Cause of Action

                       Cause of Action

                    Order 2 Rule 2 CPC

         

PLD 2023 Lahore 601

    There are three specific terms used in Order II Rule 2 which are required to be interpreted as these shall have bearing on a just decision of this case. These terms are cause of action, claim and relief. 

The expression cause of action has not been defined in the Code although several attempts have been made in the judgments to explain it. Various authorities have referred it to mean that every fact, which if traversed, it would be necessary for the plaintiff to prove to support his right to a judgment by of the court. This definition would generally suffice but it does not necessarily provide a satisfactory answer as to what is the cause of action. This Court shall not make an attempt to define the term cause of action in recognition of the fact that the scope thereof is vague and that it must be applied broadly to carry out the functions of the Code which are designed to achieve convenience and efficiency in trial of the suits. This policy of the Code is indubitably brought forth by Order II Rule 1 according to which all matters in dispute between the parties relating to the same transaction be disposed of in a single suit. Generally looking at the provisions of Orders I & II of the Code would make it evident that when the right recognized by law is violated constituting a legal wrong, a cause of action can be said to have arisen. A fortiori, it is the legally recognized wrong that creates the right to sue. It is axiomatic that facts which do not represent the existence of right in the plaintiff with a corresponding duty in defendant to observe that right and an infringement of that right or duty is no cause of action. In Stone v. Cass, 34 Okla. 5, 124 P. 960, the Court stated that “There can be no cause of action, unless there is a wrong for which redress is afforded. Nor can there be a subject of action, unless there is a right and a wrong done to it. The right might exist for ages, but is not a subject of action until it is infringed upon. The wrong might be continuous, but is not a cause of action, unless relief is afforded.” Cause of action thus comprises material facts (to borrow the term from the Code) constituting the right and its infringement which entitles a person to sue the wrongdoer or anyone liable for it. The logical progression of this rule dictates that a cause of action must include a set of primary or operative facts that represent a legally recognized wrong that creates the right to sue which gives rise to a claim enforceable in court. Each cause of action consists of points the plaintiff must prove, and all these elements must be satisfied before the court can take action. This broad categorization of the rule is in accord with the scheme of the Code.

Additional Evidence

 Additional Evidence

             

                  2023 S C M R 1155

            Civil Procedure Code 1908)---

----O. XLI, R. 27---Production of additional evidence in Appellate Court---Scope---Order XLI, Rule 27, C.P.C. states that generally, no evidence is to be produced at the Appellate stage---But there are two exceptions to the general rule i.e., additional evidence may be produced at the appellate stage if, (i) the court from where the appeal is preferred has refused to admit evidence which it ought to have admitted; or (ii) the Appellate Court requires any document in order for it to pronounce a judgment.

Civil Court power

   Civil Court power

   

           P L D 2022 Supreme Court 699

              Civil Procedure Code 1908.

----S. 9---Constitution of Pakistan, Art. 199---Matters decided by Special/Administrative Tribunals---Limited jurisdiction of Civil Courts---Grounds upon which the legality of an order passed by administrative tribunals or authorities, such as the revenue hierarchy, may be challenged before the civil courts stated.

  Following are some of the grounds upon which the legality of an order passed by administrative tribunals or authorities, such as the revenue hierarchy, may be challenged before the civil courts:

i.      Whether the matter falls within the scope of the power conferred by the relevant statute upon the administrative tribunal making the impugned order;

ii.     Whether the impugned order could have been made under the relevant statute by the administrative tribunal;

iii.    Whether the impugned order states the ground/reason on which it has been made;

iv.    Whether the ground/reason stated in the impugned order falls within the grounds stated by the relevant statute;

v.     Whether a fair and meaningful opportunity of hearing was provided to the aggrieved person before making the impugned order; and

vi.    Whether the finding recorded in the impugned order on disputed fact(s) is based on some evidence.

Execution by Family court

 Execution by Family court

                  P L D 2022 Lahore 600

         Before Shahid Bilal Hassan, J

SAWERA IKRAM---Applicant

Versus

AMIR NAVEED---Respondent

Transfer Application No. 71691 of 2021 (and connected T.As.), decided on 15th December, 2021.

(a) Family Courts Act (XXXV of 1964)---

---Preamble---Object, purpose and scope---Purpose of enacting special law regarding family disputes is advancement of justice and to avoid technicalities which are hindrance in ultimate justice between the parties---Family Court has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law---Court can exercise its own powers to prevent course of justice being refracted from the path---Main object of Family Courts Act, 1964, is for protection and convenience of the weaker and vulnerable segments of society i.e. women and children.

Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others 2010 SCMR 1840 rel.

(b) Family Courts Act (XXXV of 1964)---

----S.13 (4)---Civil Procedure Code (V of 1908), O.XXI---Execution of decree---Procedure--- Provision S. 13 (4) of Family Courts Act, 1964 has two parts: first part says that a decree can be executed by the Court itself and second part says that a decree can be executed by Civil Court as directed by general or special order by District Judge---When a Civil Court is designated and entrusted with duties to execute decrees passed by a Court: Civil or Family, it enjoys powers vested under O. XXI, C.P.C.

(c) Family Courts Act (XXXV of 1964)---

----Ss. 5, 13(4) & 25-A---Civil Procedure Code (V of 1908), S.46---Execution of decree, transfer of---Principle---Applicant was wife of respondent who sought transfer of execution proceedings from the district where property was situated the place of her abode---Validity---Held, there was no need to transfer execution petition to any other Court out of one district to other district where judgment-debtor resided---Executing Court seized of the matter could adopt procedure provided under law by sending a precept through proper channel to the Court where judgment debtor resided or had movable/immovable property so as to attach the same and recover decretal amount as arrears of land revenue, following methodology as provided in S.46, C.P.C.---When all proceedings at trial stage were carried out at a place where women and children resided, forcing them to get transferred execution petition or decree to some other Court, out of District, would cause inconvenience and troubles to them, such was not the myth and essence of Family Courts Act, 1964, as highlighted in its 'Preamble'---High Court for future proceedings directed all District Judges and Family Courts in Punjab Province that while passing money decree in respect of maintenance allowance, alternate prices of dower or dowry articles be fixed and provisions of S.13(3) of Family Courts Act, 1964 should be adhered to---High Court further directed that District Judges to designate a Civil Judge as Executing Court in their Districts as well as Tehsils, where execution petitions for satisfaction of decrees passed by Family Court would be filed and executed/satisfied in accordance with law by adopting all measures in that regard---High Court also directed that in case judgment debtor resided in some other District and owned property, precept would be transmitted for attachment purposes and further proceedings were to be taken in accordance with law---Application was disposed of accordingly.

Amjad Iqbal v. Mst. Nida Sohail and others 2015 SCMR 128; Haji Muhammad Nawaz v. Samina Kanwal 2017 SCMR 321 and Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others 2014 SCMR 1365 ref.

Moazzam Saleem for Petitioner.

Muhammad Mahmood Chaudhry as amicus curiae.

ORDER

SHAHID BILAL HASSAN, J.---This order will dispose of the captioned transfer application as well as following transfer applications seeking transfer of execution petitions:-

1. T.A. No.68040 of 2021 titled Mst. Saba Nasir v. Muhammad Uzman, 2. T.A. No.68728 of 2021 titled Muafia v. Zahid Mehmood, etc., 3. T.A. No. 68832 of 2021 titled Sumera Ameen, etc. v. Faryad Ali, 4. T.A. No.69289 of 2021 titled Iram Farhan etc. v. Raja Farhan Mehmood, 5. T.A. No.68970 of 2021 titled Mst. Rehana Kausar v. Mudasir Hussain, 6. T.A. No.68740 of 2021 titled Iram Shehzadi v. Shabbih Haider, 7. T.A. No. 67912 of 2021 titled Syeda Umm-e-Laila, etc. v. Syed Qamar Abbas Shah, etc., 8. T.A.No.55220 of 2021 titled Sitara Iqbal, etc. v. M. Rashid, 9. T.A.No.70294 of 2021 titled Khalida Parveen v. Adnan Bilal Sial, 10. T.A.No.67734 of 2021 title Mst. Maryum Yousaf v. Qaiser Mehmood, 11. T.A.No.59167 of 2021 titled Mst. Fozia Amjad v. Amjad Farooq, 12. T.A.No.69553 of 2021 titled Mst. Nadaas Bibi, etc. v. Ghulam Rasool, 13. T.A.No.56094 of 2021 titled Nusrat Bibi v. Yasir Mehmood, 14. T.A.No.69898 of 2021 titled Mst. Tayyaba Nafees, etc. v. Tayyab Ali, 15. T.A.No.67606 of 2021 titled Pro. Dr. Umbreen Javed v. Noshad Mahmood, 16. T.A.No.65187 of 2021 titled Ayesha Bibi, etc. v. Ajmal Shahzad, etc., 17. T.A.No.61499 of 2021 titled Azra Parveen v. M. Shafique, 18. T.A.No.59746 of 2021 titled Naveera Irshad v. M. Abdullah, 19. T.A.No.59362 of 2021 titled Mst. Noor Jahan v. Saif Ullah, 20. T.A.No.57711 of 2021 titled Asma Liaqat, etc. v. Mubashir Raheel Riaz, 21. T.A.No.55971 of 2021 titled Asma Yaqoob v. Jamshed Ali, 22. T.A.No.57230 of 2021 titled Fouzia Yasmeen, etc. v. Khalid Mahmood, 23. T.A.No.68994 of 2021 titled Syeda Ayesha Shakeel v. Syed Kamran Khalid, 24. T.A.No.58421 of 2021 titled Mst. Anam Bibi, etc. v. Muhammad Waqas Adil, 25. T.A.No.65274 of 2021 titled Khalida Usman v. Muhammad Shahzad, 26. T.A.No.68227 of 2021 titled Mst. Rehmat Bibi, etc. v. Muhammad Arshad Zaman, 27. T.A.No.69863 of 2021 titled Tayyaba Manzoor v. Nasir Ali, 28. T.A.No.69908 of 2021 titled Mehvish Bibi v. Atta Ullah, 29. T.A.No.42451 of 2021 titled Mst. Shamim Akhtar v. Muhammad Suleman, 30. T.A.No.61325 of 2021 titled Tayaba Afzal v. Farrukh Yasin, 31. T.A.No.69429 of 2021 titled Mugheesa Munir v. Muhammad Rizwan, 32. T.A.No.65380 of 2021 titled Sumaira Arif v. Shahbaz Ali, 33. T.A.No.59839 of 2021 titled Shumyla Mansha v. Khurram Shahzad, 34. T.A.No.67789 of 2021 titled Mst. Samina Bibi v. Muhammad Bukhsh, 35. T.A.No.69567 of 2021 titled Nazish Nazir v. Muhammad Bilal, etc., 36. T.A.No.55531 of 2021 titled Pathani Bibi v. Muhammad Ikram, 37. T.A.No.67640 of 2021 titled Iqra v. Muhammad Nadeem, 38. T.A.No.54307 of 2021 titled Amna Yasin, etc. v. Muhammad Kalim, 39. T.A.No.60947 of 2021 titled Amna Nasir, etc. v. Muhammad Usman Baig, 40. T.A.No.69005 of 2021 titled Afshan Rani, etc. v. Khurram Shahzad, 41. T.A.No.69829 of 2021 titled Mst. Muqadas Bibi v. Asad Iqbal, 42. T.A.No.59170 of 2021 titled Mst. Shazia Parveen v. M. Younas, 43. T.A.No.70461 of 2021 titled Mst. Rukhsana Aslam, etc. v. Khalid Mehmood, 44. T.A.No.65771 of 2021 titled Mst. Ruqia Naz, etc. v. Shakeel Ahmad, 45. T.A.No.71406 of 2021 titled Sumera Bibi, etc. v. Muhammad Saleem, 46. T.A.No.70924 of 2021 titled Mst. Nirma Khalid v. Muhammad Amir Shahzad, 47. T.A.No.71438 of 2021 titled Naeema, etc. v. Javaid Iqbal, 48. T.A. No.71416 of 2021 titled Khalida Parveen etc. v. Muhammad Arshad, 49. T.A.No.66214 of 2021 titled Kaneez Fatima v. Iftikhar Ahmad and 50. T.A.No.64567 of 2021 titled Shafqat Parveen, etc. v. Amjad Hussain.

2. Heard.

3. Preamble of the Family Courts Act, 1964 elaborates the purpose of promulgation of the enactment, which reads:-

'Whereas it is expedient to make provision, for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith.'

Meaning thereby the Family Courts Act, 1964 is a special statute and has been enacted with a specific purpose to precede expeditious settlement and disposal of disputes relating to marriage and family affairs and also matters connected therewith. Furthermore, the purpose of enacting special law regarding family disputes is advancement of justice and to avoid technicalities which are hindrance in the ultimate justice between the parties. Family Court has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law. The Court can exercise its own powers to prevent the course of justice being refracted from the path; reliance is placed on Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others (2010 SCMR 1840). The main object of this enactment is for protection and convenience of the weaker and vulnerable segments of the society i.e. women and children; it is due to this reason that "Nikah" is to be registered where the bride is living; if bridegroom fails to pay maintenance, application for securing maintenance is competent before Union Council where the bride resides and in case permission is required to be sought by the bridegroom for contracting second marriage, application has to be submitted to the Chairman Union Council where the wife resides; same like Talaq proceedings are to be carried out in the Union Council where the wife resides and if any offence relating to offences detailed in the Family Courts Act, 1964, its trial has to be conducted by Family Court within the precincts where the wife resides; moreover, if a father intends to get custody of the minor children, he has to initiate proceedings at a place where the children reside. All these go to divulge that the main purpose of the enactment is to accommodate the women and the children, weaker segments of the society, due to this reason under section 14(3) of the Act, 1964 provides that no appeal or revision shall lie against an interim order passed by a Family Court.

4. Having said above, now when after passing of a decree by a Family Court, the execution petition is filed, the Family Court executing the decree has to proceed with the same under Section 13 of the Act, 1964 and subsection (4) of the said Section is relevant which reads:-

'The decree shall be executed by the Court passing it or by such other Civil Court as the District Judge may, by special or general order, direct.'

Section 13(4) of the Act, 1964 has two parts: first part says that a decree can be executed by the Court itself and second part says that a decree can be executed by the Civil Court as directed by general or special order by the District Judge; meaning thereby when a Civil Court is designated and entrusted with duties to execute the decrees passed by a Court: Civil or Family, it enjoys powers vested under Order XXI of the Code of Civil Procedure, 1908, though section 17 of the Family Courts Act, 1964 provides that the provisions of Qanun-e-Shahadat Order, 1984 and Code of Civil Procedure, 1908 except sections 10 and 11 shall not apply to the proceedings before any Family Court. The bar contained in this section has been manifestly addressed by the Apex Court of the country in Amjad Iqbal v. Mst. Nida Sohail and others (2015 SCMR 128), wherein it has invariably been held:-

'Thus the technical trappings of execution provided in the C.P.C. are excluded from application before the Family Court in execution of a decree for maintenance. Section 13(3) of the Act itself provides that "Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court [not exceeding thirty days the same shall, if the Court so directs to recover as arrears of land revenue, and on recovery shall be paid to the decree-holder." This provision in the Act empowers the Family Court to execute its own decree for payment of money by adopting modes provided for recovery of arrears of land revenue. In the West Pakistan Land Revenue Act various modes of recovery of arrears of land revenue are spelt out and one of the modes provided for recovery of arrears of land revenue is by selling the immovable property of the defaulter.' (Underline for emphasis)

Therefore, in order to avoid technical trapping, there remains no need to transfer the execution petition to any other Court out of one district to the other district where the judgment debtor resides. The learned Executing Court seized of the matter may adopt procedure provided under law by sending a precept through proper channel to the Court where the judgment debtor resides or has movable/immovable property so as to attach the same and recover the decretal amount as arrears of land revenue, following the methodology as provided in section 46 of the Code of Civil Procedure, 1908, which enumerates:-

'Precepts.---(1) Upon the application of the decree-holder the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.

(2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree.

Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property.'

It is not meant that the provisions of the Code of Civil Procedure, 1908 are going to be followed in stricto sensu rather the procedure provided therein is to be adhered to by the Family Court because the Family Court is governed by the general principle of equity, justice and fair-play. In addition to this, if the judgment debtor is employed in any department his salary can also be ordered to be attached by the concerned quarters through proper channel and he can be forced to satisfy the decree; thus, when the main purpose of the enactment is to protect the convenience of the weaker and vulnerable segments of the society i.e. women and children, the same cannot be achieved by transferring the decree to a place where they (women and children) do not reside because they will suffer the agony of travelling from a place to the other in order to pursue the proceedings in execution petition before the transferee Court and it would also endanger their lives at the hands of judgment-debtor because of obtaining a decree against him (judgment-debtor). When we go through the ratio of judgment Amjad Iqbal (supra) it comes on surface that the Executing Court of a decree passed by a Family Court may adopt every method in order to get the decree satisfied including attachment of property (movable or immovable), selling the property, attachment of the salary and ordering for arrest of the judgment debtor; all these methods are not provided under the Family Courts Act, 1964 but the same are taken from the Code of Civil Procedure, 1908 as these methods are not inconsistent with the provisions of the Act, 1964 for the purpose of satisfaction of the decree because proceedings of the Family Court, whether as a Trial Court or an executing Court are governed by the general principle of equity, justice and fair-play, as has been held in Haji Muhammad Nawaz v. Samina Kanwal (2017 SCMR 321). In addition to this, in a judgment reported as Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others (2014 SCMR 1365), the Apex Court has invariably held:-

'Family Court was a quasi-judicial forum, which could draw and follow its own procedure, provided such procedure was not against the principle of fair hearing and trial.'

5. Pursuant to the above, when all the proceedings at trial stage are carried out at a place where the women and children reside, forcing them to get transferred the execution petition or decree to some other Court, out of District, would certainly, as stated above, cause inconvenience and troubles to them, which is not the myth and essence of the Family Courts Act, 1964 as has been highlighted in its "Preamble".

6. Concluding the above discussion and observations, the following directions are issued to be followed by the District Judges of the Punjab and the Family Courts in future:-

1. While passing the money decree in respect of maintenance allowance, alternate prices of dower or dowry articles, the provisions of section 13(3) of the Family Courts Act, 1964 should be adhered to, which provides that, 'Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court [not exceeding thirty days] the same shall, if the Court so directs, be recovered as arrears of land revenue, and on recovery shall be paid to the decree-holder.'

2. The District Judge will designate a Civil Judge as Executing Court in the District as well as Tehsils, as the case may be, where the execution petitions for satisfaction of decrees passed by the Judge Family Court will be filed and executed/satisfied in accordance with law by adopting all measures in this regard.

3. In case the judgment debtor resides in some other District and owns property, precept will be transmitted for attachment purposes and further proceedings will be taken in accordance with law.

7. In the light of the above, the instant petition and transfer applications, detailed supra, are hereby disposed of, accordingly.

MH/S-6/L Order 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.

Gift

    Gift-Ingredients

      

2020 C L C 1561.  [Balochistan]

(a) Islamic Law---

Gift---Ingredients---Dispute as to execution of gift---Non-joinder of necessary party---Effect---Contention of plaintiff was that suit property had been gifted in his favour---Suit was dismissed by the Trial Court but Appellate Court decreed the same---Validity---Plaintiff had not arrayed Secretary Board of Revenue as party in the suit---Suit was not maintainable due to non-joinder of necessary party---Ingredients of gift i.e. offer, acceptance and delivery of possession were not available to the plaintiff---Physical possession of suit property had not been transferred in his favour on the basis of gift---Impugned gift was defective in nature and was not enforceable under the law---If any of the conditions of gift was missing then it could not be termed as valid gift---Donor had expired in the year 1983 whereas gift deed was of 1984---Plaintiff had also not disclosed correct description of suit property, which had been recorded in the name of Provincial Government---Suit had been filed after lapse of thirty five years and was time barred---Party was to pursue his legal remedy with diligence and if suit was beyond limitation then each day delay should have been explained---Impugned judgment passed by the Appellate Court did not contain findings on each and every issue---Trial Court had passed well-reasoned and speaking judgment and decree based on correct appraisal of evidence---Appellate Court had reversed the findings of Trial Court without any valid and convincing grounds---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was allowed, accordingly.

     Principle of Muhammadan Law by D.F. Mulla para. 138; Mst. Rasheeda Bibi and others v. Mukhtar Ahmed and others 2008 SCMR 1384; Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153; Murad Bakhsh and 4 others v. Mst. Syeda Ashraf Jahan and 4 others 2017 CLC 646 and Muhammad Raz Khan v. Government of N.W.F.P and another PLD 1997 SC 397 rel.(

b) Islamic Law---

Gift---Ingredients---Ingredients of gift were offer, acceptance and delivery of possession.

Chance Witness

           Chance Witness

           

  2023 PCrLJ NOTE 110

      Chance witness --- Scope -- Testimony of chance witness ordinarily was not accepted unless justifiable reasons were shown to establish his presence at the crime scene at the relevant time --- In normal course , the presumption under the law would operate about his absence from the crime spot --- Testimony of chance witness might be relied upon , provided some convincing explanations appealing to a prudent mind for his presence on the crime spot were put forth , when the occurrence took place , otherwise his testimony will fall within the category of suspect evidence and could not be accepted without a pinch of salt.

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.

Custody and Guardianship

         

                 2023 MLD 1000

      Custody and Guardianship
              فرق
Law maintains a distinction between custody and guardianship and respective rights and obligations in that regard under the Guardian and Wards Act, 1890. 
The definition of ‘guardian’ in section 4(2) appears to include the concept of custody, unless the same has been exclusively awarded by the court to a party who is not the guardian of a minor. 

  Custody under the Act involves a right to upbringing of a minor. 

  * Guardianship entails the concept of taking care of the minor even in situations when the guardian does not have domain over the corpus of the child. A father is considered to be a natural guardian of a minor, since even after separation with the mother, and even when the mother has been granted custody of a minor, he is obligated to provide financial assistance to the minor. The liability to maintain the minor is not only religious and moral but legal. 

   The right of custody of minor is subordinate to the fundamental principle i.e. welfare of the minor. 

  Maintenance of child is the duty of father and the mother cannot be deprived of custody due to her inability to maintain the child for lack of resources.

Dominus Litis

         

            Dominus Litis

            2013 SCMR 602

Case of impleadment of parties to a suit is dependant upon the plaintiff, as a general rule of "dominu s Litis", the plaintiff is the controller of the suit or litigation---Plaintiff could not be compelled to initiate litigation against a specific person, or drop the same, as the case may be---Impleadment of parties to a suit is entirely dependant on the case set up by the plaintiff in plaint, as to who should be sued and arrayed as defendant, as it is for the plaintiff to first determine the cause of action against a specific defendant and then prove same in evidence.

* Expression "dominus litis' means the controller of the suit or litigation.

 1992 CLC 700 ALTAF PAREKH Versus DELMENTS CONSTRUCTION COMPANY

Case of impleadment of parties to a suit is dependant upon the plaintiff, as a general rule of "dominu s Litis", the plaintiff is the controller of the suit or litigation---Plaintiff could not be compelled to initiate litigation against a specific person, or drop the same, as the case may be---Impleadment of parties to a suit is entirely dependant on the case set up by the plaintiff in plaint, as to who should be sued and arrayed as defendant, as it is for the plaintiff to first determine the cause of action against a specific defendant and then prove same in evidence---Mere fact that at the pre-trial stage, one feels that no case would be proved or could not be proved, the name of defendant could not be struck out or deleted, except in very remote cases. 2014 CLC 561 MUHAMMAD IMRAN Versus PRESIDENT KASB BANK LTD.

* Person can not be made party without consent of the plaintiff. 2013 SCMR 602

  "dominu s litis" principle of---Applicability---Scope. PLD 2009 Kar. 227 AL-HOQANI SECURITIES AND INVESTMENT CORPORATION (PVT.) LTD. Versus NATIONAL CLEARING COMPANY OF PAKISTAN LTD