Petitioner is that he made forged signatures of the complainant on a cheque and issued the said cheque to his co-accused.

 2022 SCMR 821

As per the contents of the crime report, the petitioner and the complainant were maintaining a joint bank account. The allegation against the petitioner is that he made forged signatures of the complainant on a cheque and issued the said cheque to his co-accused. When the cheque was presented to the bank, it returned the same due to insufficient funds and mismatch of the signatures of the complainant. It is the case of the petitioner that the cheque book was in the custody of the complainant; ten cheques from the same cheque book have already been encashed at the behest of the complainant and the petitioner never issued the disputed cheque. On our specific query, we have been informed that no forensic test of the alleged forged signatures of the complainant has been conducted so far to ascertain as to whether the signatures are forged or the real one. The amount for which the cheque was given has not been mentioned in the crime report.

It is an admitted fact that the co-accused of the petitioner has been granted post-arrest bail by the court of competent jurisdiction which remains unchallenged by the complainant. Any order by this Court on any technical ground that the consideration for pre-arrest bail and post-arrest bail are entirely on different footing, would be only limited upto the arrest of the petitioner because of the reason that soon after his arrest he would become entitled for the concession of postarrest bail on the plea of consistency.

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The matter of contempt of court is essentially a matter between the court and the alleged contemnor.

 Therefore, if the court concerned, in exercise of its discretion, does not take any action for its alleged contempt or accept the apology rendered by the alleged contemnor, for certain reasons, the appellate court would not ordinarily substitute its own opinion and direct that court to proceed in the matter necessarily or reject the apology so rendered. This general principle of practice and propriety, as to non-interference in the discretionary orders of the High Court declining initiation of contempt proceedings against the alleged contemnors, was enunciated by a five member larger bench of this Court in the case of WAPDA v. Chairman N.I.R.C.

What is also important to note is that, the said general principle is not absolute and, like other such principles, admits exceptions. Supreme Court has time and again held that, though discretionary orders passed by the High Courts are not generally interfered with but they are not immune from scrutiny, if they are found to be arbitrary, perverse, or against the settled principles of law.

It would also be pertinent to observe here that the ultimate jurisdiction of this Court under Article 185(3) of the Constitution to grant leave to appeal against any judgment, decree, order or sentence of a High Court is not circumscribed by any limitation by the Constitution. The principles governing the exercise of this jurisdiction are of self-restraint, settled by the Court itself, keeping in view the considerations of propriety and practice. Supreme Court thus ordinarily exercises its jurisdiction under Article 185(3) of the Constitution, and grants the leave to appeal, as held by a six-member larger bench of this Court in Noora v. State, in cases where some serious question of law is prima facie made out or some case of grave miscarriage of justice is established either by reason of the fact that the findings sought to be impugned could not have been arrived at by any reasonable person or that the findings are so ridiculous, shocking or improbable that to uphold such a finding would amount to a travesty of justice. Therefore, only when the finding of a High Court refusing to initiate proceedings for civil contempt is arbitrary, perverse, ridiculous or improbable, can the same be interfered with by this Court in exercise of its jurisdiction under Article 185(3) of the Constitution.

Contempt of Court/Non-compliance of Court Order

C.P.34-Q/2019 Abdul Baqi and others v. Haji Khan Muhammad and others

Mr. Justice Yahya Afridi

20-05-2022

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Offence under Illegal Dispossession Act, 2005 is non-compoundable; withdrawal of complaint under section 248 Cr.P.C. is the right course.

 PLD 2022 Lahore 427

Institution of criminal proceedings is mainly controlled by the provisions of Code of Criminal Procedure 1898; development in stages up to logical conclusion is too regulated through similar law subject to any criteria set through General Clauses Act or a special procedure introduced by any special law. General application of code of criminal procedure on a special law for procedures not ‘specified or prohibited’ is the principle of law embodied in two philosophies under the touch of “express provision and specific prohibition” which leads when the court finds no other way to advance the cause of justice in any given circumstances. It equally carries weight that if the provision of law which rails the proceedings during trial can also be stretched at the level of appellate stage to give effect to the contentions of the respective parties.

A criminal trial though is controlled by the court yet the parties are also authorized to terminate the same at any stage, requesting the court to stop the prosecution. We know criminal trial is concluded/ terminated with three main results; 1st, either the accused earns premature acquittal u/s 249A/265K or acquitted after full dressed trial u/s 245/265H Cr.P.C. or convicted u/s 243/245(2) or 265H (2) Cr.P.C.; 2nd, when parties entered into compromise and the accused is acquitted; because effect of such compromise is of acquittal as embodied in section 345 (6) of Cr.P.C. 3rd, when the public prosecutor opts to withdraw from prosecution which is regulated u/s 494 Cr.P.C. read with section 10(3)(e)&(f) of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 and such withdrawal during trial amounts to acquittal of accused from the charges.

There is no cavil to the proposition that complaint can be withdrawn during the trial u/s 248 Cr.P.C. but once the accused is convicted and an appeal against conviction is pending, whether the complaint on the basis of compromise or on any other reason could be withdrawn is the query that is to be answered in this case.

From the plain reading of the provisions of 248 CrPC it is reflected that there are two preconditions for permission to withdraw the complaint, which are as follows;

i. Before the final order is passed

ii. Satisfy that there are sufficient grounds

Final order, obviously means an order of acquittal or conviction upon conclusion of trial whereas sufficient grounds may entail out of court settlement for any consideration, or the demise of the parties or the loss is made good or any alternate dispute resolution. Depending upon the circumstance of the case, court can either grant or withhold the permission. Withholding of permission may amount to continuation of prosecution even through any other person.

In section 248 Cr.P.C. word “final order” connotes the culmination of proceedings up to the last remedy available to the parties to over turn the decision of trial court because final order of acquittal or conviction can also be passed on an appeal before the superior courts; therefore, section 248 Cr.P.C. would be available during proceedings before appellate court as well. Even otherwise, it is trite that appeal is considered as continuation of trial;

Section 248 Cr. P.C falls in Chapter XX of Cr. P.C. which relates to trial by Magistrate whereas trial by Court of Session is regulated under Chapter XXII-A Cr.P.C., contention that section 248 Cr. P.C. shall not be available to Court of Session is a question that has its different outcome in the light of provisions of Illegal Dispossession Act, 2005. Section 4 of said Act is necessarily to be read before answering this query: -

4. Cognizance of offence .-

(1) Notwithstanding anything contained in the Code or any law for the time being in force, the contravention of section 3 shall be triable by the Court of Session on a complaint.

(2) The offence under this Act shall be non-cognizable.

(3) The Court at any stage of the proceedings may direct the police to arrest the accused.

Above clarifies that offences under Illegal Dispossession Act shall be tried by Court of Sessions, but it does not specify the application of Chapter XX or XXII-A for the purpose of trial as usually supplied through legislation for courts which work under special laws. In this law even under section-5, mode of inquiry and investigation is entirely different as to one mentioned u/s 202 Cr.P.C. therefore, when there is contrast which principle is to follow, either principle of specific prohibition or principle of express provision, the circumstances always lean toward specific prohibition. As there is no specific prohibition with respect to application of section 248 Cr.P.C. on complaint under Illegal dispossession Act, 2005; therefore, such provision shall be available to the court trying such complaint. The provision of section 9 of this Act also supports what has been discussed above.

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--Ss. 118 & 124--Specific Relief Act, (I of 1877), S. 42--Suit for declaration--Concurrent findings--Obtaining of insurance on nonmedical basis--Insurance of deceased husband of respondent-

 PLJ 2022 Lahore 396 (DB)

Insurance Ordinance, 2000 (XXXIX of 2000)--

----Ss. 118 & 124--Specific Relief Act, (I of 1877), S. 42--Suit for declaration--Concurrent findings--Obtaining of insurance on nonmedical basis--Insurance of deceased husband of respondent--Respondent was nominee of her husband--Instalments of insurance policy were paid regularly--Death of respondent's husband--Filing of death claim--Refusal of claim--Submission of death certificate--Prescription was never confronted by appellant during cross-examination--Inquiry report--Question of whether deceased committed any fraud or misrepresentation while purchasing  policy--Appellant was failed to prove mis-declaration--Appellant was required to prove fraud or misrepresentation on part of Deceased--Prescription along with inquiry report relied upon by appellant was its best evidence and no reasons have been specified as to non-production of Inquiry Officer or author of prescription--No effort was made on part of appellant to get post mortem of Deceased and in absence of same, there is no reason to discard death certificate which is public document and to which presumption of truth is attached--Appellant failed to prove mis-declaration--Death occurred within short period of time after purchase of policy is not per se a suspicious circumstance to deny relief to beneficiary--Claim of respondent has been denied and lingered by appellant without any just cause, as a result of which nominee of Deceased, who is of approximately six years of age, has suffered a lot, we are inclined to award cost of Rs. 200,000/-to be additionally paid to respondent side--Appeal dismissed.     [Pp. 400, 402 & 403] A, C, E, F, G & H

PLD 1973 SC 160, 2012 SCMR 1106, 1999 CLC 1166 Lahore,
2012 CLC 246 Lahore 1997 (1) MPLJ 203 ref.

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

----Art. 78--Producing of document--Once a document is produced as a piece of evidence, it has to undergo crucible of objective scrutiny in terms of Article 78 of Qanoon-e-Shahadat Order, 1984.            [P. 400] B

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

----Art. 129(g)--Adverse presumption--An adverse presumption is to be drawn against party which withholds best evidence.                                                                          [P. 401] D

Barrister Malik Sohail Ashiq Shujra, Advocate for Appellant.

Sardar Muhammad Rashid Khan Baloch, Advocate for Respondent.

Date of hearing: 27.9.2021.

 PLJ 2022 Lahore 396 (DB)
[Multan Bench Multan]
Present: Ch. Muhammad Masood Jahangir and Anwaar Hussain, JJ.
STATE LIFE INSURANCE CORPORATION--Appellant
versus
Mst. BIBI REEMA--Respondent
Insurance Appeal No. 178 of 2021, heard on 27.9.2021.

Judgment

Anwaar Hussain, J.--This appeal under Section 124 of the Insurance Ordinance, 2000 (“the Ordinance”) impugns judgment and decree of the Insurance Tribunal, Muzaffargarh dated 23.06.2021 whereby the suit of the respondent for recovery of insurance claim under Section 118 of the Ordinance was allowed in the sum of Rs. 300,000/-.

2. Succinctly, the respondent instituted a suit for declaration with the averments that her deceased husband, namely, Muhammad Ilyas s/o Abdul Razzaq (“the Deceased”), was insured by the appellant, vide Insurance Policy No. 607565139-0 wherein the respondent was appointed as guardian/nominee by her husband; the Deceased paid monthly instalments of insurance policy regularly and after payment of fourth instalment, he died; she filed death claim with the appellant on account of insurance policy of the Deceased, which was refused by the appellant and the respondent was constrained to institute the suit.

3. The appellant controverted the suit by filing written statement while raising legal as well as factual grounds and out of divergent pleadings of the parties, following issues were framed:

1.       Whether the deceased Muhammad Ilyas purchased a Policy No. 607565139-0 for Rs. 3,00,000/-by nominating the plaintiff/guardian, hence she is entitled to get the decree as prayed for? OPP

2.       Whether the suit of the plaintiff/petitioner is not maintainable in view of preliminary Objections No. 1 & 2? OPD

3.       Relief.”

The parties led their respective evidence which was duly recorded by learned Tribunal and after hearing both sides, the suit of the respondent was decreed as prayed for, vide impugned judgment and decree.

4. Learned Counsel for the appellant argues that the policy was on non-medical basis and purchased initially on 27.10.2016; however, the Deceased did not pay the annual premium and same was cancelled and was later revived on 07.06.2018 where after, the Deceased only paid three instalments and died on 10.11.2019, which was after one year, five months and three days of the revival of the policy and upon inquiry, sufficient evidence surfaced which indicates that the Deceased was an addicted person and a known patient of Asthma and was under treatment of mental disease at the time when the policy was revived and evidence thereof has been ignored by learned Tribunal below. Learned Counsel argues that learned Tribunal misread the evidence, incorrectly applied the provisions of law and based its findings on inadmissible evidence and without appreciating that the claim based on a life insurance policy was obtained by the Deceased through fraud, misrepresentation and by concealment of pre-insurance illness, qua his health condition that was sheer violation of doctrine of utmost good faith, which is basis of the insurance contract. Insurance contract, as such, was unenforceable and the appellant is entitled to avoid the same in terms of Section 79 of the Ordinance, which contemplates that an insurer can avoid a contract if the person insured has fraudulently concealed material information from the insurer.

5. Conversely, learned Counsel for the respondent refuting the above arguments submits that the assertions of misrepresentation and bad faith were not supported by any record and that the findings of learned Tribunal are based on correct analysis of the evidence on record.

6. Arguments heard and record perused.

7. We have heard learned Counsel for parties and examined the record. Admittedly the Deceased obtained insurance on non-medical basis while nominating his daughter Anum Bibi as beneficiary. Non-medical life insurance assumes no medical test while issuing a policy as opposed to a traditional policy where medical tests are required (e.g., blood test, blood pressure, etc.) and are executed while relying upon the declaration, which the insured makes at the time of making of the contract of insurance. In the present case, the Deceased also made such a declaration. Insurance contracts belong to that limited category of contracts, which are regarded as one falling under doctrine of uberrimae fidei, i.e., of the utmost good faith and hence, any concealment may lead to cancellation thereof. The Deceased gave the declaration which was relied upon and the contract was revived. Instalments were admittedly paid by the Deceased. The case of the appellant is that said declaration was wrong and fraudulent as evident from the prescription handed over to the Inquiry Officer of the appellant who investigated the claim before whom the relatives of the Deceased recorded their statements that the Deceased was an addict and the early death of the Deceased after revival of policy corroborates the stance of the appellant.

8. Perusal of record reveals that the respondent discharged the burden of proving the issuance of the policy and payment of the premium by the Deceased before he died and the controversy only relates to whether the Deceased committed any fraud or misrepresentation while purchasing the policy. Death certificate (Ex.P.1) shows that the Deceased suffered natural death, therefore, in order to obtain benefit of Section 79 of the Ordinance and to repudiate the contract, the appellant was required to prove fraud or misrepresentation on part of the Deceased. In support of his stance, learned Counsel for the appellant places reliance on the medical prescription dated 18.05.2017 issued under the hand of one Dr. Azhar Hussain, Specialist of mental disease and addiction treatment along with inquiry report of the appellant’s official and statement of relatives of the Deceased (Ex.D.6). Though it is stated by the respondent in her statement that said prescription by Dr. Azhar Hussain was handed over to the Inquiry Officer of the appellant by brother of the Deceased, however, the respondent was never confronted with the said prescription while being cross-examined. By now, it is well-coalesced and deeply-embedded position of law that production of documents and their admissibility as well as the proof and probative value carried by such documents are entirely two different things and should never be used or construed interchangeably. For proving veracity of a document, the person who authored it must depose before the Court in support of the contents, otherwise such document can merely be taken into consideration for the purpose of showing that such a document was issued but whether the contents of the same are correct or not, such facts cannot go into the evidence unless the author of the document deposes before the Court and faces cross-examination. Once a document is produced as a piece of evidence, it has to undergo the crucible of objective scrutiny in terms of Article 78 of the Qanun-e-Shahadat Order, 1984 (“QSO”). Mere production of a document neither lends any credence nor confers any probative value to it. Guidance in this regard may also be sought from Pakistan Engineering Consultants through Managing Partner v. Pakistan International Airlines Corporation through Managing Director and another (PLD 2006 Karachi 511) and Messrs United Ethanol Industries Limited v. Messrs JDW Sugar Mills Ltd. (2015 YLR 1429 Lahore). In the instant case, the prescription of the doctor as well as the inquiry report has been produced in the evidence as Ex.D.6; however, astonishingly enough, neither the Inquiry Officer, namely, Muhammad Akram has been produced as a witness nor any justification as to withholding the evidence of Inquiry Officer has been advanced. Similarly, the doctor whose prescription has been presented has not been produced as a witness to prove the genuineness of the prescription sans which the same is merely a piece of paper without embodying any probative value. Hence, it was not proved that the prescription (part of Ex.D.6) was the same document, which was handed over to the Inquiry Officer. The appellant has tried to knit its case primarily around the mis-declaration implying that the concealed disease and illness of the Deceased has resulted in his death, which disentitles him from the amount claimed. It has been tried to put probative and evidentiary weight on the said stance mainly through the prescription of doctor appended with the inquiry report produced in evidence, which is a photocopy of the prescription and not the original. The probative value of the prescription, apart from the reasons given above, also evaporates in the thin air on the ground that the said prescription is a private document, hence, the genuineness of the same has not been proved in terms of Article 72 read with Articles 78 and 117 of the QSO. Said prescription is not a public document and cannot be received in evidence without proof of signatures of its author and hence, could not be tendered on bare statement of the Counsel for the appellant before learned Tribunal. Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others (PLD 1973 SC 160) and Muhammad Ashraf v. Shah Noor Khan and another (1996 MLD 1819 Lahore) are referred. Even otherwise, prescription along with other affidavits relied upon by the appellant could not be even marked as exhibit without proving those documents in accordance with the provisions of QSO and therefore, reliance on the same by the appellant is misconceived. Similarly, no one out of the relatives of the Deceased appeared in support of their statements made before the Inquiry Officer deputed by the appellant to investigate the claim of the respondent. In Muhammad Zakria and 3 others v. Bashir Ahmad (2001 CLC 595 Lahore), this Court has held that “the documents, which are not copies of the judicial record, should not be received in evidence, without the proof of the signatures and handwriting of the person alleged to have signed or written the instrument, even if, such documents are brought on record, are accepted without objection.”

9. There is yet another angle from which the case can be examined. Prescription along with the inquiry report relied upon by the appellant was its best evidence and no reasons have been specified as to non-production of the Inquiry Officer or the author of the prescription which brings the case of the appellant within the clutches of illustration (g) to Article 129 of QSO that contemplates that an adverse presumption is to be drawn against the party which withholds the best evidence. We are fortified by the dicta laid down by the Hon’ble Supreme Court in Dilshad Begum v. Nisar Akhtar (2012 SCMR 1106). Even otherwise, the same is mere prescription and not diagnosis or opinion of an expert regarding the health of the Deceased.

10. Admittedly, no effort was made on part of the appellant to get post mortem of the Deceased and in the absence of the same, there is no reason to discard the death certificate (Ex.P.1), which is public document and to which presumption of truth is attached. The said death certificate has neither been objected to nor its validity has been challenged or its presumption rebutted. Muhammad Aslam and another v. Mst. Sardar Begum alias Noor Nishan (1989 SCMR 704), Board of Intermediate and Secondary Education, Lahore through Secretary v. Mst. Sobia Chand (1999 CLC 1166 Lahore) and Fateh Ullah v. Noor Ahmad (2012 CLC 246 Lahore) are referred in this regard.

11. While it is correct that non-disclosure or wrong declaration of any material information can entitle the appellant to invoke Section 79 of the Ordinance to repudiate the contract of insurance, however, the said provision has to be interpreted in a reasonable manner. In present case, it has nowhere been asserted that the Deceased was unwell or had any symptoms from any ailment at the time of taking the Policy or its revival or before his death. In Indian Jurisdiction, Section 45 of the Insurance Act, 1956 is in pari materia with Section 79 of the Ordinance, and while interpreting the scope thereof, in Life Insurance Corporation of India and others. v. Asha Goel and others (2001) 2 SCC 160), the Indian Supreme Court held that on a fair reading of Section 45 it is clear that it is restrictive in nature and the burden of proof is on the insurer to establish these circumstances and unless the insurer is able to do so, there is no question of the policy being avoided on ground of misstatement of facts and repudiation of a policy should be done with extreme care and caution and not in a mechanical and routine manner. In the instant case, the appellant failed to prove the mis-declaration.

12. Much emphasis has been laid by learned Counsel for the appellant that the early death of the Deceased within one year, five months and three days of the revival of the policy, prima facie indicates that the declaration given by the Deceased was fraudulent and hence, Section 79 of the Ordinance was applicable in the instant case. Mere fact that the death occurred within short period of time after the purchase of the policy is not per se a suspicious circumstance to deny the relief to the beneficiary. Life Insurance Corporation of India v. Smt. Parkash Kaur and others (1997(1) MPLJ 203) is referred in this regard where death of the insured person therein took place within 06 months from the date of taking insurance policy and this aspect has not been given any weightage by the Court.

13. Since the claim of the respondent has been denied and lingered by the appellant without any just cause, as a result of which the nominee of the Deceased, who is of approximately six years of age,

has suffered a lot, we are inclined to award cost of Rs. 200,000/- to be additionally paid to the respondent side.

14. In the light of what has been stated above, this appeal being bereft of any merit is hereby dismissed with cost of Rs. 200,000/-to be paid to the respondent.

(Y.A.)  Appeal dismissed

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-Excessive value of property--Moreover, as per proviso to Section 27-A of Act, if value of property mentioned in valuation table appears to be excessive, then aggrieved party may apply to Commissioner or any other person notified by Government and who shall determine correct value of property.

 PLJ 2022 Lahore 484

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

----S. 12--Suit for specific performance--Decreed with direction to payment of stamp duty as per market value--Sale agreement--Appeal--Dismissed--Challenge to--If legality of impugned decisions of Courts below are adjudged on touchstone of afore-referred judgment of Hon’ble Supreme Court there leaves no ambiguity that same have been passed strictly in accordance with law on subject--Though counsel appearing on behalf of petitioners has addressed Court at certain length but failed to point out any illegality or jurisdictional defect in impugned judgments and decrees of Courts below justifying interference by this Court in exercise of its revisional jurisdiction--Civil revision was dismissed.                                                                        [P. 490] D

Stamp Act, 1899 (II of 1899)--

----S. 27-A--Excessive value of property--Moreover, as per proviso to Section 27-A of Act, if value of property mentioned in valuation table appears to be excessive, then aggrieved party may apply to Commissioner or any other person notified by Government and who shall determine correct value of property.            [P. 488] A

Registration Act, 1908 (XVI of 1908)--

----S. 80--Determination of fee--All fees payable on a document shall be determined according rate prevalent at date of its presentation.                                                                                  

                                                                                             [P. 489] B

Punjab Registration Rules, 1929--

----R. 112--Duty of registration officer--A document which is presented for registration is required to be stamped as per stamp duty applicable on such day, when it is presented and it is duty of Registration Officer to examine document in order to determine whether it bears requisite stamps or requisite stamp duty has been paid.         [P. 489] C

2016 SCMR 203 ref.

Ch. Muhammad Afzal, Advocate for Petitioners

Nemo for Respondent No. 3.

Date of hearing: 23.2.2022.

 PLJ 2022 Lahore 484
Present: Ahmad Nadeem Arshad, J.
ABDUL HAMEED, etc.--Petitioners
versus
ADDITIONAL DISTRICT JUDGE, etc.--Respondents
C.R. No. 3650 of 2012, decided on 23.2.2022.

Judgment

Briefly put, the petitioners instituted a suit for specific performance of an agreement to sell against Respondent No. 3 which was contested by him. After full-fledged trial, the learned trial Court decreed the suit vide judgment & decree, dated 07.10.2011, with the direction that petitioners/plaintiffs would pay the requisite stamp duty as per market value of the suit land prevalent at the time of execution of registered sale deed in their favour. Petitioners/plaintiffs were further directed to get registered sale deed in their favour within 30 days, otherwise their suit would be deemed to have been dismissed. The petitioners preferred an appeal challenging condition imposed by the learned trial Court with regard to payment of stamp duty according to the rate prevalent at the time of registration of registered sale deed. The learned appellate Court dismissed the appeal in limine through decision, dated 11.07.2012; hence this revision petition.

2. Learned counsel for the petitioners submits that since the petitioners purchased the suit property against consideration of
Rs. 8,50,000/- they were liable to pay stamp duty according to the said amount. Adds that when Respondent No. 3 admitted execution of agreement to sell between the parties the amount of consideration was to be considered as Rs. 8,50,000/- but while fixing the impugned condition regarding payment of stamp duty according to the rate of the suit property on the date of execution of formal sale deed not only the learned trial Court travelled beyond its jurisdiction but also the appellate Court omitted to note said blunder on the part of the learned trial Court. Adds that general law relating to payment of duties/fees on a written instrument on the date of presentation of a document cannot be stretched to the documents which are to be executed pursuant to the orders of the Courts.

3. Nobody appeared on behalf of Respondent No. 3 despite service.

4. I have heard the learned counsel for the petitioners and perused the file.

5. In pith and substance, the petitioners are aggrieved of the decree of learned trial Court to the extent of condition that the petitioners shall pay the requisite stamp duty as per market value of the suit property prevalent at the time of registration of sale deed. The relevant portion from the judgment passed by the learned trial Court is reproduced herein below:

“In view of my findings on above issues, suit of the plaintiffs is hereby decreed. The plaintiffs shall pay the requisite stamp duty as per present market value of the suit land at the time of execution of registered sale deed in their favour. The plaintiffs are further directed to get execute the registered sale deed within 30 days of this order, otherwise, this suit shall be deemed to have been dismissed.”

6. The learned appellate Court, vide decision dated 11.07.2012 dismissed the appeal of the petitioner in limine with following observations:

“Since the transfer of property is being made in the year 2012 and agreement to sell does not create any right of title. Since, transfer of property is being effected in the year 2012, therefore, there is no question to relinquish the present schedule of taxes and fee etc.”

The question of stamp duty usually arises when, after the sale of an immoveable property, it is transferred through an instrument by the seller to the buyer. Section 27 of the Stamp Act, 1899 (hereinafter to be referred as “the Act 1899”, deals with the matters relating to registration of instruments, which reads as under:

27. Facts affecting duty to be set forth in instrument.--The consideration (if any) and all other facts and circumstances affecting the chargeability of any instrument with duty, or the amount of the duty with which it is chargeable, shall be fully and truly set forth therein.

Conceivably, due to increasing tendency of evading stamp duty by the buyers and sellers by mentioning lesser amount of consideration, the legislature deemed it appropriate to amend the Stamp Act, 1899, through Punjab Finance Act, 2008 by inserting Section 27-A which for convenience of reference is reproduced hereunder:

[27-A. Value of immovable property.--(1) Where any instrument chargeable with ad valorem duty under Articles [23, 27–A, 31, 33, 35 (1)(b), 48 (b), 48 (bb), 55(b), 63 and 63–A] of Schedule 1, relates to an immovable property, the value of the immovable property shall be calculated according to the valuation table notified by the District Collector in respect of immovable property situated in the locality.

[(2) Where an instrument mentioned in subsection (1) relates to an immovable property consisting of land and structure including a multi-storey building, such instrument shall state the value of the land and structure separately, and stamp duty on the structure shall be calculated as per the covered area or the area of the structure mentioned in the instrument whichever is higher, and in case there is no approved building plan, two percent duty of the value of land in addition to payable duty shall be charged.]

(3) Where the value of immovable property stated in an instrument to which sub-section (1) applies is more than the value fixed according to the valuation table, the value declared in the instrument shall be accepted as value for the purposes of stamp duty.

(4) Where the value given in the valuation table notified under sub-section (1), when applied to any immovable property, appears to be excessive, the [Commissioner] or any other person notified by the Government may, on application made to him by the aggrieved person, determine its correct value and for that purpose the provisions of sections 31 and 32 shall apply as nearly as possible.]

From the above provision of law, it is crystal clear that ad-volorem duty is required to be calculated and charged according to the valuation table. The Stamp Act is a self-contained law on the subject of stamps and provides for the payment of stamp duty on different kinds of instruments. Section 10 of the Stamp Act, 1899, deals with payments of duties on instruments which for facility of reference is reproduced herein below:

“10. Duties how to be paid.--(1) Except as otherwise expressly provided in this Act, all duties with which any instruments are chargeable shall be paid, and such payment shall be indicated on such instruments by means of Stamps[or e-stamps]

(a)      according to the provisions herein contained; or

(b)      when no such provision is applicable thereto as the Provincial Govt. may by Rule direct.

(2) The rules made under sub-section (1) may, among other matters regulate,-

(a)      in the case of each kind of instrument, the description of stamps [or e-stamps] which may be used;

(b)      in the case of instruments stamped with impressed stamps-the number of stamps which may be used;

(c)      in the case of bills of exchange or promissory notes written in any Oriental language- the size of the paper on which they are written.”

Further, Section 17 of the Stamp Act, 1899 provides guidelines regarding chargeability of stamp duty on an instrument. The said provision is reproduced herein below:-

“17. Instruments executed in Pakistan.--All instruments chargeable with duty and executed by any person in Pakistan shall be stamped before or at the time of execution”.

Moreover, as per proviso to the Section 27-A of the Act, if the value of property mentioned in the valuation table appears to be excessive, then the aggrieved party may apply to Commissioner or any other person notified by the Government and who shall determine the correct value of the property.

7. The Registration Act, 1908, deals with the registration of documents which are either compulsorily register-able in terms of Section 17 of the said Act or their registration is optional under Section 18 of the Act. Part XII of the Registration Act 1908, deals with the situation where the authority refuses to register a document whereas Rule 112 of the Punjab Registration Rules, 1929, encompasses the duties of the Registering Officer. The said Rule starts with the following sentence:

“112. Examination as to stamp-Cancellation of Court-fee stamps.--When a document is presented for registration, the first duty of the Registering Officer is to examine it so as to see that it is duly stamped; this is an obligation imposed by law, which must take precedence of all other procedure. Special power-of-attorney for the conduct of cases in British Courts should be stamped with Court-fee labels according to the scale in Article 10 Schedule 11 of the Court Fees Act, 1870; but all other power-of-attorney including those for the conduct of cases in foreign Courts, whether special or general, must be stamped with non-judicial stamps according to Article 48, Schedule 1-A of the Stamp Act, 1899. When a document bearing a Court-fee label is, presented for registration, the registering officer, before returning it after registration, will cancel the label by writing the word “registered” with this signature and the date of registration across it.”

Similarly, Section 80 of The Registration Act, 1908 provides that all fees payable on a document shall be determined according the rate prevalent at the date of its presentation. The accumulative reading of the above-referred provisions of different legislative pieces and the Rules makes it abundantly clear that all the requisite fees on a written instrument are payable according to the rate prevalent on the date of presentation of the said document.

8. Admittedly, the petitioners instituted suit for specific performance of an agreement to sell dated 19.05.1987 (registered on 26.05.1987) on 22.01.2011 with regard to a plot measuring 07 kanals 19 marlas 07 sersahi which was agreed to be sold against consideration of Rs. 8,50,000/-. The respondent, while admitting the execution of the agreement to sell, contested the suit on other grounds. The learned trial Court, after full-fledge trial, keeping in view the relevant provisions of law, directed the petitioners to pay the requisite stamp duty as per market value of the suit land prevailing at the time of execution of registered sale deed. As discussed earlier a document which is presented for registration is required to be stamped as per the stamp duty applicable on such day, when it is presented and it is the duty of the Registration Officer to examine the document in order to determine whether it bears the requisite stamps or the requisite stamp duty has been paid. The august Supreme Court of Pakistan, in its judgment cited as “Dy. District Officer (Revenue) Lahore and others versus Raja Muhammad Yousaf and others” (2016 SCMR 203) clinched the issue, under discussion, as under:

“A document which is presented for registration is required to be stamped as per the stamp duty applicable on such date, and it makes no difference whether the document was voluntarily presented by the executants thereof or has been prepared pursuant to a decree. The Registering Officer examines the document to determine whether it bears the requisite stamp or the requisite stamp duty has been paid. The date, the document is presented for registration, is the material date, and it is immaterial whether it has been prepared pursuant to a decree of a Court. And if a valuation table has been notified pursuant to Section 27-A(i) of the Stamp Act, then the amount of the stamp duty is to be calculated on the basis of such notional/deemed valuation. This is the only conclusion that can be reached from a consideration of the applicable legal provisions mentioned above, including Section 10, 17, 27 and 27-A of the Stamp Act.”

Further, in the referred case, while dealing with the question regarding payment of stamp duty in the cases where conveyance/sale deeds prepared pursuant to a decree in a suit for specific performance, the apex Court of country has inter alia clarified as under:-

“Conveyance/sale deeds prepared pursuant to a decree in a suit for specific performance shall be stamped in accordance with stamp duty as is applicable under the Stamp Act on the date the same is presented for registration, however, if a valuation table has been notified pursuant to Section 27-A(i) of the Stamp Act, then the applicable stamp duty will be calculated in accordance therewith in respect of documents wherein the sale consideration that is mentioned is less than that specified in the said valuation table.”

If the legality of the impugned decisions of the Courts below are adjudged on the touchstone of the afore-referred judgment of the Hon’ble Supreme Court there leaves no ambiguity that the same have been passed strictly in accordance with law on the subject. Though learned counsel appearing on behalf of the petitioners has addressed the Court at certain length but failed to point out any illegality or jurisdictional defect in the impugned judgments and decrees of Courts below justifying interference by this Court in exercise of its revisional jurisdiction.

9. For what has been discussed above, I see no force in the instant Civil Revision which is accordingly dismissed with no order as to costs.

(Y.A.)  Revision dismissed

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--Section 10 of "CPC" is structured on principle of res sub-judice--Primary objection of Section 10 "CPC" is to prevent Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same matters in issue.

 PLJ 2022 Lahore 475

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

----S. 10--Specific Relief Act, (I of 1877), S. 8--Suit for possession and recovery of mense profit--Filing of application for stay of proceedings-Pendency of CPLA regarding suit property in Apex Court--Dismissed--Suit instituted by petitioner was prior to respondents suit--Scope of--Challenge to--Principle of res sub-judice--Suit instituted by Petitioner No. 1 was prior in time and it is relatable to "suit property" wherein respondent is also a party--Petitioners, while invoking provisions of Section 10. ibid, though moved an application before Civil Judge seeking stay of proceedings but their application was declined--From perusal of record it clearly evinces that previous suit is not only interse same parties but subject matter was also same--Suit instituted by respondent was not proceedable in view of pendency of suit filed by Petitioner No--1 as same was not only relatable to "suit property" but cause canvassed therein was having direct nexus and bearing to cause agitated in present suit--Both Courts below have misconstrued impact of Section 10 "CPC" while rejecting application of petitioner and allowing suit to proceed further--Revision petition allowed.

                                                              [Pp. 478 & 479] A, C, E, F & G

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

----S. 10--Primary objection--Section 10 of "CPC" places an embargo upon Court to proceed with trial of a suit-in which matter in issue is also directly and substantially in issue in a previously instituted suit between same parties, or between parties under whom they or any of them claim litigating under same title where such suit is pending in same or any other Court in Pakistan having jurisdiction to grant relief claimed, or in any Court beyond limits of Pakistan established or continued by Central Government and having like jurisdiction, or before Supreme Court--Section 10 of "CPC" is structured on principle of res sub-judice--Primary objection of Section 10 "CPC" is to prevent Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same matters in issue.

                                                                          [Pp. 478 & 479] B & D

Mr. Sana Ullah Zahid, Advocate for Petitioners.

Raja Zafar Iqbal, Advocate for Respondent.

Date of Hearing: 24.11.2021.

 PLJ 2022 Lahore 475
[Rawalpindi Bench Rawalpindi]
Present: Mirza Viqas Rauf, J.
BABAR NAWAZ and 3 others --Petitioners
versus
MUHAMMAD RIAZ--Respondent
C.R. No. 4-D of 2021, heard on 24.11.2021.

Judgment.

This petition under Section 115 of the Code of Civil Procedure (V of 1908) arises out of a judgment and decree dated 2nd November, 2020, whereby the learned Additional District Judge, Jhelum, proceeded to dismiss the appeal preferred by the petitioners as well as cross-objections filed by the respondent against the judgment and decree dated 24th October, 2019 passed by the learned Civil Judge Class-I, Jhelum.

2. Facts in precision necessary for adjudication of instant petition are that the respondent instituted a suit for possession, injunction and recovery of mesne profit averring therein that he purchased house No. C-233, situated in Bilal Town, Jhelum (hereinafter referred as "suit property") from Muhammad Hussain Shah s/o Barkat Ali Shah in the year 1993. As per averments contained in the plaint, allotment deed No. 269 dated 4th August, 1993 was also issued in favour of respondent by the department of Housing & Physical Planning Division, Jhelum. It is asserted that the respondent alongwith his family is settled in Germany since 1976 and his parents were living in the "suit property". It is averred that Petitioner No. 1 was since having no house, so he was allowed to reside in the suit house with his family by the respondent. In the year 2003, father of the respondent died whereas his mother departed in the year 2009. The respondent then requested the petitioners to vacate the "suit property" but they refused to do so. Suit was resisted by the petitioners by submitting written statement wherein they controverted the assertions contained in the plaint. They also raised some preliminary objections with regard to maintainability of the suit. A specific preliminary objection was also raised on the ground that Petitioner No. 1 has already preferred a suit, which was though dismissed but proceedings are pending before the High Court. From the divergent pleadings of the parties, multiple issues were framed and suit was finally decreed partly vide judgment dated 24th October, 2019. The petitioners, feeling aggrieved, preferred an appeal before the learned Additional District Judge-whereas the respondent also filed cross-objections in terms of Order XLI Rule 22 "CPC". The appeal as well as cross-objections were dismissed through impugned judgment and decree.

3. Learned counsel for the petitioners submitted that though it is the claim of the respondent that he is the owner of the "suit property" and he has handed over the same to Petitioner No. 1 for his temporary residence but this fact was specifically controverted by the petitioners with the assertion that the respondent, in the first instance, executed a special power of attorney in favour of Petitioner No. 1 and in furtherance thereof, he sold the "suit property" to him through an oral transaction while receiving the earnest money. Learned counsel contended that the Petitioner No. 1 has already preferred a suit for declaration, specific performance, permanent and mandatory injunction to that effect, which was dismissed vide judgment and decree dated 1st March, 2014 and now the matter is subjudice before the Hon'ble Supreme Court of Pakistan. Learned counsel maintained that during the pendency of suit, an application under Section 10 "CPC" was moved by the petitioners, which was dismissed by the learned Civil Judge vide order dated 15th July, 2019. It is contended that suit was finally partly decreed vide judgment dated 24th October, 2019 and while preferring the appeal, the petitioners though have set forth a ground of objection in the memorandum of appeal but it was not attended at all by the learned Appellate Court. Learned counsel emphasized that suit should not have been proceeded and the impugned judgments and decrees are nullity in the eye of law.

4. Conversely, learned counsel for the respondent submitted that there are concurrent findings of facts, which are based on proper appraisal of evidence. He added that suit was rightly proceed by the Courts below and the impugned judgments and decrees are unexceptionable.

5. Heard. Record perused.

6. Suit at hand was instituted by the respondent on the ground that he is owner of the "suit property", which was temporarily handed over to the Petitioner No. 1 for his residence. On the contrary, it is stance of the petitioners that the respondent had sold out the "suit property" to Petitioner No. 1 through an oral transaction and to this effect, he received the sale consideration. It is apparent from the record that Petitioner No. 1, to this effect, had already instituted a suit for declaration, specific performance, permanent and mandatory injunction, which was dismissed vide judgment and decree dated 1st March, 2014. It evinces from the record that proceedings in the said suit are now pending before the Hon'ble Apex Court in CPLA No. 3043 of 2018.

7. There is no cavil that suit instituted by Petitioner No. 1 was prior in time and it is relatable to the "suit property" wherein the respondent is also a party. Section 10 of "CPC" places an embargo upon the Court to proceed with the trial of a suit-in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in Pakistan having jurisdiction to grant the relief claimed, or in any Court beyond the limits of Pakistan established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. For ready reference and convenience, Section 10 of "CPC is reproduced below:

10. Stay of suit.--No Court shall proceed with the trial of a suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in Pakistan having jurisdiction to grant the relief claimed, or in any Court beyond the limits of Pakistan established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

Section 10 of "CPC" was inserted in the Code for avoiding multiplicity of proceedings on same cause and obviate conflict of decisions and unnecessary labor on adjudication of a common suit. From the bare perusal of Section 10 of "CPC" reproduced hereinabove, it becomes manifestly clear that for invoking the provision, the following are the necessary limbs:

i.        The matter in issue in both suits must be directly and substantially the same in both the proceedings.

ii.       The previously instituted suit is pending in a Court of competent jurisdiction.

iii.      The Court before whom the previous suit is pending must be competent to grant relief in the subsequent suit.

iv.      Both the suits, i.e. the previous and the subsequent suits must be between the same parties or their representatives; and

v.       The parties must be litigating under the same title.

8. The petitioners, while invoking the provisions of Section 10. ibid, though moved an application before the learned Civil Judge seeking stay of proceedings but their application was declined vide order dated 15th July, 2019. The petitioners though have not challenged the said order through separate proceedings but in terms of Section 105 of "CPC", they were entitled to set forth a ground .of objection in the memorandum of appeal as the said order was affecting the decision of the case. Suit was later on decreed partly vide judgment dated 24th October, 2019 against which the petitioners preferred an appeal wherein while invoking Section 105 of "CPC", they have categorically set forth a ground of objection as Ground No. 8 in the memorandum of appeal with regard to the said order.

9. It appears that the learned Additional District Judge has though adverted to the said aspect of the matter but he discarded the same on the ground that even if the CPLA filed by Petitioner No. 1 is decided in his favour, even then Section 144 of "CPC" will cater such a situation, suffice to observe that while observing so, the learned Additional District Judge was oblivious of the mandate of Section 144 "CPC", which clearly applies to the proceedings ensuing from the suit at hand and not to any other proceedings.

10. Section 10 of "CPC" is structured on the principle of res sub-judice. The primary objection of Section 10 "CPC" is to prevent Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same matters in issue. While incorporating the above principle in the Code, it was apparently the intent of legislature to confine the parties to one suit with regard to the same cause in order to obviate the possibility of conflicting judgment. From the perusal of record it clearly evinces that previous suit is not only interse same parties but the subject matter was also the same. Reference in this respect can be made to Messrs H & B General Trading Company through Director v. Messrs International Marketing Company through Proprietor and 2 others (2009 CLC 354), Abdur Rashid and 6 others v. Muhammad Hanif and 2 others (1985 CLC 1887), Habib Bank Ltd. v. Ali Mohtaram Naqvi (PLD 1987 Karachi 102), Dr. Haider Ali Mithani and another v. Ishrat Swaleh and others (PLD 1999 Karachi 81) and Muhammad Chotey Khan v. Muhammad Muneer Khan (1999 CLC 1895).

11. After having examined the scope of Section 10 "CPC", there remains no cavil that suit instituted by the respondent was not proceedable in view of pendency of suit filed by Petitioner No. 1 as the same was not only relatable to the "suit property" but cause canvassed therein was having direct nexus and bearing to the cause agitated in the present suit.

12. The nutshell of above discussion is that both the Courts below have misconstrued the impact of Section 10 "CPC" while

rejecting the application of the petitioner and allowing the suit to proceed further. Resultantly this petition is allowed. As a sequel whereof, application moved by the petitioners under Section 10 "CPC" shall stand accepted declaring the order dated 15th July, 2019 as well as judgments and decrees nullity in the eye of law. As a sequel, the proceedings shall remain stayed till final conclusion of the proceedings in the previously instituted suit. No order as to costs.

(Y.A.)  Petition allowed

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