Pre-requisites

Order XVII, R.3, C.P.C. obligates the court to proceed with the case and to decide the same if time has been granted to a party and who, firstly, fails to produce his evidence; or secondly, fails to cause attendance of his witnesses; and thirdly, fails to perform any other act necessary to the further progress of the suit.

Once it was established that the predecessor had no legacy on the eve of his death, there appeared no justification to determine as to how much property was owned by him

If a matter could be decided on direct evidence, a Local Commission could not be appointed to collect additional evidence

Recording of additional evidence is discretionary power, however, the same is not absolute and unfettered

A Local Commission could not be appointed so as to provide leverage to a party to plug gaps in its evidence

High Court directed the Executing Court to complete the proceedings of final decree

Civil revision, being merit-less, was dismissed.

Section 2(n) defines "workplace" in expansive terms, expressly including "any situation that is linked to official work or official activity outside the office"

At the same time, it must be clarified that the Act, 2010 does not convert every private dispute or personal misconduct between two individuals into workplace harassment merely because they happen to be colleagues

The jurisdiction of the Ombudsperson is attracted only where the impugned conduct arises out of, is facilitated by, or is inseparably connected with the employment relationship, or where the authority, influence, or power derived from office is used, explicitly or implicitly, to exert pressure, seek compliance, or create a hostile environment.

Affixation of court summons on conspicuous place of business and recording of statement of process server as to the affixation

Requirement

Setting aside ex parte decree, seeking of

Proper remedy, invocation of

Whether application under section 12(2) C.P.C. was maintainable or recourse lay under Order IX Rule 13, C.P.C.?

Primary issue in the present case revolved around whether the ex parte judgment and decree dated 18.09.2013 passed against the petitioner was validly obtained on the premise that Trial Court had resorted to substituted service through newspaper publication without first ensuring compliance with mandatory legal requirements for ordinary service of summons

The petitioner's subsequent application under section 12(2) C.P.C. to set aside the ex parte decree was dismissed by the Trial Court and later upheld by the High Court

The Supreme Court was thus called upon to decide "whether the ex parte proceedings stood vitiated for lack of proper service, and whether the proper remedy lay under section 12(2) C.P.C. or Order IX Rule 13, C.P.C. for setting aside the decree"?

Held: No order for affixation of court summons on the conspicuous place of the business of the petitioner was passed by the Trial Court rather it was ordered that 'defendant be summoned through registered post AD/TCS for 28.02.2013'; however, on 28.02.2013, the Trial Court without taking into account the preceding order and without recording statement of the process server as to purported affixation of the court summons as required under Rule 19, Order V of C.P.C. as to its satisfaction for reasons to believe that the petitioner/defendant was keeping out of the way for the purpose of avoiding service or for any other reason the summons could not be served in the ordinary way, especially when no order for affixation was passed by it on the preceding date and without adhering to the provided procedure as per mandate of law, resorted to substituted service of the petitioner through publication of court notice in the newspaper

Substituted service could only be effected when ordinary summons could not be served or defendant deliberately avoided to receive summons of the Court and the Court was satisfied that service could not be effected through ordinary modes of service and that satisfaction could be achieved by recording statement of the process server but nothing as such was done by the Trial Court

Process of issuance of proclamation for the service of the petitioner without fulfilling the mandatory requirement was nothing but nullity in the eye of law; therefore, the superstructure built thereon automatically collapsed

In the present case, when it was established from the record that the Trial Court while dealing with the suit did not resort to the mandated procedure of law for procuring the service of the petitioner, the application seeking setting aside ex parte judgment and decree ought to have been accepted

With regards to the question as to the applicability of either section 12(2) of Order IX, Rule 13 of C.P.C., an application under Order IX of Rule 13, C.P.C. was competent when an ex parte decree was passed due to non-service of summons

However, the court must assess the facts and evidence to determine the appropriate remedy under each provision

Impugned order passed by High Court and order delivered by Trial Court, were set aside, consequent whereof the application filed by the petitioner, treating the same as filed under Order IX, Rule 13 of C.P.C. was accepted and the ex parte judgment and decree in question was set aside and case was remanded to the Trial Court for decision afresh, obviously after obtaining written statement of the petitioner, framing issues and recording evidence of the parties

Present petition was converted into appeal while granting leave and same was allowed, in circumstances.

Two pre requisites for invoking provisions of sections 33 and 37-A of Sales Tax Act, 1990 are: dependence of fine on the “amount or loss of tax involved” and window of compoundability which is available to taxpayer, who can pay the “amount of tax due along with such default surcharge and penalty as determined under the provisions of Sales Tax Act, 1990”

If such purpose is simple retribution and deterrence, then there is no need to make the fine dependent with the amount or loss of tax involved

If fine under criminal prosecution is to be dependent with amount or loss of tax, such a criminal construct must be prefaced with mandatory requirement of assessment of tax through civil adjudication provided under section 11 of Sales Tax Act, 1990

This precondition is the minimum Constitutional requirement to ensure fair trial and due process under Articles 4 and 10-A of the Constitution.

Two pre requisites for invoking provisions of sections 33 and 37-A of Sales Tax Act, 1990 are: dependence of fine on the “amount or loss of tax involved” and window of compoundability which is available to taxpayer, who can pay the “amount of tax due along with such default surcharge and penalty as determined under the provisions of Sales Tax Act, 1990”

If such purpose is simple retribution and deterrence, then there is no need to make the fine dependent with the amount or loss of tax involved

If fine under criminal prosecution is to be dependent with amount or loss of tax, such a criminal construct must be prefaced with mandatory requirement of assessment of tax through civil adjudication provided under section 11 of Sales Tax Act, 1990

This precondition is the minimum Constitutional requirement to ensure fair trial and due process under Articles 4 and 10-A of the Constitution.

Seven out of nine claimed cheques (cheques-in-question) not having been presented before the bank, were produced by the respondent/plaintiff in his statement recorded before the Trial Court

Trial Court decreed recovery of whole amount regarding nine cheques

Validity

Record reveals that appellant/defendant in his written statement denied the factum of outstanding amount, and that the respondent/plaintiff through a representative of concerned branch of the Bank, being one of his (plaintiff's) witnesses, only succeeded to produce(get exhibited) two cheques (amounting to Rs. 5 lac each) issued by the appellant/respondent which were dishonored; the remaining seven cheques (cheques-in-question) were produced by the respondent/plaintiff in his statement recorded before the Trial Court

Admittedly, there was no evidence on record produced by the plaintiff for presentment of the cheques-in-question to the concerned branch of the Bank

Section 5 of the Negotiable Instruments Act, 1881, ('the Act 1881') defines "bill of exchange" and section 6 of the Act 1881 defines "cheque" as a bill of exchange drawn on specified banker and not expressed to be payable otherwise than on demand

It appears that dishonor by non-acceptance or non-payment gives rise to an immediate right to recourse against the drawer of the bill of exchange

Section 68 of the Act 1881 deals with all negotiable instruments including cheques while S. 73 of the Act 1881deals with the cheque and provides the time of presentment and its consequence; this section further provides that a cheque must be presented for payment within reasonable time after its delivery to the holder

It is the mandate of the Act 1881 that all negotiable instrument should be presented for payment within a reasonable time

According to section 72 of the Act 1881, the drawer of the cheque is the principle debtor and he cannot avoid his liability towards the holder except in case of non-presentment of a cheque within a reasonable time

Sections 72 & 84 of the Act 1881 stipulate that unless a cheque is presented for payment within a reasonable time of its issue no right to recover the amount would accrue

Presentment of a cheque, being a bill of exchange, is a condition precedent in order for a payee to charge the drawer/maker of a cheque; thus, for filing suit under O. XXXVII, C.P.C. based on a cheque, it is necessary to present the said cheque to the bank, as presentment under the provisions of the Act 1881 is the cause of action, in a suit based upon such an instrument

In the present case, admittedly there was no evidence of presentment of the seven cheques (in-question) having been exhibited/produced by the plaintiff in his statement before the Trial Court to the concerned branch of the Bank, therefore, to the said extent suit of the respondent/plaintiff under O. XXXVII, C.P.C., was not maintainable, however to the extent of two cheques duly exhibited [total amount of Rs.10,00,000/- (ten lac only)], the impugned judgment was maintained

High Court set-aside impugned judgment/ decree to the extent of said seven cheques and suit to that extent filed by the respondent/plaintiff was dismissed

However, impugned judgment/ decree to the extent of two duly exhibited cheques was maintained

Appeal filed by the defendant, was partly allowed.

Seven out of nine claimed cheques (cheques-in-question) not having been presented before the bank, were produced by the respondent/plaintiff in his statement recorded before the Trial Court

Trial Court decreed recovery of whole amount regarding nine cheques

Validity

Record reveals that appellant/defendant in his written statement denied the factum of outstanding amount, and that the respondent/plaintiff through a representative of concerned branch of the Bank, being one of his (plaintiff's) witnesses, only succeeded to produce(get exhibited) two cheques (amounting to Rs. 5 lac each) issued by the appellant/respondent which were dishonored; the remaining seven cheques (cheques-in-question) were produced by the respondent/plaintiff in his statement recorded before the Trial Court

Admittedly, there was no evidence on record produced by the plaintiff for presentment of the cheques-in-question to the concerned branch of the Bank

Section 5 of the Negotiable Instruments Act, 1881, ('the Act 1881') defines "bill of exchange" and S. 6 of the Act 1881 defines "cheque" as a bill of exchange drawn on specified banker and not expressed to be payable otherwise than on demand

It appears that dishonor by non-acceptance or non-payment gives rise to an immediate right to recourse against the drawer of the bill of exchange

Section 68 of the Act 1881 deals with all negotiable instruments including cheques while S. 73 of the Act 1881 deals with the cheque and provides the time of presentment and its consequence; this section further provides that a cheque must be presented for payment within reasonable time after its delivery to the holder

It is the mandate of the Act 1881 that all negotiable instrument should be presented for payment within a reasonable time

According to S. 72 of the Act 1881, the drawer of the cheque is the principle debtor and he cannot avoid his liability towards the holder except in case of non-presentment of a cheque within a reasonable time

Sections 72 & 84 of the Act 1881 stipulate that unless a cheque is presented for payment within a reasonable time of its issue no right to recover the amount would accrue

Presentment of a cheque, being a bill of exchange, is a condition precedent in order for a payee to charge the drawer/maker of a cheque; thus, for filing suit under O. XXXVII, C.P.C. based on a cheque, it is necessary to present the said cheque to the bank, as presentment under the provisions of the Act 1881 is the cause of action, in a suit based upon such an instrument

In the present case, admittedly there was no evidence of presentment of the seven cheques (in-question) having been exhibited/produced by the plaintiff in his statement before the Trial Court to the concerned branch of the Bank, therefore, to the said extent suit of the respondent/plaintiff under O. XXXVII, C.P.C., was not maintainable, however to the extent of two cheques duly exhibited [total amount of Rs.10,00,000/- (ten lac only)], the impugned judgment was maintained

High Court set-aside impugned judgment/ decree to the extent of said seven cheques and suit to that extent filed by the respondent/plaintiff was dismissed

However, impugned judgment/ decree to the extent of two duly exhibited cheques was maintained

Appeal filed by the defendant, was partly allowed.

Question as to whether the respondents/Department could unilaterally modify/amend the tax return of the petitioners without issuing any prior Show-Cause Notice to them

Argument of the respondents / Department was that the amounts for which the petitioners ought to have claimed refund in terms of S. 10(1) of the Sales Tax Act, 1990 and the amounts which they could have brought forward as credit in terms of the first proviso to S. 10(1) of the Sales Tax Act, 1990 were mentioned in the notices impugned as the petitioners had wrongly reflected the amounts in Cl. 6 which could not be brought forward

Validity

Petitioners were deprived of the due process to which they were entitled as notices-in-question did not depict the provision of law under which they had been issued

Similarly, the provision of law under which action was required to be taken against the petitioners was also absent in the notices-in-question

Petitioners ought to know the action that was proposed to be taken against them and the notices to be issued to the petitioners must make full disclosure of the provisions of the Sales Tax Act, 1990, that were attracted to the case enabling them to counter the same

Impugned action of the respondents in unilaterally amending/modifying the tax returns could not sustain

Same was the case with the impugned notices

High Court struck down the impugned notices declaring the action of the respondents in making amendments/modifications in the tax return of the petitioner relating to Cl. 6 to be without lawful authority and of no legal effect, however, the respondents were at liberty to issue a proper Show-Cause Notice to proceed with the inquiry relating to the amounts mentioned in Cl. 6 of the tax returns

Constitutional petition, filed by registered persons, was allowed accordingly.

Neither any emerging situation had been pointed out by the trial court regarding appointment of receiver, nor any persuasive reasons for exercising of powers under O. XL, C.P.C., had been divulged in the impugned order

Trial Court despite observing that the power to appoint a receiver is to be sparingly used by the courts of law, accepted the application filed by the respondents while relying upon emails despite the fact that same could not be referred until and unless they were proved in terms of the provisions of Electronic Transactions Ordinance, 2002, read with Arts. 46- A & 78-A of the Qanun-e-Shahadat, 1984

In case of any substance in the application for appointment of receiver, the Trial Court could order for inquiry and if there had been any report to the effect that the subject matter of the suit was at the verge of waste or peril, it could appoint a receiver but the same could not be done on the basis of the apprehension of the respondents

First appeal against order was accepted, in circumstances.

Where target date for performance of agreement to sell was not fixed, limitation of three years would run from the date of vendor's refusal

Limitation being mixed question of law and facts, effect of

Recording of evidence where limitation is a mixed question of law and facts

Rejection of plaint

Pre-requisites

Precessor-in-interest of the petitioners (deceased vendor) in 1984 entered into agreement to sell with the respondents/plaintiffs (vendees) and target date thereof for performance of the same was fixed as six months from the date of agreement

Performance of the agreement to sell was delayed due to some clerical mistake in revenue record due to which sale deed could not be executed

Suit was filed after eleven years when the petitioners allegedly refused performance two days prior to its institution

Reason for such day cited by the respondents was that an ancillary dispute had been pending at revenue forum

Trial Court rejected the plaint deeming the suit time-barred and lacking cause of action

Whereas, appellate court accepted the appeal and remanded the matter for decision on merits

Successors of the original vendor challenged the decision of the appellate court in the present civil revision petition

Pivotal point for determination before the High Court was as to "whether the plaint in a suit for specific performance of an agreement to sell (stipulating only a six-month time frame without a specific date), could be rejected under Order VII, Rule 11 of C.P.C. on the sole ground of limitation, despite the plaintiff's/respondent's (vendee) express assertion that the petitioners/vendors refused to perform their part just two days before the suit was filed; and whether such plea of limitation, being dependent on disputed facts, required framing of issues and recording of evidence rather than outright rejection of the plaint"

Held: Under O.VII, R.11, C.P.C. the plaint could be rejected only if from the statement in plaint, it did not disclose any cause of action or was barred by law or was incorrectly valued for the purpose of court fee or insufficiently stamped and on being required to make up the deficiency within time allowed to the plaintiff to make up the deficiency, if plaintiff failed to do the needful within the time allowed, then plaint could be rejected, which was not the case in the present matter

In the present case, perusal of plaint showed that the same disclosed a cause of action

The plaintiffs/respondents alleged the execution of sale agreement, payment of earnest money, delivery of possession and the execution of document and that they were ready and willing to perform their part

The agreement did not mention any specific date for the performance of obligation thereunder rather a period of six months was mentioned in the agreement which did not mean any specific date

Being so, the period of limitation in this case prima facie fell in second part of Art. 113 of Limitation Act, 1908 which provided for three years from the date when the vendee had the notice of refusal to perform by the vendor

In the present case theplaintiffs/respondents claimed that two days before the filing of suit the petitioners/defendant refused to perform the agreement and this being so ex-facie the plaint could not be rejected on the plea of limitation

It needed to be proved by evidence as to when plaintiffs/respondents had notice of refusal to perform the agreement by petitioners/defendants

As to the argument of limitation the objection being mixed question of law and fact the same could not be decided without evidence

The view taken by the appellate court was in accordance with law, whereby, the judgment and decree rejecting the plaint was set aside and the matter was remanded to Trial Court for decision on merits

Revision petition being without any substance was dismissed, in circumstance.

In the present case the cause of action claimed in the suit had its genesis in initiation of criminal proceedings by the respondent, but mere fact that prosecution instituted by respondent/defendant against the plaintiff ultimately failed, could not expose the former to malicious prosecution, unless it was proved by the plaintiff that the prosecution was initiated without any reasonable and probable cause and it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect.

Mere malice alone is not enough, there must also be shown to be absence of reasonable and probable cause and it is to be proved by the plaintiff that the prosecution was initiated without any justifiable reason and it was due to malicious intention of the defendant and not with the mere intention to carry law into effect.

Petitioner filed suit seeking declaration, mandatory and permanent injunction, possession, and cancellation of documents against the respondents, wherein, during its pendency, he moved an application for conditional withdrawal of the suit on the ground of bona fide mistakes and formal defects in the plaint, expressing his intention to file a fresh suit

Trial Court, without issuing notice to the respondents or recording any reasons, allowed the application and granted permission for filing a fresh suit on the same day

Aggrieved by this order, respondent Nos. 1 to 3 filed civil revision petition before the District Court, which was allowed

Revisional court set aside the Trial Court's order for being arbitrary and passed without judicial application of mind or affording the respondents an opportunity of hearing, in violation of O. XXIII, R. 1(2)(b), C.P.C.

Meanwhile, the petitioner had already filed a fresh suit in pursuance of the earlier permission granted by the Trial Court

Petitioner, therefore, filed the present Constitutional petition under Article 199 of the Constitution, seeking setting aside of the revisional court's order in order to continue with his fresh suit

Legal point for determination by the High Court was as to "Whether the Trial Court's order permitting withdrawal of the suit with liberty to file a fresh one, without recording reasons or affording notice and hearing to the respondents, was legally sustainable under O. XXIII, R. 1(2)(b) of C.P.C.?

Held: Careful examination of the application filed by the petitioner/plaintiff reflected that withdrawal of the suit was sought conditionally to bring a new suit on the pretext that there were certain formal defects in the plaint

Such formal defects were not disclosed in the application but the Trial Court granted application as prayed, without hearing the other side, or getting satisfied that the application fulfilled the conditions set forth in O. XXIII, R. 1(2), C.P.C., which from face if it offended the fundamental rights of the respondents as to fair trial under Art. 10-A of the Constitution

Trial Court did not even require the petitioner/plaintiff to reveal such formal defects in the plaint so as to examine that whether such defects were curable and could be rectified by invoking O. VI, R. 17, C.P.C. through amendments in the plaint

Petitioner/plaintiff sought cancellation of registered documents which was a time related cause and limited the filing of suit within specified time

But the Trial Court did not apply its judicial mind and allowed the application in a very casual manner, without assigning reasons or examining the plaint to ascertain the nature of defects necessitating filing of fresh suit, thus the order passed by Trial Court lacked application of judicious mind, thus was untenable under the law

Moreover, perusal of plaint of the fresh suit revealed that it was not a case of filing a fresh suit, but it was a case for seeking amendment in the pleadings under O. VI, R. 17 of C.P.C. which could be sought at any stage of the proceedings

The order of revisional court resulted in revival of the original suit filed by the petitioner/plaintiff at the stage where it was dismissed as withdrawn

Trial Court exercised its discretion without applying judicial mind and allowed the application in an arbitrary manner thus order of Trial Court was not within the premise of law and was rightly set aside by the revisional court, thus no case was made out for interference in order passed by the revisional court

Certain directions were made by the High Court while disposing of the present Constitutional petition

Petition was disposed of, in circumstances.

Pre-requisites for issuance of writ of quo warranto are that the (i) the office in question must be public and created by a statute or Constitution itself, (ii) such office must be a substantive one and not merely the function of an employment of a servant at the will during the pleasure of others; and (iii) there must have been a contravention of the Constitution or a statute or statutory instrument by appointing a person to that office in as much as the holder of the post does not possess the prescribed qualification and/or the appointing authority is not the competent authority to make the appointment and/or the procedure prescribed by law has not been followed.

Under section 417(2) of the Cr.P.C., appeal against acquittal in a case instituted upon a (private) complaint, can only be filed upon grant of special leave to appeal by a High Court

Thus, seeking special leave to appeal is a condition precedent for challenging an order of acquittal passed by any court, other than a High Court.

For an act to be classified as terrorism, it must have a political, religious, or ideological motivation aimed at destabilizing society as a whole

While heinous crimes may shock society, if they are driven by personal motives, they do not qualify as terrorism

Mere severity of an offence does not make it terrorism

In order to determine whether an offense falls within the scope of Section 6 of Anti-Terrorism Act, 1997 ('ATA'), it is imperative to have a glance over the allegations levelled in the FIR, the case record, and the surrounding circumstances

It is crucial to assess whether the elements of the alleged offence are connected to the objectives outlined in Sections 6, 7, and 8 ATA

Assessment of whether a specific act constitutes terrorism depends on examining its motivation, objective, design, or purpose

It is essential to ascertain whether the act in question has instilled a sense of fear and insecurity in the public, a specific community, or any sect.

Whether the increase in the fair market value of the subsidiary company's shares held by the taxpayer-respondent as long-term investment was taxable under the head "income from business" in terms of section 18(1)(d) of the Income Tax Ordinance, 2001

Held, that section 18(1)(d) of the Income Tax Ordinance, 2001 prescribes a two-pronged test for bringing income under the head "income from business" ; first is that any benefit or perquisite must have a fair market value, not necessarily whether it can be converted into money; second is that a person may have received the value of that benefit or perquisite during or under a past, present, or prospective business relationship

Coexistence of both is necessary and the absence of one of them will not constitute income from a business

As regards the first constituent component of the test, the notional gain derived by the taxpayer from the increase in the fair market value of its shares may in appropriate circumstances be counted as "benefit"

However, no definite answer need be given on this, in the facts and circumstances of the present case

With respect to the second constituent component of the test, the principle to be applied for purposes of present case is whether the investment which led to the notional gain was connected with the carrying on of the taxpayer's business

It bears mentioning that enhanced fair market value of any benefit or prerequisite may be so assessable under Section 18(1)(d) of the Income Tax Ordinance, 2001, where what is done is not merely a realisation or change of investment, but an act done in what is truly the carrying on, or carrying out, of a business

In the present case, the Revenue has not brought any material on record which discloses definite information that the taxpayer had made the said investment in furtherance of its business or in connection therewith

Given this scenario, the relationship between the taxpayer and its subsidiary may be held to be contractual, and governed by articles of association

So viewed, the facts of this case do not meet the test for section 18(1)(d) of the Income Tax Ordinance, 2001, and thus, the taxpayer's gain from its investment cannot be treated as business income in terms of section 18(1)(d)

Furthermore, according to section 122(5) of the Income Tax Ordinance, 2001, two conditions have to be complied with before a Taxation Officer acquires jurisdiction to issue notice under section 122(9) in respect of an assessment beyond the period of five years from the end of the relevant financial year

These two conditions are: firstly, that the Taxation Officer must have obtained definite information from the audit or otherwise; and secondly, that on that basis he must also be satisfied that income chargeable to tax had escaped assessment or total income has been undervalued, or assessed at too low a rate, or has been the subject of excessive relief or refund or any amount under a head of income has been misclassified

In the present case the two conditions of section 122(5) were not adhered to while assuming jurisdiction to amend the original assessment order

Show cause notice and the order amending the original assessment speaks elaborately that the Taxation Officer had not acquired any definite information subsequent to the original assessment order

On the contrary, the Taxation Officer based on the information provided in the return and documents attached to it by the taxpayer, proceeded to amend the assessment

Taxation Officer had only made reanalysis of existing information and came to a conclusion that was different from the one that was drawn in the original assessment order

Notice issued under section 122(9) of the Income Tax Ordinance, 2001 was without jurisdiction, and the order passed in consequence of it was also void

Appeal was dismissed accordingly.

Doner should be compos mentis, meaning thereby a person who is of sound mind and has the mental capacity to understand the legal implications of his act of making a gift, and he must be of age and also the owner of the property intended to be gifted; the thing gifted should be in existence at the time of making hiba; the thing gifted should be such that benefitting from it is lawful under the Shariah; the donor must be free from any coercion/duress or undue influence while making a gift; the thing gifted should come into the possession of the donee himself or through his representative/guardian for an effective hiba

Under Muslim law, the constituents and components of a valid gift are tender, acceptance and possession of property

It is also obligatory that the donor divest and dissociate himself from the dominion and ownership over the property of the gift and put into words his categorical intention to convey the ownership to the donee distinctly and unambiguously with the delivery of possession of the property and ensure that donee has secured physical ascendency over the property to constitute the delivery of possession.

Conditions mentioned under sections 18 to 21 of the Land Acquisition Act, 1894 ('the Act') have to be fulfilled before the Collector is empowered to make the reference, and then alone the Court has any jurisdiction to entertain the reference

Matter (of landowner seeking enhancement for compensation of his land) goes to Court only upon a reference made by the Collector

It is only after such a reference is made that the Court is empowered to determine the objections made by a claimant to the award

In fact, it is the order of reference which provides the foundation of the jurisdiction of the Court to decide the objections referred to it

Section 18(1) of the Act does not authorise or permit or provide for a person aggrieved, to make an application directly to the Court.

Whether the increase in the fair market value of the subsidiary company's shares held by the taxpayer-respondent as long-term investment was taxable under the head "income from business" in terms of section 18(1)(d) of the Income Tax Ordinance, 2001

Held, that section 18(1)(d) of the Income Tax Ordinance, 2001 prescribes a two-pronged test for bringing income under the head "income from business" ; first is that any benefit or perquisite must have a fair market value, not necessarily whether it can be converted into money; second is that a person may have received the value of that benefit or perquisite during or under a past, present, or prospective business relationship

Coexistence of both is necessary and the absence of one of them will not constitute income from a business

As regards the first constituent component of the test, the notional gain derived by the taxpayer from the increase in the fair market value of its shares may in appropriate circumstances be counted as "benefit"

However, no definite answer need be given on this, in the facts and circumstances of the present case

With respect to the second constituent component of the test, the principle to be applied for purposes of present case is whether the investment which led to the notional gain was connected with the carrying on of the taxpayer's business

It bears mentioning that enhanced fair market value of any benefit or prerequisite may be so assessable under Section 18(1)(d) of the Income Tax Ordinance, 2001, where what is done is not merely a realisation or change of investment, but an act done in what is truly the carrying on, or carrying out, of a business

In the present case, the Revenue has not brought any material on record which discloses definite information that the taxpayer had made the said investment in furtherance of its business or in connection therewith

Given this scenario, the relationship between the taxpayer and its subsidiary may be held to be contractual, and governed by articles of association

So viewed, the facts of this case do not meet the test for section 18(1)(d) of the Income Tax Ordinance, 2001, and thus, the taxpayer's gain from its investment cannot be treated as business income in terms of section 18(1)(d)

Furthermore, according to section 122(5) of the Income Tax Ordinance, 2001, two conditions have to be complied with before a Taxation Officer acquires jurisdiction to issue notice under section 122(9) in respect of an assessment beyond the period of five years from the end of the relevant financial year

These two conditions are: firstly, that the Taxation Officer must have obtained definite information from the audit or otherwise; and secondly, that on that basis he must also be satisfied that income chargeable to tax had escaped assessment or total income has been undervalued, or assessed at too low a rate, or has been the subject of excessive relief or refund or any amount under a head of income has been misclassified

In the present case the two conditions of section 122(5) were not adhered to while assuming jurisdiction to amend the original assessment order

Show cause notice and the order amending the original assessment speaks elaborately that the Taxation Officer had not acquired any definite information subsequent to the original assessment order

On the contrary, the Taxation Officer based on the information provided in the return and documents attached to it by the taxpayer, proceeded to amend the assessment

Taxation Officer had only made reanalysis of existing information and came to a conclusion that was different from the one that was drawn in the original assessment order

Notice issued under section 122(9) of the Income Tax Ordinance, 2001 was without jurisdiction, and the order passed in consequence of it was also void

Appeal was dismissed accordingly.

For an accused challenging any adverse order relating to his prayer for the grant of bail before arrest, the accused may not surrender to the police, and still undertake to appear and surrender in the Supreme Court at the time of hearing of his petition for the grant of bail before arrest, to render the petition maintainable

For a convict challenging his conviction and sentence of imprisonment, he has to first surrender to undergo the term of the sentence awarded, so as to render his petition (before the Supreme Court) as maintainable

In the present case, since the appellants had been convicted and sentenced to imprisonment, they both had to first surrender to serve their sentences of imprisonment, in order for their present petitions for leave to appeal to be maintainable under the Supreme Court Rules, 1980

Accordingly, appeal, being not entertainable, was dismissed.

Judicial Officer relieved from Judicial Service of a Province placed at disposal of Judicial Service of Islamabad Capital Territory

"Lien"

Scope

Termination of Lien

Pre-requisites

Judicial officer who earlier served in Balochistan Subordinate Judiciary, was presently posted at Islamabad under Islamabad High Court

Judicial Officer (Additional District and Sessions Judge) was denied ante-dated promotion, when he was Judicial Officer on the payroll of Balochistan High Court (BHC)

Plea of Appellant (Judicial Officer) that he was entitled to such ante-dated promotions in the light of the judgment of the Balochistan High Court / Balochistan Subordinate Judiciary Services Tribunal (SJT) dated 25th April 2016 reported as PLD 2016 Bal. 56 ('judgment-in-question')

Validity

Record revealed that the appellant had not availed any lien from the BHC, rather in the concerned relieving notification, it was clearly mentioned that "they were hereby relieved without lien in parent Department/High Court of Balochistan"

"Lien" means the title of a civil servant to hold substantively a post on which he has been confirmed under R. 2(g) of Balochistan Civil Servants (Confirmation) Rules, 2012

Under R.6(2) of Balochistan Civil Servants (Confirmation) Rules, 2012 , an employee on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post

For termination of lien of a permanent civil servant from his original department, three prerequisites have to be satisfied which are (i) the civil servant concerned has joined other department on regular basis; (ii) joining the other department is result of his selection; (iii) the selection is through a regular selection process

If the said conditions are satisfied and a civil servant has consented for such joining, he would have no claim about his lien in the previous department after expiry of probationary period

Subordinate-Judiciary Service Tribunal, on examination of the case of appellant on said touchstone of the criterion for termination of lien, viewed that the appellant could not retain lien in BHC after joining the services under the IHC on regular basis

He was neither transferred on temporary basis nor was on deputation, whereupon, he would be entitled to the benefit as permissible to an employee on lien

Appellant had failed to make out a case in his favour

Appeal, filed by judicial officer, being merit-less, was dismissed.

Cheque is a negotiable instrument under the Negotiable Instruments Act, 1881 and without negotiation of the parties on an agreement, no such suit could be filed

Suit under O. XXXVII of the C.P.C has to be filed along with supporting negotiable instruments of the parties, instrument through a contract or through any relationship, which must be express, implied or in written form or oral.

Record showed that four nail swabs were extracted from both hands of deceased which were dispatched to the office of Forensic Science Agency for DNA analysis

According to report, the left-hand nail swabs of deceased matched with the DNA profile of three individuals out of whom accused was described as one of the possible contributors

DNA evidence could attain admissibility if prosecution satisfactorily proved the process of sampling, safe custody and onward transmission to the office of Forensic Science Agency and the foregoing process was called in the field of forensic as doctrine of analysis and it stressed for flawless sampling, correct packing, safe custody and above all free from doubt transmission to the office of expert

Any defect in the said process makes even the positive DNA report doubtful in nature forcing the Courts to discard it from consideration

Appeal against conviction was accordingly allowed.

Contention of the petitioner was that respondent had been re-employed without any public interest and that too by creating blockade in promotion prospects of the petitioner

Validity

Re-employment of a retired civil servant is an exception to the rule that a civil servant is to retire upon attaining the age of superannuation, which is only available in cases of absolute necessity in the public interest and in order to eliminate element of arbitrariness in re-employing a retired civil servant, the process is to be transparent and the reasons for such necessity must be recorded in writing

Civil servant, who is re-employed after his retirement, could not glorify himself as had been done by retired respondent through pleadings in his written comments, rather it was for appointing authority to record reasons as to why such re-employment was considered imperative for the public interest

No material had been brought on record to satisfy the High Court that respondent's appointment after retirement was a matter of necessity or that the public interest would be at stake had he not been appointed

Nothing was on the record to indicate the fulfillment of the essential perquisite of "non-availability of suitably qualified or experienced officers to replace the retiring officer" or that the re-employment of respondent would subserve the public interest

Decision making process by the appointing authority in terms of S.14 of the Civil Servants Act, 1973 was justiciable under exercise of the powers of judicial review in terms of Art.199 of the Constitution

In such process of judicial review, in absence of the material or reasons which make out an exceptional case justifying a civil servant's re-employment after retirement, such appointment would be liable to be struck down

Petitioner, being the senior most serving Professor in the Department had legitimate expectation to be appointed as the Head of the Department

Re-employment of respondent had resulted in the usurpation of the petitioner's right to be considered for appointed as the head of the said department

Constitution petition was allowed accordingly.

Pre-requisites of a valid gift are: (i) offer by the donor; (ii) its acceptance by the donee; and (iii) the delivery of possession

Valid gift comes into existence as soon as the three ingredients are completed.

If performance of a single Talb is skipped or not proved, the superstructure and edifice of the suit for possession through pre-emption falls on the ground.

According to the established norms and standards, the presence of at least two potential bidders is indispensable to carry out an auction in which competitive bidding is a key factor for free and transparent public auction

Furthermore Executing Court ought to order the publication of proclamation in at least one widely circulated daily newspaper.

Registration of trademark (or for that matter, registration of firm name, or product labelling or packaging) is not necessary for the applicability of the provisions of section 10(2)(d) of the Competition Act, 2010

Neither the common law action of passing-off requires such registration nor does the language of section 10(2)(d) of the Act provide for any such requirement.

According to the established norms and standards, the presence of at least two potential bidders is indispensable to carry out an auction in which competitive bidding is a key factor for free and transparent public auction

Furthermore Executing Court ought to order the publication of proclamation in at least one widely circulated daily newspaper.

According to the established norms and standards, the presence of at least two potential bidders is indispensable to carry out an auction in which competitive bidding is a key factor for free and transparent public auction

Furthermore Executing Court ought to order the publication of proclamation in at least one widely circulated daily newspaper.

To invoke the original jurisdiction of the Supreme Court, a petitioner must establish the violation of his Fundamental Right(s), the enforcement of which is a matter of importance to the public at large

In the absence of either element, the Constitutional petition cannot be entertained.

Registration of trademark (or for that matter, registration of firm name, or product labelling or packaging) is not necessary for the applicability of the provisions of Section 10(2)(d) of the Competition Act, 2010

Neither the common law action of passing-off requires such registration nor does the language of Section 10(2)(d) of the Act provide for any such requirement.

Pre-requisite of identification via TIP is that the person, who is likely to identify perpetrators of crime, must give a detailed description such as features, height, and complexion of perpetrators in advance

Giving details with promptitude far earlier to carrying out TIP is mandatory; otherwise, TIP loses its evidentiary value.

Three important prerequisites for a valid (oral) gift are an explicit offer of gift by donor; acceptance of the gift by the donee; and voluntary delivery of possession to the donee under the very oral gift transaction

Said ingredients are mandatory in nature and absence of proof of any ingredient renders the very gift transaction as invalid.

If an attorney intends to exercise right of sale/gift in his favour or in favour of next of his kin, he/she has to consult the principal before exercising that right

If an attorney on the basis of power of attorney, even if "general", purchases the property for himself or for his own benefit, he should firstly obtain the consent and approval of principal after acquainting him with all the material circumstances.

Permission of the Chairman National Accountability Bureau (NAB) or any officer of NAB duly authorized by the Chairman NAB must be obtained by the investigating officer before the accused can be arrested, and there must be reasonable grounds and substance on the basis of which permission to arrest is to be granted.

For claiming an adverse possession a party claiming adverse possession admits the ownership of other side, but on the basis of long uninterrupted hostile possession claims the adverse possession.

To succeed in a suit for pre-emption the first and foremost condition was that plaintiff had to plead that before filing of suit he had fulfilled the requirements of Talabs and thereafter he had to prove the performance of Talb-e-Muwathibat and Talb-e-Ishhad

For proving Talb-e-Muwathibat there must be specific time, date and place of knowledge pleaded in the plaint as well as in the notice of Talb-e-Ishhad

Thereafter plaintiff was required to prove the same by proving the gaining of knowledge at specific place, time and date followed by sending of notice attested by two truthful witnesses through registered post where the postal facilities were available and thereafter to prove the delivery of notice to the addressee/vendee/­defendant or its refusal by producing a Postman in the Court while producing evidence to prove the pleadings.

Such protection can only be claimed when the following conditions are fulfilled: first, the transferor is the ostensible owner; second, he is so by the consent, express or implied, of the real owner; third, the transfer is for consideration; and fourth, the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.

Only that which resides in the mind of a non-Muslim while reading the Holy Quran is not sufficient to constitute the offence

In order to attract section 295-B, P.P.C., there must be an overt act (actus reus) that shows that the copy of the Holy Quran or its extract has been defiled, damaged or desecrated or it has been put to use in a derogatory manner or for an unlawful purpose.

What runs inside the mind of an Ahmadi, while reading the Kalima does not constitute an offence punishable under section 295-C, P.P.C. unless there is some overt act on his part that defiles the sacred name of the Holy Prophet Muhammed (peace be upon him).

Whoever acquired property during the pendency of action was held bound by the judgment that might be made against the person from whom he derived his title even though such a purchaser was not a party to the action and had no notice of the pending litigation

Such rule, however, was subject to certain conditions: firstly, the suit must be relating to a specific immovable property in which any rights of the parties were directly and specifically in question; secondly, the suit should be pending at the time when the alienation in favour of the third person had been made; and thirdly, neither the suit itself nor the outcome thereof be collusive, fraudulent and/or was meant to entrap, deceive, and defraud an innocent transferee.

For grant of temporary injunction three factors have to be satisfied which were prima facie case; balance of convenience; and irreparable loss

Injunction being discretionary equitable relief could not be granted when equally efficacious relief was obtainable in any other usual mode or proceeding.

For maintaining a Reference the requirement of S.56 of Stamp Act, 1899 was such that if the Collector acting under S. 31 or 40/41 of the 1899 Act visualized a doubt as to the amount of duty with which any instrument was chargeable, he may draw up a statement of the case and refer it with its own opinion thereon for the decision of the Chief Revenue Authority

On receipt of such statement the Authority shall then consider the case and send copy of its decision back to the Collector who shall proceed to assess and charge the duty in conformity with such decision of the Chief Revenue Authority

Question could only arise for the purposes of a Reference if a Collector acting under S.31, or 40 or 41 of 1899 Act had any doubt as to the amount of duties with which any instrument was chargeable and in consequence whereof he would draw up statement of the case and refer it with his own opinion for an onward decision by the Chief Revenue Authority or in the alternate Chief Revenue Authority himself had taken a notice.

Petitioner was inducted into service against the post of Headmaster (BPS-18) on 24.12.1996 in the Federal Government Educational Institutions (Cantts/Garrison)

In the year 2004 he was transferred to the Federal Government on deputation basis and he was repatriated to the parent department vide an Office Memorandum dated 20.10.2010; he had hardly served in his parent department as member of the teaching staff when he was again transferred in the year 2011 to the Federal Secretariat on deputation

Petitioner was neither an officer of Management Group nor of Secretariat Group as provided in Cl. 3 of the Office Memorandum No.2/2/75-ARC dated 12-04-1976 [Manual on Appointment, Promotion and Transfer (Edition-2013), Appendix A, Page No. 280]

Moreover he didn't belong to any of the 'Occupational Groups' in terms of Cl. (viii) of R. 2 of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990; therefore he could not be considered for appointment through horizontal movement

Moreover there was nothing on record to show that the petitioner was ever recommended by the controlling Ministry of the parent department to be considered for such appointment

Therefore the petitioner had no vested right to be considered for induction/absorption in the Secretariat Group as per prescribed eligibility criteria and conditions laid down in the relevant laws and policies, despite his best service record

Petitions for leave to appeal were dismissed.

Person seeking the specific performance of a contract must first show that he was ready, able and willing to perform his obligations under the contract

Although the law did not require that the balance sale consideration must be tendered or deposited in court, but such tender/deposit helped establish that the buyer was not at fault

Supreme Court observed that invariably the value of money depreciated over time and that of land appreciated; that courts adjudicating such cases should not be unmindful of such reality and should endeavor to secure the interest of both parties; that in a suit for specific performance of land, if the seller/vendor had refused to receive the sale consideration, or any part thereof, it should be deposited in court and invested in some government protected security (such as Defence or National Savings Certificates); that in case the suit was decreed the seller would receive the value of money which prevailed at the time of the contract and in case the buyer lost he could similarly retrieve the deposited amount.

While seeking such an alteration/correction, a declaration was sine qua non which could only be issued by the Civil Court of competent jurisdiction on the basis of evidence produced during the proceedings regarding the authenticity of the subject matter.

Petitioner was inducted into service against the post of Headmaster (BPS-18) on 24.12.1996 in the Federal Government Educational Institutions (Cantts/Garrison)

In the year 2004 he was transferred to the Federal Government on deputation basis and he was repatriated to the parent department vide an Office Memorandum dated 20.10.2010; he had hardly served in his parent department as member of the teaching staff when he was again transferred in the year 2011 to the Federal Secretariat on deputation

Petitioner was neither an officer of Management Group nor of Secretariat Group as provided in Cl. 3 of the Office Memorandum No.2/2/75-ARC dated 12-04-1976 [Manual on Appointment, Promotion and Transfer (Edition-2013), Appendix A, Page No. 280]

Moreover he didn't belong to any of the 'Occupational Groups' in terms of Cl. (viii) of R. 2 of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990; therefore he could not be considered for appointment through horizontal movement

Moreover there was nothing on record to show that the petitioner was ever recommended by the controlling Ministry of the parent department to be considered for such appointment

Therefore the petitioner had no vested right to be considered for induction/absorption in the Secretariat Group as per prescribed eligibility criteria and conditions laid down in the relevant laws and policies, despite his best service record

Petitions for leave to appeal were dismissed.