Duty of Court

Principally, Courts should avoid pejorative remarks against non-parties and unjust criticism of parties; vilifying them should also be avoided

Judges can criticize relevant matters and witnesses but should avoid criticizing those in official positions without valid justification, that is subject to jurisdiction

Presiding Officer of the Court must give a person the opportunity to explain condemnatory facts before criticizing him/her

This is especially important for public servants, who should be given a chance to defend themselves before being criticized

Criticizing someone without giving them a chance to respond is unfair and may be considered outside the judge's jurisdiction

Judges must be independent and also fair and restrained

They should only criticize people if they have a chance to defend themselves if there is evidence to support the criticism, and if it is necessary for the case

Judicial pronouncements should be sober, moderate and reserved.

Custody of minor was obtained by mother after the death of her husband from her in-laws after hectic efforts by way of approaching competent court of law and with the help of police

Application of mother for appointment of guardian of the minor accepted by the Guardian Court was remanded to Guardian Court upon preferring appeal by the father of her deceased husband for decision afresh after impleading the father of her husband

Validity

Application for appointment of guardian is regulated by S.7 of the Guardians and Wards Act, 1890 (Act)

Mother and father both are natural guardians

Section 17, clauses (1), (2) and (3) of the Act imposes a duty upon the Court while appointing a guardian to make the appointment consistent with the law to which the minor is subject

Central idea is the welfare of the minor

Welfare means his wordly, moral and spiritual well-being

In the presence of mother, the welfare of minors does not lie elsewhere

Minors feel psychologically more secure in the company of the mother rather than anyone else

Amount of love and care which a child receives from the mother cannot be expected from any other relative, including the grandfather or uncle

Welfare of the minor would be provided by the mother with more devotion and there is no other better institution than a lap of a living mother and there cannot be a better tutor than a mother

Right from birth, the minors were living with their mother and such period was spread over years

Uprooting the minors from their given and familiar surroundings, although permissible, yet could not be done as there nothing on record to suggest that the minors would be given beneficent treatment by their grandfather

Petitioner being mother of the minors might spare lot of time for them

Mother who always had a better understanding with her children, and with whom the children enjoyed intimacy, had legal right to be the guardian of the minors

Mother was neither leading an immoral life nor was a lady of ill-repute, rather she was an educated lady and had been leading family life after death of her husband and there was no allegation whatsoever against her moral character

Judgment of the appellate court remanding the matter to Family Court for deciding the matter afresh after impleading grandfather of the minor as respondent was unwarranted

Constitutional petition was allowed, in circumstances.

Court's duty to act decisively to end a patently un-Constitutional legislation is no less important than the Court's duty to lean in favour of Constitutionality of a statute.

It is duty of the court, while drawing the decree, to specify clearly the relief granted or other determination of rights of the parties in the suit so as to make it in conformity with the will of the court capable of enforcement.

Held, that Fauji Fertilizer Company Limited and Fauji Fertilizer Bin Qasim Limited filed a petition for merger, in which Court approved the merger, noting that it had been established like mid-day-sun that all legal/statutory requirements qua holding of meetings by the Chairmen, requisite publication, issuance of notices to the Securities and Exchange Commission of Pakistan "SECP" and Competition Commission of Pakistan "CCP", filing of NOCs of all secured creditors, interest of whole body of shareholders and approval of the "Scheme" by majority of shareholders was obtained

It ultimately will prove to be beneficial for the shareholders and the companies and there remained no impediment to grant sanction of the Scheme of Arrangement of the petitioners

All legal requirements were met, including obtaining NOCs from secured creditors, pre-merger notification from the CCP, and approval from the SECP

Shareholders unanimously approved the Scheme

Court emphasized the importance of timely decisions in commercial matters and cited precedents supporting judicial non-interference in business decisions when legal formalities were fulfilled and the Scheme was fair and reasonable

Merger was held to be beneficial for stakeholders

Once the requirements of a Scheme for getting sanction of the court were found to have been met, the Court would have no further jurisdiction to sit in appeal over the commercial wisdom of the majority of the class of persons, who with their open eyes had given their approval of the Scheme

Petition was allowed and the Scheme was sanctioned and approved in terms thereof, in circumstances.

In a suit for specific performance of land, if seller/vendor has refused to receive sale consideration, or any part thereof, it should be deposited in Court and invested in some government protected security (such as Defence or National Savings Certificates)

In case suit is decreed, the seller would receive value of money which prevailed at the time of the contract and in case buyer loses he can similarly retrieve deposited amount.

While examining the question of bail, the court has to consider the minimum aspect of the sentence provided for the alleged offence.

Court bears an inherent duty to apply the correct law irrespective of whether the parties have specifically invoked it.

Defendant against whom a civil suit is filed with respect to a matter which is to be resolved with plaintiff through a foreign seated arbitration, such defendant has right to apply to the Court where such suit is pending for the proceedings to be stayed so that the disputes which are subject matter of the suit are resolved by the forum to which the parties had agreed

Where such application is filed, the Court is under an obligation to stay proceedings in the suit unless it finds that arbitration agreement is null and void, inoperative or incapable of being performed.

In suit for specific performance of agreement to sell appellant/defendant denied execution of any agreement to sell and claimed that he neither signed any document nor received any amount

Trial Court decreed the suit in favour of respondent/plaintiff

Validity

Trial Court did not frame particular issue despite the fact that case of appellant/defendant in written statement was based upon question of forgery of document

On denial of execution of agreement, its signature or even non-receiving of sale consideration, Trial Court was bound to at least exercise its inherent power for:-

While considering validity of arbitration award within the limbo of S. 30 of Arbitration Act, 1940, Court does not sit as a Court of appeal and avoids reappraisal of evidence

Parties resorted to arbitration of their free will, thereof, award has become final in relation to facts as well as in law and interference therewith by Court was hardly merited unless there existed patent illegality or specific grounds as enunciated in Arbitration Act, 1940

Award was exceptionable and could be interfered with only in cases where there surfaced an error on the face of record not requiring scrutiny beyond Award for discovering the same

Award could be filed by not just the arbitrator/umpire but by parties to arbitration proceedings as well

Arbitrator/umpire was not obligated under S. 14 of Arbitration Act, 1940, to provide the parties with signed copies of the award

Provision of S. 14 of Arbitration Act, 1940, did not pose obstacle before arbitrator/umpire from providing un-signed copies of the award to parties

Where arbitrator/umpire provided the parties with signed copies of the award, they or any of them were at liberty to file the same in Court on the basis of R. 10 of Rules under Arbitration Act, 1940

High Court declined to interfere in the judgment passed by Trial Court

Appeal was dismissed, in circumstances.

Defendant against whom a civil suit is filed with respect to a matter which is to be resolved with plaintiff through a foreign seated arbitration, such defendant has right to apply to the Court where such suit is pending for the proceedings to be stayed so that the disputes which are subject matter of the suit are resolved by the forum to which the parties had agreed

Where such application is filed, the Court is under an obligation to stay proceedings in the suit unless it finds that arbitration agreement is null and void, inoperative or incapable of being performed.

Courts were custodian of fundamental rights of citizens and protectors of civil liberties and they were bound to guard those rights jealously/enviously.

When an issue arises as to interpreting apparent conflicting legislative entries when there are distinct entries for Federal and Provincial Legislatures, even in that situation it is not that the Court would always arrive at a conclusion that either of them has the competency to do so

In such situation controversies do arise as to the competency and as to who is exceeding its own domain and encroaching upon the others

In such case it is not the name of the tax; but its real nature i.e. the "pith and substance" that determines into what category or in whose domain such legislation would fall.

Suit filed by the respondent being summary in nature under O.XXXVII of the C.P.C., summonses were required to be issued on Form IV of Appendix B ,C.P.C and it was imperative that copy of the plaint and all the annexures should be sent to the defendant along with the summons and without fulfillment of that requirement, it could not be held that services was properly effected

Even if the defendant had been served with summons, without copy of plaint, and he had been appearing before the Court, the limitation would not run till the time he was supplied with a copy of the plaint for the reason that only on provision of copy of plaint he would gain knowledge as to what nature of suit was pending against him

Appellant/defendant, could not be served through summons, but he was served through publication of notice in the newspaper

Even on appellant's appearance before the Court, through his counsel, appellant was not provided a copy of the plaint and annexures; it was the responsibility of the plaintiff/respondent to provide copy of the plaint along with annexures to the defendant/appellant and not that of defendant/appellant to demand a copy thereof

Purpose behind issuance of summons along with copy of the plaint and the annexures was that the defendant/appellant should have gained knowledge of pendency and nature of suit against him

Appeal was allowed and the case was remanded for decision afresh, after affording opportunity of hearing to the both parties in accordance with law.

Duty of the Court is not only to issue summons but the Court is also obliged to issue summons according to the Form IV, so that the defendant should attend the Court proceedings with a prepared mind, as intended by the summary trial under O. XXXVII of the C.P.C

Unless the defendant was informed regarding the pendency of the case in the required mode and manner, no delay or default could have been attributed to him regarding filing of the application for leave to defend within the limitation provided by the law

Special intention behind it is that suit under O.XXXVII of the C.P.C is differentiated from the ordinary suit and summary procedure has been specially formulated, wherein not only a plaint must have been attached in order to notify the defendant about pendency of the case but also inform him through Form IV that he has only limited period to approach the Court and get permission to appear and defend the suit, otherwise his right will be struck down due to penal clause attached thereto

Unless, the defendant was handed over copy of plaint for filing of leave to defend as required by law, no delay or default could be attributed to him.

Appellants filed suit for declaration and injunction on basis of inquiry report before Trial Court, which proceeded ex-parte against respondents

Trial Court dismissed the suit and Appellate Court also dismissed appeal thereagainst

Held, that the case in hand of the appellants was hit by the provisions of O. II, R. 2, of the C.P.C., as earlier, a suit was also filed by the same parties wherein the plaint was rejected under O. VII, R. 11 of the C.P.C, as being barred in terms of S. 42 of Specific Relief Act, 1877 hence, the second suit was not maintainable

Said findings had been set aside through impugned judgment by deciding the same in favor of the appellants, whereas, no appeal had been preferred by the respondents, hence, the said issue did not need to be addressed by High Court

Respondents had failed to lead any evidence before Trial Court, however, they had filed their written statement which was a matter of record and the entire contention of the appellants had been controverted and denied

Respondents failed to lead any evidence nor cross-examined the witnesses of the appellants, nor had led any arguments in the case

Where ex-parte proceedings are carried on, additional burden and duty was cast upon the Court to ensure that the ends of justice are met and the interest of the party who has not been able to defend its case for any reason, whatsoever, should be protected and must be dealt with in accordance with law

Court is required to examine the evidence as well as material brought on record and to see that the contention so raised is supported by evidence and supporting material or not

Trial Court had to see whether the plaintiff/appellant is entitled to the relief being claimed and if yes, then to what extent

Suit could not be decreed as prayed in such matters

Trial Court and Appellate Court were fully justified in dismissing the suit of the appellants as no case was made out either on facts or in law

Appeal was dismissed, in circumstances.

Company in which other company was to be merged was a wholly owned subsidiary of Oxford Publishing Limited, which in turn was a wholly owned subsidiary of the University of Oxford, thus belonged to the same economic group as merging company (University of Oxford)

Such merger fell within the exemptions set out under Regln. 5 of Competition (Merger Control) Regulations 2016 and pre-merger clearance was not required

Scheme of Merger, pursuant to S. 282(1)(c) read with S. 282(9) of Companies Act, 2017, provided transfer of the whole undertaking and property and liabilities in Pakistan of the University of Oxford which was a body corporate and hence the transferor company

"Reasons" for such transfer and benefits were never considered for a judicial review as it was their wisdom, which could not be challenged

Only thing which was important for the Court to see was whether the merger was lawful and had undergone requirement of law

Scheme of Arrangement under consideration was approved as was done by petitioner companies and the creditors, which was fair and reasonable and was not against public or any individual's interest

All financial and other related information including last audited accounts and unaudited accounts of petitioners were disclosed and no investigation proceedings were pending before any forum including Securities and Exchange Commission of Pakistan

Petition was allowed accordingly.

In terms of the Scheme of Merger entire undertaking and business including assets, rights, properties, benefits, powers privileges, contracts, liabilities, encumbrances, obligations and dues of company were to be transferred to other company

Validity

Approach of Court was channelized to ascertain; (i) whether statutory requirements were complied with and; (ii) to determine whether the scheme as a whole was arrived at by the majority, bona fide and the interest of whole body of shareholders in whose interest the majority purported to act and; (iii) whether scheme was such that fair and reasonable shareholder would consider it to be for the benefit of the company and for himself

No objection from any quarter had come forward while all requisite formalities were fulfilled and no exception could be taken

To understand the concept, it was to be seen from the perspective that a wise group of businessmen had taken a decision considering all its pros and cons

While taking such decision there were chances of success and failure but then while questioning such decision, bona fide was the real litmus test

Businessman could take decision foreseeing future aspect and Court could only see that all legal formalities were fulfilled and that the scheme was neither unjust nor unfair or against national interest but could not challenge wisdom of a decision of businessman as by doing that Court would be overriding wisdom of a businessman and their prerogative

Report of Chartered Accountants was very material who were engaged for calculating swap ratio in respect of envisaged scheme of Merger

High Court allowed merger of the companies in question as there was no impediment in the Scheme of Merger

Petition was allowed accordingly.

Court must give meaning and effect to words used by the Legislature in a statue in order to garner legislative intent.

Order VII, R.11 of Civil Procedure Code, 1908 casts duty on court to perform its obligation if a plaint was hit by any clause of the said provisions, even without filing of application by defendants

While deciding application under O.VII, R.11, C.P.C., it was to be considered whether plaint disclosed a real cause of action or something purely illusory/imaginary / hollowed had been stated.

Partition suits were different from the other civil suits as in partition suits parties had already established their right of ownership in the property

Main purpose of partition suit was to settle down the certain part/share of each sharer, according to their entitlement

Civil Court was responsible to see that nobody/share-holder be deprived in any way from his/her legal right.

If the court reached the conclusion that a party to lis was deliberately avoiding to lead evidence and maliciously prolonging the matter on different unreasonable pretext, then it was well within the jurisdiction of court under O. XVII, R. 3, C.P.C., to strike down the right of producing evidence of such a defaulting party

When Court had passed an order granting the last opportunity, it had not only passed a judicial order but also made a firm promise to the parties for not granting any further adjournment

Unflinching expectations of the litigant were attached with Court that it shall enforce its order in its true letter and spirit

Civil revision was dismissed.

Instead of dismissing objection petition filed by judgment debtor summarily, Executing Court should frame issues.

When a Court becomes ceased of a matter, it is the bounden duty of the Court to decide the actual dispute by means of all permissible procedures and methods.

Question as to whether dispute or claim raised by respondent was legitimate or not was to be determined through arbitration and dispute between parties fell within prerogative and domain of arbitrator

Mere bald and general denial by appellant by simply stating that no dispute existed did not mean that there was no dispute

Scope of S.20 of Arbitration Act, 1940, restricted Trial Court to give findings on issues emanating from agreement itself regarding which parties have agreed to resolve through arbitration

Court was only required to satisfy itself regarding existence of a real and alive dispute between the parties

Reference to arbitration could not be a futile exercise and Court could not blindly refer a non-existent dispute to arbitration but it was required to satisfy itself that there was a tangible prima facie dispute between parties which required resolution through arbitration as agreed by parties

Court was empowered to determine itself, if application under S.20 of Arbitration Act, 1940, was barred by time or not, such was not an issue before Trial Court

All controversies inter se parties fell within the ambit of arbitration under the contract between parties

High Court declined to interfere in the order passed by Trial Court as there existed no sufficient cause within the contemplation of S.20(4) of Arbitration Act, 1940, to refuse application filed under S.20 of Arbitration Act, 1940 and making order of reference to arbitrator

Appeal was dismissed, in circumstances.

High Court observed that court should be extra cautious/watchful while issuing directions against harassment, ensuring the presence of wedded couple before the Court, especially the female petitioner in order to rule out that any such petition had been filed for some ulterior motive other than what is prayed for; that a valid marriage existed; and that petition had been filed voluntarily without any pressure or undue influence on the female petitioner.

Article 9 of the Constitution had strenuously vouched for the protections of right to life of every person and it was the duty of the Constitutional Courts to protect and safeguard all the fundamental rights provided and guaranteed under the Constitution.

If a statute has expressly provided for something without any ambiguity and is being applied accordingly, there would hardly be any question of interpreting the same by the courts

Role of the Judiciary of interpretation of a statute or any provision thereof arises only when it is to a certain extent either unclear or vague or uncertain or is prima facie opposed to the Constitution

Effect has to be given to the intent of framers of law and of people adopting it

To interpret what does not need to be interpreted is not permissible

When it is found that background of a certain provision is such that intended meaning is different than words of a provision seem to convey, the courts intervene and interpret the same as per intent of the Legislature

Courts have absolutely no authority or power to substitute their views for those intended by the Legislature on any ground which may include their reservation about a particular law.

Respondents did not adduce any evidence with respect to claim of petitioners being barred by limitation but under S.3 of Limitation Act, 1908 it was incumbent upon the Court to examine whether the claim was within limitation period.

Statutory duty has been imposed under second part of S. 540, Cr.P.C. on a Court to summon, examine, recall or re-examine any person if conditions are satisfied to the effect that (a) if evidence is essential and (b) it is essential to the just decision of the case

Legislature by using word `essential' and by qualifying the word 'decision' by an adjective 'just' in Cr.P.C. has indicated that the powers should be exercised very cautiously and only where Court thinks the evidence to be necessary for the interest of justice.

One of the effects of the sanction of the Court is that it becomes binding upon the company and its members including those who voted against the scheme

Once the scheme of compromise and arrangement is approved by statutory majority, it binds the dissenting minority and the company

Court has the power to give effect to all the incidental and ancillary questions in the effort to satisfy itself whether the scheme has the approval of the requisite majority

Such is not the function of the Court to examine whether there is a scope for better scheme, however, where the Court finds that scheme is patently fraudulent, it may not respond or function as mere rubber stamp or post office but reject the Scheme of Arrangement.

Court while scrutinizing the Scheme placed for its sanction leaves the issue of valuation of shares to the consideration of experts in the field of accountancy as it is a technical and complex problem.

Object of amalgamation or reconstruction is to enable companies to come out of difficulties and to re-establish their business

No restriction existed as regards the kind of company with which alone there can be amalgamation

If the shareholders resolve to amalgamate with a company, whether having same or different objects, the Court will not sit in judgment over the wisdom or otherwise of the resolution.

Where the scheme is found to be reasonable and fair, at that moment in time it is not the sense of duty or province of the Court to supplement or substitute its judgment against collective wisdom and intellect of the shareholders of the companies involved

Nevertheless, it is the duty of the Court to find out and perceive whether all provisions of law and directions of the Court have been complied with and when the Scheme seems like in the interest of the company as well as in that of its creditors, it should be given effect to

Court has to satisfy and reassure the accomplishment of some foremost and rudimentary stipulations that is to say, the meeting as appropriately called together and conducted; the compromise was a real compromise; it was accepted by a competent majority; the majority was acting in good faith and for common advantage of the whole class; what they did was reasonable, prudent and proper; the Court should also satisfy itself as to whether the provisions of the statutes have been complied with; whether the scheme is reasonable and practical or whether there is any reasonable objection to it; whether the creditors acted honestly and in good faith and had sufficient information; and whether the Court ought in the public interest to override the decision of the creditors and shareholders.

Court acts like an umpire in a game of cricket who has to see that both the teams play their game according to the rules and do not overstep the limits

Propriety and the merits of the compromise or arrangement have to be judged by the parties as sui juris with their open eyes who were fully informed about the pros and cons of the scheme, had arrived at their own reasoned judgment and had agreed to be bound by such compromise or arrangement.

If sufficient material was discernible from the facts and record of the case that an individual was kept in captivity unlawfully by a Police Official, the Courts had to come forward with a pragmatic approach for the protection of fundamental rights guaranteed under Arts. 9, 10 & 14 of the Constitution and must not hesitate in awarding even cost/compensation to the victim

Such amount was to be paid by none other than the delinquent Police Officials

Court, in appropriate cases, might pass an order for registration of criminal case as well as initiation of departmental proceedings against the delinquent

Even otherwise, how a public functionary could be let off so as to go scot-free when he was found to have infringed the right of an ordinary individual, guaranteed to him under the Constitution

Such an approach would render the provisions embodied in Arts. 9, 10 & 14 of the Constitution as nullity

Courts were saviors of the fundamental rights granted to the subjects of a State and must guard them enviously.

Court, as per the mandate of S.3 of Limitation Act, 1908, is under obligation to scrutinize the plaint, the application and the appeal on the point of limitation regardless of the fact that the said point has been agitated by either party or not.

Courts were duty bound to decide cases dispassionately on basis of available evidence without being influenced by emotions and where a criminal offence alleged was heinous, Courts should be all the more cautious.

Preparation of a forged document itself was an offence but production thereof in court proceedings with a view to prejudice the right and entitlement of a rightful person, made such act grave and courts must take appropriate actions whenever such an act surfaced, as such actions not only resulted delaying object of timely justice but also encouraged such actions.

Court must ensure that the case is instituted within time, and if it is found that the case is barred by limitation then it becomes the duty of the court to dismiss the same.

Section 3 of the Limitation Act, 1908 was a mandatory provision and it made obligatory for the court to look into the question of limitation even when no objection was being raised by a party to the suit

Trial court erred by placing onus to establish that the suit was not maintainable on the ground of limitation, on the defendants

Secondly, court erred in assuming that the question of limitation in the suit fell within the second part of Art.113 of the First Schedule to the Limitation Act, 1908 and limitation would begin to run from when the performance of the agreement was refused as opposed to the date for performance fixed by the Agreement

Appeal was dismissed with costs.

Court was under obligation to determine the question of maintainability at the outset even without any objection raised by a party

Rules to be followed by Courts to determine the question of maintainability on the ground of limitation enumerated.

If charge was not properly framed, it was the duty of the Trial Court to rectify the same

Court was essentially required to satisfy itself whether eye-witnesses are natural and their presence on spot could reasonably be believed

Whether testimony is free from any kind of intrinsic improbabilities and in case of an interested witness, whether any corroboration is forthcoming

Court in a case involving capital punishment should not base conviction of an accused solely on testimony of an interested witness unless such evidence finds corroboration by some other independent and unimpeachable piece of evidence or circumstances of case

When accused is tried on a capital charge, there has to be evidence of unimpeachable character which must lead to only inference that accused is found guilty beyond reasonable doubt.

Safe administration of justice mandates the court to be conscious of not the quantity of contraband but the quality of evidence produced in the court for reaching to a correct conclusion and just decision of the case.

Court was to deliver a detailed judgment, which should not only state the findings but also the evidence and how it supported its findings.

Court cannot pass an order of its liking, solely on the basis of its vision and wisdom, rather it is bound and obligated to render decisions in accordance with law and law alone.

High Court observed that "Court" must reflect a place where (a) one (judge) shall be available to aggrieved for hearing with full ears and patience; (b) he shall satisfy the legal requirement of 'due process' with every effort to ease the course of 'hearing/trial' for both ends; (c) he without any influence shall ensure 'justice' while performing divine duty; and (d) he shall pay every attention while writing 'decisions' and shall never come with an excuse of 'rush of work', etc.

High Court observed that "Court" is not a mere mixture of construction material but in its literal sense is a 'hope' where complainant or plaintiff (as the case may be) comes with a hope of justice

Court must always act in such a manner so that every single decision thereof should satisfy its literal meaning i.e. 'a place where justice is done/dispensed'

Litigants should never be given a 'disposal of their approaches' but a 'decision by a Court of law'

Court cannot, legally and morally, take excuse of 'rush of work'

Not a single decision of a court of law should reflect that it was not a 'decision' but an attempt to earn 'numbers/units' or to lessen the number of cases entrusted to it for disposal 'according to law'

Thin line between two known legal maxims i.e. 'justice delayed is justice denied' and 'justice hurried is justice buried' must always be appreciated by every single court.