INDEX & MATERIAL LAW SITE

Suit for Declaration of Inheritance

Entitlement:

Al-Quran, Surah Al-Nisha 4:7          “Men shall have a share in what parents and kinsfolk leave behind, and women shall have a share in what parents and kinsfolk leave behind.” (Quran, Surah Al-Nisha 4:7)

Although, the Shariah laws clearly entitle women for their right / share in all immovable and movable properties being a part of inheritance, yet in practices, this right/share has been denied as an inheritance right.

Inheritance Law In Pakistan:

The Constitution of Pakistan 1973 also protects property rights of the person which provision (Article 24) clearly states that “No person shall be deprived of his property save in accordance with law” The Constitution of Pakistan, therefore, protects the rights of every citizen who is entitled for such rights.

The Constitution itself placed an embargo on any anti-Islamic legislation / law to be part of the application in Pakistan. The Islamic state, itself follow the shariah laws particularly in matters of inheritance, so no person who is entitled to inherit can be deprive of any right acquired or to be acquired by him/her. Moreover, the settled laws in Pakistan is that the moments, the deceased passed away, the legal heirs jumps into the shoes of the deceased by becoming owners of the properties left by him/her in accordance with the shariah rights prescribed under the law including the women.

The Punjab Enforcement of Women’s Property Rights Act 2021 was passed by the Punjab Assembly on 04 May 2021 which was assented to by the Governor of the Punjab on 11 May 2021 and was published on dated 17 May 2021. The purpose of the aforesaid Act is to protect and secure the rights of ownership and possession of the women in the property by ensuring that such rights are not violated by means of harassment, coercion, force or fraud. The trend to deprive women from their right is not hidden anywhere. The women are usually deprived on the pretext by the other legal heirs that they have spent money on their marriage and they don’t need it or this was their share in shape of their marriage. All these trends are against the injunction of Islam and shariah which are not only condemnable but actionable too.

Property Distribution Laws in Pakistan:

The following are the statutes which entitled women to secure their right of inheritance from the properties left by the deceased.

• Muslim family law ordinance. 1961
• The West Pakistan Muslim Personal Law, 1962
• The Punjab Enforcement of Women’s Property Rights Act 2021
• The Punjab Partition of Immovable Properties Act 2012

Types of Properties inherited by the survivor/legal heirs :

There are two types of properties which are subject to distribution:

• Movable Properties:

The property that includes cash, gold, vehicles, and stock etc. are the type of moveable properties.

• Immovable Assets

Immovable properties includes, real estate, land, buildings, or types of properties that are not privy to transfer

Procedural for suit of Inheritance:

The law requires certain formalities to be done before to get declared the owner of the inherited properties and in this regard suit for Declaration is to be filed by the legal heirs of the deceased to claim their shares in the properties and this declaration is issued by the local court of competent jurisdiction.

The Documents required are as follows:

In a suit filed for declaration the necessary documents which are part of procedure included the Death certificate issued by the municipality/NADRA regarding the date of death, Computerized National identity card of the deceased, Computerized National identity cards of the legal heirs, Receipt issued by the local graveyard, if available, Properties / titled documents in name of the deceased, the process of filing required intimation to public through Public advertisement.

Limitation to file Suit for Declaration of Inheritance;

To file suit for declaration, to claim shares in the properties of the deceased, no specific period is defined for filing such suit as the right of inheritance is a fundamental right and is inalienable. Few case laws relating to the limitation are provided hereunder:

• Limitation: Right of inheritance is a continuing right, no limitation could be used to deprive visible right of inheritance. [ PLD 1990 SC 1, 2002 YLR 242, 2013 YLR 2395 ]
• Controversy relating to Inheritance, Question of Limitation does not arise [PLJ 1999 Lah 279]
• No bar of limitation for purposes of enforcement of right of inheritance [ 2007 YLR 2297, 2007 MLD 686 ]

Court Fee:

• On suit for inheritance Clause (iv)(c) of Section.7 of the court fee Act shall be applicable only. [1980 CLC 1878 ]

Procedure for Transfer of Inheritance Property in Pakistan:

• In order to have share in the deceased properties, legal heirs have to move the local court of competent Jurisdiction, so as to file a suit for declaration of the Inheritance by pleading rest of the legal heirs in the array of either the Plaintiffs or the defendants.

• The legal heirs are required to provide all those documents which show the right of the legal heir as well as any proof of title documents which entitled him/her in the filed suit.

• The entitlement required convincing evidence to be produced by the claimant in support of his/her stance. The court then required in the matter the proper intimation to public at large, for any claim and in this regard the Publication in the newspaper is essential to avoid risk of misleading / misstatement by the legal heirs and if anyone is left for the claim, he/she should be provided an opportunity for appearance before the court to state his/her stance to claim any entitlement in the pending suit or lis.

• After adopting the legal procedure to satisfy the process of entitlement, the court of the local jurisdiction then, after recording evidence decree the suit entitles the legal heirs for their respective shares.

• The attested copies of the decrees are then provided to the local authorities / concerned department to incorporate the names of the legal heirs as owners for their respective shares in the properties left by the deceased.

• The local department /authority, under which the properties lie, do verify the decree and then incorporate their names as owners of the properties in the record.

• The legal heirs / claimants can, then, secure proof of their entitlement as an owner of the properties from the respective department / authority and can retain it as a record.

SUIT FOR CANCELLATION OF INSTRUMENT

What is suit for Cancellation?

Suit for cancellation of documents is a remedy provided in Specific Relief Act, 1877. This civil remedy is invoked when the aggrieved party apprehends that his property is transferred without following due course of law. The Specific Relief Act, 1877 also states when and to what extent a document can be canceled.

Relevant Law:

Section 39 of the Specific Relief Act, 1877

Definition of Instrument:

According to Black’s Law Dictionary, the word ‘Instrument’ would mean ‘a formal or legal document in writing such as a contract deed, will, bond, or lease.

What is cancellation of Instrument?

Cancellation of instruments means the nullification of a written document which is proof of a transaction between the parties that are part of the transaction.

When Cancellation may be Ordered?

Any person against whom a written instrument is void or voidable , who has reasonable apprehension that such instrument if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court  may, in its discretion, so adjudge it and order bit to be delivered up and cancelled.

If the instrument has been registered under the Registration Act, the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of instrument contained in his books the fact of its cancellation.

What instrument may be partially Cancelled?

Relevant Provision: Section 40 of the Specific Relief Act, 1877

Where an instrument is evidence of different rights or different obligations, the court may, in a proper case, cancel it in part and allow it to stand for the residue.

Void and Voidable Documents:

Voidable documents needs cancellation, but void documents needs no cancellation [PLD 1969 DACCA 357, 2005 YLR 2645]

Essentials of suit for Cancellation:

• Written instrument
• Instrument is void or voidable as against the plaintiff
• Reasonable Apprehension of injury from the instrument it is left outstanding
• That the threatened injury is serious
• That the court ought under circumstances of the case in the exercise of its discretion to adjudge the instrument void or voidable and order it to be delivered up and cancelled.

Court Fee:

• Ad valorem court fee is payable on value of subject matter. Sections (7)(iv)(C) of Court Fee Act, 1877 applies under certain conditions. [2002 CLC 1549]
• A suit for cancelation of Document to which the plaintiff is a party on the ground of fraud, coercion, undue influence falls under Section 7 of the Court Fee Act and the court fee must be paid ad valorem on the valuation put by the plaintiff. [PLD 1969 Dacca 357]
• In a suit for cancellation of gift deed, relief of possession is also added no court-fee on later relief is requires as that is ancillary to the main relief.
• Court fee to be paid according to value mentioned in the deed required to be cancelled and not the market value. The value of the property is different from market value. [2000 MLD 1611]

Limitation:

• Suit for cancellation are governed by Articles 91 & 92 of the Limitation Act,1908. [2009 CLC 324]
• Suit for cancellation of instrument is governed by Art.92 which provides period of three years from the date of registration becomes knowledge to plaintiff. [PLD 2008 Kar.540]
• Addition of prayer in suit for possession for cancellation of gift deed being void, not time barred. [2003 CLC 485, PLD 1981 SC 165]
• Limitation for cancellation of void document is three years from the date of knowledge. [2010 SCMR 1042]
• Suit not brought within three years of knowledge of sale deed will be barred by time. [1986 CLC 2126, PLD 1975 SC 624]
• Plaintiff’s suit for having been filed long after expiry of three years of statutory period was time barred and thus, not maintainable on that score.[PLD 1995 Lah 321, 1986 CLC 126, PLJ 2003 SC 852]
• Limitation Run when the Fraud is Known.[ 2015 YLR 694]

Right to Sue for the Cancellation of Document:

Suit for cancellation of deed may survive after the death of the plaintiff or donor. [PLD 1966 Pesh.121]

The Successor in interest can set aside the document.[PLD 1975 SC 624]

Circumstances when Court Orders Cancellation of Document Or rejects.

• Non-Disclosure of Particulars of Fraud.

Suit for cancellation of registered sale deed on ground of fraud filed after five years. Particulars of fraud as required by Order VI, rule.4 of CPC 1908 not given in the plaint by the plaintiff, plea based on fraud not really entertainable in this suit. Suit also barred by time under Article 91 of Limitation Act.[ 2012 MLD 802, 2013 YLR 1756]

• Non-Payment of Consideration:

Part consideration of sale not paid, instrument is not void for non-payment of consideration and cannot be challenged as a void document. The remedy against the non-payment of consideration is to either seek specific performance of the agreement or contract or to seek cancellation of document on breach of conditions of the contract and not on account of void document.

• Suo- MotuCancellation:

Civil Court on his own motion/choice cannot cancel any document. Court has no jurisdiction for cancellation of document Suo-Motu.[2017 MLD 1067]

• Void ab-initio Document, Cancellation off:

The deed or the document void ab-initio need not to be set aside or cancelled, but the document voidable at the option of person against whom voidable requires the setting aside or cancellation. [2009 YLR 2903, 2015 YLD 1141, 2014 PSC 1219]

• Cancellation of Sale deed by revenue Authority:

Revenue has no jurisdiction to cancel the registered sale deed. The revenue authority only have the authority to correct the entries in the revenue record.[PLJ 2015 Kar.216]

Nature of Relief:

Relief of cancellation of instrument is discretionary one, the court can decline or refuse to cancel void document where both parties are guilty of fraud.

Court can order to delivered up and cancel the document.[1988 MLD 1651]

CONCLUSION:

Suit for cancellation of documents is a remedy provided in Specific Relief Act 1877. This civil remedy is invoked when the aggrieved party apprehends that his property is transferred without following due course of law. Any person against whom a written instrument is void or voidable , who has reasonable apprehension that such instrument if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court  may, in its discretion, so adjudge it and order bit to be delivered up and cancelled.

Section 12(2) of CPC, 1908

(TO CHALLENGE THE VALIDITY OF THE JUDGMENT,   DECREE OR ORDER OBTAINED ON THE BASIS OF FRAUD)

RELEVANT LAW:

Section 12(2) of Code of Civil Procedure, 1908

SECTION.12(2):

“Where a person challenges the validity of a judgment and decree or order on plea of Fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application the court which passed the final judgment, decree or order and not by a separate suit.”

TERM PERSON:

The term “ Person is not to be narrowly interpreted so as to restrict it to refer to only a judgment debtor or his successor, but it should be read to include any person adversely affected even though not a party to the decree . Even a transfer pendent lite can invoke jurisdiction under Section 12(2). It can be filed even against the person who was not a decree holder or a party to the suit.

BAR AGAINST FURTHER SUIT:

The legislature in order to provide ore efficacious and speedy remedy enacted Section 12(2) of CPC which provides for application for setting aside decree before the same court instead of filing of separate suit. The main object of the above section is to avoid the multiplicity of the suits. The separate suit for the purposes enumerated in the above referred section is not maintainable. Separate suit is barred by law. [PLD 2015 924, 1993 SCMR 622, 2011 SCMR 191]

ESSENTIALS OF APPLICATION U/Sec 12(2):

• To Challenge the Validity of Judgment, Decree or Order.
• On plea of Fraud, Misrepresentation, or want of jurisdiction
• Written Application by the aggrieved / affected person
• Before the Court who has passed the Judgment, Decree or order
• Separate suit not maintainable.

NATURE OF PROCEEDINGS:

Proceedings under section 12(2) are declaratory in nature. [2004 CLC 466]

LIMITATION FOR FILLING OF APPLICATION U/SEC 12(2):

The time for filing application starts when the right to apply accrues. Article 181 of the Limitation Act, 1908 would apply. The limitation for filling application is three years from the date of knowledge. [2002 SCMR 1554, PLJ 2015 SC (Ajk) 40, 1990 SCMR 1377, 2013 YLR 933, 2016 YLR 452]

Application for Setting aside decree after five years without explanation of inordinate delay was Dismissed.[2011 SCMR 551, 2014 CLC 1384, 2015 YLR 276]

No bar of limitation could be pleaded for setting aside the action on the basis of void agreement including the judgment and decree passed being nullity before the law.[ 1994 SCMR 782, 2013 YLR 933, 1986 SCMR 1496]

Order obtained by fraud, Question of limitation does not arise, Leave to appeal granted.[2013 CLC 640, 1994 SCMR 782, 2005 SCMR 1505]

Limitation to file application to set aside the decree runs from the date of knowledge of fraud but not from the date of commission of fraud. [2013 CLC 786, KLR 2008 CC 2008 248, 2005 SCMR 1885]

COURT FEE:

Article 1(b) of the second schedule of Court Fee Act, 1877 applies to the application U/Sec 12(2). When presented to the civil court, court fee of Rs.2 but when it is presented to the High Court, court fee of Rs.5 is to be fixed.

APPLICABILITY OF SECTION 12(2):

Provisions of Civil Procedure code being applicable constitutional petitions in High Court provisions of 12(2) of CPC would be applicable to such proceedings.[2013 CLC 1561, 1993 SCMR 1171]

• Applicability in Writ:

Provisions of Section 12(2) of CPC will be applicable in the constitutional proceeding. The constitutional proceedings can also be challenged under this provision. [2015 MLD 1220]

• Applicability before Family Court:

Section 12(2) is also applicable to the proceedings under the Family Court Act and Muslim Family Laws Ordinance. The proceeding conducted before the family court can be challenged/ set asided under the above section on the grounds enumerated under the referred section. [PLJ 1996 KKAR. 186, 2005 YLR 2420]

• Rent Controller/ Proceedings:

Section 12(2) is also applicable in the proceedings of rent controller. Proceedings conducted before the rent controller and the judgment, decree or order passed by the rent controller may be challenged or set asided under this section. [1989 SCMR 237, 1995 CLC 130]

• Revenue Courts:

The Proceedings before the Collector acting as a civil court for hearing of pre-emption suit can be challenged under Section 12(2) of CPC. [2001 SCMR 1761]

Leave to appeal granted to consider whether pre-emption decree can be set aside by collector under section 12(2) CPC. [19889 SCMR 92]

Application under this section does not lie before the Member Board of Revenue. [PLJ 2013 Lah.138]

• Arbitration Matters:

The provisions of section 12(2) CPC shall also apply to proceedings under the arbitration Act. The arbitration award can be challenged through application under section 12(2) by stranger to award.[1991 CLC 2074]

• Banking Courts/ Proceedings:

Section 12(2) is also applicable to the Banking Courts. Banking court was competent to adjudicate the application under section 12(2) of CPC for setting aside of the Judgment, Decree or Order passed by the Banking Court. [2013 SCMR 1399, PLJ 2000 Lah.1386, 2013 CLC 1349]

APPLICATION BY STRANGER:

Stranger to the proceeding under which the judgment and decree or order passed can file objection petition if he was aggrieved by the order of the court or he can file application under section 12(2) of CPC to recall or review order allegedly obtained by fraud.[ 1994 CLC 1044, 1988 CLC 2393, 1992 CLC 980]

Stranger can avail remedy under section 12(2) when it is not implemented in the suit. [2015 CLJ 271]

SUO-MOTU SET ASIDING OF DECREE OBTAINED BY FRAUD:

Fraud vitiates even the most solemn proceedings and courts of original jurisdiction are competent to suo-motu recall decrees obtained from them by fraud. [1994 SCMR 782]

Court, Tribunal or Authority has inherent jurisdiction to recall order obtained by fraud. [PLD 1999 Lah. 462]

Every authority has the power to recall the order on fraud. [PLJ 2014 Lah 804, 2015 MLD 715]

DISCRETION OF COURT:

It is discretion for the court to proceed with the application under section 12(2) as may be deemed fit and proper. Application refused when comes with unclean hands. [2009 SCMR 1446].

The application under section 12(2) of CPC filed by the applicant with the motive to deprive the respondent from the benefit of the order obtained by him on merits, was dismissed with costs. [1989 CLC 937, 2008 SCCMR 226]

FRAUD & MISREPRESENTATION:

Any person who has obtained the decree or order by concealment of material facts, by not impleading necessary parties, by concealment of factual & ground realities, by misinterpretation or misrepresentation, by vague statements as well as by production of forged and fabricated documents and materials. That decree or order obtained on these basis is open to challenge/ set aside under this section.[2003 SCMR 1050, 2015 CLJ 326]

The application u/sec 12(2) can be filed by any person aggrieved of the decree or order, have to established and prove the element of fraud & misrepresentation. Details and particulars of fraud to be established and failure to prove fraud and misrepresentation decree was not set aside. [2002 CLC 166, PLD 2003 SC 237, 2016 YLR 248, 2015 YLR 1051]

WANT OF JURISDICTION:

Erroneous and not want of jurisdiction is a ground U/Sec 12(2) of CPC 1908. Want of jurisdiction may have reference to, subject matter, territorial, pecuniary value of claim, nature of dispute, and amenability of parties to process court. Jurisdictional defect having nexus with any of above mentioned matters constitute want and lack of jurisdiction. Order passed beyond pecuniary jurisdiction was not sustainable and the same was set asided by want of jurisdiction.[1999 YLR 2214, 2011 CLC 702]

Civil Court not vested with the powers to question legality of the orders passed by settlement authorities was challenged under section 12(2) of CPC and the order was set aside. [1992 ALD 468, NLR 1995 Civil 508]

FINALITY OF DECISION:

Application filed to challenge the validity of decree or order was dismissed and was not challenged by way of appeal, revision had attained finality would be deemed to have attained finality. Fresh suit on the same grounds would thus be barred. [PLD 1994 Kar.242, 1987 CLC 1893, NLR 2003 Civil 82]

Decree holds field unless set aside and judgment and decree would merge into appellate court or revisional court which will attain the status of final judgment and decree. [2008 CLC 200, 2015 YLR 2638]

CONCLUSION:

Where a person challenges the validity of a judgment and decree or order on plea of Fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application under section 12(2) of CPC 1908, before the court which passed the final judgment, decree or order and not by a separate suit.” The legislature in order to provide an efficacious and speedy remedy enacted Section 12(2) of CPC which provides for application for setting aside decree before the same court instead of filing of separate suit. The main object of the above section is to avoid the multiplicity of the suits. The separate suit for the purposes enumerated in the above referred section is not maintainable. Separate suit is barred by law.

DECLARATION TO CHALLENGE THE ORDER OF CANAL AUTHORITY

Relevant Provision:

• Section 20 and 68 of The Canal and Drainage Act, 1873 as amended in 1975
• The Canal and Drainage Ordinance, 2002

The suit can be filed to challenge the order of the D.C.O. The aggrieved person can challenge the said order in the Manner prescribed by the law under section 68 of the Canal and Drainage Act, 1875.

Court fee on the suit:

The court fee is to be fixed according to the provisions of section 7(iv) (c) of the Court Fee Act, 1877 which is according to the amount at which the plaintiff values the relief sought.

 Limitation:

To challenge the order of DCO, Suit must be filed within a one year under Article 14 of the Limitation Act. The time runs from the date of order and not from the final order in the appeal confirming the original order. [PLD 1978 Lah. 498, 1992 MLD 1166, 1982 SCMR 78]

The order which is nullity and without jurisdiction then Article 120 of the Limitation Act, applies which provides a period of 6 years. [PLD 1990 Lah. 153, PLD 1964 SC 52]

Appeal:

The right of appeal being a very valuable right conferred by statute on a person aggrieved against original order, appellate authority was required to apply its own findings. The appellate authority squarely and patently acted upon wrong assumptions of law, its considerations were irrelevant and inference drawn by it, were irrelevant and unreasonable, set aside. [1991 CLC Note 248]

Appellate court’s proceedings were to be regulated as nearly as possible by Civil Code Procedure, 1908. In absence of any specific provision contained in any other relevant law, the appellate court has the jurisdiction to impose cost for restoration of appeal which had been dismissed for on-prosecution. Costs imposed on petitioner being very heavy and amounting to undue or unreasonable penalty were reduced and case was remanded to appellate court for disposal in accordance with law. [1992 MLD 1982]

Application for Supply of Water:

Application to Divisional Canal Officer or supply of canal water through an existing watercourse or for change of water course of supply. Procedure, [PLD 1992 Lah. 370, 2004 YLR 2574]

Cancellation of Water Supply:

Before the cancellation of water supply there has to be an inspection report duly certified by the Zilladar and Deputy Collector was to check and consolidate his report before submission to Executive Engineer. Absence of said certificate and its subsequent check and consolidation by the Deputy Director would render the action taken for cancellation of water only in violation of Rule 17 of the Canal and Drainage Rules, 1957. Provisions of Rule 17 having not been applied before taking action, order of the cancellation of water supply would not be justified. [PLD 1990 Lah. 58]

Change of Moga:

Change of moga from one out let to another, shifting of moga not justified not beneficial, set aside. [2007 YLR 1485, 2010 CLC 60]

Civil Suit for Change in Wara Bandi:

Normally a wara bandi arrangement, ordered by Canal Authorities, has to remain in force, unless it was set aside by civil court. [1993 MLD 716, 1996 CLC 1747]

Jurisdiction of Civil Court:

The civil court to set aside the order of the Divisional District Officer if same was not in accordance with law, order passed under Section 4(2), Canal and Drainage Act shall thereafter, remain in force until it is set aside by decree of the civil court. [1985 CLC 116, 1992 SCMR 613, 1980 CLC 234]

No Court can pre-empt Jurisdiction. [2003 CLC 1453, 2007 YLR 1388]

Civil court can direct petitioner to move U/section 68/A. [2013 YLR 1296]

Natural Justice:

Order for change of watercourse without notice to shareholders of moga, violation of natural justice. [2010 CLC 68, 2010 MLD 1035, 2008 PLD 106]

Order for restoration of demolished Water Course:

The trial court has the power to order accused to restore the water course demolished or damage by him or damage by him. [1998 SCRM 39, 2005 YLR 1021]

Notice to Co-Sharer:

Sanction of extra water from out of reserve of 5% provided for every outlet, notice to co-sharer, not necessary.

Restoration of khal without notice set aside.[2007 YLR 2179, 2006 MLD 1347]

Penalty / Tawan:

Order imposing penalty for alleged violation of laws was passed by authority against the land-owner without affording him reasonable opportunity of hearing, such order was against the principle of natural justice, set aside [ 1991 CLC Note 265]

Imposition of tawan for unauthorized extra discharge of water without affording opportunity of hearing, set aside. [1988 CLC 1870]

SUIT FOR COMPENSATION FOR
INFRINGEMENT OF COPY RIGHT

Relevant Law:

Copy Rights Ordinance, 1962

Copy Rights Amendment Ordinance, 2000

West Pakistan Publication of Books Regulation and Control Act, 1969

Jurisdiction of Court:

Section 69 of the Copy Rights Ordinance 1962 provided the jurisdiction of the court. Every suit regarding infringement of the copy rights shall be instituted in the court of District Judge. [PLD 2000 Lah.186]

District judge can assign the matter/ case to the Additional District Judge.[ PLD 2000 Lah. 109, PLD 2000 Lah.186]

Limitation Period:

Section 65 as amended by LIII of Ordinance 2000 and Article 40 and 120 of the Limitation Act, 1908 deals with the period of limitation in copy rights cases. Every suit or other legal proceedings shall be instituted within a period of 12 months Article 120 of the limitation Act shall be applicable to the suit for compensation for copy rights.

Court Fee:

Suit for compensation for infringement of copy rights is governed by the Section 7 (i) of the Court Fee Act, 1877, which is ad-valorem, according to the amount claimed as damages.

Infringement of Copy Right:

No willful or mala fide invasion of copy right. Decree of specified amount was set aside and injunction and rendition of accounts maintained. [2010 CLD 450, PLJ 2003 Lah. 1028, 1987 SCMR 1090]

Infringement of copy right and Trade mark has distinction: [PLJ 2015 Lah. 1245]

Acquiescence:

Publication of book was in the knowledge rather be acquiesced in that infringement book of respondent published earlier, no stay.[PLJ 2001 Lah. 124, PLJ 2000 Lah. 109]. No acquiescence with ignorance. [1993 PSC 1307, 1397]

Acquittal:

Books published did not show that they were published at the instance of accused, trial continued for 5 years, Acquitted [2022 YLR 2012]

Order of acquittal without material evidence, Set aside.[2000 P Cr. LJ 518]

Importation And Exportation of Infringing Copies :

The registrar on application of owner of copyright may, if deem fit, order that no infringement copy work shall be imported or exported out of Pakistan.

Penalty for unauthorized rental of cinematographic and Computer programs:

Any person without authorization of copyright owner or his licensee rent out the original or copies of the cinematographic works or computer programs shall be punishable with imprisonment which may extend to 3 years or with fine which may extend to one hundred thousand rupees or with both.

Rights after Expiry of Copyright:

The copyright expired, publishers continuing publication, if can sue for infringement of copyrights. [PLD 1952 Lah. 364]

Special Remedies for Infringement of Copyrights:

Section 60 of the Ordinance LIII of 2000.

When copyright is infringed the owner is unable to institute regular proceedings for sufficient cause may apply to the court for immediate provisional order to prevent infringement of copyright notwithstanding any suit or civil proceedings have not been instituted. The court may pass interim order. Where the interim order has revoked or cease to have effect due to any act or omission of the applicant, the court may award appropriate costs to the defendant for any injury caused.

SUIT FOR DAMAGES FOR MALICIOUS PROSECUTION:

Relevant Law:

The Defamation Ordinance, 2002

Essentials for Malicious prosecution:

 Following are the essentials of malicious prosecution;

• That the defendant initiated proceedings against the plaintiff.
• That the proceedings terminated in plaintiff’s favor and the way in which they were terminated.
• That the prosecution was malicious.
• Without any reasonable or liable cause.
• General damages claimed and particulars of any special damages claimed and the finding of criminal court whose judgment can be used for proving it.

Limitation Period:

In suit for damages for malicious prosecution, Article 120 of the limitation Act, 1908 would applicable under which the period of six years from the date of accrual of cause of action. Suit having been filed within six years thus, within time.[1996 CLC 206]

Suit for compensation for malicious prosecution is governed by Art.23 of The Limitation Act which provides a period of one year when the plaintiff is acquitted or prosecution is otherwise terminated. [2010 CLD 1541]

Court Fee:

Suit for damages for malicious prosecution is governed by Section 7 (i) of the Court Fee Act, Which is according to the amount claimed by the plaintiff in the plaint. The value of the suit for purposes of jurisdiction shall be same as court fee under Section 8 of the Suits Valuation Act. [PLJ 1992 FSC 1]

Abuse of Legal Process/ Authority:

To put into force the process of law maliciously and without any reasonable or probable cause is wrongful, and if thereby another is prejudiced in property or person, there is that conjunction of inquiry and loss for which an action will lie.[ AIR 1944 ALL. 581]

Cause of Action:

Cause of action arises on the acquittal of Plaintiff, cause of action for illegal detention held does not arise before acquittal or discharge. [PLD 1999 Kar. 214, 1984 CLC 325]

Burden of Proof:

Onus is the plaintiff to prove damages. He has also to prove claim under different headings as harm to body, to mind or reputation etc. [2006 YLR 1431, 2013 CLD 585, PLD 2015 Sindh 83]

Initial onus is on the plaintiff to show that prosecution was without reasonable and probable cause. [1984 CLC 325, PLD 1970 KAR. 757]

Damage for Civil Wrong:

Where damage done to a party did not arise out of contract, but arose out of civil wrong, remedy for such wrong was an action for damages and not by way of an action for breach of contract.[1992 CLC 904, 2008 MLD 2012]

False Imprisonment:

Once false imprisonment was proved, exemplary and not nominal damages should be awarded in respect of tortuous act of government and its officers. [2002 MLD 956, 2017 MLD 120]

Motive:

Absence of motive with the defendant to prosecute plaintiff would show prosecution was not with malicious intention but intention was to carry law in force/ effect. [1993 CLC 1743]

Malicious Civil Prosecution:

Suit for payment of damages arising out of filing of a civil suit. Plaintiff had to allege false and malicious prosecution of the suit as also sufferance of special damages, as a result thereof. [2012 CLD 758,   2016 SCMR 1841]

SUIT FOR POSSESSION OF IMMOVABLE PROPERTY

Relevant Law:

Section 9 of the Specific Relief Act, 1877

Section.9 of Specific Relief Act:

Suit by person disposed of immovable property:

If any person dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

Court Fee:

The suits under Section 9 of the Specific Relief Act are governed by schedule 1 of the Article 2 of the Court Fee Act, as amended by the Finance Act, 1973, according to which it is ½ of the total amount of value of the subject matter.

Limitation:

Suits u/Sec 9 of the Specific Relief Act, 1877 governed by article 3 of the Limitation Act, 1908 which provided a period of six months from the date of dispossession. The appellant as good Co-Sharer as the respondent, disposed illegally, proper remedy for restoration of possession under Section 9, limitation is 6 months. [2015 CLC 689, 2015 CLC 1074]

Applicability of law and Scope:

Law respects possession even if there is no title to support it. It will not permit any person to take law in his own hands and dispossess a person in actual possession without having recourse to court. No person is allowed to become judge of his own cause. [2015 CLC 689]

Dispossession of Co-Sharer:

Summary remedy for possession is available to a co-sharer who being in possession of property was disposed through trespassers.  [1988 CLC 1104, 2007 MLD 316, 2009 SCMR 688]

Construction of Plaint U/Section 9:

Suit for declaration, permanent injunction, recover of possession filed. Provision of Section 9 not quoted in the plaint. Court could not treat the suit under Section 9 on assumption that it had been filed under Section 9 would not by itself make the suit to be such but invocation of that provision had to be either expressly made by the plaintiff never made averment that suit was filed u/section 9. [1994 MLD 527]

Demolition of Building:

Landlord in collusion with Municipality forcibly ejected the plaintiff by police after getting it declared as dangerous by Municipal Corporation, Conduct of municipality mala fide. Aggrieved person can seek remedy under section 9 of the Specific Relief Act. [PLD 1973 Note 20]

Dispossession During Pendency of Suit:

Plaintiff disposed during pendency of suit, amendment allowed to seek relief of possession, controversy of Section 9 was merely of academic nature. Plaintiff granted decree of possession. [PLD 1995 Lah. 617]

Dispossession of Tenant/ Sub Tenant:

Sub-tenant dispossessed in execution of writ of ejectment issued by rent controller direct tenant to deliver possession, Sub-tenant could not be said to have been dispossessed otherwise than in due course of law.  [1985 CLC 261]

Dispossession of tenant without consent, possession was restored. [2005 YLR 53, 2008 YLR 227, PLD 2000 Lah. 101 ]

Dispossession Without Partition:

Co-sharer disposed by another co-sharer cannot be dispossessed except by partition, Section 9 of the Specific Relief Act applies. [2004 YLR 322, 2006 YLR 1071,

Essential Ingredients of Suit for Possession U/sec 9:

1. Person must have been dispossessed
2. Must be from immovable property

• Without consent

1. Otherwise than in due course of law

[2015 CLD 1257, 2015 CLC 1074, PLD 2015 Pesh.94]

Object of Section 9:

The object of section 9 is to provide a speedy remedy and to discourage citizens from taking law into their own hands however good title may be. [PLD 2004 SC 20, 2012 SCMR 1108, 2015 CLC 1074]

Suit by Landlord:

Tenant joining land as co-plaintiff in suit for restoration of possession, however, tenant has no intention to get the possession, landlord can get actual possession from the trespasser. [PLD 1973 Lah. 653]

Review:

No review lies against order passed under section 9. [1995 CLC 1600, 2005 YLR 2395, PLD 1964 Pesh.157]

Revision:

The order under section is revisable. [2001 SCMR 345, 2015 CLC 978, 2006 CLC 210]

Appeal:

Order passed under section 9 of the specific Relief Act is not appealable, such order passed by Appellate Court would be void Ab-initio.[PLJ 2003 Lah.1023, 1995 CLC 1600]

SUIT FOR REDEMPTION OF MORTGAGES

Relevant Law:

• The Transfer of Property Act, 1882
• Punjab Redemption and Restitution of mortgaged Lands Act, 1964 as amended by Ordinance XLIII OF 2001.

Time Limitation:

Limitation in suit for redemption of mortgage is governed by Article 148 of the Limitation Act which provides a period of sixty years to redeem or recover the possession of the property mortgaged, when the right to redeem or recover accrues.

The redemption of mortgage, remedy is 60 years. [PLD 2014 Lah. 26, 2014 CLC 1252, 2001 MLD 954]

Court Fee:

The suit for redemption of mortgage is governed by Section 7(ix) of the Court Fee Act, 1870, which is according to the principal money secured by the instrument of mortgage. The same value will be fixed for the jurisdiction. However, Court Fee payable is ad- valorem on principle money secured but valuation for the purposes of jurisdiction in case when mortgagee in possession and the plaintiff sues for the possession it should be the value of land. [1990 CLC 1891, 1988 MLD 2616, PLJ 1992 FSC 1]

Mortgage of Immovable Property:

Mortgage of immovable property for purposes of securing loan, an existing or future debt or performance of act which give rise to pecuniary liability. If these ingredients are missing no mortgage is created.[ 2001 YLR 2634]

Acknowledgement:

Simple possession of mortgage and the receipt to rent produced by him are sufficient ingredients to constitute the acknowledgement. [1999 SCMR 2531]

Burden of Proof:

Usufructuary mortgage, redemption, burden of proof lies on plaintiff mortgagor to show subsistence or mortgage on date of institution of suit for redemption. [1979 SCMR 484, PLD SC (AJ&K) 74]

When Right to Redeem Accrues:

Right to redeem is right to require mortgagee on payment of mortgage money to do various things mentioned in section 10, such right accrues when mortgage money becomes due. The mortgage deed if provide a period for payment of mortgage money, mortgager’s right to redeem would arise only after the expiry of that period and not before. No specific date was mentioned, time would run from the date of mortgage. Limitation will reckon only from the expiry of period so fixed. [1984 CLC 309]

Declaration without Cancellation:

It was necessary for the plaintiff/ respondent to seek cancellation of registered sale deed under Section 31 and a mere declaration would not suffice, contended further that a mere declaration in terms granted by lower court could not be granted, Supreme Court granting to consider the point. [NLR 1981 SCJ 387]

Dispossession without Redemption:

Mortgagee in possession of land at the time of commencement of mortgage or even earlier is not liable to be dispossessed without redemption or restitution of mortgage, such person after extinguishment of mortgage, tenant held prior to mortgage. [PLD 1982 Rev. 38]

Liabilities of Mortgagee:

If the mortgage debt is fully paid off out of usufruct and the mortgagee thereafter, continues in possession, the mortgagor is entitled to interest on surplus money from the date of suit.

Mortgage by Deposit of Title Deed:

Mortgage by deposit of title deed would not require registration. No Compulsory registration. [1993 MLD 1050, 2002 CLD 606]

Part performance of Redemption—Simple Mortgage:

Subsequent agreement providing delivery of possession of mortgage land to mortgagee to clear mortgage debt, period of possession calculated by subsequent agreement extension, constitute part performance of redemption of existing mortgage.

Power to Sell without Intervention of Court:

The mortgagee has no right to sell extinguished in manner provided by Section 60. The right of mortgagee to sell mortgage property in equitable mortgage, mortgagee could not sell mortgaged property without intervention of the Court and to press into service. [1981 CLC 1179, PLD 1982 Kar.216]

Preliminary Decree:

The redemption of mortgage, preliminary decree passed and confirmed in High Court, leave granted. [1989 SCMR 107]

The requirement of mandatory provisions of Order 34 rule 7, CPC is first to pass preliminary decree, Court committed illegality in passing final decree directly. [ 1989 MLD 3129]

Preliminary and Final Decree:

After passing preliminary decree suit stands finally disposed off. [PLD 2001 SC 489]

Period of limitation of passing final decree is 3 years.  [1991 MLD 1091]

Registration of Mortgage Deed:

Registration of mortgage deed despite of instructions of registrar not to register it would be invalid and ineffective. Registered mortgage deed is notice to public. [NLR 1992 AC 349, 2009 SCMR 64]

SUIT FOR RENDITION OF ACCOUNTS:

Relevant Law:

The Contract Act, 1872

The Partnership Act, 1932

Applicability of Law:

A suit for rendition of accounts would be maintainable if there is debit and credit on both sides. It would not be maintainable when plaintiffs had been making payment of amount and could very well note or ascertain total amounts paid by them for which they are seeking recovery. In such case, only cause of action which could have accrued to plaintiffs would be suit for recovery of certain ascertained sum and not for accounts.

Limitation Period:

Time limitation for filling the suit for rendition of accounts as against co-owner is governed by Article 120 of the Limitation Act, 1908 which provides a period of 3 years. A suit against trustee is also governed by Art. 120 but the limitation is 6 years. A suit against guardian is also governed by this article. [AIR 1925 Mad. 1260, AIR 1933 MAD. 200]

Court Fee:

Section 7(iv) of the Court Fee Act 1870 applies to the suits for rendition of accounts.

 In a suit for rendition of accounts the plaintiff must state the amount at which he values the relief sought. In such a suit crucial value is the value of relief and the plaintiff need not to state any value for the purposes of jurisdiction because it will be same will be laid down in section 8 of the Suits valuation Act. [1988 MLD 2610, PLJ 1992 FSC 1, PLD 1961 AJ&K 48]

Against Principal:

Rendition of Accounts, principal as accounting party. Under special circumstances or under trade usage or a definite conduct, principal can become accounting party. [PLD 1983 Kar.253]

Arbitration Clause:

Suit for rendition of accounts and dissolution of partnership, Arbitration clause providing for reference in case of “Business Dispute” matters covered by arbitration clause and, therefore application under Section 34 of the Arbitration Act, 1940 maintainable.[PLD 1972 Lah. 766]

Mesne Profit:

The plaintiff may claim in a suit past mesne profit from the date of institution up to the delivery of possession.[AIR 1937 Mad. 46]

A decree for mesne profit can be passed in excess of pecuniary jurisdiction. [PLD 1962 Dacca 214.

Burden of proof:

Bank account in the name of two persons after one of them, his heirs claiming the whole amount as exclusive property of the deceased while the other depositor claiming the whole amount as belonging to her alone, issue framed, burden of proof. [PLD 1955 Lah. 1]

Contractor and Employer:

Relationship between the appellants and respondents are that of employer and contractor governed by agreement between them for carrying out construction work, relationship of principle and agent not created, relief of rendition of accounts could not be claimed by appellant.

Preliminary Decree:

Question of possession of account book to be settled by the court, commissioner for inspection and taking accounts, scope of authority limited. [PLD 1954 Bal. 43]

Rendition and Production of Accounts:

Rendition of accounts is not the same thing as producing accounts in meeting of partners. [PLD 1961 Lah. 468]

Suit by Legal Representative:

Suit for accounts, whether survivors may bring against executor of other person. Extent of liability of his legal representative.

Suit for Rendition of Accounts against Trustee:

The plaintiff alleged that the defendant being guilty of mismanagement and also indulge in misappropriation of various account, exact amount not known, plaintiff may fix tentative value. [1993 MLD 1244]

Unchallenged Accounts:

Accounts filed by defendant, plaintiff neither challenged accounts nor filling his own accounts, defendant’s accepted as correct. [PLD 1964 SC 598]

SUMMARY SUITS ON NEGOTIABLE INSTRUMENTS

                                                 (Under Order 37 CPC, 1908)

Relevant Law:

Order 37 of CPC, 1908

Negotiable Instrument Act, 1881

Negotiable instrument:

Document containing unconditional undertaking to pay certain sum by a fixed date, document, held, negotiable instrument.[1982 CLC 2114, 2014 MLD 113]

Jurisdiction:

The jurisdiction to entertain suits under this order lies to the District Judge or any other civil court specially notified in this behalf by the High Court.

Institution of Suits:

All the suits on bills, exchange of hundies, promisory notes may be instituted on form prescribed for drafting plaints, but summons shall be in form IV of appendix B of CPC.

Court Fee:

Court fee is governed by the section 7(i) of the Court Fee Act, 1870 which is ad- valorem according to the amount claimed. Up to Rs.25000 court fee is exempted. The maximum court fee to be filed in the suit for recovery of money of any value is Rs.15000 [PLJ 1992 FSC 1]

Limitation Period

The period of limitation is three years under article 64-A, when the debt becomes payable. [2002 CLC 899, 2015 MLD 343, 1980 CLC 1279]

Acknowledgment in writing, period of 3 years starts from the date of last acknowledgment.[1976 SCMR 67]

Limitation for suit on Promissory Note:

Limitation under Article 73 is three years from the date of promissory note. [2000 MLD 1093]

Limitation for Leave to Appear and Defend:

Limitation for filling application for leave to appear and defend suit is 10 days from the service of summons.

Limitation for leave to defend shall be computed from the date of first publication of summons in the newspaper. [PLJ 2016 Lah 960]

Acceptance of Bill of Exchange:

Acceptance of bill; of exchange must be on bill and not on separate document. [1968 SCMR 804]

Acknowledgement:

Where once the law revives to pay time-barred loan, creditor would be entitled to file suit.[1988 MLD 868]

Attestation by Notary Public:

Attestation of pronote, attestation by notary public not required seal of Pakistan Council.[PLJ 2016 Lah.26]

Attestation of Pronote:

Pronote is not required to be attested by any witness but receipt attached herewith to be effective must be attested by two witnesses and these witnesses to be produced to prove the same.[PLJ 2006 Lah. 464]

Blank Promissory Note:

Receipt of blank promissory note has a presumption in his favor that it was filled within a reasonable time and strictly in accordance with authority given to them.[NLR 1996 CLJ 26]

Civil suit on Negotiable Instruments:

Ordinary suit relating to the negotiable instruments is competent and plaintiff has an option to follow procedure of ordinary suit or summary procedure under order 37 of CPC, and none of rules contained in that order has provided a road block in filling ordinary suit before civil suit. [1994 CLC 2013]

Conditional Leave:

The want of notice under section 98 of the Negotiable Instrument Act, Conditional leave granted.[PLD 1986 Kar. 157]

Criminal Proceeding on Cheque:

Post-dated cheque dishonored, case registered U/sec 489 of PPC, issue of facts not dilated, stayed.[2015 YLR 2674]

Crossing Stamp on Pronote:

If the promissory note and receipt suffer from any technical defect, lack of crossing of adhesive stamps the same could be considered, if the defendant had been permitted to participate in proceedings and raise such objections. [PLD 1993 Lah. 244]

Stamps not cancelled, promissory note invalid.[2007 CLC 70]

Discretion to Grant Leave:

Where trial court exercised discretion for grant of conditional or unconditional leave, unless the same was based on irrelevant or extraneous consideration or was exercised arbitrary or perversely. [1986 CLC 2547, NLR 1996 Civil 628]

Discretion not exercised in favor of negligent.[2004 CLC 389]

Failure to obtain leave to defend, Effect:

Where the defendant does not obtain leave to defend the suit, allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to decree. [PLD 1990 SC 997, PLD 1990 Kar.312, 1990 CLC 1119]

Failure to Comply with Conditions of Leave to Defend:

The leave granted subject to depositing of amount in dispute, appellant failing to deposit the same, suit decreed without recording Evidence. [1983 CLC 1388, PLJ 2001 Lah. 41]

COMPENSATION FOR INFRINGEMENT OF TRADE MARK

Relevant Law:

Trade marks Act, 1940 repealed by Trade Marks Ordinance, XIX OF 2001

• Patents Ordinance, 2000
• The Merchandise Marks Act, 1889
• Trade Marks Ordinance, 2001

Jurisdiction:

No suit for infringement of trade mark or otherwise relating to any right in a trade mark shall be instituted in any court not inferior to District Court having jurisdiction to try the suit.

Court Fee:

Suit for damages for the infringement of trademarks is governed by section 7(i) of Court Fee Act. The court fee is to be paid is ad-valurem according to the amount claimed. For injunction it is governed by section 7(vi) (d) of the Court Fee Act, which is according to the amount at which the plaintiff values the relief sought.

Limitation:

Limitation for compensation for infringement of trademarks is governed by Article 40 of the Limitation Act, which provides a period of three years from the date of the infringement.[PLJ 1992 FSC 1]

Registration of Trade Marks:

The person having acquired a right by registration of marks in respect of particular class of goods could not claim right to prohibit the particular use of same mark by other person in respect of goods of totally different character as such right could  not be construed as causing interference with acquired right of registered proprietor. [2002 CLD 37, 2013 CLD 1862, 2015 CLD 1108]

Effect of Registration:

Registration of trade mark would be treated as prima facie evidence of validity thereof. [1986 MLD 930]

Applicability and Scope:

Right to trade mark ids not permanent right that other cannot use it on other goods, test is confusion.[PLD 1990 SC 313]

Object of the Registration:

The main criterion of trade mark would be that unwary purchaser should not be led to believe the goods of persons seeking registration and those of objectors come from same source and belong to same origin. [1986 CLC 1636]

Copyright and Trade mark:

Copyright laws are aimed to protect original work of art or creative articulation in any medium of expression, whereas trade mark was assailed with goods and connection in due course of trade of goods either proprietor or registered user. [2015 SCMR 1230, 2015 CLD 1215]

Deceptive/ Distinctive Trade Mark:

Trade Mark “FPAFF” and “TUFF” phonetic sound and pronunciation of trade mark not similar. Pronunciation of “FPAFF” and “TUFF”, held, distinguishable from each other and they are not likely to cause any confusion or to deceive any person. [PLD 2002 SC 1131, 2002 CLD 1819, PLJ 2017 SC 1]

Abandoned Mark:

Goods copyright was not in market for 17 years, trade mark may be registered to another party. [PLD 1969 SC 477]

Criminal Cases:

Parties were not able to show that disputed trade marks were registered in their names. F.I.R authorities have no power to register criminal cases. Parties have civil rights to seek remedy in civil courts. Respondent however were directed to take in to consideration the provision of section 169 of Cr.PC, 1898 which dealing with criminal cases against petitioner.[2006 YLR 1407] 

Injunctions restraining Infringement;

Mere fact that trademark of the defendant was also registered would not entitle him to use the same if it amounted to infringement of trade mark of plaintiff, temporary injunction granted. [1994 CLC 2135]

Non-User of Trade Mark:

The complete bane existed on import of appellant’s goods in Pakistan non-user of marks being result of import restrictions on goods, order of removal of trade mark, set aside.[1988 CLC 252, 2016 CLD 229]

Notice:

Mere publication of notice in trademarks journal is not sufficient to give notice to the general public. [2012 SCMR 1504]

Prior use of Trademarks without Notice;

The appellant following prior use for 22 years of the trade mark, respondent if permitted to use of the trade mark, it would cause deception, refused in registration.[PLD 1970 Kar. 258, PLJ 2013 Lah. 65]

Resemblance:

For the purposes of resemblance two marks should not be compared side by side and the question in cases of alleged conflict between two marks always would be whether a person would be deceived when he sees one mark in the absence of another. [PLD 1988 Kar.569]

Difference in Passing off and Infringement:

The defendant produced numerous issues contending that plaintiff himself imitated magazine of international repute and has no right to complain. The cause of plaintiff was for passing off and not for infringement of trade mark. The plaintiff has no Prima Facie case while defendant have obtained permission to publish Cricket International in Pakistan must have done so at abnormal cast. The injunction was also refused. [2002 CLD 1623, 2015 SCMR 297, 2001 SCMR 967]

Appeal:

Application for registration filed at Lahore, bound at Lahore, final order passed at Lahore High Court Lahore has jurisdiction to hear appeal. [PLD 1994 Kar. 132]

GROUNDS FOR DISSOLUTION OF MARRIAGE

2022 CLC 372

—-Ss.5, Schedule. & 14….Dissolution of Marriage Act

Validity….Appeal against the marriage dissolved by family court on any ground, except the one mentioned in S.2 (viii)(d) of Dissolution of Muslim Marriages Act, 1939, was not competent in view of S. 14 of Family Courts, Act, 1964—–statements of witness of defendant proved that there was maltreatment both physically and mentally from the defendant’s side that was why he gave surety that next time there would be no beating … Defendant has failed  to maintain the plaintiff  for more than four years, who has residing with her parents ….” Cruelty” was not limited to physical beating rather it could be either mental or even by conduct.

Dissolution of Muslim Marriage Act (VIII of 1939)

…..S.2….. Grounds for decree for dissolution of marriage— Scope….Cruelty is not limited to physical beating rather that can be either mental or even by conduct.

OBJECT OF FAMILY COURT ACT 1964

2022 CLC 479

Family Court Act (XXXV of 1964)

…..S.9 …… Written statement ….. Scope …..Specific mechanism is provided in the Family Court Act, 1964, for settlement of disputes relating to marriage and family affairs and also other ancillary matters connected therewith…. Basic object of the family Court Act, 1964 is to facilitate the parties seeking their rights, to provide justice and to curtail insufficient delay in legal and procedural formalities as the act does not intend to create hurdles, problems and difficulties for spouses or for the courts dealings with their matters ….Section 9 (5) of the Family Court Act, 1964, envisages that when the defendant does not appear on the fixed date by the Court, he would be proceeded ex parte….and on showing or assigning good cause or reason for his  nonappearance, ex party proceedings are set aside….section 9 (6) of the Act provide the period within which the application for setting aside of ex party decree can be filed and when it is proved that either the defendant was not served properly or he was prevented by sufficient cause from appearance

RECOVERY OF DOWER

2022 C L C 1516

….S. 5, Schedule … Suit for recovery of dower… Oral Nikahnama …. Non determination of dower at the time of nikha … Mehr-e-misl… Proper dower ….. Scope..…..Petitioner assailed orders passed by Courts below whereby respondent (wife) was held entitled to recover Mehr-e-misl…. Validity….. Nikha between the parties was orally solemnized according to shariah …. Under the Quranic Teaching the relations of Muslim Family unit (Spouse) was established through solemnization of nikha accordingly in order to determine the rights/obligations of a husband and wife and it was mandatory for a husband to give dower to his wife …. Quantum of the dower amount was left open for the parties to settled the same according to their independent opinion— in case the amount of dower was not mentioned in that eventuality a modus operandi was provided in sharia to ascertain the same from the customs, status, and allied social traits of the parties …..such settlement or determination of dower amount was named as proper dower (mehr-e-misl) ….litmus test for determination of proper dower as provided in Islamic jurisprudence whereby dower amount of other female members from the family of her father as such as her other sisters, father’s sisters, etcetera, would be considered as proper dower…..Courts below had rightly declared the respondent entitled to receive proper i.e similar as dower of her real sister ….

DOWRY

Dower means any property given before or after marriage  either directly or indirectly to bride by parents in connection with marriage but it does not include the property which the wife may inherit under laws of Inheritance and succession applicable to her[ Dower and Bridle gifts (Restriction) Act, 1976

GURADIANSHIP

The application for appointment of guardian or by a person calming to be a guardian of the minor may be made, it may also be made by relative or friend of the minor and in some cases by collector. It should be in the form prescribed by section 10 of the Guardian and Ward Act. When Court is satisfied that it is for the welfare of minor that an order should be made for

• Appointing guardian of his person or property

• Declaring a person to such guardian , the court may make an order accordingly (Section 17, Guardianship and Ward Act)

The mother is entitled to custody of male children after they had attained 7 years. NLR 1993 AC 598, PLD 1972 PESH.1 Custody of mother become unauthorized if she refused to hand over to after of the 7 Years

• Custody of boy of 8 years handed over to father for welfare 1998 CLC 2084
• Custody of minors above 7 years remained with mother, father remarried. NLR 1994 CIVIL 88
• Minor reached at age of majority / maturity, to uproot them would be improper, application of father rejected. 2008 SCMR 505
• Father disentitled for custody of minor after 7 years on account of neglect and conduct.

PREFERENTIAL RIGHTS FOR THE CUSTODY OF MINOR:

2022 C L C 762

 Section 17 ………..Custody of Minor (Preferential Rights)

Guardian and Wards Act (VIII of 1890)

Determination factors ……Scope ….Held, that court had to see the welfare of the minor, keeping in view whether the person to whom the custody was being given, could facilitate the minor with respect to the health, education and other social norms which were required to build up the person of the minor, what was the financial status of the claiming person as guardian, whether person can capable of having the guardianship as to make the minor as good citizen in a real sense, whether the guardianship himself follow laws, whether he/she had respect for the law, whether he/ she understood regarding the good and bad things/norms of the society, whether he/she had the level of intellect to train the minor to be a good and useful citizen of society….Character building was not an easy task…..Person who was always thinking about his/her benefit, could not be a good leader to build the character of the others. [p.786]D

Reliance on PLD 2020 SC 508

JACITATION OF MARRIGE

A suit for jactitation of marriage will include a suit for declaration by a person falsely posing that he is the spouse of the defendant. As such any declaration as to the status where one party alleges marriage and the other denies will amount to decree for jactitation of vantage. A suit lies for declaration that the plaintiff is or is not the husband or wife of defendant. 50 PR 1901, 26 PR 1903

Suit regardless of its timing can be filed by person other than the spouses involved Jactitation of marriage. Suit can also be filed by spouses against third party with a view to them from denying   marriage. PLD1984 SC 95.

There is no bar for filing suit for jactitation of marriage during pendency of appeal against the decree of restitution of Cconjugal rights which is to be decided on its own merits.1888 Civil 280. You question of reconciliation in Jactitation 1887 CLC 1705.

EVICTION / EJECTMENT OF TENANT    

 Relevant Law:

The Punjab Rented Premise Act, 2009

The landlord may seek eviction/ ejectment of the tenant by filling an application under Section 19 of the Punjab Rented Premises Act, 2009

Jurisdiction of the Court:

Application in respect of a rented premised Act shall be filed in the rent tribunal of the area or the District.

If an application id filed under sub-section 1, the Administrative Special Judge (Rent) of the area or the district may take cognizance of case or entrust the same to any other special judge rent.

Court Fee;

Application for ejectment of tenant is governed by Article 17 of the Punjab Second schedule of the Court Fee Act as amended by the Punjab Finance Act, 1973, Wherein, it is laid down that where the property is assessed to the Urban Immovable Property Tax Act, a fix court fee stamp of Rs.15 is to be affixed.

Court Fee in Appeal:

The orders of the rent controller in ejectment proceedings have force of a decree passed by a Civil Court. An appeal from such order is liable to bear ad-valorem court fee on the annual rent under schedule 1 of Article 1 of the Court Fee Act, 1870. [PLD 1970 Lah.428, PLD 1967 Kar. 35]

Limitation:

The period of limitation for application for ejectment of tenant is provided by article 181 of the Limitation Act, 1908 which is three years when the right to sue accrues. This is a recurring cause away default gives a fresh start.

Limitation and Condonation of Delay:

Provision of Section 5 of limitation Act not applicable to rent controller.[2001 CLC 646]

High Court refused to condone delay because provisions of Section 5 of the Limitation Act, 1908 have not been extended to appeal, review taken by the High Court unexceptionable. [1988 SCMR 1863, 1987 MLD 49, 1988 MLD 606, PLD 1982 SC 88]

          Limitation for leave to contest is ten days.[2013 CLC 1985]

Service of notice not in prescribed form, no service tenant granted time to file leave to contest. [2013 CLC 185]

Power of Rent Tribunal of Condonation:

Rent tribunal has no power to condone the delay. [2013 CLD 904]

Grounds of Eviction of Tenant:

Section 15 of the Punjab Rent Premises Act has provided following grounds for Eviction.

Period of tenancy has expired.

The tenant has failed to pay or tendered rent within a period of 30 days after expiry of date fixed in the agreement and if no date of payment is fixed, the tenant shall pay or tender the rent not later than 10^th day of following month.

That the tenant has committed breach of a term or condition of tenancy agreement.

That the tenant has committed a violation of an obligation mentioned in section13 of the Act.

That the tenant has used the premises for a purpose different from the purpose for which it has been let out.

The tenant has sub-let the premises without prior written consent of the landlord.

Oral Tenancy:

Eviction petition on oral tenancy is not maintainable. The tenancy agreement must be in writing and be registered before the rent registrar is sine qua non for filing the petition.

The ownership is not pre-requisite for maintaining eviction petition, the person entitled to receive rent though no owner is entitled to seek eviction.

Judicial Proceedings:

Proceedings before the rent controller are judicial and rent controller deemed to be court. Application for eviction lies before special judge Rent Tribunal. [2007 SCMR 718, PLJ 2017 Islamabad 32]

Advancement of Loan:

The advancement of loan cannot be adjusted against rent.[1981 SCMR 720]

Agreement of Tenancy between Landlord and Tenant:

The tenancy can only be created by execution of agreement in writing. Previously it was also may be by oral agreement under Rent Restriction Ordinance 1959 which stand repealed after enforcement of the Punjab Rent Premises Act, 2009. The rent agreement is now presented for registration. The relevant law is given below.

Agreement to Sell:

Tenant could retain possession on agreement to sell. [1996 SCMR 877].

Agreement to sell would grant right to specific performance of contract. [2004 CLC 862]

Breach of Terms and Condition tenancy agreement:

If a tenant fails to fulfill an obligation under this act or tenancy agreement, the landlord may give notice in writing to the tenant specifying the act or omission and the remedial action to be taken by the tenant within a specified time.

Civil Procedure Code:

Principles of civil procedures code applicable.[2007 SCMR 813, 2008 CLC 136, 2004 CLC 862]

Co-Owner:

The plaintiff transferee of share of one co-sharer, ejectment not maintainable. [PLD 2006 Lah. 584]

Co-owner after suit for partition is entitled to file application/petition for ejectment.[PLD 2000 SC 187]

Death of Landlord:

Once an order of eviction of tenant is made under Section 13(3), 9(ii), it becomes, on death of landlord, the beneficiary of the order, a part of his heritable estate and legal representative can defend order and claim benefit arising thereunder subject to all limitations and exceptions attached to such an order.[1990 CLC 961]

Decree against Dead Person:

The death of tenant and his legal heirs during pendency of action, decree against dead person of no legal sanctity is to be set aside and legal representatives has to be brought on record. [PLD 1985 Quetta 56, 2010 CLJ 548]

Object of Enactment of Act.

The object of the enforcement of the Rent Premises Act was the protection of the tenant from eviction, unless such conditions are fully satisfied, tenant would be immuned from ejectment. Landlord failed to establish affirmately allegation of default in rent, eviction refused. [1994 SCMR 2288]

Enhancement of Rent:

Lease agreement stipulating annual 15% enhancement of rent would be bound to pay enhancement of 15% of rent when the agreement to lease extended by mutual consent, bound to pay 15% enchant rent after expiry of lease period. [NLR 2015 Civil 423]

Execution:

A rent tribunal shall execute an order passed under this act by a rent controller or a District Judge or an additional District Judge as a decree of civil court and for this purpose, rent tribunal may exercise any or all powers of civil court.

Conclusion:

The object of the enforcement of the Rent Premises Act was the protection of the tenant from eviction, unless such conditions are fully satisfied, tenant would be immuned from ejectment. Application in respect of a rented premised Act shall be filed in the rent tribunal of the area or the District. If an application id filed under sub-section 1, the Administrative Special Judge (Rent) of the area or the district may take cognizance of case or entrust the same to any other special judge rent. The landlord may seek eviction/ ejectment of the tenant by filling an application under Section 19 of the Punjab Rent Premises Act, 2009

TRANSACTIONAL REQUIREMENTS OF GIFT:

2022 SCMR 1009 [Page 1020]

Proof…….” Reasonable” and “Natural gift “ ——In the present case the gift transaction recorded in the impugned gift mutation appeared to be reasonable and natural in the facts and circumstances of the case, where a father (donor), whose son had contracted  a second marriage, transferred some of his property to his first daughter -in -law (donee) who also happened to be his niece, and to his granddaughters(donee) to ensure their financial security, out of his love and affection for them.