- A remand order is required in cases which cannot be decided on basis of available evidence, where evidence is sufficient for a decision of a case, a remand order is not required

 PLJ 2023 SC 39

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

----Ss. 115--Specific Relief Act, 1877, Ss. 8, 42 & 54--Suit for declaration, perpetual injunction and recovery of possession--Decreed--Case was remanded in appeal--Revision petition was allowed--Challenge to--Question of--Whether High Court under Section 115 of C.P.C. was restricted to have either affirmed remand order or else, if found defective, obligated to remand matter to appellate Court to decide case on its merits--Case was remanded on application for impleadment as party--Appellate Court without considering record or evidence, remanded case for a fresh decision--High Court vide impugned judgment considered application of Muhammad Siddique and concluded that there was no reason to remand case, on impleadment of Muhammad Siddique--There was no basis to remand matter for a fresh decision as issue stands decided--High Court in this case was justified not to remand matter to Appellate Court, and set aside remand order--Parties have been litigating for over twenty years, and only ground agitated before High Court and before us today is legality of remand order.

                                                                         [Pp. 42 & 43] A, B & D

2007 SCMR 307 ref.

Remand Order--

---- A remand order is required in cases which cannot be decided on basis of available evidence, where evidence is sufficient for a decision of a case, a remand order is not required. [P. 43] C

Mr. Muhammad Munir Piracha, ASC for Appellants.

Mr. Munawar Iqbal Duggal, ASC for Respondents.

Date of hearing: 7.2.2022.

 PLJ 2023 SC 39
[Appellate Jurisdiction]
Present: Ijaz-ul-Ahsan and Mr. Ayesha A. Malik, JJ.
NOOR MUHAMMAD (deceased) through L.Rs. and others--Appellants
versus
MUHAMMAD ASHRAF and others--Respondents
C.A. No. 1296 of 2013, decided on 7.2.2022.
(Against the judgment dated 24.07.2013 of the Peshawar High
Court, Abbottabad Bench, Abbottabad, passed in Civil Revision
No. 119-A of 2006).

Judgment

Mrs. Ayesha A. Malik, J.--This Appeal impugns judgment dated 24.07.2013, passed by the Peshawar High Court, Abbottabad Bench, in Civil Revision No. 119-A of 2006.

2. The basic facts of the case are that the Respondents filed Suit No. 170/1 of 2002 for declaration, perpetual injunction and recovery of possession on 18.07.1995 against the Appellants, with respect to the land located in the Shamlat Deh, measuring 106 Kanals and 11 Marlas bearing Khasra Nos. 3026/7 and 9 situated in Village Jagul Tehsil and District Haripur. The case of the Respondents was that they are the sole owners in possession of the suit land as Hissadari and that the Appellants have no right of ownership or possession to the said land. The suit was decreed on 11.02.2004 in favour of the Respondents wherein the Court concluded that the Respondents were the owners in possession of the disputed property as Hissadars and that the Appellants were not able to prove any right of ownership or possession, yet they were entitled to receive Rs. 300,000/-for improvements made on the disputed property. Both parties filed Appeals such that the Appellants filed Appeal No. 26/13 and the Respondents filed Appeal No. 147/13. Both Appeals were heard together and the Appellate Court set aside the judgment and decree dated 11.02.2004 and remanded the matter to the trial Court to decide the matter afresh, essentially on the ground that one Muhammad Siddique sought impleadment as a necessary party to the suit of the Respondents, being a co-owner in the disputed property. The Appellate Court concluded that as Muhammad Siddique was a necessary party, he should be heard and the matter had to be decided afresh. Hence, the case was remanded to the trial Court vide order dated 26.01.2006. Against this order of 26.01.2006, the Respondents filed Civil Revision No. 119-A of 2006 before the High Court wherein, the remand order was set aside and the original judgment and decree dated 11.02.2004 was restored. Furthermore, the findings of the trial Court to the extent of grant of Rs. 300,000/-by the Respondents to the Appellants as a compensation for improvements made was set aside.

3. The Appellants have challenged the judgment of the High Court essentially on the ground that since a remand order was before the High Court, at best the Court could have either affirmed the remand order or set it aside and remand the matter to the Appellate Court for a fresh decision on merit. The learned counsel argued that the High Court in its Revisional Jurisdiction under Section 115 of the Code of Civil Procedure, 1908 (C.P.C.) has to confine itself to the legality of the order of remand and cannot decide the case on its merits. He emphasised on the use of the words in the case in Section 115 of the C.P.C. to suggest that a Revision Petition lies against a case decided which would necessitate the disposal of the case and not adjudication of the lis between the parties. In this regard, he has relied upon Pakistan Fisheries Ltd., Karachi and others v. United Bank Ltd. (PLD 1993 SC 109). The learned counsel has essentially argued that the power of the Revisional Court under Section 115 of the C.P.C. in a case where a remand order has been made by the Appellate Court is restricted to determine the legality of the remand order and as such the Court does not have jurisdiction to decide the entire controversy between the parties.

4. The learned counsel for the Respondents has submitted written arguments in which he has raised the issue of limitation that this Appeal is barred by one day and that there is no explanation for the delay. On merit, the learned counsel argued that it is important to note that Muhammad Siddique, who sought impleadment in the suit before the Appellate Court has not challenged the impugned judgment dated 24.07.2013, which testifies to the fact that his objective was to delay the matter before the trial Court. The learned counsel further argued that so far as the question of jurisdiction under Section 115 of the C.P.C. is concerned, the High Court may pass any order as it deem fit, meaning that after taking notice of the error committed by the subordinate Court, the High Court could either remand the case or correct the error. He further submits that the concept of case decided and the use of the word the case under Section 115 of the C.P.C. does not in any manner restrict the High Court from deciding the case on its merits, especially so, when no new evidence was required, as in the instant case where the High Court merely corrected the error of the Appellate Court.

5. We have heard the learned counsel for the parties at considerable length and note that in the application for condonation of delay the learned ASC, Muhammad Munir Paracha has stated that the delay of one day is not intentional rather based on a simple calculation mistake as he assumed July to have 30 days instead of 31 days and thus, erroneously calculated the last day for filing the appeal as 10.09.2013 instead of 09.09.2013. He has explained that the delay of one day is neither deliberate nor based on any mala fide, rather a simple human mistake. Given the contents of the application for condonation of delay accompanied by the affidavit, we condone the delay and proceed to decide the case on its merits.

6. The basic issue is whether the High Court under Section 115 of the C.P.C. was restricted to have either affirmed the remand order or else, if found defective, obligated to remand the matter to the Appellate Court to decide the case on its merits. Section 115 of the C.P.C. is reproduced hereunder:

“115. Revision. (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears--

(a)      to have exercised a jurisdiction not vested in it by law, or

(b)      to have failed to exercise a jurisdiction so vested, or

(c)      to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit; (emphasis added)

          Provided that where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court.

          Provided further that such application shall be made within ninety days of the decision of the subordinate Court [which shall provide a copy of such decision within three days thereof and the High Court shall dispose of such application within six months].”

7. The arguments of the learned counsel for the Appellants are based on the use of the words in the case in Section 115 of the C.P.C. where the High Court may make such order in the case as it thinks fit. While relying on Pakistan Fisheries’ case (supra) the learned counsel has suggested that since a revision lies against a case decided the High Court could not have adjudicated upon the merits of the case but should have remanded the matter to the Appellate Court for a fresh decision. We are not in agreement with the contentions of the learned counsel in this case, on two accounts; firstly, there was sufficient evidence in the case, hence the Appellate Court was in error, when it remanded the matter; and secondly, the use of the words in the case in Section 115 of the C.P.C., does not restrict the jurisdiction of the Court under Section 115 of the C.P.C. From the record, it is evident that the Appellate Court remanded the matter to the trial Court on account of an application for impleadment filed by Muhammad Siddique who claimed that he had constructed a house on the property in dispute of which he is the owner in possession and that he had not been impleaded as a necessary party in the suit, hence the judgment and decree was illegal. The Appellate Court without considering the record or the evidence, remanded the case for a fresh decision. The High Court vide the impugned judgment considered the application of Muhammad Siddique and concluded that there was no reason to remand the case, on the impleadment of Muhammad Siddique, as he is the brother of Respondents Nos. 6 and 7 in the instant Petition being Muhammad Ajeeb and Khalid, and that Muhammad Siddique’s claim is the same as that of Muhammad Ajeeb and Khalid. The learned High Court concluded that Muhammad Siddique holds the same status in respect of the disputed property as that of his brothers and therefore, there was no basis to remand the matter for a fresh decision as the issue stands decided. Consequently, the Appellate Court committed an error by remanding the matter as it was not a case where fresh evidence was required, as the rights of Muhammad Siddique had already been adjudicated upon through his brothers who raised the same claim as that of Muhammad Siddique. In this regard, we note that the trial Court concluded that the Appellants were not able to establish their rights as owners in possession of the disputed property whereas the Respondents had established their claim of being Hissadars in the Shamilat Deh from 1947 onwards. Furthermore, we find that a remand order is required in cases which cannot be decided on the basis of available evidence, however, where the evidence is sufficient for a decision of a case, a remand order is not required. The learned High Court in this case was justified not to remand the matter to the Appellate Court, and set aside the remand order as the record showed that there was no reason to adjudicate afresh on the rights of Muhammad Siddique’s claims, as his rights, if any, were the same as his two brothers who were contesting the case.

8. So far as the arguments with respect to the meaning in the case in Section 115 of the CPC, we find that it does not suggest a restrictive interpretation to the jurisdiction of the Court under Section 115 of the C.P.C. In the case of Raja Hamayun Sarfraz Khan and others v. Noor Muhammad (2007 SCMR 307) this Court has held that where a remand order of the Appellate Court was in issue, the High Court was justified in not remanding the case to the Appellate Court as the High Court has given solid reasons for restoring the judgment of the trial Court. In this case, the parties have been litigating for over twenty years, and the only ground agitated before the High Court and before us today is the legality of the remand order.

9. Under these circumstances, we find no merit in this Appeal. Consequently, the Appeal is dismissed with no order as to costs.

(Y.A.)  Appeal dismissed

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لاہور ہائی کورٹ نے تحریکِ انصاف کی پنجاب میں الیکشن کی تاریخ دینے کی درخواست سماعت کے لیے منظور کر لی۔

 دورانِ سماعت تحریکِ انصاف کے وکیل نے دلائل دیتے ہوئے کہا کہ پنجاب اسمبلی تحلیل ہونے کے بعد گورنر کو الیکشن کی تاریخ کا اعلان کرنا ہوتا ہے۔

جسٹس جواد حسن نے کہا کہ آپ کی درخواست ہے کہ گورنر کو الیکشن کی تاریخ دینے کے لیے ہدایات جاری کی جائیں، الیکشن 90 دن میں ہی ہونے چاہئیں، سب سے پہلے آپ اس میں الیکشن کمیشن کو فریق بنائیں۔

بیرسٹر علی ظفر نے کہا کہ میں ابھی الیکشن کمیشن کو فریق بنا لیتا ہوں۔

عدالت نے سوال کیا کہ کیا آپ نے گورنر کو لکھا ہے کہ الیکشن کی تاریخ دیں؟

بیرسٹر علی ظفر نے جواب دیا کہ آئین کہتا ہے کہ گورنر کو اپنے آئینی فرائض پورے کرنے ہیں۔

جسٹس جواد حسن نے کہا کہ یہ ہم ڈھونڈلیں گے کہ الیکشن کس نے کروانے ہیں۔

اسد عمر نے آئین کا دیباچہ پڑھ کر سنایا

اس کے ساتھ ہی جسٹس جواد حسن نے اسد عمر کو روسٹرم پر بلا لیا۔

عدالت نے اسد عمر کو حکم دیا کہ آپ آئین کا دیباچہ پڑھیں۔

اسد عمر نے آئین کا دیباچہ پڑھ کر سنایا اور کہا کہ سیاسی انصاف کی اصطلاح میرے لیے نئی ہے۔

بیرسٹر علی ظفر نے کہا کہ قانون کے تحت گورنر 90 دن میں الیکشن کرانے کے لیے تاریخ دینے کے پابند ہیں۔

جسٹس جواد حسن نے کہا کہ ہم نے پاکستان کی جمہوریت کے لیے لڑنا ہے۔

بیرسٹر علی ظفر نے دلائل دتے ہوئے کہا کہ ہم نے گورنر کو لکھا لیکن انہوں نے عمل نہیں کیا، گورنر ایڈوائس پر اسمبلی تحلیل کریں یا اسمبلی خود تحلیل ہو جائے، ہر صورت میں الیکشن 90 دن میں کرانا ہوتے ہیں۔

جسٹس جواد حسن نے کہا کہ ہم نے یہ دیکھنا ہے کہ الیکشن کی تاریخ کس نے دینی ہے، کیا آپ نے خیبر پختون خوا کے الیکشن کے لیے پٹیشن دائر کی ہے۔

اسد عمر نے جواب دیا کہ کے پی کے الیکشن کے لیے پٹیشن کل دائر کریں گے۔

عدالت نے سوال کیا کہ دوسرے فریق کی جانب سے کون ہے۔

اسسٹنٹ اٹارنی جنرل نے جواب دیا کہ ہم گورنر کی نمائندگی نہیں کرتے۔

جسٹس جواد حسن نے کہا کہ آپ تیاری کے بغیر ہی آ گئے ہیں؟

اسسٹنٹ اٹارنی جنرل نے کہا کہ فیڈریشن کو فریق ہی نہیں بنایا گیا، گورنر ایک الگ باڈی ہے۔

جسٹس جواد حسن نے کہا کہ جمعے والے دن یہ کیس آیا ہے، آپ کی اتنی غیر سنجیدگی ہے کہ کسی نے پڑھا ہی نہیں۔

اسسٹنٹ اٹارنی جنرل نے جواب دیا کہ گورنر کو تو صوبے والے بلاتے ہیں۔

عدالتِ عالیہ نے پنجاب میں الیکشن کی تاریخ کے لیے پی ٹی آئی کی درخواست کو سماعت کے لیے منظور کر لیا۔

لاہور ہائی کورٹ نے گورنر پنجاب کے پرنسپل سیکریٹری اور الیکشن کمیشن کو نوٹس جاری کرتے ہوئے سماعت 3 فروری تک ملتوی کر دی

It is observed that directions sought for by the Petitioner to the Respondents is with regard to announcement of the date of election either by the “Governor” or the “ECP” and it is evident that the “ECP” has categorically sent letter to the “Governor” to announce the date under Article 224(2) of the “Constitution” read with Section 57(2) of the “Act” but this power has not been exercised therefore, in order to proceed further in this case, this Court will examine the preamble of the “Constitution” in the light of judgments passed in the case of JAMSHED IQBAL CHEEMA Supra which was further elaborated in the case of HAFEEZ UR REHMAN CH Supra and will also interpret Part-IV, Chapters 1&2 read with Articles 105, 112, Part-VII Articles 224, 218, 219 and 5 of the “Constitution” because period of holding elections is provided as ninety days in the “Constitution” which read with preamble guarantees the fundamental rights including ‘Political Justice’.

Since the case relates to interpretation of Articles of the “Constitution” and certain provisions of the “Act” involving infringement of fundamental rights of the Petitioner as per Article 17, 4 and 5 of the “Constitution” including ‘Political Justice’ therefore, a separate notice be also issued to the learned Attorney General for Pakistan as well as learned Advocate General Punjab in terms of Order XXVII-A of the Code of Civil Procedure (V of 1908).

Writ Petition No.5851 of 2023

Pakistan Tehreek-e-Insaaf through its General Secretary
Asad Umar V/S Governor of Punjab and another
30-01-2023

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--All suits in respect of immovable property shall be filed in Court within local limits of whose jurisdiction property in question is situated.

 PLJ 2023 SC 32

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

----Ss. 10, 16, 20 & O.XXXVII--Suit for recovery--Suit property was situated in USA--Respondent was also resides in USA--Lack of jurisdiction--Requirements of--Limitation--According to averments made in plaint suit of Appellants did not fall within parameters of Section 10 of C.P.C.--Respondent was permanently residing in USA--It is for this reason that an agreement was reached between brothers to effect that Respondent would manage property inherited by Appellants, situated in USA--Amount claimed is income generated from land in question is inextricably related to property inherited by Appellants, which is situated in USA--If averments made in plaint are taken on their face value Civil Courts of Sahiwal lacked jurisdiction in matter--Suit has been filed at least 28 years thereafter for which no valid reason or justification has been furnished nor has counsel for Appellants been able to convince us that there was any lawful basis to do so.

                                                           [Pp. 36, 37 & 38] B, D, E, F & G

PLD 2016 SC 174 ref.

Civil Procedure Code, 19 08 (V of 1908)--

----S. 16--Jurisdiction of Court--All suits in respect of immovable property shall be filed in Court within local limits of whose jurisdiction property in question is situated.            [P. 36] A

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

----S. 20--Local jurisdiction--Every suit shall be filed in a Court within local limits of whose jurisdiction defendant or each of defendants where there are more than one, at time of commencement of suit, actually and voluntarily resides, or carries on business, or personally works for gain.               [P. 36] C

Rana M. Zahid, ASC for Appellants (via Video-link from Lahore).

Nemo for Respondents Nos. 1(1-11).

Ex parte for Respondent No. 2.

Date of hearing: 14.2.2022.

 PLJ 2023 SC 32
[Appellate Jurisdiction]
Present: Ijaz-ul-Ahsan, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ.
Rana MUHAMMAD HANIF KHAN (DECEASED) through LRs--Appellants
versus
SADDIQ KHAN (DECEASED) through LRs.--Respondents
C.A. No. 997 of 2010, decided on 14.2.2022.
(On appeal against the order dated 15.09.2010 passed by the Lahore High Court, Multan Bench, Multan in R.F.A. No. 198 of 2003)

Order

Ijaz-ul-Ahsan, J.--This appeal is directed against a judgment of the Lahore High Court, Lahore dated 23.06.2010 rendered in R.F.A. No. 198 of 2003 filed by the Respondents. Through the impugned judgment, the judgment and decree dated 21.11.2003 passed by the Trial Court was set aside and it was held that the Civil Court(s) of Pakistan had no jurisdiction to entertain the suit which, even otherwise, was barred by time.

2. Briefly stated the facts necessary for disposal of this Appeal are that, the Appellants filed a suit for recovery of Rs. 55,67,633/-as compensation/damages. As per the plaint, one Kalu Khan was a joint owner in equal share(s) with Atta Muhammad in respect of land measuring 1081 acres of Rich Rice Ranch in Willow Glen, California, USA. He executed a Will in respect of his, entire property and created a Trust. One Fazal Muhammad was appointed as Trustee through the Will and the beneficiaries of the Trust were his brothers namely Abdul Majeed Khan, Ahmed Khan and three sons of his deceased brother namely Siddique Khan, Rana Muhammad Hanif Khan and Aziz-ur-Rehman. The shares of the beneficiaries as determined in the Trust were 1/3rd to each brother and 1/9th to each nephew of the deceased Kalu Khan.

3. On 13.08.1962 the Trustee (Muhammad Fazal) terminated the Trust in consequence of which the nephews jointly inherited 180 acres apart from the Farm machinery. According to the contents of the plaint, in early March 1958, the predecessor of the Appellant and his brothers agreed that being a citizen of the USA, the Respondent should manage the share of the two brothers (nephew of Kalu Khan) in the property of Kalu Khan (deceased) inherited by them from Kalu Khan in the United States. He would perform the said duties without any salary. It was averred in the plaint that; in return it was agreed that the Appellant would manage the properties of the deceased in Pakistan. In order to implement this arrangement, a power of attorney was duly executed. The record indicates that the Appellants revoked their power of attorney on 03.11.1973 and appointed Nasim-ur-Rehman as their attorney. They also demanded their past share in the income of the property. It was alleged in the plaint that a sum of US$ 88,599 was recoverable from the Respondent(s). The suit filed by the Appellants was decreed by the Civil Court of Sahiwal vide judgment and decree dated 21.11.2003. The Respondent(s) appealed the said judgment and decree. This appeal was allowed through the impugned judgment dated 15.09.2010 by the Lahore High Court. Hence this appeal.

4. The learned counsel for the Appellants submits that the High Court erred in law in overturning the judgment of the Trial Court which was based upon valid reasons. He states that all relevant issues had properly been decided in accordance with law. He further submits that the findings recorded by the High Court in relation to the question of limitation as well as jurisdiction of the Civil Courts are patently erroneous. It is further argued that the findings of the High Court to the effect that the claim of the Appellants was barred by time was neither supported by the record nor by the law. He finally maintains that the suit in question sought a decree in personam. Admittedly, although permanent residents of the United States, the Respondents occasionally visited Sahiwal as mentioned in the plaint. As such, the Civil Courts of Sahiwal had jurisdiction on their person and could have passed an executable decree against them.

5. Respondent No. 2 has already been proceeded against ex-parte. No one has entered appearance on behalf of Respondent No. 1.

6. We have heard the learned counsel for the Appellants and gone through the record.

7. It is clear and obvious to us from a plain reading of the plaint and Sections 16 and 20 of the Code of Civil Procedure, 1908 (“C.P.C.”) that the Civil Courts of Pakistan had no jurisdiction in the matter in light of the averments made in para 20(i), (ii) and (iii) as well as paragraphs 22 and 23 read with the prayer made in the plaint. For ease of reference, Section 16 and Section 20 of the C.P.C. are reproduced as under:

“16. Subject to the pecuniary or other limitations prescribed by any law, suits; (a) for the recovery of immovable property-with or without rent or profits; (b) for the partition of Immovable property; (c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property, (d) for the determination of any other right to or Interest in immovable property; (e) for compensation for wrong to immovable property, (f) for the recovery of movable property actually under distraint or attachment; shall be instituted in the Court within the local limits of whose jurisdiction the property is situated, or, in the case of suits referred to in clause (c), at the place where the cause of action his wholly or partly arisen: -Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate or, in the case of suits referred to in clause (c), at the place where the cause of action has wholly or partly arisen) or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. Explanation. In this section “properly” means property situate in Pakistan.

“20. Subject to the limitations aforesaid, every suit shall be in a Court within the local limits of whose jurisdiction. (a) the defendant, or each of the defendants where there are more than one at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either of the Court is given, or the defendants who reside, or carry on business, or personally work as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. Explanation I. -Where a person has a one place and also a temporary residence shall be deemed to reside at both places in action arising at the place where he residence.” (Underlining is Ours)

It is clear and obvious from the record that the subject matter of the suit was situated in USA. This is fact admitted in the plaint of the Appellants that the property in respect of which the suit for rendition of accounts and recovery was filed, is situated in the County of Glenn, California. Section 16 of the C.P.C. clearly stipulates that all suits in respect of immovable property shall be filed in the Court within the local limits of whose jurisdiction the property in question is situated. The only exception to this rule is suits filed under Section 16(c). There is nothing on the record to establish that the suit in question was related to redemption of a mortgage or charge regarding the property in question. We are therefore in no manner of doubt that the even according to the averments made in the plaint the suit of the Appellants did not fall within the parameters of Section 10 of the C.P.C.

8. Section 20 of the C.P.C. clearly provides that every suit shall be filed in a Court within the local limits of whose jurisdiction the defendant or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain. It is a fact stated by the Appellants in Para 5(a) of the plaint that the Respondent was permanently residing in the US. It is for this reason that an agreement was reached between the brothers to the effect that the Respondent would manage the property inherited by the Appellants, situated in USA. The fact that the Respondent was a US citizen is further admitted at Para 20(iii) of the plaint which states that the Respondent acquired US citizenship somewhere during the 1950s. It is the case of the Appellants that the Respondent neither permanently resides nor works for gain anywhere within the jurisdiction of the Civil Courts of Sahiwal. However, in an attempt to create jurisdiction it has been stated in the plaint that Civil Courts of Pakistan have jurisdiction since the suit does not involve any question regarding immovable property and involves rendition of accounts and recovery of money. The argument has been repeated by the learned ASC for the Appellants before us. With all due respect, we find the argument to be erroneous and misconceived. We are therefore unable to agree with this assertion since the amount claimed is income generated from the land in question is inextricably related to the property inherited by the Appellants, which is situated in USA. The language of Section 16(d) clearly provides that, for the determination of any right or interest in respect of immovable property, a suit must be filed in a Court within the territorial jurisdiction of which the property situated.

9. We are therefore in no manner of doubt that even if the averments made in the plaint are taken on their face value the Civil Courts of Sahiwal lacked jurisdiction in the matter. The learned High Court has therefore correctly come to the conclusion that in light of the averments made in the plaint read with the requirements of Sections 16 and 20 of C.P.C., the Civil Courts of Sahiwal lacked personal and subject matter jurisdiction in the matter. There is nothing on the record which shows that the Respondent was actually and voluntarily residing in Pakistan when the suit in question was filed. On the contrary, it has been admitted that the Respondent is a permanently resides in the US and is a US citizen and visits Pakistan/ Sahiwal occasionally. The understanding with the Respondent was also in respect of the property inherited by the Appellants, situated in the United States. The alleged breach of the agreement was purportedly on part of the Respondent who at all relevant times resided in the USA. Thus, the alleged cause of action also arose in the USA when the Appellants found out about the money which the Appellants claim is owed to them by the Respondent. Even otherwise, presence of a Respondent within the territorial jurisdiction of Pakistan does not ipso facto grant jurisdiction to Pakistani Courts on the touchstone of Section 16 or 20 of the C.P.C. when the property in question is situated outside Pakistan. Reliance in this regard is placed on Muhammad Ramzan (deceased) v. Nasreen Firdous (PLD 2016 Supreme Court 174).

10. We also find that admittedly the Appellants came to know about the alleged income on which they lay claim, in early 1990 during Siddique’s divorce proceedings. They did not file such claim by way of a suit if at all was legally possible till the 04.09,2001 before a competent forum. Further, the High Court has correctly come to the conclusion that the record indicates that a settlement was reached between the parties in the US which had been filed in the US Courts and incorporated in judicial verdicts. We also find that the suit in question was filed on the basis of two documents which were allegedly discovered by a person namely Zafarullah who handed over the same to Naseem Ahmed which constituted the basis for filing of the suit. Despite making an effort to establish the fact that in the facts and circumstances of the matter and the claim made in the plaint furnished sufficient basis for conferring jurisdiction on Pakistani Courts. The learned ASC for the Appellant has been unable to point to any provision of law that may vest jurisdiction of Pakistani Courts. Admittedly, there existed a financial relationship between the three brothers which came to an end in 1973. Thereafter, a financial settlement appears to have taken place and the relevant financial issues were settled between the parties as is evident from Exh.D-93 which was produced before the Trial Court and the said document has not been denied by any of the parties. In consequence of which, if at all, it could be raised before a Pakistani Court. Such claim could only have been raised within the prescribed period of limitation. It is clear and obvious from the record that the suit has been filed at least 28 years thereafter for which no valid reason or justification has been furnished nor has the learned counsel for the Appellants been able to convince us that there was any lawful basis to do so.

11. We have carefully examined the record, gone through the documents produced before the Trial Court as well as the all legal and factual aspects examined by the High Court and the reasons assigned by the High Court in support of its conclusions. We have not found any legal, procedural or jurisdictional defect, error or flaw in the impugned judgment that may furnish basis or justification to overturn the impugned judgment of the High Court. Further, we find ourselves in agreement with the reasoning adopted by the High Court and the conclusions drawn are duly supported by the record as well as the evidence produced by the parties. Consequently, we do not find any merit in this appeal. It is accordingly dismissed.

(Y.A.)  Appeal dismissed

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---New ground---Non-framing of issues---Irregularity not affecting merits of case---Concurrent findings of two Courts below---

 2023 MLD 180

Ss. 42 & 54---Civil Procedure Code (V of 1908), S. 99 & O.XIV, R.1---Constitution of Pakistan, Art. 199---Constitutional petition---New ground---Non-framing of issues---Irregularity not affecting merits of case---Concurrent findings of two Courts below---Suit and appeal for declaration and injunction filed by petitioner/plaintiff were dismissed by Trial Court and Lower Appellate Court respectively---Plea raised by petitioner/plaintiff was that leading of evidence without framing of issues was an illegality---Validity---Petitioner/plaintiff produced all evidence he wanted to his heart's content and then he wanted judgment in question to be reversed for it turning out against him---Provision of section 99 C.P.C. was fully attracted and neither any miscarriage of justice was found to have occurred nor merits of case stood affected to the prejudice of petitioner for decree to be reversed--- Not applying S. 99, C.P.C. would defeat the purpose of which S. 99, C.P.C. was enacted---Petitioner/plaintiff did not raise such ground in appeal before Lower Appellate Court and agitated it in Constitutional petition for the first time---Opportunity to produce further evidence was duly given to parties, which they elected to forego---If that were not the case one would have expected the same to be one of the strongest grounds in memo of appeal before Lower Appellate Court but such ground was not taken there---High Court to exercise Constitutional jurisdiction, illegality, failure or excess of jurisdiction, perverse exercise of discretion, material misreading of evidence and the like was have to be shown---High Court declined to reappraisal of evidence and maintained judgments and decrees passed by two Courts below---Constitutional petition was dismissed, in circumstances.

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S. 42--Suit for declaration--Dismissed--Inheritance cause of action--Matter was already decided before forty years ago--Judgment was not challenged--

 PLJ 2023 SC 29

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

----S. 11--Res judicata--Specific Relief Act, 1877, S. 42--Suit for declaration--Dismissed--Inheritance cause of action--Matter was already decided before forty years ago--Judgment was not challenged--Another suit was filed in 1997 on same cause of action--Dismissed--Public policy--Challenge to--Not every statement or observation in a judgment of this Court creates a precedent to become binding on Courts--Appellate Court had disregarded principle of res judicata and High Court corrected this mistake of law, and having done so--Public policy also requires that disputes once finally decided should not be reopened--In present case 12 May, 1958 judgment was also not challenged by Sahib-un-Nisa, nor was it challenged by her legal heirs, and instead it was sought to be negated by filing a suit in year 1997, which is not permissible--Appeal dismissed.                         [P. 32] A, B & C

Syed Nayab Hassan Gardezi, ASC and Syed Rifaqat Hussain Shah, AOR for Appellants.

Haji Muhammad Zahir Shah, Advocate Supreme Court/AOR for Respondents.

Date of hearing: 3.2.2022.

 PLJ 2023 SC 29
[Appellate Jurisdiction]
Present: Qazi Faez Isa and Yahya Afridi, JJ.
MUHAMMAD SHIFA and others--Appellants
versus
MEHERBAN ALI and others--Respondents
C.A. No. 1389 of 2014, decided on 3.2.2022.
(On appeal from the judgment dated 27.06.2014 of the Peshawar
High Court, Peshawar passed in Civil Revision No. 119/2007
along with C.M. No. 114/07)

Judgment

Qazi Faez Isa, J.--This appeal has been filed as of right since the High Court had set aside the judgment of the Appellate Court and restored that of the Civil Judge, who had dismissed the suit filed by the appellants/their predecessors-in-interest.

2. Mehrban Ali died in the year 1908 and at the time of his death he was survived by a daughter, namely, Sahib-un-Nisa, who passed away in the year 1969 and her children and grandchildren filed a suit claiming their right to inheritance through Sahib-un-Nisa from Mehrban Ali’s estate comprising of 62 kanals and 12 marlas of land. The learned counsel states that the judgment of the Appellate Court was correct as heirs cannot be deprived from their inheritance embedded in Islamic Shari’ah, and the judgment of the High Court could not have relied upon the principle of res judicata, enunciated in Section 11 of the Code of Civil Procedure, 1908 (‘the Code’). Learned counsel has referred to a judgment by two learned Judges in the case of Muhammad Zubair v. Muhammad Sharif (2005 SCMR 1217) and the following portion (in paragraph 7 thereof) which states that the principle of res judicata is not applicable in cases of Muslim Personal Law:

‘There is no cavil to the proposition of law that on the enforcement of Muslim Personal Law (Shariat) Application Act, 1962 as amended by Act XIII of 1983, the property of last male owner subject matter of limited interest would be deemed to have devolved upon his legal heirs on his death, and the right of succession would not be defeated by the law of limitation or the principle of res judicata as no law or judgment can override the law of Sharia which is superior law.’

3. The learned counsel for the respondents states that Sahib-un-Nisa had herself filed a suit in respect of the very same land and cause of action in the year 1957 which was decided on 12 May 1958, and her claim to the estate of Mehrban Ali was dismissed. Eleven years after the decision dismissing her suit she passed away and till her death in the year 1969 did not assail the judgment dismissing her suit. Therefore, the 12 May 1958 judgment could not be disregarded or set aside by filing another suit in the year 1997, by the legal heirs of Sahib-un-Nisa on the very same cause of action and in respect of the same subject matter, and such suit was not maintainable and he places reliance upon Sections 11 and 12 of the Code, reproduced hereunder:

11. Res Judicata. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue been subsequently raised, and has been heard and finally decided by such Court.

12. Bar to further suit.

(1) Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.

(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.

4. We have heard the learned counsel, examined the referred to citation and the Muslim Personal Law (Shariat) Application Act, 1962 (‘the Act’). The learned Judges in the case of Muhammad Zubair, with utmost respect, whilst referring to the Act assumed that the Act had stipulated that res judicata and/or Sections 11 and 12 of the Code were not applicable to Muslim Personal Law. However, the Act does not state this. In the case of Salehon v. Sardaran (1994 SCMR 1856), the principle of res judicata was considered to be applicable with regard to the Act and leave was refused by three learned Judges of this Court; this judgment was not referred to in the case of Muhammad Zubair. This Court had granted leave on the same point as contended by the appellants’ counsel in the case of Fatima Bibi v. Province of Punjab and the leave granting order passed therein is published in 2012 SCMR

72, but since the decision of the appeal is not published we enquired from the office about its fate and the file of the appeal (Civil Appeal No. 370-L of 2011) has been examined by us, which was heard and dismissed by a three-member Bench of this Court vide judgment dated 11 October 2013; review was sought (Suo Motu Review Petition No. 267 of 2013) but that too was dismissed on 5 December 2013.

5. We may further observe that not every statement or observation in a judgment of this Court creates a precedent to become binding on Courts. In this regard reference may be made to Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973 (‘the Constitution’), reproduced hereunder:

‘Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan.’

The case of Muhammad Zubair did not decide the question whether the principle of res judicata was not applicable to Muslim Personal Law in terms of Article 189 of the Constitution.

6. In the present case the Appellate Court had disregarded the principle of res judicata/Section 11 of the Code and the High Court corrected this mistake of law, and having done so it followed that the suit filed in the year 1997 by the respondents had to be dismissed, because the very same matter had already been decided almost forty years earlier. Public policy also requires that disputes once finally decided should not be reopened. In the present case the 1958 judgment was also not challenged by Sahib-un-Nisa, nor was it challenged by her legal heirs, and instead it was sought to be negated by filing a suit in the year 1997, which is not permissible. Therefore, this appeal is dismissed, but there shall be no order as to costs, as the appeal was filed as of right.

(Y.A.)  Appeal dismissed

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--Suit for declaration--Disputed land was belongs to shia community and use as “Karbala”--Land was acquired by appellants for area development scheme--

 PLJ 2023 SC 19

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

----S. 42--Punjab Acquisition of Land (Housing) Ordinance, (VIII of 1973), S. 4(1)--Suit for declaration--Disputed land was belongs to shia community and use as “Karbala”--Land was acquired by appellants for area development scheme--Protest by Shia Community--Revised layout plan--Disputed land was excluded from scheme--Issuance of letter--Disputed land was transferred to education department for construction of school--Dismissal of suit--Appeal--Allowed--Dismissal of revision--Withdrawal of notification for Government Scheme--Challenge to--Disputed Land could not have been used for any other purpose other than one which is mentioned in Notification--Respondents could not have been compelled to receive compensation through notice tendered in evidence--Inclusion of disputed land in Award was illegal and could not have been done, especially without issuing any notification under Act--Purpose for which land has been transferred to Education Department is entirely different from that which is mentioned in Notification--If intention of Government or area sought to be acquired changes after Notification has been issued; a fresh notification or an addendum to earlier notification can be issued to enable parties affected by it to avail remedies provided by law--Land having not been included in Notification or any subsequent notification for addendum issued thereto, Award could not include Khasra No. 505/62--Appellant-Authority exceeded its jurisdiction in doing so and it is held that Award was, to extent of inclusion of Khasra No. 505/62, illegal--Judgment of High Court is well reasoned, proceeds on correct factual and legal premises and has correctly applied relevant law, rules and regulations to facts and circumstances of cases--Appeal dismissed.

                                             [Pp. 26, 27, 28 & 29] A, B, C, D, E, F & G

Barrister Qasim Ali Chohan, Additional A.G., Punjab, Mr. Zaheer Ahmed, Dy. Director (PHATA) and Mr. Ismail Ch., Head Draftsman for Appellants.

Syed Moazam Ali Rizvi, ASC and Syed Rafaqat Hussain Shah, AOR for Respondents.

Date of hearing: 19.1.2022.

 PLJ 2023 SC 19
[Appellate Jurisdiction]
Present: Ijaz-ul-Ahsan, Yahya Afridi and Jamal Khan Mandokhail, JJ.
PROVINCE OF PUNJAB through Secretary Housing and Physical Planning Department, Government of the Punjab, Lahore and others--Appellants
versus
Syed ZIA-UL-HASSAN ZAIDI and others--Respondents
C.A. No. 401 of 2015, decided on 19.1.2022.
(Against the judgment dated 12.12.2014 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Civil Revision
Petition No. 437-D of 2001)

Judgment

Ijaz-ul-Ahsan, J.--Through this appeal, the Appellants have challenged the judgment of the Lahore High Court, Lahore dated 12.12.2014 passed in Civil Revision No. 437-D of 2001 (hereinafter referred to as “Impugned Judgment”). The Respondents through their Civil Revision Petition had challenged the judgment and decree dated 03.05.2001 whereby the Appellate Court set-aside the judgment and decree dated 21.01.1998 passed by the learned trial Court and decreed the suit for declaration and consequential relief filed by the Respondents.

2. The brief facts giving rise to this lis are that the Respondents filed a suit for declaration challenging the acquisition of land measuring 09 Kanals 16 Marlas falling in Khasra No. 505/62 situated in Khawaspur, Jhelum (hereinafter referred to as the “Disputed Land”). The Respondents belonged to the Shia community and started using the Disputed Land as “Karbala”. It was claimed by the Respondents that the Disputed Land was transferred to the predecessor-in-interest of the Respondents. After the death of the said predecessor-in-interest, Respondent No. 01 (Syed Zia-ul-Hassan Zaidi) was appointed as the Administrator of the Disputed Land. In 1973, the Appellants acquired the land for the purpose of Area Development Scheme-I for low-income housing at Jhelum (hereinafter referred to as the “Scheme”). This gave rise to protests by the Shia community of Jhelum. Resultantly, a revised layout plan for the Scheme was placed before the Director of Housing and Physical Planning, Rawalpindi on 17.10.1973. The said Director approved the revised layout plan on 09.01.1974. Ultimately, vide letter dated 29.03.1982, it was recommended that the Disputed Land should be kept as open space and not included in the Scheme and, vide letter dated 03.09.1986, it was approved that the Disputed Land would be excluded from the Scheme. On the contrary, the Disputed Land was transferred to the Education Department vide letter dated 15.09.1987 for the construction of a school. The letter dated 15.09.1987 was challenged by the Respondents by filing a suit for declaration along with consequential relief. The trial Court after framing issues and recording evidence, dismissed the suit of the Respondents vide judgment and decree dated 21.01.1998. Aggrieved, the Respondents filed an appeal before the learned District Judge which was allowed vide judgment and decree dated 03.05.2001. The Appellants filed a Civil Revision Petition thereagainst which was dismissed vide the Impugned Judgment. Aggrieved thereof, the Appellants have approached this Court.

3. Leave to appeal was granted by this Court vide order dated 11.05.2015 in the following terms:

          “Learned Additional Advocate General has inter alia contended that the land in dispute was acquired with other land in the year 1973 for Area Development Scheme-I to provide houses to low income citizens and subsequently its possession was transferred to Education Department for establishment of Elementary College on 3.2.1990; that the claim of the respondents is that the land is being used by the Shia sect for the purpose of ‘Karbala’ etc and could not be transferred for establishment of College; that the land was `Banjar Qadeem’ and was never shown or entered as `Karbala’ in the revenue record at the time of acquisition; that in the present case the Courts below have gone beyond the pleading that Khasra No. 505-62 was never acquired in the year 1973; that the learned Single Judge in Chambers of the High Court has not discussed the case and has erroneously reproduced the findings of the learned Appellate Court and affirmed that the suit was rightly dismissed by the learned trial Court.”

4. The learned Additional Advocate General, Punjab has argued that the Disputed Land was acquired as part of the Scheme in respect of which compensation was paid to the Respondents and the possession of the land was subsequently delivered to the Education Department on 03.02.1990 for construction of Elementary College, Jhelum. He has further argued that the land was shown as ‘Banjar Qadeem’ and not as ‘Karbala’ in the revenue record. He has further argued that an amended notification was issued in supersession of the Notification issued under Section 4(1) of the Punjab Acquisition of Land (Housing) Ordinance, 1973 dated 27.03.1973 (hereinafter referred to as the “Notification”). It has been argued that the purportedly, through the amended notification, the Disputed Land was acquired for the Scheme.

5. The learned ASC for the Respondents has argued that the Disputed Land was mentioned as ‘Karbala’ in the revenue record and that Moharram processions were taken to the said land for the past many years. He has further argued that the Director of Housing and Physical Planning specifically excluded the Disputed Land from the Scheme. As such, it could not have been transferred to the Education Department because the Disputed Land belonged to the Respondents and not to the Appellants. The learned ASC has relied upon the notification dated 29.03.1982 whereby the Disputed Land was declared as ‘open space’ by the A.C (D) acting on behalf of the Commissioner, Rawalpindi. He has further relied upon the notification dated 03.09.1986 whereby the Chief Minister Punjab excluded the Disputed Land from the Scheme. The learned ASC has argued that the Disputed Land was not mentioned in the Notification under Section 4 of the Land Acquisition Act, 1894. He has argued that if the Disputed Land was to be mentioned in the Notification, the prescribed procedure starting from the notification, inviting objections, providing a hearing and then issuing an award ought to have been followed, which was not done in the case at hand. The learned Counsel has further argued that the fact that the Disputed Land was not mentioned in the Notification is admitted by witnesses/revenue officials.

6. We have heard the learned Counsel for the parties and have perused the record. The issues which fall before this Court for determination are as follows:-

(i)       Was the Disputed Land mentioned in the Notification?

(ii)      Could an Award transferring the Disputed Land in favour of the Education Department be made?

WAS THE DISPUTED LAND MENTIONED IN THE NOTIFICATION?

7. We have on record the Notification issued by the Office of the Deputy Commissioner, Jhelum which reads as follows:

“No. 3401-G/DRA -Whereas it appears to the undersigned that the land is needed by the Government for a housing scheme known as Area Development Scheme for Low Income Housing at Jhelum. It is hereby notified under Section 4(1) of the Punjab Acquisition of Land (Housing) Ordinance, 1973 for information of the public that the Land in the locality in the schedule below is to be required for this purpose ....”

The Notification was issued under Section 4(1) of the Punjab Acquisition of Land (Housing) Ordinance, 1973 (since repealed) (hereinafter referred to as the “Act of 1973”), which reads as under:

“Publication of preliminary notification and power of officers thereupon.--(1) Whenever it appears to the Deputy Commissioner that land in any locality is needed or is likely to be needed for any housing scheme a notification to that effect shall be publish in the Official Gazette and the collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.”

It is mentioned in the Notification that the Land in the locality mentioned in the schedule to the Notification was being acquired for the development of the Scheme. We have gone through the said schedule and are unable to agree with the argument that the Disputed Land was mentioned therein. The said schedule mentions various khasra numbers which were acquired in the locality of Khawaspur. However, the Disputed Land is not mentioned anywhere in the said schedule. The entire acquisition for the Scheme was carried out based on the Notification which has no mention of the Disputed Land. When confronted with this, the learned AAG submitted that an amended notification was issued in supersession of the Notification whereby, the land in question was acquired for the Scheme. We have repeatedly asked the learned AAG to show us any such notification from the record. He has been unable to do so.

8. On the contrary, there is a notification dated 21.05.1973 on the record issued by the Office of the Deputy Commissioner, Jhelum which reads as follows:

“No. 4696-4/DRA--Whereas the land measuring about 100 acres which was required for housing scheme known as Area Development Scheme for Low Income Housing at Jhelum in the revenue estates of Rajipur, Khawaspur and Shahpur is no longer required for the said purpose. Now therefore, I, Mr. Muhammad Parvez Masood, C.S.P, Deputy Commissioner, Jhelum hereby withdraw Notification No. 3401-G/DRA issued under Section 4(1) of the Punjab Acquisition of Land (Housing) Ordinance, 1973 in the EXTRAORDINARY GAZETTE Punjab Gazette of 27th March 1973 at pages 533 to 538.” (Underlining is ours)

The aforenoted notification establishes two facts; that the land mentioned in the Notification was no longer required for the purpose mentioned in the Notification, and, that the Notification was withdrawn by the competent authority i.e., the Deputy Commissioner, Jhelum as provided in Section 4(1) of the Act of 1973. There is nothing on the record to show that the aforenoted notification was ever challenged by the Appellants or, that a subsequent notification was issued in supersession of the ibid notification. The learned High Court has correctly held that since the Disputed Land was purportedly acquired by the Appellants, it was for them to positively prove through cogent evidence that it was included in the Notification. The learned High Court has further held that the revised map of the locality was issued without approval and notification of the competent authority. The Notification was issued for a specific purpose. The said purpose was that land was required by the Government for a Scheme. The fact that the said Notification has been withdrawn shows that the Government changed its intention and decided that the land in question measuring 800 acres was no longer required.

9. The subsequent notification was issued by the Deputy Commissioner who, as per Section 19 of the Act of 1973 was perfectly empowered to do so. Section 19 of the ibid Act reads as under:

“The Deputy Commissioner, shall be at liberty to withdraw from the acquisition proceedings of any land, notified under this Act, of which possession has not been taken:

          Provided that Government or an Official Development Agency, as the case may be, has informed the Deputy Commissioner in this behalf in writing:

          Provided further that in case of non-acceptance of the award even as a result of the appeal made to the Commissioner the right of withdrawal from the acquisition may be exercised by the Government or an Official Development Agency, as the case may be.”

The first part of Section 19 of the Act of 1973 establishes that the Deputy Commissioner was at liberty to withdraw from the acquisition proceedings. The fact that a subsequent notification withdrawing the earlier Notification was issued further shows that possession of the land sought to be acquired was not taken by the Appellants. It is worth mentioning that, in the absence of any material suggesting that the subsequent notification was challenged, this Court under Article 129(e) of the Qanun-e-Shahadat Order, 1984 may presume the existence of the fact that the Disputed Land was not required by the Appellants. Article 129(e) of the ibid Order reads as follows:

“129. Court may presume existence of certain facts: The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”

The allegedly amended notification through which the land was statedly acquired or transferred to the Education Department has neither been brought on the record nor has it been shown to us that the said purported notification was published in the Official Gazette. Section 4(1) of the Act of 1973 uses the word “shall” making it obligatory upon the Appellants to publish any and all notifications in respect of acquisition under Section 4(1) of the Act of 1973. The requirement of publication of a notification under Section 4 is an essential requirement in acquisition proceedings because it is likely that the rights and interests of landowners will be adversely affected. Reliance in this respect is placed on Saghir Ahmed through Legal Heirs v. Province of Punjab through Secretary, Housing and Physical Planning Lahore and others (PLD 2004 Supreme Court 261) wherein, this Court held as follows:

“However, a notification under Section 4 of the Act specifically requires its publication in the official Gazette, if it appears to the Deputy’ Commissioner that a particular land of a particular locality is needed or is likely to be needed for any housing-scheme. This is followed by another legal requirement of a public notice of the substance of such notification to be given at convenient places in that locality. The publication of notification under Section 4 in the official Gazette has been made necessary as the rights and interests of the land owners are likely to be adversely affected by the acquisition proceedings. According to definition of word “notification” as given in Section 2(41) of West Pakistan General Clauses Act, 1956, “it shall mean a notification published under the proper authority in the official Gazette” in the absence of anything repugnant in the subject or context.”

The fact that no such notification has been shown from the record leaves no doubt in our minds to hold that the said subsequent notification, as per the record, was never issued by the Appellants. In the absence of such documentary evidence, this argument of the learned AAG fails and is accordingly held to be unsustainable. On the contrary, we have on record two other notifications, the effect of which is that acquisition of the Disputed Land was withdrawn by the Appellants.

COULD AN AWARD TRANSFERRING THE DISPUTED LAND IN FAVOUR OF THE EDUCATION DEPARTMENT BE MADE?

10. The learned Counsel for the Respondents has argued that the Disputed Land was transferred to the Education Department through the impugned Award whereby, inter alia, the entire Khasra No. 62 was transferred to the Education Department for the construction of a school. It has been argued that the Award made in favour of the Education Department was illegal because there was no notification published in the official gazette to support the transfer as required by Section 4 of the Act of 1973. It has further been argued that even if it is assumed that the land was acquired, the Disputed Land could not have been used for any other purpose other than the one which is mentioned in the Notification. The learned High Court in this respect has held that the Assistant Director of the Appellant-Department appeared as DW-3 and admitted that the Disputed Land was not mentioned in the Notification. The learned High Court has held that this fact has been admitted by other DWs as well and these admissions were not taken into consideration by the trial Court. As such, the Respondents could not have been compelled to receive compensation through notice tendered in evidence as Exh.PW-9/11.

11. We have on the record various letters from the revenue authorities and the Director of the Appellant-Department, one of which is a letter issued by the A.C. (D) for the Commissioner, Rawalpindi Division dated 29.03.1982 paragraph 2 of which reads as follows:

“The proposal of the Deputy Commissioner, Jhelum, referred to in your office Memorandum No. SOD-I-7-4/79 dated 8th July 1979 to keep the area as an open space after excluding the same from the Scheme is supported by this office with the condition that it does not lead to the impression that any community has got the license to make any construction on it.” (underlining is ours)

Another letter in this respect is dated 18.10.1973 undersigned by the Director of the Appellant-Department which reads as follows:

“The side pointed out by the petitioner as being used as ‘Karbala’ has been adjusted in the recently revised layout plan. A copy of the layout plan had already been submitted to you for approval vide this office Memo. No. 2332 dated 17/x/73.” (Underlining is ours)

The aforenoted letters establish that the Disputed Land was in possession of the Respondents and, that the Appellant-Department itself excluded it from the Scheme. This is further supported by the letter dated 06.11.1978 issued to the Deputy Director of the Appellant Department by the Director-General of the Appellant Department wherein it was stated that the Disputed Land may be kept as an open space and, the viewpoint of the Deputy Commissioner, Jhelum may be obtained as well. The fact that the Disputed Area was excluded from the Scheme is also mentioned in the letter of the Section Officer (D-II) dated 03.09.1986 stating that the Chief Minister had excluded the Disputed Land from the Scheme.

12. The fact that the Disputed Land was included in the Award despite the availability of various letters including the letter of the Chief Minister stating that the Disputed Land was excluded from the Scheme leaves us in no manner of doubt that the inclusion of the Disputed Land in the Award was illegal and could not have been done, especially without issuing any notification under Section 4 of the Act of 1973.

13. The Notification mentions that the Disputed Land was being acquired for the Scheme. Subsequently, the Disputed Land was transferred to the Education Department for the construction of a school. The learned Counsel for the Respondents has argued that the Appellant-Department, even in a best-case scenario, could not have transferred/used the land for any other purpose except that which is mentioned in the Notification. The intent and purpose of the Government were unambiguous as seen from the Notification. There was no room for the Appellant Department to read something into the Notification, which was not there. Reliance in this regard is placed on Province of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Farasatullah and others (2020 SCMR 1629).

14. The Notification is specific in its purpose and object and any interpretation of the Notification which is not in line with its terms would be violative of the law. The purpose for which the land has been transferred to the Education Department is entirely different from that which is mentioned in the Notification. A notification issued by the Government essentially reveals its intention. One of the purposes of publishing a notification is so that those who may be affected by it can know the intention of the Government as mentioned in the notification itself. Essentially, a notification is a means used by the Government to communicate with the general public regarding inter alia, any projects et cetera that it might prospectively undertake. The intent behind the notification or, the purpose for issuing the same must be mentioned because, as noted above, the rights of different stakeholders are involved. This is one of the reasons that there are various safeguards provided in the Act of 1973 such as Section 6 which requires, by using the words “Shall”, the publication of a notice to make the intention of the Government to possess a certain piece of land clear.

15. If the said intention of the Government or the area sought to be acquired changes after the Notification under Section 4 has been issued; a fresh notification or an addendum to the earlier notification can be issued to enable the parties affected by it to avail remedies provided by the law. Further, the acquisition of the land does not ipso facto mean that the Appellant-Department could use the acquired land for any purpose that it considered appropriate. The acquiring agency/department/entity is restricted in its use of the land to the purpose mentioned in the notification and for no other purpose. Further, no additional land can be included in the award which was not mentioned in the Notification under Section 4 without any addendum or fresh notification after fulfilling all legal and procedural formalities required to be fulfilled in this regard. That being so, and land comprised in Khasra No. 505/62 having not been included in the Notification under Section 4 or any subsequent notification for addendum issued thereto, the Award could not include Khasra No. 505/62. The Appellant-Authority exceeded its jurisdiction in doing so and it is therefore held that the Award was, to the extent of the inclusion of Khasra No. 505/62, illegal. There is nothing in the Act of

1973 to the effect that the Deputy Commissioner/Collector had the authority to add a Khasra number to either a notification or the Award of his own volition without following proper rules and procedure. As such, the Award could not have been issued without first complying with the mandatory provisions of the law.

16. The Impugned Judgment of the learned High Court dated 12.12.2014 is well reasoned, proceeds on the correct factual and legal premises and has correctly applied the relevant law, rules and regulations to the facts and circumstances of the cases before us. No legal, or jurisdictional defect, error or flaw in the Impugned Judgment has been pointed out to us that may furnish a valid basis or lawful justification to interfere in the same. The learned AAG has not been able to persuade us to take a view different from the High Court in the facts and circumstances of the instant Appeal. We accordingly affirm and uphold the Impugned Judgment of the learned High Court.

17. For the reasons recorded above, this appeal is found to be without merit. It is accordingly dismissed.

(Y.A.)  Appeal dismissed

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