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Citation Name: 2021 YLR 677 LAHORE-HIGH-COURT-LAHORE

Bookmark this Case Syed ARIF HUSSAIN SHAH VS SAKINA BIBI

Ss. 8 & 42—Civil Procedure Code (V of 1908), S. 115—

Suit for possession of immovable property and declaration— Fraud and forgery—Bona fide purchasers from attorney—imposing of special costs—Plaintiffs/respondents claimed to be owners of suit property and sought recovery of possession, on the ground that transfer of title was on the basis of forged power of attorney—Trial Court dismissed the suit but Lower Appellate Court decreed the same in favour of plaintiffs/respondents—Plea raised by defendants/petitioners was that they were bona fide purchasers for value from power of attorney holder—Validity— Plaintiffs/respondents who were alleged executants of power of attorney were residents of city “F” whereas subject land was located in city “C”, therefore, general power of attorney could normally be executed or registered in either of the two places but its creation at city “K”, if found to be correct, was sufficient to doubt its veracity—Questioned document was an engineered by practicing forgery and fraud—Defendants/petitioners were bona fide purchasers for value from holder of forged and factious attorney deed who had not authority to transfer suit area in favour of defendants/petitioners, who merely on the basis of sale deed executed by such agent in his favour had not become rightful owners—Neither fraudulent alienation could be protected nor perpetuated and was rightly collapsed by Lower Appellate Court—High Court declined to interfere in judgment and decree passed by Lower Appellate Court as predecessor-ininterest of defendants/petitioners were in league with a forger usurped property of innocent persons—High Court advised plaintiffs/respondents to come forward to initiate criminal proceedings against delinquents, besides filing of suit for recovery of damages—High Court imposed heavy cost upon defendants/ petitioners—Revision was dismissed, in circumstances. Citation Name: 2018 CLC 967 QUETTA-HIGH-COURT-BALOCHISTANBookmark this Case RAHEEM BAKHSH VS BASHIR AHMED O. VI, R. 17, O. VIII, R. 1 & O. I, R.10—Suit for declaration—Concealment of facts while filing written statement by the defendants—Imposition of cost—Scope—Defendants while filing written statement did not disclose that they had already sold out the portion of suit land prior to filing of suit—Plaintiffs moved application for amendment of plaint and impleadment of new parties who had purchased the land from the defendants— Trial Court accepted the said application and issued show-cause notice to the defendants for concealment of facts and imposed cost upon the defendants—Validity—Defendants had sold out suit land prior to institution of suit but that fact was concealed while filing the written statement—Trial Court issued show-cause notice to the defendants who failed to deny the same in their reply/rejoinder—Trial Court had taken lenient view by imposing cost of Rs.5,000/- upon the defendants— Act of defendants amounted to contempt of Court and they were liable to be proceeded against but Trial Court was satisfied by imposing cost upon the defendants—No illegality or irregularity had been pointed out in the impugned order passed by the court below—Revision was dismissed in limine. Citation Name: 2017 CLD 412 SECURITIES-AND-EXCHANGE-COMMISSION-OF-PAKISTANBookmark this Case ASIAN MUTUAL INSURANCE COMPANY (GUARANTEE) LIMITED VS DIRECTOR (INSURANCE) Ss. 36(3)(a), 46(1)(b), 51(1) & 156—Securities and Exchange Commission (Insurance) Rules, 2002, R.16(1)(b)— Submission of Annual Audited Financial Statements to Commission—Insurance Company, in pursuance of Ss.46(1) & 51(1) of Insurance Ordinance, 2000, filed its Annual Audited Financial statement for the relevant year—Said statements of assets for solvency purposes, showed that company had taken all its available for sale investments at market value—Said statements, revealed that company had an investment property (Land and Building) amounting to Rs.9,180,000, which was previously revalued in the year 2004; and company had booked surplus on revaluation of Fixed Assets amounting to Rs.8,395,000—Company, had not carried out any revaluation of said property since the year 2004; and had not recorded any impairment in the value of said property, if any, which was required under R.16(1)(b) of the Securities and Exchange Commission (Insurance) Rules, 2002—Company, had not stated the carrying amount of the property at cost and, it appeared that company had chosen to follow the fair value model under IAS-40, which was against the provisions of R.16(1)(b) of Securities and Exchange Commission (Insurance) Rules, 2002—Company was required to revalue its investment property at least once in every financial year—Company, in circumstances, had contravened the requirements of the Rules read with S. 156 of Insurance Ordinance, 2000 relating to the recording and reporting of the investment properties—Company had admitted its default—Director Insurance of the Commission, dissatisfied with the response of the company in show-cause notice, vide impugned order imposed fine of Rs.100,000 on the company, with direction to reverse the statements; and book their Investment properties using cost model under IAS-40—Lenient view having already been taken in the matter under S.156 of the Insurance Ordinance, 2000 by not imposing the maximum penalty, appellate Bench declined interference. Citation Name: 2017 SCMR 1161 CONSTITUTIONAL-COURT-OF-SOUTH-AFRICABookmark this Case HOTZ VS UNIVERSITY OF CAPE TOWN Constitutional litigation–Term , Costs–TERM , Constitutional litigation—Order as to costs—Exercise of judicial discretion in awarding costs—Principles— Power of appellate court to interfere in a costs order made by a court below—Scope—Applicants were part of group of students that participated in protest against a public university—Applicants caused extensive damage to the university’s property—University filed an application before the Court of first instance and obtained an interdict against several protestors, including the applicants—In addition to granting the interdict, the Court of first instance ordered the applicants to pay university’s costs jointly and severally, including the costs of two counsel—Question as to whether the Court of first instance correctly exercised costs discretion—Held, that where the discretion exercised by court below was one in the true sense, contemplating that the court choose from a range of options, an appellate court would require a good reason to interfere with the exercise of such discretion—Cautious approach was, therefore, required—Appellate Court may have a different view on whether the costs award was just and equitable, however, it should be careful not to substitute its own view for that of the court below because it may, in certain circumstances be inappropriate to interfere with the exercise of discretion by court below—Primary consideration in constitutional litigation must be the way in which a costs order would hinder or promote the advancement of constitutional justice— “Nature of the issues” rather than the “characterisation of the parties” was the starting point—Costs should not be determined on whether the parties were financially well-endowed or indigent—Applicants in the present case were engaged in a protest because they could not, among other things, afford the university fees—At the heart of the protest was a seething sense of injustice that prevailed among university students and the country at large at the failure of the state and universities to provide free and quality education—Said issue had the effect on the protesters’ Constitutional ‘right to education’, which concerned not only the applicants, but also other students generally in other universities in the country—Whilst the applicants’ conduct went beyond the boundary of a peaceful protest, the constitutional context of the issue which lead to the protests had to be taken into account—Issue raised by the protestors, including the applicants, was of genuine constitutional import—Although the applicants were unsuccessful in the courts below, the courts erred in considering the chilling effect the costs order would have on the litigants, in the context of constitutional justice—Applicants were neither frivolous nor vexatious in opposing the University’s application for grant of interdict—Court of first instance erred in not applying the general principle on costs in relation to constitutional litigation and failed to realize that present case did not fall within any of the exceptions to the general principle—Court of first instance did not exercise its discretion judicially in imposing costs on the applicants, therefore the Constitutional Court (present court) was entitled to interfere with the costs award—On a consideration of all relevant circumstances, justice and fairness would best be served if each of the parties were ordered to pay their own costs not only in the Appellate court, but also in the Court of first instance—Constitutional Court directed that each party was to pay its own costs, in the Court of first instance, the Appellate court and the Constitutional Court—Application for leave to appeal was disposed of accordingly. Citation Name: 2016 CLD 353 SECURITIES-AND-EXCHANGE-COMMISSION-OF-PAKISTANBookmark this Case ALPHA INSURANCE COMPANY LIMITED VS Insurance Ordinance 2000–156 , Insurance Ordinance 2000–166 , Insurance Ordinance 2000–59-A , Ss. 59-A, 156 & 166—Insurance of public property—Default in complying with or acting in contravention of Insurance Ordinance, 2000— Company had underwritten risks related to assets owned/managed by Public Sector entities—Said risks fell under the definition of “public property” as envisaged under S.166 of Insurance Ordinance, 2000—Company had also obtained insurance policy for its vehicles from the company itself—Said insurance coverage, did not fall within the definition of “Insurance Contract” given in International Financial Reporting Standard—Company had repeatedly contravened the provisions of S.166 of Insurance Ordinance, 2000, for which the penal action as provided under S.156 of the Ordinance, could be taken—Established default under the relevant provisions of Insurance Ordinance, 2000 had taken place—Representative of the company, who had admitted said default, had shown the intention and commitment of the company to fulfil the statutory requirements as laid down under S.166 of the Insurance Ordinance, 2000—Directors of the company had overlooked and failed to perform their duties with due care and prudence—Directors were supposed to be well aware of their legal obligations in connection with requirement of S.166 of Insurance Ordinance, 2000 and to follow the laws in letter and spirit at any cost— Default of S.166 of Insurance Ordinance, 2000, having been established, penalty as provided under S.156 of Insurance Ordinance, 2000, could be imposed on the company—Commission, instead of imposing the penalty, took a lenient view and condoned the default—Company, its Directors and Chief Executive, were issued stern warning that in case of similar non-compliance in future, a stronger action would be taken. Citation Name: 2016 CLD 204 SECURITIES-AND-EXCHANGE-COMMISSION-OF-PAKISTANBookmark this Case PAK KUWAIT TAKAFUL COMPANY LIMITED VS Companies Ordinance 1984–180 , Companies Ordinance 1984–186 , Ss. 180 & 186— Election, term of office and duties of the Directors—Under provisions of S.180 of the Companies Ordinance, 1984 term of office of Directors of the company, was three years—In the present case, election of Directors was held prior to the expiry of the term of existing Directors, in violation of provisions of S.180 of the Companies Ordinance, 1984—Company had accepted the default— Directors of the company, in addition to the day-to-day running of the company and management of its business, also had some ‘fiduciary’ duties i.e. duties held in trust and some wider duties imposed by statute—Breach of those statutory duties, would usually be a criminal offence, punishable with fine or imprisonment—Directors, were gauged against a higher standard of accountability, which required them to be vigilant and perform their duties with due care– -Directors, in the present case, had overlooked and failed to perform their duties with due care and prudence— Directors were supposed to be well aware of their legal obligations in connection with statutory requirement of S.180 of the Companies Ordinance, 1984—Directors of the company were required to follow the laws in letter and spirit at any cost—Default of S.180 of the Companies Ordinance, 1984, having been established, penalty as provided under S.186 of the Companies Ordinance, 1984 could be imposed on the company—Commission, in exercise of the power conferred under S.186 of the Insurance Ordinance, 1984, instead of imposing the penalty, taking a lenient view condoned the company due to the fact that act of conducting the elections of the Directors was just before its expiry of three days of their terms—Company was issued a stern warning by the Commission that in case of similar non-compliance in future, a stronger action against the company and its Directors would be taken. Citation Name: 2016 SCMR 296 SUPREME-COURT-OF-UKBookmark this Case CAVENDISH SQUARE HOLDING BV VS TALAL EL MAKDESSI Contract–TERM , Penalty clauses–Term , Penalty clauses— Car park—Time limit of 2 hours for free parking—Parking charge for customers overstaying the two hour limit—Notice and signs at entrance of car park mentioning that any customer overstaying the two hour limit would pay a £85 charge—Said charge of £85 was not penal because it was justified by parking company’s legitimate interest in imposing the charge, which went beyond recovery of any loss—Said charge had two main objects; managing the efficient use of the car park, by deterring motorists occupying spaces for long periods, and providing an income stream to enable the parking company to meet the costs of the scheme and make a profit from its services— Both objectives were perfectly reasonable, and the imposition of a charge to deter over stayers was a reasonable mode of achieving them—Charge of £85 was not out of all proportion to parking company’s interest in imposing the charge, and so it was not penal—Lord Hodge: Charge of £85 was not excessive as it was in line with the prevailing authorised practices in the Country—Charge in question was also not unconscionable since motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge. Citation Name: 2016 CLC 1829 PESHAWAR-HIGH-COURTBookmark this Case MEHMOOD KHALID KHAN VS MUHAMMAD IQBAL KHAN 2008 SCMR 942, Civil Procedure Code –Order XVII of C.P.C. Adjournments–3 , Closure of evidence–Term , Specific Relief Act 1877–42 , Suit for declaration–Term , O. XVII, R. 3—Specific Relief Act (I of 1877), S. 42—Suit for declaration—-Closure of evidence—Scope— Statement of plaintiff was recorded and adjournment was sought for cross-examination but Trial Court dismissed the suit straightaway—Validity—Trial Court should have afforded an opportunity for production of evidence by imposing cost on the plaintiff or could close the evidence of plaintiff and direct the defendants to produce evidence—Trial Court was required to give issue-wise findings on the basis of available evidence on record and had no jurisdiction to dismiss the suit straightaway in a slipshod manner—Order XVII, R.3, C.P.C. did not provide that in case evidence was absent on a date then suit was to be decided against the party by way of penalty—Impugned orders passed by both the courts below were set aside and suit was restored—Case was remanded for recording rest of the evidence of plaintiffs without any adjournment—Revision was allowed accordingly. Citation Name: 2016 MLD 1075 Gilgit-Baltistan Chief CourtBookmark this Case MIRZA KHAN VS MEHTAR JAN 2016 M L D 1075, Civil Procedure Code –Order XVII of C.P.C. Adjournments–3 , O. XVII, R.3—Failure of defendants to produce evidence despite availing adjournments—After producing evidence by the plaintiff, case was adjourned for producing evidence of defendants—Defendants, despite availing at least 19 adjournments for producing evidence, failed to produce the same—-Trial Court through impugned order struck off the right of defendants, instead of adjourning the case on payment of costs to the plaintiff—Validity—Trial Court had conducted the trial of the case casually and carelessly with regard to recording of the evidence of the defendant—Trial Court had mostly adjourned the case for the evidence of the defendants without imposing any reasonable costs etc.; and that conduct of the Trial Court encouraged the defendants for obtaining meaningless adjournments— Circumstances in which the defendants did not produce evidence, demanded imposition of heavy costs on them— Appellate Court below did not give full attention to said omissions and mistakes of the Trial Court in connection with recording the defence evidence—Both courts below had committed mistakes/omissions in conducting the case, which were irregularities inviting interference of the Chief Court—Petition was allowed; impugned orders of the courts below, were set aside; and case was remanded to the Trial Court with direction to afford opportunity to the defendants for producing evidence, subject to prior deposit of cost of Rs.15,000 payable to the plaintiff. Citation Name: 2016 CLC 1490 Gilgit-Baltistan Chief CourtBookmark this Case TANZEEM CORPORATION GUPIS/YASIN VS MOMIN SHAH Civil Procedure Code –Order IX of C.P.C. Appearance of Parties and Consequence of Non-Appearance–8 , Civil Procedure Code –Order VII of C.P.C. Plaint–2 , Civil Procedure Code –Order XVII of C.P.C. Adjournments–3 , Closure of evidence–Term , Money suit–Term , O. XVII, R. 3, O. IX, R. 8 & O. VII, R. 2—Money suit—Closure of evidence—Words “proceed to decide forthwith” occurring in O.XVII, R.3, C.P.C.—Scope—Trial Court had failed to afford fair opportunities to the plaintiffs to produce evidence—Only two chances had been given to the plaintiffs to produce evidence—Trial Court instead of making recourse to O.XVII, R.3, C.P.C. should have adjourned the case imposing cost on the plaintiffs— Trial Court was supposed to pass a speaking and well-reasoned order—Material brought on record by the parties should be given due consideration before closing evidence—Trial Court did not go through the pleadings of the parties—Plaintiff who was present before the court should have been asked to come in the witness box to record his own statement and thereafter case should have been adjourned for defendant’s evidence or for hearing argument and then judgment given on each issue—Order XVII, R.3, C.P.C. did not at all provide that in case evidence was not produced on the fixed date the suit would be decided against the defaulting party by way of penalty—Trial Court had dismissed the suit without touching merits of the same—Trial Court had acted under the procedure provided in O.XVII, R.3, C.P.C. but suit had been dismissed adopting the procedure provided in O.IX, R.8, C.P.C—Words “proceed to decide forthwith” in O.XVII, R.3, C.P.C. did not mean to decide the suit forthwith or “dismiss the suit forthwith”—Impugned judgment was not only illegal but was without lawful authority which was set aside—Case was remanded to the Trial Court for decision on merits after recording evidence of both the parties—Appeal was allowed in circumstances. Citation Name: 2015 PLC(CS) 617 ISLAMABADBookmark this Case ABDUL QAYYUM VS CHAIRMAN CAPITAL DEVELOPMENT AUTHORITY (CDA), ISLAMABAD 2006 SCMR 207, 2011 SCMR 1836, 2011 SCMR 408, 2013 SCMR 1707, PLD 1993 SC 341, PLD 2002 SC 1111, PLD 2012 SC 292, PLD 2012 SC 553, PLD 2012 SC 923, Constitution of Pakistan 1973–199 , Constitutional petition–TERM , Art. 199—Constitutional petition—Terms and conditions of service—Adequate remedy, non-availability of— Petitioners were employees of Capital Development Authority and with regard to matters pertaining to terms and conditions of their service, they did not have any remedy before any forum except to invoke Constitutional jurisdiction of High Court—Validity—Constitution unambiguously showed that State, its organs and functionaries, besides owning duty of care towards the employees had a constitutional obligation to provide them with independent and impartial exclusive forum for inexpensive and expeditious justice—Leaving an employee without an adequate remedy was a denial of justice and flagrant violation of constitutional commands imposing mandatory obligations— Petitioners and employees of several other State/government controlled corporations and organizations, no Tribunal or forum had been provided which could meet threshold of right of access to justice, nor was invoking extraordinary jurisdiction of High Court under Art.199 of the Constitution an adequate and proper remedy for enforcement of their rights resting on terms and conditions of service—Individual grievances invariably included disputed questions of fact or enforcement of contractual terms, leaving most of the petitioners without remedy, while many others, due to meager resources were dissuaded from approaching High Court—Unmistakable and manifest conclusion was that employees suffered grave injustice and right to access to justice was denied to them—By keeping employees without remedy or refusal to determine their rights in inexpensive, expeditious manner through independent and impartial tribunals / forums, the employer, in addition to other rights, also violated the principle of legitimate expectation both procedural as well as substantive—Failure in providing forum or Tribunal having judicial powers was breach of the duty of care of employer towards employees and a violation of their fundamental rights—Besides being exposed to claims of damages for breach of duty of care, both Federal Government and respective entities controlled by it might be liable for exemplary special costs for forcing its employees to invoke extraordinary jurisdiction of High Court under Art.199 of the Constitution, which was inadequate remedy for employees in case of their individual grievances relating to terms and conditions of service—High Court directed Federal Government to comply with obligations under the Constitution and to take necessary steps/measures for ensuring ‘inexpensive and expeditious justice’ to employees who fell in categories amenable to jurisdiction of High Court under Art.199 of the Constitution, by proposing to Parliament legislative enactment for establishing an appropriate appellate forum—Petition was disposed of accordingly. Citation Name: 2014 CLD 615 SECURITIES-AND-EXCHANGE-COMMISSION-OF-PAKISTANBookmark this Case TAKAFUL PAKISTAN LIMITED VS Insurance Ordinance 2000–156 , Insurance Ordinance 2000–34 , Insurance Ordinance 2000–46 , Insurance Ordinance 2000–51 , Securities and Exchange Commission of Pakistan (Insurance) Rules 2002–Rule , Ss. 34, 46(1)(b), 51 & 156—Securities and Exchange Commission (Insurance) Rules, 2002, Part B of Annexure II— Accounting Regulations, Reglns. Nos.3(1) & 16(1)(a)— Failure to prepare and deliver to the Commission annual statutory account—Insurance company was required to state its available for sale investment at lower of cost or market value in terms of the provisions of Regln.16(1)(a) of Accounting Regulations and S.34 of Insurance Ordinance, 2000 which had been violated as the company had stated; its available for sale investments at the prevailing market value, on the date to which the statement of assets for solvency was made up— Default of S.34 of Insurance Ordinance, 2000, read with Regln.16(1)(a) of the Accounting Regulations, having been established penalty as provided under S.156 of Insurance Ordinance, 2000 could be imposed on the company or its Directors—Commissioner, instead of imposing penalty, taking lenient view condoned the company due to the fact that the effect of each contravention had not grossly plunged the company into insolvency—Company was issued a stern warning that in case of similar non-compliance in future, a stronger action would be taken against the company. Citation Name: 2014 SCMR 45 SUPREME-COURTBookmark this Case Malik UMAR ASLAM VS Mrs. SUMAIRA MALIK 2001 SCMR 1001, PLD 2004 SC 452, PLD 2007 SC 362, PLD 2010 SC 759, PLD 2010 SC 943, PLD 2012 SC 681, Adjudication of Election petitions–Term , Election Tribunal–TERM , Representation of the People Act 1976–67 , Ss. 67(1A) & 67(1)—Interpretation of S.67, Representation of the People Act, 1976—Election Tribunal— Adjudication of Election petitions—-Expeditious disposal of election petitions—Mandatory nature of S.67(1A) of the Representation of the People Act, 1976—Timely decisions were not being taken by the Election Tribunals; because, inter alia, Election Tribunals were ordinarily presided by Judges of the High Courts who remain unable to conclude matters expeditiously on account of their other judicial commitments, or because of delaying tactics employed by respondents who, having been declared as returned candidates, enjoyed the status of Members of the National or Provincial Assemblies—Such delays in disposal of election petitions before the Tribunal in fact deprived a large number of electors of the constituency to have their due representation in the elected Houses, particularly in those matters where a whole term had been enjoyed by a winning candidate, who may later turn out to be disqualified on any count—Such delay caused the people of constituency to be represented by a person who was not duly elected, which clearly negated the principle of a democratic system of Government—Wisdom existed in fixing the period for decision of such cases, namely, that there should be no uncertainty for the persons, who had been elected or who had challenged the election before the Tribunal or the Court and after expeditious disposal of the same and such persons should consume all their energies for the welfare of the people whom they represent, instead of wasting time in pursuing such matters before the Courts—Mandatory requirement of the Representation of the People Act, 1976 was that the Election Tribunal shall proceed with the trial of the election petition on a day-to-day basis and the decision thereof shall be taken within four months from its receipt as provided under S.67(1A) of the Act—Legal duty had, therefore, been cast upon the Election Tribunal to reach a conclusion expeditiously by following stringent/coercive measures of imposing a cost and assigning the reasons if cases were adjourned by the Tribunal and to such end, the Tribunal was even empowered to declare that a returned candidate who was delaying the proceedings of the Tribunal; ceased to be a member of the Parliament/Provincial Assembly, either till the conclusion of the proceedings or for such period as the Tribunal may direct—Provisions of S.67(1A) of the Representation of the People Act, 1976 were therefore mandatory in nature and entailed penal consequences for non-compliance. Citation Name: 2014 PLD 173 QUETTA-HIGH-COURT-BALOCHISTANBookmark this Case BOLAN STEEL INDUSTRIES (PVT) LTD. VS WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA) 2013 CLC 141, PLD 2013 Lah. 182, Constitutional petition–TERM , Legality and constitutionality–Term , Regulation of Generation Transmission and Distribution of Electric Power Act 1997–31 , S. 31—S.R.O. 233(1)/2011 dated 15-3-2011 issued by Government of Pakistan—S.R.O. 360(1)/2011 dated 6-5-2011 issued by Government of Pakistan—S.R.O. 698(1)/2013 dated 5-8-2013 issued by Government of Pakistan—S.R.O. 911(1)/2013 dated 11-10-2013 issued by Government of Pakistan—Constitution of Pakistan, Art. 199—Constitutional petition—Electricity tariff—“Equalization surcharge”—Legality and constitutionality—Petitioners had challenged the imposition of “equalization surcharge” in their electricity bills by the Federal Government—Held, “equalization surcharge” attempted to reduce the effect of the financial impact of the subsidy granted (on electricity) by the Federal Government—Federal Government first granted subsidy and then ‘sought to reduce the financial impact thereof by imposing the “equalization surcharge”, therefore, it would not be correct to categorize the equalization surcharge as an additional imposition (in the electricity bills)—By imposition of “equalization surcharge”, Electric Supply Company did not seek to recover anything beyond the cost of electricity consumed by the petitioners/consumers–Equalization surcharge was neither illegal nor unconstitutional—High Court directed that Electric Supply Company may recover the “equalization surcharge” from consumers in twelve equal monthly installments-Constitutional petition was dismissed accordingly. Citation Name: 2011 PLD 201 KARACHI-HIGH-COURT-SINDHBookmark this Case NOOR MUHAMMAD KAKA VS THE STATE through Director General, NAB, Karachi Criminal Procedure Code (Cr.P.C) 1898–244 , Criminal Procedure Code (Cr.P.C) 1898–435 , Criminal Procedure Code (Cr.P.C) 1898–544 , National Accountability Bureau Ordinance 1999–18 , S. 18-Criminal Procedure Code (V of 1898), Ss.244, 544 & 435–Constitution of Pakistan, Art.10-ACognizance of offence on reference—Imposition of expenses for summoning of prosecution witness–Fair trial– Applicant had called in question order passed by Accountability Court whereby court imposed expenses of Rs.20,000 for summoning prosecution witness–Validity–Burdening accused with expenses, could lead to defeat the ends of justice for accused who could be incapable of paying or unwilling to pay—In either case result would be that the witness would not be called and accused would be prejudiced to his trial–Such did not appear to be the policy of law which guaranteed to an accused a right of fair trial which was an inviolable right of accused as envisaged under Art.10-A of the Constitution—Trial Court had travelled beyond its jurisdiction by imposing costs of Rs.20,000 for further cross-examination of witness–Impugned order. was set aside to the extent of imposing of expenses of Rs.20,000 to the applicant-Trial Court could direct the NAB authorities to pay the expenses of witness, if it would think fit in the circumstances of the case. Citation Name: 2010 CLD 1096 SECURITIES-AND-EXCHANGE-COMMISSION-OF-PAKISTANBookmark this Case DADABHOY CEMENT INDUSTRIES LTD. VS Companies Ordinance 1984–208 , Companies Ordinance 1984–476 , Ss. 208 & 476–Making investment in associated companies and undertakings unauthorizedly—Imposition of penalty- –Examination of annual audited accounts of the company for relevant year had revealed certain transactions made by the company with associated company for which shareholders’ approval in terms of S.208 of the Companies Ordinance, 1984 was not obtained—Circumstances had shown that the company was acting as a financer of Associated Company at the cost of its shareholders and had deprived them of the return that could have been earned by investing those amount in any other mode—Directors of the company, in circumstances, had violated the provisions of S.208 of the Companies Ordinance, 1984 and were liable for penalties as prescribed under section 208—Default under S.208 of the Companies Ordinance, 1984 though was established, however, considering the circumstances of the company and significance of the associated company, lenient view was taken and instead of imposing maximum penalty of Rs.10 million on each Director, fine ‘of Rs.100,000 was imposed on each of the seven directors. Citation Name: 2010 CLD 286 SECURITIES-AND-EXCHANGE-COMMISSION-OF-PAKISTANBookmark this Case RAZI KULI KHAN KHATTAK VS EXECUTIVE DIRECTOR (ENFORCEMEN) Companies Ordinance 1984–196 , Companies Ordinance 1984–208 , Securities and Exchange Commission of Pakistan Act 1997–33 , Ss.196(4) & 208—Securities and Exchange Commission of Pakistan Act (XLII of 1997), S.33—Investment in associated company and undertakings in violation of law–Imposition of penalty—Appeal to Appellate Bench of Commission-Management of the appellant-company subscribed 302,100 right shares of one of its associated company and paid consideration thereof–On perusal of the company’s record, it was observed that no special resolution was passed in accordance with requirements of S.208 of the Companies Ordinance, 1984—After subscribing the rights of associated company, appellant/company disposed, of the shares to another associated company—It was observed that the shares of associated company were sold by the appellant’s company at a lower price than the market price at that time—Executive Director (Enforcement) vide impugned order imposed a collective penalty of Rs.5,00,000 on Directors for violation of S.196 of the Companies Ordinance, 1984 and collective penalty of Rs.1,000,000 on Directors for violation of S.208 of the Ordinance—Directors of the appellant’s company who had fiduciary relationship with the company, should have acted in the best interest of the company, but instead they acted collusively in their personal interest and sold the shares of the company at minimum price and earned profit of Rs.5.520 million at the cost of the shareholders of the company—Appellants had failed to show that the collection period allowed to associated companies was not considerably higher than that of other customers as stated in the impugned order–Preferential treatment to the associated companies was not a case of normal trade credit— Executive Director (Enforcement), in circumstances, had rightly proceeded against the appellants by imposing fine and directing the appellants to make good the loss of Rs.5.520 millions—Executive Director had already taken a lenient view by imposing fine of Rs.200,000 for violation of S.208 of the Companies Ordinance, 1984 when the maximum fine could have been Rs.10 million on each director—Impugned order could not be interfered with in appeal. Citation Name: 2010 PLD 182 KARACHI-HIGH-COURT-SINDHBookmark this Case KAWAS B. AGA VS CITY DISTRICT GOVERNMENT, KARACHI (CDGK) through Nazim-e-Ala 1993 SCMR 639, 1997 SCMR 1020, 1998 MLD 53, 2002 CLC 59, Code of Civil Procedure 1908–35-A , Code of Civil Procedure 1908–35 , Constitution of Pakistan 1973–199 , Constitutional petition–TERM , Art. 199—Civil Procedure Code (V of 1908), Ss.35 & 35-A—Constitutional petition—costs, imposing of—Public department—Petitioners were aggrieved of inaction of registration authorities who failed to execute and register renewal lease in respect of properties in question—Petitioners also sought imposition of costs against the authorities for their such failure—Validity—High Court, in its Constitutional jurisdiction, could award compensatory cost as well as exemplary cost / penal cost in appropriate cases—Such costs could be recovered from State / departments instead of delinquent public officer, as the State / department might recover the same from delinquent officer— Exemplary or penal costs were imposed on delinquent public functionary and was required to be recovered from such person—Petitioners were entitled for claim of costs as well as compensatory costs, therefore, High Court directed the department concerned to deposit actual costs of petition and also compensatory costs—High Court further directed the department concerned to initiate departmental inquiry against delinquent officers and if they were found guilty of such misconduct, then besides any disciplinary action deemed necessary, costs so imposed would be recovered from them– -Petition was allowed accordingly. Citation Name: 2009 CLD 90 SECURITIES-AND-EXCHANGE-COMMISSION-OF-PAKISTANBookmark this Case FLYING CEMENT COMPANY LTD VS Companies (Audit of Cost Accounts) Rules 1998–RULE , Companies Ordinance 1984–258 , Companies Ordinance 1984–259 , Companies Ordinance 1984–476 , Ss. 258, 259 & 476—Companies (Audit of cost Accounts) Rules, 1998, Rr.3, 4 & 5–Appointment of cost auditor— Application for—Delay in filing application—Imposition of penalty—In terms of provisions of Rule 3(2) of Companies (Audit of cost Accounts) Rules, 1998, the Directors of the company were required to appoint cost auditor for the relevant year within sixty days of the close of financial year of the company, but company filed application in that respect with a delay of 48 days—In the terms of R.4(3) of Companies (Audit of cost Accounts) Rules, 1998, report was required to be submitted to the Commission within sixty days of the appointment of cost auditor, but same was received with a delay of 177 days—Authorized representative of the Chief Executive and Directors of the company, admitted the default and stated that it was their first year of listing and the company had to comply with additional requirements of law and that the management of the affairs of the company, being new, took additional time and resultantly cost audit was delayed—Authorized representative regretted the delay and assured to comply with the provisions of the Rules, within stipulated time in future—Considering the facts narrated by authorized representative of the company, instead of imposing maximum penalty of Rs.26,500 on each of the Directors for said default, penalty of Rs.4,000 was imposed on each Director and Chief Executive. Citation Name: 2009 CLD 56 SECURITIES-AND-EXCHANGE-COMMISSION-OF-PAKISTANBookmark this Case BESTWAY CEMENT LIMITED VS 2003 CLD 131, Companies Ordinance 1984–160 , Companies Ordinance 1984–208 , Companies Ordinance 1984–476 , Companies Ordinance 1984–506 , Ss. 160, 208, 476 & 506—Purchasing shares of associated company in contravention of provisions of law— Imposition of penalty—Examination of the annual audited accounts of the company for the relevant year had revealed that Company had purchased 15,193 shares of associated company without approval of shareholders—Company also advanced an amount of Rs.209 million to said associated company against issue of right shares subsequent approval of which was obtained from the shareholders—Said advance was made in contravention of S.208 of the Companies Ordinance, 1984. which required that the investment in associated company should be made under authority of a special resolution, but no copy of said special resolution was filed—Contention that purchase of shares of associated company in small numbers would not attract provisions of S.208 of the Companies Ordinance, 1984, was not cogent—Law did not ‘allow any such exception—Investment in associates, irrespective of the amount of investment could be made, but it should be made with the approval of the shareholders under S.208 of the Companies Ordinance, 1984–Provision of Ss.208, 160 & 506 of the Companies Ordinance, 1984 had been violated in the case; however, considering the amount of equity investment and the fact that shares against the advance had already been issued, taking a lenient view, instead of imposing maximum penalty under S.208 of the Companies Ordinance, 1984, a fine of Rs. 20,000 on each Director and Chief Executive of the company was imposed and to recover interest on advance of Rs.209 million at the rate not less than the weighted average cost of the company. Citation Name: 2009 YLR 2144 KARACHI-HIGH-COURT-SINDHBookmark this Case FAKIR MUHAMMAD VS MUHAMMAD YOUSIF MEMON Civil Procedure Code –Order XXXIX of C.P.C. Temporary Injunctions and Interlocutory Orders–2 , Civil Procedure Code –Order XXXIX of C.P.C. Temporary Injunctions and Interlocutory Orders–3 , Criminal Procedure Code (Cr.P.C) 1898–561-A , Specific Relief Act 1877–42 , Specific Relief Act 1877–54 , S.561-A—Specific Relief Act (I of 1877), Ss.42 & 54—Civil Procedure Code (V of 1908), O.XXXIX, Rr.2 & 3— Suit for declaration and injunction—Grant of status quo—Contempt application against violation of status quo— Application for setting aside orders—Trial Court, in suit by the plaintiff, ordered status quo to be maintained by the parties—After about one and half years from the date of passing the status quo order, plaintiff filed contempt application under O.XXXIX, Rr.2 & 3, C.P.C., which could not be finally decided when the suit was decreed by the Trial Court in favour of the plaintiff—Appellate Court however set aside judgment and decree passed by Trial Court in appeal and suit was finally disposed of by the Appellate Court—Revision filed by the plaintiff against judgment and decree passed by the Appellate Court was dismissed by the High Court imposing heavy costs on the plaintiff— Suit filed by the plaintiff was finally disposed of by the court—Validity—All the interim orders passed during the pendency of the suit would merge in the final order—Status quo, if any, granted by the Trial Court also merged in the final judgment and decree—Contempt proceedings were criminal in nature because conviction and sentence was provided under O.XXXIX, Rr.2 & 3, C.P.C.—Wherever physical conviction was provided in a provision of law or statute that proceedings would be deemed as criminal or semi-criminal in nature and the provisions of Criminal Procedure Code could also be applied to those criminal or semi criminal proceedings—Application filed under S.561- A, Cr.P.C. before High Court, could not be treated incompetent—Even otherwise, High Court had ample powers to convert the application under S. 561-A, Cr.P.C. into a constitutional petition, if the propriety would so demand—Trial Court was not competent to take the cognizance of the matter after final adjudication of the case between the parties and alleged status quo merged in the final judgment and decree—At the time of taking cognizance by the Trial Court, status quo order was non-existent in the eyes of law—Application filed under. S.561-A, Cr.P.C. was allowed and impugned orders were set aside. Citation Name: 2008 CLD 786 SECURITIES-AND-EXCHANGE-COMMISSION-OF-PAKISTANBookmark this Case HASEEB WAQAS SUGAR MILLS LIMITED VS Companies Ordinance 1984–208 , Companies Ordinance 1984–476 , Ss. 208 & 476—Making investments in associated companies and undertaking without authorization of shareholders– -Imposition of penalty—Director of the company had invested funds in associated companies without authorization of the shareholders—Violation of S.208 of the Companies Ordinance, 1984 was established and all Directors were responsible for the said violation—Directors owe fiduciary duties to the company they serve and its shareholders—Directors must discharge their statutory obligations in good faith with fairness and honesty—Directors had failed to exercise reasonable care to see that mandatory provisions of law were being violated and had not. respected the mandate of the shareholders—Directors, in circumstances had breached their fiduciary duties which they owed to the company and its shareholders—Company, in fact had been acting as a financier by providing funds to associated concerns to fulfil their financial needs at the cost of the company—Violation of S.208 of the Companies Ordinance, 1984 was established and all Directors were held responsible for the said violation; however, instead of imposing maximum penalty of ten million rupees on each of the Directors as prescribed by subsection (3) of S.208 of Companies Ordinance, 1984 fine of rupees five lac was imposed on one Director who had been acting in deviation of the policies and procedure of the company. Citation Name: 2008 CLC 1588 LAHORE-HIGH-COURT-LAHOREBookmark this Case MUHAMMAD YAQOOB VS GHULAM MUHAMMAD Code of Civil Procedure 1908–12 , Specific Relief Act 1877–9 , S. 9—Civil Procedure Code (V of 1908), S.12(2)—Suit for possession—Predecessor in interest of respondent who acquired interest and title in the disputed land under pre-emption decree, having died, was succeeded by his legal heirs/respondents, who were put in physical possession of the suit-land through execution proceedings—Petitioners, who allegedly purchased an undivided share in the disputed joint Khewat, dispossessed the pre-emptors/respondents from land in dispute–Suit for recovery of possession filed by the respondents under S.9 of the Specific Relief Act, 1877, was decreed in favour of respondents/pre-emptors up to the Supreme Court—After final termination of the first round of litigation up to the apex Court, petitioners made an application for temporary injunction in the main petition under S.12(2), C.P.C., which was dismissed by the Trial Court and Appellate Court below—Validity—After having lost case and cause up to the apex Court, there was no occasion for the petitioners to re-agitate the same matter before the civil court—Petitioners could not be allowed to nullify the judgments passed in the first round of litigation up to the apex Court–Decree for restoration of possession under S.9 of the Specific Relief Act, 1877, in favour of respondents having attained finality, respondents were entitled for restoration of possession of the disputed land and the petitioners could not retain their possession, which had been adjudged and determined as illegal and unauthorized—Petitioners had adopted a device to nullify the judgments of the court and that of the apex Court passed in favour of the respondents in the first round of the litigation—Said misconduct of the petitioners, must be deprecated and dealt with iron hands—Revision was dismissed imposing special costs of Rs. twenty-five thousands upon the petitioners. Citation Name: 2007 CLD 1060 SECURITIES-AND-EXCHANGE-COMMISSION-OF-PAKISTANBookmark this Case Messrs CRESCENT STEEL AND ALLIED PRODUCT LIMITED: In the matter of VS Messrs CRESCENT STEEL AND ALLIED PRODUCT LIMITED: In the matter of Companies Ordinance 1984–208 , Companies Ordinance 1984–476 , —Ss.208 & 476—Investments made by the company in its associated company and undertaking without approval of its shareholders—Imposition of penalty—Investments of the company made in its associated undertakings being not in accordance with the resolutions approved by shareholders of the company; it was considered necessary to ascertain the extent of violation committee by the company and loss sustained in consequence of those investments for which necessary proceedings were initiated under S.208 of Companies Ordinance, 1984—Show cause notice was issued to the company and its Directors highlighting the prima facie violation of S.208 of the Companies Ordinance, 1984—Corporate advisor of the company admitted the default in respect of investment, but submitted that interest of. the shareholders of the company had not been damaged and that default was not wilful or intentional—Validity— Amount advanced by the company was loan and that fact was confirmed by the Auditor of the undertaking to which loan was advanced—Advance given by the company to the associated company or undertaking was not in accordance with the approval given by the shareholders—Directors owed fiduciary duties to the company they served and its shareholders—Directors must discharge their statutory obligations in good faith with fairness and honesty—Directors had failed to exercise reasonable care to see that mandatory provisions of law were being violated and had not respected the mandate of shareholders—Directors, in circumstances had breached their fiduciary duties which they owed to the company and its shareholders by making unauthorized transactions out of the funds of the company— Company, in fact had been acting as financier by providing to the associated concerns to fulfil their financial requirements at the cost of the company—Chief Executive and the Directors had been established to have violated provisions of S.208 of the Companies Ordinance, 1984 and had note exercised due care while providing advances to associated concerns—Chief Executive and Directors were liable to be penalized; however, instead of imposing maximum penalty of Rs.1,000,000 by taking lenient view, fine of Rs.1,00,000 was imposed on Chief Executive and each Director. Citation Name: 2007 SCMR 140 SUPREME-COURTBookmark this Case MUHAMMAD AKBAR through L.Rs. VS Major TAJJUDDIN through L.Rs. Civil Procedure Code –Order IX of C.P.C. Appearance of Parties and Consequence of Non-Appearance–13 , Code of Civil Procedure 1908–144 , Constitution of Pakistan 1973–185 , Order XXVIII of Supreme Court Rules (Costs)–2 , —S. 144 & O.IX, R.13—Supreme Court Rules, 1980, O.XXVIII, R.3—Constitution of Pakistan (1973), Art. l85(3)— Restitution—Ex parte decree, setting aside of—Vexatious litigation—imposing of costs—Ex parte decree was passed in favour of plaintiffs, which decree had been set aside by High Court—During pendency of proceedings for setting aside ex parte decree, plaintiffs got executed the decree—To resist implementation of order passed by High Court, plaintiffs sought temporary injunction against restitution of possession, which relief had been declined concurrently by three Courts below—Validity—Plaintiffs took over the possession of suit-land in December, 1981, i.e. about quarter of a century age—In spite of the fact, that the ex parte decree under which possession was taken, was set aside almost seventeen years age and three Courts had concurrently found that plaintiffs were not entitled to retain the possession, they were still not satisfied and had approached Supreme Court assailing the concurrent findings— Plaintiffs could not point out any infirmity in the concurrent conclusions reached by three Courts—Supreme Court declined to interfere in the concurrent orders passed by three Courts and directed plaintiffs to pay Rs.20,000 as costs in terms of O.XXVIII, R.3 of Supreme Court Rules, 1980, as the application was frivolous and vexatious filed only to prolong the agony of defendants and time of Supreme Court was wasted—Leave to appeal was refused. Citation Name: 2007 PTD 1195 SUPREME-COURTBookmark this Case PROVINCE OF BALOCHISTAN through Secretary Excise & Taxation Department, Quetta VS MURREE BREWERY COMPANY LTD. through Secretary 1985 SCMR 1226, 1993 SCMR 639, 1997 SCMR 1020, 1998 SCMR 2386, 2001 SCMR 4, 2006 SCMR 1834, Balochistan Excise Regulation 1915–RGLN. , Constitution of Pakistan 1973–199 , Supreme Court Rules 1980– RULE , —S.62—British Balochistan Foreign Liquor and Country Spirit Rules, 1947, R.4 (4) [as amended by Notification No. SO (E&T) 234-Tax/99/769-78, dated 20-8-1999]—Supreme Court Rules, 1980, O.XXVIII, R.3— Constitution of Pakistan (1973), Art. 199 (1)—Constitutional petition before High Court—Maintainability—Locus standi—imposing special costs—Provincial Government imposed import fee on all supplies of liquor to Balochistan from other Provinces—Respondent-company based in an other Province was aggrieved of the notification on the ground that Notification No. SO (E&T) 234-Tax/99/769-78, dated 20-8-1999, issued by Balochistan Government had placed the respondent at disadvantageous position as compared to companies situated in Balochistan—High Court, in exercise of Constitutional jurisdiction allowed the petition filed by respondent and declared the notification as without lawful authority—Plea raised by authorities was that respondent was not an aggrieved person under Art. 199 (1) of the Constitution hence had no locus standi to file the petition—Validity—Respondent failed to show that it was an aggrieved party as no fee had been imposed on it and it had never paid the same—Respondent-company’s case was not that any of the licensees had ever complained of depreciation of sale of its products in market because of imposition and consequential increase in prices or any of them had ever refused to take supply of its products—Respondent could not be allowed to plead case of third party (the licensee) which was liable to pay duty/fee and which party was not before the Court–Only contention of respondent that its products would not be competitive with local products was a far-fetched idea to consider it as an aggrieved party, on such a speculative and imaginary consideration—Respondent-company dragged the authorities unnecessarily into frivolous and vexatious litigation and such stand was still asserted on behalf of respondent even before Supreme Court—By defending such baseless proceedings, respondent-company had wasted precious time of courts meant for grant of relief to genuine litigants and public—Respondent was liable to pay special costs for such frivolous litigation as either had been awarded by Supreme Court under its inherent powers while exercising Constitutional jurisdiction and also under O. XXVIII, R. 3 of Supreme Court Rules, 1980, or had approved it (special costs) awarded by High Court under similar inherent powers, while exercising Constitutional jurisdiction—Supreme Court set aside the judgment passed by High Court with special costs in a sum of Rs. 500,000 awarded to respondent—Appeal was allowed. Citation Name: 2007 PLD 386 SUPREME-COURTBookmark this Case PROVINCE OF BALOCHISTAN through Secretary Excise and Taxation Department, Civil Secretariat, Quetta and 2 others VS MURREE BREWERY COMPANY LTD. through Secretary 1985 SCMR 1226, 1993 SCMR 639, 1997 SCMR 1020, 1998 SCMR 2386, 2001 SCMR 4, 2006 SCMR 1834, Balochistan Excise Regulation 1915–RGLN. , Constitution of Pakistan 1973–199 , Order XXVIII of Supreme Court Rules (Costs)–1 , —S. 62—British Balochistan Foreign Liquor and Country Spirit Rules, 1947, R.4 (4) [as amended by Notification No. SO (E&T) 234-Tax/99/769-78, dated 20-8-1999]—Supreme Court Rules, 1980, O.XXVIII, R.3—- Constitution of Pakistan (1973), Art. 199 (1)—Constitutional petition before High Court—-Maintainability—Locus standi—imposing special costs—Provincial Government imposed import fee on all supplies of liquor to Balochistan from other Provinces—Respondent company based in another Province was aggrieved of’ the notification on the ground that Notification No. SO (E&T)234-Tax/99/769-78, dated 20-8-1999, issued by Balochistan Government had placed the respondent at disadvantageous position as compared to companies situated in Balochistan—High Court, in exercise of Constitutional jurisdiction allowed the petition filed by respondent and declared the notification as without lawful authority–.-Plea raised by authorities was that respondent was not an aggrieved person under Art. 199 (1) of the Constitution hence had no locus standi to file the petition—Validity—Respondent failed to show that it was an aggrieved party as no fee had been imposed on it and it had never paid the same—Respondent company’s case was not that any of the licensees had ever complained of depreciation of sale of its products in market because of imposition and consequential increase in prices or any of them had ever refused to take supply of its products—Respondent could not be allowed to plead case of third party (the licensee) which was liable to pay duty/fee and which party was not before the court—Only contention of respondent that its products would not be competitive with local products was a far-fetched idea to consider it as an aggrieved party on such a speculative, and imaginary consideration-Respondent company dragged the authorities unnecessarily into frivolous and vexatious litigation and such stand was still asserted on behalf of respondent even before Supreme Court—By defending such baseless proceedings, respondent company had wasted precious time of courts meant for grant of relief to genuine litigants and public—Respondent was liable to pay special costs for such frivolous litigation as either had been awarded by Supreme Court under its inherent powers while exercising Constitutional jurisdiction and also under O.XXVIII, R.3 of Supreme Court Rules, 1980, or had approved it (special costs) awarded by High Court under similar inherent powers, while exercising Constitutional jurisdiction—Supreme Court set aside the judgment passed by High Court with special costs in a sum of Rs.500,000 awarded to respondent—Appeal was allowed. Citation Name: 2006 CLD 1055 SECURITIES-AND-EXCHANGE-COMMISSION-OF-PAKISTANBookmark this Case In the matter of: Messrs NOON TEXTILE MILLS LIMITED VS In the matter of: Messrs NOON TEXTILE MILLS LIMITED Companies Ordinance 1984–208 , Companies Ordinance 1984–472 , —Ss. 208 & 472—Making unauthorized investment in associated undertakings by the company without obtaining approval of its shareholders—Imposition of fine by the Commission—Examination of audited accounts of company had revealed that Rs.13.757 millions were shown as due from associated undertakings and said amount had been outstanding since long—Said investment was made by the company without obtaining approval of its shareholders— No resolution was ever passed by the company under provisions of S.208 of Companies Ordinance, 1984—Company could not provide loans to its associated company without any return thereon—Provisions of Clause (b) of proviso to subsection (1) of S.208 of Companies Ordinance, 1984, were mandatory which required that return on loans would not be less than the borrowing cost of the company—As the company had no loans, it was wrongly presumed that company could provide loans without any return thereon to its associated company—Provision of loans without any return thereon, had indicated that Directors of company had acted in the interest of associated companies—Case was one where Directors holding interest in more than one company had tried to pass on the benefits to one company at the cost of shareholders . of other company—Chief Executive and the Directors, therefore, had violated provisions of 5.208 of Companies Ordinance, 1984 and had not exercised due care while providing advances to associated concerns—Directors of the company, however had admitted default and were in a process of rectifying said default by recovering the balance due from its associated companies—Commission, in circumstances, instead of imposing maximum penalty as prescribed by subsection (3) of S.208 of Companies Ordinance, 1984, imposed a fine of Rs.100,000 on the Chief Executive, accordingly. Citation Name: 2005 SCMR 348 SUPREME-COURTBookmark this Case SHTAMAND VS ZAHIR SHAH Civil Procedure Code –Order XLI of C.P.C. Appeals from Original Decrees–27 , Constitution of Pakistan 1973–185 , –O. XLI, R.27-Constitution of Pakistan (1973), Art.185(3)–Additional evidence—Principle—Inordinate delay in filing application for additional evidence—Filling up the lacunas in evidence—Suit was filed on 6.6.1994, and after giving proper opportunity of hearing to plaintiffs and to lead evidence, the suit was dismissed by Trial Court–During pendency of appeal before Appellate Court, the plaintiffs filed application for additional evidence—Document intended to be produced as additional evidence was a registered sale-deed—Appellate Court dismissed the application and revision against the order was also dismissed by High Court—Plea raised by the plaintiffs was that the delay per se could not be considered as a convincing ground for rejection of application moved for additional evidence— Validity—Plaintiffs woke up from a deep slumber after nine years and moved application for additional evidence— Only answer given by the plaintiffs to the delayed filing of the application was that same could have been accepted by imposing cost—Judgment of Trial Court was indicative of the fact that the sale-deed intended to be produced as additional evidence had been taken into consideration and was discarded for the reason that it had no nexus with the property in-question, therefore, sale-deed whether registered or otherwise had no bearing on the merits of the case– Plaintiffs wanted to fill in the gaps and lacunas at appellate stage which could not have been done by invocation of the provisions as contained in O.XLI, R.27 C.P.C.—Application for additional evidence could not be allowed on flimsy grounds and the Courts below were justified in refusing to allow production of additional evidence at appellate stage in absence of any reasonable justification which was lacking in the case–No illegality, perversity or infirmity could be pointed out warranting interference in the order being well based—Leave to appeal was refused. Citation Name: 2005 PLC(CS) 4 LAHORE-HIGH-COURT-LAHOREBookmark this Case ZAFAR MAHMOOD MALIK VS WATER MANAGEMENT SPECIALIST and 5 others Civil Services–TERM , Constitution of Pakistan 1973–199 , Constitution of Pakistan 1973–9 , —–Arts. 199 & 9—Civil service—Stoppage of salary on allegation of inefficiency without initiating departmental inquiry against civil servant—Validity—Respondent Officer was neither competent authority nor had power to direct stoppage of salary—Main source of livelihood of a civil servant was his salary, without which he could not sustain his family needs—Such illegal and unlawful action of respondent Officer was a classical case of abuse and misuse of authority and in breach of fundamental right/life of civil servant as enshrined be the Constitution—High Court set aside impugned order being void ab initio and directed immediate payment of salary to civil servant while imposing costs of Rs.25,000 upon respondent Officer to be recoverable from his personal pocket as arrears of land revenue. Citation Name: 2004 CLC 365 LAHORE-HIGH-COURT-LAHOREBookmark this Case FAZAL KARIM VS FATEH BEGUM 1983 SCMR 869, 1984 CLC 620, 1991 CLC 149, PLD 1970 Lah. 371, Civil Procedure Code –Order XLIII of C.P.C. Appeals from Orders–1 , Civil Procedure Code –Order XXXIX of C.P.C. Temporary Injunctions and Interlocutory Orders–1 , Civil Procedure Code –Order XXXIX of C.P.C. Temporary Injunctions and Interlocutory Orders–2 , —-O. XXXIX, Rr. 1, 2(3) & O.XLIII, R.1(2)—Temporary injunction, grant of—Violation—Application by plaintiffs seeking temporary injunction pending their suit was disposed of restraining the defendant from alienating suit property .but allowing him to complete his construction by erecting lintel at his own cost and risk—Plaintiffs aggrieved of the order of Trial Court; filed appeal before Appellate Court which on the same day, suspended the operation of order passed by Trial Court—Pending appeal, plaintiffs filed application under O.XXXIX, R.2(3), C.P.C. for initiation of proceedings of disobedience of order passed by Trial Court against the defendant on the ground that he being aware of suspension order passed by Appellate Court intentionally completed his construction work and thus had violated order exposing himself to penal action—Defendant denied the allegation of plaintiffs—Validity– Appellate Court by its order having suspended order passed by Trial Court, no prohibitory order was in the field– Appellate Court having not restrained defendant from raising any construction over the suit property, no question of proceedings against the defendant under provisions of O.XXXIX, R.2(3), C.P.C, would arise—Plaintiff could not say that by suspension of order of Trial Court by the Appellate Court .interim order restraining defendant from raising construction had revived—In absence of any binding order, proceedings under O. XXXIX, R. 2(3), C.P.C. against defendant were not warranted —Statu quo order would become operative, the moment it was passed whereas other injunctive orders would become effective from the time said orders were served on the parties to whom those were directed—Suspension order would take effect from the date , of its service of person to whom it was directed—Besides there was no binding injunctive order restraining the defendant from carrying on with construction work since suspension order passed by the Appellate Court was served on plaintiff three days after its passing whereas lintel by defendant was completed by the defendant before one day of service of said suspension order—Defendant, in circumstances, had not violated the order of Appellate Court—Proceedings under O.XXXIX, R.2(3), C.P.C. were not warranted and order directing demolition of construction and imposing fine on defendant was not sustainable at law. Citation Name: 2003 YLR 3066 PESHAWAR-HIGH-COURTBookmark this Case MUHAMMAD YAR VS MUHAMMAD TAHIR Code of Civil Procedure 1908–35-A , Specific Relief Act 1877–12 , —-S. 35-A—Specific Relief Act (I of 1877), S.12—Suit for specific performance of agreement—-Special costs, awarding of—Suit having been decreed alongwith special costs, defendant challenged the order contending that special costs awarded under S.35-A, C.P.C. was illegal and without jurisdiction because said provision of law had not been extended to the area in question i. e. Provincially Administered Tribal Areas–Contention was repelled— Provisions of S.35-A, C. P. C. first were inserted in C. P. C. through S.2 of Civil Procedure Code (Amendment) Act, 1922 wherein an option was given to Provinces for enforcement of said provisions of law within their areas on unappointed date; thereafter through North West Frontier Province (Enforcement of Certain Provisions of Law Act (II of 1989), S.35-A, C.P.C. was enforced in Province of N. -W F. P. on 25th May, 1989 and later on through Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation (II of 1994) said provision was extended to the Provincially Administered Tribal Areas—Suit having been instituted on 26-2-1998, S.35-A, C. P. C. was applicable and was operative in the Provincially Administered Tribal Areas—Courts, in circumstances, had committed no legal error in imposing special costs under S.35-A, C. P. C. Citation Name: 2003 YLR 3066 PESHAWAR-HIGH-COURTBookmark this Case MUHAMMAD YAR VS MUHAMMAD TAHIR Code of Civil Procedure 1908–35-A , Specific Relief Act 1877–12 , —-S. 35-A—Specific Relief Act (I of 1877), S.12—Suit for specific performance of agreement—-Special costs, awarding of—Suit having been decreed alongwith special costs, defendant challenged the order contending that special costs awarded under S.35-A, C.P.C. was illegal and without jurisdiction because said provision of law had not been extended to the area in question i. e. Provincially Administered Tribal Areas–Contention was repelled— Provisions of S.35-A, C. P. C. first were inserted in C. P. C. through S.2 of Civil Procedure Code (Amendment) Act, 1922 wherein an option was given to Provinces for enforcement of said provisions of law within their areas on unappointed date; thereafter through North West Frontier Province (Enforcement of Certain Provisions of Law Act (II of 1989), S.35-A, C.P.C. was enforced in Province of N. -W F. P. on 25th May, 1989 and later on through Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation (II of 1994) said provision was extended to the Provincially Administered Tribal Areas—Suit having been instituted on 26-2-1998, S.35-A, C. P. C. was applicable and was operative in the Provincially Administered Tribal Areas—Courts, in circumstances, had committed no legal error in imposing special costs under S.35-A, C. P. C. Citation Name: 2003 YLR 560 LAHORE-HIGH-COURT-LAHOREBookmark this Case WALAYAT BEGUM VS LAHORE DEVELOPMENT AUTHORITY Specific Relief Act 1877–42 , Specific Relief Act 1877–54 , —-O. VIII, R. 10—Specific Relief Act (I of 1877), Ss. 42 & 54—Suit for declaration and permanent injunction—Non filing of written statement—Striking off defence of defendant—Summons were issued to defendants and on the date fixed for appearance of defendants, counsel for defendants entered appearance and submitted his power of attorney— Copy of plaint was handed over to the counsel of defendants and he was directed to file written statement on adjourned date of hearing—On adjourned date of hearing counsel failed to file written statement and requested more time to file the same which was granted by Trial Court–Two more opportunities were granted to the defendants for filing written statement subject to imposing penalty/costs—Trial Court provided last opportunity to defendants to. file written statement, but on that date defendants also having failed to file written statement, Trial Court struck off their defence and after recording statement of their attorney, adjourned the case and on adjourned date of hearing decreed the suit—Appellate Court accepting appeal filed by defendants, set aside judgment and decree passed by Trial Court– -Validity—Provision of striking off defence, required greater care on the part of the Court as it would shut out one party to defend itself and virtually it would be at the merry of other party, to do justice between parties—If party had failed to file written statement judgment could be pronounced against such party, but that judgment would not mean decreeing the suit ipsi dixit without any proof whatsoever—Court was obliged to give reasons indicating application of mind and it was appropriate that case be decided on merits after recording evidence—Court must exercise its discretion judicially while pronouncing judgment under O. VIII, R.10, C. P. C., but Trial Court, decreed suit in violation of the principle of law without applying its independent mind—Appellate Court, in circumstances, had rightly set aside judgment and decree passed by Trial Court. Citation Name: 2003 YLR 560 LAHORE-HIGH-COURT-LAHOREBookmark this Case WALAYAT BEGUM VS LAHORE DEVELOPMENT AUTHORITY Civil Procedure Code –Order VIII of C.P.C. Written Statement and Set-off–10 , Civil Procedure Code –Order VIII of C.P.C. Written Statement and Set-off —-O. VIII, R. 10—Specific Relief Act (I of 1877), Ss. 42 & 54—Suit for declaration and permanent injunction—Non filing of written statement— Striking off defence of defendant—Summons were issued to defendants and on the date fixed for appearance of defendants, counsel for defendants entered appearance and submitted his power of attorney— Copy of plaint was handed over to the counsel of defendants and he was directed to file written statement on adjourned date of hearing—On adjourned date of hearing counsel failed to file written statement and requested more time to file the same which was granted by Trial Court–Two more opportunities were granted to the defendants for filing written statement subject to imposing penalty/costs—Trial Court provided last opportunity to defendants to. file written statement, but on that date defendants also having failed to file written statement, Trial Court struck off their defence and after recording statement of their attorney, adjourned the case and on adjourned date of hearing decreed the suit—Appellate Court accepting appeal filed by defendants, set aside judgment and decree passed by Trial Court– -Validity—Provision of striking off defence, required greater care on the part of the Court as it would shut out one party to defend itself and virtually it would be at the merry of other party, to do justice between parties—If party had failed to file written statement judgment could be pronounced against such party, but that judgment would not mean decreeing the suit ipsi dixit without any proof whatsoever—Court was obliged to give reasons indicating application of mind and it was appropriate that case be decided on merits after recording evidence—Court must exercise its discretion judicially while pronouncing judgment under O. VIII, R.10, C. P. C., but Trial Court, decreed suit in violation of the principle of law without applying its independent mind—Appellate Court, in circumstances, had rightly set aside judgment and decree passed by Trial Court. Citation Name: 2003 CLC 1547 LAHORE-HIGH-COURT-LAHOREBookmark this Case Mian REHMAT ALI VS SAFIA REHMAT Civil Procedure Code –Order IX of C.P.C. Appearance of Parties and Consequence of Non-Appearance–6 , Specific Relief Act 1877–42 , —-S. 42—Civil Procedure Code (V of 1908), O.IX, R.6—Suit for declaration—Ex parte proceedings, setting aside of- –Case of defendants who were proceeded ex parte was that date on which evidence had been recorded in ex parte proceedings was not the date of hearing because on that date case was fixed for filing of written statement and in case written statement was not filed, ex parte proceedings could not have been ordered, but at the most defence of defendants could be struck off—Validity—Plaintiffs, conceded to set aside ex parte orders passed against defendants subject to payment of some reasonable costs–Ex parte orders were set aside by imposing heavy costs, in circumstances. Citation Name: 2003 PTD 656 FEDERAL-TAX-OMBUDSMAN-PAKISTANBookmark this Case ZAFAR FARHAT INDUSTRIES (PVT.) LTD., RAJANPUR VS SECRETARY, REVENUE DIVISION, ISLAMABAD Establishment of the Office of Federal Tax Ombudsman Ordinance 2000–2 , Establishment of the Office of Federal Tax Ombudsman Ordinance 2000–9 , Income Tax Ordinance 1979–50 , —-Ss. 96 & 50—Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), Ss.2(3) & 9— Refund—Deduction of tax at source –Maladministration– Non-approach to withholding agents-Unfair motives — Assessee alleged that Department deliberately avoided to give complete credit claimed on account of tax deducted from their proceeds, in order to delay refund of amount deducted in excess of their assessed liability—Department contended that balance claim was unverified and required verification from various DPCs and DPUs/Treasuries and as soon as the process of verification was completed the refund will be issued to the complainant —Validity– Functionaries dealt with the tax withholding agents very casually and, quite obviously, did not attach due importance to the fact that millions of rupees deducted on behalf of the State by the Textile Mills and several others were unlawfully retained by them for indefinite periods to be employed in their own business at the cost of public–Such an act amounted to embezzlement of Government funds by the withholding agents—In the present case four mills had deducted Rs.454,365 only from the complainant as far back as 1997-98 and paid these into Government Treasury after almost four years, on 8-2-2002 and that too when the complainant pressed them to give copies of the treasury challans—Complainant claimed to have furnished a long list of other tax deducting agencies who deliberately did not deposit amounts into the exchequer—Assessee furnished photo copy of letter dated 3-3-2002 written by him to the Commissioner of Income-tax pointing out this embezzlement–Maladministration having been established, Federal Tax Ombudsman recommended that the concerned Regional Commissioner of Income-tax to ensure that the refund of the remaining amount due to the complainant be issued within 15 days of the date of the order; that the additional tax be charged under S.86 of the Income Tax Ordinance, 1979 on the delayed deposits; that notices be issued to all the defaulters under S.116 of the Income Tax Ordinance, 1979 for default under S.108 of the Income Tax Ordinance, 1979 for non-filing of statement prescribed under the Rules framed in pursuance of section 51 of the Ordinance and initiate proceedings for imposing penalties chargeable under the law that Regional Commissioner of Income-tax should direct the Commissioner of Income-tax concerned to refer the matter of default committed by the mills to the Legal Advisors for prosecution proceedings to be initiated against them–Ombudsman further recommended that Member, Income-tax Central Board of Revenue to ensure implementation by PRAL of the recommendation made in the Special Report on Accounting System of Income-tax Collection; to give wide publicity to the provisions of law as well as the procedure prescribed under the rules regarding the duties and obligations of assesses in their capacity as the statutory tax withholding agents of the State; to create awareness of their privileges among those from whose proceeds the taxes are deducted or on whose transactions taxes are collected at source by various withholding agents under the provisions of S.50 of the Income Tax Ordinance, 1979, to issue directions to the Inspecting Officers to conduct thorough inspection of one circle each month covering all aspects of performance including monitoring of taxes to be withheld by concerned assessees in that circle and the obligations to be fulfilled by them and to submit report by the 7th day of the following month to the Commissioner of Income-tax of the Zone with a copy to the Director, Inspection and Audit and to ensure that entries of taxes paid by or deducted or collected from each assessee are duly reported to the circle or any other authority holding jurisdiction over the assessment records of such assessee and he be allowed due credit at the time of assessment. Citation Name: 2003 PTD 656 FEDERAL-TAX-OMBUDSMAN-PAKISTANBookmark this Case ZAFAR FARHAT INDUSTRIES (PVT.) LTD., RAJANPUR VS SECRETARY, REVENUE DIVISION, ISLAMABAD Establishment of the Office of Federal Tax Ombudsman Ordinance 2000–2 , Establishment of the Office of Federal Tax Ombudsman Ordinance 2000–9 , Income Tax Ordinance 1979–50 , —-Ss. 96 & 50—Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), Ss.2(3) & 9— Refund—Deduction of tax at source –Maladministration– Non-approach to withholding agents-Unfair motives — Assessee alleged that Department deliberately avoided to give complete credit claimed on account of tax deducted from their proceeds, in order to delay refund of amount deducted in excess of their assessed liability—Department contended that balance claim was unverified and required verification from various DPCs and DPUs/Treasuries and as soon as the process of verification was completed the refund will be issued to the complainant —Validity– Functionaries dealt with the tax withholding agents very casually and, quite obviously, did not attach due importance to the fact that millions of rupees deducted on behalf of the State by the Textile Mills and several others were unlawfully retained by them for indefinite periods to be employed in their own business at the cost of public–Such an act amounted to embezzlement of Government funds by the withholding agents—In the present case four mills had deducted Rs.454,365 only from the complainant as far back as 1997-98 and paid these into Government Treasury after almost four years, on 8-2-2002 and that too when the complainant pressed them to give copies of the treasury challans—Complainant claimed to have furnished a long list of other tax deducting agencies who deliberately did not deposit amounts into the exchequer—Assessee furnished photo copy of letter dated 3-3-2002 written by him to the Commissioner of Income-tax pointing out this embezzlement–Maladministration having been established, Federal Tax Ombudsman recommended that the concerned Regional Commissioner of Income-tax to ensure that the refund of the remaining amount due to the complainant be issued within 15 days of the date of the order; that the additional tax be charged under S.86 of the Income Tax Ordinance, 1979 on the delayed deposits; that notices be issued to all the defaulters under S.116 of the Income Tax Ordinance, 1979 for default under S.108 of the Income Tax Ordinance, 1979 for non-filing of statement prescribed under the Rules framed in pursuance of section 51 of the Ordinance and initiate proceedings for imposing penalties chargeable under the law that Regional Commissioner of Income-tax should direct the Commissioner of Income-tax concerned to refer the matter of default committed by the mills to the Legal Advisors for prosecution proceedings to be initiated against them–Ombudsman further recommended that Member, Income-tax Central Board of Revenue to ensure implementation by PRAL of the recommendation made in the Special Report on Accounting System of Income-tax Collection; to give wide publicity to the provisions of law as well as the procedure prescribed under the rules regarding the duties and obligations of assesses in their capacity as the statutory tax withholding agents of the State; to create awareness of their privileges among those from whose proceeds the taxes are deducted or on whose transactions taxes are collected at source by various withholding agents under the provisions of S.50 of the Income Tax Ordinance, 1979, to issue directions to the Inspecting Officers to conduct thorough inspection of one circle each month covering all aspects of performance including monitoring of taxes to be withheld by concerned assessees in that circle and the obligations to be fulfilled by them and to submit report by the 7th day of the following month to the Commissioner of Income-tax of the Zone with a copy to the Director, Inspection and Audit and to ensure that entries of taxes paid by or deducted or collected from each assessee are duly reported to the circle or any other authority holding jurisdiction over the assessment records of such assessee and he be allowed due credit at the time of assessment. Citation Name: 2003 PTD 656 FEDERAL-TAX-OMBUDSMAN-PAKISTANBookmark this Case ZAFAR FARHAT INDUSTRIES (PVT.) LTD., RAJANPUR VS SECRETARY, REVENUE DIVISION, ISLAMABAD Income Tax Ordinance 1979–96 , Income Tax Ordinance 1979 —-Ss. 96 & 50—Establishment of Office of Federal Tax Ombudsman Ordinance (XXXV of 2000), Ss.2(3) & 9—Refund—Deduction of tax at source –Maladministration– Non-approach to withholding agents-Unfair motives —Assessee alleged that Department deliberately avoided to give complete credit claimed on account of tax deducted from their proceeds, in order to delay refund of amount deducted in excess of their assessed liability—Department contended that balance claim was unverified and required verification from various DPCs and DPUs/Treasuries and as soon as the process of verification was completed the refund will be issued to the complainant —Validity–Functionaries dealt with the tax withholding agents very casually and, quite obviously, did not attach due importance to the fact that millions of rupees deducted on behalf of the State by the Textile Mills and several others were unlawfully retained by them for indefinite periods to be employed in their own business at the cost of public–Such an act amounted to embezzlement of Government funds by the withholding agents—In the present case four mills had deducted Rs.454,365 only from the complainant as far back as 1997-98 and paid these into Government Treasury after almost four years, on 8-2-2002 and that too when the complainant pressed them to give copies of the treasury challans—Complainant claimed to have furnished a long list of other tax deducting agencies who deliberately did not deposit amounts into the exchequer—Assessee furnished photo copy of letter dated 3-3-2002 written by him to the Commissioner of Income-tax pointing out this embezzlement–Maladministration having been established, Federal Tax Ombudsman recommended that the concerned Regional Commissioner of Income-tax to ensure that the refund of the remaining amount due to the complainant be issued within 15 days of the date of the order; that the additional tax be charged under S.86 of the Income Tax Ordinance, 1979 on the delayed deposits; that notices be issued to all the defaulters under S.116 of the Income Tax Ordinance, 1979 for default under S.108 of the Income Tax Ordinance, 1979 for non-filing of statement prescribed under the Rules framed in pursuance of section 51 of the Ordinance and initiate proceedings for imposing penalties chargeable under the law that Regional Commissioner of Income-tax should direct the Commissioner of Income-tax concerned to refer the matter of default committed by the mills to the Legal Advisors for prosecution proceedings to be initiated against them–Ombudsman further recommended that Member, Income-tax Central Board of Revenue to ensure implementation by PRAL of the recommendation made in the Special Report on Accounting System of Income-tax Collection; to give wide publicity to the provisions of law as well as the procedure prescribed under the rules regarding the duties and obligations of assesses in their capacity as the statutory tax withholding agents of the State; to create awareness of their privileges among those from whose proceeds the taxes are deducted or on whose transactions taxes are collected at source by various withholding agents under the provisions of S.50 of the Income Tax Ordinance, 1979, to issue directions to the Inspecting Officers to conduct thorough inspection of one circle each month covering all aspects of performance including monitoring of taxes to be withheld by concerned assessees in that circle and the obligations to be fulfilled by them and to submit report by the 7th day of the following month to the Commissioner of Income-tax of the Zone with a copy to the Director, Inspection and Audit and to ensure that entries of taxes paid by or deducted or collected from each assessee are duly reported to the circle or any other authority holding jurisdiction over the assessment records of such assessee and he be allowed due credit at the time of assessment. Citation Name: 2002 CLD 1146 APPELLANT-BENCH-SECURITY-AND-EXCHANGE-COMMISSIONBookmark this Case Messrs BILWANI & CO. CHARTERED ACCOUNTANTS VS EXECUTIVE DIRECTOR (SPECIALIZED COMPANIES), SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN Companies (General Provisions and Forms) Rules 1985–RULES , Securities and Exchange Commission of Pakistan Act 1997–33 , —-S.254(3)(d)—Companies (General Provisions and Forms) Rules, 1985, Rr.4(2) & 25—Securitiesand Exchange Commission of Pakistan Act (XLII of 1997), S.33—Appeal to Appellate Bench of Securities and Exchange Commission– Auditor was alleged to be indebted to the company–Executive Director (Specialized Companies Division) of the Commission on such allegation issued show-cause notice to the auditor in capacity of statutory auditor of company–Auditor in reply denied his involvement in any trading business indebtedness with the company and requested that he be allowed to present his case through authorized representative—Executive Director insisted on personal appearance of the auditor (appellant) but on his failure in appearing so, passed ex parte order imposing fine, on him–Auditor regarding his non-appearance on date of hearing before Executive Director submitted that he had to proceed to U.S.A. on account of operation of his son and information of said exigency was duly notified to the Specialized Companies Division of the Commission—Auditor’s contention was that despite his said request, insistence of Executive Director on his personal appearance was not legally justified—Validity—Executive Director had erred in insisting upon personal appearance of according to R.125 read in proceedings for an alleged offence, with R.4(2) of the Companies. (General Provisions and Forms) Rules, 1985, could appear before the Commission through an Advocate, a practising member of Institute of Chartered Accountants of Pakistan and a practising member of Institute of cost and Management Accountants of Pakistan–Auditor (appellant) had not been provided sufficient opportunity to present his case and impugned order had been passed in haste—Appellate Bench of the Security Exchange Commission set aside the impugned order and remanded the case to Executive Director (SC) for its decision after providing proper opportunity of hearing to auditor/appellant through an authorized representative, if he so desired. Citation Name: 2002 CLD 1146 APPELLANT-BENCH-SECURITY-AND-EXCHANGE-COMMISSIONBookmark this Case Messrs BILWANI & CO. CHARTERED ACCOUNTANTS VS EXECUTIVE DIRECTOR (SPECIALIZED COMPANIES), SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN Companies (General Provisions and Forms) Rules 1985–RULES , Securities and Exchange Commission of Pakistan Act 1997–33 , —-S.254(3)(d)—Companies (General Provisions and Forms) Rules, 1985, Rr.4(2) & 25—Securitiesand Exchange Commission of Pakistan Act (XLII of 1997), S.33—Appeal to Appellate Bench of Securities and Exchange Commission– Auditor was alleged to be indebted to the company–Executive Director (Specialized Companies Division) of the Commission on such allegation issued show-cause notice to the auditor in capacity of statutory auditor of company–Auditor in reply denied his involvement in any trading business indebtedness with the company and requested that he be allowed to present his case through authorized representative—Executive Director insisted on personal appearance of the auditor (appellant) but on his failure in appearing so, passed ex parte order imposing fine, on him–Auditor regarding his non-appearance on date of hearing before Executive Director submitted that he had to proceed to U.S.A. on account of operation of his son and information of said exigency was duly notified to the Specialized Companies Division of the Commission—Auditor’s contention was that despite his said request, insistence of Executive Director on his personal appearance was not legally justified—Validity—Executive Director had erred in insisting upon personal appearance of according to R.125 read in proceedings for an alleged offence, with R.4(2) of the Companies. (General Provisions and Forms) Rules, 1985, could appear before the Commission through an Advocate, a practising member of Institute of Chartered Accountants of Pakistan and a practising member of Institute of cost and Management Accountants of Pakistan–Auditor (appellant) had not been provided sufficient opportunity to present his case and impugned order had been passed in haste—Appellate Bench of the Security Exchange Commission set aside the impugned order and remanded the case to Executive Director (SC) for its decision after providing proper opportunity of hearing to auditor/appellant through an authorized representative, if he so desired. Citation Name: 2002 CLD 1146 APPELLANT-BENCH-SECURITY-AND-EXCHANGE-COMMISSIONBookmark this Case Messrs BILWANI & CO. CHARTERED ACCOUNTANTS VS EXECUTIVE DIRECTOR (SPECIALIZED COMPANIES), SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN Companies Ordinance 1984–254 , Companies Ordinance 1984 —-S.254(3)(d)—Companies (General Provisions and Forms) Rules, 1985, Rr.4(2) & 25– -Securitiesand Exchange Commission of Pakistan Act (XLII of 1997), S.33—Appeal to Appellate Bench of Securities and Exchange Commission– Auditor was alleged to be indebted to the company–Executive Director (Specialized Companies Division) of the Commission on such allegation issued show-cause notice to the auditor in capacity of statutory auditor of company–Auditor in reply denied his involvement in any trading business indebtedness with the company and requested that he be allowed to present his case through authorized representative- –Executive Director insisted on personal appearance of the auditor (appellant) but on his failure in appearing so, passed ex parte order imposing fine, on him–Auditor regarding his non-appearance on date of hearing before Executive Director submitted that he had to proceed to U.S.A. on account of operation of his son and information of said exigency was duly notified to the Specialized Companies Division of the Commission—Auditor’s contention was that despite his said request, insistence of Executive Director on his personal appearance was not legally justified—Validity—Executive Director had erred in insisting upon personal appearance of according to R.125 read in proceedings for an alleged offence, with R.4(2) of the Companies. (General Provisions and Forms) Rules, 1985, could appear before the Commission through an Advocate, a practising member of Institute of Chartered Accountants of Pakistan and a practising member of Institute of cost and Management Accountants of Pakistan– Auditor (appellant) had not been provided sufficient opportunity to present his case and impugned order had been passed in haste—Appellate Bench of the Security Exchange Commission set aside the impugned order and remanded the case to Executive Director (SC) for its decision after providing proper opportunity of hearing to auditor/appellant through an authorized representative, if he so desired. Citation Name: 2002 MLD 431 BAR-COUNCIL-TRIBUNAL-NWFPBookmark this Case MUHAMMAD KKAN VS ANWAR BA-IG, EX-ADVOCATE MINGORA, SWAT 1982 CLC 881, 1998 CLC 610, PLD 1979 Lah. 793, PLD 1995 SC 406, Legal Practitioners and Bar Councils Act 1973–41 , Legal Practitioners and Bar Councils Act 1973 —-S.41—Professional misconduct—Ex parte order, setting aside of– Delay, condonation of—Disciplinary Committee initiated proceedings against the Advocate and after recording evidence and taking into consideration the Material on the record, referred the matter to the Tribunal for final decision—Advocate despite having knowledge of proceedings against him had failed to appear before the Tribunal even on the adjourned date of hearing—Tribunal by its ex parte order, finding the Advocate guilty of professional misconduct, removed him immediately from the profession imposing on him heavy cost$–Application of the Advocate for setting aside the ex parte order was dismissed as same was time-barred and no sufficient explanation or plausible cause for non-appearance was given—Advocate had full knowledge of the proceedings against him which were disposed of by the Tribunal by a well-reasoned judgment on merits taking into consideration, unimpeachable documentary evidence on record—Once it was proved that the Advocate had the knowledge of the proceedings against him,’then the due service or otherwise, would lose its importance—Application for setting aside ex parte order, besides being without any merit was also barred by time—Application was dismissed accordingly. Citation Name: 2002 PLC(CS) 178 SUPREME-COURT-AZAD-KASHMIRBookmark this Case DIRECTOR-GENERAL, HEALTH SERVICES VS MUHAMMAD TARIQ AZIZ Azad Jammu and Kashmir Interim Constitution Act 1974–42 , Azad Jammu and Kashmir Interim Constitution Act 1974–44 , Code of Civil Procedure 1908–35-A , Code of Civil Procedure 1908–35 , —-R. 17—Civil Procedure Code (V of 1908), Ss.35 & 35-A—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44—Appointment— Special costs—Imposition of—Petitioner in his writ petition had challenged appointment order of pro forma respondents passed by the Authority—High Court accepting writ petition declared disputed appointments to have been made without lawful authority—Finding of High Court was based on three grounds; firstly that disputed posts were not advertised as required by R.17 of Azad Jammu and Kashmir Civil Servants (Appointment arid Conditions of Service) Rules, 1977; secondly that recommendations of Selection Committee had no legal vale because Selection Committee had to make choice from among the candidates who filed applications in response to the advertisement; thirdly that said appointments had been-made to do favour to the appointees which assertion had not been rebutted through a counter-affidavit—Appointment order of pro forma respondents was quashed by High Court ordering Authority to pay Rs.10,000 as costs to petitioner which was challenged in appeal before Supreme Court’—Held: Order passed by Authorities being totally insupportable and frivolous, High Court had rightly passed order imposing costs on respondent-Authorities which having been competently passed could not be interfered with by Supreme Court in appeal. Citation Name: 2002 PLC(CS) 178 SUPREME-COURT-AZAD-KASHMIRBookmark this Case DIRECTOR-GENERAL, HEALTH SERVICES VS MUHAMMAD TARIQ AZIZ Azad Jammu and Kashmir Interim Constitution Act 1974–42 , Azad Jammu and Kashmir Interim Constitution Act 1974–44 , Code of Civil Procedure 1908–35-A , Code of Civil Procedure 1908–35 , —-R. 17—Civil Procedure Code (V of 1908), Ss.35 & 35-A—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44—Appointment— Special costs—Imposition of—Petitioner in his writ petition had challenged appointment order of pro forma respondents passed by the Authority—High Court accepting writ petition declared disputed appointments to have been made without lawful authority—Finding of High Court was based on three grounds; firstly that disputed posts were not advertised as required by R.17 of Azad Jammu and Kashmir Civil Servants (Appointment arid Conditions of Service) Rules, 1977; secondly that recommendations of Selection Committee had no legal vale because Selection Committee had to make choice from among the candidates who filed applications in response to the advertisement; thirdly that said appointments had been-made to do favour to the appointees which assertion had not been rebutted through a counter-affidavit—Appointment order of pro forma respondents was quashed by High Court ordering Authority to pay Rs.10,000 as costs to petitioner which was challenged in appeal before Supreme Court’—Held: Order passed by Authorities being totally insupportable and frivolous, High Court had rightly passed order imposing costs on respondent-Authorities which having been competently passed could not be interfered with by Supreme Court in appeal. Citation Name: 2002 PLC(CS) 178 SUPREME-COURT-AZAD-KASHMIRBookmark this Case DIRECTOR-GENERAL, HEALTH SERVICES VS MUHAMMAD TARIQ AZIZ Azad Jammu and Kashmir Civil Servants (Appointments and Conditions of Service) Rules 1977–RULE , Azad Jammu and Kashmir Civil Servants (Appointments and Conditions of Service) Rules 1977 —-R. 17—Civil Procedure Code (V of 1908), Ss.35 & 35-A—Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44—Appointment— Special costs—Imposition of—Petitioner in his writ petition had challenged appointment order of pro forma respondents passed by the Authority—High Court accepting writ petition declared disputed appointments to have been made without lawful authority—Finding of High Court was based on three grounds; firstly that disputed posts were not advertised as required by R.17 of Azad Jammu and Kashmir Civil Servants (Appointment arid Conditions of Service) Rules, 1977; secondly that recommendations of Selection Committee had no legal vale because Selection Committee had to make choice from among the candidates who filed applications in response to the advertisement; thirdly that said appointments had been-made to do favour to the appointees which assertion had not been rebutted through a counter-affidavit—Appointment order of pro forma respondents was quashed by High Court ordering Authority to pay Rs.10,000 as costs to petitioner which was challenged in appeal before Supreme Court’—Held: Order passed by Authorities being totally insupportable and frivolous, High Court had rightly passed order imposing costs on respondent-Authorities which having been competently passed could not be interfered with by Supreme Court in appeal. Citation Name: 2001 SCMR 8 SUPREME-COURTBookmark this Case GOVERNMENT OF SINDH VS NAJMA West Pakistan Maintenance of Public Order Ordinance 1960–3 , West Pakistan Maintenance of Public Order Ordinance 1960 —-S. 3(1)—Constitution of Pakistan (1973), Art. 199— Constitutional petition— Detention order—Awarding of costs by officials concerned —Non-issuance of show-cause notices to the officials concerned before imposing costs— Validity —Detention order passed by the officials was assailed before High Court and its propriety, correctness and validity was judicially examined under Art. 199 of the Constitution and it was not necessary to hear any of the officials concerned—Concerned officials were duly re red in the High Court—Material on the basis of which order for awarding costs was passed was thoroughly scrutinized by the High Court—Show-cause notice was to be issued when there was ambiguity and further clarification was essential for reaching to a final conclusion—If the facts were clear, definite and irrefutable, such notice would not be necessary, unless it was mandatory and a legal requirement—Show-cause notice, in circumstances, was not necessary. Citation Name: 2001 YLR 2104 BAR-COUNCIL-NWFPBookmark this Case SHER BAHADER, ADVOCATE, TAKHT BHAI VS SHER ZAMAN Civil Procedure Code –Order XVII of C.P.C. Adjournments–1 , Civil Procedure Code –Order XVII of C.P.C. Adjournments —-O. XVII, R.1 (2)– Adjournment– Imposition of cost- –Object—Jurisdiction of Court—Principles—Case was adjourned on the request of the petitioner when witnesses of respondent were present—Adjournment was allowed against costs—Validity—Court under the provisions of O.XVII, R.1(2), C.P.C. had ample discretion in imposing costs– Adjournment allowed by Courts subject to payment of costs to the other party in order to relieve the party of the expenses incurred on bringing the witnesses to Court and not by way of penalty—Order passed by the Court was perfectly sound, based on equity and proper exercise of judicial discretion and the same called for no interference. Citation Name: 2001 MLD 200Bookmark this Case MUHAMMAD SHAFIQUE KHAN VS AJ&K GOVERNMENT Code of Civil Procedure 1908–35-A , Code of Civil Procedure 1908 —-S. 35-A—Compensatory costs—Imposition of—Civil servant- was appointed as Research Officer B-17 and subsequently when post of “Entomologist Sericulture” B-18 fell vacant, he applied to be promoted to the said post, but instead he was prompted to that post on current charge basis–Letter issued by Deputy Director to Director had shown that co-civil servant was promoted as Assistant Entomologist and not as Entomologist Sericulture B-18, civil servant having entertained wrong belief with regard to promotion of co-civil servant, he was suggested to withdraw writ petition filed by him against the promotion of co-civil servant but he did not do so—High Court dismissed writ petition of the civil servant imposing rupees five thousand as compensatory costs on him for filing a frivolous and vexatious petition–Validity—Held, under provisions of S.35-A, C.P.C. before a party could be imposed exemplary compensatory costs there must be a finding that averments made by one party or the other were patently vexatious which had no legal foundation for prosecution or defence of a particular cause—No finding of High Court was on record to the effect that letter by Deputy Director to Director could not give any impression to civil servant for filing writ petition especially when he was not aware of contents of the working papers—Mere fact that civil servant did not withdraw writ petition, would not justify to hold that initial averments regarding promotion of cocivil servant were without any foundation and were vexatious—Section 35-A, C.P.C. had not been amended in Azad Jammu and Kashmir and amount of compensation in case of exemplary costs could not be awarded more than one thousand rupees. Citation Name: 2001 PLC(CS) 292 SUPREME-COURT-AZAD-KASHMIRBookmark this Case MUHAMMAD SHAFIQUE KHAN VS AJ&K GOVERNMENT Azad Jammu and Kashmir Interim Constitution Act 1974–42 , Azad Jammu and Kashmir Interim Constitution Act 1974–44 , —-S. 35-A—Azad Jammu and Kashmir Interim Constitution Act (VII of 1974), Ss. 42 & 44—Compensatory costs— Imposition of—Civil servant was appointed as Research Officer B-17 and subsequently when post of “Entomologist Sericulture” B-18 fell vacant, he applied to be promoted to the said post, but instead he was promoted to that post on current charge basis–Letter issued by Deputy Director to Director had shown that co-civil servant was promoted as Assistant Entomologist and not as Entomologist Sericulture B-18, civil servant having entertained wrong belief with regard to promotion of co-civil servant, he was suggested to withdraw writ petition filed by’him against the promotion of co-civil servant, but he did not do so—High Court dismissed writ petition of the civil servant imposing rupees five thousand as compensatory costs on him for filing a frivolous and vexatious petition– Validity—Held, under provisions of S.35-A, C.P.C. before a party could be imposed exemplary compensatory costs there must be a finding that averments made by one party or the other were patently vexatious which had no legal foundation for prosecution’or defence of a particular cause—No finding of High Court was on record to the effect that letter by Deputy Director to Director could not give any impression to civil servant for filing writ petition especially when he was not aware of contents of the working papers—Mere fact that civil servant did not withdraw writ petition, would not justify to hold that initial averments regarding promotion of co-civil servant were without any foundation and were vexatious—Section 35-A, C.P.C. had not been amended in Azad Jammu and Kashmir and amount of compensation in case of exemplary costs could not be awarded more than one thousand rupees.