Creation of Plots by CDA

 PLJ 2014 Islamabad 160

Present: Shaukat Aziz Siddiqui, J.

Syed WAQAR HUSSAIN GILLANI--Petitioner

versus

CAPITAL DEVELOPMENT AUTHORITY, etc.--Respondents

W.P. No. 2222 of 2008, decided on 13.3.2013.

Constitution of Pakistan, 1973--

----Arts. 9 & 199--Constitutional jurisdiction--Act of CDA in carving out plots through conversion of open space for a playground--Plot was uneven and was left out carving out plots by CDA was not fit for human inhabitation being close to WAPDA grid station and passing of high tension electric wires--Petitioner sought permission from CDA for beautification by making it planting grass, trees and flowers so that residents could enjoy its beautification--CDA instead of granting permission replied that place was meant for a playground--If plot allotted were against law, CDA may be directed to allot alternate plots--Validity--CDA without caring about master plans conspired to carve out plots, at the most valuable and significant places, which under no stretch of imagination can be described as bona fide act and lawful device--Ground of any sport, more particularly cricket was not reduced to pitch and playing area inside boundary line, rather facilities like gym, tennis Court were essential--CDA was bound to add such facilities instead of shrinking areas of playground by carving out plots in it--Places belonging to public-at-large were like trust which cast upon delicate duty upon civic body to protect and preserve such properties--Act of CDA officials was not less than offence like criminal breach of trust, cheating and fraud--It is for the civic body to initiate criminal proceedings and fake disciplinary action against culprits who for personal benefit, gain and interests sold assets of nation--It has been held time and again that places like parks and playgrounds were necessary for healthy like and to convert such places to commercial use and residential purpose is an infringement to fundamental rights--Act of carving out of plots in playground was unconstitutional, illegal, arbitrary result of colorable exercise of authority tainted with mala fide--Allotment made were hereby cancelled and set aside. [Pp. 164 & 165] A, B, C, D, E & F

Mr. Zulfiqar Khalid Maluka, ASC for Petitioner.

Mian M. Hanif, ASC along with Mr. Umar Hanif Khichi, Advocate for CDA.

Ch. Haseeb Ijaz Butt, Advocate for Respondent No. 5-A (Allottee of Plot No. 200-A).

Malik Muzaffar Khan, Advocate for Respondent No. 5-C (Allott of Plot No. 200-C).

Date of hearing: 13.3.2013.

Judgment

Through this single judgment both the connected W.P.Nos. 2222/2008 & 2401/2009 are being disposed of as common questions of law and facts are involved.

2.  Petitioner invoked the Constitutional Jurisdiction of this Court by way of filing instant petition, with the following Prayer:--

"In the circumstances, it is, therefore, humbly prayed that the Hon'ble Court may graciously be pleased to accept the writ petition to the following effect;--

(a)        The act of the Respondent No. 1 in carving out Plots No. 200-A, 200-B & 200-C through conversion of the open space (kept admittedly for a playground) adjacent to the house of the petitioner may graciously be declared as illegal, without lawful authority and void ab initio.

(b)        The respondent CDA be directed to refrain from illegally changing the nature of the open spaces into residential plots and to further refrain allotting the same to any person.

(c)        The respondent CDA may kindly be directed to refrain from handing the possession of Plots No. 200-A, 200-B & 200-C to purported allottees and status quo is prayed as to any intended construction work on the suit plots.

(d)        The Respondent No. 1 be directed to fulfill its assertive intent and purpose of developing a play ground on the open space adjacent to the house of the petitioner.

(e)        Any other relief which this Hon'ble Court deems fit and proper in the circumstances of the case may graciously be granted to the petitioner along with cost of these proceedings.".

And presented the facts as under:--

3.  That petitioner is owner-in-possession of House No. 200 (measuring 800 Sq.Yards), St. No. 25, F-11/2, Islamabad, constructed over a corner plot, which he purchased in the year 1996. Adjacent area to the said plot was uneven and was left out from the purview of carving out plots by the CDA as was not fit for human inhabitation being close to WAPDA grid station and passing of high tension electric wires, converged and originated for supply of electricity to different developed Sectors of ICT. As the said area was full of security hazards, had wild growth, therefore, petitioner sought permission from the CDA for its beautification by making it even, planting grass, trees and flowers so that not only petitioner and his family but the nearby residents could also enjoy its beautification and avoid dreadful consequences from the wilderness but CDA instead of granting permission, vide letter dated 18.06.1996, replied that place was meant for a playground and issued directions to the Respondent No. 2 for taking appropriate measures in this regard. Since, development of playground for children was not in sight at all, therefore, petitioner at its own made it even, removed all the shrubs, bushes, etc and planted grass, flowers and little trees which brought beauty to the vicinity. Later, petitioner witnessed some real estate agents, frequently visiting the said open space along with ladies and gents, on query it revealed that three plots numbering 200-A, 200-B & 200-C, carved out for the purported allottees, who were in hurry to dispose of the same to intended purchasers at hefty considerations. The petitioner visited the CDA office for seeking relevant information which was refused to him, thus petitioner could not ascertain the name, parentage and addresses of the purported allottees.

4.  Vide Order dated 06.07.2009, petitioner was directed to implead allottees of carved out Plot Nos. 200-A, 200-B & 200-C.

5.  On 11.01.2012 writ petition was dismissed for non-prosecution and for the reason that learned Counsel for CDA, made the statement that, no change whatsoever, made in the master plan. However, vide order dated 10.04.2012 writ petition was restored to its original number. The stance of petitioner remained consistent that Planning Wing of CDA, for considerations alien to law carved out plots in the area, reserved for play ground, which is besides the Master/Sector Plan. On the contrary CDA came up with a version that plots carved out were infact on the left over land in order to accommodate the affectees. In order to have exact picture of the site and situation, this Court appointed Mr. Nauman Munir Paracha, Advocate High Court as Local Commission with the following reference:

"Whether piece of land reserved for "Play Ground" in master plan is intact and whether any encroachment has been made over it."

Learned Local Commission was directed to visit the site and to inspect the master plan and other relevant record, in order to make it part of his report. Petitioner was directed to pay fee of Rs. 20,000/-to the learned Local Commission. In terms of reference learned Local Commission submitted his comprehensive report on 29.05.2012.

6.  Interestingly, none of the parties preferred to file objections on the report of Local Commission, although an adjournment was sought by the learned Counsel for CDA for this purpose but submitted comments only, which in fact, are sort of clarification of unearthed facts. For convenience, conclusion drawn by the learned Local Commission is being reproduced herein below:

"Based on the above, I am of the opinion that the newly created residential Plots 200-A, 200-B, 200-C and 200-D were part of the playground. They are, thus, an encroachment upon the area of the playground.".

7.  In order to hear the view point of allottees, this Court ensured that they are properly served with notices, therefore, vide order dated 26.06.2012 Additional Director (Planning) was directed to place on record allotment letters, on receipt of same office issued notices. Except allottee of Plot No. 200-A, none appeared, therefore, order of substituted service, through proclamation in the daily "Jang" was passed. Respondent Nos. 5-A and 5-C put appearance through their learned Counsel and took the stance that, they have been allotted plots against their entitlement and if plot allotted to them are against the law, CDA may be directed to allot alternate plots at some other sector. Since, no one put appearance on behalf of Respondent No. 5-B, therefore, proceeded ex-parte.

8.  Learned Counsel for petitioner argued his case in line with pleadings and placed reliance on the report of learned Local Commission. Learned Counsel for CDA defended the act of carving out plots and subsequent allotment to Respondent Nos. 5-A to 5-C. Learned Counsel for allottees took the stance that after agonizing delay, plots allotted to them, however, if same are in violation of law, CDA may be directed to allot alternate plots.

9.  I have heard learned Counsel, perused the record on file and went through the provision of law.

10.  Playgrounds, Parks, Green Belts and other places of public use belong to all citizens of the country, whether belonging to urban areas or coming from rural background, more particularly residents of that vicinity and the city, where such places are located. These places come in the joint ownership and constructive possession of all citizens, which is a Constitutionally guaranteed right. It appears that Planning Department of CDA, without caring about the Master/Sector Plans, conspired to carve out plots, at the most valuable and significant places, which under no stretch of imagination can be described as bona fide act and lawful device. During the course of arguments one amazing, rather ridiculous explanation came forward from the officials of CDA that, plots carved out are not in the area of cricket ground, rather outside the playing area of it. It is a matter of common knowledge that ground of any sport, more particularly cricket is not reduced to pitch and playing area inside boundary line, rather facilities like gym, tennis/squash Courts, swimming pool, pavilion, dressing room, spectators place are essential. CDA is bound to add these facilities instead of shrinking the areas of playground by carving out plots in it. Places belonging to public-at-large are like "TRUST" which cast upon delicate duty upon the civic body to protect and preserve such properties.

11.  It is important to note that value of residential plots in all sectors is not equal, difference in prices enhances further, when comparison comes between the plots of developed and under developed sectors. One can easily understand and trace the reasons of undue favour extended to Respondent Nos. 5-A to 5-C as such type of benefits can only be extended with cryptic approach, lucrative influence and dubious dealings. I have no hesitation in observing that this act of the CDA officials is not less than offence, like criminal breach of trust, cheating and fraud. It is for the civic body to initiate criminal proceedings and take disciplinary action against the culprits, who for personal benefit, gain and interests, sold the assets of Nation. The Court of apex in the case of Pervaiz Oliver, reported as PLD 1999 SC 26 held authoritatively, about the Public Property in the following words of command:--

"Disposal of -- No. public property, big or small, tangible or intangible, can be disposed of except in accordance with law--Functionaries who transgress, expose themselves to the severest or penalties, under law, the cardinal principle being that the higher the functionary, the higher the responsibility and, for that reason, the stricter the punishment".

Superior Courts have always disapproved such type of arbitrary decisions, polluted acts and corrupt practices. It has been held time and again that places like parks and playgrounds are necessary for healthy life and to convert such places to commercial use and residential purposes is an infringement to fundamental rights guaranteed by the Constitution of the Islamic Republic of Pakistan, more particularly Article 9. There are numerous authoritative pronouncement on the issue but following judgments are lightship for times to come, "New Murree Project case (2010 SCMR 361). Moulvi Iqbal Haider Case (PLD 2006 SC 394), Ardeshir Cowasiee case (1999 SCMR 2883). Shehla Zia Case (PLD 1994 SC 693) and Manzoor Bhatti Case (PLD 2002 Lahore 412).

12.  Thus, for the foregoing reasons both the connected petitions are allowed with the declaration that act of carving out of four plots in the playground of Sector F-11/2 Islamabad is unconstitutional, illegal, arbitrary, result of colorable exercise of authority, tainted with mala fide, for ulterior motives, outcome of irrelevant consideration, rarity, sham and besides the dictums laid down by the superior Courts of the country. Allotments made in favour of Respondent Nos. 5-A to 5-C are hereby cancelled and set aside. It is directed that playground be restored to its original position, CDA may allot plots to Respondent Nos. 5-A to 5-C in any other Sector in accordance with their entitlement, which may also be verified. It is also directed that petitioner shall not change the nature of area adjacent to his house by raising any sort of structure or making part of his house.

(R.A.)  Petitions allowed

Application for Impleadment in Appeal

 PLJ 2022 Lahore 437

[Multan Bench, Multan]

Present: Sultan Tanvir Ahmad, J.

Mst. SHAHNAZ PARVEEN--Petitioner

versus

Mst. ASMA KALSOOM & 20 others--Respondents

C.R. No. 113 of 2018 & C.R. No. 1674 of 2017, decided on 13.9.2021.

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

----S. 42--Suit for declaration--Decreed--Appeal Filing of application
for impleadment as party during pendency of appeal--Accepted--Matter was remanded--Producing of documents at appeal stage
by respondent--Determination of documents--Challenge to--Admissibility of documents cannot be determined without giving chance to parties to exhibit same and or chance to produce makers and witnesses of documents--Any ruling as to authenticity of documents without proper examination can result into miscarriage of justice and at same time shall prejudice trial and/or appeals-- Order of remand by Appellate Court is simply a matter sent to trial Court for re-examination and this order is not final determination of rights of parties--Discretion exercise by Appellate Court is neither unwarranted nor unjust in circumstances--Counsel of petitioner has failed to make out any case of material irregularity or illegality, requiring interference in revisional jurisdiction--Revision petition dismissed.       [Pp. 439 & 441] A, C & D

PLD 1962 SC 291 ref.

Power of Court--

----Court is empowered, at all stages of proceedings, to add any party or parties whose presence before Court is necessary to adjudicate upon real matter in dispute or when presence of parties is necessary to enable Court to effectually and completely adjudicate upon matter.

                                                                                              [P. 439] B

Malik Muhammad Tariq Nonari, Advocate for Petitioner (in Revision Petition No. 113-2018).

Mr. Iqbal Hussain Jafri, Advocate for Respondents.

Mr. Iqbal Hussain Jafri, Advocate for Petitioner (in Revision Petition No. 1674-2017).

Malik Muhammad Tariq Nonari, Advocate for Respondents.

Date of hearing: 13.9.2021.

Judgment

Through this single judgment, the captioned revision petitions being outcome of same order, alongwith all the civil miscellaneous applications, shall be decided together.

2. The present revision petitions are arising out of the consolidated order dated 23.10.2017 passed by learned Additional District Judge, Khanewal in civil appeals.

3. The facts, necessary for the decision of these civil revisions, are that Mst. Shahnaz Parveen (the 'Petitioner') obtained a judgment and decree dated 22.02.2016 in civil suits No. 59 of 1997, whereby she was declared as lawful daughter of Hussain Ahmad Khan and Mst. Khursheed Jahan and Mutation No. 183 dated 19.01.1972 was cancelled. The Petitioner was held entitled to inherit the estate of her parents alongwith sisters namely Mst. Munawar Jahan and Mst. Raees Jahan and brother Sarwar Ali Khan. Appeals were filed by unsatisfied defendants.

4. Mst. Asma Kalsoom (the 'Respondent No. 1') filed applications under Order 1, Rule 10 of the Code of Civil Procedure Act, 1908 in the referred appeals. Learned Additional District Judge, Khanewal on 23.10.2017 while accepting the applications, ordered to implead her as party in the suits as defendants. The entire matter was remanded to the learned trial Court with the direction to obtain the written statement of Respondent No. 1, frame proper issues and to decide the matter after recording evidence, if any produced. Said order has been challenged by way of present revision petitions.

5. Malik Muhammad Tariq Nonari, learned counsel for the Petitioner, while arguing the case submitted that the documents relied by the learned Appellate Court are fake and forged; that Madrasah/School certificate is inadmissible as the certificate produced contains a stamp which say "copy to copy is not admissible in Court" and further contended that the relevant school has refused to recognized the document; that similarly Marriage Certificate issued by Government of Punjab having entry dated 06.04.2016 is bogus; that Family Certificate has been ignored by the learned Appellate Court. Learned counsel for the Petitioner has argued that suit titled "Mst. Kalsoom v. Manager NADRA" was filed on 16.06.2016 for correction of the name of father which was dismissed, likewise, some other suits for correction of the names were also dismissed. It has been further argued that the order of remand by the learned Appellate Court is illegal and the learned Appellate Court should have obtained the evidence itself instead of making the order of remand.

6. Conversely, Mr. Iqbal Hussain Jafri, learned counsel for the Respondents, has opposed this revision petition and submitted that the documents produced with this revision were never produced before the learned Appellate Court and the same were obtained after the decision of remand by influencing the authorized person.

7. I have heard the arguments and with the able assistance of the learned counsel for the parties record is perused.

8. Respondent No. 1 at the appeal stage produced the certificate, which shows her name as Mst. Asma Kalsoom, daughter of Muhammad Sarwar Ali Khan. Her Marriage Certificate with one Malik Irshad Hussain, which was issued on 06.04.2016, is reflecting the same. Divorce Deed dated 30.06.1998 is produced before learned Appellate Court, whereby Muhammad Sarwar Ali Khan has allegedly divorced the mother (Mst. Khalida Parveen) of Respondent No. 1. Though, the learned counsel for petitioner has countered these documents by placing on record certificate issued by the school and a marriage certificate dated 27.05.2016 which contains name of one Abdullah in column of the father's name and other documents have also been relied upon, which contradict the stance taken by the Respondent No. 1.

9. The admissibility of aforementioned documents cannot be determined without giving chance to the parties to exhibit the same and/or the chance to produce the makers and witnesses of these documents. Any ruling as to the authenticity of these documents without proper examination can result into miscarriage of justice and at the same time shall prejudice the trial and/or appeals.

10. It is settled law that the Court is empowered, at all stages of the proceedings, to add any party or parties whose presence before the Court is necessary to adjudicate upon the real matter in dispute or when presence of the parties is necessary to enable the Court to effectually and completely adjudicate upon the matter. The person, who is claiming to own share in the suit for administration or inheritance, certainly falls in the category of persons, who are likely to be adversely affected by the adjudication.

11. It will be beneficial to reproduce the relevant part of the judgment of the Honourable Supreme Court in case titled "Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others" (PLD 1962 Supreme Court 291):

".... According to Order I, rule 10, of the Civil Procedure Code any persons whose presence is "necessary in order to enable the Court effectively and completely to adjudicate upon and settle all questions involved in the suit" may be added as a party to the suit. There should be no objection to a plaintiff joining in an administration suit all those who claim to be entitled to a share in the property of the deceased and whose claim he wants to be adjudicated upon. To refuse the plaintiff to implead such persons will lead to an almost intolerable situation. Suppose there are ten claimants to an estate of the deceased and the plaintiff who sues for administration admits the claim of only one of them. If he is allowed to implead only the one whose claim he admits the decree passed in the administration suit distributing the estate may be nullified by one of the remaining claimants filing a suit and serving a declaration that he is entitled to a share in the estate of the deceased. The heir who has already got a decree in the administration suit will, if he still desires distribution of the estate, have to file a second suit for administration impleading also the heir who has secured a declaration, but the decree in this second suit too may be nullified by another claimant filing a suit and getting a declaration that he is entitled to a share in the estate of the deceased. It seems clear therefore that an acceptance of the contention of learned counsel for the appellant may lead to a hopeless multiplicity of suits. Great stress is laid by learned counsel on the fact that the plaintiff will by an administration suit be getting possession from persons who are in fact only trespassers and this is outside the scope of an administration suit. But the plaintiff will be getting possession only from persons who claim to be entitled to a share in the property of the deceased and who claim no independent right in themselves. While an administration suit is not a remedy for getting possession from those who claim the property in their possession in their own right and adversely to the deceased there does not appear to be any valid objection to their dispossession if they claim only as heirs or under a will from the deceased and their claim is

negatived. The question as to whether a person is entitled to a share in the property of the deceased is a fit subject of decision in an administration suit and in fact learned counsel for the appellant does not contended to the contrary his plea being that a defendant in an administration suit can raise a question as to whether the plaintiff or another defendant is entitled to a share but that the plaintiff cannot raise such a plea as to a defendant. We see no good reason for this distinction. "

(Emphasis supplied)

12. Furthermore, order of remand by the learned Appellate Court is simply a matter sent to the learned trial Court for re-examination and this order is not final determination of rights of the parties. I am of the considered view that discretion exercise by the learned Appellate Court is neither unwarranted nor unjust in the circumstances. It cannot be said that while passing order of remand to re-examine the matter in the light of fresh facts, documents and parties, learned appellate Court has acted arbitrarily or without jurisdiction.

13. Learned Counsel of the petitioner has failed to make out any case of material irregularity or illegality, requiring interference in the revisional jurisdiction. The instant revision petition is, therefore, dismissed, with no order as to costs.

14. For reasons recorded above, the Revision Petition No. 1674 of 2017 having no substance is also dismissed.

15. C.M. No. 2970-C of 2018 in Civil Revision No. 1674 of 2017 for impleading Applicants as necessary party is disposed of, as the same can be filed before the learned Court, where the trial is pending, if permissible by law.

(Y.A.)  Petition dismissed

Application for Summoning of Record Keeper

 PLJ 2024 Lahore 302

Present: Rasaal Hasan Syed, J.

MUHAMMAD AKRAM--Petitioner

versus

Haji ILAM DIN (deceased) through L.Rs and others--Respondents

W.P. No. 48863 of 2023, decided on 1.3.2024.

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

----O.XVI R. 1--Application for summoning record keeper--Dismissed--Revision petition--Allowed--Petitioner’s application to filing of list of witnesses was declined--Revision petition--Dismissed--No sufficient cause was shown by petitioner--Recording of evidence--Challenge to--Petitioner was unable to show any “sufficient cause” for permission to file a List of Witnesses which was not filed earlier within seven days of issues and no “sufficient cause” was shown to satisfaction of Court--Respondents sought indulgence of Court for summoning witness as a Court-witness to find out truth and to do complete justice between parties and revisional Court after considering that aspect, deemed it just and fair to allow production of record; which was an official record of Treasury--Order of ADJ did not suffer from any error of law and jurisdiction and being based on rule of fair, just and complete justice, does not call for any interference--Petition dismissed.                                                 [Pp. 309 & 310] C, D & E

1992 SCMR 1778 and 2016 CLC (N) 127 ref.

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

----O.XVI R. 1--Summon as witness--A party could not summon any person as a witness unless they are named in list of witnesses which could be filed within seven days.             [P. 306] A

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

----O.XVI R. 1--Powers of Court--Proviso to Rule 1 of Order XVI, C.P.C. empowers Court to condone default in filing list of witnesses within seven days if “sufficient cause” or “good reason” is shown to exist.           

                                                                                             [P. 306] B

Mr. Umar Farooq, Advocate for Petitioner.

Ms. Sabahat Rizvi, Advocate for Respondents.

Date of hearing: 14.2.2024.

Judgment

Petitioner in this constitutional petition has challenged order dated 15.7.2023 of the learned Addl. District Judge, Lahore whereby application to summon the Record Keeper of Treasury Office, District Lahore along with the record regarding stamp-paper at serial No. 409 dated 15.8.1998 issued by Muhammad Naeem, Stamp Vendor and for recording his statement as a Court-witness, was allowed by setting aside the order dated 18.1.2023 of the learned Civil Judge, Lahore, while accepting the revision petition.

2. Facts as will be relevant for disposal of this petition are that suit for specific performance titled Haji Ilam Din v. Ghulam Haider, etc. and another suit for specific performance and permanent injunction titled Muhammad Hanif v. Noor Muhammad were instituted and are pending in the civil Court in respect of land measuring 19 kanals and 16 marlas situated in Mauza Arainyan, Raiwind Lahore. Vide order dated 31.10.2019 both the suits were consolidated and consolidated issues were framed with the direction to the parties to file within seven days the list of witnesses and certificate of readiness to produce evidence. It is claimed that both the parties did not file list of witnesses after the framing of consolidated issues. On 20.1.2020 petitioner and his witnesses appeared in Court when objection was raised that list of witnesses was not filed and, therefore, their evidence could not be recorded. An application was moved by the petitioner claiming that list of witnesses having already been filed before the consolidation of suits may be treated as list of petitioner’s witnesses or alternatively the petitioner may be allowed to furnish fresh list of witnesses on the basis of additional issues framed by the Court. This application was declined vide order dated 01.2.2020. The order was challenged in revision which was also dismissed by the learned Addl. District Judge vide order dated 29.4.2021. These two orders were challenged before this Court in Writ Petition No. 30927 of 2021 which too was dismissed on 01.7.2021. It is claimed that an application under Order XVI, C.P.C. was filed on 24.10.2022 by defendant Nos. 3 to 9 (respondents herein) for summoning Record Keeper of Treasury Office, District Lahore along with record of stamp-paper at Serial No. 409 dated 15.8.1998 issued by Muhammad Naeem, Stamp Vendor which was opposed and declined by the learned Civil Judge vide order dated 18.1.2023. The respondents challenged the order in revision which was accepted by learned Addl. District Judge, Lahore vide impugned order dated 15.7.2023.

3. Learned counsel for the petitioner mainly argued that the list of witnesses having not been filed after the framing of additional issues by the petitioner, the permission to summon the Record Keeper of the Treasury, at this stage, could not be permitted in the absence of any good or sufficient cause which having not been shown, the order of the learned Civil Judge declining the application was justified and that interference in revision by the learned Addl. District Judge vide impugned order was contrary to the rule consistently laid by the superior Courts in terms whereof any party to the suit could not summon a witness not named in the list of witnesses which needs to be filed within seven days from the framing of issues; unless permission is solicited from the Court in terms of proviso to Rule 1 of Order XVI, C.P.C. by showing “good cause” which course having not been adopted in this case, the order of the learned Addl. District Judge in revision was unsustainable. It is added that the respondents being negligent in filing of the list of witnesses in time could not be allowed to by-pass the law and that the petitioner was not allowed to file list of witnesses after the framing of additional issues which order was sustained up to this Court and, therefore, the respondents could not be treated differently than treatment extended to the petitioner and that the rule of propriety demanded that the respondents should not have been permitted to summon the Record Keeper in the absence of any list of witnesses or “sufficient cause” for the delay in this context. Learned counsel relied on certain caselaw to emphasize that the superior Courts while considering the effect of Rule 1 of Order XVI, C.P.C. have consistently observed that the rule is mandatory and that no party can be taken by surprise and that the parties to a suit are under obligation to file a list of witnesses whom they want to summon through the process of Court and in case of failure to do so the Court is competent to grant permission for filing delayed list provided “sufficient cause” is established.

4. Learned counsel for the respondents contrariwise submitted that the documents were duly relied upon in the list of reliance submitted in Court under Order XIII, Rule 1, C.P.C. and Order VII, Rule 14, C.P.C. Referring to the certified copies of the list of reliance it was submitted that there was no element of surprise to the petitioner; rather the document was duly mentioned in the list of reliance. It was added that the petitioner Muhammad Akram himself appeared in the witness-box, recorded his oral statement and produced agreement to sell dated 15.8.1998 purportedly executed by Noor Muhammad son of Imam Din in favour of the petitioner which is Exh.D-1 in the suit titled Muhammad Hanif v. Noor Muhammad, etc. During cross-examination by the counsel for legal heirs of late Haji Ilam Din certain questions in regard to the agreement were put to Muhammad Akram petitioner who denied the same although he admitted that the stamp of Exh.D-1 bore Serial No. 409 but expressed lack of knowledge about the copy of the Form No. 409. He also denied the report of the Treasury in respect of the stamp-paper of Form No. 409. It was added that copy of the record of Stamp-Paper No. 409 dated 15.8.1998, purportedly agreement to sell in favour of Muhammad Akram son of Muhammad Shafi and report of Treasury of District Lahore dated 30.5.2019 showed that fraud was committed by the petitioner Muhammad Akram as the report was to the effect that the particulars of “register goshwara” for the years 1998 to 1999 when scrutinized revealed that stamp value of Rs. 10/-dated 15.8.1998 in favour of Ghulam Muhammad son of Shah Din resident of Lahore was entered. In view of the contradiction in the document provided by the petitioner, and its original entered in the stamp-paper goshwara, the respondent moved an application for summoning of the record of the Treasury Office, District Lahore in respect of Entry No. 409 dated 15.8.1998 issued by Muhammad Naeem, Stamp Vendor. Learned counsel submits that the contradictions in the two documents i.e. Exh.D-1 and the actual entries of endorsement in the record for sale of stamp will show that fraud was committed by the petitioner and that the stamp paper on which the agreement was prepared did not pertain to the petitioner and that the learned Civil Judge rejected the application without considering the objective of the application or noticing the material effect of the production of record on the fate of the case while the learned Addl. District Judge duly took into consideration the plea of the petitioner and rightly observed that the Court had the jurisdiction to call for the record if it is required to do justice and to determine the facts properly so as to reach the truth.

5. Submissions made by learned counsel for the parties have been given due consideration. It appears that initially the suits were tried separately and evidence was recorded. After their consolidation list of witnesses in respect of additional consolidated issues was not filed. Petitioner appeared in the witness-box and produced the agreement relied upon by him as Exh.D-1. Learned counsel for the Respondent Nos. 3 to 7, the legal heirs of deceased Haji Ilam Din, put serious questions to the witness in respect of the stamp entry of Exh.D-1. In cross-examination he admitted that the stamp Exh.D-1 was prepared on Stamp Paper No. 409 but he showed his ignorance as to the form (copy of which was put to him) for supply of stamp Exh.D-1. On being asked about the report of the Treasury Department as regarded entries qua Stamp No. 409, the petitioner denied that the Stamp No. 409 for issuance of stamp-paper was in the name of Ghulam Muhammad son of Shah Din. He also denied that the stamp was issued on 16.7.1998. Learned Addl. District Judge reversed the order of learned Civil Judge with the observation that the Court was fully cognizant and had jurisdiction to summon any person as Court-witness to receive evidence and allow the parties to produce the same so that complete justice could be done in the case.

6. As regards the objection of Order XVI, Rule 1, C.P.C. to the effect that a party could not summon any person as a witness unless they are named in the list of witnesses which could be filed within seven days, there is no cavil with the proposition. It is also true that proviso to Rule 1 of Order XVI, C.P.C. empowers the Court to condone the default in filing the list of witnesses within seven days if “sufficient cause” or “good reason” is shown to exist. In this case perusal of the application for summoning of Record Keeper with record of Treasury shows that the application was not filed under any specific rule rather title of the application shows that it was filed under Order XVI read with Section 151, C.P.C. and all other enabling provisions of law while at paragraph 5 of the application it was stated that the Record Keeper of Treasury Office, District Lahore along with the relevant record of stamp-paper Serial No. 409 dated 15.8.1998 be summoned for recording statement as a Court-witness. Same was the request in the prayer clause of the application. It is thus obvious that the production of the witness and the record was claimed as a Court-witness which obviously meant that the provision of Rule 14 of Order XVI, C.P.C. was attracted which mandates that where the Court at any time considers it necessary to examine any person other than a party to the suit and who is not called as a witness by a party in the suit, the Court may of its own motion cause such person to be summoned as a witness to give evidence or to produce any document in his possession, on a day to be appointed; and may examine such person as a witness or require him to produce such document. Rule 14-A of Order XVI, C.P.C. was inserted by the Lahore High Court Amendment which is to the effect that when a witness is summoned by the Court of its own motion under Rule 14 of Order XVI, C.P.C. their diet money, etc. will be paid by such party or parties as the Court may in its discretion, direct. It appears that the learned Civil Judge was simply persuaded by the fact that earlier an application was filed by the petitioner for permission to file a new list of witnesses after consolidation of suits which was declined vide order dated 01.2.2020, the order was affirmed in revision vide order dated 29.4.2021 by learned Addl. District Judge and also by this Court in W.P. No. 30927 of 2021 titled Muhammad Akram v. Noor Muhammad and others and, therefore, the respondent in this case should also decline to summon a witness not mentioned in the list, little appreciating that the Court itself had jurisdiction to allow any person’s statement or production of record even if the parties to the suit had not summoned such person or record and that the Court can exercise its power to record the statement as a Court-witness and, if need be, to allow production of evidence in rebuttal thereof. Learned Addl. District Judge did take note of this aspect of the matter which is reproduced for facility of reference:

“… it is necessary to refer that Court is competent to summon the witness keeping in view the importance and relevance of that piece of evidence so that justice could be done in the real sense and no one could be knocked out mere on technical ground. Stamp paper No. 409 dated 15.8.1998 is part of record, there, revision petitioner as alleged that it is a fake document, he produced the report of Record Keeper and want to summon him as a Court Witness so that the real fact could be unearth. It is sufficient to mention here that evidence proposed by the plaintiff is necessary to reach upon a just decision of the case. In such scenario the learned trial Court has not properly appreciated the record as well as the relevant law on the subject and has committed material illegality as well as irregularity while passing the impugned order, therefore, the instant revision petition is accepted and the impugned order is set aside and accordingly the application for summoning of record keeper filed by revision petitioner stands accepted….”

7. Perusal of the stance of the respondent as to the document produced by the petitioner being fake; to cross-examine the petitioner in respect of Exh. D-1; and the evasive reply received would make it obvious that the material fact as to whether the document was genuine or not in view of the report, if allowed to come on record, will be necessary to reach the truth for doing justice to the parties. It is for this reason that Rule 14 of Order XVI, C.P.C. empowers the Court to summon any witness for recording his statement or produce any document if need be for the just and fair decision of the case even if the parties to the suit had failed to produce them in the Court. It appears that the respondents being cognizant of the law, did not move the application under Rule 1 of Order XVI, C.P.C; rather the title of the application shows that it is under Order XVI read with Section 151, C.P.C. and all other enabling provisions of law. Even otherwise if had no particular provision of law been quoted, the Court will be fully empowered to determine as to which provision of law will attracted for the relief claimed in the application and mere fact that the prayer in the application was to summon the witness for their statement and to produce record of Treasury as a Court-witness was adequate to show that Rule 14 of Order XVI, C.P.C. will be attracted. In Zar Wali Shah v. Yousaf Ali Shah and 9 others (1992 SCMR 1778) it was observed to the effect that the Courts have ample power to collect evidence and allow the party to produce the same so that complete and ultimate justice is done in the case and that concept of filling any lacuna cannot be recognized and applied in the Islamic system of jurisprudence which is being progressively applied to the Courts and Tribunals that are vested with the powers to receive evidence. In Mst. Sardar Begum v. Zulfiqar Ali (2016 CLC Note 127) it was observed to the effect that the main object of Rules 1(2) and 14 of Order XVI, C.P.C. was that the entire evidence which was relevant and necessary for ascertaining truth and deciding the issues involved completely and effectively should come before the Court at the stage of trial while passing judgment and that merely on the pretext of non-submission of list of witnesses and non-mentioning of names of witnesses in the list of witnesses, the matter could not be thrown out of arena of litigation because same could be due to inexperience or lack of understanding on part of the counsel which omission amounted to “good cause”. Reference was made therein to the case of Agha Zahid Ali Hilali v. Muhammad Riaz and others (C.P. No. 1278 of 2013 decided on 23.9.2013) where it was observed as under:

“It is not disputed on the record that examination of scribe and stamp vendor in the litigation on going between the parties is imperative for the just decision of the case. Yes, the respondents did not mention the names of these witnesses in their list of witnesses but when during the course of cross examination, it was; suggested to Respondent No. 1 by the counsel for the petitioners that he failed to prove the document by not examining the scribe and the stamp vendor, he after having been set on his guards, proceeded to move an application for summoning of the aforesaid witnesses. This shows that omission to summon the witnesses owes its origin to either in-experience or lack of understanding on the part of the counsel or the party. Omission of this type was a good cause to all intents and purpose”

In the instant case the controversy was about the genuineness of the document produced as Ex.D-1 which according to respondents was prepared on a stamp-paper issued for a different person. The decision on the question would of course be relevant and helpful in determining the issue between the parties. It was in these circumstances that the learned Addl. District Judge allowed the revision petition to find out a truth for doing complete justice between the parties.

8. As regards the argument that the petitioner’s application under Rule 1, Order XVI, C.P.C. was dismissed and on that such premise the application of respondents should also have been declined; there is no substance in this argument for the reason that in the petitioners’ case he was unable to show any “sufficient cause” for permission to file a List of Witnesses which was not filed earlier within seven days of the issues and no “sufficient cause” was shown to the satisfaction of the Court. To the contrary in the instant case the respondents sought indulgence of the Court for summoning the witness as a Court-witness to find out truth and to do complete justice between the parties and the revisional Court after considering this aspect, deemed it just and fair to allow the production of record; which was an official record of the Treasury. The reasons that sustained with the learned Addl. District Judge being just and fair no except could be taken thereto. As to the objection of extending equal treatment, of course, the witness being summoned as a Court-witness to resolve the material controversy and to dig out the truth, both the parties will be allowed to cross-examine such witness and, if need be, to allow the petitioners an opportunity of evidence in rebuttal. The petitioners

shall, therefore, be fully protected. In view of the reasons supra the order of Addl. District Judge does not suffer from any error of law and jurisdiction and being based on rule of fair, just and complete justice, does not call for any interference.

9. Resultantly, the instant constitutional petition being devoid of any substance is dismissed.

(Y.A.)  Petition dismissed

Wife is not required to return the Gifts received before and after marriage from Husband

 PLJ 2006 Karachi 328

Present: Sarmad Jalal Osmany, J.

ABDUL SATTAR--Applicant

versus

Mst. KALSOOM--Respondent

Civil Transfer Application No. 10 of 2005, decided on 6.3.2006.

Dissolution of Muslim Marriages Act, 1939 (VIII of 1939)--

----S. 2--West Pakistan Family Courts Act (XXXV of 1964), Ss. 5, 10(4), proviso (as added by Family Courts Amendment Ordinance (LV of 2002) & Sched.--Suit for dissolution of marriage on ground of Khula' or any other ground--Pre--trial conciliation efforts, failing of--Absence or presence-of dispute as to payment/remission of dower--Preliminary decree for dissolution of marriage, passing of--Scope--In absence of such dispute, decree for dissolution of marriage would be passed immediately upon failure of pre--trial proceedings between the parties--In presence of such dispute, only upon deposit of dower amount in Court by wife such preliminary decree could be passed, whereafter such dispute would be resolved upon taking of evidence--In presence of such dispute and upon failing of wife to deposit dower amount in the Court, no decree for dissolution of marriage could be passed, rather matter would be decided after recording evidence.               [Pp. 330, 331 & 332] A, B & G

Dower--

----Husband asserting payment, but wife denying receipt of dower--Burden of proof--Husband had to prove payment, as onus of proof would always lie upon the person alleging a fact.          [P. 331] C

Bayan-ul-Qur'an by Hazart Moulana Ashraf Ali Thanvi rel.

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----Ss. 5, 10(4), proviso (as added by Family Courts (Amendment) Ordinance (LV of 2002), 17 & Sched.--Applicability--Principles--Suit for dissolution of marriage on ground of Khula' or any other ground--Preliminary decree for dissolution of marriage, passing of--Non--applicability of Qanun-e-Shahadat, and Civil Procedure Code, to proceedings before Family Court would not debar same from passing such preliminary decree--Section 17 of West Pakistan Family Courts Act 1964, provides that the Qanun-e-Shahadat, and Civil Procedure Code, shall not apply to proceedings before the Family Court--It does not debar such Court from passing a preliminary decree dissolving the marriage on the basis of Khula' or any other ground--Object of provision of Section 17 as to non-applicability of the Qanun-e-Shahadat and Civil Procedure Code, is to expedite the proceedings before Family Court, so that the same are not delayed for lack of procedural formalities as contained in such laws, which cannot be construed so as to defeat the purposes of the Family Courts Act, which is a beneficial piece of legislation designed to expedite family cases.                [P. 331] D

Bridal Gift--

----Marriage, dissolution of--Khula', ground of--Consideration for dissolution of marriage would be remission of dower amount by wife, if not received or its payment, if received--All bridal gifts given to wife before or after marriage would not be returned to husband.      [P. 332] E

2005 CLC 1844 ref.

West Pakistan Family Courts Act, 1964 (XXXV of 1964)--

----Ss. 5, 10(4), proviso (as added by Family Courts (Amendment Ordinance (LV of 2002)] & Sched.--Suit for dissolution of marriage also involving issues of return of dowry articles, custody of children, dower and maintenance--Failing of pre-trial conciliation efforts--Absence or presence of dispute as to payment/remission of dower--Preliminary decree for dissolution of marriage, passing of--Scope--If husband disputed all such claims of wife, then such contentious issues would be decided only after recording evidence--Where issue of dower was not contested, then such preliminary decree could be passed upon failing of conciliatory efforts, whereafter Court would decide other issues--Where issue of dower was contested, then upon deposit of dower amount in Court by wife, such preliminary decree could be passed, whereafter issue of dower alongwith other issues, if any, would be decided after recording evidence--In presence of such dispute and failing of wife to deposit dower in Court, no decree could be passed for dissolution of marriage, rather matter would be decided after recording evidence.             [P. 332] F

Mr. Faiz Muhammad Brohi, Advocate for Applicant.

Mr. Arbab Ali Chandio and Mr. Muhammad Yakoob Lakhair, Advocates for Respondent.

Mr. Abdul Qadir Shaikh, Advocate as Amicus Curiae.

Dates or hearing: 10 and 24.10.2005, 21.11.2005 and 8.12.2005.

Order

Vide this Transfer Application it has been prayed that Family Suit No. 77 of 2005 filed by the respondent against the applicant for dissolution of marriage on the basis of Khula' pending with the learned 1st Senior Civil Judge, Sukkur be transferred to any Family Court in District Naushahro Feroze on the grounds mentioned therein. Vide order dated 10-10-2005, the Transfer Application was dismissed. However, learned counsel were directed to address the Court on the issue regarding dissolution of marriage between the parties upon failure of pre-trial proceedings, in terms of the proviso to Section 10(4) of the Family Courts Act. 1964 as the respondent had stated before myself that although such pre-trial had failed between her and her husband (the applicant) yet the learned Family Court had not decreed her suit on the basis of Khula'. Mr. Abdul Qadir Shaikh was requested to assist the Court as Amicus Curiae. Comments were also called from the learned Family Court.

2. In this regard learned counsel for the respondent has submitted that per the diaries of the learned Family Court on 5-9-2005, pre-trial had failed between the parties and hence in terms of the proviso to Section 10(4) of West Pakistan Family Courts Act, 1964, the Suit filed by the respondent against the applicant being Family Suit No. 77 of 2005 before the learned 1st Senior Civil/Family Judge, Sukkur should have been decreed on this ground alone. Per learned counsel this was the only course left open to the learned Family Court as the issue regarding dower amount (Haq Mahr) was not contested and so also no other issues had been raised between the parties.

3. Mr. Abdul Qadir Shaikh learned Amicus Curiae has firstly stated that according to the learned religious scholars, the only consideration for grant of Khula' is remission of dower if not received by the wife and if so received an offer to return the same to the husband. If this be done then Khula' can be granted. However, under no circumstances is the wife obligated to return gifts etc.; given to her by the husband other than by way of dower. Per learned counsel even under the Bridal Gifts and Dowry Articles Act, 2004, all the benefits received by the wife from the husband prior to and after the marriage other than dower amount is not to be returned to the latter upon a divorce between the parties. In this regard learned counsel has referred to Bayan-ul-Quran by Hazart Moulana Ashraf Ali Thanvi and Ahsan-ul-Khitaba by Mufti Rasheed Ahmed Khan. Furthermore in Bahishti Zewer authored by Moulana Thanvi, it has been stated that where the husband is at fault, he should never even demand the return of dower amount from his wife upon divorce taking place between the parties. In this respect he has also cited Muhammad Zafar v. Judge Family Court 2005 CLC 1844. Insofar as the proviso to Section 10(4) of the Act is concerned, learned counsel has submitted that where the only issue before the learned Family Court is that of dower and the same is not disputed between the parties, then in terms of the said proviso a decree for dissolution of marriage is to follow immediately upon pre-trial proceedings having failed. However, where this issue is disputed, it has to be resolved before any decree for dissolution of marriage can be passed by the learned Family Court. Similarly per learned Amicus Curiae, even where the issue of dower is not disputed but other issues have been raised in the matter before the Family Court viz. custody of children, return of dowry articles and/or maintenance, again  these  would  have to be resolved before a decree could be passed since no preliminary decree can be passed in family suits as per Section 17 of the Act, the C.P.C. is not applicable.

4. I have heard both the learned counsel as well as learned Amicus Curiae. It would be seen that the West Pakistan Family Courts Act, 1964 was amended in 2002 with a view to expediting family suits and also allowing the wife, in a Suit for dissolution of marriage, to claim return of dowry articles/personal property, maintenance, custody of children, visitation rights etc. In this regard reference can be made to the newly added proviso to Section 7(2) of the Act. So also vide Section 12(a) a family Suit is to be disposed of within a period of six months from the date of institution. Finally per the proviso to Section 10(4) of the Act in a suit for dissolution of marriage, where the pre-trial fails between the parties, then a decree for dissolution is to be passed forthwith and at the same time the Family Court shall restore to the husband the Haq Mahr (dower amount) received by the wife. This amendment is in consonance with Islamic law as under the same, marriage is a civil contract and like other civil contracts can be terminated at the behest of either party, although in the eyes of Allah Almighty divorce is one of the most abhorrent of acts. Hence the wife can obtain dissolution of her marriage by remitting the dower amount if not received and paying it back to the husband if so received. Consequently, where there is no dispute between the parties on the issue of dower, then in terms of the proviso to Section 10(4) of the Act a decree for dissolution of marriage on the basis of Khula' or on any other ground is to be passed immediately upon the failure of pre-trial proceedings between the parties. However, where a dispute arises on this issue between the parties as to the payment/receipt/remission of dower then the same would have to be resolved by the Family Court. In this situation if the wife is willing to deposit the dower amount in Court, then too a preliminary decree for dissolution of the marriage should be passed by the Family Court whereafter the disputed issue regarding the dower amount could be resolved. Of course if the wife does not deposit the dower amount in Court; the matter would have to be decided upon taking evidence whereafter the decree should be passed accordingly. In this connection it would be seen that where the husband asserts payment but the same is denied by the wife, he would have to prove the same because the onus of proof is always upon the person who alleges a fact. Reference can also be made to Mulkhan Bibi v. Muhammad Wazir Khan PLD 1959 (W.P.) Lahore 710. As regards Section 17 of the Family Courts Act, 1964, which provides that the Qanun-e-Shahadat, 1984 and the Code of Civil Procedure, 1908 shall not apply to proceedings before the Family Court, in my opinion the same does not debar such Court from passing a preliminary decree dissolving the marriage on the basis of Khula' or any other ground. The provision of Section 17 as to non-applicability of the Qanun-e-Shahadat Order and Civil Procedure Code in my view, is to expedite the proceedings before the Family Court so that the same are not delayed for lack of procedural  formalities  as  contained  in  the aforementioned laws. The same cannot be construed so as to defeat the purposes of the Family Courts Act, 1964 which is a beneficial piece of legislation designed to expedite family cases. It may also be observed that per settled law the only consideration for dissolution of marriage on the ground of Khula' is the remission of dower amount by the wife if not received or payment to the husband if received. All bridal gifts etc.; given to the wife before or after the marriage are not to be returned to the husband.

5. Insofar as other issues agitated by the wife before the Family Court in a suit for dissolution of marriage viz. return of dowry articles, custody of children and maintenance etc.; where these are disputed by the husband obviously such contentious issues could only be resolved after evidence has been recorded and the decree would follow. However, where the issue of dower is not contested, in my opinion, a preliminary decree dissolving the marriage can be passed upon the failure of pre-trial proceedings whereafter the other issues as stated above could be decided by the learned Family Court. Again the same result would follow if the wife deposits the dower amount in Court where this is a contested issue whereafter the same could be decided.

6. From the foregoing discussion the following broad principles can be laid down vis-a-vis the procedure to be followed by the Family Court in suits for dissolution of marriage on the basis of Khula' or on any other ground filed by a Muslim wife where pre-trial proceedings fail.

(a)           Where the only relief sought by the wife in her suit is dissolution of marriage on the basis of Khula' or on any other ground and pre-trial proceedings fail between the parties, then the Family Court is bound to decree the suit dissolving the marriage where there is no dispute between the parties as to the dower amount. However, where such a dispute arises, and the wife deposits the dower amount in Court, a preliminary decree for the dissolution of marriage should be passed whereafter this issue would be decided by the Family Court upon taking of evidence. Of course where the wife does not deposit the disputed amount of dower in Court then no preliminary decree can be passed and the matter would have to be decided after taking evidence. In this context it is important to note that dissolution of marriage by way of Khula' is only premised on remission of dower amount if not received and payment of the same to the husband if so received by the wife. She is not bound to return gifts received before or after the marriage to the husband.

(b)           Where besides dissolution of marriage, the wife in her suit seeks other reliefs viz. custody of children, maintenance and return  of  dowry  articles etc.; then again if the issue of dower is not disputed, a preliminary decree can be passed dissolving the marriage where the pre-trial proceedings fail. Again where this issue is contested and the wife deposits the dower amount in Court a preliminary decree should be passed dissolving the marriage. Thereafter this issue could be resolved through evidence alongwith other disputed issues if any i.e. custody of children, return of dowry articles and maintenance etc. However, if the wife does not deposit the dower amount in Court, then no preliminary decree can be passed for dissolution of marriage in which event this issue alongwith other contested issues would have to be decided by the Family Court after taking evidence.

(Fouzia Fazal)   Order accordingly