Masud Abid

Syed MUHAMMD QASIM and others---Appellants Versus SHAMOON and others---
Respondents Writ Petition No. 37252 of 2015, decided on 11th October, 2021.
 Citation: 2023 YLR 1940

 Result: Petition Dismissed
 Court: Lahore High Court
 Date of Decision: 11.10.2021.
 Judge(s): Masud Abid Naqvi, J
 Case Number: Writ Petition No. 37252 of 2015
 JUDGMENT
 Case Summary
Background of the Case:
In the case of Masud Abid Naqvi, J., the respondents/plaintiffs initiated
a suit for the recovery of possession under section 9 of the Specific Relief
Act, 1877. The petitioners/defendants contested the suit, leading to the
dismissal of the case by the trial court on the grounds of non-
maintainability. Subsequently, the respondents filed a revision petition
challenging this decision, resulting in the revisional court setting aside
the trial court's order. Dissatisfied with this outcome, the
petitioners/defendants brought forth a writ petition questioning the
validity of the revisional court's judgment.
Arguments and Counterarguments:
During the proceedings, the learned counsel for the
petitioners/defendants contended, relying on judgments from superior
courts, that the respondents, as sharers of joint khata, were limited to
filing a suit for partition. Conversely, the counsel for
respondents/plaintiffs argued that the plaintiffs were in possession of
the land and had been dispossessed by the defendants. Therefore, they
asserted two available remedies: filing a suit for partition or a suit under
section 9 of the Specific Relief Act, 1877.
Legal References and Prima Facie Analysis:
The court examined the record, both attached to the plaint and the civil
revision, and found prima facie support for the plaintiffs' stance. The
court highlighted that the plaintiffs had the right to file a suit for the
recovery of possession under section 9 of the Specific Relief Act. It
referenced legal precedents such as Contractor Haji Muhanumul Alam
(deceased) through Legal heirs v. Shaukat Sultan and others (2009
SCMR 688) and Mst. Resham Bibi and others v. Lal Din and others
(1999 SCMR 2325) to reinforce the argument that the trial court could
adjudicate the dispute by allowing the presentation of both oral and
documentary evidence.
Dismissal of Writ Petition:
The learned counsel for the petitioners/defendants failed to identify any
legal infirmity in the revisional court's judgment. Consequently, the
court dismissed the writ petition, affirming the validity of the revisional
court's decision.
Legal citation and context:
 Contractor Haji Muhanumul Alam (deceased) through Legal

heirs v. Shaukat Sultan and others (2009 SCMR 688): This legal
reference supports the argument that joint khata sharers have the
right to file a suit for partition.
 Mst. Resham Bibi and others v. Lal Din and others (1999
SCMR 2325): This legal precedent reinforces the plaintiffs' ability
to file a suit for recovery of possession under section 9 of the
Specific Relief Act, 1877.
ORDER
MASUD ABID NAQVI, J.---Brief facts necessary for the
adjudication of this lis are that respondents/plaintiffs filed suit for
recovery of possession under section 9 of the Specific Relief Act, 1877.
The petitioners/defendants contested the suit by filing written statement
and thereafter moved an application under Order VII, Rule 11, C.P.C.
and the parties were ordered to advance arguments on the
maintainability of the suit and vide order dated 05.04.2011, learned trial
court dismissed the suit being not maintainable. Feeling aggrieved, the
respondents/ plaintiffs filed a revision petition by challenging the said
order and the learned revisional court accepted the revision petition and
set-aside the order dated 05.04.2011 of the learned trial court vide
judgment dated 14.09.2015. Being dissatisfied, the
petitioners/defendants have filed the instant writ petition and
challenged the validity of the judgment passed by the learned revisional
court.
2. I have heard the arguments of learned counsel for the parties and
perused the available record as well as have minutely gone through the
impugned judgment.
3. While relying on judgments reported by the honourable superior
courts, learned counsel for petitioners/ defendants states that plaintiffs/
respondents/ sharers of joint khata can only file suit for partition against
the petitioners/co-sharers, hence, respondents/ plaintiffs' suit was liable
to be dismissed but the learned revisional court has not properly
appreciated the questions of facts and law. While learned counsel for
respondents/plaintiffs states that plaintiffs/ respondents/co-sharers
were in possession of land and they were dispossessed by
the petitioners/defendants, hence, respondents/ plaintiffs had two
remedies to avail i.e. they can file suit for partition or suit under section
9 of the Specific Relief Act, 1877.
The record appended with the plaint as well as this civil revision,
prima facie, supports stance of the plaintiffs/ respondents. The
plaintiffs/ respondents can file suit for recovery of possession under
section 9 of the Specific Relief Act and the learned trial court can
adjudicate the dispute between the parties by allowing them to produce
oral as well as documentary evidence. Reliance is placed on the
judgments reported as Contractor Haji Muhanumul Alam (deceased)
through Legal heirs v. Shaukat Sultan and others (2009 SCMR 688) and
Mst. Resham Bibi and others v. Lal Din and others (1999 SCMR 2325).
4. Learned counsel for petitioners/ defendants has failed to point out
ant legal infirmity in the impugned judgment passed by the learned
revisional court, therefore, this writ petition is dismissed.
IMRAN SHAHZAD--Petitioner versus BOARD OF INTERMEDIATE & SECONDARY EDUCATION
GUJRANWALA through Chairman and 5 others--Respondents
 Citation: 2023 PLJ Law Note Civil 141

 Result: Revision Dismissed
 Judge(s): MASUD ABID NAQVI, J.
 Case Number: C.R. No. 2069 of 2012
 JUDGMENT
 The petitioner filed a suit for declaration with a mandatory injunction,
asserting that he appeared in an intermediate examination under a specific
roll number, but faced allegations of impersonation. This led to criminal
and disciplinary proceedings against him, resulting in disqualification for
six examinations and the cancellation of his secondary school certificate.
The trial court decreed the suit, but the appellate court reversed this
decision. The petitioner challenged the appellate court's judgment in the
instant civil revision.
Key Points
The petitioner was accused of impersonation in an examination, leading
to criminal and disciplinary actions against him. Despite being acquitted
of criminal charges, he did not appear before the disciplinary committee,
resulting in an ex-parte decision disqualifying him from examinations and
canceling his secondary school certificate.
The petitioner contended that simultaneous criminal and departmental
proceedings were impermissible, but the court deemed this argument
misconceived, stating that both types of proceedings could occur
concurrently.
The appellate court's judgment was upheld, emphasizing that no
misreading or non-reading of evidence on record was identified. The court
cited the principle that in the case of inconsistency between trial and
appellate courts, the latter should be given preference in the absence of
cogent reasons otherwise, citing legal precedents such as Madan Gopal v.
Maran Bipari (PLD 1969 SC 617) and Mohammad Nawaz v. Haji
Mohammad Baran Khan (2013 SCMR 1300).
Judicial Decision
The civil revision was dismissed based on the lack of identified legal or
factual flaws in the appellate court's judgment and decree.
Legal References:
Madan Gopal and 4 others v. Maran Bipari and 3 others (PLD 1969 SC
617)
Mohammad Nawaz through LRS v. Haji Mohammad Baran Khan
through LRS and others (2013 SCMR 1300)
Amjad Ikram v. Mst. Asiya Kausar (2015 SCMR 1)
Order
Brief facts leading to the filing of instant civil revision are that
petitioner/plaintiff filed a suit for declaration with mandatory injunction
with the assertions that he appeared in English paper of intermediate
examination conducted by the respondents/defendants on 01.05.1999
under roll No. 80128, however, after the examination he came to know
that FIR No. 333/2009 dated 05.05.1999 under Section 3(1) of the Punjab
Universities and Boards of Intermediate and Secondary Education Act.
1950 as amended vide Ordinance-V of 1999 was registered against him at
Police Station Satellite Town Gujranwala on the allegation that in place
of the petitioner some other person appeared in the examination therefore
he committed impersonation. The respondents/defendants also initiated
disciplinary proceedings against the petitioner and he was disqualified for
six examinations and the result card of secondary school certificate of the
petitioner/plaintiff was also cancelled. Hence, the suit. The suit was
contested by the defendants/respondents and out of divergent pleadings
of the parties, issues were framed by the learned Trial Court and after
recording evidence of the parties, the learned Trial Court vide judgment
dated 31.10.2011 decreed the suit. Feeling aggrieved,
defendants/respondents filed an appeal and learned Additional District
Judge vide judgment & decree dated 24.05.2012 accepted the appeal and
dismissed the suit. Being dissatisfied, the petitioner/plaintiff has filed the
instant civil revision and challenged the validity of the judgment and
decree passed by the learned appellate Court.
impugned judgment and decree.
3. The petitioner/plaintiff was proceeded against on the allegation
that some other person appeared in the English paper of intermediate
examination in place of petitioner/ plaintiff on the basis of fabricated roll
number, therefore petitioner committed impersonation. This fact is very
much clear from Exh.D.2/copy of center slip and Exh.D.3/ examination
center slip which show that photographs and serial number of the form
including attestation of these two documents are different. The
petitioner/plaintiff committed impersonation for which criminal case was
got registered against him under the Ordinance ibid and disciplinary
proceedings were also initiated against him. Although petitioner/plaintiff
was acquitted of the charge but he did not appear before the disciplinary
committee despite issuance of notice, consequently, ex-parte proceedings
were conducted against him and disciplinary committee disqualified the
petitioner for six examinations and also recommended for quashing the
secondary school certificate vide order dated 28.8.1999. The petitioner
filed an appeal before the Appeal Committee of BISE Gujranwala,
however the same was dismissed vide order dated 18.12.1999. Thereafter,
on the recommendation of disciplinary committee, the
result quashment committee on 22.12.2000 recommended quashment of
secondary school certificate of the petitioner and the Board in its meeting
held on 22.03.2001 approved the same, hence, secondary school
certificate of the petitioner was also cancelled. The plea raised by the
petitioner that criminal and disciplinary proceedings
cannot proceed simultaneously is misconceived because it is settled law
that criminal proceedings are not barred in presence of departmental
proceedings and that departmental and criminal proceedings can
proceeded simultaneously. The learned appellate Court has properly
appreciated the pleadings and has also discussed in detail statements of
PW’s and DW’s on the basis of documents exhibited by both sides while
dilating upon the controversy and thereafter reached at the conclusion
regarding the controversy. Hence, the findings of learned appellate Court
are maintained/upheld.
4. With respect to interference in the findings of appellate Court
where there is inconsistency between the trial Court and appellate Court,
the Hon’ble Supreme Court of Pakistan in a case reported
as Amjad Ikram vs. Mst. Asiya Kausar (2015 SCMR 1) held that:
“Even otherwise, in case of inconsistency between the learned and the
appellate Court, the latter must be given preference in the absence of any
cogent reason to the contrary, as has been held by this Court
in judgements reported as Madan Gopal and 4 other vs Maran Bipari and
3 others (PLD 1969 SC 617 and Mohammad Nawaz through LRS vs Haji
Mohammad Baran Khan through LRS and others (2013 SCMR 1300)
5. Neither any misreading or non-reading of evidence on record nor
any infirmity, legal or factual, has been pointed out in the impugned
judgment and decree passed by the learned appellate Court, therefore, this
civil revision is dismissed.
MUHAMMAD SHAFI---Petitioner Versus ADDITIONAL DISTRICT JUDGE and others---
Respondents

 Result: Appeal Dismissed
 Date of Decision: 09/10/2018
 Case Number: R.F.A. No. 444 of 2016
 JUDGMENT
 Background
This regular first appeal arises from a suit for recovery of Rs. 13,00,000/-
filed by respondent No.2 against the appellant/defendant. The defendant
filed an application for leave to appear and defend the suit, which was
accepted subject to the condition of submitting a surety bond equal to the
suit amount. Despite several opportunities, the defendant failed to file the
surety bond, leading to the decree of the suit in favor of the respondent.
The appellant has challenged the validity of the judgment and decree
issued by the trial court.
Key Points
1. Challenge to the Impugned Order: The appellant's counsel
contended that the impugned order was against the law and facts,
disregarding the appellant's valuable right to contest the suit. The
argument emphasized that the law favors adjudication on merits
over technicalities. The appellant's counsel further argued that
certain circumstances beyond the appellant's control prevented the
timely filing of the surety bond.
2. Court's Observations: Upon review of the arguments and records,
the court noted that the defendant had been granted opportunities
to file the surety bond as per the trial court's orders. However, the
defendant did not comply with these orders and displayed
contumacious conduct. The trial court had given ample time to the
appellant to fulfill the court's directions but was met with non-
compliance.
3. Precedent Reference: The court cited the case of "Haji Ali Khan
and Company, Abbottabad and 8 others v. Messrs Allied Bank of
Pakistan Limited, Abbottabad (PLD 1995 Supreme Court 363),"
which held that if a defendant fails to appear, does not obtain leave
to defend, or fails to fulfill the condition on which leave was granted,
the court may pass a decree in favor of the plaintiff. The court also
referred to "Murtaza Haseeb Textile Mills v. Sitara Chemical
Industries (2004 SCMR 882)" in support of its position.
Conclusion
The court determined that the trial court had correctly proceeded in the
matter. The impugned order was not found to have any legal or factual
defects that warranted interference. Therefore, the appeal was dismissed.
Legal References and Precedent Cited
 "Haji Ali Khan and Company, Abbottabad and 8 others v. Messrs

Allied Bank of Pakistan Limited, Abbottabad (PLD 1995 Supreme
Court 363)"
 "Murtaza Haseeb Textile Mills v. Sitara Chemical Industries (2004
SCMR 882)"
JUDGMENT
MASUD ABID NAQVI, J.---Brief facts of this regular first appeal are
that the respondent No.2 filed a suit for recovery of Rs.13,00,000/- against
the appellant/defendant wherein application for leave to appear and
defend the suit was filed by defendant/appellant which was accepted
subject to submission of surety bond equal to suit amount vide order dated
18.01.2016. The defendant/ appellant appeared and filed leave to appear
and defendant the suit, which was accepted subject to deposit of surety
bonds to the tune of suit amount vide order dated 18.01.2016. However,
despite availing several opportunities, the surety bond to the satisfaction
of trial court was not filed by the defendant/appellant and consequently
the suit was decreed vide judgment and decree dated 03.03.2016. Feeling
aggrieved, the appellant/defendant has filed the instant appeal and
challenged the validity of the judgment and decree passed by the learned
trial court.
2. It is contended by the learned counsel for the appellant/defendant that
the impugned order is against law and facts and without taking into
consideration that valuable rights of the appellant/ defendant are involved
in the matter, who should be given an opportunity to contest the suit. He
has further argued that law favours the adjudication on merits instead of
technicalities. It is also contended by the learned counsel for the appellant
that the circumstances were out of control of the appellant/defendant,
therefore, the appellant could not file surety bond. He has prayed for
acceptance of the instant appeal and setting aside of the impugned
judgment and decree dated 03.03.2016 passed by the learned trial court.
3. I have heard the arguments advanced by the learned counsel for the
appellant and minutely gone through the impugned judgment and decree
as well as the record.
4. Perusal of record reveals that a suit for recovery of Rs.13,00,000/- was
instituted by the respondent/plaintiff wherein the defendant/appellant
entered appearance and his application for leave to appear and defend the
suit was accepted subject to submission of surety bond equal to the suit
amount vide order dated 18.01.2016. On 26.01.2016, the case was
adjourned and absolute last opportunity was granted to submit surety
bond. On 04.02.2016, appellant/defendant failed to furnish surety bond
inspite of caution of last and final opportunity but in the interest of justice
learned trial court adjourned the case with a direction that no further
adjournment will be granted on the next date of hearing. On 11.02.2016,
surety bond was furnished but it was rejected being invalid and further
adjournment was granted with caution of last and final opportunity to
furnish surety bond to the satisfaction of the trial court, however, the
surety bond was not filed by the defendant/appellant. The appellant's
conduct was very much contumacious. He tried not to comply with the
order of the learned trial judge through different tactics and ultimately the
learned trial judge had no option but to decree the suit as the appellant's
application for leave to appear and defend the suit was accepted
conditionally. The learned trial judge gave the appellant sufficient time to
comply with his earlier direction. The appellant, on the contrary instead
of complying with the same, unnecessarily involved the respondent in this
uncalled for litigation. His conduct as determined by the trial court was
certainly contumacious and no illegality whatsoever has been committed
by the trial court. Hence, the learned trial court had no other option than
to pass the impugned judgment and decree dated 03.03.2016 and decreed
the suit. While dealing with identical matter, the Hon'ble Supreme Court
of Pakistan in case reported as titled "Haji Ali Khan and Company,
Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited,
Abbottabad (PLD 1995 Supreme Court 363) held as under:
10. The ratio decidendi of the above referred cases seems to be that if
a defendant fails to appear or fails to obtain leave to defend in response to
a summons served in form No.4 provided in Appendix B to the C.P.C. or
fails to fulfil the condition on which leave was granted or where the Court
refuses to grant leave, the Court is to pass a decree. It may further be
observed that in sub-rule (2) of rule 2, C.P.C., it has been provided that if
a defendant fails to appear or defaults in obtaining leave, the allegations
in the plaint shall be deemed to be admitted and the plaintiff shall be
entitled to a decree, but no such consequences are provided for in rule 3 of
the above Order in a case where the Court refuses to grant leave or the
defendant fails to fulfil the condition on which leave was granted. In our
view, notwithstanding the above omission in Rule 3, the effect of refusal
of the Court to grant leave or failure on the part of the defendant to comply
with the condition of the leave, will be the Same i.e. the defendant shall
not be entitled to defend the suit on any ground and the Court would pass
a decree in favour of the plaintiff.
Reliance is also placed on Murtaza Haseeb Textile Mills v. Sitara
Chemical Industries (2004 SCMR 882).
5. In view of the foregoing discussion, this Court is of the affirmed view
that learned trial Court has rightly proceeded in the matter. The impugned
order does not suffer from any infirmity, legal or factual, requiring
interference, therefore, this appeal is dismissed.
MUHAMMAD AYUB--Petitioner versus MANZOOR HUSSAIN--Respondent

 Court: Lahore High Court Rawalpindi Bench
 Date of Decision: 4.3. 2015
 JUDGMENT
 Key Findings and Rulings
The courts reviewed the evidence on the petitioner's fulfillment of pre-
emption requirements. While deciding issue No. 3, both courts ruled
against the petitioner, placing the burden of proof on them. Discrepancies
arose between witness statements (PW-2 and PW-3) regarding the
petitioner's property layout, creating a significant contradiction, as
emphasized in Allah Ditta through L.Rs. v. Muhammad Anar (2013
SCMR 866). Witnesses failed to corroborate the petitioner's claim of
immediate notice of the sale (Talab-e-Muwathibat/jumping demand).
It was established that essential pre-emption requirements, as per the
Punjab Pre-emption Act, 1991, were not met. Moreover, the petitioner's
evidence was discredited due to contradictions under cross-examination.
Therefore, the lower courts rightly dismissed the suit and appeal.
Legal References and Conclusion
The court emphasized that unless the lower courts misapplied their
jurisdiction or misinterpreted evidence, concurrent findings should not be
disturbed. Citing Board through Executive Officer, Cantt. Board,
Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161), the judgment
affirmed that no infirmity was found in the impugned judgments and
decrees. Consequently, the revision was dismissed.
Legal References:
Allah Ditta through L.Rs. v. Muhammad Anar (2013 SCMR 866)
Board through Executive Officer, Cantt. Board, Rawalpindi v. Ikhlaq
Ahmed and others (2014 SCMR 161)
ORDER
This civil revision is directed against the impugned judgments and decrees
dated 07.06.2003 and 19.07.2005 passed by the learned trial Court and the
learned appellate Court, respectively, whereby concurrent findings of fact
have been recorded against the petitioner.
2. Brief facts of this Civil Revision are that the plaintiff/petitioner filed a
suit for pre-emption, pre-empting the sale of land which was purchased by
the defendant/respondent vide Mutation No. 2360 dated 28.11.1998
against consideration of Rs. 40,000/- but just to defeat expected right of
pre-emption of the plaintiff/petitioner, defendant/respondent showed this
transaction as transfer. It was averred in the plaint that on 02.12.1998
through Said Ullah son of Qazi, the plaintiff/petitioner came into
knowledge of the sale while he was sitting in his house along with
Muhammad Farooq and Noor Ellahi and the plaintiff/petitioner
proclaimed his right of pre-emption. On 07.12.1998, registered AD notice
attested by the witnesses was sent to the defendant/ respondent. The
plaintiff/petitioner filed suit on his claim of being Shafi shareek of the
disputed property, but defendant/ respondent refused to accede his right
of preemption. The respondent/defendant contested the suit by filing
written statement and raising certain legal as well as factual objections.
3. Out of divergent pleadings of both the parties, the issues were framed
by the learned trial Court. Both the parties produced their evidence and
after recording the same, learned trial Court dismissed the suit of the
petitioner vide judgment and decree dated 07.06.2003. Feeling aggrieved,
the petitioner filed appeal and learned Additional District
Judge vide judgment and decree dated 19.07.2005 dismissed the
appeal. Being dissatisfied with the judgments and decrees of learned
Courts below, the petitioner filed the instant Revision Petition and
challenged the validity of both the judgments and decrees passed by the
learned Courts below.
4. Learned counsel for the petitioner submits that the petitioner has
fulfilled the requirements of “Talabs” and the findings of the learned
Courts below are based on misreading and non reading of evidence and
against the law and facts of the case. The petitioner is “shafi-e-shareek”
being co owner in the suit land. The petitioner is also “shafi-e-jar”, being
owner of the land contiguous to the suit land. The petitioner is ready to
make the sale consideration of Rs. 40,000/.
5. Conversely, the learned counsel for the respondent submits that the
petitioner is not a co-sharer in the disputed land and is not entitled for a
decree of possession through pre-emption.
parties and perused the record.
7. The perusal of record reveals that while deciding issue No. 3, the learned
Courts below have decided the issue against the petitioner. Onus to prove
this issue was placed on the petitioner. Petitioner had to establish that he
complied with the conditions of “Talabs” as required by law. There are
material contradictions between the statements of PW-2 and PW-3,
witnesses of jumping demand. PW-2 has stated in his cross-examination
that the house of petitioner has a boundary wall and it is a haveli with a
large gate whereas PW-3/ Muhammad Farooq in his cross-examination
has denied/contradicted the said fact and stated that the house of
petitioner does not have any boundary. This is a “material discrepancy”
in term of observations made by the Hon’ble Supreme Court of Pakistan
in Allah Ditta through L.Rs. and others vs. Muhammad Anar (2013
SCMR 866). The informer/Saadullah appeared as DW-2 and stated that
he never informed the petitioner about the sale. All these facts prove that
the said witnesses were never present in the house of petitioner and the
story narrated by the petitioner regarding first information and “Talab-e-
Muwathibat/jumping demand has not been proved. Conditions of
“Talab-e-Ishhad” are also not fulfilled/proved as notice was not
personally served on the respondent by the postman. In the plaint, the
petitioner contended that Saadullah son of Qazi informed him about the
sale of his land to the respondent and he declared to pre-empt the sale by
exercising his superior right of pre-emption in the same sitting on the said
date, time and place in the presence of truthful witnesses. In his evidence
as PW-1, the petitioner improved his version as mentioned in the plaint by
stating that the informer Saadullah threatened him by stating that he has
shown the sale as “Exchange”.
8. In view of the foregoing comprehensive discussion, it is established that
mandatory requirements of “Talabs” were not duly fulfilled as per the
Punjab Pre-emption Act, 1991. Furthermore, it is also established that
evidence of the petitioner/plaintiff was not credit worthy being
contradictory in cross-examination, therefore, learned Courts below
rightly discarded the evidence while dismissing his suit/appeal. Presently,
before this Court as well, learned counsel for the petitioner has failed to
point out any misreading or non-reading of material evidence by the
Courts below, warranting interference by this Court
in revisional jurisdiction, therefore, this civil revision has no force. Even
otherwise, concurrent findings are not to be interfered with unless it is
established that the same are the result of failure by the Courts below to
exercise jurisdiction so vested in them or have acted in exercise of its
jurisdiction illegally or with material irregularity or the same have been
rendered by misreading the evidence produced by the parties. Reference is
made to Board through Executive Officer, Cantt. Board, Rawalpindi
v. Ikhlaq Ahmed and others (2014 SCMR 161).
9. In view of foregoing discussion, this Court does not find any infirmity
in the impugned judgments and decrees, which
are unexceptionable, therefore, this revision is dismissed.
WAQAR ALI KHAN--Appellant versus BOARD OF REVENUE, PUNJAB, LAHORE etc--
Respondents

 Result: Appeal Accepted
 Court: Lahore High Court Rawalpindi Bench
 Date of Decision: 26.1.2014
 Judge(s): Muhammad Ameer Bhatti and Masud Abid Naqvi, JJ
 Case Number: I.C.A. No. 41 of 2014
 JUDGMENT
 ORDER
Facts of the case, in brief are that Notification under Section 4 of the Land
Acquisition Act, 1894 (“Act”) was issued by the District Officer (Revenue),
Rawalpindi and published in the official Gazette on 16.12.2006 in which the
land was proposed to be acquired for Laying High Pressure Gas Pipelines and
allied installations (Adhi-Rewat Line). The respondents acquired the land of
the appellant bearing Khasra No. 486, 487 & 490 measuring 01 Kanal 15
Marla in Mouza Bucha, Tehsil Gujar Khan, District Rawalpindi. The
acquiring agency took over the possession of appellant’s land in May 2006
and started work. The Land Acquisition Collector (“LAC”) awarded
compensation of the acquired land to the appellant @ Rs. 20,00,000/- per
Kanal. The appellant received the awarded amount of his share under
protest on 07.08.2012. Thereafter, the appellant filed a Reference under
Section 18 of the Act for enhancement of compensation on 24.09.2012 but the
LAC/Respondent No. 6 dismissed the Reference being time barred, vide
impugned order dated 06.08.2013.
2. Feeling aggrieved by the said order dated 06.08.2013, the appellant filed
a constitutional petition which was heard and dismissed by the learned Single
Judge of this Court vide order 13.03.2014, hence this intra Court appeal.
3. We have taken into consideration arguments advanced by the learned
counsel for the parties and perused the record on file.
4. It transpires from the record that the appellant has not been served with any
notice of making of the award which is mandatory under the Act. For better
understanding relevant Section 9(3) of the Act ibid is reproduced as under:
“the collector shall also serve notice to the same effect on the occupier (if any)
of such land and on all such persons known or believed to
be interested therein, or to be entitled to act for persons so interested or reside
or have agents authorized to receive service on their behalf, within the
Revenue District in which the land is situate.”
Issue of notice under Section 9(3) mandatory casting duty on Collector to
serve notice on claimants, owners and interested persons and general. Notice
or knowledge of owners about acquisition from any different source, held, not
substitute of notice under the Act. Reference is made to Deputy Commissioner
vs. Abdul Karim Moosa and others (1982 CLC 1542). In the present case,
although appellant received compensation, under protest, after the award was
made but there is no proof of service of notice to him which was also required
under Section 12(2) of the Act. For the sake of convenience, Section 12(2) is
also reproduced hereunder:
“The Collector shall give immediate notice of his award to such of the persons
interested as are not present personally or by their representative when the
award is made.”
5. The appellant was neither present nor represented before the LAC when he
made the award. On the proper analysis of proviso to sub-section (2) of
Section 18, we have noticed that different periods of limitation are provided
for different situations i.e (i) making of award in presence of the applicant (ii)
making of award in applicant’s absence but applicant was served with notice
(iii) making of a ward in applicant’s absence and no notice was served. For
the last category, a longer period of limitation i.e. six months has been
provided but that time is to run from the date of the Collector’s award and the
knowledge about the award has no relevance. In this regard, we are persuaded
by a judgment of the Hon’ble Supreme Court of Pakistan reported as Ghulam
Muhammad vs. Government of West Pakistan and others (PLD 1967 S.C.191)
which holds as under:
“The fact that admittedly no notice of the filing of the award was served upon
the appellant under Section 12(2) of the Act, is in no way, relevant for the
purpose of deciding this controversy as to the time within which the objection
should be filed for, under Section 18, proviso (b), it would appear that if notice
is served the period of limitation is only six weeks from the date of the service
of the notice but in other cases 6 months from the date of the Collector’s
award”.
5. In view of the above discussion, we are firmly of the view that in a case in
which notice under Section 12(2) of the Act has not been served upon
the interested-person, maximum period available to him is six months from
the date of the Award. Therefore, the order dated 06.08.2013 of the LAC/
Respondent No. 6 and the order dated 13.03.2014 passed by the learned Single
Judge of this Court are not sustainable and the same are set-
aside. Accordingly, this appeal is allowed with the direction to the
LAC/Respondent No. 6, to decide afresh the application for Reference to
Court under Section 18 of the Act in the light of above observations.
WALAYAT KHAN etc.--Petitioners versus QASIM ALI etc.--Respondents

 Result: Petition Accepted
 Judge(s): Masud Abid Naqvi, J.
 Case Number: W.P. No. 108393 of 2017
 JUDGMENT
 Background: The petitioners filed an application challenging an ex-parte
judgment & decree, claiming they had no knowledge of the suit due to not
receiving notices or summons. The respondent filed a contesting reply,
leading to the trial court dismissing the application. The appellate court
also dismissed the appeal, prompting the petitioners to file a writ petition
challenging the lower courts' decisions.
Court's Analysis: Upon reviewing the records and judgments, it was
found that a previous suit involving the petitioners and Mohammad
Hayat, the respondent's wife's cousin, had been ongoing. This suit,
involving the same land, had prior judgments against Mohammad Hayat,
culminating in an ejectment order in favor of the petitioners. During this
time, an agreement to sell was allegedly made between the petitioners and
the respondent, but the respondent still filed a suit for specific performance
without disclosing the ongoing litigation about the land.
Evidentiary Failure: The respondent failed to disclose the ongoing
litigation in the suit, neither in the plaint nor during evidence. The burden
to prove certain issues was on the respondent, who failed to provide
substantial evidence or witnesses, whereas the petitioners presented
witnesses consistent with their claims.
Court's Decision: The Court found the lower courts' evaluation of the
case inadequate. It set aside the ex-parte judgment & decree and the lower
courts' orders. It directed the trial court to initiate fresh proceedings,
allowing the petitioners to file a written statement and the contesting
parties to produce evidence. The court emphasized that these new
proceedings should not be influenced by any previous observations made
by any court during the prior litigation.
Legal References: The judgment appears to be based on the principles of
fair trial and the requirement for full disclosure in legal proceedings. While
no specific legal citations are provided in the text, the decision aligns with
the fundamental principles of due process and fair adjudication, ensuring
that all parties have an opportunity to present their case and that courts
evaluate cases without influence from prior proceedings.
ORDER
Brief facts necessary for the adjudication of this lis are that the petitioners
filed an application under Section 12(2) CPC to challenge the ex-parte
judgment & decree dated 24.03.2011 with the averments that the
petitioners had no knowledge about the pendency of suit as they did not
receive any notices/summons and neither they appeared before the
learned trial Court nor appointed any counsel. Hence, ex-parte judgment
& decree dated 24.03.2011 is result of fraud, mis-representation having no
effect upon the rights of the petitioners. The Respondent No. 1 filed a
contesting reply, Out of divergent pleadings of the parties, issues were
framed by the learned Trial Court and parties led their respective oral as
well as documentary evidence. After hearing the arguments advanced by
both the parties, the learned Trial Court vide in order dated 26.03.2016
dismissed the application. Feeling aggrieved, the petitioners/applicants
preferred an appeal and the learned appellate Court dismissed the appeal
vide judgment and decree dated 31.10.2017. Being dissatisfied, the
petitioners/applicants has filed the instant writ petition and challenged the
validity of the impugned order/judgment passed by the learned Courts
below.
minutely gone through the record as well as the impugned judgments and
decrees.
3. Perusal of the record reveals that a tenant of the petitioners namely

Mohammad Hayat son of Mamand filed a suit for Specific Performance
against the petitioners regarding the same suit land who is also first cousin
(????? ???) of respondent’s wife on the basis of agreement to sell dated
19.02.1996 which was dismissed vide judgment & decree dated
06.09.2006. Appeal against the judgment & decree dated 06.09.2006 was
also dismissed by the learned appellate Court vide judgment & decree
dated 29.08.2009 and both the judgments &’decrees of the learned Courts
below were maintained/upheld by this Court vide judgment & decree
dated 04.12.2009 in Civil Revision No. 2478/2009. Thereafter, the
petitioners filed ejectment petition against Mohammad Hayat son of
Mamand before the then DDOR, Lalian which was accepted vide order
04.12.2010 and Mohammad Hayat challenged the ejectment order before
higher hierarchy of revenue Courts, however, remained unsuccessful till
Board of Revenue Punjab.
During the above described pendency of litigation between the petitioners

and Mohammad Hay at son of Mamand who is also first cousin (????? ???)
of respondent’s wife, an agreement to sell dated 02.03.2009 was allegedly
executed between the petitioners and respondent wherein pendency of
litigation before learned Civil Court is also written with the condition that
after the litigation, the petitioners will execute the sale-deed but
astonishingly, the respondent namely Qasim Ali filed suit for specific
performance against the petitioners on 29.01.2010 during the pendency of
the litigation, without disclosing the fact that litigation was still pending
about the suit land, and succeeded in obtaining the ex-parte judgment &
decree dated 24.03.2011. Hence, the respondent failed to disclose the facts
about pendency of other litigation in plaint and also during evidence.
None of respondent’s witnesses including respondent in the suit deposed
any information about the pendency of suit. Onus to prove Issues No. 2
to 6 was placed upon the respondent and in order to dislodge this burden,
only respondent namely Qasim Ali appeared as RW-1 and no one
appeared on his behalf to support him in proceedings under Section 12(2)
CPC. The respondent failed to initiate any proceedings against the
petitioners like summoning the alleged appointed counsel by the
petitioners or sending the wakalatnama alleged by the petitioners to
handwriting expert. The evidence produced by the respondent is neither
convincing nor cogent to discharge the onus. While Petitioner No. 1
appeared as AW-1 and produced Azhar Abbas and Allah Yar as AW-2 &
AW-3 who folly supported the contents of petitioners’ application and
without any variations or contradictions in their statements.
4. In view of the foregoing discussion, this Court is of the considered view

that the learned Courts below have neither properly evaluated the facts of
the case nor the provisions of law. Hence, by accepting this petition, the
ex-parte judgment & decree dated 24.03.2011 and impugned order &
judgment, passed by the learned Courts below dated 26.03.2016 and
31.10.2017 in petitioners’ application under section 12(2) CPC are set-
aside with the direction to the learned trial Court to initiate fresh
proceedings by allowing the petitioners to file written statement and to
allow the contesting parties to produce oral as well as documentary and
thereafter to pass judgment & decree without being influenced by any
observation made by this Court or any other Court during the litigation
between the petitioners and respondent because no litigation is pending
between the petitioners & Mohammad Hayat, presently, as is
argued/informed by the counsels. Either of the contesting party can
submit this order before the learned trial Court for initiating fresh
proceedings in the suit.
SAIMA SAJID--Appellant versus RETURNING OFFICER, PP-259, RAHIM YAR KHAN--
Respondent
 Citation: 2023 PLJ 396

 Case Number: Election A. No. 61 of 2018
 JUDGMENT
 Case Summary:
This case involves an appeal against the rejection of nomination papers by
the Returning Officer for the PP-259 constituency in Rahim Yar Khan due
to the proposer and seconder not being voters from the appellant's
constituency. The appellant argued that a mistake occurred in naming the
proposer and seconder and sought rectification, citing a case precedent
where substitution was allowed for a similar error. However, the Appellate
Tribunal rejected the appeal.
Key Points:
1. Rectification Request Rejection: The appellant's request to rectify
the error in the nomination papers, regarding the proposer and
seconder not being voters of the concerned constituency, was
dismissed by the Returning Officer. The appellant argued that the
defect was curable, drawing parallels to a case precedent.
2. Appellate Tribunal Decision: The Appellate Tribunal has the
authority to decide appeals summarily under the Elections Act
2017. The defect in the nomination papers, in this case, was
considered substantial as it affected the essential requirement of
having a proposer and seconder from the same constituency. The
Tribunal highlighted the Returning Officer's lack of authority to
rectify a substantial defect.
3. Legal Precedents: References were made to legal precedents,
including the Supreme Court's stance in the case of "Nadeem Shafi
vs Tariq Shuja Butt and others (PLD 2016 Supreme Court 944),"
emphasizing that substantial defects in nomination papers cannot
be rectified by the Returning Officer or the Appellate Authority.
4. Substantial Nature of Defect: The defect concerning the proposer
and seconder not belonging to the same constituency as the
candidate was deemed crucial, as it signifies the endorsement of the
candidate by voters from that specific area. The rejection of
nomination papers based on this substantial defect was considered
legally justified, drawing support from various legal judgments.
Legal References:
Nadeem Shafi vs Tariq Shuja Butt and others (PLD 2016 Supreme
Court 944): Emphasized the inability of the Returning Officer and the
Appellate Authority to rectify defects of a substantial nature in
nomination papers.
Rana Muhammad Tajammal Hussain vs. Rana Shaukat Mahmood
(PLD 2007 Supreme Court 277): Supported the idea that defects
regarding the proposer and seconder not being from the same
constituency can lead to the rejection of nomination papers.
Barkhurdar vs. Appellate Tribunal/Additional District and Sessions
Judge and 3 others (PLD 2016 Lahore 101): Affirmed the importance
of endorsers being from the same constituency as the candidate for
nomination validity.
Muhammad Ilyas vs. Returning Officer and others (PLD 2016
Lahore 179): Contributed to the notion that defects of this nature are
substantial and cannot be rectified.
Asif Khan vs. Returning Officer (2003 MLD 230): Further supported
the idea that defects regarding the proposer and seconder not being
from the candidate's constituency can lead to the rejection of
nomination papers.
ORDER
Aggrieved by the order dated 13.06.2018 passed by the Returning Officer,

PP-259, Rahim Yar Khan wherein the appellant’s nomination papers were
rejected on the ground that proposer and seconder of the appellant are not
voters from the constituency from where the appellant is contesting the
election, the appellant has filed the instant appeal under section 63 of the
Elections Act, 2017 on the ground that on realizing the bonafide omission,
an application was moved by the appellant before the Returning Officer
requesting therein to remedy omission by presenting certificates of other
two voters but the same was also rejected. Hence, the appellant is entitled
to contest election as the defect is not of substantial nature.
2. The learned counsel for the appellant mainly argues that through
clerical mistake, names of proposer and seconder were wrongly
mentioned. However, the appellant filed an application before the
Returning Officer for rectifying the defect at the time of scrutiny, which
was dismissed on 13.06.2018. Learned counsel for the appellant argues
that this defect is curable while placing reliance on the case reported as
Mudassar Qayyum Nahra vs Election Tribunal, Punjab, Lahore and 10
others (2003 PLD (Lahore) 1089) wherein substitution was requested
there and then, on being pointed out before Returning Officer and same
was allowed by the Returning Officer. Prays that case of the appellant is
on the same footings and the appellant can correct/rectify this defect by
substituting proposer and seconder. Hence, the appellant is entitled to
contest the election by rectifying the defect. I have heard the arguments of
the learned counsel for the appellant and perused the documents attached
with this appeal.
3. Against the decision of Returning Officer, based on summary inquiry,

a candidate or the objector has a right to file an appeal before this
Appellate Tribunal, constituted for this purpose under section 63 of
Elections Act 2017 and Appellate Tribunal is empowered to summarily
decide an appeal under sub-section 2 of section 63 ibid, however, in, short,
brief, concise and immediate manner and in contrast to a full fledge trial,
especially on the substantial and genuine controversy about the facts or
the application of law which is dependent upon the factual resolution,
within such time as may be notified by the commission, on the basis of
admitted/easily verifiable material/record to eminently and conclusively
establish the qualification/ disqualification of the candidate. There is no
denial of the fact that the appellant has filed the nomination papers on the
last date of filing nomination papers i.e. 11.06.2018 by mentioning the
names of Muhammad Ahmad as proposer and Naveed Abid as seconder.
During scrutiny of nomination papers, on 13.06.2018, it was discovered
that names of proposer and seconder were not in the electoral roll of the
electoral area from where the appellant was/is contesting election as a
candidate and the appellant filed application for correction of defect on
13.06.2018 after the last date of filing nomination papers i.e. 11.06.2018.
This defect is of a substantial nature. Returning Officer is only empowered
to allow a defect other than one of a substantial nature to be remedied,
such as particulars of the candidate or his proposer and seconder, signature
of proposer/seconder as to ensure that the same are accurate. But if the
name of candidate and his particulars are altogether missing and/or same
is the position of the proposer/ seconder the Returning Officer cannot be
allowed to add these afresh. The same shall be the position with regard to
substitution as the Retuning Officer has no lawful authority to allow an
altogether new person to be replaced as a proposer or seconder for a person
who is absolutely disqualified or ineligible to propose or second. The
Hon’ble Supreme Court of Pakistan while dealing with an identical matter
reported as “Nadeem Shafi vs Tariq Shuja Butt and others (PLD 2016
Supreme Court 944), has held as under:
“The Returning Officer and the Appellate Authority are barred from
correcting a defect of a substantial nature; if the fact that the proposer
and/or seconder is not a voter of the constituency is not a defect of a
substantial nature, then what is? Therefore, there can be no valid appellate
orders allowing substitution or rectification of a defective nomination
paper.”
4. Defect regarding proposer and seconder not being from the constituency
from where a candidate files his nomination papers, can neither be left
unnoticed nor remedied because it is an endorsement of the nominated
candidate by voter(s) of same constituency and in case, it is discovered that
the proposer and/or seconder are not voters of the said constituency it
would be tantamount to no nomination at all. Hence, the Returning
Officer was legally justified in rejecting the appellant’s nomination papers.
Reliance is placed on judgments reported as Rana Muhammad Tajammal
Hussain vs. Rana Shaukat Mahmood (PLD 2007 Supreme Court 277),
Barkhurdar vs. Appellate Tribunal/Additional District and Sessions
Judge and 3 others (PLD 2016 Lahore 101), Muhammad Ilyas vs.
Returning Officer and others (PLD 2016 Lahore 179), Asif Khan vs.
Returning Officer (2003 MLD 230).
5. In view of above, I find no infirmity or illegality in the impugned order

of the Returning Officer and consequently this appeal is dismissed.
HADAYAT ULLAH deceased through Legal Heirs etc.--Petitioners versus PROVINCE OF THE
PUNJAB etc.--Respondents

 Result: Order Accordingly
 JUDGMENT
 Summary of Judgment
Background: The case involves a suit for Specific Performance of an
Agreement to Sell filed by plaintiffs (Respondents No. 2 to 9) against
private defendants/petitioners and Province of the Punjab/Defendant No.
1. The dispute revolves around the ownership and sale of a land known as
lot No. 446.
Previous Litigation: The plaintiffs had previously filed a similar suit in
1991 against the predecessors of the current defendants, which was
dismissed by the trial court in 1995. The appeal against this decision was
also rejected in 1996, concluding that the defendants hadn’t yet acquired
ownership. The current suit is the second one on the same subject matter.
Ownership Dispute: The current judgment highlights that despite an
agreement to sell executed in 1963 and an affidavit, the proprietary rights
to the land were not transferred to the defendants. The Province of the
Punjab still retained ownership, denying the defendants' proprietary rights
until fulfillment of certain conditions, as per the allotment policy.
Legal Interpretation: The judge refers to the distinction made in legal
precedents between disputes related to proprietary rights against the State
and disputes between allottees and their vendees before the grant of
proprietary rights. Quoting the case of "Commissioner Multan Division,
Multan and others vs. Muhammad Hussain and others" (2015 SCMR 58),
it is emphasized that agreements for the sale of state land can't be enforced
until proprietary rights are granted.
Application of Civil Procedure Code: The judgment emphasizes the
provision of Order VII, Rule 13 of the Civil Procedure Code (CPC),
clarifying that the rejection of the plaint doesn't prevent the plaintiff from
filing a fresh suit on the same cause of action. The judge distinguishes
between the rejection of a plaint and the principle of res judicata, which
bars further litigation on the same matter once a suit has been "heard and
finally decided."
Decision: The judge asserts that the lower courts failed to consider the
legal aspects and the precedent set by higher courts. Consequently, the
findings of the lower courts are set aside, and the current civil revision
accepts the rejection of the plaint under Order VII, Rule 11 read with Rule
13 of the CPC.
Legal References: The judgment cites the case of "Commissioner Multan
Division, Multan and others vs. Muhammad Hussain and others" (2015
SCMR 58) and references Order VII, Rule 13 of the Civil Procedure Code
(CPC) while elucidating the distinction between rejection of a plaint and
the principle of res judicata.
JUDGMENT
Concise facts of this civil revision are that the plaintiffs/Respondents No.
2 to 9 filed a suit for Specific Performance of an Agreement to Sell against
the private defendants/petitioners & Province of the Punjab/Defendant
No. 1 with the averments that suit land commonly known as lot No. 446
was not only allotted to Din Mohammad son of Moula Baksh but the
possession of the same was also delivered by the Thal Development
Authority to him. With the permission of Collector, said Din Mohammad
transferred the suit land to Hadayat Ullah (deceased), Anayat Ullah
(deceased), Rehmat Ullah (deceased) & Bheir Din (deceased) in 1960 and
private defendants/ petitioners are their legal heirs. After receiving an
amount of Rs. 6500 as sale consideration, the predecessors in interest of
private defendants/petitioners namely Hadayat Ullah, Anayat Ullah,
Rehmat Ullah & Bheir Din executed an agreement to sell dated
19.12.1963 & affidavit in favour of the predecessor in interest of the
plaintiffs/ Respondents No. 2 to 9 namely Sher Mohammad (deceased)
with the understanding that Sher Mohammad will pay the amount(s) of
remaining installments of suit land and will take further steps for the
fulfillment of other conditions for the completion of allotment process and
for grant of proprietary rights and possession of the suit land was also
delivered. The plaintiffs/Respondents No. 2 to 9 paid the amount(s) of
remaining installments and no amount of any installment or otherwise is
payable by the plaintiffs/Respondents No. 2 to 9, hence instant suit for
Specific Performance of Agreement to Sell. Province of the
Punjab/Defendant No. 1/Respondent No. 1 & private
defendants/petitioners filed contesting written statement(s) by raising
factual as well as legal objections.
2. Out of divergent pleadings of the parties, issues were framed by the

learned Trial Court including the issue of rejection of plaint under Order
7 Rule 11 CPC and parties led their respective oral as well as documentary
evidence. After hearing the arguments advanced by both the parties, the
learned trial Court vide judgment and decree dated 20.07.2009 decreed the
suit. Feeling aggrieved, the private defendants/petitioners preferred an
appeal and the learned Additional District Judge dismissed the appeal vide
judgment and decree dated 22.07.2011. Being dissatisfied, the private
defendants/petitioners have filed the instant civil revision and challenged
the validity of the impugned judgments and decrees passed by the learned
courts below.
minutely gone through the record as well as the impugned judgments and
decrees.
4. Perusal of record reveals that the plaintiffs/Respondents

No. 2 to 9 filed a suit for Specific Performance of an Agreement to sell on
the same subject matter with same relief in 1991 against the predecessors
in interest of private defendants/petitioners namely Hadayat Ullah,
Anayat Ullah, Rehmat Ullah & Bheir Din which was dismissed by the
learned trial court vide judgment and decree dated 28.11.1995 with the
findings:
“…. defendants have not earned ownership yet ….. I am of considered

opinion that time is not ripe for the filing of the suit for specific
performance of agreement to sell …….”. The appeal against the said
judgment & decree preferred by the plaintiffs/Respondents No. 2 to 9 was
also dismissed by the learned appellate court vide judgment & decree
dated 08.12.1996. The instant suit is the second suit, filed by
plaintiffs/Respondents No. 2 to 9 against the private defendants
/petitioners & Province of the Punjab/Defendant No. 1 on the same
subject matter with same relief. Apart from raising other questions of facts
and law in written statement, Province of the Punjab/Defendant No. 1
mainly pleaded that propriety rights were/are not granted to private
defendants/ petitioners and they cannot sell the suit land to the plaintiffs/
Respondents No. 2 to 9 and even certain amount(s) were/are due and are
payable by the private defendants/petitioners and plaint is liable to be
rejected under Order 7 Rule 11 CPC. The private defendants/petitioners
also confirmed the ownership of the Province of the Punjab/Defendant
No. 1 on the suit land with the acknowledgement that certain amount(s)
were/are due and payable by them to Province of the Punjab/Defendant
No. 1.
5. The predecessors in interest of private defendants/ petitioners namely

Hadayat Ullah, Anayat Ullah, Rehmat Ullah & Bheir Din allegedly
executed an agreement to sell/ Iqrarnama/ Ex.P-5 dated 19.12.1963 &
Affidavit/Ex.P-4 in favour of the predecessor in interest of the
plaintiffs/Respondents No. 2 to 9 namely Sher Mohammad but by simply
reading the entire record as well as pleadings of the contesting parties and
the disputed documents, there remains no doubt rather admittedly, the
proprietary rights have not been granted/delivered to private
defendants/petitioners by the Province of the Punjab/Defendant No. 1
and the private defendants/petitioners are not the owners of the disputed
land which is still owned by the Province of the Punjab. Hence, before
granting proprietary rights to the private defendants/ petitioners, Province
of the Punjab retains its powers to deny the proprietary rights to the private
defendants/ petitioners, in case of any violation of allotment policy etc.
The learned Courts below while passing the impugned judgments and
decrees failed to appreciate this fact that after the dismissal of plaintiffs/
Respondents No. 2 to 9’s first suit for Specific Performance of same
Agreement to Sell with the same subject matter and same relief against the
private defendants/petitioners & Province of the Punjab and thereafter
dismissal of plaintiffs/ Respondents No. 2 to 9’s appeal, no new cause of
action arose in favour of plaintiffs/ Respondents No. 2 to 9 to file instant
second suit. Being successor in interest of Sher Mohammad deceased,
plaintiffs/ Respondents No. 2 to 9 again filed second Suit for Specific
Performance before arising cause of action as the alleged agreement to sell
cannot be enforced before the grant of proprietary rights by the Province
of the Punjab to the private defendants/petitioners. In this regard, I am
fortified by the dictum laid down by the Hon’ble Supreme Court of
Pakistan in case of “Commissioner Multan Division, Multan and others
vs. Muhammad Hussain and others” (2015 SCMR 58), the operative part
is reproduced hereunder:
“…. there is a distinction between the disputes pertaining to claim for

proprietary rights by an allottee or his successors against the State from
disputes between allottees and their vendees of State land under
transactions concluded prior to grant of proprietary rights. Liberal
treatment is accorded by the law to an agreement to sell, concluded by an
allottee with a vendee in anticipation of securing proprietary rights of State
land. As held in Muhammad Sadiq v. Muhammad Ramzan (2002 SCMR
1821), an agreement or deed of sale of land leased by the State, being
contractual is treated as valid inter parties but the same cannot be enforced
until proprietary rights are conferred by the State ….”
6. It is relevant to discuss here that Order VII, Rule 11 C.P.C. cannot be

properly construed in isolation without understanding the theory of law
with reference to its complementary provision, namely, Order VII, Rule
13, C.P.C. which is reproduced below:
“13. Where rejection of plaint does not preclude presentation of fresh

plaint.--The rejection of the plaint on any of the grounds hereinabove
mentioned shall not of its own force preclude the plaintiff from presenting
a fresh plaint in respect of the same cause of action.”
Rule 13 ibid clarifies the consequence of the rejection of the plaint by

keeping the right of the plaintiff alive to present a fresh plaint even if based
on “the same cause of action” notwithstanding the rejection of the plaint,
this is a distinctly unusual provision which also marks a clear distinction
from the provisions of Section 11 CPC as same not merely imposes a legal
bar on an unsuccessful plaintiff but actually takes away the jurisdiction of
the court to try any suit or issue in which the matter directly or
substantially in issue has also been in issue in a former suit between the
same parties litigating under the same title in a court of competent
jurisdiction which has been “heard and finally decided”, a well-known
principle of res judicata which is one of the foundational principles of our
procedural law. Concept of rejection of a plaint under Order VII, Rule 11
read with Rule 13 CPC is clearly distinct from that of a suit which is
decided and disposed of in the normal course by a court of competent
jurisdiction after recording evidence.
7. Both the learned Courts below have failed to appreciate these material
facts, provisions of law and the dictum laid down by the Honourable
Superior Courts. Hence, the findings of both the learned Courts below are
set aside by accepting this Civil Revision. Resultantly, the plaint filed by
the plaintiffs/Respondents No. 2 to 9 is hereby rejected under Order VII,
Rule 11 read with Rule 13 of CPC.
Sardar ARSALAN HAIDER LEGHARI--Appellant versus SAJID MEHMOOD, CIVIL JUDGE, etc.--
Respondents

 Court: Lahore High Court (Bahawal Pur Bench)
 Case Number: Election A. No. 10 of 2018
 JUDGMENT
 Case Summary
The case revolves around an appeal made by an individual challenging the
rejection of their nomination papers for an election on the basis of holding
Canadian citizenship at the time of nomination. The appellant argued that
they had initiated the process of renouncing their Canadian citizenship
before the nomination date, hence should not be disqualified under Article
63(1)(c) of the Constitution of Pakistan.
Legal Analysis
The judgment delves into the distinction between pre-poll and post-poll
stages in the electoral process. It highlights the scrutiny of nomination
papers as a crucial aspect during the pre-poll phase. The Returning Officer
has the authority to examine qualifications and disqualifications, with
provisions for objections and appeals under the Elections Act, 2017.
Key Rulings and Precedents
The judgment cites legal precedents such as "Syed Mehmood Akhtar
Naqvi vs. Federation of Pakistan through Secretary Law and others" (PLD
2012 S.C. 1089) and "Syed Anwar Hasnat vs. Returning Officer PP-27,
Jhelum" (2013 CLC 1821). These cases emphasize the necessity of
producing concrete evidence or certificates from competent authorities
regarding the renouncement of foreign citizenship to validate qualification
for election.
Decision and Reasoning
The court found that despite initiating the process of renouncing Canadian
citizenship, no official certificate had been issued by the Competent
Authority confirming the renouncement. Therefore, at the time of filing
nomination papers and scrutiny, the appellant was still a Canadian citizen,
leading to disqualification under Article 63(1)(c) of the Constitution.
Furthermore, the failure to disclose the nationalities of the appellant's wife
and children, who are also Canadian citizens, added a substantial defect.
Conclusion
Consequently, the court upheld the decision of the Returning Officer,
dismissing the appeal on grounds of the appellant's ongoing Canadian
citizenship and the failure to disclose the nationalities of their family
members.
Legal References
"Syed Mehmood Akhtar Naqvi vs. Federation of Pakistan through
Secretary Law and others" (PLD 2012 S.C. 1089)
"Syed Anwar Hasnat vs. Returning Officer PP-27, Jhelum" (2013
CLC 1821)
ORDER
Aggrieved by the order dated 19.06.2018 passed by the Returning Officer,

PP-265-XI, Rehim Yar Khan, wherein the appellant’s nomination papers
were rejected on the ground that at the time of filing of nomination papers
the appellant was a citizen of Canada, the appellant has filed the instant
appeal under section 63 of the Elections Act, 2017 on the ground that by
filing application on 21.05.2018 the appellant has renounced his Canadian
citizenship.
2. The learned counsel for the appellant mainly argues that the appellant
has filed an application on 21.05.2018 before the Canadian High
Commission, Islamabad by surrendering his original citizenship card,
Canadian Passport and has also paid the fee of 100 Canadian Dollar.
Hence, the appellant is entitled to contest the election and is not
disqualified under Article 63(I)(c) of the Constitution of Islamic Republic
of Pakistan, 1973. I have heard the arguments of the learned counsel for
the appellant and perused the documents attached with this appeal.
3. There is no cavil to the proposition of law that in order to contest the

election of the Parliament or to the Provincial Assembly or be a Member
thereof, a person must possess the qualifications as enumerated in Article
62 of the Constitution and does not suffer from the disqualifications as
mentioned in Article 63 of the Constitution. The election process can be
broadly divided into two segments, one the period between the date of
nominations of the candidates till the day before the polling which can be
termed as a pre-poll stage while the second shall start with the day of the
polling and terminates with the declaration of the result of the election and
can be signified as post poll stage. At the pre-poll stage the significant
disputes which may arise in relation to the election, are about the valid
nominations of the candidates, inter-alia, involving the question about
their qualifications/ disqualifications etc. As far as the dispute about the
valid nominations of the candidates are concerned, Section 62 of the
Elections Act, 2017 lays down a comprehensive and a particularized
procedure vis-à-vis the scrutiny of the nomination papers which
specifically envisages the filing of objections thereto by the candidate, his
election agent, proposer, seconder, an authorized person of each candidate
or even a voter. Returning Officer is not only authorized of his own motion
to examine the valid nomination of a candidate and to look into his
qualifications/disqualifications but is also to decide the objections while
scrutinizing the nomination papers and for the determination thereof, the
Returning Officer may also conduct a summary inquiry for accepting or
rejecting the nomination papers as he may deem fit, with the
empowerment to require any authority or organization to produce any
document or the record but the scope of such inquiry, however, is, short,
brief, concise and immediate and in any case shall be in contrast to a full
fledge trial, especially when there shall be substantial and genuine
controversy about the facts or the application of law which is dependent
upon the factual resolution. Against the decision of Returning Officer, a
candidate or the objector has a right to file an appeal before the Appellate
Tribunal constituted for this purpose under Section 63 of Elections Act
2017 and Appellate Tribunal shall summarily decide an appeal under sub-
section 2 of section 63 ibid, within such time as may be notified by the
commission, on the basis of admitted/easily verifiable material/record to
eminently and conclusively establish the qualification/ disqualification of
the candidate. Although, the appellant has filed an application on
21.05.2018 by renouncing his Canadian Citizenship but same is still in the
process and admittedly, no certificate has been issued by the Competent
Authority to the effect that he is not a citizen of Canada. As such, at the
filing of his nomination papers, on the date of scrutiny and even today, the
appellant was/is still a Canadian citizen because the learned counsel for
the appellant is unable to provide any document from Canadian
Authorities showing that the appellant’s application for
surrendering/renouncing Canadian citizenship has been accepted. In
reported judgment titled “Syed Mehmood Akhtar Naqvi vs. Federation of
Pakistan through Secretary Law and others (PLD 2012 S.C. 1089), the
Hon’ble Supreme Court held as under:
“ ……… 43. If we compare Article 63(1) with Article 63(A) of the

Constitution inserted by 18th Amendment, the intention of the Legislature
becomes clear that Article 63(1) of the Constitution applied to pre and
post-election disqualification, whereas Article 63(A) applied to post
election disqualification on the ground of defection ………………………
53. As regards Mr. Zahid Iqbal, MNA vide order dated 18.03.2012,
learned ASC appearing for Mr. Zahid Iqbal, MNA was directed to file
evidence/ documents/ certificate issued by the competent authority in
terms of British Nationality Act, 1981 to the effect that he is not a citizen
of UK but he failed to do so till date despite giving time, thus we have no
option but to believe that Mr. Zahid Iqbal, MNA, is holding citizenship of
United Kingdom, having Passport No. 300997046 of Britain
…………………………………
72. From bare reading of the said letter dated 29.05.2012 by U.K. Border
Agency, it appears that Mr. A. Rehman Malik has been registered as
having renounced British Citizenship on 29.05.2012. This aspect of the
matter has already been discussed in our short order, thus need not be
discussed in detail again but suffice it to say that apparently for this reason
realizing legal position, he has resigned from membership of the
Parliament on 11.07.2012 and against the vacant seat he participated in
the fresh elections and was declared successful candidate vide notification
dated 24.07.2012 ……………...”.
Reliance is also placed on judgment reported as “Syed Anwar Hasnat

vs. Returning Officer PP-2 7 , Jhelum” (2013 CLC 1821).
4. In view of the above discussion, the appellant is not entitled/qualified

to contest the election under Article 63(1)(c) because the Constitution of
the Islamic Republic of Pakistan does not permit a person who has
acquired the Citizenship of another State to become a member of
Pakistan’s Parliament or of a Provincial Assembly.
5. On Court’s query, the appellant has also candidly conceded that he has
not mentioned in his nomination papers or in attached documents, the
nationalities of his wife as well as his children who are also citizens of
Canada. Hence, by not mentioning the nationalities of his wife and
children, the defect of a substantial nature has also accrued.
6. In view of above, I find no infirmity or illegality in the impugned order
of the Returning Officer and consequently this appeal is dismissed in
limine.
SHAUKAT IQBAL----Appellant Versus MUHAMMAD SHUMAIL AKRAM----Respondent
 Citation: 2023 CLC 193

 Case Number: R.F.A. No.1693 of 2014
 JUDGMENT
 Background of the Case: The respondent/plaintiff filed a suit for the
recovery of Rs.300,000/- under Order XXXVII, C.P.C., against the
appellant/defendant. The respondent alleged that they gave a loan of
Rs.300,000/- to the appellant, who issued a cheque that was dishonored
due to insufficient funds.
Defendant's Counter and Trial Outcome: The appellant/defendant
denied receiving a loan and claimed the disputed cheque was issued for a
different purpose. The trial court decreed the suit in favor of the
respondent/plaintiff. The appellant appealed, challenging the trial court's
jurisdiction based on a legal precedent (Khalid Mahmood v. Tandlianwala
Sugar Mills Ltd).
Interpretation of "Sum of Amount Undertaken": The appellate court
considered whether the "sum of amount undertaken or ordered to be paid
to payee" refers only to the cheque amount or includes any reduced
amount if the liability has decreased due to part-payment after the issuance
of the cheque. The court deliberated on the intention of the legislature and
the practical implications of such interpretation.
Conclusion on Jurisdiction and Procedure: The court held that if the
drawer's liability has reduced due to part-payment after issuing the cheque,
the payee must either negotiate a new cheque for the reduced amount or
endorse the original cheque to reflect the part-payment. Filing a suit under
Order XXXVII, C.P.C. for the full cheque amount after part-payment is
improper. The court emphasized that the payee has the choice to file the
suit either under special jurisdiction (Order XXXVII, C.P.C.) or in an
ordinary civil court.
Judicial Decision and Direction: The appellate court set aside the trial
court's judgment, declaring that the trial court erred in law by decreeing
the suit. The court directed the learned Additional District Judge to return
the plaint under Order VII, Rule 10, C.P.C., to the respondent/plaintiff
for filing in an ordinary civil court of plenary jurisdiction.
Legal References:
Khalid Mahmood v. Tandlianwala Sugar Mills Ltd (PLD 2011 Lahore
52)
Section 56 of Negotiable Instruments Act, 1881
Order XXXVII, C.P.C.
Order VII, Rule 10, C.P.C.
JUDGMENT
Brief facts necessary for the adjudication of this lis are that the
respondent/plaintiff filed a suit for recovery of Rs.300,000/- under Order
XXXVII, C.P.C., against the appellant/defendant with the specific
averments that he paid an amount of Rs.300,000/- to the
defendant/appellant as a loan on 12.07.2006 in presence of witnesses
namely Zafar Abbas and Mohammad Mushtaq and the
appellant/defendant handed over to the respondent/plaintiff a cheque
No.641730 and the said cheque was dis-honoured for insufficient funds on
09.11.2006. Thereafter, the respondent/plaintiff presented the cheque on
01.02.2007 and 22.03.2007 but the cheque was not encashed due to
insufficient fund, hence the instant suit. The appellant/defendant denied
about the receipt of loan from the respondent/plaintiff with the claim that
the disputed cheque was handed over to the respondent/plaintiff as. He
further pleaded that an amount of Rs.100,000/-was returned by him to the
respondent/plaintiff after the initiation of criminal proceedings against the
appellant/defendant. Out of divergent pleadings of the parties, issues were
framed by the learned Trial Court and parties led their respective oral as
well as documentary evidence. After hearing the arguments advanced by
both the parties, the learned Trial Court vide judgment and decree dated
13.02.2016 decreed the suit. Feeling aggrieved, the appellant/defendant
preferred instant appeal and challenged the validity of the impugned
judgment and decree passed by the learned trial court.
2. Apart from other arguments, learned counsel for appellant mainly
argues by placing reliance on the case reported as Khalid Mahmood v.
Tandlianwala Sugar Mills Ltd through Manager, Personnel and
Administration Faisalabad (PLD 2011 Lahore 52) that learned trial court
had no jurisdiction to entertain and adjudicate upon the lis because after
the receipt of an amount of Rs.100,000/- by the respondent/plaintiff
before filing of suit, negotiable instrument lost its enforceability under
special law. I have heard the arguments of learned counsel for the
appellant/ defendant and minutely gone through the record as well as the
3. There is no denial of facts that disputed cheque No.641730 was issued
on 12.07.2006, suit was instituted on 21.10.2009 on the basis of cheque
amount and the respondent/plaintiff admittedly received an amount of
Rs.100,000/- from the appellant/defendant in the year 2008 before filing
suit. While appearing as PW-1, respondent/plaintiff conceded about the
part-payment in cross-examination but by concealing this fact
intentionally, failed to plead this fact in his plaint and simply filed a suit
for recovery of cheque amount. Now the question which comes up for
consideration is as to what the expression "sum of amount undertaken or
ordered to be paid to payee" means in a case where the admitted liability
of the drawer of the cheque gets reduced, on account of part-payment
made by him, after issuing the cheque. No doubt, the expression "sum of
amount undertaken or ordered to be paid to payee" would mean the
amount of the cheque alone in case the amount payable by the drawer but,
can it be said the expression "sum of amount undertaken or ordered to be
paid to payee" would always mean the amount of the cheque, even if the
actual liability of the drawer of the cheque has got reduced on account of
some payment(s) made by him towards discharge of the debt or liability in
consideration of which cheque in question was issued. If it is held that the
expression "sum of amount undertaken or ordered to be paid to payee"
would necessarily mean the amount of cheque in every case, the drawer
of the cheque would be required to make arrangement for more than the
cheque amount payable by him to the payee of the cheque in case of part-
payment by the drawer of cheque to the payee. Obviously this could not
have been the intention of the legislature to make a person liable to pay
more amount than amount payable through cheque. If the drawer of the
cheque is made to pay more than the amount actually payable by him, the
inevitable result would be that he will have to chase the payee of the
cheque to recover the excess amount paid by him. Therefore, it is difficult
to take the view that even if the admitted liability of the drawer of the
cheque has got reduced, on account of certain payment(s) made after
issuance of cheque, the payee would be entitled to present the cheque for
the whole of the amount to the banker for encashment or in such a case, if
cheque is dishonoured for want of funds, a cause of action compulsorily
will arise to file a suit for recovery of cheque amount under Order
XXXVII, C.P.C. I am also conscious/aware of the situation where with a
view to circumvent and get out of summary procedure under Order
XXXVII, C.P.C., the drawer of a cheque can make part-payment of the
amount of the cheque but this can easily be avoided by payee of the
cheque, either by taking new cheque of the reduced amount from the
drawer or by making an endorsement through a note on the cheque by the
drawer acknowledging the part-payment and then presenting the cheque
for encashment of only the balance amount due and payable to him. In
fact, Section 56 of Negotiable Instruments Act, 1881 specifically provides
for an endorsement on a Negotiable Instrument with regard to part-
payment and the instrument can thereafter be negotiated for the balance
amount. If the drawer and payee of cheque adopt the procedure given in
section 56 of Negotiable Instruments Act, then it would be open to the
payee of the cheque to present the cheque for payment of only that much
endorsed balance amount which is due to him. After the receipt of
admitted part-payment from the amount of cheque before filing the suit,
the payee can neither present the cheque for encashment without adopting
procedure under Section 56 of Negotiable Instruments Act, 1881 nor can
file suit for recovery of cheque amount while invoking special
jurisdiction under Order XXXVII, C.P.C. in new circumstances/situation
which is a subsequent agreement rather will file a suit for recovery of
balance amount of cheque before an ordinary civil court of plenary
jurisdiction. Generally, there is no cavil to the proposition that Order
XXXVII, C.P.C., does not restrict person(s) /plaintiff(s) from filing an
ordinary suit for recovery of cheque amount before an ordinary civil court
of plenary jurisdiction rather provides discretion to either institute a suit
by invoking special jurisdiction under Order XXXVII, C.P.C., or to file
the same under ordinary procedure before ordinary civil court of plenary
jurisdiction and there exists no legal compulsion to restrict the choice of
person(s)/plaintiff(s).
4. In view of the foregoing discussion, I am of the affirmed view that the
learned trial court erred in law in decreeing the suit vide impugned
judgment dated 30.10.2014, hence, the same is hereby set-aside by
allowing this regular first appeal on the question of jurisdiction with the
direction to learned Additional District Judge to return the plaint under
Order VII, Rule 10, C.P.C., to the respondent/plaintiff for filing the same
before an ordinary civil court of plenary jurisdiction.
MUHAMMAD SALEEM RAHI and 3 others---Petitioners Versus AHSAN ULLAH---Respondent
 Citation: 2022 YLR Note 143

 Case Number: Civil Revision No. 154419 of 2018
 JUDGMENT
 Case Summary
Introduction: In this civil revision, the plaintiffs filed a suit for Specific
Performance and Declaration regarding a land purchase. The trial court
decreed in favor of the plaintiffs, but the appellate court reversed the
decision. The plaintiffs, dissatisfied, filed this revision challenging the
appellate court's judgment.
Limitation Argument: The primary issue revolves around the
limitation for filing the suit. The plaintiffs argued that after receiving
Rs. 100,000 on 16.04.2003, the suit should be considered under the
second part of Article 113 of the Limitation Act. However, the court
found the argument unconvincing as there was no express agreement
for novation or acknowledgment in writing. Reference was made to Haji
Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited (PLD
2012 Supreme Court 247) and Umar Hayat v. Muslim Commercial
Bank Ltd. (2020 CLC (Lahore) 581).
Nature of Limitation Law: The court highlighted the foundational
importance of the law of limitation, citing Dr. Muhammad Javaid Shafi
v. Syed Rashid Arshad and others (PLD 2015 SC 212). The law,
founded on public policy, ensures an orderly and structured judicial
process. It was emphasized that the law of limitation is not a mere
technicality but serves as a major deterrent against the misuse of the
judicial process.
Appellate Court's Findings: The appellate court's judgment rested on
the plaintiffs' failure to prove the execution of the agreement and
payments. The defendant categorically denied the execution of the
agreement and receipt of amounts, leading to the maintenance of the
appellate court's findings.
Precedent and Preference for Appellate Findings: The court cited
Ajmal Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 01) to
emphasize that in cases of inconsistency between trial and appellate
courts, the findings of the latter should be given preference unless there
are cogent reasons to the contrary.
Dismissal of Civil Revision: The court concluded that the plaintiffs
failed to demonstrate any misreading of evidence or excess of
jurisdiction by the appellate court. Consequently, the civil revision was
dismissed.
Legal References:
1. Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.)
Limited (PLD 2012 Supreme Court 247)
2. Umar Hayat v. Muslim Commercial Bank Ltd. (2020 CLC
(Lahore) 581)
3. Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others
(PLD 2015 SC 212)
4. Ajmal Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 01)
JUDGMENT
MASUD ABID NAQVI, J.---Concise facts of this civil revision are
that the plaintiffs/petitioners filed a suit for Specific Performance along
with Declaration with the averments that the plaintiffs/petitioners
purchased the suit land for consideration of Rs.200,000/- through
agreement to sell dated 27.09.2002 from defendant/predecessor in
interest of respondents and paid an amount of Rs.75,000/- as earnest
money and 05.01.2003 was fixed for the payment of remaining
consideration amount as well as for registration of sale deed. On
16.04.2003, the respondent/defendant received another amount of
Rs.100,000/- and agreed to receive the balance sale consideration of
Rs.25000/- thereafter. The defendant himself filed contesting written
statement and thereafter he died before the start of evidence. Out of
divergent pleadings of the parties, issues were framed by the learned
Trial Court. The parties produced their respective evidence and after
recording the same, learned Trial Court decreed the suit of the
plaintiffs/petitioners vide judgment and decree dated 09.04.2016.
Feeling aggrieved, the defendant/predecessor in interest of respondents
filed an appeal and the learned Additional District Judge, Pasrur vide
judgment and decree dated 12.10.2017 accepted the appeal. Being
dissatisfied, the plaintiffs/petitioners have filed the instant Revision
Petition and challenged the validity of the judgment and decree dated
12.10.2017 passed by the learned Appellate Court.
impugned judgment.
3. Perusal of record reveals that the petitioners/plaintiffs filed suit for
specific performance of an alleged agreement to sell dated 27.09.2002
on 27.03.2012 while it is specifically written in the agreement to sell that
both the plaintiff and defendant will complete the process of sale
purchase on 05.01.2003, which was allegedly extended on 16.04.2003
by written note, hence, the learned counsel for the petitioners/plaintiffs
argues that after the receipt of alleged payment of Rs.100,000/- on
16.04.2003, the petitioners/plaintiffs' suit should be adjudged or
considered at touchstone of the second part/clause of Article 113 of the
Limitation Act, 1908 and limitation for filing of the suit starts from the
denial of the respondent/defendant to execute the sale deed and the
petitioners/plaintiffs have filed the suit within three months from the
date of the refusal of the respondent/defendant and is not barred by
limitation but the arguments of the learned counsel for the petitioners/
plaintiffs regarding question of limitation and enforcement /
implementation of Article 113 of the Limitation Act, 1908 is not
convincing as there is no express agreement in writing was made
between the parties resorting to novation of contract or
acknowledgment in terms of Section 19 of Limitation Act 1908. In this
regard, I am fortified by the judgment of Hon'ble Supreme Court of
Pakistan reported as Haji Abdul Karim and others v. Messrs Florida
Builders (Pvt.) Limited (PLD 2012 Supreme Court 247), which holds as
under:-
"In the first part, the date is certain, it is fixed by the parties, being
conscious and aware of the mandate of law i.e. Article 113, with the
intention that the time for the specific performance suit should run
therefrom. And so the time shall run forthwith from that date,
irrespective and notwithstanding there being a default, lapse or inability
on part of either party to the contract to perform his/its obligation in
relation thereto. The object and rationale of enforcing the first part is to
exclude and eliminate the element of resolving the factual controversy
which may arise in a case pertaining to the proof or otherwise of the
notice of denial and the time thereof. In the second part, the date is not
certain and so the date of refusal of the performance is the only basis for
computation of time. These two parts of Article 113 are altogether
independent and segregated in nature and are meant to cater two
different sorts of specific performance claims, in relations to the
limitation attracted to those. A case square falling within the ambit of
the first part cannot be adjudged or considered on the touchstone of the
second part notwithstanding any set of facts mentioned in the plaint to
bring the case within the purview of the later part. In other words, as
has been held in the judgements reported as Siraj Din and others v. Mst.
Khurshid Begum, and others (2007 SCMR 1792) and Ghulam Nabi and
others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344) "when
the case falls within first clause, the second clause is not to be resorted
to". However, the exemption the exclusion and the enlargement
from/of the period of limitation in the cases of first part is permissible,
but it is restricted only if there is a change in the date fixed by the parties
or such date is dispensed with by them, but through an express
agreement; by resorting to the novation of the agreement or through an
acknowledgment within the purview of section 19 of the Act. And/or if
the exemption etc is provided and available under any other provision
of the Act, however, to claim such an exemption etc grounds have to be
clearly set out in the plaint in terms of Order VII, Rule 6, C.P.C. We
have examined the present case on the criteria laid down above, and
find that according to the admitted agreement between the parties,
31.12.1997 was/is the date fixed between them for the performance of
the agreement, which has not been shown or even averred in the plaint
to have been changed or dispensed with by the parties vide any
subsequent express agreement. In this behalf it may be pertinent to
mention here that during the course of hearing Mr. Abdul Hafeez
Pirzada, on a court query, has stated that there is no agreement in
writing between the parties which would extend/ dispense the date
fixed and that he also is not pressing into service the rule of novation of
the contract. We have also noticed that the petitioners have neither
alleged any acknowledgment in terms of Article 19 of the Act, which
should necessarily be in writing, and made within the original period of
limitation nor any such acknowledgment has been pleaded in the plaint
or placed on the record."
Reference is also made to Umar Hayat v. Muslim Commercial Bank
Ltd. (2020 CLC (Lahore) 581).
4. While discussing the nature, object, scope and applicability of the
law of limitation, the Hon'ble Supreme Court in a case reported as Dr.
Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015
SC 212) has held as under:
"Such law of limitation is founded upon public policy and State
interest. This law is vital for an orderly and organized society and the
people at large, who believe in being governed by systemized law. The
obvious object of the law of limitation is that if no time constraints and
limits are prescribed for pursuing a cause of action and for seeking
reliefs/remedies relating to such cause of action, and a person is allowed
to sue for the redressal of his grievance within an infinite and unlimited
time period, it shall adversely affect the disciplined and structured
judicial process and mechanism of the State, which is sine qua non for
any State to perform its functions within the parameters of the
Constitution and the rule of law.
The object of the law of limitation and the law itself, prescribing
time constrain for each cause or case or for seeking any relief or remedy
has been examined by the courts in many a cases, and it has been held
to be a valid piece of legislation, and law of the land. It is "THE LAW"
which should be strictly construed and applied in its letter and spirit;
and by no stretch of legal interpretation it can be held that such law (i.e.
limitation law) is merely a technicality and that too of procedural in
nature. Rather from the mandate of Section 3 of the Limitation Act, it
is obligatory upon the court to dismiss a cause/lis which is barred by
time even though limitation has not been set out as a defence. And this
shows the imperative adherence to and the mandatory application of
such law by the courts. The said law is considered prescriptive and
preventive in nature and is held to mean and serve as a major deterrent
against the factors and the elements which would affect peace,
tranquility and due order of the State and society. The law of limitation
requires that a person must approach the court and take recourse to legal
remedies with due diligence, without dilatoriness and negligence and
within the time provided by the law; as against choosing his own time
for the purpose of bringing forth a legal action at his own whim and
desire. Because if that is so permitted to happen, it shall not only result
in the misuse of the judicial process of the State, but shall also cause
exploitation of the legal system and the society as a whole. This is not
permissible in a State which is governed by law and Constitution. And
it may be relevant to mention here that the law providing for limitation
for various causes/reliefs is not a matter of mere technicality but
foundationality of "LAW" itself. In the above context, a judgment of
this Court reported as Atta Muhammad v. Maula Bakhsh and others
(2007 SCMR 1446) has thrown considerable light on the subject and has
provided guidance, in the following words:-
"We may add that public interest require that there should be an
end to litigation. The law of limitation provides an element of certainty
in the conduct of human affair. Statutes of limitation and prescription
are, thus, statutes of peace and repose. In order to avoid the difficulty
and errors that necessarily result from lapse of time, the presumption of
coincidence of fact and right is rightly accepted as final after a certain
number of years. Whoever wishes to dispute this presumption must do
so, within that period; otherwise his rights if any, will be forfeited as a
penalty for his neglect. In other words the law of limitation is a law
which is designed to impose quietus on legal dissensions and conflicts.
It requires that persons must come to Court and take recourse to legal
remedies with due diligence."
5. Even otherwise, while discussing in details, the pleadings, oral as
well as documentary evidence adduced by the contesting parties, the
learned Appellate Court has passed the impugned judgment and decree
dated 12.10.2017 as the petitioners/plaintiffs have failed to prove the
execution of agreement to sell and payments of amount(s) as the
defendant/ predecessor in interest categorically denied the execution of
agreement to sell/Exh. PI as well as receipt of amounts in two
instalments i.e. Rs.75,000/- on 27.09.2002 and Rs.100,000/- on
16.04.2003 out of total sale consideration amount of Rs.200,000/-.
Hence, the findings of learned Appellate Court are maintained/upheld.
6. With respect to interference in the findings of the Appellate Court,
in case of inconsistency between the learned courts below, the Hon'ble
Supreme Court of Pakistan in a case reported as Ajmal Ikram v. Mst.
Asiya Kausar and 2 others (2015 SCMR 01) held that:-
"Even otherwise, in case of inconsistency between the learned trial
Court and the Appellate Court, the findings of the latter must be given
preference in the absence of any cogent reason to the contrary, as has
been held by this Court in the Judgements' reported as Madan Gopal
and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617) )and
Mohammad Nawaz through LRs. v. Haji Muhammad Baran Khan
through LRs. and others (2013 SCMR 1300)."
7. In the present case, learned counsel for petitioners/plaintiffs have
failed to point any misreading of evidence, erroneous assumption of
facts, non-consideration of material evidence and excess or abuse of
jurisdiction by the learned Appellate Court requiring interference,
therefore, this civil revision is hereby dismissed.
MANZOOR HUSSAIN--Petitioner versus MUHAMMAD KHURSHEED--Respondent

 JUDGMENT
 Background: The petitioner/plaintiff filed a suit seeking specific
performance of an agreement to sell a disputed land against the defendant.
The plaintiff claimed that the defendant agreed to sell the land in
consideration of Rs.2,70,000, with Rs. 1,70,000 paid as earnest money and
the remaining Rs. 1,00,000 to be paid after three months. The defendant,
however, later refused to honor the agreement.
Trial Court Judgment: The trial court, after framing issues, dismissed the
plaintiff's suit in a judgment and decree dated 28.04.2014.
Appeal Court Judgment: The plaintiff appealed the trial court's decision,
but the learned Additional District Judge upheld the dismissal in a
judgment and decree dated 31.01.2017.
Civil Revision: Unsatisfied with the lower court decisions, the
petitioner/plaintiff filed a civil revision challenging the validity of the
judgments and decrees passed by the trial and appellate courts.
Key Arguments:
 The petitioner/plaintiff argued that they had provided strong

evidence of the execution of the agreement to sell and the payment
of the sale consideration, but the lower courts did not properly
appreciate this evidence.
 The defendant's legal counsel supported the lower court judgments.
Judicial Analysis:
1. Burden of Proof: The petitioner/plaintiff was required to prove the
execution of the agreement to sell, payment of the sale
consideration, and delivery of possession through cogent and
unimpeachable evidence, both oral and documentary.
2. Witness Testimonies:
 Plaintiff (PW-1) testified that they had entered into an
agreement to sell and paid Rs. 1,70,000 as earnest money.
Witnesses Rusmat Ali and Rulya were cited.
 However, during cross-examination, one of the marginal
witnesses, Rusmat Ali (PW-2), admitted not being present
during the execution of the agreement (Exh.P.1).
 The plaintiff failed to produce the original agreement and
receipt of payment without justification.
3. Contradictions in Evidence: There were contradictions among the
witnesses regarding the payment of sale consideration and the
execution of the receipt.
4. Failure to Establish Possession: The plaintiff was unable to prove
that possession of the disputed land was delivered to them after the
agreement, as their name remained unchanged in the revenue
record.
5. Limitation: The suit was filed on 08.02.2010, seven years and seven
months after the due date of the agreement, rendering it time-barred
by limitation. The law of limitation serves as a deterrent against
undue delays in legal actions.
 Reference: "Noor Din and others vs. Additional District
Judge, Lahore and others (2014 SCMR 513)."
6. Interference in Concurrent Findings: The concurrent findings of
the trial and appellate courts were based on a proper appreciation of
evidence and were not open to interference by the revisional court
unless there were jurisdictional defects or material illegalities
resulting in a miscarriage of justice.
 Reference: "Administrator, Thal Development through
EACO Bhakkar and others vs Ali Muhammad (2012 SCMR
730)."
Decision: The revision petition was dismissed as the petitioner/plaintiff
failed to demonstrate any jurisdictional defect, misreading or non-reading
of evidence, or factual or legal infirmity in the judgments and decrees of
the lower courts. The lower courts had carefully examined the evidence
and reached a conclusion on the matter.
Order
Concise facts of this civil revision are that the petitioner/plaintiff filed a
suit for specific performance of agreement to sell dated 10.07.2002
against the defendant. The petitioner/plaintiff pleaded in the plaint that
defendant/respondent agreed to sell disputed land to the plaintiff in
consideration of Rs.2,70,000/- by receiving
Rs. 1,70,000/- as earnest money against receipt/Ex.P.2 whereas
remaining amount of Rs. 1,00,000/- was to paid after three months and
the defendant would get the disputed land registered in the name of
plaintiff but later on the defendant refused to act upon the agreement.
Hence, the suit. The defendant filed the written statement and raised
factual as well as legal objections and specifically denied the execution of
agreement to sell/Exh.P.1 and receipt/Exh.P.2. Out of divergent
pleadings of the parties, issues were framed by the learned trial Court.
The parties produced their respective evidence and after recording the
same, learned trial Court vide judgment and decree dated 28.04.2014
dismissed the suit. Feeling aggrieved, petitioner/plaintiff filed appeal and
learned Additional District Judge vide judgment & decree dated
31.01.2017 dismissed the appeal. Being dissatisfied, the
petitioner/plaintiff has filed the instant civil revision and challenged the
validity of judgments and decrees passed by the learned Courts below.
2. Learned counsel for the petitioner/plaintiff vehemently argued that

the petitioner/plaintiff proved the execution of the agreement to sell and
payment of consideration by adducing cogent, relevant evidence, oral as
well as documentary but the same is not properly appreciated by the
Courts below. On the other hand, learned counsel for respondent
supported the impugned judgments and decrees.
minutely gone through the record as well as the impugned judgments
and decrees.
4. After the denial of agreement to sell/Ex.P.1 and receipt/Exh.P.2 by

the defendant, the petitioner/plaintiff had/has to prove execution of
agreement to sell, payment of sale consideration to the seller and delivery
of possession by adducing cogent, relevant, unimpeachable evidence,
oral as well as documentary. The petitioner/plaintiff himself appeared
and deposed as PW-1 while marginal witnesses namely Rusmat Ali and
Rulya were produced as PW.2 and PW.3 and Sarfraz Hussain scriber
appeared as PW.6. On the other hand, defendant himself appeared as
DW. 1.
The plaintiff/PW. 1 deposed that he had entered into an agreement to

sell with the defendant for the purchase of the suit property against
consideration of Rs.2,70,000/-, he paid Rs. 1,70,000/- as earnest money.
The agreement and the receipt of payment were executed in presence of
witnesses namely Rusmat Ali and Rulya. While during cross-
examination, one of the marginal witnesses of the agreement to sell
namely Rusmat Ali/PW.2 conceded as under:
??? ???? ???? ????? ?? ??? ???? ??? ??? ??? ????? Ex.P.1 ?? ??? ????? ???? ??? ?? ???
???? ??? ???? ??? ?? ???? ?? ???? ???? ??? ???? ?? ??? ??? ?? ??? ???? ???? ?? ???? ??
?? ???? ?? ??? ???? ????? ?? ???? ???? ????????
Hence, the PW.2/marginal witness was not present at the time of

execution of alleged agreement/Exh.P. 1. It is also important to mention
here that the plaintiff/petitioner failed-place on record original
agreement to sell and receipt of payment of sale consideration without
any plausible justification. Insofar as payment of sale consideration is
concerned, there are clear contradictions amongst the witnesses
regarding the payment of sale consideration and execution of receipt.
Similarly, the plaintiff/petitioner has failed to establish that possession of
the disputed land was delivered to him after the execution of agreement
as he conceded in cross-examination that his name is entered in revenue
record without change till today as “??????”. Hence, by bare reading of
the evidence of the petitioner/plaintiff, it becomes crystal clear that the
petitioner/plaintiff failed to prove the basic ingredient of sale.
Even otherwise, agreement to sell was reduced into writing on

10.07.2002 but the plaintiff/petitioner filed the suit on 08.02.2010 after
lapse of 07 years and 07 months from the due date, hence, the suit is
badly barred by limitation. Law of limitation is considered as preventive
in nature and serves as a major deterrent against the factors and element
which can affect peace, tranquility and due order of state and society.
The law of limitation requires that a person must approach a Court of
law and adopt legal remedies with due care, diligence, without
dilatoriness, without negligence and within the time provided by the law
rather than choosing his own time for the purpose of bringing forth a
legal action at his own whim and desire. Reliance is placed on “Noor
Din and others vs. Additional District Judge, Lahore and f others (2014
SCMR 513).
5. With respect to interference in concurrent findings of the Courts

below, the Hon’ble Supreme Court of Pakistan in a case reported as
Administrator, Thal Development through EACO Bhakkar and others vs
Ali Muhammad (2012 SCMR 730) held that:
“Concurrent findings of the trial Court and appellate Court in favour of

appellants were based on proper appreciation of evidence therefore, the
same were not open to interference by the revisional Court in exercise of
its jurisdiction under section 115, C.P.C. which is primarily meant for
correction of jurisdictional defect/error and material illegalities/
irregularities, resulting in miscarriage of justice to a party.”
6. In the present case, no such defects have been pointed out by the
learned counsel for petitioner/plaintiff in order to seek interference by
this Court. Learned Courts below have thoroughly examined the entire
evidence of the parties and thereafter reached at the conclusion regarding
the controversy. Neither any misreading or non-reading of evidence on
record nor any infirmity, legal or factual, has been pointed out in the
impugned judgments and decrees passed by the learned Courts below,
therefore, this revision petition is dismissed.
STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Zonal Head/Attorney and
others---Appellants Versus Mst. MAI BHAGAN---Respondent
 Citation: 2022 CLD 1048

 Judge(s): Shahid Bilal Hassan and Masud Abid Naqvi, JJ
 JUDGMENT
Background: The case involves a life insurance policy purchased by
Muhammad Ali from the State Life Insurance Corporation of Pakistan.
After Muhammad Ali's death, his wife, the respondent/nominee, filed a
claim for death benefits. The Insurance Company rejected the claim,
leading to a series of appeals and reviews. The Insurance Tribunal
ultimately granted the claim, including liquidated damages.
Grounds for Appeal: The Insurance Company appealed the Tribunal's
decision, asserting that the policy was obtained through fraudulent means.
They argued that Muhammad Ali provided false information, specifically
regarding land ownership, when applying for the policy.
Legal References: The appellant cites the case of Malik Muhammad
Faisal and another v. State Life Insurance Corporation (2008 SCMR 456),
emphasizing the principle that fraud by an agent or sales representative of
an insurance company vitiates the insurance contract.
Tribunal's Decision and Flaw: The Tribunal ruled in favor of the
respondent, accepting the death claim and awarding liquidated damages.
However, the appellant contends that the deceased provided incorrect
information about land ownership, constituting fraud. The appellant
argues that fraud in obtaining the policy renders it void, citing the
universal recognition of this principle.
Legal Precedent: The judgment refers to the case of Malik Muhammad
Faisal, where the Supreme Court held that false statements in a proposal
form, whether by the assured or the agent, absolve the insurance company
of liability under the contract.
Appellate Court's Decision: The appellate court sets aside the Tribunal's
decision, asserting that it erred in law by allowing the respondent's claim.
The court concludes that the policy was obtained through fraudulent
means, rendering it unsustainable at law.
Conclusion: The judgment emphasizes the principle that fraud in
obtaining an insurance policy vitiates the contract. The court upholds this
principle, setting aside the Tribunal's decision and denying the death claim
and liquidated damages to the respondent/nominee.
Legal Reference:
Malik Muhammad Faisal and another v. State Life Insurance
Corporation (2008 SCMR 456)
JUDGMENT
Brief facts of this regular first appeal are that Muhammad Ali deceased
husband of the respondent/nominee purchased life insurance policy
No.50-9758771-1704 dated 20.01.2004, proposal No. 874108, amounting
to Rs.5,00,000/- from appellants/State Life Insurance Corporation of
Pakistan ("Insurance Company") and deposited certain amount, however,
he died on 10.03.2004 due to heart attack and after his demise,
respondent/wife/nominee filed an application to appellants/Insurance
Company for death claim of her deceased husband according to contract
policy but the appellant/Insurance company refused to allow the death
claim. Thereafter respondent/nominee filed a complaint before Chairman
State Life Insurance but her grievance was not redressed whereupon she
moved another application to Wafaqi Ombudsman who gave
recommendations in favour of respondent/applicant on 04.07.2007,
against which appellants/Insurance Company filed review petition before
Mohtasib Islamabad and the same was declined. The appellant/Insurance
Company moved representation before the President of Islamic Republic
of Pakistan and the matter was remanded to the Wafaqi Mohtasib but
Wafaqi Mohtasib confirmed his previous findings vide report dated
27.01.2015. The respondent/applicant filed writ petition which was
disposed of and thereafter respondent/applicant filed application for
insurance claim before the learned Insurance Tribunal Punjab Jhang
("Tribunal") which was contested by the appellants/Insurance Company,
issues were framed by the learned Tribunal and after recording evidence
of the parties and hearing the arguments advanced by both the parties, the
learned Tribunal accepted the claim of respondent/applicant vide
judgment dated 04.03.2020 in the following terms:-
17. Application of the petitioner is hereby allowed. The petitioner is
entitled to receive death claim in accordance with the policy. She is also
entitled to claim liquidated damages.
2. Aggrieved by findings of impugned judgment dated 04.03.2020, this
regular first appeal has been filed by the appellants/Insurance Company
and challenged the validity of the judgment passed by the learned
Tribunal. We have heard the arguments of the learned counsel for the
appellants and have minutely gone through record and the impugned
judgment.
3. Perusal of record reveals that the applicant/nominee filed an
application for death claim of her deceased husband namely Muhammad
Ali along with its benefits, profits, and bonus and the learned Additional
District Judge/Chairman Insurance Tribunal Jhang through judgment
dated 04.03.2020 allowed the application and declared the
applicant/respondent entitled to receive death claim in accordance with
policy as well as liquidated damages. The assured namely Muhammad Ali
purchased life insurance policy bearing No. 509758771-0 for a sum
assured on Rs.5,00,000/-/commencing from 26.01.2004 under table and
term 03/20 with supplementary contract ADB with annual premium
Rs.26,045/- and respondent was named as "nominee" in the policy
documents for sum of Rs.5,00,000/- by declaring himself as owner of 45
acres of agricultural land with 25 acres of land on lease vide proposal form
dated 20.01.2004 and the appellant issued Insurance Policy on 26.01.2004
and thereafter policy holder died on 14.03.2004. The deceased husband of
the respondent/nominee himself filed an application to the Chairman
Insurance Tribunal conceding about the furnishing of incorrect details of
insurance policy, hence, the appellants/Insurance Company issued life
insurance policy No. bearing No. 509758771-0 on the basis of false
information and he was not owner of any land and he was just holding
land on lease. This fact is also confirmed from the deposition of AW.1,
Qaisar Abbas son of Peer Bakhsh attorney of
respondent/applicant/nominee who conceded that assured/husband of
the applicant/respondent was just cultivating land measuring 7-acres on
lease and was not owner of any land. Hence, policy was obtained by
furnishing incorrect information and fake particulars and the policy was
obtained by practicing fraud. It appears appropriate to refer the case law,
which is apt to the subject in hand titled Malik Muhammad Faisal and
another v. State Life Insurance Corporation through Chairman and 2
others (2008 SCMR 456) wherein the Hon'ble Supreme Court of Pakistan
had held as under:-
"We endorse the view of the High Court and feel appropriate to
reproduce portions of the judgment, which read as under:
".......Fraud of the agent of Sales Representative of an Insurance
company vitiates the contract of Insurance itself and this happens to be
proposition universally recognized. In Lakshmishankar Kanji Rawal v.
Gresham Life Assurance Society Ltd. (1), it was held that false statement
in a proposal form whether at the instance of the assured or of the agent
absolves the company of the liability under the contract."
4. In view of the foregoing discussion, we are of the affirmed view that
the learned Tribunal erred in law in allowing the application of the
respondent/applicant vide impugned judgment dated 04.03.2020 and the
same is not sustainable at law, hence, the same is hereby set-aside by
allowing this regular first appeal.
SEPCO-III ELECTRIC POWER CONSTRUCTIONS CO. LTD.---Petitioner Versus FEDERATION OF
PAKISTAN through Secretary Ministry of Energy and 2 others---Respondents

 JUDGMENT
Background: The case involves a tender floated by NTDC for a sub-
station project. The appellant, SEPCOIII, participated in the tender but
faced issues with the Bank Letter of Credit Promise. After attempts to
resolve the issue, NTDC considered the bid withdrawn, leading to the
appellant's writ petition, which was dismissed by the Single Judge.
Appellant's Argument: The appellant contends that NTDC's actions are
arbitrary, violating principles of fair and transparent exercise of executive
discretion. The annulment of financial commitments by two banks does
not constitute bid withdrawal. The appellant questions the legality of
NTDC's demand for encashment of the bid guarantee.
Legal References: The appellant relies on legal precedents, including
judgments reported as 2010 SCMR 523, PLD 2012 (Lahore) 503, PLD
2010 (Peshawar) 110, 2012 CLD 1734, 2017 CLC 178, 2014 SCMR 676,
and PLD 2017 SC 83, 2016 CLD 1833, to support its argument on fair
exercise of executive authority.
NTDC's Response: NTDC argues that the appellant's intentional failure
to submit a third Letter of Credit Promise suggests non-compliance with
bid requirements. NTDC claims to have acted transparently and with
bona fide intention, supporting its actions under the principles of the
tender.
Court's Findings: The court notes the sequence of events, highlighting the
appellant's failure to submit a third Letter of Credit Promise after the
annulment of the second. It suggests that the appellant, prima facie, is not
interested in fulfilling bid obligations and possibly withdrew from the bid.
The court emphasizes that such determinations should be made in a forum
with plenary jurisdiction, considering oral and documentary evidence.
Bank Guarantee and Autonomy: The court affirms the autonomy of the
Bank Guarantee, stating that the bank issuing the guarantee is not
concerned with the underlying contract. It cites judgments such as "Messrs
National Construction Ltd. v. Aiwan-e-Iqbal Authority" (PLD 1994 SC
311) and others to support this principle.
Constitutional Jurisdiction: The court underscores that constitutional
jurisdiction is not suitable for matters involving contractual obligations,
disputes of fact, or enforcement of contracts. It suggests that ordinary civil
procedures should handle these cases.
Conclusion: The appeal is dismissed as lacking substance, emphasizing
that the appellant's remedy lies in a suit for enforcing contractual rights
and obligations, not in the invocation of Article 199 of the Constitution.
Legal References:
"Messrs National Construction Ltd. v. Aiwan-e-Iqbal Authority" (PLD
1994 SC 311)
"Shipyard K. Damen International v. Karachi Shipyard and
Engineering Works Ltd." (PLD 2003 SC 191)
"Atif Mehmood Kiyani and another v. Messrs Sukh Chain Private
Limited, Royal Plaza, Blue Area, Islamabad and another" (2021
SCMR 1446)
JUDGMENT
Brief facts necessary for the adjudication of this appeal are that the
respondent No. 2/NTDC floated a tender for procurement of plant,
design, supply, installation, testing and commissioning of 500/220/132
KV Lahore North Sub-station and Extension Works at 500/220/132 KV
Nokhar Sub-Station, in May 2021 and the appellant/SEPCOIII
participated in the tender by submitting its letter of bid dated 24.6.2021
along with its financial statement of years 2015-2019, a Bank Letter of
Credit Promise dated 22.6.2021 issued by Agricultural Bank of China
(ABC) and bid security in the form of Bank Guarantee dated 23.06.2021,
issued by the respondent No.3/Deutsch Bank AG in favour of respondent
No.2/NTDC. During the process of evaluation of the bid, the respondent
No.2 intimated the appellant/Company for the furnishing of
unconditional credit line as Bank Letter of Credit Promise was
conditional. Agricultural Bank of China (ABC) was not willing to amend
its Bank Letter of Credit Promise. Hence, the appellant/company
furnished another/second Bank Letter of Credit Promise dated
10.06.2021, issued by Industrial and Commercial Bank of China Limited
(ICBCL) but the ICBCL annulled second Bank Letter of Credit Promise
dated 07.09.2021. Thereafter, due to the withdrawal of two Letters of
Credit Promise, the respondent No.2 assumed that appellant/company
withdrew its bid and in consequence, the respondent No.2 proceeded to
write a letter dated 22.10.2021 to the respondent No.3, seeking
encashment of the bid guarantee which was declined/rejected by the
respondent No.3 through letter dated 27.10.2021. Apart from
abovementioned letters, the appellant/company has also mentioned
different letters, sent by the contesting parties to each other. Aggrieved by
the demand of respondent No.2 and action(s) of respondents Nos.1 and
2/NTDC, the appellant filed a Writ Petition and learned Single Judge in
chamber was pleased to dismiss the same vide judgment dated 01.11.2021.
Being dissatisfied with the judgment dated 01.11.2021, appellant has filed
instant appeal.
2. Learned counsel for the appellant/SEPCOIII argues that in view of
settled principle of law, all executive discretion must be exercised in a fair
and transparent manner on the basis of cogent reason and rationale
supporting the same and the impugned actions are based on an arbitrary
exercise of executive authority while the respondent No.2/NTDC treated
the annulment of the financial commitments by the two independent
financial institutions as withdrawal from the bid by the appellant which is
against the express provisions of tender. During the arguments, on the
query about the appellant's preparedness/any intention to furnish/submit
third Letter of Credit Promise from any Bank, learned counsel for the
appellant's reply is vague and has not shown any intention of the appellant
of furnishing/submitting fresh unconditional Letter of Credit Promise.
Further argues by interpreting the terms of tender and by drawing our
attention to tender documents that impugned action(s) of respondents
Nos.1 and 2 including of respondent No.2 for encashment of bank
guarantee is in direct contradiction of the provisions of the tender as well
as bid security and the appellant has no intention to withdraw from the
bid under section 26 of ITB or even otherwise. To strengthen his
argument, learned counsel for the appellant relies on the judgments of
superior courts reported as 2010 SCMR 523, PLD 2012 (Lahore) 503,
PLD 2010 (Peshawar) 110, 2012 CLD 1734, 2017 CLC 178, 2014 SCMR
676 and PLD 2017 SC 83, 2016 CLD 1833 etc. Learned counsel for the
respondent No.3/Deutsche Bank AG simply supports the rejection letter,
issued by the respondent No.3 and also adopts the arguments of learned
counsel for the appellant. On the other hand, apart from raising other legal
and factual points, learned counsel for the respondents Nos.1 and 2 mainly
argues that annulment of the financial commitments by the two
independent financial institutions on behalf of appellant is a withdrawal
from the bid by the appellant and appellant has taken no concrete step(s)
to continue with bid in view of terms of tender rather practically withdrew
from the bid and the appellant is agitating against the acts of respondents
Nos.1 and 2 with mala fide intention, simply to seek protection from the
encashment of the Bank Guarantee and not to perform its obligation under
the terms of the bid while the respondents Nos.1 and 2 acted with bona
fide intention to allow the appellant (a) to submit second unconditional
Letter of Credit Promise (b) to provide favourable circumstances to the
appellant in bid proceedings and all the actions of respondents Nos.1 and
2 were/are based on the principles of transparency. Further argues that
appellant has raised disputed questions of facts and same cannot be dealt
with by the High Court in its constitutional jurisdiction and also fully
supports the judgment of learned Single Judge by relying on plethora of
judgments reported by the Honorable Superior Courts.
3. We have heard the arguments of learned counsel for the parties and
minutely gone through the record as well as the impugned judgment.
4. There is no denial of the facts that the respondent No.2 floated a
Tender No. ADB-300Ar-2021 for procurement of plant, design, supply,
installation, testing and commissioning of 500/220/132 KV Lahore North
Sub-station and Extension Works at 500/220/132 KV Nokhar Sub-station
and appellant duly participated in the Tender by submitting its letter of bid
dated 24.6.2021 along with its financial statement, Bank Letter of Credit
Promise dated 22.06.2021, issued by Agricultural Bank of China (ABC)
and bid security in the form of bank guarantee dated 23.6.2021, issued by
respondent No. 3/bank in favor of respondent No.2/NTDC. In terms of
bank guarantee, the respondent No.2 had/has the right to demand
payment under the bank guarantee, in case the appellant withdraws its bid.
The respondent No.2/NTDC intimated the appellant through letter dated
05.08.2021 for furnishing of unconditional credit line from the concerned
bank due to the issuance of conditional Bank Letter of Credit Promise
dated 22.6.2021 by Agricultural Bank of China (ABC) and appellant
responded to the respondent No.2/NTDC through letter dated 06.08.2021
about the inability/unwillingness of Agricultural Bank of China (ABC) to
amend its Letter of Credit Promise and also furnished/submitted
another/second Bank Letter of Credit Promise dated 10.06.2021, issued
by Industrial and Commercial Bank of China Limited (ICBCL). ICBCL
annulled second Bank Letter of Credit Promise dated 10.06.2021 due to
Covid-19 etc vide letter dated 07.09.2021. Hence, respondent No.2
proceeded to issue an encashment of Bank Guarantee through letter dated
22.10.2021 by informing the respondent No.3/Bank that "the bidder has
violated the subject Tender Documents clauses during the validity of his
bid. It is therefore requested to encash the … bid guarantee in favor of CE
(MP&M) NTDC but vide letter dated 27.10.2021, the Respondent
No.3/Bank rejected/declined the request of respondent No.2/NTDC.
The respondent No. 2 reiterated its demand of the encashment of the bank
guarantee vide letter dated 28.10.2021, sent to the respondent No.3/Bank.
By admitting all the facts narrated above, learned counsel for the
appellant/Company had vehemently argued that the appellant never
withdrew its bid and procedure for the withdrawal of bid is provided in
the instructions of Bidders (ITB) of the tender and specifically in section
26 but is unable to answer the query about the appellant's
preparedness/any intention to furnish/submit third unconditional Letter
of Credit Promise from any Bank in order to show appellant's
readiness/interest to perform its obligations and fulfill the Tender
Conditions because the respondent No.2/NTDC duly intimated the
appellant about issuance of conditional Letter of Credit Promise dated
22.06.2021 by Agricultural Bank of China (ABC) through letter dated
05.08.2021 and for furnishing of unconditional Letter of Credit Promise
as unconditional credit line from Bank was required. Thereafter, the
appellant contacted its Bank (ABC) for issuance of unconditional Letter
of Credit Promise and on Bank's refusal, sent letter dated 06.08.2021 to
the respondent No.2. Relevant portion/part of that letter is reproduced
hereunder;
"We have contacted our Bank i.e. Agricultural Bank of China for the
revision in the Letter of Credit Promise as per your office requirement.
However, this Bank has informed that the issued the letter of Credit
Promise is as per their standard format and cannot be amended. Therefore,
we are submitting Letter of Credit Promise/Facilities from other Bank i.e.
Industrial and Commercial Bank of China fulfilling your office
requirement".
Hence, without raising any objection on the demand of the respondent
No.2/NTDC to furnish unconditional Letter of Credit Promise, the
appellant/company submitted second unconditional Letter of Credit
Promise issued by another Bank (ICBCL), as required in view of bid
documents. Narration of abovementioned events/steps taken by the
appellant and respondents Nos. 1 and 2 firmly discloses that after the
annulment of second Bank Letter of Credit Promise dated 10.06.2021 by
the concerned Bank and the appellant's intentional failure to submit third
unconditional Letter of Credit Promise to the respondent No.2/NTDC,
the appellant is, prime facie, not interested in performing its obligations
and honouring its commitments as per the requirements of bid documents
and arguably, withdrew its bid and only filed the writ petition as well as
instant appeal to seek protection from the encashment of the Bank
Guarantee. Needless to say that it is to be finally determined only by the
court having plenary jurisdiction after recording the oral and documentary
evidence as and when so approached to the forum concerned.
5. In rejection letter dated 27.10.2021, the respondent No.3/Bank has
not denied the issuance of Bank Guarantee but only refused to encash the
same by requesting the respondent No.2 to re-lodge the claim in
accordance with Guarantee terms by providing written statement stating
that bidder is in breach of any one of the (a), (b), (c) point upon claim.
With regards to the bank guarantee, there is no cavil to the proposition
that Bank Guarantee being an independent/autonomous contract
between the Bank and Customer, Bank authorities must construe it
independent of the principle/primary contract. Bank Guarantee furnished
by the respondent No.3/Bank contains undertaking and imposes absolute
obligations on the Bank to pay the amount, irrespective of any dispute
between the parties to the principle contract. There is an absolute
obligation upon the banker to comply with the terms as enumerated in the
bank guarantee and to pay the amount stipulated therein and Bank cannot
be prevented by the party at whose instance Guarantee was issued, from
honoring the credit guaranteed. Through letter dated 22.10.2021,
respondent No.2/NTDC conveyed to the respondent No.3/Bank about
the intentional failure/alleged violation of the appellant/ bidder, as per
tender-document clauses during the validity of bid with the request to
encash the Bank Guarantee. In second letter dated 28.10.2021, the
respondent No.2 reiterated its stance with these words;
"This is with reference to your letter at Ref (1) which is received with
grave concern by this office. In this regard, it is mentioned that you have
irrevocably undertaken to encash the Bid Security as per para - 3(a) of Bid
Security, on first written demand by this office. Therefore, you bank is
under obligation to pay us any sum or sums not exceeding in total an
amount of USD 1,800,000 because the Bidder is in breach of its
obligation(s) under the bid conditions, as already conveyed vide letter at
Ref (2).
It is further elaborated that Messrs SEPCO III Electric Power
Construction Corporation Chine have violated the bidding process by
sabotaging the whole process and delaying the NTDC's most urgent
project by changing the substance of its bid and its withdrawal during the
period of bid validity specified by the Bidder in the Letter of Bid. The
Notice served upon the bidder by this office detailing the reasons is
attached herewith for reference.
We once again reiterate to encash the above mentioned bid guarantee
in favour of Chief Engineer (MP&M) NTDC as per para - 3(a), without
further delay.
This office reserves all its rights in case necessary action is not taken
in the light of delineations mentioned above. The matter may be
considered as "Most Urgent".
The rule is well-established that a Bank issuing a Guarantee is not
concerned with underlying contract between the parties as obligations
arising under the Bank Guarantee are independent of the obligations
arising out of specific contract between parties. Reliance is placed
on judgments reported as In "Messrs National Construction Ltd. v.
Aiwan-e-Iqbal Authority" (PLD 1994 SC 311), "Shipyard K. Damen
International v. Karachi Shipyard and Engineering Works Ltd." (PLD
2003 SC 191) and "Atif Mehmood Kiyani and another v. Messrs Sukh
Chain Private Limited, Royal Plaza, Blue Area, Islamabad and another"
(2021 SCMR 1446). Hence, respondent No.2 cannot be restrained from
encashing the Bank Guarantee.
6. Contractual rights, commitments, undertakings and obligations have
to be enforced through courts of ordinary jurisdiction and should not be
interfered with by this Court while exercising its constitutional jurisdiction
especially in those matters arising out of a contractual obligations.
Violation of a contract or failure to abide by the terms and conditions
mentioned therein or to honour obligations arising out of an agreement
cannot be decided in exercise of constitutional jurisdiction. The superior
Courts should not involve themselves into investigations of disputed
question of fact which necessitate taking of evidence. This can more
appropriately be done in the ordinary civil procedure for litigation by a
suit. This extraordinary jurisdiction is intended primarily, for providing an
expeditious remedy in a case where the illegality of the impugned action
of an executive or other authority can be established without any elaborate
enquiry into complicated or disputed facts. Controverted questions of fact,
adjudication on which is possible only after obtaining all types of evidence
in power and possession of parties can be determined only by courts
having plenary jurisdiction in matter and on such ground constitutional
petition was incompetent. Hence, normal remedy under law, in such like
eventualities/disputes/controversies, being a suit for enforcement of
contractual rights and obligations, can be availed by the appellant instead
of invocation of Article 199 of the Constitution merely for the purpose of
enforcing contractual obligations.
In so far as the case law referred by the learned counsel for the
appellant is concerned, the same is distinguishable from the facts and
circumstances of the instant appeal and not applicable in this case.
7. For the reasons above, instant appeal being without substance is,
accordingly, dismissed.
MUSHTAQ AHMAD----Petitioner Versus MOHSIN IQBAL----Respondent

 Case Number: Civil Revision No.70852 of 2019
 JUDGMENT
 Case Summary:
Introduction: This judgment addresses a civil revision and a cross-
objection, both connected to a suit for specific performance of an
agreement to sell a property. The respondent/plaintiff initiated the suit,
alleging that the petitioner/defendant had entered into an agreement to
sell the property but refused to execute the sale deed. The trial court
decreed the suit, which was partially modified on appeal by the Additional
District Judge, Gujrat. The petitioner/defendant filed the civil revision,
contesting the lower court's judgment, while the respondent/plaintiff filed
a cross-objection challenging the appellate court's findings.
Cross-Objection Dismissed: The judgment starts by discussing the cross-
objection filed by the respondent/plaintiff. The appellate court had partly
accepted the petitioner/defendant's appeal with a specific direction that
the respondent should pay an enhanced consideration amount of Rs.
3,00,000 within 30 days. The respondent/plaintiff filed an application to
deposit the enhanced amount, but it was dismissed by the appellate court
due to a delay of more than five months. Despite this, the
respondent/plaintiff filed a cross-objection.
The court holds that by filing the application before the appellate court to
deposit the enhanced amount, the respondent/plaintiff voluntarily
admitted his liability and willingness to comply with the decree. Such an
admission, even if implied, before a court should be respected and given
sanctity. The court emphasizes that any admission before the court
operates as legal estoppel, preventing a party from raising inconsistent
pleas in judicial proceedings. Therefore, after filing and dismissal of the
application, the respondent/plaintiff cannot challenge the appellate court's
judgment and decree through a cross-objection. Consequently, the cross-
objection is dismissed.
Revision Petition Dismissed: The judgment then addresses the revision
petition filed by the petitioner/defendant. The appellate court's judgment
partly accepted the appeal with the condition that if the respondent did not
pay the enhanced amount within 30 days, the entire appeal would be
deemed accepted. Since the respondent's application to deposit the
amount was dismissed, the petitioner/defendant claimed that the appeal
should be deemed accepted as a whole.
The court upholds the appellate court's judgment, as it specifically stated
that non-compliance with the payment direction would result in the appeal
being deemed accepted. Consequently, the revision petition is dismissed
as infructuous.
JUDGMENT
MASUD ABID NAQVI, J.----Through this judgment, I intend to
decide instant civil revision along with connected Cross Objection
No.16293 of 2020 involving common questions of law and facts.
2. Brief facts necessary for the adjudication of this lis are that the
respondent/plaintiff filed a suit for specific performance of an agreement
to sell dated 29.07.2009 on the averments that the petitioner/ defendant
entered into a written agreement to sell for the sale of suit property for a
total sale consideration of Rs.950,000/- and respondent/plaintiff also paid
an amount of Rs.150,000/- as earnest money to the petitioner/defendant.
On the refusal of petitioner/ defendant to execute sale deed, the
respondent/plaintiff was constrained to file instant suit. The
petitioner/defendant filed contesting written statement and raised certain
legal as well as factual objections. Out of divergent pleadings of the parties,
issues were framed by the learned Trial Court and the parties led their
respective oral and documentary evidence. After hearing the arguments
advanced by both the contesting parties, the learned Trial Court vide
judgment and decree dated 27.08.2018 decreed the suit. Feeling aggrieved,
the petitioner/ defendant preferred an appeal and the learned Additional
District Judge, Gujrat partly accepted the appeal vide judgment and decree
dated 18.05.2019. Being dissatisfied, the petitioner/defendant has filed the
instant civil revision by challenging the validity of the impugned
judgments and decrees passed by the learned courts below while
respondent/plaintiff also filed cross-objection bearing No.16293-2020 and
challenged the validity of the judgment and decree passed by the learned
appellate court.
judgments and decrees passed by the learned courts below.
4. It is imperative to firstly discuss and adjudicate upon the cross-
objection in the revision petition, filed by the respondent/plaintiff, because
the findings in the cross-objection will certainly affect the fate of revision
petition.
Learned appellate court partly accepted the petitioner/ defendant's
appeal vide judgment and decree dated 18.05.2019 with the findings which
are reproduced hereunder;
"Keeping in view peculiar circumstances of the case, it is directed that
respondent shall further pay Rs.3,00,000/- as enhanced consideration
amount within 30 days. Consequently the appeal is partly accepted. It is
hereby clarified if the respondent fails to pay the enhanced consideration
amount of Rs.3,00,000/- within 30 days, the appeal shall be deemed to
have been accepted as a whole and respondent would be entitled to return
of consideration mount of Rs.9,50, 000/- paid by him."
Instead of challenging the validity of the judgment and decree passed
by the learned appellate court, the respondent/plaintiff filed application
before learned appellate court for seeking permission to deposit the
enhanced consideration amount of Rs.3,00,000/- on 07.11.2019 but the
same was dismissed by the learned appellate court on 29.01.2020 because
the respondent/plaintiff filed the application with the delay of more than
five (05) months while the respondent/ plaintiff was directed by the
learned appellate court to pay the enhanced consideration amount of
Rs.3,00,000/- within 30 days and no reason/ground, whatsoever, is
mentioned in the application for the delay. Thereafter, by intentionally
concealing the dismissal of his application, the respondent/plaintiff filed
cross-objection before this Court on 28.02.2020.
By simply scanning the abovementioned facts, there remains no doubt
that by filing application before the learned appellate court, the
respondent/plaintiff voluntarily and expressly showed his willingness to
pay the decretal amount for enforcement/implementation of decree
passed by the learned appellate and filing of said application by the
respondent/plaintiff amounts to admission of his liability regarding the
decretal amount. An admission, even implied, by a party, before the court
during the judicial proceedings has to be given sanctity while applying the
principle of estoppel as well as to respect moral and ethical rules and if
retraction therefrom is allowed as a matter of right, then it will definitely
result into distrust of the public litigants over the Judiciary and would
damage the sacred image of the Courts that they are not capable to
implement the orders passed by them in the judicial proceedings. Any such
admission even implied or statement given before the court of law will
operate as legal estoppel (words used by the Hon'ble Supreme Court of
Pakistan in number of cases) and estoppel by conduct against a party
making such admission or giving such a statement or understanding. The
doctrine of estoppel enacted in Art. 114 of Qanun-e-Shahadat Order, 1984
is, in fact, an equitable doctrine, a rule of exclusion, which implies that if
a person has by act or omission altered his position, he will be estopped
and be precluded or debarred from denying it or take a position so as to
alter his position to the determinant of the other person/the opposite party
and prevents the litigant from raising inconsistent plea(s) in judicial
proceedings by disallowing the litigant from blowing hot and cold at the
same time. Filing of application by the respondent/plaintiff for paying the
enhanced consideration amount of Rs.3,00,000/- amounts to not only his
admission of liability under the decree but will also be considered a
voluntary act by a person who is not aggrieved from the findings of learned
appellate court for the enforcement/ implementation of decree. The
dismissal of his application also creates legal right in favour of
petitioner/defendant. Hence, after the filing and dismissal of his
application before the learned appellate, the petitioner/plaintiff cannot
assail the impugned judgment and decree of learned appellate court before
this Court through instant cross-objection in the revision petition,
therefore, the cross-objection in the revision petition, filed by the
respondent/ plaintiff is hereby dismissed.
5. Learned appellate court partly accepted the petitioner/ defendant's
appeal vide judgment and decree dated 18.05.2019 with the clarification
that if the respondent fails to pay the enhanced consideration amount of
Rs.3,00,000/- within 30 days, the appeal shall be deemed to have been
accepted as a whole. In compliance with the direction of learned appellate
court for the enforcement/implementation of decree, the
respondent/plaintiff filed application for seeking permission to deposit the
enhanced consideration amount of Rs.3,00,000/- but the same was
dismissed by the learned appellate court and the cross-objection in the
instant revision petition, filed by the respondent/plaintiff is also dismissed
by this Court through detail discussion, hence, the judgment and decree
of learned appellate court will remain intact wherein it is specifically
mentioned that on the non-compliance of direction to pay the enhanced
amount,the appeal shall be deemed to have been accepted as a whole.
Therefore, the instant revision petition is also dismissed being infructuous.
BUSHRA BIBI and others---Petitioners Versus ADDITIONAL DISTRICT JUDGE and others---
Respondents
 Citation: 2022 MLD 1555

 Case Number: Writ Petition No.22594 of 2019
 JUDGMENT
 Case Summary
Background and Proceedings: The case involves a recovery suit filed
under Order XXXVII, Rule 2, C.P.C. by the respondent No.2/plaintiff on
27.07.2018, seeking Rs.48,00,000/- based on a cheque dated 12.09.2015
allegedly issued by Muhammad Yousaf, the predecessor in interest of the
defendants/petitioners who passed away on 30.11.2017. The trial court,
during the pendency of the suit, decided a preliminary issue against the
defendants on 14.03.2019. The defendants challenged this order through
a writ petition.
Legal Question at Hand: The central legal question addressed in the
judgment is whether a suit for recovery, based on a cheque under Order
XXXVII, Rule 2, C.P.C., can be filed against the legal heirs of a deceased
person who allegedly issued the disputed cheque.
Relevant Legal Provisions: The judgment cites Sections 29 and 29-A of
the Negotiable Instruments Act, 1881, to answer the legal question.
Section 29 holds a legal representative liable unless liability is expressly
limited to the assets received. Section 29-A clarifies that a person must sign
as a maker, drawer, indorser, or acceptor to be liable. The judgment
emphasizes that these provisions are crucial in determining the suit's
maintainability against the legal heirs of the deceased cheque issuer.
Court's Analysis and Decision: The court scrutinizes the record and
highlights that the alleged cheque was executed on 12.09.2015, while
Muhammad Yousaf, the executant, passed away on 30.11.2017. The court
concludes that, based on a plain reading of Sections 29 and 29-A, the
defendants/petitioners, as successors in interest, cannot be held liable
under Order XXXVII, Rule 2, C.P.C., as they were neither makers,
drawers, endorsers, nor acceptors of the cheque.
Court's Directive: Consequently, the court accepts the writ petition and
directs the trial court to return the plaint to the plaintiff/respondent No.2
under Order VII, Rule 10, C.P.C. The reasoning is that the successors in
interest of the deceased maker of the cheque cannot be sued under Order
XXXVII, Rule 2, C.P.C.
Conclusion: The judgment sets a precedent clarifying the limitations on
filing recovery suits against legal heirs in cases involving negotiable
instruments, emphasizing the need for a direct legal relationship with the
instrument's execution.
Legal Citation: The judgment relies on Sections 29 and 29-A of the
Negotiable Instruments Act, 1881, in the context of a recovery suit under
Order XXXVII, Rule 2, C.P.C.
ORDER
MASUD ABID NAQVI, J.---Briefly stated facts of the case are that
on 27.07.2018, the respondent No.2/plaintiff filed suit under Order
XXXVII, Rule 2, C.P.C. for recovery of Rs.48,00,000/- on the basis of a
cheque dated 12.09.2015 allegedly issued by Muhammad
Yousaf/predecessor in interest of defendants/petitioners who died on
30.11.2017. During the pendency of the suit, the learned trial court passed
the order dated 14.03.2019 whereby preliminary issue No.4 (whether the
defendants of the suit are not liable to be sued on the basis of cheque signed
by their father? OPD), was decided against the defendants/petitioners.
Through this writ petition, the petitioners/defendants have challenged the
legality of order dated 14.03.2019.
2. I have heard the arguments of learned counsel for parties and
minutely gone through the impugned order and the available record.
3. Perusal of record reveals that alleged cheque was executed on
12.09.2015 while the executant of the cheque namely Muhammad Yousaf
died on 30.11.2017 and the plaintiff/respondent No.2 filed suit under
Order XXXVII, Rules 1 and 2, C.P.C. for the recovery of Rs.48,00,000/-
along with markup against the legal heirs of deceased on 27.07.2018
wherein learned trial court decided issue No.4 by taking it as a preliminary
issue being a legal question and passed the impugned order dated
14.03.2019. The moot question for the decision of this petition is that
whether suit for recovery on the basis of cheque under Order XXXVII,
Rule 2, C.P.C. can be filed against legal heirs of deceased person who had
allegedly issued disputed cheque, the provisions of Sections 29 and 29-A
of Negotiable Instruments Act, 1881 are relevant for the answer of this
proposition which are reproduced hereunder:-
"29. A legal representative of a deceased person who signs his name
to a promissory note of exchange or cheque is liable personally thereon
unless he expressly limits his liability to the extent of the assets received
by him as such.
29-A No person is liable as maker, drawer, indorser or acceptor of a
promissory note, bill of exchange or cheque who has not signed it as such.
Provided that where a person signs any such instrument in a trade or
assumed name he is liable thereon as it he had signed in his own name."
After plain reading of the above mentioned provisions, there remains
no doubt that defendants/ petitioners who are neither makers, drawers, or
endorsers nor acceptors of cheque and even presentation for encashment
and dishonoring of the alleged cheque during life time of Muhammad
Yousaf/predecessor in interest of defendants/petitioners cannot legally
authorize plaintiff/ respondent No.2 to institute suit under Order
XXXVII, Rule 2, C.P.C. against present petitioners/defendants /
successors in interest of the deceased Muhammad Yousaf, hence, suit was
not maintainable before trial court. Accordingly, this writ petition is
accepted and learned trial court is directed to return plaint in the suit titled
Nasir Iqbal v. Bushra Bibi and others (sic) to the plaintiff/respondent
Nos.2 under Order VII, Rule 10, C.P.C. for filing before the appropriate
forum as the successors in interest of maker of the cheque cannot be sued
under Order XXXVII, Rule 2, C.P.C. Parties are directed to appear before
the learned trial court on 14.10.2021.
ASMA PARVEEN Versus The SECRETARY SCHOOL EDUCATION, CIVIL SECRETARIAT LAHORE
and 4 others
 Citation: 2022 PLC SERVICE 1021

 Case Number: I.C.A. No.4266 of 2022, in Writ Petition No.30309 of 2019
 JUDGMENT
Issue: The appellant challenged the validity of an order dismissing their
writ petition. The case involved the termination of a contract employee
due to poor performance. However, the appellant's conduct in concealing
facts during the legal proceedings was questioned.
Concealment of Facts and Court's Discretion: The Court highlighted the
appellant's duty to provide complete and truthful information when
seeking equitable relief. Deliberate suppression of facts was deemed a form
of fraud. Several legal precedents were cited to support the principle that
concealment or misrepresentation of material facts could lead to dismissal
of the petition without delving into its merits.
Abuse of Court Process: The act of filing a writ petition based on
deliberate suppression and concealment of facts was regarded as an abuse
of the court process. Such actions not only disrupt justice but also erode
public trust in the legal system. The Court stressed that it had a fiduciary
duty to protect the judicial process from abuse.
Contractual Employment and Remedies: The appellant, being a
contractual employee, had limited rights concerning reinstatement or
extension of their contract. Legal references were provided to emphasize
that a contractual employee's recourse typically involves claiming
damages for breach of contract rather than seeking reinstatement through
constitutional jurisdiction.
Dismissal of the Appeal: The Court found no merit in the appellant's
case, noting the failure to substantiate valid grounds for setting aside the
impugned order. As a result, the appeal was dismissed outright.
Legal References Cited:
 Abdur Rashid v. Pakistan, 1969 SCMR 141

 Nawab Syed Raunaq Ali v. Chief Syed Settlement Commissioner,
PLD 1973 SC 236
 Wali Muhammad v. Sakhi Muhammad, PLD 1974 SC 106
 Daulat Singh v. The Deputy Commissioner, Karnal, AIR 1972
Punjab and Haryana 28
 Corporation of Calcutta v. Narayan Chandra Das, AIR 1957
Calcutta 447
 Ministry of IPC through Secretary v. Arbab Altaf Hussain, 2014
SCMR 1573
 Federation of Pakistan through Secretary Law v. Muhammad
Azam Chattha, 2013 SCMR 120
 S.S. Shetty v. Bharat Nidhi, Ltd., AIR 1958 SC 12
Conclusion: The judgment highlighted the duty of litigants to present

complete and truthful information, the consequences of concealing
material facts, and the limited remedies available to contractual
employees. It ultimately dismissed the appeal due to the lack of merit in
the appellant's case.
JUDGMENT
Through this Intra Court Appeal, the appellant has challenged the validity
of the order dated 17.11.2021 passed by the learned Single Judge-in-
chamber whereby writ petition filed by the appellant was dismissed.
2. We have taken into consideration the arguments advanced by
learned counsel for the appellant and perused the record.
3. Perusal of record reveals that appellant was a contract employee as
SESE (Science) Government Girls Elementary School but her contract
was terminated on the basis of poor performance/un-satisfactory report of
Headmistress vide order dated 16.06.2017. Although, the appellant's
constitutional petition was dismissed but learned Division Bench accepted
I.C.A. No.105593/2017 with these observations;
"7. In view of the above discussion, instant petition is allowed in
the terms that impugned order dated 19.07.2017, passed by learned Single
bench of this Court, is hereby set-aside, resultantly, termination order
dated 16.06.2017, passed by respondent No.2, is declared to be illegal and
without lawful authority. Office is directed to transmit copies of this order
and writ petition as well as instant appeal, along with annexures, to
respondent No.2, with a direction to proceed in the matter afresh, strictly
in accordance with law, keeping in view the observations made
hereinabove. This exercise shall be accomplished preferably within a
period of thirty days from the date of receipt of certified copy of this order.
Compliance report shall be furnished to this Court through Deputy
Registrar (Judicial)."
In compliance with the direction of learned Division Bench, a
regular inquiry officer was appointed who conducted regular detailed
inquiry and sent her recommendations to the competent authority on
02.10.2018 as charge No.2 was partially proved against the appellant.
Thereafter, competent authority/DEO(W-EE) imposed minor penalty of
censure under Section 4(a)(I) of PEEDA Act, 2006 vide order dated
16.11.2018 after (i) receiving the reply from appellant and (ii) personal
hearing, which was challenged by the petitioner by filing Writ Petition
No.9820/2019 and the same was converted into appeal under Section 16
of the PEEDA Act on the desire of the appellant's counsel and was
remitted to CEO Education with the direction to decide the same after
providing proper hearing to all the concerned including the appellant. The
appellate authority/CEO Education dismissed the appellant's appeal vide
order dated 27.03.2019.
Although, the appellant/petitioner disclosed the facts partially in
her writ petition but intentionally concealed certain facts especially the
decision of appellate authority/CEO Education or any other proceedings
before any forum/court, thereafter. During the arguments before the
learned Single Judge in Chamber, the learned A.A.G. disclosed about the
pendency of Writ Petition No. 21760/19 wherein the appellant not only
challenged the order dated 27.03.2019, passed by the appellate
authority/CEO Education in compliance to the order of learned Single
Judge in Chamber in Writ Petition No.9820/2019 but also again
challenged the order dated 16.11.2018, passed by the competent
authority/DEO(W-EE). Conduct of the appellant in filing constitutional
petition by concealing certain facts is a classic manifestation of an attempt
to thwart the administration of justice and suppression and concealment
of material facts with the object to mislead the Court which is an abuse of
the process of the Court. The conduct of the present appellant in filing writ
petition along with affidavit by concealing and suppressing facts is
deplorable and reprehensible which can neither be ignored nor taken it
lightly.
4. *The Court is dependent on the averments made in the petition
supported by an affidavit on the first date of hearing. It is a fundamental
principle, rather a pre-requisite, that the person seeking equitable relief
must approach the Court, by making full, candid, truthful, frank and open
disclosure of all the relevant facts, particularly the facts having a bearing
on the merits of the case. In The Black's Law Dictionary, suppression of
facts is defined as, "preventing the facts from being seen, heard or known"
which inevitably leads to suppression of the truth, a kind of fraud. The
jurisdiction of this Court under Article 199 of the Constitution is
discretionary and equitable in character. The appellant seeking to invoke
its extra ordinary jurisdiction ought to come with clean hands because "he
who seeks equity must come to the Court with clean hands". Where the
petitioner has not stated relevant facts correctly or candidly rather has
suppressed, misstated or misrepresented the material facts, this by itself is
sufficient for an outright dismissal of instant petition without going into
merits. These principles are well settled, inter-alia, elucidated in "Abdur
Rashid v. Pakistan and others", 1969 SCMR 141, "Nawab Syed Raunaq
Ali and others v. Chief Syed Settlement Commissioner and others", PLD
1973 SC 236, "Wali Muhammad and others v. Sakhi Muhammad and
others", PLD 1974 SC 106, "Rana Muhammad Arshad v. Additional
Commissioner (Revenue), Multan Division and others", 1998 SCMR
1462, "Thakur Dan Singh Bist, and others v. Registrar of Companies",
AIR 1960 Allahabad 160, "Daulat Singh and others v. The Deputy
Commissioner, Karnal and others", AIR 1972 Punjab and Haryana 28 and
"Corporation of Calcutta v. Narayan Chandra Das", AIR 1957 Calcutta
447.
5. Suppression or concealment of relevant facts has been rightly
termed as a "jugglery which has no place in the equitable and prerogative
jurisdiction". The writ petition, without any doubt, is based on deliberate
suppression and concealment of facts. The conduct of the appellant has
severe consequences for administration of justice. It subverts the course of
justice for other bona fide litigants by clogging the judicial system and
gives rise to mistrust of the legal system. It causes delay for others by
wasting public time and loss to the exchequer. It is an abuse of the process
of the court and courts, therefore, have the duty to protect the process from
being abused. This is in the nature of a fiduciary duty which the courts
owe towards the public and bona fide litigants. Obstinate litigants causing
abuse of the process of the court undermine the public confidence in the
administration of justice and the courts. Being conscious of this onerous
duty, court cannot show leniency when its process is abused, despite the
fact that grace and magnanimity is its essential attributes. The appellant's
conduct is obviously beyond recklessness, rather deliberate. The conduct
can neither be condoned nor can be taken lightly. However, even after
discussing the conduct of the petitioner/appellant in filing writ petition
with certain concealment of facts, learned Single Judge in Chamber has
taken a lenient view by not imposing fine on the petitioner/appellant.
6. The appellant was appointed purely on contract basis for the period
initially for five years, extendable for further five years on the basis of good
performance on 24.04.2014 and on the basis of recommendation of
Scrutiny Committee, the competent authority/DEO passed the impugned
order dated 24.04.2019 by simply relieving the appellant from the duty
after the expiry of the contract. It is important to note that the employment
of appellant was contractual in nature and being a contractual employee,
the appellant has no automatic right to continue her job unless same has
specifically been provided in a law. Being a contractual employee, the
relationship between the appellant and respondent/Government of
Punjab will be governed by the principle of master and servant and the
appellant has to serve till the satisfaction of her master. Hence, in view of
established principle of law that a contract employee is debarred from
approaching this Court in its constitutional jurisdiction for re-instatement
or extension of contract and only remedy available to a contract employee
is to file suit for damages alleging any breach of contract or failure to
extend the contract. The Courts cannot force the employer to reinstate or
extend the contract of employee, even in case of any wrongful termination.
Reliance is placed on case reported as "Ministry of IPC through Secretary
and others v. Arbab Altaf Hussain and others" (2014 SCMR 1573).
Relevant portion of the judgment is reproduced herein below:-
"Secondly, the employment(s) of the said respondents admittedly
was contractual in nature and their services were terminated after due
notice as per their contractual terms and conditions of service. And even
on this account the writ petitions were incompetent and had to fail.--------
So the writ petitions filed by all other respondents, as mentioned earlier,
were liable to be dismissed on these scores."
Reference may also be made to the case titled as "Federation of
Pakistan through Secretary Law, Justice and Parliamentary Affairs v.
Muhammad Azam Chattha" (2013 SCMR 120). Relevant portion of the
judgment is reproduced herein below:-
"In addition to it, it is a cardinal principle of law that a contract
employee instead of pressing for his reinstatement to serve for the leftover
period can at best claim damages to the extent of unexpired period of his
service. 15. In Halsbury's Laws of England (3rd Ed.) Vol. 11, p.244 Para
414, it is stated that the measure of damages for wrongful dismissal, is the
loss thereby incurred, and that would, subject to the duty of the plaintiff to
mitigate, normally be the wages due and payable for the agreed period of
service. In the case of Federation of Pakistan v. Ali Ahmed Qureshi (2001
SCMR 1733) it has been held that in view of the doctrine of master and
servant, the contract of service cannot be specifically enforced, however,
in the event of arbitrary dismissal or unwarranted termination of
employment, an employee is entitled to sue for damages equal to wages,
allowances and other benefits, which would have been otherwise due and
payable under the contract of employment. In the case of Pakistan Red
Crescent Society and another v. Syed Nazir Gillani (PLD 2005 SC 806) it
has been held that an employee of a corporation, in the absence of
violation of law or any statutory rule, cannot press into service the
Constitutional or civil jurisdiction for seeking relief of reinstatement in
service and can only claim damages against his wrongful dismissal or
termination. While holding so, reference has been made to the cases of
Mrs. M.N. Arshad v. Mrs. Naeema Khan (PLD 1990 SC 612), Messrs
Malik and Haq v. Muhammad Shamsul Islam Chowdhury (PLD 1961 SC
531), Zainul Abidin v. Multan Central Cooperative Bank Limited (PLD
1966 SC 445), Chairman, East Pakistan Industrial Development
Corporation v. Rustom Ali (PLD 1966 SC 848), Abdul Salam Mehta v.
Chairman, WAPDA (1970 SCMR 40), Lt. Col. Shujauddin Ahmad v. Oil
and Gas Development Corporation (1971 SCMR 566), R.T.A. Janjua v.
National Shipping Corporation (PLD 1974 SC 146), Principal, Cadet
College, Kohat v. Muhammad Shoab Qureshi (PLD 1984 SC 1791),
Anwar Hussain v. Agricultural Development Bank of Pakistan (PLD 1984
SC 194), Syed Akbar Ali Bokhari v. State Bank of Pakistan (PLD 1977
Lah. 234), Muhammad Yusuf Shah v. Pakistan International Airlines
Corporation (PLD 1981 SC 224) and Evacuee Trust Property Board v.
Muhammad Nawaz (1983 SCMR 1275). The same principle has been
reiterated in the case of Brig. (R.) Sakhi Marjan v. Managing Director
PEPCO (2009 SCMR 708). Reference may also be made to the case of
S.S. Shetty v. Bharat Nidhi, Ltd. (AIR 1958 SC 12) wherein the Indian
Supreme Court on the same issue has held as under:-
"The position as it obtains in the ordinary law of master and
servant is quite clear. The master who wrongfully dismisses his servant is
bound to pay him such damages as will compensate him for the wrong
that he has sustained. "They are to be assessed by reference to the amount
earned in the service wrongfully terminated and the time likely to elapse
before the servant obtains another post for which he is fitted. If the contract
expressly provides that it is terminable upon, e.g., a month's notice, the
damages will ordinarily be a month's wages. ... No compensation can be
claimed in respect of the injury done to the servant's feeling by the
circumstances of his dismissal, nor in respect of extra difficulty of finding
work resulting from those circumstances. A servant who has been
wrongfully dismissed must use diligence to seek another employment, and
the fact that he has been offered a suitable post may be taken into account
in assessing the damages." [Chitty on Contracts, 21st Ed., Vol. (2), p.559
para. 1040].
If the contract of employment is for a specific term, the servant
would in that event be entitled to damages the amount of which would be
measured prima facie and subject to the rule of mitigation in the salary of
which the master had deprived him. [Vide Collier v. Sunday Referee
Publishing Co., Ltd. (1940) 4 All E.R. 237]. The servant would then be
entitled to the whole of the salary, benefits, etc., which he would have
earned had he continued in the employ of the master for the full term of
the contract, subject of course to mitigation of damages by way of seeking
alternative employment. Such damages would be recoverable by the
servant for his wrongful dismissal by the master only on the basis of the
master having committed a breach of the contract of employment."
The ratio decidendi laid down by the Hon'ble apex Court in the
judgments mentioned supra has further been ratified in judgments
reported as Government of Khyber Pakhtunkhwa Workers Welfare Board
through Chairman v. Raheel Ali Gohar and others (2021 PLC (C.S.) 125),
Miss Naureen Naz Butt v. Pakistan International Airlines through
Chairman, PIA and others (2020 SCMR 1625) and Qazi Munir Ahmed v.
Rawalpindi Medical College and Allied Hospital through Principal and
others (2019 SCMR 648).
7. Even otherwise, in view of the availability of an alternate
efficacious remedy/claim of damages/compensation, if any, to the
appellant/a litigant under the law, constitutional jurisdiction of this Court
is also barred. Reliance can be placed on Indus Trading and Contracting
Company v. Collector of Customs (Preventive) Karachi and others (2016
SCMR 842), Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others (2011
SCMR 1813) and Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others
(PLD 2010 SC 969).
8. In view of the foregoing discussion, we are of the considered
opinion that the learned Single Judge in Chamber has exhaustively dealt
with the matter and rightly dismissed the writ petition. The appellant has
miserably failed to substantiate her case by giving valid grounds for setting
aside the impugned order. Consequently, finding no merit in this appeal,
the same is dismissed in limine.
SEPCOIII ELECTRIC CONSTRUCTIONS CO. LTD.---Petitioner Versus FEDERATION OF
PAKISTAN through Secretary and 2 others--Respondents
 Citation: 2022 PLD 628

 JUDGMENT
 1. Introduction and Background: The appeal involves a tender floated by
respondent No. 2/NTDC for a substation project. The
appellant/SEPCOIII participated in the tender but faced issues with its
Bank Letters of Credit. The respondent sought encashment of bid
guarantee, leading to the appeal.
2. Appellant's Arguments: The appellant argued that the actions of the
respondents were arbitrary and violated tender provisions. They insisted
they did not withdraw their bid and highlighted the impracticality of
submitting a third Letter of Credit.
3. Key Events and Positions: The court acknowledged the events,
including the tender participation, conditional Bank Letter of Credit, and
subsequent actions of the appellant and respondents. The appellant's
failure to provide a third unconditional Letter of Credit was seen as
indicative of their withdrawal.
4. Bank Guarantee and Encashment: The court affirmed the
independence of the Bank Guarantee and the obligation of the bank to
honor it. The respondent was within their rights to seek encashment based
on the appellant's alleged violation of the bid terms.
5. Legal Principles and Jurisdiction: The court emphasized the need for
contractual disputes to be resolved through ordinary legal channels.
Constitutional jurisdiction should be reserved for cases with clear
illegality, not for disputed factual matters.
6. Dismissal of Appeal: Considering the arguments and legal principles,
the court found the appeal lacked substance and dismissed it.
7. Legal Precedents: The court cited cases, including "Messrs National
Construction Ltd. v. Aiwan-e-Iqbal Authority" (PLD 1994 SC 311) and
"Shipyard K. Damen International v. Karachi Shipyard and Engineering
Works Ltd." (PLD 2003 SC 191), to support its legal interpretations.
JUDGMENT
Brief facts necessary for the adjudication of this appeal are that the
respondent No. 2/NTDC floated a tender for procurement of plant,
design, supply, installation, testing and commissioning of 500/220/132
KV Lahore North Sub-station and Extension Works at 500/220/132 KV
Nokhar Sub-Station, in May 2021 and the appellant/SEPCOIII
participated in the tender by submitting its letter of bid dated 24.6.2021
along with its financial statement of years 2015-2019, a Bank Letter of
Credit Promise dated 22.6.2021 issued by Agricultural Bank of China
(ABC) and bid security in the form of Bank Guarantee dated 23.06.2021,
issued by the respondent No.3/Deutsch Bank AG in favour of respondent
No.2/NTDC. During the process of evaluation of the bid, the respondent
No.2 intimated the appellant/Company for the furnishing of
unconditional credit line as Bank Letter of Credit Promise was
conditional. Agricultural Bank of China (ABC) was not willing to amend
its Bank Letter of Credit Promise. Hence, the appellant/company
furnished another/second Bank Letter of Credit Promise dated
10.06.2021, issued by Industrial and Commercial Bank of China Limited
(ICBCL) but the ICBCL annulled second Bank Letter of Credit Promise
dated 07.09.2021. Thereafter, due to the withdrawal of two Letters of
Credit Promise, the respondent No.2 assumed that appellant/company
withdrew its bid and in consequence, the respondent No.2 proceeded to
write a letter dated 22.10.2021 to the respondent No.3, seeking
encashment of the bid guarantee which was declined/rejected by the
respondent No.3 through letter dated 27.10.2021. Apart from
abovementioned letters, the appellant/company has also mentioned
different letters, sent by the contesting parties to each other. Aggrieved by
the demand of respondent No.2 and action(s) of respondents Nos.1 and
2/NTDC, the appellant filed a Writ Petition and learned Single Judge in
chamber was pleased to dismiss the same vide judgment dated 01.11.2021.
Being dissatisfied with the judgment dated 01.11.2021, appellant has filed
instant appeal.
2. Learned counsel for the appellant/SEPCOIII argues that in view of
settled principle of law, all executive discretion must be exercised in a fair
and transparent manner on the basis of cogent reason and rationale
supporting the same and the impugned actions are based on an arbitrary
exercise of executive authority while the respondent No.2/NTDC treated
the annulment of the financial commitments by the two independent
financial institutions as withdrawal from the bid by the appellant which is
against the express provisions of tender. During the arguments, on the
query about the appellant's preparedness/any intention to furnish/submit
third Letter of Credit Promise from any Bank, learned counsel for the
appellant's reply is vague and has not shown any intention of the appellant
of furnishing/submitting fresh unconditional Letter of Credit Promise.
Further argues by interpreting the terms of tender and by drawing our
attention to tender documents that impugned action(s) of respondents
Nos.1 and 2 including of respondent No.2 for encashment of bank
guarantee is in direct contradiction of the provisions of the tender as well
as bid security and the appellant has no intention to withdraw from the
bid under section 26 of ITB or even otherwise. To strengthen his
argument, learned counsel for the appellant relies on the judgments of
superior courts reported as 2010 SCMR 523, PLD 2012 (Lahore) 503,
PLD 2010 (Peshawar) 110, 2012 CLD 1734, 2017 CLC 178, 2014 SCMR
676 and PLD 2017 SC 83, 2016 CLD 1833 etc. Learned counsel for the
respondent No.3/Deutsche Bank AG simply supports the rejection letter,
issued by the respondent No.3 and also adopts the arguments of learned
counsel for the appellant. On the other hand, apart from raising other legal
and factual points, learned counsel for the respondents Nos.1 and 2 mainly
argues that annulment of the financial commitments by the two
independent financial institutions on behalf of appellant is a withdrawal
from the bid by the appellant and appellant has taken no concrete step(s)
to continue with bid in view of terms of tender rather practically withdrew
from the bid and the appellant is agitating against the acts of respondents
Nos.1 and 2 with mala fide intention, simply to seek protection from the
encashment of the Bank Guarantee and not to perform its obligation under
the terms of the bid while the respondents Nos.1 and 2 acted with bona
fide intention to allow the appellant (a) to submit second unconditional
Letter of Credit Promise (b) to provide favourable circumstances to the
appellant in bid proceedings and all the actions of respondents Nos.1 and
2 were/are based on the principles of transparency. Further argues that
appellant has raised disputed questions of facts and same cannot be dealt
with by the High Court in its constitutional jurisdiction and also fully
supports the judgment of learned Single Judge by relying on plethora of
judgments reported by the Honorable Superior Courts.
3. We have heard the arguments of learned counsel for the parties and
minutely gone through the record as well as the impugned judgment.
4. There is no denial of the facts that the respondent No.2 floated a
Tender No. ADB-300Ar-2021 for procurement of plant, design, supply,
installation, testing and commissioning of 500/220/132 KV Lahore North
Sub-station and Extension Works at 500/220/132 KV Nokhar Sub-station
and appellant duly participated in the Tender by submitting its letter of bid
dated 24.6.2021 along with its financial statement, Bank Letter of Credit
Promise dated 22.06.2021, issued by Agricultural Bank of China (ABC)
and bid security in the form of bank guarantee dated 23.6.2021, issued by
respondent No. 3/bank in favor of respondent No.2/NTDC. In terms of
bank guarantee, the respondent No.2 had/has the right to demand
payment under the bank guarantee, in case the appellant withdraws its bid.
The respondent No.2/NTDC intimated the appellant through letter dated
05.08.2021 for furnishing of unconditional credit line from the concerned
bank due to the issuance of conditional Bank Letter of Credit Promise
dated 22.6.2021 by Agricultural Bank of China (ABC) and appellant
responded to the respondent No.2/NTDC through letter dated 06.08.2021
about the inability/unwillingness of Agricultural Bank of China (ABC) to
amend its Letter of Credit Promise and also furnished/submitted
another/second Bank Letter of Credit Promise dated 10.06.2021, issued
by Industrial and Commercial Bank of China Limited (ICBCL). ICBCL
annulled second Bank Letter of Credit Promise dated 10.06.2021 due to
Covid-19 etc vide letter dated 07.09.2021. Hence, respondent No.2
proceeded to issue an encashment of Bank Guarantee through letter dated
22.10.2021 by informing the respondent No.3/Bank that "the bidder has
violated the subject Tender Documents clauses during the validity of his
bid. It is therefore requested to encash the … bid guarantee in favor of CE
(MP&M) NTDC but vide letter dated 27.10.2021, the Respondent
No.3/Bank rejected/declined the request of respondent No.2/NTDC.
The respondent No. 2 reiterated its demand of the encashment of the bank
guarantee vide letter dated 28.10.2021, sent to the respondent No.3/Bank.
By admitting all the facts narrated above, learned counsel for the
appellant/Company had vehemently argued that the appellant never
withdrew its bid and procedure for the withdrawal of bid is provided in
the instructions of Bidders (ITB) of the tender and specifically in section
26 but is unable to answer the query about the appellant's
preparedness/any intention to furnish/submit third unconditional Letter
of Credit Promise from any Bank in order to show appellant's
readiness/interest to perform its obligations and fulfill the Tender
Conditions because the respondent No.2/NTDC duly intimated the
appellant about issuance of conditional Letter of Credit Promise dated
22.06.2021 by Agricultural Bank of China (ABC) through letter dated
05.08.2021 and for furnishing of unconditional Letter of Credit Promise
as unconditional credit line from Bank was required. Thereafter, the
appellant contacted its Bank (ABC) for issuance of unconditional Letter
of Credit Promise and on Bank's refusal, sent letter dated 06.08.2021 to
the respondent No.2. Relevant portion/part of that letter is reproduced
hereunder;
"We have contacted our Bank i.e. Agricultural Bank of China for
the revision in the Letter of Credit Promise as per your office requirement.
However, this Bank has informed that the issued the letter of Credit
Promise is as per their standard format and cannot be amended. Therefore,
we are submitting Letter of Credit Promise/Facilities from other Bank i.e.
Industrial and Commercial Bank of China fulfilling your office
requirement".
Hence, without raising any objection on the demand of the
respondent No.2/NTDC to furnish unconditional Letter of Credit
Promise, the appellant/company submitted second unconditional Letter
of Credit Promise issued by another Bank (ICBCL), as required in view of
bid documents. Narration of abovementioned events/steps taken by the
appellant and respondents Nos. 1 and 2 firmly discloses that after the
annulment of second Bank Letter of Credit Promise dated 10.06.2021 by
the concerned Bank and the appellant's intentional failure to submit third
unconditional Letter of Credit Promise to the respondent No.2/NTDC,
the appellant is, prime facie, not interested in performing its obligations
and honouring its commitments as per the requirements of bid documents
and arguably, withdrew its bid and only filed the writ petition as well as
instant appeal to seek protection from the encashment of the Bank
Guarantee. Needless to say that it is to be finally determined only by the
court having plenary jurisdiction after recording the oral and documentary
evidence as and when so approached to the forum concerned.
5. In rejection letter dated 27.10.2021, the respondent No.3/Bank has
not denied the issuance of Bank Guarantee but only refused to encash the
same by requesting the respondent No.2 to re-lodge the claim in
accordance with Guarantee terms by providing written statement stating
that bidder is in breach of any one of the (a), (b), (c) point upon claim.
With regards to the bank guarantee, there is no cavil to the
proposition that Bank Guarantee being an independent/autonomous
contract between the Bank and Customer, Bank authorities must construe
it independent of the principle/primary contract. Bank Guarantee
furnished by the respondent No.3/Bank contains undertaking and
imposes absolute obligations on the Bank to pay the amount, irrespective
of any dispute between the parties to the principle contract. There is an
absolute obligation upon the banker to comply with the terms as
enumerated in the bank guarantee and to pay the amount stipulated
therein and Bank cannot be prevented by the party at whose instance
Guarantee was issued, from honoring the credit guaranteed. Through
letter dated 22.10.2021, respondent No.2/NTDC conveyed to the
respondent No.3/Bank about the intentional failure/alleged violation of
the appellant/ bidder, as per tender-document clauses during the validity
of bid with the request to encash the Bank Guarantee. In second letter
dated 28.10.2021, the respondent No.2 reiterated its stance with these
words;
"This is with reference to your letter at Ref (1) which is received with
grave concern by this office. In this regard, it is mentioned that you have
irrevocably undertaken to encash the Bid Security as per para - 3(a) of Bid
Security, on first written demand by this office. Therefore, you bank is
under obligation to pay us any sum or sums not exceeding in total an
amount of USD 1,800,000 because the Bidder is in breach of its
obligation(s) under the bid conditions, as already conveyed vide letter at
Ref (2).
It is further elaborated that Messrs SEPCO III Electric Power
Construction Corporation Chine have violated the bidding process by
sabotaging the whole process and delaying the NTDC's most urgent
project by changing the substance of its bid and its withdrawal during the
period of bid validity specified by the Bidder in the Letter of Bid. The
Notice served upon the bidder by this office detailing the reasons is
attached herewith for reference.
We once again reiterate to encash the above mentioned bid
guarantee in favour of Chief Engineer (MP&M) NTDC as per para - 3(a),
without further delay.
This office reserves all its rights in case necessary action is not taken
in the light of delineations mentioned above. The matter may be
considered as "Most Urgent".
The rule is well-established that a Bank issuing a Guarantee is not
concerned with underlying contract between the parties as obligations
arising under the Bank Guarantee are independent of the obligations
arising out of specific contract between parties. Reliance is placed
on judgments reported as In "Messrs National Construction Ltd. v.
Aiwan-e-Iqbal Authority" (PLD 1994 SC 311), "Shipyard K. Damen
International v. Karachi Shipyard and Engineering Works Ltd." (PLD
2003 SC 191) and "Atif Mehmood Kiyani and another v. Messrs Sukh
Chain Private Limited, Royal Plaza, Blue Area, Islamabad and another"
(2021 SCMR 1446). Hence, respondent No.2 cannot be restrained from
encashing the Bank Guarantee.
6. Contractual rights, commitments, undertakings and obligations
have to be enforced through courts of ordinary jurisdiction and should not
be interfered with by this Court while exercising its constitutional
jurisdiction especially in those matters arising out of a contractual
obligations. Violation of a contract or failure to abide by the terms and
conditions mentioned therein or to honour obligations arising out of
an agreement cannot be decided in exercise of constitutional jurisdiction.
The superior Courts should not involve themselves into investigations of
disputed question of fact which necessitate taking of evidence. This can
more appropriately be done in the ordinary civil procedure for litigation
by a suit. This extraordinary jurisdiction is intended primarily, for
providing an expeditious remedy in a case where the illegality of the
impugned action of an executive or other authority can be established
without any elaborate enquiry into complicated or disputed facts.
Controverted questions of fact, adjudication on which is possible only
after obtaining all types of evidence in power and possession of parties can
be determined only by courts having plenary jurisdiction in matter and on
such ground constitutional petition was incompetent. Hence, normal
remedy under law, in such like eventualities/ disputes/ controversies,
being a suit for enforcement of contractual rights and obligations, can be
availed by the appellant instead of invocation of Article 199 of the
Constitution merely for the purpose of enforcing contractual obligations.
In so far as the case law referred by the learned counsel for the
appellant is concerned, the same is distinguishable from the facts and
circumstances of the instant appeal and not applicable in this case.
7. For the reasons above, instant appeal being without substance is,
accordingly, dismissed.
SALMA BIBI and others---Appellants Versus Rana SAGHEER HUSSAIN---Respondent
 Citation: 2022 PLD 589

 Judge(s): Masud Abid Naqvi, JJ
 Case Number: Regular Second Appeal No. 76527 of 2017
 JUDGMENT
 1. Background: The plaintiff filed a suit for possession of a plot, alleging
illegal possession by the defendants who intended to establish a CNG
station. The defendants contended inheritance of the plot and challenged
the authenticity of the sale deed.
2. Legal Proceedings: After trial and appeal, the case reached the High
Court in a regular second appeal. The defendants challenged the
judgments of the lower courts. The key issue was the authenticity of the
sale deed.
3. Authentication of Sale Deed: The court emphasized that the burden of
proof lay with the plaintiff to substantiate the sale deed's authenticity. The
sale deed consisted of three pages; however, the first two pages lacked the
necessary signatures. The court held that the unsigned pages could not be
considered part of the disputed sale deed.
4. Compliance with Article 79, Qanun-e-Shahadat Order 1984: The
court highlighted the mandatory requirement of producing at least two
attesting witnesses to prove the execution of a sale deed, as per Article 79.
The plaintiff failed to produce two attesting witnesses, rendering the sale
deed unproven.
5. Legal Precedent and Interference in Concurrent Findings: The court
referred to legal precedents to support its stance on the mandatory
requirements of law. It clarified that concurrent findings of facts are not
sacrosanct and can be reversed if based on insufficient evidence,
misreading of evidence, or erroneous presumption of facts.
6. Judgment: In conclusion, the High Court held that the lower courts
erred in not properly appreciating the facts and law. It set aside the
previous judgments and decrees and dismissed the suit filed by the
plaintiff, allowing the regular second appeal.
Legal References:
Qanun-e-Shahadat Order 1984, Article 79
Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044)
Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and
others (PLD 2011 Supreme Court 241)
Muhammad Aslam v. Mst. Ferozi and others (PLD 2001 Supreme Court
213)
JUDGMENT
Brief facts necessary for the adjudication of this lis are that on 14.03.2005,
the plaintiff/respondent filed a suit for possession of plot along with
perpetual as well as mandatory injunction with the averments that he
purchased disputed plot from the predecessor in interest of defendants
namely late Niaz Muhammad, however, the defendants/appellants took
over illegal possession of the same with the intention to set up a CNG
station over there. The plaintiff/respondent asked the
defendants/appellants to hand over the possession of the disputed plot but
they refused, hence, the suit. The defendants/appellants contested the suit
by filing contesting written statement with the contentions that they are in
possession of plot, duly inherited by them through inheritance mutation
No. 2517 dated 10.08.1999 and the registered sale deed allegedly executed
by the predecessor in interest of defendants/appellant in favour of
plaintiff/ respondent is not only fake document but is also based on fraud
and fabrication as the predecessor in interest of defendants/appellant
never executed that sale deed.
2. Out of divergent pleadings of the parties, issues were framed by the
learned Trial Court and parties led their respective oral as well as
documentary evidence and after hearing the arguments advanced by both
the parties, the learned Trial Court decreed the suit vide judgment and
decree dated 27.07.2010. Learned Appellate Court accepted the
defendants/appellants' appeal vide judgment and decree dated 11.09.2012
which was challenged before this Court in R.S.A. No.176 of 2012 by the
plaintiff/respondent and the same was accepted vide order dated
16.06.2016 with the direction to decide the appeal afresh. In remand
proceedings, the appeal was dismissed vide judgment and decree dated
23.05.2017. Feeling aggrieved, the defendants/appellants have filed the
instant Regular Second Appeal and challenged the validity of the
impugned judgments and decrees passed by the learned courts below.
3. Learned counsel for defendants/appellants by placing reliance on
the cases reported as Farid Bakhsh v. Jind Wadda and others (2015 SCMR
1044), Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs
and others (PLD 2011 Supreme Court 241), Sultan Mahmood Shah
through L.Rs. and othes v. Muhammad Din and 2 others (2005 SCMR
1872), Muhammad Aslam v. Mst. Ferozi and others (PLD 2001 Supreme
Court 213), Mst. Arshan Bi (deceased) through Mst Fatima and others v.
Maula Bakhsh (deceased) through Mst. Ghulam Safoor and others (2003
SCMR 318) argued that impugned sale deed was witnessed by only one
attesting witness and the requirement of Article 79 of Qanun-e-Shahadat
Order 1984 was not complied with, hence the impugned judgments and
decrees are not sustainable at law. While on the other hand, learned
counsel for respondent/plaintiff fully supported the impugned judgments
and decrees with the arguments that plaintiff/respondent proved the
execution of sale deed through evidence and even the denial of
defendants/appellants in written statement was evasive by placing
reliance on the case reported as Sajjad Ahmad Khan v. Muhammad
Saleem Alvi and others (2021 SCMR 415) etc. I have heard the arguments
of learned counsel for the parties and perused the available record as well
as have minutely gone through the impugned judgments and decrees.
4. It is also a well-settled law that the initial burden of proof is on the
plaintiff to substantiate his/her claim(s) by adducing cogent, legal,
relevant and unimpeachable evidence of definitiveness and the weakness
in the defense evidence, if any, would not relieve a plaintiff from
discharging the above burden of proof. Onus to prove issue No.7 about
purchase of plot on the basis of sale deed was/is upon the
plaintiff/respondent. Although, the plaintiff/respondent claimed himself
as owner of disputed plot but failed to plead about the existence or
execution of alleged sale deed in his plaint. Hence, the rule of "secundum
allegata et probata" duly applied on the plaintiff/respondent with regard
to alleged sale deed.
Disputed sale deed/Exh.P.1 consists of three pages and on first and
second page neither the alleged vendor/executant namely late Niaz
Muhammad nor the plaintiff/respondent/alleged vendee or any marginal
witness put their signatures/thumb impressions while on the third page
the plaintiff/respondent as well as one marginal witness namely
Muhammad Fawad Ghani Cheema put their signatures and the
predecessor in interest of defendants/appellants allegedly affixed his
thumb impression. First and second page contains all the terms and
conditions of sale while third page does not contain any term and
condition. It is settled principle of law that if the document is written on
more than one page, then the parties must sign or put their thumb
impressions on each page of document or otherwise the
plaintiff/respondent is/was under legal obligation to connect the two
unsigned pages with signed/thumb marked third page by producing
evidence to prove the terms and conditions of disputed sale deed but the
testimony does not convincingly connect the papers or show assent of
alleged executor to the unsigned papers. Resultantly, without the sufficient
connection between the unsigned papers with signed paper, the unsigned
papers cannot be considered as part of the disputed sale deed. With the
failure of the plaintiff/respondent to prove the execution of first and
second page as well as terms and conditions of disputed sale deed, the
principle of "consensus ad idem" is not established. Reference is placed on
the cases reported as Manzoor Hussain v. Haji Khushi Muhammad (2017
CLC 70) and Zafar Iqbal and others v. Mst. Nasim Akhtar and others
(PLD 2012 Lahore 386).
For the purpose of proving the under challenge sale deed, it was/is
mandatory for the beneficiary/plaintiff/respondent that two attesting
witnesses of mutation must be examined by him as per Article 79, Qanun-
e-Shahadat Order 1984. By discussing in detail the requirement of Article
79, Qanun-e-Shahadat Order 1984, the Hon'ble Supreme Court of
Pakistan in a case reported as Farid Baksh v. Jind Wadda and others (2015
SCMR 1044) held as under:
"This Article in clear and unambiguous words provides that a
document required to be attested shall not be used as evidence unless two
attesting witnesses at least have been called for the purpose of proving its
execution. The words "shall not be used as evidence" unmistakably show
that such document shall be proved in such and no other manner. The
words "two attesting witnesses at least" further show that calling two
attesting witnesses for the purpose of proving its execution is a bare
minimum. Nothing short of two attesting witnesses if alive and capable of
giving evidence can even be imagined for proving its execution.
Construing the requirement of the Article as being procedural rather than
substantive and equating the testimony of a Scribe with that of an attesting
witness would not only defeat the letter and spirit of the Article but reduce
the whole exercise of re-enacting it to a farce. We thus, have no doubt in
our mind and this Article being mandatory has to be construed and
complied with as such…………………..In the case of Hafiz Tassaduq
Hussain v. Mohammad Din through legal heirs (PLD 2011 SC 241), this
court after defining the meaning of the word attesting" in the light of
Black's Law Dictionary and other classical books and case law held that a
document shall not be considered, taken as proved or used in evidence, if
not proved in accordance with the requirements of Article 79 of the Order.
Another reason for not equating the testimony of a Scribe with that
of an attesting witness is that both of them signed the document in a
different capacity and with a different state of mind. They, as such, do not
meet the requirements of Article 79 of the Qanun-e-Shahadat Order.
Scribe however, could be examined by the party for corroboration of the
evidence of the attesting witnesses but not as a substitute therefor. This
aspect was also highlighted in the case of Hafiz Tassaduq Hussain v.
Muhammad Din through Legal Heirs (supra) in the paragraph which
reads as under :-
"To the same effect are the judgments reported as Qasim Ali v.
Khadim Hussain through legal representative and others (PLD 2005
Lahore 654) and Shamu Patter v. Abdul Nadir Rowthan and others (1912
(16) IC 250). Therefore, in my considered view a scribe of a document can
only be a competent witness in terms of Articles 17 and 79 of the Qanun-
e-Shahadat Order, 1984 if he has fixed his signature as an attesting witness
of the document and not otherwise; his signing the document in the
capacity of a writer does not fulfill and meet the mandatory requirement
of attestation by him separately, however, he may be examined by the
concerned party for the corroboration of the evidence of the marginal
witnesses, or in the eventuality those are conceived by Article 79 itself not
as a substitute."
Scanning of record especially sale deed adduced by the plaintiff/
respondent before the civil court reveals that neither the name of second
witness is written on the disputed sale deed nor any signature or thumb
impression of second attesting witness is available on the disputed sale
deed. Along with attesting witness namely Muhammad Fawad Ghani
Cheema/PW-2, the plaintiff/respondent produced his brother who is an
advocate/PW-3, portraying him as scribe of disputed sale deed while the
testimony of PWs clearly establishes the fact that stricto sensu he was not
even the scribe of disputed sale deed. Even otherwise, the deposition of a
scribe cannot be equated with deposition of an attesting witness and
equating the testimony of a Scribe with that of an attesting witness would
not only defeat the letter and spirit of the Article 79, Qanun-e-Shahadat
Order 1984 but also reduce the whole exercise of re-enacting it to a farce
as has been held by the Hon'ble Supreme Court of Pakistan. Hence, the
plaintiff/respondent failed to meet the mandatory requirement of Article
79, Qanun-e-Shahadat Order 1984 by failing to produce the two attesting
witnesses of disputed registered sale deed. In so far as the case law referred
by the learned counsel for respondent/plaintiff is concerned, the same is
distinguishable and not applicable in the facts and circumstances of the
instant case.
5. In a case of concurrent findings by courts below, this court normally
does not interfere in second appeal under section 100 of C.P.C., unless the
decision of courts below is contrary to law or is based on failure to
determine material issue of law. However, once the High Court entertains
a second appeal, it can determine an issue
of fact provided the conditions mentioned in section 103, C.P.C. are
fulfilled as the concurrent findings of facts recorded by the courts below
cannot become sacrosanct. With respect to interference in concurrent
findings, the Hon'ble Apex Court in a case reported as Muhammad Aslam
v. Mst. Ferozi and others (PLD 2001 Supreme Court 213) had held that:-
"We are not persuaded to agree with the prime contention as raised
by learned counsel for the petitioner that the concurrent findings could not
have been reversed in R.S.A. by the learned High Court for the simple
reason that the concurrent findings cannot be considered as sacrosanct and
High Court was competent to interfere if such findings were based on
insufficient evidence, misreading of evidence, non-consideration of
material evidence, erroneous presumption of facts and consideration of
inadmissible evidence."
6. In view of the foregoing discussion, this Court is of the affirmed
view that learned courts below fell in error by not properly appreciating
the questions of facts and law and ignored the material piece of evidence
on record while passing the impugned judgments and decrees, which are
not sustainable in the eyes of law and the same are hereby set-aside and
the suit filed by plaintiff/respondent is hereby dismissed by allowing this
regular second appeal.
MCB BANK LIMITED through Manager---Appellant versus AZHAR HUSSAIN and another---
Respondents

 Court: Lahore High Court (Multan Bench)
 Date of Decision: 23/6/2016.*
 Case Number: F.A.O. No. 41 of 2015
 JUDGMENT
 Summary of Judgment:
Background: The respondent No. 1 initiated a suit for the recovery of Rs.
471,982 on 10.10.2009. The appellant applied for Leave to appear and
defend the suit, contested by the plaintiff/respondent. The Banking Judge
dismissed the appellant's application on 19.02.2015. The appellant,
dissatisfied with this decision, has appealed, challenging the validity of the
order dated 19.02.2016.
Appellant's Argument: The appellant's counsel contends that the
application for leave to appear and defend was timely filed, asserting the
appellant learned of the suit's pendency on 03.02.2010. The counsel argues
that the Banking Court misunderstood the record, rendering the order
invalid.
Court's Examination: After careful consideration of arguments and
reviewing the record, the court notes that summons were duly served on
the appellant through various modes as per the law. The appellant filed
the application for leave to appear and defend the suit on 02.03.2010,
beyond the statutory period of 30 days from the date of knowledge as
required by section 10(2) of the Financial Institutions (Recovery of
Finances) Ordinance, 2001.
Critical Observations: The court emphasizes that the appellant's claim of
learning about the suit on 03.02.2010 lacks supporting details in the
application. The application did not specify the mode or source of the
appellant's knowledge, and the date of knowledge was conspicuously
absent. The court views this as an attempt to rectify a legal gap.
Conclusion: Given the exhaustive consideration by the Banking Court
and finding no merit in the appeal, the court upholds the well-reasoned
order. Consequently, the appeal for recovery is dismissed.
Legal Reference: The court relies on Section 10(2) of the Financial
Institutions (Recovery of Finances) Ordinance, 2001, which establishes
the statutory period of 30 days for filing an application for leave to appear
and defend the suit from the date of knowledge. The court also refers to
Form 4, Appendix (B) of the First Schedule to the Code of Civil Procedure
1908, pertaining to the issuance of summons in financial recovery cases.
ORDER
Concise facts of this appeal are that the respondent No. 1 filed suit for
recovery of Rs.471982/- on 10.10.2009. The appellant filed an application
for Leave to appear and defend the suit which was duly contested by the
plaintiff/respondent. After hearing the arguments, appellant's application
was dismissed by the learned Banking Judge vide order dated 19.02.2015.
Feeling aggrieved of order dated 19.02.2016 of learned Banking Court, the
appellant has preferred instant appeal and challenged the validity of the
impugned order.
2: Learned counsel for the appellant/defendant submits that the

application for leave to appear and defend the suit was filed within time
because the appellant/defendant got the knowledge of the pendency of
suit on 03.02.2010 while the learned Banking Court has misread and
misconstrued the record while passing the impugned order. Therefore the
same is not sustainable at law and liable to be set aside. Learned counsel
for the respondent/plaintiff fully supports the impugned order. We have
heard the arguments of the learned counsel for the parties and have
minutely gone through the record as well as the impugned order. 3.
Perusal of the record reveals that after the filing of suit by the
respondent/plaintiff on 10.10.2009, summons in Form 4, Appendix (B) of
the First Schedule to the Code of Civil Procedure 1908 in terms of section
9(5) of the Financial Institutions (Recovery of Finances) Ordinance, 2001
were issued to the appellant/defendant on 25.11.2009 for 22.12.2009. The
appellant/defendant was served through courier service on 05.12.2009,
through registered post AD on 05.12.2009 and through Bailiff on
09.12.2009. Hence, the appellant/defendant was duly served through at
least three modes prescribed under the law and Wakalatnama on behalf of
the appellant/defendant was also filed on 22.12.2009. Thereafter, the
appellant/defendant filed an application for leave to appear and defend
the suit on 02.03.2010 which was hopelessly barred by time because the
same was not filed within the statutory period of 30 days from the date of
knowledge, enumerated in section 10(2) of Financial Institutions
(Recovery of Finances) Ordinance, 2001. As regard the submission
of learned counsel for the appellant/defendant regarding the date of
knowledge of the pendency of suit on 03.02.2010, it is relevant to
reproduce the para 1 of application for leave to appear and defend the suit
as under;
"1. That the plaintiff has not complied with the modes of service prescribed
under the law. The respondent came to the notice of titled suit on------,
therefore the application has been filed within time."
Hence, the date of knowledge is not mentioned in the application] for

leave to appear and defend the suit which is written in this appeal and
same can be taken as an afterthought, just to remove legal lacuna. Even
otherwise, the appellant/defendant has neither mentioned the mode/
source of his knowledge about the pending suit nor has made any
allegation regarding address in the application for leave to appear and
defend the suit.
4. For the foregoing reasons, we are of the view that the learned Banking
Court has exhaustively dealt with each and every point alleged before it
and we see no ground to interfere with well-reasoned order. Consequently,
finding no merit in this is dismissed. appeal, the same
DEFENCE HOUSING AUTHORITY through Secretary---Appellant Versus LUBNA NIZAMI and
another---Respondents

 Result: Application Dismissed
 Date of Decision: 12/10/2020.
 Judge(s): Masud Abid Naqvi and Jawad Hassan, JJ
 Case Number: I.C.A. No.142 of 2014 and C.M. No.1 of 2017
 JUDGMENT
 Case Summary
The case pertains to an appeal dismissed for non-prosecution, where the
appellant sought to set aside the dismissal under Order XLI, Rule 19 of
the Code of Civil Procedure. The appellant's primary contention was the
lack of intimation regarding the appeal's hearing dates, leading to non-
appearance due to the failure to receive Supplementary Cause Lists.
The appellant argued that legal precedence favors adjudication on merit
rather than technicalities, citing several relevant judgments. However, the
respondent's counsel emphasized that insufficient cause was presented for
the appellant's non-appearance and the absence of the appellant's counsel's
affidavit supporting the restoration application.
The court observed that the appellant's counsel filed a power of attorney
in 2015 and requested an adjournment in 2017. Despite adjournments, no
appearance was made on behalf of the appellant, resulting in the appeal's
dismissal for non-prosecution. The appellant's application for setting aside
the dismissal lacked the affidavit of the counsel, crucial to explain the
absence.
Referring to legal precedents, the court highlighted the necessity of the
counsel's affidavit to elucidate non-appearance. It emphasized that the
affidavit of an appellant's official was insufficient to establish the alleged
non-receipt of the cause list by the counsel. Without the counsel's affidavit,
no sufficient cause was established.
The court rejected the argument to adjudicate on merit rather than
technicalities, stressing that the exercise of discretion relies on the specific
circumstances of each case. It noted the negligence of the appellant and
their counsel in not inspecting the records or inquiring about the hearing
dates. Negligence on their part didn't absolve them from the obligation to
pursue the appeal diligently.
The court also highlighted that the responsibility to check the case's
fixation rested with the appellant and the counsel, and failure in doing so
could not be shifted to the opposing party. Additionally, it emphasized
that the service of providing the cause list to advocates by the Bar was
supplementary and not legislatively backed.
After assessing the circumstances, the court concluded that the appellant
failed to present a case warranting the restoration of the appeal. Given the
circumstances and legal principles discussed, the court dismissed the
application for restoration of the appeal.
Legal References
The court referred to various legal precedents in support of its decision:
Syed Junaid Akhtar and others v. Managing Director/Chairman and
others (PLD 2008 SC 130)
Mohammad Siddique and 2 others v. Khan Amir and others (2010 MLD
674)
Zahid Afzal v. Mst. Fatima Saeed and 3 others (2005 MLD 1407)
ORDER
Brief facts of the case are that after the dismissal of appeal for non-
prosecution, the applicant/appellant filed application for setting aside the
order dated 30.10.2017 under Order XLI, Rule 19 of Code of Civil
Procedure on a sole ground mentioned hereunder:
"2. That the Appellant engaged / substituted its Counsel, who filed
power of attorney in office on behalf of the Appellant on 23.07.2015.
Thereafter, the said appeal was fixed for hearing on 26.10.2017 and
30.10.2017 but no information / intimation was given to the
Appellant's counsel regarding fixation of the Appeal by any mode
whatsoever. That upon perusal of Court's Cause List, the Counsel
for the Appellant came to know that a Supplementary Cause List
had been issued for 26.10.2017 on the same day at 12.11 p.m. which
was not communicated/delivered to the Counsel. Similarly, a
Supplementary Cause List for 30.10.2017, was issued on the same
day at 12.34 p.m., which was also not communicated / delivered to
the Counsel for the Appellant. The Counsel could not get the copies
of Supplementary Cause Lists from the Court, which record can be
read /examined while adjudicating upon the matter."
2. Learned Counsel for the applicant/appellant mainly argues that
counsel for the applicant/appellant was prevented by sufficient cause from
appearing in the court and proper place of procedure in any system of
administration of justice is to help and not thwart the right to the people
of their rights and all technicalities have to be avoided as law always does
favour adjudication on merits rather than non-suiting the parties on
technicalities and therefore, further opportunity should be granted to the
applicant/appellant to contest this appeal on merit. In support of his
arguments, the learned counsel for the appellant/applicant relied on
judgments reported as "(i) Imtiaz Ahmad v. Ghulam Ali and others (PLD
1963 SC 382), (ii) Salamat Bibi and others v. Settlement and
Rehabilitation Commissioner Multan (PLD 1966 SC 467), (iii) Municipal
Committee Rawalpindi through the Secretary Municipal Committee
Rawalpindi v. Raja Muhammad Sarwar Khan (1968 SCMR 817), (iv)
Muslim Commercial Bank Ltd. v. Tariq Saeed and another (2004 CLD
920), (v) Defence Housing Authority through Secretary and another v.
Mst. Parveen Akhtar (2017 MLD 899), (vi) Shaheen Ahmad Siddiqui v.
Muhammad Yaseen Khan and others (2007 YLR 2007), (vii) Bahadur v.
Jamat Ali and 6 others (1999 MLD 2429), (viii) Anwar Khan v. Fazal
Manan (2010 SCMR 973), (ix) Muhammad Iqbal v. Sardar Khan (2012
MLD 1487), (x) Messrs National And Grindlays Bank Ltd v. Arshad Ali
Khalid Qureshi and another (PLD 1990 Karachi 436), (xi) LT.Col.Mirza
Munawar Beg and others v. Mst. Hassan Bibi and others (1981 SCMR
160).
While apart from other arguments, learned counsel for the
respondents mainly argues that learned counsel for applicant/appellant
failed to raise sufficient cause for his non-appearance in the court as well
as non-appearance of appellant/applicant and even an affidavit of the
learned counsel for the appellant/applicant is not appended with the
application for restoration, therefore, applicant/ appellant is not entitled
to any concession. Reliance is placed on reported judgments titled as Syed
Junaid Akhtar and others v. Managing Director/Chairman and others
(PLD 2008 SC 130), (ii) Muhammad Siddique and 2 others v. Khan Amir
and another (2010 MLD 674), (iii) Muhammad Rahim through L.Rs and
others v. Mst. Sakina Bibi and others (2010 YLR 3025), (iv) Syed Zulfiqar
Ali Shah v. Habib Bank Limited through attorney and 7 others (2006 CLD
139), (v) Naeem Ullah Khan v. Abdul Muneem Karrak and 3 others (2001
YLR 590), (vi) Rex Talkies (Pvt.) Ltd and another v. Samir Oosman and
2 others (PLD 2007 Karachi 362), and (vii) Iqbal Ahmad Khan v.
Muhammad Afzal (2007 CLC 1948).
3. We have heard the arguments of learned counsel for the parties who
have reiterated their respective arguments and perused the available
record.
4. Perusal of record reveals that during the pendency of appeal,
learned counsel for the applicant/appellant filed his power of attorney on
23.07.2015 vide diary No.8523 and sent written request for grant of
adjournment on 12.06.2017 and the appeal was adjourned/fixed for
26.10.2017. On 26.10.2017, no one appeared on behalf of applicant/
appellant whereupon instead of dismissing the appeal, this Court
adjourned the appeal for 30.10.2017 with the caution of last opportunity
but no one appeared on behalf of the applicant/appellant and finally
appeal was dismissed for non-prosecution on 30.10.2017. The
applicant/appellant filed application for setting aside the order dated
30.10.2017 with only one ground i.e. no information/intimation was
given to the Appellant's counsel regarding fixation of the Appeal by any
mode whatsoever but failed to append affidavit of learned counsel for the
appellant/applicant with the application. It was necessary for the learned
counsel to file affidavit to explain his absence but only an official of
appellant/ applicant felt contended by filing his affidavit in routine.
Affidavit of the official of appellant/applicant is of no avail/beneficial to
the applicant/appellant and he cannot depose about the alleged non-
receipt of cause list by his counsel. Hence, without the affidavit of the
learned counsel for the applicant/appellant, the appellant/ applicant has
not made out any sufficient cause for setting aside the impugned order.
The superior courts have through a plethora of judgments, settled this legal
proposition and relevant paras of the two of those reported judgments are
reproduced hereunder:-
"Syed Junaid Akhtar and others v. Managing Director/Chairman
and others" (PLD 2008 SC 130),
……….being counsel for the petitioner was equally responsible to
explain his absence and file affidavit to explain his
absence……………
"Mohammad Siddique and 2 others v. Khan Amir and others (2010
MLD 674),
……….It has been noticed that the application was not supported
by an affidavit of the learned counsel for the petitioner……………"
5. With Regard to the argument of learned counsel for the
applicant/appellant about adjudication of appeal on merit rather than on
technicalities, suffice it to say that the exercise of discretion in this regard
entirely depends upon the facts and circumstances of each case and this
proposition cannot be applied as rule of thumb, the appellant/applicant
has to satisfactorily explain about absence on the date of hearing and any
negligence will not absolve from the legal obligation to pursue the appeal
vigilantly. In exercise of discretion, the courts are required to keep
rational/balance in their approach by not allowing a litigant to misuse
indulgence or concession. Before dismissing the appeal/prior to impugned
order, this Court granted adjournments to the applicant/appellant by
fixing the appeal with specific dates of hearing but neither the
applicant/appellant nor learned counsel for the applicant/appellant cared
to inspect the record or even failed to inquire from the court associate
about the next date of hearing. In view of famous maxim, laws help those
who are vigilant and not those who are indolent (vigilantibus, non
dormientibus, jura subsveniunt), the applicant/appellant committed gross
negligence. Mere fact that a litigant has engaged a counsel to appear on
his behalf does not absolve the litigant from all responsibilities. Litigant as
well as his counsel was bound to see the appeal properly and diligently
pursued and in case of any inaction on their part, opposite party cannot be
made to suffer rather valuable right accrues in favour of opposite
party/respondents.
Even otherwise, service of providing cause list to the Advocates by
the Bar is only complementary and has no legislative backing. Counsel in
a case is supposed to check the list of the cases fixed for hearing, displayed
in the office, outside the Court Room or in the Bar Room. The
applicant/appellant has failed to explain as to why the fixation of case was
not checked up by him, his counsel or by any of the persons from the office
of his counsel. Reliance is placed on judgment reported as "Zahid Afzal v.
Mst. Fatima Saeed and 3 others (2005 MLD 1407).
6. Seeing from any angle, the applicant/appellant has miserably failed
to make out a case warranting the restoration of appeal and after attending
all the circumstances of the case as discussed above, we are not persuaded
to exercise our discretion in favour of applicant/ appellant. Upshot of
above discussion is that the present application for restoration of appeal is
devoid of merits, hence stands dismissed.
SAJID HUSSAIN and others---Appellants Versus GOVERNMENT OF PUNJAB and others---
Respondents

 JUDGMENT
 I. Introduction and Background
The Intra Court Appeal challenges the validity of the order dated
20.10.2020, wherein the learned Single Judge dismissed the writ petition
filed by the appellants.
II. Recruitment on Contract Basis
The appellants were initially recruited on a contract basis for three
years, but following the government's policy on regularization, their
recruitment came under scrutiny. The record revealed that the initial
recruitment was deemed illegal and a violation of the Contract Policy
2004. The Secretary (L&DD) Department/competent authority
declared the initial recruitment as illegal, a decision unchallenged by the
appellants in the writ petition.
III. Legality of Initial Recruitment
The appellants failed to provide evidence supporting the legality of their
initial recruitment. The appointment letters indicated a contractual
basis, and it was emphasized that a contract employee cannot maintain
a writ petition. The judgment cites the case "Ministry of IPC through
Secretary and others v. Arbab Altaf Hussain and others" (2014 SCMR
1573), highlighting the incompetence of writ petitions by contractual
employees.
IV. Damages in Lieu of Reinstatement
The judgment refers to the case "Federation of Pakistan through
Secretary Law, Justice and Parliamentary Affairs v. Muhammad Azam
Chattha" (2013 SCMR 120), emphasizing the principle that a contract
employee, instead of seeking reinstatement, can claim damages for the
unexpired period of service. Various legal references are cited, including
the doctrine of master and servant, and it is established that damages
should be equal to wages, allowances, and benefits due under the
employment contract.
V. Court's Decision
Considering the exhaustive examination by the learned Single Judge
and the appellants' failure to substantiate their case, the appeal is
dismissed in limine.
Legal References:
 "Ministry of IPC through Secretary and others v. Arbab Altaf

Hussain and others" (2014 SCMR 1573)
 "Federation of Pakistan through Secretary Law, Justice and
Parliamentary Affairs v. Muhammad Azam Chattha" (2013
SCMR 120)
 "Federation of Pakistan v. Ali Ahmed Qureshi" (2001 SCMR
1733)
 "Pakistan Red Crescent Society and another v. Syed Nazir
Gillani" (PLD 2005 SC 806)
 "Brig. (R.) Sakhi Marjan v. Managing Director PEPCO" (2009
SCMR 708)
 "S. S. Shetty v. Bharat Nidhi, Ltd." (AIR 1958 SC 12)
ORDER
Through this Intra Court Appeal, the appellant has challenged the
validity of the order dated 20.10.2020 passed by the learned Single Judge-
in-chamber whereby writ petition filed by the appellants was dismissed.
2. We have taken into consideration the arguments advanced by learned
counsel for appellants and perused the record.
3. Although appellants were recruited purely on contract basis initially
for a period of three years vide Order No. 2391- 92/ DLO/ KHB/ Esst
dated 25.11.2010 but after the implementation of government policy
regarding regularization of contract employees, process of recruitment of
the contract employees was initiated and record of the individual
employees was scrutinized by the department. During the scrutiny of the
record, certain facts, as is mentioned in report and parawise comments
filed by respondents Nos.1, 2 and 5, revealed that initial recruitment of the
appellants was not only bogus and illegal but bare violation of Contract
Policy 2004, hence, Secretary (L&DD) Department/competent authority
declared initial recruitment of the appellants as illegal and the same order
was not even challenged by the appellants in the present writ petition. On
query learned counsel for the appellants failed to mention any document
to prove that initial recruitment of the appellants being contract employees
was legal and by filing writ petition only sought regularization on the basis
of certain notifications, orders and judgments. Even otherwise from the
bare perusal of initial appointment letter, it appears that the appellants
were appointed on contract basis and their contract was not extended after
its expiry. It is an established principle of law that a contract employee
cannot maintain a writ petition. Reliance is placed on case reported as
"Ministry of IPC through Secretary and others v. Arbab Altaf Hussain and
others" (2014 SCMR 1573). Relevant portion of the judgment is
reproduced herein below:-
"Secondly, the employment(s) of the said respondents admittedly was
contractual in nature and their services were terminated after due notice
as per their contractual terms and conditions of service. And even on this
account the writ petitions were incompetent and had to fail. It may be
added here, that their termination(s) was made by the competent authority
in the Board; for example in the case of Arbab Altaf Hussain, as stated
earlier, notice was served upon him and ultimately his service was
terminated by Director HR & A, who as per the Board's non-statutory
rules, was the competent (authority) to do so. Besides to their extent the
rule of exercise of de facto jurisdiction was attracted even if the
supersession of the Board was assumed to be bad in law. So the writ
petitions filed by all other respondents, as mentioned earlier, were liable
to be dismissed on these scores. "
Reference may also be made to the case titled as "Federation of
Pakistan through Secretary Law, Justice and Parliamentary Affairs v.
Muhammad Azam Chattha" (2013 SCMR 120). Relevant portion of the
judgment is reproduced herein below:-
"In addition to it, it is a cardinal principle of law that a contract
employee instead of pressing for his reinstatement to serve for the leftover
period can at best claim damages to the extent of unexpired period of his
service. 15. In Halsbury's Laws of England (3rd Ed.) Vol. 11, p.244 Para
414, it is stated that the measure of damages for wrongful dismissal, is the
loss thereby incurred, and that would, subject to the duty of the plaintiff to
mitigate, normally be the wages due and payable for the agreed period of
service. In the case of Federation of Pakistan v. Ali Ahmed Qureshi (2001
SCMR 1733) it has been held that in view of the doctrine of master and
servant, the contract of service cannot be specifically enforced, however,
in the event of arbitrary dismissal or unwarranted termination of
employment, an employee is entitled to sue for damages equal to wages,
allowances and other benefits, which would have been otherwise due and
payable under the contract of employment. In the case of Pakistan Red
Crescent Society and another v. Syed Nazir Gillani (PLD 2005 SC 806) it
has been held that an employee of a corporation, in the absence of
violation of law or any statutory rule, cannot press into service the
Constitutional or civil jurisdiction for seeking relief of reinstatement in
service and can only claim damages against his wrongful dismissal or
termination. While holding so, reference has been made to the cases of
Mrs. M.N. Arshad v. Mrs. Naeema Khan (PLD 1990 SC 612), Messrs
Malik and Haq v. Muhammad Shamsul Islam Chowdhury (PLD 1961 SC
531), Zainul Abidin v. Multan Central Cooperative Bank Limited (PLD
1966 SC 445), Chairman, East Pakistan Industrial Development Corpora-
tion v. Rustom Ali (PLD 1966 SC 848), Abdul Salam Mehta v. Chairman,
WAPDA (1970 SCMR 40), Lt.-Col. Shujauddin Ahmad v. Oil and Gas
Development Corporation (1971 SCMR 566), R.T.A. Janjua v. National
Shipping Corporation (PLD 1974 SC 146), Principal, Cadet College,
Kohat v. Muhammad Shoab Qureshi (PLD 1984 SC 1791), Anwar
Hussain v. Agricultural Development Bank of Pakistan (PLD 1984 SC
194), Syed Akbar Ali Bokhari v. State Bank of Pakistan (PLD 1977 Lah.
234), Muhammad Yusuf Shah v. Pakistan International Airlines
Corporation (PLD 1981 SC 224) and Evacuee Trust Property Board v.
Muhammad Nawaz (1983 SCMR 1275). The same principle has been
reiterated in the case of Brig. (R.) Sakhi Marjan v. Managing Director
PEPCO (2009 SCMR 708). Reference may also be made to the case of S.
S. Shetty v. Bharat Nidhi, Ltd. (AIR 1958 SC 12) wherein the Indian
Supreme Court on the same issue has held as under:--
"The position as it obtains in the ordinary law of master and servant
is quite clear. The master who wrongfully dismisses his servant is bound
to pay him such damages as will compensate him for the wrong that he
has sustained. "They are to be assessed by reference to the amount earned
in the service wrongfully terminated and the time likely to elapse before
the servant obtains another post for which he is fitted. If the contract
expressly provides that it is terminable upon, e.g., a month's notice, the
damages will ordinarily be a month's wages. ... No compensation can be
claimed in respect of the injury done to the servant's feeling by the
circumstances of his dismissal, nor in respect of extra difficulty of finding
work resulting from those circumstances. A servant who has been
wrongfully dismissed must use diligence to seek another employment, and
the fact that he has been offered a suitable post may be taken into account
in assessing the damages." [Chitty on Contracts, 21st Ed., Vol. (2), p.559
para. 1040].
If the contract of employment is for a specific term, the servant would
in that event be entitled to damages the amount of which would be
measured prima facie and subject to the rule of mitigation in the salary of
which the master had deprived him. [Vide Collier v. Sunday Referee
Publishing Co., Ltd. (1940) 4 All E.R. 237]. The servant would then be
entitled to the whole of the salary, benefits, etc., which he would have
earned had he continued in the employ of the master for the full term of
the contract, subject of course to mitigation of damages by way of seeking
alternative employment. Such damages would be recoverable by the
servant for his wrongful dismissal by the master only on the basis of the
master having committed a breach of the contract of employment."
4. In view of the foregoing discussion, we are of the considered opinion
that the learned Single Judge has exhaustively dealt with the matter and
decided the writ petition. The appellants have miserably failed to
substantiate their case by giving valid grounds for setting aside the
impugned order. Consequently, finding no merit in this appeal, the same
is dismissed in limine.
MUHAMMAD YOUSAF Versus SECRETARY FINANCE and others .

 Case Number: Intra Court Appeal No. 530 of 2014
 JUDGMENT
 Case Summary
Synopsis: The case involves a dispute regarding the implementation date
of a federal notification by a Provincial Government. The Appellant, a
retired government employee, contested the implementation date set by
the Provincial Government for the enhancement of leave preparatory to
retirement, arguing that the Provincial Government should have aligned
the date with the Federal Government's implementation date. The issue
raised pertains to the scope of a Provincial Government's powers to adopt
and give effect to federal notifications within its legislative competence,
post the Eighteenth Constitutional Amendment, which emphasized
Provincial Autonomy.
Key Legal Points
Provincial Autonomy and Legislative Authority:
The judgment elucidates that after the Eighteenth Amendment, the
Provinces gained enhanced legislative authority, and matters previously
under the Concurrent List now fall within their executive and legislative
domain. The Provincial Governments are entitled to enact laws in
accordance with the needs of their respective regions and citizens, as per
their particular realities and necessities. This autonomy signifies the
freedom from external control in numerous areas.
Legislative Competence Post Eighteenth Amendment:
The amendment brought a significant shift, removing the Concurrent
Legislative List and emphasizing a clear divide between the legislative
powers of the Federation and Provinces. The Provinces are now vested
with exclusive legislative authority unless a subject is explicitly assigned
to the Federation.
Service Matters and Provincial vs. Federal Laws:
Service matters fall under distinct laws for Federal and Provincial
employees. The Provincial Government has the mandate to regulate
service matters within its territory, and the Appellant's argument for the
Federal Government's implementation date to be enforced in the Province
lacks merit. The judgment emphasizes the separate legislative powers
vested in Provinces under Article 240 of the Constitution.
Ombudsman's Recommendations:
The judgment highlights that the Ombudsman's role and
recommendations are not of a judicial nature and do not hold the authority
of a Court's judgment or decision. Hence, the Ombudsman's
recommendations do not have binding legal force.
Conclusion
The Court upheld the decision of the Single Judge, dismissing the appeal.
The Appellant failed to provide compelling reasons to set aside the
judgment. The judgment emphasized the post-Eighteenth Amendment
provincial autonomy and the exclusive legislative authority of the
Provinces. The Court held that the Provincial Government was within its
rights to adopt and apply federal policies within its territory at its
discretion, and the mere adoption of a federal notification does not
necessitate automatic simultaneous implementation in the Province.
Legal References
The judgment makes references to significant legal cases and
constitutional provisions, including:
 Punjab Higher Education Commission v. Dr. Aurangzeb Alamgir (PLD

2017 Lahore 489)
 Government of Sindh and others v. Dr. Nadeem Rizvi and others (2020
SCMR 1)
 Messrs Sui Southern Gas Company Ltd. and others v. Federation of
Pakistan and others (2018 SCMR 802)
 Muzaffar Khan and others v. Government of Pakistan and others (2013
SCMR 304)
 Shafaatullah Qureshi v. Federation of Pakistan (PLD 2001 SC 142)
 Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhary and others (PLD 2016 SC
637)
The judgment extensively references these cases to elucidate the principles

of provincial autonomy and the legal standing of Ombudsman's
recommendations in the context of judicial proceedings.
JUDGMENT
Almost a decade ago in April, 2010, the Constitution of Islamic
Republic of Pakistan, 1973 (the "Constitution") was amended eighteenth
time (the "Eighteenth/18th Amendment") in which Concurrent List was
omitted as a result whereof the Provinces become autonomous. Before
that both the Federal and Provincial Governments could legislate on the
subjects enumerated in Concurrent List provided under Fourth Schedule
of the Constitution but now the 18th Amendment has provided the
Provinces strong legislative autonomy in order to form a more perfect
federation. This judgment will discuss in detail the Provincial Autonomy
while discussing its scope/powers regarding adoption and giving effect to
a federal notification by a Provincial Government over a matter, which
otherwise falls within the legislative competence of the Province.
2. Through this Intra Court Appeal filed under Section 3 of the Law
Reforms Ordinance, 1972 (the "Ordinance"), the Appellant has challenged
the validity of impugned judgment dated 06.05.2014 passed in Writ
Petition No.31626 of 2013 by the learned Single Judge (the "Impugned
Judgment") whereby the constitutional petition filed by the Appellant was
dismissed.
A. Gist of the Issues
3. The Appellant retired from the service of Government of Punjab on
09.08.2013 after that he was granted his pensionary benefits. Later on, the
Federal Government amended Revised Leave Rules, 1980 by enhancing
the period for leave preparatory to retirement from 180 days to 365 days
with effect from 01.07.2012. The Respondent No.1/Secretary Finance
Department also adopted aforesaid notification on 09.09.2013 by giving it
effect from 01.09.2013. The grievance of the Appellant is that since the
Provincial Government/Respondent No.1 had adopted the Notification
of Federal Government regarding enhancement of leave preparatory to
retirement period therefore, the Provincial Government/Respondent
No.1 has to give effect to the said Notification from the same date as the
Federal Government had done i.e. 01.07.2012 and not from 01.09.2013.
The Appellant challenged Notification dated 01.09.2013 (the
"Notification") issued by the Provincial Government/Respondent No.1 in
the writ petition which was dismissed, hence this appeal.
B. Nub of the Matter
4. The nub of the matter in this case is that whether it was obligatory
upon the Provincial Government that while adopting the Notification of
Federal Government on 09.09.2013, it should have given it effect from
01.01.2012, the date when the Federal Government has given it effect and
no choice was available with the Provincial Government to effectuate the
same w.e.f. 01.09.2013.
C. Grounds taken by Appellant
5. Mian Abdul Qudoos, ASC, contended that the impugned judgment
is against law and facts; that the impugned judgment is the result of mis-
reading and non-reading of record; that the learned Single Judge has
ignored the orders of Ombudsman, Punjab dated 04.07.2013 and
29.11.2013 whereby directions were issued to the Respondent No.1 to
review its rules; that the Single Judge has also failed to appreciate the fact
with regard to adoption of Notification which should have done as a
whole and there should be no bifurcation or choice at all because the
Provincial Government always adopted Notification of the Federal
Government verbatim as there is no reason for it to deviate from this
practice; that the consistent practice of a certain thing attained the status
of force of law which cannot be ignored; that the impugned judgment is
contrary to the constitutional rights; that the impugned judgment is a non-
speaking judgment and it is based on surmises and conjectures hence it is
liable to be set-aside.
D. Arguments of Law Officer
6. Barrister Hassan Khalid Ranjha, Assistant Advocate General, on
the other hand, controverted the arguments advanced by the learned
counsel for the Appellant and prayed for the dismissal of Appeal on the
ground that the learned Single Judge has rightly passed the impugned
judgment; that there is no requirement in law that the Provincial
Government must give effect to a policy in exact similar manner as
adopted by the Federal Government therefore, the Respondent No.1 is
fully competent to decide the matter in which it is going to adopt such a
policy and thus the Appeal is liable to be dismissed.
7. We have heard the arguments and perused the record.
E. Moot Points
8. The crux of the arguments of both the parties leads to the following
moot points which are:
i. Whether it is obligatory upon the Provincial Government while
adopting a policy notification of the Federal Government regarding
a matter, which is within its competence and domain after
Eighteenth Constitutional Amendment, to follow and give effect the
same from the very date as given by the Federal Government?
ii. Whether the judgment of Ombudsman is binding on the Court?
Moot Point No.1
9. Article 7 of the Constitution defines that 'the State' means the
Federal Government, [Majlis-e-Shoora (Parliament)], a Provincial
Government, a Provincial Assembly, and such local or other authorities
in Pakistan as are by law empowered to impose any tax or cess. Primarily
the governments in Pakistan are divided into "Federal Government" and
"Provincial Government". The Federal Government functions under
Articles 90 and 97 read with Article 99 under which Federal Rules of
Business, 1973 are made whereas the Provincial Government functions
under Article 129 read with Article 137, and under Article 139 conduct of
business is made along with Punjab Government Rules of Business, 2011.
The law made by either Federal Government or Provincial Government
originates through legislative procedure provided under Article 70 of the
Constitution. After the 18th Amendment made to the Constitution in the
year 2010, the concept of Provincial Autonomy stands heightened and
accentuated in the context of the Federation of Pakistan and what was
previously not within the domain of the federating units and was not do-
able for the Provinces now falls within the ambit and purview of their
executive authority and legislative competence.
10. The concept of decentralization of power and functions has gained
currency throughout the world and political philosophers have advocated
merits of sharing responsibilities with all the component units of the state
instead of concentration and centralization of all the powers within the
Federal Government in order to empower the Provinces to legislate laws
and execute policies in accordance with the requirements and needs of
their respective areas and to secure effective and efficient delivery of
services for the citizens residing therein in accordance with their particular
ground realities.
11. The term Autonomy is derivative of Autonomous, which is defined
in Black's Law Dictionary 11th Edition as:-
"1. The right of self-government.
2. A self-governing nation.
3. An individual's capacity for self-determination."
In Advanced Law Lexicon 4th Edition the term "autonomous" is defined
as "Possessing self-government." whereas the term 'autonomy' is defined
as "The quality or state of being autonomous, the power or right of self-
government; the political independence of a nation".
12. Provincial Autonomy means two things. First, the Provincial
Governments are wholly, responsible to the provincial legislatures and
secondly, provinces are free from outside control and interference in a
large number of matters. There are two lists of powers, federal and
concurrent lists. The residuary powers are vested in the Provinces. Though
the Constitution did not enumerate separate powers for Provinces but gave
them the powers to legislate on residuary subjects, which are not enlisted
either in the Federal List or Concurrent List yet the central government is
supposed to delegate power and authority to the Provincial Governments
as their agents which could either be conditional or unconditional. In
"Punjab Higher Education Commission v. Dr. Aurangzeb Alamgir and
others" (PLD 2017 Lahore 489), learned Division Bench of this Court
discussed the legislative domain of federal and Provincial Governments
and held that "18th constitutional amendment by removing the
Concurrent Legislative list, gives more legislative space to the Province
and boosts provincial autonomy. With the removal of the common
legislative areas, provincial autonomy and the Federal Principle stand
accentuated. The two governments now legislate in their own domain to
advance the social and political realities of the State. The exclusivity of
legislative power under Article 142 provides a clear divide of legislative
subjects between the two governments. This horizontal sharing of
legislative power provides that the legislative competence, in any matter,
is either with the Federation or the Province".
13. The Hon'ble Supreme of Pakistan in "Government of Sindh and
others v. Dr. Nadeem Rizvi and others" (2020 SCMR 1) dilated upon the
issue of Provincial Autonomy and hold that "We are conscious of the fact
that there is a balance of powers between the Federation and the Provinces
as spelt by the Constitution of the Islamic Republic of Pakistan, 1973
which grants provincial autonomy in specified areas. The provincial
autonomy granted by the Constitution deserves the highest respect and is
sacrosanct. The principle and spirit of federalism and provincial autonomy
has been reinforced and made watertight and sacrosanct, through the 18th
Amendment, adopted by the Parliament with unanimity. The basic
feature, rather the spirit and soul of federalism, is the distribution of
legislative powers between the federation and the province, with its core
being provincial autonomy. Interpretation of constitutional provisions
should thus be in consonance with the said principle, rather than in a
manner that encroaches upon the space reserved for the provinces. The
scope of an entry in the FLL should not be expanded or enlarged in a
manner that infringes provincial autonomy. It is also to be kept in mind
that the nature and character of the Constitution carries great significance
and is of utmost relevance in construing the legislative entries and
determining the scope and extent of the subjects assigned by it to the
Federation and the Provinces. The Court should therefore avoid an
expansive construction of a federal legislative power which renders
redundant or nugatory the legislative field, power and authority assigned
to the provinces, either expressly or as residuary, thus undermining
provincial autonomy. Allowing the federation to assume power and
authority under such a rubric would, thus, hardly leave anything for the
provincial government to undertake, discharge, or fulfil, jeopardizing this
nation's collective odyssey towards greater provincial autonomy, as
witnessed in the unanimous approval of the 18th Amendment"
14. In "Messrs Sui Southern Gas Company Ltd. and others v.
Federation of Pakistan and others" (2018 SCMR 802) wherein it was held
that "The Islamic Republic of Pakistan is a democratic State (Federation)
with its Federating Units (Provinces) and the Constitution recognizes and
creates a balance between the authority of the Federation and the
autonomy of the Provinces, which recognition has been given an iron
cladding by virtue of the Eighteenth Amendment, passed vide the
Constitution (Eighteenth Amendment) Act, 2010. This Amendment to the
Constitution has inter alia introduced a drastic enhancement in the
legislative authority of the Provinces by deleting the Concurrent
Legislative List (CLL), whereby previously both the Parliament and the
Provincial legislatures could legislate on the subjects enumerated therein.
The omission of the CLL, left only a Single Legislative List in the
Constitution which exclusively list subjects that can be legislated upon by
the Parliament alone, and by virtue of Article 142(c) of the Constitution
any subject not enumerated in these two lists would subject to the
Constitution, be within the legislative competence of the Provinces"
15. In relation to the service matters, the employees of Federal
Government are regulated under the Civil Servants Act, 1973 while the
employees of Provincial Government are regulated under the Punjab Civil
Servants Act, 1974. For the service of Pakistan, the Federal Government
can make laws under Article 240(a) of the Constitution while subsection
(b) of Article 240 empowers the Provincial Government to make laws for
the service of the province.
16. The sole ground agitated by Mian Abdul Qudoos, ASC for the
Appellant before us is that he should be given the benefit of a Notification
w.e.f. 01.07.2012 when the Federal Government by amending Revised
Leave Rules, 1980 enhanced period of leave preparatory to retirement
from 180 days to 365 days. Although, the Provincial Government adopted
and extended the same relief to the employees of the Province yet the
Appellant is persistent that the Provincial Government has to give effect
such Notification w.e.f. 01.07.2012 instead of 01.09.2013. The said
ground of the Appellant is not valid because the Appellant performed his
duties and retired from the service in connection with the affairs of a
Province and his services were regulated under the Punjab Civil Servants
Act, 1974, preamble of which clearly states that an Act to regulate the
appointment to, and the terms and conditions of service in respect of the
services of the Province of the Punjab. The Civil Servants Act, 1973 was
enacted on 29.09.1973 and Punjab Civil Servants Act, 1974 was enacted
on 04.06.1974 therefore, the argument of learned counsel for the Appellant
to implement the Notification of the Federal Government in the Province
is not tenable because Provincial law has its own mechanism, rules and
regulations and the amendments therein is to be made by the Provinces
through the Provincial Assembly. Under the Punjab Government Rules of
Business, 2011, the Services and General Administration Department of
the Government of the Punjab has the mandate to administer Punjab Civil
Servants Act, 1974 and make rules therein hence, Notification questioned
by the Appellant was rightly passed by the Provincial Government.
Furthermore, after 18th Amendment, in set up of service matters, the
Constitution has drawn a line between the services of Pakistan with
Federation and Provinces hence they are distinguished from each other in
respect of making laws.
17. Moreover, in light of judgment of Hon'ble Supreme Court cited as
"Muzaffar Khan and others v. Government of Pakistan and others" (2013
SCMR 304), the Provincial Assembly becomes absolute once the domain
of legislation falls with the provinces after abolishment of Concurrent List
and in the issue of service, each Province has a separate law dealing with
it because under Article 240 of the Constitution, each Province has similar
legislation like of Federal Government's Civil Servants Act, 1973, The
Sindh Civil Servants Act, 1973, The Khyber Pakhtunkhwa Civil Servants
Act, 1973 and The Balochistan Civil Servants Act, 1974 because the words
used under Article 240 of the Constitution are very clear that on the
appointment and conditions to service of Pakistan the same shall be
determined by the Federation and in connection with affairs of Provinces,
under the Act of the Provincial Assembly.
18. It is to be noted that the Ministry of Finance and Revenue (Finance
Division),functions under the Rules of Business, 1973, by exercising
powers conferred under Section 25 of the Civil Servants Act, 1973,
amended its Revised Leave Rules, 1980 on 29.08.2012. The effect and
benefit of aforesaid amendment was applicable only to civil servants'
function under the Federal Government.
19. On the other hand, the Finance Department, Government of
Punjab, which functions under the Punjab Government Rules of Business,
2011 exercised the powers conferred under Section 23 of the Punjab Civil
Servants Act, 1974, amended the Revised Leave Rules, 1981 and by
adopting the same relief, as given by the Federal Government, extended
the same benefit to the employees.
20. From the above discussion, it is crystal clear that matter of service
of persons serving at posts in connection with the affairs of the Province
including their terms and conditions, which of course, include pensionary
matters, falls within the embrace of authority of the Province because
under the concept of Provincial Autonomy, the Province is free from
outside control and interference and also is well within its rights to follow
and pursue any scheme/Notification or any policy from any date, as it
deems appropriate. Furthermore, the Eighteenth Amendment to the
Constitution has introduced a drastic enhancement in the legislative
authority of the Provinces by deleting the Concurrent Legislative List
(CLL), whereby previously both the Parliament and the Provincial
legislatures could legislate on the subjects enumerated therein. The
omission of the CLL, left only a Single Legislative List (SLL) in the
Constitution which exclusively list subjects that can be legislated upon by
the Parliament alone, and by virtue of Article 142(c) of the Constitution
any subject not enumerated in the List would subject to the Constitution,
be within the legislative competence of the Provinces. The learned Single
Judge in Chamber has rightly held that "the Federal Government has
given effect to its policy from 01.07.2012 does not mean that the Provincial
Government has to do the same. In this case, the Provincial Government
had adopted the notification after more than one year. Therefore, there is
no justifiable reason to compel the Provincial Government to give effect
to the notification from 01.07.2012".
21. Upshot of above discussion is that after omission of Concurrent List
from the Fourth Schedule of the Constitution post Eighteenth
Amendment, now Provinces have exclusive domain and legislative
competence to legislate and regulate upon all those matters, which were
earlier part of that list. It is therefore within the exclusive domain of
Provincial Government to adopt a policy/Notification of the Federal
Government, which falls within its legislative competence and made its
applicability within the Province from that date, which it finds appropriate
and mere adopting such Notification of the Federal Government does not
made the same ipso facto applicable in entirety unless directed so by the
Provincial Government as it is within its competence to limit or extend
such applicability and it is not obligated upon it to adopt a policy on the
same date as made applicable by the Federal Government.
Moot Point No.2
22. Another objection was taken by learned counsel for the Appellant
that the learned Single Judge has ignored the orders of Ombudsman.
Suffice it to say that the findings of Mohtasib/Ombudsman are of
recommendatory nature and not a judgment/decision and such
performance of quasi-judicial functions by itself does not convert an
Authority into Court. In order to constitute a Court in stricto senso, it
should have power to give a decision or a definite judgment, which has
finality and authoritativeness therefore, office of Wafaqi Mohtasib is
neither a Court nor Judicial Tribunal within the scope of Article 175 of the
Constitution. Reliance is placed on "Shafaatullah Qureshi v. Federation
of Pakistan" (PLD 2001 SC 142) in which it has held that "the question of
determination as to which forum is a Court and which is not a Court, is
mainly dependant on the manner and method in which proceedings are
regulated before it. This process naturally embraces the procedural laws,
which bind it in its functions and determine its course of action. The
evidence being the deciding factor in all kinds of disputes, it is also
pertinent to see whether such forum follows the Evidence Act or not. It
may be mentioned here that the Evidence Act by virtue of the definition
describes such forums as 'Court' which follow its tenets. But it is only
relevant for the purpose of the Evidence Act. Ordinarily the decision of a
dispute by an arbitrator and a conciliatory body etc. may be termed as
decision by a Court but that is not so because such forums are not bound
by any law with regard to procedure and evidence, as such, they only settle
the dispute but do not administer justice according to law, and are not,
therefore, Courts. Hence, the Courts are such organs of the State which
follow legally prescribed scientific methodology as to procedure and
evidence in arriving at just and fail conclusions."
23. Furthermore in "Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhary and
others" (PLD 2016 SC 637), the functions of the Ombudsman have been
explained in the words that "likewise, on the statutory plane, the office of
the Ombudsman is essentially an executive function, which
(Ombudsman) serves as a statutory check on the Government to so as to
curb instances of maladministration. In this regard the enunciation of law
in the judgment reported as Federation of Pakistan through Secretary,
Establishment Division, Government of Pakistan, Islamabad v.
Muhammad Tariq Pirzada and others (1999 SCMR 2189) to the extent
that the President exercised quasi-judicial powers while deciding
representations under the Ombudsman law, does not seem to be the
correct exposition of law for the reason that the very functions of the
Ombudsman are not of a judicial nature, since the Ombudsman simply
holds a probe into maladministration by a Government agency and makes
recommendations which is very different from the orders a judicial officer
passes, and from those recommendation(s), a representation lies to the
President". So this argument of the Appellant is also turned down being
weightless.
F. Conclusion
24. Learned counsel for the Appellant has failed to convince us with
cogent reasons to set aside the impugned order and to show any illegality
or perversity in the same which warrants any interference by us. We agree
with the impugned order as the same has been passed in accordance with
law.
25. In view of above, the instant appeal, being devoid of any merit, is
hereby dismissed.
Mst. RUBINA ADNAN---Petitioner Versus MUHAMMAD HASSAN JAMAL ILYAS and others---
Respondents

 Case Number: Regular First Appeal No.1145 of 2016
 JUDGMENT
 Case Summary
Background and Filing of the Appeal
The case involves a Regular First Appeal against the judgment and decree
dated 25.06.2016, in which the Civil Judge, Lahore, dismissed the
Appellant's suit for damages against the Respondents.
Grounds for Dismissal by Trial Court
The trial court dismissed the suit, stating that the Appellant failed to prove
the damages caused to her. The Appellant challenges this decision in the
present appeal, arguing that her evidence was not properly considered.
Procedural History
The appeal was admitted for regular hearing on 12.01.2017. Despite notice
and press citation, the Respondents did not appear, leading to an ex-parte
proceeding against them on 25.04.2017.
Appellant's Contentions
The Appellant's counsel contends that the trial court did not adequately
consider the evidence, asserting that the Appellant proved her case with
un-rebutted evidence. The Appellant claims significant monetary loss and
damage to her reputation due to the Respondents' filing of forged and
fabricated suits.
Analysis of Trial Court Judgment
The trial court judgment reveals that the Appellant claimed Rs.80 million
in damages but failed to provide documentary proof or details of the
damages suffered. The court noted ambiguity in the details of litigations
and emphasized that the Appellant did not produce evidence supporting
her monetary claims.
Legal Standards for Malicious Prosecution
Referring to legal precedent in "Muhammad Akram v. Mst. Farman Bibi"
(PLD 1990 SC 28), the court outlined six elements for a malicious
prosecution claim. These include prosecution by the defendant, a
favorable outcome for the plaintiff, lack of reasonable and probable cause,
malice, interference with liberty and reputation, and resulting damages.
Application of Legal Standards to the Case
The court also cited "Messrs Mehran Electronics Company through
Partner v. National Bank of Pakistan" (2017 CLD 1642), emphasizing that
the Appellant must fulfill all elements for a malicious prosecution claim.
It highlighted the Appellant's failure to appear as a witness, noting that the
essential ingredients for such a claim were missing.
Conclusion and Dismissal of the Appeal
In alignment with the trial court's findings, the appellate court dismissed
the appeal, finding no illegality or perversity in the judgment. The decision
affirms that the trial court's judgment aligns with legal principles and does
not warrant interference.
Legal References:
 "Muhammad Akram v. Mst. Farman Bibi" (PLD 1990 SC 28)
 "Messrs Mehran Electronics Company through Partner v. National
Bank of Pakistan" (2017 CLD 1642)
ORDER
The instant Regular First Appeal has been filed against the judgment
and decree dated 25.06.2016 passed by Civil Judge, Lahore whereby the
suit for damages filed by the Appellant was dismissed.
2. Relevant facts of the case are that the Appellant filed a suit for
damages against the Respondents. After recording of evidence, the suit
was dismissed on the ground that the Appellant failed to prove the
damages caused to her. The said judgment and decree has been challenged
by the Appellant through present appeal.
3. This appeal was admitted for regular hearing on 12.01.2017. Despite
service of notice and subsequently citation in the press, the Respondents
did not opt to appear before the Court, hence they were proceeded against
ex-parte vide order of this Court dated 25.04.2017.
4. Learned counsel for the Appellant inter alia contended that while
passing impugned judgment and decree, the evidence produced by the
Appellant was not properly considered; that the Appellant proved her case
through un-rebutted evidence even then the suit was dismissed; that the
Appellant proved through the statements of the witnesses that she suffered
a huge monitory loss along with loss of reputation due to filing of forged
and fabricated suits by the Respondents.
5. Arguments heard. Record perused.
6. Record reveals that a suit before the trial Court was filed by the
Appellant claiming Rs.80 million as damages in respect of false and
frivolous suits filed by the Respondents coupled with mental torture and
tensions etc. The ground agitated by the counsel for the Appellant is that
the trial Court has not taken into consideration the evidence produced by
the Appellant. Perusal of impugned judgment and decree reveals that the
Respondents contested the suit and filed written statement however, they
absented themselves from the Court and resultantly were proceeded
against ex-parte and the trial Court, after considering the evidence of
Appellant, proceeded to dismiss the suit. We have noted that though
Appellant had claimed Rs.80 million as damages yet had not produced
any documentary proof or details of damages caused to her rather only
produced documents in respect of pending litigation between the parties.
The relevant part of the impugned judgment and decree reads as follows:
"The plaintiff has given the details of all the litigations which is
ambiguous one. As a matter of fact, the defendants firstly filed a suit for
declaration with permanent injunction on 09.02.2012 titled as
"Muhammad Hassan Jamal Illyas and others v. Allah Ditta and others"
in which the present plaintiff was arrayed as defendant at Serial No.10. In
the said suit, the plaintiff arrived at a compromise with the defendants vide
compromise deed (ExhP-6) in which it is categorically stated that the
defendant No.10/present plaintiff has compensated the plaintiffs/present
defendant and they have no objection upon the ownership of the present
plaintiff and said suit was dismissed as withdrawn to the extent of
defendant No.10/present plaintiff vide order dated 07.09.2012, which was
not dismissed on merit rather due to redressal of grievance by the present
plaintiff".
7. In order to sustain an action for malicious prosecution, the Hon'ble
Supreme Court of Pakistan in "Muhammad Akram v. Mst. Farman Bibi"
(PLD 1990 SC 28) formulated six (06) elements/ingredients which are as
follows:
"(i) That the plaintiff was prosecuted by the defendant;
(ii) That the prosecution ended in plaintiffs favour;
(iii) That the defendant acted without reasonable and probable cause;
(iv) That the defendant was actuated by malice;
(v) That the proceedings had interfered with plaintiffs liberty and had
also affected her reputation; and finally
(vi) That the plaintiff had suffered damage."
8. Similar view was taken in "Messrs Mehran Electronics Company
through Partner v. National Bank of Pakistan" (2017 CLD 1642) by
holding that one cannot be held entitled for the damages for malicious
prosecution unless the above ingredients are fulfilled and established.
Apart from other questions of fact the suit is liable to be dismissed on the
ground that the Appellant herself opted not to appear before the learned
trial Court as witness to prove the contents of plaint as only she can
personally depose about the alleged damage caused to her reputation etc
while the attorney cannot depose about the personal feelings and incidents
occurred to prove any damage to Plaintiff/Appellant. The trial Court
while dismissing the suit observed that the essential ingredients i.e.
termination of proceedings in favour of plaintiff, initiation of proceedings
without probable cause and causing of damages to the plaintiff are
missing.
9. In view of the above situation, we fully agree with the findings of the
trial Court and do not find any illegality or perversity in the impugned
judgment and decree which has been passed in consonance with the spirit
of law, hence, does not call for interference by us.
9(sic) As a sequel to above, this Appeal is hereby dismissed.
KHAWAR HUSSAIN----Appellant Versus GOVERNMENT OF PUNJAB and others----
Respondents

 Case Number: Intra Court Appeal No.16473 of 2020
 JUDGMENT
 Case Summary
Introduction and Background
In this Intra Court Appeal filed under Section 3 of the Law Reforms
Ordinance, 1972, the Appellant challenges the validity of the Impugned
Order dated 11.02.2020 in Writ Petition No.70599 of 2019, where the
Constitutional petition filed by the Appellant was disposed of.
Appellant's Grounds for Appeal
The learned counsel for the Appellant contends that the Impugned Order
is contrary to law and facts. The main arguments include the alleged
failure of the learned Single Judge to appreciate the true facts, the issuance
of fee challans not meeting prescribed criteria by Respondent No.4, and
the failure to consider the obligation of public functionaries to ensure the
implementation of the apex Court's judgment. The Appellant asserts that
the order lacks reasoning and application of mind, justifying its setting
aside.
Respondent's Counterarguments
The Learned Law Officer counters the Appellant's arguments, asserting
that the Impugned Order strictly adheres to the law and does not warrant
intervention by the Division Bench. The Respondent prays for the
dismissal of the Appeal.
Court's Deliberation and Analysis
Upon hearing both parties, the Division Bench reviews the record and
emphasizes the order's compliance with the law. The learned Single Judge
directed the District Registering Authority (DRA) to monitor and ensure
strict compliance with the apex Court's decision, coupled with adherence
to relevant laws and regulations. The Respondent No.3 was also tasked
with establishing complaint cells for future grievances.
Judicial Order and Precedent
The Court highlights the specific language of the Impugned Order,
emphasizing the DRA's responsibilities in implementing the apex Court's
decision. It suggests that any further grievances should be addressed
through the complaint cell established by Respondent No.3. The Division
Bench, finding no merit in the Appeal, dismisses it in limine. The Court
supports its decision by referencing the precedent in the case of "Nabeel
Akhtar Chaudhry and others v. Lahore Development Authority and 5
others" (2017 CLC 561).
Conclusion
In conclusion, the Intra Court Appeal is dismissed for lack of merit,
affirming the validity of the Impugned Order and emphasizing the need
for compliance with the apex Court's decisions. The citation of the legal
precedent further strengthens the Court's rationale in dismissing the
Appeal.
ORDER
Through this Intra Court Appeal filed under Section 3 of the Law
Reforms Ordinance, 1972 (the "Ordinance"), the Appellant has challenged
the validity of impugned order dated 11.02.2020 passed in Writ Petition
No.70599 of 2019 by the learned Single Judge (the "Impugned Order")
whereby the Constitutional petition filed by the Appellant was disposed
of.
2. Learned counsel for the Appellant mainly contended that the
impugned order is against law and facts; that the learned Single Judge has
not appreciated the real fact in its true perspective; that the learned Single
Judge in Chamber has not taken into consideration the fact that fee challan
for the year 2019 were not issued according to the prescribed criteria by
the Respondent No.4; that the learned Single Judge in Chamber has also
not appreciated that the public functionaries / Respondent No.3 is bound
to make sure implementation of the judgment passed by the Hon'ble apex
Court; that the impugned order is a non-speaking order and has been
passed without application of mind therefore, it is liable to be set-aside.
3. Learned Law Officer appeared and vehemently controverted the
arguments advanced by the learned counsel for the Appellant and
submitted that the impugned order has been passed strictly in accordance
with the law, therefore, does not warrant any interference by this Division
Bench. He also prayed for dismissal of this Appeal.
4. We have heard the arguments advanced by the learned counsel for the
parties and perused the record made available.
5. The learned Single Judge in Chamber while disposing of the writ
petition, passed order in the following manner:
"The private schools as well as parents/students are obliged to abide
by the directions of Hon'ble apex Court and shall facilitate the process of
implementation of decision in its letter and spirit. DRA shall closely
monitor the whole process in order to ensure strict compliance of decision
of Hon'ble apex Court and observance of applicable law, rules and
regulations. DRA shall also set up complaint cells to deal with future
grievances of the parties if any".
6. So far as the argument of learned counsel for the Appellant that the
learned Single Judge in Chamber has not taken into consideration the fact
regarding fee issues etc and implementation of Hon'ble apex Court order,
we have noted that in the impugned order, the learned Single Judge in
Chamber while clarifying the issues raised in writ petitions, directed the
Respondent No.3/the District Registering Authority to closely monitor
the whole process for strict compliance of decision of the Hon'ble apex
Court coupled with observance of applicable law, rules and regulations.
The aforesaid Respondent was also directed to set-up complaint cells to
deal with the future grievance of the parties. At this stage, if the Appellant
has any grievance, he may approach the complaint cell constituted by the
Respondent No.3 for redressal of his grievance. We see no reason or
justification to interfere in the impugned order. Reliance in this regard can
be placed on the judgment of the learned Division Bench of this Court in
case titled "Nabeel Akhtar Chaudhry and others v. Lahore Development
Authority and 5 others" (2017 CLC 561).
7. Hence, the instant Intra Court Appeal being devoid of any merit is
hereby dismissed in limine.
Sheikh TAIMUR ALI MUSTAFA----Petitioner Versus REGISTRAR, LAHORE HIGH COURT,
LAHORE and others----Respondents

 JUDGMENT
 Case Summary:
This case involves a constitutional petition where the petitioner sought a
declaration against the de-sealing and handing over of a property in
Lahore to specific respondents, claiming that these actions were based on
a misinterpretation of a court judgment. The petitioner argued that the
respondents' acts were mala fide and illegal, urging the property to be
sealed until a pending decision was made in a related case.
Upon reviewing the records, it was found that the relevant judgment in
RSA No.39/2011 ordered the de-sealing of the property based on the
conclusion of the case, recalling an earlier order to seal the property dating
back to 2004. The respondent, Mst. Mazhar Khanum, filed an application
for the appointment of a Bailiff, citing the court's orders in RSA
No.39/2011. Additionally, the respondent filed Crl. Misc.
No.20560/2019 for a similar purpose without disclosing the pending
nature of the previous application.
The Court noted that the actions of Respondents Nos.1 to 4 in de-sealing
the property were in compliance with the court orders in RSA No.39/2011
and were performed in their official capacities. The Court also addressed
the issue of whether a writ petition against the staff/establishment of the
Court was maintainable under Article 199(5) of the Constitution,
emphasizing that the establishment of the Lahore High Court is not an
individual and therefore not subject to such a writ.
Ultimately, the Court dismissed the writ petition, stating that it lacked
merit and referencing various legal cases to support its decision.
Legal References:
1. Article 199(5) of the Constitution of Pakistan, 1973: The Court
highlighted that a writ or order cannot be issued against the High
Court or Supreme Court under this article as it essentially targets the
courts themselves. It also mentioned that administrative or
executive orders passed by the Chief Justice or the Registrar under
the court's orders are protected under this article.
2. Cases Cited: a. Muhammad Imran v. Hon'ble Peshawar High Court,
Peshawar through Registrar and 2 others (2011 PLC (C.S.) 1465)
b. Shahab Mazhar Bhalli v. Pakistan Railways through Divisional
Superintendent and another (2014 PLC (C.S) 356) c. Miss Gulnaz
Baloch v. Registrar, Balochistan High Court, Quetta and others (2015
PLC (C.S.) 393)
These cases were referred to by the Court to support the notion that
administrative or executive orders under the directions of the Court enjoy
protection under Article 199 and cannot be challenged through a writ
petition.
JUDGMENT
Through this constitutional petition, the Petitioner has sought
declaration that acts of Respondents Nos.1 to 4 in de-sealing and handing
over possession of property 75-Brandreth Road, Lahore to Respondents
Nos.5 and 6 under alleged implementation of judgment of learned
Division Bench of this Court dated 21.02.2019, announced on 11.03.2019
passed in RSA No.39/2011 is malafide, hence the same be declared illegal
and unlawful and that the said property be ordered to be sealed and
attached till the decision of Cr. Misc. No.20560/2019 in Crl. Org. No.108-
C/2003.
2. The grievance voiced through this Constitutional Petition is that at
the time of processing the alleged false and non-maintainable application
of Respondent No.5 for de-sealing the property through their report, the
Respondents Nos.1 to 3 were seemed to be influenced mainly from the
order of the apex Court dated 17.10.2018 passed in HRC No.69198/2018
but unfortunately none of the respondents ever perused the said order of
the apex Court which was just with regard to the disposal of RSA
No.39/2011, as such acting as a tool in the hands of Respondents Nos.5
and 6 on such a false application, is gross-negligence on their part in
discharge of their official duties which otherwise amounts to criminal
breach of trust on their part. He further argued that the Respondents Nos.1
to 3 allegedly misconstrued and mis-interpreted the orders/judgment
dated 11.03.2019 with mala fide intention and de-sealed the property in
dispute which otherwise was got sealed under orders of this Court dated
26.01.2004 passed in Crl. Org. No.108-C / 2003 in RSA No.58/1990.
Therefore, the alleged contention of the Respondents that the property was
ordered to be de-sealed in RSA No.39/2011 and not in Crl. Org. No.108-
C/2003 is wholly baseless for which Crl. Misc. No.20560/2019 is pending
adjudication before this Court, therefore, the alleged act of the
Respondents was absolutely unjustified, illegal and without jurisdiction
and need to be recalled and declared as such.
3. Arguments heard and record perused.
4. It is reflected from perusal of record that RSA No.39/2011 was
decided by this Court vide judgment dated 11.03.2019, the relevant
portion of which is reproduced as under:-
"Parting with the judgment, the suit property was sealed by the
Bailiff of this Court vide order dated 22.03.2004, passed in
connected Crl. Org. No.108-C/2003. Since instant appeal as well as
Criminal Original has been decided, therefore, the aforesaid order
dated 22.03.2004 is hereby recalled and the suit property is ordered
to be de-sealed forthwith. "
Subsequently, the Respondent No.5 Mst. Mazhar Khanum, filed an
application dated 03.07.2019, on administrative side for immediate
appointment of the Bailiff. Accordingly, after due process, the said
application was produced before the then Registrar of this Court, who
passed the following order:-
"Please do the needful in the light of orders passed by the Hon'ble
Court in RSA-39/2011 announced on 11.03.2019."
It also transpired that said Respondent No.5 also filed Crl. Misc.
No.20560/2019 and prayed that a Bailiff of this Hon'ble Court may very
graciously be appointed at her costs and expense for breaking open the
locks of the premises sealed under orders of this Hon'ble Court dated
26.01.2004 passed in Crl. Org. No.108/2003. It is pertinent to mention
here that in the said application and subsequent applications, the
Respondent No.5 did not make mention that she had already moved Crl.
Misc. No.20560/2019 seeking same relief which is still pending.
Consequently, the then Registrar, in compliance of order passed in RSA
No.39/2011, deputed a Bailiff of this Court, who de-sealed the suit
property and delivered its possession to the Respondent No.5. The
Respondents Nos.1 to 4 did all this in their official capacity in compliance
with orders of this Court passed in RSA No.39/2011 and did not commit
any wrong. Further it was confronted to the counsel for the Petitioner that
how this writ petition is maintainable against the staff/establishment of
this Court but he failed to satisfy the Court. The establishment of Lahore
High Court is not a person under Article 199(5) of the Constitution of
Islamic Republic of Pakistan, 1973 (the "Constitution"). Whatever they
have done was under the dictates/orders of this Court and in their official
capacity. Since the property in dispute was sealed by a Bailiff, therefore,
the same ought to have been de-sealed by the same way, therefore, the
Registrar while deputing a Bailiff under the orders of the Court did not
commit any wrong. Further, no writ or a order can be issued to the High
Court or Supreme Court under Article 199 of the Constitution, as it
amounts issuance of same against the Supreme Court and High Court
itself. Moreso, the administrative or executive orders passed by the Chief
Justice of the High Court or the Registrar while acting under the orders of
Hon'ble Chief Justice, also enjoy the protection falling within the ambit of
said article. Reliance in this respect is placed upon "Muhammad Imran v.
Hon'ble Peshawar High Court, Peshawar through Registrar and 2 others"
(2011 PLC (C.S.) 1465), "Shahab Mazhar Bhalli v. Pakistan Railways
through Divisional Superintendent and another" (2014 PLC (C.S) 356),
"Muhammad Imran v. Hon'ble Peshawar High Court, Peshawar through
Registrar and 2 others" (2011 PLC (C.S.) 1465), "Miss Gulnaz Baloch v.
Registrar, Balochistan High Court, Quetta and others" (2015 PLC (C.S.)
393).
5. Resultantly, for what has been discussed above, the writ petition
being devoid of merit is hereby dismissed.
MUHAMMAD YAQOOB----Appellant Versus COMMISSIONER LAHORE DIVISION and others--
--Respondents

 Case Number: I.C.As. Nos.63865 and 67355 of 2019
 JUDGMENT
Case Overview: The case involves the challenge of two letters, one issued
by the Commissioner Lahore Division and another by PIA Employees
Cooperative Housing Society, deemed illegal and interfering with the
Appellant's land possession. The appeal arises from the dismissal of a
constitutional petition seeking to declare these letters as illegal, violative
of constitutional provisions.
Appellant's Claim: The Appellant asserts ownership of specific land
portions through registered sale deeds and mutations. They claim illegal
plotting by PIA Society on their land, leading to civil suits and petitions
for possession and cancellation of transfer letters pending before various
courts.
Legal Arguments: The Appellant contends that during ongoing civil and
revenue court proceedings, the Commissioner had no authority to initiate
inquiries or constitute committees, as it interferes with judicial matters.
They argued this action violated constitutional articles.
Respondent's Defense: The Respondent supported the impugned order,
stating it was in line with the law and rules. They prayed for the appeal's
dismissal.
Court's Findings: The Court observed that the Commissioner's letter for
constituting a committee interfered with ongoing judicial proceedings.
The order was based on a complaint from an overseas Pakistani citizen
received via the Prime Minister's Portal. Citing relevant legal precedents,
the Court emphasized the limited scope of the Commissioner's role and
the necessity to avoid interference in civil disputes.
Judgment and Legal References:
1. Interference in Judicial Proceedings: The Court found the
Commissioner's action in issuing the letters interfered with matters
under adjudication before competent courts, thus overstepping his
jurisdiction. (Reference: "Shahid Idrees v. Government of The
Punjab and others" (PLD 2018 Lahore 284))
2. Commissioner's Limited Scope: The Court emphasized the
limited role of the Commissioner in addressing complaints from
overseas Pakistanis, primarily concerning government agency
obligations. (Reference: "Tanveer Chishti v. City Police Officer and
others" (PLD 2020 Lahore 453))
3. Jurisdiction in Civil Disputes: The Court clarified that executive
bodies lack authority to determine third-party rights or interfere in
civil disputes, as this remains the purview of the judiciary.
(Reference: Legal principles highlighted in various cases)
Judicial Direction: The Court allowed the appeals, setting aside the
Single Judge's order. It directed the transfer of pending suits to courts of
competent jurisdiction and mandated their resolution within four months.
A compliance report was requested via the Additional Registrar (Judicial)
of the Court. (Reference: Legal principles highlighted in the judgment)
JUDGMENT
This judgment shall dispose of I.C.As. No.63865 of 2019 and 67355
of 2019 as both have emanated out of the same impugned judgment.
2. The Appellant has assailed the order dated 26.09.2019 passed by
learned Single Judge in Chamber whereby he dismissed the constitutional
petition filed by the Appellant to declare the letter dated 06.08.2019 issued
by Commissioner Lahore Division, Lahore as well as letter dated
19.11.2018 issued by PIA Society, as illegal, unlawful, mala fide,
malicious, violative to the provisions of Articles 4, 5 and 23 of the
Constitution of Islamic Republic of Pakistan, 1973.
3. Brief facts for the disposal of this appeal are that the Appellant
claims himself as owner in possession of land measuring 04-Kanals 10-
Marlas vide sale deed dated 10.12.2010, registered with Sub-Registrar
Allama Iqbal Town, Lahore and Mutation No.72072 in the revenue
record, land measuring 02-Kanals 08-Marlas through registered sale deed
dated 13.06.2018 registered with Sub-Registrar, Allama Iqbal Town,
Lahore Mutation No.96267 in the revenue record and land measuring 03-
Kanals vide registered sale deed dated 07.09.1989 and Mutation No.30466
in the revenue record.
4. It is the case of the Appellant that the Respondent No.8, PIA
Employees Cooperative Housing Society, who had purchased some
portion of land in the vicinity in which the land of the Appellant is situated
included the land owned and possessed in the map and illegally and
unlawfully carved out plots on it, as such the act of the Society is illegal.
The land of the Appellant is underneath of Plots Nos.84, 85 and 110-A/1
Block and 207-C Block and the Appellant is in possession over the said
plot on the basis of alleged sale deeds. The appellant also filed a civil suit
for cancellation of transfer letter which is pending adjudication. The
Appellant also filed another suit for possession through partition against
the society and others which is also pending before the civil court. The
Appellant also filed W.P. No.95095/2017 which was disposed of on
27.10.2017 with the direction to the SHO, Satto Katla, Lahore not to cause
any harassment to the Appellant. The President PIA Housing Society
Niaz Baig, Lahore made another request to the Deputy Commissioner,
Lahore for the removal of illegal possession on the Plots Nos.84, 85 and
100-A/I Block and 207-C Block, of the Society by issuing letter dated
19.11.2018 impugned in W.P. No.5155 of 2019, while through W.P.
No.47992 of 2019, the Appellant has challenged Notification dated
06.08.2019 issued by the Commissioner Lahore Division, Lahore whereby
committee was constituted to probe into the matter and for restraining the
Respondents from interfering into his peaceful possession. Both the writ
petitions were dismissed through the consolidated order dated 26.09.2019.
Hence this appeal.
5. Counsel for the Appellant has argued that while passing the
impugned orders in both writ petitions, learned Single Judge in Chamber
has failed to consider that during the pendency of the litigation in Civil
Court as well as in Revenue Courts the Commissioner/Respondent No.1
or Deputy Commissioner has no jurisdiction to initiate proceedings or
constitute any inquiry committee for the purpose of scrutiny of title
documents regarding the property of the appellant merely upon the verbal
direction of Chief Minister or on the application of Society which is
against law and violative to the Articles 4 and 10 of the Constitution of
Islamic Republic of Pakistan, 1973 (the "Constitution"), but this legal
aspect of the case has not been considered by the learned Single Judge in
Chamber while passing the impugned order, therefore, the same is not
sustainable in the eye of law. On query, counsel for the Appellant has
categorically conceded that litigation is pending before the Court of civil
jurisdiction and he has filed detail of suits pending before courts. The
detail of which is given as under:-
Serial Titles of Cases Courts Name
No.
1. Sardar Ghulam Jillani v. Mr. Faisal Rasheed C.J,
Muhammad Yaqoob, Lahore.
PIAECHS
2. Muhammad Yaqoob v. Shaista Mr. Muhammad Yasir
Tariq Arafat Dar, C.J.
3. Muhammad Yaqoob v. Shaista -do-
Tariq
4. Muhammad Yaqoob v. Najma -do-
Sultana
5. Muhammad Yaqoob v. LDA -do-
6. Muhammad Yaqoob v. Sufi -do-
Allah Dad Khan
7. Muhammad Yaqoob v. Shahzad -do-
Bin Aman
8. Muhammad Yaqoob v. Shahid -do-
Ameen
9. Muhammad Yaqoob v. Lubna -do-
Nasir
10. PIAECHS v. Addl. -do-
Commissioner
11. Muhammad Yousaf v. -do-
PIAECHS
12. Muhammad Yaqoob v. Mr. Mohsin Raza, C.J,
Muhammad Yousaf Lahore.
13. Muhammad Yaqoob v. Addl. -do-
Deputy Commissioner
14. Muhammad Yaqoob v. Najma Ch. Tariq Ali, C.J Lahore
Sultana
15. Muhammad Yaqoob v. Mr. Muhammad Abid
Commissioner Revenue. Ali, C.J Lahore.
16. Muhammad Yaqoob v. Saba Mr. Muhammad
Asif Karamat. Kamran, C.J Lahore.
17. Muhammad Yaqoob v. Mr. Abdul Hafeez, C.J,
Muhammad Arshad. Lahore.
18. Muhammad Yaqoob v. Ms. Ayesha Alamgir,
Muhammad Arshad C.J, Lahore.
19. Muhammad Yaqoob v. Ashiq Mr. Naveed Anjum
Hussain Bhalli Chaudhry, C.J.
20. Muhammad Yaqoob v. Wajahat Mr. Waqas Ahmad
Mir. Warraich, C.J, Lahore
21. Muhammad Yaqoob v. Wajahat -do-
Mir.
22. Muhammad Yaqoob v. Mr. Muhammad Abid,
Abdullah C.J, Lahore.
Lastly, he prayed for setting aside of the impugned order.

6. On the other hand, the counsel for the Respondent has supported
the impugned order and contended that the same has been passed in
accordance with law and rules therefore, no exception can be taken to it.
Lastly, he prayed for dismissal of the appeal.
8. It is reflected from perusal of record that through W.P.
No.5155/2019 the Appellant has challenged the letter dated 19.11.2018
whereby the Respondent Society requested the Deputy Commissioner for
the removal of illegal possession on the above said plots. While through
W.P. No.47992/2019 assailed letter dated 06.08.2019, whereby a Probe
Committee was constituted to visit the site of the plots, thrash out revenue
record, registration record, LDA Record/ Plan, Cooperative Department
Record, Housing Society's Record or any other document that may be
needed with reference to the said plot. Both the writ petitions were
consolidated and were dismissed vide order dated 26.09.2019.
9. The question to be determined is whether the Respondent No.l was
justified in issuing the letter dated 06.08.2019 for constitution of a
committee to resolve the controversy about Plot No.85-A/I when the
matter was already under adjudication before courts of competent
jurisdiction. Suffice it to say that the order dated 06.08.2019 issued by the
Commissioner, Lahore Division, amounts to interference in judicial
proceedings pending in the Courts of law, where the parties are appearing
in already mentioned cases, while no action has been taken so far by the
Deputy Commissioner on the application of Society. The said order was
issued on a complaint from the overseas Pakistani citizen received on
Prime Minister Portal and the Chief Minister being Executive Authority
of Province who directed the Respondent No.1 to submit a detailed report
regarding the matter in issue. In case titled "Shahid Idrees v. Government
of The Punjab and others" (PLD 2018 Lahore 284), it has been held that:-
"The functions of the Commissioner appointed under section 6 of
the Act are primarily to transmit a complaint received from an
overseas Pakistani to a Government Agency for redressal or refer
any complaint of Overseas Pakistani to the Ombudsman constituted
under the Punjab Office of the Ombudsman Act, 1997. The
Commission is more or a facilitation Centre in Pakistan for the
Overseas Pakistanis, who cannot attend to their affairs themselves.
The Commissioner simply forwards the complaint of an Overseas
Pakistan to the concerned Government Agency. Under Section 7(2),
the Government Agency is to respond to the Commissioner within
a period of 30 days. The District Committees also review complaints
of overseas Pakistanis pending with different offices in the district
and expedite their disposal".
It has been further held in the said judgment that:-
"The main purpose of the Commission is to help/redress the
grievance of Overseas Pakistanis relating to Government Agencies.
The grievance is, therefore, limited to the obligations and duties of
the Government Agencies under the law. In other words, the scope
of the complaint must co-relate to the functions of the Government
Agency to determine third party rights in a dispute between an
Overseas Pakistani and another private person. No such power is
vested in the Government Agency under the law. The complaint of
an Overseas Pakistani or the redressal of his grievance is limited and
confined to the jurisdiction enjoyed by the Government Agency
under the law."
In case titled "Tanveer Chishti v. City Police Officer and others"
(PLD 2020 Lahore 453), the following pre-requisites for filing of
complaint by the 'Overseas Pakistani' before the Punjab Overseas
Pakistanis Commissioner ('the Commission') have been elucidated:-
"Commission had to firstly, ensure that the person preferring a
complaint to it, fell under the definition of "Overseas Pakistani",
before taking any step, under the Punjab Overseas Pakistanis
Commission Act, 2014 (the 'Act') or proceeding with his complaint.
For a complaint, this was the necessary foundational touchstone,
which was required to be met, for putting in place the extraordinary
forum to seek redressal of his grievance, against a Government
Agency, and it was this very quintessential part, which was required
to be determined, in the first instance by the Commission, before
proceeding with the complaint, and adopting the mechanism of
transmitting the same to the Government Agency, while
recommending initiation of disciplinary actions against the
delinquent."
Regarding living a person permanently in Pakistan having
nationality of another country, it has been determined as under:-
"Person merely having nationality of another country but living in
Pakistan permanently could not be termed as an Overseas (for
purposes of the Punjab Overseas Pakistanis Commission Act, 2014
(`the Act') for redressal of grievance and protection for Overseas
Pakistani only and not for every dual national. In order to invoke
jurisdiction of the Commission, a person had to show that he was
an Overseas Pakistani with Pakistani origin and he/she either
permanently or temporarily resided outside Pakistan for
employment, business or any other purpose as defined in the Act
with intention to stay there for an unspecified period. "
Regarding resolution of civil dispute, he powers of Commission
have been defined as under:-
"Civil dispute between private persons relating to transaction of
money. Government Agencies on the behest and directive of the
Commissioner could not initiate proceedings against such private
persons by issuing them summons/notices in order to resolve a civil
dispute.
Determination of third party rights was unequivocally a judicial
function and could only be carried out by a court of laws i.e. the
judicature, and not by the Punjab Overseas Pakistanis Commission
(the 'Commission') or the Government Agencies, which formed
executive organs of the State. Government Agency had no authority
to summon a private person in excess of its powers particularly
when the law it operated under, did not expressly or by necessary
implication find mention of such powers. No law could authorize
an executive Government Agency to determine rights of private
parties, as it was the sole prerogative of he courts of law. When the
rights, the proceedings became unconstitutional and illegal.
Commission or the Government Agencies were not the Courts and,
therefore, any assumption of judicial power by the Commission or
the Government Agencies on the behest of Commission was also
unconstitutional and illegal. Private parties having a dispute over
transaction of money, may avail remedy under the Civil Procedure
Code, 1908 before the Civil Court which was court of ultimate
jurisdiction and was empowered to deal with such like matters."
"No preferential treatment for resolution of disputes. Overseas
Pakistanis, no matter wherever they may be, were subject to the
same protection of law as every other Pakistani without any
discrimination."
10. It view of the above, we have determined that Respondent No.1
was not justified in issuing the letter dated 06.08.2019 for constitution of
a committee to resolve the controversy when the matter was already under
adjudication before courts of competent jurisdiction. The order dated
06.08.2019 issued by the Commissioner, Lahore Division, Lahore
regarding thrashing record of Plot No.85-A/I amounts to interference in
judicial proceedings pending in the Courts of law, where the parties are
already appearing. Therefore, the Respondent No.1 has transgressed his
power/jurisdiction by issuing the impugned letter dated 06.08.2019.
In view of the above, since the matter is under adjudication before
the Courts of competent jurisdiction, therefore, no jurisdiction was vested
in Respondent No.1 in both the appeals to entertain and proceed with the
matter. Both the appeals are allowed and the order passed by learned
Single Judge in Chamber is set aside. Learned District Judge, Lahore is,
however, directed to transfer all the suits mentioned in para-5 of this
judgment to a court of competent jurisdiction and the said court will
decide the same within four months. A compliance report shall be
submitted through Additional Registrar (Judicial) of this Court.
EFU LIFE INSURANCE LTD.---Appellant Versus Mst. RUKHSANA MANZOOR---Respondent

 Case Number: Insurance Appeal No. 65704 of 2019
 JUDGMENT
 Case Summary
Introduction: The respondent filed an application seeking policy proceeds
under policy No.225550/39-EP and No.225551/39-EP, totaling Rs.
750,000/- and Rs. 500,000/-, respectively, along with liquidated damages
under section 118 of the Insurance Ordinance, 2000. The appellant raised
objections, including jurisdiction and limitation, and filed an application
for rejection under Order VII, Rule 11 of the CPC. The court directed the
appellant to file an application under Order VII, Rule 10 if they believed
the tribunal lacked jurisdiction. After procedural developments, the court
ex parte decreed the claim, leading to the present appeal.
Procedural Background:
The appellant, having raised objections on jurisdiction and limitation,
filed an application under Order VII, Rule 11 of the CPC, seeking rejection
of the claim. The court directed the appellant to file an application under
Order VII, Rule 10 if challenging jurisdiction. Subsequently, ex parte
proceedings occurred, and attempts to set aside were partially successful.
However, on a subsequent default, the appellant's application to set aside
ex parte proceedings was dismissed as time-barred. The court then decreed
the claim with costs and liquidated damages.
Legal Principle of Jurisdiction and Limitation:
The judgment references the settled principle that courts can consider
questions of law, including jurisdiction and limitation, even if not
explicitly raised by the parties. Citing "United Bank Limited v. Noor-Un-
Nisa" (2015 SCMR 380), the court emphasizes that courts must address
questions of limitation under section 3 of the Limitation Act, 1908,
irrespective of party contentions.
Appellant's Objections:
The appellant, in the written reply, explicitly raised preliminary objections
concerning jurisdiction and limitation. The court's failure to consider these
objections and proceed to ex parte decree without addressing jurisdiction
and limitation issues was highlighted as a departure from legal
requirements.
Setting Aside Ex Parte Proceedings:
The court, on appeal, found that the lower court did not consider the
objections raised by the appellant and did not provide issue-wise findings.
Emphasizing the need to determine jurisdiction and limitation before
proceeding, the court set aside the impugned order and directed the case's
remand for proper consideration of these issues.
Judicial Remand and Directions:
The court allowed the appeal, setting aside the order, and remanded the
case to the lower court. The direction includes granting the appellant the
right of cross-examination on witnesses produced by the respondent. The
lower court is instructed to record the appellant's evidence and decide the
case afresh within three months from the judgment's receipt.
Legal References:
 "United Bank Limited v. Noor-Un-Nisa" (2015 SCMR 380)

 "Lahore Development Authority v. Mst. Sharifan Bibi" (PLD 2010
Supreme Court 705)
 "Sardar Anwar Ali Khan v. Sardar Baqir Ali" (1992 SCMR 2435)
JUDGMENT
SHAHID BILAL HASSAN, J.---Succinctly, the respondent filed
an application for claiming of policy proceeds under policy
No.225550/39-EP and No.225551/39-EP amounting to Rs.750,000/-
and Rs.500,000/- respectively along with liquidated damages under
section 118 of the Insurance Ordinance, 2000. The present appellant filed
written statement and raised preliminary as well as factual objections.
Question of jurisdiction has also been raised. The learned Court below out
of the divergent pleadings of the parties framed issues. During pendency
of the application, the present appellant filed an application under Order
VII, Rule 11 of the Code of Civil Procedure, 1908 seeking rejection of the
application, which was duly resisted by the respondent. The learned Court
below vide order dated 04.02.2017 disposed of the said application with
the observation that the present appellant may file an application under
Order VII, Rule 10 of the C.P.C. first if he considers that this Tribunal has
got no jurisdiction to entertain this application. Later on, the appellant was
proceeded against ex parte and application for setting aside the same was
accepted on 01.03.2018 subject to payment of costs. However, on
25.09.2018, again the appellant defaulted and was proceeded against ex
parte and the appellant filed application for setting aside ex parte
proceedings on 22.04.2019, which was dismissed being barred by time
vide impugned order dated 26.09.2019 and ex parte decreed the claim with
costs as prayed for along with liquidated damages at the rate of 5% higher
to the base rate under section 118 of the Insurance Ordinance, 2000.
Therefore, the instant appeal has been preferred.
2. Heard.
3. It is a settled principle of law that question of law even if not taken or
raised by the party, could be considered by the Courts themselves even at
appellate and revisional stages. In judgment reported as United Bank
Limited and others v. Noor-Un-Nisa and others (2015 SCMR 380), the
Apex Court of the country held that:--
'Under section 3 of the Limitation Act, 1908, it is the bounden duty of
every Court of law to take notice of the question of limitation even if not
raised in defence by the other contesting party(s).
Earlier to the above said celebrated judgment, the Hon'ble Supreme Court
of Pakistan dealt with the same proposition in Lahore Development
Authority v. Mst. Sharifan Bibi and another (PLD 2010 Supreme Court
705) and Sardar Anwar Ali Khan and 10 others v. Sardar Baqir Ali
through Legal Heirs and 4 others (1992 SCMR 2435).
Perusal of the written reply submitted by the present appellant goes to
make it diaphanous that preliminary objections with regards to
jurisdiction and limitation were raised by the appellant but the learned
Court below without considering the same and dilating upon the said
questions of law proceeded to ex parte decree the claim of the respondent,
which is against the myth and scheme of law, because a Court seized of
the matter first has to determine whether it enjoys the, jurisdiction to
entertain the subject matter and whether the lis has been instituted or filed
within limitation prescribed under law and then to proceed with the matter
further. However, in the instant case, no such exertion has been made by
the learned Court below despite the fact that such objections were raised
by the appellant in his written reply and issues in this respect were framed.
The learned Court below did not bother to give issue-wise findings. In this
backdrop, such practice cannot be allowed to prevail. Therefore, we allow
the appeal in hand, set aside the impugned order dated 26.09.2019 and by
allowing the application for setting aside ex parte proceedings filed by the
appellant, remand the case to the learned Court below with a direction to
grant right of cross-examination to the appellant on the witnesses
produced by the respondent and record evidence of the appellant, where-
after decide the case afresh, within a period of three months from the date
of receipt of certified copy of this judgment. The adversaries are directed
to appear before the learned Court below on 29.09.2021.
MUHAMMAD ABBAS--Appellant versus NATIONAL BANK OF PAKISTAN--Respondent

 Judge(s): Masud Abid Naqvi and Mirza Viqas Rauf, JJ
 JUDGMENT
Introduction: This Regular First Appeal involves a banking dispute where
the respondent/bank filed a suit for the recovery of Rs. 22,52,592 against
the appellant. The suit was decreed in favor of the bank, and the appellant
filed the appeal challenging the judgment and decree.
Factual Background: The respondent bank provided a finance facility of
Rs. 1.800 million to the appellant, who executed requisite documents. The
suit was filed upon the appellant's failure to repay the loan. The appellant
filed a petition for leave to appear and defend (PLA), which was
dismissed, resulting in the decree of Rs. 19,98,110/- against the appellant.
Appellant's Arguments: The appellant contended that the PLA was
dismissed erroneously, asserting that it was within time. Additionally, the
appellant argued that the Banking Court should have considered legal
questions before decreeing the suit.
Court's Analysis: The court examined the records and observed that the
appellant availed the finance facility and executed relevant documents.
The appellant admitted the disbursement of the loan in the PLA but
claimed that nothing was outstanding. The court found that the claim of
the bank was supported by documentary evidence, and there was no
rebuttal. The statement of account, a key document, was deemed legally
authentic, and the appellant failed to present any documents in rebuttal.
Legal References:
 Financial Institutions (Recovery of Finances) Ordinance, 2001

(Section 10(3), (4), (5), (6))
 Effect of non-compliance with statutory provisions discussed in
"Apollo Textile Mills Ltd. and others v. Soneri Bank Ltd." (2012
CLD 337)
Decision and Conclusion: The court dismissed the appeal, stating that the
appellant failed to substantiate claims or show discrepancies in the
statement of account. The court upheld the judgment and decree passed
by the banking judge, concluding that there was no merit in the appeal.
JUDGMENT
Masud Abid Naqvi, J.--Brief facts of this Regular First Appeal are that
being a Banking Company, the respondent/bank filed a suit for recovery
of Rs. 22,52,592 alongwith cost and cost of funds against the appellant
with the averments that the defendant applied for and availed finance
facility to the tune of Rs. 1.800 million vide sanction advice dated 2.9.2009
with markup @ 15.50% per annum and 20% margin on the value of Agri
Pass Book/30% average sale price, repayable once a year in full with
markup, for a period of three years. For securing the loan from
respondent/bank, the defendant/appellant executed all the requisite
documents. On the failure to pay back the due amount by the
defendant/appellant, the respondent/bank filed the suit. The appellant
appeared before the banking Court and filed PLA which was dismissed
and the suit was decreed to the tune of Rs. 19,98,110/- jointly and
severally with cost and cost of funds from 01.01.2013 till the date of
realization vide judgment and decree dated 23.10.2014. Aggrieved by
judgment & decree dated 23.10.2014, the appellant/defendant has filed
instant appeal and challenged the same.
2. We have heard the arguments of the learned counsel for the parties and
3. Perusal of record reveals that on the request, the appellant availed
finance facility to the tune of Rs. 1.800 million under Agricultural Finance
Production for three years in accordance with the agreement on markup
basis and the appellant executed certain documents in favour of
respondent/bank. The appellant has admitted execution of these
documents in PLA and has appended the same with the plaint which was
filed by duly authorized person namely Muhammad Suleman, Vice
President, General Manager Business, National Bank of Pakistan
Regional Office Sahiwal as general attorney of the plaintiff bank. In
application for leave to appear and defend the suit, the appellant candidly
acknowledged/admitted the disbursement of loan but claimed that
nothing is outstanding, against him. The claim of respondent/plaintiff is
duly supported by the documentary evidence including the statement of
account and there is no rebuttal on the file. The statement of account
clearly shows the deposits and withdrawals. The statement of account
through which complete picture of the credit facility obtained by the
appellant is visible would carry the legal authenticity. Since, no document
is available on the record in rebuttal of the statement of account the
statement of account carries presumption of truth by virtue of Section 4 of
the Act of 1891 when the entries therein are not rebutted with cogent
reasons.
4. We have also observed that the application for leave to defend the suit
has not been drafted in abcordance with the provisions of Section 10(4),
of the Financial Institutions (Recovery of Finances) Ordinance, 2001 The
appellant failed to point out any discrepancy/contradiction in the
statement of account or to refer any receipt of payment which has not been
shown or adjusted in the statement of account. It was the duty of the
appellant to furnish the details of amount of finance availed from the
financial institution, amount paid with the date of payment and the
amount disputed, if any, in the application for leave to defend the suit but
defendant/appellant failed to comply with the mandatory provision of law
without furnishing sufficient cause for non-compliance of the above said
requirements of the law. The Hon’ble Supreme Court of Pakistan in a
judgment reported in Apollo Textile Mills Ltd. and others v. Soneri Bank
Ltd. (2012 CLD 337) has discussed the effect of non-compliance with the
provisions of Section 10(3)(4) and (5) of the Financial Institutions
(Recovery of Finances) Ordinance, 2001 as under:
“19. In this case, the application for leave to defend the suit filed by the
petitioners did not fulfill the requirements of Section 10(3), (4) and (5) of
the Financial Institutions (Recovery of Finances) Ordinance XLVI of
2001. It was admittedly not in conformity with the said mandatory
provisions. No cause or the reason for inability to comply with said
requirements was shown. Instead it was expressly admitted by the learned
Senior Advocate Supreme Court for the petitioners before the High Court
and also before us that the petitioners failed to fulfill the mandates of the
said provisions and did not plead the required Accounts. The
petitioners/defendants thus attracted the prescribed legal Consequences
of:--
(i) rejection of their leave petition under Section 10(6);
(ii) non-entitlement under Section 10(1) to defend the suit for not
obtaining leave to defend the suit in terms provided for in Section 10;
(iii) the allegations of fact in the plaint were deemed under Section 10(1)
to have been admitted by them; and
(iv) a judgment and decree against them and in favour of the plaintiff
bank under Sections 10(1) and 11 ibid.
5. The bald allegations/claims of the appellant have been properly dealt
with by the learned banking Court and even at this stage, the learned
counsel for the appellant failed to show any discrepancy about the entries
in the Statement of Account. Hence, the appellant has miserably failed to
substantiate his case by giving any valid grounds for setting aside the
impugned judgment and decree which was passed by the learned banking
judge by discussing and adjudicating upon all the details of loan as well as
the payments by the appellant.
6. In view of the foregoing detailed discussion, we do not find any merit
in this appeal and the same is accordingly dismissed.
Syed GHAZANFAR ABBAS BUKHARI--Appellant versus UNITED BANK LIMITED--Respondent

 Result: Appeal Disposed Of
 Judge(s): Masud Abid Naqvi and Amin-ud-Din Khan, JJ
 JUDGMENT
 ORDER
Learned counsel for the appellant while relying upon “Abid Aziz
Khan and 2 others versus Bank of Punjab through Branch
Manager” (2007 CLD 997) and “Kings Tyre Industries Limited,
through Director and 5 others versus Union Bank Limited through
Manager and 2 others” (2007 CLD 1649) argues that leave
application filed by the appellant was dismissed for non-
prosecution by the learned Judge Banking Court, therefore, ex-
parte judgment and decree was passed which is not sustainable
under the law.
2. Learned counsel for the respondent bank states that the
impugned judgment and decree dated 4.6.2016 is in accordance
with law as the leave application was not decided by the learned
Judge Banking Court and same was dismissed for non-prosecution
which fact has not been denied by the learned counsel for the
plaintiff-respondent, therefore, in the light of judgments
referred supra the learned Court below was bound to decide the
leave application even if the applicant was not available before the
Court on the said date of hearing, therefore, impugned judgment
and decree dated 4.6.2016 is not sustainable under the law, same
is set aside. Matter is remanded to the learned Judge Banking Court
who is directed to proceed from the stage of hearing arguments on
the leave application and decide the matter in accordance with
law. Parties to appear before the learned Judge Banking Court on
13.12.2017. Disposed of.
MUHAMMAD BASHIR etc--Appellants versus GULAB DIN etc.--Respondents

 JUDGMENT
1. Background The case involves a suit for specific performance filed by
Ghulab Din, predecessor in interest of present respondents, based on an
agreement to sell land. The appellants/defendants resisted the suit, leading
to a trial and subsequent appeal.
2. Trial and Judgment After framing issues and hearing the evidence, the
trial court decreed the suit in favor of Ghulab Din. The court noted that
the defendants admitted the execution of the agreement but disputed the
payment of earnest money. Despite this, the court found in favor of the
plaintiff on issues of execution and earnest money, decreeing specific
performance.
3. Lack of Proper Judgment The appellants challenged the judgment,
asserting that it lacked proper determination of legal and factual points,
reasoning, and consideration of evidence. The court emphasized the
importance of a judgment containing concise statements of facts, points of
determination, decisions, and reasons.
4. Reasons for Reversal The appellate court found that the trial court
failed to provide adequate reasons or grounds for its decision. It
highlighted the duty of the plaintiff to prove the transaction affirmatively
with relevant evidence. The court concluded that the judgment did not
meet the requirements of Order XX Rule 4(2) of the Civil Procedure Code.
5. Setting Aside the Judgment Considering the deficiencies in the
judgment, the appellate court set aside the impugned judgment and
decree. The matter was remanded back to the trial court for a fresh
decision on merits, ensuring compliance with legal standards.
JUDGMENT
Masud Abid Naqvi, J.--Brief facts necessary for the adjudication of this
lis are that predecessor in interest of present respondents namely Ghulab
Din filed a suit for specific performance on the basis of an agreement to
sell with regard to land measuring 99-kanals & 02-marlas (properly
described in the plaint) with the averments that the appellants/defendants
agreed to sell the suit land to him by Executing an agreement to sell dated
17.6.2005. Predecessor in interest of present respondents paid earnest
money of Rs. 12,00,000/- out of sale consideration of Rs. 29,38,125/- to
the appellants/defendants and possession of suit land was also delivered
to predecessor in interest of present respondents. The predecessor in
interest of present respondents requested the appellants/defendants to
execute the registered sale deed but the request was not acceded to,
thus Constraining him to file the suit on 14.01.2006. The
appellants/defendants resisted the suit by filing the written statement and
by raising factual as well as legal objections. Issues were framed by the
learned trial Court and the parties produced their respective evidence.
After recording the same, learned trial Court vide judgment and decree
dated 14.12.2010 decreed the suit of the predecessor in interest of present
respondents. Feeling aggrieved, the appellants/ defendants have filed the
instant appeal and challenged the validity of the judgment and decree
passed by the learned trial Court.
2. Learned counsel for the appellants/defendants contented, inter alia,
that the impugned judgment and decree are liable to be set aside as the
same has been passed without determining the legal as well as factual
points, decision thereon and assigning proper reasons thereof, without
considering the evidence of the parties while the learned counsel for the
respondents fully supported the impugned judgment and decree. We have
heard the arguments-of the learned counsel for the parties and have
minutely gone through the record as well as the impugned judgment and
decree.
3. Perusal of impugned judgment reveals that out of divergent pleadings
of the parties, 08 issues were framed by the learned trial Court. The parties
produced their respective evidence. Onus to prove Issues No. 1 & 2 about
execution/enforcement of agreement to sell & payment of earnest money
lies on the plaintiff/predecessor-in-interest of present respondents. In
order to prove these issues, the plaintiff/ predecessor in interest of present
respondents appeared/deposed as PW-3 and produced Zafar Hussain,
Abdul Sattar as PW-2 &PW-3. The plaintiff/predecessor in interest.of
present respondents exhibited documents from Ex.P-1 to Ex.P-13. On the
other hand Mohammad Suhal appeared/deposed as DW-1. After hearing
the learned counsel for the parties, learned trial Court decreed the suit of
plaintiff/predecessor in interest of present respondents. For the proper
appreciation of the legal and technical objections raised, it is worthwhile
to reproduce Hereunder findings about the Issues No. 1 & 2 of the
impugned judgment & relief granted therein:
“Both these issues are inter connected with each other therefore these
issues are being discussed jointly. Plaintiffs’ story in nutshell is that he
entered into an agreement to sell with the defendants and Rs. 12,00,000/-
were paid as earnest amount and agreement was executed. On the other
hand defendants denied the execution of the agreement and alleged that
the impugned agreement is the result of fraud and payment of
Rs. 12,00,000/- was also denied. It is noted that vide document Ex.P-3 the
defendants filed application to the worthy Sessions Judge Layyah wherein
they admitted the execution of the agreement and they have denied the
payment ofRs. 12,00,000/-. It is further noted that in this very document
defendants have admitted that they have received only Rs. 2,00,000/- as
earnest amount. Meaning thereby the execution of impugned agreement
is admitted when the execution of agreement is admitted, how the
contents of agreement denied. Furthermore Zafar Yasmin who is also
marginal witness, Abdul Sattar marginal witness and plaintiff appeared
and they have proved the execution of agreement in their favour.
Admitted facts are not need to prove, therefore, issues are decided in
favour of the plaintiff.
Relief
According to my findings on Issues No. 1 and 2 suit of the plaintiff
for specific performance of the contract is hereby decreed. Plaintiff is
directed to deposit remaining amount within thirty days of the
announcement of the judgment, failing which the suit will be treated as
dismissed. With no order as to costs”.
4. The word “judgment” is defined in Section 2(9) as “the statement given
by the Judge of the grounds of decree or order”. Under Order XX Rule
4(2) CPC, a Court is bound to record judgment containing concise
statement of fact, point of determination, the decision thereon and reasons
for such decision. The most important ingredient of a valid judgment is
the reasons or grounds for decision because the validity of the judgment in
higher forum is to be seen from the reasoning and the same is to be
challenged by the aggrieved party again with reference to the reasons. In
other words, the aggrieved party is to attack the reasoning of the judgment
in appeal and not the narration of facts. The conclusion arrived at by the
Court will not be binding without reasoning, therefore, the Courts insist
that even in ex-parte judgments, reasons should be clearly given. The
matter can be looked from another angle that it is cardinal principle of
justice that justice should not only be done but it should seems to have
been done. The reasoning is also necessary to satisfy this most important
principle of dispensation of justice. The accumulative effect of Section 2(9)
and Order XX Rule 4(2) CPC would be that decision by a Court to be
termed as judgment must be based on reasons and failure to comply with
this requirement would render the judgment nullity and unsustainable.
Apart from the reasons noted (supra), there is no cavil to the proposition
that it was/is the duty and obligation of the plaintiff beneficiary of a
transaction or a document to affirmatively prove the same by adducing
cogent, relevant, unimpeachable oral as well as documentary evidence
and while deciding about a transaction or a document, the Court has to
discuss in detail the oral & documentary evidence of the beneficiary of a
transaction or a document. Considering the impugned judgment on the
touchstone of abovementioned principles, we have no doubts in our mind
that the learned trial Court has not only failed to give the legal as well as
factual reasons or grounds but also failed to consider and discuss the
evidence of both the parties satisfactorily to ensure that learned trial Court
has applied its judicial mind and that the findings are based on proper
appraisal of evidence on the record. Hence, the impugned judgment is
liable to be reversed as the same is not in consonance with the
requirements of Order XX Rule 4(2) of the Civil Procedure Code (Act V)
of 1908.
5. In view of the foregoing comprehensive discussion, the
appellants/defendants have successfully made out a case for interference.
Accordingly, it is observed that the impugned judgment and decree of
learned trial Court are not sustainable at law and the same is
accordingly set-aside and the matter is remanded back to the learned trial
Court for decision afresh on merits according to the law in the light of
observations made above within 03 months. For this purpose, the parties
shall appear before the learned Senior Civil Judge Karor Lal Eisan on
19.07.2016.
MUHAMMAD KASHIF---Petitioner Versus DEFENCE HOUSING AUTHORITY and others---
Respondents

 JUDGMENT
 Case Summary
Introduction: The case before the court, titled "Masud Abid Naqvi, J.,"
involves a dispute over the ownership of land in Lahore Cantt. The
petitioner claimed ownership based on a sale deed dated 24.05.2014, while
the respondent challenged the suit for cancellation of the sale deed through
an application under Order VII, Rule 11, C.P.C.
Jurisdictional Argument: The petitioner's counsel argued that the court,
when considering Order VII, Rule 11, C.P.C., should confine itself to the
plaint's averments. The counsel cited legal precedents, including S.M.
Sham Ahmad Zaidi v. Malik Hassan Ali Khan (2002 SCMR 338) and
Pakistan Agricultural Storage and Services Corporation Ltd. v. Mian
Abdul Latif (PLD 2008 SC 371), asserting that the court's role is to prevent
frivolous litigation at the outset.
Legal Interpretation of Order VII, Rule 11, C.P.C.: The court, in
response, emphasized the purpose of Order VII, Rule 11, C.P.C., is to
prevent frivolous litigation at the initiation of proceedings. The court
noted that it may consider not only the averments in the plaint but also
other materials on record that are legally sufficient to refute the plaintiff's
claim.
Factual Background: The record revealed that the respondent had
purchased land but failed to have it mutated in revenue records, violating
Section 48(2) of the West Pakistan Land Revenue Act, 1967. The court
clarified that mutation is not a document of title but serves fiscal purposes,
citing Ghulam Sarwar v. Ghulam Sakina (2019 SCMR 567).
Fraudulent Activities: The court found that the sellers and the petitioner
fraudulently obtained the "Fard" of the sold land and executed a sale deed,
misleading the revenue authorities in violation of the law. The court
highlighted that the respondent had initiated legal actions, including a
complaint leading to an Anti-Corruption Establishment inquiry, against
delinquent officers for criminal breach of trust.
Rejection of Plaint: Given the fraudulent activities and legal violations,
the court upheld the revisional court's decision to reject the plaint under
Order VII, Rule 11, C.P.C. The court emphasized that when the cause for
rejection becomes apparent, the plaint should be rejected promptly to
relieve the defendant of vexatious litigation.
Dismissal of Petition: The petitioner's counsel failed to identify legal
infirmities in the revisional court's judgment. Consequently, the petition
was dismissed by the court.
Legal Reference: Throughout the judgment, the court referred to legal
principles such as those laid out in S.M. Sham Ahmad Zaidi v. Malik
Hassan Ali Khan (2002 SCMR 338), Pakistan Agricultural Storage and
Services Corporation Ltd. v. Mian Abdul Latif (PLD 2008 SC 371), and
Ghulam Sarwar v. Ghulam Sakina (2019 SCMR 567) to support its
interpretation and application of Order VII, Rule 11, C.P.C.
ORDER
MASUD ABID NAQVI, J.----Brief facts necessary for the adjudication of
this lis are that by filing a suit for cancellation of sale deed No.8587 dated
10.11.2003 (executed in favour of respondent/defendant No.1) with
permanent injunction against the respondent No.1/defendant, the
petitioner/ plaintiff claimed to be owner in possession of land measuring
55-Kanals in Khewat No. 373, Khatoni Number 489, situated in village
Karbath, Lahore Cantt. on the basis of sale deed No. 12269 dated
24.05.2014 executed in his favour and Mutation No. 1 entered/sanctioned
on 18.06.2014. The respondent No.1/ defendant filed an application
under Order VII, Rule 11, C.P.C for rejection of plaint which was
dismissed by the learned trial court vide order dated 12.01.2016. Feeling
aggrieved, the respondent No.1 / defendant preferred a revision petition
and the learned Additional District Judge accepted the revision petition
vide judgment dated 04.03.2017. Being dissatisfied, the petitioner/plaintiff
has filed the instant writ petition and challenged the validity of the
judgment passed by the learned revisional court.
2. Learned counsel for the petitioner/plaintiff mainly argues that while
exercising the jurisdiction under Order VII, Rule 11, C.P.C., the court has
to confine itself to the averments made in the plaint and it is not supposed
to travel beyond the contents of plaint and also not to consider other
material while by relying on the judgments reported as S.M. Sham Ahmad
Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through
Legal Heirs (2002 SCMR 338) and Pakistan Agricultural Storage and
Services Corporation Ltd. v. Mian Abdul Latif and others (PLD 2008 SC
371) etc, learned counsel for the petitioner/plaintiff argues in rebuttal that
object of Order VII, Rule 11, C.P.C. is primarily to save the parties from
rigours of frivolous litigation at the very inception of the proceedings and
besides averments made in the plaint, other materials available on record
which on its own strength is legally sufficient to completely refute the
claim of the plaintiff can also be looked into for the purpose of rejection of
plaint. I have heard the arguments of learned counsels for the parties and
impugned judgment.
3. Perusal of record reveals that although the defendant / respondent
No.1 purchased land measuring 109 Kanals and 05-Marlas in Khasras
Nos.1005 and 1006 from Messrs Mohammad Sadiq, Rehmat Ali and
Allah Rakha sons of Ghulam Mohammad through Sale Deed No.8587
dated 10.11.2003 but concerned revenue authorities failed to
enter/sanction the purchased land in revenue record through mutation, in
connivance with the sellers rather with collaboration of the concerned
revenue authorities and in violation of Section 48(2) of West Pakistan
Land Revenue Act, 1967. It is well settled by now that the mutation is not
a document of title and meant for fiscal purpose only. Reference is made
to case reported as Ghulam Sarwar (deceased) through LRs and others v.
Ghulam Sakina (2019 SCMR 567).
After settlement operation, the said Khasras Nos.1005 and 1006 were
changed to Khasra Nos.1057 and 1058. The abovementioned sellers and
present buyer/plaintiff fraudulently obtained the "Fard" of sold land and
executed sale deed No.12269 dated 24.05.2014 and mutated the same by
the concerned revenue authorities through Mutation No.1 dated
18.06.2014 and filed suit on 27.06.2014 wherein the
defendant/respondent No.1 filed application under Order VII, Rule 11, of
C.P.C. After the purchase of disputed land, the defendant / respondent
No.1 took the possession of disputed land on 09.02.2003, completed the
development works with 59 plots and already allotted 33 plots to the
different allottees. The stance of the plaintiff/petitioner regarding the
purchase of land with possession while the disputed land was already
under the possession of defendant/respondent No.1 which were doing
development activities is not believable rather the sellers and present buyer
have simply committed fraud with the defendant/respondent No.1 by
collaborating with and in connivance with the concerned revenue
authorities. On the complaint of defendant / respondent No.1, a detailed
enquiry has been already been completed by the revenue officer wherein
the matter has not only been referred to the Anti-Corruption
Establishment but proceedings are initiated against the delinquent
employees/officers under PEEDA Act, 2006 for committing criminal
breach of trust. Hence by invoking provisions of law especially, Order VII,
Rule 11 of C.P.C., the learned revisional court rejected the plaint on the
principle that as soon as the cause for rejection appears, the plaint should
be rejected straightaway and such suit should be taken off the file at its
very inception and defendant be relieved of vexatious litigation by
discussing the averments of plaint along with other materials available on
the record which on its own strength are legally sufficient to completely
refute the claim of the plaintiff/petitioner.
4. Learned counsel for petitioner/plaintiff has failed to point out legal
infirmity in the impugned judgment and decree passed by the learned
revisional court, therefore, this petition is dismissed.
ABDUL WAJID Versus NATIONAL DATABASE AND REGISTRATION AUTHORITY and others

 JUDGMENT
 Case Summary
This case involves an Intra Court Appeal under the Law Reforms
Ordinance, 1972 against the dismissal of a writ petition. The appellant,
initially hired on a two-year contract, later received an extended five-year
contract and subsequent promotion. However, his services were
terminated and subsequent appeals were dismissed. The appellant
contended that the termination was illegal, while the respondents argued
the appellant's temporary status justified the termination.
Judgment Summary
The Court observed that the appellant's appointment was under a
temporary contract explicitly allowing termination upon a one-month
notice or payment in lieu of notice. The court cited various precedents
emphasizing the temporary nature of employment contracts, highlighting
that accepting terms and conditions precludes later claims for
regularization. The Court upheld the lower court's decision, asserting that
the appellant's performance was unsatisfactory, and the termination
adhered to contractual provisions.
Legal References
The judgment draws on legal precedents:
1. "Chairman NADRA, Islamabad v. Muhammad Ali Shah and
others" (2017 SCMR 1979) - Emphasizes the master-servant
relationship in temporary employment situations.
2. "Shahzad Ghohar v. Government of Punjab and Aitchison
College" (2018 PLC (C.S.) Note 1) - Stresses that employment
contracts do not imply a claim to permanent employment.
3. "Muhammad Mohsin Ismail v. Managing Director Punjab
Daanish Schools" (2018 PLC (C.S.) 722) - Supports the legality of
termination under contractual terms.
4. "Dr. Abid Ali v. Chief Secretary, Government of Punjab" (2017
PLC (C.S.) 488) - Highlights termination without assigning a
reason based on unsatisfactory behavior.
5. "IPC through Secretary v. Arbab Altaf Hussain" (2014 SCMR
1573) - Illustrates the incompetence of constitutional petitions for
contractual employees.
6. "Maj. (Retd) Syed Muhammad Tanveer Abbas v. Federation of
Pakistan" (2019 SCMR 984) - Emphasizes that contractual
employees cannot enforce contractual obligations through writ
jurisdiction.
7. "Miss Naureen Naz Butt v. Pakistan International Airlines"
(2020 SCMR 1625) - Asserts that contract employees have no vested
right to continue employment post contract expiration.
Conclusion
The Division Bench upheld the lower court's decision, affirming the
legality of the appellant's termination based on the contractual terms. The
Court stressed that the appellant had accepted the terms at the beginning
and that the termination was in line with the contract's provisions, finding
no grounds for interference. Consequently, the appeal was dismissed.
JUDGMENT
Through this judgment, we intend to decide instant Intra Court Appeal
filed under Section 3 of the Law Reforms Ordinance, 1972 (the
"Ordinance") against the impugned order dated 10.12.2013 passed in Writ
Petition No.23630 of 2010 by the learned Single Judge in Chamber (the
"Impugned Order") whereby the Constitutional petition filed by the
Appellant was dismissed.
2. Relevant facts of the case are that the Appellant was appointed as
Assistant Manager on contract basis in December, 2002 initially for a
period of two years as per terms and conditions of the appointment letter.
Later on he was given new contract for a period of further five years on
the same terms and conditions as of earlier contract. During service, he
was given promotion as Deputy Manager vide Notification dated
11.07.2006. Thereafter, his services were terminated on 19.10.2006, the
said termination was assailed through departmental appeal which was
dismissed and appeal filed thereagainst before the Federal Service
Tribunal was also met with the same fate vide judgment dated 29.06.2010.
The Appellant assailed aforesaid order before Hon'ble Supreme Court of
Pakistan, which resulted into dismissal of appeal vide order dated
16.09.2010 and thereafter, he filed writ petition which was also dismissed,
hence this appeal.
3. Learned counsel for the Appellant inter alia contended that the
impugned order is against law and facts; that the impugned order is the
result of mis-reading and non-reading of record; that the learned Single
Judge has failed to appreciate the fact that concept of master and servant
was not applicable to the statutory corporation and also failed to observe
the regulations as provided under NADRA Employee (Services)
Regulations, 2002 for appointment as such the same is liable to be set
aside.
4. On the other hand, learned Law Officer vehemently opposed the
arguments advanced by the learned counsel for the Appellant and prayed
for dismissal of the appeal on the grounds that the Appellant was
appointed purely on temporary basis and he was rightly terminated on one
month's notice as such there was relationship of master and servant
between him and the Respondents. In support of his arguments, he relied
on "Chairman NADRA, Islamabad, through Chairman, Islamabad and
another v. Muhammad Ali Shah and others" (2017 SCMR 1979).
5. We have heard the arguments and have perused the record.
6. The learned Single Judge in Chamber in the impugned order observed
as under:
"From the record it is proved that the Petitioner was appointed on
contract for a period of two years. Later on the said contract of
employment was changed into another contract employment for five
years. The promotion was also made through a notification but on the
same terms and conditions of the contract. The termination letter also
refers to Clause-13 of the contract of employment which states: -
"The appointment during the period of contract shall be liable to be
terminated on thirty days' notice on either side or payment of pay in lieu
thereof, without assigning any reasons"
Further services of the Petitioner were terminated on one month
salary under the said clause".
7. It evinces from the record that the Appellant was appointed on
contract basis. His appointment was purely temporary. He, after accepting
the terms and conditions of his contract employment submitted his joining
report. Specific term in the employment contract, containing certain terms
and conditions, were inserted which reads as follows:
1. The contract appointment does not confer any right for being placed
in the gradation/seniority list of any cadre/group of NADRA Service.
2. The appointment during the period of contract shall be liable to
termination on thirty days' notice on either side or payment of basic pay
in lieu thereof, without assigning any reason.
8. The above Clauses explicitly show that the appointment was purely
temporary which could be terminated on thirty days' notice in lieu of
payment without assigning any reason. In the impugned order, the learned
Single Judge in Chamber observed that the services of the Appellant were
terminated on payment of one month salary under Clause-13.
9. From the above facts and circumstances, we are of the considered
view that the Appellant, at the time of joining, has accepted all the terms
and conditions of his contract employment, cannot resile from the same
at belated stage and also it is established from the record that his
performance remained unsatisfactory. We see no illegality or perversity in
the impugned order which has been passed in accordance with law and
therefore, cannot be interfered with. We fortified our view seeking
guidance from the judgment passed by the Hon'ble Division Bench of this
Court in case titled "Shahzad Ghohar v. Government of Punjab and
Aitchison College through its Board of Governor" (2018 PLC (C.S.) Note
1) in which it has been held as under:--
"It was also made specifically clear that the Employment Contract
does not confer on the Appellant any claim/right to permanent
employment in the College. In the above situation, the Appellant has
himself admitted all the terms and conditions of his Employment
Contract, he cannot claim his regularization from this Court rather has
rightly been considered to be out of service on the expiry of his contract
employment as settled by the parties under the terms of the Employment
Contract"
10. This Court in case titled "Muhammad Mohsin Ismail v. Managing
Director Punjab Daanish Schools and 2 others" (2018 PLC (C.S.) 722) has
also held as under:
"The Respondents have invoked clause-4(b), terminated the services
of the Petitioner with immediate effect entitling the Petitioner to receive
one month's pay in lieu of the quit service as per terms and conditions,
therefore, assertions of the learned counsel for the Petitioner that no notice
has been served upon the Petitioner, cannot sustain. The law on this point
has been settled by the apex Court of the country in the cases of
"Government of Balochistan, Department of Health through Secretary,
Civil Secretariat, Quetta v. Dr. Zahida Kakar and 43 others" (2005 SCMR
642) and "Major (R) Nisar Ali v. Pakistan Atomic Energy Commission
and another" (2004 PLC (C.S.) 758).
11. The Hon'ble Division Bench of this Court in case titled "Dr. Abid Ali
v. Chief Secretary, Government of Punjab and 3 others" (2017 PLC (C.S.)
488) has held as under:
"the employee, after accepting terms and conditions of his contract
employment had submitted his joining report. Service of such employee
could be terminated without assigning any reason. Employee had no right
to claim extension in his contract period as a vested right. Behaviour of
employee remained unsatisfactory towards his superior which resulted
into his termination."
12. In Case titled "Mubashar Majeed v. Province of Punjab and 3 others"
(2017 PLC (C.S.) 940) the Hon'ble Division Bench of this Court has also
held that;
"employee could not claim extension of the contract as a matter of
right rather it was the prerogative of the competent authority either to
dispense with services of such employee or continue with the same by
tending the contract."
13. In the case of "IPC through Secretary v. Arbab Altaf Hussain" (2014
SCMR 1573), the Hon'ble Supreme Court has held that "services of
contractual employees of the board were not governed by any statutory
rules and thus their constitutional petitions filed before the High Court
were not competent; secondly, the employment of the said employees was
contractual in nature and their services were terminated after due notice
as per their contractual terms and conditions of service. Even on such
account the constitutional petitions before the High Court were
incompetent and had to fail". Additionally, in the case titled "Kamran
Ahmad v. WAPDA", (2014 PLC (C.S.) Lahore 332), it was held that the
"Petitioner employee was governed under the terms and conditions of
contract appointment letter, and terms and conditions of contract of his
service were not enforceable through constitutional petition".
14. In "Maj. (Retd) Syed Muhammad Tanveer Abbas v. Federation of
Pakistan through Secretary Ministry of Interior and another" (2019 SCMR
984) and "Chairman NADRA, Islamabad v. Muhammad Ali Shah and
others" (2017 SCMR 1979), the Hon'ble Supreme Court of Pakistan has
held that a contract employee cannot seek enforcement of contractual
obligations by invoking writ jurisdiction.
15. Recently, the Hon'ble Supreme Court of Pakistan in "Miss Naureen
Naz Butt v. Pakistan International Airlines through Chairman, PIA and
others" (2020 SCMR 1625) by upholding the judgment of Division Bench
of this Court "Pakistan International Airlines v. Naureen Butt" (2017 PLC
(C.S.) 923) has held that "the established law is that a contract employee,
whose period of contract employment expires by afflux of time, carry no
vested right to remain in employment of the employer and the Courts
cannot force the employer to reinstate or extend the contract of the
employee".
16. In view of above discussion, we fully agree with the finding of the
learned Single Judge who dismissed the petition and see no illegality or
perversity in the impugned order which has been passed in line with the
dictates of law and does not warrant any interference by this Division
Bench.
17. Resultantly, the instant Appeal, being bereft of any force, is
accordingly dismissed.
RAI SARFRAZ etc.--Petitioners versus ATTA MUHAMMAD etc.--Respondents

 Judge(s): MASUD ABID NAQVI, J
 JUDGMENT
 Case Summary
Introduction: This civil revision involves a dispute where the
petitioners/plaintiffs filed a suit for declaration, leading to a dismissal by
the trial court and subsequent affirmation by the appellate court. The
petitioners now challenge the validity of these judgments in the present
Revision Petition.
Facts of the Case: The suit commenced with the filing of a written
statement on 19.10.2014. The plaintiffs completed their evidence on
17.11.2017, followed by the defendants on 19.01.2018. The trial court
framed issues on 16.02.2018 and dismissed the suit on the same date. The
appeal met a similar fate with a judgment and decree dated 22.01.2019.
Dissatisfied, the petitioners filed the instant Revision Petition.
Law Points Involved: The pivotal legal contention revolves around the
duty of the trial court to frame proper issues at the initial stage of the suit.
The argument posits that this is essential for the parties to comprehend the
disputed facts, ensuring an effective judgment. The failure to frame issues
before recording evidence and exhibiting documents is deemed a material
irregularity that prejudices the petitioners/plaintiffs.
Judicial Analysis: The judge emphasizes that the court's duty is to
ascertain the real dispute by framing issues early in the proceedings. The
absence of proper framing before evidence collection constitutes a material
irregularity affecting the merits of the case. The appellate court is criticized
for overlooking this irregularity, leading to an unsustainable judgment.
The court rules that the evidence already recorded is to be discarded.
Court Decision: The civil revision is accepted without delving into the
merits of the case. The judgments and decrees of the lower courts are set
aside, and the matter is remanded back to the trial court. The directive is
to decide afresh after framing issues, allowing both parties to present their
respective evidence. The case is scheduled to appear before the learned
Additional District Judge on 30.01.2020.
Legal References: The judgment refers to settled legal principles,
emphasizing the duty of a judge to frame proper issues at the initial stage
of a suit. No specific legal citations or statutes are mentioned in the
provided information.
ORDER
Briefly stated facts of this civil revision are that petitioners/ plaintiffs filed
suit for declaration wherein written statement was filed on 19.10.2014 and
thereafter plaintiffs/petitioners completed their evidence on 17.11.2017
and defendants/respondents completed their evidence on 19.01.2018
while the issues were framed by the learned trial Court on 16.02.2018 and
the suit was dismissed on the same date. Feeling aggrieved, the
petitioners/plaintiffs filed an appeal and the same was also
dismissed vide judgment and decree dated 22.01.2019. Being dissatisfied,
the petitioners/ plaintiffs have filed the instant Revision Petition and
challenged the validity of the judgments and decrees passed by the learned
Courts below.
2. I have heard the learned counsel for the parties and perused the available
record as well as have minutely gone through the impugned judgments
and decrees.
3. On query, learned counsels for the contesting parties agreed that issues
were framed by the learned trial Court 16.02.2018 after recording of oral
evidence of the contesting parties and after exhibiting the documents
produced by both sides and after completion of evidence of the parties. It
is settled law that it is duty of a judge himself to frame proper issues on the
first stage of a suit so that parties may know the controversy, the disputed
facts on which evidence is to be led and to enable an effective judgment to
be rendered because the object of framing of issues is to ascertain real
dispute between the parties by narrowing down an area of conflicting and
determining where the parties differ because parties are required to prove
issues and not the pleadings generally, while the Court is bound to give
decision on each issue framed and not to decide the matter on which no
issue has been framed. Hence, the learned trial Court's failure to frame the
issues before the recording of evidence and exhibiting of documents, the
petitioners/plaintiffs are seriously prejudiced and it is material irregularity
which has affected merits of the case. Learned appellate Court also failed
to appreciate this material irregularity and maintained the judgment and
decree of the trial Court by dismissing the appeal. Hence, the impugned
judgments and decrees passed by the learned Courts below are not
sustainable in the eye of law.
4. In view of the above discussion, without discussing the merits of the
case, this civil revision is accepted and the impugned judgments and
decrees of the learned Courts below are set-aside and the lis is remanded
back to the learned trial Court for decision afresh after framing of issues
and by allowing the parties to produce their respective oral evidence and
documentary evidence. The evidence already recorded by the contesting
parties is also discarded. The parties are directed to appear before the
learned Additional District Judge, Tehsil Lalian, District Chiniot on
30.01.2020, who will entrust the matter to a Court of competent
jurisdiction for adjudication.
SHOUKAT ALI etc.--Petitioners Versus MUHAMMAD ANWAR etc.--Respondents

 JUDGMENT
 Case Summary
Introduction: This case involves a writ petition challenging the dismissal
of an application under Section 12(2) of the Civil Procedure Code (CPC)
to set aside a consenting order dated 16.06.2009, which had resulted in the
withdrawal of a suit through a recorded joint statement. The legal heirs of
the original plaintiffs filed the petition after their earlier attempts were
unsuccessful.
Facts of the Case: The plaintiffs, predecessor in interest of the present
petitioners, initiated a suit for declaration, possession, and permanent
injunction. A compromise was reached on 16.06.2009, leading to the
withdrawal of the suit. Subsequently, the legal heirs filed an application
under Section 12(2), CPC to set aside the order, but it was dismissed on
13.02.2014. The civil revision and the writ petition challenging these
orders were also unsuccessful.
Law Points Involved:
 Section 12(2), CPC: The key legal provision invoked by the

petitioners in their attempt to set aside the order dated 16.06.2009.
 Article 129 (e) of the Qanun-e-Shahadat Order, 1984: The
provision that attaches a presumption of truth to the court's record.
 Article 150 of the Constitution of Islamic Republic of Pakistan,
1973: The constitutional provision relevant to the authenticity of
judicial records.
Judicial Analysis: The court analyzed the record, emphasizing that only
the legal heirs of two plaintiffs challenged the order, while the third
plaintiff did not challenge it during his lifetime. The court noted the lack
of details about the compromise in the joint statement and affidavit, and
dismissed the petitioners' allegation of fraud. It highlighted that mere
unsupported allegations do not warrant inquiry. The court also
underscored the presumption of truth attached to court records and the
need for solid proof to doubt their authenticity.
Court Decision: The court concluded that the impugned orders were
passed after proper evaluation of facts and in accordance with settled law.
Finding no legal or factual infirmity, the court dismissed the writ petition.
Citation: The case law relied upon by the petitioners, Muhammad Aslam
and others vs Mst. Kundan Mai and others (2004 SCMR 843), was
deemed distinguishable from the facts of the present case.
ORDER
Brief facts of this writ petition are that plaintiffs/predecessor in interest of
present petitioners filed suit for declaration, possession and permanent
injunction wherein respondents/ defendants entered appearance and in
presence of respondents/defendants, all the three plaintiffs got recorded
their joint statement on 16.06.2009 to the effect that compromise has been
effected between the parties and they requested for withdrawal of the suit,
whereupon the suit was dismissed as withdrawn vide order dated
16.06.2009. Thereafter on 23.04.2010 the petitioners No. 2 to 9/legal heirs
of plaintiffs No. 1 and Petitioner No. 1 Defendant No. 2 filed an
application under Section 12(2), CPC for setting aside consenting order
dated 16.06.2009 and the Same was dismissed vide order dated
13.02.2014, Feeling aggrieved, civil revision challenging the said order
was filed and the same was also dismissed vide order dated 25.01.2016.
Being dissatisfied, instant writ petition has been filed by challenging the
said orders.
petitioners/legal heirs of Plaintiffs No. 1 & 2 and perused the record.
3. Perusal of record reveals that only legal heirs of Taj Din/Plaintiff No. 1
and Shaukat Ali/Plaintiff No. 2 have challenged the order dated
16.06.2009 by filing an application under sections 12(2), CPC dated
27.04.2010 while neither Taj Din deceased challenged the order dated
16.06.2009 in his lifetime nor Muhammad Younas/Plaintiff No. 3 has
challenged the said order. All the plaintiffs namely Taj Din/ Plaintiff No.
1, Shaukat Ali/Plaintiff No. 2 and Muhammad Younas/ Plaintiff No. 3
appeared before the trial Court on 16.09.2009 and unconditionally
withdrew the suit by recording their joint statement and putting their
thumb impressions on the order sheet due to compromise while affidavit
of Taj Din/Plaintiff No. 1 was also placed on record as Mark-1. This fact
is very much clear from order sheet of trial Court which bears signature
and thumb impressions of the plaintiffs. No details of compromise are
mentioned for withdrawal of that suit either in the recorded joint statement
or in the affidavit filed by Plaintiff No. 1/Taj Din. The petitioners failed
to substantiate the allegation of fraud on the part of the
respondents/defendants. Mere allegation not supported by any material
would not invariably warrant inquiry or investigation. All these
abovementioned facts negate the claim/ground as written in application
for setting aside the impugned orders. Therefore, plea being raised by the
petitioners at this stage has no force. Learned counsel for the petitioners
failed to satisfy the judicial conscious of the Court as presumption of truth
is attached to the record of the Court under Article 129 (e) of the Qanun-
e-Shahadat Order, 1984 and Article 150 of the Constitution of Islamic
Republic of Pakistan, 1973. Authenticity of the judicial record cannot be
doubted without any solid proof and only on the oral arguments of the
learned counsel. Learned counsel for petitioners has not been able to point
out any plausible ground due to which he is seeking setting aside of the
impugned orders, hence, they are not entitled to any relief. The case law
relied on by learned counsel for the petitioners reported
as Muhammad Aslam and others vs Mst. Kundan Mai and others (2004
SCMR 843) is concerned, the same is distinguishable from the facts of the
present case.
4. In view of the foregoing discussion, this Court is of the considered view
that the impugned orders have been passed after properly evaluating the
facts of the case and keeping in view the settled law. No infirmity, legal or
factual, has been pointed out in the impugned orders,
requiring interference, therefore, this writ petition is dismissed.
ABDUL RASHEED--Petitioner versus LEARNED ADDL. DISTRICT JUDGE, BHAKKAR etc.--
Respondents.

 JUDGMENT
 Case Summary:
Introduction: The writ petition pertains to a composite suit filed by the
wife and son (Respondents No. 3 and 4) seeking recovery of maintenance
allowance, dower, gold ornaments, dowry articles, and possession of a
house. The petitioner/defendant contested the suit, leading to a partial
decree by the trial court, which was affirmed by the appellate court. The
present writ petition challenges the judgments and decrees related to the
dower of Rs. 5,000/- and a house measuring 15-marlas.
Facts of the Case: The respondents, wife and son, filed a suit for various
reliefs, including maintenance allowance and recovery of dower. The trial
court partially decreed the suit, awarding maintenance allowance and
dower, among other things. The appellate court upheld the decision. The
petitioner, dissatisfied with the judgment, filed the instant writ petition
challenging the validity of the decrees related to dower and the house.
Law Points Involved:
1. Deferred Dower and Nikahnama: The central issue revolves
around the deferred dower mentioned in the Nikahnama. The
petitioner alleges manipulation of entries but fails to provide
compelling evidence. The court emphasizes that the Nikahnama is
a public document, and the presumption of truth is attached to it.
The petitioner's confirmation of his signature on the Nikahnama
reinforces the obligation to pay the deferred dower.
Legal Reference: Shamshad VS Arif Ashraf Khan and others (2010
SCMR 473)
2. Interference with Concurrent Findings: The petitioner seeks
interference with the concurrent findings of the lower courts. The
court refers to Mst Farhat Jabeen vs. Muhammad Safdar and others
(2011 SCMR 1073), emphasizing that interference is justified only
in cases of misreading or non-reading of material evidence. No such
defects are identified in the present case, leading to the dismissal of
the writ petition.
Legal Reference: Mst Farhat Jabeen vs. Muhammad Safdar and others
(2011 SCMR 1073)
Judicial Analysis: The court upholds the findings of the lower courts,
emphasizing the importance of documentary evidence over oral evidence.
The petitioner's failure to challenge the entries in the Nikahnama at the
time of marriage weakens the argument against the deferred dower. The
court dismisses the writ petition, citing the absence of misreading or non-
reading of evidence.
Conclusion: The court affirms the lower courts' judgments, stating that
the petitioner is obligated to pay the deferred dower and upholds the
principle of limited interference in concurrent findings. The writ petition
is dismissed.
Legal References:
 Shamshad VS Arif Ashraf Khan and others (2010 SCMR 473)

 Mst Farhat Jabeen vs. Muhammad Safdar and others (2011 SCMR
1073)
ORDER
Brief facts leading to the filing of this writ petition are that the Respondents
No. 3 and 4/plaintiffs being wife and son filed a composite suit for
recovery of maintenance allowance, dower, gold ornaments, dowry
articles and possession of house. The defendant/petitioner resisted the suit
by way of filing the written statement and by raising factual as well as legal
objections. Out of divergent pleadings of the parties issues were framed by
the learned trial Court. The parties produced their respective evidence and
after recording the same, learned trial Court partially decreed the
suit vide judgment and decree dated 28.03.2017 to the effect that the
plaintiff No. 1 is entitled to recover her maintenance allowance at the rate
of Rs. 6000/-per month for her Iddat period. The plaintiff No. 2 being
minor son is entitled to maintenance allowance at the rate of Rs. 2500/-
per month with 10% annual increase from the institution of the suit till his
legal entitlement. The plaintiff No. 1 is also entitled to recover Rs. 5000/-
as dower on demand. She is also entitled to get alternate price of house
measuring 15-marlas from defendant. Plaintiff No. 1 is also entitled to
recover Rs. 50,000/-also alternate price of dower articles, however, the
suit for recovery of gold ornament was dismissed. Feeling aggrieved,
petitioner/defendant filed appeal and learned Additional District
Judge vide judgment & decree dated 17.04.2018 dismissed the same.
Being dissatisfied, the petitioner/defendant has filed the instant writ
petition and challenged the validity of the judgments and decrees passed
by the learned Courts below to the extent of dower of Rs. 5000/-and a
house measuring 15-marlas.
3. From bare reading of Nikahnama, there remains no doubt that as per
entries at column No. 13 and 17 of Nikahnama/Exh.P.2, Rs. 5,000/-and
a house measuring 15-marlas are mentioned as deferred dower. Learned
Family Court decreed the suit for recovery of dower of Rs. 5,000/- and
house measuring 15-marlas or its market value and in appeal learned
appellate Court endorsed the finding of Family Court. The case of the
petitioner/defendant is that respondent/plaintiff No. 1 maneuvered the
entries of Nikahnama but failed to prove the same through confidence
inspiring evidence. The Nikahnama is a public document and
presumption of truth is attached to it until and unless otherwise proved.
The petitioner/defendant has not challenged the entries of Nikahnama
before any competent forum. There is no cavil to the proposition as held
in number of judgments by the superior Courts that oral evidence cannot
be given preference to the documentary evidence. Reliance is placed on
Shamshad VS Arif Ashraf Khan and others (2010 SCMR 473). The
petitioner/defendant candidly/ frankly confirmed his signature on the
Nikahnama. Therefore, the petitioner/defendant is under an obligation to
pay of Rs. 5,000/-and a house measuring 15-marlas or its market value as
dower/haq-ul-Mehar to Respondent No. 3/ex-wife as he never objected
to the entry in Nikahnama at the time of marriage rather endorsed the
same by signing the Nikahnama. Hence, the findings of learned Courts
below are upheld/maintained.
4. Even otherwise, with respect to interference in concurrent findings of
the Courts below, the Hon’ble Supreme Court of Pakistan in a case
reported as Mst Farhat Jabeen vs. Muhammad Safdar and others (2011
SCMR 1073) has held that:
“It is settled rule by now that interference in the findings of facts
concurrently arrived at by the Courts should not be lightly made, merely
for the reason that another conclusion shall be possibly drawn, on the
reappraisal of the evidence; rather interference is restricted to the cases of
misreading and non-reading of material evidence which has bearing on
the fate of the case.”
5. In the present case, no such defects have been pointed out by the learned
counsel for petitioner in order to seek interference by this Court. Learned
Courts below have meticulously examined the entire evidence of the
parties and thereafter reached at the conclusion regarding the controversy.
Neither any misreading or non-reading of evidence on record nor any
infirmity, legal or factual, has been pointed out in the impugned judgments
and decrees passed by the learned Courts below, therefore, this writ
petition is dismissed.
GHULAM MUSTAFA etc.--Petitioners versus MUHAMMAD NAZIR--Respondent

 JUDGMENT
 Case Summary
Introduction: The present revision petition involves a dispute between the
respondent/plaintiff and the petitioners/defendants over the use of a
passage on Shamlat Deh. The respondent, claiming ownership and
possession of the land, filed a suit for declaration and injunction against
the defendants, alleging obstruction of the passage.
Facts of the Case: The respondent contended that he is the rightful owner
of the land and has been using the passage for 30 years, as there is no
alternative route to access his residence. The petitioners, who are
neighbors, allegedly blocked the passage, leading to the filing of the suit.
The trial court dismissed the suit, but the appellate court reversed the
decision in favor of the respondent.
Court Decision: Upon hearing arguments and reviewing the record, the
court upheld the appellate court's decision, emphasizing that the
respondent's right to use the passage was legally established. The Tehsildar
confirmed the usage of the passage by all village inhabitants for three
decades. The court found no inconsistency in the appellate court's findings
and highlighted that interference with such findings is warranted only in
the absence of cogent reasons, citing the precedent set in the case of Amjad
Ikram vs. Mst. Asiya Kausar (2015 SCMR 1).
Law Points Involved: The central legal point revolved around the
respondent's entitlement to use the passage on Shamlat Deh, a right
recognized by law for all village inhabitants. The court referred to the
Tehsildar's testimony and emphasized the importance of a consistent 30-
year usage. The judgment cited the legal principle that in cases of
inconsistency between the trial court and the appellate court, the latter
should be given preference unless there are cogent reasons to the contrary,
citing Madan Gopal vs. Maran Bipari (PLD 1969 SC 617) and
Mohammad Nawaz vs. Haji Mohammad Baran Khan (2013 SCMR
1300).
Judicial Analysis: The appellate court's thorough examination of
evidence, including statements of witnesses and documentary evidence,
was deemed conclusive. The court found no misreading or non-reading of
evidence and identified no legal or factual infirmities in the appellate
court's judgment. Consequently, the revision petition was dismissed.
In conclusion, the judgment reaffirms the legal right of the respondent to
use the passage and underscores the significance of consistent and
established usage in such disputes.
Citation: Amjad Ikram vs. Mst. Asiya Kausar (2015 SCMR 1) Madan
Gopal vs. Maran Bipari (PLD 1969 SC 617) Mohammad Nawaz vs. Haji
Mohammad Baran Khan (2013 SCMR 1300)
ORDER
Brief facts of the present revision petition are that the respondent/plaintiff
filed a suit for declaration alongwith permanent and mandatory injunction
against the petitioners/defendants with the averments that he is owner in
possession of the suit land and he is residing in the house after raising
construction over Shamlat Deh. He is using the street as passage and there
is no other way available for the respondent/plaintiff. The
petitioners/defendants, who are neighbourers of the
respondent/plaintiff forcibly blocked the passage and when the
respondent/plaintiff asked the petitioners/defendants not to block the way
of respondent/plaintiff they refused to accord with the demand of plaintiff,
hence, the suit. The petitioners/defendants contested the suit by filing
written statement and by raising legal as well as factual objections. Out of
divergent pleadings of the parties, issues were framed by the learned trial
Court. The parties produced their respective evidence and after recording
the same, learned trial Court dismissed the suit of the
respondent/plaintiff vide judgment and decree dated 07.02.2017. Feeling
aggrieved, the respondent/ plaintiff filed an appeal and the learned
Additional District Judge vide judgment and decree dated
06.06.2017 decreed the suit of the respondent/plaintiff while accepting the
appeal. Being dissatisfied, the petitioners/defendants has filed the instant
Revision Petition and challenged the validity of the judgment and decree
dated 06.06.2017 passed by the learned Appellate Court.
3. There is no denial of the fact that the respondent/plaintiff was claiming
his entitlement to use the passage on the land of Shamlat Deh which can
legally be used by all the inhabitants of the village under the law. The
Tehsildar/local commission appeared before the Court as PW-3 and
deposed that the parties are using the passage for the last 30 years and there
is no alternate passage for the respondent/plaintiff for going to his own
home. The depositions of DW’s are against the factual position and the
DW’s have not supported the version of the petitioners/defendants. The
learned appellate Court has properly perused the pleadings, statements of
the PW’s and DW’s as well as documentary evidence by discussing in
detail and thereafter reached at the conclusion regarding the controversy.
Hence, the findings of learned appellate Court are maintained upheld.
4. With respect to interference in the findings of appellate Court where
there is inconsistency between the trial Court and appellate Court, the
Hon’ble Supreme Court of Pakistan in a case reported as Amjad Ikram vs.
Mst. Asiya Kausar (2015 SCMR 1) held that:
“Even otherwise, in case of inconsistency between the learned and the
appellate Court, the latter must he given preference in the absence of any
cogent reason to the contrary, as has been held by this Court in judgements
reported as Madan Gopal and 4 other vs. Maran Bipari and 3 others (PLD
1969 SC 617 and Mohammad Nawaz through LRs vs. Haji Mohammad
Baran Khan through LRs and others (2013 SCMR 1300)
5. Learned appellate Court has thoroughly examined the entire evidence
of the parties and thereafter reached at the conclusion regarding the
controversy. Neither any misreading or non-reading of evidence on record
nor any infirmity, legal or factual, has been pointed out in the impugned
judgment and decree passed by the learned appellate Court. Therefore,
this revision petition is dismissed.
SADAF YOUNAS---Petitioner Versus MUHAMMAD USMAN FAROOQ---Respondent

 JUDGMENT
 Summary of Order
1. Introduction Justice Masud Abid Naqvi presided over a case where the
petitioner sought to set aside an ex-parte judgment and decree. The
petitioner alleged lack of knowledge about the suit for recovery of gold
ornaments, leading to the ex-parte decree. The execution petition was
dismissed by the trial court, and the appellate court upheld this decision.
2. Grounds for Petition The petitioner contended that she was unaware
of the suit, emphasizing non-receipt of notices or proclamations. The
petitioner challenged both the trial and appellate court decisions through
the present petition.
3. Examination of Record Justice Naqvi examined the record, noting that
the respondent filed the recovery suit on 12.11.2014. Various modes of
service, including publication of proclamation, were employed. The
petitioner, during cross-examination, acknowledged her correct address
and her aunt's presence at that address.
4. Knowledge of Proceedings The court highlighted instances where the
petitioner demonstrated knowledge of the suit. The respondent's written
statement in a separate suit mentioned the pending suit in Sialkot. The
petitioner, appearing as a witness in her suit, conceded knowledge of the
ex-parte decree and the respondent's claim.
5. Delay and Time Bar Emphasizing that the petitioner failed to file
within 30 days of gaining knowledge, the court deemed the application
time-barred. No application under Section 5 of the Limitation Act for
condonation of delay was filed.
6. Legal Reference - Law of Limitation Referencing Dr. Muhammad
Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 SC 212), the
court underscored the importance of the law of limitation. The law ensures
an orderly and structured judicial process, serving public policy and state
interest.
7. Lack of Substantiation of Allegations The court observed that the
petitioner failed to substantiate fraud allegations and noted that mere
unsupported allegations do not warrant inquiry. The petitioner's claim
lacked merit.
8. Conclusion Justice Naqvi concluded that the impugned orders were
passed after proper evaluation of facts and adherence to settled law.
Finding no legal or factual infirmity, the civil revision was dismissed.
Legal Reference:
 Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others

(PLD 2015 SC 212)
 Atta Muhammad v. Maula Bakhsh and others (2007 SCMR 1446)
ORDER
MASUD ABID NAQVI, J.---Brief facts necessary for the
adjudication of this lis are that the petitioner/defendant filed an
application under Order IX, Rule 13, C.P.C. for setting aside ex-parte
judgment and decree dated 28.09.2015 on the ground that suit for recovery
of gold ornaments filed by the respondent/ plaintiff titled "Muhammad
Usman Farooq v. Sadaf Younas" was ex-parte decreed against the
petitioner without her knowledge of filing/pendency of suit as she neither
received any notice through process server or registered postal envelope or
other mode nor received the proclamation in newspaper and only became
aware of decree on 02.06.2016, during proceeding of execution petition,
which was dismissed by the learned trial court vide order 22.06.2019 and
the order was maintained/upheld by the learned appellate court through
judgment dated 08.11.2019. Aggrieved by the order and judgment of
learned courts below, the petitioner has filed instant petition and
challenged both order/judgment.
2. I have heard the learned counsel for the parties who reiterated their
arguments and perused the available record as well as have minutely gone
through both the impugned order/ judgment.
3. Perusal of record reveals that respondent/plaintiff filed a suit for
recovery of gold ornaments and cash at Sialkot on 12.11.2014 and learned
trial court adopted all modes of service including publication of
proclamation and in petitioner's application, the petitioner never alleged
that she is not residing on the address, mentioned in the suit while during
the argument, when confronted with the documents that notices were
received by the petitioner's aunty residing with her, the learned counsel
pleaded that no notices were served to petitioner's aunty and even service
of notices to petitioner's aunty cannot be considered as valid because
notice should be served on the male member of the family. To rebut the
report of service, the petitioner never produced her aunty as witness and
only herself appeared as witness/AW-1, without producing any other
witness. In cross-examination, she not only acknowledged the correctness
of her address in plaint but also the presence of her aunt in her house.
The ex-parte proceedings were initiated by the learned trial court
against the petitioner/defendant on 21.02.2015 and before the initiation
of ex parte proceedings, the respondent filed written statement in
petitioner's suit for maintenance etc before the learned Judge Family Court
at Rawalpindi on 23.01.2015 and in para 04 thereof, the respondent duly
mentioned/ pleaded the filing/pendency of his abovementioned suit at
Sialkot. The respondent also filed an affidavit/Ex.D-1 by mentioning the
institution of his suit and decree and also submitted photo copy of his suit
along with decree which was duly marked in petitioner's suit and
thereafter, precept of decree of respondent was transferred to Rawalpindi.
While appearing as PW-1 in her suit on 09.04.2016, the petitioner
conceded about the knowledge of the pendency of petitioner's suit for
conjugal rights at Sialkot, her appearance in the suit, filing of written
statement, opted not to appear thereafter, ex-parte decree in the suit, claim
of respondent about gold ornament and cash.
In her application, the petitioner pleaded that on 02.06.2016, she
further became aware of ex parte decree but without giving any source of
knowledge while she was herself present in court on 28.05.2016 when
learned District Judge, Rawalpindi proceeded on the respondent's
application for the consolidation of different matters, pending before
different courts. Hence, she had the knowledge about the ex parte decree
and execution petition on 28.05.2016.
4. Despite knowledge of proceedings in respondent's suit, the petitioner
failed to file application within 30 days from her knowledge which is
23.01.2015 while she mentioned wrong date 02.06.2016 about gaining of
knowledge of decree. She even did not file the application under section 5
of Limitation Act 1908 for condonation of delay, so application for setting
aside ex parte decree is also time barred.
5. While discussing the nature, object, scope and applicability of the law
of limitation, the Hon'ble Supreme Court in a case reported as Dr.
Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015
SC 212) has held as under:
"Such law of limitation is founded upon public policy and State
interest. This law is vital for an orderly and organized society and the
people at large, who believe in being governed by systemized law. The
obvious object of the law of limitation is that if no time constraints and
limits are prescribed for pursuing a cause of action and for seeking
reliefs/remedies relating to such cause of action, and a person is allowed
to sue for the redressal of his grievance within an infinite and unlimited
time period, it shall adversely affect the disciplined and structured judicial
process and mechanism of the State, which is sine qua non for any State
to perform its functions within the parameters of the Constitution and the
rule of law
The object of the law of limitation and the law itself, prescribing time
constrains for each cause or case or for seeking any relief or remedy has
been examined by the courts in many a cases, and it has been held to be a
valid piece of legislation, and law of the land. It is "THE LAW" which
should be strictly construed and applied in its letter and spirit; and by no
stretch of legal interpretation it can be held that such law (i.e limitation
law) is merely a technicality and that too of procedural in nature. Rather
from the mandate of Section 3 of the Limitation Act, it is obligatory upon
the court to dismiss a cause/lis which is barred by time even though
limitation has not been set out as a defence. And this shows the imperative
adherence to and the mandatory application of such law by the courts.
The said law is considered prescriptive and preventive in nature and is held
to mean and serve as a major deterrent against the factors and the elements
which would affect peace, tranquility and due order of the State and
society. The law of limitation requires that a person must approach the
court and take recourse to legal remedies with due diligence, without
dilatoriness and negligence and within the time provided by the law; as
against choosing his own time for the purpose of bringing forth a legal
action at his own whim and desire. Because if that is so permitted to
happen, it shall not only result in the misuse of the judicial process of the
State, but shall also cause exploitation of the legal system and the society
as a whole. This is not permissible in a State which is governed by law and
Constitution. And it may be relevant to mention here that the law
providing for limitation for various causes/reliefs is not a matter of mere
technicality but foundationally of "LAW" itself In the above context, a
judgment of this Court reported as Atta Muhammad v. Maula Bakhsh and
others (2007 SCMR 1446) has thrown considerable light on the subject
and has provided guidance, in the following words:--
"We may add that public interest require that there should be an end
to litigation. The law of limitation provides an element of certainty in the
conduct of human affair. Statutes of limitation and prescription are, thus,
statues of peace and repose. In order to avoid the difficulty and errors that
necessarily result from lapse of time, the presumption of coincidence of
fact and right is rightly accepted as final after a certain number of years.
Whoever wishes to dispute this presumption must do so, within that
period; otherwise his rights if any, will be forfeited as a penalty for his
neglect. In other words the law of limitation is a law which is designed to
impose quietus on legal dissensions and conflicts. It requires that persons
must come to Court and take recourse to legal remedies with due
diligence."
6. All above oral and documentary evidence clearly shows that
petitioner was well-aware of institution as well as decree of suit but she did
not intentionally appear in the court. The petitioner failed to substantiate
the allegation of fraud. Mere allegation not supported by any material
would not invariably warrant inquiry of investigation. All these
abovementioned facts negate the claim/ground as written in application
for setting aside the impugned orders. Therefore, plea being raised by the
petitioner at this stage has no force. Learned counsel for petitioner has not
been able to point out any plausible ground due to which he is seeking
setting aside of the impugned orders, hence, he is not entitled to any relief.
7. In view of the foregoing discussion, this Court is of the considered
view that the impugned order/judgment have been passed after properly
evaluating the facts of the case and keeping in view the settled law. No
infirmity, legal or factual, has been pointed out in the impugned order/
judgment, requiring interference, therefore, this civil revision is dismissed.
ABDUL MAJEED AKHTAR---Appellant Versus MUHAMMAD ZEESHAN SHOUKAT---
Respondent

 JUDGMENT
Factual Background: The respondent/plaintiff filed a suit for the recovery
of Rs.19,00,000/- under Order XXXVII, Rules 1 and 2 of the Civil
Procedure Code (C.P.C.) against the appellant/defendant. The
appellant/defendant contested the suit by filing an application for leave to
appear and defend, which was contested by the respondent/plaintiff. The
trial court decreed the suit on 24.09.2016, leading to the appellant's appeal.
Appellant's Challenge: The appellant/defendant challenged the validity
of the judgment and decree through a regular first appeal, disputing the
lower court's findings.
Critical Statements from Defendant's Testimony: During cross-
examination, the appellant/defendant conceded that no one else appeared
on his behalf except for DW.2/Tariq Ali. DW.2 was not present during
the signing or payment. Additionally, the appellant/defendant failed to
prove that the cheque was issued as a guarantee.
Legal Presumption and Onus: The judgment relies on Section 118 of the
Negotiable Instruments Act, 1881, establishing a presumption that
negotiable instruments are made for consideration unless proven
otherwise. The onus lies on the party claiming a guarantee to prove it.
Reference is made to various cases supporting this legal principle,
including Muhammad Azizur Rehman v. Liaquat Ali (2007 CLD 1542).
Failure to Substantiate Claim: The court holds that the
appellant/defendant failed to substantiate the claim that the cheque was
issued as a guarantee. Despite the opportunity to present oral or
documentary proof, the appellant fell short of meeting the burden of proof.
Judicial Decision: Considering the settled legal principles and the
appellant's failure to establish the guarantee claim, the court upholds the
trial court's findings. The judgment and decree are deemed valid, and the
appeal is dismissed.
Conclusion: The court affirms the trial court's decision, stating that there
is no legal or factual infirmity in the judgment and decree that warrants
interference.
Legal References: The judgment cites Section 118 of the Negotiable
Instruments Act, 1881, and refers to cases such as Muhammad Azizur
Rehman v. Liaquat Ali (2007 CLD 1542), Muhammad Ali v. Wali
Muhammad (2015 CLD 1820 (Lahore)), Abdul Karim v. Muhammad
Idrees (2014 CLC 1001), and Syed Zawar Hussain v. Syed Riazul Abbas
Sherazi (2015 MLD 890 (Lahore)) to support the legal principles applied
in the case.
JUDGMENT
Brief facts of this appeal are that the respondent/plaintiff filed, a suit for
recovery of Rs.19,00,000/- under Order XXXVII, Rules 1 and 2 of C.P.C.
against the appellant/defendant. The appellant/defendant appeared
before the learned trial court and filed an application for leave to appear
and defend the suit which was duly contested by the respondent/plaintiff
by filing written reply thereto. The learned trial court, after hearing the
parties decreed the suit vide judgment and decree dated 24.09.2016.
Feeling aggrieved, the appellant/defendant has preferred instant regular
first appeal and challenged the validity of the said judgment and decree.
2. I have heard the arguments of the learned counsel for the parties and
have minutely gone through record as well as the impugned judgment and
decree.
3. The appellant/defendant while appearing as DW.1 during cross-
examination conceded as under:
No one else appeared on behalf of the appellant/defendant except
DW.2/Tariq Ali who was neither present at the time of signatures or
payment of amount. DW.2 deposed about the alleged "punchaiti" decision
but conceded in cross-examination as follows:
After the admission of the execution of cheque, onus to prove that cheque
was issued as a guarantee was on the appellant/defendant but he
miserably failed to prove his version through oral or documentary proof.
It is well settled law that under section 118 of the Negotiable Instruments
Act, 1881, there is an initial presumption that the negotiable instrument is
made, drawn, accepted or endorsed for consideration and in a case to
contrary the onus is on the person who is claiming to execute guarantee
cheque to prove the same. The. honorable Supreme Court in a case
reported as Muhammad Azizur Rehman v. Liaquat Ali (2007 CLD 1542)
had held as under:
"..........According to section 118 of the Act, until the contrary is proved,
the presumption shall be made that every negotiable instrument was made
or drawn for consideration......."
Reference is also made to cases reported as Muhammad Azizur Rehman
v. Liaqat Ali (2007 SCMR 1820), Muhammad Ali v. Wali Muhammad
(2015 CLD 1820 (Lahore)), Abdul Karim v. Muhammad Idrees (2014
CLC 1001) and Syed Zawar Hussain v. Syed Riazul Abbas Sherazi (2015
MLD 890 (Lahore)).
4. By scanning the contents of the pleadings, it is crystal clear that the
defendant/appellant has failed to substantiate his claim that cheque was
issued as a guarantee and he will not be relieved from discharging the
above burden of proof. Testing the case in hand, at the touchstone of the
abovementioned settled law, I feel no hesitation in holding that the
appellant/defendant has miserably failed to establish/substantiate/ prove
his claim(s), hence, the findings of learned trial court are
maintained/upheld.
that learned trial court has rightly proceeded in the matter. The impugned
judgment and decree does not suffer from any infirmity, legal or factual,
requiring interference, therefore, this appeal is dismissed.
The CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU (NAB)---Appellant Versus RAMZAN
SUGAR MILLS LIMITED and others---Respondents

 Judge(s): Jawad Hassan and Masud Abid Naqvi, JJ
 JUDGMENT
1. Introduction: The Intra Court Appeal challenges the validity of the
Impugned Judgment dated 28.05.2020, where the Writ Petition No.3072
of 2020 was allowed, directing the SECP to register a charge immediately.
2. Maintainability Challenge: The Appellant questions the
maintainability of this Intra Court Appeal under Section 3(2) of the Law
Reforms Ordinance, 1972. Notably, the Appellant had previously objected
to the writ petition, suggesting that the Respondent had the remedy of
appeal under Section 480 of the Companies Act, 2017.
3. Review of Arguments: After hearing arguments and examining the
record, the court notes the Appellant's grievance against the Impugned
Judgment, challenging the order issued by the Additional Joint Registrar
of Companies on 07.01.2020. The Appellant had also filed an objection
petition under section 13 of N.A.O., 1999 before the Accountability Court,
Lahore.
4. Availability of Alternate Remedy: The court emphasizes that the order
in question is appealable under Section 480 of the Companies Act, 2017.
The Appellant had already utilized this remedy by filing an objection
petition, which is pending.
5. Prohibition on Intra Court Appeal: The Intra Court Appeal has been
filed under Section 3 of the Law Reforms Ordinance, 1972. However, the
court refers to the proviso to subsection (2) of section 3, which prohibits
the remedy of Intra Court Appeal when the relevant law provides for
appeal, revision, or review.
6. Legal Precedents: Legal precedents, such as "SME Bank Limited v.
Izharul Haq" (2019 SCMR 939) and "Muhammad Aslam Sukhera and
others v. Collector Land Acquisition, Lahore Improvement Trust,
Lahore" (PLD 2005 Supreme Court 45), are cited to support the
proposition that where appeal, revision, or review is available, the remedy
of Intra Court Appeal is not maintainable.
7. Representation as an Equivalent Remedy: The court cites "Federation
of Pakistan through Secretary Revenue Division, Islamabad and others v.
Messrs Sahib Jee and others" (2017 PTD 1481) to assert that the remedy
of representation is akin to an appeal. This aligns with previous judgments
like "Muhammad Shakoor v. Federal Public Service Commission
Through Chairman, Islamabad and 2 others" (2003 PLC (C.S.) 414) and
others, reinforcing that the proviso to subsection (2) of section 3 of the Law
Reforms Ordinance, 1972 bars Intra Court Appeal in cases with available
remedies.
8. Dismissal of Intra Court Appeal: Consequently, the court determines
that the Intra Court Appeal is not maintainable as per the proviso to
subsection (2) of section 3 of the Law Reforms Ordinance, 1972, and thus
dismisses the appeal.
ORDER
Through this Intra Court Appeal filed under section 3 of the Law Reforms
Ordinance, 1972 (the "Ordinance"), the Appellant has challenged the
validity of judgment dated 28.05.2020 (the "Impugned judgment") passed
in Writ Petition No.3072 of 2020 by the learned Single Judge in Chamber,
whereby the Constitutional petition filed by the Respondent No.1 was
allowed and the Respondent No.2 SECP was directed to register the
charge immediately.
2. When confronted how this Intra Court Appeal (the "ICA") is
maintainable in view of Proviso to section 3(2) of Law Reforms
Ordinance, 1972 because in paragraph-6 of the impugned judgment of the
learned Single Judge-in-Chamber, the Appellant itself objected to the
maintainability of the writ petition by stating that the Respondent had the
remedy of appeal under Section 480 of the Companies Act, 2017 (the
"Act").
4. It is reflected from perusal of record that the Appellant is aggrieved
from judgment dated 28.05.2020 passed by learned Single Judge in
Chamber whereby writ petition filed by the Respondent No.1 was allowed
and the Respondent No.2 Security and Exchange Commission of Pakistan
(SECP) was directed to register the charge immediately. In the said
petition, the order dated 07.01.2020 issued by the Respondent No.2 was
assailed declaring the same to be illegal having no authority in law.
5. The order impugned in the writ petition has been passed by
Additional Joint Registrar of Companies, under Companies Act, 2017,
which is an appealable order in view of section 480 of the Act. It has also
transpired that the appellant had already filed objection petition under
section 13 of N.A.O., 1999 before the learned Accountability Court,
Lahore which is still pending.
6. From the above Section, it is crystal clear that against the order of
the Respondent No.3 an alternate remedy of appeal is provided, as such
the order dated 07.01.2020 was challengeable and the appellant has duly
challenged the same by filing objection petitions under section 480 of the
Act.
7. The instant Intra Court Appeal has been filed under section 3 of the
Law Reforms Ordinance, 1972 whereas proviso to subsection (2) of
section 3 of the Law Reforms Ordinance, 1972 bars the remedy of Intra
Court Appeal in those cases in which the relevant law provides the remedy
of appeal, revision or review.
8. Now the question arises whether Intra Court appeal is maintainable
in such a case where a remedy in the form of appeal/representation was
available to the Appellant. Proviso to section 3 of the Law Reforms
Ordinance, 1972 provides that where appeal, revision or review is
provided, then intra court appeal is not maintainable. Reliance in this
regard is placed on the case titled "SME Bank Limited v. Izharul Haq"
(2019 SCMR 939) wherein Hon'ble Supreme Court has held as under:
"We are of the view that where the proceedings from which the writ
petition has arisen provided for either review, revision or Appeal, in terms
of proviso to section 3 of the Ordinance of 1972, remedy of ICA will not
be available against the judgment passed by the learned Single Judge in
the writ petition". Reliance is further placed on case law reported as
"Muhammad Aslam Sukhera and others v. Collector Land Acquisition,
Lahore Improvement Trust, Lahore" (PLD 2005 Supreme Court 45)
wherein the Hon'ble Supreme Court of Pakistan has held as under:
"7. There is no doubt in our mind that the award by the Tribunal is treated
to be an original judgment and decree within the meaning of section 26 of
the Act. Being an original decree, the award has been specifically made
appealable before the High Court and then before this Court under section
54 of the Act of 1894. In view of express provisions of section 54 of the
Act it is not possible for us to hold otherwise. It cannot be said that the
award by the Tribunal is not an original order for the purposes of bar
contained in proviso of section 3(2) of the Ordinance. Therefore, it is not
necessary for us to determine as to whether the award made by the
Collector could also be treated to be an original order or not. The object
of Proviso to subsection (2) of section 3 of the Ordinance, 1972 seems to
be to bar the remedy of Intra Court Appeal in those cases in which the
relevant law provides the remedies of appeal, revision or review."
9. As against the original order i.e. dated 07.01.2020 a remedy of
Appeal has been provided under section 480 of the Act, and the Appellant
has duly availed the said remedy by filing the objection petition which is
still pending. It was held by august Supreme Court in "Federation of
Pakistan through Secretary Revenue Division, Islamabad and others v.
Messrs Sahib Jee and others" (2017 PTD 1481) that "remedy of
representation, though not stricto senso akin to an appeal, is nevertheless
a statutory remedy and, therefore, the revision must be strictly construed
and applied". This Court through various judgments has already held that
remedy of representation is equal to remedy of appeal as envisaged under
Proviso of section 3 of the Law Reforms Ordinance, 1972 thus debar
remedy of Intra Court Appeal. Reference is placed on "Muhammad
Shakoor v. Federal Public Service Commission Through Chairman,
Islamabad and 2 others" (2003 PLC (C.S.) 414), "Yamin v. Mst. Jajan and
others" (2005 CLC 78), "Messrs Shahzadi Polypropylene Industries
through Proprietor v. Federation of Pakistan through President and 4
others" (2017 PTD 2019), "Muhammad Shraf Saeed v. Habib Bank
Limited and another" (2018 PLC (C.S.) Note 13) and "Haji Ahmad Khan
and another v. Province of The Punjab and 5 others" (2018 PLC (C.S.)
36). Therefore, the instant appeal is not maintainable as the proviso to
subsection (2) of section 3 of the Law Reforms Ordinance, 1972
specifically bars the remedy of Intra Court Appeal in those cases in which
the relevant law provides the remedy of appeal, revision or review.
9. In view of above situation, the instant appeal is not maintainable;
consequently the same is hereby dismissed.
ALAMDAR ENGINEERING----Appellant Versus DONGFONG ELECTRIC CORPORATION and
others----Respondents

 Judge(s): Masud Abid Naqvi and Jawad Hassan JJ
 Case Number: Regular First Appeal No.665 of 2016
 JUDGMENT
 ORDER
The instant Regular First Appeal has been filed against the judgment and
decree dated 10.11.2015 passed by Civil Judge, Lahore whereby the suit for
recovery and damages with permanent injunction filed by the Appellant was
dismissed.
2. Relevant facts of the case are that the Appellant filed a suit for recovery
of withheld amount Rs.14,404,163/- of the work done along with damages of
Rs.20 million against the Respondents. After recording of evidence of parties,
the suit was dismissed vide judgment and decree dated 25.07.2013 on the
ground that the suit had to be filed through duly authorized person. The said
judgment and decree was challenged by the Appellant through RFA No.1080
of 2013 which was allowed and matter was remanded to trial Court vide order
dated 17.11.2014 with certain directions to decide it in accordance with law.
Pursuant to aforesaid remand order, the trial Court, after recording pro and
contra evidence of the parties, dismissed the suit vide impugned judgment,
hence the present appeal.
3. Heard. Record perused.
4. Record reveals that a suit before the trial Court was filed by the
Appellant through Saleem Akbar Khan, Chief Executive of the company. The
trial Court, after recording of evidence of the parties, dismissed the suit with
the observation that it was not maintainable as it had to be filed through duly
authorized person and Saleem Akbar Khan being CEO had no capacity to file
the same. The Appellant was not satisfied with the observation and challenged
the judgment and decree through RFA No.1080 of 2013 which was decided
vide order dated 17.11.2014. It is very important to reproduce the order dated
17.11.2014, relevant portion of which reads as under:
"If the Respondents filed any application for amending their written statement
by adding an objection about the authority of the signatory of the plaint and
learned trial Court will decide the application in accordance with law.
Likewise, if the appellant wants to amend the plaint the learned trial Court will
also decide the appellant's application in accordance with law".
5. The above observations clearly demonstrate that an opportunity was
given to the parties to amend the pleadings, if they required so, and prove their
version accordingly. The argument of learned counsel for the Appellant that
the settlement agreement between the parties was duly executed and as such
all documents were done in a proper manner carries no weight as the trial
Court in the impugned judgment and decree observed that "the plaintiff failed
to enjoy benefits of the order of Hon'ble Lahore High Court, Lahore for proper
amendments in the plaint of the suit in a proper form. Counsel for the plaintiff
moved only an application for compliance of order of Hon'ble Lahore High
Court, Lahore and subsequently application of the defendant was decided by
my learned predecessor but plaintiff failed to produce authority letter in his
evidence regarding the appointment of Muhammad Salim Akbar Khan being
the duly appointed Chief Executive of the company for following all the
matter of the company". Further observed that the "Plaintiff failed to prove his
appointment being duly authorized person as plaintiff Alamdar Engineering is
a private Limited Company and suit has been filed in the capacity of CEO
which is against the spirit of law".
6. The Hon'ble Supreme Court of Pakistan in "Khan Iftikhar Hussain Khan
of Mamdot (represented By 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd.,
Lahore" (PLD 1971 Supreme Court 550) held as under:
"Suit on behalf of Company by a person is not competent unless he is so
authorised by a resolution passed by Company's Board of Directors".
In "The Central Bank of India, Ltd., Lahore v. Messrs Taj ud Din Abdur Rauf
and others" (1992 SCMR 846), it was held as under:
4. Being aggrieved by the above judgment, the appellant Bank preferred an
appeal before the High Court, which was also dismissed by the learned Single
Judge on the ground that in the absence of any proof of the resolution passed
by the appellant Bank proving the grant of the power of attorney to Mr. S.K.
Shikari, the said attorney was not competent to institute the suit. The appeal
was therefore dismissed".
Moreover, in recent judgment cited as "Rahat and Company through Syed
Naveed Hussain Shah v. Trading Corporation of Pakistan Statutory
Corporation, Finance and Trade Centre through Secretary/Chief Executive
Officer" (2020 CLC 872), the Hon'ble Supreme Court has held as under:
"It cannot be disputed that a company like the appellant can sue and be sued
in its own name. Under Order VI, Rule 14 of the Code of Civil Procedure a
pleading is required to be signed by the party and its pleader, if any. As a
company is a juristic entity it is obvious that some person has to sign the
pleadings on behalf of the company. Order XXIX, Rule 1 of the Code of Civil
Procedure, therefore, provides that in a suit by against a corporation the
Secretary or any Director or other Principal Officer of the corporation who is
able to depose to the facts of the case might sign and verify on behalf of the
company".
7. In view of the above situation, we fully agree with the findings of the
trial Court and do not find any illegality or perversity in the impugned
judgment and decree which has been passed in consonance with the spirit of
law, hence, does not call for interference by us.
10. As a sequel to above, this Appeal is hereby dismissed.
MUHAMMAD JAVED---Appellant Versus MUHAMMAD RASHID---Respondent

 JUDGMENT
 JUDGMENT
MASUD ABID NAQVI, J.---Brief facts of this appeal are that the respondent
filed a suit under Order XXXVII, C.P.C. on the basis of promissory note for
recovery of Rs.400,000/- against the appellant/ defendant. The
appellant/defendant filed the written statement and raised factual as well as
legal objections. Out of divergent pleadings of the parties, issues were framed
by the learned Trial Court. The parties produced their respective evidence and
after recording the same, learned Trial Court vide judgment and decree dated
01.07.2011 decreed the suit. Feeling aggrieved, the appellant/defendant has
preferred instant Regular First Appeal and challenged the validity of the said
judgment and decree.
decree.
3. To prove his case, the plaintiff/ respondent appeared and deposed as
PW-1 and produced Sajid Tufail and Hussan Gulzar as PW-2 and PW-3
respectively. The witnesses fully supported the contents of the plaint and the
plaintiff's version. In documentary evidence plaintiff produced original receipt
pronote/Exh.P1 and Exh.P2. On the other hand, defendant/ appellant himself
appeared as DW-1 and examined Asim Rizwan and Saghir Ahmed as DW-2
and DW-3 respectively. Muhammad Ashraf, Sub-Inspector, Expert
Fingerprint Bureau, Punjab also got recorded his statement as CW-1.
Marginal witnesses of receipt/ pronote (Exh.P1) have appeared in the witness
box as PW-2 and PW-3 and fully corroborated the version of respondent/
plaintiff taken in the plaint and also testified the execution of the receipt/
pronote (Exh.P1). Even otherwise, report of Expert Fingerprint Bueau, Punjab
also affirms that the receipt (Exh.P1) and (Exh. P2) bear the thumb impression
of appellant/defendant.
It is well-settled law that under section 118 of the Negotiable Instruments Act,
1881, there is an initial presumption that the negotiable instrument is made,
drawn, accepted or endorsed for consideration and contrary to this, the onus
is on the person who is denying the consideration to prove the same. The
honorable Supreme Court in a case reported as "Muhammad Azizur Rehman
v. Liaquat Ali (2007 CLD 1542) had held as under:
"…..According to section 118 of the Act, until the contrary is proved, the
presumption shall be made that every negotiable instrument was made or
drawn for consideration……."
4. By scanning the contents of the pleadings, oral as well as documentary
evidence, it is crystal clear that the appellant/defendant has failed to
substantiate his claim that consideration of pronote has not been received by
him and he will not be relieved from discharging the above burden of proof.
Testing the case in hand, at the touchstone of the abovementioned settled law,
I feel no hesitation in holding that the appellant/ defendant has miserably
failed to establish/substantiate/prove his claim(s). In view of the foregoing
discussion, this appeal is dismissed.
ABDUL MAJEED AKHTAR----Appellant Versus MUHAMMAD ZEESHAN SHOUKAT----
Respondent

 JUDGMENT
Background: The respondent/plaintiff filed a suit against the
Appellant/defendant for the recovery of Rs.19,00,000 under Order
XXXVII, Rules 1 and 2 of the Civil Procedure Code (C.P.C.). The
defendant appeared before the trial court, seeking leave to defend the suit.
The trial court decreed the suit in favor of the plaintiff, prompting the
defendant to appeal the judgment.
Court Proceedings: The appellate court heard arguments from both
parties and thoroughly examined the records, including the impugned
judgment and decree. During cross-examination, the defendant conceded
that no one except DW.2/Tariq Ali appeared on their behalf, and DW.2
wasn’t present during the signing or payment. The defendant claimed the
cheque was issued as a guarantee, but failed to prove this claim through
oral or documentary evidence.
Legal Presumptions and Burden of Proof: The court highlighted Section
118 of the Negotiable Instruments Act, 1881, which presumes that
negotiable instruments are made for consideration unless proven
otherwise. Citing legal precedents such as Muhammad Azizur Rehman v.
Liaquat Ali (2007 CLD 1542), the court emphasized that the burden of
proof to establish a guarantee for a cheque rests on the one making the
claim.
Court Decision: The court analyzed the pleadings and found that the
defendant failed to substantiate the claim that the cheque was issued as a
guarantee. As per established legal principles, the defendant didn’t meet
the burden of proof required. Consequently, the trial court's findings were
upheld, and the appeal was dismissed.
Legal References: The judgment refers to legal provisions from the
Negotiable Instruments Act, 1881 (Section 118). It also cites legal cases
such as Muhammad Azizur Rehman v. Liaquat Ali (2007 SCMR 1820),
Muhammad Ali v. Wali Muhammad (2015 CLD 1820 (Lahore)), Abdul
Karim v. Muhammad Idrees (2014 CLC 1001), and Syed Zawar Hussain
v. Syed Riazul Abbas Sherazi (2015 MLD 890 (Lahore)) as precedents
supporting the burden of proof in cases involving negotiable instruments.
The judgment ultimately underscores the failure of the defendant to meet
the burden of proof regarding the nature of the cheque, leading to the
dismissal of the appeal.
ORDER
Brief facts of this appeal are that the respondent/plaintiff filed a suit for
recovery of Rs.19,00,000/- under Order XXXVII, Rules 1 and 2 of C.P.C.
against the Appellant / defendant. The appellant/defendant appeared
before the learned trial court and filed an application for leave to appear
and defend the suit which was duly contested by the respondent/plaintiff
by filing written reply thereto. The learned trial court, after hearing the
parties decreed the suit vide judgment and decree dated 24.09.2016.
Feeling aggrieved, the appellant/ defendant has preferred instant regular
first appeal and challenged the validity of the said judgment and decree.
decree.
3. The appellant/defendant while appearing as DW.1 during cross
examination conceded as under:
No one else appeared on behalf of the appellant/defendant except
DW.2/Tariq Ali who was neither present at the time of signatures or
payment of amount. DW.2 deposed about the alleged "punchaiti" decision
but conceded in cross-examination as follows:
After the admission of the execution of cheque, onus to prove that cheque
was issued as a guarantee was on the appellant/defendant but he
miserably failed to prove his version through oral or documentary proof.
It is well settled law that under section 118 of the Negotiable Instruments
made, drawn, accepted or endorsed for consideration and in a case to
contrary the onus is on the person who is claiming to execute guarantee
cheque to prove the same. The honorable Supreme Court in a case
reported as Muhammad Azizur Rehman v. Liaquat Ali (2007 CLD 1542)
had held as under:
"............According to Section 118 of the Act, until the contrary is proved,
the presumption shall be made that every negotiable instrument was made
or drawn for consideration........"
Reference is also made to cases reported as Muhammad Azizur Rehman
v. Liaqat Ali (2007 SCMR 1820), Muhamad Ali v. Wali Muhammad
(2015 CLD 1820 (Lahore), Abdul Karim v. Muhammad Idrees (2014
CLC 1001) and Syed Zawar Hussain v. Syed Riazul Abbas Sherazi (2015
MLD 890 (Lahore).
defendant/appellant has failed to substantiate his claim that cheque was
issued as a guarantee and he will not be relieved from discharging the
above burden of proof. Testing the case in hand, at the touchstone of the
appellant/defendant has miserably failed to establish/ substantiate /prove
his claim(s), hence, the findings of learned trial court are
maintained/upheld.
that learned trial court has rightly proceeded in the matter. The impugned
MUHAMMAD SALEEM BHATTI---Petitioner Versus Mst. NARGIS SITARA and others---
Respondents
 Citation: 2020 YLR Note 26

 Case Number: C. R. No.51318 of 2019
 JUDGMENT
 ORDER
MASUD ABID NAQVI, J.---Through this order, I intend to decide instant
civil revision along with connected Civil Revision No. 51500 of 2019
involving common questions of law and facts.
2. The plaintiff/petitioner filed a suit for declaration and injunction titled
"Muhammad Saleem Bhatti v. Rasheedan Bibi' and others" with the
averments that disputed house was constructed by his father namely Akbar
Ali Bhatti with the amount of plaintiff/petitioner and later on orally gifted
the same in his favour, hence, none of the other legal heirs of late Akbar
Ali Bhatti are entitled to claim any legal share from the disputed house
while the defendants Nos.1 to 5 including the mother of plaintiff/petitioner
8 and 9 filed contesting written statement (s) and defendant No. 7 and legal
heirs of defendant No.10 filed conceding written statement(s).
On the other hand, respondent No.3/daughter of late Akbar Ali Bhatti
filed a suit for possession through partition titled "Mst. Nargis Sitara v.
Muhammad Saleem Bhatti etc." while the defendants in the said suit filed
conceding written statement except plaintiff/ petitioner who filed
contesting written statement.
3. Both the suits were consolidated by the learned trial court. After
framing of consolidated issues, contesting parties adduced their respective
evidence and the learned trial court vide consolidated judgment and decrees
dated 08.05.2017 dismissed the suit of plaintiff/petitioner and decreed the
suit of respondent No.3. Feeling aggrieved, the plaintiff/petitioner filed two
appeals and learned Additional District Judge also dismissed the appeals
vide consolidated Judgment and Decrees dated 09.05.2019, hence this civil
revision as well as Civil Revision No.51500/2019.
4. I have heard the learned counsel for the plaintiff/petitioner who
reiterated his arguments and perused the available record as well as have
minutely gone through both the impugned judgments and decrees.
5. There is no denial of the fact that the contesting parties are the legal
heirs of late Akbar Ali Bhatti and are entitled to the shares in accordance
with law and sharia and onus to prove the issue No.1 about the existence of
oral gift of disputed house heavily lies on the plaintiff/ petitioner. A valid
gift can be effected orally or through registered gift deed but it is also a
settled law qua the transaction of gift that it is the duty of beneficiary and a
heavy onus lies on him to prove by convincing evidence, satisfying the
judicial conscience of the court that transaction shown to be an oral gift was
made by the donor in favour of donee. Under Mohammadan Law, a gift by
a muslim would be complete, if the three necessary and inseparable
ingredients are proved i.e. (i) declaration/offer by the donor (ii) acceptance
of gift by the donee and (iii) delivery of possession under the gift but the
plaintiff/ petitioner miserably failed to the prove the basic ingredients of
valid gift. In his plaint, the plaintiff/ petitioner claimed that family members
were also present at the time when his father orally gifted the disputed
house but neither he produced any family member as witness to support his
claim nor any of them deposed in his favour. Both the witnesses namely
Javed Iqbal and Maqbool Virk are admittedly disciples of late Akber Ali
Bhatti, with great respect/ religious attachment with Sajada Nasheen/
plaintiff/petitioner being son of their "Murshad" namely late Akber Ali
Bhatti and there exists contradictions in their statements about the factum
and genuineness of alleged oral gift. It is quite intriguing to note that
disputed oral gift deed is an attempt to deprive all the members of the Late
Akbar Ali Bhatti from their inheritance, without any reason or justification
especially female members of family including the widow of deceased who
was thrown out of disputed house and relevant portion of cross-examination
of plaintiff/petitioner/ PW-1 is reproduced as under:
In this regard, para of citation i.e. Barkat Ali through Legal Heirs and others
v. Mohammad Ismail through Legal Heirs and others (2002 SCMR 1938)
provides the guidance which is reproduced hereunder.
"In the wake of frivolous gifts generally made to deprive females in the
family from the course of inheritance prevalent at present times, the courts
are not divested of the powers to scrutinize the reasons and justification for
a gift so that no injustice is done to the rightful owner and no course of
inheritance is bypassed".
6. With respect to interference in concurrent findings of the courts below,
the Hon'ble Supreme Court of Pakistan in a case reported as Administrator,
Thal Development through EACO Bhakkar and others v. Ali Muhammad
(2012 SCMR 730) held that:-
"Concurrent findings of the trial court and appellate court, in favour of
appellants were based on proper appreciation of evidence therefore, the
same were not open to interference by the revisional court in exercise of its
jurisdiction under section 115, C.P.C. which is primarily meant for
correction of jurisdictional defect/error and material illegalities /
irregularities, result-ing in miscarriage of justice to a party."
7. In the present case, no such defects have been pointed out by the
learned counsel for the petitioners which would require interference by this
Court. Nothing new has been brought before the Court in order to attack the
validity of the impugned judgments and decrees. Learned courts below have
thoroughly examined the entire evidence of the parties and thereafter
pronounced the verdicts with well reasons. Neither any misreading or non-
reading of evidence on record nor any infirmity, legal or factual, has been
pointed out in the impugned consolidated judgments and decrees passed by
the learned courts below, therefore, this civil revision along with connected
Civil Revision No.51500/2019 is dismissed in limine.
STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Zonal Head/Attorney and
another---Appellants Versus Mst. NASREEN BEGUM---Respondent

 Judge(s): Shahid Waheed and Masud Abid Naqvi, JJ
 Case Number: Insurance Appeal/R.F.A. No. 77885 of 2019
 JUDGMENT
 Case Summary
This judgment pertains to the appeal filed against a decision made by the
Insurance Tribunal in Faisalabad. The appellants contested the judgment
that favored the respondent/nominee, granting policy proceeds of
Rs.1,95,120/- along with liquidated damages from the due date of the
policy. The primary contention in this appeal was the delay in filing the
appeal, which the appellants sought to condone under section 5 of the
Limitation Act, 1908.
Legal Interpretation of Time Limitations
The appellants filed the appeal after a delay of two months and twelve
days from the date of the impugned judgment, whereas the specific law,
i.e., section 124(2) of the Insurance Ordinance 2000, allows a limited
period of 30 days for appeals related to insurance matters. The judgment
emphasizes that when a special law stipulates a particular limitation
period, general principles outlined in the Limitation Act are not
applicable. Reference was made to cases such as General Manager v. Mst.
Sakina Bibi (2012 CLD 1112 Lahore) and Jubilee General Insurance Co.
Ltd v. Ravi Steel Company (2016 SCMR 1979), affirming the
inapplicability of section 5 of the Limitation Act in such instances.
Dismissal of Appeal and Condonation of Delay
The Court dismissed the appeal as time-barred, as the appellants failed to
demonstrate entitlement for condonation of the delay, asserting that the
filing of the appeal was beyond the statutory limitation period set forth by
the special law governing insurance matters. Consequently, the
application for condonation of delay was rejected, leading to the dismissal
of the appeal due to being time-barred.
This judgment underscores the significance of adhering to specific
limitation periods outlined in special laws, emphasizing that general
provisions of the Limitation Act may not apply in cases governed by such
specific laws.
Please note that the references in the summary are provided for legal
context and understanding. If any specific legal advice or representation is
needed, it's recommended to consult a lawyer or legal professional
directly.
ORDER
Main Case C.M. No. 1 of 2019
Aggrieved by the judgment dated 09.102019 passed by the learned
Insurance Tribunal, Faisalabad, whereby petition for recovery of policy
proceeds along with liquidated damages was accepted and
respondent/nominee was granted policy proceeds of Rs.1,95,120/- along
with liquidated damages from the date when the policy became due, the
appellants have filed this appeal along with an application under section 5,
Limitation Act, 1908 and challenged the same.
2. We have heard the learned counsel for the appellants on the point
of limitation and perused the record.
3. The appellants have filed the instant appeal before this Court on
21.12.2019, after two months and twelve days of the impugned judgment.
The special law regulates the preferring of the instant appeal and prescribes
a period of 30 days for the purpose as per section 124(2) of Insurance
Ordinance 2000. Section 29 of the Limitation Act, 1908 specifically gives
protection to the period of limitation prescribed by any special or local
law. The Insurance Ordinance (No.XXXIX) of .2000 is a special law
legislated on the subject of insurance and regulates the enforcement of the
insurance claim and the impugned judgment was passed by the Tribunal
constituted under section 121 of the Insurance Ordinance (No.XXXIX) of
2000. Hence, the provisions of section 5 of the Limitation Act, 1908 have
also been specifically excluded from its application to the matters being
governed and regulated by any special or local law. While interpreting the
provisions of section 115 of C.P.C. it has been laid down by the Hon'ble
Superior Courts that where a period of limitation is prescribed under a
specific provisions of special or local law then the general principles of law
of Limitation Act are not applicable. It is also laid down by the honorable
Courts of Pakistan that the provisions of section 5 of the Limitation Act,
1908 cannot be in such like cases invoked for seeking condonation of
delay. Reference is made to the cases reported as General Manager v. Mst.
Sakina Bibi and others (2012 CLD 1112 (Lahore) and Jubilee General
Insurance Co. Ltd v. Ravi Steel Company (2016 SCMR 1979).
4. In view of the foregoing discussion, the learned counsel for the

appellants has failed to convince this Court that appellants are entitled for
condonation of delay because the appellants filed a hopelessly time barred
appeal before the Court. Hence, the appellants’ application for
condonation of delay is dismissed and resultantly the appeal is also
dismissed as time barred.
ABDUL MAJEED AKHTAR--Appellant versus MUHAMMAD ZEESHAN SHOUKAT--Respondent

 JUDGMENT
 ORDER
Brief facts of this appeal are that the respondent/plaintiff filed a suit for
recovery of Rs. 19,00,000/- under Order XXXVII Rule 1 and 2 of C.P.C
against the appellant/defendant. The appellant/ defendant appeared before the
learned trial Court and filed an application for leave to appear and defend the
suit which was duly contested by the respondent/plaintiff by filing written
reply thereto. The learned trial Court, after hearing the parties decreed the
suit vide judgment and decree dated 24.09.2016. Feeling aggrieved, the
appellant/defendant has preferred instant regular first appeal and challenged
the validity of the said judgment and decree.
2. I have heard the arguments of the learned counsel for the parties and have
minutely gone through record as well as the impugned judgment and decree.
3. The appellant/defendant while appearing as DW.1 during cross examination

conceded as under:
"It is true that I signed and filled the check myself. I said that it was given as
a check guarantee."
No one else appeared on behalf of the appellant/defendant except DW.2/Tariq

Ali who was neither present at the time of signatures or payment of amount.
DW.2 deposed about the alleged “punchaiti” decision but conceded in cross
examination as follows:
"Neither side brought the matter to me regarding the disputed matter. It is true
that we did not issue written notices to the parties regarding the arbitration of
17.4.15, nor did the parties. He said about the decision ... "
After the admission of the execution of cheque, onus to prove that cheque was
issued as a guarantee was on the appellant/defendant but he miserably failed
to prove his version through oral or documentary proof. It is well settled law
that under section 118 of the Negotiable Instruments Act, 1881, there is an
initial presumption that the negotiable instrument is made, drawn, accepted or
endorsed for consideration and in a case to contrary the onus is on the person
who is claiming to execute guarantee cheque to prove the same.
The Honorable Supreme Court in a case reported as Muhammad
Aziz ur Rehman vs. Liaquat Ali (2007 CLD 1542) had held as under:
“…….. According to Section 118 of the Act, until the contrary is proved, the
drawn for consideration …..”
Reference is also made to cases reported as Muhammad
Aziz ur Rehman vs. Liaqat Ali (2007 SCMR 1820), Muhammad Ali
vs. Wali Muhammad (2015 CLD 1820 (Lahore), Abdul Karim vs.
Muhammad Idrees (2014 CLC 1001)
and Syed Zawar Hussain vs. Syed Riazul Abbas Sherazi (2015 MLD 890
(Lahore).

defendant/appellant has failed to substantiate his claim that cheque was issued
as a guarantee and he will not be relieved from discharing the above burden
of proof. Testing the case in hand, at the touchstone of the abovementioned
settled law, I feel no hesitation in holding that the appellant/defendant has
miserably failed to establish/ substantiate/prove his claim(s), hence, the
findings of learned trial Court are maintained/upheld.
5. In view of the foregoing discussion, this Court is of the affirmed view that
learned trial Court has rightly proceeded in the matter. The impugned
MUHAMMAD ARSHAD and others--Petitioners versus ADDITIONAL DISTRICT JUDGE
KHANEWAL and 3 others--Respondents

 JUDGMENT
 ORDER SUMMARY
Introduction: This order concerns a writ petition challenging the
dismissal of an application seeking amendments to the written statement
in a suit for the enforcement of an alleged agreement to sell.
Background: The petitioners filed an application under Order VI, Rule 17,
CPC for amendments to the written statement in a suit related to an
agreement to sell. The amendments were aimed at adding preliminary
objections (7 to 10), claiming an increase in the value of the disputed
property.
Arguments:
 The petitioners argued that the proposed amendments were

necessary for proper adjudication and would not change the nature
of the suit.
 The respondents contended that the proposed amendments,
contradicting the predecessor's denial of the agreement's execution,
would alter the nature of the suit.
Legal Reference - Order 6 Rule 17 CPC: The court referred to Order 6

Rule 17 CPC, emphasizing that amendments are allowed at any stage of
proceedings to determine the real questions in controversy. However,
amendments that cause prejudice to the opposite party may not be
permitted.
Court's Analysis:
1. The court highlighted that the predecessor had specifically denied
the execution of the agreement.
2. Amendments contradicting the predecessor's stance were deemed to
change the nature of the claim.
3. The court emphasized that such amendments were unnecessary to
resolve the real controversy.
Conclusion:
1. The court upheld the rejection of the amendment application by the
learned Courts below.
2. No legal or factual infirmity was found to warrant interference,
leading to the dismissal of the writ petition.
ORDER
Brief facts of this case are that Arshad Ali Qadri/Respondent No. 3 and
Muhammad Zafar Iqbal/Respondent No. 4 filed two suits for the
enforcement of alleged agreement to sell against the predecessor of the
present petitioners while the present petitioners filed suit for declaration.
All the three suits were consolidated and the learned trial Court passed
decree in favour of Arshad Ali Qadri/Respondent No. 3 and dismissed
the suit of Muhammad Zafar Iqbal/Respondent No. 4. The present
petitioners as well as Muhammad Zafar Iqbal/Respondent No. 4 filed two
respective appeals which were accepted vide order 21.03.2014 with the
direction to the learned trial Court to decide the suits afresh. During the
pendency of the suits, petitioners being successor in interest of
Mohammad Bashir filed an application under Order VI, Rule 17, CPC in
the suit titled “Arshad Ali Qadri vs. Muhammad Bashir” for seeking
amendments as duly mentioned in Para No. 1 of the application by
amending Para No. 7, 8, 9 and 10 of the written statement which was
dismissed by the learned trial Court vide order dated 21.04.2015 and the
learned revisional Court also dismissed the revision vide order dated
28.09.2015. Aggrieved by the said orders of learned Courts below, the
petitioners have filed instant writ petition and challenged the same.
2. Learned counsel for the petitioners submits that for proper adjudication
these amendments are necessary and the same will not alter or change the
nature of the suit. On the other hand, learned counsel for respondents
submits that predecessor of the petitioners have specifically denied the
execution of the agreement to sell and the present amendments will
completely change the nature of the suit.
3. I have heard the arguments of learned counsel for parties and have
minutely gone through the impugned orders as well as the available
record.
4. The petitioners moved application Under Order VI Rule 17 CPC for
amendment in the written statement for addition of preliminary objections
(7 to 10) on the ground that value of disputed property had been increased
whereas disputed agreement to sell was showing an amount of Rs.
15,05,000/- only. The amendment in the pleadings is dealt with under
Order 6 Rule 17 CPC. The relevant provision of law is reproduced
hereunder for better understanding:
“6 (17) Amendment of pleadings.--The Court may at any stage of the
proceedings allow either party to alter or amend his pleadings in such
manner and on such terms as may be just, and all such amendments shall
be made as may be necessary for the purpose of determining the real
questions in controversy between the parties.”
From the above provision of law it is quite clear that at any stage of
proceedings amendment in pleadings as may be necessary for the purpose
of determining the real questions in controversy between the parties can
be permitted. Any Amendment in the pleadings is usually not permitted
where the same amounted to cause prejudice to opposite party. An
amendment to add a new cause of action for the original cause of action
cannot be permitted. In the instant case, Admittedly, the predecessor of
the petitioners has specifically denied the execution of the alleged
agreement to sell hence, petitioners’ application to amend the plaint by
inserting amendments i.e. time is essence of contract, increase in sale
consideration and other two grounds are completely contradictory to the
stance taken by the predecessor in interest of the petitioners and the
amendments will completely change the nature of the suit. Through the
amendment sought by petitioners nature of claim will be changed. Such
amendments are not necessary by reason of events subsequent to the filing
of the suit to resolve the real matter in controversy. Learned Courts below
have rightly rejected the amendment in pleadings, therefore, findings of
learned Courts below are upheld/maintained.
5. Learned counsel for the petitioners has failed to point out any infirmity
legal or factual in the impugned orders passed by learned Courts below
warranting interference of this Court, therefore, this writ petition
is dismissed.
ABDUL MATEEN--Appellant versus STATE, etc.--Respondents
 Citation: 2021 PLJ Law Note Criminal 60

 Judge(s): Ali Baqar Najafi and Masud Abid Naqvi, JJ
 Case Number: Crl. A. No. 71286 of 2017
 JUDGMENT
 Case Summary:
INTRODUCTION:
This judgment pertains to Criminal Appeal No. 71286-2017 and others,
collectively challenging the verdict of Accountability Court No. II,
Lahore, in AC Reference No. 38/2007 titled "The State vs. Tasneem
Akhtar, etc." The appellants, including Abdul Mateen and others, faced
charges under the National Accountability Ordinance, 1999, for
misappropriation and corruption during their tenure at Allied Bank
Limited (ABL), Lahore Stock Exchange Branch.
FACTS OF THE CASE:
An FIR was registered against the appellants, bank officials, for
embezzlement amounting to Rs. 202.068 Million. The charges included
fraudulent activities, creation of fake accounts, and misappropriation of
funds. The trial court, on 26.07.2017, convicted several appellants,
imposing various sentences and fines.
LAW POINTS INVOLVED:
1. Section 10(a) of NAO, 1999 - Imposition of Fine:
 The judgment noted a discrepancy in the convictions of Faisal
Hussain Butt, Shahid Tanvir, and Saghir Iqbal Goraya under
Section 10(a) of the National Accountability Ordinance,
1999. It emphasized the mandatory imposition of a fine,
which was omitted in the original verdict.
2. Section 15(a) of NAO, 1999 - Disqualification and Plea Bargain:
 The judgment questioned the conviction under Section 15(a)
without proper consideration of Section 25(b) and criticized
the interpretation of settlement with certain appellants as a
plea bargain. It stressed the need for fixing liability before
conviction under Section 15.
3. Section 265-H, Cr.P.C. - Findings in Acquittal or Conviction:
 The court highlighted a violation of Section 265-H, Cr.P.C.,
as findings were not given for Zeeshan Dar, Sajid Masood,
Tasneem Akhtar, and Nargis Tayyab, creating a legal
inconsistency.
JUDICIAL ANALYSIS:
1. Mandatory Fine under Section 10(a):
 The court underlined the error in not imposing fines on Faisal
Hussain Butt, Shahid Tanvir, and Saghir Iqbal Goraya,
emphasizing the conjunction "and" in Section 10(a), making
both imprisonment and fine obligatory.
2. Discrepancy in Section 15(a) Conviction:
 The judgment scrutinized the conviction under Section 15(a),
asserting that the liability of certain appellants was left
unresolved, questioning the adequacy of the plea bargain
interpretation.
3. Legal Lacunas and Consensus:
 Recognizing legal gaps and the agreement between the
involved parties, the court deemed the judgment
unsustainable. It cited the necessity of rewriting the decision,
considering the referred legal lacunas and reaching a
consensus between the involved parties.
COURT DECISION:
The appeals were allowed, the impugned judgment was set aside, and the
case was remanded to Accountability Court No. II, Lahore. AC Reference
No. 38/2007 was deemed pending for a fresh decision, addressing the
legal issues and ensuring a comprehensive judgment.
LEGAL REFERENCES:
1. Section 10(a) of the National Accountability Ordinance, 1999
 Highlighted for the mandatory imposition of a fine alongside
imprisonment.
2. Section 15(a) of the National Accountability Ordinance, 1999
 Scrutinized for convicting appellants without fixing liability
and emphasized the need for proper consideration of Section
25(b).
3. Section 265-H, Cr.P.C.
 Referenced to point out the failure to provide findings for
certain appellants, creating a legal inconsistency.
4. PLD 2003 SC 837 - Syed Ali Nawaz Shah and 2 others vs. The State and
others
 Quoted to emphasize the principle that guilt should rest on
evidence, even in plea bargains, and to support arguments
related to Section 15(a) convictions.
ORDER
This order shall dispose of Crl. Appeal No. 71286-2017 titled Abdul
Mateen vs. The State, etc., Crl. Appeal No. 70876-2017 titled Shahid
Tanvir vs. The State, etc., Crl. Appeal No. 67715-2017 titled Faisal
Hussain Butt vs. The State, Crl. Appeal No. 65791-2017 titled Saghir Iqbal
Goraya vs. The State, etc., Crl. Appeal No. 81419-2017 titled Hameed
Ghani. etc. vs. The State, Crl. Appeal No. 71201-2017 titled Muhammad
Tahir Awais vs. The State etc., Crl. Appeal No. 73765-2017
titled National Accountability Bureau vs. Tasneem Akhtar, etc., W.P.
No. 103319-2017 titled Allied Bank Limited vs. Judge Accountability
Court No. 2, Lahore, etc., W.P. No. 219097-2018 titled Abdul Mateen vs.
The State etc., W.P. No. 218755-2018 titled Saghir Iqbal Goraya vs. The
Chairman, NAB, etc. and W.P. No. 218155-2018 titled Shahid Tanvir vs.
The State etc. as all these appeals and writ petitions have been preferred
against judgment dated 26.07.2017 passed by the learned Judge
Accountability Court No. II, Lahore in AC Reference No. 38/2007
titled "The State vs. Tasneem Akhtar, etc." whereby the following
punishments were imposed:--
131. "For what has been discussed above the accused Abdul Mateen
Khan is found to have committed the offence of corruption and corrupt
practices as defined under Section 9(a) of National Accountability
Ordinance, 1999 read with Para 5 of The Schedule thereto is liable to be
convicted u/S. 10 of the Ordinance. He has also caused loss of Rs. 24.975
Million to ABL, Lahore Stock Exchange Branch. He is convicted and
awarded rigorous imprisonment for 14 years and fine of Rs. 24.975
Million. In case of recovery of fine from him the same be given to Allied
Bank Limited. In case of default the said amount is recoverable from him
as arrears of Land Revenue.
132. For what has been discussed above the accused Tahir Awais is
found to have committed the offence of corruption and corrupt practices
falling within the mischief of Section 9(a) of National Accountability
convicted u/S. 10 of the Ordinance. He has also caused loss of Rs. 20
Million to ABL, Lahore Stock Exchange Branch. He is accordingly
convicted and awarded rigorous imprisonment for 14 years and fine of Rs.
20 Million. In case of recovery of the said amount from him the same be
given to Allied Bank Limited. In case of default the said amount is
recoverable from him as arrears of Land Revenue.
133. For what has been discussed above the accused Faisal Hussain Butt
is found guilty of offence of (sic) and corrupt practices as defined in (sic)
National Accountability Ordinance, (sic) para 5 of The Schedule thereto
is liable to be convicted u/S. 10 of the Ordinance. He is accordingly
convicted and awarded rigorous imprisonment for 14 years. Since, the
prosecution has not determined any amount misappropriated by him, so
the Court does not award him punishment of fine.
134. For what has been discussed above the accused Shahid Tanvir is
found to have committed an offence of corruption and corrupt practices
convicted u/S. 10 of the Ordinance. He is accordingly convicted and
awarded rigorous imprisonment for 14 years. Since, the prosecution has
not determined any amount misappropriated by him, so the Court does
not award him punishment of fine.
135. For what has been discussed above the accused Saghir Iqbal Goraya
is found to have committed an offence of corruption and corrupt practices
convicted u/S. 10 of the Ordinance. He is accordingly convicted and
awarded rigorous imprisonment for 14 years. Since, the prosecution has
not determined any amount misappropriated by him, so the Court does
not award him punishment of fine".
2. Briefly the prosecution case against the appellants is that FIR No.
1040/2006 was registered at Police Station Civil Line, Lahore on
24.09.2006 under Sections 477-A, 471, 468, 420, 409, 408, 109, PPC by
the Chief Manager, Allied Bank Limited, Lahore Stock Exchange Branch
on the allegations that the accused in the said FIR in connivance with
other co-accused committed fraud and embezzled/misappropriated an
amount of Rs. 298.600 Million. An inquiry was thus authorized on
12.10.2006 and was converted into investigation on 10.01.2007. As per the
allegations, the officers of Allied Bank Limited, Lahore Stock Exchange
Branch, Lahore misappropriated a sum of Rs. 202.068 Million. Precise
allegations against the appellants were as follows:
That the investigation revealed that accused namely Tasneem Akhtar,
Faisal Hussain, Saghir Iqbal Goraya and Tahir Awais as officers of Allied
Bank Limited (ABL) LSE Branch Lahore in connivance and collusion
with one another misappropriated a sum of Rs. 202.068 M.
(i) That accused brought the accounts of various people promising
them to provide false inflated bank statements for visa purposes and other
ancillary matters. The needy people were clutched into the netted plan of
accused namely Tasneem Akhtar, Faisal Hussain, Saghir Iqbal Goraya
and Tahir Awais and they opened accounts with the bank and also gave
them signed cheque books, which were subsequently utilized by the
accused as instruments for the commission of fraud.
(ii) That accused Tasneem Akhtar in order to achieve his nefarious
designs intentionally confirmed fake, false or fictitious KYC preforms
through which succeeded in opening fraudulent pool accounts. Many
fictitious debit/credit entries were ascertained from such pool accounts
(Benami accounts).
(iii) Investigation confirmed that accused Faisal Hussain in connivance
with accused Tasneem Akhtar used to prepare false drawing power (DP)
of certain account holders, upon which accused Tasneem Akhtar would
entertain the same and post them in routine bank system. The illegal act
of the accused allowed huge withdrawal of amounts, which never existed
in the balance of relevant account holders.
(iv) That above said four accused with mala fide and malicious
intention, in order to camouflage their misdeeds and illegal practices,
endorsed the flying entries in the ledgers but factually there was no cash
corresponding the entries of the books.
(v) That active connivance of the said four accused is evident from the
fact that they were also involved in such illegal and unwarranted business
by giving money of bank to the customers unauthorizedly and illegal. The
investigation reveals (relevant) said four accused besides other benefits
also provided illegal pecuniary benefit of Rs. 24,975 (M) through abetment
to one Abdul Mateen account holder No. 2005-1.
Thus accused committed the offence of criminal breach of trust by
dishonestly and fraudulently misappropriation huge amount of the bank.
The accused persons embezzled a sum of Rs. 202.068 Million by opening
fake and fictitious accounts, by endorsing the flying entries in the ledgers,
by conducting illegal business, by forging bank record and by falsification
of accounts. The accused thus committed offence as defined u/S.
9(a)(iii)(iv)(vi) (xi) and (xii) punishable u/S. 10 (a) read with schedule
thereto of NAO, 1999".
3. Consequently, the above reference was filed on 4.2.2010 in which,
besides the appellants (Tasneem Akhtar, Faisal Hussain, Saghir Iqbal
Goraya and Tahir Awais), other persons were also arrayed as accused. As
per the reference, appellants Tasneem Aljditar, Faisal Hussain, Saghir
Iqbal Goraya, Tahir Awais, Asad Raza Naqvi, Mushtaq Ahmad Bajwa,
Farrukh Fahim Ansari, Usman Qazi and Syed Shuja Hassan Rizvi in
connivance with appellants Shahid Tanvir, Saeed Ahmad Waheed, Abdul
Mateen Khan, Sajid Masood, Hameed Ghani and Zeeshan Dar prepared
forged record, falsified accounts and misappropriated an amount of Rs.
202.068 Million of the bank. On 07.07.2009 a supplementary reference
was also filed and the appellants Sana Hameed, Nargis Tayyab and Israr
Shah were also cited as accused persons. Copies were distributed under
Section 265-C, Cr.P.C. and the charge was framed against the appellants
as follows:
"That you accused Tasneem Akhtar, Asad Raza Naqvi as Customer
Services Managers, Mushtaq Ahmad, Syed Shuja Hassan Rizvi, Usman
Qazi as Bank Officers, Faisal Hussain Butt as Current Deposit Incharge,
Saghir Iqbal Goraya as Cash Deposit Officer, Tahir Awais as Cashier,
Farruk Fahim Ansari as Chief Manager of Allied Bank Ltd, Lahore Stock
Exchange Branch Lahore committed criminal breach of trust as bankers
to the tune of Rs. 202.068 Million as defined u/S. 409 Pakistan Penal
Code in respect of the deposits of the said bank, with connivance,
assistance/abetment and in conspiracy with your co-accused Shahid
Tanvir, Saeed Ahmad Waheed, Abdul Mateen Khan, Sajid Masood,
Hameed Ghani, Zeeshan Dar, Mst. Sana Hameed, Mst. Nargis Tayyab,
Israr Shah the Account Holders of your bank on the basis of forged and
fake documentation during the period ending on 22.09.2006 caused a
corresponding financial loss to your bank and, thus, you all committed a
offence punishable u/S. 9(a)(xi) (xii) of National Accquntability
Ordinance, 1999 read with Section 10 of the said Ordinance and schedule
thereto which is within the cognizance of this Court".
The appellants pleaded not guilty and claimed trial.
4. The prosecution produced as many as 40 witnesses. In the statement
under Section 342, Cr.P.C. the appellants had taken the following stand:-
-
(i) Faisal Hussain Butt/appellant stated that he joined ABL in 1994 as
Assistance, his duties were to supervise the entries made and had no
interaction with cash or any other valuable security in any manner what
so ever. As per rules and regulations of the ABL (Allied Bank Ltd) cashier
is solely responsible for receiving and paying the cash and also receives the
cheques. His version may be confirmed by perusing the written rules and
regulations of ABL. He had had no access to the cash or any other valuable
security therefore allegations of criminal breach of trust on me is totally
out of question.
(ii) Saghir Iqbal Goraya/ appellant stated that he was innocent and was
falsely been implicated in the case, under mala fide and malice of the
complainant.
(iii) Tahir Awais/appellant stated that the case against him was false
and he has been unduly involved in the case. All the PWs were bank
employees and they were interested and biased. No loss has been caused
to the bank due to my conduct.
(iv) Shahid Tanveer/appellant stated that none of the prosecution
witnesses has deposed against him in support of the charge. No oral or
documentary evidence could be brought against him through which the
prosecution was able to connect him with the case. He was forced by the
complainant bank and NAB to depose against other accused as per their
wish and due to my denial of deposing falsely. He was arrayed as an
accused at variance.
(v) Abdul Mateen/appellant stated that the prosecution in connivance
with the bank authorities have made out this false case against him
with mala fide intention in order to usurp his amount of Rs.
11,67,00,000/-. If any fraud has been committed, the same is best known
to the bankers. He was falsely implicated in this case so that the bank
authorities could usurp my amount.
(vi) Hameed Ghani/appellant stated that he on behalf of H.S.Z.
Securities instituted a Civil Suit C.O.S. 09/2007 before Hon'ble Lahore
High Court, Lahore against the complainant bank. In reaction of the said
suit he was falsely implicated in this case.
5. Zeeshan Dar since acquitted produced three witnesses. Syed Nadeem
Anwar, Customer Service Manager, Allied Bank Lahore Stock Exchange
Branch (DW-1), Muhammad Azam Khan (DW-2) and Muhammad
Usman Nasir (DW-3) and also produced some documents. After taking
into consideration the evidence available on the record the judgment was
pronounced which has been challenged in these appeals.
6. Learned counsel for the appellants submit that Saeed Ahmad Waheed
was acquitted and the case of Abdul Mateen appellant is at par with him
as he was also an employee of Sajid Mehmood and was at the most a
Benamidar, therefore, he was also entitled to the benefit of doubt. It was
further argued that Hameed Ghani/appellant was convicted under
Section 15 of the National Accountability Ordinance, 1999 and no
question was put to him under Section 342, Cr.P.C. in respect of the
allegation made in the charge which is violation of law laid down in PLD
2003 SC 837 titled Syed Ali Nawaz Shah and 2 others versus The State
and others). Adds that the punishment under Section 15 of the NAO, 1999
was illegally awarded, as no plea bargain was entered with NAB. It was
also argued that this appeal filed by NAB was time barred.
7. Conversely the learned counsel for the NAB submits that no fine was
imposed upon the appellants, namely, Faisal Hussain Butt, Shahid Tanvir,
Saghir Iqbal Goraya and Israr Shah which is violation of Section 10 of the
National Accountability Ordinance, 1999. Also submits that conviction
under Section 15 of National Accountability Ordinance, 1999 was made
without reference to Section 25(b) of National Accountability Ordinance,
1999 which is not in accordance with provisions of National
Accountability Ordinance, 1999.
8. Learned counsel for the Allied Bank Limited also submits that the
judgment is silent about Government loss and that Zeeshan Dar, Sajid
Masood and Naeem Akhtar were neither convicted nor acquitted which
is violation of Section 265-H, Cr.P.C. Refers to Para-48 under which the
determination of liability was held in abeyance until the decision on the
rendition of accounts by the Court. Adds that liability of the accused do
not commensurate with the liability fixed by the NAB.
9. Arguments heard. Files perused.
10. The appellants faced trial before the learned Accountability Court on
the charges as per framed charge and were convicted as stated above.
Notably, conviction of Faisal Hussain Butt, Sahid Tanvir and Sagir Iqbal
Goraya were pronounced under Section 10 of National Accountability
Ordinance, 1999 but without imposition of the fine which is mandatory as
word "and" instead of "or" was used in the said section. Section 10 of
National Accountability Ordinance, 1999 is reproduced as under:
"10.(a) A holder of public office, or any other person who commits the
offences of corruption and corrupt practices shall be punishable with
rigorous imprisonment for a term which may extend to 14 years and with
fine and such of the assets and pecuniary resources of such holder of public
office or person, as are found to be disproportionate to the known sources
of his income or which are acquired by money, obtained through
corruption and corrupt practices whether in his name or in the name of
any of his dependents, or benamidars shall be forfeited to the appropriate
Government or the concerned bank or financial institution as the case may
be. (emphasis is ours).
11. In Paragraph 119 of the said judgment an amount of
Rs. 11.3 Million returned by Hameed Ghani, Sana Hameed and Israr
Shah during one year proceedings in CO. No. 37/2010 cannot be
considered as an amount recovered in plea bargain, particularly when such
application was already disallowed by the trial Court. The Court has
incorrectly interpreted the settlement between the Bank and the said
appellants as a plea bargain on behalf of Hameed Ghani, Sana Hameed
and Israr Shah, therefore, they could not be convicted under Section 15 of
the Ordinance without fixing the liability. Section 15 of the National
Accountability Ordinance, 1999 is reproduced as under:-
"15.(a) Where an accused person is convicted of an offence under
Section 9 of this Ordinance he shall forthwith cease to hold public office,
if any, held by him and further he shall stand disqualified for a period of
then years, to be reckoned from the date he is released after serving the
sentence, for seeking or from being elected, chosen, appointed or
nominated as a member or representative of any public body or any
statutory or local authority or in service of Pakistan or of any Province.
Provided that any accused person who has availed the benefit of
sub-section (b) of Section 25 shall also be deemed to have been convicted
for an offence under this Ordinance, and shall forthwith ceased to hold
public office, if any, held by him and further he shall stand disqualified for
a period of then years, to be reckoned from the date he has discharged his
liabilities relating to the matter or transaction in issue, for seeking or from
being elected, chosen, appointed or nominated as a member or
representative of any public body or any statutory or local authority or in
service of Pakistan or of any Province.
15.(b) ..................
12. Under Section 265-H, Cr.P.C. after framing of the charge the accused
are either found guilty or acquitted but in the case of Zeeshan, Sajid
Masood, Tasneem Akhtar and Nargis Tayyab no findings were given in
the said judgment. Section 265-H, Cr.P.C. is reproduced as under:
"Acquittal or conviction. (1) If in any case under this Chapter in which a
charge has been framed the Court finds the accused not guilty, it shall
record an order of acquittal.
(2) If in any case under this Chapter the Court finds the accused guilty the
Court shall, subject to the provisions of Section 265-I, pass a sentence
upon him accordingly to law".
Here reliance can also be placed upon PLD 2003 SC 837 titled (Sved Ali
Nawaz Shah and 2 others versus The State and others). Relevant extract
from Para-12 is reproduced as under:
"However, the concept of plea bargain in the Ordinance is slightly different
as an accused can negotiate such plea during the course of
inquiry/investigation or at any subsequent stage before or after the
commencement of the trial or in appeal. The plea bargain is not like a civil
contract between the parties rather it contains the elements of culpability
of crime as result of which a person facing accusation under the
Ordinance, on entering such plea saves himself from conviction and
substantive sentence but entails the penalties provided in Section 15 of the
Ordinance and this is well-known principle of criminal justice system that
an accused cannot be held guilty merely on the basis of probabilities rather
finding of guilt should rest squarely and firmly on the evidence".
13. In view of the above referred legal lacunas and consensus developed
between the parties, learned counsel for the appellants, the Prosecutor as
well as counsel for the Bank, the judgment is not sustainable in the eyes of
law, therefore, the appeals of the appellants are allowed, impugned
judgment is set aside and the case is remanded to Accountability Court
No. II, Lahore where A.C. Reference No. 38/2007 shall be deemed to be
pending for its decision afresh/rewriting of judgment.
FOZIA KHALID--Petitioner versus ELECTION APPELLATE TRIBUNAL, etc.--Respondents

 Judge(s): Mrs. Ayesha A. Malik and Masud Abid Naqvi, JJ
 JUDGMENT
 ORDER
Mrs. Ayesha A. Malik J.--Through this petition, the Petitioner has challenged
order dated 12.9.2018 passed in Election Appeal No. 354-A of 2018. It may
be noted that the instant petition is fixed as urgent, for today. Counsel for
Respondent No. 3, Mian Sulan Tanvir Ahmad is present before the Court as
are Mr. Nasar Ahmad and Mr. M. Javaid Kasuri, DAGs. Since the parties
present before the Court have no objection to the request of the Petitioner to
the case to be heard in its entirety, given the urgency in the matter, we proceed
to decide the issues raised in this Petition.
2. The basic facts are that the Petitioner is the sitting Chairperson of District
Council, Toba Tek Singh. While holding the office of Chairperson, she filed
nomination papers for the Bye-Election of the Provincial Assembly in PP-118,
Toba Tek Singh-I. Objections were filed by Respondent No. 3 against the
nomination papers on the ground that she is barred under Section 28(1) of the
Punjab Local Government Act, 2013 (“PLGA”) to contest the Bye-Election
as she has not tendered her resignation from the post of Chairperson, District
Council, Toba Tek Singh. The Returning Officer rejected the
objections vide order dated 3.9.2018 on the ground that the matter has been
decided in Election Appeal No. 6 of 2018 titled “Al-Haaj Azhar Iqbal Satti v.
Returning Officers and others” and since scrutiny has to be conducted in terms
of Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan, 1973
(“Constitutions”) and Section 231 of the Elections Act, 2017 (“Elections
Act”), the Petitioner is qualified and allowed to contest the Bye-Election.
Against this order, Respondent No. 3 filed an Election Appeal before the
Election Tribunal which was allowed and the order of 3.9.2018 was set aside.
Consequently, the nomination papers filed by the Petitioner were rejected.
Being aggrieved by the order dated 12.9.2018, the Petitioner is now before
this Court essentially on the ground that Section 28 of the PLGA is not a
precondition to the filing of nomination papers and that the Petitioner is not
required to tender her resignation until the last date for withdrawal of
candidature and publication of revised list of contesting candidates. As per the
schedule provided for the Bye-Election, the last date of withdrawal of
candidature is 15.9.2018, hence the urgency in the matter.
3. Mr. Muhammad Shahzad Shaukat, counsel for the Petitioner argued that
the impugned order has treated Section 28 (1) of the PLGA as a precondition
to the filing of the nomination papers. Learned counsel argued that in terms of
Section 2 of the Elections Act a candidate is a person whose name is proposed
and seconded for election to the Assembly or the Senate and a validly
nominated candidate is a candidate whose nomination papers have been
accepted. A contesting candidate is a validly nominated candidate who has not
withdrawn his candidature. Learned counsel argued that in terms of these
definitions, the Petitioner was a validly nominated candidate as her
nomination papers were accepted and since she was not a contesting
candidate, she had the right to withdraw her candidature on 15.9.2018 or
tender her resignation as the case may be. Learned counsel argued that Section
28 (1) of the PLGA, allows a Mayor, Deputy Mayor, Chairman or Vice-
Chairman to contest the election for any political office after resignation from
the aforesaid office. The option of may contest means that the Petitioner has
the right to contest elections once she becomes a contesting candidate.
Therefore, in terms of Section 28 (1) of the PLGA she must tender her
resignation before becoming a contesting candidate. It is the case of the
Petitioner that she had the option to tender her resignation by or before
15.9.2018 being the last date for withdrawal of candidature meaning thereby
that the order of the Returning Officer was in accordance with law and the
Appellate Tribunal failed to appreciate this point. Learned counsel placed
reliance on the judgment dated 25.6.2018 passed in Election Appeal No.
6/2018 titled “Al-Haaj Azhar Iqbal Satti v. Returning Officer and another”,
judgment dated 12.9.2018 passed in WP No. 231135/2018 titled “Muhammad
Riaz v. Appellate Authority” and “Rana Salman Mahmood Khan v. Returning
Officer and another” (2008 CLC 316).
4. On behalf of Respondent No. 3, it is argued that the bar contained in
Section 28 (1) of the PLGA is applicable at the time of filing nomination
papers as the purpose of the bar is to prevent a person holding office of
Chairman or Vice-Chairman, Mayor or Deputy Mayor from participating in
the election and influencing the election on the basis of their being office
holders of the local government. Learned counsel further argued that in such
cases the office holder as mentioned in Section 28 (1) of the PLGA can exert
influence over the electoral process, which will defeat the entire election
process. He also argued that in this case, the Petitioner is travelling on official
duty and the instant Petition has been filed by her husband and that she has
not tendered her resignation to date whilst she seeks the opportunity to tender
her resignation by 15.9.2018 without being present in person. Learned counsel
argued that once the scrutiny process is over and the Petitioner being the
Chairperson of District Council, Toba Tek Singh is declared fit to contest the
election, there is no further mechanism under the Elections Act on the basis
of which it can be determined whether or not the Petitioner tendered her
resignation before publication of the list of contesting candidates.
Consequently if the relief claimed by the Petitioner is allowed those who are
barred under Section 28 of the PLGA may very easily contest the elections
rendering the purpose of Section 28 (1) of the PLGA as redundant.
5. In rebuttal, learned counsel for the Petitioner explained that the Petitioner
is out of the country on official duty and has issued a special power of attorney
in favour of her husband to file the instant petition. The original special power
of attorney was produced before the Court. He also showed a copy of the
resignation prepared by the Petitioner, which he stated is being presented to
the Court to show the bona fides of the Petitioner that in the event she is
allowed to contest the election she will tender her resignation immediately.
Learned counsel stated that he can also provide an undertaking before this
Court that the Petitioner will tender her resignation, if the Court allows the
instant petition.
6. Mr. Nasar Ahmad, DAG supports the contentions raised by the learned
counsel for the Petitioner. He argued that the right to participate in elections
is a fundamental right and the PLGA cannot curtail this right by reading the
bar in Section 28 (1) of the PLGA as a precondition for filing nomination
papers.
7. We have heard the learned counsel for the parties at length. The basic issue
before the Court is the time frame within which a resignation should be
tendered by the Mayor, Deputy Mayor, Chairman and Vice-Chairman in order
to contest elections for any other political office, in terms of the bar contained
in Section 28 (1) of the PLGA. For ease of reference Section 28 of the PLGA
is reproduced below:--
28. Bar against dual membership. (1) A Mayor, a Deputy Mayor, a Chairman
or a Vice-Chairman may contest election for any other political office after
resigning from the office of the Mayor, Deputy Mayor, Chairman or Vice-
Chairman.
(2) A member of a local government, other than the Chairman of a Union
Council, may contest election for any other political office without resigning
from the membership of the local government but any such member shall not
simultaneously hold more than one office.
(3) If a member of a local government is elected to any other political office,
on the notification of election of that political office, his seat as member of the
local government shall become vacant.
(4) If a Chairman of a Union Council is elected as the Mayor or a Deputy
Mayor, or as the Chairman or a Vice-Chairman of the District Council, he
shall cease to be the Chairman of the Union Council and the seat of the
Chairman of the Union Council shall stand vacated.
(5) Nothing in this section shall apply to bar a member of a local government
to contest the election of Mayor, Deputy Mayor, Chairman or Vice-Chairman
of a local government or a member of an Authority.
The Section calls for resignation by the names of the office in the local
government scheme in the event that the holder of such office opts to contest
elections of any other political office. The spirit behind the bar imposed on
dual membership is that the holders of specific positions being Mayor, Deputy
Mayor, Chairman and Vice-Chairman should not be allowed to contest for any
other political office due to the nature of their post. They sit at the highest
level in the local government and are in a position to use the resources from
the mentioned offices, including their staff for campaigning purposes and can
influence the election process. The mandate of Section 28 (1) of the PLGA is
to prevent a single person from holding office whilst contesting for another
political office as it is necessary to ensure that an office holder should dedicate
his or her time to their official duties and not towards personal advancement.
The bar ensures that office holders do not unfairly leverage their present
position against other candidates or that they maintain public offices as a fall
back.
8. In terms of the judgments relied upon by the learned counsel for the
Petitioner, two of the judgments are by the Election Tribunal in which it is
stated that the use of the expression „may contest election’ does not include
the stage of filing of nomination papers and a person is considered to be
contesting the election once they become a contesting candidate as defined
under the law. In another case in WP No. 231135/2018, the Court considered
the bar contained in Section 28 of the PLGA and while relying on 2008 CLC
316 (supra) the Court finds that mere filing of nomination paper is not
sufficient for the purpose of being qualified to contest the election and it is
only after the nomination papers are accepted that a validly nominated
candidate, who has not withdrawn his candidature, is ready to contest the
election. There is no cavil to the fact that every person has a right to contest
elections and that this being a fundamental right can only be reasonably
curtailed. The legislature was mindful of the fact that the named office holders
in Section 28 of the PLGA exert power and influence at the local government
level and have a large amount of resources available to them. Therefore, in
order to prevent any influence over the electoral process it is required that they
resign from their office prior to contesting the election. We find that the word
contest is not a defined term in the PLGA and should therefore be given its
plain meaning, which is to compete and engage in competition. In this case,
the competition is the election process and to contest the election means to
participate in the election process. The election schedule for the Bye-Election
dated 17.8.2018 reveals that the election process started when public notice
was issued by the Returning Officer on 27.8.2018 and ends on the polling day
being 14.10.2018. The entire process as per the schedule is a step by step
procedure towards the holding of the Bye-Election. For the purposes of a
candidate the schedule reflects the stages at which the candidate will
participate in order to contest the election. The august Supreme Court of
Pakistan in “Muhammad Khan v. Obaidullah Jan Babat and others” (PLD
2016 SC 492) has already declared that elections stand for a step by step
process towards a certain result and is a continued process consisting of a
series of steps which are to be taken at different stages as per the schedule
contained in the notification published in the official gazette. Hence as per the
plain meaning a candidate who ‘may contest’ in the elections means that a
candidate take part in the step by step process leading upto the polling date.
9. The Petitioner before the Court seeks interpretation of the word ‘may
contest’ to be read in conjunction with the defined term contesting
candidate under Section 2 (xiii) of the Elections Act. The meaning given
to contesting candidate in the Elections Act is specifically for the purposes of
giving meaning to the provisions of the Elections Act contained in Sections
64, 65, 66, 67 and 68 which set out the process where a validly nominated
candidate can withdraw its candidature prior to his or her name being
published in the list of contesting candidates. A contesting candidate for the
purpose of Elections Act is one who has not withdrawn his or her candidature,
who is allotted an election symbol under Section 67 of the Elections Act and
is named in the list of contesting candidates. Therefore, the fact that a validly
nominated candidate can withdraw its candidature under Section 65 of the
Elections Act does not create a right in favour of the Petitioner to contest the
election whilst holding office of Chairperson, District Council, Toba Tek
Singh simply because she has the right to withdraw her candidature under
Section 65 of the Elections Act. The Petitioner is required to file her
nomination papers with all necessary declarations which will include her
decision to resign from Chairperson, District Council, Toba Tek Singh. The
Returning Officer at the stage of scrutiny must consider the bar contained in
Section 28 of the PLGA because a Mayor, Deputy Mayor, Chairman and Vice-
Chairman cannot participate in the election process while retaining the named
office. The entire process of participating and contesting election is for the
benefit of the voter and the intent of Section 28 of the PLGA is to create a
level playing field to all candidates who participate in the election. In this
regard, we are fortified by the view given in “Syed Sarfraz Hussain Shah v.
Additional District and Sessions Judge/Returning Officer and 16
others” (PLD 2008 Karachi 64).
10. We are of the opinion that the bar contained in Section 28 (1) of the PLGA
becomes applicable when a Mayor, Deputy Mayor, Chairman and Vice-
Chairman decides to contest a political office, in this case being the Bye-
Election, at the stage of filing the nomination papers. In terms of Section 60
of the Elections Act, a candidate shall file its nomination papers with a
declaration that he fulfills the qualifications specified in Article 62 and is not
disqualified under Article 63 of the Constitution for being elected as a
member. Every nomination paper is delivered to the Returning Officer who
shall make the nomination along with annexures open to inspection by the
public. In terms of Section 62 of the Elections Act any voter of the
constituency may file objections to the candidature at the time of scrutiny. The
Returning Officer shall decide upon the objections raised and may either of
his own motion or upon any such objection conduct a summary enquiry and
reject the nomination papers if he is satisfied that a candidate is not qualified
to be elected as a member. The purpose of the scrutiny process and the right
of filing an objection is to give the voter the chance to participate and ensure
that all candidates who participate in the election are qualified and have made
full disclosure under the law. It ensures that the voter is informed at the time
when the vote is cast and that all relevant information is available to help the
voter make an informed decision. After the scrutiny process if a candidate’s
nominations papers are accepted, there is no further scrutiny of the candidates
as the name of the candidate is published in the list of contesting candidates,
provided that the candidate has not withdrawn his or her nomination papers.
Thereafter a candidate will be able to contest the election as the process is
completed by allocation of election symbol and polling takes place on the
polling date. If a candidate holding dual office is not required to resign at the
time of filing nomination papers and it is left to choice that he or she may
tender resignation once they become a contesting candidate, there is a very
strong risk that such a candidate may contest the election without resigning.
In such a scenario the candidate who happens to be Mayor, Deputy Mayor,
Chairman or Vice-Chairman will effectively contest the election whilst
holding office, which goes against the spirit of Section 28 of the PLGA. It also
means that the factum of dual membership is left unchecked since a candidate
will of its own vocation either tender resignation or not. The outcome is that
not only does this complicate the election process and subject it to disputes
and challenge but it also means that the purpose of the bar contained in Section
28 of the PLGA is totally defeated.
11. We also find that if the issue of dual membership is left unchecked prior
to the elections and it is questioned after the elections it will render the
candidate disqualified under the Elections Act. When confronted with this
question, learned counsel for the Petitioner informed the Court that if, at all,
such a situation arises then the objection can be taken post-election and the
matter can be looked into at that point. However, we are not satisfied with this
response as it means that a person, who could not have contested the election
in the first case, contested the election without fulfilling the requirements of
Section 28 of the PLGA. It also means that if any objection is made post-
election on this issue, the candidate stands to be disqualified for holding dual
membership. If dual membership is a disqualification in the post-election
scenario it stands to reason that it is a disqualification in the pre-election
scenario.
12. Another aspect of this issue is the burden placed on the election process
and the voter, simply because the holder of the offices mentioned in Section
28 of the PLGA has to make a choice and where the decision involves the risk
of loosing the present office. If the holders of the barred offices do not resign
before filing nomination papers, they can be declared successful in the
elections for the other political office. This means that the candidate is able to
exercise his or her choice after going through the entire election process. If the
candidate is successful they resign from the present office and if unsuccessful
they go back to their present office. In all situations the issue is one of personal
choice and the risk attached with such choices. A candidate cannot use the
offices named in Section 28(1) of the PLGA as a fall back position in the event
that he or she is not successful in the run for some other public office, in this
case the Provincial Assembly. We are of the opinion that the Petitioner has the
right to choose between either offices and cannot require the entire process to
bear the burden of her ‘risk’. Time and again we have been informed by her
counsel that she will resign if she can contest the Bye-Elections. In this regard,
we are of the opinion that a wrong precedent cannot be set to comply with the
wishes of one candidate.
13. The ‘resign to run’ principal is premised on encouragement to run for
public office and to make the process of election more competitive. It creates
a level playing field and ensures that a person holding public office does not
divert its resources for personal advancement. It is also a check on those
holding public office and ensures that they do their jobs and can account for
the time spent in office. Public resources and functions are safeguarded and
the sanctity of the election process is maintained.
14. In view of the aforesaid, we find no illegality in the impugned order.
Petition stands dismissed in limine.
AGRICULTURAL & RESEARCH DEPARTMENT through Secretary and 2 others--Appellants
versus MUHAMMAD TARIQ JAVED, etc.--Respondents

 Judge(s): Masud Abid Naqvi and Mirza Waqas Rauf, JJ
 Case Number: I.C.A No. 390 of 2017 in W.P. No. 2464 of 2009
 JUDGMENT
 ORDER
C.M. NO. 02 OF 2017.
This application in terms of Section 5 of The Limitation Act, 1908 seeks
condonation of delay in filing the appeal, which is barred by 31 days.
2. Learned Law Officer submits that delay in filing of appeal is the result of
non-availability of certified copies of necessary documents as well as delayed
sanction to file the Intra Court appeal. He added that law favours the
adjudication on merits and the government could not be penalized on account
of act of delinquent officials. In support of his contentions, learned Law
Officer has placed reliance on “Government of Khyber Pakhtunkhwa through
Secretary Industries Commerce and Mineral Development, Peshawar and
others v. Frontier Chemicals Industries Ram Bagh, Mardan” (2016 SCMR
1410).
3. We have heard learned Law Officer at some length and perused the record.
4. The respondent/writ petitioner filed a writ petition averring therein that he
applied for the post of Tubewell Operator in Agronomic Research Centre,
Khanewal and after completion of the process, he was declared as successful
candidate as per merit list dated 19th September, 2017 securing highest marks
but due to imposition of ban on recruitments after 31st December, 2007, no
appointment letter was issued in his favour. The writ petition was allowed by
the learned Single Judge in Chamber vide judgment dated 11th September,
2017, which is impugned herein.
5. It is an admitted fact that the writ petition was allowed vide judgment dated
11th September, 2017 directing the appellants to issue appointment letter in
favour of Respondent No. 1 within 30 days on the basis of recommendations
dated 19th September, 2007 prepared by the departmental selection
committee.
6. In view of stance taken by the learned Law Officer, we have gone through
the record, which reflects that copy of the judgment was applied on 24th
October, 2017, which was delivered on 25th October, 2017 whereas the Intra
Court Appeal was filed on 3rd November, 2017. Article 151 of The Limitation
Act, 1908 provides 20 days for filing an appeal from a decree or order of a
High Court in exercise of its original jurisdiction. As already observed that
judgment was passed on 11th September, 2017 whereas application for
obtaining certified copies was moved on 24th October, 2017 after 43 days of
the passing of the judgment. Period of 20 days prescribed under Article 151
of The Limitation Act, 1908 was clearly elapsed on 1st October, 2017 and the
copies were thus applied after lapse of 23 days of the limitation period.
7. Law is well settled that limitation of 20 days provided under Article 151 of
The Limitation Act, 1908 for filing appeal mentioned therein would start
running from the date of decree or order passed by the High Court in its
original jurisdiction. There is no ambiguity or disparity in Article 151 of The
Limitation Act, 1908 for reckoning the said period. Thus, the time spent in
obtaining certified copies of the relevant record would not be excludable from
the period prescribed for filing the Intra Court Appeal. In the case of “Khawaja
Muhammad Afzal and another v. Sh. Muhammad Sadiq and others” (1998
SCMR 179), the Hon’ble Supreme Court of Pakistan, while dilating upon the
issue in hand, held as under:
“It is well established that once time has begun to run it does not stop. The
time for filing the Letters Patent Appeal having already expired neither the
time spent in pursuing the review application nor the time spent in obtaining
copy of the order passed by the Single Judge could be deducted from the
period of 20 days. Similarly the time spent in obtaining copy of the order
rejecting the review application could not be deducted as under the Rule it was
not necessary to file copy of that order alongwith the memorandum of the
Letters Patent Appeal. In computing the time for filing the Letters Patent
Appeal the High Court had thus fallen in error.”
The above view was adopted by this Court in the case of “Ashiq Hussain Sabri
v. Secretary Health, Government of the Punjab” (PLD 2011 Lah. 490)
8. In the case of “Ministry of Defence and 3 others v. Muhammad
Athar” (2013 MLD 1284) while dealing with scope and the impact of Article
151 and Sections 12, 14 of The Limitation Act, 1908, it was held as under:
6. “The limitation provided for filing an appeal from a decree or order of a
High Court in the exercise of its original jurisdiction is twenty days from the
date of decree or order as provided under Article 151 of the First Schedule
provided under Section 3 of the Limitation Act, 1908. Column No. 3 of the
said Schedule is meant for mentioning of time from which period begins to
run and against Serial No. 151 in Column No. 3, the starting period is given
as “the date of the decree or order” and the present filing of appeal is not given
any relaxation for exclusion of the period spent in obtaining the certified
copies of the relevant record.”
7. The judgment passed by the learned Single Judge was delivered on 6-5-
2011. On behalf of the appellants, an application for obtaining certified copies
of the relevant record was made on 12-5-2011 and the record was prepared in
shape of certified version on 17-5-2011. CPLA was filed on 9-7-2011, which
was the 58th day of passage of the judgment by the learned Single Judge of
this Court in Writ Petition No. 7537 of 2009.
8. The Hon’ble Supreme Court of Pakistan when disposed of the said CPLA,
made certain observations, which are of significance for the purposes of
disposal of the present Civil Miscellaneous seeking condonation of delay in
filing of Intra-Court Appeal. The order was passed by the Hon’ble Supreme
Court of Pakistan on 24-9-2012 in presence of both the parties and it is clearly
noted that it was never disputed before the apex Court that the judgment
passed by the learned Single Judge was amenable to Intra-Court Appeal. It is
also noteworthy that when the CPLA was ordered to be converted into ICA, it
was ordered to be sent back to the High Court for “decision in accordance with
law subject to all just and valid objections”.
9. The CPLA was allowed to be converted into ICA and at the cost of
repetition the date of filing CPLA is once again provided viz. 9-7-2011. When
the CPLA was converted into ICA and the same is being heard by us as ICA,
the date of filing CPLA must be taken as a date of filing of ICA. As noted
earlier, the date of filing of CPLA was the 58th day from the date, when the
learned Single Judge passed the judgment in Chambers on 6-5-2011.
10. Although there is no concept of exclusion of the time spent in obtaining
the certified copies of the relevant record in case an ICA is to be filed,
nevertheless after exclusion of the said period of six days (from 12-5-2011,
the date of submission of form in Copying Agency for obtaining certified
copies of relevant record to 17-5-2011; when the copies were prepared), even
then, it would become 52nd day, when the ICA was considered to have been
filed. Keeping in view the period of limitation provided under Article 151 of
the Limitation Act, 1908 the ICA was thus barred by 132 days on the date of
its filing.
11. The Hon’ble Supreme Court of Pakistan while converting the CPLA into
ICA and by remitted the same back to the Court, left it open for this Court to
decide the appeal in accordance with law subject to all just and valid
objections, thus, we can examine the objection raised by the respondent with
regard to the limitation.
The Hon’ble Supreme Court of Pakistan in case of “Mst. Khadija Begum and
2 others v. Mst. Yasmeen and 4 others (PLD 2001 Supreme Court 355) while
dealing with the question of limitation has categorically held that sufficient
cause must be shown by the person seeking condonation of delay, which
means “circumstances beyond control of party concerned” and that, nothing
shall be deemed to be done in good faith which is not done with due care and
attention.
13. The Hon’ble Supreme Court of Pakistan in case of Federation of Pakistan
and 2 others v. Khurshid Ahmed and another (1999 SCMR 664) has dealt with
the question of availability of ICA or otherwise and interesting factor is that
in the reported matter, the General Headquarters (GHQ) was a party to the
litigation and after such authoritative findings by the Hon’ble Supreme Court
of Pakistan, the General Headquarters must become wiser and aware of the
remedy available under the law but notwithstanding such position a remedy
by way of CPLA was availed, while ICA was undeniably available to the
aggrieved party. It is a settled position of law that in case of time barred
proceedings, defaulting party must explain the delay of each day caused in
preferring a valid proceedings in accordance with law.”
9. A party, while seeking condonation on account of limitation, has to explain
delay of each and every day as the question of limitation is as important as the
jurisdiction of the Court. In terms of Section 3 of The Limitation Act, 1908, it
is the bounden duty of every Court to take notice of the question of limitation,
even if not raised in defence by the contesting party. Reliance in this respect,
if need, can be placed on “United Bank Limited and others v. Noor-un-Nisa
and others” (2015 SCMR 380).
10. While adverting to the contention of learned Law Officer that lenient view
shall be taken while pressing the hurdle of limitation in the way of
government, it is observed that each and every case has its own facts. The
Courts are obliged to decide the lis on the basis of available material and
keeping in view the conduct of the parties in the said matter. No cavil that in
case of “Government of Khyber Pakhtunkhwa through Secretary Industries
Commerce and Mineral Development, Peshawar and others v. Frontier
Chemicals Industries Ram Bagh, Mardan” (2016 SCMR 1410), the Hon’ble
Apex Court condoned the delay of 41 days in filing the petition by the
Government of Khyber Pakhtunkhwa but while going through the facts of the
said case, we are in agreement that the same are clearly distinguishable to the
facts in hand. In the present case, though a plea has been taken that delay in
filing of appeal is the result of non-availability of certified copies of necessary
documents as well as delayed sanction to file the Intra Court appeal but no
cogent material is available to this effect and only a general and bald assertion
is made, which is not sufficient for extending the discretion in each and every
case where the Government is confronted with the question of limitation.
11. While examining the question of limitation on the above prospective, we
have noted that the only reason assigned in the application is that time was
consumed due to non-supply of the necessary certified copies as well as
delayed sanction from the concerned quarters. The reason so pleaded is
apparently fallacious and without substance as the copies were even applied
after the expiry of limitation prescribed under Article 151 of The Limitation
Act, 1908. Mere bald and general assertions are not sufficient justifying
condonation of delay on the part of Government or its functionaries.
12. There can be no distinction between an ordinary litigant and the
Government Institutions in the matter of limitation. Every statute is meant to
eliminate the discrimination and Government institutions cannot be given
preferential status before a Court of law. We are cognizant of the fact that
principles of natural justice are founded on the equality of the citizens, which
is even guaranteed under Article 25 of The Constitution of Islamic Republic
of Pakistan, 1973. The State or Government cannot be treated differently
unless such privilege is extended through a lawful statute. Reference in this
respect can be made to “Federation of Pakistan through Secretary, Ministry of
Foreign Affairs, Government of Pakistan, Islamabad and 5 others v.
Jamaluddin and others” (1996 SCMR 727), “Federation of Pakistan through
Secretary, Ministry of Finance v. Niaz Ahmad” (1997 PLC (C.S.) 750)
and “Pakistan Railway Advisor and Consultancy Services (PRACS) Railway
Burt Institute v. Ch. Muhammad Hussain” (2003 CLC 81).
13. The nutshell of above discussion is that instant application is without any
substance. Resultantly the same is dismissed.
C.M.NO.01 OF 2017
14. This application seeks interim relief.
15. For the reasons recorded in order of even date passed in C.M. No. 02 of
2017, instant application has become infructuous. The same is
accordingly dismissed.
MAIN APPEAL.
16. For the reasons recorded in order of even date passed in C.M.No. 02 of
2017, instant Intra Court Appeal is dismissed in limine being barred by time.
The AGRICULTURAL AND RESEARCH DEPARTMENT and others----Appellants Versus
MUHAMMAD TARIQ JAVED and others----Respondents

 Judge(s): Mirza Viqas Rauf and Masud Abid Naqvi, JJ
 Case Number: I.C.A. No.390 of 2017 in W.P. No.2464 of 2009 and C.Ms. Nos.1 and 2 of
2017
 JUDGMENT
 ORDER
C.M.NO.02 OF 2017
This application in terms of section 5 of The Limitation Act, 1908 seeks
condonation of delay in filing the appeal, which is barred by 31 days.
2. Learned Law Officer submits that delay in filing of appeal is the result of
non-availability of certified copies of necessary documents as well as delayed
sanction to file the Intra Court appeal. He added that law favours the
adjudication on merits and the government could not be penalized on account
of act of delinquent officials. In support of his contentions, learned Law Officer
has placed reliance on "Government of Khyber Pakhtunkhwa through
Secretary Industries Commerce and Mineral Development, Peshawar and
others v. Frontier Chemicals Industries Ram Bagh, Mardan" (2016 SCMR 1410).
3. We have heard learned Law Officer at some length and perused the
record.
4. The respondent/ writ petitioner filed a writ petition averring therein that
he applied for the post of Tubewell Operator in Agronomic Research Centre,
Khanewal and after completion of the process, he was declared as successful
candidate as per merit list dated 19th September, 2017 securing highest marks
but due to imposition of ban on recruitments after 31st December, 2007, no
appointment letter was issued in his favour. The writ petition was allowed by
the learned Single Judge in Chamber vide judgment dated 11th September,
2017, which is impugned herein.
5. It is an admitted fact that the writ petition was allowed vide judgment
dated 11th September, 2017 directing the appellants to issue appointment
letter in favour of respondent No.1 within 30 days on the basis of
recommendations dated 19th September, 2007 prepared by the departmental
selection committee.
6. In view of stance taken by the learned Law Officer, we have gone
through the record, which reflects that copy of the judgment was applied on
24th October, 2017, which was delivered on 25th October, 2017 whereas the
Intra Court Appeal was filed on 3rd November, 2017. Article 151 of The
Limitation Act, 1908 provides 20 days for filing an appeal from a decree or
order of a High Court in exercise of its original jurisdiction. As already observed
that judgment was passed on 11th September, 2017 whereas application for
obtaining certified copies was moved on 24th October, 2017 after 43 days of
the passing of the judgment. Period of 20 days prescribed under Article 151 of
The Limitation Act, 1908 was clearly elapsed on 1st October, 2017 and the
copies were thus applied after lapse of 23 days of the limitation period.
7. Law is well settled that limitation of 20 days provided under Article 151
of The Limitation Act, 1908 for filing appeal mentioned therein would start
running from the date of decree or order passed by the High Court in its
original jurisdiction. There is no ambiguity or disparity in Article 151 of The
Limitation Act, 1908 for reckoning the said period. Thus, the time spent in
obtaining certified copies of the relevant record would not be excludable from
the period prescribed for filing the Intra Court Appeal. In the case of "Khawaja
Muhammad Afzal and another v. Sh. Muhammad Sadiq and others" (1998
SCMR 179), the Hon'ble Supreme Court of Pakistan, while dilating upon the
issue in hand, held as under:--
"It is well established that once time has begun to run it does not stop.
The time for filing the Letters Patent Appeal having already expired
neither the time spent in pursuing the review application nor the time
spent in obtaining copy of the order passed by the Single Judge could be
deducted from the period of 20 days. Similarly the time spent in
obtaining copy of the order rejecting the review application could not be
deducted as under the Rule it was not necessary to file copy of that
order along with the memorandum of the Letters Patent Appeal. In
computing the time for filing the Letters Patent Appeal the High Court
had thus fallen in error."
The above view was adopted by this Court in the case of "Ashiq Hussain Sabri
v. Secretary Health, Government of the Punjab" (PLD 2011 Lah. 490).
8. In the case of "Ministry of Defence and 3 others v. Muhammad Athar"
(2013 MLD 1284) while dealing with scope and the impact of Article 151 and
Sections 12, 14 of The Limitation Act, 1908, it was held as under: -
6. "The limitation provided for filing an appeal from a decree or order of
a High Court in the exercise of its original jurisdiction is twenty days from
the date of decree or order as provided under Article 151 of the First
Schedule provided under section 3 of the Limitation Act, 1908. Column
No.3 of the said Schedule is meant for mentioning of time from which
period begins to run and against Serial No.151 in Column No.3, the
starting period is given as "the date of the decree or order" and the
present filing of appeal is not given any relaxation for exclusion of the
period spent in obtaining the certified copies of the relevant record."
7. The judgment passed by the learned Single Judge was delivered on 6-
5-2011. On behalf of the appellants, an application for obtaining
certified copies of the relevant record was made on 12-5-2011 and the
record was prepared in shape of certified version on 17-5-2011. CPLA
was filed on 9-7-2011, which was the 58th day of passage of the
judgment by the learned Single Judge of this Court in Writ Petition
No.7537 of 2009.
8. The Hon'ble Supreme Court of Pakistan when disposed of the said
CPLA, made certain observations, which are of significance for the
purposes of disposal of the present Civil Miscellaneous seeking
condonation of delay in filing of Intra-Court Appeal. The order was
passed by the Hon'ble Supreme Court of Pakistan on 24-9-2012 in
presence of both the parties and it is clearly noted that it was never
disputed before the apex Court that the judgment passed by the
learned Single Judge was amenable to Intra-Court Appeal. It is also
noteworthy that when the CPLA was ordered to be converted into ICA,
it was ordered to be sent back to the High Court for "decision in
accordance with law subject to all just and valid objections".
9. The CPLA was allowed to be converted into ICA and at the cost of
repetition the date of filing CPLA is once again provided viz. 9-7-2011.
When the CPLA was converted into ICA and the same is being heard by
us as ICA, the date of filing CPLA must be taken as a date of filing of ICA.
As noted earlier, the date of filing of CPLA was the 58th day from the
date, when the learned Single Judge passed the judgment in Chambers
on 6-5-2011.
10. Although there is no concept of exclusion of the time spent in
obtaining the certified copies of the relevant record in case an ICA is to
be filed, nevertheless after exclusion of the said period of six days (from
12-5-2011, the date of submission of form in Copying Agency for
obtaining certified copies of relevant record to 17-5-2011; when the
copies were prepared), even then, it would become 52nd day, when the
ICA was considered to have been filed. Keeping in view the period of
limitation provided under Article 151 of the Limitation Act, 1908 the ICA
was thus barred by 132 days on the date of its filing.
11. The Hon'ble Supreme Court of Pakistan while converting the CPLA
into ICA and by remitted the same back to the Court, left it open for this
Court to decide the appeal in accordance with law subject to all just and
valid objections, thus, we can examine the objection raised by the
respondent with regard to the limitation.
The Hon'ble Supreme Court of Pakistan in case of "Mst. Khadija Begum
and 2 others v. Mst. Yasmeen and 4 others (PLD 2001 Supreme Court
355) while dealing with the question of limitation has categorically held
that sufficient cause must be shown by the person seeking condonation
of delay, which means "circumstances beyond control of party
concerned" and that, nothing shall be deemed to be done in good faith
which is not done with due care and attention.
13. The Hon'ble Supreme Court of Pakistan in case of Federation of
Pakistan and 2 others v. Khurshid Ahmed and another (1999 SCMR 664)
has dealt with the question of availability of ICA or otherwise and
interesting factor is that in the reported matter, the General
Headquarters (GHQ) was a party to the litigation and after such
authoritative findings by the Hon'ble Supreme Court of Pakistan, the
General Headquarters must become wiser and aware of the remedy
available under the law but notwithstanding such position a remedy by
way of CPLA was availed, while ICA was undeniably available to the
aggrieved party. It is a settled position of law that in case of time barred
proceedings, defaulting party must explain the delay of each day caused
in preferring a valid proceedings in accordance with law."
9. A party, while seeking condonation on account of limitation, has to
explain delay of each and every day as the question of limitation is as
important as the jurisdiction of the Court. In terms of Section 3 of The
Limitation Act, 1908, it is the bounden duty of every Court to take notice of the
question of limitation, even if not raised in defence by the contesting party.
Reliance in this respect, if need, can be placed on "United Bank Limited and
others v. Noor-un-Nisa and others" (2015 SCMR 380).
10. While adverting to the contention of learned Law Officer that lenient
view shall be taken while pressing the hurdle of limitation in the way of
government, it is observed that each and every case has its own facts. The
Courts are obliged to decide the lis on the basis of available material and
keeping in view the conduct of the parties in the said matter. No cavil that in
case of "Government of Khyber Pakhtunkhwa through Secretary Industries
Commerce and Mineral Development, Peshawar and others v. Frontier
Chemicals Industries Ram Bagh, Mardan" (2016 SCMR 1410), the Hon'ble Apex
Court condoned the delay of 41 days in filing the petition by the Government
of Khyber Pakhtunkhwa but while going through the facts of the said case, we
are in agreement that the same are clearly distinguishable to the facts in hand.
In the present case, though a plea has been taken that delay in filing of appeal
is the result of non-availability of certified copies of necessary documents as
well as delayed sanction to file the Intra Court appeal but no cogent material
is available to this effect and only a general and bald assertion is made, which
is not sufficient for extending the discretion in each and every case where the
government is confronted with the question of limitation.
11. While examining the question of limitation on the above prospective,
we have noted that the only reason assigned in the application is that time was
consumed due to non-supply of the necessary certified copies as well as
delayed sanction from the concerned quarters. The reason so pleaded is
apparently fallacious and without substance as the copies were even applied
after the expiry of limitation prescribed under Article 151 of The Limitation Act,
1908. Mere bald and general assertions are not sufficient justifying
condonation of delay on the part of government or its functionaries.
12. There can be no distinction between an ordinary litigant and the
government institutions in the matter of limitation. Every statute is meant to
eliminate the discrimination and government institutions cannot be given
preferential status before a Court of law. We are cognizant of the fact that
principles of natural justice are founded on the equality of the citizens, which
is even guaranteed under Article 25 of The Constitution of Islamic Republic of
Pakistan, 1973. The State or Government cannot be treated differently unless
such privilege is extended through a lawful statute. Reference in this respect
can be made to "Federation of Pakistan through Secretary, Ministry of Foreign
Affairs, Government of Pakistan, Islamabad and 5 others v. Jamaluddin and
others" (1996 SCMR 727), "Federation of Pakistan through Secretary, Ministry
of Finance v. Niaz Ahmad" (1997 PLC (C.S.) 750) and "Pakistan Railway Advisor
and Consultancy Services (PRACS) Railway Burt Institute v. Ch. Muhammad
Hussain" (2003 CLC 81).
13. The nutshell of above discussion is that instant application is without
any substance. Resultantly the same is dismissed.
C.M. No.01 of 2017
14. This application seeks interim relief.
15. For the reasons recorded in order of even date passed in C.M.No.02 of
2017, instant application has become infructuous. The same is accordingly
dismissed.
MAIN APPEAL.
16. For the reasons recorded in order of even date passed in C.M.No.02 of
2017, instant Intra Court Appeal is dismissed in limine being barred by time.
Dr. MUJAHID KAMRAN---Petitioner versus CHAIRMAN NATIONAL ACCOUNTABILITY
BUREAU (NAB) and others---Respondents
 Citation: 2019 PCRLJ 34

 Result: Bail Granted
 Judge(s): Ali Baqar Najafi and Masud Abid Naqvi, JJ
 Case Number: W.Ps. Nos. 245783, 245044, 245062 and 245063 of 2018
 JUDGMENT
 ORDER
This order shall dispose of W.P. No.245783-2018 titled "Dr. Mujahid
Kamran v. Chairman NAB and others", W.P. No. 245044-2018 titled "Professor
Dr. Muhammad Amin Athar v. NAB and others", W.P. No.245062-2018 titled
"Dr. Kamran Abid v. NAB and others" and W.P. No.245063-2018 titled "Dr.
Liaqat Ali v. NAB and others" as all petitioners challenged their arrest made
under common grounds of arrest by invoking the constitutional jurisdiction of
this court.
2. The allegations against the petitioners found during an inquiry
conducted by the NAB is that Dr. Mujahid Kamran/petitioner as Vice-
Chancellor of University of the Punjab (from 03.01.2008 to 19.12.2016)
appointed numerous persons on contract on teaching and non-teaching posts
without following the procedure through a committee constituted by the
Syndicate, under his Chairmanship without recommendations of the Selection
Board and without advertising the posts in the press in violation of the Punjab
Civil Servants (Appointment and Conditions of Service) Rules, 1974 and thereby
all petitioners committed offence under section 9(a)(vi) and (x) of National
Accountability Ordinance, 1999.
3. Similar allegations were levelled against petitioners Dr. Liaqat Ali being
Registrar/Secretary of the Committee of the University, Professor Dr.
Muhammad Amin Athar another Registrar/Secretary of the University and Dr.
Kamran Abid an Additional Registrar, who allegedly, only attended its
meetings.
4. In the report and parawise comments submitted by the NAB, it was
stated that petitioners committed the offence of misuse of authority as
envisaged in the case of "The State v. Anwar Sail UIlah" reported as PLD 2016
SC 276. It was also stated that one Muhammad Rafiq Alvi son of Muhammad
Tufail filed W.P. No.33673-2016 against Mujahid Kamran petitioner for illegal
appointments/re-appointments/contractual appointment made in his capacity
of Vice-Chancellor of University of the Punjab upon which on 27.10.2016 a
direction was issued by this court to NAB Lahore to treat it as complaint and
in pursuance thereof an inquiry was authorized on 05.05.2017 which was
upgraded into investigation vide letter No.1(61)HQ/948/NAB-L on 19.09.2018.
It was alleged that during his tenure, he appointed about 550 contractual
employees of grade 17 and above in violation of the relevant rules and without
advertising the posts depriving the general public of fair competition. It was
further alleged that under the Public Sector Universities (Amendment) Act,
2012 the power of appointments were withdrawn from Vice-Chancellor of the
Universities but he kept on using such powers and appointed his handpicked
persons. On 11.10.2018 the petitioners were arrested and they completed
their physical remand uptil 22.10.2018. In the comments. a reference was also
given to section 26(2)(s) and Section 26(2)(cc) of University of the Punjab Act,
1973 and Calendar 2002 to substantiate that the appointment shall be made
under the recommendations of the Selection Board and that there was no
concept of contractual but or temporary or permanent employment. Adds that
no recommendation was made by the Selection Board at all. Refers to Rule 17
of the Punjab Civil Servants (Appointment and Conditions of Service) Rules,
1974 to argue that no post be filled without advertisement in at least in the
two leading newspapers.
5. Learned counsel for the petitioners submits that all the petitioners are
not only outstanding educationalists but also hold the doctorate degrees and
had attained the status of Professors by making their names in their country
as well as abroad. They have spent their lives in imparting education at the
university level and produced hundreds of students serving the nation in their
respective fields. Adds that the NAB has illegally involved them in alleged scam
which is not covered within the domain of N.A.O., 1999. Further adds that they
have never misused their authorities and had worked within the parameters
prescribed under the University Act Calendar, Rules and Regulations. Adds that
they have not appointed any favourites or any person who was not qualified
for the post. Adds that there is no evidence on record that they have received
any kickbacks and any favourable consideration for their appointments. Also
submits that the procedure for the appointment of the contractual
employments is somewhat different and that the Syndicate has delegated its
authority to Sub-Committee for the appointments of the contractual
employees. Finally, submits that the petitioners were greatly humiliated by the
conduct of the NAB when they were put in handcuffs and brought before
media badly affecting their reputation as professors/ educationalists.
6. Conversely, learned Special Prosecutor for NAB submits that under
section 7 of the Schedule attached to the University of the Punjab Act, 1973,
the Functions of the Selection Board constituted under section 6 thereof are
that it should recommend to the Syndicate the names of suitable candidates
for appointment to teaching or other posts and under section 26(2)(s) thereof,
it was the Syndicate which could appoint University Teachers and other
officers on such recommendations of the Selection Board for teaching and
other posts in the initial pay of Rs.450/- per mensera or above. Submits that in
1696th Meeting of the Syndicate held on 06.04.2013 under agenda Item No.6,
the Syndicate had discussed the delegation of powers to a Sub-Committee
comprising of five members including the Vice Chancellor under section
26(2)(cc), since the Vice-Chancellor could not fill a post for more than six
months but the Syndicate can. In the 1697th Meeting of the Syndicate held on
20.04.2013 under agenda Item No.10, the said committee was delegated with
a power of approval of contractual employment on teaching/ Research posts
on behalf of Syndicate. The committee was comprised of Dr. Mujahid Kamran
as Chairman and the two Registrars as Secretary of the Committee, Dean of
the faculty concerned (Member), Head of the Department concerned
(Member) and, therefore, prays for the dismissal of writ petitions.
7 Arguments heard. Record perused.
8. The precise allegation against the petitioner, Professor Dr. Mujahid
Kamran is that he being the Vice-Chancellor of the University of the Punjab
from 03.01.2008 to 19.12.2016 recruited about 500 contractual employees of
grade 17 and above while sitting as a Chairman of the Sub-Committee by
exercising the delegated powers of Syndicate, without following the procedure
of advertisement and seeking the recommendations of Selection Board. Under
section 25 of the University of the Punjab Act, 1973, the Vice-Chancellor is the
Chairman of the Syndicate besides others members and under section 26
thereof, the Syndicate being the Executive Body of the University can take
effective measures to raise standard of teaching, research and publications
and other academic pursuits and exercise general supervision over the affairs
and managements of the property of the University. Under section 26(2)(s), it
is authorized to appoint University Teachers and other officers on the
recommendations of the Selection Board for Teaching and other posts in the
initial pay of Rs.450/- per mensem or above. Under section 26(2)(cc), the
Syndicate can delegate any of its powers to an Authority or a Committee or
sub-committee. Both section 26 clauses 1 and 2(s)(cc) of the University of the
Punjab Act, 1973 are reproduced as under:-
"26(1). The Syndicate shall be the executive body of the University and
shall, subject to the provisions of this Act and the Statutes, take effective
measures to raise the standard of teaching, research and publication
and other academic pursuits and exercise general supervision over the
affairs and management of the property of the University.
(2) Without prejudice to the generality of the foregoing powers and
subject to the provisions of this Act and the Statutes, the Syndicate shall
have the powers:-
26(2)(s) to appoint University Teachers and other Officers on the
recommendations of the Selection Board for Teaching and other posts
in the initial pay of Rs.450/- per mensem or above;
...................
...................
...................
(cc) to delegate any of its powers to any Authority or a Committee or

sub-committee."
9. In its 1696th meeting of Syndicate held on 06.04.2013, it was decided

under agenda Item No.6 that a committee and subcommittee might be
constituted to consider and approve appointments on teaching/research
posts on behalf of the Syndicate. Consequently, in 1697th meeting of Syndicate
held on 20.04.2013, under agenda item No.10, the powers were delegated to
the said committee for approval of contract of employment on
teaching/research posts on behalf of the Syndicate. The committee was
comprised of five members including Vice-Chancellor as Chairman, besides
Dean of the faculty concerned (member), Head of the Department concerned
(member), Two members from Syndicate (member) and the Registrar
(member/Secretary). The functions of the committee was that it should
consider the request of appointment for appointments on teaching/Research
posts on contract basis and approve the same for a period of one year if the
applicant proved eligible under the rules.
10. The case of the prosecution is that said committee was to act on the
recommendations of the Selection Board under clause 7 of the Schedule
attached to the said Act of 1973, therefore, it was for the Selection Board to
consider the applications received in response to the advertisement and
recommend to the Syndicate the names of the suitable candidates. However,
it is not denied that the said appointments in question were not made on
permanent basis.
11. It is not the prosecution case that out of those live hundred contractual
appointees even one was academically or otherwise disqualified to be
appointed against the said post. It is also not the case of the prosecution that
kith and kin of the petitioners were accommodated over and above their
merits. No allegations were made regarding non-performance of duty by the
aforesaid employees. Even after the change of the petitioners from their
respective posts, the University did not move against such appointees.
Likewise, the prosecution has not alleged that the petitioners have received
any kickbacks or any illegal gains out of the said appointments. The only
allegation against them is that they misused their authority. According to them
the act committed by them constituted the offence as defined in "The State v.
Anwar Saif Ullah Khan" reported as PLD 2016 SC 276. However, the perusal of
the said judgment reveals that without the demand of the jobs by the OGDC
the appointments were made just to accommodate and facilitate the political
recommendees which was considered to be an extraneous consideration. The
relevant extract from paragraph 34 is reproduced as under:-
"For what has been discussed above it is quite clear to us that in the
matter of getting 145 persons appointed to various jobs in the Oil and
Gas Development Corporation the respondent had ignored the
mandate of Articles 18 and 25 of the Constitution, he had defied the law
declared in the above mentioned judgments rendered by this Court and
by some other Courts and Tribunals, he had utilized his authority under
the relevant law for extraneous considerations and purposes, he had
used his position and power against the interests of the relevant
Corporation of which he was incharge and he had done all that to dish
out undue favours to others by imposing his will upon a hesitant or
unwilling competent authority."
12. In case titled "Mirza Luqman Masud and others v. Chairman NAB and
others" reported as 2017 SCMR 838, the appointments made in the NAB
without following the procedure i.e. advertisements were not considered
enough to probe the allegations of misuse of authority inside NAB which
shows that such may be a procedural irregularity which has not been
accompanied by mens rea. Here this court is also guided by case titled
"Mansur-ul-Haque v. Government of Pakistan" reported as PLD 2008 SC 166,
in which it was held that merely a procedural irregularity without mens rea was
not prima facie constitute an offence. Relevant extract is reproduced as
under:-
"We may point out that notwithstanding the special provision contained
in the NAB Ordinance regarding shifting of the burden of proof, the
fundamental principle of the law of criminal administration of justice
that basic onus is always on the prosecution to establish the
commission of an offence is not changed and in the present case, we
find that the respondents having negotiated with the seller company
abroad in the official capacity entered into the contract of purchase of
ships and in the process certain procedural irregularities constituting an
act of misconduct in the contemplation of law applicable to their service
were probably committed but the same mar not constitute a criminal
offence under section 9(a)(vi) of NAB Ordinance punishable under
section 10 of the said Ordinance or under any other law without proof
of the existence of element of dishonest intention of personal gain."
13. For the purpose of disposal of present constitutional petitions in
respect of the grant of post arrest bails we will restrain ourselves in going into
the deeper appreciation of evidence and will prima facie see the case of the
prosecution in terms of alleged misuse of authority by the petitioners. We have
no hesitation to observe here that Kamran Mujahid/VC/petitioner being the
Chairman of the sub-committee along with the other Registrar/Secretary had
exercised their authority delegated to it by the Syndicate in a bona fide manner
for the purpose of appointment of teaching staff on contractual basis, without
any mens rea on their part. It does not appear that they have misused their
authority to make illegal gain for themselves or for someone else by depriving
any aggrieved person of his valuable vested right. Interestingly, the contract
employment of many of the employees has been regularized/extended and
the said employees have not given any opportunity of complaint to anyone
against them in reference to the performance of their job. The allegations of
appointments on contractual basis, by the committee while exercising the
authority of Syndicate, without approval of the Selection Board made against
the petitioners being its members require further probe as contemplated
under section 497(2), Cr.P.C. Further detention of the petitioners would serve
no useful purpose to the prosecution.
14. Keeping in view the above, we are of the considered view that prima
facie the petitioners have made out a case for grant of post-arrest bail,
therefore, these writ petitions are allowed as a result of which the petitioners
are granted post-arrest bail subject to their furnishing of bail bonds in the sum
of Rs.5,00,000/- each with two sureties each in the like amount to the
satisfaction of the learned trial court.
GHULAM FAREED---Appellant Versus MUSLIM COMMERCIAL BANK LTD.---Respondent

 Judge(s): Masud Abid Naqvi and Rasaal Hasan Syed, JJ
 Case Number: E.F.A. No. 21 of 2018
 JUDGMENT
 ORDER
This appeal, under section 22 of the Financial Institutions (Recovery of

Finances) Ordinance 2001 ("F.I.R.O.") assails the order dated 19.10.2018 of the
learned Judge Banking Court, Bahawalpur, whereby the objection petition of
the appellant, seeking dismissal of the execution petition, was dismissed.
2. Facts pertinent to the disposal of this appeal are that a suit for recovery
of Rs. 629,559/- was instituted by the respondent-bank against the appellant
which was decreed on 23.4.2001. Petition for execution was filed, which
appears to have been dismissed for non-prosecution on 19.1.2004. An
application seeking its restoration was claimed to have been withdrawn on
11.2.2006; and on the same day fresh application for execution was statedly
moved, which too was dismissed for non-prosecution but got restored on
11.4.2011. Appellant raised objection claiming that the execution petition was
barred by time and that he was not given a notice before restoration of
execution petition; the objection did not prevail with the learned Banking Court
who dismissed the same vide order dated 19.10.2018, which has been
attacked in this appeal.
3. Learned counsel for the appellant submitted that the first application
for execution having been dismissed for non-prosecution, the second
application was not within time; and that the petitioner was entitled to a notice
before restoration of execution petition and that it could not be restored on a
report of the Ahlmad.
4. Having given due consideration to the submissions of learned counsel

we do not find any substance therein.
5. The decree in this case, was undeniably passed under the provisions of
special law, which provides procedure to carry out the execution. Section 19(1)
of F.I.R.O. mandates that upon pronouncement of the judgment and decree
by the Banking Court, the suit shall automatically stand converted into
execution proceedings without the need to file a separate application and no
fresh notice need be issued to the judgment-debtor in this regard. The
objective of the law appears to be to provide a forum to the Financial
Institutions as well as the customers against default in fulfilling of their
obligations towards each other with regard to any Finances and give a special
mechanism to enforce the decree. In view of the special procedure prescribed
in the Ordinance, there appears to be no requirement for the decree-holder
bank to file a separate execution-petition, as it is the duty of the court to itself
convert the decree into execution without waiting for separate application for
execution from the decree-holder. The application, even if filed by the Bank for
execution, at best be construed as a request to activate the proceedings for
execution, by converting the suit into the execution-petition in terms of section
19 of F.I.R.O., which had to be taken to its logical end till the decree is satisfied;
and there was no room for its dismissal for non-prosecution. The act of the
court, in allegedly dismissing the petition for non-prosecution, could not
prejudice the decree-holder and it was for this reason, as it appeared, that the
learned Judge Banking Court, on the report of Ahlmad, proceeded to rectify
the error which erupted due to the act of the court and restored the
proceedings to convey the execution of decree in continuation of the
proceedings under section 19 of F.I.R.O. and no exception could be taken
thereto.
6. The objection as to the absence of notice is also untenable in view of

the specific mandate of section 19(1) of F.I.R.O. which provides that "upon
pronouncement of the judgment and decree by a Banking Court, the suit shall
automatically stand converted into execution proceedings without the need to
file a separate application and no fresh notice need be issued to the judgment
debtor in this regard...". The objection raised therefore, lacks substance and is
devoid of any merit. Similar view was also taken by a learned Division Bench
of this Court in "Saeed Ullah Paracha v. Habib Bank Limited and others" (2014
CLD 582). Even otherwise the appellant could not possibly object to the order
which is composite in nature as the learned Judge Banking Court, not only
declined the objection to the restoration of execution proceedings but also
restored the objection of the appellant under Order XXI, Rule 66, C.P.C., which
was earlier dismissed for non-prosecution and opted to decide the same on
merits.
7. The argument as to the filing of second execution application after six

years and being therefore barred by limitation, is factually and legally incorrect
inasmuch it is manifest from the record that the decree was passed on
23.4.2001, the alleged application for its execution, which in fact should have
been treated as an application to activate the machinery of execution pursuant
to section 19(1) of the F.I.R.O., is claimed to have been dismissed for non-
prosecution on 19.1.2004; while the last application, which according to
petitioner was not within time, was instituted by the Bank on 11.12.2006 which
of course was within six years from the date of first application and also from
the date of decree and therefore objection was illusory and baseless. Even in
the ordinary civil cases, the first execution application can be instituted within
three years from the date of decree under Article 181 of the Limitation Act,
1908, while the subsequent/fresh application for execution is governed by
section 48 of C.P.C. which provides a period of six years. Although the
provisions of section 48, C.P.C. are not attracted in the present case yet the
said provisions, even if taken note of, the objection of appellant cannot sustain
inasmuch as the decree in this case was passed on 23.4.2001, the first
execution application is claimed to have been filed on 28.5.2001 which was
allegedly dismissed on 19.1.2004, while the last application is claimed to have
been filed on 11.12.2006; and being so it was within six years not only from the
first application but also from the date of decree. The objection raised as such
is devoid of any legal substance.
8. In "Mehboob Khan v. Hassan Khan Durrani" (PLD 1990 SC 778) it was

ruled by the august Supreme Court as follows:-
"The position that emerges from the above discussion is that, as already
stated, the first application for execution of a decree would be governed by the
residuary Article 181 and the rest of the applications made, thereafter, will be
governed by the six years' time limit prescribed by section 48. Although the
original purpose underlying section 48, read along with Articles 181 and 182 of
the Limitation Act, before the amendment of the law was to provide maximum
limit of time for execution of a decree. But in the changed position as a result
of Law Reforms Ordinance, the only effect of section 48 would be to provide
limitation for subsequent execution application after the first one. The result
would be that if no application at all is made within the period prescribed by
Article 181, the execution application made, thereafter, would be barred under
the said Article and as such there would be no occasion to avail of the benefits
of the extended time provided by section 48, C.P.C. In other words, once an
application for execution is made within time so prescribed, any number of
applications for execution can be presented within the six years period from
the date of decree. This construction, in my opinion is the only construction
that can be placed on the consequent legal position arising out of the
amendments made by the omission of Article 182 and substitution of six years
period in section 48, C.P.C. Otherwise the provisions for repeated applications
every three years or taking steps in aid of execution provided for in Article 182,
having disappeared, section 48 would become redundant and ineffective".
9. In view of the rule supra, the objection of the appellant was otherwise
devoid of any legal substance as the second application was filed within six
years and therefore, the objection was rightly declined. The order passed by
the learned Judge Banking Court does not suffer from any error of law nor calls
for any interference, in result the appeal is
dismissed.
Mst. ASSIA BANO--Petitioner versus ADDITIONAL DISTRICT JUDGE, etc.--Respondents

 JUDGMENT
 JUDGMENT
By this single judgment, I intend to decide instant writ petition alongwith
connected W.P. No. 10992 of 2014 tilted “Rana Afzal Mehmood vs. Addl.
District Judge Guiranwala etc. filed by the Respondent No. 3, involving
common questions of law and facts.
2. Concise facts of this writ petition are that Mohsin Ali minor is the son of
the petitioner/mother and Respondent No. 3/father who was born on
15.09.2009. The petitioner filed application under Section 25 of Guardian &
Wards Act for the custody of minor. The Respondent No. 3 resisted the claim
of petitioner by filing the written reply and raising certain factual as well as
legal objections. Out of divergent pleadings of the parties, issues were framed
by the learned trial Court. The parties produced their respective evidence and
after recording the same, learned trial Court dismissed the petition of the
petitioner vide judgment and decree dated 31.07.2013 with
observation/finding that “minor would be handed over to petitioner on
Saturday (after a fortnight) under submission of some surety bonds to the
satisfaction of the Executant Court and minor would be returned to respondent
on Monday morning at 08.00 a.m. However, since the minor has recently
undergone surgery, the visitation rights would start after two months of this
order”. Feeling aggrieved, the petitioner as well as Respondent No. 3
(Respondent No. 3 only challenged the visitation rights of petitioner) filed two
appeals and learned Additional District Judge vide judgment dated
05.04.2014 partially accepted the appeal of petitioner wherein the visitation
right of petitioner was/is extended from Friday to
Monday however dismissed the appeal of Respondent No. 3. Being
dissatisfied, the petitioner as well as Respondent No. 3 have filed two writ
petitions and challenged the validity of the judgments passed by the learned
Courts below.
3. I have heard the arguments of learned counsel for parties and have minutely
gone through both the impugned judgments.
4. Perusal of record reveals that Respondent No. 3 contracted second
marriage with the petitioner on 06.10.1999. After one year of marriage, the
petitioner left the house of Respondent No. 3. After about 09 years of
separation, both the parties again started living together in the house of
Respondent No. 3 and the minor was born 15.09.2009. Relationship between
the parties deteriorated again and through a written agreement dated
19.11.2009, the Respondent No. 3 divorced the petitioner and handed over the
custody of minor to the petitioner but the petitioner returned the custody of
minor to Respondent No. 3 on 29.01.2.009 as per written note “by her will”
which is admittedly signed by the petitioner. Thereafter the petitioner filed
an application under Section 491, Cr.P.C. before the learned Sessions Judge
Gujranwala on 28.07.2010 which was dismissed on 31.07.20.10.
5. Onus to prove issue No. 1 was placed on the petitioner to establish that she
is capable of providing conducive atmosphere for the proper upbringing of
minor. The petitioner appeared as AW-1 and admitted that she is residing with
her mother and brother in a house where her brother’s four daughters and a
son are also residing as her brother has divorced his wife. The petitioner has
no information about her father as he disappeared in her childhood. The
petitioner is living in a village with quite a distance from Gujranwala wherein
no civic/required medical facilities are available. In her affidavit, the petitioner
claimed that minor was snatched from her by the Respondent No. 3 after about
06/07 months of his birth which contradicts the averment of written note and
her statement. No one appeared on her behalf to support her claim for the
custody of minor or to describe/state the circumstances which can be
beneficial for the recovery of minor’s custody. Hence, she has failed to
discharge the burden of proof of the issue No. 1 in her favour. On the other
hand, the Respondent No. 3 appeared/deposed as RW-1 who categorically
stated that the petitioner left him and disappeared/remained unlocated by the
Respondent No. 3 for about 09 years. Thereafter she was located by him and
brought back. The petitioner not only voluntarily handed over the custody of
the minor to him but also failed to maintain the minor which further
aggravated the illness of the minor. He alongwith his first wife is looking after
the minor who needs proper/constant medical supervision which is only
available in city. He is financially capable for providing comforts to the minor.
His children from his first wife are admitted in the best educational institutions
in Gujranwala. The family is admittedly residing in posh area of city and he
can look after the minor better than the petitioner. First wife of Respondent
No. 3 appeared as RW-2 and deposed that she is taking care of the minor as
her own son alongwith her children after the petitioner handed over the minor
to them. She not only fully supported the statement of Respondent No. 1 but
also accused the petitioner as smoker etc. She is even present in the Court
today for the custody of minor and showed few photographs wherein she
alongwith her other children were celebrating the birthday of the minor. Umer
Khalid/RW-3 also appeared/deposed in support of Respondent No. 3.
Vide order dated 08.07.2014 passed in connected Writ Petition No. 10992 of
2014, this Court directed the Medical Superintendent, DHQ, Hospital
Gujranwala to constitute a medical board to examine the minor and submit
report. The report was submitted which is reproduced hereunder:
“FINAL DECISION……He is chronic patient with multiple congenital and
acquired morbidities, like partial deafness both ears crossed Ectopia of kidney
with intermittent bouts of renal dysfunction, coagulopathy and bleeding poly.
He needs continues multiple specialty monitoring preferably at Specialized
Hospital.
6. It is established principle of law that welfare of the minor is the paramount
consideration in determining his custody which outweighs against all other
considerations in deciding the custody. By oral, documentary and
circumstantial evidence, the Respondent No. 3 succeeded in establishing his
claim for the custody of minor better than the petitioner for the reasons that:
(i) on 29.01.2009 the petitioner voluntarily surrendered the custody of minor
to Respondent No. 3 and hereafter started litigation for the custody of the
minor after almost 18 months i.e. on 28.07.2010, (ii) Respondent No. 3 & his
family is looking after the minor from 29.01.2009 till to date in a house having
all the required facilities, (iii) the petitioner is living in a village with quite a
distance from Gujranwala city wherein no civic/standard -medical facilities
are available which are necessary for the ailing minor, (iv) she is residing in a
small/over crowded house alongwith her mother/brother and brother’s four
daughters and a son and (v) being financially sound, the Respondent No. 3 is
admittedly residing alongwith his family in a posh area of Gujranwala City
where all the civic/required medical facilities are available and as per medical
report, the minor needs continuous multiple specialty monitoring preferably
at Specialized Hospital.
From the above discussion, it is clearly established that it is in the welfare of
the minor that his custody be maintained by Respondent No. 3/father,
therefore, this petition has no force. Even otherwise, neither any misreading
or non-reading of evidence on record nor any .infirmity, legal or factual, has
been pointed out in the impugned judgments and decrees passed by the learned
Courts below, therefore, this writ petition is dismissed.
In so far as the connected W.P. No. 10992-2014 is concerned, in view of my
findings above, the same is partly-accepted to the extent that the respondent
mother will be entitled to the custody of minor on every alternate Saturday
from 9:00 am to 6:00 pm after submitting a surety bond to the satisfaction of
the learned Executing Court for the safe return of the minor to the father.
AMJAD ALI---Appellant Versus Mst. SHAHEEN BIBI and others---Respondents

 Case Number: I.C.A. No.40084 of 2020
 JUDGMENT
 ORDER
Through this Intra-Court Appeal filed under Section 3 of the Law Reforms
Ordinance, 1972 (the "Ordinance"), the Appellant has challenged the validity
of order dated 24.08.2020 (the "Impugned Order") passed in Writ Petition
No.37214 of 2020 by the learned Single Judge in Chamber, whereby the
Constitutional petition filed by him was dismissed.
2. Learned counsel for the Appellant has argued that the learned Single
Judge in Chamber while passing the impugned order did not determine a very
crucial question of law to the effect that if there is no remedy available and an
illegality has been committed then the only a remedy of writ jurisdiction will
be available. He further argued that the learned Single Judge in Chamber has
failed to consider all the aspects of the case, therefore, the impugned order is
liable to be set aside.
4. It is reflected from perusal of record that a suit for recovery of
maintenance allowance, dowry articles and dower amount was filed by
Respondent No.l. The said suit was contested by the Appellant by filing a
written statement. Interim maintenance of minors was fixed as Rs.10,000/-.
Out of divergent pleadings of the parties issues were framed. The
Appellant/Defendant was required to produce his evidence. Certain
opportunities were granted to the Appellant i.e 09.10.2019, 29.10.2019 to
produce his evidence and on 13.11.2019 last opportunity was granted to him
to submit his affidavit. Thereafter, the case was fixed on 27.11.2019,
12.12.2019 but due to strike no further proceedings were taken place and case
was adjourned to 14.1.2020 and ultimately on 31.01.2020, the Appellant
tendered his affidavit and the case was fixed for cross-examination on the said
affidavit for 24.02.2020. On 24.02.2020, the Appellant failed to produce his
evidence and an absolute last opportunity was granted to produce his evidence
and case was adjourned for 14.03.2020. On 14.03.2020 the case was again
adjourned to 11.4.2020 for cross-examination. On 11.4.2020 due to lock down
the case was adjourned to 19.06.2020. On 19.06.2020, the case was fixed for
Appellant's evidence with last and final opportunity but he failed to produce
the same. Resultantly, his right to produce his evidence was closed. Feeling
aggrieved from order dated 19.06.2020 passed by learned Judge Family Court,
Lahore, the Appellant assailed the same by filing constitutional petition which
was dismissed by the learned Single Judge in Chamber vide order dated
24.08.2020.
5. From the perusal of record it also transpires that before passing the
impugned order, the learned Judge Family Court, had granted many
opportunities to the appellant to produce his evidence, who despite availing
absolute and final opportunities failed to produce the same. In these
circumstances, the learned Judge Family Court has no option except to close
his right to produce his evidence. The learned Judge Family Court has
exercised his jurisdiction vested in him and nothing in the said order is
contrary to law and beyond his jurisdiction. The order passed by learned Judge
Family Court is interim/interlocutory in nature against which no constitutional
petition would lie before the High Court. Perusal of Section 14(3) of West
Pakistan Family Courts Act, 1964, shows that no appeal or revision shall lie
against an interim order passed by a Family Court. The Act has explicitly
barred the remedy of appeal or revision against such an order, therefore, in
case a constitutional petition is entertained against such an order, it will
amount to circumvent the intention of the legislation and to frustrate the
express provision of law. Reliance in this respect is placed upon Muhammad
Anwar Khan v. Mst. Yasmin Zafar (1987 SCMR 2029), Ms. Quratulain
Aleem v. Muhammad Rehman Khan and another (2006 YLR 2604) and Mst.
Noor Jehan alias Tasleem Begum v. Muhammad Arshad and another (1986
CLC 442). Reliance is also placed on a recent judgment rendered by Hon'ble
Supreme Court of Pakistan in a case reported as President All Pakistan
Women Association, Peshawar Cantt. v. Muhammad Akbar Awan and others
(2020 SCMR 260), wherein it has been held that:-
"It is settled law that when the Statute does not provide the right of appeal
against certain orders, the same cannot be challenged by invoking the
constitutional jurisdiction of the High Court in order to gain a similar
objective. Where a Statute has expressly barred a remedy which is not
available to a party under the Statute, it cannot be sought indirectly by resort
to the constitutional jurisdiction of the High Court. "
Since, the order impugned in the constitutional petition is an interlocutory
order and against such an order constitutional petition does not lie, unless there
is found any blatant illegality which has caused sheer injustice to the rights of
the any of the parties. However, in the instant case, multiple opportunities have
been granted by the learned Judge Family Court to the Appellant to secure his
valuable right, therefore, the learned Single Judge in chamber has rightly
passed the impugned order and dismissed the writ petition. Further in view of
subsection (2) of Section 3 of the Law Reforms Ordinance, 1972, no appeal
shall lie under subsection (1) or subsection(2) from an interlocutory order or
an order which does, not dispose of the entire case before the Court.
6. Counsel for the Appellant has failed to point out any illegality or
irregularity in the impugned order, the appeal being bereft of merit is hereby
dismissed in limine.
BUSHRA TABASSUM Versus GOVERNMENT OF PUNJAB and others

 JUDGMENT
 Case Summary:
This Intra Court Appeal was filed challenging the dismissal of a
constitutional petition by a learned Single Judge in the Writ Petition No.
24016 of 2020. The learned law officer argued that the Appeal wasn't
maintainable as the proviso to Section 3(2) of the Law Reforms
Ordinance, 1972 prohibits an Intra Court Appeal if the law provides for
an appeal, revision, or review against the original order.
The court noted that under the Punjab Employees Efficiency, Discipline,
and Accountability Act, 2006, Section 19 allows an employee aggrieved
by an order under Section 16 or 17 to appeal to the Punjab Service
Tribunal. Instead of pursuing this route, the Appellant filed a
constitutional petition, which was dismissed.
Citing legal precedents such as "SME Bank Limited v. Izharul Haq" (2019
SCMR 939) and "Muhammad Aslam Sukhera and others v. Collector
Land Acquisition, Lahore Improvement Trust, Lahore and another"
(PLD 2005 Supreme Court 45), the court emphasized that if a remedy in
the form of appeal is available, an Intra Court Appeal might not be
maintainable. The court also referenced cases like "Muhammad Shakoor
v. Federal Public Service Commission through Chairman, Islamabad and
2 others" (2003 PLC (C.S.) 414) to emphasize that the remedy of
representation is akin to the remedy of appeal and therefore falls under the
proviso of Section 3 of the Law Reforms Ordinance, 1972, thereby barring
the Intra Court Appeal.
Legal References:
1. "SME Bank Limited v. Izharul Haq" (2019 SCMR 939)
2. "Muhammad Aslam Sukhera and others v. Collector Land
Acquisition, Lahore Improvement Trust, Lahore and another"
(PLD 2005 Supreme Court 45)
3. "Federation of Pakistan through Secretary Revenue Division,
Islamabad and others v Messrs Sahib Jee and others" (2017 PTD
1481)
4. "Muhammad Shakoor v. Federal Public Service Commission
through Chairman, Islamabad and 2 others" (2003 PLC (C.S.) 414)
5. "Yamin v. Mst. Jajan and others" (2005 CLC 978)
6. "Messrs Shahzadi Polypropylene Industries through Proprietor v.
Federation of Pakistan through President and 4 others" (2017 PTD
2019)
7. "Muhammad Ashraf Saeed v. Habib Bank Limited and another"
(2018 PLC (C.S.) Note 13)
8. "Haji Ahmad Khan and another v. Province of the Punjab and 5
others" (2018 PLC (C.S.) 36)
The court dismissed the Intra Court Appeal, highlighting that the remedy
of appeal was available under Section 19 of the Punjab Employees
Efficiency, Discipline and Accountability Act, and therefore, the proviso
to Section 3(2) of the Law Reforms Ordinance, 1972 prohibited the
maintainability of an Intra Court Appeal in this case.
ORDER
Through this Intra Court Appeal filed under Section 3 of the Law Reforms
Ordinance, 1972 (the "Ordinance"), the Appellant has challenged the
validity of impugned order dated 08.06.2020 passed in Writ Petition
No.24016 of 2020 by the learned Single Judge (the "Impugned Order")
whereby the Constitutional petition filed by the Appellant was dismissed.
2. Learned law officer objected to maintainability of Appeal on the
ground that the learned Single Judge has rightly passed the impugned
order; that there is no illegality or perversity in the impugned order; that
the instant Appeal is not competent before this Division Bench as the
proviso to Section 3(2) of the Law Reforms Ordinance, 1972 prohibits an
Intra Court Appeal where the law applicable provides for at least one
Appeal or one Revision or one Review to any Court Tribunal or Authority
against the original order; as such the Appeal is liable to be dismissed.
3. Arguments heard. Record perused.
4. It evinces from the record that against order dated 09.05.2018 passed
by the Managing Director/Respondent No.2, the Petitioner filed an
appeal under Section 16 of the Punjab Employees Efficiency, Discipline
and Accountability Act, 2006 (the "Act") which too was dismissed vide
order dated 22.02.2019. Section 19 of the Act provides a remedy of appeal
before the Punjab Service Tribunal against any order passed under Section
16 or 17 of the Act. The said section is reproduced for ready reference.
"19. Appeal before Punjab Service Tribunal.---(1) Notwithstanding
anything contained in any other law for the time being in force, any
employee aggrieved by any final order passed under Section 16 or 17 may,
within thirty days from the date of communication of the order, prefer an
appeal to the Punjab Service Tribunal established under the Punjab
Service Tribunals Act, 1974 (Punjab Act, IX of 1974)".
5. Reading of above section clearly demonstrates that any employee
aggrieved by any final order passed under Section 16 or 17 of the Act may
prefer appeal to Punjab Service Tribunal. Admittedly, in the case in hand,
the proceedings were initiated under the provision of the Act and the
Respondent No.1 being appellate authority passed the order dated
22.09.2019 under Section 16 of the Act.
6. The instant Intra Court Appeal has been filed under Section 3 of the
Law Reforms Ordinance, 1972 whereas the object of proviso to subsection
(2) of Section 3 of the Law Reforms Ordinance, 1972 bars the remedy of
Intra Court Appeal in those cases in which the relevant law provides the
remedy of appeal, revision or review. It is important to note that against
original order dated 22.02.2019, the Appellant instead of availing the
remedy as provided under Section 19 of the Act, filed constitutional
petition which was dismissed vide impugned order.
7. Now the question arises whether Intra Court appeal is maintainable
in such a case where a remedy in the form of appeal was available to the
Appellant. Proviso to it Section 3 of the Law Reforms Ordinance, 1972
provides that where appeal, revision or review is provided, then intra court
appeal is not maintainable. Reliance in this regard is placed on the case
titled "SME Bank Limited v. Izharul Haq" (2019 SCMR 939) wherein
Hon'ble Supreme Court has held as under:
"We are of the view that where the proceedings from which the writ
petition has arisen provided for either review, revision or Appeal, in terms
of proviso to Section 3 of the Ordinance of 1972, remedy of ICA will not
be available against the judgment passed by the learned Single Judge in
the writ petition".
Reliance is further placed on case law reported as "Muhammad Aslam
Sukhera and others v. Collector Land Acquisition, Lahore Improvement
Trust, Lahore and another" (PLD 2005 Supreme Court 45) wherein the
Hon'ble Supreme Court of Pakistan has held as under:
"7. There is no doubt in our mind that the award by the Tribunal is treated
to be an original judgment and decree within the meaning of section 26 of
the Act. Being an original decree, the award has been specifically made
appealable before the High Court and then before this Court under section
54 of the Act of 1894. In view of express provisions of section 54 of the
Act it is not possible for us to hold otherwise. It cannot be said that the
award by the Tribunal is not an original order for the purposes of bar
contained in proviso of section 3(2) of the Ordinance. Therefore, it is not
necessary for us to determine as to whether the award made by the
Collector could also be treated to be an original order or not. The object
of Proviso to subsection (2) of section 3 of the Ordinance, 1972 seems to
be to bar the remedy of Intra Court Appeal in those cases in which the
relevant law provides the remedies of appeal, revision or review."
8. It was held by August Supreme Court in "Federation of Pakistan
through Secretary Revenue Division, Islamabad and others v Messrs
Sahib Jee and others" (2017 PTD 1481) that "remedy of representation,
though not stricto sensu akin to an appeal, is nevertheless a statutory
remedy and, therefore, the provision must be strictly construed and
applied". This Court through various judgments has already held that
remedy of representation is equal to remedy of appeal as envisaged under
Proviso of Section 3 of the Law Reforms Ordinance, 1972 thus debar
remedy of Intra Court Appeal. Reference is placed on "Muhammad
Shakoor v. Federal Public Service Commission through Chairman,
Islamabad and 2 others" (2003 PLC (C.S.) 414), "Yamin v. Mst. Jajan and
others" (2005 CLC 978), "Messrs Shahzadi Polypropylene Industries
through Proprietor v. Federation of Pakistan through President and 4
others" (2017 PTD 2019), "Muhammad Ashraf Saeed v. Habib Bank
Limited and another" (2018 PLC (C.S.) Note 13) and "Haji Ahmad Khan
and another v. Province of the Punjab and 5 others" (2018 PLC (C.S.) 36).
Therefore, the instant appeal is not maintainable as the proviso to
subsection (2) of Section 3 of the Law Reforms Ordinance, 1972
specifically bars the remedy of Intra Court Appeal.
9. In view of above situation, the instant appeal is not maintainable;
consequently the same is hereby dismissed.
NOOR MUHAMMAD and others---Petitioners Versus Mst. RABIA BIBI and others---
Respondents

 Result: Revision Accepted
 JUDGMENT
 ORDER
MASUD ABID NAQVI, J.---Through this single order, I intend to decide
titled civil revision as well as connected Civil Revision No.14811/2017 as both
have arisen out of consolidated judgments and decrees and subject matter is
also the same.
2. The respondents/Allah Bukhsh etc. filed a suit for specific performance
titled "Allah Bukhsh etc. v. Imam etc.", claiming that their predecessor-in-
interest namely Ahmed Khan orally purchased the disputed property through
oral sale agreement dated 15-12-1962 in consideration of Rs.67/- per marla by
paying the whole consideration amount to Imam/predecessor in interest of
petitioners in presence of the witnesses and possession was also delivered to
their predecessor-in-interest namely Ahmed Khan. The present respondents
raised construction over the purchased land and also installed electricity
meter therein. The predecessor-in-interest of respondents namely Ahmed
Khan and predecessor-in-interest of petitioners namely Imam enjoyed good
relations but after the death of Imam, his successor in interest/present
petitioners refused to execute the sale deed and the respondents are
constrained to file instant suit.
The petitioners also filed a suit for possession titled "Noor Muhammad
etc. v. Ahmad Khan etc." with the averments that predecessor in interest of
petitioners namely Imam allowed the predecessor in interest of respondents
namely Ahmed Khan to live in the disputed property but his successor in
interest/present respondents refused to vacate the disputed property, hence
the suit.
3. The contesting parties filed their respective written statement(s) and
raised certain legal as well as factual objections. Out of divergent pleadings of
the parties, consolidated issues were framed by the learned Trial Court and
the parties led their respective oral and documentary evidence. After hearing
the arguments advanced by both the contesting parties, the learned Trial
Court vide consolidated judgment and decrees dated 29.11.2011 dismissed
both the suits. Feeling aggrieved, contesting parties preferred two appeals and
the learned Additional District Judge, dismissed both the appeals vide
consolidated judgment and decrees dated 24.09.2013. Being dissatisfied, the
petitioners as well as respondents have filed two civil revisions and challenged
the validity of the impugned judgments and decrees passed by the learned
courts below.
impugned judgments and decrees.
5. While discussing the suit for specific performance, filed by
respondents/Allah Bukhsh etc. titled "Allah Bukhsh etc. v. Imam etc.", it is
important to mention here that there is no cavil with the proposition of law,
which is settled that in civil litigation, a party thereto has to set out his/her case
in the pleadings especially which relates to the facts. The rule of "secundum
allegata et probata" not only excludes the elements of surprise but also
precludes the party from proving what has not been alleged or pleaded. In
judgments reported as Government of West Pakistan (Now Punjab) through
Collector, Bahawalpur v. Hail Muhammad (PL D 1976 SC 469). Binyameen and
3 others v. Choudhary Hakim and another (1996 SCMR 336) and Major(Retd.)
Barkat Ali and others v. Qaim Din and others (2006 SCMR 562) it is held that no
party can be allowed to lead evidence on a fact which has not been specifically
pleaded nor can any evidence be looked into which is outside the scope of
pleadings. Averments made in the pleadings do not constitute evidence but
the evidence led in their support must be consistent therewith. Anything
outside the scope of such averments cannot be looked into.
The respondents filed the suit on the basis of oral sale agreement
without mentioning the time, place where transaction took place, names of the
witnesses and period for completion of the oral agreement. While appearing
as DW-1, respondent/Allah Baksh even failed to depose about time, day,
month, year, names of witnesses and place where the alleged sale transaction
was allegedly negotiated/finalized in examination in chief. In cross-
examination, he simply conceded that he was not born at the time when oral
agreement was allegedly negotiated/finalized or sale consideration was paid
and possession was delivered. The respondents neither pleaded nor deposed
the facts, necessary for proving the oral sale agreement and payment of sale
consideration because such requirement was sine qua non for proving oral
sale agreement. Reliance is placed on a case reported as "Nazir Ahmad and
another v. Yousaf" (PLD 2011 SC 161) which holds as under:
"……..There is no documentary evidence about the sale, which obviously
could not be legally concluded except in accordance with section 54 of
the Transfer of Property Act, 1882 and 17 of the Registration Act, 1908.
Moreover, even no oral independent evidence has been led by the
respondent to establish the exact day, date, month, year, the venue as
to when the sale transaction was allegedly negotiated and finalized
between the parties and in whose presence".
It is cardinal principle of law that the unwritten agreement can only be
proved through the evidence of unimpeachable character and the initial
burden of proof is on the plaintiff(s) to substantiate their claim(s) by adducing
cogent, legal, relevant and unimpeachable evidence of definitiveness but the
statements of the PWs are also not only contradictory to each-other but have
also failed to support the claim(s) of respondents. Reference is made to a case
reported as "Muhammad Nawaz through L.R.s v. Haji Muhammad Baran Khan
through L.R.s and others" (2013 SCMR 1300) which holds as under:
"..….however, in a case where party comes forward to seek a decree for
specific performance of contract of sale of immovable property on the
basis of an oral agreement alone, heavy burden lies on the party to
prove that there was consensus ad idem between both the parties for a
concluded oral agreement".
Hence, the learned courts below have properly examined the pleadings,
entire evidence of the parties and thereafter reached at the conclusion
regarding the controversy by dismissing the respondents' suit for specific
performance of oral agreement. Accordingly, the findings of the learned courts
below are upheld/maintained by dismissing the respondents' Civil Revision
14811/2017.
6. In the petitioners' Suit for Possession titled "Noor Muhammad etc. v.
Ahmad Khan etc.", the respondents filed written statement with the pleas that
their predecessor in interest namely Ahmed Khan purchased the suit property
from the predecessor in interest of the petitioners namely Imam through oral
sale agreement and possession of the suit property was also delivered by
Imam. The respondents took the same pleas in their written statement, which
were taken by them in their suit for specific performance. After detailed
discussion in para 05 of this revision petition, the respondents' Civil Revision
No. 14811/2017 was dismissed by this court by upholding the judgments and
decrees of the courts below and resultantly their suit for specific performance
was dismissed but the facts, pleaded by respondents in their written statement
clearly establish rather amounts to admission in favour of petitioners that the
possession of the suit property was taken by their predecessor in interest
namely Ahmed Khan from the predecessor in interest of the petitioners
namely Imam who was admittedly the owner of suit property in the revenue
record. Facts having been expressly and unequivocally admitted in the
pleadings would not require any further proof. Being legal heirs of Imam, the
petitioners/plaintiffs are thus entitled to get the possession of suit property
from the possessors. During the proceedings, the learned counsel for the
respondents argues by raising a legal objection regarding the maintainability
of petitioners' suit on the non-i mpl eadment of others co-sharers of the joint
khewat/khasras where the suit property is situated and without seeking relief
of the partition. Suffice it to say that this legal point has already been discussed
by the honourable Supreme Court of Pakistan in a judgment reported as "Taj
Wali Shah v. Bakhti Zaman" (2019 SCMR 84) and held as under;
viii. In an undivided immovable property one of the co-sharers can
maintain a suit for ejectment of a possessor in respect of the entire
property and in such a case the following may ensue:
firstly, the said suit of the co-sharer cannot be considered as evidence
of his-denial of the title of the other co-sharers;
secondly, that the suit brought by said co-sharer would be deemed to
be for the benefit of the other co-sharers; and
thirdly, when the said co-sharer acquired possession in consequence of
the said proceedings, he would be in possession of the entire property,
on behalf of all co-sharers and his said possession cannot be deemed
as adverse to the other co-sharers.
Therefore, the findings of the learned courts below on the issue No.1
whereby petitioners' suit for possession was dismissed on the sole ground that
the petitioners cannot claim possession of suit property against the
possessors without seeking partition and without impleading the other co-
sharers of joint khewat/khasra, is not sustainable in the eyes of law.
7. In view of above detailed discussion, the present civil revision is
accepted by setting aside the judgments and decrees of learned courts below
and the petitioners' suit for possession titled "Noor Muhammad etc. v. Ahmad
Khan etc." is hereby decreed while the judgments and decrees of the learned
courts below are upheld/maintained by dismissing the respondents' Civil
Revision No. 14811/2017 arising out of respondents' suit for specific
performance titled "Allah Bukhsh etc. v. Imam etc."
MUHAMMAD JAVED---Appellant Versus MUHAMMAD RASHID---Respondent

 JUDGMENT
Background: The respondent filed a suit under Order XXXVII, C.P.C.
based on a promissory note seeking to recover Rs.400,000/- from the
appellant/defendant. The appellant contested the suit, raising both factual
and legal objections. After framing issues and considering evidence, the
Trial Court decreed the suit on 01.07.2011. The appellant appealed,
challenging the validity of the judgment.
Evidence Presented: The plaintiff presented witnesses (PW-1, PW-2, and
PW-3) who supported the plaint's contents. Documentary evidence
included the original receipt pronote (Exh.P1) and Exh.P2. The defendant
testified as DW-1 and presented DW-2 and DW-3 as witnesses.
Additionally, a statement from Muhammad Ashraf, Sub-Inspector,
Expert Fingerprint Bureau, Punjab (CW-1), was considered.
Legal Presumption Under Negotiable Instruments Act: The judgment
refers to section 118 of the Negotiable Instruments Act, 1881, emphasizing
the initial presumption that negotiable instruments are made for
consideration. Quoting "Muhammad Azizur Rehman v. Liaquat Ali
(2007 CLD 1542)," the court reiterates that, until proven otherwise, the
presumption is that every negotiable instrument is made for consideration.
Failure to Discharge Burden of Proof: The court concludes that, based
on pleadings, oral and documentary evidence, the appellant failed to
substantiate his claim that consideration for the promissory note was not
received. It emphasizes the settled legal principle that the burden of
proving the absence of consideration rests on the party denying it. The
judgment states that the appellant "miserably failed" to establish his
claims.
Dismissal of Appeal: In light of the evidence and legal principles, the
court dismisses the appeal, holding that the appellant has not met the
burden of proof. The judgment affirms the Trial Court's decision to decree
the suit in favor of the respondent.
Legal Reference: Section 118 of the Negotiable Instruments Act, 1881;
"Muhammad Azizur Rehman v. Liaquat Ali (2007 CLD 1542)."
JUDGMENT
Brief facts of this appeal are that the respondent filed a suit under Order
XXXVII, C.P.C. on the basis of promissory note for recovery of
Rs.400,000/- against the appellant/ defendant. The appellant/defendant
filed the written statement and raised factual as well as legal objections.
Out of divergent pleadings of the parties, issues were framed by the learned
Trial Court. The parties produced their respective evidence and after
recording the same, learned Trial Court vide judgment and decree dated
01.07.2011 decreed the suit. Feeling aggrieved, the appellant/defendant
has preferred instant Regular First Appeal and challenged the validity of
the said judgment and decree.
decree.
3. To prove his case, the plaintiff/ respondent appeared and deposed
as PW-1 and produced Sajid Tufail and Hussan Gulzar as PW-2 and PW-
3 respectively. The witnesses fully supported the contents of the plaint and
the plaintiff's version. In documentary evidence plaintiff produced original
receipt pronote/Exh.P1 and Exh.P2. On the other hand,
defendant/appellant himself appeared as DW-1 and examined Asim
Rizwan and Saghir Ahmed as DW-2 and DW-3 respectively. Muhammad
Ashraf, Sub-Inspector, Expert Fingerprint Bureau, Punjab also got
recorded his statement as CW-1.
Marginal witnesses of receipt/ pronote (Exh.P1) have appeared in the
witness box as PW-2 and PW-3 and fully corroborated the version of
respondent/plaintiff taken in the plaint and also testified the execution of
the receipt/pronote (Exh.P1). Even otherwise, report of Expert
Fingerprint Bueau, Punjab also affirms that the receipt (Exh.P1) and (Exh.
P2) bear the thumb impression of appellant/defendant.
It is well-settled law that under section 118 of the Negotiable Instruments
made, drawn, accepted or endorsed for consideration and contrary to this,
the onus is on the person who is denying the consideration to prove the
same. The honorable Supreme Court in a case reported as "Muhammad
Azizur Rehman v. Liaquat Ali (2007 CLD 1542) had held as under:
"…..According to section 118 of the Act, until the contrary is proved, the
drawn for consideration……."
4. By scanning the contents of the pleadings, oral as well as
documentary evidence, it is crystal clear that the appellant / defendant has
failed to substantiate his claim that consideration of pronote has not been
received by him and he will not be relieved from discharging the above
burden of proof. Testing the case in hand, at the touchstone of the
appellant/defendant has miserably failed to establish/ substantiate/
prove his claim(s). In view of the foregoing discussion, this appeal is
dismissed.

Masud Abid

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Masud Abid

Uploaded by

Copyright:

Available Formats

Syed MUHAMMD QASIM and others---Appellants Versus SHAMOON and others---

 Citation: 2023 YLR 1940

 Contractor Haji Muhanumul Alam (deceased) through Legal

 Citation: 2023 PLJ Law Note Civil 141

 Citation: 2023 YLR 887

Legal References and Precedent Cited

 "Haji Ali Khan and Company, Abbottabad and 8 others v. Messrs

 Citation: 2023 PLJ Law Note Civil 94

 Citation: 2023 PLJ Law Note Civil 96

 Citation: 2023 PLJ Law Note Civil 68

3. Perusal of the record reveals that a tenant of the petitioners namely

During the above described pendency of litigation between the petitioners

4. In view of the foregoing discussion, this Court is of the considered view

 Citation: 2023 PLJ 396

Aggrieved by the order dated 13.06.2018 passed by the Returning Officer,

3. Against the decision of Returning Officer, based on summary inquiry,

5. In view of above, I find no infirmity or illegality in the impugned order

 Citation: 2023 PLJ 391

2. Out of divergent pleadings of the parties, issues were framed by the

4. Perusal of record reveals that the plaintiffs/Respondents

“…. defendants have not earned ownership yet ….. I am of considered

5. The predecessors in interest of private defendants/ petitioners namely

“…. there is a distinction between the disputes pertaining to claim for

6. It is relevant to discuss here that Order VII, Rule 11 C.P.C. cannot be

“13. Where rejection of plaint does not preclude presentation of fresh

Rule 13 ibid clarifies the consequence of the rejection of the plaint by

 Citation: 2023 PLJ 387

Aggrieved by the order dated 19.06.2018 passed by the Returning Officer,

3. There is no cavil to the proposition of law that in order to contest the

“ ……… 43. If we compare Article 63(1) with Article 63(A) of the

Reliance is also placed on judgment reported as “Syed Anwar Hasnat

4. In view of the above discussion, the appellant is not entitled/qualified

 Citation: 2023 CLC 193

 Citation: 2022 YLR Note 143

 Citation: 2022 PLJ Law Note Civil 49

 The petitioner/plaintiff argued that they had provided strong

2. Learned counsel for the petitioner/plaintiff vehemently argued that

4. After the denial of agreement to sell/Ex.P.1 and receipt/Exh.P.2 by

The plaintiff/PW. 1 deposed that he had entered into an agreement to

Hence, the PW.2/marginal witness was not present at the time of

Even otherwise, agreement to sell was reduced into writing on

5. With respect to interference in concurrent findings of the Courts

“Concurrent findings of the trial Court and appellate Court in favour of

 Citation: 2022 CLD 1048

 Citation: 2022 CLD 1035

 Citation: 2022 CLC 1461

 Citation: 2022 MLD 1555

 Citation: 2022 PLC SERVICE 1021

 Abdur Rashid v. Pakistan, 1969 SCMR 141

Conclusion: The judgment highlighted the duty of litigants to present

 Citation: 2022 PLD 628

 Citation: 2022 PLD 589

 Citation: 2021 CLD 679

2: Learned counsel for the appellant/defendant submits that the

Hence, the date of knowledge is not mentioned in the application] for

 Citation: 2021 CLC 1034

 Citation: 2021 YLR 556

 "Ministry of IPC through Secretary and others v. Arbab Altaf

 Citation: 2021 PLC SERVICE 195

 Punjab Higher Education Commission v. Dr. Aurangzeb Alamgir (PLD

The judgment extensively references these cases to elucidate the principles

 Citation: 2021 MLD 490

 Citation: 2021 MLD 442