Stay of Civil Case.

PLJ 2023 SC 481

       [Appellate Jurisdiction]

Present: Syed Mansoor Ali Shah and Syed Hasan Azhar Rizvi, JJ.

   SALMAN ASHRAF--Petitioner

                     versus

DDITIONAL DISTRICT JUDGE, LAHORE, etc.--Respondents

C.P. No. 2000-L of 2020, decided on 26.5.2023.

(Against the order of the Lahore High Court, Lahore, dated 08.12.2020, passed by in Writ Petition No. 64232 of 2020)

Civil Procedure Code, 1908 (V of 1908)--

        -S. 9 & O. VII, R. 11--National Accountability Ordinance 1999, S. 13--Civil & criminal proceedings--Dismissing application of petitioner for rejection of plaint in a suit--All three courts below have decided matter against petitioner--Meanwhile, National Accountability Bureau (“NAB”) also took cognizance of alleged commission of offence by respondent--Accountability Court convicted respondent--The question of limitation could not be decided without recording evidence, and that scope of jurisdiction of a civil court and that of a criminal court in regard to documents in question was different--Finding of a criminal court on a fact constituting offence tried by that court is irrelevant in a civil proceeding to decide same fact in course of adjudicating upon and enforcing civil rights and obligations--Section 13 of NAB Ordinance has no application to matter involved in suit filed by respondent--The question of any express or implied bar on jurisdiction of civil court to try a matter was neither raised nor decided therein--The courts in Pakistan, as held, cannot import an implied bar from another country’s jurisprudence--The petitioner will still have chance of success in his claim in civil proceeding if civil court finds that preponderance of probability tilts in his favour--Appeal dismissed.                                [Pp. 483, 484, 485, 486, 487 & 488] A, B, C, D, G, I, J, K, M

PLD 1985 SC 134; 1995 SCMR 500; 1980 PCrLJ 1172; 2004 MLD 491; PLD 1990 SC 28; 1991 SCMR 2126 ref.

     Administration of justice

..Civil proceeding and criminal proceeding--Both civil proceeding and criminal proceeding relating to one and same matter can be instituted and ordinarily proceeded with simultaneously.    

       [Pp. 484 & 485] E

2003 SCMR 1691; 2006 SCMR 512; 2006 SCMR 1192; 2008 SCMR 839; 2021 SCMR 1486 ref.

Administration of justice

-Civil proceeding and criminal proceeding--Where criminal liability is dependent upon or intimately connected with result of civil proceeding and it is difficult to draw a line between a bona fide claim and criminal act alleged, trial in criminal proceeding may be postponed till conclusion of civil proceeding.   [P. 485] F

PLD 1968 SC 281; PLD 1984 SC 95 ref. 2017 SCMR 390,1972 SCMR 85.

Civil Procedure Code, 1908 (V of 1908)---

--S. 9--Jurisdiction--Section 9, CPC, provides that civil courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.[P. 486] H

1969 PCr.LJ 411; 2010 SCMR 1816; 2017 SCMR 390; 1972 SCMR 85; PLD 1968 SC 281; PLD 1984 SC 95 ref.

     Administration of justice---

--Standard of proof--Civil and criminal proceedings--A mere preponderance of probability is sufficient to decide disputed fact but in latter, guilt of accused must be proved beyond any reasonable doubt.     [P. 487] L1

          991 SCMR 2126 ref.

Mr. Hafeez Saeed Akhtar, ASC for Petitioner.

Ch. Zulfiqar Ali, ASC. (via video link from Lahore and Syed Rifaqat Hussain Shah, AOR for Respondent No. 3.

Dates of hearing: 25 and 26.5.2023.

Order

Syed Mansoor Ali Shah, J.--The petitioner seeks leave to appeal against an order of the Lahore High Court, dated 08.12.2020, whereby the High Court has dismissed his writ petition and upheld the order of the revisional Court, dated 20.11.2020. By its order, the revisional Court had dismissed the revision petition of the petitioner filed against the order of the trial Court, dated 27.10.2020, dismissing the application of the petitioner for rejection of the plaint in a suit filed by Respondent No. 3, Ch. Muhammad Ashiq, (“respondent”). All three Courts below have thus decided the matter against the petitioner.

2. Briefly, the factual background of the case is that on 2 June 2007, the petitioner filed a suit for recovery of the amount of

Rs. 174,406,250/- against the respondent. In his suit, the petitioner asserted that he and his late father paid the said amount to the respondent, vide agreements dated 06.08.2003, 26.05.2004 and 13.07.2004 and certain receipts, to purchase for them some land and plots in different phases of DHA, Lahore; but the respondent did not fulfil the commitment nor did he return the said amount. Meanwhile, the National Accountability Bureau (“NAB”) also took cognizance of the alleged commission of the offence by the respondent, of defrauding the members of the public and inducing them to deliver him a huge amount of money on the pretext of procuring plots for them in DHA, Lahore. The affectees of the alleged offence included the petitioner; therefore, in the trial of that offence the petitioner appeared as a witness and also tendered the said agreements and receipts allegedly executed by the respondent, in the prosecution evidence. While relying on the prosecution evidence, which included the testimony of the respondent as well as the said agreements and receipts, the Accountability Court convicted the respondent vide its judgment dated 27.11.2012. The respondent preferred an appeal against the judgment of the Accountability Court before the Lahore High Court, which is pending adjudication.

3. In addition to that appeal, the respondent also instituted a suit for declaration on 7 June 2013 against the petitioner, wherein he asserted that the agreements and receipts on the basis of which the petitioner had instituted the suit for recovery of the amount against him are forged, fabricated and fictitious. In the suit, he prayed that the said agreements and receipts may be declared to be so and thus ineffective against his rights. The trial Court consolidated the proceedings of the suit of the respondent with the suit of the petitioner and framed consolidated issues. The respondent produced his evidence on the consolidated issues, and the hearing of the case was fixed for evidence of the petitioner when he filed on 2 September 2020 an application under Rule 11 of Order 7 of the Code of Civil Procedure 1908 (“CPC”), for rejection of the plaint in the suit of the respondent.

4. The application of the petitioner for rejection of the plaint was mainly based upon two grounds: (i) the suit of the respondent is time-barred, and (ii) the suit is not maintainable in view of the judgment of the Accountability Court, wherein the agreements and receipts have been relied upon for convicting the respondent. The trial Court dismissed the application on 27 October 2020 by holding that in the circumstances of the case, the question of limitation could not be decided without recording evidence, and that the scope of the jurisdiction of a civil Court and that of a criminal Court in regard to the documents in question (agreements and receipts) was different. The revision petition filed by the petitioner was dismissed by the District Court on 20 November 2020. And by the impugned judgment passed on 8 December 2020 in the writ petition of the petitioner, the High Court upheld the orders of the Courts below. The High Court observed that in the present case, the question of limitation was a mixed one of law and facts, which was not to be decided summarily but rather after recording evidence of the parties, and that the civil and criminal proceedings regarding the veracity of the documents could be conducted simultaneously.

5. Before us, the learned counsel for the petitioner pressed only the second ground and contended that once a matter (validity of the agreements and receipts) is decided by a criminal Court, the same cannot be re-agitated in a suit before a civil Court. Such a suit, he contended, is barred by law. In support of his contention, he placed reliance on three judgments: Olas Khan v. Chairman NAB (PLD 2018 SC 40), Zahida Sattar v. Federation of Pakistan (PLD 2002 SC 408), and Hunter v. Chief Constable of West Midlands ([1981] 3 All ER 727).

6. On the other hand, the learned counsel for the respondent submitted that civil proceedings are distinct from criminal proceedings and can be conducted simultaneously, and that civil Courts have plenary jurisdiction to decide upon all matters of civil nature unless it is shown that their jurisdiction is either expressly or impliedly barred. He relied upon Jan Muhammad v. Nazir Ahmad (2004 SCMR 612), Province of Punjab v. Yaqoob Khan (2007 SCMR 554), Nazir Khan v. Ahmad (2008 SCMR 539), Hashmat Ullah v. State (2019 SCMR 1730) and SNGPL v. Noor CNG Filling Station (2022 SCMR 1501).

7. We have considered the arguments of the learned counsel for the parties, read the cases cited by them and examined the record of the case.

8. It hardly needs reiteration that the object of a civil proceeding is to enforce civil rights and obligations while that of a criminal proceeding is to punish the offender for the commission of an offence. It is, therefore, a well-established legal position in our jurisdiction that both the civil proceeding and criminal proceeding relating to one and the same matter can be instituted and ordinarily proceeded with simultaneously.[1] Although there is no bar to the simultaneous institution of both proceedings, the trial in the criminal proceeding may be stopped in certain circumstances.[2] And the guiding principle in this regard is also well-defined. It is that where the criminal liability is dependent upon or intimately connected with the result of the civil proceeding and it is difficult to draw a line between a bona fide claim and the criminal act alleged, the trial in the criminal proceeding may be postponed till the conclusion of the civil proceeding.[3] Thus, where either of these two conditions is not fulfilled, i.e., where the subject matter of civil proceeding and that of criminal proceeding are distinct, not intimately connected,[4] or where the civil proceeding is instituted mala fide to delay the criminal prosecution, not bona fide,[5] the criminal proceeding may not be stayed.

9. It is notable that the whole jurisprudence on the subject, as briefly stated above, has developed while dealing with the question of staying criminal proceeding till the conclusion of the connected civil proceeding. Not a single case is brought to our notice wherein the question of staying civil proceeding till the culmination of the criminal proceeding had been raised. The reason is not far to see.

* The decision of a civil Court as to any right, title or status, which only that Court can finally decide, may have a substantial bearing upon a constituent ingredient of the offence being tried by the criminal Court.[6] On the other hand, any finding of a criminal Court on a fact constituting the offence tried by that Court is irrelevant in a civil proceeding to decide the same fact in the course of adjudicating upon and enforcing civil rights and obligations.[7] The petitioner has even gone a step farther than that. As he has not prayed that the civil proceeding may be stayed till a final decision in the criminal proceeding but rather for quashing the civil proceeding by rejecting the plaint therein, on the basis of some findings of facts recorded in the criminal proceeding by the criminal trial Court.

10. Section 9, CPC, provides that the civil Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. And as per clause (d) of Rule 11 of Order 7, CPC, a plaint can be rejected where the suit appears to be barred by any law. Thus, to succeed in his plea for rejection of the plaint in the suit of the respondent, the petitioner is to show under which law the suit of the respondent is either expressly or implied barred. The petitioner has pointed out no such law.

11. The reliance of the petitioner on the case of Zahida Sattar is misconceived. In that case, this Court upheld the order of the civil Court rejecting the plaint by observing that Section 13 of the National Accountability Ordinance 1999 (“NAB Ordinance”) conferred exclusive jurisdiction on the Accountability Court to adjudicate upon the matter that was agitated in the civil suit and the jurisdiction of the civil Court to try that matter was impliedly barred. Section 13 of the NAB Ordinance has no application to the matter involved in the suit filed by the respondent.

12. Similarly, the reliance of the petitioner on the case of Olas Khan is misplaced. In that case, the Court was dealing with the question on the jurisdiction of the High Court to grant bail to an accused arrested for an offence under the NAB Ordinance. The question of any express or implied bar on the jurisdiction of the civil Court to try a matter was neither raised nor decided therein. Nothing turns out of a passing remark made in that case, and referred to by the learned counsel for the petitioner, that the NAB Ordinance is a special statute hybrid in nature and is a fusion of criminal liability and civil obligations. The learned counsel for the petitioner did not pinpoint any provision of the NAB Ordinance, which confers exclusive jurisdiction on the Accountability Court to enforce civil obligations. He only referred to Section 33-E of the NAB Ordinance, which provides that any fine or other sum due under the Ordinance, or as determined to be due by a Court, shall be recoverable as arrears of land revenue. Similar provisions are contained in Section 544-A(2) of the Code of Criminal Procedure 1898 (“Cr.P.C.”) for recovery of the compensation awarded under subsection (1) of that Section. It has never been urged that a criminal Court enforces civil obligations by taking proceedings to recover the amount of compensation as an arear of land revenue under Section 544-A. Rather, Section 546, Cr.P.C. envisages the institution of a civil suit relating to the same matter, despite the recovery of the compensation under Section 544-A.

13. The third case relied upon by the learned counsel for the petitioner is that of Hunter decided by the U.K. House of Lords. In Hunter, the House of Lords essentially held that a civil action by a person to prove that the confession on the basis of which he was convicted in the criminal trial had been procured by force, in the disguise of a claim for damages, is an abuse of the process of the Court and such a civil action is liable to be struck out. The learned counsel for the petitioner, by taking an analogy from that case, argued that as a piece of evidence (confessional statement) found valid and relied upon in the criminal proceeding was not allowed to be challenged in a civil action in Hunter, the evidence of the agreements and receipts found valid and relied upon by the Accountability Court in the present case cannot be challenged in a civil suit by the respondent. We find the analogy to be in correct. While certain agreements and receipts, such as those involved in the present case, may give rise to civil rights and obligations, a confessional statement made in a criminal case does not. Therefore, the suit that challenges the validity of such agreements and receipts is a suit of a civil nature within the meaning and scope of Section 9, CPC, but the suit challenging the validity of such a confessional statement is not. Further, the bar on the jurisdiction of the civil Court to try a suit of civil nature or on the maintainability of a suit envisaged by Section 9 or clause (d) of Rule 11 of Order 7, CPC is that which is created either expressly or impliedly by some statutory law enacted by the legislature. The Courts in Pakistan, as held by this Court in Akram v. Farman Bi,[8] cannot import an implied bar from another country’s jurisprudence.

14. Needless to mention that the standard of proof required in civil and criminal proceedings is different. In the former, a mere preponderance of probability is sufficient to decide the disputed fact but in the latter, the guilt of the accused must be proved beyond any reasonable doubt.[9] There are, therefore, chances of giving divergent judgments by the civil and criminal Courts on the facts that give rise to both civil and criminal liabilities.[10] The contention made in the present case by the petitioner appears surprising to us in that it has the potential of causing detriment to his claim. The judgment of the Accountability Court on which the petitioner is now relying is under judicial scrutiny of the first appellate Court, i.e., the High Court, and any judgment passed by the High Court may further be challenged in this Court. What if the High Court or this Court comes to a conclusion contrary to that of the trial Court and acquits the respondent of the charge giving him the benefit of any reasonable doubt? Would the claim of the petitioner against the respondent for recovery of the amount come to an end? Not, in our view. The petitioner will still have the chance of success in his claim in the civil proceeding if the civil Court finds that the preponderance of probability tilts in his favour.

15. For the above reasons, we find no legal error in the concurrent orders of the three Courts below. This petition is found meritless. It is therefore dismissed and the leave to appeal is declined.

(K.Q.B.)          Petition dismissed

[1].       Aslam Zaheer v. Shah Muhammad 2003 SCMR 1691; Rafique Bibi v. Muhammad Sharif 2006 SCMR 512; Khalid Saleem v. Muhammad Ashraf 2006 SCMR 1192; Seema Fareed v. State 2008 SCMR 839; Sikandar Ali v. SHO 2021 SCMR 1486.

[2].       Muhammad Akbar v. State PLD 1968 SC 281 (4-MB); Manak Ji v. Fakhar Iqbal 1969 PCrLJ 411 SC (4-MB); Muhammad Tufail v. State 1979 SCMR 437; Abdul Haleem v. State 1982 SCMR 988; Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353; Muhammad Anwar v. Badshah Begum 1999 SCMR 1475; Sheraz Ahmad v. Fayyaz-ud- Din 2005 SCMR 1599; Abdul Ahad v. Amjad Ali PLD 2006 SC 771; Zafar v. Umar Hayat 2010 SCMR 1816.

[3].       Muhammad Akbar v. State PLD 1968 SC 281 (4-MB); Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 (5- MB).

[4].       Muhammad Aslam v. State 2017 SCMR 390.

[5].       Mohammad Ahmad v. State 1972 SCMR 85.

[6].       Muhammad Akbar v. State PLD 1968 SC 281 (4-MB); Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 (5- MB).

[7].       D.I.G., Lahore v. Anis-ur-Rehman Khan P L D 1985 SC 134 (4-MB); Ghulam Rasool v. Muhammad Waris 1995 SCMR 500; Richard Benjamin v. Ismail 1980 PCrLJ 1172 Kar (DB); Aijaz v. Karachi Transport Corporation 2004 MLD 491.

[8].       PLD 1990 SC 28.

[9].       Zakaullah Khan v. Muhammad Aslam 1991 SCMR 2126.

[10].      Richard Benjamin v. Ismail 1980 PCrLJ 1172 Kar (DB); Aijaz v. Karachi Transport Corporation 2004 MLD 491.

Correction of CNIC

 

                   PLD 2012 LAH 378

Ss. 9 & 5(3)---National Database and Registration Authority (NIC) Rules 2002, R.13---Constitution of Pakistan, Art. 199---Constitutional petition---correction on National Identity Card issued by NADRA---Petitioner had sought correction on his national identity card on the ground that the name of his father had been in correctly entered---NADRA (respondent) refused to make the necessary correction on the ground that for a change in the father's name; a court order was necessary---NADRA, to support such contention, relied on its Registration Policy and Standard Operating Procedures (SOPs)---Validity---Error was clearly a typographic mistake---National database was required to be maintain ed by NADRA, and every citizen was required to be registered and to effectuate such registration, every citizen was issued a national identity card---National Identity Card (cnic ) was a legal document for the identification of a citizen, and its issuance meant that the in formation contain ed therein was valid and correct---NADRA, by not correcting an error in its database or on the cnic , was, in fact, going against the spirit of the Ordinance, and was not performing its primary function and was perpetuating a wrong in its own database, thereby negating the purpose of the national identity card---NADRA, was bound to maintain a correct database and was bound to print correct in formation on the cnic and was obligated to correct any error in its database or the cnic it issued to a citizen---Standard Operating Procedures (SOPs) and Registration Policy were internal instructions to enable NADRA to achieve optimum level of efficiency and to ensure consistency and infirmity in its procedure and process---Standard Operating Procedures (SOPs) did not have the force of law and were not bin din g on the NADRA---Standard Operating Procedures were internal documents, at best, and could not form the basis of denying the petitioner the right to have the correct in formation maintain ed in the citizen database and printed on the cnic ---Standard Operating Procedures could not form the basis for NADRA to refuse to correct an error in its record because if the error was not corrected, it would negate the very purpose of issuing a cnic to a citizen---Delay in filing an application for correction of an office mistake could not hamper or prevent the process of actually correcting the NADRA database, or the cnic ---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 ---Constitutional petition was allowed, accordingly.

Concealment of Facts

 

     2019  YLR  815     

        KARACHI-HIGH-COURT-SINDH

 

 O. xxxix , Rr. 1 & 2---Temporary injunction / interim / interlocutory order, grant of.

 Principles-

 Exercise of discretion by the Court.

*Non-disclosure or concealment of pending or

 *Previous litigation.

    √ Sufficient to disentitle a party from equitable relief of temporary injunction.

*Irreparable loss / injury---Scope---Relief of injunction was discretionary and an equitable relief which a party could not claim as a matter of right and he who seeks equity must come to the court with clean hands---Before grant of such relief, conscience of the court had to be satisfied that the party seeking such relief had not acted inequitably and concealment of factum of earlier litigation was contumacious and inequitable and such concealment disentitled a party to grant of discretionary relief of injunction---

°√ Party seeking temporary injunction was duty bound to bring necessary facts about any previous litigation before the Court and complete disclosure about previous connected, related or relevant proceedings and orders was essential and unless non-disclosure of the same could be satisfactorily explained, a claimant should not, as a matter of general principle, be granted interim relief---

•√ Party seeking temporary injunction must also satisfy the court that an interference was necessary to protect it from the species of injury which the court called "irreparable loss" before the legal right could be established---For adjudication of the question of granting or withholding preventive equitable relief, an injury was set to be irreparable either because no legal remedy furnished full compensation for it or if there was no adequate redress for such injury or there existed inherent ineffectiveness of legal remedy for such injury.

Classification of Evidence

                Classification of Evidence

2023 PCrLJ 1156

                2023 PCrLJ 1156

Classification of Evidence.

      Any given item of judicial evidence may attract more than one of the labels by which varieties of evidence have been classified -- Principal labels are 

( i ) Testimony ,. 

( ii ) Hearsay evidence

( iii ) Documentary evidence , 

( iv ) Real evidence and

( v ) Circumstantial evidence - 

      Testimony means direct evidence ; hearsay , an indirect evidence ; documentary evidence means presentation of facts through documents ; real evidence includes material things ( like case property ) --- In addition to material objects , real evidence also includes documents , physical appearance of persons and animals , demeanour of witnesses , intonation of voices on a tape recording , views , inspections out of courts of locus in quo or of some object which it is impossible or highly inconvenient to bring to court , and , possibly , out - of - court demonstrations or re - enactments of acts or events into which Court is inquiring --- Circumstantial evidence means evidence of relevant facts like motive , plans and preparatory acts , capacity , opportunity , identity , continuance , failure to give evidence , failure to provide evidence and standards of comparison.

Intermeddler

 

                         S.2(11) CPC.

  "Legal Representative" 

   means:-

* a person who in law represents the estate   of a deceased person, 

 * Any person who intermeddles with the estate of the deceased.

* The person on whom the estate devolves on the death of the party so suing or sued:

            Intermeddler.

     What does Executor de son tort mean?

 * A person not lawfully appointed.

 * He himself to administer the estate.

 * Intermeddles with the administration of the estate.

* He is an executor de son tort .

*  Accountable as if he had authority.

√  Is not a trespasser.

√ assumes representative capacity.

√ Has an intention to represent the estate. 

√ Intermeddler is similar to an executor.

 De son tort (executor of his own wrong) as he takes upon himself the office of an executor by the intrusion.

√  Although not so constituted by the testator. 

√ Without authority intermeddles with the estate of the deceased.

ABADI DEH ACT, 1995

 

 Abadi Deh:-

       Definition

 site of the village where predominantly people live, means a residential area of the village. 

Also see:-https://legaltimespk.blogspot.com/2021/10/shamlat-deh.html

    THE PUNJAB CONFERMENT OF PROPRIETARY RIGHTS ON NON-PROPRIETORS IN ABADI DEH ACT, 1995

              (Pb. Act I of 1995) 

C O N T E N T S 

SECTIONS

1. Short title, extent and commencement. 

2. Definitions. 

3. Conferment of Proprietary rights in land on non-proprietors. 

4. Resolution of disputes. 

5. Appeal. 

6. Removal of difficulties. 

7. Rules. 

8. Bar of jurisdiction. 

9. Repeal.

Zzzzzzzzzzzzzzzzz

         THE PUNJAB CONFERMENT OF  PROPRIETARY RIGHTS ON.    NON-PROPRIETORS IN ABADI DEH ACT, 1995

              (Pb. Act I of 1995) 

                                      [l3 February 1995] 

An Act to provide for the conferment of proprietary rights on non-proprietors in the abadi deh Whereas it is expedient to confer proprietary rights on non-proprietors in the abadi deh in conformity with the injunctions of Islam as set out in the Holy Quran and Sunnah; 

 It is hereby enacted as follows:- 

 1. Short title, extent and commencement.— (1) This Act may be called the Punjab Conferment of Proprietary Rights on Non-proprietors in Abadi Deh Act, 1995. 

 (2) It extends to the whole of the Punjab. 

 (3) It shall come into force at once. 

 2. Definitions.— In this Act, unless there is anything repugnant in the subject or 

context— 

 (1) “abadi deh” means and includes an area which is recorded as abadi deh in the record of rights prepared under the Punjab Land Revenue Act, 1967(XVII of 1967) but does 

not include an urban area; 

 (2) “Collector” means a Collector of the district and includes.

2[a Deputy District Officer (Revenue)] or any officer specially empowered by the Government to perform the functions of a Collector under this Act; 

3[(3) “Executive District Officer (Revenue)” means the Officer Incharge of Group of District Officers as specified in Part-C of First Schedule of Punjab Local Government Ordinance, 2001 under the head“Revenue”]; 

 (4) 4[* * * * * * * * * * * *] 

 (5) “house” means building or structure used for residential purposes and includes 

a court-yard; 

 (6) “land” means and includes an area under a house in the abadi deh, but does not include any area reserved for a street, a lane, a playground, a school, a mosque or other place of worship, a graveyard, a drinking well or a pond meant for the village community; 

 (7) “non-proprietor” means an inhabitant of a village who ordinarily resides in the abadi deh of that village and who under any law or custom or usage having the force of law, in force immediately before thecommencement of this Act, is not a co-sharer in the abadi deh in which his house is situated; and 

 (8) “Urban area” means urban area as defined in clause (iii) of sub-section (1) of section 3 of the Punjab Local Government Ordinance, 1979 (VI of 1979). 

 3. Conferment of Proprietary rights in land on non-proprietors.—Notwithstanding anything to the contrary contained in any law for the time being in force or in 

any agreement, instrument, custom or usage or in any decree or order of any court or other authority, all rights, title and interest whatever, in the land which is situated within the abadi deh and which is under a house owned by a non-proprietor, shall on the commencement of this Act, vest in the non-proprietor under whose house it is situate, free of charge, and no compensation shall be claimed by or paid to any person or Government affected by the vesture of proprietary rights in a non-proprietor under this section.

4. Resolution of disputes.— Where any dispute arises from giving effect to the 

provisions of this Act, the Collector of the area in which the land is situated may, on the application of any aggrieved party made within a reasonable period, take cognizance of the dispute and decide the matter. 

 5. Appeal.— 5

[(1) An appeal against the order made by a Collector under this Act shall lie before the Executive District Officer (Revenue)]. 

 (2) The limitation for filing an appeal under this section shall be thirty days from the date of the impugned order excluding the period duly spent in obtaining certified copy of the impugned order and the provisions of section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to an appeal under this section. 

 (3) No order in appeal adversely affecting any person shall be passed without affording to the affected party an opportunity of being heard. 

 (4) The appeal filed under this section shall be disposed of within ninety days. 

 (5) An order passed in appeal under this section shall be final. 

 6. Removal of difficulties.— If any difficulty arises in giving effect to any provision of this Act, the Government may make such order, not inconsistent with the provisions of this Act, as may appear to it to be necessary for purposes of removing the difficulty. 

 7. Rules.— The Government may make rules for the purposes of this Act. 

 8. Bar of jurisdiction.— No order passed or proceedings taken by the Collector or the 6[Commissioner] or the Government under this Act shall be called in question in any Civil Court. 

 9. Repeal.— The Punjab Conferment of Proprietary Rights on Non-Proprietors 

in Abadi Deh Ordinance, 1994 (XV of 1994) is hereby repealed. 

____________________ 

 

1 This Act was passed by the Punjab Assembly on 2nd February, 1995; assented to by the Governor of the Punjab on 12th February, 1995; and, was published in the Punjab Gazette (Extraordinary), dated 13th February, 

1995, pages 1 to 3. 

2 Substituted for the words “an Assistant Commissioner or a Collector of a sub-division” by the Punjab Conferment 

of Proprietary Rights on Non-Proprietors in Abadi Deh (Amendment) Ordinance, 2001 (LVII of 2001) which was protected and continued under the Provisional Constitutional Order, 1999 (Chief Executive’s Order 1 of 1999) as amended by the Provisional Constitution (Amendment) Order, 1999 (Chief Executive’s Order 9 of 1999) and Article 270AA of the Constitution of the Islamic Republic of Pakistan as substituted by the Constitution 

(Eighteenth Amendment) Act, 2010. 

3 Substituted ibid. 4 Omitted ibid. 

5 Substituted ibid. 

6 Now Executive District Officer (Revenue).

WAPDA Commercial Bills

                              Commercial  Building. 

                                                       Defined. 

                       2004 CLC 293 (LAH) 

Dr.SHAGUFTA HUSSAIN

 

 Versus

 

WATER AND POWER DEVELOPMENT AUTHORITY

October 20, 2003 —

           LAHORE HIGH COURT LAHORE

 

Honorable Justice Maulvi Anwarul Haq Nasir Saeed Sheikh , Khalid Zaman. 

1. According to this writ petition the petitioner No. l is the lease holder of the plot mentioned in para. l of the writ petition where she has constructed a residential house to accordance with the plan approved by the Local Cantonment Board. She is residing there with her- husband petitioner No.2 (now deceased) and other family members. The electric connection is available in the house. It is then stated that some rooms in the house are used as a study/library by late petitioner No. 2 who was a practising lawyer. Regular payment of bills has been alleged. Grievance made out is that on 6-3-1999 a bill was served showing arrears from February, 1998 to February, 1999 after Calculating the same on commercial basis. It has been stated that it is a residential house and being used as such and the mere user, of a portion of the house for study/library by the late husband of petitioner No. l cannot be made basis for charging the entire premises on commercial basis.

2. This writ petition was admitted to regular hearing on 7-12-1999. A notice was issued. 1 find that the respondents were served and their learned counsel filed his power of attorney on 21-3-2000. No written statement has been filed till date.

3. Learned counsel for the petitioner contends that the premises in question is a residential house having been constructed as such and then being used as such and as such cannot be termed as a commercial premises for charging the same on the commercial tariff. He refers to the cases of v. Sasodharan v. Messrs Peter and Karunakar and others 1985 PSC 777, Dr. Devendra M. Surti v. The State of Gujarat Al R 1969 SC 63 and Gill Afzal Khan v. Muhammad Hanif Arif PLD 1979 Lah. 398. Learned counsel for respondents, on the other hand, contends that since admittedly portion of the house was being used by the late husband of the petitioner No. l as a study/library as a practising lawyer, the house is liable to be charged on the commercial rates.

4. I have given some thought to the respective contentions of the learned counsel for the parties. As stated by me above; a written statement has not been filed and it can be assumed that the facts stated in the writ petition stand admitted having not been denied. Now the position that emerges is that a house has been constructed which is being used for tile residence of the petitioner and her family members including her late husband; the petitioner No.2. He had used two rooms in the house for his study/library. Now it is true that the judgments cited by the learned counsel are with reference to the definition Of a commercial premises/ establishment under the Kerala and Bombay Shops and Establishment Acts respectively (Indian Supreme Court) and under the 'Punjab Urban Rent Restriction Ordinance, 1959 (this Court). However, the learned counsel for .the respondents has not been able to point out any definition of a commercial err a not-commercial/domestic premises under the Electricity Act. 1910 or WAPDA Act. 1958. I deem it proper here to reproduce the following observation of the Supreme Court of India in the said case of v. Sasodharan in para. 9.of the judgment at page 779 of the report: -

`Whatever may be the popular conception, or misconception regarding the role of today's lawyers and the alleged narrowing of the gap between a profession on one hand and a trade or business on the other, it is trite that traditionally, lawyers do not carry on a trade or business nor do they render services to `customers .

5. The term "commercial" has been defined as follows in Black's aw Dictionary (Fifth Edition) at p.245:--

"Commercial/Kamarshal/ Relates to or is connected with trade and traffic or commerce in general: is occupied with business and commerce. Anderson v. Humble Oil and refining Co. 2261 Ga. 252, 174 S.E.2d 415, 416. Generic term for most all aspects of buying and selling."

While tile term 'profession' has been so defined in the said Dictionary at pp.1089 and 1090 as under:-

"Profession. A vocation or occupation requiring special, usually advanced, education and skill: e.g. law or medical professions. Also refers to whole body of such profession.

The labour and skill involved in a profession is predominantly mental or intellectual, rather than physical or manual.

The term originally contemplated only theology, law, and medicine, but as application of science and learning are extended to other departments of affairs, other vocations also receive the name which implies professed attainments in special knowledge as distinguished from mere skill."

6. Having thus examined the file I do conclude that a building which is primarily a residential house occupied by the petitioner and her family members including her late husband, the petitioner No.2, would not be converted into a commercial building because of use of a few rooms therein by the late husband of the petitions as his library/study or for that matter even his office for the reason that the lawyers do not carry on a trade or business. The writ petition accordingly is allowed and the impugned demand of the respondents is declared to be illegal and void. No orders as to costs.

S.A.K./S-783/L Petition allowed.

Shamlat Deh

 Shamlat Deh۔شاملات دیہہ

THE PUNJAB LAND DISPOSITIONS (SAVING OF SHAMILAT) ORDINANCE, 1959

                                (W.P. Ordinance I of 1959

                              C O N T E N T S

SECTIONS

  1.         Short title and extent.

  2.         Definition.

 3.         Shamilat not included in disposition of land unless specifically mentioned as subject matter of the disposition.

   4.         Repeal.

 THE PUNJAB] LAND DISPOSITIONS (SAVING OF SHAMILAT) ORDINANCE, 1959

                                (W.P. Ordinance I of 1959)

                                                                 [27 January 1959]

An Ordinance to provide for a uniform interpretation of general expressions with regard to disposition of “Shamilat” lands in the Province of [3][the Punjab];

Preamble.— WHEREAS it is expedient to provide for a uniform interpretation of general expressions with regard to disposition of “Shamilat” lands in the Province of the [4][the Punjab].      

      Now, THEREFORE, in pursuance of the Presidential Proclamation of the seventh day of October, 1958, and in exercise of all powers enabling him in that behalf, the Governor of West Pakistan is pleased to make and promulgate the following Ordinance:-

1.   Short title and extent.— (1) This Ordinance may be called [5][the Punjab] Land Dispositions (Saving of Shamilat) Ordinance, 1959.

  [6][(2)  It extends to the whole of the Province of [7][the Punjab] except the Tribal Areas].

2.   Definition.— In this Ordinance, unless there is anything repugnant in the subject or context, the expression “Shamilat” means land described as such in the Record of Rights, and the land so described, shall be deemed to be Shamilat, notwithstanding that the whole or a part of it is in the possession of one or more of the proprietors in the estate, or of any other person.

3.   Shamilat not included in disposition of land unless specifically mentioned as subject matter of the disposition.— 

(1) Notwithstanding any law, usage or custom to the contrary, in any disposition of land, whether testamentary or otherwise, effected by the maker by means of a writing or orally and whether made before or after the commencement of this Ordinance, words or phrases of a general nature, purporting to convey rights or interests incidental, contingent, or collateral, to that land, shall not be so construed as to include therein the Shamilat or any portion thereof appurtenant to such land, unless such Shamilat or a portion thereof has been specifically mentioned as the subject matter of the disposition.

(2)  This section shall not affect any decision of a competent court or authority given before the commencement of this Ordinance:-

    (a)  if it is not open to review, appeal or revision, or

   (b)  if it is so open, no such proceedings have been taken, and the decision has consequently become conclusive between the parties.

4.   Repeal.— The Punjab Land Dispositions (Saving of Shamilat) Act, 1951[8], is hereby repealed.

[1]This Ordinance was promulgated by the Governor of West Pakistan on 23rd January, 1959; published in the West Pakistan Gazette (Extraordinary), dated 27th January, 1959, pages 455-456; saved and given permanent effect by Article 225 of the Constitution of the Islamic Republic of Pakistan (1962).

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Case Law

                             2011 YLR 58

                                                [Peshawar]

                      

                         Before Mazhar Alam Khan Miankhel, J

                                 Mst. AMTARI and others---Petitioners

                                                 Versus

                       Mst. HAKIM JAN and others---Respondents

               Civil Revision No. 684 of 2005, decided on 20th September, 2010.

   Specific Relief Act (I of 1877)---

---Ss. 42 & 54---Suit for declaration-cum-injunction---Both Trial Court and Appellate Court

had concurrently dismissed suit filed by the plaintiff---Validity---Plaintiffs who claimed to be

owners in possession of suit property measuring 158 Kanals and 16 Marlas, had alleged that

only 21 Kanals and 16 Marlas of land had been shown in their names in Revenue Record and

remaining 137 Kanals had been incorrectly incorporated in the Revenue record in the name of

defendants---Property in dispute was the common village property/Shamlat Deh though in

possession of some of the plaintiffs and entire evidence on record was silent to the fact as to

what was the actual ownership of the plaintiffs in the village and what was the share to be

claimed by them in the village common property measuring 1764 Kanals 7 Marlas in total---

Mere assertions of the plaintiffs would not entitle them to claim the village common property

to be their exclusive ownership---Plaintiffs had also failed to prove the factum of ownership of

the entire property as claimed by them---While challenging the entries in the Revenue record

and that too of the Settlement record they were required under the law to have brought specific

and direct evidence in support of their claim---Nothing was on record which could suggest that

it was actually the property owned by the plaintiffs and that defendants had no concern

whatsoever with the same---Plaintiffs had failed to make out a case for interference in exercise

of revisional jurisdiction of High Court---Concurrent finding arrived by the courts below,

needed no interference.

Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589 ref.

Altaf Ahmad for Petitioners.

Asghar Khan Kundi for Respondents.

Date of hearing: 20th September, 2010.

                                             JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---The impugned herein are the concurrent

findings of the two Courts below whereby a suit for declaration-cuminjunction was

dismissed throughout by the Courts below. The petitioners in their suit have alleged

themselves to be the owners in possession of the suit property measuring 158 Kanals 16

Marlas fully explained in the head note of the plaint situated in Mouza Charh, Tehsil

Daggar, District Bunir and the entries in the revenue record were incorrectly made whereby

only 21 Kanals 16 Marlas of land was shown in their names and remaining 137 Kanals of

the land was wrongly and incorrectly incorporated in the revenue record in the names of

respondents. During the pendency of the suit, certain transfers of the disputed property

were effected which were also challenged through amended plaint by the petitioners. The

claim of the petitioners was denied by the respondents. After recording pro and contra

evidence, the learned trial Court dismissed the suit vide its judgment and decree dated 27-

9-2002 and appeal there against of the present petitioners also met the same fate.

2. The learned counsel for the petitioners contended that the findings of the two Courts

below are not only based on misreading and non-reading of evidence available on the

record but the jurisdiction exercised by the two Courts below was also not in accordance

with law. The revenue record specially Exh. P. W.1/3 and oral evidence of the petitioners

was totally discarded. The findings of the learned Appellate Court are against the

provisions of Order-XLI Rule 31, C.P.C., and are based on surmises and conjectures. He

even failed to appreciate the pleadings of the petitioners while placing reliance on Gul

Rehman v. Gul Nawaz Khan (2009 SCMR 589).

3. As against that, the learned counsel for the respondents submitted that the petitioners

had no cause of action available to them and their present suit was also not maintainable.

The petitioners under the law were required to have proved their case as per assertions

made in the plaint. The suit property is `Shamilat-i-Deh' which cannot be the exclusive

ownership of the petitioners and thereby supported the findings of the two Courts below.

4. Learned counsel for the parties were heard and record of the case was perused which

would reveal that the petitioners have claimed to be the exclusive owners of the suit

property whereas only 21 Kanals 16 Marlas have been shown in their names and remaining

property measuring 137 Kanals was recorded in the names of respondents and he has

sought the correction of the revenue record in this regard. The first ever settlement in the

area took place in the 1977/78 and a document "Shart Wajibul Arz" Exh.P.W.1/3 besides

the "Misal-i-Hagiat" was also prepared which would reflect that the suit property was the

common village property though in possession of some of the petitioners but the entire

evidence on the record is deficient to the fact that what was the actual ownership of the

petitioners in the village and what was the share to be claimed by the petitioners in the

village common property measuring 1764 Kanals 7 Marlas in total. Mere assertions of the

petitioners would not entitle them to claim the village common property to be their

exclusive ownership. The petitioners have also failed to prove the factum of ownership of

the entire property as claimed by them. Their claim is based on oral evidence and that too

is against the record. While challenging the entries in the revenue record and that too of the settlement record, they were required under the law to have brought specific and direct

evidence in support of their claim. There is nothing on the record which could suggest that

it was actually the property owned by the petitioners and the respondents had no concern

whatsoever with the same. As against their claim of the entire property, the revenue record

reflects the same to be a village common property (Shamilat-e-Deh) wherein every owner

recorded in the proprietary body of the village will have the proportionate right of

ownership as per his ownership in the village. Even only purchases of village property will

have no right in the village common property.

5. If para-4 of the plaint is taken into consideration that the petitioners were the actual owners of

the suit property which was wrongly and incorrectly recorded as village common property again

will have no support from the record or evidence led by the petitioners.

6. The learned trial Court had decided the issue of limitation in favour of the present petitioners

which was never challenged by the respondents by way of separate appeal or cross objection but

the learned appellate Court while considering the appeal of the petitioners without considering

the facts and circumstances of the case has held the suit of the present petitioners to be time

barred. The revenue record available on the file would suggest that both the parties to the suit are

cosharers/co-owners and the petitioners appear to be in possession of the same. So, every

successive preparation of revenue record would give them a fresh cause of action. While

considering the issue of limitation in this background, it appears to have been dealt with

incorrectly by the learned appellate Court and even if such findings on the questions of limitation

by the appellate Court are set aside would not affect overall merits of the case for which the

petitioners have failed to prove their case.

7. What has been discussed above would reveal that the petitioners have bitterly failed to make

out a case for interference in exercise of revisional jurisdiction by this Court. Hence, the

concurrent findings arrived at by the Courts below need no interference and this revision petition

is dismissed as such.

H.B.T./300/P Petition dismissed.

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           IN THE PESHAWAR HIGH COURT BANNU BENCH.

                                        C.R No.06-B of 2008

                               Muhammad Nazir through LRs

                                               Vs.

                              Ameer Jan and others.

                       

                                  Date of hearing 04.05.2015 .

Appellant-Petitioner:

By Pir Hamd Ulah Shah,

Advocate.

Respondent:

Shahid Saleem Mina

Khel & Hafeez Ullah

Khan, Advocates.

JUDGMENT

MUHAMMAD YOUNIS THAHEEM, J:- Through

instant revision petition, the LRs of petitioner

Muhammad Nazir, have called in question the

judgment and decree dated 09.02.2008 passed by

learned Additional District Judge-I, Lakki Marwat,

whereby up holding the judgment and decree dated

19.12.2006 of learned Trial Court/ Civil Judge-IV,

Lakki Marwat, the appeal of petitioner was dismissed.

2. Concise facts of the case are that

predecessor in interest of respondents No.1 to 10 - 2 -

Baidullah Jan instituted a suit for declaration to the

effect that suit property comprising Khata No.262

bearing Khasra Nos. 1974, 1975, 1976, 1833, 1934,

1935, 1936, 1937 & 1972 measuring 1442 Kanals

situated at village Marmandi, Lakki Marwat is

“Shamelat-e-‘Deh” and was used for the purpose of

grazing fields of the village since 1904-05 and

petitioners/ defendants are neither the sole owners in

possession nor entitled to deprive other co-owners of

village from its utility being common property i.e.

Shamilat, as such any mutations or gift mutations in

favour of others in column of cultivation in violation

of shart wajibul Arz, is illegal, unlawful, void, hence,

the suit.

3. Petitioners/ defendants were summoned,

on appearance they contested the suit by submitting

written statement. On divergent pleadings of the

parties the learned trial court framed as many as seven

issues including relief. The parties produced pro and

contra evidence in support of their respective stance. - 3 -

On conclusion of trial, the learned trial court after

hearing arguments of learned counsel for the parties

decreed the suit vide judgment and decree dated

19.12.2006.

4. The petitioners/ defendants being feeling

aggrieved from the judgment and decree of learned

trial court preferred appeal before the Court of learned

Additional District Judge-I, Lakki Marwat. The

learned appellate Court after hearing arguments of

learned counsel for the parties dismissed the appeal

vide impugned judgment and decree dated 09.02.2008,

hence, the instant revision petition.

5. Arguments heard and record perused.

6. In this case statement of Patwari Halqa is

very important, who was examined as PW-1 and

produced Fard Jama Bandi for the year 1995-96 (Ex:

PW 1/1) according to which total Shamilat land is

1442 Kanal, Shajra Nasab Khandan No.170, (Ex:

PW1/4) according to which petitioners belongs to

same Khandan and Wajib-ul Arz of Moza Marmandi - 4 -

(Ex:PW1/5) consist of six pages. Perusal of the same

reveals that the disputed land is Shamelat-e-Deh used

for the purpose of pasture (Charagah) for the Aqwam

Baist Khel and Ghazni Khel whereas people of other

mozajat/village can graze their cattle with their

permission. Moreover, it is also admitted by DW-4,

Qasim Khan in his cross examination that disputed

property is entitlement of Baist Khel and Ghazni Khel

Aqwam. In view of such a situation, when it is

abundantly clear that suit property is Shamlat-e-Deh

and ownership of two Aqwam Baist Khel and Ghazni

Khel, no person from any one of the said caste is

authorized to transfer the disputed land, hence, any

kind of transactions including gift in column of

cultivation without the consultation of other owners of

common property carried out by the petitioners in

violation to the condition laid down in the Wajib-ul

Arz (Ex:PW1/5), are illegal against the law, void ab

initio. In this regard wisdom is derived from the

Judgment in case titled “Sher Afthan Vs. - 5 -

Muhammad Rafiq and another (2012 CLC 1803)

Board of revenue Punjab, wherein it has been held:

“As a matter of fact, the land in

Shamilat Deh is not only the ownership

of the villagers living in that village but

also the ownership of the coming

generations following in succession.

The misuse, sale and illegal occupancy

will deprive the future generations of

their due inheritance and societal

rights. Section 136 of The Land

Revenue Act, 1967 clearly imposes

restriction and limitation on the

partition of Shamilat land. In the

instant case, while attesting the

Mutation of Shamilat Deh, all co

sharers have not been consulted, which

is mandatory. It was incumbent upon

the Revenue Officer to summon all

interested parties and stakeholders for

consultation, before attestation of such

Mutation. It has been held in 1985 CLC

796 that partition sanctioned without

consulting a large number of co-sharers

is not justified. It has also been held in

2003 SCMR 1857 that partition of

Shamilat Land should be made on the

basis of Shart Wajib-ul-Arz and not on

the basis of Misl-e-haqiat.” - 6 -

7. The other point for determination is, as to

whether any wrong entry in column of cultivation or

mutation can be challenged through any member/ owner of

proprietary body or suit land is to be challenged through

representative suit in view of Order I Rule 8 of the Civil

Procedure Code. To this legal aspect I hold that any such

entry in shape of mutation in column of cultivation without

consultation of other co-owners or in violation of Wajibul

Arz can be challenged by any member of proprietary body

and it would not be necessary to be challenged by all the

members of proprietary body or through a representative

suit in view of Order I Rule 8 of CPC. Reliance is placed

on case titled, “Major Muhammad Alyub Khan Vs Capt.

Jamroz Khan and 3 others”, (1979 CLC 788)(SC (AJ&K)

wherein it is held that:

“A co-sharer or a co-owner in the

common village property can

challenge such a sale even if the

Shamilat Deh land sold is beyond his

share, provided it affects the interest

of the other proprietary body and the

challenger does not set up an adverse - 7 -

title of his own against the rest of the

proprietary body. Of course if such a

shareholder wishes to get the

possession of his own share in the

Shamilat Deh, he can do so through

partition proceedings and can get

possession to the extent of his own

share only.”

7. The scope of revisional jurisdiction is very

limited in which the court cannot set aside the

concurrent findings of facts recorded by Courts of

competent jurisdiction nor it can upset the same,

unless these findings are shown patently illegal,

without jurisdiction, based on conjectural

presumptions or erroneous assumption. No such

infirmity has been pointed out by the learned counsel

for the petitioner in the impugned judgments, hence,

not warranted any interference by this Court.

8. In view of the above discussion and the

dictum laid down by the august supreme Court, it is

held that both the courts below have rightly

appreciated the evidence as well as revenue record and - 8 -

reached on a right conclusion, which need no

interference under revisional jurisdiction of this Court,

therefore, this revision petition being devoid of merits

is dismissed. No order as to costs.

Announced.

04.05.2015

J U D G E

[2]Substituted by the Punjab Laws (Adaptation) Order, 1974 (Pb. A.O. 1 of 1974), for “West Pakistan”.