Pre-requisite

Section 5(1) of the 2007 Ordinance mandated that a landlord shall not rent out a premises to a tenant except by a tenancy agreement, whereas Section 5(2) required a landlord to present the tenancy agreement before the rent registrar

Additionally, Section 5(3) required the rent registrar to enter the particulars of the tenancy in a register, affix his official seal on the tenancy agreement, retain a copy thereof and return the original tenancy agreement to the landlord

It is the entry of the tenancy agreement in the office of the rent registrar which Section 5(5) of the said Ordinance treated as proof of the relationship of landlord and tenant.

The dispute arose over a parcel of land measuring 24 kanals and 3 marlas situated in Dera Ismail Khan, where "MT", the owner, executed a mutation reflecting an exchange of land with the defendant, allegedly for better management

The plaintiff, claiming a superior right of pre-emption, instituted a suit asserting that the transaction, though recorded as an exchange, was in fact a sale

Trial Court treated the mutation as a sale and decreed that both parties, being co-owners in the same khata, were entitled to equal pre-emption rights

The appellate and revisional courts upheld this view

The legal issue requiring determination before the Supreme Court was "whether the transaction through mutation constituted a genuine exchange or a sale disguised as an exchange, thereby determining the applicability of the right of pre-emption under Section 5 of the KPK Pre-emption Act, 1987"?

Held: Courts below incorrectly surmised that the defendant failed to provide sufficient proof that the transaction was an exchange

The onus of proof primarily lay with the plaintiff (pre-emptor), who asserted that the recorded mutation represented a sale rather than an exchange

The mere failure of the defendant to establish the transaction as a legitimate and bona fide exchange did not automatically validate the conclusion that it was a sale

The absence of any credible proof indicating payment of price or a promise thereof led to the conclusion that the transaction documented in the mutation was an exchange rather than the sale claimed by the plaintiff (pre-emptor)

Courts below significantly misinterpreted the evidence presented and they also misapplied the relevant legal principles

According to Section 5 of the Act, the right of pre-emption was contingent upon the occurrence of a sale; this right did not extend to transactions such as gifts or exchanges

In the present case, the plaintiff (pre-emptor) failed to demonstrate that the transaction documented in mutation constituted a sale

Consequently, the plaintiff (pre-emptor) was not entitled to the decree he sought

Judgments and decrees issued by the courts below were legally untenable and same were set aside

Petitions were converted into appeals and petition brought forth by the plaintiff (pre-emptor) was dismissed and one brought forth by the defendant was allowed.

Though there should be no room to escape tax liability through official and institutional manipulation, however, in such cases, the Federal Board of Revenue / Respondent has to lay the reasons at the outset, which are conspicuously missing in the present case

It is axiomatic that no statute can muffle fundamental rights and must at all times advance the public interest and remain constitutionaly compliant

If the competent authority is of the view and opinion that the case of the petitioner /taxpayer falls within the mischiefs, which require condonation of delay for opening a past and closed transaction, there should have been reasons to do so

Forming an opinion by a competent authority requires that such opinion be supplemented with reasons

The Respondents / Department were bound to supply the reasons and petitioner / taxpayer was entitled to a reasoned order

Supplying reasons in an order or decision is not a choice, instead, it is incumbent upon the authority and an essential attribute of a sustainable order

The chain between the conclusion and fact in a decision is broken if there are no reasons

Term 'reasons' has not been defined in statutory law, but in common parlance or in terms of reasonable prudence, the presence of reasons is what confirms whether an order or decision is lawful, reasonable and complies with the provisions of law and element of reasonableness

The reason is very life of law, for when the reason of a law once ceases, the law itself generally ceases, because reason is the foundation of all our laws(Wharton's Law Lexicon)

Order passed by an authority must contain reasons, enabling an affectee to challenge the same before appropriate forum but if such an order does not contain reasons, the availing of remedy was of no avail as there will be no grounds to test the vires of such an order, which is meant to collapse for its own liability

Thus, the impugned order being devoid of any reasons, having been issued without an opportunity of hearing, could not withstand any test of due process and administration of justice

High Court set-aside the impugned order with the result that the Show-Cause Notices issued on the basis of the impugned order were declared bad in law and of no legal effect

Constitutional petition, filed by Company / Registered Person, was allowed accordingly.

There is no cavil that judiciary can examine the vires of legislation on the touchstone of the Constitution but the person throwing any challenge to the provisions of a statute is obliged to demonstrate that it either offends any of the fundamental rights or abrogates the provisions of the Constitution.

A suit for damages for malicious prosecution was filed by the respondent against the petitioner which emanated from FIR No.133/2018 lodged under Ss.420/448/506-B, P.P.C.

Suit was decreed for Rs.12 million

Appeal against the decision of Trial Court was dismissed

The legal point for determination in the whole proceedings was as to "whether the test for malicious prosecution was correctly applied by the courts below"

Held: The Supreme Court has time and again disparaged the tendency of frivolous litigation

Lodging of false FIRs has unfortunately become a norm which can only be curbed by awarding damages in favour of the individual who was wronged

Admittedly an FIR No. 133/2018 was initiated by the appellant under Ss.420/448/506-B, P.P.C.

It was also admitted that the prosecution ended in the favour of respondent

It was evident from perusal of the judgment of the Trial Court in the criminal case that the Trial Court specifically adjudicated that it was a "case of no evidence" and no evidence had been given by the appellant to connect the respondent with the alleged offence

It was also evident from the examination and perusal of the record that the appellant effected appearance in the suit, filed written statement and also filed his affidavit-in-evidence, however, the appellant despite being given repeated chances failed to appear for his deposition and only restricted himself to the cross-examination of the respondent

The argument of the counsel that the appellant was condemned unheard, was unwarranted for the reason that the said appellant participated in the proceedings and subsequently even cross-examined the respondent

The examination in chief filed by the appellant, in the absence of him being subjected to the test of cross-examination, was rightly not considered by the Trial Court and therefore not taken into adjudication

No substantial error or defect could be pointed out in the impugned judgment

The appeal was dismissed, in circumstances.

It is a pre-requisite qua maintainability of a constitutional petition to indicate any violation committed by the respondents' side under the rules and regulations by which petitioner was being governed

Constitutional petition would not be maintainable where petitioner failed to point any violation of law.

Service of Talb-i-ishhad is a pre-requisite and if the performance of the same is not proved beyond any shadow as well as in the prescribed form, then the whole structure falls on the ground.

Court is required to ascertain, if the witness either by writing or sign could make intelligible of what he had to speak

If such witness is able to communicate his statement perfectly by writing, it would be more satisfactory method of taking evidence

When such witness is unable to write, then he can make signs showing what he wants to say

If it is by signs, those signs must be recorded by the Trial Court and not only the interpretations of those signs

Court should be able to know whether the interpretation of the sign is correct or not

Not safe for a Trial Court to embark upon the examination of a deaf and dumb person on its own without help of an expert or a person familiar with his mode of conveying ideas to others in day to day life

Interpreter should not be an interested person, who had participated in the investigation and who is a witness in the same trial

Interpreter should be a person of the same surrounding but should not have any interest in the case and he should be administrated oath.

Contents of written statement are not to be taken into consideration nor to put the same in juxtaposition with that of plaint in order to gauge correctness or otherwise of anyone of the same

Such course can commence after it is determined that the suit is proceedable in normal course and held to undergo process of recording of evidence

Scope of jurisdiction made widen under the third category where if averments contained in plaint are to be rejected, the same course can be adopted on the basis of documents appended with the plaint or the one that retains status of "admitted documents" with an exception that the position beyond any doubt can also be taken into consideration in exercise of judicial power of appraisal of the plaint

While dealing with an application under O.VII, R.11, C.P.C, Court can take into consideration plaint and documents annexed therewith besides admitted documents or admitted position.

Complainant claimed ownership on the basis of sale agreement, allotment order and possession order issued by the Housing Society and stated that his son, who was also his attorney, came to the city and found the respondents in occupation of the property

Trial Court dismissed the complaint, inter alia, on the ground that on the basis of utility bills and the statement of neighbourer, respondent seemed to be in possession of the property since 2002

Validity

Basic ingredients for setting into motion the provisions of Illegal Dispossession Act, 2005 were lacking in the present case as it was not the case of complainant that he was in possession of the property and that the respondents on certain date and specific time illegally entered the property in question and forcibly or illegally dispossessed him therefrom

Respondents had been in possession of the premises for a considerable period which was even admitted by the complainant by stating that due to non-payment of utility bills by respondents their gas and electricity connections were disconnected

Nowhere in the entire complaint, complainant had alleged his illegal or forcible dispossession at the hand of respondents

Application, being meritless, was dismissed.

Scope of Illegal Dispossession Act, 2005 is very limited and the Court, exercising powers under S. 3 of the Act, is supposed to determine merely the fact as to who was in actual physical possession of the property before filing of the complaint and whether the complainant was dispossessed in an illegal and unlawful manner by the persons arrayed as accused/opponent in such complaint

Court is not competent to give any findings with regard to the title or ownership or, for that matter, in respect of authenticity/genuineness of a document.

While seeking such an alteration/correction, a declaration was sine qua non which could only be issued by the Civil Court of competent jurisdiction on the basis of evidence produced during the proceedings regarding the authenticity of the subject matter.

According to R.4(5) of the National Database and Registration Authority (Pakistan Origin Card) Rules, 2002 ["the Rules"] as originally promulgated, foreign spouses of citizens of Pakistan were allowed to be issued POC

However, the said R.4(5) was amended vide notification No.4/2/2012-NADRA dated 30.12.2015 according to which issuance of POC to foreign spouses of Pakistani citizens was discontinued

Subsequently considering the immense difficulties faced by foreign spouses of citizens of Pakistan the Ministry of Interior forwarded a summary for the Cabinet (dated 20.02.2018) recommending therein withdrawal of the NADRA notification along with restoration of the corresponding R.4(5) and other rules

Cabinet approved said proposal and resultantly the said NADRA notification was withdrawn, and the rules were restored to their previous/original position

Despite such development the Ministry of Interior (vide letter No.4/2/2012- NADRA dated 08-03-2018) introduced the eligibility condition of five years of marriage (for issuance of POC to foreign spouses) in violation of the approval of the Federal Government (Cabinet) which had stipulated that the rules had been restored to the previous/original position

Since the power to make rules laid only with the Federal Government as per S.44 of the National Database and Registration Authority Ordinance, 2000, the introduction of the condition of five years marriage by the Ministry of Interior was ultra vires, and therefore set aside by Supreme Court.

Petitioner submitted application regarding her forcible dispossession by respondents from the house to the District Police Officer, who after inquiry submitted complaint under S.145, Cr.P.C. to the Magistrate

Respondents asserted that complaint was not maintainable while the Magistrate held that the complaint was maintainable as there was apprehension of breach of peace

Revisional court vide impugned order held that the complaint under S.145, Cr.P.C. was not maintainable

Validity

Proceedings under S.145, Cr.P.C. were meant to avoid breach of peace and in no way were meant to decide a title dispute or to restore possession

Section 145, Cr.P.C. laid down that complaint was to be presented with proof of dispossession within two months of its filing, but said application submitted to District Police Officer did not reveal any specific date or period of dispossession

Petitioner and respondents were siblings and no doubt the former might have claimed share in disputed property, but the same could not be adjudicated upon under S. 145, Cr.P.C. that had got a very limited scope and infringement of private right or dispossession of any of the parties was per se not enough to attract S.145, Cr.P.C.

Section 145, Cr.P.C. was meant to meet an emergent situation posing a threat to peace and could not be used for settling rights of the parties or their claim to title

Import of subsection (5) of S.145, Cr.P.C. was that where there was no breach of peace then the Magistrate had no jurisdiction to make order regarding subject of dispute

Revisional court had rightly appreciated the facts and circumstances of the case and arrived at right conclusion, which order was not open to interference under S. 561-A, Cr.P.C.

Petition, being devoid of merits, was dismissed.

Landlord contended that first appellate court had rightly passed ejectment order on the basis of wilful default by the tenants

Validity

Record revealed that tenants had not deposited the rent in court which was essential pre-requisite

Even if tenants had not accepted the new owner as landlord they were legally bound to deposit rent in the court which they had not done deliberately

Despite the fact that tenants claimed the monthly rent to be Rs. 100/- per month in current high rise period of inflation the same had not been deposited in the court

Tenants had simply relied on the receipt of money order sent to the previous owner but the same did not absolve their liability to deposit rent in the court after institution of ejectment proceedings

Copy of notice sent to the tenants was exhibited by the landlord with the ejectment petition which negated the contention of tenants regarding non-issuance of notice by the new owner

No illegality or infirmity having been noticed in the impugned order passed by first appellate court

Second appeal of tenants was dismissed accordingly.

When an advocate was elevated as Judge of the High Court (AJ&K) his experience at Bar was not liable to be treated towards length of his service for the purpose of pensionary benefits.

Condition precedent for grant of benefit of presumption of truth to a document which was more than 30 years old was that there was no doubt about the valid execution of the same

Where a party to the case alleged such a document to be forged, then onus was on the other party relying on the same to prove execution of the document in accordance with law, as the presumption under Art. 100 of Qanun-e-Shahadat, 1984 would not apply.

Not mandatory that a licensee must possess a certain property in the area for taking out the procession since it was the consent of the owner of the property which was required to carry out procession from his place

Even otherwise, participants of a procession walked on the public roads and streets, therefore, the ownership of any property for issuance of the license would be meaningless.

Constitution of meeting/Majlis was not proved, nor the information allegedly disclosed in the plaint had been substantiated with confidence inspiring evidence

Presence of witnesses in the Majlis had not been established and plaintiff and his witnesses were at variance in this point

Contradictions made in the evidence were grave in nature

Plaint filed by pre-emptors did not mention place of Talb-e-Muwathibat which omission was sufficient reason to non-suit the plaintiff

Lower Courts had rightly dismissed the suit in circumstances

High Court dismissed revision petition being devoid of merit.

No contract for sale of valuable agriculture land comes into being, without payment of consideration.

Accused persons were convicted and sentenced to rigorous imprisonment for life on the basis of confessional statement from which they retracted thereafter

Validity

Prosecution witnesses had not made any allegation against the present accused with regard to commission of offence

Only piece of evidence to connect the accused with the offence was alleged confessional statements recorded by them

If a conviction was to be based solely on confessional statement then court had to satisfy itself that same was voluntary, made promptly and had fulfilled the necessary pre-requisite

Accused should be informed and explained before recording confessional statement that whether or not he made the confession his custody would not be handed over to the police which had brought him there

Alleged confessional statements had been retracted by the accused

Corroboration in material particulars in cases of retracted confession was essential

Conviction could not be based solely on a retracted confession

No evidence had come against the accused in the present case

Contradictions between ocular and medical evidence were on record with regard to alleged time of death and time mentioned in the postmortem report

No corroboration of material particulars existed with the alleged retracted confessional statements

Prosecution was bound to establish its case beyond any doubt

Not only the confession was involuntary but same was also not corroborated by any single piece of evidence to connect the accused with the offence

Prosecution had failed to establish its case against the accused

Conviction and sentence awarded to the accused were set aside and they were acquitted of the charge

Accused should be released forthwith if not required in any other case

Appeal was allowed in circumstances.

Underlying principle of law of pre-emption was that the pre­emptor had to own property before he could exercise such right.

Where a claim was raised and finally settled through accord and satisfaction by payment or adjustment, there would be no "existing dispute" requiring resolution through arbitration

Where the original contract was substituted through novation, lawful rescission or alteration the arbitration clause therein may also perish thereby precluding a reference to the arbitrators

Factum of such final settlement may be disputed

Settlement being a sub-specie of contract, its validity may be contested on the ground of having been obtained through exercise of undue influence or coercion, or on any other ground available under the law

Acceptance of the settlement may be equivocal or "without prejudice" or substantial questions as to its true import meaning or effect may be raised by the opposite side

In such eventualities, a dispute arising from the contract would exist requiring adjudication by the forum chosen by the parties i.e. arbitrators and appropriate orders in such behalf may be passed under S.20 of the Arbitration Act, 1940, provided such dispute had been raised and was before the court seized of an application under S.20 of the said Act.

Letter issued by the appellant-company to the respondent-company quantifying the amount due to them as full and final settlement

Payments in terms of the letter received by appellant-company as full and final settlement

Subsequent to receiving such payment appellant-company filed an application in court under S.20 of the Arbitration Act, 1940, alleging therein that the payment due under the contract had not been made by the respondent-company and illegal deductions had been made, and that respondent-company should be directed to file the agreement in the court and an order should be passed, referring the dispute to the arbitrators

Legality

Appellant-company in its letter had quantified the final value of the work under the agreement and a full and final claim including for additional works was made

Settlement offered by the appellant-company was clear and unambiguous, without any reservation and was not "without prejudice"

Authenticity of such settlement offer was acknowledged and admitted

Amount as identified was admittedly paid to and received by the appellant-company, thus, claim raised by the appellant-company was fully and finally settled by the respondent-company leaving no existing dispute

Absence of an "existing dispute" was a "sufficient cause" for the court in terms of S.20(4) of the Arbitration Act, 1940 for declining to direct filing of arbitration agreement

High Court had rightly held that there was no existing dispute between the parties, hence there was sufficient cause for not directing the filing of arbitration agreement

Appeal was dismissed accordingly.

Existing dispute relating to a matter falling within the ambit of the arbitration agreement was a sine qua non for invoking the jurisdiction of the court under S.20 of the Arbitration Act 1940 and the absence thereof would be a "sufficient cause" in terms of S.20(4) of the said Act for declining to direct filing of arbitration agreement.