Mandatory

2022 PLD 840 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.3 & PreambleFamily CourtMandate

Family Court so established under S. 3 of Family Courts Act, 1964 has been conferred clear mandate for expeditious settlement and disposal of family disputes and related matters as per its Preamble.

2022 YLRN 40 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S.376RapeEvidenceDNA testMandatoryScopeMere claim of commission of rape and positive report thereof, alone, is not sufficient to convict a personCommission of offence is completely different while proof of its being committed by specific person is differentDetection of human semen is not the conclusive proof that offence has been committed by specific personDNA test, for such reason, is mandatory in such like cases

Mere presence of human sperm on trouser, in the absence of 'semen matching', is not sufficient to prove charge of rape.

2019 PTD 1030 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 28Civil Procedure Code (V of 1908) O. XXXIX Rr. 1 & 2Conduct of Audit proceedings under S. 28 of the Sindh Sales Tax on Services Act, 2011Application for grant of interim injunctionScopeExercise of discretion of Deputy Commissioner to make selection of taxpayer for auditReasons for such selection to be furnishedMandatoryScope

Taxpayer sought to restrain Department from proceeding on a notice for conduct of audit to taxpayer, inter alia, on the ground that the notice to the taxpayer did not contain any reasons for such selection

Validity

Conduct of audit under S. 28 Sindh Sales Tax on Services Act, 2011 must be on basis of return furnished by the taxpayer

Impugned notice did not disclose any reasons whatsoever and only stated that Deputy Commissioner was empowered under S. 28 Sindh Sales Tax on Services Act, 2011 to conduct audit of taxpayer, which observation did not amount to giving of reasons for selecting the taxpayer

Under Sindh Sales Tax on Services Act, 2011, Deputy Commissioner had to decide to conduct an audit, and said decision could not be made without forming an opinion as to what was to be seen and examined on the return furnished

Law mandated that the Deputy Commissioner had to examine the tax return at least tentatively and then to make a decision based on certain reasons which pointed to some defect or lacuna in said returns or payment of tax by taxpayer, which accordingly required conduct of audit

Decision to conduct audit, without furnishing reasons for the same, was in fact no decision in the eye of law

Discretion under S. 28 of the Sindh Sales Tax on Services Act, 2011 had to be exercised in a judicious manner and Deputy Commissioner while exercising powers under the same should not act arbitrarily, unreasonably and in complete disregard of the rules and regulations

High Court observed that an officer of the Department while exercising powers under S. 28 of the Sindh Sales Tax on Services Act, 2011 was mandatorily required to give reasons for selection for audit of a taxpayer after examining the tax returns

Department was restrained from proceeding on impugned notices

Application for interim injunction was allowed, accordingly.

2014 CLC 706 PESHAWAR-HIGH-COURT Judicial Precedent

S. 24(2)(3)Requirement for deposit of pre-emption amountMandatoryObject

Object of the deposit is to guarantee the vendee against frivolous proceedings on part of the possible pre-emptor and is a token of good faith on pre-emptor's part and such deposit shall also be available for the discharge of the costs.

2013 SCMR 1520 SUPREME-COURT Judicial Precedent

Ss. 8, 9 & 15Eviction petition

Time limit of 2 years stipulated under S.8 of Punjab Rented Premises Act, 2009 for a landlord/tenant to bring a tenancy agreement in conformity with the provisions of the said Act

Mandatory

Depositing of fine by landlord/tenant to bring the tenancy agreement in conformity with the said Act

Question as to whether a landlord/tenant having an existing tenancy could approach the Rent Tribunal for enforcement of his rights under the Punjab Rented Premises Act, 2009, without depositing such fine on the basis that time period of 2 years provided under S. 8 of said Act had not lapsed

Landlord, in the present case, filed eviction petition against tenant (appellant) under S. 15 of Punjab Rented Premises Act, 2009

Plea of tenant was that there was an existing tenancy agreement between the parties, but the same had not been brought in conformity with the provisions of Punjab Rented Premises Act, 2009 as required under S. 8 of the said Act, therefore eviction petition of landlord could not be entertained in terms of S. 9 of the said Act without the landlord first paying the fine to the tune of ten per cent

Rent Tribunal discarded plea of tenant and allowed the eviction petition

Appeal and constitutional petition filed before High Court against order of Rent Tribunal were also dismissed

Validity

Provisions of S. 9 of Punjab Rented Premises Act, 2009 were mandatory not only vis-a-vis the future tenancies, but also with respect to existing tenancies

Where a landlord or tenant moved the Rent Tribunal for the exercise of his right and enforcement of obligations of the opposite side in terms of provisions of Punjab Rented Premises Act, 2009, notwithstanding that a period of two years was available under S. 8 of the said Act to bring the existing tenancies in conformity with the said Act, he was obliged to pay the fine/penalty under S. 9 of Punjab Rented Premises Act, 2009 at the time of filing the petition/application or as directed by the Rent Tribunal

Cases where applications/petitions (of the landlord or the tenant) had been entertained and were pending before the Rent Tribunal or had been finally adjudicated by the Tribunal and were pending in further hierarchy of appeal or in constitutional jurisdiction of High Court or even before the Supreme Court; and the original applicant/petitioner had not paid the fine which he was required to pay, such proceedings should be halted, and the original applicant/petitioner should first be directed to pay/deposit the amount of fine as per S. 9 of Punjab Rented Premises Act, 2009

Amount of fine and the time for it should be exactly specified by the court seized of the matter in the requisite order, and in case of failure to pay such fine, the original application/petition should be dismissed

In the present case, however, pursuant to the eviction order passed against the tenant, possession of suit property had also been taken over by the landlord during pendency of the present appeal in the execution process, therefore, principle of past and closed transaction was applicable to the present case

Appeal of tenant was dismissed accordingly.

2013 PLD 775 SUPREME-COURT Judicial Precedent

Ss. 8 & 9

Time limit of 2 years stipulated under S. 8 of Punjab Rented Premises Act, 2009 for a landlord/tenant to bring a tenancy agreement in conformity with the provisions of the said Act

Depositing of fine by landlord/tenant to bring the tenancy agreement in conformity with the said Act

Mandatory

As to the fate of petitions, applications in relation to cases of existing tenancies which had been entertained by the Rent Tribunal under the (incorrect) impression that a landlord/tenant having an existing tenancy could approach the Rent Tribunal for enforcement of his rights under the Punjab Rented Premises Act, 2009, without depositing such fine on the basis that period of two years provided under S.8 of said Act had not as yet lapsed

Procedure

Held, that where such cases had been entertained by the Rent Tribunal and the matter was either pending before the Rent Tribunal where some (considerable) proceedings had already taken place, or the Rent Tribunal had finally decided the matter before it and the further challenge thereto was pending in appeal or before the High Court in its constitutional jurisdiction, or even before the Supreme Court, all such courts seized of the matter shall halt the proceedings and should direct the original petitioner/applicant of the case to first pay the fine as mandated by S.9 of Punjab Rented Premises Act, 2009, by determining the exact amount payable and by fixing the period in which the needful should be done; and if the amount of fine was paid, the case/matter shall be proceeded and decided on merits, if however, the order was not complied and the needful was not done the original petition/application, of the landlord or the tenant as the case might be, shall be dismissed

Where the order passed on the original side (petition/application) had attained finality and the execution proceedings were pending, the executing forum shall stop further proceedings in the matter and shall first direct the execution petitioner to pay the fine in the mode and the manner provided (above)for determining the amount and fixing the time, and till the time such fine was deposited/paid, the execution proceedings shall remain stayed

However, where the order was already executed, the rule of past and closed transaction shall be attracted and no order shall be annulled on the basis the fine envisaged by S.9 of Punjab Rented Premises Act, 2009 had not been paid.

2013 MLD 1369 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 115 & O. XLI, R. 1Revision against judgment and decree of appellate courtFiling of copy of impugned decree along with revision petitionMandatory

Principles.