The limitation period of 30 days provided under Section 28(4) of the Punjab Consumer Protection Act, 2005 runs from date of knowledge of the defect or fault in the product or service.

 The limitation period of 30 days provided under Section 28(4) of the Punjab Consumer Protection Act, 2005 runs from date of knowledge of the defect or fault in the product or service. During this time, the consumer has to first send a written notice to the manufacturer or service provider under Section 28(1) of the Act and provide 15 days to respond to the same, as required under Section 28(2) of the Act. Where the defects raised are of technical nature and are denied by the manufacturer or the service provider, the onus to bring expert evidence on record to prove such defects is on the consumer. The Consumer Court also has to satisfy itself that sufficient expert evidence is available to ascertain if such defects exist.

C.A.797/2017
M/s Pak Suzuki Motors Company, Ltd. thr. its Manager v. Faisal Jameel Butt and another
Mr. Justice Syed Mansoor Ali Shah
23-05-2023

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-O.XVI R. 1 & O.XVIII R. 2--Suit for possession through pre-emption--Application for producing of additional evidence--

 PLJ 2023 Lahore (Note) 57
[Multan Bench, Multan]
Present: Ali Akbar Qureshi, J.
Dr. MUHAMMAD USMAN MUBARIK--Petitioner
versus
ADDITIONAL DISTRICT JUDGE etc.--Respondents
W.P. No. 15274 of 2014, decided on 5.3.2015.

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

----O.XVI R. 1 & O.XVIII R. 2--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Suit for possession through pre-emption--Application for producing of additional evidence--Names of official witnesses were not mentioned in list of witnesses--Rejection of application and revision petition--No bar of jurisdiction--Challenge to--Petitioner can summon official witnesses if not included in list of witnesses, through Court--Petitioner be allowed to summon only official witnesses obviously through Court and there is no bar of jurisdiction of trial Court to summon official witnesses through Court for real adjudication of matter--Petition allowed.  [Para 5] A & B

1995 CLC 327 and 1999 CLC 1142 ref.

Mr. Muhammad Bilal Masud, Advocate for Petitioner.

Malik Zafar Mehboob Langrial, Advocate for Respondent
No. 3.

Date of hearing: 5.3.2015.

Order

This constitutional petition is directed against the orders dated 31.10.2014 and 24.09.2014, passed by the learned Courts below, whereby the application filed by the petitioner for summoning the witnesses was dismissed.

2. As per the record, a result was filed by the petitioner for possession through pre-emption against the Respondent No. 3, wherein both the parties completed their affirmative oral as well as documentary evidence and the learned trial Court fixed the case for the rebuttal evidence of the petitioner/plaintiff. The petitioner, at this stage, filed an application for summoning the clerk of the post-office and postman. The application was opposed by the Respondent No. 3 and the learned trial Court, after hearing the arguments of the parties, rejected .the application on 24.09.2014. Against which, petitioner filed revision petition before the learned District Judge, Muzaffargarh which was dismissed by the learned Additional District Judge, Muzaffargarh.

3. The record disclose, that the petitioner filed an application on two grounds; that the petitioner may be allowed to summon the official witnesses in rebuttal or as an Additional evidence. The learned Courts below and particularly learned revisional Court dismissed the revision, treating the application filed by the petitioner for adducing the additional evidence.

4. Although the petitioner could not mention the names of the witnesses, sought to be summoned, in the list of witnesses but as evident from the record, the petitioner is seeking the permission to summon the official witnesses. The provisions of Order 16 Rule 1 and Order 18 Rule 2, CPC are fully attracted and applicable in this case.

5. According to aforementioned provisions of law, the petitioner can summon the official witnesses if not included in the list of witnesses, through the Court. Even otherwise, keeping in view the facts of the case, it is necessary that for the fair and just decision of the case, the petitioner be allowed to summon only the official witnesses obviously through the Court and there is no bar of jurisdiction of the learned trial Court to summon the official witnesses through the Court for the real adjudication of the matter. Reliance is placed on Mst. Shanaz Begum and 4 others v. Ashiq Hussain Bhatti and 2 others (1995 CLC 327) and Muhammad Nawaz and another v. Additional District Judge, Sargodha and 11 others (1999 CLC 1142).

6. Learned counsel for the Respondent No. 3 has opposed the arguments advanced by learned counsel for the petitioner on the ground, that the petitioner cannot be allowed to fill in the lacunas at this stage, therefore, the writ petition be dismissed.

7. I am afraid, that the arguments advanced by the learned counsel for the respondent have any force in the presence of the afore-referred provisions of law.

8. Resultantly, this petition is allowed. The orders passed by the learned Courts below are set aside and the petitioner is allowed to summon only official witnesses through the Court. No order as to cost.

(Y.A.)  Petition Allowed

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--S. 12--Suit for specific performance--Dismissed--Appeal--Partially allowed--Sale agreement--Inconsistency between findings of trial and appellate Courts--No evidence regarding payment of remaining sale consideration--Entitlement for recovery-

 PLJ 2023 Lahore (Note) 56
Present: Shahid Bilal Hassan, J.
Haji MUHAMMAD AKRAM (deceased) through legal heirs--Appellants/Plaintiffs
versus
YASMEEN ANWAR and others—Respondents/Defendants
R.S.A. No. 106 of 2014, decided on 27.9.2022.

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

----S. 12--Suit for specific performance--Dismissed--Appeal--Partially allowed--Sale agreement--Inconsistency between findings of trial and appellate Courts--No evidence regarding payment of remaining sale consideration--Entitlement for recovery--Challenge to--Appellant has not showed his readiness and willingness as well as bona fide to perform his part of agreement by depositing balance amount with Court at time of institution of suit or even during pendency of suit--It is a settled principle by now that in case of inconsistency between findings of trial Court and Appellate Court, findings of latter must be given preference in absence of any cogent reason to contrary--Appellate Court has rightly exercised vested jurisdiction and has not committed any illegality and irregularity while passing impugned judgment and decree--Appeal dismissed.                                                       

                                                                       [Para 4, 5 & 6] B, C & D

2015 SCMR 1, PLD 1969 SC 617 and 2013 SCMR 1300 ref.

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

----Art. 17(2)(a)--Attestation of document--When two persons enter into any agreement pertaining to financial or future obligations, instrument should be attested by two men or one man and two women, so that one may remind the other.                                                                               [Para 4] A

Mr. Hamid Iftikhar Pannu, Advocate for Appellants.

Mian Tariq Hussain, Advocate for Respondents.

Date of hearing: 27.9.2022.

Order

Through this single order, the captioned appeal and connected C.R. No. 1210 of 2017, wherein one and the same judgment and decree passed by the learned appellate Court has been called into question, are being disposed of.

2. Nub of the litigation coming to this stage is that the appellant instituted a suit for specific performance of agreement to sell alongwith permanent injunction against the present respondents. The respondents contested the suit by filing written statement. Out of divergent pleadings of the parties, the learned trial Court framed issues and evidence of the parties, in pro and contra, was recorded; The learned trial Court, on conclusion of trial, dismissed the suit vide impugned judgment and decree dated 20.06.2011. The appellant being aggrieved of the said judgment and decree preferred an appeal and the learned appellate Court vide impugned judgment and decree dated 03.10.2013 partly allowed the appeal and while setting aside the judgment and decree passed by learned trial Court, decreed the suit in favour of the appellant-plaintiff to the extent of Rs. 260,000/-; hence, the instant appeal as well as connected C.R.No. 1210of2017.

3. Heard.

4. Article 17(2)(a) of the Qanun-e-Shahadat Order, 1984 provides that in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; meaning thereby when two persons enter into any agreement pertaining to financial or future obligations, the instrument should be attested by two men or one man and two women, so that one may remind the other.

Article 79 of the Qanun-e-Shahadat Order, 1984 enumerates the procedure of proof of execution of document required by law to be attested; for ready reference the said provision of law is reproduced here:

‘If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence.’

Now, when the present case is considered, it appears that the appellant has produced the marginal witnesses of the agreement to sell Ex. P1 and receipt Ex.P2, so as to prove their valid, execution. All the P.Ws. produced by the appellant have corroborated and supported the stance of the appellant with regards to agreement to sell and receipt of
Rs. 260,000/-whereby no evidence has been led by the appellant germane to payment of remaining sale consideration Rs. 1,005,000/-. As against this, the respondents have not pleaded the elements of fraud and have not produced any evidence in support of their stance rather D.W. 1, the solitary witness, deposed that she was not accompanying her husband at the time of execution of alleged agreement to sell. In this view of the matter, the learned appellate Court after evaluating evidence on record in a minute manner has reached to a just conclusion that the appellant is entitled to recover Rs. 260,000/-, paid by him, because the appellant has not showed his readiness and willingness as well as bona fide to perform his part of agreement by depositing the balance amount with the Court at the time of institution of the suit or even during pendency of the suit.

5. Apart from the above, it is a settled principle by now that in case of inconsistency between the findings of the learned trial Court and the learned Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary. Reliance is placed on Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 1), -Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617) and Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs. and others (2013 SCMR 1300).

6. In view of the above, the learned appellate Court has rightly exercised vested jurisdiction and has not committed any illegality and irregularity while passing the impugned judgment and decree, warranting interference by this Court at this stage. Resultantly, while placing reliance on the judgments supra, the appeal in hand as well as connected civil revision bearing No. 1210 of 2012 having no force and substance stand dismissed. No order as to the costs.

(Y.A.)  Appeal dismissed

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-Arts. 9, 14, 23 & 25--Right of pension--Right to life--Pension becomes property of retiring employee of civil servant as a matter of right upon completion of his service, which is a regular source of livelihood thus is protected by right to life and rights enshrined in and guaranteed by Articles 9, 14, 23 and 24 of Constitution.

 PLJ 2023 Lahore (Note) 55
[Multan Bench, Multan]
Present: Muhammad Raza Qureshi, J.
MANZOOR HUSSAIN--Petitioner
versus
GOVERNMENT OF THE PUNJAB, through Chief Secretary etc.--Respondents
W.P. No. 19587 of 2021, heard on 30.12.2021.

Punjab Civil Servants Pension Rules, 1963--

----R. 1.8(a) (b)--Punjab Employees Efficiency, Discipline and Accountability Act, (XII of 2006), Ss. 1(4)(iii) & 21--Retirement from service--Initiating of departmental proceedings--Pendency of inquiry--Withholding of pensionary benefits--Question of whether upon non-conclusion of departmental proceedings after laps of 4 years, 20% pensionary benefits of petitioner can be withheld or not--Fundamental right--Non-applicability of PEEDA Act--Public policy--Delay in disbursement or finalization of pensionary benefits of Government servant, widows or orphan children have been held liable for contempt of order passed by august Supreme Court of Pakistan--Provisions of PEEDA Act will only remain applicable to those employees against whom departmental proceedings or other proceedings have been initiated during service--Departmental proceedings shall not be instituted after more than a year from date of retirement of Government £ pensioner--Delay in conclusion of proceedings cannot be attributed to Petitioner, withholding of 20% pensionary benefits are declared as unlawful, illegal and beyond purview of law--Petition allowed. [Para 9, 14, 16 & 18] A, C, E & F

PLD 2007 SC 35, PLJ 2021 SC 175, PLD 1973 SC 514, AIR 1983 SC 130 and 2021 SCMR 702 ref.

Constitution of Pakistan, 1973--

----Arts. 9, 14, 23 & 25--Right of pension--Right to life--Pension becomes property of retiring employee of civil servant as a matter of right upon completion of his service, which is a regular source of livelihood thus is protected by right to life and rights enshrined in and guaranteed by Articles 9, 14, 23 and 24 of Constitution.          

                                                                                           [Para 11] B

Punjab Civil Servants Pension Rules, 1963--

----R. 1.8(a)--Withholding of pension--Government may withhold or withdraw a pension if pensioner is convicted in a serious crime or has been found guilty of grave misconduct during or after completion of service.  [Para 16] D

Haji Muhammad Tariq Aziz Khokhar, Advocate for Petitioner.

Mian Shahid Riaz, Assistant Advocate General with Mr. Ibrar Ahmad, Law Officer, Specialized Healthcare and Medical Education Department for Respondents.

Date of hearing: 30.12.2021.

Judgment

This is a Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, wherein the Petitioner has challenged withholding of 20% pensionary benefits by the Respondents on account of pendency of inquiry in departmental proceedings initiated by the Department against him and not concluded since 23.06.2018.

2. Learned counsel for the Petitioner submits that the Petitioner joined services with Water Management Division, Agriculture Department, Government of the Punjab on 31.08.1982. Subsequently, upon clearing his exams through Punjab Public Service Commission the Petitioner was appointed on 10.06.1992 as Accounts Officer (BS-16) in Healthcare Department of the Government of the Punjab and Petitioner retired from his service on 19.05.2017, however, the Respondents on an illegal pretext withheld the retirement Notification of the Petitioner along with other emoluments on a misconceived premise that departmental inquiry is pending against the Petitioner. The said proceedings remained subject matter of Writ Petition No. 15366 of 2021, which was disposed of by this Court pursuant to Order dated 09.12.2021 having borne fruit as department having realized the mistake issued retirement Notification on 26.10.2021 and released the leave encashment of 365 days on 08.12.2021 along with 80% pensionary benefits to the Petitioner. However, 20% pensionary benefits were withheld by the department on account of pending departmental proceedings against the Petitioner.

3. Learned counsel for the Petitioner submits that Petitioner who has served a department throughout his life the pensionary benefits are one of his fundamental rights as those are directly linked with his right to livelihood and right to dignity as at the end of the career every civil servant has right to live with the peace of mind knowing well that he does not have to work any more. The withholding of 20% pensionary benefits is not only illegal and misconceived but are also beyond the applicable provisions of law, therefore, the impugned actions of withholding 20% pensionary benefits suffer from malaflde in law.

4. Learned counsel for the Petitioner has also apprised this Court that initially FIR bearing No. 49/2016 dated 27.12.2016 was lodged against the Petitioner and upon recommendation of Anti- Corruption Establishment the said FIR was dropped and Departmental proceedings were recommended against the Petitioner. The Petitioner on 15.01.2017 was suspended from his service whereas on 19.05.2017 the departmental inquiry was initiated against the Petitioner i.e. almost 02 years before his date of retirement, which was due on 12.06.2019. According to learned counsel for the Petitioner initiation of inquiry before the date of suspension and non closure of that inquiry even after the lapse of more than 02 years is not only violative of Section 21 of PEEDA Act, 2006 but also betrays the mandate contained in Rule 1.8 of the Punjab Civil Servants Pension Rules, 1963. Learned counsel for the Petitioner has also placed reliance on Rule 54-A of the fundamental rules to demonstrate the proceedings from legal perspective actually stand abated now.

5. Notices were issued through Order dated 16.12.2021 to the Respondents and in response thereof reply and parawise comments have been filed. Learned Assistant Advocate General has ably assisted this Court by referring to various proceedings and submits that the charge against the Petitioner was on account of his negligence and in this regard final recommendation of the competent authority is awaited. Learned counsel by referring the bona fide of the Department submits that retirement Notification, has already been issued and to protect rights of the Petitioner’s leave encashment of 365 days has already been allowed and likewise, Notification with respect to release of 80% pensionary benefits is also issued. However, in terms of proviso attached to Rule 1.8 of the Punjab Civil Servants Pension Rules, 1963 the Department is well within its right to withhold the 20% pension as such an exercise would assist in protecting the rights and interests of the department, if some recoveries are to be made from the Petitioner. Worthy Assistant Advocate General Punjab has also referred to the sensitivity involved in the matter as the matter relates to the embezzlement of Government money and submits that Writ Petition merits dismissal as the 20% pensionary benefits can only be released to the Petitioner upon conclusion of the departmental proceedings against him.

6. I have heard arguments of learned counsel for the Petitioner as well as learned Assistant Advocate General, Punjab and have minutely considered the facts as well as record in the matter.

7. In essential facts apart as the same are admitted in the facts and circumstances of the case, the controversy before this Court is limited to determining the question of law whether upon non conclusion of departmental proceedings after lapse of 4 years, the 20% pensionary benefits of the Petitioner can be withheld or not.

8. To protect and safeguard the rights and interests of the Pensioners the West Pakistan Civil Servants Pension Rules, 1963, Chapter V, Rule 5.1 commands as under:

5.1. All authorities dealing with applications for pensions under these rules should bear in mind that delay in the payment of pensions involves peculiar hardship. It is essential to ensure, therefore, that a Government servant begins to receive pension on the date on which it becomes due.

5.2 The responsibility for initiation and completion of pension papers is that of the Head of Department, Attached Department concerned in the case of Gazetted Officers and of the Head of Office concerned in the case of non-Gazetted Government servants. The action should be initiated one year before a Government servant is due to retire so that pension may be sanctioned a month before the date of his retirement. For this purpose every Government servant should be asked to submit his pension application in Form 3 (Pen) 6 months in advance of the date of his retirement.”

9. A right to pension and benefits attached thereto is an inviolable fundamental right of every retired civil servant guaranteed by the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the “Constitution”) as it is directly linked with rights to livelihood, property, dignity and right to life. Likewise, the fundamental right to property ensured security of pecuniary and pensionary benefits attached to the service. A delay in the disbursement or flnalization of the pensionary benefits of the Government servant, widows or orphan children have been held liable for contempt of the order passed by the august Supreme Court of Pakistan and as per dictum laid down in “Haji Muhammad Ismail Advocate,” (PLD 2007 Supreme Court 35) wherein officer causing delay has been directed to be dealt with strictly in accordance with law.

10. Whether the Pension is a state bounty, which could be awarded as a favour to any individual outside the scope of applicable provisions. This approach is not only incorrect but also inhumane as the pension is a right which the government servants and employees in different positions and different capacities earn in terms of the relevant statutory provisions applicable to their case and mostly depending upon their length of service. It is not a State bounty. The Hon’ble Supreme Court of Pakistan in the case of “The Government of N.W.F.P. through the Secretary to the Government of N.W.F.P. Communications and Works Department, Peshawar versus Mohammad Said Khan and another (PLD 1973 SC 514) held:

“It must now be taken as well settled that a person who enters Government service has also something to look forward to after his retirement, to what are called retirement benefits, grant of pension being the most valuable of such benefits. It is equally well-settled that pension like salary of a civil servant is no longer a bounty but is a right acquired after putting in satisfactory service for the prescribed minimum period. A fortiori, it cannot be reduced or refused arbitrarily except to the extent and in the manner provided in the relevant rules.”

The same view has been taken by the Supreme Court of India in “D.S. Nakara and others versus Union of India” (AIR 1983 Supreme Court 130).

“Summing-up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on saving. One such saving in kind is when you give your best in the heyday of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or of a surrender of rights or emoluments to one retired from service. Thus the pension payable to a Government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation for service rendered. In one sentence one can say that the most practical raison d’etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon.”

11. Thus the pension becomes the property of retiring employee of civil/public servant as a matter of right upon the completion of his/her service, which is a regular source of livelihood thus is protected by the right to life and rights enshrined in and guaranteed by the Articles 9, 14, 23 and 24 of the Constitution.

12. These rights declared by the Hon’ble Supreme Court of Pakistan are not only available to the retiring employee but are extended beyond his life for protection and safeguard of his survivable interests and equally available to his/her legal heirs. Reliance in this regard is placed on “Regional Operation Chief, National Bank of Pakistan, Human Resource Department, Regional Office, Sargodha and others versus Mst. Nusrat Perveen and others” (2021 SCMR 702) wherein Hon’ble Supreme Court held as under.

“Under our constitutional scheme, abatement of proceedings on the death of a civil servant, in a case, where the cause of action carries a survivable interest will unduly deprive the decedent civil servant, as well as, his legal heirs of their constitutional rights to livelihood, property, dignity and fair trial. Fundamental right to life including right to livelihood ensures the security of the terms and conditions of service; fundamental right to property ensures security of the pecuniary and pensionary benefits attached to the service; fundamental right to dignity ensures that the reputation of the civil servant is not sullied or discredited through wrongful dismissal, termination or reversion etc; and fundamental right to fair trial and due process, inter alia, safeguards and protects the survivable interest and ensures continuity of the legal proceedings even after the death of the civil servant, equipping the legal heirs to purse the claim. Fundamental rights under the Constitution do not only protect and safeguard a citizen but extend beyond his life and protect and safeguard his survivable interests by being equally available to his legal heirs. It is reiterated that other than pecuniary and pensionary benefits that inure to the benefit of the legal heirs, the right to restore one’s reputation is also a survivable right and flows down to the legal heirs to pursue and take to its logical conclusion. Any slur on the reputation of a civil servant impinges on his human dignity and weighs equally on the dignity and honour of his family.

13. Now to identify the scheme of law in the facts and circumstances of the case, it is imperative to examine the provision of applicable law and analyze the status of the Petitioner being a retired employee. The first applicable law is the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (hereinafter referred to as the “PEEDA Act”) which is an Act to provide for proceedings against the employees in government and corporation service in relation to their efficiency, discipline and accountability and according to its Section 1(4) it applies to employees in government service; employees in corporation service; and retired employees of government and corporation service provided that in case of retired employees proceedings under PEEDA Act are initiated against them during their service or within one year of their retirement. For convenience Section 21 of the PEEDA Act is reproduced hereunder:

“21. Proceedings under this Act.--Subject to this Act, all proceedings initiated against the employees having retired or in service, shall be governed by the provisions of this Act and the rules made thereunder:

          Provided that in case of retired employee, the proceedings so initiated against him shall be finalized not later than two years of his retirement.

(2) The competent authority may, by an order in writing, impose one or more penalties specified in clause (c) of Section 4, if the charge or charges are proved against the retired employee.”

14. The mandate of law contained in the PEEDA Act demonstrates that against the retired employees any proceedings under the PEEDA Act can only be initiated during their service or within one year of their retirement and proceedings so initiated are bound to conclude and finalize not later than two years of retirement of the employees. The applicable provisions of Sections l(4)(iii) as well as proviso to Section 21 of PEEDA Act from their language reflect that these are mandatory in their nature, ambit and scope. Obviously the object of these provisions is to enhance good governance in service matters. The scheme of the PEEDA Act seems to support the public policy that an employee who has served the government all his life must enjoy his retirement and must be spared from undergoing any drawn departmental proceedings during his retired life. The provisions of PEEDA Act will only remain applicable to those employees against whom departmental proceedings or other proceedings have been initiated during the service. Reliance in this regard is placed upon case titled “Province of Punjab through Conservator of Forest, Faisalabad and others versus Javed Iqbal” (PLJ 2021 SC 175) and “Syed Raza mehdi Baqari versus Province of Punjab through Secretary, LG & CD Department and 2 others” (2016 PLC (C.S.) 1046).

15. The other law which may attract in the facts and circumstances of the case is Punjab Civil Servants Pension Rules, 1963 (hereinafter referred to as the “Pension Rules”). Pursuant to Rules 1.8, 1.9 and 1.10 the position of law emerges as under:

“1.8. (a) Good conduct is an implied condition of every kind of pension. Government may withhold or withdraw a pension or any part of it if the pensioner be convicted of serious crime or be found to have been guilty of grave misconduct either during or after the completion of his service:

          Provided that before any order to this effect is issued, 10 [the pension Sanctioning Authority shall give full opportunity to the pensioner to vindicate his position.]

(b) Government reserves to themselves the right of recovery from the pension of Government pensioner on account of losses found in judicial or departmental proceedings to have been caused to Government by the negligence, or fraud of such Government pensioner during his service:

          Provided that such departmental proceedings shall not be instituted after more than a year from the date of retirement of the Government pensioner.

10[Note: If the departmental proceedings are not completed within one year after retirement of the government servant, he may be allowed to draw upto 80% or less of full pension so as to ensure that government loss in full is recovered from the balance. In the case of judicial proceedings, judgment of the Court may be awaited. If the proceedings are delayed beyond one year after retirement, reduced pension may be allowed as in the case of pensioners facing departmental proceedings.]

(c) In case the amount of pension granted to a Government servant be afterwards found to be in excess of that to which he is entitled under the rules, he shall be called upon to refund such excess.

1.9. No pension may be granted to a Government servant dismissed or removed or misconduct, corruption, subversive activities or in efficiency, but, if he deserves special consideration he may be granted a compassionate allowance not exceeding 2/3rd of the pension which would have been admissible to him had he retired on invalid pension.

1.10. Any of these rules may for reasons to be recorded in writing be relaxed in individual cases by a competent authority if it is satisfied that a strict application of the rules will cause hardship to the individual.”

16. It is evident from Rule 1.8(a) that Government may withhold or withdraw a pension if the pensioner is convicted in a serious crime or has been found guilty of grave misconduct during or after the completion of service. The proviso to sub rule (a) envisages that before an order to this effect is passed, the Pension Sanctioning Authority shall give full opportunity to the Petitioner to vindicate his position. (Pursuant to sub-rule (b) the scheme of Pension Rules is aimed towards closure of departmental proceedings after retirement of an employee as for attraction of sub-rule (b) the fundamental condition is that the departmental proceedings shall not be instituted after more than a year from the date of retirement of the Government pensioner. For safeguarding the public policy it is held that provisions of Rule 1.8 of Pension Rules are mandatory.

17. A plain reading of PEED A Act, Pension Rules and other laws such as Fundamental Rights, Civil Service Regulations and Civil Establishment Code clearly reflect that all these laws as a matter of public policy are aimed towards the good governance and streamlining the closure of proceedings against a retired employee with a legislative intent to curb the situations of retired employees undergoing departmental proceedings during his retired life.

18. In view of the applicable provisions of law and rules since the delay in conclusion of proceedings cannot be attributed to the Petitioner, therefore, the withholding of 20% pensionary benefits are declared as unlawful, illegal and beyond the purview of law. The Respondents are directed to release remaining 20% pension to the Petitioner forthwith.

19. Consequently, this Writ Petition is allowed.

(Y.A.)  Petition allowed

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Reversed to decree the suit of the Petitioners seeking rectification of the Sale Deed; suit was within the period of limitation, the execution of the Sale Deed was proved in terms of Section 68..........

Concurrent findings of the Courts below were reversed to decree the suit of the Petitioners seeking rectification of the Sale Deed; suit was within the period of limitation, the execution of the Sale Deed was proved in terms of Section 68 of the Evidence Act and the fact of minority of two Respondents was not fatal as their interest was adequately safeguarded especially when they failed to challenge the Sale Deed within three years after ceasing of disability in terms of Sections 6 and 8 read with Article 91 to the First Schedule of the Limitation Act, 1908۔

Civil Revision.1933-12

ABDUR REHMAN ETC VS MANZOOR AHMAD ETC

Mr. Justice Abid Hussain Chattha

17-05-2023

2023 LHC 2786

 

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---Ss. 9 & 22--Suit for recovery--Application for leave to defend--Preliminary issue was framed--Suit was decreed instead of deciding preliminary issue--Duty of Court--Direction to--

 PLJ 2023 Lahore (Note) 53
[Multan Bench Multan]
Present: Shakil Ahmed and Sohail Nasir, JJ.
Syed ASLAM SHAMIM ABBASI--Appellant
versus
NATIONAL BANK OF PAKISTAN--Respondent
R.F.A No. 278 of 2017 and C.M. No. 278 of 2017 decided on 2.2.2022.

Financial Institutions (Recovery of Finances) Act, 2001--

----Ss. 9 & 22--Suit for recovery--Application for leave to defend--Preliminary issue was framed--Suit was decreed instead of deciding preliminary issue--Duty of Court--Direction to--Without ascertaining that any of Parties had desired to adduce evidence on issue or any opportunity was given to them or any of them did not press issue, Court could not decide matter through impugned judgment and decree--It was duty of Court to give specific findings on said issue through an independent and speaking order and to proceed further--Appeal allowed.        [Para 6] A

Malik Zafar Mahboob Langrial Advocate for Applicant.

Mian Khurram Hashmi Advocate for Respondent-bank.

Date of hearing: 2.2.2022.

Order

C.M.No. 3834/2021.

For the reasons mentioned in the application that is supported by an affidavit the same is allowed, RFA is restored to its original number with direction to office to fix main appeal for today by issuing supplementary cause list.

MAIN CASE.

2. Having the dispute with regard to adjustment of certain payments made by Syed Aslam Shamim Abbasi (appellant) he filed a suit for declaration against National Bank of Pakistan (respondent). In that suit application for leave to defend by respondent was allowed on 27.06.2015 and the issues were framed and same is still pending in the Banking Court No. 3 Multan.

3. During the proceedings, respondent Bank also filed a suit for recovery against appellant under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and in that suit appellant also submitted an application for leave to defend the suit. Before the application could be decided the learned Banking Court on the basis of a detailed order dated 27.06.2015 framed a preliminary issue which was as under:-

“Whether the rate of mark-up is variable and is to be revised annually?”

4. The proceedings continued thereafter but surprisingly on 21.11.2015 the learned Banking Court instead of deciding the preliminary issue, held that leave to defend the suit shall be deemed to be allowed. He heard arguments on the same day and then passed the decree in favour respondent which has been impugned through the instant appeal.

5. HEARD.

6.  We have observed that without ascertaining that any of the Parties had desired to adduce evidence on the issue or any opportunity was given to them or any of them did not press the issue, the learned Court could not decide the matter through the impugned judgment and decree. In the given circumstances, it was the duty of the learned Court to give specific findings on the said issue through an independent and speaking order and to proceed further therefore, we find it a fit case for remand hence this appeal is allowed. Impugned judgment and decree are set aside and the case is remanded back to the learned trial Court where parties are directed to appear on 22.02.2022. The learned trial Court is directed to decide the preliminary issue after giving ‘right to the parties to produce the evidence if they desire and then to proceed in the matter strictly in accordance with law.

(Y.A.)  Appeal allowed

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--S. 42--Suit for declaration--Dismissed--Concurrent findings--Application for demarcation of ihata was not produced on record--Allotment of ihata--Mutation of ihata--

 PLJ 2023 Lahore (Note) 52
Present: Shahid Bilal Hassan, J.
MUHAMMAD RAMZAN--Petitioner
versus
PROVINCE OF PUNJAB through DOR, Toba Tek Singh, etc.--Respondents
C.R. No. 3184 of 2011, decided on 27.1.2022.

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

----S. 42--Suit for declaration--Dismissed--Concurrent findings--Application for demarcation of ihata was not produced on record--Allotment of ihata--Mutation of ihata--Petitioner was failed to fulfilled conditions of allotment order--Challenge to--Oral assertion--Pivotal document for disposal of instant case was application allegedly moved by petitioner for demarcation of his portion of ihata, which has not been produced on record and petitioner even did not move any application seeking production of said application from concerned quarters--Oral assertion is not sufficient to prove stance of petitioner--There is nothing on record to prove that petitioner fulfilled conditions of allotment order as nothing as such has been brought on record--Concurrent findings on facts cannot be disturbed when same do not suffer from misreading and non-reading of evidence, howsoever erroneous in exercise of revisional--Petition dismissed.                                                             [Para 3] A, B & C

2017 SCMR 679, 2014 SCMR 1469 & 2014 SCMR 161 ref.

Malik Saleem Iqbal Awan, Advocate for Petitioner.

Mr. Tahrim Iqbal Butt, Assistant Advocate General Punjab.

Mian Tariq Hussain, Advocate for Respondent No. 5.

Respondent No. 4 ex-parte.

Date of hearing: 27.1.2022.

Order

C.M. No. 1-C of 2017

Through this application, the applicant seeks restoration of the captioned revision petition, dismissed for non-prosecution on 18.05.2017. Relying upon the contents of the application supported by an affidavit the same is allowed subject to all just and legal exceptions. Office is directed to fix the revision petition for today.

Main Petition

Tersely, the petitioner instituted a suit for declaration challenging the vires of Mutation No. 39 dated 28.02.1990 regarding allotment of disputed Ihata No. 21 measuring 10 marlas situated in Chak No. 668/9 GB, Tehsil Kamalia, District Toba Tek Singh. The suit was contested by the respondents while submitting written statement. Out of the divergent pleadings of the parties, the learned trial Court framed issues and evidence of the parties was recorded. The learned trial Court vide impugned judgment and decree dated 22.02.2011 dismissed suit of the petitioner, who preferred an appeal but the same was also dismissed vide impugned judgment and decree dated 02.07.2011; hence, the instant revision petition.

2. Heard.

3. Considering the arguments and perusing the record, made available, as well as going through the impugned judgments and decrees, it is observed that the pivotal document for disposal of the instant case was application dated 17.08.1985 allegedly moved by the petitioner for demarcation of his portion of Ihata a, which has not been produced on record and the petitioner even did not move any application seeking production of the said application from the concerned quarters. In this view of the matter, mere oral assertion is not sufficient to prove the stance of the petitioner. Moreover, there is nothing on record to prove that the petitioner fulfilled the conditions of allotment order as nothing as such has been brought on record. In this view of the matter, the learned Courts below have rightly adjudicated upon the matter in hand by appreciating evidence in a minute manner and have reached to a just conclusion No illegality and irregularity is apparent on record warranting interference by this Court in exercise of revisional jurisdiction. As such concurrent findings on facts cannot be disturbed when the same do not suffer from misreading and non-reading of evidence, howsoever erroneous in exercise of revisional jurisdiction; reliance is placed on Muhammad Farid Khan v, Muhammad Ibrahim, etc. (2017 SCMR 679), Mst. Zaitoon Begum vs. Nazar Hussain and another (2014 SCMR 1469) and Cantonment Board through Executive Officer, Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161).

4. For the foregoing reasons and while placing reliance on the judgments supra the civil revision in hand being devoid of any force and substance stands dismissed.

(Y.A.)  Petition dismissed

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1. Suit filed by an unauthorized person - curable. 2. Scope of Rules 1 of Orders III, IV, VIII and XXIX, CPC............

 PLD 2023 SC 174

1. Suit filed by an unauthorized person - curable.

2. Scope of Rules 1 of Orders III, IV, VIII and XXIX, CPC.

3. Difference between signing/verifying a plaint and presenting/instituting a suit.

4. Non-applicability of provisions of CPC relating to signing and verification of pleadings to memorandums of appeal and revision petitions.

5. Curing of any defect in the authority of a person to sign and verify a pleading, or a memorandum of appeal and revision petition, and to present the same to the court.

Scope of Rules 1 of Orders III, IV, VIII and XXIX, CPC.

.......................

A bare reading of Rule 1 of Order III, CPC shows that any appearance, application or act in or to a civil court, required or authorized by law to be made or done by a party in such court, except where otherwise expressly provided by any law for the time being in force, may be made or done in three ways: (i) by the party in person or (ii) by his recognized agent or (iii) by his pleader. The term “act” used in this Rule is of quite a comprehensive meaning, which includes all the necessary acts that are to be done in the course of the litigation so that the case may be properly placed before and proceeded with by the court, such as presenting the pleadings, making the miscellaneous applications, paying the process-fee, etc. Although the act of signing and verifying the pleadings (plaint and written statement) comes within the scope of the term “act” as used in Rule 1 of Order III, but it cannot be dealt with under the said Rule as Rules 14 and 15 of Order VI, CPC is the law that contains provisions which expressly provides for otherwise.

Under Rule 14 of Order VI, every pleading is to be signed by the party and his pleader (if any); however, where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf. While as per Rule 15 of Order VI, every pleading is to be verified on oath or solemn affirmation at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. The acts of signing and verifying pleadings (plaint and written statement), therefore, cannot be done by a pleader in terms of Rule 1 of Order III, CPC. Rule 1 of Order XXIX, which contains special provisions as to signing and verifying pleadings in suits by or against a corporation, is like a proviso to Rules 14 and 15 of Order VI, CPC. It authorizes, in addition to the persons specified in Rules 14 and 15 of Order VI, the secretary or any director or other principal officer of the corporation who is able to depose to the facts of the case, to sign and verify any pleading on behalf of the corporation.

Difference between signing/verifying a plaint and presenting/instituting a suit.

......................

The notable point is that neither Rules 14 and 15 of Order VI nor Rule 1 of Order XXIX says anything about presenting the pleadings to the court after signing and verifying the same. Rather, these are Rule 1 of Order IV and Rule 1 of Order VIII which deal with the subject of presenting a plaint or a written statement to the court. Different rules on these two matters make it obvious that there is a difference between the signing and verifying a pleading (plaint or written statement) under Rules 14 and 15 of Order VI, or under Rule 1 of Order XXIX, and the presentation of that pleading to the court under Rule 1 of Order IV (plaint) and Rule 1 of Order VIII (written statement), CPC. The act of presenting a plaint to the court under Rule 1 of Order IV is called the institution of the suit, and the act of presenting a written statement under Rule 1 of Order VIII constitutes the defence of the suit. These acts manifest the will of a litigant to pursue his claim or to defend the claim made against him, in a court of law. By presenting the plaint, a plaintiff sets the machinery of the court in motion for deciding upon his claim while the presentation of the written statement expresses the will of the defendant to defend that claim. The act of presentation of a plaint or a written statement can, therefore, be done only by the plaintiff and the defendant in person or by their recognized agents or by their duly appointed pleaders, in terms of Rule 1 of Order III.4 Rules 14 and 15 of Order VI, or Rule 1 of Order XXIX, which relates to signing and verifying the pleadings (plaint and written statement), cannot be referred to for the purpose of establishing the authority of a person to institute, or defend, the suit.

As the authority conferred by Rule 1 of Order XXIX, on the specified officers of the corporation to sign and verify any pleading on behalf of the corporation, does not include the authority to institute or defend the suit in their own names, a corporation (like PESCO in the present case) being a juristic person must sue or be sued in its own name. Therefore, the name of the corporation, not the name or designation of any of its officers or employees, is to be mentioned as a plaintiff or a defendant. The phrase “service of summons/notice through its principal officer, so and so” may be added with the name of the corporation, for service of summons/notice as per Rule 2 of Order XXIX, CPC.

Non-applicability of provisions of CPC relating to signing and verification of pleadings to memorandums of appeal and revision petitions.

....................

A memorandum of appeal can be signed, as per Rule 1 of Order XLI, by the appellant or his pleader; so can a revision petition be signed by the petitioner or his pleader as the revisional jurisdiction is a part of the general appellate jurisdiction of a superior court and the provisions of the CPC in regard to appeals are applicable mutatis mutandis to revision petitions.

A memorandum of appeal or a revision petition can, therefore, be signed by a duly appointed pleader as per Rule 1 of Order XLI, and presented to the appellate or revisional court by him on behalf of the appellant or petitioner as per Rule 1 of Order III, CPC. Rules 14 and 15 of Order VI, as well as Rule 1 of Order XXIX, as to signing and verifying the pleadings (plaint and written statement) are, thus, not applicable to the memorandums of appeal and revision petitions.

Curing of any defect in the authority of a person to sign and verify a pleading, or a memorandum of appeal and revision petition, and to present the same to the court.

.......................

Having examined the scope of the above-cited rules of procedure contained in the CPC, we must reiterate the principle, which is by now well settled, that ‘the proper place of procedure in any system of administration of justice is to help and not to thwazart the grant to the people of their rights…Any system, which by giving effect to the form and not to the substance defeats substantive rights, is defective to that extent.’ The courts, thus, always lean in favour of adjudicating the matters on merits rather than stifling the proceedings on procedural formalities. The rules of procedure are meant to facilitate the court proceedings for enforcing the rights of litigants, not to trap them in procedural technicalities for frustrating their rights. They are the tools to advance the cause of justice and cannot be used to cause the miscarriage of justice. The ultimate object of securing the ends of justice, therefore, outweighs the insistence on strict adherence to such rules. The same is the purpose of the rules of procedure discussed above. Any defect or omission in signing and verifying, or presenting, a pleading (plaint or written statement) or a memorandum of appeal or revision petition does not affect the merits of the case or the jurisdiction of the court and is therefore taken to be such an irregularity which can be cured at any stage of the proceedings.

Likewise, any defect in the authority of a person to sign and verify a pleading filed in a suit by or against a corporation, or to institute or defend such a suit by presenting that pleading to the court, or in signing or filing of a memorandum of appeal or revision petition by a corporation, can also be cured at any stage of the proceedings.

It is for this reason that Section 99, CPC provides inter alia that no decree is to be reversed nor is any case to be remanded in appeal on account of any error, defect or irregularity in any proceedings in the suit that has not affected the merits of the case or the jurisdiction of the court. Similarly, it is not every irregularity in the exercise of its jurisdiction by a lower court that calls for interference in revisional jurisdiction under Section 115(1)(c), CPC but only the material irregularity, and the material irregularity is that which affects the merits of the case or the jurisdiction of the court.

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