Civil Suit

Civil cases are to be decided on the basis of preponderance of evidence.

Plaintiff claimed that ship purchased by him for breaking sank near shore and 2100 metric tons of scrap remained under water and Income Tax Authorities/defendants restrained plaintiff from cutting, scrapping, removing and lifting that scrap from capsized ship, which resulted into loss

Authorities raised plea of bar of S. 162 Income Tax Ordinance, 1979, regarding maintainability of suit

Plaintiff claimed recovery of damages for the loss sustained by him

Validity

When certain actions of officials of Income Tax Department were called in question and they were found to be in excess of jurisdiction and tainted with mala fide then bar contained in S. 162 of Income Tax Ordinance, 1979, was not attracted and suit was maintainable

For relief of damages as claimed by plaintiff, there was no hard and fast rule to calculate quantum of compensation, as well as there was also no yardstick to measure the sufferings

Plaintiff claimed damages on account of huge present and future economic loss and on account of undergoing irreversible phase of perpetual mental torture and loss of reputation

Mental shock, agony and torture implied a state of mind, which could be proved only by positive assertion of one who had experienced the same

Plaintiff claimed that owing to illegal act of authorities jointly and severally he suffered mental shock and agony but he could not produce any medical record to bolster/strengthen such contention

Plaintiff introduced on record that owing to acts of authorities whereby they directed plaintiff to stop work of breaking/cutting the vessel which he was legally entitled to perform, he suffered a lot and detailed out the same in his plaint

Quantum of damages would have been different if plaintiff had produced medical record in support of his claim of damages on account of mental torture

High Court awarded damages against officials of Income Tax department as their illegal acts tainted with mala fide and aggravated by their ex facie maladministration, were proved

Excessive use of lawful power was itself unlawful

Due to the actions of officials, plaintiff was prevented at least to a certain degree, from use and enjoyment of the vessel which he imported

High Court directed officials to pay the damages awarded against them jointly and severally, considering the principle of vicarious liability

Where government functionaries were guilty of committing illegality of such a degree, then they had to compensate the person wronged

Suit was decreed accordingly.

Plaintiff claimed that ship purchased by him for breaking sank near shore and 2100 metric tons of scrap remained under water and Income Tax Authorities/defendants restrained plaintiff from cutting, scrapping, removing and lifting that scrap from capsized ship, which resulted into loss

Authorities raised plea of bar of S. 162 Income Tax Ordinance, 1979, regarding maintainability of suit

Plaintiff claimed recovery of damages for the loss sustained by him

Validity

When certain actions of officials of Income Tax Department were called in question and they were found to be in excess of jurisdiction and tainted with malafide then bar contained in S. 162 of Income Tax Ordinance, 1979, was not attracted and suit was maintainable

For relief of damages as claimed by plaintiff, there was no hard and fast rule to calculate quantum of compensation, as well as there was also no yardstick to measure the sufferings

Plaintiff claimed damages on account of huge present and future economic loss and on account of undergoing irreversible phase of perpetual mental torture and loss of reputation

Mental shock, agony and torture implied a state of mind, which could be proved only by positive assertion of one who had experienced the same

Plaintiff claimed that owing to illegal act of authorities jointly and severally he suffered mental shock and agony but he could not produce any medical record to bolster/strengthen such contention

Plaintiff introduced on record that owing to acts of authorities whereby they directed plaintiff to stop work of breaking/cutting the vessel which he was legally entitled to perform, he suffered a lot and detailed out the same in his plaint

Quantum of damages would have been different if plaintiff had produced medical record in support of his claim of damages on account of mental torture

High Court awarded damages against officials of Income Tax department as their illegal acts tainted with mala fide and aggravated by their ex facie maladministration, were proved

Excessive use of lawful power was itself unlawful

Due to the actions of officials, plaintiff was prevented at least to a certain degree, from use and enjoyment of the vessel which he imported

High Court directed officials to pay the damages awarded against them jointly and severally, considering the principle of vicarious liability

Where government functionaries were guilty of committing illegality of such a degree, then they had to compensate the person wronged

Suit was decreed accordingly.

Plaintiff, having served for about five years, filed suit seeking declaration that failure of the Master (CAA) in giving him extension till the completion of project was against the law

Master (CAA) contended that the suit of the plaintiff (Servant) was not maintainable, not having a cause of action, as the applicable relationship between the parties was that of master and servant

Validity

Admittedly, plaintiff was initially appointed on contract basis for a period of one year (extendable) subject to a clause of the letter of appointment

Said letter of appointment provided that the appointment during the period of contract would be liable to termination on thirty day's notice on either side or immediate termination on payment of basic pay in lieu thereof, without assigning any reason whatsoever

Another term of said letter of appointment was that if the terms and conditions of the appointment were acceptable to plaintiff, he should send written confirmation by registered post to the Master, whereafter the plaintiff submitted his letter of acceptance of appointment by confirming the acceptance of offer of appointment; hence, it was an admitted position that the appointment of the plaintiff was on contract basis, the terms whereof were acknowledged and accepted by him

Appointment in question was for a period of one year or for extended period on the option of the appointing authority and the same did not contain any provision for continuation/extension of the plaintiff' appointment till the completion of the project for which he was appointed

Terms and conditions enunciated in the appointment letter, showed that the appointment/contract was revocable

Master was within its right to dispense with the service of the servant after the expiry of his contract or during the period of contract on thirty days' notice or immediate termination on payment of basic pay in lieu thereof, without assigning any reason whatsoever

After accepting the terms and conditions of his appointment, the servant was precluded under the law to claim extension of his contractual service till the completion of project and the law did not recognize any such right of plaintiff (contract employee)

Declaration sought by the servant for extension of service could not be granted as the suit was barred under S.42 of Specific Relief Act, 1877

Plaint was rejected under O.VII, R.11(d), C.P.C. and suit was dismissed, in circumstances.

Goods in question were assessed in terms of S.25(9) of Customs Act, 1969 and assessment was made in line with Customs General Order No.57/99 dated 30-12-1999 on the basis of market survey

Authorities had admitted that initial 40% loading was later reduced to 10% under the instruction from Special Monitoring Team

Imposition of disputed 10% loading charges was in effect a levy, which could not have been imposed or recovered except through a valid legislation or other permissible statutory method

Such loading of 10% was illegal per se and could not be sustained and was void ab initio

Subject goods / consignment of plaintiff was assessed as per S.25 of Customs Act, 1969 and Customs Valuation (Determination of Value of Imported Goods) Rules, 1999, except imposing of 10% loading, which was an illegality

Suit was decreed accordingly.

Nothing was on record that Trial Court had exercised its discretion capriciously or arbitrarily while passing the impugned order

No infirmity, irregularity or jurisdictional defect was pointed out in the impugned judgments and decrees passed by the courts below

Revision was dismissed in circumstances.

When there is no mala fide on the part of Customs Authorities nor there is any jurisdictional defect in decision/orders passed under S.80 of Customs Act, 1969, there is no justification to abandon and by-pass statutory forums and no suit can be filed before High Court while exercising jurisdiction and powers of a civil court.

Legislative intent as manifested under various provisions of Customs Act, 1969, for the purposes of determination and assessment of duty and taxes, providing for specialized statutory forums of appeal and Reference to High Court on a point of law, which could be finally agitated and decided by Supreme Court under Art. 185 of the Constitution, as well as the express bar of civil suit provided in terms of S. 217 of Customs Act, 1969, read with S. 9, C.P.C. led to the only conclusion that any dispute in relation of determination and assessment liability of duty and taxes and the orders passed by Customs authorities under Customs Act, 1969, could not be made subject of a decision by a civil court established and constituted in terms of Sindh Civil Courts Ordinance, 1962

Civil court constituted under Sindh Civil Courts Ordinance, 1962, as amended by Sindh Civil Courts (Amendment) Ordinance, 2002, did not confer any jurisdiction under the Constitution or any other law to entertain or decide a dispute relating to determination and assessment of duty and taxes under special taxation laws including Customs Act, 1969, Sales Tax Act, 1990, Income Tax Ordinance, 2001, Federal Excise Act, 2005 as well as under Sindh Sales Tax on Services Act, 2011, therefore, could not be termed as a civil court of ultimate jurisdiction for the purposes of deciding any controversy arising or relatable to the taxing statutes

Assumption of jurisdiction by civil court including High Court, was without lawful authority

Division Bench of High Court set aside judgment and decree passed by Single Judge of High Court and allowed the High Court appeal.

In case of failure of an alleged owner of a vehicle to establish his entitlement to superdari in cursory proceedings before the court concerned, he had a right under the relevant law to establish his ownership before the civil court, and if any such suit was filed, the civil court could pass a decree in favour of the actual owner of the property notwithstanding any observation made in the cursory proceedings of superdari.

Supreme Court, in appeal, held that issue of limitation shall be decided by the High Court upon evidence produced by the parties.

Property in question was allotted by the authorities in favour of plaintiff but the allotment was cancelled by Board of Revenue

Plaintiff assailed the order passed by Board of Revenue before Civil Court but suit and appeal filed by plaintiff were concurrently dismissed by both the courts below

Validity

Dispute of property in question fell purely within the jurisdiction of revenue courts and suit could not be filed, as the same was not maintainable

Jurisdiction of Civil Court in such like cases under S. 36 of Colonization of Government Lands (Punjab) Act, 1912, was barred

Concurrent findings of fact against plaintiff could not be disturbed unless some misreading or non-reading was pointed out, for which plaintiff failed

High Court in exercise of revisional jurisdiction declined to interfere in the judgments and decrees passed by two courts below

Revision was dismissed in circumstances.

High Court being the Court of "original jurisdiction" under the Companies Ordinance, 1984, is empowered under S.152 of the Ordinance to entertain the application for "correction/rectification of the register of members" in the first instance, and thereafter if it reached to the conclusion, by taking into consideration the application, reply thereto and the documents produced before it, that the matter is out of the purview of the summary procedure as provided under S.9(3) of the Ordinance, it may refer/advise the party to approach the Civil Court for resolution of the controversy in issue

Principles.

High Court being the Court of "original jurisdiction" under the Companies Ordinance, 1984, is empowered under S.152 of the Ordinance to entertain the application for "correction/rectification of the register of members" in the first instance, and thereafter if reached to the conclusion by taking into consideration the application, reply thereto and the documents produced before it, that the matter is out of the purview of the summary procedure as provided under S.9(3) of the Ordinance, it may refer/advise the party to approach the Civil Court for resolution of the controversy in issue

Principles.

Contention that petitioner's admission in previous ease having been made inadvertently petitioner be permitted to repudiate his mistake-Held, petitioner could not be permitted to press his petition on a point of fact inconsistent with admission expressly made by him in his previous petition.

Dismissal from service -Punjab Town Improvement Trust Service Rules being statutory rules and appellant being governed by such Rules civil suit, held, competent.

[Civil suit-Civil services).

Judgment delivered by Supreme Court, held, binding on parties in present case as well-Civil Procedure Code (V of 1908), S. 11.-[Judgment].

Appreciation of evidence-Defendant in suit for dower filed by his wife given full opportunity to produce evidence on question of amount of dower but filing no evidence and on other band admitting amount claimed to be correct

Court's finding that defendant's uncorroborated word was not sufficient to prove his plea of his wife having relinquished her claim for dower, held, based on evidence and High Court rightly refused to interfere with such finding in its limited constitutional jurisdiction-Constitution of Pakistan (1973), Art. 199.-[Writ].

Court-fee, contribution of-Appellant affixing entire court-fee and , decision on appeal enuring to benefit of all otter owners of shamilat deh whether parties before Court or not-Counsel for parties agreeing '' to court-fee being shared by all equally Appellant having paid a '*' d court-fee of Rs. 15,000 and there being five other owners of land benefited by decision, appellant, held, entitled to recover Rs. 2,500 from each party.-[Court-fee].

A question of law.-[Question of law].

Contention that since defendants challenged tender submitted by plaintiff as forged plaintiffs would like question of forgery to be decided by public inquiry in civil suit-Question of fraud relating to an agreement subsequently rendered-Question no longer relevant after novation of agreement-Contention, held, of no avail in circumstances.

Insurance-Liability of insurer-Goods imported without licence and licence not obtainable without purchasing bonus vouchers-Plaintiff not taking delivery of goods, not for reasons beyond his control but for not obtaining customs clearance plaintiff, held, responsible for delay-Even otherwise such delay not contemplated in clause extending insurance-Goods cleared from customs house after expiry of period of insurance covered by policy, insurance company, in circumstances, held, not bound to extend period or pay up on policy.

- Recovery of loan-Contention that department having proceeded to attach and sell entire agricultural holding of petitioners worth several lacs of rupees while amount due stood at less than Rs. 50,000 and only specified areas having been pledged with Bank, action taken by Co-operative Societies Department was illegal and at best only pledged areas could be attached and sold

Held : Liability being admitted and petitioners having agreed before Sigh Court to pay outstanding amount by instalments, no justification existed for interference by Supreme Court-Offer made by Assistant Registrar of Co-operative Societies before High Court could still be taken advantage of by petitioners since it was not conditional and did not appear to have been withdrawn by Department-Such a course advantageous to both parties and likely to end all future litigation between parties.

Petitioners allowed credit facilities by Respondent-.flank and pledging with Bank certain quantities of paddy under terms of agreement- Plaintiff Bank suing petitioners defendants alleging withdrawal by defendants of stock of paddy and rice pledged with Bank and suit for recovery of amount advanced as loan decreed by trial Court-High Court on appeal finding defendants to stave themselves removed stock of paddy and that such stock throughout lay in their own (defendant's) premises, respondent-Bank having merely posted a Chowkidar to keep watch-Petitioner's contention that unprecedented flood washed away pledged stock, reduced value of security, and loss caused due to failure of plaintiff Bank to insure pledged-stock not found correct-Evidence also showing removal and appropriation of stock by defendants before institution of suit by Bank-High Court's findings, held, unassailable in circumstances-

- Riwaj-e-Am of Malakand Agency-Places complete bat on mortgage of land for more than four years-Mortgage for more than 20 years, held, rightly adjudged to be redeemable on payment of certain amount of money, adjudged by jirga.

Fragmentary decisions-Ten years taken to bring matter for decision of Supreme Court on a purely preliminary point-Main controversy about liability of respondent still left to be determined in fresh round of litigation-Fragmentary decisions of such character-Most inconvenient, tending to delay administration of justice.

Art. 98-Other remedy open-Civil suit-Aggrieved party having right to appeal failing to avail of that opportunity-Cannot challenge decision by invoking writ jurisdiction of High Court.

Court refused to grant Special Leave to Appeal observing that "all defences are open to parties on merits and they should fight out the case on the merits".

S. 49 and Constitution of Pakistan (1956) Arts. 170 & 178-Civil suit-Land in Special Area-Parties resident in such area-Whether order of Commissioner, F. C. R., passed at Quetta amenable to writ jurisdiction of High Court of West Pakistan-Lays (Continuance in Force) Order (I of 1958), Art. 2-Constitution of Pakistan (1956), Art. 170-Esiablishment of West Pakistan Act, 1955, S. 7 (1).