Applicability and exception

2024 PLC(CS) 1415 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Service TenureLocus poenitentiae, Principle ofApplicability and exceptions

Claim of the appellant was that the period spent on duty after retirement on account of status quo order of the High Court could be treated as part of her service tenure and no recovery could be effected from her for that period

Whether such amount could be recovered from the employee

Held, that a beneficiary may claim a right under an exception to the principle of locus poenitentine if lawful orders have been issued by the competent authority and received in good faith without any action on the part of the recipient, however, no such orders had been issued by the authority in the present case, which was a prerequisite for invoking the exception, rather, payments had been made by the respondents under the pain of status quo order issued by the Division Bench and obtained by the appellant in her petition, therefore, the absence of a valid order from the competent authority rendered the exception inapplicable in this scenario

Appellant's decision to persist in service beyond the date of her retirement was entirely self-initiated

Respondents neither asked her nor coerced her to do so, rather appellant took it upon herself to extend her tenure in service, and imposed herself on the unwilling employer, meaning thereby that she ensured that the respondents could not legally discontinue her services upon reaching superannuation

By filing a petition and obtaining status quo orders, appellant effectively prevented the respondents from taking any action against her employment status

Appellant sought remuneration from the respondents or intended to retain the payments received during the period in which the respondents endured her continued presence, as it disregarded the circumstances under which the appellant extended her employment and the inconvenience caused to the respondents

Appeal was dismissed accordingly.

2021 SCMR 474 SUPREME-COURT Judicial Precedent

Applicability and exceptionBenefit/allowance paid under a mistake, recovery of

Only where lawful orders had been passed by an authority having the power to do so under the relevant law and a person bona fide received a benefit under the said law without any positive action on his part, such beneficiary could claim a right under the exception to the principle of locus poenitentiae and claim that the benefit bona fide received by him by virtue of a lawful order passed by the competent authority (which at the relevant time and for its duration till its withdrawal was lawfully passed by an authority competent to pass such order) could not subsequently be recovered by virtue of the protection available under the exception to the said rule.

2021 SCMR 474 SUPREME-COURT Judicial Precedent

Locus poenitentiae, principle ofApplicability and exceptionSpecial Allowance paid to employees through an unlawful order, when they were not entitled for the sameWhether such allowance could be recovered from the salaries of the employees

Held, that that by its very terms, the notification on the basis of which Special Allowance was paid to 'Lecturers' was not applicable to the appellants, who were 'Instructors'

Language of the notification in question was clear and unambiguous, therefore the argument of the appellants that they were unaware that they were being paid an allowance to which they were not lawfully entitled was not convincing

Claim of the appellants that they had bona fidely received the Special Allowance did not ring true

Apparently the appellants started receiving the amount, knowing that it was not payable to them but they kept silent

Any man of ordinary prudence who was aware of the notification should have known that the amount being paid to him was in excess of what was lawfully due to him

Furthermore the order to pay Special Allowance to the appellants was not a lawful order nor was it passed by a competent authority

Therefore, whether or not the appellants had received the same bona fidely was not of much consequence in view of the fact that the order in question had not lawfully been passed by a competent authority, which was necessary to seek the benefit of the exception to the rule of locus poenitentiae

High Court had valid reasons and lawful justification to direct that further payment of the allowance to the appellants had to stop, and also to recover the same in easy instalments from them so as not to overly burden them financially

Appeals were dismissed.

2021 PLC(CS) 560 SUPREME-COURT Judicial Precedent

Applicability and exceptionBenefit/allowance paid under a mistake, recovery of

Only where lawful orders had been passed by an authority having the power to do so under the relevant law and a person bona fide received a benefit under the said law without any positive action on his part, such beneficiary could claim a right under the exception to the principle of locus poenitentiae and claim that the benefit bona fide received by him by virtue of a lawful order passed by the competent authority (which at the relevant time and for its duration till its withdrawal was lawfully passed by an authority competent to pass such order) could not subsequently be recovered by virtue of the protection available under the exception to the said rule.

2021 PLC(CS) 560 SUPREME-COURT Judicial Precedent

Locus poenitentiae, principle ofApplicability and exceptionSpecial Allowance paid to employees through an unlawful order, when they were not entitled for the sameWhether such allowance could be recovered from the salaries of the employees

Held, that that by its very terms, the notification on the basis of which Special Allowance was paid to 'Lecturers' was not applicable to the appellants, who were 'Instructors'

Language of the notification in question was clear and unambiguous, therefore the argument of the appellants that they were unaware that they were being paid an allowance to which they were not lawfully entitled was not convincing

Claim of the appellants that they had bona fidely received the Special Allowance did not ring true

Apparently the appellants started receiving the amount, knowing that it was not payable to them but they kept silent

Any man of ordinary prudence who was aware of the notification should have known that the amount being paid to him was in excess of what was lawfully due to him

Furthermore the order to pay Special Allowance to the appellants was not a lawful order nor was it passed by a competent authority

Therefore, whether or not the appellants had received the same bona fidely was not of much consequence in view of the fact that the order in question had not lawfully been passed by a competent authority, which was necessary to seek the benefit of the exception to the rule of locus poenitentiae

High Court had valid reasons and lawful justification to direct that further payment of the allowance to the appellants had to stop, and also to recover the same in easy instalments from them so as not to overly burden them financially

Appeals were dismissed.

2014 SCMR 33 SUPREME-COURT Judicial Precedent

Ss. 52, 41 & 53Lis pendens, principle ofApplicability and exceptionConsent decree obtained by collusionFraudulent transferScope

Defendant claimed to have purchased suit land from vendor vide agreement to sell dated 1-12-1969 and filed a suit for specific performance for such purpose, which was decreed by way of a consent decree dated 29-4-1972 after defendant and vendor reached an agreement

Plaintiffs (appellants) filed a declaratory suit contending that in fact they had purchased the suit land from the vendor vide registered sale deed dated 17-5-1971; that consent decree obtained by defendant was collusive and fraudulent, and that defendant had not impleaded them in his suit

Suit of plaintiffs was decreed by Trial Court, which decree was upheld by First Appellate Court

High Court, however, reversed concurrent judgments of courts below and dismissed the plaintiffs' suit on the basis that defendant was bona fide purchaser for consideration prior in time; that plaintiffs had purchased suit land during pendency of suit filed by defendant and transaction of sale with the plaintiffs was hit by the principle of lis pendens enshrined in S. 52 of Transfer of Property Act, 1882

Plea of plaintiffs was that principle of lis pendens would not be applicable in the present case as the suit and decree so obtained by defendant were collusive

Validity

Suit land was sold to plaintiffs vide registered sale deed dated 17-5-1971, and said transaction was duly reflected in the revenue record and possession of suit land was also delivered to the plaintiffs on the spot by revenue officer

At the time of consent decree obtained by defendant, dated 29-4-1972, the vendor was divested of his ownership qua suit land as the land already stood transferred to the plaintiffs vide registered sale deed dated 17-5-1971, thus vendor was left with no title on the date of consent decree to have consented to sell the suit land

Regarding applicability of principle of lis pendens, defendant failed to prove that plaintiffs had either knowledge of the agreement to sell between the defendant and vendor or that he was a bona fide purchaser

Consent decree obtained by defendant was collusive and principle of lis pendens was not attracted in the present case

High Court also did not advert to the exception to the principle of lis pendens provided in S. 41 of Transfer of Property Act, 1882 and failed to notice that plaintiffs had no notice either of the agreement to sell between defendant and vendor, or the pendency of the earlier suit filed by defendant, which culminated into a consent decree

Exception to the principle of lis pendens provided in S. 41 of Transfer of Property Act, 1882 was fully attracted in the present case as all its ingredients were satisfied, namely that there was documentary evidence to show that transfer of suit land was for consideration; that such transfer was made by an ostensible owner (i.e. vendor), and that plaintiffs had no knowledge of any prior agreement qua suit land

Plaintiffs were not even impleaded as a party by the defendant in his suit despite the fact that they had purchased suit land vide registered sale deed

Consent decree vide which vendor consented to selling suit land to defendant was on the face of it a fraudulent transfer also within the meaning of S. 53 of Transfer of Property Act, 1882 as suit land had already been transferred by vendor in the name of plaintiffs when he agreed to the consent decree

Such fraudulent transfer was voidable at the option of plaintiffs

Consent decree was an attempt to defeat the interest already acquired by the plaintiffs in the suit land

Impugned judgment of High court was set aside in circumstances and that of Trial Court was restored

Appeal was allowed accordingly.