Procedure

Referee Judge enhanced compensation amount of acquired land from Rs. 100/- per sq. feet to Rs. 300/- per sq. feet along with 15% compulsory acquisition charges

Validity

Acquired land was situated near the road which was not only important for commercial purpose but for residential as well

Land Acquisition Collector had based his award on the average price for a period of one year

Criteria of one year average could not be made basis for assessment of compensation amount of acquired land

Land had been acquired in the interest of general public and compensation should be fixed in the light of criteria of a willing vendor and that of a needy vendee

Compensation awarded by the Land Acquisition Collector in its award was not according to legal and equitable criteria

Compensation amount of Rs. 300/- per sq. feet demanded by the landowner was proper, in circumstances

Land Acquisition Collector had not considered the record properly produced by the landowner

Impugned judgment and decree passed by the Court below were in accordance with law and in consonance with evidence available on record

Appeal was dismissed, in circumstances.

Applicant was aggrieved of non-issuance of certified copy of order passed by High Court on the ground that the conditions mentioned in the order had not been complied

Validity

Certified copies of order(s) passed by High Court are issued under the powers vested in the Office of High Court under Volume V, Chapter 5, Part A of High Court (Lahore) Rules and Orders, which relate to inspection of records and Copy Branch Rules relating to issuance of certified copies of orders passed by High Court, whereas Part B of Chapter 5 of Volume V of High Court (Lahore) Rules and Orders relates to grant of copies and translation of records

Certified copies issued under High Court (Lahore) Rules and Orders unless rebutted through evidence, have presumption of law relating to authenticity attached to the same

When order in question was operative in its own terms, the Office could not treat the same as inoperative and decline to issue its certified copy

Office while issuing certified copy, if so deemed necessary to ensure that issuance of certified copy might not be misinterpreted, could have given a note/endorsement on the certified copy of the order that the condition mentioned therein had not been complied with by then

High Court set aside the order passed by office of High Court

High Court directed Deputy Registrar (Judicial) to issue certified copy of conditional order passed by High Court and if deemed necessary, with endorsement on the same that till the date of issuance of certified copy of the order, the condition mentioned therein had not been complied with

Application was allowed in circumstances.

When vendee fails to produce one of the two attesting witnesses and no sufficient reason for his non-production is brought on record and also no effort was made to have him summoned through the Court, in this way the vendee/beneficiary of the agreement withholds best piece of evidence

Hence, presumption would be drawn that if he had produced that witness in evidence, he might have deposed against him.

Any breach of duty, default or negligence by a director in contravention of the articles of the company or any of its policy may be ratified by the company through a special resolution and the Commission may impose any restriction as may be specified

The requirements of special resolution have been spelt out in S.2(66)

A special resolution can only be passed by a majority of not less than three-fourths of such members of the company entitled to vote as are present in person or by proxy at a general meeting

The connotation is that past acts of default of a director may be ratified by a company if it chooses to do so and by a special resolution only.

Findings against taxpayer (lady/individual) were premised on the fact that she was unable to furnish the Computerized Payment Receipt (CPR) of the tax applicable

Validity

The procedure prescribed under Assets Declaration Ordinance, 2019, showed that the deposit of tax was to be made from outside Pakistan in National Bank of Pakistan in relevant Account No/Swift Code and , in the present case, the same was evident as the proof of payment i.e. money having been transferred by appellant/ taxpayer through her maintained Bank; hence , it was established that the appellant on its own part had done the job well in accordance with law and procedure provided by the Government of Pakistan was followed in letter and spirit

Moreover, said procedure provides that after verification by NBP Karachi regarding receipt of money in the said account, the concerned officer of FBR shall input amount so received in the designated field and in case of short payment, the system will generate SMS/email for the taxpayer regarding the short payment, which can be deposited in cash with the designated NBP branches in major cities

It was agitated by the appellant that concerned officer constantly insisted for provision of CPR despite the fact that appellant had already deposited the tax as evident from payment proof

Therefore, the taxpayer had done her job well in accordance with law, so now onus was upon the Department to reject the version of taxpayer with corroborative evidence

If a person is required by law to do something which becomes impossible for him to do not on account of his own negligence or fault, he cannot be said to have failed to perform that which the law or an order passed under the law required him to do

Appellant had proved her case with evidence and the departmental action seemed to be violative of law and rules prescribed by the Government of Pakistan

Appellate Tribunal Inland Revenue vacated the impugned order, however, the Department would be at liberty to initiate proceedings in accordance with law in case of having sufficient material

Appeal, filed by taxpayer, was allowed accordingly.

Order for placement of a citizen on PCL cannot be issued in a mechanical fashion without recording reasons and stating grounds applicable to the circumstances of the citizen in terms of R. 23(6) read with R.21 of Passports Rules, 2021

Unless a penal order directing that passport of a citizen be impounded, confiscated, cancelled or inactivated is passed while identifying relevant grounds that mandate that the citizen's right to liberty and travel ought to be interfered with in accordance with law, such order would not be sustainable in the eyes of law

It is only where an order finding that a citizen's passport is liable to be impounded, confiscated, cancelled or inactivated has been so passed, can the relevant Division of Federal Government and Directorate General, Immigration and Passport discharge their ministerial function of placing name of such individual on PCL in terms of R. 22(2) of Passport Rules, 2021.

Where a citizen has already been issued a passport, then there has to be an order passed by Federal Government in accordance with the provisions of Passports Act, 1974 read together with Passports Rules, 2021 determining that a citizen, with a valid passport, is liable to have his passport impounded, confiscated or cancelled due to any of the grounds mentioned in R. 21 of Passports Rules, 2021, applicable to his case

It is after such determination that immigration officer at relevant border or a check post would be aware that R. 21 of Passports Rules, 2021 applies to the citizens seeking immigration services at such border or check post and that the services are to be refused to him/her and his passport is to be impounded and sent to Director General Immigration and Passports.

Petitioner, having initially been appointed as Lady Instructor against a scheme of Social Welfare and Women Development Department, was later appointed as Headmistress B-14 against a scheme named as Establishment of Employment and Women Development Centre

Petitioner assailed order whereby the High Court ordered to advertise the post-in-question and to place the matter before the Selection Committee for consideration

Stance of the petitioner was that a right had accrued in her favour as she occupied the post-in-question after determination of merit while post-in-question had subsequently been shifted from a development scheme to normal budget; hence, there was no need to advertise the post-in-question and place the matter before the Selection Committee for consideration

Validity

Pertinently, in Azad Jammu and Kashmir, the appointments in the service were regularized under the Azad Jammu and Kashm?r Civil Servants Act, 1976 and Rules made thereunder ; the spirit of said law emphasized that the appointment should be made on the basis of merit determined by the concerned selection authorities

Azad Jammu and Kashm?r Interim Constitution Act, 1974, has guaranteed the right of equality before law and equal treatment of law, thus, this right can only be enforced by following the prescribed mode for appointment by advertising the vacancies and determining the merit of the eligible candidates through a transparent selection process

Law does not admit any such mode that any person who has been appointed on temporary / contract basis and thereafter becomes entitled for permanent induction, it may amount to violate the constitutionally guaranteed fundamental right of equality before law and the enforced law regulating the mode of appointment

In the present case, the appointment orders of the petitioner postulated that she was appointed purely on temporary basis against a development scheme

Later on, the posts of that scheme were shifted to normal budget (vide notification dated 11.10.2010)

After shifting of the post to the normal budget it was enjoined upon the concerned authority to fill in the same after following the procedure prescribed in the statutory law i.e. Azad Jammu and Kashmir Civil Servants Act, 1976, but the same had not been done as yet

Without following the due process of law, the services of the petitioners could not be regularized

Thus, stance taken by the petitioners was ill-founded, hence, was repelled

Findings recorded by the High Court in the impugned judgment were in consonance with the statutory law dealing with the subject matter, however, the impugned judgment was modified to the extent that the selection process shall be conducted within a period of four months from communication of present order

Petition was disposed of accordingly.

Such requirement can be relaxed under certain circumstances, particularly, in election matter pending before Election Tribunal, which can adopt any course of action to regulate its proceeding instead of following technicalities of C.P.C., except such provisions specifically made applicable for limited purposes.

Provincial Government was aggrieved of direction issued by High Court to adopt special measures to regularize services of respondents / contract employees

Validity

Creation of new posts and change in employment status of respondents were decisions that fell squarely within the purview of R. 19 of Punjab Government Rules of Business Rules, 2011

Absence of Finance Department's approval for such decisions clarified the fact that there is no approval by Provincial Government

Posts were not approved for regularization

Employees cannot claim regularization as a matter of right

Regularization requires a statutory or legal backing and in absence of such a framework, Courts cannot impose any obligation on Government

Mere passage of time or length of service does not give rise to a vested right to regularization

There was no approval by Cabinet and no approval by Finance Department

Matter of regularization was never placed before Cabinet therefore, no recommendations could create any right in favour of respondents / contract employees

Supreme Court set aside judgment passed by High Court

Appeal was allowed.

Provincial Government was aggrieved of direction issued by High Court to adopt special measures to regularize services of respondents / contract employees

Validity

Creation of new posts and change in employment status of respondents were decisions that fell squarely within the purview of R. 19 of Punjab Government Rules of Business Rules, 2011

Absence of Finance Department's approval for such decisions clarified the fact that there is no approval by Provincial Government

Posts were not approved for regularization

Employees cannot claim regularization as a matter of right

Regularization requires a statutory or legal backing and in absence of such a framework, Courts cannot impose any obligation on Government

Mere passage of time or length of service does not give rise to a vested right to regularization

There was no approval by Cabinet and no approval by Finance Department

Matter of regularization was never placed before Cabinet therefore, no recommendations could create any right in favour of respondents / contract employees

Supreme Court set aside judgment passed by High Court

Appeal was allowed.

Provision of S. 8(1) of Arbitration Act, 1940 empowers a party to serve a notice on other party to concur in appointment of arbitrator etc., where arbitration agreement provides reference to one or more arbitrators appointed by consent of parties and parties do not, after differences have arisen, concur in appointment or appointments

If appointment is not made within fifteen clear days after service of such notice, then under S. 8(2) of Arbitration Act, 1940 Court may, on application of the party which had given notice and after giving the other parties an opportunity of being heard, appoint arbitrator or arbitrators or umpire, as the case may be.

Procedure for appointment of arbitrator, as provided in arbitration agreement, must be given effect.

Accused was arrested for selling varieties of therapeutic goods including allopathic drugs which were either unregistered, suspected to be spurious, lacked essential manufacturing and enlistment details or were without warranty

Accused sought bail after arrest on the plea that FIR was registered without following the prescribed procedure

Validity

In R.5(3) of Punjab Drugs Rules, 2007, use of word "shall" in phrases like "shall examine" and "shall issue a show cause notice" suggested that the provision was mandatory, requiring strict adherence

Although R.5 of Punjab Drugs Rules, 2007 does not explicitly outline penalties for non-compliance, its primary purpose is to protect individual rights by ensuring procedural fairness through issuance of show cause notice and opportunity to be heard

Failure to comply with R.5 of Punjab Drugs Rules, 2007 render any action taken as invalid

Order in the nature of writ of certiorari and mandamus is to foster justice and correct a wrong

Courts of law are not supposed to perpetuate what is unjust and unfair, instead they should explore ways and means to undo what was unjust and inequitable

High Court directed the authorities to release the petitioner and quashed the FIR

High Court directed the authorities to place the case before District Quality Control Board for de novo proceedings after issuing show cause notice under R.5(3) of Punjab Drugs Rules, 2007, to petitioner and affording him an opportunity of hearing

Constitutional petition was allowed accordingly.

Plea raised by petitioner/husband was that marriage between spouses relating to "Fiqah-e Jafria" could only be dissolved after recitation of "Seeghas" by husband without any influence or coercion

Validity

Wife can seek dissolution of marriage by way of Khula from Court even if her husband does not give consent for the same, and even if spouses belong to "Shia" sect

In suit for dissolution of marriage on failure of reconciliation proceedings, Family Court under section 10 (5) of Family Courts Act, 1964 immediately passes decree for dissolution of marriage and in case of dissolution of marriage through Khula, may direct wife to surrender upto fifty percent of her deferred dower or upto twenty five percent of her admitted prompt dower to husband

No clog can be imposed upon power of Family Court to dissolve marriage on the basis of Khula, when reconciliation is not possible

High Court declined to interfere in judgment and decree passed by Family Court, which while dissolving marriage through Khula in exercise of powers conferred under section 10(5) of Family Courts Act, 1964 did not commit any illegality

Constitutional petition was dismissed, in circumstances.

Petitioners / plaintiffs claimed that they were owners in possession of suit property on the basis of agreement to sell executed in year 1943 in favour of their predecessor-in-interest by predecessor-in-interest of respondents / defendants

Suit and appeal were concurrently dismissed by Trial Court and Lower Appellate Court

Validity

When no attesting witness is found, it is obligatory under Art. 80 of Qanun-e-Shahadat, 1984, upon party to prove factum of death of its witnesses that they have died or cannot be traced out

Findings of both the Courts below on question of facts and law were based upon proper appreciation of oral as well as documentary evidence produced in suit

High Court in exercise of revisional jurisdiction declined to interfere or substitute findings of two Courts below

Revision was dismissed, in circumstances.

Suit filed by petitioner / plaintiff was decreed in his favour by Trial Court but Lower Appellate Court dismissed the same

Validity

Petitioner / plaintiff claimed ownership of suit property through his father, as one of his legal heirs

Suit was filed on 08-01-2008 i.e. fifty-eight (58) years after execution and registration of alleged mutation in favour of respondent/Tehsil Municipal Administration

During his lifetime, father of petitioner / plaintiff never asserted any right or claim over the property on the basis of alleged sale deed

Petitioner / plaintiff did not inherit any asserted or recognized right from his predecessor-in-interest, therefore, he lacked locus standi to file civil revision

Petitioner / plaintiff adopted an unconventional method by summoning officials of revenue department to testify existence of alleged registered sale deed

Such document constituted secondary evidence within the meaning of Art. 74 of Qanun-e-Shahadat, 1984

Record was silent as to whether requisite permission for production of secondary evidence was sought or granted under Art. 76 of Qanun-e-Shahadat, 1984

Official witnesses deposed that a copy of registered sale deed dated 03-01-1956 was available on record but the witness had never stated that it was a genuine document

In absence of such compliance, the document could not be treated as admissible evidence

Petitioner / plaintiff nor his father took any steps to assert or reclaim possession thereafter and had failed to refer to any application or proceeding in that regard

As per revenue record for the year 2003-04, respondent/Tehsil Municipal Administration had been lawful owner in possession of suit property since its transfer

Each and every issue was discussed in detail and reasons were assigned by Lower Appellate Court for reversing findings of Trial Court

High Court in exercise of revisional jurisdiction declined to interfere as petitioner / plaintiff failed to point out any jurisdictional error, illegality, material irregularity, or misreading/non-reading of evidence in the judgment passed by Lower Appellate Court

Revision was dismissed, in circumstances.

Respondent/employee while working as Operator with petitioner-company was proceeded under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (Ordinance) on the allegation of misconduct

Duties, being performed by a person, are determining factor to adjudge as to whether he/she is a workman or not

Prosecution witnesses deposed in their examination in-chief that respondent had been performing duties of manual nature, thus, the plea of petitioner-company that the accused employee did not fall within the category of a workman, being contrary to the record, could not be given any weightage

Disciplinary proceedings were initiated against the respondent/employee for alleged violation of Standing Order No.15(3)(a) & (h) of the Ordinance, which starts with the words that a workman may be reprimanded or fined meaning thereby that the same is meant for a worker

Respondent filed grievance petition under S.33 of Punjab Industrial Relations Act, 2010 (Act) and the preamble thereof shows that the same has inter alia been enacted to regulate relations between employers and workmen

From inception of disciplinary proceedings upto issuance of dismissal letter of respondent, the petitioner-company itself had been relying upon different provisions of the Ordinance

Punishments provided under Standing Order 15 of the Ordinance are only meant for a workman and if the same was inapplicable to respondent, the entire proceedings conducted against him would stand nullified

Employer could not be allowed to blow hot and cold in the same breath inasmuch as once the status of a person had been admitted as workman, the same could not be allowed to be retracted without any change in the nature of his work

Constitutional petition was dismissed, in circumstances.

Goods Declarations (GDs), regarding injections for kidney transplant claiming certain exemption of duties / taxes, were released ; thereafter the Department made re-assessment of the GDs under S. 80(3) of the Customs Act, 1969 ('the Act 1969')

Validity

Post-release verification, in the present case, reflected that powers had been exercised under S. 80(3) of the Act, 1969 after release of the goods and the GDs had been re-assessed, which, admittedly, has been done without issuance of any show cause notice as provided under S.32 of the Act, 1969

Pertinently , in terms of S. 80 (3) of the Act, 1969, powers can only be exercised during checking of Goods Declaration (GD), and not thereafter ; as it is not that said power would continue to be available at all times

Said power stops once the GD has been assessed to duty / taxes and consignment has been released; thereafter, no re-assessment can be made under S. 80(3) of the Act 1969 and the only recourse available is either through a proper Show-Cause Notice under S. 32 of the Act, 1969 or by way of an Appeal in terms of S. 193 of the Act, 1969 and lastly in exceptional circumstances if so permitted, under S. 195 of the Act, 1969

Thus, no jurisdiction or authority was vested in the officer to re-assess the GDs in terms of S. 80(3) of the Act, 1969, after the goods were out of charge and cleared by the Customs Department

Proposed question was answered against the applicant / department and in favor of the respondent / importer

Reference applications were dismissed.

Customers filed appeal as the Banking Court, after dismissing their application to leave to defend, decreed suit against them, relying on submitted documents

Validity

Pertinently, S. 9(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ('the Ordinance 2001') provides that the plaint shall be "supported" by a "Statement of Account" which shall be duly certified under S. 2(8) of Bankers' Books Evidence Act 1891 ('the Act 1891')

The "Statement of Account" is a continuous daily posted record showing in detail all debits , credits and balance as on the close of the period , giving dates and description, permitting customer to verify the Bank's record with his own

Therefore, the "statement of account" is a basic document that is filed by a financial institution before the Court in discharge of its mandatory duty under S. 9(2) of Ordinance, 2001

If such "statement of account" is not filed along with the plaint, a customer will obviously remain totally unaware of the record

In the present case, the Statement of Account filed by the Respondent-Bank with plaint in the suit, being incomplete and unsubscribed by the principal accountant or manager, did not fulfill the mandatory requirement of the provisions of S. 9(2) of the Ordinance 2001 and Ss. 2(8) & 4 of Bankers' Books Evidence Act 1891 ('the Act 1891'), therefore, the same did not qualify as a "Statement of Account" duly certified under the Act 1891, as it did not contain the details of entire transactions between the respondent /Bank and appellants/customers during finance limit period

Besides, Statement of Account was undated and had been subscribed allegedly by an attorney of the Respondent-Bank instead of being subscribed by its principal accountant or the manager, as required under S. 2(8) of the Act 1891

It was only the principal accountant or the manager of the financial institution who alone could certify the statement

Hence, a Statement of Account signed/subscribed by the Attorney of the bank cannot be treated as a duly certified copy within the meaning of S. 2(8) of the Act 1891

It appeared that the Trial/Banking Court had ignored the mandatory provisions of S. 9(2) of the Ordinance, 2001 and Ss. 2(8) and 4 of the Act, 1891 while decreeing the suit of the Respondent and had wrongly treated the Break-up of Account as Statement of Account which did not contain the requisite information and detail as required under proper statement of account; hence, the impugned judgment/decree passed by the Trial Court was not sustainable in law

Appellate / High Court set-aside the judgment and decree as well as dismissal order of application for leave to defend the suit and remanded the case to the Banking Court to decide the application of the appellants for leave to defend as well as the suit afresh, while the respondent-Bank would be at liberty to file proper Statement of Account in terms of S. 9(2) of the Ordinance, 2001 and Ss. 2(8) & 4 of the Act 1891, and in such case, the appellants may raise/file such objections thereon as they may deem fit

Appeal, filed by customer, was allowed accordingly.

If accused has a defense plea, the same should be put to witnesses in cross-examination, and then same should be put forward while recording statement under S.342 Cr.P.C.

Issue of repair of premises has been encompassed in S. 12 of Sindh Rented Premises Ordinance, 1979 and gives responsibility to landlord to make necessary repairs other than structural alteration to the premises

On failure of such obligations, issue can be raised before Rent Controller by tenant by moving an application

Rent Controller may direct landlord, after an inquiry, as required and deemed necessary by Rent Controller

If Rent Controller thinks necessary that such repairs may be made by tenant, only then the cost may be deducted from rent which is payable by tenant and not otherwise

Rent of the premises cannot be withheld unless order as required under S. 12 of Sindh Rented Premises Ordinance, 1979, was passed directing landlord to carry-out repairs and the amount as adjudged, and only then tenant could be permitted to withhold the amount subject to the condition that such amount as adjudged was actually spent

Division Bench of High Court declined to interfere in the order passed by Judge in Chambers of High Court

Intra Court Appeal was dismissed, in circumstances.

Issuance of notices under Ss. 137 and 138 of Income Tax Ordinance, 2001 are also required as taxpayer may have filed an estimate for purposes of S. 147(6) of Income Tax Ordinance, 2001 which may then have been rejected by tax department in exercise of authority under second proviso of S. 147(6) of Income Tax Ordinance, 2001 or proviso to S. 147(6B) of Income Tax Ordinance, 2001 as applicable, in which case due date for payment of advance tax would have already passed

Tax department initially invites taxpayer to discharge liability to pay advance tax on a voluntary basis under S. 137 of Income Tax Ordinance, 2001 failing which it may notify the taxpayer of its intention to use its coercive powers under S. 138 of Income Tax Ordinance, 2001 to recover advance tax

This is the scheme for collection and recovery of advance tax, which has been incorporated by virtue of S. 147(7) of Income Tax Ordinance, 2001

Any recovery affected without issuing such notices would be in breach of requirements of S. 147(7) of Income Tax Ordinance, 2001 read with Ss. 137 and 138 of Income Tax Ordinance, 2001 and fall foul of taxpayer's right to due process guaranteed by Art. 10A of the Constitution and would be illegal.

Where charge brought against a person is in terms of S. 32(1) of Customs Act, 1969, goods can only be confiscated to the extent that the person is found to have committed an offence punishable in terms of S. 156(1) read together with S. 32 of Customs Act, 1969

For the allegation against an importer that he has committed an offence, the penalty for which includes confiscation of goods, such penalty cannot be imposed until after the person is found guilty of the offence and is so convicted by a Special Judge competent to try the offence under provisions of Customs Act, 1969

Collector Customs (Adjudication) as an executive functionary is clearly vested with no authority to conduct trial and convict an importer for an offence under S. 32(1) read together with S. 156(1) of Customs Act, 1969.

Form or manner in which a party is to inform the Court as to its intention to assert its right to arbitrate is immaterial

Whether an application is captioned as having been filed under S. 34 of Arbitration Act, 1940; or under S. 4 of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011; or even under O. VII, R. 10, C.P.C., is also immaterial

As long as Court seized of an action is made aware of arbitration agreement between parties and intention of party against whom jurisdiction of Court is invoked to insist on having disputes resolved in accordance with arbitration agreement, it is immaterial whether such party files an application captioned as having been filed under S. 34 of Arbitration Act, 1940; under S. 4 of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011; or even under O. VII, R. 10, C.P.C.

Form or manner in which a party is to inform the Court as to its intention to assert its right to arbitrate is immaterial

Whether an application is captioned as having been filed under S. 34 of Arbitration Act, 1940; or under S. 4 of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011; or even under O. VII, R. 10, C.P.C., is also immaterial

As long as Court seized of an action is made aware of arbitration agreement between parties and intention of party against whom jurisdiction of Court is invoked to insist on having disputes resolved in accordance with arbitration agreement, it is immaterial whether such party files an application captioned as having been filed under S. 34 of Arbitration Act, 1940; under S. 4 of Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011; or even under O. VII, R. 10, C.P.C.

Record revealed that the Appellate Tribunal Mines and Minerals ('the Tribunal') entertained an appeal wherein petitioner, who had been Mineral Title Holder, had not been arrayed as party and the appeal was even allowed despite the fact that it had been brought to notice of Appellate Tribunal that petitioner had been the original Mineral Title Holder, as the discussion in impugned order devolved around said fact

Rule 19 of the Khyber Pakhtunkhwa Mines and Minerals Appellate Tribunal Rules, 2022 provided that any person likely to be adversely affected by any decision had to be arrayed as respondent and given due notice of appeal

It was strange that despite having knowledge of the fact(s), Appellate Tribunal closed its eyes and the affected person i.e., existing Mineral Title Holder (petitioner), could not be impleaded in appeal nor given any notice of pendency of such appeal

On both scores, impugned judgment of Appellate Tribunal was not sustainable

High Court directed that Appellate Tribunal would comply with its own Rules, particularly Rule 19 of Khyber Pakhtunkhwa Mines and Minerals Appellate Tribunal Rules, 2022

High Court set aside the impugned order passed by the Appellate Tribunal and remanded the matter to Mineral Titles Committee with direction to decide the same afresh

Constitutional petition was allowed accordingly.

Section 9 of the Oaths Act, 1873 ('the Oaths Act') provides that if any party offers to be bound by special oath or solemn affirmation, as mentioned in S. 8 of the Act, the Court, if thinks fit, can communicate the offer to other party or witness concerned

Section 10 of the Oaths Act provides that upon acceptance of the offer the Court can proceed with the administration of oath

Evidence/oath so given, then in terms of S. 11 of the Act, is binding upon the person who made the offer and it is deemed to be conclusive proof of the matter stated therein.

Petitioners filed constitutional petition as Member Board of Revenue while accepting the revision filed by respondents set- aside the order passed by the Additional Commissioner (Revenue) in their (petitioners') favour and restored the orders of review (cancellation) of mutation on the basis of decree for specific performance for having been incorporated directly by the Revenue Authorities i.e. without resorting to Executing/Civil Court

Question arose as to whether decree of specific performance could be implemented in the revenue record directly through mutation or it could be enforced only through filing of an execution petition?

Contention of the petitioners was that Revenue Officer was duty bound to incorporate said decree in the revenue record, through sanctioning of mutation

Validity

No doubt, the decree granted by the Civil Court is binding on the Revenue Authorities and they are bound by the law to give effect to the decree and change entries in the revenue record in accordance with the rights of the parties as determined by the Civil Court

However, S. 42(1) of the Punjab Land Revenue Act, 1967, provides that process of mutation would start from the time when a transaction of transfer (acquisition) of right in the property has been effected through inheritance etc. or otherwise such as decree of Civil Court

Decree for specific performance (of an agreement with regard to sale of the property) by itself does not transfer the title, as such decree only declares the right of decree-holder to have the property transferred in his favour covered by the decree, and so long as the sale- deed is not executed in his favour by the judgment-debtor or by the Court, the title of the property remains vested in the judgment-debtor

Unless the title in the immovable property is transferred by means of a registered sale deed, it cannot be deemed to have been transferred irrespective of the fact that an agreement to sell has been executed and a decree for its specific performance has also been passed

Purpose of the decree of specific performance is to get the sale-deed executed and procure possession in accordance with the condition mentioned therein, and so long as the sale deed is not executed in favour of the decree holder either by the judgment-debtor or by the Court, the title in the property vests in the judgment-debtor

Thus, in order to get title of the property on the basis of a decree for specific performance, the decree holder has to file an execution petition by invoking provision of O. XXI, R. 32 of the Code of Civil Procedure, 1908, which deals with decrees for specific performance, restitution of conjugal rights and injunction

It provides various modes and steps for execution of said types of decree

By executing the decree for specific performance not only a sale deed is executed in favour of decree-holder but the possession is delivered as well subject to conditions as mentioned in the agreement/decree

Decree for specific performance enjoins the parties to perform their part of agreement and on their failure to do so, Court itself performs those obligations by carrying out the act subject to conditions as mentioned in the agreement/decree

Decree for specific performance can not be directly implemented in the revenue record without indulgence of the executing court , who on execution of the decree shall get the sale deed executed in favour of the decree-holder and deliver the possession in accordance with the agreement/decree

Of course, after execution of sale deed , the revenue authorities would be bound to give it effect in the revenue record

Member Board of Revenue while accepting the revision filed by respondents had rightly set- aside the order passed by the Additional Commissioner (Revenue) in their (petitioners') favour, and restored the orders of review (cancellation) of mutation

Petition was dismissed, in circumstances.

Mubarat on the other hand is one of the forms of dissolution of marriage whereunder spouses may agree to part their ways through mutual consent

Contrary to both, a Muslim woman is also vested with the right to obtain divorce through Court of law by instituting a suit, which is termed as "Khula".

Under Rule 4(1) of the Punjab Local Governments (Legal Advisers) Rules, 2003 ('the Rules'), a local government desirous to engage a legal adviser on regular basis shall invite applications through advertisement at least in two national daily newspapers indicating the requisite qualifications, experience, standing of the advocate and minimum remuneration offered, while under R.4(2) of the Rules the candidates are advised to address their applications to the local government concerned and also forward a copy thereof along with annexures to the Government as defined under R.2(b) of the Rules which means the Government of the Punjab in the Law and Parliamentary Affairs Department

In terms of R. 4(3) of the Rules, the local government as defined under R.2(c) of the Rules shall forward to Government all applications of the candidates along with its recommendations which are placed before the Selection Committee constituted under R. 4(4) of the Rules

Rule 4(5) of the Rules provides that the committee shall approve the name of advocate to be appointed as legal adviser and the remuneration to be paid to him and the said approved advocate by the committee is appointed by the local government concerned on the terms and conditions fixed by the Government.

At the time of execution of agreement to sell, the respondent/defendant handed over possession of suit property to appellant/ plaintiff

Trial Court and Lower Appellate Court without determining title of suit property dismissed suit and appeal filed by appellant/plaintiff on the ground that respondent/defendant did not have any title in suit property

Validity

In the event a finding would be given that title of respondent/defendant to suit property was deficient, the appellant/ plaintiff was to be indemnified to the extent of losses that had occurred to him on account of respondent's/defendant's improper title to suit property

To decide such fact and enforcement of such term available in the agreement between the parties, issue was to be determined in terms of S. 19 of Specific Relief Act, 1877

High Court in exercise of jurisdiction under O. XLI, R. 25, C.P.C. framed additional issues and remanded the matter to Trial Court for recording additional evidence on the issues so framed

High Court directed Trial Court to return the evidence together with its findings thereon and reasons thereof to High Court for decision on appeal

Second Appeal was remanded accordingly.

Such proceedings can only be adjudicated by Civil Courts as provided under S. 53 of Sindh Land Revenue Act, 1967.

Appeal under S. 70(13) of Anti-Dumping Duties Act, 2015, is subject to same restrictions as a second appeal under S.100, C.P.C.

No new ground can be raised in appeal under S.70 (13) Anti-Dumping Duties Act, 2015, before Appellate Tribunal.

Petitioner /Civil Aviation Authority was aggrieved of order passed by Trial Court for appointment of an umpire for arbitration proceedings between the parties

Held, that requirement for appointment of umpire is intended to meet contingency of arbitrators with divided opinion

Where arbitrators are not at variance there is no occasion to refer matter to umpire, who can only be appointed if there are even number of arbitrators

Contract between parties required the arbitrators and not the parties to appoint the umpire

Respondents / contractors did not address notice in question for appointment of substitute umpire to the arbitrators but to petitioner / Authority

Such notice did not conform to requirements of S. 8(1)(b) of Arbitration Act, 1940

Respondents / contractors could not solicit concurrence in appointment of umpire from petitioner / Authority but from arbitrators as that was what the relevant clause of the Contract had provided for

Without a notice by respondents / contractors to the arbitrators to appoint the umpire in place of umpire nominated in contract, the application under S. 8 of Arbitration Act, 1940 could not be entertained by Trial Court, which ought to have pointed out respondents / contractors to the arbitrators who were to concur in the appointment of substitute umpire

As arbitrators had not been required by respondents / contractors to supply vacancy created by recusal of umpire nominated in contract to sit as the umpire, the requirements of S. 8(1)(b) of Arbitration Act, 1940, were not fulfilled, therefore Trial Court did not have jurisdiction to appoint an umpire under S.8(2) of Arbitration Act, 1940

High Court set aside the order passed by Trial Court and respondents / contractors were at liberty to request arbitrators to supply vacancy created due to recusal of umpire nominated in contract

Respondents / contractors could send a notice in writing under S. 8(1) Arbitration Act, 1940, to arbitrators requiring them to supply the vacancy within fifteen days of such notice, in case they did not appoint an umpire

In case arbitrators did not appoint umpire even after notice, then respondents / contractors could apply under S.8(2) of Arbitration Act, 1940, to Trial Court to supply the vacancy

Revision was allowed accordingly.

Provisions of Ss. 74 to 80 of Companies Act, 2017, deal with relationship between transferor/transferee vis-a-vis the company and not between the transferor and the transferee inter se

Such provisions deal with the steps to be taken by transferor or transferee vis-a-vis the company in order to give effect to their agreement for transfer of shares.

Authority may compound an offence under Pakistan Environmental Protection Act, 1997 with the permission of Environmental Tribunal or Environmental Magistrate

Such power can only be exercised on application of accused for compounding the offence.

Authority may compound an offence under Pakistan Environmental Protection Act, 1997 with the permission of Environmental Tribunal or Environmental Magistrate

Such power can only be exercised on application of accused for compounding the offence.

Arbitrator, whose fee / dues have been cleared is not prevented under Arbitration Act, 1940, to provide the parties with signed copies of award or original award in duplicate

Where arbitrator does not provide parties with such award on the ground that his fee / dues have not been cleared, provision of S. 38(1) of Arbitration Act, 1940, entitles a party to apply to Court, which can order arbitrator to deliver award to the applicant on payment into Court by applicant of fees / dues demanded

Where an award is delivered to party either by adopting process envisaged by S.38(1) of Arbitration Act, 1940, or otherwise, the party can file such award in Court and the Court thereupon gives notice to other party of filing of the award

Provision of S. 14 (2) of Arbitration Act, 1940, applies to a case where help of Court is sought for getting award filed in Court by calling upon arbitrator to file it

High Court set aside order passed by Trial Court and remanded the matter for further proceedings on appellant's application under S. 14 of Arbitration Act, 1940, praying for award to be made the rule of the Court

Appeal was allowed accordingly.

Parliamentarian votes or abstaining from voting in the House contrary to any direction issued by the parliamentary party to which he/she belongs

De-seating of member in default

Procedure

Pathway to de-seating the member in default does not self-actualize and become automatically operational

Member in default, who cast the proscribed vote, is not ipso facto de-seated

Article 63-A(1)(b) of the Constitution has placed a "gateway" along this pathway, which is to leave it to the discretion of the Party Head whether to proceed to making a declaration of defection, which must precede the de- seating

So, it could be that the "gateway" never opens and the member in default continues to remain a parliamentarian and part of the parliamentary party concerned.

Dispute between the parties was with regard to use of water from natural water spring for the purposes of irrigation of agricultural land

Trial Court and Lower Appellate Court referred the matter to mediators to submit their award

Validity

Powers of Magistrate were not curtailed to pass final order under S. 145(5), Cr.P.C., after holding inquiry in case of failure to pass preliminary order under S. 145(4), Cr.P.C. within two months

Only restriction imposed was that the party to whom possession was restored must have been dispossessed within two months of the complaint

Magistrate while conducting inquiry was not competent to decide either title of property or its right to possession

Magistrate was only empowered to make inquiry under S. 145, Cr.P.C., to regulate possession of property in dispute for the time being to avert apprehension of breach of peace

High Court set aside orders passed by two Courts below and remanded the matter to Trial Court for decision afresh

Constitutional petition was allowed accordingly.

Objection to admissibility of a document in evidence has to be decided then and there instead of deferring the same till the end of trial and even at the time of passing final judgment.

During pendency of appeal, Lower Appellate Court declined to allow petitioner/ defendant to adduce additional evidence in her support

Validity

Where a party challenged vires of a mutation in revenue record, it became essential for the other party who was deriving any title from such transaction to prove valid execution of mutation in question

Entries made in record of rights had strong presumption in favour of the party who derived title from such entries but the presumption could be rebutted, if evidence was led to that effect and it was essential for the party relying on such entries to bring them on record

When vires of a mutation was direct in issue, Court could not pronounce a just judgment without looking at the documents which were in dispute and without recording statements of those who wished to prove or disprove documents in question

Such factor was sufficient to bring the case within the expression "sufficient cause" which appeared in O. XLI, R. 27, C.P.C.

When persons who allegedly put their thumb impressions and signatures on the mutations denied doing the same then Lower Appellate Court should have permitted opinion of Finger Prints Expert as additional evidence but by failing to do so it had failed to exercise jurisdiction vested in it

High Court in exercise of revisional jurisdiction set aside order passed by Lower Appellate Court and permitted petitioner/plaintiff to produce additional evidence

Revision was allowed, in circumstances.

Bald statement about commission of fraud is of no legal consequences.

Government is competent to issue instructions and guidelines for smooth running of its departments and offices and, more particularly, to structure discretion of officers which is imperative for good governance

Such instructions and guidelines should not be strident with the Constitution, statutory law and rules validly framed thereunder.

Thirty years old document that was presumed to be true, but merely on the basis of such presumption, Court could not decide the fate of fixing of future liability

When there were rules, court had to observe all those rules, if otherwise, the court would explain why those rules were overlooked.

Petitioner's wife converted to Islam and contracted marriage with respondent without waiting for Iddat (intervening period)

Petitioner sought recovery of his wife and two minor daughters

High Court sent the wife to Darul Amann to remain there till decision of petition

Validity

High Court declared that marriage with respondent contracted during Iddat period was Fasid (irregular) and not Batil (void) and released the wife from Darul Amman and she could enter into Nikkah with respondent a fresh, if she so wished

High Court declared that if a married, non-Muslim woman embraced Islam, she was to file petition in Family Court for termination / dissolution of marriage and Family Court would summon her husband, inform him of her conversion, and would offer him to accept Islam, Family Court then would wait till expiry of her Iddat period for reply/decision of her husband

High Court further directed that if husband in response to offer embraced Islam within the period of Iddat, the marriage would continue but if he remained non-Muslim even after expiry of Iddat period, the Court could pass a decree of termination/dissolution of marriage and the woman, thereafter, would be free to marry a Muslim man if so, wished

High Court further directed that Iddat was compulsory after dissolution of marriage of any character and Iddat was imposed in order to provide an opportunity to non-Muslim husband to consider whether he wished to embrace Islam and also as a matter of public policy in order to ascertain whether the woman was pregnant by earlier husband, so as to avoid confusion of parentage

Family Court in case in such petition filed by women, fresh convert to Islam,[or a petition filed by parents or any guardian pleading forced marriage of their underage (below 18 years) daughter] would proceed to determine on evidence in each case whether the conversion or marriage was prima facie genuine (and was not forced), or only a pretext and decide accordingly

In the first case, findings would operate as a defense against criminal prosecution and in the latter, it would make the perpetrator of act, offender of law

High Court declined to interfere in the matter

Constitutional petition was dismissed accordingly.

Objection raised by respondents was that minimum threshold of holdings and paid up capital of company was not matched by petitioners

Respondents further contended that neither Succession Certificate nor any lawful award was filed by petitioners in their favour

Validity

Case where an entity was created by a special law, it was to be dealt with within that frame of special law

No provision of special Act would take away any of their right under general law but it laid down a procedure of its own because the entity was creation of company law

Successor who intended to take advantage of any of its shareholding left by deceased had to go through a process prescribed by S. 78 of Companies Act, 2017 which had provided that shares or other securities of deceased member would be transferred on application duly supported by Succession Certificate or by lawful Award, as the case could be in favour of successors to the extent of their interest and their names were to be entered in Register of Companies

Officials of Securities and Exchange Commission of Pakistan (SECP) might not be aware of devolvement of shares amongst legal heirs and also as to who were the legal heirs to whom shares were devolved

Law had set a mechanism for transfer of shares, which was dependent on a Succession Certificate or lawful award by a Court of law

Majority shareholders' rights and their decision taken in such regard could not be ordinarily objected unless a significant number of shareholders, which was prescribed as 10% of the issued share capital of company, was achieved

If such minority shareholders were allowed to object and interfere in decisions of majority shareholders, business of the company would not function

Held, it was always wisdom of majority shareholders and insofar as decision of company was concerned, unless prerequisite of Ss. 78 & 286 of Companies Act 2017 were met, interference in the business affairs was not appropriate

Petitioners did not file a succession petition in respect of shares which were claimed after demise of their predecessor-in-interest

Suit for administration was pending which was filed by one of the respondents who claimed administration of moveable and immovable assets left by deceased shareholder

Requisite compliance was not made in terms of S. 78 of Companies Act, 2017

Proceedings for oppressive conduct by majority shareholders under S. 286 of Companies Act, 2017 were not maintainable

Petition was dismissed, in circumstances.

Plaintiff sought recovery of money received by defendant along with mesne profit for making investments of that money in apartments

Validity

When defendant alleged that sale agreement and receipts were fake in respect of sale transaction of property and defendant did not produce original agreement or receipts on the plea that the same were lost, evidence with reward to loss of documents should have been produced first and then secondary evidence could be led

If loss of documents was not true, then secondary evidence had become useless

Signature or writing could be proved by adducing evidence of a person or persons conversant or equated with such signature

Alternatively, signature or writing could be examined by an expert and in failure to do so, burden was not shifted to other side and the suit should fail

Court in terms of Art. 84 of Qanun-e-Shahadat, 1984, could itself ascertain whether a handwriting or signature was genuine or not by comparing disputed handwriting or signature with admitted signatures, and then arrived at its own findings

One who pleaded fraud, onus was on him to prove the same and mere statement was not sufficient

For a Promissory Note, attestation was not a legal requirement as envisaged in Art. 17(2)(a) of Qanun-e-Shahadat, 1984

Not mandatory to refer document and signatures to handwriting expert, particularly in a situation where other party did not deny his signatures on number of documents

Witness was not cross-examined on material part of evidence and that part of testimony was considered to be admitted

During cross-examination, a witness stated that it was not within his knowledge, which meant that such witness was not sure about the assertion

Apartments in question were purchased by funds of plaintiff which was acknowledged by defendant in two documents

Defendant was liable to pay amount in question to plaintiff with 10% markup from the date of filing of suit, till realization of the amount

Suit was decreed accordingly.

Appellant/acquiring authority directly filed Reference before Referee Court which was dismissed, without giving issue-wise findings on all issues

Validity

Where Court can decide only one issue, if finding on such issue is sufficient to decide the suit then there is no need to discuss all other issues framed in the suit

Company or local authority could, by written application to the Collector, require that the matter be referred to by the Collector for determination of the Court

Appellant/ acquiring authorities could by written application to the Collector require the matter to be referred to by the Collector for determination of the Court on such written application and the Collector must refer the matter to the Court within 15 days

High Court directed Trial Court to decide the reference after recording evidence of all parties interested

High Court also directed to record evidence of respondents, and after framing issues, decide all issues as envisaged under the provision of O. XX, R. 5, C.P.C.

High Court directed Referee Court to examine Collector as witness who was author of the award and was an important witness

Appeal was allowed accordingly.