Mandatory requirement

Brief facts were that the respondents filed a suit for specific performance on the basis of an alleged oral agreement; the suit was initially dismissed but upon remand after framing an additional issue, it was decreed, and the decree was thereafter maintained by the Appellate Court and by the High Court, whereafter the matter came before the Supreme Court in the present petition for leave to appeal

Pivotal issue for determination was “whether the suit for specific performance of an alleged oral agreement to sell immovable property could be sustained where the foundational particulars and essential terms of the oral agreement were not specifically pleaded and strictly proved in accordance with law?”

Held: The plaint in the present case did not disclose with precision the date, time and place of the alleged oral agreement, nor did it spell out the exact terms and conditions, the settled consideration, or the names of witnesses in whose presence the bargain was struck

The plea of reconciliation committee/Jirga was also not supported by pleadings of the requisite detail

The Courts below while decreeing the suit failed to apply the strict standard of proof

The requirement of proving offer, acceptance, consensus ad idem, lawful consideration, competency of parties and settled terms through unimpeachable and independent evidence was neither satisfied nor judicially scrutinized in accordance with the binding precedents

Suit filed by the respondents was dismissed and judgments of the Courts below were set aside

Present petition was converted into appeal and allowed, in circumstances.

Alleged agreement to sell lacked mandatory requirements under Arts.17 and 79 of Qanun-e-Shahadat, 1984 and the same could not be used as evidence

Continuation of proceedings before Trial Court would be nothing but futile exercise of abuse of process of Court, which could not be allowed at the expense of public time, which should be consumed by Court meaningfully in other matters requiring its urgent attention and serious consideration

High Court set aside orders passed by Trial Court and Lower Appellate Court and rejected the plaint filed by respondent / plaintiff

Constitutional petition was allowed in circumstances.

Briefly, the respondent/plaintiff instituted a suit for possession through specific performance of an alleged agreement to sell viz. the suit property; the petitioner/defendant denied executing any such agreement and contested the claim; the suit and connected proceedings travelled through trial and appeal, including remand directions to re-record certain witnesses, culminating in the trial court judgment and decree and then the appellate judgment and decree which set aside the Trial Court's decision and decreed the respondent's suit, leading the petitioner to file the present civil revision under S.115, C.P.C. challenging the legality of the appellate decree

Pivotal question requiring determination before the High Court was as to “whether the agreement to sell in question, being disputed, was proved in accordance with Arts. 17 & 79 of the Qanun-e-Shahadat, 1984 so as to lawfully sustain a decree for specific performance/possession, and if not, whether the appellate judgment and decree called for interference in revisional jurisdiction of the High Court under S.115, C.P.C.?”

Held: The petitioner unambiguously denied the execution of any such agreement

Under Art.17 read with Art.79 of the Qanun-e-Shahadat, 1984, plaintiff/respondent was duty bound to prove the genuineness of the said document through cogent, confidence inspiring and independent evidence

Out of two witnesses, only one witness was examined and the petitioner failed to produce the other marginal witness of agreement

No sufficient reason for his non-production was brought on record

Even the respondent/plaintiff did not make any efforts to summon him through Court

The provisions of Art.79 were mandatory and non-compliance thereof rendered agreement as inadmissible in evidence

The evidence produced by the respondent/plaintiff was full of contradictions and on the basis of such type of evidence no decree for specific performance could be passed especially when the respondent/plaintiff had badly failed to prove genuineness of a valid agreement to sell in his favour, therefore, the Appellant Court erred in law while allowing the appeal of respondent/plaintiff and decreeing the suit

Judgment and decree of the Appellate Court was a result of non-reading and misreading of evidence and same was set aside

Present civil revision was allowed, in circumstances.

The execution of document attributes signing in presence of attesting witnesses including all requisite formalities which may be necessary to render the document valid

While the fundamental and elemental condition of valid attestation is that two or more witnesses signed the instruments in presence of the executants

This stringent condition mentioned in Art.79 of the Qanun-e-Shahadat, 1984 is uncompromising

So long as the attesting witnesses are alive, capable of giving evidence and subject to the process of Court, no document can be used in evidence without the evidence of such attesting witnesses

The provision of this Article is mandatory and noncompliance will render the document inadmissible in evidence

If the execution of a document is specifically denied, the best course is to call the attesting witnesses to prove the execution

When the evidence brought forward by a party to prove the execution of a document is contradictory or paradoxical to the claim lodged in the suit, or is inadmissible, such evidence would have no legal sanctity or weightage.

Briefly, the petitioners (mining companies) filed the present constitutional petition challenging the validity of the Sindh Coal Mines Rules, 2016 framed under the Sindh Coal Act, 2012, on the ground that the Rules were promulgated without prior approval of the Cabinet and thereafter notices were issued to them under the said Rules requiring compliance in respect of various matters; during proceedings, it was acknowledged that Cabinet approval had not been obtained at the time of framing of the Rules but was subsequently granted, and the petitioners sought relief against the impugned notices issued under the said Rules

Held: Rules framed without prior approval of the cabinet were of no effect

High Court set aside the impugned notices on the ground that the same were anchored in the rules which were not framed in accordance with the requirement of ratio laid down by the Supreme Court

Moreover, no action in terms of the said rules were to be taken unless the matter was reconsidered by the cabinet and the fresh rules were framed

Constitutional petition was disposed of, in circumstances.

Director Adjudication Securities and Exchange Commission penalized the appellant (a listed company) for its inability to have independent director(s)

Contention of the appellant (a listed company) was that the Companies Act, 2017, itself did not require having independent directors in a listed company

Validity

Subsection (1) of S.166 of the Companies Act, 2017 ('the Act 2017'), inter alia, recognizes the requirement of appointment of an independent director in a company under any law, rules, regulations or code, whereas subsection (3) of the S.166 of the Act, 2017 provides the manner of election of an independent director of a listed company

Subsection (5) of S.166 of the Act 2017 is an enabling provision whereby the Commission is empowered to specify the manner and procedure of selection of independent directors through regulations and Regln. 6 of Listed Companies (Code of Corporate Governance) Regulations, 2019 ('the Regulations') stipulates the same as mandatory; thus, in this context, said provisions makes it incumbent upon a listed company to elect independent directors

Use of words 'shall' (in S. 166(3) of the Act 2017) and 'mandatory' (in Regln. 6 of the Regulations) leaves no room for any ambiguity that the Legislative intent behind the said provision is to have independent directors of the Board of a listed company and the same is not directory in nature

Thus, the contention of the appellant /company was not tenable

Appellant was rightly penalized in terms of S. 512 of the Companies Act, 2017, read with Regln. 37 of the Listed Companies (Code of Corporate Governance) Regulations, 2019, on account of contravention of provisions of the Regulations, 2019

Appellate Bench maintained the impugned order passed by Director-Adjudication of the Commission

Appeal, filed by the listed company, was dismissed, in circumstances.

Upon filing of a direct Criminal Revision or after conversion of a Criminal Appeal into a Criminal Revision, a notice as provided by subsection (2) of section 439, Cr.P.C. has to be issued to the other side

In the present case a Criminal Appeal against Acquittal was filed through which the High Court considered it appropriate to reappraise the order impugned in light of the material available on the record and while exercising its inherent power, converted the Criminal Appeal into a Criminal Revision Petition, at the time of delivering the judgment

It is apparent, rather admitted fact that no notice of the proceedings upon the Criminal Revision was issued to the petitioner/convict

In its revisional jurisdiction, the High Court can enhance the sentence passed by fora below, but before it does so, it must comply with the provisions of subsection (2) of section 439, Cr.P.C., which make it mandatory that no Order under this section shall be made to the prejudice of the accused, unless he has had an opportunity of being heard either personally or through a legal practitioner of his choice, so as to defend himself

Purpose of issuing notice is to give an opportunity to the accused/convict either to pursue his matter personally or through a legal practitioner of his own choice so as to defend himself

Without issuing the mandatory notice the impugned judgment in the present case was contrary to the provisions of section 439(2), Cr.P.C.

This had deprived the petitioner from his legal as well as constitutional right of consulting a legal practitioner of his own choice and fair trial as provided by Articles 10 and 10-A of the Constitution, respectively

Contention of the counsel for the complainant that the convict was already before the Court in his own appeal and both the matters were heard together, therefore, he was deemed to be served and no fresh notice was required, was a contention that could not be agreed with for the reason that the appeal filed by the convict and the revision filed by the complainant were altogether different in their nature and outcome

Once the law prescribes a thing to be done in a particular manner, it must be done as such, therefore, a separate notice as required by subsection (2) of section 439, Cr.P.C. was mandatory, without which no order should have been passed, hence, the impugned judgment was not sustainable

Petition was converted into an appeal and partly allowed; impugned judgment was set aside with the directions that appeal filed by the petitioner against his conviction and the acquittal appeal which was converted by the High Court into a Criminal Revision Petition shall be deemed to be pending before the High Court; that the High Court shall issue notice to the convict as required under section 439(2), Cr.P.C., to be served upon him personally; that after service of notice, the High Court should provide opportunity of hearing to all concerned and decide the Appeal and the Criminal Revision afresh, in accordance with law, on its own merits and on the basis of the material available on the record.

Question was whether or not, before invoking the provisions of S. 122 of Income Tax Ordinance, 2001 ('the Ordinance, 2001'), a separate notice to the taxpayer in terms of S. 111 of the Ordinance, 2001 was a pre-requisite to include unexplained income/assets in income chargeable to tax or / and whether or not, a notice under S. 122(9) of the Ordinance, 2001 is enough to initiate proceedings for amendment of the assessment ?

Show-Cause Notice under S. 122(9) of the Ordinance, 2001 was issued against the taxpayer on the basis of definite information that he purchased property during the relevant year but did not disclose its source, and subsequently an Assessment Order was passed following proceedings

Applicant (taxpayer) filed Reference Application as an Assessment Order passed against him was maintained up to Appellant Tribunal Inland Revenue

Case of the applicant was that the Respondents/Department was required to issue a separate notice under S. 111 of the Ordinance, 2001

Stance of the Respondents/Department was that there was no need to issue a separate notice under the aforesaid section for proceeding under S. 122 of the Ordinance, 2001

Held, that the issuance of a separate notice under S.111 of the Ordinance, 2001 is mandatory for the purpose of addition on account of unexplained income or assets

Prior separate notice under S. 111 of the Ordinance, 2001 to confront the taxpayer for explaining his unexplained income and assets has to be issued prior to making of addition of income for tax purposes

High Court answered the proposed question in affirmative i.e. against the Respondents/Department and in favour of the applicant/taxpayer

Consequently the impugned judgments were set-aside

Reference Application, filed by the taxpayer, was allowed, in circumstances.

In execution proceedings involving Court Auctioneer, sale of immovable property became complete when bid was accepted by Court

For the purpose of Art. 166 of Limitation Act, 1908 time was to start to run from the date the highest offer was accepted by Court

Objection petition filed by appellants/judgment debtors was not barred by limitation as it was filed on 18-10-2016 i.e. 30th day of the auction held on 08-09-2016

Reserve price of property was fixed at Rs. 108,171,850/- and to ensure proper publicity, Executing Court had to have exercised authority vested in it under R. 67(2), C.P.C. to order proclamation to be published in at least one widely circulated daily newspaper

Such failure caused injustice to appellants/judgment debtors

Only respondent/decree holder participated in auction and it provided a convenient walkover to respondent/decree holder to purchase the property at reserve price

Division Bench of High Court set aside the sale and remanded the matter to Executing Court to proceed with execution of decree in accordance with law

Appeal was allowed, in circumstances.

In case the Collector does not make the payment, the landowner becomes entitled to interest as provided in section 34 of the Land Acquisition Act, 1894

Payment of such interest is mandatory in nature and its payment cannot not be denied.

Section 4(1) of the Punjab Acquisition of Land (Housing) Act, 1973 uses the word "shall" making it obligatory upon the authorities to publish any and all notifications in respect of acquisition under section 4(1) of the said Act

Requirement of publication of a notification under section 4 is an essential requirement in acquisition proceedings because it is likely that the rights and interests of landowners will be adversely affected.

Chemical report had not set out all protocols of testing and result in respect of each individual protocol test, rather one consolidated report had been prepared

Validity

Setting out each protocol test and its result was a mandatory requirement of law

Absence of such protocol test rendered the chemical report unsafe and unreliable.

Discretion of court was limited only to the extent of amount of security to be deposited (i.e. not exceeding 20%).

Bank as per S. 9(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, while filing the suit was required to specify (a) the amount of finance availed by the respondents (b) amounts paid by the respondents with dates of payment and (c) the amount of finance and other amounts relating to finance payable by the respondents up to the date of institution of the suit but the plaint was silent relating to amount of finance

Bank had mentioned in the plaint only the due amount without mentioning that what was the actual principal amount and out of which how much payment had been made by the respondent and how the claimed amount was due and payable

Bank had not been able to show that the mandatory requirements of S. 9(3) had been properly followed and complied with, therefore, the suit filed by Bank failing to comply with the mandatory requirement of law was liable to be dismissed

Appeal was dismissed.

Section 13(3) of the Punjab Pre-emption Act, 1991 specified unequivocally that 'Talb-i-Ishhad' shall be made by written notice, attested by two truthful witnesses, and made under registered cover acknowledgment due

Only situation in which the Punjab Pre-emption Act, 1991, did not require the sending of notice by registered cover acknowledgment due was when the post office facility was not available to a pre-emptor [Proviso to section 13(3)]

Secondly, according to case law, the prescribed condition of service of notice by registered cover acknowledgement due may be relaxed where the defendant/vendee admitted that he had received notice of 'Talb-i-Ishhad'

In all other cases, service of notice of 'Talb-i-Ishhad' upon a vendee must be established by the proof of each of the prescribed elements of the notice of such Talb

Prescribed elements of the service of a 'Talb-i-Ishhad' notice were specific statutory requirements for the proof of service of notice of such Talb which demand had been construed to be a mandatory obligation of a pre-emptor

Where any of the elements of the prescribed mode of service of 'Talb-i-Ishhad' was not proven by a pre-emptor, he dishonoured his mandatory obligation and consequently, his pre-emption suit must fail.

Election petition had to be verified in accordance with civil law, however, penal consequences having been prescribed, the provision of R.62(3), Sindh Local Councils (Election) Rules, 2015 was mandatory

Verification on oath of the contents of an election petition was provided under S.55(3) of the Representation of the People Act, 1976 and every election petition and Schedule or Annexure to petition was to be signed by the petitioner and verified in the manner laid down in the Civil Procedure Code, 1908

Civil Procedure Code, 1908 contained such provision under O.VI, R.15, which required the verification of pleadings on oath

Where the said legal provisions had not been complied with, Election petition was rightly dismissed.

Widespread non-compliance of the provisions of S.33 of Representation of the People Act, 1976 which related to identification of a voter before the issuance of a ballot paper would attract the application of S.70(a) of the Act (i.e. ground for declaring election as a whole void)

Any such declaration under S.70(a) was predicated upon the satisfaction of the Election Tribunal that "the result of the election has been materially affected by reason of" non-compliance with the provisions of the Representation of the People Act, 1976 or Rules framed thereunder.

Verification of an election petition was mandatory and a petition which lacked proper verification shall be summarily dismissed by the Election Tribunal, even if the respondent had not asked for or prayed for its dismissal

Where the election petition had not been verified in accordance with law, the same could not be treated as a curable defect and the Election Tribunal particularly after the lapse of the period of limitation prescribed for filing of election petition, could not permit the election petitioner to cure the same.

Every election petition and every schedule or annexure to the election petition had to be signed by the petitioner and verified in the manner laid down in O. VI, R.15, C.P.C.

Election petitions filed before the Election Tribunal, in the present case, were not verified on oath in the manner prescribed under O. VI, R.15, C.P.C.

If law required a particular thing to be done in a particular manner, it had to be done accordingly, otherwise it would be non-compliance with the legislative intent

Petitioners had filed applications for amending their election petitions to remove the objection regarding non-compliance with S. 54 of Representation of the People Act, 1976, however said applications were time-barred as they were filed well beyond the period of 45 days as provided under S. 52(2) of Representation of the People Act, 1976

Election Tribunal should not have allowed said applications as they were time-barred

Appeal was allowed accordingly and impugned judgment of Election Tribunal was set aside.

Whenever a notice is required to be given under S.19 of National Accountability Ordinance, 1999, it would require authorized officer to mention documents or reference through which one can infer about documents to be produced as provided under S.19(c) of National Accountability Ordinance, 1999.