Requirements

Magistrate must explain to the accused that he is not bound to confess and that any confession made may be used against him

Magistrate shall not record the confession unless, upon questioning, he has reasons to believe that it is being made voluntarily

Expression 'reasons to believe' requires objective satisfaction, not mere suspicion, and must rest on credible material and the Magistrate's own observation of the accuser's demeanor.

Respondent/plaintiff, a parda nasheen lady of advanced age, was married having four sons, but none from her relatives in prohibited degree was associated with the gift mutation to identify her and both the witnesses of mutation, who allegedly identified her, were not her relatives

Record was also silent about the fact that whether the respondent, who was an illiterate and parda observing old lady, was having any independent advice from her near and dear ones, or that, she was amply made acquainted with and explained that the document, on which she was going to impress her thumb, would permanently deprive her and her sons from the landed property and she would be no more its owner

The beneficiary of any transaction involving parda nasheen and illiterate women has to prove that it was executed with free consent and will of the lady; that she was aware of the meaning, scope and implications of the document she was executing

Lady should be made aware and understand the implications and consequences of the transaction and should have independent and objective advice either of a lawyer or a male member of her immediate family available to her

Petitioner failed to point out any illegality or infirmity committed by both the Courts below while passing impugned judgments for cancellation of gift mutation

High Court maintained concurrent finding passed by both the Courts below

Revision, filed by defendant, was dismissed, in circumstances.

Section 406 P.P.C reveals that, there are two requisite elements which are necessary to establish a case of criminal breach of trust

Firstly, the accused must have been entrusted with a property as trust (amanat), or must had dominion over it as trust (amanat)

Secondly, after such entrustment or dominion is created, the accused must have breached that trust by either dishonestly misappropriating or converting the property to his own use, or dishonestly using or disposing it of in violation of any direction of law, an express or implied legal contract related to the discharge of the trust, or willfully allowing another person to do any of these acts

Both of these elements need to be present in order to constitute criminal breach of trust.

The petitioner filed 'pro bono publico' writ petition challenging the privatization process of Pakistan International Airlines Corporation Limited (PIACL), alleging non-compliance with the mandatory provisions of Ss. 23 & 24 of the Privatization Commission Ordinance, 2000, inasmuch as no lawful advertisement of intent was issued nor proper valuation of assets was undertaken, thereby rendering the entire exercise arbitrary, non-transparent, and violative of the fundamental right to information under Article 19-A of the Constitution

Nub of the matter was the determination as to "whether the process of privatization undertaken by the Privatization Commission was in conformity with Ss. 23 & 24 of the Ordinance 2000 and the Rules and Regulations framed thereunder or whether the same was tainted with arbitrariness, procedural impropriety or lack of lawful authority"

Held: There was no doubt that failure to comply with the procedural requirements of S. 23 of the Ordinance 2000 would have rendered the privatization process legally defective and open to judicial review

Bare reading of Ss. 23 of the Ordinance 2000read with S. 5(o) of the Ordinance 2000 made it abundantly clear that it was the duty of the Privatization Commission to invite open applications for the purpose of privatization, after consultation with the Federal Government, for making the process transparent and competitive by preventing favoritism and ensuring fair competition

It was evident from the record that the required newspaper advertisements were published in national newspapers "Daily Express", "Daily Jang" (Urdu Newspapers) and "Dawn" and "Business Recorder" (English Newspapers) on 02.04.2025

Notice of invitation was also got published in international dailies "Financial Times" (03.04.2024), "China Daily" (02.04.2024) and "The Wall Street Journal" (02.04.2024) by the Commission

The said advertisement was also got published on 15.04.2025 with at least thirteen days gap on "Daily Express", "Daily Jang" (Urdu Newspapers) and "Dawn" and "Business Recorder" (English Newspapers)

In this view of the matter, the record demonstrated that advertisement of privatization of the "PIACL" was issued in consultation with the concerned enterprise in accordance with requirement of the S. 23 of the Ordinance 2000

Moreover, the issuance of a formal valuation report was a condition precedent for the progression of the privatization process which ensured that the Commission, bidders, and the public were fully aware of the independently assessed value of the asset being privatized

It was evident from the notice of advertisements that the Privatization Commission had appointed EY Consulting LLC, as the Financial Advisor along with other consortium members to conduct the transaction

If S. 24 of the Ordinance 2000 was read with S. 23 of the Ordinance 2000 along with Ss. 5(o) & 5(p) of the Ordinance 2000, it transpired that Privatization Commission was empowered to evaluate the bids against the criteria fixed by it

Record was indicative of the fact that the Privatization Commission had appointed EY Consulting LLC, as the Financial Advisor to conduct the transaction in the prescribed manner after seeking proper approval from the Cabinet and hence this requirement was also fully met with by the respondents

Privatization Commission had duly conducted the process of privatization as per Ss. 23 & 24 of the Ordinance 2000

Regarding application of the petitioner seeking summoning and production of record pertaining to assets, valuation reports and financial particulars of PIACL regarding process of privatization, such request could not be entertained given the fact that such documents were confidential under Regln. 3 of the Privatization Commission (Confidentiality and Secrecy of Documents) Regulations, 2003

The process of privatization was strictly followed as per prescribed criteria, therefore, present petition was dismissed, in circumstances.

Under the provisions of Ss.10(4) & 10(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001, ('the Ordinance 2001') the defendants were obligated to provide a clear and specific response to the Bank's Statement of Account, in their application for leave to defend, besides providing details of their own accounts along with the specific amounts they dispute

However, the necessary documents, as mandated under S. 10(5) of the Ordinance, 2001, were not annexed with the leave application

Said failure to plead the requisite details attracts the consequences prescribed under Ss. 10(1) & 10(6) of the Ordinance, 2001, warranting the rejection of the application for leave to defend and the passing of judgment and decree in favour of the plaintiff-Bank under Ss. 10(1) & 10(11) of the Ordinance, 2001

The defendants have failed to comply with the requirements of Ss. 10(4) & 10(5) of the Ordinance, 2001

Thus , the defendants failed to raise any factual defence that would necessitate the recording of evidence

Accordingly, the defendants' application for leave to appear and defend the suit was dismissed

Suit, filed by Bank, was decreed.

Plaintiff (lady/sister)sought cancellation of mutation to the extent of transfer of her share on the ground that neither she sold the same nor did she appear before any Revenue Official nor impressed her thumb-impression in said regard

In the first round of litigation, the matter was remanded to the Appellate Court for fresh decision of appeal having been filed by the defendant / brother, which appeal was dismissed

Validity

Evidence was silent with regard to knowledge of the respondent about nature of transaction and consequences thereof or whether she had any independent advice particularly when she was married woman

Her husband was, admittedly, not present at the time of execution of the mutation-in-question

Payment of sale-consideration was not proved as there were contradictions in the evidence adduced by the petitioner and that of his witness whom he (petitioner) asserted to have handed over the amount for payment to the respondent

Another witness presented by the petitioner only referred to the presence of four sisters out of total five, hence the presence and actual representation of respondent could not be established through evidence

There was also contradiction regarding presence of and payment to the respondent, in statements of Halqa Patwari and Ahle-Commission appointed for recording statements of Parda Nasheen ladies

Even two witnesses of the petitioner /defendant unanimously admitted that the petitioner used to pay share of crops to the respondent till institution of the suit

Said defects cast doubt on the transactions attributed to the respondent / plaintiff

In our male dominated society where the female legal heirs have been consistently deprived of their 'sharai' shares in inheritance , the principle of caution in protecting the legitimate rights of the illiterate Parda observing lady must be applied vigorously and rigidly

Beneficiaryof any transaction involving Parda Nasheen and illiterate woman had to prove that it was executed with free consent and will of the lady , she was aware of the meaning, scope and implications of the document that she was executing; she was made to understand the implications and consequences of the same and had independent /objective advice either of a lawyer or a male member of her immediate family available to her

Record revealed that in the proceedings before the Appellate Court , fingerprint expert submitted his report wherein he affirmed that thumb-impression on mutation-in-question did not match with admitted thumb-impression of the respondent

No illegality or infirmity had been noticed in the impugned decrees and judgments passed by both the Courts below

Revision filed by the petitioner (defendant/brother) was dismissed, in circumstances.

Suit was decreed in favour of plaintiff / Bank holding defend that no substantial question of law was raised by the defendant /customer in his petition for leave to appear of defend

Defendant/judgment-debtor preferred appeal against the decree, however, he died during the pendency of the appeal and legal heirs of deceased customer/judgment-debtor (appellants) pursued the case before the Appellate / High Court

Plea of the appellants was that an opportunity be granted to them to contest the case by allowing leave to defend

Validity

Appellants remained unsuccessful to show the Court any substantial question of law having been raised through the petition for leave to appear and defend, which required trial through recording of evidence

Record revealed that the factum of renewal/ extension of finance facility upon request of the deceased was established

No document was indicated to show adjustment of finance facility of 2003-04 ; conversely, respondent / Bank established withdrawal of funds for adjusting overdue liabilities with funds extended through finance facility-in-question

Funds were made available and withdrawn through cheque which details were mentioned in relevant para of the plaint but the same were not explicitly rebutted in the leave application

It was established that amounts overdue were adjusted and working capital was made available for one year, at the request of predecessor of the appellants

Finance and security documents were executed and acted upon

Respondent / Bank had provided statement of account for the finance facility 2003-04 and 2005-06, wherein no objection was raised with respect to any entry / entries therein

In yet another para of the plaint, the respondent / Bank disclosed factum of a (previous) suit having been instituted by the Customer against the financial institution, which fact was neither denied nor any document/order was referred for disputing factum of institution of suit and effect of its dismissal

Dismissal of suit otherwise manifested acquiescence on the part of deceased qua legitimacy of the claim

Predecessor of the appellants was an obvious beneficiary of the finance facility, extended and availed

Suit had been instituted by the authorized officers and one of the signatories was identified as Branch Manager

Statement of accounts met the requirements of law

Thus, plea of the appellants (that opportunity be granted to them being legal heirs of the deceased to contest) was misconceived, especially in the context of absence of all substantial question of law and fact raised in the application for leave to defend the suit

Ambiguous objections raised otherwise called for no serious attention

Requirements in terms of S.10(5)(6) of Financial Institutions (Recovery of Finances) Ordinance, 2001 were not met

No illegality, error or defect was found in the impugned judgment and decree passed by the Banking Court

Appeal being merit-less, was dismissed, in circumstances.

Right of appeal had been provided against final order whether original or appellate made by the Authority with regard to any of the terms and conditions of service

Case of appellants had not been examined for promotion in the light of new Rules

No adverse order had been passed against the appellants and they were not aggrieved from the framing of new Rules

Appellants had failed to substantiate that any terms and conditions of their service had been adversely affected

Service Tribunal had not committed any illegality or irregularity while dismissing the appeal

Appeal was dismissed by Supreme Court, in circumstances.

Essential that party against whom such order is being passed must be given a proper notice confronting relevant material and providing fair chance to explain its stance and raise all legal and factual objections

Minimum requirement of principles of natural justice, especially principle of audi alteram partem i.e. no one should be condemned unheard, must be observed in all proceedings concerning determination of rights of a party, pertinently when certain liability is being created.

Court could only exercise its inherent powers in case when there was no prohibition in law regarding its jurisdiction to exercise the inherent powers

When there was express provision in C.P.C., a Court could not exercise that authority to defeat/circumvent such express provision

Expression "Court" in S. 151 meant each Civil Court in which the lis was pending

Inherit jurisdiction of Court could be invoked when there was no other specific provision to deal with the issue.

Discretion to grant such relief was structured on sound/reasonable judicial principles, amenable to judicial review and correction by the Court of appeal

Foremost requirement to seek specific performance, party had to demonstrate his readiness/willingness/capability to perform his agreed part of contract.

Trial Court acquitted the accused on the ground of non-availability of prosecution witnesses on number of dates fixed for hearing

Held; it was not a good ground to acquit the accused, but at the same time, it could not be ignored that prosecution was duty bound to produce their witnesses in time for an early disposal of the case, because the right of an accused to an expeditious and fair trial has been enshrined in the Constitution

Accused had remained in jail for at least six months, as such, he had sufficiently been punished and had also faced the agony of protracted trial for about two and half years, but decision could not be made on merits

No fruitful purpose would be served if the case was remanded to the Trial Court, which would amount to abuse of process of law and torture the parties

Remand of case, not being a routine matter, should be adopted only when compelling circumstances existed

No compelling circumstances existed to remand the case

Appeal against acquittal was disposed of accordingly.

To accord the statement of deceased the status of dying declaration, it was to be proved that at the time of making statement the deceased was fully in senses and capable to record his statement.

Contention of plaintiffs was that mutation and sale deed in favour of defendants were based on fraud and misrepresentation

Suit was dismissed being time barred against which appeal was filed before District Court which was returned for want of pecuniary jurisdiction

Plaintiffs moved review petition against the said order which was dismissed

Plaintiffs filed revision petition before High Court which was converted into appeal

Contention of plaintiffs was that limitation would run from the date of their knowledge

Validity

High Court observed that plaintiffs should have filed an appeal before High Court by availing benefit of S.14 of Limitation Act, 1908, within ninety days or challenged the order of return of memo of appeal passed by the District Court

Where appeal had been filed with delay then appellant must explain the delay of each and every day

No application under Ss. 5 and 14 of Limitation Act, 1908 for justifying the delay had been filed in the present case

Plaintiffs had consumed time in approaching the wrong forum

Plaintiffs had not submitted any explanation for choosing the wrong forum

If litigant had not acted in a bona fide manner or he had acted without due diligence in prosecuting remedies before wrong forum then he could not be benefited under S.14 of Limitation Act, 1908

Plaintiffs had challenged the judgment and decree of Trial Court after a lapse of eleven months

Plaintiffs had filed the suit after lapse of more than forty years

Nothing was on record as to when impugned mutation and sale deed came in the knowledge of plaintiffs

Limitation for declaratory suit was six years and for cancellation of a deed was three years

No explanation had been offered by the plaintiffs to justify the delay in filing of the suit

Predecessor-in-interest of plaintiffs had not filed any suit against the impugned mutation and sale deed in his life time before any forum

Suit property was not mutated in favour of defendants through fraud rather it was with the consent and knowledge of plaintiffs

Appeal was dismissed being time barred, in circumstances.

Petitioner filed application before Revenue Officer for dismissal of application for partition of landed property on the ground that he had filed a declaratory suit but same was dismissed

Validity

Parties were co-sharers of suit property and respondent had applied for separation of his recorded share

Application before Revenue Authorities to postpone partition proceedings was not maintainable

Suit of petitioner had already been dismissed

High Court observed that if ownership of the party seeking partition was disputed and Revenue Officer could not decide the dispute being intricate question of right then he should direct the parties to approach the competent Court for resolution of dispute

Mere institution of a suit by any of the parties on their own motion could not restrict the Revenue Officer to proceed in the matter of partition of a joint land

Constitutional petition was dismissed, in circumstances.

Jurisdiction of High Court had been barred with regard to enforcement of terms and conditions of service of civil servants

Administrative Tribunals had been established for redressal of grievance of civil servants with regard to their terms and conditions of service

Civil servant for invoking jurisdiction of Service Tribunal must be aggrieved of an order original or final affecting terms and conditions of service

Any rule which did offend the terms and conditions of service of a civil servant could be challenged before Service Tribunal

Civil servants were neither aggrieved of any order nor rules relating to their terms and conditions but they had sought a writ of mandamus to treat them at par with the other similarly placed persons

Such relief could not be granted by the Service Tribunal having limited jurisdiction

Civil servants who were in service after implementation of revised pay scales would constitute a different category as compared to those who had retired before implementation of revised pay scales

Such classification was permissible and it would hit at the core of Art. 25 of the Constitution

Employees had not been discriminated by the authorities in the case

Constitutional petition was dismissed, accordingly.

While deciding the habeas petition, the court had to carefully scan the record so as to ascertain that the victim was deprived of his liberty in accordance with law or otherwise

Court, for achieving that objective, could examine the facts of case, information forming basis of detention and the counter defence put forth against such plea.

Constitutional petition was allowed, in circumstances.

Appellant filed application under S.11 of the Industrial Relations Act, 2012, for cancellation of registration of respondent-trade union on the ground that since there were already more than five registered trade unions in the appellant's establishment, therefore, the question of the respondent having its members one fifth of the total members of workmen employed in appellant's establishment, as required under S.8(2)(b) of Industrial Relations Act, 2012, did not arise

Registrar, Trade Unions dismissed the application

Validity

Where at any stage after the registration of the trade union, its membership fell short of one fifth of the total number of workmen employed in an establishment, it was obligatory on the Registrar Trade Unions to initiate the process for the cancellation of such trade union in accordance with S.11(2) of Industrial Relations Act, 2012

Employer or the rival trade union were not prevented from bringing such fact to the notice of the Registrar, Trade Unions

Intra Court appeal was allowed and the Registrar, Trade Unions was directed to determine as to whether the respondent Trade Union fulfilled the requirements of S.8(2)(b) of the Industrial Relations Act, 2012.

Conjoint reading of S.11 & S.8(2)(b) of Industrial Relations Act, 2012, shows that the proceedings for the cancellation of a trade union may be initiated by the Registrar, Trade Unions in accordance with S.11(2) by submitting an application to the National Industrial Relations Commission praying for permission to cancel the registration of a trade union where its membership falls less than one-fifth of the total number of workmen employed in an establishment.

Trial Court rejected the plaint on the ground that plaintiff was a civil servant and Civil Court had no jurisdiction to adjudicate terms and conditions of service

Validity

Plaintiff-civil servant had been granted honorarium by the Cabinet Division

Defendant had refused to release duly sanctioned special incentive to the plaintiff

Civil servant had no other option but to file a suit for recovery of said amount before the Civil Court

Special pay, incentive and honorarium had not been included in the pay of a civil servant

Appeal against the order of the departmental authority lay before Service Tribunal

No adverse order of any departmental authority had been passed against the plaintiff-civil servant

Honorarium and special incentive did not form part of terms and conditions of a civil servant

No appeal could be filed before Service Tribunal as there did not exist order of departmental authority

Civil Court had jurisdiction to entertain the case of plaintiff, in circumstances

Impugned order passed by the Court below was set aside and matter was remanded for decision on merits

Appeal was allowed, in circumstances.

Suit was dismissed against which appeal was filed wherein application for production of additional evidence was moved under O.XIII, Rr.1 & 2, C.P.C. which was dismissed

Validity

Appellate Court in order to enable it to pronounce a judgment might allow any document to be produced or any witness to be examined

Appellants, in the present case, had filed application to produce public documents which were not in their possession at the time of filing of appeal

Documents which the appellants intended to produce before the Appellate Court were public documents and Court had not expressed any doubt with regard to authenticity and genuineness of said documents

Appellate Court had held that provisions of O.XIII, Rr. 1 & 2, C.P.C. could not be invoked at appellate stage

Mere mentioning a wrong provision of law was not to disentitle a party to relief which was otherwise available to it under the law

Appellate Court should have treated the petition as one under O.XLI, R.27, C.P.C.

Parties should be allowed to produce documents on record which were otherwise unimpeachable for resolving the controversy

Impugned order passed by the Appellate Court was set aside and the petitioners were allowed to produce documents as additional evidence in the Appellate Court

Authenticity of said documents was to be considered by the Appellate Court at the time of decision of appeal

Revision was allowed, in circumstances.

Before carrying out any proceedings, a complaint in writing by a person authorized in that behalf by the Federal Government or by the State Bank of Pakistan supported by statement of that person on oath was a mandatory requirement of law before issuance of a warrant by the court of competent jurisdiction.

Pre-emptor before performing Talb-i-Ishhad must give reference of first demand to the witnesses informing them that he/she had already performed his/her first demand accordingly

Such reference was a condition precedent without which Talb-i-Ishhad was incomplete

Pre-emptor had not mentioned the names of witnesses in the plaint in whose presence Talb-i-Muwathibat and Talb-i-Ishhad were performed and no date, time and place of said talbs in the plaint were mentioned

Plaintiff was bound to have mentioned date, time and place of performance of Talb-i-Muwathibat in the plaint

Pre-emptor had failed to establish performance of Talb-i-Muwathibat, in circumstances

Trial Court had rightly rejected plaint filed by the plaintiff

Revision was dismissed, in circumstances.

Provincial Admission Committee of Balochistan University of Medical and Health Sciences had agreed to reduce the eligibility criteria of 60% for Medical and Dental College Admission Test to that of 50% for Balochistan, which had been approved by the Syndicate of University

Petitioner had secured 99 marks out of 200 marks which were less than 50%

Petitioner had claimed admission in Balochistan University of Medical and Health Sciences on special consideration which was not permissible under the law

Prospectus, rules and regulations framed by the public educational institution were administrative policy applicable to all the candidates without any discrimination

Universities authorities in academic matters were the best judge to interpret the rules and regulations framed by the University

Court was to avoid to interpret the said rules unless a case of grave injustice had been made out

Petitioner had not challenged the decision of Provincial Admission Committee of Balochistan University of Medical and Health Sciences which had been approved by the Academic Council of said University

Constitutional petition was dismissed, in circumstances.

Material portion of statement of witnesses of plaintiffs was not denied by the defendant and same was to be deemed to be admitted

Plaintiffs had failed to point out any illegally or irregularity in the impugned judgments and decrees passed by the Courts below

Revision was dismissed, in circumstances.

Only contesting candidates could be made respondents in the election petition and any other party could not be joined as respondent unless otherwise directed by the Election Tribunal

Petitioner in the present petition had arrayed official respondents unnecessarily without permission from Election Tribunal

Present petition was not maintainable, in circumstances

Contention of petitioner was based upon presumption and assumption

No Presiding Officer of any polling station or any of the polling staff was produced before Election Tribunal to substantiate the allegations

Nothing was on record that any returned candidate obtained or procured the assistance of Presiding Officer to secure his election

No inference could be drawn in absence of any concrete evidence that missing ballot books were done in connivance or collusion with the returned candidate

Any careless or deliberate act on the part of any functionary of Election Commission was not enough to nullify the election results

Petitioner had levelled bald allegations against the respondent without any solid and concrete evidence

Names of persons accused of corrupt or illegal practices or illegal act and date and place of commission of such acts or practices were not available on record

Petitioner was bound to prove allegations of rigging and the use of corrupt and illegal practices which he had failed to prove the same

Allegations made in the election petition were not only vague, generalized, non-specific but also did not fulfil the requirements enough to declare the elections of returned candidate to be void

Mere bald allegations of rigging were not sufficient for verification of thumb impression from National Database and Registration Authority

Election petition was dismissed in circumstances.

Plaintiff filed an application for production of document which had already been placed on record and to re-examine the witness who produced the same

Trial Court accepted the application and witness was examined who produced document which was already on record

Validity

Once a document had been placed on record of the Court then same could not be placed again to fulfill lacunas left by the witness or surfaced in cross-examination

Court could not be used as tool for fulfillment of lacunas left by the parties

Object of re-examination of a witness was to clear an ambiguity which had arisen upon cross-examination

No one was to be afforded opportunity to improve his case

Trial Court had erred in law to allow same document to be placed on record without any justifiable cause and valid reasons

Court (Judge) must wear all the laws of the country on the sleeves of his rob and apply correct law to justly administer rights and remedies of the citizens

Impugned order passed by the Trial Court was set aside and matter was remanded to the Trial Court for decision in accordance with law

Revision was allowed, in circumstances.

Revision was dismissed, in circumstances.

Court shall reject the plaint if it manifests any infirmity as enumerated in O.VII, R.11, C.P.C. to avoid wastage of time and unnecessary harassment of the opposite party.

Where numerous persons had same interest in a suit land then one or more such persons with permission of the Court could file a representative suit

Plaintiffs had not sought permission from the Court for filing representative suit and not arrayed all the members of the tribe as party

Names of persons who had interest in the suit were to be mentioned in the list on behalf of plaintiffs

Plaintiffs, in the present suit, had neither mentioned the names of interested persons nor the list of such persons was attached with the plaint

Every person having interest in the suit land must be heard

Plaintiffs had agitated their grievance after more than forty years of settlement

No illegality or irregularity had been pointed out in the dismissal of suit

Revision was dismissed, in circumstances.

Sale either in writing or oral, if proved through direct evidence, was necessary for the purpose of seeking pre-emption right

Right of pre-emption did arise only out of a valid, complete and bona fide sale and it did not arise out of gift, Sadqa, Waqf, inheritance, bequest, lease or mortgaged unless foreclosed

Witnesses produced on behalf of pre-emptor had no direct knowledge with regard to sale of suit property

No transaction between the parties in writing or verbally had been brought on record

Oral evidence produced on behalf of plaintiff with regard to sale of suit property was based on hearsay evidence

Oral evidence must be direct and would be inadmissible if it was from an indirect source

Pre-emptor had failed to produce any direct oral or primary evidence with regard to sale of suit property

Findings recorded by the Trial Court were based on proper appreciation of evidence

Appeal was dismissed, in circumstances.

Temporary injunction could not be granted only on the basis of prima facie case existing in favour of plaintiff but Court had to consider whether balance of convenience or irreparable loss to the party seeking such relief did co-exist or not

Pleadings, documents and supporting evidence was to be examined and assessed tentatively for grant or refusal of temporary injunction

Where complicated question with regard to merits of the case required framing of issue and evidence then temporary injunction should not be granted

Where question of amount or share of amount was involved then it could easily be ascertained, however, if plaintiff succeeded in litigation then irreparable loss measurable in terms of money could not be said to be irreparable loss

If petitioner succeeded in the litigation in the present case then he could be compensated in terms of money and question of balance of convenience and irreparable loss did not co-exist in his favour

Complicated questions with regard to merit of the case were involved in the present case which required framing of issue and evidence

Grant of temporary, injunction was premature, in circumstances

Revision was dismissed accordingly.

Provisions of S.21-A of Family Courts Act, 1964, were discretionary and same were limited by the subsequent words 'any property in dispute'

Husband was ready to handover dowry articles lying in his house to the wife

No dispute existed over the dowry articles lying in the husband's house

Scope of discretion of Family Court under S. 21-A of Family Courts Act, 1964, had vanished, in circumstances

Family Court should have ordered the bailiff to hand over the admitted dowry articles lying in the house of husband to wife against a proper inventory of all such articles subject to final decision regarding missing article, if any

Dowry articles had been sealed in two rooms of the house of defendant and doors thereof had been closed

Family Court had illegally prevented the husband and inmates of his house to use the said rooms of their own house

Family Court had passed the order to seal the rooms of the house of defendant which were not subject matter of the family suit

Impugned order passed by the Family Court suffered from jurisdictional defect and same was declared illegal and without lawful authority and was set aside

Family Court was directed to de-seal the rooms of the house of defendant and hand over the admitted dowry articles to the wife subject to proper inventory

In case of any disagreement of the parties over the quantity or condition of such articles the same should be decided after recording of evidence of the parties at the time of final judgment

Constitutional petition was allowed, accordingly.

Plaintiff had not mentioned anything with regard to suit mutations as contended in the plaint rather word 'different' mutation had been used in the evidence

Witness of pre-emptor had not mentioned the word 'mutation' or 'different mutations' as referred in the plaint or statement of plaintiff rather he had told the name of vendee and intention of pre-emptor to sue the vendees

Evidence of pre-emptor and informer did not commensurate each other

Evidence of pre-emptor with regard to performance of Talb-i-Muwathibat and his witnesses was contradictory

Pre-emptor was required to state in evidence the exact words which he had used in the jumping demand

Right of pre-emption was a feeble right and all the details of Talb-i-Muwathibat were required to be mentioned in the plaint

Pre-emptor had failed to state in evidence a transparent account of performance of Talb-i-Muwathibat

Nothing was on record to show as to for which of the six mutations which talb-i-Muwathibat was performed

Talb-i-Muwathibat should have been performed immediately after the disclosure of information of the sale

Pre-emptor was required to announce right of pre-emption after getting knowledge of first mutation and if he had waited that all the mutations be come out of the mouth of informer then that wait would take down the performance of first talb

Plaintiff, in the present case, had performed only one jumping demand and therefore, it could be said that he had waited for the information of all the six mutations be conveyed

Talb-i-Muwathibat had not been performed immediately by the pre-emptor in circumstances

Performance of single Talb-i-Muwathibat encompassing all the sales in favour of different vendees could not be taken as sufficient

Pre-emptor was bound to perform jumping demand in a specific manner stating the person and mutation against whom he was pronouncing his intention

General expression to pre-empt a number of sales simultaneously was not sufficient to absolve the pre-emptor from the responsibility to pre-empt each and every sale in a precise manner

Pre-emptor had failed to prove that he had sent notices of Talb-i-Ishhad to the vendees through registered cover with acknowledgement-due

Plaintiff had failed to bring on record the acknowledgement-due and postman had failed to prove the factum of delivery of notices of Talb-i-Ishhad to the vendees

Scribe of notices of Talb-i-Ishhad had not been produced in the witness box which was fatal for the pre-emptor

Pre-emptor had failed to perform Talb-i-Muwathibat and Talb-i-Ishhad in circumstances

Courts below had rightly non-suited the pre-emptor

Impugned judgments were based on proper appreciation of evidence

Revision was dismissed, in limine in circumstances.

Mortgagee filed a suit for declaration for recovery of mortgage amount which was ex-parte decreed and execution petition was moved

Auction of mortgaged property was conducted during execution proceedings and sale certificate was issued and property was sold in favour of auction purchasers

Mortgagor moved application for setting aside of ex-parte decree which was accepted

Mortgagor and mortgagee thereafter filed suits for declaration and redemption against each other

Suit of mortgagor was decreed but that of mortgagee was dismissed

Validity

Judgment-debtor could apply for setting aside of a sale of immovable property in execution of decree before its confirmation upon satisfying the decretal debt and paying compensation to the auction purchaser for the loss of bargain

Sale of immovable property in execution of a decree could be set aside on the ground of irregularity or fraud in conducting the said sale

Applicant for setting aside such sale had to prove substantial injury by such irregularity or fraud

No such application could be entertained unless amount not exceeding twenty percent of the sum realized at the sale or security had been deposited

Auction purchaser had right to move an application for setting aside of such sale on the ground that judgment-debtor had no saleable interest in the property which had been sold

Application for setting aside sale of immovable property in execution of a decree could be moved within a period of thirty days from the date of sale

Where immovable property had been sold in execution of a decree and such sale had become absolute then such property would be deemed to have vested in the purchaser from the time when property was sold and not from the date when sale had become absolute

Such sale of property would not automatically wipe out even if it was found that decree under which sale was ordered had been set aside without resorting to O.XXI, Rr. 89 to 91 of C.P.C.

Sale in the present case had not only been confirmed but a court certificate of sale had also been issued

Non-observance of procedural law would create impediment on the way of fair trial

Courts below had nullified a valid sale in execution merely because decree had been wiped out which had resulted in miscarriage of justice

Impugned judgments and decrees were set aside to the extent of setting aside of auction and sale of suit property

Plaintiff could move an application for setting aside of sale in accordance with law if so desired

Revision was allowed, accordingly.

Petitioner moved application for setting aside of partition decree on the ground that he was owner of property at the time of filing of partition application but he had not been impleaded in the same

Application for setting aside of partition decree was dismissed by the revenue hierarchy

Validity

Petitioner was owner of property which was subject matter of partition proceedings

Owners of the landed property should be parties to the partition petition and entire joint property should be partitioned

Partial partition was not permissible under the law

Procedure adopted for partition of landed property without impleading a person/owner in the petition for partition would be against the principles of natural justice

Revenue Officer had dismissed the application of petitioner on the ground of limitation which was not justified

Limitation was to be considered from the date of knowledge of petitioner as he was not party to the partition proceedings

Entire process of partition was nullity as petitioner had not been impleaded in the partition application

Petitioner being owner of property was required to be impleaded as party in the partition petition

No effective decree could be passed in absence of petitioner, in circumstances

Impugned orders were set aside

Partition application should be deemed to be pending before the Revenue Officer who should implead the petitioner in the array of respondents and decide the same in accordance with law

Constitutional petition was allowed accordingly.

Plaintiff was not only required to prove Talb-i-Muwathibat but bound to establish Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses under registered cover acknowledgement due to the vendee confirming his intention to exercise right of pre-emption

Contradictions with regard to time of performance of Talb-i-Muwathibat were on record

Where a fact was required to be proved through oral evidence, such evidence must be direct and of primary source

If informer had taken different stance of facts from the facts narrated in the plaint then same could not be considered trustworthy and acceptable

Mere sending of notice of Talb-i-Ishhad by the pre-emptor was not sufficient and acknowledgment-due slip should have been signed by the vendee and not any other person

Nothing was on record that notice of Talb-i-Ishhad was dispatched to the defendants or received by them

Sending of notice of Talb-i-Ishhad to the defendants had not been proved in circumstances

Even pre-emptor had not examined scribe of notice of Talb-i-Ishhad

Pre-emptor had failed to establish Talb-i-Muwathibat and Talb-i-Ishhad, in circumstances

No illegality or infirmity had been pointed out in the impugned judgments and decrees passed by the Courts below

Revision was dismissed, in circumstances.

Petitioners filed application before Revenue Officer for stay of partition proceedings pending before him till decision of civil suit but same was dismissed

Validity

Lis which was pending before the civil Court did not create any hurdle in finalization of partition proceedings

Petitioners had no prima facie case in their favour

Balance of convenience also did not exist in their favour of and if temporary injunction was not granted, they would not suffer an irreparable loss

Contention with regard to intricate question of law and fact of entries of revenue record should be determined when inquiry in civil suit would come to an end

Proceedings pending before Revenue Officer with regard to partition of landed property could not be stayed

Disputed question of fact could not be considered and only illegality or jurisdictional error had to be examined in constitutional jurisdiction of High Court

No illegality or jurisdictional error had been pointed out in the impugned orders passed by the revenue hierarchy

Constitutional petition was dismissed in limine in circumstances.

Three ingredients i.e. prima facie case, balance of convenience and irreparable loss were sine qua non for grant of temporary injunction and if any of said ingredients was not in existence then injunction could not be granted.

When notice of Talb-i-Ishhad was not received by the vendee/addressee but by some other person and receipt thereof had been denied by the vendee then requirement of sending a notice of Talb-i-Ishhad had not been fulfilled

Pre-emptor had failed to prove service of notice of Talb-i-Ishhad by leading evidence in the present case

Impugned judgment passed by the Appellate Court was not sustainable, in circumstances, which was set aside and suit was dismissed

Revision was allowed accordingly.

Contention of plaintiff was that gift mutation was based on fraud and misrepresentation whereas defendants had contended that plaintiff had gifted suit property in their favour

Suit was decreed concurrently

Validity

Defendants had alleged that they had lost original deeds and had produced photocopy thereof without obtaining permission to produce secondary evidence

Even attested copies of official record were never produced by the official concerned from the official custody

Evidence produced by the defendants could not be given preference over the evidence of plaintiff in circumstances

Defendants were bound to prove transaction of impugned mutation by producing at least the marginal witnesses of the same but they had not produced the said witnesses

Defendants had failed to establish alleged gift through impugned mutation

Right of inheritance could not be defeated on technicalities

Plaintiffs were direct legal heirs of their predecessor and they had claimed their shari share in the suit property during their life time

Suit was within time

Revision was dismissed, in circumstances.

Entries of ownership for the purpose of a suit under S. 9 of Specific Relief Act, 1877 were not be considered and only possession was material

Entries of Khasra Girdawari had presumption of correctness to ascertain possession

Question of title in such suit could not be taken into consideration and same could be decided in a suit for declaration

Plaintiff had been dispossessed from the suit land and entries of Khasra Girdawari had been altered to his disadvantage

Impugned judgments and decrees passed by the Courts below were not based on proper appreciation of evidence on record which were set aside and suit was decreed

Constitutional petition was allowed, in circumstances.

Contention of plaintiff was that he had paid consideration amount of suit property and defendant was Benamidar and impugned mutation was based on fraud

Suit was dismissed concurrently

Validity

Plaintiff was bound to prove that transaction in favour of defendant was Benami and fraud had been committed

Plaintiff had failed to discharge the said onus through cogent, reliable and confidence inspiring evidence

No witness had been produced in whose presence the amount of consideration had been paid on behalf of plaintiff

Plaintiff had not asserted the time, date, month, year or place when consideration amount had been paid on his behalf

Defendant was working abroad for the last many years and he had constructed a house on the suit land and his family had been residing therein

Burden to prove fraud would be on the person who had alleged fraud

Plaintiff had failed to discharge the said burden

Plaintiff had failed to prove through tangible evidence that disputed sale transaction was a 'Benami' transaction

Mere oral assertion on the part of plaintiff qua the disputed transaction without any independent and cogent evidence could not be believed

Defendant had proved that suit land had been purchased by him from his own pocket and house had been constructed where his family was residing

No illegality, irregularity, mis-reading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the Courts below

Revision was dismissed, in circumstance.

Matter was remanded to the Trial Court with the direction to examine the local commissioner for determining the fate of his report and then decide the case in accordance with law

Impugned judgments and decrees were set aside

Revision was accepted, in circumstances.

Commencement of.

Appellate Court had reversed the findings of Trial Court on the point of performance of Talb-i-Muwathibat without discussing as to whether plaintiff had performed Talb-i-Ishhad

Validity

Pre-emptor was bound to send a notice in writing attested by two truthful witnesses followed by a rider i.e. under registered cover acknowledgement due

Pre-emptor had not produced postman who allegedly delivered the registered notice of Talb-i-Ishhad, the acknowledgment due card was not brought on record

Scribe of notice of Talb-i-Ishhad had not been produced to confirm the existence of said notice

Plaintiff, in circumstances, had failed to prove the service of notice of Talb-i-Ishhad and its delivery on the vendee

Appellate Court had acted illegally and with material irregularity while passing the impugned judgment and decree, in circumstances

Pre-emptor had failed to prove the service of notice of Talb-i-Ishhad on the defendant and suit was liable to be dismissed on that score alone

Impugned judgment and decree passed by the Appellate Court were set aside

Revision was allowed, in circumstances.

Only averments made in the plaint and documents appended therewith should be taken into consideration while invoking the provisions of O. VII, R.11 of C.P.C.

Court could not take into consideration the pleas raised by the defendant in the suit in his defence while deciding application for rejection of plaint.

Plaintiff agreed to deposit monthly instalments on the last day of each month failing which he was required to be penalized at the rate of 1% per day for late payment

Defendants before imposing penalty were required to serve three day's notice upon the contractor for doing the needful and in case of failure to pay instalment the penalty was to be imposed

Plaintiff committed default in payment of instalments and penalty

Plaintiff filed suit against the said penalty which was dismissed by the Trial Court but Appellate Court decreed the same

Validity

Entire clause of contract for the purpose of imposition of penalty should be read and a part thereof could not be interpreted in isolation from the rest of the contents of said clause

Plaintiff for invoking penal clause should have been served with a notice for payment of instalments within three days when first ever default was committed and contract should have been cancelled for non-payment of instalments

Defendants never opted to invoke the penal clause as per agreed terms but they waited till expiry of contract

Defendants after receiving entire contract amount had started recovery of penalty by pressing into service the penal clause of the contract

Defendants remained quiet in continuous default of contractor for his non-payment of monthly instalments within due time for eight months and had accepted amount being deposited after stipulated period

Principle of acquiescence was applicable in the present case

Defendants could not press into service the penal clause of contract after expiry of contract period

Three day's notice was sine qua non for invoking the penal clause of contract and in absence of said notice no penalty could be imposed

Controversy should have been resolved on the agreed terms and conditions of contract

Defendants had not served any notice to the plaintiff for making payment of instalments within three days from the first ever default

Contractor could not be penalized, in circumstances

Revision was dismissed accordingly.

Notice of Talb-i-Ishhad in the present case, had not been signed by the pre-emptor in presence of its other attesting witnesses

Talb-i-Muwathibat had not been repeated by the pre-emptor or his witnesses while drafting notice of Talb-i-Ishhad

Mere signing and sending of a notice of Talb-i-Ishhad did not fulfill the requirements of S.13 of Khyber Pakhtunkhwa Pre-emption Act, 1987

Personal service of defendant had not been proved

Appellate Court had failed to appreciate the evidence in its true perspective

Impugned judgment and decrees passed by the Appellate Court being not sustainable were set aside and those of Trial Court were restored

Revision was allowed, in circumstances.