 4] D & E

PLD 2003 SC 442 ref.

2004 MLD 1541; 2004 PCrLJ 1604 ref.

Kh. Qaiser Butt, Advocate for Petitioner.

Mr. Azhar Saleem Kamlana Addl. Advocate General with Ahmad Shehzad Deputy Commissioner, Multan.

Haji Muhammad Aslam Malik, Advocate/Legal Advisor.

Date of hearing: 25.8.2021.

 PLJ 2022 Lahore 1
[Multan Bench, Multan]
Present: Sardar Muhammad Sarfraz Dogar, J.
SHAHID RASOOL--Petitioner
versus
GOVERNMENT OF PUNJAB through Secretary Home Department and 6 others--Respondents
W.P. No. 12655 of 2021, decided on 25.8.2021.

Order

The petitioner, invoked the writ jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, for declaration to the effect that impugned order Bearing
No. POB-1-111/2021/D.C dated 15.8.2021 issued by the Deputy Commissioner, Multan (Respondent No. 3) whereby the petitioner's brother, namely, Qari Tahir Rasool was ordered to be detained for a period of 30-days under Section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 on the so called ground of prejudicial to public order safety and tranquility donstant threat to the law and order of the area and indulging in activities to defuse the writ of the government is arbitrary, fanciful, discriminatory, unconstitutional and without lawful authority, hence, liable to be struck down.

2. Learned counsel for the petitioner argued that the petitioner's brother is law abiding citizen and never remained involved in any kind of illegal and unwarranted activities. Official respondents, due to their personal malice and malafide have allegedly shown involvement of the petitioner's brother in unlawful activities, which has no basis and footing. He prayed for setting aside the impugned order of Respondent No. 3 issued under Section 3 MPO.

3 & 4. Learned Additional Advocate General fully supported the impugned detention order issued by Respondent No. 3 and prayed for dismissal of instant writ petition

5. I have heard the arguments advanced by learned counsel for the parties and perused the record with their able assistance.

6. It has been noticed that Respondent No. 3 passed the impugned order dated 15.8.2021 for the detention of the petitioner's bother Qari Tahir Rasool, the alleged detenue, on the report submitted by Respondent No. 4/C.P.O Multan, on the grounds that he is involved in a number of criminal cases, detail of which is mentioned in the impugned order.

7. Mr. Ahmad Shehzad, Deputy Commissioner, Multan appeared in pursuance of pre-admission notice and produced report against the detenue and stated that due to registration of certain FIRs the impugned letter was issued. Upon query of this Court that whenever report was received by the DC from Police Hierarchy or District Intelligence Committee qua issuing of detention order of any person, whether he applied his independent judicious mind or not, the reply of DC is not satisfactory. This Court noticed that the DC has issued the impugned order blindfoldly without having any sufficient and incriminating material against the detenue.

8. Apart from the criminal cases, the Respondent No. 3 is not in possession of any other concrete and tangible material/evidence in support of order dated 15.8.2021.

9. Order under Section 3 of the Ordinance ibid cannot be based on conjectures and surmises, rather it should be based on concrete and tangible evidence. Moreover, the grounds on the basis of which detention order of a person is issued/passed, that must have the support of sufficient cogent material and only thereafter, it would satisfy the issuance of preventive order. Furthermore, the material/evidence must be of such a nature and character to persuade and satisfy an ordinary prudent person to justify the order of preventive detention. It is the consistent view of the superior Courts of the country that a person cannot be deprived of his liberty on the basis of flimsy/shaky and insufficient material/evidence. Wisdom in this respect drawn from PLD 2003 Supreme Court 442, wherein, it is held:

"It can be concluded safely that satisfaction can only be based on some evidence or record justifying the detention order which is badly lacking in this case".

In the above cited judgment the apex Court has thrashed out the entire law available on the subject. Reliance can also be placed on PLD 2016 Peshawar 89, wherein it is held:

"Needless to say that it has consistently been held umpteen times by the Courts that powers under Section 3 MPO could not be invoked for detention of persons on the grounds other than provided for by the law. As such, preventive detention of a person who is either accused of an offence or\ convicted for a crime would not only amount to double jeopardy but would also militate against the spirit of the relevant law, prescribing procedure and penalties for commission of offences, as resort to preventive measures is useful only before commission of the offence and not after the offence has been committed, where-after case is registered and legal prdcess for prosecution of the perpetrator is initiated":

10. Article 9 of the Constitution provides for the security of the person "No person shall be deprived of life and liberty save in accordance with law". Now under the provision of Section 3 of the Ordinance ibid, the authority which is issuing preventive detention order under Section 3 of MPO, must satisfy itself that material/evidence produced before him is sufficient to justify the detention order, without it, it would be violative of Article 9 of the Constitution. Wisdom is derived from 2004 MLD 1541, wherein it is held that:

"To my mind, life and liberty of citizens is too much important, no person can be deprived of this precious liberty, unless allegation against him are prima facie proved from the record. In the instant, case prima facie this Court is of the view that these allegations against the petitioners are not proved from the record in hand after making tentative assessment of the evidence ".

Wisdom is further derived from 2004 P.Cr.L.J. 1604, wherein it is held that:

"It is well settled now that even the Constitution of Islamic Republic of Pakistan provides that no person shall be deprived of life, liberty save in accordance with law. Indeed the State has\to act within the limits of law wherever, the life or liberty of individual is affected"

11. Keeping in view the above stated facts and circumstances of the case, this Court has reached to the conclusion that the preventive detention order dated 15.8.2021 of Respondent No. 3 is illegal, unlawful and issued without application of independent mind, hence, the same is set-aside and struck down. This petition is allowed accordingly. The detenue be released forthwith, if not required in any other case.

(K.Q.B.)          Petition allowed

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Where a recovery suit is to be filed on the basis of dishonor of cheque,

 2022 MLD 762

Where a recovery suit is to be filed on the basis of dishonor of cheque, the respondent would have the option of choice of forum for filing recovery suit either in the district courts where the bank on which it was drawn is situated or in the district courts within jurisdiction of which the bank where it was presented for encashment and dishonored is situated on the basis of doctrine of election, which not only is applicable to the available remedies but also to the available forums, if they have concurrent jurisdiction to try a matter within its jurisdiction subject to exception of mala fide choice of forum which has to be established by pleading details of such mala fide whereas in the present case the appellant has not pointed out any such mala fide of the respondent to file recovery suit at District Khanewal, within the jurisdiction of which the cheque was dishonored, hence, application under Order VII Rule 10 CPC filed by the appellant for return of plaint to be filed at courts at Tehsil Mailsi, District Vehari, where the bank on which cheque was drawn is situated, was rightly dismissed by the trial court.

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-Failure of court to advert to application for interim relief---Scope---Petitioner assailed interlocutory order passed on an application under S.12(2), C.P.C., whereby notices wère issued to respondents---

 2021 CLC 1778

Civil Procedure Code (V of 1908)---

-Ss.12(2) & 115---Revision petition--Failure of court to advert to application for interim relief---Scope---Petitioner assailed interlocutory order passed on an application under S.12(2), C.P.C., whereby notices wère issued to respondents---Contention of petitioner was that application for interim relief was filed along with the application under S.12(2), C.P.C., which was not entertained or adverted to by the trial court which amounted to declining the interim relief---Validity--- Impugned order did not show that application for interim relief was taken up for hearing before the court which had taken cognizance of the application under S.12(2), C.P.C.---Petitioner was required to show that the application had been taken up for hearing and after applying application of mind the court had either refused the relief or deliberately avoided to pass any order on the same amounting to refusal of interim relief--Revision petition being premature was disposed of with the observation that the petitioner in the first instance may raise the matter of pendency of the application before the trial court.

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--Art. 199--Appointment of patwaries--Appointment of Respondents Nos. 5 to 14 was challenged by petitioners-vested right to appointment--Extra ordinary Jurisdiction--

 PLJ 2021 Peshawar (Note) 117

Constitution of Pakistan, 1973--

----Art. 199--Appointment of patwaries--Appointment of Respondents Nos. 5 to 14 was challenged by petitioners-vested right to appointment--Extra ordinary Jurisdiction--Direction to--contention of counsel for petitioners that petitioners had to be directly appointed against posts of patwaris on basis of entries in patwar register without written test and interview has no force--Mere entries in patwar register would not give any vested right to petitioners to be appointed without prescribed procedure provided by law i.e written test and interview--Petitioners could not make out a case for interference by High Court in exercise of its extraordinary Constitutional jurisdiction--Respondents are directed to initiate process of filling up vacant posts at earliest strictly in accordance with law applicable thereto--Appointment of Respondents Nos. 5 to 14 as Patwaris has been challenged, but at time of arguments, counsel for petitioners did not seriously challenged same and stated that petitioners are only interested in their own appointment--Court is not inclined to disturb appointment of Respondents Nos. 5 to 14 as there is no fault on their part and more so, they have served respondents for more than three years without any complaint from Department.   

                                                                 [Para 8, 9 & 12] A, B, C & D

Mr. Muhammad Yousaf Khan, Advocate for Petitioners.

Mr. Kamran Hayat Miankhel, Additional A.G. for Respondents Nos.  1 to 4.

Date of hearing: 27.11.2019.

 PLJ 2021 Peshawar (Note) 117
[D.I. Khan Bench]
Present: Syed Muhammad Attique Shah and Sahibzada
 Asadullah
 Asadullah, JJ.
MUHAMMAD YAQOOB and another--Petitioners
versus
GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Land Revenue Department, Peshawar and others--Respondents
W.P. No. 340-D of 2016 with C.Ms. Nos.  313-D of 2016 and
713-D of 2019, decided on 27.11.2019.

Judgment

Syed Muhammad Attique Shah, J.--Through this single judgment, we propose to dispose of instant W.Ps. Nos. 340-D of 2016 and W.Ps. Nos. 681-D of 2016 and 503-D of 2019 as common question of law is involved in all the three petitions.

2. In all the three petitions, the petitioners seek issuance of writ directing the respondents for their appointment as Patwaris according to register of Patwari candidates, however, in W.P.No. 340-D of 2016, the petitioners have also challenged the appointment of Respondents Nos. 5 to 14 as Patwaris.

3. In Writ Petitions Nos. 340-D of 2016 and 681-D of 2016, the respondents have filed their para-wise comments.

4. We have heard the arguments of learned counsel for the parties and perused the available record.

5. The most point for consideration before this Court is as to whether appointments of Patwaris would be made in accordance with the provisions of Chapter 3 of the Land Records Manual or the Government of NWFP Revenue and Estate Department (Tehsildar, Naib Tehsildar/Subordinate Revenue Service) Rules, 2008?

6. Paragraph 36 of Land Record Manual (Manual) being relevant in the instant matter is reproduced below for ready reference:-

“(1) For each sub-division, a list of all Patwar Pass persons shall be maintained by the Sub-Divisional Collector/Political Assistant in Form P-1 given in Appendix ‘G’ with a view to have ready information about the availability of eligible persons in the Sub-Division to facilitate filling up the vacancies. However, the appointment of Patwaris shall be made strictly in accordance with the Service Rules and the Recruitment policy as may be applicable at the relevant time.

(2) Maximum educational qualification for the Pawari is Matric/Secondary School certificate. The names of only those persons shall be enrolled, who are bona fide residents of the concerned Sub-Division.

(3) The names of the eligible persons shall be added to the list as and when the result of the Patwar Examination is received and no eligible person shall be refused enrolment.

(4) The aforesaid list shall be verified and up-dated by the Collector concerned at least once in a year so as to exclude the names of those who have become un-available on account of death, migration, employment on any other post, etc.

(5) A separate list of Patwar pass persons, belonging to Cholistan area will be maintained by the Colonization Officer concerned to meet the requirements of the Organizations.”

Initially the post of Patwaris used to be filled under the provisions of Chapter 3 of the Land Record Manual. Subsequently, the procedure for the appointment of the Patwaris was codified through West Pakistan (Northern Zone) Patwaris Subordinate Service Rules, 1963, which was later on amended through Government of NWFP Revenue and Estate Department (Tehsildar, Naib Tehsildar/Subordinate Revenue Service) Rules, 2008 pursuant to the provisions contained in Sub-Rule (2) of Rule 3 of the Khyber Pakhtunkhwa, Civil Service (APT) Rules, 1989. The relevant amendment is reproduced below for ready reference:-

“By initial appointment from amongst the Patwari passed candidates entered in Register maintained by the District Collector of the District concerned having one year diploma in information technology from any institution recognized by Board of Technical Education. The condition of diploma will be applicable after three years from the date of issuance of Notification.”

Vide Notification dated 02.12.2011, the Government made further amendments in this respect which are reproduced below:

“(a) By initial appointment from amongst the Patwar passed candidates entered in the Register maintained by the District Collector of the district concerned having one year certificate in information technology from any Institution recognized by Board of Technical Education.

(b) Successfully completed 09 months settlement training. This condition will be applicable w.e.f January, 2014.”

However, vide Notification dated 23.01.2015, in supersession of all previous rules issued in this behalf, the Government laid down the method of recruitment, qualification and other conditions which reads as:-

“By initial appointment from amongst the Patwar passed candidate entered in the Tehsil patwar candidate register maintained by District Collector of the district concerned.”

Subsequently, the matter of appointment of Patwaris came up for hearing before this Court in the case of Ameer Taimoor and 7 others v. Government of Khyber Pakhtunkhwa through Senior Member, Board of Revenue and 3 others (2016 PLC (C.S.) 106) whareafter, amendments have been made in the earlier notification dated 26.12.2008 through Notification Nos. 38383-38423 dated 25.11.2016. The same is reproduced for ready reference.

“In the Appendix, against Serial No. 8, in Column No. 7, for the existing entry, the following shall be substituted, namely:

By initial recruitment from amongst the patwar passed candidates entered in the patwar candidates register of Tehsil or District concerned on the basis of test and interview to be conducted after advertising the posts.”

7. In all the three petitions, the prayer of the petitioners is for their appointment as Patwaris according to the register of Patwar candidates. As mentioned in Paragraph 3.6 of the Manual reproduced above, the maintenance of list of Patwar passed persons is mandatory to have ready information about the availability of eligible persons to facilitate filling up the vacancies and it is nowhere mentioned that appointment is to be made according to the entries in the list. If the appointments of Patwaris had to be made according to the entries in the list, then, there would have been no need to mention in Paragraph 3.6 of the Manual that “the appointment of Patwaris shall be made strictly in accordance with the Service Rules and the Recruitment Policy as may be applicable at the relevant time”.

8. In view of above, the contention of the learned counsel for the petitioners that the petitioners had to be directly appointed against the posts of patwaris on the basis of the entries in patwar register without written test and interview has no force. Mere entries in the patwar register would not give any vested right to the petitioners to be appointed without the prescribed procedure provided by the law i.e the written test and interview. The post of patwari is of great importance and significance as, no efficient revenue administration of a revenue area is possible unless, the patwar staff is properly qualified, trained and appointed on merit through a transparent, fair and competitive procedure.

9. So far as authority of the Government to make amendments in the recruitment policy is concerned, as of now, it is settled that the Government is always empowered to change the policy or to make amendments in the same as per the requirements in the public interest and the rules applicable and the conditions required to be specified are those which are in force on the date of appointment and not which were earlier existing or in vogue at the time of inviting applications. Mushtaq Ahmad Mohal and others v. The Hon’ble Lahore High Court, Lahore and others (1997 SCMR 1043). Wisdom is also derived from Judgments reported as Imtiaz Ahmad and others v. Punjab Public Service Commission through Secretary, Lahore and others (PLD 2006 SC 472), Sh. Muhammad Sadiq v. Federal Public Service Public Service Commission and others (2013 SCMR 264) and Zafar Iqbal and another v. Director Secondary Education, Multan Division and 3 others (2006 SCMR 1427). Since the Government of Khyber Pakhtunkhwa has made amendments referred to above, which are in line with transparency, fair play and good governance, therefore, the same have to be followed in letter and spirit while making the appointment of Patwaris. The petitioners could not make out a case for interference by this Court in exercise of its extraordinary Constitutional jurisdiction. However, the respondents are directed to initiate the process of filling up the vacant posts at the earliest strictly in accordance with law applicable thereto.

10. The learned counsel for the petitioners heavily relied upon the judgment of this Court dated 17.01.2018 rendered in W.P.No. 931-B/2016 (Islam Ali and others v. Government of KPK through Chief Secretary, Peshawar and others). Perusal of the same reveals that ibid judgment has mainly been based upon Paragraph 3.11 of the Manual, however, the same is of no help and support to the petitioners, as the same stands omitted vide correction Slip No. 6/89 dated 18.10.1989. Therefore, the petitioners could not get any benefit out of the above referred judgment.

11. Granted, that Chapter 3 of the Manual has provided instructions in the matters pertaining to the appointment of the Patwaris and it had also been acted upon since long, but as earlier discussed, Paragraph 3.6 of the said instructions has clearly provided that “the appointment of Patwaris shall be made strictly in accordance with the Service Rules and the Recruitment Policy as may be applicable at the relevant time” and the applicable rules have manifestly provided that Patwaris shall be appointed By initial recruitment from amongst the patwar passed candidates entered in the patwar candidates register of Tehsil or District concerned on the basis of test and interview to be conducted after advertising the posts. Assuming, for the sake of arguments that Paragraph 3.11 of Chapter 3 of the Manual still holds the field, even then under the law the same cannot stand against the statutory rules, being in conflict with the ibid rules. It is equally true that long standing instructions could not be ignored, however, when there is conflict between the departmental instructions and the statutory rules, then the latter are to prevail. The Central Board of Revenue, Islamabad and others v. Sheikh Spinning Mills Limited, Lahore and others (1999 SCMR 1442) and Punjab Beverages Co. (Pvt.) v. Federation of Pakistan through Ministry of Finance and others (2016 PTD 1736).

12.  In W.P. No. 340-D of 2016, though the appointment of Respondents Nos. 5 to 14 as Patwaris has been challenged, but at the time of arguments, the learned counsel for the petitioners did not seriously challenged the same and stated that the petitioners are only interested in their own appointment. However, perusal of record transpires that Respondents Nos. 5 to 14 have been appointed vide order dated 12.01.2016, after the judgment of larger Bench of this Court dated 04.02.2015 in Ameer Taimoor’s case (supra) wherein it was held that:

“we are of the view that until and unless rules prescribed for appointment of Patwaris provided in the Land Record Manual as well as service rules with regard to method of recruitment of Patwaris are not amended or struck down, the respondents are bound to make appointment in accordance with the existing rules and policy governing the subject matter as it is settled principle of administration of justice that when law requires a thing to be done in a particular manner then that thing be done in that particular manner and not otherwise.”

In such view of the matter, this Court is not inclined to disturb the appointment of Respondents Nos. 5 to 14 as there is no fault on their part and moreso, they have served the respondents for more than three years without any complaint from the Department.

13. For the reasons mentioned above, all the three petitions are disposed of in the above terms.

                        Petition disposed of

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-Suit for declaration, correction of mutation and permanent injunction--Concurrent judgments--Suit land was mutated in record of rights in names of respondents-

 PLJ 2022 Quetta (Note) 30

Specific Relief Act, 1877 (I of 1877)--

----Ss. 42, 33 & 54--Suit for declaration, correction of mutation and permanent injunction--Concurrent judgments--Suit land was mutated in record of rights in names of respondents--No evidence regarding no presence of petitioners at time of final attestation--Mutation entries were not challenged by petitioner's father in his life time--Challenge to--Suit land was mutated in record of rights in names of respondents at time of final attestation--The petitioners had raised no objection--There is no evidence on record that petitioners were not present at time of final attestation--Entries made long ago--The petitioners have not challenged entries before revenue functionaries or through civil suit--There is no denial of facts that father of petitioners had not claimed inheritance during his life time, nor filed any suit before any forum--After death of father petitioners for first time claimed inheritance of late Tabaz Khan--Revision petition dismissed.                                                 [Para 8, 9 & 11] A, B & C

1979 SCMR 625, AIR 1939 PC 114 and 2015 ILR 2443 ref.

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 117--Burden of proof--Burden of proof lies on party who desire any Court to pass judgment in his favour--The party seeking relief from Court would have to discharge his burden by proving his case on its own evidence--The plaintiff has to prove its case on strength of his own evidence and cannot take benefit from short comings of defendant's evidence.                                                     [Para 12] D

2004 YLR 709 ref.

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

----S. 115--Scope of--Scope under Section 115, CPC is very limited in nature--Reappraisal of evidence is not function of High Court--The mere fact that High Court might have taken different view is no ground to interfere with concurrent findings of fact recorded by Courts below.                       [Para 13] E

2006 SCMR 50 ref.

Mr. Muhammad Akram Shah Advocate (called absent) for Petitioners.

Mr. Khalid Ahmed Kubdani, Advocate for Respondents No. 18 to 24.

 Mr. Muhammad Ayub Assistant Advocate General for official Respondents.

Date of hearing: 16.10.2020.

 PLJ 2022 Quetta (Note) 30
Present: Abdul Hameed Baloch, J.
ABDUL GHAFOOR and others--Petitioners
versus
MUHAMMAD MURAD and others--Respondents
C.R. No. 213 of 2012, decided on 21.10.2020.

Judgment

Through this judgment I intend to dispose of above titled revision petition filed by the petitioners/plaintiffs against the judgments and decrees dated 28th September, 2011 and 27th April, 2012 (impugned judgments and decrees) passed by learned Qazi Kharan and learned Majlis-e-Shoora Kharan (trial and appellate Court) respectively, whereby the suit filed by the petitioners/ plaintiffs was dismissed and appeal filed against the same was also dismissed.

2. Concise facts of the case are that the petitioners/plaintiffs filed a suit for declaration, permanent injunction and correction of entries regarding land bearing khewat No. 4, Khatooni No. 4, khasra No. 39, 40, 41, 42, 43, 44, 45, 118, situated at Mouza Jahlwar Eastern Sub Tehsil Shahoo Gari District Washuk against the respondents/ defendants before learned Qazi Kharan with the following prayer:

3. The respondents/Defendants No. 1 to 17 contested the suit on legal as well as factual grounds by filing written statement and prayed for dismissal of the suit.

4. On 5th January, 2010 the learned trial Court framed eight issues out of the pleadings of the parties. Whereafter, the parties to the lis produced their respective evidence. On conclusion the learned trial Court heard arguments and thereafter, vide impugned judgment and decree dated 28th September, 2011 dismissed the suit of the petitioners/plaintiffs. Being aggrieved of the same the petitioners/ plaintiffs preferred appeal before learned Majlis-e-Shoora Kharan, who vide impugned judgment and decree 27th April, 2012 dismissed the appeal by upholding the judgment and decree of the trial Court; hence the petitioners/plaintiffs are before this Court.

5. Heard the learned counsel for the respondents, Assistant Advocate General and perused the record with their assistance. The record transpires that the petitioners/plaintiffs filed a suit for declaration, permanent injunction and correction of entries khewat/ khatooni No. 4/4, khasra No. 39, 40, 41, 42, 43, 44, 45 and 118 situated at Mouza Jahlwar Sharqi Sub Tehsil Shaho Gari District Washuk before Qazi Kharan. The respondents/ defendants filed written statement and controverted the contention of petitioners/plaintiffs and prayed for dismissal of the suit.

6. The petitioners/plaintiffs claimed inheritance of Tabaz Khan stating that the parties are descendants of Tabaz Khan. The properties of Tabaz Khan have not been distributed among the legal heirs. The respondents/ defendants fraudulently mutated the inherited properties of late Tabaz Khan in their names in the revenue record. The petitioners'/plaintiffs' witness Abdul Majeed (PW-1) in cross-examination stated as under:

7. PW-3 Abdul Rasheed in cross-examination stated that it is not correct that Moulvi Saleh Muhammad had distributed the inheritance of Mir Ezat. Further, stated that cultivated land had been distributed, not barren land. The witness admitted that he was not present at the time of distribution of land. PW-4 stated that the suit land has been distributed. Abdul Ghafoor, aged about 50 years, appeared at attorney of the petitioners/plaintiffs and recorded his statement. In cross-examination he stated that Tabaz Khan had died before his birth. Further, stated that he accepted the settlement of Moulvi Saleh Muhammad as correct. The respondents/ defendants produced Moulvi Saleh Muhammad, who stated that he distributed the inherited land of Tabaz Khan.

8. Admittedly the suit land was mutated in the record of rights in the names of respondents/defendants at the time of final attestation. The petitioners/ plaintiffs had raised no objection. There is no evidence on record that the petitioners/plaintiffs were not present at the time of final attestation. Under Section 52 of the West Pakistan Land Revenue Act, 1967 (Act 1967) the mutation carries presumption of truth. It would be appropriate to reproduce Section 52 of the Act 1967:

“Presumption in favour of entries in record-of-rights and periodical records. Any entry made in the record-of-rights in accordance with the law for the time being in force, or in a periodical record in accordance with the provisions of this Chapter and the rules made thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted thereof”

9. The entries made long ago. The petitioners/plaintiffs have not challenged the entries before revenue functionaries or through civil suit. The Honorable Supreme Court of Pakistan in case Hakim Khan v Aurangzeb 1979 SCMR 625, held:

“----The entries in jamabandis, as is obvious, carried a statutory presumption of truth under Section 44 of the Punjab Land Revenue Act XV of 1887 and Section 52, West Pakistan Land Revenue Act XVII of1967.--”

10. The document of entries cannot be disregarded. Mere bald verbal statement of the kind hardly cut ice. Even otherwise the documentary evidence cannot be rebutted by oral evidence. Reliance is placed on the case of Mt. Wallan v Fazla AIR 1939 PC 114.

11. The petitioners/plaintiffs have challenged the mutation on the ground that the suit land is ancestral property. They claimed inheritance from the grandfather. The petitioners/plaintiffs have not denied the entries made long ago. There is no denial of facts that the father of the petitioners/plaintiffs had not claimed inheritance during his life time, nor filed any suit before any forum. After the death of father the petitioners/plaintiffs for the first time claimed inheritance of late Tabaz Khan. Reliance is placed on the case of Mst. Shahi Lal v Khurshid Ali Khan 2015 YLR 2443, wherein it was held:

“10. In the recent judgment passed by the Hon'ble Apex Court in the case of Muhammad Rustam and others v. Makhan Jan and others, 2013 SCMR 299, the Hon'ble Supreme Court held that when inheritance mutation was never challenged by deceased lady in question, who remained alive after the death of her father for considerable time, the legal heirs of such lady cannot claimed the legacy being barred, under the law of limitation. Similarly in the case of Abdul Haq and another v. Mst. Surrya Begum reported in (2002 SCMR 1330) the Hon'ble Supreme Court while seized of similar issue observed as follow:

          “Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late in 1979 about nine years after the sanction of mutation which had already been given effect to in the record of rights. The petitioners, therefore, had no “locus standi” to challenge the mutation independently, for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his lifetime.”

11. This view was further affirmed in another 'judgment passed in the case of Noor Din and another v. Additional District Judge, Lahore (2014 SCMR 513) with the following observations:

          “There is no dispute that Mandoo Khan had passed away in the year 1951. The respondents/plaintiffs have also not controverted that the petitioners are in possession and enjoying the, suit property at least since the year 1971. Admittedly the gift mutation was attested in that year. Nazir Ahmad Patwari and Muhammad Naeem Akhtar, Revenue Officer who were present in Court along with the record had confirmed that no change had taken place in the revenue record since then and neither the plaintiffs nor their predecessor-in-interest have been recorded as receiving any share, in the produce of the property. When questioned the learned counsel for the respondents admitted that there is no documentary evidence to establish the receipt by the plaintiffs of any share from the produce.”

          Reliance can further be placed on the case of Mst. Garana through legal heirs v. Sahib Kamala Bibi and another (PLD 2014 Supreme Court 167). Thus, the suit filed after more than seven decades was barred by limitation.

12. Under Article 117 of Qanun-e-Shahadat Order, 1984 (Order 1984) the burden of proof lies on the party who desire any Court to pass judgment in his/their favour. The party seeking relief from the Court would have to discharge his burden by proving his case on its own evidence. The plaintiff has to prove its case on the strength of his own evidence and cannot take benefit from the short comings of the defendant's evidence. Reliance is placed on the case of Amirullah Khan v Muhammad Akram 2004 YLR 709.

13. The scope under Section 115, CPC is very limited in nature. Reappraisal of the evidence is not function of the High Court. The mere fact that this Court might have taken different view is no ground to interfere with the concurrent findings of fact recorded by the Courts below. Reliance is placed on the case Abdul Mateen v Mst. Mustakhia 2006 SCMR 50, wherein it was held:

“--There is no cavil to the proposition that the concurrent finding on a question of fact or mixed question of law and facts, if is found suffering from misreading or non-reading of evidence or based on no evidence or. inadmissible evidence, the High Court in exercise of the revisional jurisdiction should correct the error committed by the subordinate Courts but in absence of any defect of misreading or non-reading of evidence in the concurrent finding of two Courts on such question, the interference of the High Court in the civil revision would amount to improper exercise of revisional jurisdiction. This is settled law that re-examination and reappraisal of evidence is not permissible in revisional jurisdiction even if conclusion drawn by the subordinate Courts on a question of fact was erroneous. The revisional power of High Court is exercised for correcting an error committed by the subordinate Courts in exercise of their jurisdiction and mere erroneous decision would not call for interference unless it is established that the decision was based on no evidence or the evidence relied upon was inadmissible or the decision was perverse so as to cause grave injustice. This is settled law that the High Court in revisional jurisdiction cannot upset the concurrent findings of fact by means of re-examination of evidence and in the present case, the perusal of record would not show any misreading or non-reading of evidence brought on the record by the parties or suggest that the Court of first instance and the Appellate Court had drawn wrong conclusion from the evidence calling for interference of the High Court in its revisional jurisdiction.”

In view of above I find no illegality, irregularity, misreading or non-reading of evidence in the impugned judgments and decrees of the Courts below which require interference by this Court, therefore, the judgments and decrees dated 28th September, 2011 and 27th April, 2012 passed by learned Qazi Kharan and learned Majlis-e-Shoora Kharan respectively are upheld and petition being devoid of merit is hereby dismissed with no orders as to costs.

(Y.A.)  Petition dismissed

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