Zafar Khan1

In the Court of Mr. Ijaz Ahmad Chaddhar, Additional District Judge, Lahore.

Muhammad Asad

Versus

Muhammad Asad

Versus

Humaira Naz & another. Family appeal (maintenance). Humaira Naz Family appeal (Dower).

Application for seeking adjustment of hearing. Respectfully Sheweth: 1. The above captioned two appeals are pending adjudication before this Hon’ble Court in which next date of hearing is fixed as 1/10/99 for notice to the Respondents. 2. That Muhammad Asad has received a Notice from this Hon’ble Court in a case titled “Muhammad Asad Vs Mehr Allah Bukhsh” in which date of hearing is fixed as 7/9/99. (Original Notice attached). 3. That no case as titled in the notice is pending before this Hon’ble Court. 4. That it is presumed that there might be a clerical mistake in the “title of the case” as mentioned in the notice. 5. That it is further presumed that it might be a miscellaneous application, having been moved by the opposite party in which date is fixed as 7/9/99. Had the copy of such matter been attached with the notice, I would have been able to

submit written reply of the same. 6. That I, Zafar Iqbal Khan Advocate, Council for the appellant, has recently undergone two surgical operations and still is hospitalized to reduce severe pain. Doctors put me under seductive injections keeping me all the time in drowsiness or in sleep. As such I am unable to travel to Lahore and to pursue the case. 7. That I am expected to be recovered from illness within a period of three weeks and I Shall definitely appear before this Hon’ble Court on 1/10/99, date already fixed for the above mentioned two appeals. 8. That apart from the appeals, if there is some other matter fixed for 7/9/99, the same may very graciously be adjourned and be fixed for 1/10/99 for submission of reply and arguments. I promise not to seek further adjournment in this case. Wherefore, it is respectfully prayed (i)

In the interest of justice, herein of the matter pertaining to the notice fixed for 7/9/99 (notice attached) may be adjourned and be fixed for 1/10/99, date already fixed for the two appeals.

(ii)

Applicant be directed to issue me a copy of the said matter to enable me to submit reply and arguments in the fixed date, just to avoid further delay. Yours obediently, Zafar Iqbal Khan Advocate High Court.

Street No. 8 Usmanabd Colony, Multan.

In the Court of Mr. Ijaz Ahmad Chaddhar, Additional District Judge, Lahore.

Muhammad Asad

Versus

Muhammad Asad

Versus

Humaira Naz & another. Family appeal (maintenance). Humaira Naz Family appeal (Dower).

Application for seeking adjustment of hearing. AFFIDAVIT of: Zafar Iqbal Advocate High Court, Multan.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto.

DEPONENT Verification: Verified on oath at Multan, this_____ day of September, 1999 that the contents of this affidavit are true to the best of my knowledge and belief. DEPONENT

IN THE LAHORE HIGH COURT, LAHORE.

W.P. No. _______________/2000 Muhammad Asad S/o Maher Allah Bakhsh, caste Siyal Bharwana, R/o Mauza Satiana, Tehsil & District Jhang. Petitioner Versus 1. Mst. Humera Naz daughter of Mian Khuda Bakhsh, caste Kanjoo. 2. Maste Usama (minor) S/o Muhammad Asad, caste Siyal Bharwana, through Mst. Humera Naz (his real mother). Both residents of 504, M Block, Model Town Extension Scheme, Lahore. 3. Mr. Ijaz Ahmad Chaddhar, Additional District Judge, Lahore. 4. Mr. Muhammad Shafiq, Civil Judge/Judge Family, Lahore. Respondents Writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973. Respectfully Sheweth: 1.

That the petitioner and respondent No. 1 married together at Chaniyot Tehsil & District Jhang on 21.10.94. Respondent No. 2, the only issue, was born on 26.9.95 out of the wedlock. Thereafter, the petitioner, through a written divorce deed dated 12.2.98, divorced irrevocably to respondent No. 1 by pronouncing “Talaq” thrice in one sitting. Photocopy of written divorce deed is attached as Annexure “A”.

2.

That the respondents No. 1 & 2, on 10.3.98 filed a suit against the petitioner for grant of maintenance allowance in the Court

of Family Judge, Lahore. Another suit for recovery of Dower amount was also filed by respondent No. 1 against the petitioner in the same Court. Copy of the plaint in maintenance suit is Annexure “B”. 3.

That the petitioner contested both the suits. The learned Judge, Family Court consolidated both the suits and framed following consolidated issues on 20.3.99: No. 1.

Whether the plaintiffs are entitled to a decree for

maintenance allowance; if so, at what rate and for which period. OPP. No. 2.

Whether the plaintiff is entitled to a decree for

recovery of dower amount of Rs. 105,000/- as prayed for. OPP. No. 3. 4.

Relief.

That after recording the evidence of parties and hearing arguments, the learned Judge, Family Court decreed both the suits in favour of the respondents vide single consolidated judgment dated 5.7.99 impugned. Respondent No. 1 was allowed past maintenance at the rate of Rs. 10,000/- per month w.e.f. September 1995 to 6.12.1998 plus the period of “Iddat” i.e. three months. The total amount of maintenance was worked out by the learned court as Rs. 420,000/Rs. 1500/- per month was fixed as past maintenance allowance for respondent No. 2 (minor) from September 1995 to July 1999 which was worked out by the learned Court as Rs. 63,000/-. Respondent No. 2 was also allowed future maintenance allowance at the rate of Rs. 3,000/- per month with 10% annual increase till arising of any legal disability. It was further ordered that Rs. 15,000/- which were admittedly paid by the petitioner to the respondents in lieu of maintenance shall be adjusted from the past maintenance allowance of respondent No. 1. Copy of judgment of the Trial Court is annexed as Annexure “C” & copy of decree as Annexure “C/1”. Copies of plaintiff’s oral & documentary evidence are Annexure “D” & “D/1” respectively. Copies of

defendant’s oral as well as documentary evidence are Annexure “E” & “E/1” respectively. 5.

That aggrieved of the judgment and decree, the petitioner/ defendant filed two separate appeals against the decrees of dower and maintenance in the Court of learned District Judge, Lahore. A third appeal was also filed on behalf of respondent No. 2 /minor/plaintiff seeking enhancement of quantum of maintenance. All the three appeals were heard and disposed off by respondent No. 3 vide one consolidated judgment dated 8.4.2000 whereby he dismissed the two appeals filed by the petitioner and accepted minor’s appeal by modifying the decree for maintenance allowance enhancing the quantum of maintenance from Rs. 3000/- to Rs. 5,000/- per month. Copy of memo of appeal is Annexure “F”. Copy of Memo of appeal of respondent No. 2 is Annexure “G”. Copy of consolidated Appellate Judgment and decree is Annexure “H & H/1”.

6.

That both the judgment and decrees passed by respondent No. 3 and respondent No. 4 are illegal and without lawful authority inter alia on the following GROUNDS i)

Under Article 2-A of the Constitution, matter of maintenance is to be decided according to Muslim Law. Under Muslim Law there is no scope for grant of past maintenance to wife and child. The learned Judge family Court as well as Appellate Court had no jurisdiction to grant past maintenance to respondents No. 1 & 2 for the period from September 1995 to 10.3.1998 when the suit was filed. The impugned judgment and decree of both the learned Courts below are against the injunctions of Islam, therefore, illegal.

ii)

That the petitioner pronounced “TALAQ” thrice in one sitting and sent the written divorce deed dated 12.2.98 to the respondent No. 1. This irrevocable divorce had

become effective immediately on its execution. Sec. 313 of Muhammadan Law reads: “Divorce in writing operates an irrevocable divorce and takes effect immediately on its execution.” Sec. 7 of the Muslim Family Law Ordinance 1961 providing for the effectiveness of Talaq on receipt of notice by the Chairman is against the injunctions of Quran and Sunnah. In 1992 SCMR 1273 it was held: “Muslim Family Laws Ordinance-sec. 7 read with Article 2(a) of the Constitution”---- A divorce becomes effective even in absence of notice to the Chairman u/s 7. Ineffectiveness of divorce, in the absence of a notice to the Chairman as envisaged by sec. 7 was against injunctions of Islam. 1990 CLC 1983 and PLD 1988 Kar. 169 at 173 it was held that sec. 7 of the Muslim Family Law ordinance relating to divorce are repugnant to injunctions of Islam. In a recent Judgment of the Federel Shariat Court PLD 2000 FSC 1 it is declared that sec. 7 (3) (5) of Muslim Family Law Ordinance 1961 are repugnant to injunctions of Islam. iii)

That in view of the above-mentioned law declared by the Superior Courts, divorce to respondent No. 1 was effective from the date 12.2.98 it was written and sent to her as such her suit for recovery of maintenance filed on 10.3.98 was not maintainable. Sec. 278 of Muhammadan Law reads: “If the husband neglects or refuses to maintain his wife without any lawful cause, the wife may sue him for maintenance, but she is not entitled to a decree for past maintenance, unless claim is based on a specific agreement.” In NLR 1991 SD 347 it was held: “Maintenance to wife under Islamic law. There is no scope for past maintenance to wife. In 1990 MLD 344 at 345 (e) “Suit for maintenance by a divorced wife is not maintainable”. Both the learned Courts below had failed to consider

this legal aspect of the matter and as such the judgment and decrees of both the Courts below are illegal. iv)

That suit for maintenance of the minor child was also not maintainable, as there was no refusal or neglect on the part of he father/petitioner to maintain his child. Respondent No. 1 had admitted before court that petitioner had paid her Rs. 15,000/- as maintenance allowance for the child after his birth. It was further admitted by respondent No. 1 that gold ornaments weighing 40 Tolas were also given to her by the petitioner at the time of marriage. This was explained by the petitioner that on the asking of her parents, these ornaments were given to her not as a gift, but just to enhance the prestige of her family in the “Bradri” of the respondent and these ornaments were returnable to the petitioner afterwards. But admittedly, these ornaments, the price of which is Rs. 250,000/- are with the respondent No. 1 which amount is more than sufficient for the maintenance of child even till he attains majority. The learned Court below had failed to take note of these material admissions of the respondent No. 1 and as such had failed to exercise jurisdiction vested in them.

v)

That the petitioner for the purpose of bringing his child up had made an application for the custody of the minor firstly to the learned Guardian Judge, Jhang, when respondent No. 1, in order to defeat the petitioner’s application, removed the minor from Jhang where she permanently resides, to Lahore. The petitioner, then made another application before the learned Guardian Judge, Lahore for the custody of his minor son which is still pending adjudication. Respondent No. 1, having removed the minor from the constructive custody of the petitioner, has lost right of “HAZANAT”. The petitioner as such is not under legal obligation to pay

the maintenance allowance through his divorced mother. Both the learned Courts below, while making the judgments and decrees have lost sight of this legal aspect of the matter rendering the judgments illegal. vi)

That both the impugned judgments suffer from nonreading of material evidence of record. The petitioner’s documentary evidence Ex D1 to Ex D7 and Mark D & E were material for ascertaining the financial position of the petitioner. Both the learned Courts below have failed to consider this material evidence and illegally and arbitrarily proceeded to decide the important question of quantum of maintenance without first ascertaining the financial position and annual income of the petitioner. This non-reading of material evidence has rendered the judgments illegal and without lawful authority. 1994 MLD 574 it was held: “Determination of rate of maintenance payable by father to his son without determining monthly income of father and without taking into consideration evidence on record is illegal and liable to be set aside”.

vii)

In

PLD

1958

West

Pakistan

Lah.

596

held:

“Muhammadan Law—past maintenance cannot be claimed from father unless previously fixed by the Court” In 1991 CLC 766 it was held: “Muslim family law ordinance sec. 9—Past maintenance cannot be granted to minor but application of father for custody of minor being

pending

before

Guardian

Judge,

future

maintenance till decision of application could be granted to minor.” viii) That Mr. Zafar Iqbal Khan advocate counsel for the petitioner/defendant in the maintenance suit and appeal had referred as many as 19 authorities and provisions of law and handed over to the learned judges Photostat

copies of these authorities and legal references with a typed index to facilitate their perusal. But the learned judges had failed to consider, refer or discuss these authorities in their judgments. Had the learned judges perused these authorities, the judgments would have been different. Copy of the typed index of authorities referred to is attached with this petition. Wherefore, it is respectfully prayed that the Hon’ble Court may be pleased to accept this writ petition and declare both the impugned judgments and decrees passed by the respondents No. 3 & 4 respectively as illegal and without lawful authority and to dismiss the plaintiff’s suit for maintenance with costs. Any other relief, which in the wisdom of this Hon’ble Court is adequate, may be awarded. Petitioner,

Through: Zafar Iqbal Khan, Advocate High Court, 124-District Courts, Multan. C.C. No. 2216.

IN THE LAHORE HIGH COURT, LAHORE.

W.P. No. _______________/2000 Muhammad Asad

Versus

Mst. Humera Naz etc.

Affidavit of: Muhammad Asad S/o Maher Allah Bakhsh, caste Siyal Bharwana, R/o Mauza Satiana, Tehsil & District Jhang.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above petition are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT Verification: Verified on oath at Multan, this _____ day of April 2000 that the contents of this affidavit are true to the best of my knowledge and belief. DEPONENT

IN THE LAHORE HIGH COURT, LAHORE.

W.P. No. _______________/2000 Muhammad Asad

Versus

Mst. Humera Naz etc.

APPLICATION FOR STAY.

Respectfully Sheweth: 1.

That the above captioned petition has been filed before this Hon’ble Court.

2.

That the contents of the writ petition may be read as part of this application.

3.

That the impugned judgment and decree is illegal and without lawful authority and the same are very likely to be declared as such.

4.

That under Muhammadan Law, there is no scope for past maintenance of wife and child and suit for maintenance of a divorced wife is not maintainable.

5.

That an application for father for the custody of minor respondent No. 2 is pending in the Court of learned Guardian Judge, Lahore for the last two years. The mother having removed the minor from constructive custody of the father, has lost right of HAZANAT and as such the petitioner/father is not bound to maintain his child through child’s divorced mother. However, the petitioner/father is prepared to pay future maintenance to his minor son, respondent No. 2 tentatively at the rate of Rs. 1,000/- per month till the decision

of the present writ petition and thereafter, he undertakes to comply with the orders regarding the quantum of maintenance fixed by this Hon’ble Court. 6.

That in view of the above submissions, the petitioner has a good prima facie case, balance of convenience also tilts in favour of the petitioner and in view of the illegality of the judgments and decrees impugned, the Petitioner shall suffer an irreparable loss in case these are acted upon.

7.

That the respondents No. 1 and 2 are bent upon to get the petitioner arrested forthwith through execution of decree. Therefore, it is respectfully prayed that judgment and decree passed by the respondents No. 3 & 4 impugned be suspended and petitioner be allowed to pay future maintenance to the minor child respondent No. 2 at the rate of Rs. 1,000/- per month tentatively till the decision of the writ petition and whereafter, the petitioner undertakes to comply with the orders passed by

this

Hon’ble

Court

regarding

quantum

of

maintenance of the minor child. Humble Applicant

Through: Zafar Iqbal Khan, Advocate High Court, 124-District Courts, Multan. C.C. No. 2216.

IN THE LAHORE HIGH COURT, LAHORE.

W.P. No. _______________/2000 Muhammad Asad

Versus

Mst. Humera Naz etc.

Stay Application Affidavit of: Muhammad Asad S/o Maher Allah Bakhsh, caste Siyal Bharwana, R/o Mauza Satiana, Tehsil & District Jhang.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT Verification: Verified on oath at Multan, this _____ day of April 2000 that the contents of this affidavit are true to the best of my knowledge and belief. DEPONENT

IN THE LAHORE HIGH COURT, LAHORE.

W.P. No. _______________/2000 Muhammad Asad S/o Maher Allah Bakhsh, caste Siyal Bharwana, R/o Mauza Satiana, Tehsil & District Jhang. Petitioner Versus 1. Mst. Humera Naz daughter of Mian Khuda Bakhsh, caste Kanjoo. 2. Mr. Ijaz Ahmad Chaddhar, Additional District Judge, Lahore. 3. Mr. Muhammad Shafiq, Civil Judge/Judge Family, Lahore. Respondents Writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973. Respectfully Sheweth: 1.

That the appellant and respondent No. 1 were married together on 21.10.94 at Chaniyot Tehsil & District Jhang. Appellant at the time of Nikah fixed Rs. 5,000/- as prompt dower only.

2.

That compelled by the unavoidable circumstances, the appellant divorced respondent No. 1 irrevocably vide written divorce deed 12.2.98. Photostat copy of divorce deed is Annexure “A”.

3.

That on 12.11.98, respondent No. 1 filed a suit for the recovery of her dower in the court of Family judge, Lahore claiming therein that her prompt dower was fixed as Rs. 5,000/- and a further dower of Rs. 100,000/- was also fixed as deferred dower and the whole dower amount was not paid to her. Copy of plaint is Annexure “B”.

4.

That appellant contested the suit claiming that only a sum of Rs. 5,000/- was fixed as prompt dower which was paid there and then and nothing remained unpaid and that the entry in Nikah Nama pertaining to deferred dower of Rs. 100,000/- is forged and might have been added sometimes afterwards without the knowledge and consent of the appellant. He further pleaded at the time of Nikah only one Part of Nikha Nama was filled in wherein the dower amount was entered as Rs. 5,000/- prompt only and whole dower was entered as paid. The remaining 3 Parts of Nikah Nama were kept blank and that second Part of Nikah Nama meant for bridegroom was not delivered to him. This fact was however, admitted by the plaintiff/respondent No. 1 while appearing as PW2 that both Parts of Nikah Nama meant for bridegroom and bride were in possession of her father and both were produced by them as P1 and also again P1. Copy of written statement is Annexure “C”.

5.

That the learned Judge, Family Court framed issues, recorded evidence of the parties and after hearing arguments, delivered the judgment and decree for recovery of Rs. 100,000/- as dower amount in favour of respondent No. 1, relevant issue is: “Whether the plaintiff is entitled to a decree for recovery of dower amount of Rs. 105,000/- as prayed for? OPP.” Copy of the impugned judgment and decree passed by the judge family court are Annexure “D” & “D/1”. Copy of plaintiff’s oral evidence PW1 to PW4 (Annexure “E”) and copy of the plaintiff’s documentary evidence relevant to the suit for maintenance ExP1 dated 10.4.99 WxP1 dated 2.11.98 is Annexure “E/1”. Copy of petitioner’s/defendant’s oral evidence is Annexure “F”.

6.

That aggrieved of judgment and decree the petitioner/ defendant filed appeal in the Court of learned District Judge, Lahore which was dismissed vide judgment and decree dated

8.4.2000 passed by respondent No. 2. Copy of memo of appeal is Annexure “G”. Copy of Appellate judgment and decree is Annexure “H”. 7.

That the judgment and decree of both the courts being the result of misreading of document ExP1 Nikah Nama, is illegal and without lawful authority.

8.

That from the language of Nikah Nama ExP1 which was exhibited on 2.11.98, it is clear from its Column No. 13 that Rs. 5,000/- was fixed as dower only and in Column No. 14 it reads that whole of the dower was paid. In this Column, an addition of Rs. 100,000/- deferred was clearly visible to be added afterwards, which is forgery. Both the learned Courts, respondents No. 2 & 3 have committed error of law by misreading the document and ignoring its operative part and confining itself to the force of writing clearly visible to be forged and added afterwards. Especially in the circumstances that both the copies of Nikah Nama meant for bride and bridegroom were retained by the father of the bride (respondent No. 1) admittedly. The inference is that bride’s father from the very beginning had the intention to forge the Nikah Nama especially when admittedly the Nikah Khawan had friendly relationships with the father of the bride for the last fifty years. Copy of Nikah Nama P1 exhibited on 2.11.98 is Annexure “G” and the third Part of Nikah Nama also produced by respondent No. 1 and exhibited on 10.4.99 is Annexure “I”. Wherefore, it is respectfully prayed that this Hon’ble Court may be pleased to accept the Writ Petition and to declare both the judgments and decrees passed by the respondents No. 2 & 3 as illegal and without lawful authority. Petitioner’s affidavit in support of the writ petition is attached herewith. Humble Petitioner Through: Zafar Iqbal Khan, Advocate High Court, 124-District Courts, Multan.

C.C. No. 2216. IN THE LAHORE HIGH COURT, LAHORE.

W.P. No. _______________/2000 Muhammad Asad

Versus

Mst. Humera Naz etc.

Affidavit of: Muhammad Asad S/o Maher Allah Bakhsh, caste Siyal Bharwana, R/o Mauza Satiana, Tehsil & District Jhang.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above petition are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT Verification: Verified on oath at Multan, this _____ day of April 2000 that the contents of this affidavit are true to the best of my knowledge and belief. DEPONENT

IN THE LAHORE HIGH COURT, LAHORE.

W.P. No. _______________/2000 Muhammad Asad

Versus

Mst. Humera Naz etc.

APPLICATION FOR STAY.

Respectfully Sheweth: 1.

That the above captioned petition has been filed before this Hon’ble Court.

2.

That the contents of the writ petition may be read as part of this application.

3.

That the judgment and decree passed by respondents No. 2 and 3 are the result of misreading of document ExP1. The petitioner has fixed dower amount as Rs. 5,000/- which was paid there and then admittedly and an addition of Rs. 100,000/- as deferred dower is forged and respondent No. 1 cannot be allowed to reap benefit of her own forgery.

4.

That in view of the above submissions, the petitioner has a good prima facie case, balance of convenience also tilts in favour of the petitioner and in view of the illegality of the judgments and decrees impugned, the Petitioner shall suffer an irreparable loss in case these are acted upon.

5.

That the respondent No. 1 is bent upon to get the petitioner arrested forthwith through execution of decree.

Wherefore, it is respectfully prayed that this Hon’ble Court may be pleased to suspend the impugned judgment and decree for the recovery of dower amount till the decision of this petition. An affidavit is attached herewith. Humble Applicant

Through: Zafar Iqbal Khan, Advocate High Court, 124-District Courts, Multan. C.C. No. 2216.

IN THE LAHORE HIGH COURT, LAHORE.

W.P. No. _______________/2000 Muhammad Asad

Versus

Mst. Humera Naz etc.

Stay Application Affidavit of: Muhammad Asad S/o Maher Allah Bakhsh, caste Siyal Bharwana, R/o Mauza Satiana, Tehsil & District Jhang.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT Verification: Verified on oath at Multan, this _____ day of April 2000 that the contents of this affidavit are true to the best of my knowledge and belief. DEPONENT

IN THE COURT OF CH. MUSHTAQ AHMAD ADDITIONAL DISTRICT JUDGE, MULTAN.

Mst. Khursheed Begum etc. Versus Malik Aashiq Muhammad etc. CIVIL APPEAL List of Books referred to on behalf of respondents. ISSUE NO. 4: VALUATION OF SUIT: S.No. 1 1980 CLC 1878 (C), 2 PLJ 1982 Lah 356 (ii) & 3 PLD 1991 AJK 66 Held: Declaratory Suit on the basis (B & C)

of inheritance with consequential relief of possession, held, matter governed by section 7 (iv) (c) of the Court Fee Act.

Issue No. 2 Whether defendants No. 2 to 4 are grand children of Jamal Din deceased: 4

Article 129 (g) Qanun-e-Shahadat

withholding of evidence--- effect ---defendants No. 2 to 4 had failed to appear as their own witnesses---evidence would adversely

so

withheld

effect on the

defence pleaded by defendants.

5

Issue No. V (a) Whether Suit is time-barred Article 142 Limitation Act: 12 years from date dispossession.

of

Note:

vide

ExP10

date

of

dispossession 4.4.1976. Suit filed on 8.3.1988 as such within 12 years. 6

1981 SCMR 765

Limitation---Plaintiff alleging to have been dispossessed within 12 years of filing of suit---Article 142 Limitation Act is applicable. Suit within time.

Issue No. V (b) Adverse possession. 7

1991 SCMR 2063

Provision of section 28 Limitation Act---declared as repugnant to injunctions of Islam.

Zaffar Iqbal Khan, Advocate (Counsel for the respondents)

IN THE COURT OF CH. MUHAMMAD MASOOD AKHTAR KHAN, JUDGE BANKING COURT NO. III, MULTAN.

National Bnak

Vs.

M/s Shah Jee Cloth house.

Suit for recovery of Rs. 3,67,532/Application for leave to defend the suit.

Respectfully Sheweth: 1.

That the above captioned suit is pending before this Hon’ble Court in which next date is fixed as 6.6.2000.

2.

That the defendant had no knowledge of the institution of this suit nor service of notice was effected on him. It is only a day before when he reached home from Karachi were he had been in connection with his business since about a month, when he came to know about the institution of the above suit. This application is being submitted without any loss of time, hence within time from the date of knowledge.

3.

That the applicant had paid the principle amount in installments within very short intervals and it seems that the plaintiff bank illegally adjusted it towards the interest/markup. The statements of accounts from Feb 1991uptil now are not correct and need to be proved and corrected.

4.

That it has been declared by the Federal Shariat Court, also by the Shariat Appellate Bench of the Hon’ble Supreme Court that mark-up is also a kind of ‘Riba’ which is “Haram” and as such directed the repeal of interest act and declared that the act shall cease to have effect from 31st March 2000.

In view of the above repeal, no court in Pakistan can decree any amount in the name of interest. 5.

That in case the interest is deleted, nothing would be left towards the Principal amount which is paid, rather it would be found that the payments made by the applicant would be over and above the Principal amount. PLD 1992 FSC I, PLD 2000 SC 225, PLD 1987 466, PLD 1989 K 304 are relied upon.

6.

That no presumption of truth is attached to the statement of account as held by a D.B. of the Lahore High Court in a case 2000 CLC 847. Wherefore, it is respectfully prayed that this application be allowed and applicant be permitted to defend the suit interalia on the above grounds. Affidavit is attached. Applicant/Defendant

(Muhammad Jameel Shah)

Through: Zafar Iqbal Khan, Advocate High Court, 124-District Courts, Multan. C.C. No. 2216.

IN THE COURT OF CH. MUHAMMAD MASOOD AKHTAR KHAN, JUDGE BANKING COURT NO. III, MULTAN.

National Bnak

Vs.

M/s Shah Jee Cloth house.

Application for leave to defend the suit.

Affidavit of: Muhammad Jameel Shah S/o Muhammad Yamin Shah, R/o Shop No. 94/RH Ward No. 5 Kalay Mandi Inside Bohar Gate, Multan.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT Verification: Verified on oath at Multan, this _____ day of June 2000 that the contents of this affidavit are true to the best of my knowledge and belief. DEPONENT

To, The District Manager/Manager Recovery, H.B.F.C., Multan.

Subject: -

RECOVERY NOTICE. L/a No. 0601513-1

Dear Sir, In reply to your Notice dated 8.8.2000 for recovery of Rs. 65,211/-, copy of which is attached, it is submitted that I have already paid whole amount of loan along-with simple interest as per decision of the court of learned Senior Civil Judge, Multan dated 31.7.95. After rendition of account, the learned court found that legal notice then issued to me by the H.B.F.C. was illegal and that in addition to the amount already paid a further sum of Rs. 29,178/only is due and directed me to pay the same before 30.9.95, which amount was deposited by me in the account of H.B.F.C. on 24.9.95 and as such the whole amount is paid and nothing is due. Copy of Judgment & Decree of the learned Senior Civil Judge and copy of receipt of Rs. 29,178/- is attached herewith. Against the judgment and decree, H.B.F.C. filed an appeal in the court of District Judge, Multan which appeal was dismissed on 7.12.97. No further action was taken by the H.B.F.C. and judgment and decree of the learned Senior Civil Judge has attained finality. In view of the above facts, your present notice is illegal and amounts to contempt of court. You are requested in your own interest to issue me clearance certificate and return my papers and depledge my property within a period of one month, failing which I shall be constrained against you to contempt proceedings. Sincerely yours, Dated: 4.9.2000 Zafar Iqbal Khan,

Advocate H.No. 888-43-K/4 Usmanabad, Multan. IN THE COURT OF MR. JAHANGIR ALI SHEIKH, PRESIDING OFFICER, PUNJAB LABOUR COURT NO. 9, MULTAN.

1.

Chief Engineer.

2.

The Superintending Engineer.

3.

The Executive Engineer. Applicants Versus

1. Hazoor Bakhsh S/o Ghulam Rasool. 2. Abdul Hafiz S/o Muhammad Sharif. 3. Abdul Sallam S/o Karim Bakhsh. 4. Muhammad Ramzan S/o Muhammad Bakhsh. 5. Muhammad Hussain S/o Faiz Bakhsh. 6. Ghulam Farid S/o Mehr Bakhsh. 7. Malik Sohanra S/o Ahmad Yar. 8. Noor Muhammad S/o Ghulam Hussain. 9. Allah Bakhsh S/o Hayat Khan. 10.Abdul Karim S/o Ameer Bakhsh. 11.Abdul Hakim S/o Mahmood Khan. 12.Muhammad Rafiq S/o Ghulam Farid. 13.Muhammad Rafiq S/o Koray Khan. 14.Riaz Ahmad S/o Faiz Muhammad. 15.Muhammad Imran S/o Liaqut Ali. 16.Ghulam Sarwar S/o Ahmad Bakhsh. 17.Ghulam Farid S/o Ahmad Bakhsh. 18.Khameesa Khan S/o Khuda Bakhsh. All posted under the Executive Engineer River Diversion Division, Baseera District Muzaffargarh.

Respondents

Application for setting aside Ex-parte judgment dated 31.7.2000. Respectfully Sheweth: 1.

That petition No. 115/99 U/s 25-A of the I.R.O., 1969 was pending before this Hon’ble Court in which date of hearing of stay application was fixed as 26.6.2000, but due to nonappearance of the respondents, they were proceeded against ex-parte and thereafter on 31.7.2000, ex-parte judgment was given whereby the petition U/s 25-A of the I.R.O. was allowed.

2.

That the applicants came to know of this ex-parte judgment only a day before when the decree holder produced the exparte judgment for implementation. Hence this application.

3.

That the applicants, being Govt. servants in the Irrigation Department, they were duty bound to remain on the site of the river flooded area to make arrangements to save the zone from flood destruction, during the flood season commencing from the months from 1st June to 15 October and as such nonappearance of the applicants during this period was not intentional but due to being over busy in the work of public importance.

4.

That keeping in view this difficulty, Government engaged Mr. Zafar Iqbal Khan advocate to pursue the case.

5.

That realising the above-mentioned difficulty of the applicants, Mr. Zafar Iqbal Khan advocate promised to inform the applicants as to wen their personal appearance before the court is necessary.

6.

That on 26.5.2000, applicants’ counsel was present in the Court when next date was fixed as 26.6.2000 for arguments on the stay application. The counsel entered this date on his envelope but unfortunately, his clerk inadvertently missed to enter the date in the diary of cases and as such the brief of the case could not be put up before him an evening before the

date and therefore, the counsel in the rush of work forgot the case. The non-appearance of the counsel in the court was not intentional but due to non-entry of the case in his diary of the cases. 7.

That the valuable right of the Govt. is injured by the ex-parte judgment and in case the ex-parte judgment is not set aside, the department shall have to face great difficulty as the finance department of Govt. of Punjab has not sanctioned any regular or temporary posts of Baildars/Chowkidar. The petitioners are being paid from maintenance and repair budget for flood embankment. They are being paid against the works of the division on work charge basis and after completion of the periodical flood time maintenance work, their services could become redundant. Mere fact that they have served for more than nine months could not make them a permanent work-man. In absence of any right guaranteed, their could be no grievance and as such the petition under section 25-A of the I.R.O. was not maintainable. Wherefore, it is respectfully prayed that in the interest of justice, the order dated 26.6.2000 of ex-parte proceedings against the applicants and the ex-parte judgment dated 31.7.2000 may kindly be set aside and after giving the applicants opportunity to contest, the case be decided on merits. Affidavits of one of the applicants and of Zafar Iqbal Khan advocate counsel for the applicants and Photostate copies of the envelope and counsel’s case diary are attached herewith. Applicants 1. ____________ Dated: 9.9.2000

2. ____________ 3. ____________

Through: Zafar Iqbal Khan, Advocate

H.No. 888-43-K/4 Usmanabad, Multan. IN THE COURT OF MR. JAHANGIR ALI SHEIKH, PRESIDING OFFICER, PUNJAB LABOUR COURT NO. 9, MULTAN.

Chief Engineer etc.

Vs.

Hazoor

Bakhsh

etc.

Application for setting aside Ex-parte judgment dated 31.7.2000. AFFIDAVIT of: Zafar Iqbal Advocate High Court, Multan, C.C. No. 2216.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto.

DEPONENT Verification: Verified on oath at Multan, this_____ day of September, 2000 that the contents of this affidavit are true to the best of my knowledge and belief.

DEPONENT

IN THE COURT OF MR. JAHANGIR ALI SHEIKH, PRESIDING OFFICER, PUNJAB LABOUR COURT NO. 9, MULTAN.

Chief Engineer etc.

Vs.

Hazoor

Bakhsh

etc.

Application for setting aside Ex-parte judgment dated 31.7.2000. AFFIDAVIT of: Muhammad Nasrullah Bhatti, the Executive Engineer, posted under the Executive Engineer River Diversion Division, Baseera District Muzaffargarh.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto.

DEPONENT Verification: Verified on oath at Multan, this_____ day of September, 2000 that the contents of this affidavit are true to the best of my knowledge and belief. DEPONENT

IN THE COURT OF JUDGE SPECIAL BANKING COURT, MULTAN.

Anees-ur-Rehman Khan S/o Abdul Ghani Khan, caste Bhutta, R/o Back side Riaz House, Alamdar Gillani Street, New Shalimar Colony, Bosan Road, Multan. ……PLAINTIFF VERSUS Small Business Finance Corporation through Manager/Recovery officer, L.M.Q. Road, Dera Adda near Telephone Echange, Mangol Hotel, Multan. …..DEFENDANT

Suit for Mandatory Injunction directing the defendant to act upon their own concessional scheme by allowing the plaintiff to render the account finally by making payment of 10% interest in addition to the additional loan amount or in the alternate suit for the rendition of account and for the permanent injunction restraining the defendant from adopting coercive measures for the recovery of any undue amount in addition to the abovementioned amount of concessional scheme.

Respectfully Sheweth: 1.

That the plaintiff obtained a loan of Rs. 250,000/- from the defendant in the year of 1994-95 on the Surety of Mr. Abdul Ghani Khan son of Sultan Khan. This loan was to be paid back by the year 2001 in installments.

2.

That the plaintiff started business of Electronics, but it failed due to non-availability of further funds, and plaintiff suffered a considerable loss and consequently business failed.

3.

That, however, the above mentioned loan was paid back to the defendant in the following installments: Receipt No.

Dated

Amount paid

(i)

37217

24.8.94

Rs. 15,343/-

(ii)

64903

10.6.96

Rs. 30,000/-

(iii)

00307

21.3.97

Rs. 15,000/-

(iv)

35859

25.6.98

Rs. 45,000/-

(v)

30516

14.4.99

Rs. 22,000/-

(vi)

21576

29.4.99

Rs. 30,000/-

(vii) 18496

22.5.99

Rs. 30,000/-

(viii) 36266

19.6.99

Rs. 40,000/-

(ix)

07165

6.4.2000

Rs. 25,000/-

(x)

Court deposit

18.10.2000

Rs. 15,000/-

Total amount paid: 4.

Rs. 267,343/-

That a heavy amount as compound interest is being demanded by the defendant from the plaintiff, which is against the injunctions of Islam. Due to total failure in the said business plaintiff has become bankrupt & cannot pay any more money in the name of interest.

5.

That in view of the above payments, the plaintiff has already paid the Principal amount of Rs. 250,000/- and Rs. 17,343/towards interest.

6.

That as per concessional scheme introduced by defendant, the total amount along-with interest makes out Rs. 275,000/- out of which the plaintiff had already paid a sum of Rs. 267,343/and as such the remaining unpaid amount is Rs. 7,657/- which the plaintiff is ready to pay.

7.

That the plaintiff previously filed a suit for permanent injunction and for rendition of accounts against the defendant. During the pendency of suit, the defendant himself introduced the above-mentioned concessional scheme. In that scheme, it was a condition precedent that in order to avail benefit of the said concessional scheme, no suit should be pending in the court.

8.

That keeping in view this condition, the Hon’ble Court of Ch. Muhammad Masood Akhtar Khan, Judge Banking Court III Multan, vide order dated 30.10.2000 dismissed the suit in order to enable the plaintiff to qualify for the scheme and to avail benefit of the said concessional scheme.

9.

That the next day, plaintiff approached the defendant through Rao Atiq-ur-Rehman, officer incharge of the loan section, and requested him to issue Challan Receipt for payment of the remaining amount of Rs. 7,657/- but he flatly refused to act upon the defendant’s own offer of concessional scheme and instead issued a Challan receipt of Rs. 22,555/- as 1st installment and further made three installments of Rs. 30,075/- each to be paid with interval of one month each.

10.

That such demand of the defendant is illegal and against the spirit of concessional scheme offered by him.

11.

That the defendant is bound to abide by the offer of the concessional scheme offered by himself and the plaintiff has accepted the offer and shown his willingness to pay the remaining amount of Rs. 7,657/- within the date fixed for the same and as such, it is now unfair & illegal for the defendant to avoid his own offer.

12.

That cause of action firstly arose a week before when the plaintiff wanted to make payment of the remaining above said amount and defendant refused to abide by his own offer of concessional scheme.

13.

That loan facility was availed in Multan, its repayment was to be made in Multan, and defendant’s office is situated in Multan, hence, this Hon’ble Court has jurisdiction to entertain the present suit.

14.

That value of suit for Permanent mandatory injunction is fixed at Rs. 200/- and a court fee of Rs. 10/- is fixed for the alternative relief of rendition of accounts. Wherefore, it is respectfully prayed that a decree for Permanent Mandatory Injunction directing the defendant to abide by his own offer of concessional scheme and allow the plaintiff to deposit the remaining sum of Rs. 7,657/- as per concessional scheme. In the alternate, decree for rendition of accounts be passed in favour of plaintiff and against the defendant. Costs of the suit may also be awarded. Any other relief, which the Hon’ble Court deems fit, in the circumstances of the case, may also be awarded. Plaintiff

Dated: ____________

(Anees-ur-Rehman Khan) Through: Zafar Iqbal Khan, Advocate H.No. 888-43-K/4 Usmanabad, Multan.

Verification: Verified on oath at Multan this ____ day of November 2000 that all the contents of the above plaint are true and correct to the best of my knowledge and belief. Plaintiff

IN THE COURT OF JUDGE SPECIAL BANKING COURT, MULTAN.

Anees-ur-Rehman Khan

Vs.

S.B.F.C.

SUIT FOR MANDATORY INJUNCTION STAY APPLICATION

Respectfully Sheweth: 1.

That the above captioned suit has been filed before this Hon’ble court.

2.

That the averments made in the suit may be read as part of this application.

3.

That the defendant himself introduced a concessional scheme and offered that the loanees should pay 10% interest in addition to the original loan amount.

4.

That the plaintiff accepted their offer and showed his willingness to pay the balance amount of Rs. 7,657/- so as to clear the whole loan amount along-with interest as he had already deposited a sum of Rs. 267,343/-.

5.

That the defendant is legally bound to abide by his own offer of concessional scheme and after its acceptance by the plaintiff, the defendant cannot legally back out his own offer.

6.

That defendant instead of issuing a Challan receipt for the remaining amount of Rs. 7,657/-, unduly and illegally issued a Challan receipt of Rs. 22,555/- to be paid by 10.11.2000 and

further directed the plaintiff to deposit 3 installments of Rs. 30,075/- each within interval of one month. 7.

That such demand of defendant is illegal and undue.

8.

That the defendant is bent upon to recover the above mentioned undue amount by adopting coercive measures.

9.

That in view of the grounds mentioned in the suit, there are bright chances of success of plaintiff’s suit. In case the plaintiff adopts the coercive measures like arrest, the plaintiff shall suffer irreparable loss in addition to loss of repute and liberty.

10.

That balance of convenience also tilts in favour of the plaintiff/petitioner. Wherefore,

it

is

respectfully

prayed

that

defendant be restrained from adopting any coercive measures for the recovery of any amount more than the amount of Rs. 7,657/- only due. Affidavit is attached herewith. Applicant Dated: ____________

(Anees-ur-Rehman Khan) Through: Zafar Iqbal Khan, Advocate H.No. 888-43-K/4 Usmanabad, Multan.

IN THE COURT OF JUDGE SPECIAL BANKING COURT, MULTAN.

Anees-ur-Rehman Khan

Vs.

S.B.F.C.

STAY APPLICATION

AFFIDAVIT of: Anees-ur-Rehman Khan S/o Abdul Ghani Khan, caste Bhutta, R/o Back side Riaz House, Alamdar Gillani Street, New Shalimar Colony, Bosan Road, Multan.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto.

DEPONENT Verification: Verified on oath at Multan, this_____ day of November, 2000 that the contents of this affidavit are true & correct to the best of my knowledge and belief.

DEPONENT

IN THE COURT OF MR. MEHMOOD HAROON ESQUIRE CIVIL JUDGE, IST CLASS, MULTAN.

Malik Javed Mukhtiar

Vs

Malik Javed Iqbal

Suit for declaration & for Permanent Injunction AUTHORITIES REFERRED TO BY THE PLAINTIFF’S COUNSEL Issue No. 7: Whether Sale Deed was executed by Malik Allah Yar in favour of the defendant lawfully & with consideration. OPD. 1.

Article 79 Qanoon

If a document is required by

Shahadat, 1984.

law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose

of

proving

its

execution.

2.

NLR 1984 SCJ 32

S-74

(2)---Evidence Act—

Document does not become a public

document

merely

because it is registered--registered document in order to be a public document has to be one execution of which is not disputed---refusal to grant permission to produce certified copies of documents

whose execution is denied--unexceptionable.

3.

1986 CLC 2836

Evidence

Act,

S.13--

Documents---evidenctry value of a document is altogether different

from

its

admissibility and it is always for court to determine as to what weight is to be attached to

a

particular

document

brought on record. 4. PLD 1973 SC 160

Evidence Act, SS 47, 67 & 145, C.P.C. XIII Rule 4--documents which are not copies

of

judicial

record,

should not be received in evidence without proof of signatures and hand writing of persons

alleged

to

have

signed or written them, even if such documents are brought on

record

and

exhibited

without objection. 5.

PLD 1977 K 688

Registration Act, S.60 read with Evidence Act, SS 67 & 79---Execution of deeds to be proved

under

section

67

Evidence Act by showing that thumb signatures

impression affixed

and thereto

were those of executants--endorsement by Registrar in

certificate

raises

only

presumption

against

executant. 6.

NLR 1986 Civil 146 c at 147

Evidence Act, S.68—personal relying on a document is bound

to

prove

its

execution---fact

that

document is registered would make no difference. 7.

2000 CLC 419

T.P.

Act,

S.54---Sale

of

g at 420

immovable

property---mere

registration

of Sale Deed

would not operate to pass titled to the vendee---where there

was

neither

the

possession of the property alleged to have been sold nor any proof of payment of consideration

money

was

available, mere registration of sale deed would not operate to pass title to the vendee.

8.

PLD 1984 SC (AJK) 138 e at 139

Registration

Act,

S.74---

Registration of documents by Registrar---natuere

of

proceedings---Registrar when registering a document under section 74 held neither a court nor

performing

functions---findings

judicial of

registrar about executions in

such proceedings, held, not judicial finding. 9.

NLR 1983 UC 528

Evidence

Act,

S.65---

Secondary

evidence---order

for production of secondary evidence

passed

determining

without

existence

of

original documents---illegal. 10.

PLD 1981 Kar 588

Evidence

Act,

Secondary

S.65---

Evidence---when

original destroyed or lost or for any other reason not arising out of default or neglect---attributed default or neglect proved---held, in the circumstances, photo-state of document---inadmissible. 11.

1989 CLC 1883

Evidence Act, S.67---Copies

j at page 1885

of

documents

judicial

other

record

cannot

than be

received in evidence without proof of signature and hand writing---in

absence

of

original document, its copy was not admissible. 12.

2000 MLD 1653 d at 1655

Qanoon Shahadat—Article 74 &

87---Certified

copy

of

pubic document though was admissible per se and could be received in evidence, but where certified copy of a private

document

forming

part of public record was deemed to be produced in evidence and the execution as well

as

existence

of

documents was denied, then secondary evidence by way of certified copy could not be received unless existence of original and its loss and destruction was proved. 13.

PLD 1979 BJ 31e

Execution of a registered document denied---production per se of a certified copy of such document, held, no proof of document having been executed whom

by

it

person

purports

form to

executed---Evidence

be Act,

S.68. 14.

2000 MLD 201 c at page 902

Article 73 & 74 Qanoon Shahadat---primary and best evidence

should

be

produced---

production

of

photo-state

copy

had

no

evidentiary value at all and would deserve to be kept out of consideration. 15.

NLR 1994 SD 631

Evidence

Act,

S.90---

production of copy of deed does not raise presumption of due execution of original.

16.

PLD 1991 Lhr 400 DB

Production

of

copies

of

documents was violative of the provisions of article 75 Qanoon Shahadat whereby documents must be proved by primary evidence except in cases therein mentioned.

17.

1992 CLC 1304 e at page 1305

Qanoon

Shahadat

72---Court

cannot

Article act

on

copies of documents where original

had

not

been

produced without any reason. Issue No. 7-A: Whether the disputed document is based on Fraud and misrepresentation. 18.

1995 CLC 1906 at 1907

Contract Act, S.19---Qanoon Shahadat Art. 118---Plea of fraud and misrepresentation--onus to prove---where plea of fraud and misrepresentation in execution of document had been pleaded by plaintiff, the moment

he

had

made

statement on oath, onus would shift to defendant to prove that document in question was executed voluntary and of free will. Issue No. 2: Whether the suit is time barred. OPD 19.

2000 CLC 150 b

Specific Relief Act, S.42--Suit

for

declaration---

Limitation---Any body whose ownership

or

possessory

rights were interefered or threatened, might come to the civil court at any time when the same stood threatened--no

question

of

limitation

arose in such cases.

20.

PLD 1993 Quetta 37 c

Specific Relief Act, S.42--Limitation Act, Art. 120--Suit

for

declaration

and

permanent injunction---period available to plaintiff was six years from cause of action. 21.

NLR 1993 Rev. 143 b

Limitation Act, Art. 120---Six years limitation time for filing declaratoy

suit

challenge

to

involving entry

in

Jamabandi starts from date of knowledge

of

entry

in

Jamabandi. Issue No. 4: Whether value of suit not properly fixed. OPD 22.

1980 CLC 1878 c

Court Fees Act, S.7 (iv) (c)--Suit for declaratory decree and

consequential

relief---

main relief being that of declaration base on ownership on basis of inheritance---relief for possession sought only consequentially---matter,

held, governed by section 7(iv) c---value already put by plaintiff, held further, would remain value for purpose court fee in appeal as well--Specific Relief Act, S.42 23.

PLD 1991 AJK 66

Court Fee Act , S.7 (iv) (c)--Specific Relief Act, S.42--Court fee payable on suit for declaration and consequential relief of possession---where plaintiff could not ask for main

relief of possession

without

asking

for

a

declaration, such suit would be one for declaration with consequential

relief

for

possession---suit in such a case would be covered by provision of 7 (iv) (c) Court Fee Act---where from the nature

of

the

suit,

consequential relief could be allowed only when plaintiff through

declaration

competent

court

from had

succeeded in removing by other obstacle then in such like cases declaration would be the real necessity for obtaining the real relief from the court. Referred to by: Zaffar Iqbal Khan,

Advocate, Counsel for the plaintiff. Dated: 29.9.2000 IN THE COURT OF DEPUTY LAND COMMISSIONER, MULTAN.

1. Habib Khan 2. Allah Wasaya

Ss/o Muhammad Ramzan

3. Muhammad Nawaz 4. Haq Nawaz 5. Barkhurdar

Ss/o Muhammad Bukhsh

6. Fazil 7. Imam Bukhsh 8. Sardar Muhammad

Ss/o Khan Muhammad

9. Ameer Bukhsh 10.Ahmad Bukhsh 11.Ramzan

Ss/o Lal Khan

12.Allah Yar

Ss/o Muhammad Bukhsh

13.Barkhurdar

Both deceased represented by their legal heirs.

12-A. Ramzan 12-B. Ahmad Bukhsh

Ss/o Lal Khan.

14.Muhammad Hussain 15.Muhammad Sadiq

Ss/o Karim Bukhsh

16.Muhammad Nawaz 17.Rahim Bukhsh deceased S/o Barkhurdar, represented by his legal heirs. 17.A. Muhammad Fazil 17.B. Muhammad Babar

Sons

17.C. Ghulam Fatima 17.D. Nusrat Parween 17.E. Bharanwan Mai

Daughters ------

Widow

Caste Jat Sial, R/o Mouza Lutfabad, Tehsil and District Multan. …………..Plaintiffs VERSUS Haji Muhammad Hayat Khan S/o Ahmad Khan, caste Jat, Bosan, R/o Mouza Bosan Tehsil Multan. …………Respondent

Respectfully Sheweth: 1. That Mst. Sahib Khatoon, the predecessor-in-interest of the respondent, was a declarant under the Land Reforms Act, 1977. 2.

That in the first instance her holding was determined by the Deputy Land Commissioner, Multan, vide his order dated 28.6.1977, to the extent of 8973 p.i.u.s and the excess land equivalent to 973 p.i.us. was resumed in favour of Land Commission vide Mutation No. 503 dated 24.3.79. (Copy Annex “A”).

3.

That case of Ms.t Sahib Khatoon was reopened under the instructions of Punjab Land Commission dated 20.2.1980 because the Tube-well irrigated soil had not been evaluated according to rules. Consequently, her holding was re-assessed to be equivalent to 9336 p.i.us. by the Additional Deputy Commissioner

(General)/Deputy

Land

Commissioner,

Multan, vide his order dated 13.5.87 and in this way excess land equivalent to 1336 p.i.us. was found to be resumable from her. 4.

That an area equal to 973 p.i.us. had already been resumed and therefore, an additional area equal to 363 p.i.us. was resumable which was accordingly resumed out of Khasra No. 5/24, 25, 8/4, 7, 14, 16, 17, 21/4, 24 measuring 72 kanals 10 marlas situated in village Lutfabad, Tehsil & District Multan according to the choice filed by the said declarant.

5.

That the land so resumed had already been alienated by way of sale by Mst. Sahib Khatoon, the declarant, in favour of

Habib Khan and others, the petitioners vide Sale Mutation No. 626 dated 21.11.80 (Copy at Annex “B”). 6.

That during the process of compliance of orders of Deputy Land Commissioner, Multan dated 13.5.87 the Revenue Field Staff reported the District Collector, Multan that Mutation No. 626 dated 21.11.80 had already been given effect to in the Register Haqdaran Zamin for the year 1980-81. The learned District Collector, Multan vide his order dated 30.5.1991, accorded permission to review the said Mutaion NO. 626 dated 21.11.80, so that the orders of the Deputy Land Commissioner, Multan dated 13.5.87 be complied with and consequently the sale Mutation No. 626 dated 21.11.80 recording sale of Land in favour of the petitioner was reviewed and the land belonging to them was resumed in favour of Punjab Land Commission. Copy of Review Mutation No. 1804 dated 31.8.94 and copy of Mutation No. 1805 dated 31.8.94 and copy of Mutation No. 503 dated 24.3.79 are Annexes “C, D & E”.

7.

That during the review proceedings before the learned District Collector Multan, Mst. Sahib Khatoon, the original declarant, died issueless and her only heir Malik Muhammad Hayat Khan Bosan, her real brother, the respondent herein, was impleaded to represent her.

8.

That the impugned order dated 30.5.91 for review of Sale Mutation No. 626 dated 21.11.80 in favour of petitioners, is against all cannons of justice and illegal which has resulted in depriving the petitioners of the property. The learned District Collector Multan, while making the order had failed to consider that the land in Mutation No. 626 was owned and possessed by the petitioners and Mst. Sahib Khatoon, the declarant, having already sold the land to the petitioners, she was no more owner of this land and as such she, while exercising her choice could not possibly surrender the land which was neither owned by her nor was in her possession,

nor the Deputy Land Commissioner could legally entertain her such choice of surrender. The order so passed is illegal and without lawful authority which has resulted in grave miscarriage of justice. 9.

That the petitioners are illiterate simpleton villagers who never understood the proceedings of Revision of Mutation No. 626. They were given understanding that their rights of ownership and possession of the land in question shall not be disturbed. Petitioners are still in possession of the land and they were informed that their such land had been alienated in favour of Punjab Land Commission through review mutation. Only a few days before they came to know of this review order through Patwari Halqa, hence this petition. Wherefore,

it

is

respectfully

prayed

that

respondent be called upon/directed to surrender the land belonging to him and Sale Mutation No. 626 dated 21.11.80 Mouza Lutfabad be restored in favour of the petitioners. Affidavit is attached herewith. Petitioners, Dated: __________ Through: Zafar Iqbal Khan, Advocate 124-District Courts, Multan.

IN THE COURT OF DEPUTY LAND COMMISSIONER, MULTAN.

Habib Khan etc.

Vs.

Haji Muhammad Hayat Khan Bosan

STAY APPLICATION. Respectfully Sheweth: 1. That the above captioned petition has been filed before this Hon’ble Court. 2.

That the land surrounded by Mst. Sahib Khatoon, predecessor in interest of the respondent, was neither owned nor possessed by her. The said land had already been sold by her in favour of the petitioners vide Mutation No. 626 dated 21.11.80 and they are in possession of the said land as owner since then.

3.

That the petitioners are now being threatened by the Revenue Field Staff for surrendering possession of the Land Commission. In case they are deprived of their possession of land, they shall suffer irreparable loss as loss of possession has already been considered by the higher courts as irreparable loss.

4.

That petitioners being owner in possession of the land well before the re-opening of the case, as such their present petition is very likely to be accepted. Balance of convenience also tilts in favour of the petitioners. Wherefore, it is respectfully prayed that order be passed not to interfere in ownership and possessory rights of the petitioners till disposal of this petition. Affidavit attached. Petitioners/Applicants Dated: __________ Through: Zafar Iqbal Khan,

Advocate 124-District Courts, Multan. IN THE COURT OF DEPUTY LAND COMMISSIONER, MULTAN.

Habib Khan etc.

Vs.

Haji Muhammad Hayat Khan Bosan

STAY APPLICATION.

Affidavit of: Habib Khan S/o Muhammad Ramzan, caste Jat Sial, R/o Mouza Lutfabad, Tehsil & District Multan.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT

Verification: Verified on oath at Multan, this _____ day of October 2000 that the contents of this affidavit are true to the best of my knowledge and belief.

DEPONENT