Civil

Oral Agreement

Suit of contract on Basis of Oral Agreement/contract. . #Decreed Sec:12 SPA, .Art:103 QSO 1984, .Sec: 5 Contract act 1872, #2016_YLR_100 (Sindh) #2014_SCMR_1217 #2012_MLD_1873 #2011_SCMR_1009 #2002_SCMR_326

JUDGMENT AGAINST NADRA TO ISSUE CNIC TO
ADOPTED CHILD

P L D 2016 Lahore 393

Stay order 39 rule 1-2

1989 SCMR 130

1992 SCMR 138

1988 PLD S.C 1509

2000 SCMR 780

AIR 37 LAH 288

2003 CLC 16595

SUIT FOR DAMAGES AGAINST JUDICIAL OFFICER

2008 YLR 900

Suit for damages against judicial officer for his malafide act–Maintainability Judicial Officer after passing order of return of plaint in a previous suit, kept its file with him for two months which order was ultimately set aside and suit was decreed–Plaintiffs plea in subsequent suit for damages was that Judicial Officer (Defendant) had retained file of his previous suit with malafide intention in order to cause him prejudice–Trial Court rejected plaint to the extent of Judicial Officer– No Protection was available under law, for such action–High Court accepted revision petitioner and set aside impugned order with direction to Trial Court to decide case after inviting written statements from defendants, framing issues and conducting trial

Damages

2005 YLR 2520

(electricity connection)

Malicious tort–Suit for damages–Vicarious liability–Malfeasance–Misfeasance–Joint tortfeasors–Rule of thumb–Appreciation of evidence–Plaintiff filed suit for damages alleging that he filed application for electricity connection in 1987 and defendants issued demand notice in 1988 which was paid–Meter was not installed according to demand notice–Plaintiff filed application before Federal Ombudsman who directed the defendants to install the meter mentioned in the demand notice–Defendants obeyed the order in 1991–Plaintiff filed suit for damages which was concurrently dismissed–Validity–Defendant’s acts of malfeasance and misfeasance, caused agony to the plaintiff–Defendants had taken false pleas–Plaintiff had made specific and unambiguous complaint– Employer being fully responsible and liable for the tortious acts of its employees, tortfeasors were jointly and severally liable and all of them, each or any of them could be sued–Judgments and decrees of both the Courts below were set aside–Quantum of damages were assessed by application of thumb rule and suit was decreed in the sum of Rs.10, 000 in circumstances

Technical Reason 

PLJ 2016 PESHAWAR 253.

Order 7 Rule 11 CPC.

Where a plaint is rejected, plaintiff would be allowed to bring a second suit on same cause of action… When plaint is rejected for non-affixation of proper court fee or for any other technical reason then of course a plaintiff would be entitled to bring a second suit subject to law of limitation but if the plaint is rejected on merit after proper adjudication of core issues e.g as to non-existence of cause of action then same will legally operate as res-judicata and consequently a plaintiff would not be allowed to file a second suit on same cause of action

Inspection

2011 C L C 373 Peshwar

—-S. 13(5)(b)—Civil Procedure Code (V of 1908), S. 115 & O. XVIII, R. 18—Constitution of Pakistan—Constitutional petition—Ejectment order against petitioner tenant on ground of reconstruction of demised premises—Refusal of landlord to restore possession of reconstructed premises to petitioner—Execution application by tenant under S.13(5)(b) of West Pakistan Urban Rent Restriction Ordinance, 1959 for restoring him possession of re-constructed premises—Acceptance of such application after restoring possession of premises to petitioner on 19-6-2010 and consignment of execution proceedings to Record Room by Executing Court on 21-6-2010—Objection petition by intervenor on 7-7-2010 before Executing Court alleging to be in possession of demised premises, wherein his stock of medicines was lying—Rejection of objection petition by Executing Court and filing of revision petition thereagainst by intervenor— Intervenor’s application during pendency of revision petitions for spot inspection to ascertain existence of his medicines in premises accepted by Revisional Court—Validity—Revisional Court before passing impugned interim order had not checked maintainability of objection petition having been filed when nothing was pending before Executing Court—Question of spot inspection and other alike questions could only be considered by court after coming to conclusion that matter before court was maintainable and court entertaining such matter had got lawful jurisdiction in such regard—Before deciding and giving findings on question of maintainability, consideration of allied matters like appointment of commission would be an exercise without jurisdiction and lawful authority—Impugned interim order for being against law and suffering from infirmities could be interfered with by High Court in exercise of constitutional jurisdiction—High Court set aside impugned order and remanded case back to Revisional Court for decision of revision petition within specified time.

Gift Through Attorney

2016 PLD 287 LAHORE.

Gift was a personal action which could be performed by the owner only—attorney had no right to Gift property to any person on his own behalf —Transfer of property in question in favour of his father by the attorney through Gift on his own behalf was not permissible under the law.

Medical Certificate

1983 PLC (CS) 277

In the matter of Date Of Birth held, that a medical certificate based on opinion could not be given preference over entry in School Leaving Certificate.

S.12(2) CPC

2014 C L C 1172

Jurisdiction of civil court S.12(2) cPc can be invoked where a judgment, decree or order is obtained by fraud or misrepresentation. Party is bound by determination of court. And also court can re call the order or decree at its own motion without application by an aggrieved party.

Hand Writing Expert Opinion

(SCMR.2016.192)

Order..VII ..rule..11..C.P.C.and specific relief act.1877..section..12..suit for specific performance of..forged signature upon agreement to sell.. “”plaint can not be rejected on basis of mere opinion of hand writing expert,factual matter required determination on merit after framing of issue and taking evidence

Date of Birth Civil Servant

2015 SCMR 456

t) — R 12 A… Civil servant .. date of birth, alteration in.. Scope.. civil servant could not seek alteration in his date of birth at verge of his retirement..

2008 SCMR 255

Date of birth recorded in service book not absolute that it could not be altered or change exception and procedure explain.

1983 PLC (CS) 307, 2004 PLC (CS) 1162

The determination of date of birth in order to determine date of retirement of a civil servant falls within the jurisdiction of tribunal.. finding of the tribunal about the DOB of civil servant for purposes of his retirement in final and is not open in challenge and civil court.

2013 SCMR 759

Date of birth once recorded at the timing of joining service was to remain final and there after no change was permitted.

SBLR 2009 SINDH 115

Under the rules, a government officer can’t make on application for change of his date of birth after two years of his induction into the service.

Educational Institution Rules

2010 MLD 103 LAHORE

b) Rules and regulation, making of (scope) making of rules and regulation of university/institution is within the domain of university and Court can’t interfere.

Restoration

2000 CLC 680 khi

O. IX R.9… Restoration of suit dismissed for non-prosecution — failure to post the date of hearing in diary by counsel of defendant — such failure was not intentional but due to an oversight– Trail court refused to restore the case whereas the lower appellate court restored the same– validity –application for restoration was supported by affidavit of the counsel owning to such oversight and failure on the part of the defendant/respondent or his counsel acted with negligence gross neglect in prosecution of the suit– Restoration of case was not interfered by the High Court in circumstance.

Appointment of Receiver

2014 CLC 945 SINDH

O. XL R.1 appointment of receiver object and scope — object behind appointment of receiver is to preserve status quo during pendency of litigation– appointment of receiver is harshest remedy provided by civil procedure code, 1908, upon appointment of receiver, property comes into custodian legis for the benefit of all owners of property,,, possession of receiver is deemed to be possession of Court.

Affidavit

(2000 CLC KARACHI 184)

(a)…. not necessary that every application moved before court of law should be supported by affidavit of a person who a party to the proceeding…. any  person who was aware of factual aspects of the case could file a supporting affidavit..

Application U/S 12(2) CPC

2006 SCMR 531

Application u/s 12(2) CPC can be decided on the basis of record, framing issue is not necessary.

Date of birth

2016 PLC -CS- 92

CIVIL SERVANT…. Onecs date of birth in the record at the time of joining service was mentioned the same should be final and no alteration was permissible.

Declaration (limitation)

2002 YLR 2338

Suit for declaration u/s 42 SRA 1877 had to filed with in 6 years

Correction of father name

PLD 2012 LAH 378

National database and registration authority Ordinance (VIII of 2000) S.9 & 5(3) NADRA rule 2002 R.13,,, CP Art 199…

Correction on NIC issued by NADRA.. petitioner has sought correction on his national identity card on the ground that the name of his father had been incorrectly entered.. NADRA refused to make the necessary correction on the ground that for a change in the father’s name, a court order was necessary ………………High court directed NADRA to treat the pending request of the petitioner as a correction of an office mistake and to correct the petitioner’s father’s name in the database and issue him a new CNIC… Constitution petition was allowed, accordingly..

Status quo

PLD.2016.SINDH.445

Status quo was that same status with regard to title or possession of immovable property as existed on date of filing of suit was to be maintained.

Service of Summons is Sufficient to Place Restraint upon Defendant.

(PLD 1988 Khi 401)

S. 42– CPC , O XXXIX R 1 & 2 — status Quo ante– suit for declaration and permanent injunction with application for ad interim injunction– Service of summons and notice in respect of filing of such suit and application whether sufficient to place restraint upon defendant against taking any adverse action against plaintiff before grant of ad interim injunction by court– court could undo any act on part of defendant which he might have taken mala fide after service of notice of injunction application, if it was satisfied that dictates of justice so demanded– Court in  a fit case could pass an order of status quo ante, as matter of course, without examining merits of case– defendant not to take any action after service of notice of stay application with intention to render same infructuous as it could create complications for him.

Attorney when not competent to testify

(PLD 2016 Lahore 140)

Suit for declaration

Oral evidence must be direct—-If facts, which are required to be proved, are exclusively in personal knowledge of the principal, then evidence of attorney holder on those facts will be in nature of hearsay evidence carrying no weight.
–
Facts which are required to be proved by production of documentary evidence, limit the scope of leading oral evidence, and in such a case, personal knowledge (of witness) does not matter. Documents, in such a case, can be produced either by the party or by his attorney, as production of the documents does not require any personal knowledge.

Arbitration

(PLD 2016 SC 121)

Arbitration agreement— Contract— Arbitration agreement must qualify the test of a valid contract in terms of the law of contract.
—
Objection regarding inherent jurisdiction of an arbitrator—Such objection was a point of law which could be raised at any stage

Sale Agreement Creates a Right to Obtain Another Document.

PLJ 2013 Karachi 88 (DB)
–
Sale agreement was not compulsorily required to be registered— Document of sale agreement, but itself, does not create any legal title but creates a right to obtain another document i.e. register deed which creates legal character hence it can safely be said that sale agreement was not compulsorily required to be registered

Few Grounds for dismissal of a suit for specific performance.

1. Handwriting expert reported that signature are forged. (2012 CLC 1699) 
2. Two attested witnesses were not produced. (2006 CLC 571)
3. Agreement was written by unlicensed person. (2006 CLC 571)
4. Stamp paper was not issued by stamp vendor . (2012 MLD 535)
5. Dates of purchasing stamp paper and endorsement were different. (2011 YLR 404)
6. Purchaser of stamp paper was not produced as witness. (2011 MLD 404)
7. Stamp paper was issued on one date in favour of an unknown person and was executed on another date. (PLD 2008 Queta 01)
8. Payment of whole consideration was paid before execution. (2006 YLR 2446)
9. Scribe was not a registered Waseeqa Navees. (2006 CLC 1444)
10. Register of scribe belongs to another person wherein various pages and serial number were missing. (2006 CLC 1444)
11. Contradiction as to vanue where bargain took place. (2006 CLC 1444)
12. Contradiction as to person who obtained stamp paper. (2006 CLC 1444)
13. Plaintiff failed to produce bank record as to payment of half money. 2006 MLD 886
14. Date, Time, Month and Place of transaction was not given in pleading or evidence. (2005 YLR 2655)
15. Number of N.I.C was different from number on agreement. (2002 CLC 942)
16. Land was situated at a place whereas stamp paper was purchased from another place. (2002 CLC 942)
17. Neither vendor of stamp paper nor scribe was produced. (2001 YLR 2145)
18. Agreement was scribed on plain paper and was written by unlicensed petition-writer whereas both were available as nearby place. ( 1996 MLD 562)
19. Stamp paper was purchased at one date and executed after one week, stamp paper neither showed name of stamp vendor nor the place from where it was purchased. (1992 CLC 2193)
20. Failure to deposit balance amount. (PLD 2002 Lah 88, 2012 CLC 1392)
21. Two marginal witnesses were not produced. (2013 YLR 903, 2009 SCMR 740)
22. Payment of consideration not proved.(2006 YLR 1039 )
23. Document was not put before witness. (2006 MLD 1622)
24. One witness was not produced without any reason/ explanation. (2006 MLD 1622)
25. Scribe admitted that alleged promisor was not present at the time of execution neither he signed before him. (2006 MLD 1622)
26. Claim of plaintiff valuing 25 lac was based on a document which was not registered. (2011 CLC 309)
27. Agreement was signed twice. (2011 CLC 309)
28. Original agreement to sell not produced…loss of agreement not pleaded….no attempt was made to produce secondary evidence…plaintiff was not confronted with…Executant defendant was not identified by anyone. (2005 YLR 463)
29. National Identity Card number was not written. (2005 YLR 3163)
30. Lost of original document not proved. (1995 SCMR 1237)
31. It is doubtful that plaintiff paid whole consideration but did not insist for registered sale deed in his favour. (2006 YLR 2779)

Admission in Document

2016 SCMR 1

Document— Admission of document in evidence— Stage of proceedings—Any document that was genuine and relevant to the determination of a factual controversy may be admitted on record at any stage of the proceedings, whether original or appellate, so that justice may be done.

 

 

Specific performance on un-registered power of attorney sale agreement

(2015 CLC 1071 Sindh)

 

Order V rule 15 CPC 1908, Registration Act 1908, Section 17 of Specific Relief Act 1877, Section 12 Suit for specific Performance of contract… Owner of Property an illiterate lady.. Agreement to sell through attorney.. Power of attorney, nonregistration of … effect… summons of services of … Scope. Service of summons on maid of defendant in a suit was not a proper service.. Plaintiff had failed to place on record any registered power of attorney.. Seller (owner) title document should be registered for the purpose of alienation of immoveable property… if immoveable property was sold though power of attorney then same should have been registered and without the same attorney could not be deemed to have been duly authorized to sell the property… General power of attorney in the present case was not a register documents therefore agreement of sale through attorney of actual owner on the basis of said power of attorney was no enforceable in law… court had to be even more careful in a case of an immoveable property of an illiterate woman.. Suit was dismissed in circumstances.

 

Parties are bound by their Admission

(2009 CLC 364 Lah)

they can’t be allowed to go back upon in the evidence what they  have clearly admitted in the pleading. Details and explanations may be admissible in certain circumstances where the position of fact needs clarification but these are not permissible where the admission in clear unequivocal.

 

Correction In Judgment & Decree.

PLD 2004 Lah 103

Court can Correct Error in Judgment & Decree at any time with out Notice to the other side.

 Framing Additional Issues

2014 CLC 1117 Peshawar

CPC order XIV Rule1, Framing of issues… trail court failed to frame issues as per pleading of the parties and had left some material issues unframed due to which judgment and decrees were suffering from miscarriage of justice… additional issues were framed by the High Court and cases were remanded to the courts below for affording opportunities to produce pro and contra evidence on the additional issues and then to decide the cases afresh

possession

PLD 1998 LAH 338

Defendant alleging to have become owner of 40 years old possession. such possession without claiming adverse possession never adverse against true owner.

 

Production of Additional Evidence in Appellant Court

PLJ 1996 LAHORE 196

Recording/production of additional Evidence application for dismissal of challenge to… where a party challenge of a mutation, it become essential for other party to prove execution of said mutation- a court can’t pronounce a just judgment with out looking at documents and with out recording statement’s those who wish to prove or disprove documents appellant Court failed to exercise jurisdiction in accordance with law impugned order set aside.

Amendment

PLD 1973 LAHORE 637

amendment of decree with out amendment of pleading error in decree accruing due to error in pleading, Court has power to amend decree with amending pleading.

Parties are bound by their Admission

(2009 CLC 364 Lah)

they can’t be allowed to go back upon in the evidence what they  have clearly admitted in the pleading. Details and explanations may be admissible in certain circumstances where the position of fact needs clarification but these are not permissible where the admission in clear unequivocal.

Correction In Judgment & Decree.

PLD 2004 Lah 103

Court can Correct Error in Judgment & Decree at any time with out Notice to the other side.

Framiang Additional Issues

2014 CLC 1117 Peshawar

CPC order XIV Rule1, Framing of issues… trail court failed to frame issues as per pleading of the parties and had left some material issues unframed due to which judgment and decrees were suffering from miscarriage of justice… additional issues were framed by the High Court and cases were remanded to the courts below for affording opportunities to produce pro and contra evidence on the additional issues and then to decide the cases afresh

 Possession

PLD 1998 LAH 338

Defendant alleging to have become owner of 40 years old possession. such possession without claiming adverse possession never adverse against true owner.

Execution of Decree > objection

PLD 1974 KARACHI 426

PLD 1969 LAHORE 144

Question whether a decree was obtained by fraud or collusion was not relating to the execution of decree but one which effected its very subsistence and validity such question could only be raised by a separated suit. Excuting Court had no power to entertain an objection as to the validity of the decree upon ground that same was obtained by furad.

Production of Additional Evidence in Appellant Court

PLJ 1996 LAHORE 196

Recording/production of additional Evidence application for dismissal of challenge to... where a party challenge of a mutation, it become essential for other party to prove execution of said mutation- a court can't pronounce a just judgment with out looking at documents and with out recording statement's those who wish to prove or disprove documents appellant Court failed to exercise jurisdiction in accordance with law impugned order set aside.




Jurisdiction/Correction of date of birth

2005 YLR 2114

civil Court has no jurisdiction to determine question about correction of date of birth.


Amendment

PLD 1973 LAHORE 637

amendment of decree with out amendment of pleading error in decree accruing due to error in pleading, Court has power to amend decree with amending pleading.

Declaration

(2014 YLR 2688)

Article 46 of Qanoon-e-Shahdat 1984, dying declaration …scope… dying declaration was a statement of person without test of cross examination and is weak type of evidence…. Credibility of dying declaration depends upon the authenticity of the record and the circumstances under which it was recorded.. Rule of criminal administration of justice is that the dying declaration like the statement of an interested witness required close scrutiny and is not to be believed merely for the reason that during person is not expected to tell a lie.