Suit for permanent injunction

Plaintiff pleaded in his plaint that he along with proforma defendants were in possession of 20 kanals of Shamilat deh land of village, and the defendants were flexing their muscles to dispossess them from Shamilat land

Suit was concurrently dismissed

Validity

From the statements of witnesses produced by plaintiff as well as from the statement of attorney of plaintiff it had amply been substantiated without blemish that there was a threat of forcible dispossession of the plaintiff and proforma defendants by the defendants but the Court below wrongly observed that the plaintiff could not prove any threat on behalf of defendants to dispossess him

Though the plaintiff could not prove his claim to the extent of 20 kanals of land but his stance to the extent of 3 kanals and 4 marlas was endorsed by evidence

A villager of the deh who was in possession of Shamilat deh land could not be dispossessed without following due process of law and the Civil Court was fully competent to decree a suit for perpetual injunction regarding Shamilat deh land subject to legal partition of the land

High Court decreed the suit filed by plaintiff/appellant to the extent of 3 kanals and 4 marlas of Shamilat land which was in possession of plaintiff and proforma defendants

Appeal, filed by plaintiff, was allowed accordingly.

Plaintiff pleaded in his plaint that he along with proforma defendants were in possession of 20 kanals of Shamilat deh land of his village, and the defendants were flexing their muscles to dispossess them from Shamilat land

Suit was concurrently dismissed

Validity

Record revealed that the Trial Court had appointed Local Commission for spot inspection and report

As per report of Local Commission, the plaintiff and proforma defendants were only in possession of 3 kanals and 4 marlas of land

The Commission was appointed with the consent of the parties and the parties had not objected to the report of the Commission, thus , the report of Commission had become final and role of Commission turned into a referee; hence , both the parties were bound by its report

According to the said report, the plaintiff and proforma defendants were in possession of 3 kanals and 4 marlas of Shamilat deh land, hence, no one could be allowed to dispossess them without following due process of law by taking law in his hands

Thus, it was enjoined upon the Court below to decree the suit to the extent of 3 kanals and 4 marlas of land which was in possession of plaintiff and proforma defendants

High Court decreed the suit filed by plaintiff/appellant to the extent of 3 kanals and 4 marlas of Shamilat land which as per report of Local Commission was in possession of plaintiff and proforma defendants

Appeal, filed by plaintiff, was allowed accordingly.

Contention of the petitioner was that the proposed amendment would introduce a new cause of action and change the whole complexion of the suit

Validity

High Court after analyzing various decisions highlighted some important factors, which were only illustrative and not exhaustive, that could be kept in consideration while dealing with the application for amendment; they were (i) the intention of the applicant seeking to amend pleadings; (ii) the question of limitation if applicable; (iii) refusal or acceptance of amendment should not lead to injustice or injury to opponent side; (iv) efforts should be made to avoid multiplicity of litigation; (v) the nature of the suit and cause of action originally set-up, and (vi) if the amendment is necessary for the purpose of determination of the real question in controversy between the parties provided subject matter of suit remains unchanged

Predecessor-in-interest of respondents essentially sought relief that as per mutation he was the owner of the disputed property and the earlier round of litigation initiated in the year 1970, which culminated into passing of a decree, which was not considered by the revenue authorities

Amendment as to addition of word "declaration" in the heading of the amended suit, which was already dealt with in detail, the proposed amendments related to those orders or proceedings of the revenue which were allegedly in defiance of the decree already passed and that hardly had any bearing on the subject matter or the nature of the plaint

High Court held that two courts below had not erred in accepting the application for amendment in the plaint and upheld the decisions of the lower courts

Constitutional petition was dismissed, in circumstances.

Petitioner/plaintiff sought grant of status quorestraining the respondents/ defendants from raising further construction over the suit land but same was denied, which order was maintained by the Appellate court

Plea of the respondent was that they had invested a huge amount and the construction was almost completed

Validity

Record (including the report of Commission) revealed that respondents had completed three stories construction work in the suit-land while infact he obtained the proprietary rights of the same under law (i.e. Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance 1974) in lieu of Rs.8,54,007/= and the petitioner aggrieved from the Proprietary Rights Transfer Order/ Sanction of the suit land in favour of respondents, had filed an appeal before the concerned Commissioner

Thus, until and unless, the fact of proprietary rights of suit -land obtained by respondent was not decided by the competent fora i.e. Commissioner and above, no contrary stance could be entertained qua granted land in favour of respondent

Prima facie case, irreparable loss and balance of convenience are three pre-requisites introduced by law qua adjudication of grant or refusal of stay order

All said three ingredient are to be judged in a manner that if these pre-requisites are simultaneously, fulfilled, stay order is granted while on other hand in absence of any one of the said qualified criterion stay order cannot be issued

Prima-facie case is ascertained on the strength of facts flowing from the pleadings which in ordinarily and cursory manner convinces a prudent mind in a way that if evidence and facts remain intact a decree can ultimately be passed, while the irreparable loss in short is a loss which cannot be calculated in terms of money and balance of convenience follows the tentative assessment of other two ingredients above

Rationally the prima-facie case requirement governs the other two ingredients

Phrase prima facie case in is true parlance denotes a triable case where some substantial questions are to be probed for that matter to be tried

Injunction cannot be granted unless all the three conditions for grant of injunction co-exist

Injunction is an equitable relief

An applicant at the eve of asking for interim injunction must come with clean hands and establish his case on the weighting operatus of said three ingredient in order to obtain equitable discretionary relief

Thus, in the present case, issuance of temporary injunction would definitely create a new situation contrary to the ground realities pertaining to possession based upon proprietary rights as three storied building had already been constructed on the suit-land by the respondent and ongoing construction was bearing completion, therefore, balance of convenience laid in favour of the respondent and ad interim injunction stopping the construction at this stage, could cause irreparable loss to him rather than the petitioner

Grant of proprietary rights by competent authority prima facie spoke for the respondent

No illegality or infirmity was noticed in the impugned orders disallowing the status quo

Revision petition, being devoid of force, was dismissed, in circumstances.

Civil Court decreed the suit as prayed for, however, the Appellate Court disagreed with the findings of the Trial Court on the ground that the plaintiffs had failed to establish the description of the suit-property

Question was that as to whether the plaintiffs/appellant had succeeded to prove their stance raised in the plaint or not; and whether due to non-description of the suit-property, no effective decree of perpetual injunction could be granted

Held, that relevant Jamabandi, exhibited by the plaintiffs / appellants, showed that in the column of cultivation, the possession of plaintiffs / appellant and of proforma defendant/ respondent was recorded as purchaser, regarding a piece of land measuring 07 Marlas falling in relevant survey number; said survey number had an independent and separate identity

Such entry was also available in relevant Girdawri register and although the names of a few other persons were also recorded in said column, however, they admittedly appeared as seller/co-sharer in the Khewat but so far as question of possession was concerned, the said document spoke volume that plaintiffs/ appellants and proforma defendant/respondent were sole possessor of said survey numbers as purchasers/vendees and said position was even admitted by one of the defendant/ respondent

Moreover, the witnesses of the parties also corroborated the said version of the plaintiffs / appellants

Defendants/respondents admittedly claimed that they had purchased the suit-property from the disputed khewat, so the question of apprehension of interference in the light of evidence could not be ruled out

Appellate Court fell in error while evaluating the evidence adduced in the present case

High Court set aside the judgment and decree passed by the Appellate Court and restored the judgment passed by the Civil Court; consequently the suit filed by the plaintiff/appellant stood decreed

Appeal preferred by the plaintiff was allowed, in circumstances.

Plaintiff's father had title documents in his favour with regard to the suit land and there was a prima facie case in his favour

Trial Court ought to have completed the evidence rather than rejecting the plaint capriciously

Respondent had not denied the factum that the plaintiff was one of the legal heirs of the deceased

Respondent had not claimed possession of the subject land

Suit filed by plaintiff was required to have been decided on merits subject to arraying all the legal heirs of deceased as party in the proceedings

Findings recorded by the Courts below rejecting the plaint were held to be erroneous, thus, reversed/set aside

Matter was remanded to the Trial Court for decision on merits.

Declaratory decree was not executable under O.XXI, R.32 of C.P.C. but injunction decree was executable under the said provision

No limitation did run against the decree of injunction and decree in favour of petitioners could be executed

Plaintiffs were forced to reinitiate the proceedings in the present suit but they had been non-suited on the ground of res judicata

Courts below had neither executed the earlier decree nor decided the present suit on merit

Case was remanded to the Trial Court for decision afresh on merits after framing of issues and recording evidence

Impugned judgments and decrees passed by the Courts below were set aside and parties were directed to maintain status-quo till disposal of suit

Revision was allowed, in circumstances.

Plaintiff filed an application for rejection of the written-statement of the defendant (cellular company), however, both the Courts below dismissed the said application

Petitioner/plaintiff contended that written-statement of the defendant (cellular company) was not filed by the authorized attorney

Held, that O.XXIX, R.1 of Civil Procedure Code, 1908, stipulated that in suits by or against the corporation, pleadings was to be signed and verified, on behalf of the corporation, by the Secretary or by any Director or other Principal Officer of the corporation who was able to depose to the facts of the case

Plaint filed by the petitioner revealed that the petitioner himself had sued the respondent (cellular company) through its executive legal, while rest of the respondents (tower workers union etc.) had been sued in their personal capacity

Well authorized attorney had filed written-statement on behalf of the respondent (cellular company), who was well conversant with the facts of the case

Said attorney signed and verified the written statement; he was duly authorized by the authorized person, nominated by Board of Directors vide its resolution

No illegality or infirmity was found in the concurrent findings of the two Courts below

Constitutional petition was dismissed, in circumstances.

Petitioner instituted suit for permanent injunction claiming that he was in exclusive possession of suit property being part of shamilat deh and that the respondents had no right to interfere in his possession till partition of shamilat deh

Respondents, at the stage of final arguments, filed application for appointment of local commission for site inspection which was dismissed by the trial court

District Judge allowed the revision petition challenging said order with costs

Validity

Trial Court had mainly dismissed the application on the assumption that it was delayed and, if allowed, would result in further proceedings by inviting objections, concluding evidence and such course would lead to endless litigation

Trial Court in adopting such course had little appreciated that same could not be the sole ground to dismiss the application without considering the other attending factors and that the court was required to consider whether in the specific facts and circumstances of the case and the nature of the dispute, site report would be helpful for proper adjudication of the case and, if so, then of course, the appointment of local commission would be just and fair

Rights and possession of the petitioner qua the property and also the description of the property as well as plan attached was disputed by the respondents

High Court observed that it was essential to resolve the issue for all times to come by taking all possible measures to reach to the truth of the matter

District Judge had rightly allowed the application

Constitutional petition was dismissed.

Plaintiffs filed suit against blockade of public path without permission of Advocate General which was dismissed being not maintainable

Appellate Court decided appeal with the observation that plaintiffs could file fresh suit after obtaining permission from Advocate General

One of the plaintiffs who had obtained consent of Advocate General filed subsequent suit but plaint was returned for presentation before proper forum

Validity

Provisions of S. 91, C.P.C. did not debar the institution of suit by anyone or two to whom the permission of Advocate General had been granted

Contents of plaint could not be considered as an estoppel against the plaintiff in filing of suit against the defendant

Plaintiff had mentioned that suit had been instituted after having requisite permission from the concerned quarter

Plaintiff had been given permission for filing of fresh suit subject to the said permission

Principle of estoppel was not applicable in the present case

Impugned orders passed by the Courts below were set aside and Trial Court was directed to decide the suit on merits

Revision was allowed, in circumstances.

Where legislature had not given the right of appeal or revision against the orders impugned through the constitutional petition, exercise of jurisdiction of High Court under Art. 199 of the Constitution as an appellate jurisdiction would be to circumvent the intention of the legislature

No appeal was provided and revisional jurisdiction had already been exercised against order where application for appointment of Local Commission was decided

No other remedy under the law was available Constitutional petition was not maintainable

For invoking constitutional jurisdiction of High Court under Art. 199, Constitution, the petitioner was bound to show some jurisdictional defect committed by the courts below

Petitioner could not point out either any jurisdictional defect, perversity in the orders passed by the courts below or establish any exceptional circumstances for exercising constitutional jurisdiction

Constitu-tional petition, having no force, was dismissed in limine.

No bar of limitation exists for the suit filed in response to the defendant challenging possession and legal entitlement of plaintiff to the suit property and plaintiff not claiming anything in adversity.

Suit for permanent injunction relating to land cannot be maintained if the plaintiff has no title/possession of the property.

Plaintiffs filed suit for permanent injunction that they were entitled for transportation of construction material to the city and defendants be restrained from transportation of said construction material

Trial Court without obtaining written statement from defendants restrained them from transportation of construction material to the city but Appellate Court set aside the said order

Validity

Plaintiffs in the present suit had sought only perpetual injunction and had not prayed for declaration of ownership of suit land

Consequential relief of permanent or interim injunction could not be granted to the plaintiffs without declaring their title

Every citizen had Fundamental Right to carry any sort of business and sell items in any part of the country

Trial Court had erred in law by restraining the defendants from transportation of construction material

Appellate Court had passed impugned order beyond the pleadings of the parties and had touched merits of the case, which was not permissible under the law

Another suit with regard to suit property was sub-judiced wherein ad-interim injunction had been granted with the consent of the parties which was still in field

Impugned order passed by the Appellate Court was not sustainable in the eye of law

Impugned orders passed by the Courts below were set aside and case was remanded to the Trial Court for decision afresh after obtaining written statement of defendants and recording evidence of the parties

Revision was allowed, in circumstances.

Suit property being Shamilat deh was reserved for mosque so that its Imam could earn livelihood from the usufructs of the said property

Defendant being Imam was removed from the mosque and another Imam was appointed

Plaintiff filed suit that defendant (Imam) was bent upon to construct house over the suit property

Suit was decreed concurrently

Validity

Suit property was in permissive possession of defendant and prior to him it was in the possession of his father because of his services as being Imam of the mosque

Land in question had been allocated by the village proprietary body for Imam of the mosque in lieu of his services as Imamat

Defendant having been removed from the office of Imam Masjid, he had no right over the suit property

Courts below had rightly decreed the suit

Revision was dismissed in circumstances.

Suit was decreed and execution petition for satisfaction of decree passed in favour of decree-holder was moved but same was dismissed

Decree-holder filed contempt petition against judgment-debtor for violation of order of the Court but same was also dismissed

Validity

Civil Court had power to execute decree against judgment-debtor through arrest, detention, attachment and sale of his property

Civil Court was competent to prosecute any person under O. XXXIX, C.P.C. who had violated any order with regard to temporary injunctions

Any person who had insulted a Judicial Officer while conducting judicial proceedings could be punished under S.228, P.P.C.

Civil Procedure Code, 1908 and Penal Code, 1860 did not provide remedy against any act of judgment-debtor in violation of Court decree

Any person who had violated decree or order of civil Court could be punished under Contempt of Court Ordinance, 2003 by the High Court

Jurisdiction to initiate contempt proceedings for violation of Civil Court decree or order would vest in the High Court

Subordinate Courts were not vested with any such jurisdiction to initiate contempt proceedings

Subordinate Courts had been provided with the jurisdiction to initiate proceedings and convict the persons for interrupting any judicial proceedings or insulting Judicial Officer

Violation of orders, judgments and decrees of subordinate Courts would amount to contempt of Court but cognizance to initiate contempt proceedings was with the High Court

Allegations contained in the application moved before Trial Court by the petitioner might constitute an offence under Contempt of Court Ordinance, 2003 but subordinate Court had no jurisdiction either to initiate any action against the alleged contemnor under Contempt of Court Ordinance, 2003 or Civil Procedure Code, 1908 for contempt of Court

High Court had jurisdiction under S.4 of Contempt of Court Ordinance, 2003 to initiate contempt of Court proceedings against any person who had allegedly committed contempt of any civil Court

Contempt petition filed by the petitioner before Civil Court was not maintainable

Constitutional petition was dismissed in circumstances.

Order XXXIX, R.3, C.P.C. was neither a substantive law nor there was repository power of the Court to grant injunction rather it did envisage for issuance of a notice to the other party before granting injunction

Even otherwise Court could grant ad-interim injunction before issuance of notice to the opposite side

Appellate Court had wrongly converted appeal into revision petition

Trial Court should finally decide the application of the plaintiff for temporary injunction

Impugned order was in accordance with law

Constitutional petition was dismissed, in circumstances.

Plaintiff-applicant moved application for production of documents as additional evidence when suit was fixed for final arguments

Trial Court dismissed the said application which was upheld by the revisional court

High Court accepted the writ petition and an opportunity was granted to produce documents

Validity

Plaintiff-applicant only mentioned that he wanted to file copies of jamabandi and khasra girdawari but it was not mentioned as to which year these pertain; what was the effect of non-production and why these documents were necessary to be produced as additional evidence

Documents which came from official custody and were part of official record could be allowed at a subsequent stage if a good cause was shown by the party as to why the documents could not be produced at earlier stage

Where a plaintiff sued upon a document in his possession or power then he should produce the same in the Court when plaint was presented

Plaintiff should file the document or a copy thereof with the plaint and all other documents upon which he relied as evidence in support of his claim

Such document should be entered in the list to be added or annexed to the plaint

Parties should produce at the first hearing of the suit all the documentary evidence in their possession or power which they intended to rely and which had not already been filed in the Court

Plaintiff-applicant had not relied upon the documents to be produced through present application

Present application being ambiguous, could not be accepted

Mere inadvertence could not be a ground for allowing the document at a later stage

Trial Court had not committed any illegality while dismissing the application for production of documents as additional evidence

Revisional Court had rightly refused to exercise revisional powers in circumstances

If High Court while exercising writ jurisdiction reached to the conclusion that Trial Court or Revisional Court had failed to exercise powers and order was against legal provision, writ of mandamus could be issued

High Court while exercising writ jurisdiction could not exercise those powers which were vested in it as an appellate Court

High Court could not sit as an appellate Court on the decision of lower Court in writ jurisdiction

Order impugned before the High Court must be against legal provision for issuance of writ

High Court had accepted writ petition without assigning any reason

Impugned judgment passed by the High Court was set aside and writ petition was dismissed

Appeal was allowed in circumstances.

Plaintiff in such eventuality and circumstances could not ask for restrainment of defendant from alienating their share in the suit property

Plaintiff had no prima facie case and balance of convenience in his favour

No irreparable loss would cause to the plaintiff if temporary injunction was not granted

Each co-sharer in the joint property would get his due share in accordance with his entitlement

Both the Courts below had correctly appreciated the material available on record for not granting temporary injunction

No illegality or irregularity had been pointed out in the concurrent findings recorded by the Courts below

Revision was dismissed in limine.

Trial Court appointed local commission and in the light of report of said commission application for temporary injunction was dismissed

Validity

Pleadings, documents and supporting evidence had to be examined for grant or refusal of injunction

Assessment for grant of temporary injunction was to be made tentatively

Where complicated questions with regard to merits of the case existed requiring framing of issues and evidence then injunctive order might not be passed

Plaintiff had failed to establish necessary ingredients for grant of interim injunction

Defendants were raising construction as per permission granted by the Cantonment Board

Courts below had properly exercised discretion vested with them

Revision was dismissed in limine.

Trial Court closed evidence of defendants except the statement to be recorded by the attorney and witnesses who were to be summoned by the Court

Contention of defendants was that Trial Court had provided only two or three opportunities for production of their evidence

Validity

Impugned order passed by the Trial Court was self-speaking

Defendants despite availing several opportunities failed to produce evidence

Trial Court was constrained to close the evidence of defendants which was to be produced by them except the statement of attorney and witnesses to be summoned by the Court

Impugned order did not suffer from any legal infirmity or illegality

Case could not be kept pending for an indefinite period

Adjournments could not be granted without any sufficient reason

Parties were to be vigilant and ready to produce evidence without unnecessary delay

Adjournments could only be granted for sufficient cause and that also with costs if so deemed proper by the Court

Hearing of the suit should continue from day to day and adjournment for recording evidence only be made for the reasons to be recorded by the Court

Court had power to decide the suit under O.XVII, R.3, C.P.C. if the party failed to produce evidence or to cause attendance of his witnesses

Trial Court had to keep the scale of justice even in exercising the discretionary powers while granting adjournments in the proceedings and discourage practice and tactic of procrastination which would result into miscarriage of justice

Courts below had not violated any provisions of law while passing the impugned orders

Appeal was dismissed.

Respondents could not sue for enforcement of conditional agreement to sell unless proprietary rights were granted in favour of original allottee or after his death in favour of his legal heirs

When vendee had executed general power of attorney along with an agreement to sell then transaction would be under S. 202 of Contract Act, 1872

Attorney had executed agreement to sell in favour of his own kids on the basis of general power of attorney

Attorney without seeking specific prior permission could not execute an agreement to sell with his near and dear ones

Decree was passed in a suit for permanent injunction but Revenue Officer considered the same as had been passed in a suit for specific performance

Matter was remanded to the Revenue Officer for decision afresh

Constitutional petition was allowed in circumstances.

Later on, respondents (plaintiffs) filed application under O. XXI, R. 32, C.P.C., to initiate appropriate proceedings against petitioners (defendants) for non-compliance of the decree

Trial Court framed issues and during recording of evidence directed petitioners (defendants) to issue a cheque in favour of respondents (plaintiffs) but petitioners (defendants) did not comply with the order resultantly proceedings under O. XXXIX, R. 2, C.P.C., were initiated by Trial Court

Order passed by Trial Court was maintained by lower appellate court

Validity

Divergent stances of parties led Trial Court to frame issues

Trial Court without returning findings regarding issues framed by it could neither direct petitioners (defendants) to pay any amount to respondents (plaintiffs) nor could initiate any proceedings under O.XXXIX, R. 2, C.P.C., for recovery of any amount

Trial Court while passing orders acted in exercise of its jurisdiction illegally and with material irregularity, which fact was not appreciated by lower appellate court and it fell in error while maintaining the order passed by Trial Court

High Court set aside order passed by both the courts below as the same were passed without lawful authority and of no legal effect

High Court directed Trial Court to decide application of respondents (plaintiffs) under O. XXI, R. 32, C.P.C., after recording complete evidence and in accordance with law

Constitutional petition was allowed in circumstances.

Petition for readmission of appeal was dismissed on the ground that same had not been filed by the appellants themselves nor any reason had been shown for their non-appearance on the date when appeal was dismissed

Validity

Petition for readmission of appeal should have been allowed as same was promptly filed with affidavit of counsel explaining reason for his non-appearance

Matter was to be decided on merits rather than on the basis of technicalities

Absence of petitioners' counsel was neither intentional nor deliberate but on account of circumstances beyond his control

Appointment of counsel would remain in force until determined with leave of the Court or until party appointing him or counsel died or until all proceedings .with regard to his client ended

Counsel had right to do everything that was necessary for proper conduct of the case

If case was decided ex-parte or dismissed in default then counsel had implied authority to get that order set aside so that the case be heard on merits

Petitioners had engaged the counsel who was representing them and his inability to attend the Court proceedings had been explained duly supported by affidavit

When counsel was attending the Court, there was no occasion to raise any objection with regard to non-availability of parties unless their presence was specifically required

Counsel was stuck in traffic and same being unavoidable circumstance was beyond his control and could be regarded a sufficient ground

Determination of Appellate Court qua non-appearance of petitioners being fatal was un-warranted case was not fixed for their appearance

Appellate Court had committed material illegality and irregularity while not accepting the application for restoration of appeal by the counsel on behalf of his client

Impugned order passed by the Appellate Court was set aside

Petition for readmission of appeal was allowed and appeal was restored

Revision was allowed accordingly.

Trial Court had reached to the conclusion that Province of Punjab, Tehsildar and Halqa Patwari were not necessary party and directed that their names be deleted from the array of defendants

Appellate Court directed the Trial Court to re-settle the matter with regard to arraying the defendants whose names were deleted

Validity

Appeal was creation of statute and same could not be inferred unless and until provided by the statute

Impugned order was under O.I, R.10, C.P.C. which did not fall within the ambit of O.XLIII, R.1, C. P. C

Appeal before the Appellate Court was not maintainable in circumstances

Impugned order passed by the Appellate Court was set aside

Revision was allowed accordingly.

Appellate Court did not make comment upon ad-interim temporary injunction but while disposing appeal issued direction to maintain status quo with regard to possession of suit property

Contention of plaintiff was that Trial Court had not decided the application for grant of temporary injunction and appeal was not maintainable

Validity

Appeal was creation of Statute and same could not be inferred unless and until provided by the Statute

Trial Court had granted only ad-interim temporary injunction and had not decided the application for grant of temporary injunction

Appellate Court should have passed direction to the Trial Court to decide the said application expeditiously without making any interference in the impugned order

High Court while exercising revisional jurisdiction decline to make comment upon the issuance of ad-interim temporary injunction as well as status quo order issued by the Appellate Court and observed that application for grant of temporary injunction should be decided expeditiously with the direction that Trial Court to decide the said application within a period of ten days

Revision was disposed of in circumstances.

Plaintiff filed application under O. XXI, R. 32, O. XXVI, R. 9 & O. XXXIX, R. 2(3), C.P.C. on ground that defendants had violated the undertaking and trespassed over plaintiff's property by raising construction and sought restoration of possession and initiation of contempt proceedings

Contention raised by plaintiff was that rejection of plaint on undertaking of defendants was "decree" in terms of S. 2(2), C.P.C.

Defendants took plea that said applications could not be filed before appellate court

Validity

As admitted by defendants there were triable issues which could not be decided without framing of issues and recording of evidence

Contention that appellate court was not competent to frame issues and record evidence was misconceived

If any restraining order was passed by appellate court or there was any undertaking given by any of the parties before it which was subsequently violated, only court which could proceed further on application of any aggrieved party was the same court before whom the undertaking was given or by whom any order was passed

Appellate court should have proceeded with the matter by framing issues and giving an opportunity of hearing to the parties to lead their respective evidence

Denial of appellate court to proceed with the matter amounted to negation of dispensation of justice

When party who had undertaken before court to do an act and on basis of that undertaking proceedings were dropped, said undertaking had the effect of "decree" and was executable against defaulting party in its letter and spirit

Appellate court also failed to pass any order on application for appointment of local commission

Appellate court was duty bound to ascertain exact situation of suit property through demarcation

Impugned order passed by appellate court was nullity in eye of law which was set aside and case was remanded for decision on application

Revision petition was accepted, in circumstance.

Plaintiff filed suit for permanent injunction in the year 1990 and during the pendency of suit matter was settled between the parties through an arbitration award

Application was filed for execution which was dismissed by the Trial Court as well as lower appellate court

Held, that suit was for permanent injunction and in arbitration award plaintiff was declared entitled to 7-1/2 marlas without any specification of property

Suit was disposed of without granting a decree in favour of plaintiff

Execution petition was filed after 3 years which was barred by time

Decree and further compromise not specific with regard to specification of property was not executable

Civil revision was dismissed accordingly.

Revision was dismissed with cost of Rs. 5,000/- which should be paid by the plaintiff for obtaining judgment and decree in the earlier suit on the grounds of fraud and concealment of facts.

Co-sharers were entitled to retain possession of land in their respective occupation until partition had taken place by metes and bonds

None of the co-owners could interfere in other's possession unless land co-owned by them was partitioned

Co-owner in possession could alienate his share and transfer the possession of his holding to another person which holding would be subject to partition

Purchaser of such land would not become the exclusive owner of specific un-partitioned jointly owned land

Co-owner enjoying exclusive possession of joint property could not be evicted by another co-sharer except by filing a suit for partition

Plaintiffs were co-owners of un-partitioned land in the Khasra and they could not be forcibly dispossessed from the land in their possession as co-sharers

Impugned judgment and decree passed by the Appellate Court did not make the plaintiffs exclusive owners of suit land which was in their possession

Appellate Court had only protected the peaceful possession of plaintiffs until the joint land was partitioned in accordance with law

Said judgment did not arm the plaintiffs to gain possession of joint land which was not in their possession at the time of institution of suit

Revision was dismissed accordingly.

Defendant put up a barrier on the said passage and plaintiff filed suit for permanent injunction wherein defendant was proceeded against ex parte

Defendant appeared in the Trial Court and got recorded his statement that he had no objection if passage in question is used by the plaintiff and his employees

Trial Court disposed of the suit with the observation that defendant should abide by the undertaking/statement

Appellate Court, however, decreed the suit in term of relief sought in the suit

Validity

Appellate Court had same jurisdiction that vested in the Trial Court and entire lis would reopen without any restriction placed by the order or decree pleaded against

Appeal was continuation of original suit and Appellate Court had power to thrash out and evaluate the entire evidence and scrutinize the available record

Appellate Court had power to uphold, modify or reverse the decree or order appealed against

Judgment of Trial Court would merge into the judgment of Appellate Court

Proceedings before the Trial Court had reached the stage of final arguments after recording ex parte evidence of plaintiff

Trial Court recorded the statement of defendant

Defendant could not complain that he was not heard on merits of the case

Defendant could not insist for the Appellate Court to remand the case to the Trial Court for arguments

If Appellate Court found the impugned decree or order of lower Court, to be erroneous or against the law or facts, then it was required to correct the same in appellate proceedings

Remand order should be avoided unless exceptional circumstances called for the same

Even though defendant had been proceeded against ex parte he nonetheless had a right to participate in the proceedings at a subsequent stage

Where an ex parte order had been passed against the defendant he could not ask for the reopening of proceedings unless sufficient cause was shown

Defendant could join proceedings at any stage

Defendant had at no material stage applied for the setting aside of the ex parte proceedings

Trial Court instead of simply deciding the case on the basis of statement of defendant ought to have decided the same on merits i.e. on the basis of material available on record

Agreement was executed between the parties with regard to construction of road for common use

Road constructed pursuant to said agreement was to be joint property of the parties to the said agreement

Said agreement did not provide for the restriction qua the use of road in question

Defendant could not arrogate to himself the right to approve the list of persons authorized by the plaintiff to use the passage in question

Trial Court had not exercised jurisdiction vested in it by not deciding the case on its merits

No infirmity factual or legal had been pointed out in the findings recorded by the Appellate Court

Revision was dismissed in circumstances.

Nothing was on record that any damage had accrued to the property of plaintiff due to the construction raised by the defendants

Regulatory Authority i.e. Development Authority was satisfied with the construction at site in accordance with regulations/approved plan

Balance of convenience was in favour of plaintiff

No irreparable loss would accrue to the plaintiff if temporary injunction was not granted

Essential ingredients required for grant of temporary injunction did not exist in favour of plaintiff

Building plan had been approved in accordance with regulations and construction was also in accordance with the same

Question of fact could only be determined after the parties led their evidence

No factual or legal infirmity was pointed out in the impugned order passed by the court below

Appeal was dismissed in circumstances.

Said Tribunal had to follow the procedure laid down in Civil Procedure Code, 1908 if no procedure had been provided in Intellectual Property Organization of Pakistan Act, 2012

Intellectual Property Tribunal while exercising powers under Civil Procedure Code, 1908 could pass all orders that a civil court could pass

No bar existed with regard to appeal from an interlocutory order passed by the Intellectual Property Tribunal

Impugned order had finally disposed of the application for temporary injunction

Provision barring a right of appeal had to be strictly construed

Appeal against the order allowing application for temporary injunction was maintainable in circumstances.

Co-owners had the right in each and every inch of the property jointly owned by them irrespective of the quantum of their entitlement for possession over the same

Appellate Court had passed the judgment in disregard with O.XLI, R.31, C.P.C. in a manner alien to law

Appeal being continuation of original suit, appellate court was the last court of facts and had ample powers to thrash out and evaluate the entire evidence

Appellate Court should not have simply agreed with the findings of Trial Court

Appellate Court had failed to perform its duty in line with the law and had chosen easy path of least resistance inslead of applying its independent mind

Proper course for the joint owner was to approach the revenue hierarchy for partition of a particular share

Civil court had ample power to redress the grievances of the owner in possession of the property seeking relief to restrain the other owner of his/her dispossession from the joint property till the legal partition

Courts below were bound to consider the case of the plaintiff with regard to her dispossession from the property

Both the courts below had not decided the lis with conscious and independent application of mind

Impugned judgments and decrees passed by the courts below were not sustainable in the eye of law

Impugned judgments and decrees of both the Courts below were set aside and case was remanded to the Trial Court for decision afresh in accordance with law within a specified period

Revision was accepted, in circumstances.

Plaintiff had simply sought permanent injunction against the authorities (defendants) for restraining them not to encroach upon the private property of plaintiff

Plaintiff had not challenged the award or its proceedings in land acquisition matter

Provisions contained in the statute ousting the court of general jurisdiction was to be construed strictly and unless case fell within the letter and spirit of the barring provisions it should not be given effect to

When a special forum had been created by a statute and a special remedy had been provided then that forum should have exclusive jurisdiction to adjudicate upon such matters

Plaintiff was not aggrieved by the award and he was not required to raise any objection to that award

Civil court being court of general and ultimate jurisdiction was to try all suits of civil nature unless expressly or impliedly barred by law

Impugned judgment/order passed by the Appellate Court was set aside and case was remitted to the Trial Court with the direction to appoint local commission who in presence of the parties would determine the boundaries of the acquired area of the plaintiff if any and then to decide the case on merits within specified period

Constitutional petition was allowed in circumstances.

Defendants filed application for return of plaint for want of jurisdiction, but Trial Court rejected the same, and Appellate Court remanded the case for proceeding in accordance with law

Validity

Provisions of O. VII, R. 11, C.P.C. were not attracted in the present case

Trial Court had wrongly applied the said provisions despite the fact that defendants had prayed for return of plaint on the ground of lack of jurisdiction

Special court had not been notified nor the same was functional

Parties could not be left in vacuum as there was no forum for redressal of their grievances

Civil court being mother of forum had got the jurisdiction to entertain the matter

Ouster clause in any statute would only be applicable when authorities constituted therein had acted within the four corners of the statute

When authority had not acted in accordance with law, jurisdiction of civil court could not be ousted

Mere mention with regard to the constitution of special authority/court to deal with the matter in the special statute would not debar the civil court from assuming jurisdiction for redressal of the grievances of the citizen until and unless Authority/court had been constituted

Where no remedy was provided, civil court could not fold its hands and leave the fate of aggrieved person in air

Every right had remedy and jurisdiction of court could only be ousted on actual constitution of special court/Authority and not mere mention the same in the statute

No trial court existed to try the offences under Khyber Pakhtunkhwa River Protection Ordinance, 2002, jurisdiction of civil court could not be ousted

Findings of Trial Court were not based on sound reasons which had rightly been set aside by the Appellate Court

Appellate Court had decided the lis with conscious and application of independent mind

Revision was dismissed in circumstances.

Cancellation of allotment order was ex parte which came in the knowledge of plaintiffs when defendant filed written statement

Plaintiffs had not challenged said order of cancellation of allotment till today nor they amended their plaint claiming that they were bona fide purchasers for value without notice

Order for cancellation of allotment of land in favour of vendors would remain operative unless set aside

Plaintiffs had failed to establish their possession on the suit property

Suit land was not part of compensation pool at the relevant time and same could not be allotted to any one

Initial allotment order in favour of vendors was not valid or legal

Defendant had successfully proved that suit land was a jungle allotted to Forest Department

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

Suit filed by the plaintiffs was dismissed

Revision was accepted in circumstances.

Plea raised by plaintiff was that defendant was infringing its trademark and passing of business, services and products as those of plaintiff's

Validity

Defendant was running a retail shoe store and plaintiff's specification expressly covered retail store services in the field of footwear etc.

Prima facie, services under defendant's (junior) mark were similar to plaintiff's (senior) mark

Such step answered in favour of plaintiff and it required consideration of next step namely whether there existed a likelihood of confusion on the part of public

High Court considered plaintiff's mark and its alleged infringement in the context of services only and not goods as plaintiff did not use its trademark in Pakistan in respect of class 35

No services as per specification were provided for the simple reason that plaintiff did not operate any stores in Pakistan

As far as it could be made out that the shoes could not be ordered directly for Pakistan over internet by availing plaintiff's online services, plaintiff might well be unable to make out a case of either balance of convenience being in its favour or that it would suffer an irreparable loss and injury

Two of three ingredients were missing in such context

High Court refrained from recording any finding on such point as there was competition of the parties' respective pending applications in respect of registration under class 25

If defendant was able to obtain registration of its mark it would be able to sell its shoes using that mark and it would be incongruous in such a situation that it would not at the same time be able to use what would then be its registered mark also as part of its trade name

Consideration of claim of alleged infringement on the basis of S. 40(5) of Trade Marks Ordinance, 2001 should in the exercise of High Court's discretion also be deferred till after determination of pending applications in respect of class 25

High Court directed the Registrar of Trademarks to decide the same by hearing and disposing them of together

If plaintiff's application was allowed High Court would grant it permission to file an application for interim relief (without prejudice of course, to the defendant's right of statutory appeal) on the basis of registration of its mark in class 25 and would also grant it permission to renew in such application, its claims of infringement as set out, consideration of which was deferred

High Court declined to grant interim relief to plaintiff

Application was dismissed accordingly.

Trial Court, deciding the issue as to ownership of the plaintiff in affirmative, dismissed the suit regarding the illegal construction, and the appellate court upheld the findings of the Trial Court

Validity

Revision petition had been pending for 29 years due to the delaying tactics of the defendants

Defendants had not filed any objection to the Nazir report, which was supported with the photographs and details of encroachments upon the open spaces

Both the courts below had not taken into consideration the proceedings of the earlier identical suit filed by the predecessor of the plaintiffs against the defendants

Defendants had challenged the judgment passed in the said earlier suit in appeal which had been dismissed

Appellate court in said appeal had inspected the premises and inspection/observations of the court were part of the judgment delivered against the defendants

Both courts below had refused to give any importance to the Commissioner's reports, without assigning any reason for not taking those reports into consideration, in which case, for proper and fair adjudication of the issue of raising construction in open spaces on the property, the courts had to personally inspect the site in dispute

Commissioner, who had inspected the site, had appeared as a witness and also produced photographs along with the inspection reports showing blocking of the passages, and the defendants had failed to prove anything contrary to the actual inspection reports, nor had they filed any objections to the inspection reports

Inspection reports prepared twice on order of the High Court had confirmed the inspection reports, whereunder, the defendants had been found to be in occupation of open spaces

Trial Court had failed to appreciate the documentary evidence including the site plan issued by the Settlement Department showing the exact location of open spaces at the disputed site

Said site plan had been first endorsed by the civil court in earlier suit, and on the basis of the same, the defendants had been forced to remove illegal constructions from the open spaces in execution of the judgment and decree, and the site plan had been again endorsed by the Settlement Department, which was reconfirmation of the plan

Order of the Settlement Department, whereby said site plan had been endorsed, had been further endorsed by the High Court

Open spaces as shown in the site plan had been confirmed as true and correct for the third time by the Survey Department, while they were assisting the Nazir of the High Court

Courts below had not applied their judicial mind to the documentary evidence of the defendants

Once the issues as to the tenement of the plaintiffs being surrounded by four lanes, one on each side, had been decided in favour of the plaintiffs, the existence of any structure or construction adjacent to and attached to the construction on the plot of the plaintiffs was illegal

Findings of said issue in favour of the plaintiff in fact was acceptance of both the site plans produced by the plaintiffs, which site plans had not only complemented each other but the same also had their origin in the official record of the Settlement Department

Defendants had already been declared encroachers under various judgments of the courts

Plaintiffs had successfully proved the illegal construction on the open space at the disputed site, which had been perpetuated for over 29 years directly or indirectly under the cover of pendency of present revision

Courts below, therefore, ought to have directed the defendants to remove whatever construction was on the lanes surrounding the plaintiffs' premises

High Court, setting aside impugned judgments, directed the Nazir of the Court to get cleared each and every encroachment as per the available site plans

Revision was allowed in circumstances.

Section 91 of C.P.C. provided that suit for declaration or injunction in respect of public nuisance could be filed by two or more persons with permission of Advocate General

Exception, however, was there, that principle as embodied in S.91(2) of C.P.C., which provided that provision of S.91(1), C.P.C. would not limit or otherwise affect any right of suit, which might exist independently

Plaintiff had claimed that conversion of residential unit into commercial unit (car showroom) had disturbed their peace, privacy and security, and that they would face constant disturbance and agony along with their families due to said illegal conversion

Plaintiff, on basis of said claims, had independent right to sue, and no permission of Advocate General was, therefore, required for filing of present suit

Present suit contained multiple prayers and permission of Advocate General under S.91 of C.P.C. would be required only to the extent of prayer regarding said conversion and not regarding other reliefs prayed for by plaintiff

Plaint could not be rejected in piecemeal

Plaint could only be rejected if all reliefs claimed by plaintiffs were barred under law

Even if one of the prayers was maintainable, plaint could not be rejected under O. VII, R.11 of C.P.C.

Constitutional petition was dismissed in circumstances.

Plaintiff had filed present suit for permanent injunction claiming exclusive right to open, operate, and develop licensed Restaurant under International Development Agreement (IDA) and sought direction against the defendant, to restrain him to grant licence for said purpose to any other person except the plaintiff

Defendant sought rejection of the plaint on ground that the same did not disclose any cause of action, as said claim of the plaintiff was not supported by any document

Validity

Present suit was for permanent injunction alone, in which ancillary relief as well as consequential relief were one and the same

Clause of IDA recounted the choice of law, choice of forum, limitation period, waivers, remedies not exclusive, injunctive relief and survival of enforcement provisions

Said provision lucidly postulated that any claim arising out in connection with, or in relation to, IDA, would be governed by and construed in accordance with the laws of jurisdiction in United States, where principal offices of defendant were located as of effective date without regard to conflict of laws principle

In the same clause, choice of forum was also provided with respect to claims, which were not subject to arbitration, or that might be pursued by means other than arbitration, and the developer might file any claim against defendant only in the Federal or State court having jurisdiction in the City, County and State, in which defendant had its Principal offices

Provision regarding choice of law and choice of forum had also been provided in Multi-Unit License Agreement (MULA), but present suit had not been filed to agitate rights of MULA; whereas, the plaintiff wanted to hold back IDA rights in its favour through present proceedings

Resort, therefore, should have been made in accordance with terms and conditions of IDA

Plaintiff should have sued the defendant for declaratory relief within the agreed jurisdiction of laws and forum and not in Pakistan-Plaintiff did not ask for any declaration of IDA rights but permanent injunction alone

Question as to whether plaintiff was entitled to claim exclusive rights or not could not be decided by High Court, (in Pakistan) in view of the bar contained in the choice of law and selection of forum

Stay of present suit, instead of rejection of plaint, would advance cause of justice, as return of plaint would simply not serve the purpose

If the plaintiff was interested to set the law into motion within the agreed jurisdiction of court, then it had to abide by and follow the protocol of applicable law, and mere endorsement with return of plaint would not be sufficient to institute the plaint in the competent court of law

High Court, however, observed that instead of rejecting the plaint it would advance the cause of justice to stay the suit giving option to the plaintiff to institute the legal proceedings for seeking declaration against the defendant in competent court of law

Application for rejection of plaint was disposed of accordingly.

Said Tribunal had to follow the procedure laid down in Civil Procedure Code, 1908 if no procedure had been provided in Intellectual Property Organization of Pakistan Act, 2012

Intellectual Property Tribunal while exercising powers under Civil Procedure Code, 1908 could pass all orders that a civil court could pass

No bar existed with regard to appeal from an interlocutory order passed by the Intellectual Property Tribunal

Impugned order had finally disposed of the application for temporary injunction

Provision barring a right of appeal had to be strictly construed

Appeal against the order allowing application for temporary injunction was maintainable in circumstances.

No right of title in Shamilat deh land could be conferred unless same was legally partitioned according to the entitlement of proportionate shares of owners of village

Vendee who had stepped into the shoes of vendor could not claim rights more than that of vendor

If any transaction of Shamilat deh land was made out then same would only transfer the possessory rights and not the title of such land

Sale deed in favour of plaintiff would only confer upon him the possessory rights vested in the vendor and not the title of sold property

Both the parties were co-owners of the village and they were entitled to proportionate share in the Shamilat deh land

Owner in the village who was in possession of a portion of Shamilat deh land was entitled to retain the same unless property was legally partitioned

Courts below fell in error of law, mis-read and non-read the evidence

Assertion of defendant was an admitted fact which had been proved from the evidence of the parties

Both the parties were in possession of the pieces of suit land but exact measurement of land in their possession was not ascertainable

Factual proposition on the basis of available evidence on record could not be resolved

First Appellate Court had rightly accepted the application for appointment of commission to ascertain the on-spot position of the parties

Impugned judgment was set aside and case was remanded to the Trial Court with the direction that a commission should be appointed to ascertain the on-spot position of the parties and thereafter decree for mandatory injunction should be granted to the extent of land proved in the possession of the parties in terms that their possession should not be interfered with illegally till the legal partition of Shamilat deh land by the competent authority

Appeal was disposed of in circumstances.

Bank guarantee was a special kind of contract depending upon the happening of a specific event and when it was discharged, the guarantee would vanish off

Bank guarantee was an independent contract between a party in whose favour the same was issued and the bank which issued the same

Encashment of bank guarantee could not be stopped or restrained by issuance of injunctive order

Obligations emanating from such guarantee were independent of the obligations bearing out of contract entered between the parties

Question of fact had to be proved after production of evidence

Plaintiff had failed to make out prima facie case for grant of temporary injunction

Encashment of bank guarantee had no relevance with the obligations arrived at between the parties through a contract which was independent containing its own terms and conditions

Suit for specific performance was to be filed by the plaintiff if he had a grouse against the fulfilment of conditions of contract on the part of defendants and suit for permanent injunction was not maintainable

Encashment of bank guarantee had nothing to do with the alleged dispute between the parties which must be decided independently on the obligations of parties imposed by the contract through its forms and conditions

Impugned order passed by the Appellate Court was in accordance with law

Trial Court was directed to decide the suit within a specified period

Revision was dismissed in circumstances.

Arbitration agreement-Stay of proceedings ­Scope-Application for stay of proceedings on the ground that parties had agreed to refer their disputes either for mediation or for arbitration was accepted and proceedings were stayed in the suit

Validity

Once a party had come before a court and had sought relief with regard to an agreement by making a specific prayer and if such agreement contained an arbitration clause, it was not required by the court to see and distinguish whether the dispute being raised or agitated was specifically covered by the agreement itself or not

Such objection, if any, could be validly raised before the arbitrators who were competent to adjudicate and see as a preliminary objection

Filing of application for modification of status quo order could not be termed as participation in the suit proceedings on merits of the case

Such was only to the extent of seeking modification of ex parte interim order and the same did not debar the defendants from seeking further remedy

Party to an arbitration agreement against whom legal proceedings had been brought with regard to a matter which was covered by the arbitration agreement might upon notice to the other parties apply to the court to stay proceedings

Court should refer the parties on filing such application to arbitration unless it was found that arbitration agreement was null and void, inoperative or incapble of being enforced

Mere change in the nomenclature of Ordinance/Act would not ipso facto mean that the application was liable to be dismissed

Impugned judgment did not suffer from any error or illegality, which was a reasoned order

Suit had been stayed by the exercising discretionary powers in accordance with law

Appeal was dismissed, in circumstances.

No notice by authorities was served upon plaintiff before demolishing construction/ boundary wall, and such action on the part of authorities was against law of natural justice

Plaintiff under such circumstances was left with no option but to seek injunction promptly without any loss of time through filing of suit

Non-service of notice under S.80, C.P.C. did not render suit as not maintainable

In absence of any notice, Trial Court was to allow not less than three months' time to government for submitting its written statement

Suit was maintainable in circumstances.

Plaintiff had been owner in possession of suit land since year, 1964, and her grievance was that authorities were illegally interfering in her possession

Suit was concurrently decreed in favour of plaintiff by Trial Court and Lower Appellate Court

Validity

Plaintiff had fully established her ownership as well as her possession over suit plot through evidence, since year, 1964

Burden of proof was on the shoulders of authorities to have proved that plaintiff was not owner of suit plot and such burden was not discharged by them

Allotment order in favour of plaintiff was 30 years old document and was also protected under Art. 100 of Qanun-e-Shahadat, 1984

Presumption of truth was attached to execution of 30 years old document, which presumption had not been rebutted

High Court declined to interfere with concurrent findings of two Courts below, as judgments and decrees were validly and lawfully passed

Second appeal was dismissed in circumstances.

Contention of defendants was that no reasonable opportunity was granted to them to cross-examine the witnesses of plaintiff and produce their own evidence and neither the defendants nor their counsel appeared before the Trial Court but their attendance was wrongly marked

Suit was decreed concurrently

Validity

Counsel for the defendants had been marked present at the time of addressing of arguments as well as passing of the decree by the Trial Court

No affidavit was filed with the appeal to indicate that counsel for the defendants was not present when impugned judgment and decree was passed

Appeal filed before the Appellate Court was barred by limitation which was dismissed by the said court on the ground of limitation

Case was pending before the Trial Court for a considerable period of time and defendants were bound to be in touch with their counsel to know the progress of the same

Parties would be bound by acts and omissions of their counsel

Lack of communication and coordination between the client and his counsel could not be construed as sufficient cause for condoning the period of limitation

No material irregularity was pointed out in exercise of jurisdiction by the first Appellate Court

Revision was dismissed in circumstances.

Plaintiff claimed to be owner of suit property and sought permanent injunction against defendants from interference into their possession

Defendants claimed to be owners on the basis of registered sale-deed executed in their favour by the owner of suit property

Trial Court decreed the suit in favour of plaintiff but Lower Appellate Court modified the judgment

Validity

One of the defendants was marginal witness of sale-deed in question who deposed that deed correctly bore his thumb-impression as well as thumb-impression of other marginal witness and signature of owner of suit property

Execution of sale-deed in favour of defendants was established from statements of two witnesses that defendants had purchased the property on the basis of sale-deed in question

Lower Appellate Court after proper appreciation of evidence on record had rightly resolved controversy between the parties in shape of modifying findings of Trial Court and holding defendants as owners of suit property through registered sale-deed

High Court in exercise of revisional jurisdiction declined to interfere in judgment and decree passed by Lower Appellate Court

Revision was dismissed in circumstances.

Trial Court was bound to thrash out the controversy in the light of pleadings of the parties and framed issues covering all the disputes

Appellate Court was also bound to decide the matter by giving issue-wise findings being court of facts

Case was remanded to the Trial Court with the direction to frame an additional issue with regard to ownership of suit property and provide opportunity to both the parties to adduce evidence and then decide the case in accordance with law

Revision was accepted in circumstances.