Wednesday, April 20, 2011

Civil


Additional Evidence, O.41, R.27

P 11 SC 151 Additional evidence can only be allowed when it is in consonance with and within scope of pleadings and not otherwise.

Agreement to Sell

03 SCMR 848, P 06 L 1518, S. 12---Agreement to sell would not confer any right of ownership on any person.

 

Appellate Judgment

06 CLJ 222, S.115, Appellate judgment not sustainable when viewpoint of appellate court on many disputed questions is not available.


Approbate and Reprobate

06 CLC 1534, No one can be allowed to reprobate that which he has himself approbated.

Attesting Witness

10 PLJ Lah 411 Two attesting witnesses

Bank

06 MLD 1502, 946, Where bank is party in declaratory suit, suit should have been filed in Banking Court.

 

Chronic Defaulters

NLR 89 Rev 66, NLR 82 Rev 202 Chronic and habitual defaulters not entitled of concession.
 -------------

Defaulters cannot be ejected: 88CLC 81, 86CLC 2347

 

Condonation of delay

10PLJ Quetta, Each and every day has to be explained.

Contract

09 SCMR 276, Breach of Contract, Sole statement of plaintiff not enough.

Co-Sharer

89SCMR 130, 99CLC 598, Joint property,

98 CLC 857, Be restrained from cutting trees.

04 SCMR 1581, Specific possession.

05 NLR Civil 489, co sharer, neither estopped from claiming his share nor his right can be extinguished by lapse of time.

89 SCMR 130, 99 CLC 598 Co-sharer, joint property. (Stay)


Consolidation of suits

93CLC 723 Not allowed.

Conversion of Revision into Second Appeal

P 1993 Lah 7, Conversion of revision into second appeal --- Jurisdiction-- Technicalities should not stand in the way of disposal of cases --- High court has jurisdiction to allow conversion of revision into a regular second appeal Revision riled by plaintiffs was allowed to be converted into second appeal and they were directed to make up deficiency in court -fee .

 

Court Fee

PLD76 Kar295 Court fee not paid in appeal.
PLD66 Lah1 Ad valorem court fee.
74SCMR 364 Court fee not paid despite three opportunities, no further opportunity be given.
PLD66 Pesh., PLD Pesh 142 Deficiency be made up where mistake bonafide by counsel.
AIR24 Lah.401 No appeal legally presented if not properly stamped.
AIR Bombay343 Where insufficient stamped document has been recorded by court, court can give opportunity to pay proper court fee, second party cannot oppose that document be struck off from file.
PLD65 Lah. 676 Court fee not to arm litigant with weapon of technicality.
95 CLC 1850, 90 CLC 1154, Sec. 115, Court fee in Revision in High Court.

Cross Examination

PJ 10 L 245, 06CLC 1240, No cross-examination means statement to that extent stands admitted.
06 CLJ 263, Admission, Material piece of evidence not crossed stands admitted.
02 ylr 2362, No cross-examination means statement to that extent stands admitted.
91 SCMR 2300, Omission to cross-examine-- However was rebutted by making suggestions and denying the same in evidence.


Document

10 SCMR 5, 07 SCMR 497, 05 CLC 658, Presumption of truth is attached to 30 years old document.
07 SCMR 236, Document to be read as a whole.
07 SCMR 687, Registered document, Registered document had sanctity attached to it and stronger evidence was required to cast aspersion on its genuineness
P 07 L 83, Documents are admitted, their contents are not necessary to be proved.
05 CLC 727, No one can be forced to reveal from where they managed the document.
05 CLC 1602, Document having dual explanations.
06 YLR 349, Nikah nama being public document can be produced in evidence.

Documentary Evidence

05 NLR Civil 120, Documentary evidence cannot be contradicted by oral evidence.
05 NLR Civil Pesh 367-381, Document exhibited without objection. No objection can be raised in appeal or writ.

Document, Execution of

10PLJ Lah 411 Denied signatures, not confronted with contents of document, fatal for petitioner.

Document. Attesting Witness

10 PLJ Lah 411 Two attesting witnesses

Document, Exhibited

08 CLC 1282 Document exhibited without objection should also be proved.

Doubtful Case

96 CLC 202(b) Maxim, Where case was doubtful, decision should be given for defendant.


Evidence/Pleadings

PJ 10 AJ&K 54, Art.164--Video Film, Video film also comes within ambit of ‘document’.
06 YLR 349, Nikah nama being public document can be produced in evidence.
11 CLC, 241, 304, Party cannot lead evidence beyond scope of pleadings.
11 CLC 205, Evidence recorded in one case reproduced in other case. Such procedure is alien to procedure of CPC.
P 11 SC 151, Pleadings, New plea, In absence of any fact no plea can be allowed to be raised, set forth at later stage. Raising of such plea is impermissible.
05 NLR Civil 362, Courts to ignore evidence when in conflict with pleadings.
05 NLR Civil Pesh 381, Plea not taken in pleadings. Statement to be ignored.
05 NLR Civil Lah 403, Better statement on form of replication shall be considered as part of pleadings.
94 MLD 1747(b), 96 CLC 202, Plaintiff to prove his case on force of his own evidence, not to take advantage of shortcomings of defendant’s evidence.
01 SCMR 1651, Important fact to be mentioned in pleadings.

Finger Print
10 PLJ SC 575 Non appearance of finger print expert in support. Of no help.

Forged Document

88 CLC 578(m), Forged document, Burden of proof lies on person objecting thereto.

 

Fraud, 12(2)

11 CLC 355. 12(2) Accepted ex parte not sustainable. Pleadings are not gospel truth, must be proved through impeachable evidence.
08 SCMR 1095, Particulars of fraud to be described in plaint.
99 YLR 934, Fraud not only to be alleged but also to be proved.
06 CLJ 78, 12(2) filed after delay, liable to be dismissed.
06 CLJ 264, Compromise deed by acting through bullet speed against defendant who was parda nashin . 12(2) accepted.
06 CLJ 293, Decree in favour of brother against sister liable to be dismissed.
06 CLJ 293, Limitation starts from time of knowledge.
06 CLJ 293. Wrong/incorrect assertion in pleadings either through ignorance, inadvertence or otherwise would not attract exercise of 12(2).
06 CLJ 373. Discovery of new and important matter or evidence may provide ground for revision under R. 1(c) of Order XLVII but cannot be challenged under 12(2).

10 YLR 2178 12(2), 12(2) dismissed without recording evidence. Question of fact could not be decided by court without recording evidence.

07 SCMR 569, NLR 06 Civil 105, 12(2) and its written statement is also pleadings.

06 CLC 286, No court -fee is payable on the order passed on the application under S.12(2), C.P.C. and challenged before the High court by way of revision---Principles.


Gift

05 NLR Pesh 75, Gift deed has no evidentiary value when factum of delivery of possession is not proved.

10 CLC 1861, Gift through registered deed-- Execution and registration not denied, such admission would be sufficient proof.
10 CLC 1895, TPA, Gift, Unequivocal intention of donor must be demonstrated by his entire relinquishment.

Grow More Food Scheme

05CLC 83, Continuous possession is necessary.

 

Hissa Batai

10 PLJ Lah301 Writ Allowed.

 

I.C.A

05 NLR Civil, BWP 151, ICA can be filed when judgment of Single Judge is shown to be against law, based on non reading or misreading or is the consequence of miscarriage of justice.

Inheritance

05 CLC 817, When a aman changes his religion, his inheritance is to be divided according to his new religion.

Ignorance of Law is no Excuse

05 YLR 221, PLD 01 SC 228, P 94 L 360, 94 CLC 1163, 87 MLD 2867, 89 PCL 552 ,86 PCL 862

Issue wise finding

10 PLJ Lah 269Appellate court did not give issue wise findings. Revision Allowed

Issues, Non framing of

10PLJ SC 530, O.14 R.1 Non-framing of issues, parties could not adduce evidence. Case remanded to trial court.

Judicial Mind

05 NLR Civil 297, 450, Judgment passed without using judicial mind.
CLD 09 L 960(b), Judge is supposed to know the law. Court cannot say that counsel has not advised the court properly.
80 CLC 2056, 04 MLD 1647, 07 YLR 2311 Court cannot grant relief, which is not prayed for in the pleadings.

Judicial Notice

05 NLR SC 570, No judicial notice can be taken of a fact not proved on record through evidence.

Khasra Girdawri

07 MLD 331, Buyer failed to produce Kahsra Girdawri to establish his possession.

Legal Heirs

PJ 07 SC 849, Defendant is bound to file list of his legal heirs.

 

Limitation/Mutation

NLR 85 Rev 133, Limitation to challenge mutation, six years starts from day mutation was sanctioned.


Malicious Prosecution

94PLD SC 476
70PLD Kar 344
03MLD 1485
93CLC 1669
95CLC 735, 1134

05 NLR Civil Pesh 533, Suit decreed. Ingredients mentioned.


Marginal Witness

07 SCJ 848, 06 YLR 1620, Writer of contract as marginal witness. Suit to be dismissed where only one marginal witness examined.

Minor-Guardian

03 CLC 1792, If minor has not reported his majority, guardian’s act on his behalf is legal.

Minor Contradictions

06SCMR 1761(c), 08 MLD 557, Minor contradictions to be ignored.

Minor’s Custody

KLR 06 SC 222

Natural justice

P 11 Pesh 47, Natural Justice, Order passed by authority against interest of person without hearing him would be illegal.

S.114

11 CLC 381, Limited view, Grounds not taken at earlier stage.

Oath

10 SCMR 810, Statement of a witness on Oath would be binding upon a party, who produced him as witness
05 NLR Civil Pesh 14, Proceedings on oath would be illegal when not conducted in the prescribed manner.

O.3, R.1,2

10 PLJ Kar 143, If plaint was not competently filed along with plaint, but subsequently filed, such anomaly could be rectified.

O.6, R. 17

P 84 SC AJK 1151, Wrong description of property in plaint can be corrected.
09 YLR 483, Amendment can be allowed at any stage.

 

O.7, R.11

P 11 AJK 1

11 CLC 250, Object of 7/11 was to bring an end to incompetent suit to the earliest.

P 10 L 487, Every averment made in plaint has to be accepted as correct.
P 10 Q 65, 7/11, O.39, R.1,2, Trial court rejected plaint while deciding stay application--Validity—Rejection of plaint on having fixed for decision on application under ).39, R.1,2 was illegal.
10 CLC 1879, Court could reject plaint when allegations made therein, if assumed as proved to be correct, would not entitle plaintiff to get relief.
94 SCMR 826, The rejection of plaint under Order VII, Rule 11, C.P.C. is contemplated at a stage when the Court has not recorded any evidence in the suit. It is for this reason precisely, that the law permits consideration of only averments made in the plaint for the purpose of deciding whether the plaint should be rejected or not for failure to disclose cause of action or the suit being barred under some provision of law

O.8, Written Statement

03 SCMR 1528, 171. Time given for filing written statement but defendant failed, court can decree the suit.
08 CLC 580, O.8, R.1, 10, Conduct of defendant showed that he was reluctant to file written statement and had disobeyed various orders of Trial Court---Trial Court had proceeded in right direction in passing impugned order---High Court dismissed constitutional petition in circumstances. 
NLR 06 SCJ 978, Court cannot give more than 30 day’s time.
03 CLC 1016, Court can give order for filing written statement.
07 CLC 288, Failure to file written statement by defendant---Effect---Even if defendant had not filed written statement and had not cross-examined the witnesses produced by the plaintiff and had not produced any defence witnesses and suit proceeded ex parte; he had the right to contest the suit; and take plea that on basis of evidence produced by the plaintiff himself, the suit was liable to be dismissed--

O.9, R.8

10 YLR 2053, Dismissal for non-appearance of plaintiff. On the date fixed plaintiff was not required to fulfill any obligation on his part. Suit restored to its original stage.

10 YLR 2196, Sufficient cause, Counsel of plaintiff suffering from ailment and later succumbed to ailment. Case restored to original position.


O.9, R.9

11 MLD 266 Dismissal in default, technicalities should be avoided.


O.9, R.13

AIR 32/33? Mad 713 Application by person not part in original suit, not valid.

10 CLC 1776, Application filed beyond prescribed period of limitation. No illegality was committed by two courts below while dismissing application for setting aside ex parte. Such aspect of case did not require and indulgence of High Court within purview of S.115 CPC.
PJ 10 P 1, Ex parte, Defendant cannot be excluded from proceedings.
PJ 10 SC 891, remarks on Registered AD with regard to refusal of the appellant clearly showed that appellant was not misled in view of address mentioned in the plaint.

O.16, R.1 List of witnesses

90CLC 1877, 94CLC 1920, 01MLD 1521
99SCMR 799, Does not fall in the ambit of technicalities, illiterate no ground.
03 MLD 1621, 1332, 04 SCMR 1367, 05 MLD 1713, 06 MLD 1532, 99 SCMR 799.

O.17, R.3 Closure of evidence

10PLJ Lah 432, REF 08SCMR 322 Opportunity given, Revision Dismissed.
10 PJ Lah 687. Right closed, no ground for interference was made out.
06 CLJ 633, Dismissal under O.17, R.3 against some plaintiffs would not be made basis of res judicata for other plaintiffs.
10 YLR 1957, Penal order did not remain in field, Subsequent adjourn­ments could not be termed as adjournments given on the request of the plaintiff---Where the case was not adjourned on the request of a party, such party could not be visited with penal consequence on the subsequent date

O.20, R.5 Issue wise finding

00 SCMR 1647, Issue wise finding not necessary when issues are interlinked.

 

O.23, R.1

P 84 Lah 230, P57 Lah 648, P65 SC 634, PLJ85 Lah 405
03 CLR 1541, Suit to be decided on merit, not to fail.

O.37

P 10 L 487, Summary procedure-- Once leave to appear and defend the suit has been granted, same is converted into regular civil suit and to be tried accordingly.
P 11 Lah 149, insufficient stamps, deficiency can be made up in appeal.
PJ 10 L 488, Delay in furnishing security, condoned.

 

O.39, R.1,2

Interim Injunction

08PLJ Pesh 73, 96MLD 1937, 01MLD 92, Stay cannot be granted even to the extent of further alienation.
99CLC 598, Nature of property to be maintained.
P 88 Kar 433, Permanent Injunction not maintainable where title is absent.
90 CLC 1299, 82 CLC 1647 Grant is a rule, refusal exception.

89 SCMR 130, 99 CLC 598 Co-sharer, joint property.

98 CLC 857, Be restrained from cutting trees.

90 CLC 1299, 82 CLC 1647, Grant is a rule, refusal exception.
NLR 85 Rev 133, Limitation to challenge mutation, 6 years starts from the day mutation was attested.
06 CLJ 63, S.115, High Court has no jurisdiction under S.115 to interfere where temporary injunction was refused by courts below.
10 CLC 1843, Injunction could not be granted to prevent Breach of Contract.
10 CLC 1879, Court while granting injunction should or ought to be of the view that plaintiff applying for injunction was in all probability likely to succeed in the suit by having a decision in his favour.
01 MLD 92, Injunction against construction, demolishing and property cannot be granted.
P 68 L 315, Stay can be granted about prerogative of managing mosque matters.

O.39,R.4

90CLC 1127

Parda Nasheen

10 PLJ SC 530 Heavy burden of proof lies on donee.
06 CLJ 264, Compromise deed by acting through bullet speed against defendant  who was parda nashin . 12(2) accepted.
07 SCMR 838, 05 CLC 1839, P 09 Lah 41, Suit dismissed.

Pari Delicto
Where each party is equally in fault the law favours him who is actually in possession
89 CLC 1789, 85 CLC 1881

Pending a litigation nothing new should be introduced
76 SCMR 239, 76 SCMR 385

Plaint/Evidence

P 84 SC AJK 1151, Wrong description of property in plaint can be corrected.
10 PLJ Lah 262, REF. 96SCMR 336 If ingredients necessary to be mentioned in plaint were not mentioned, no evidence can be led on this point.
07 CLC 259, PJ 06 SC 159, 07 CLC 257, 01 CLC 1100, No evidence beyond pleadings.
CLD 09 SC 802, Any objection not raised before trial court cannot be raised before Appellate Court or Court of Revision.
NLR 07(AC) 280, Written statement is not evidence.
80 CLC 2056, 04 MLD 1647, 07 YLR 2311,Court cannot grant relief which is not prayed for in the pleadings.
07 CLC 257, 462, 84 CLC 3172, No evidence on an objection -- Not proved.
NLR 08 SCJ, 08 SCMR 238, Pleadings is not evidence.
NLR 08 SCJ 38, Content of pleadings not in evidence stands unproved.
07 SCMR 569, NLR 06 Civil 105, 12(2) and its written statement is also pleadings.

Pre-Emption

10 PLJ Lah 273 Written statement mentioned it was exchange. To prove distinction between device and disguise evidence has to be looked into. Case Remanded.
P 10 SC 1048, Pre-emption is not inheritable right.
07 CLC 489, Pre-emption decreed, Defendant’s plea that he purchased land for construction of mosque, no strong evidence produced.
08 SCMR 1056, -Ss. 15 & 21---Qanun-e-Shahadat (10 of 1984), Art.133---Pre-emption suit---Superior right of pre-emption---Vendee claimed to be owner in the Estate on basis of gift deed executed in his favour before alleged sale--Proof---Gift deed was produced in evidence through donor---No question in respect of validity or otherwise of gift was put to donor during cross­-examination---Held, gift was properly executed between vendee and donor---Pre-emptor had no preferential right qua vendee---Suit was dismissed in circumstances. 

Informer, Pre-emption

11 CLC 244 Informer’s name not mentioned not entitled to grant of decree.

Mutation

P 11 SC 151, Non attestation of mutation, not fatal.

Slip of Tongue

PJ 10 Pesh 24, S.13 Slip of tongue or clerical mistake, plaintiff has proved Talab.

Talab

04SCMR 1580 Non service not fatal, minor discrepancy of time would not come in way of pre-emptor.
07 CLC 277, Witness unable to tell what is written in notice Talb-e-Ishhad.
11 MLD 255
07 CLC 819, Talab not proved, suit dismissed.

Zar Soim

95 CLC 487, Rival pre‑emptors withdrawing pre‑emption money after passing of judgment in their favour‑‑­Suits of rival pre‑emptors were not liable to be dismissed on such account‑‑­Suit having once been decreed in rival pre‑emptors' favour and matter being under appeal merely because 1/5th money was withdrawn by them, would not be a valid ground for holding that decree in their favour had become ineffective or their suit had become liable to be dismissed.
PJ 10 Lah 484, No court can extend time as prescribed in sec 24(2) of pre-emption act, suit was barred by limitation.

 

Pronote O.37, R.1,2

P 11 Lah 149, insufficient stamps, deficiency can be made up in appeal.
P 10 L 487, Summary procedure-- Once leave to appear and defend the suit has been granted, same is converted into regular civil suit and to be tried accordingly.
PJ 1- Pesh 18, Writer of pronote produced in evidence, marginal witnesses accepted him.

Public Nuisance

11 CLC 250, Permission of A.G is mandatory.

Review

10 YLR 1957, S.114, Patent illegality and error was apparent- review application competent.

Referee, Appointment of

KLR 2000 CC 387 Art.33 QSO. Appointment of referee, decision final.

Res Judicata

CLD 09(e) Lah 401, Res judicata.

06 CLJ 633, Dismissal under O.17, R.3 against some plaintiffs would not be made basis of res judicata for other plaintiffs.

PJ 10 Lah 91, Inheritance not hit by law of res judicata.


Rent

10 CLC 1839, Punjab Rented Premises Act, Ejectment of tenant, Setting aside ex parte eviction order without restoration of possession would have been meaningless as the same would have resulted in irreparable loss and multiplicity of proceedings.
PJ 10 SC 910, S.13, Ejectment petition, If tenant fails to produce his title over the premises in dispute, the Rent Controller can determine the relationship of landlord and tenant between the parties.
PJ 10 Lah 493, Default in payment of rent due.
Rent, 12(2)
05 CLC 1042, 04 MLD 227

Service

PLD 91SC 660(b), 06SCMR 4 Document sent by registered post gives rise to presumption of due service.

  

Secondary Evidence

05 NLR Civil 120, Secondary evidence without obtaining permission is of no value.

Signatures

97 SCMR 976, PJ 10 L 32, Court has ample power to distinguish between signatures under Art. 84 QSO.

Specific Relief Act

Stay, P90 Lah 82, If the petitioner is ready to pay full/partial amount, it will be invested in a saving scheme as security till decision of the suit for specific performance and STAY will be granted till disposal of the case. NLR 86 CLJ 346
10 CLC 1872, Ss. 42 & 54---Suit for declaration and permanent injunction—Suit dismissed. Possession of defendant was admitted, plaintiff could not prove that sale deed was attested fraudently.

Special Costs

06 CLJ 1014, 35A, Imposition of special cost which is against spirit of law would be erroneous.

 

Subsequent Suit

83PLD SC 344  (Fresh suit already instituted and pending at time of withdrawal of earlier suit, HELD not barred) *Mere withdrawal does not operate as Res judicata.

Technicalities

11 MLD 266 Dismissal in default, technicalities should be avoided.
05 CLC 285, 123, 1602, 457, 603, Law is to be defined according to law and technicalities are to be avoided.
2001 YLR 2512, Lis should not be knocked out on technical grounds but endeavours of the Courts should be to decide the matters, involving valuable rights of the parties, on merits and party to the litigation should not be non-suited on mere technical grounds.
02 CLD 345, Parties should not be non-suited on mere Technicalities and the lis, so far as possible, has to be decided on merits.
P 60 SC 382? Justice Kaikaus.

Vigilant/Indolent

Law helps vigilant and not indolent 
00 PCL 134, 99SCMR 1326,

05 NLR Civil 109, Discretion, Courts do not use discretion in favour of indolent and slothful litigant.


Withholding Evidence

06 CLC 578, Art. 129(g)---Adverse inference---Where a party withholds evidence of vital importance, such an act is fatal to his case---Court always draws an adverse inference against a person where he, in a given situation, is bound to react in a particular manner but fails to do so.

Witness

07 CLC 277, Witness unable to tell what is written in notice Talb-e-Ishhad.


Writ Competent

72SCMR 395, 80SCMR 84, 81SCMR 758 Where finding is not supported by evidence on record the same can be disturbed in writ petition.
05 CLC 192, 54, Writ competent where lower court has not properly appreciated evidence.

1 comment:

  1. Very informative and a knowledge base effort is appreciated

    ReplyDelete