---Art. 212(3)--Death of employee--Filing of writ petition for appointment of son of deceased employee--Allowed--Direction for appointment on regular basis--Appointment letter was issued--

 PLJ 2023 SC 103

Constitution of Pakistan, 1973--

----Art. 212(3)--Death of employee--Filing of writ petition for appointment of son of deceased employee--Allowed--Direction for appointment on regular basis--Appointment letter was issued--Involvement of petitioner in criminal case--Concealment of facts--Acquittal of respondent U/S. 265-K, Cr.P.C.--Respondent was not allowed to join service by department--Writ pettion--Allowed--Son quota--Respondent in earlier round of litigation had approached High Court with a view to appoint him under son quota--He concealed factum of his being involved in a criminal case--It is settled law that even if allegations leveled in FIR are admitted to be false, even then without recording of evidence, it cannot be said that there was no probability of conviction of accused--In order to ascertain genuineness of allegations, Trial Court ought to have allowed prosecution to lead evidence--Respondent was offered job of cashier in Bank but when Bank came to know that he has a criminal background, Bank did not allow him to join duty--Post of cashier is considered to be very important in a Bank--It is cashier who collects and disburses cash--While not allowing respondent to join duty, Bank was well within its domain and acted naturally-- High Court ought to have taken into consideration fact but it failed to do so--Appeal allowed. [Pp. 105 & 106] A, B, C & D

2022 SCMR 694, 2022 SCMR 1861 and 2005 SCMR 1544 ref.

Rai Mohammad Nawaz Kharal, ASC and Rafaqat Hussain Shah, AOR for Appellants.

Nemo for Respondent.

Date of hearing: 16.1.2023.

 PLJ 2023 SC 103
[Appellate Jurisdiction]
Present: Ijaz-ul-Ahsan, Munib Akhtar and Sayyed Mazahar Ali Akbar Naqvi, JJ.
PRESIDENT NATIONAL BANK OF PAKISTAN and others--Appellants
versus
WAQAS AHMED KHAN--Respondent
C.A. No. 441 of 2021, decided on 16.1.2023.
(Against the judgment dated 22.09.2020 passed by the Peshawar High Court, Abbottabad Bench in Writ Petition No. 830- A/2019)

Judgment

Sayyed Mazahar Ali Akbar Naqvi, J.--Through this appeal by leave of the Court, the appellants have called in question the vires of the judgment dated 22.09.2020 passed by the learned Peshawar High Court, Abbottabad Bench whereby the Writ Petition filed by the respondent was allowed and the appellants were directed to allow the respondent to join his duty in pursuance of appointment order dated 24.06.2015.

2. Briefly stated the facts of the matter are that father of the respondent was Manager in the appellant National Bank of Pakistan and died while he was in service of the Bank. The respondent filed Writ Petition No. 52-A/2013 before the Peshawar High Court for his appointment in the National Bank under son-quota. The said Writ Petition was allowed vide judgment dated 10.12.2013 and the appellants were directed to appoint the respondent on regular basis on any post commensurate to his qualification. This judgment was also upheld by this Court vide order dated 23.02.2015 passed in Civil Petition No. 235/2014. Thereafter, the appellant Bank issued appointment letter dated 24.06.2015 and directed the respondent to join the duty as Cashier within a period of 30 days. However, on coming to know that the respondent was involved in a criminal case registered vide FIR No. 1172/2013 dated 23.11.2013 under Section 302 PPC at Police Station Hawalian, District Abbottabad for committing murder of his wife, he was not allowed to join the duty. Later on, the respondent was acquitted by the learned Trial Court vide judgment dated 02.05.2019 while exercising the powers under Section 265-K Cr.P.C. After his acquittal, he filed Writ Petition No. 830-A/2019 before the Peshawar High Court with a prayer that the appellants may be directed to take charge from him as per appointment order dated 24.06.2015. The learned High Court vide impugned order dated 22.09.2020 accepted the Writ Petition filed by the respondent and directed the appellants to allow the respondent to join his duty in pursuance of the appointment order dated 24.06.2015. Being aggrieved by the impugned order, the appellants filed Civil Petition No. 3527/2020 before this Court wherein leave was granted on 28.04.2021 and the present appeal has arisen thereafter.

3. At the very outset, learned counsel for the appellants contended that at the time when the respondent was offered job in the appellant Bank, he was involved in a criminal case but he concealed this fact. Contends that the respondent had not approached the learned High Court with clean hands and had misstated the facts, therefore, he could not have been given the relief sought for. Contends that appointment of the respondent under the son quota is a policy matter, as such, the writ petition was not maintainable before the High Court especially keeping in view the criminal background of the respondent. Lastly contends that acquittal under Section 265-K Cr.P.C. is not an acquittal stricto sensu, as such, the impugned judgment is based on wrong presumption of law, therefore, the same may be set at naught.

4. Although notice has been served on the respondent and he is represented by a counsel yet neither the respondent nor his counsel is in attendance. In this view of the matter, we are inclined to proceed with the matter on merits.

5. We have heard learned counsel for the appellants and have perused the record with his able assistance.

There is no denial to this fact that doctrine of legitimate expectation connotes that a person may have a reasonable expectation of being treated in a certain way by administrative authorities owing to some uniform practice or an explicit promise made by the concerned authority. The legitimate expectation ascends in consequence of a promise, assurance, practice or policy made, adopted or announced by or on behalf of government of a public authority. When such a legitimate expectation is obliterated, it affords locus standi to challenge the administrative action before the Court of law. However, it is for the Court to decide as to whether the expectation is legitimate or not. Said doctrine is applied as a tool to watch over the action of administrative authorities and in essence imposes on all authorities to act fair and square in all matters encompassing legitimate expectation. Reliance is placed on Uzma Manzoor vs. Vice Chancellor Khushal Khan Khattak University, Karak (2022 SCMR 694). In the present case, the respondent in the earlier round of litigation had approached the learned High Court with a view to appoint him under the son quota. However, he concealed the factum of his being involved in a criminal case. No doubt, the Constitutional Courts being guardians of the Constitution have the power to judicially review the administrative/executive actions and the conduct of the public authorities but the same shall be on the touchstone of fairness, reasonableness and proportionality. We are not oblivious of the fact that although the respondent was involved in a criminal case of murder of his wife and was acquitted subsequently pursuant to proceedings carried out under Section 265-K Cr.P.C. However, it is settled law that even if the allegations leveled in the FIR are admitted to be false, even then without recording of evidence, it cannot be said that there was no probability of conviction of the accused. In order to

ascertain the genuineness of the allegations, the Trial Court ought to have allowed the prosecution to lead evidence. Even otherwise, this Court in Model Customs Collectorate, Islamabd vs. Aamir Mumtaz Qureshi (2022 SCMR 1861) and State vs. Raja Abdul Rehman (2005 SCMR 1544) has categorically held that in appellate or revisional proceedings, the same sanctity cannot be accorded to acquittal at intermediately stage such as under Section 249-A or 265-K Cr.P.C. as available for those recorded and based on full-fledged trial after recording of evidence. The respondent was offered the job of cashier in the Bank but when the Bank came to know that he has a criminal background, the Bank did not allow him to join the duty. The post of cashier is considered to be very important in a Bank. It is the cashier who collects and disburses cash. It is for this reason that every Bank wants their cashier to be of such a person, that no one can point a finger on his conduct. We are, therefore, of the view that while not allowing the respondent to join the duty, the Bank was well within its domain and acted naturally. The learned High Court ought to have taken into consideration the above fact but it failed to do so.

6. For what has been discussed above, this appeal is allowed, the impugned judgment of the learned Peshawar High Court is set aside. The above are the detailed reasons of our short order of even date.

(Y.A.)  Appeal allowed

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Application for restoration of civil revision dismissed in default --- Limitation period --- Three years --- Period of limitation for filing an application for restoration of a civil revision ( dismissed in default ) is three years under Article 181 of the First Schedule to the Limitation Act , 1908 -

2023 SCMR 485

Application for restoration of civil revision dismissed in default --- Limitation period --- Three years --- Period of limitation for filing an application for restoration of a civil revision ( dismissed in default ) is three years under Article 181 of the First Schedule to the Limitation Act , 1908 --- Petition for leave to appeal was converted into appeal and allowed with the Supreme Court expressing its concern that for applications for restoration of a suit and an appeal , the period of limitation under the Limitation Act , 1908 is 30 days , whereas the period for filing an application for restoration of a civil revision is three years ; that the logic for such differentiation is not clear and may be taken up in some appropriate case for consideration . 

Application for restoration of civil revision dismissed in default --- Limitation period --- Three years --- Period of limitation for filing an application for restoration of a civil revision ( dismissed in default ) is three years under Article 181 of the First Schedule to the Limitation Act , 1908 --- Petition for leave to appeal was converted into appeal and allowed with the Supreme Court expressing its concern that for applications for restoration of a suit and an appeal , the period of limitation under the Limitation Act , 1908 is 30 days , whereas the period for filing an application for restoration of a civil revision is three years ; that the logic for such differentiation is not clear and may be taken up in some appropriate case for consideration .

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-S. 22-A--Dishonestly issuing of cheque--Repayment of loan--Dishonouring of cheque--Issuance of cheque as security--Misusing of cheque-

 PLJ 2023 Lahore (Note) 49

Criminal Procedure Code, 1898 (V of 1898)--

----S. 22-A--Dishonestly issuing of cheque--Repayment of loan--Dishonouring of cheque--Issuance of cheque as security--Misusing of cheque--Petition for registration of criminal case was accepted--Challenge to--Petitioner’s claim of cheque being lying as s security and after repayment of loan, cheque was misused does not sound good for reason that no receipt of repayment was placed on record--There being nothing on contrary, no illegality has been committed by Ex-officio Justice of Peace by passing impugned order--Petition dismissed.      [Para 2] A

PLJ 2021 Lahore 98 and PLJ 2021 Lahore 43 ref.

M/s. Muhammad Zubair Yousaf and Tazeem Ahmad Bajwa, Advocate for Petitioner.

Haji Dilbar Khan Mahar, Assistant Advocate General.

Mr. Ghulam Shabir Dhakoo, Advocate for Complainant.

Date of hearing: 15.9.2022.

 PLJ 2023 Lahore (Note) 49
[Multan Bench, Multan]
Present: Muhammad Amjad Rafiq, J.
MUHAMMAD RIAZ--Petitioner
versus
EX-OFFICIO JUSTICE OF PEACE TEHSIL JAHANIAN DISTT. KHANEWAL etc.--Respondents
W.P. No. 7891 of 2021, decided on 15.9.2022.

Order

Briefly the facts of the case are that Respondent No. 3 namely Ghulam Muhammad, Regional Recovery Head Manager Saim, Multan Region Area, Khanewal, NRSP (National Rural Support Program) filed an application under Section 22-A, Cr.P.C., to seek a direction for registration of criminal case against the petitioner with the allegation of dishonestly issuing cheque, pleading that the same had been issued towards repayment of loan, but when presented in bank, the same was dishonored, whereupon, vide order dated 24.05.2021 the learned Additional Sessions Judge/Ex-officio Justice of Peace, directed the complainant to approach the respondent/SHO for registration of FIR and the SHO was directed to proceed further in accordance with law.

2. The legal proposition involved here in this case is “Whether Microfinance Institutions can be termed as financial institution within the contemplation of the Financial Institutions (Recovery of Finances) Ordinance, 2001, so as to say that its matter could only be tried by the Banking Court, excluding the applicability of Code of Criminal Procedure?” This question of law came under deliberation before this Court in number of cases and the above legal position has been repeatedly settled. In this context reference be made to the case “Muhammad Mumtaz Akhtar versus Additional Sessions Judge, etc.” (PLJ 2021 Lahore 98), wherein, after thorough discussion with reference to relevant statues and the case law, this case held that:

“……microfinance institutions cannot be termed as financial institution within the contemplation of the Financial Institutions (Recovery of Finances) Ordinance, 2001, to say that its matter could only be tried by the Banking Court. Thus, Code of Criminal Procedure being fully applicable, the application filed under Section 22-A/22-B, Cr.P.C. on behalf of the microfinance institution was fully competent………...”

The case “NRSP Microfinance Bank Limited versus The Additional Sessions Judge/Justice of Peace and 3 others” (PLJ 2021 Lahore 43 (Bahawalpur Bench) and an unreported order dated 13.11.2018 passed in the case “NRSP Microfinance Bank -Limited versus Additional Sessions Judge, etc” (Writ Petition No. 7950/2018-BWP), are to the same effect. In the circumstances petitioner’s claim of cheque being lying as s security and after repayment of loan, said cheque was misused, does not sound good for the reason that no receipt of repayment was placed on record. There being nothing on the contrary, no illegality has been committed by the learned Additional Sessions Judge/Ex-officio Justice of Peace by passing the impugned order. This writ petition, therefore, are dismissed.

(Y.A.)  Petition dismissed

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None of the parties to a judicial proceeding can be allowed to adduce evidence in support of a contention not pleaded by it and the decision of a case cannot rest on such evidence.

 2023 YLR 687

None of the parties to a judicial proceeding can be allowed to adduce evidence in support of a contention not pleaded by it and the decision of a case cannot rest on such evidence.

When the respondent has not pleaded the particulars of alleged oral agreement and even the names of the witnesses in whose presence such agreement was reached at, the evidence produced by him would be considered beyond the pleadings and it is a settled and cardinal principle of law that no one can be allowed to prove his case beyond the scope of pleadings

Bare reading of section 42 of the Specific Relief Act, 1877 makes it vivid that declaratory decree can only be passed to the effect of a pre-existing right which is being denied by some person. In the present case, admittedly the respondent based his claim on an oral agreement allegedly reached at between the respondent and present petitioner No.1 as back as in the year 1970 but perusal of the plaint shows that particulars of the land and of the alleged oral agreement are not detailed in the plaint, which otherwise ought to have been pleaded and proved and when the position is as such the subject agreement is void for uncertainty in terms of section 29 of the Contract Act, 1872 and consequently it cannot be specifically enforced as enunciated in section 21(c) of the Specific Relief Act, 1877. Therefore, when the respondent has yet to establish his right on the basis of alleged oral agreement, how can he claim a declaratory decree, because the petitioners have not denied his pre-existing right, which is pre-requisite for seeking a declaratory decree.

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--Petitioner has called in question order--Whereby petition filed by Respondent No. 3 under section 22-A & 22-B Cr.P.C for registration of the FIR against petitioner was accepted-

 PLJ 2023 Lahore (Note) 47

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 22-A & 22-B--Art. 199 of Constitution, 1973--Registration of criminal case--Cognizable offence--Petitioner has called in question order--Whereby petition filed by Respondent No. 3 under section 22-A & 22-B Cr.P.C for registration of the FIR against petitioner was accepted--Commission of cognizable offence was made out--No illegality or infirmity in impugned order passed by Justice of peace--Petition dismissed. [Para 1, 2 & 5] A, B & C

Mr. Shehbaz Ali Khan Gurmani, Advocate for Petitioner.

Syed Imran Abbas Kazmi, Advocate for Respondents.

Merh Nazar Abbas Chawan, AAG for State.

Date of hearing: 9.3.2016.

 PLJ 2023 Lahore (Note) 47
[Multan Bench, Multan]
Present: Aslam Javed Minhas, J.
MUHAMMAD RASHID--Petitioner
versus
EX-OFFICIO JUSTICE OF PEACE DISTRICT MUZAFFAR GARH and 2 others--Respondents
W.P. No. 5058 of 2015, decided on 9.3.2016.

Order

Through this constitutional petition, the petitioner has called in question the order dated 04.04.2015 whereby the petition filed by Respondent No. 3 under Section 22-A & 22-B, Cr.P.C. for registration of the F.I.R against the petitioner was accepted by learned Justice of Peace Muzaffargarh.

2. Learned counsel for the petitioner contended that from the contents of the application filed by the Respondent No. 3 no commission of cognizable offence was made out yet the learned Justice of Peace illegally and wrongly accepted the application under section 22-A Cr.P.C. He further contended that the story of petition filed by Respondent No. 3 is pre-planned, as in earlier portion of the petition, petitioner mentioned that he with co-accused came on foot but in the end he mentioned that they were fled away by motorbike, but learned Justice of Peace without considering the aspect of the case passed impugned order dated 04.04.2016, which being illegal and unlawful is liable to be set-aside.

3. On the other hand, learned A.A.G with the assistance of learned counsel for the Respondent No. 3 has vehemently opposed this petition and supported the impugned order of the learned Justice of Peace.

4. I have heard the learned counsel for the parties, learned AAG and perused the record as well as impugned order passed by the learned Justice of Peace.

5. I do not feel hesitation in endorsing the view taken by the learned Justice of Peace and see no illegality or infirmity in the impugned order dated 10.05.2014 passed by learned Justice of Peace Multan, therefore, this petition has no force and the same stands dismissed.

(K.Q.B.)          Petition dismissed

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To prove gift, it was incumbent to allege and prove three mandatory ingredients. The declaration of gift, acceptance of gift and transfer..................

 To prove gift, it was incumbent to allege and prove three mandatory ingredients. The declaration of gift, acceptance of gift and transfer of possession of the property. It was also necessary to specifically mention the time, place and names of persons in whose presence these prerequisites were performed.

R.S.A. No.25 of 2015
Shehzad Nawaz and others v. Mst. Raaj Begum and others
Dates of Hearing
24.2.2023 and 02.3.2023

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-Suit was dismissed for non-producing of evidence--

 2023 MLD 591
PLJ 2022 Lahore 993
Civil Procedure Code, 1908 (V of 1908)--

----S. 24-A(2) & 115--High Court Rules & Orders, Para 6, Chapter XIII, Vol.-I--Transfer of suit from one Court to another Court--Administrative order--No notice for parvee was issued to parties or their counsel by transferee Court--Suit was dismissed for non-producing of evidence--

Case was transferred under administrative order without fixing a date to appear before transferee Court and no information in this regard was imparted to parties--

Transferee Court must issue notice parvee to the parties on receipt of file transferred under administrative order as provided under Para 6, Chapter XIII, Volume I of High Court Rules and Orders.

Impugned order, dismissing suit for want of evidence, it is harsh in nature, especially when after transfer of case from one Court to other Court, petitioner was not informed, so as to enable him to produce his evidence and even he was not warned to face consequences in case of his failure to produce complete set of evidence--

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Suit property was sold by general attorney through oral sale mutation, therefore, in order to establish valid execution of the transaction, respondents have to prove................

2023 LHC 1158

 Suit property was sold by general attorney through oral sale mutation, therefore, in order to establish valid execution of the transaction, respondents have to prove not only the general power of attorney, the ingredients of sale but also the execution of the mutation through cogent and reliable evidence. In order to enforce a sale of immoveable property it was imperative for the vendees to establish that the transaction was undertaken with a title holder; there was an offer made which was accepted; the parties had no incapability; there was consensus at idem; that it was settled against valid consideration and that it was accompanied by the delivery of possession.

Transaction involving property of illiterate women was to be treated at par with Pardanasheen lady and where a transaction involved anything against her apparent interest, it must be established that independent, impartial and objective advice was available to her and the nature, scope, implication and ramifications of the transaction entering into was fully explained to her and she understood the same. Attestation of mutation by itself does not furnish proof of sale and whenever any such transaction was questioned, the onus laid on the beneficiary to prove the transaction and every ingredient thereof as well as the document if executed for its acknowledgment. Mutation was always sanctioned through summary proceedings and to keep the record updated and for collection of revenue, such entries were made in the relevant register under Section 42 of the Land Revenue Act, 1967 and it had no presumption of correctness prior to its incorporation in the record of rights. However, entries in the mutation were admissible in evidence but the same were required to be proved independently by the persons relying upon it through affirmative evidence. Oral transaction reflecting therein did not necessarily establish title in favour of the beneficiary. Mutation could not by itself be considered a document of title and may have been attested as an acknowledgment of past transaction.

It is settled principal of law that there must not be any uncertainty or vagueness in the power of attorney. Power of attorney should be construed strictly and only such powers qua the explicit object which were expressly and specifically mentioned in the power of attorney should be exercised by the agent as conceded to have been dedicated to him.

The execution of power of attorney neither amounts to be divesting the principal of the authority over the subject matter nor does it amount to absolute right of the attorney over the propert its owner. The attorney has to act as an agent of the principal y as . There is a restriction that the attorney has to take the principal in confidence before converting the property of the principal on the force of the power of attorney into personal use o r for the benefit of his near relatives. Admittedly, suit property was transferred by the general attorney to his son namely Ghulam Mustafa i.e. respondent No.1. If an attorney intends to exercise right of sale in his favour or in favour of next of his kin , he has to consult the principal before exercising that right and he should firstly obtain the consent and approval of the principal after acquainting her with all the material circumstances.

It is well settled principle of law that fraud vitiates even the most solemn transaction. Any transaction based on fraud would be void. Limitation does not run against void transaction. Mere efflux of time did not extinguish the right of any party. Notwithstanding the bar of limitation, the matter can be considered on merit so as not to allow fraud to perpetuate.

Section 18 of the Limitation Act, 1908 is the most pivotal provision providing relief in computing the limitation period, applicable to a person who claims to be deprived of the knowledge of his right to sue based on the fraud of the other party.

Where a person is by means of fraud kept from the knowledge of his right to institute a suit. In such circumstances, the period of limitation commences from the date when the fraud first became known to the "person injuriously affected". Such injuriously affected person can, therefore, institute a suit within the limitation period specified for such suit in the First Schedule ("Schedule") to the Limitation Act, but computing it from the date when he first had knowledge of the fraud, whereby he was kept from knowledge of his right to institute the suit. Thus, section 18 of Limitation Act is an umbrella provision that makes the limitation period mentioned in the Articles of the Schedule, begin to run from the time different from that specified therein.

Therefore, it is the date of knowledge of the "person injuriously affected" of the fraud mentioned in section 18, and of his right to sue that is relevant for computing the limitation period.

Thus, the limitation period of six years provided in Article 120 of the Limitation Act is to be computed from the time mentioned in the said Article, that is, when the right to sue accrued.

The provision clearly declares that for computing the limitation, the period of six years would commence from the date of accrual of right to sue. To ascertain, when does the right to sue accrue, to seek a declaration of her ownership right over the suit property shown to have been transferred to see another provision of law, that is, section 42 of the Specific Relief Act. A suit for declaration of any right, as to any property is filed under section 42 of the Specific Relief Act.

It becomes evident by reading the above provisions that the right to sue accrues to a person against the other for declaration of his right, as to any property, when the latter denies or is interested to deny his such right.

Civil Revision-Civil Revision (Against Decree)
970-12
MST. IRSHAD BIBI VS
GHULAM MUSTAFA ETC
Mr. Justice Ahmad Nadeem Arshad
24-03-2023
2023 LHC 1158

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Under Section 35 of the Specific Relief Act, 1877 (the “Act, 1877”) though the suit filed by the plaintiff for specific performance of an agreement to sell may stand................

 2023 MLD 404

Under Section 35 of the Specific Relief Act, 1877 (the “Act, 1877”) though the suit filed by the plaintiff for specific performance of an agreement to sell may stand decreed yet the contract may be rescinded through adjudication by the Court of competent jurisdiction.

As per the mandate contained in Section 35 CPC there are three occasions when the rescission may be adjudged. Two cases have been enumerated in subsections (a) and (b) of Section 35 of the Act, 1877, which are not relevant as far as the controversy in hand is concerned. The third situation is envisaged in subsection (c) of Section 35 of the Act, 1877, whereunder the Court may by order in the suit in which the decree has been made and not complied with, rescind the contract, either so far as regards the parties in default, or altogether as the justice of the case may require.

The learned Trail Court while decreeing the suit for specific performance of the agreement to sell unequivocally imposed a condition on the Petitioner to pay (i) remaining sale consideration in the amount of Rs.30,000/-; (ii) the period stipulated for deposit of said amount was two months from the date of Judgment and Decree; and (iii) the consequence of non-payment was held as „the suit of the plaintiff shall be deemed to be dismissed‟.

While applying the test laid down in the preceding paragraph it is held that till the time stipulated therein the subject matter Decree was preliminary in its effect and scope, but as soon as the said period lapsed the Decree which entailed a penal clause became final and conclusive as no further steps are contemplated to be taken by the learned Trial Court and at the time of filing of subject matter Application more than three and half months had lapsed and the Court had become functus officio.

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it is a settled position of law that generally a decree in a suit for specific performance of an agreement to sell is preliminary in its nature and scope as any such decree has an effect and ...............

 2023 MLD 404

By now it is a settled position of law that generally a decree in a suit for specific performance of an agreement to sell is preliminary in its nature and scope as any such decree has an effect and character of a contract where vendee has to deposit the purchase price, cost of purchase of necessary stamps for the execution of conveyance deed and so on and so forth, while the seller remains under an obligation to appear before Court to sign the conveyance deed and receive the purchase price. In such a situation it clearly follows that a decree passed in an action of specific performance of an agreement to sell is not final but preliminary in nature and the Court passing the decree retains seisin over the lis and obviously also retains power to enlarge or extend the time for payment of purchase price fixed therein.

There is a possibility that expression of adjudication of a decree in a suit for specific performance of an agreement to sell is conditional and the Court which grants the decree may retain jurisdiction till fulfillment of such condition including but not limited to extending the time for deposit of balance sale consideration within the period stipulated in the decree under consideration and till the time the condition is complied with within stipulated time, such decree would also be construed as a preliminary decree.

Another legal avenue can be that Court while passing the decree for specific performance of an agreement to sell, which is discretionary in its nature, may in order to curb any expected delinquency on the part of either of the parties may use the expression of adjudication by imposing a condition, for example, the stipulation of time for deposit of balance sale consideration and command a consequence of any default in respect thereof. In this situation, the whole edifice of consideration of the scope of a decree whether it is final or preliminary would depend upon the expression of adjudication used in a decree entailing a penal clause contained therein. If the expression of adjudication of a decree is such that failure of a party would lead to a legal consequence that the suit would be deemed to have been dismissed, it will only be construed as a preliminary decree till the time of fulfillment of the condition imposed by the Court within a time stipulated in the decree. The moment the time stipulated by the Court in a decree expires the penal consequence will become self-operative and the decree in such a situation would be considered as final in its ambit and scope. Obviously, in such a case the Court passing a decree would become functus officio forthwith having no power to extend or enlarge the time.

It is imperative to understand that legal expressions in a decree for specific performance of an agreement to sell entailing penal clauses such as „the suit will be dismissed‟ and „the suit will stand dismissed‟ or „the suit will be treated as dismissed‟, as each one has different connotations leading to diverse legal consequences. The analysis of consequences will assist in reaching a conclusion that under Section 148 CPC in what circumstances does the Court retains jurisdiction to extend or enlarge the time for performance of condition imposed by the decree?

In a case where decree specifies a condition to be complied with in a targeted stipulated time and in case of failure to fulfill said condition consequence thereof contains an expression „the suit will be dismissed‟ leads to a logical conclusion that failure or default of a party to lis would lead to a consequence to be followed or determined or adjudicated by the Court and in that case the effect will be that the decree is preliminary in its nature and scope. As in such cases using such terms are not words of automatic operation as they contemplate a further formal order.

Whereas, in case the expression of adjudication while passing a decree is embedded with the term that „the suit will stand dismissed‟ or „the suit will be deemed as dismissed‟ upon expiry of time stipulated in a decree are the words of finality and consequences are to take effect automatically and in such a scenario the Court will have no jurisdiction to enlarge or extend the time as any decree using such expression leads to an irresistible conclusion that the decree is final in its nature and no further steps are to be taken in case of delinquency of a party as the words are capable of operating automatically without any further order of the Court.

This distinction is not without importance as the term contained in decrees which are not strictly speaking preliminary decrees may not always be such as are intended to operate automatically without any further intervention by the Court. Therefore, these terms are the real test to identify whether the decrees have been made in such terms as to indicate the Court has finally disposed of all matters so that it is to operate automatically or whether the Court has still retained some control over the litigation. For extending or enlarging time under Section 148 of CPC previously fixed or granted by a Court this may be considered even a litmus test.

Section 2(2) CPC.

It is evident from the definition of term „decree‟ that the expression of adjudication by the Court may be preliminary or final. According to the Explanation contained at the foot of the said provision, the decree is preliminary if further proceedings have to be taken before whom the suit cannot be completely disposed of, whereas, it will be considered final if the expression of adjudication completely disposes of the suit. Therefore, it is the expression of adjudication and legal consequence in a suit that may assist in legally evaluating the status of a decree.

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Nature, scope and extent of contract between a counsel and his client.

 2023 MLD 483

Section 2 of the Power of Attorney Act, 1882 deals with execution under power of attorney. This section applies to the power of attorney created by an instrument. Similarly, provisions of sections 182 to 238 of the Contract Act, 1872 deal with the appointment and authority of agents. Words “Agent” and “Principal” have been defined in section 182.

A counsel who is appointed to represent his client proceeds to act on behalf of principal as per the powers so conferred on him under the ordinary rules governing the relationship of principal and agent as determined by the terms of power of attorney. Powers so conferred on a counsel would indeed create mutual obligations inter se the parties and an attorney would fall within the definition of agent as contemplated under section 182 of the Contract Act, 1872. The contract between an advocate and his client is essentially governed by the general rules of contract as embodied under the various provisions of Contract Act.

It is almost an established principle of law that power of attorney should be construed strictly and be interpreted to give only such authority as it confers expressly or by necessary implication.

There is no cavil with the proposition that by dint of section 17(2) of Family Courts Act, 1964, provisions of sections 8 to 11 of Oaths Act, 1873 are made applicable to the proceedings before Family Courts. The underlying wisdom of above hinted provision of Family Courts Act, 1964 is swift and expeditious settlement of Family disputes for the simple reason that a Family dispute is not limited to the four walls of home between two persons viz., man & wife, rather it has impact on the souls and minds of all near and dear to the contesting parties and it may disrupt not only the mental fabric of both the parties but also of those who are not even party to it directly particularly the children and the parents of the parties.

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The provision of Order XXIII Rule 1 CPC clearly mentions that the plaintiff at any stage, can withdraw the suit.

 2023 MLD 541

The provision of Order XXIII Rule 1 CPC clearly mentions that the plaintiff at any stage, can withdraw the suit. The suit can be withdrawn by the plaintiff conditionally or even unconditionally. But in case, if the petitioner wants to withdraw the suit conditionally on the basis of some reason for filing the fresh suit. Then the petitioner/plaintiff is bound to mention that defect in the earlier suit which he was going to withdraw otherwise simple withdrawal can be allowed by the Court at any stage. The spirit of section 151 CPC is altogether different. No doubt the Court has the inherent powers to make such order as may be necessary for the ends of justice or to prevent the abuse of process of the Court. But for that the Court will have to mention the reasons for invoking the said provision of law. The Court can only exercise the inherent powers in case when there is no prohibition in law regarding its jurisdiction to exercise the inherent powers. Secondly, when there is express provision in Code, Court cannot exercise that authority to defeat or circumvent such express provision. Thirdly, expression “Court” in section 151 CPC means each Civil Court in which the lis is pending. Inherit jurisdiction of Court can be invoked when there is no other specific provision to deal with the issue. In this proposition, the provision of Order XXIII Rule 1 CPC is there which is applicable to the present proposition. The statement of the counsel and petitioner No.2 is there. Where petitioner No.2 signed over the statement, he made before the Court, so there is nothing to consider that there could be any mistake in the statement regarding its understanding. The Court pen down the statement which was signed by petitioner No.2, his counsel also signed the same in token of correctness of the statement, the petitioner No.2 made before the Court. So, maximum application of provision of Order XXIII Rule 1 & 2 CPC was applicable to the proposition. The application of section 151 CPC was alien to the said proposition. The learned Courts below has correctly decided the proposition.

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Under Order XIV, Rules 1 and 2, C.P.C. issues are framed from the material controversies and propositions of law and fact raised in the pleadings of parties and are not limited to the issues raised in the plaint alone.

 Under Order XIV, Rules 1 and 2, C.P.C. issues are framed from the material controversies and propositions of law and fact raised in the pleadings of parties and are not limited to the issues raised in the plaint alone. Rule 1(5) of Order XIV, C.P.C. mandates that on reading the plaint and the written statement and after such examination of the parties as may appear necessary, the court shall ascertain that upon what material propositions of law or fact, the parties are at variance; and shall thereupon proceed to frame issues on which right decision of the case appears to depend. It is clear from bare reading of the provision that the material propositions of law or fact raised in the pleadings of the parties by both sides (i.e. plaintiffs and defendant) shall become subject matter of issues. Perusal of the plaint as also the written statement of respondent No. 1 in petitioners’ suit would show that the matter inter se is not restricted to one joint property alone but extends to other properties as well that either are claimed to be joint, or which are in the name of one of the petitioners but are alleged to be benami and also as such liable to the partition process. Deeper examination of the pleadings in respondent’s suit also reveals that the issues as are the subject matter of petitioners’ suit will also arise in respondent’s suit and parties in both the suits are also the same. This being so; in situation where parties are the same, the subject matter of the two suits raised in the pleadings i.e., plaint and written statement is the same, the questions for determination of issues will be the same and that it will require common evidence for decision; propriety demands that the two suits be consolidated to follow the rule of convenience for parties and to avoid contradictory decisions and unnecessary delay. It appears to be in these circumstances that an amendment was made in Order II, C.P.C. whereby Rule 6-A was added by Lahore High Court Notification No. 237/Legis/XI-Y-26, Gazette of Punjab dated 22.8.2018.

The spirit of the rule supra is that where there are more than one suits of the same nature requiring determination of common issues inter se the same parties, if the court considers it expedient for preclusion of multiplicity of litigation or conflicting judgments, it may direct their consolidation for adjudication through a single trial. The argument that the jurisdiction of court in the first suit will be limited to determination of claim qua one property subject matter of plaint and that it should ignore the respondent’s version in the written statement, possibly cannot be accepted in view of the provisions of Order XIV, Rules 1 and 2, C.P.C. which obligate cognizance of material propositions of law and fact raised in the pleadings of both the plaintiff(s) as well as the defendant(s) and their transformation and recording into issues for determination of controversy. It obviously entails that issues are framed keeping in view version of both sides and such exercise is not limited to contents of the plaint; separate trials in suchlike cases will lead to repetitious exercise of parties to produce same evidence and the anomaly of contradictory or inconsistent decisions at equivalent level could not be logically excluded which eventuality would depart from the policy imperatives underlying proper administration of justice.

Even otherwise the rule is that partial partition shall not be allowed and the entirety of the properties be included irrespective of possession.

W.P. No.21798 of 2022 Aila Azhar and
another Versus Ali Kuli Amin-ud-Din and others
09-03-2023

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