Conditions

Dispute pertained to denial of input tax credit to taxpayers in exercise of authority under S. 8(1)(ca) of Sales Tax Act, 1990 when the tax was duly paid but the supplier had been delinquent in depositing such sales tax in the government treasury

Validity

When conditions prescribed by S. 7 of Sales Tax Act, 1990 for purposes of input tax adjustment are satisfied and payment for such supply has been made in compliance with the requirements of S. 73 of Sales Tax Act, 1990 the purchaser is entitled to seek input tax adjustment unless the same is prohibited by S.8 of Sales Tax Act, 1990

System of rule of law is based on individual responsibility and liability and a taxpayer cannot be made to suffer due to delinquency of another, unless the taxpayer is complicit in such wrongdoing

Sales tax is charged in VAT mode and where a purchaser has paid the tax due for the value addition attributable to a supplier, as part of consideration for the supply paid in accordance with requirements of S. 73 of Sales Tax Act, 1990 it cannot be assumed that the Legislature intended to subject such purchaser to double-taxation for the supplier's failure to deposit the sales tax received from the purchaser in the treasury

Purchaser, in paying input tax to supplier as part of consideration for supply, acts in accordance with requirements imposed by provisions of Sales Tax Act, 1990 and where the supplier, who receives such sales tax payment as an agent on behalf of the State, fails to deposit the same with the treasury, it is the supplier that is at fault and ought to be penalized by tax authorities and not the purchaser

Once a purchaser discharges its obligation to pay input tax to a supplier in the manner prescribed by law, there accrues a proprietary entitlement to benefit from such tax payment by seeking its adjustment against output tax due from him, when not otherwise prohibited by S. 8 of Sales Tax Act, 1990 and such entitlement cannot be denied due to any wrongdoing or delinquency on the part of supplier that the purchaser is neither complicit with nor has any control over

High Court declared that any contrary interpretation of Ss. 8(1)(ca) & 8A of Sales Tax Act, 1990 would be in breach of Arts. 4, 10A, 23, 24 & 25 of the Constitution

Reference was disposed of accordingly.

Reinstated Assistant Librarian filed appeal (appellant) against his posting as Senior Computer Operator instead of his initial appointment / cadre

Held: Undisputedly , the appellant joined the post of Assistant Librarian at relevant District before the appointment of other lady/employee, who was appointed against the post which fell vacant on the dismissal from service of another employee, who was later on reinstated into service by the Lahore High Court

In such a scenario, the Lahore High Court, rightly advised the District and Sessions Judge (respondent) to deal with the matter in accordance with Rule 7.3 (Administrative Instructions) Chapter VII, Volume-I, Part-I of Civil Service Rules, Govt. of the Punjab ('Rule 7.3')

The provision of said R. 7.3 made it abundantly clear that the post falling vacant due to dismissal of a civil servant will be filled substantively with the condition that the arrangements made will be reversed if the dismissed Government servant is reinstated on appeal

But astonishingly, the respondent instead of following the said R. 7.3 as well as the advice of the Lahore High Court, in letter and spirit again wrote a letter to Lahore High Court, seeking guidance to adjust the appellant against the post of Senior Computer Operator, which act of the respondent was against the specific provision of the Rule 7.3 as well as the advice of the Lahore High Court

Regarding the change of cadre from Assistant Librarian to Senior Computer Operator, the departmental authority should have followed the law on the subject instead of acting on its wishes

The application so submitted by the appellant and action taken on it, being violative of the R. 7.3 was not tenable in the eyes of law

If law requires a thing to be done in a specific manner, it should be done in that manner and not otherwise

Punjab Service Tribunal set-aside the impugned orders passed by the respondents, declaring the same as illegal and unlawful not being sustainable, and directed respondent to treat the appellant as Assistant Librarian at his initial/original appointment while strictly adhering to the provisions of R. 7.3 (Administrative Instructions) Chapter VII, Volume-I, Part-1 of Civil Service Rules, Government of the Punjab

Service appeal was allowed accordingly.

Both the parties instituted their respective suits, which litigation resulted in decreeing the suit of the respondents and dismissing the suit of the petitioners

Suit-land was allotted, as a tenant, to petitioners' father, the brother of father of respondents ('the predecessor') under the Colonization of Government Lands Act, 1912 ("the Act 1912")

Claim of the respondents was that the predecessor had sold the property to their father (brother of the predecessor) by way of an oral sale by appearing before the concerned Mukhtiarkar

Validity

In terms of S. 19 of the Act, 1912, which stipulated that no such sale between a tenant and a buyer could be held to be absolute and immediate until the mandatory period as prescribed therein had been completed and the entire instalments had been paid and right of occupancy had been made absolute in the name of the tenant by concerned Authority and the same could only be materialized after the allottee had acquired a permanent right of occupancy

Though such a sale could be entered into by two private parties and there was no legal bar on such a sale; however, the same could only be a deferred sale and as and when the owner / seller had become its absolute owner first by making payment of all instalments and then by completing the minimum mandatory period as a tenant, only then the property could be sold and a transfer could be affected

Any transfer before acquiring of such right would be void and could not be acted upon

Any sale entered into by a tenant who had been allotted a land under the Act, 1912, to a proposed buyer, would not ipso facto be void or hit by S. 19 of the Act, 1912, if two basic conditions were met; first being, it had to be admitted by the parties that the same was merely a private sale, though possession was being handed over; however, it was a deferred sale and land could not be conveyed or transferred; and second, the sale would only be complete or performed when the tenant / seller had acquired his rights of occupation after payment of instalments and completion of period as provided therein

For a sale to be valid of such a land, these two conditions were to be met and had to be part of the agreement between the parties

In the present case, the question was not that whether the sale by itself was void for having been entered into by violating the express terms of S. 19 of the Act, 1912; but the real question was as to how on the same date when land was allotted to the predecessor an oral sale was entered into as claimed; and even if so how and in what manner the land could have been conveyed or transferred by way of a mutation entry by the concerned Mukhtiarkar

At the most it could have remained as an agreement of sale; but in no manner it could have materialized into a sale deed or for that matter transfer of the same by way of a mutation entry

When considered that from day one the father of respondent (buyer) had denied the petitioners being legal heirs of his brother (predecessor) and the manner in which he had claimed sale of the land and its subsequent transfer in his name, all appeared to be a sham

It was but a managed transaction with no legal basis as the Mukhtiarkar was not authorized to record the mutation entry

Even otherwise, a mutation entry by itself was not a title document and was merely a record of fiscal purpose, which by itself did not confer any right, title or interest and the burden of proof lay upon the person, in whose favor it was mutated to establish the validity and genuineness of transfer in his/her favor

If the foundation was illegal and defective then entire structure built on such foundation, having no value in the eyes of law, would fall on the ground

Mutation confered no title, whereas, once a mutation was challenged, the party that relied on such mutation(s) was bound to revert to the original transaction and to prove such original transaction which resulted in the entry or attestation of such mutation in dispute

High Court set aside impugned judgments and decrees passed by both the Courts below and declared the suit filed by the petitioners as decreed

Revision was allowed, in circumstances.

Record revealed that the plaintiff / respondent, as documentary evidence, exhibited photocopies of the documents (the agreement, bank deposit slip, Bank Statements, the cheque and dishonor slip)

Documents must be proved by primary evidence

In certain cases, the documents can be proved through the secondary evidence in terms of Art. 76 of the Qanun-e-Shahadat, 1984 ('the Order 1984')

Secondary evidence is an exception to general rule and only meant for the purpose to cater to a genuine need and hardship

It is not to be allowed in routine or without complying with the requirements mentioned under Arts. 76 & 77 of the Order, 1984

Contents of the documents can only be proved through secondary evidence if the conditions mentioned under Art. 76 of the Order 1984 are available which should be satisfied first

Said Article provides an alternate mode and method of proving the documents which for various reasons could not be produced

When primary evidence is not available or produced, Law permits secondary evidence which remedy is designed for the protection of person, who despite best efforts is unable, from the circumstances beyond his control, to produce the primary evidence

Where a person is unable to bring the original documents despite reasonable efforts, the Court is competent to admit secondary evidence but at the same time, it should be kept in mind that the said benefit is not intended fora person who intentionally or with some ulterior motive or sinister objects, refuses to produce the documents in court which is in his possession, power or control

Court is competent to determine whether sufficient ground has been made out or not for the admission of secondary evidence which discretion is to be exercised keeping in the parameters contained in Art. 76 of the Order 1984 and facts and circumstances of each case as secondary evidence is given to prove the existence, contents of documents and nothing more

Impugned judgment on the face of it was short of pre-requisites on the subject

High Court set-aside the impugned ex-parte judgment and decree, and remanded the case to the Trial Court for decision on merits with the direction that the application for leave to appear and defend the suit filed by the appellant/defendant would be deemed to have been allowed on the basis of surety bond having been tendered before the High Court/Appellate Court

Appeal, filed by the defendant, was allowed accordingly.

Record revealed that the plaintiff / respondent, as documentary evidence, exhibited photocopies of the documents (the agreement, bank deposit slip, bank statements, the cheque and dishonor slip)

Documents must be proved by primary evidence

In certain cases, the documents can be proved through the secondary evidence in terms of Art. 76 of the Qanun-e-Shahadat, 1984 ('the Order 1984')

Secondary evidence is an exception to general rule and only meant for the purpose to cater to a genuine need and hardship

It is not to be allowed in routine or without complying with the requirements mentioned under Arst. 76 & 77 of the Order 1984

Contents of the documents can only be proved through secondary evidence if the conditions mentioned under Art. 76 of the Order 1984 are available which should be satisfied first

Said Article provides an alternate mode and method of proving the documents which for various reasons could not be produced

When primary evidence is not available or produced, law permits secondary evidence which remedy is designed for the protection of person, who despite best efforts is unable, from the circumstances beyond his control, to produce the primary evidence

Where a person is unable to bring the original documents despite reasonable efforts, the Court is competent to admit secondary evidence but at the same time, it should be kept in mind that the said benefit is not intended for a person who intentionally or with some ulterior motive or sinister objects, refuses to produce the documents in court which is in his possession, power or control

Court is competent to determine whether sufficient ground has been made out or not for the admission of secondary evidence which discretion is to be exercised keeping in the parameters contained in Art. 76 of the Oreder 1984 and facts and circumstances of each case as secondary evidence is given to prove the contents of documents and nothing more

Impugned judgment on the face of it was short of pre-requisites on the subject

High Court set-aside the impugned ex-parte judgment and decree, and remanded the case to the Trial Court for decision on merits with the direction that the application for leave to appear and defend the suit filed by the appellant/defendant would be deemed to have been allowed on the basis of surety bond having been tendered before the High Court/Appellate Court

Appeal, filed by the defendant, was allowed accordingly.

Firstly, if a request for permission to file a fresh suit is accompanied with a request for withdrawal or abandonment of claim or a part thereof, the Court has authority either to decline such request or allow the permission

Secondly, in the event of refusal, the dismissal simpliciter should not be ordered, but the request for permission alone should be declined , which would mean that the suit shall continue

Thirdly and more importantly, it would be problematic if the request is not declined in express and clear words , yet the suit is 'dismissed as withdrawn' without recording any reason

Such an order would be bad for being silent on giving reasons and would be more amenable to be put at naught if assailed; though would become final if not challenged

Fourthly and finally, for the sake of safe administration of justice, in regard to such an order it would be deemed and implied that the Court has found it fit for permission to file a fresh suit

There must be a request for permission to bring a fresh suit; in other words , where no such request was made, the withdrawal would be simpliciter alone, with no room for implied permission

In the present case, the petitioner did not withdraw his constitutional petition with permission to bring a fresh one

Petitioner was precluded from instituting the (present) fresh petition in respect of the same subject matter (appointment as a school teacher); thus, present petition filed by the petitioner was not maintainable

Constitutional petition was dismissed, in circumstances.

Firstly, if a request for permission to file a fresh suit is accompanied with a request for withdrawal or abandonment of claim or a part thereof, the Court has authority either to decline such request or allow the permission

Secondly, in the event of refusal, the dismissal simpliciter should not be ordered, but the request for permission alone should be declined, which would mean that the suit shall continue

Thirdly and more importantly, it would be problematic if the request is not declined in express and clear words , yet the suit is 'dismissed as withdrawn' without recording any reason

Such an order would be bad for being silent on giving reasons and would be more amenable to be put at naught if assailed; though would become final if not challenged

Fourthly and finally, for the sake of safe administration of justice, in regard to such an order it would be deemed and implied that the Court has found it fit for permission to file a fresh suit

There must be a request for permission to bring a fresh suit; in other words , where no such request was made, the withdrawal would be simpliciter alone, with no room for implied permission

In the present case, the petitioner did not withdraw his constitutional petition with permission to bring a fresh one

Petitioner was precluded from instituting the (present) fresh petition in respect of the same subject matter (appointment as a school teacher); thus, present petition filed by the petitioner was not maintainable

Constitutional petition was dismissed, in circumstances.

By allowing the application for rectification filed by the tax-payer, Appellate Tribunal Inland Revenue ('Tribunal') reversed its order and accepted the appeal preferred by the tax-payer

Applicant /Department filed reference before the High Court contending that the Tribunal unlawfully assumed jurisdiction of review in the garb of rectification which was confined to correction of any clerical or arithmetical error apparent on the face of record whereas review entailed re-consideration of the matter on discovery of new facts or patent error of law occurring in the order or judgment sought to be reviewed

Validity

While exploring the nature and scope of jurisdiction qua rectification under S. 57 of the Sales Act, 1990 ('the Act, 1990'), it would be advantageous to mention that the said section was substituted by the Finance Act, 2013 ; so the comparison of the text of provisions of S. 57 of the Act, 1990 prior and after its substitution by the Finance Act, 2013, envisaged that the scope of rectification, which was previously confined to correction of clerical or arithmetical errors in any assessment, adjudication, order or decision, had been enlarged to rectify any mistake in the order which was apparent from the record

However, the essential condition for the exercise of such power was that such mistake should be apparent from the record i.e. the mistake which might be seen floating on the surface and did not require investigation or further evidence

Any mistake in the order which was not patent and obvious from the record , could not be termed to be rectifiable

Although the power of the rectification visualized under S.57 of Sales Tax, 1990, might not cover a full-fledged review of an order on discovery of new evidence or fresh legal ground becoming available after the decision sought to be corrected

However, the failure to adjudicate upon a substantial plea taken or controversy raised, when materially affects outcome of the case, it does constitute a mistake apparent from the record which is rectifiable under S.57 of the Sales Act, 1990, subject to satisfaction of other conditions and limitations specified therein

Mistake is not rectifiable when the decision sought to be rectified is already assailed in appeal or Tax Reference which merged into the final decision of that higher forum

In the present case, relevant paragraph of the impugned order, revealed that the respondent raised a categorical plea that 10% unadjusted input tax was available for adjustment in the very next tax period which, being a substantial right of the taxpayer, could not be denied

This being a substantial plea, materially affecting outcome of the case i.e. determination of tax liability of the respondent, was required to be adjudicated upon and failure to do so by the Tribunal constituted a mistake obvious and apparent from the record, thus was rectifiable, which prompted the respondent to file an application for rectification under S.57 of the Sales Act, 1990

Tribunal had allowed said application of rectification while recording valid reasons

Applicant /Department could not point out any illegality or infirmity in the impugned order passed by the Tribunal

Reference filed by the Department was dismissed, in circumstances.

"Intelligible differentia" was a factor that distinguished or in different state or class from another which was capable of being understood

Persons might be classified into groups and such groups might be treated differently, if there was a reasonable basis for such difference

Article 25 of the Constitution forbad legislation, classification or differentiation which rested upon reasonable grounds of distinction

Principle of equity did not mean that every law must have universal application to all the persons who were not by nature, attainment or circumstances in the same position

Varying needs of different classes of persons required different treatment

In order to pass the test for permissible classification, two conditions must be fulfilled: firstly, the classification must be founded on an intelligible differentia which distinguished persons/things that were grouped together from others left out of the group; secondly, the differentia must have a rational nexus with the object sought to be achieved by the statute in question.

Grant of pre-arrest bail to a person accused of committing a non-bailable offence is quite different to that after arrest

Competent court while exercising its discretion has to look if there is any element of eminent mala fide floating on the surface of the matter/case, implication and the arrest of the accused is tainted with malice out of ulterior motives and inevitable, irresistible maltreatment resulting into humiliation and unjustified harassment.

Held , that for the application of O. XVII, R. 3 of C.P.C, 1908 in order to close the right of a party to produce evidence, conditions were to be met that: at the request of a party to the suit to adduce evidence, time must have been granted with a specific warning that the said opportunity would be the last and failure to adduce evidence would lead to the closure of right to produce evidence; and the same party, on the date which was fixed as the last opportunity, failed to produce its evidence.

Strong reasons are required to believe that despite availability of modern medical technology, life saving drugs, advance medical treatment and care, accused still requires treatment which is not generally available

Medical opinion should be so explicit in nature that further detention of accused in jail would be hazardous to his life

Bail on medical ground can be granted under S.497, Cr.P.C., if the court reaches to the conclusion on the basis of medical report that ailment with which the accused is suffering is such that it cannot be properly treated while accused is in jail.

Petitioner being employee of defunct Sindh Agricultural Supplies Organization was absorbed in Excise and Taxation Department as Inspector (BS-14)

Excise and Taxation Department repatriated the employee to determine his status whether his initial appointment was as Junior Clerk (BS-5) or Assistant (BS-11)

Validity

Person who had been rendered surplus could be appointed by transfer to any post in a department or office in the Government subject to his eligibility and qualification to such office

Such person was to be appointed to a post of equivalent or comparable basic scale and if such post was not available then to a post of lower basic scale

Seniority of such person to the post was to be reckoned at the bottom of the seniority list from the date of such appointment

Non-civil servant could not be appointed by transfer to any other department or organization controlled by the Government to a post which had restricted transfer under R.3(2) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974

Competent authority while making appointment by transfer could not lose sight of the conditions prescribed under Rr. 4, 6-A & 7 of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974

Petitioner-employee belonged to Sindh Agricultural Supplies Organization whose employees were non-civil servants

Petitioner could not be allowed to be absorbed/retained in Excise and Taxation cadre

Non-civil servant could not be conferred the status of a civil servant, which employee had acquired by absorption in Excise and Taxation Department

No department could be allowed to absorb any employee of another cadre

Order passed by the competent authority for absorption/retaining the employee in Excise and Taxation cadre was not sustainable in law

Competent authority was directed by the High Court to take decision whether employee's initial appointment in defunct department was as Junior Clerk or Assistant and pass appropriate order as provided under R. 9-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974

Constitutional petition was disposed of in circumstances.

Issuance of cheque was to be with dishonest intention; purpose of issuance of cheque should be to repay a loan or to fulfil the obligation which was to be dishonoured on presentation.

Employee applied for allotment of said accommodation but her request was not responded she filed suit for declaration to the effect that she was entitled for allotment of official accommodation allotted to her father

Suit was dismissed concurrently

Validity

Service of employee had been regularized when her father retired from service

Employee (plaintiff) was "Federal Government Servant" within the meaning of R.2(g) of Accommodation Allocation Rules, 2002

Plaintiff was living at the suit accommodation with her father at the time of his retirement and she had applied for allotment within a period of six months from the date of her father's retirement

Plaintiff employee was entitled to be given the benefit of R.15(2) of Accommodation Allocation Rules, 2002

Impugned judgments and decrees passed by the Courts below were not based on correct appreciation of law as well as evidence on record, which were set aside

Plaintiff employee was entitled for allotment of suit accommodation

Revision was allowed, in circumstances.

Written instrument in any case did not create a gift but same would be a mere piece of paper to record a past transaction

Beneficiary of gift was bound to prove the components of gift besides execution of document as well

Nothing was on record with regard to any date or month and specific name of the witnesses of transaction

Only photocopy of gift deed was brought on record and no effort was made to prove the same through secondary evidence

Defendant did not examine any of the marginal witnesses, scribe and stamp vendor of alleged deed

No attempt was made for identification of signatures of alleged deceased witness of impugned gift deed

Nothing was on record as to why evidence of stamp vendor as well as scribe was withheld in the present case

Only one of the beneficiaries was examined and the other did not appear to face the test of cross-examination

Nothing was on record to corroborate the factum that offer of gift was ever made which was accepted and possession was changed in lieu thereof

No evidence had been produced on behalf of plaintiff to prove the original transaction as well as construction of subsequent documents to acknowledge the same

If a document was tendered in evidence without objection even then it could not be treated as original having been signed and written by the persons who purported to have written or signed the same unless the writing and signatures were proved in terms of Arts. 78 & 79 of Qanun-e-Shahadat, 1984

Nothing was on record as to why deceased donor deprived of the other legal heir from the suit land

Beneficiaries had failed to discharge the onus duly shifted upon them

Impugned gift transaction was forged and fictitious one which was not to be perpetuated only at the point of limitation

Interlocutory order having attained finality could not be re-agitated

Law of limitation or principle of res judicata was not applicable in the matter of inheritance

Revision was dismissed accordingly.

High Court in its constitutional jurisdiction could not interfere in the findings on facts by the competent forum until and unless there was mis-reading and non-reading of evidence or perversity, illegality or irregularity in the said proceedings.

High Court in its constitutional jurisdiction could not interfere in the findings on facts by the competent forum until and unless there was mis-reading and non-reading of evidence or perversity, illegality or irregularity in the said proceedings.

When no-confidence motion was fixed petitioner should have joined his colleagues/members to satisfy his right as successful Tehsil Nazim but he did not face the House

Provincial Government had been informed of the vote of no-confidence against the petitioner which had been successfully passed

Constitutional petition was not maintainable in circumstances

Petitioner was directed to handover the official vehicle to the concerned authorities

Constitutional petition was dismissed accordingly.

Petitioner/ex-husband contended that both the Courts below had wrongly granted dower to respondent/ex-wife as no condition could be attached to the right of husband to divorce his wife

Respondent/ex-wife contended that she was entitled for recovery of Rs. 100,000/- as incorporated in Column No. 19 of Nikahnama

Validity

Islam provided right to the husband to divorce his wife free from any encumbrance and such right could not be abridged with conditions, as the relationship between husband and wife could continue only with their free consent and tie of marriage was beyond any restrictions

In the present case, marriage was dissolved, by a divorce deed by the husband without intervention of the Court

Claim of the wife solely rested upon the entry in Nikahnama, which in no way could override the Injunctions of Islam

Both the Courts below had erred in law while holding wife entitled to claim Rs.100,000/- on account of divorce

High Court set aside impugned judgments passed by two Courts below

Constitutional petition was allowed accordingly.

In order to ensure that the accused was actually mixed up with 8/9 persons or dummies, their names, parentage, address and occupation was to be incorporated in the memo of identification test

If such persons or dummies were under trial prisoners, then the particulars of the case in which they were arrested was to be incorporated.

Plaintiff employee had independently applied for allotment of an official accommodation and her name had been included in general waiting list

Plaintiff employee was not yet entitled to allotment of official accommodation as per general waiting list

Rule 15(2) of Accommodation Allocation Rules, 2002 had restricted the allotment of official accommodation to a serving spouses or children living with the allottee

Relative including son or daughter who did not fall within the definition of 'family' had been excluded from being allotted the accommodation under R.15(2) of Accommodation Allocation Rules, 2002

Person claiming a right was required to fulfill all the conditions prescribed for allotment of an official accommodation under Accommodation Allocation Rules, 2002

Plaintiff employee was neither dependant on the allottee i.e. her mother nor had become entitled for allotment on the basis of general waiting list

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

Revision was dismissed in circumstances.

Subsequent suit would be barred if previous and present suit had arisen out of the same cause of action; both the suits must be between the same parties or their representatives and previous suit must have been decided on merits

Defendant was not to be vexed twice for the same cause

Provisions of O.II, R.2, C.P.C were penal in nature and same precluded the plaintiff to sue for the portion of claim or for the remedy so omitted

In the present case, ground of possession of house was available at the time of filing of first suit but plaintiff omitted the same

Trial Court had rightly applied the provisions of O.II, R.2, C.P.C. along with S.11 of the Code

Plea which could be taken in the first suit could not be taken in the subsequent suit.

Retracted confession could not be based as a ground for conviction of accused unless the same was corroborated by strong pieces of evidence and appeared to be voluntary, without any inducement, promise, duress or coercion

If retracted confession appeared to be voluntary and true, it was supposed to be the best evidence against the maker (accused) and could be made sole basis for conviction, without looking for corroboration.

Conditions for representative suit were that persons in the same must be numerous; they must be interested in the suit; permission of court should be obtained and notice must be given to the persons whom the same was sought to represent.

Plea of petitioner was that appointment of respondent as Principal of the College was without lawful authority and of no legal effect

College was a private educational institution

Words "person" and "public office" mentioned in Art.199 of the Constitution

Scope

Medical College did not fall within the ambit of "person" as provided in Art.199(1)(a)(iii) & (1)(b)(iii) of the Constitution as it was neither creation of any statute nor regulated by any Rule or Regulation framed by the Federal or Provincial Government or any local authority

For issuance of writ of quo warranto petitioner was bound to establish that respondent was holding a "public office" and he was not qualified to hold the said office and appointing authority was not competent to appoint him and his appointment was illegal or irregular being in violation of prescribed rules

Any employee of the College could not be deemed to hold a "public office"

Person holding an office in connection with his business entrepreneur or any private institution could not be termed as "holding the public office"

Since respondent was Principal of Private College so he did not hold or occupy a "public office"

Eligibility of respondent for holding the post of the Principal had neither been questioned nor challenged

Writ of quo warranto could not be issued in factual controversy

No rule, regulation or statute had been violated in appointment of respondent as Principal of the College

Petition for writ of quo warranto was dismissed in circumstances.

Purchaser/vendor/transferee of an immovable property could only avail the protection provided under S.41 of Transfer of Property Act, 1882 if he fulfilled the conditions

Transferor of suit property, in the present case, was neither true owner nor the ostensible owner of the same but was identifier of Pardanasheen ladies who were true owners and sellers of the disputed property

Fact that consideration amount did not reach the true owners would not affect the transferee's position of making payment of sale consideration for the disputed property

Plaintiff was not bona fide purchaser of suit property and he did not exercise reasonable care for availing protection provided under S.41 of Transfer of Property Act, 1882

Plaintiff had not been able to prove the condition precedent for being entitled to avail the protection provided under S.41 of Transfer of Property Act, 1882

If a single condition precedent was not fulfilled then the purchaser could not avail the protection provided under S.41 of Transfer of Property Act, 1882

Plaintiff had failed to prove agreement to sell as per mandate of Art.79 of Qanun-e-Shahadat, 1984

Plaintiff was not entitled for exercise of discretion in his favour for specific performance of contract

Impugned judgment and decree passed by the Trial Court were based on correct appreciation of evidence

Appeal was dismissed in circumstances.

Principles.

Trial Court dismissed the suit on the ground that plaintiff did not produce attesting witnesses of alleged agreement to sell

Contention of plaintiff was that defendant did not appear and there was no denial to the execution of agreement to sell and he was not required to produce attesting witnesses of agreement to sell

Validity

Plaintiff was required to examine at least two attesting witnesses of agreement to sell to prove its execution and to get a decree for its specific performance

Decree could not be passed without recording evidence simply on defendant's non-appearance and upon verification of the plaint

Document could be said to be admitted or denied only when defendant appeared before the court and made statement to such effect

Proviso to Art. 79 of Qanun-e-Shahadat, 1984 did not apply where there was no defendant's statement at all

Defendant did not appear before the Trial Court in the present case and it could not be said that agreement to sell was not denied relieving the plaintiff to prove the same

Absence of defendant did not absolve the plaintiff to prove the execution of agreement to sell by calling its two attesting witnesses

Plaintiff had not produced attesting witnesses of agreement to sell and Trial Court was justified in declining to issue decree in the present case

Plaintiff was beneficiary of alleged agreement to sell and he was bound to prove the same as per law

Appeal was dismissed in circumstances.

Burden of proof with regard to genuineness of transaction with an ignorant/illiterate/parda observing lady and document allegedly executed by such a lady would lie on the person who claimed the transaction or under the document

Beneficiary of such document was bound to prove and satisfy the court that document was executed by an ignorant/illiterate/parda observing lady; that she had complete knowledge and full understanding about the contents of such documents: that such document/deed was read over to her and terms of the same were adequately explained to her and she had independent and disinterested advice in the matter before entering into such transaction and executing the document.

Landlord, while making a request for fixation of fair rent was not bound to satisfy all the factors mentioned in S.8 of Sindh Rented Premises Ordinance, 1979

Rent Controller was authorized to fix the fair rent of a property even upon fulfilment of one condition

Rent Controller had exclusive domain to fix fair rent keeping in view the rent paid in similar situation with regard to properties located in adjoining area apart from rise in cost of construction; repair charges and imposition of new taxes

If landlord was able to bring home his case with regard to the fixation of fair rent being paid by other tenants in respect of similar placed properties then rent paid by those tenants in the adjoining locality would be considered to be "fair rent"

Rent Controller while fixing the fair rent had taken into consideration all the instances and rent agreements furnished by the landlord with regard to the premises being let out in the vicinity

Tenant had not furnished even a single piece of evidence in his defence with regard to the fair rent available in the vicinity

No infirmity was pointed out in the impugned orders passed by the courts below

Tenant was directed by the High Court to pay rent as fixed by the Rent Controller from the date of filing of rent application

Constitutional petition was dismissed in circumstances.

Public servant committed or attempt to commit criminal misconduct, criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery of valuable security, forgery for the purpose of cheating, using as genuine a forged document, abetment, common intention, and acquires, converts, possesses, uses or transfers property knowingly or having reason to believe that such property proceed to crime

Bail, grant of

Statutory delay

Conditions

Bail to accused on the ground of statutory delay could be granted subject to such conditions that the delay in conclusion of trial had not occasioned on account of an act or omission on the part of accused or any person acting on his behalf; that accused was previously non-convict offender for an offence punishable with death or imprisonment for life; that in opinion of court the accused was not hardened, desperate or dangerous criminal and that accused was not involved in an act of terrorism punishable with death or imprisonment for life

If said conditions were not applicable to the case of accused, he was entitled for bail as a matter of right and could not be denied bail under the discretionary powers of the court

Accused was allowed bail in circumstances.

Eviction petition was allowed against which appeal was filed wherein tenant moved application for production of additional evidence which was dismissed by the Appellate Court

Validity

Memo. of appeal was silent with regard to subsequent rent agreement

Pleadings of the parties were benchmark of their respective claims and subsequent rent agreement was to be mentioned in the memo. of appeal

Additional evidence could be adduced when the Court from whose decree/order appeal was preferred had refused to admit said evidence which ought to have been admitted and Appellate Court required any document to be produced enabling it to pronounce judgment or for any other substantial cause

Appellate Court had rightly dismissed the application for production of additional evidence

Constitutional petition was dismissed in circumstances.

Admissibility of document was to be distinguished from proof required for determining the execution and genuineness of the same

Registered sale deed by itself without proof would not confer any right

If neither original sale deed was produced nor permission was obtained for production of secondary evidence or any witness was examined then sale deed was not proved

No steps were taken to prove the contents of sale deed by leading primary or secondary evidence

Said document could not be taken into consideration

Mere tendering a document in evidence would have no evidentiary value unless its contents were proved according to law

Court was competent to look into the document and to command upon its true nature or otherwise

Non-production of witness to prove document was fatal to the case of the party with the legal consequence that the recitals of document could not be said to have been proved

Simply because no objection was raised to the production of document would not render the same as proved

Presumption of truth was attached to registered document but if its contents were challenged, the onus would shift on the beneficiary to prove the same by examining attesting witnesses

Evidentiary value of certified copy of sale deed without seeking prior permission from the Court would lose its importance

Copy of said document would not be sufficient to prove the same

No presumption of correctness could be attached to the certified copy of sale deed which was not admissible in evidence as condition precedent to the admission of secondary evidence had not been fulfilled

Beneficiary of sale deed was bound to examine marginal witnesses, identifier and Sub-Registrar was to prove valid execution of disputed sale deed

Beneficiary would not succeed to prove his case in absence of such evidence

Where execution of registered document was disputed, no presumption of truth would attach to said document and its valid execution had to be proved

If best evidence was withheld by the beneficiary inference had to be drawn against him

Entire case of plaintiff was based upon sale deed but he neither pleaded the same in his plaint nor produced it with his plaint or claimed any specific relief on the footing of said sale deed

Evidence on non-pleaded case could not be looked into and should be ignored

Alleged sale deed had not been proved in circumstances

No illegality or irregularity had been committed by the courts below

Both the courts below had exercised jurisdiction vested in them on sound reasons which was neither perverse nor arbitrary for inequitable

Revision was dismissed in circumstances.

Conditions for pre-arrest and post arrest bail are distinct and well set out.

For S. 426(1A)(c), Cr.P.C., to be applicable, conditions which must be satisfied were that delay in the decision of appeal, had not been occasioned by an act or omission of accused; that appeal had not been decided within two years of his conviction and that accused, was not a previously convicted offender for an offence punishable with death, or imprisonment for life, or was a person who was hardened, desperate or dangerous criminal; or was accused of an act of terrorism, punishable with death or imprisonment for life.

Petitioner sought direction to authorities to investigate into the affairs of official and private respondents and if they would found involved in commission of any offence with regard to land in question, then reference was to submit in the Court

Validity

Disputed questions of facts were agitated and it was yet to be determined by competent forum/Court, having jurisdiction in such like cases, as to whether fraud or forgery as alleged was committed by official respondents with the collusion of private respondents in respect of land in question or not

Any aggrieved person while invoking Constitutional jurisdiction of High Court under Art. 199 of the Constitution was required to establish a clear legal right, which should be beyond any doubt

Controversy should not contain disputed facts nor should require recording of evidence and determination of title or any right in immovable property which could come within the domain of civil Court or the forum provided for such purpose

In the light of alleged forgery and fraud legal right and entitlement of petitioner had become controversial

Disputed questions of facts as raised by petitioner could not be decided in Constitutional jurisdiction

Aggrieved person had to resort to statutory remedy as provided under relevant statute instead of directly approaching High Court by invoking Constitutional jurisdiction in terms of Art. 199 of the Constitution in a routine manner

Such remedy was discretionary in nature and was to be exercised with caution sparingly, only in extreme circumstances in order to secure the ends of justice, when there was no other alternate remedy or forum available for such purpose

Petition was dismissed in circumstances.

Neither constitution of Majlis at the time of performance of Talb-i-Muwathibat nor alleged jumping demand had been proved by the pre-emptor on the relevant date, time and place

Pre-emptor had failed to prove notice of Talb-i-Ishhad in accordance with law

Both Talb-i-Muwathibat and Talb-i-Ishhad which were sine qua non for the success of a pre-emption suit stood disproved

Suit of plaintiff was bound to fail

Both the courts had committed illegality and material irregularity while decreeing the suit

Impugned judgments and decrees passed by both the courts below were set aside

Suit filed by the plaintiff was dismissed

Revision was accepted in circumstances.

Talb-i-Muwathibat must be performed in a Majlis after receiving information with regard to sale transaction.

Conditions to be fulfilled in order to claim set off were; Suit must be for recovery of money; money must be recoverable from plaintiffs or all the plaintiffs by the defendant or all the defendants; both the parties must fill the same character in the defendant's claim to set off as they fill in plaintiff's suit; defendant claim must be for an ascertained sum of money, claim of set off should not exceed the pecuniary limits of the jurisdiction of the court and claim must be made at the first hearing.

For obtaining consent of Advocate-General for filing suit under S.92, C.P.C. conditions were that there must exist a trust for a public purpose of a charitable or religious nature; plaint must either allege that there was a breach of Trust or that the directions of the court were necessary for the administration of the Trust; suit must be a representative one on behalf of the public and not for the assertion of the personal rights of a party and relief claimed must be one of the reliefs enumerated in S. 92, C. P. C.

Provision of S.92, C. P. C. was with regard to the internal management/affairs/disputes of the Trust as well as breach of the trust

Suit could only be filed with the consent of Advocate -General in such eventuality

Object of S. 92, C. P. C was to regulate the institution of suit for the relief enumerated in the said provision so that the trust and the rights of public in such Trust were safeguarded

If reliefs mentioned in the said provision were not claimed then suit could be filed without the consent of Advocate-General-Present suit was filed by the Trust itself in a private capacity against the defendant who allegedly had occupied the suit property of the Trust and not for the reliefs mentioned in S.92, C.P. C

Plaintiff was not bound to obtain prior consent of Advocate-General for filing the present suit

Trial Court had illegally and erroneously declared that the suit property was not the property of the Trust

Impugned order passed by the Trial Court was set aside and application for rejection of plaint was dismissed

Trial . Court was directed to decide the matter afresh on merits and in accordance with law

Appeal was allowed in circumstance

Identification parade was necessary in criminal cases to ascertain whether the witnesses could identify the culprits, who were allegedly seen by them during occurrence

One of the conditions in said test, was that before said test, the witnesses had no occasion or opportunity to see the culprits in the custody of the Police, or any one else

Identification parade, could be conducted under the supervision of a Magistrate, who was required to conduct the same, according to the High Court Rules and Orders

Identification parade duly conducted under the supervision of a Magistrate, had a great value and strength; and that strength could not be given to the identification of an accused in the court; for the simple reason that possibility of seeing said accused in the court before the said identification could not be ruled out

Identification of accused produced as an accused in the court, years after the event, could not satisfy the requirements of law for proving the identity of the culprits.

Conditions for gift were declaration of gift by the donor; acceptance of gift by the donee and delivery of possession of corpus.

Section 37-A(2) of Income Tax Ordinance, 2001 determines the 'holding period', which in turn determines the rate to be applied to the capital gain made on the disposal of a security'

Said 'holding period' is with reference to a 'security' and not otherwise

Term 'security' has been given a specific meaning for purposes of S. 37-A of Income Tax Ordinance, 2001; therefore, the term can only have, and be given, its defined meaning

Relevant instrument in question must be a 'security' both on the date on which the same are acquired and on the date the same are disposed of, and both of said conditions must be met and are applicable for there to be a 'holding period' within the meaning of S. 37-A(2) of Income Tax Ordinance, 2001.

Condition precedent for filing review application was discovery of new and important matter or evidence which was not within the knowledge of applicant or could not be produced by him at the time when the decree was passed or order was made or if there was some mistake or error apparent on the face of record.

Relief for cancellation of instrument was based upon the administration of preventive justice for the fear that the instrument might be vexatiously or injuriously used by the defendant against the plaintiff when evidence to impeach it might be lost or that it might through a cloud or suspicion over the title or interest of plaintiff

Conditions for exercise of jurisdiction under S. 39 of Specific Relief Act, 1877 were that the instrument was void or voidable and plaintiff had reasonable apprehension that such instrument if left outstanding might cause him serious injury

Court might grant this relief of preventive justice if it was proper to grant in the circumstances of the case

Remedy under S. 39 of Specific Relief Act, 1877 was to remove a cloud upon the title by removing a potential danger but it did not envisage an adjudication between competing titles

When there was a cloud on the title of plaintiff and an apprehension that if such instrument was left outstanding then it might be a source of danger then remedy of cancellation of instrument could be sought

When deed or instrument was void ab initio, null and void then it could be treated as a nullity without having to be cancelled or set aside

If instrument was only voidable then it would be necessary to have it set aside or cancelled in order to remove the impediment in the way of plaintiff.

Party seeking interim injunction must show that a prima facie case exists in his favour, the court is to be satisfied that if the injunction is not issued, irreparable damage or injury would be caused to the party, and the balance of convenience is in favour of the grant of injunction.

Provision of O. XXXIX, Rr. 1 & 2, C.P.C. was not meant for introduction of a new situation but the same was meant to preserve the interests and rights and to maintain status quo during pendency of the lis

Provision of S. 54 of Specific Relief Act, 1877 would recognize the right of a party to seek for 'perpetual injunction'

Whenever there was an invasion or threat to invade the plaintiff's right to or enjoyment of property, a perpetual injunction could competently be granted but subject to condition that 'invasion or threat to such right should not be capable of being compensated through pecuniary compensation or by other adequate relief'

No injunction could be granted where 'irreparable loss/injury' was not established as it was one of the most important ingredients out of three required ingredients

Interim injunction could be sought by the defendant when plaintiff had intended to seek 'status quo' during pendency of suit

Prayer for interim injunction was required to be controlled by the main relief which had been sought through pleadings

Plaintiff had not claimed to be in specific possession of suit property nor to have been threatened by the defendant

Plaintiff could not claim interim injunction in absence of such fact beyond his own pleading

Plaintiff was required to plead all facts including invasion or threat to invade to his/her right to enjoy property

Relief sought by the plaintiff was such that if he succeeded in establishing his case, there would be no issue of 'irreparable injury'

Any alienation or third party interest would fall within the meaning of lis pendens and even otherwise could be compensated through adequate relief

When relief which was not sought as main relief by the plaintiff, the same could not be extended as interim injunction

Courts were bound to proceed within prescribed limits of law

Plaintiff had failed to make out a case for grant of injunction

No illegality had been committed by both the courts below

Revision was dismissed, in circumstances.

Whenever there was an invasion or threat to invade the plaintiff's right to or enjoyment of property, a perpetual injunction could competently be granted but subject to condition that 'invasion or threat to such right should not be capable of being compensated through pecuniary compensation or by other adequate relief'.