Summary: Specific Relief Act, 1877 (I of 1877)----S. 12---Specific performance---Non-deposit of balance sale consideration---Misrepresentation by vendor---Effect---Scope of court’s discretion---Petitioner’s suit for specific performance was dismissed for failure to deposit balance sale consideration despite court orders---Agreement to sell was executed solely by respondent No.1, who falsely claimed to act on behalf of his wife (respondent No.2), the co-owner---Trial Court and Appellate Court dismissed the suit for non-compliance with deposit orders---Held, where a vendor misrepresents his authority to sell co-owned property and pending litigation obstructs title transfer, court must evaluate circumstances before directing deposit of sale consideration---Requirement to deposit must not be applied mechanically---In present case, petitioner’s reluctance to deposit was justified due to third-party litigation, ex parte conduct of vendor, and misrepresentation regarding co-owner’s consent---Failure to deposit in such context does not warrant dismissal of suit---Trial Court's direction failed to adhere to binding precedent requiring two clear opportunities with specific penal consequences---Impugned orders found violative of fair trial principles.Civil Procedure Code, 1908 (V of 1908)----S. 115---Revisional jurisdiction---Erroneous dismissal of suit---Non-adherence to binding precedent---Interference by revisional court---Held, trial and appellate courts failed to comply with the procedural safeguards laid down in PLD 2022 Lahore 372 (Irfan Rasheed case), which mandates two distinct opportunities for deposit of balance consideration with specific penal warning---Appellate Court further erred in dismissing the appeal in limine without appreciating petitioner’s contentions or factual complexities---Revisional jurisdiction rightly exercised to remedy procedural miscarriage and ensure substantial justice.Contract---Reciprocal obligations and fair trial----Doctrine of reciprocal performance---Fraud and misrepresentation---Judicial approach in specific performance cases---Court emphasized that where one party fails to perform or creates legal impediments (such as absence of authority or litigation), the other party’s obligation to perform (including deposit) may be deferred---Reliance placed on principle “fraus et jus nunquam cohabitant” (fraud and justice never dwell together)---Held, doctrine of fairness requires judicial discretion to be exercised equitably---Petitioner was not afforded fair opportunity to comply under modified directions.Key Precedents Discussed:Hamood Mehmood v. Mst. Shabana Ishaque (2017 SCMR 2022)Muhammad Asif Awan v. Dawood Khan (2021 SCMR 1270)Meer Gul v. Raja Zafar Mahmood (2024 SCMR 1496)Irfan Rasheed v. Muhammad Muazim (PLD 2022 Lahore 372)Muhammad Jahan Zaib Khan v. Muhammad Rafique Khan (2021 PLC (CS) 1435)Disposition:Petition allowed; orders of Trial Court and Appellate Court set aside; suit restored with direction to petitioner to deposit balance consideration within one month, failing which dismissal shall stand reinstated.

Summary: (a) Specific Relief Act (I of 1877)--- ----Ss. 8, 39, 42, 54 & 55---Contract Act (IX of 1872), S. 215---Transfer of Property Act (IV of 1882), S. 54---Suit for possession through partition, declaration, cancellation of mutation and permanent and mandatory injunction---General power of attorney (GPA)---Transfer of property by the attorney/brother of petitioner---Plea of misuse of authority and deceitful transfer of property by the attorney in his own favour and his mother without permission of principal---Cancellation of GPA after the transfer of property---Obligations of attorney---Principal's consent---Scope---Suit and appeal instituted/preferred by the petitioner were dismissed by the trial and appellate courts concurrently---Validity---It was nowhere ordained in S. 215 of Contract Act, 1872, that consent of the principal shall be in writing, thus, it may be oral as well---There was sufficient material to indicate that before entering into the sale transaction, attorney of the petitioner apprised him about the transaction and after obtaining his consent, executed the mutations, thus, petitioner was precluded to exercise his right of repudiation as it is was more available to him in the circumstances--- Petitioner despite having knowledge of all the transactions, in the first instance, instituted a suit for separate possession through partition wherein he neither called in question mutations nor asserted that attorney misused his authority, being attorney, which spoke about the conduct of the petitioner---Civil revision was dismissed, in circumstances. Muhammad Mumtaz Khan (deceased) through L.Rs. and others v. Mst. Siraj Bibi (deceased) through L.Rs and others 2024 SCMR 978; Haq Nawaz and others v. Banaras and others 2022 SCMR 1068 and Mst. Akhtar Sultan v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715 ref. (b) Civil Procedure Code (V of 1908)--- ----O. II, R. 2---Specific Relief Act (I of 1877), Ss. 8, 39, 42, 54 & 55---Suit for possession through partition, declaration, cancellation of mutation and permanent and mandatory injunction---Consolidation of suits---Effect---Bar to instituting second suit under O. II, R. 2, C.P.C.---Scope--- Object of O. II, R. 2, C.P.C. is to avoid splitting of claims and multiplicity of suits---Both suits were ultimately consolidated, which was sufficient to diminish the impact of said provision of law---When the petitioner parted with his ownership in the suit property by virtue of sanctioning of mutations, he could not claim himself as co-owner of the property and as such suit for separate possession through partition was not maintainable at all, thus, the bar in terms of O. II, R. 2, C.P.C, would not come into play. Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 rel. (c) Civil Procedure Code (V of 1908)--- ----S. 115---Concurrent findings of facts by courts below---Substitution by High Court in its revisional jurisdiction---Scope---Scope of revisional jurisdiction under S.115 of the C.P.C. is quite limited where both the lower courts are unanimous in forming their view---High Court, being revisional court, cannot substitute the concurrent findings of the two courts of competent jurisdiction merely on the ground that from the re-appraisal of evidence, some other view is possible---Exercise of revisional powers is always guided by the necessary pre-conditions laid down in S. 115, C.P.C. Ghulam Qadir and others v. Sh. Abdul Wadood and others PLD SC 712; Mst. Zarsheda v. Nobat Khan PLD 2022 SC 21 and Muhammad Sarwar and others v. Hashmal Khan and others PLD 2022 SC 13 rel. Tanvir Iqbal for Petitioner. Agha Muhammad Ali Khan for Respondents Nos. 1A to 1E, 2 to 5 and 7. Muhammad Omer Asad Chaudhary for Respondents Nos. 1F to 1J. Chaudhary Omer Hayat for Respondent No. 6 (in Civil Revision No. 424-D of 2024). Muhammad Shahid Munir, Assistant Advocate General, Punjab for Respondents Nos. 8 to 13. Respondents Nos. 14 to 16, Ex-parte. Date of hearing: 18th March, 2025. Judgment Mirza Viqas Rauf, J .--- By way of this single judgment, I intend to decide the titled petition as well as C.R.No.424-D of 2024, being raising similar questions of fact and law, ensuing from consolidated judgment and decree dated 09th of July, 2024, handed down by learned Additional District Judge, Rawalpindi, whereby he proceeded to dismiss the appeals preferred by the petitioner and affirmed the judgment and decree dated 13th January 2024, passed by learned Civil Judge, Rawalpindi. 2. Facts in brief are that the petitioner instituted a suit for separate possession through partition in the first instance averring therein that he is settled in United Kingdom (U.K.). It is asserted that parents of the petitioner namely Gul Hameed Asghar and Mst. Nusrat Parveen were joint owners in possession of land measuring 1800-kanal in the revenue estates of Jattal, Pind Dadu and Ghariba, Tehsil and District Rawalpindi. As per averments contained in the plaint, the petitioner entered into an investment agreement dated 27.07.2006 with his father to the extent of land measuring 165-kanal and in furtherance thereof he invested an amount of 165000 sterling pounds which was acknowledged by his father through investment agreement. It was also agreed between the petitioner and his father that in case he has less land than 165-kanals at his credit then the said deficiency will be made good from the land of his mother Mst. Nusrat Parveen, due to the fact that whole land measuring 1800-kanals was purchased from his own pocket by Gul Hameed Asghar which fact was not only known to the mother but also to the other family members. It is averred in the plaint that Gul Hameed Asghar died on 16.11.2014, leaving behind land measuring 1635-kanals as his legacy which devolved upon his legal heirs at the ratio i.e. 204-kanal in the name of Mst. Nusrat Parveen, 317-kanal in the name of each son and 159-kanal in the name of daughter. In this backdrop, the petitioner claiming himself to be co-owner, sought decree for possession through partition of land measuring 482-kanal. The suit was resisted by the respondents, who submitted their written statement, raising preliminary objections and also controverting the factual assertions contained in the plaint. The petitioner then instituted a second suit for declaration, seeking cancellation of Mutations Nos. 3420, 3421, 994 and 995 and injunction with the assertion that Gul Hameed Asghar, father of the petitioner, died on 16.11.2014, leaving behind the petitioner as well as other legal heirs, including respondent No.6. It is asserted that petitioner entered into an investment agreement with his father in furtherance whereof latter received an amount of 165000 sterling pounds from the petitioner for transfer of 165-kanal land from his ownership in favour of the petitioner, which deal was not matured. As per averments contained in the plaint, case titled "Ch. Riaz v. Gul Hameed Asghar" was pending adjudication before Civil Court at Rawalpindi during life time of the father in which the petitioner and other legal heirs have now stepped into his shoes, being legal heirs. The petitioner asserted that he along with other legal heirs of the deceased executed general power of attorney through registered deed No.1868 dated 15.05.2015 in favour of respondent No.6, being his brother but deed of attorney was cancelled by the petitioner vide cancellation deed No.300 dated 29.01.2019, as respondent No.6 misused the general power of attorney and deceitfully transferred petitioner's property in favour of M/s Marble Arch Developers, being Director through Mutations Nos. 3420, 3421, 994 and 995. As per averments contained in the plaint, respondent No.6 transferred 90% of the landed property in his own favour and remaining 10% in favour of Mst. Nusrat Parveen on 16.03.2018 but later on he included respondents Nos. 1 to 5 as shareholders which factum came in his knowledge during the pendency of the suit for separate possession through partition. It is asserted that in furtherance thereof, a housing society upon the land of the petitioner has been developed unauthorizedly. This suit was also contested by the respondents by filing written statement. Both the suits were consolidated and as a result, from the divergent pleadings of the parties, issues were framed. After framing of issues, evidence of both the sides was recorded and finally suit was dismissed by way of judgment and decree dated 13.01.2024 passed by learned Civil Judge, Rawalpindi. Feeling aggrieved, the petitioner though preferred an appeal before learned Additional District Judge but remained unsuccessful as appeal was also dismissed by way of impugned judgment and decree. 3. Learned counsel for the petitioner contended that respondent No.6, being attorney of the petitioner, misused his authority and alienated property in the name of M/s Marble Arch Developers for his own benefit. It is contended that law to this effect is well settled that an attorney cannot alienate property of the principal without his prior consent in his own favour or in favour of his kith and kin. Learned counsel emphasized that though overwhelming evidence was produced by the petitioner in support of his claim but it has been discarded without assigning any lawful reasoning. It is emphatically contended by learned counsel that judgments of two courts are though concurrent but outcome of gross misreading and non-reading of evidence. In support of his contention, learned counsel placed reliance on Muhammad Mumtaz Khan (deceased) through L.Rs. and others v. Mst. Siraj Bibi (deceased) through L.Rs and others (2024 SCMR 978), Haq Nawaz and others v. Banaras and others (2022 SCMR 1068) and Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others (PLD 2021 Supreme Court 715). 4. Conversely, learned counsel representing the respondents seriously resisted these petitions. It is contended that respondent No.6, being attorney of the petitioner, only got registered land subject matter of Mutations Nos. 3421 and 994 for which he obtained permission from the petitioner which fact is also evident from the statement of the petitioner himself. Learned counsel while making reference to the statement of the petitioner emphasized that petitioner is estopped by his words and conduct to challenge the mutations in question. It is submitted that petitioner was not sole principal who appointed respondent No.6 as attorney on his behalf but deed of attorney was executed jointly by the petitioner along with his two brothers who did not challenge the transfer made by respondent No.6 in furtherance of the deed of attorney which itself shows that the suit is frivolous. It is argued with vehemence that after alienation of the suit property through respondent No.6, being attorney of the petitioner, petitioner has left with no right, whatsoever, in the suit property and as such suits were rightly dismissed. Learned counsel contended that concurrent findings are based on proper appraisal of evidence and there is no room for interference by this Court in exercise of revisional jurisdiction. 5. Learned Law Officer also supported the arguments of learned counsel for the respondents. 6. I have heard learned counsel for the parties and perused the record. 7. Before embarking upon the matter in controversy inter se parties, it would be advantageous to observe that the petitioner along with his brothers namely Fahad Hameed and Waqas Hameed executed a general power of attorney (Exh.P-4) in favour of respondent No.6, being their real brother with regard to the suit property, perusal whereof reveals that being principal, the petitioner along with his brothers authorized and empowered respondent No.6, being their attorney to supervise, to manage, to sell, to transfer by way of gift etc or to mortgage the suit land or enter into a sale agreement, to receive earnest, full and final sale consideration and execute sale deed or mutation on their behalf. In furtherance thereof, respondent No.6 got executed Mutations No.3420 (Exh.P-6), 3421 (Exh.P-7), 994 (Exh.P17) and 995 (Exh.P-16) in favour of respondent No.7. Needless to mention that though all these mutations have been questioned by the petitioner in the suit but learned counsel for the parties are in agreement that only Mutations Nos. 3421 (Exh.P-7) and 994 (Exh.P-17) are the mutations whereby the land of the petitioner has been transferred by respondent No.6, being his attorney. In this background, Issue No.3-B becomes pivotal, which reads as under:- 3-B Whether mutations Nos. 3421, 3420, 994 and 995 sanctioned in favour of defendant No.7 and subsequent mutations in favour of RDA and someone else are liable to be cancelled being unlawful? OPP 8. Adverting to the moot point, it is noticed that execution of the general power of attorney in favour of respondent No.6 is not disputed by the petitioner but his claim is that respondent No.6 misused the powers given through general power of attorney and as such he deceitfully transferred the landed property of the petitioner in favour of respondent No.7 in which respondent No.6 is one of the Directors. No doubt, power of attorney was later on revoked through deed (Exh.P-5) but it was executed on 29.01.2019 much later to the sanctioning of Mutations Nos.3421 (Exh.P-7) and 994 (Exh.P-17). 9. There is no cavil to the proposition that in case of transfer of property in his own name or in the name of close relatives, attorney is bound to seek prior permission, approval and consent of the principal as is laid down in the judgments (supra) heavily relied upon by learned counsel for the petitioner. Now, while examining the case in the light of well settled principles, it is noticed that ample material is available on the record to form an opinion that the mutations in questions were sanctioned with consent and knowledge of the petitioner. To this effect, statement of the petitioner, being PW-1 is of significance importance, relevant excerpt from the same is reproduced below:- It clearly evinces from the above that as per own statement of the petitioner, he duly authorized respondent No.6 to sell his property who at the time of sale of land in favour of respondent No.7 consulted with the petitioner and apprised him about the sale transaction. Though, in the volunteer portion, the petitioner stated that he was not apprised fully but this sole volunteer portion is of no avail to him. The above noted portion of the statement of the petitioner leads me to an irresistible conclusion that the land was transferred by respondent No.6 with the consent of the petitioner and he became well aware of the transaction in 2018 and also received his share in lieu thereof. 10. Section 215 of the Contract Act, 1872 equips the principal with a right to repudiate the transaction when agent deals on his own account, in the business of the agency without principal's consent. For ready reference and convenience, same is reproduced:- 215. Right of principal when agent deals on his own account, in business of agency without principal's consent.-If an agent deals on his own account in the business of the agency, without first obtaining the consent of his principal and acquainting him with all material circumstances which have come to his own knowledge on the subject, the principal may repudiate the transaction, if the case shows, either that any material fact has been dishonestly concealed from him by the agent, or that the dealings of the agent have been disadvantageous to him. From perusal of above referred provision of law, it clearly manifests that a principal can repudiate the transaction if:- i. an agent deals on his own account in the business of the agency; ii. without obtaining the prior consent of the principal; iii. not acquainting the principal with all material circumstances which comes to his own knowledge; iv. if it is shown either that any material fact has been dishonestly concealed from the principal by the agent or that dealing of the agent has been disadvantageous to the principal. Section 215 of the Act, ibid, however, nowhere ordains that consent of the principal shall be in writing. It may thus be oral as well. There is sufficient material available on record, as noted hereinabove, which indicates that before entering into the sale transaction, respondent No.6, being attorney of the petitioner, apprised him about the transaction and after obtaining his consent, executed the mutations under challenge. The petitioner is thus precluded to exercise his right of repudiation as it is no more available to him in the circumstances. 11. Needless to mention that the petitioner despite having knowledge of all the transactions, in the first instance, instituted a suit for separate possession through partition wherein he neither called in question Mutations Nos. 3421 (Exh.P-7) and 994 (Exh.P-17) nor asserted that respondent No.6 misused his authority, being attorney, which goes a long way to speak about the conduct of the petitioner. 12. Though, learned counsel for the respondents resisted second suit while pleading a bar under Rule 2 of Order II of the Code of Civil Procedure (V of 1908) to which effect Issue No.5-A was also framed but when they were confronted with the Court's query that both suits were ultimately consolidated, which is sufficient to diminish the impact of said provision of law, they conceded the legal proposition. Even otherwise, when the petitioner parted with his ownership in the suit property by virtue of sanctioning of Mutations Nos. 3421 (Exh.P-7) and 994 (Exh.P-17), he could not claim himself as co-owner of the property and as such suit for separate possession through partition was not maintainable at all and the bar in terms of Order II, Rule 2 of Code, ibid, would not come into play in the light of law laid down in Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 Supreme Court 344). 13. There are concurrent findings of facts recorded by two courts of competent jurisdiction, which are, apparently, founded on proper appraisal of evidence. Scope of revisional jurisdiction under Section 115 of the C.P.C. is quite limited where both the lower courts are unanimous in forming their view. This Court, being revisional court cannot substitute the concurrent findings of the two courts of competent jurisdiction merely on the ground that from the re-appraisal of evidence, some other view is possible. The exercise of revisional powers is always guided by the necessary pre-conditions laid down in the above referred provision of law. The scanning of evidence and the perusal of impugned judgments does not reflect any illegality or material irregularity, justifying interference by this Court. Reference in this respect can be made to Ghulam Qadir and others v. Sh. Abdul Wadood and others (PLD 2016 SC 712), Mst. Zarsheda v. Nobat Khan (PLD 2022 SC 21) and Muhammad Sarwar and others v. Hashmal Khan and others (PLD 2022 SC 13). 14. The nutshell of above discussion is that these petitions are devoid of any merits. Resultantly, the same are dismissed, with no order as to costs. SA/M-55/L Revision dismissed.

Summary: '' Section 5-7 of the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 and policy decision---The Chairman, PCBL is not vested with any exclusive power to alienate the properties, assets of the Board through any private treaty or understanding and any alienation of the property/ asserts of the Board by the Chairman in contravention of the above law as well as the policy decision, that has no binding force and same does not create any right enforceable through constitutional jurisdiction of this Court. Writ Petition dismissed with heavy cost.'' ------ (a) Constitutional Law – Writ Jurisdiction – Private Treaty for Public Property---Writ petition—Maintainability—Petitioners challenged the dismissal of their claim to purchase shops through private treaty from Punjab Cooperative Board for Liquidation (PCBL)—Held, PCBL properties are public assets and must be alienated in accordance with the prescribed legal framework—Chairman PCBL had no unilateral authority to sell properties through private negotiations—No provision in the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993, authorizes such transactions—Private agreements without public auction are susceptible to fraud, favoritism, and corruption—Reliance placed on Capital Development Authority v. Ahmed Murtaza (2023 SCMR 61).(b) Public Property – Sale Through Auction – Legal Procedure Mandatory---Public property—Legal framework for disposal—PCBL advertised an auction for shops but failed to receive bids—Petitioners did not participate in auction and instead sought to purchase via private negotiation—Held, sale of public property must follow due process, ensuring transparency and equal opportunity—No legal right accrues to petitioners merely on the basis of negotiations or partial payments—Attempted acquisition through under-the-table settlement is illegal and void.(c) Fraudulent and Collusive Transactions – Effect on Contractual Rights---Fraudulent and collusive agreements—Petitioners deposited a nominal amount claiming right to purchase—No documentary evidence or board approval for sale—Held, fraud vitiates all transactions—An agreement against public policy is void and unenforceable—Even if a Chairman unlawfully makes an offer, the act remains illegal—A fraudulent foundation of ownership claim automatically collapses—Reliance placed on Province of Punjab v. Zulfiqar Ali (2024 SCMR 22).(d) Contract Law – Absence of a Legally Binding Agreement---Absence of contract—No evidence of acceptance by PCBL or board approval—Petitioners' claim based on an alleged offer from the Chairman—Held, a unilateral deposit of funds does not create enforceable contractual rights—No agreement meeting legal formalities was concluded—Writ jurisdiction cannot be invoked to enforce an illegal or non-existent contract.(e) Cost for Frivolous Litigation Against Public Institution---Frivolous litigation—Petitioners engaged in protracted litigation since 2002 without legal entitlement—Held, misuse of judicial process warrants imposition of costs—Petitioners burdened with PKR 1,000,000 as special costs, recoverable as arrears of land revenue—Reliance placed on Javed Hameed v. Aman Ullah (2024 SCMR 89).---- Disposition:W.P. No. 14800/2010 & W.P. No. 14799/2010 dismissed – No legal right accrued to petitioners.Special costs of PKR 1,000,000 imposed for frivolous litigation.Observations are limited to this petition and shall not affect future proceedings.

Summary: (a) Specific Relief Act (I of 1877) --- Ss. 12 & 42 --- Compromise decree --- Relief confined to prayer clause --- Decree in respect of unidentified or contingent property --- Scope and limitations. Plaintiff sought specific performance, declaration, and permanent injunction regarding identified land mentioned in prayer clause (a). The suit was disposed of on the basis of a compromise application. The learned Single Judge decreed the suit only in terms of paragraph 1 of the compromise application, holding that the remaining paragraphs referred to events and properties outside the scope of the pleadings. Held, relief in a civil suit must strictly conform to the claims specifically pleaded and prayed for; any compromise terms relating to alternate land or contingent future events—such as possible allotment of land by the Government—could not be enforced through a decree when such relief was not sought in the original prayer clause. A decree cannot cover property that is not yet identified or in existence. Specific performance must be confined to a definite and existing subject matter. The learned Single Judge’s exercise of discretion was proper and consistent with the scope of the suit. (b) Civil Procedure Code (V of 1908) --- O. XXIII, R.3 --- Compromise decree --- Discretion of Court to limit decree to permissible scope --- Validity. Where parties file a compromise application, the Court is not bound to incorporate all its terms into the decree if some terms extend beyond the pleadings and relief claimed. Held, the Court rightly confined the decree to paragraph 1 of the compromise application as it alone pertained to the identified suit land mentioned in the prayer clause. Paragraphs concerning future or alternative land were outside the scope of the suit and the pleadings, and therefore could not be made part of the judgment. Discretion exercised by the learned Single Judge in this regard was lawful and did not warrant interference by the appellate Court. (c) Contract --- Contingent agreements --- Specific performance --- Non-identifiable subject matter --- Effect. A valid agreement may contain contingent terms relating to future events, but specific performance can only be granted with respect to definite and existing property. Held, even if compromise terms anticipate possible allotment of alternative land in future, such stipulations cannot be enforced by decree unless the property exists and is properly identified in the suit. Relief cannot be granted in anticipation of hypothetical future events not pleaded. Disposition: Appeal dismissed along with pending applications.

Summary: (a) Arbitration Act, 1940 (X of 1940): ----Ss. 16, 30 & 33---Code of Civil Procedure (V of 1908), S. 151---Remission and setting aside of arbitration award---Scope---Variation in contract invoking additional compensation---Appellant [National Highway Authority] awarded construction contract to Respondent No.1 [M/s Husnain Cotex Limited] and later required early completion of part of the project, resulting in increased cost and revised work methodology---Sole Arbitrator held such instructions amounted to a variation under Sub-clause 51.1(f) of the Conditions of Contract, entitling the contractor to compensation under Cl. 52.1---Trial Court dismissed application filed under Ss. 16 & 151, C.P.C., seeking remission or setting aside of award---Contention that Arbitrator failed to distribute burden of proof or decided issues extraneously, found unsubstantiated---Award was based on mutual consent regarding evidence recording and relied on documents placed on record---High Court held that no error on the face of the Award or misconduct was established---Arbitrator is final authority on facts and law, and courts cannot function as appellate authority in arbitration matters unless the award is invalid under S. 30---Discretion exercised by Arbitrator cannot be interfered with merely due to difference in interpretation or reasoning. ----Cited Cases: • Shahin Shah v. Govt. of KPK, 2022 SCMR 1810 • Gerry’s Intl. v. Aeroflot, 2018 SCMR 662 • A. Qutubuddin Khan v. Chec Millwala Dredgging Co., 2014 SCMR 1268 • Federation v. JV Knocks K.G/RIST, PLD 2011 SC 506 • Mian Corporation v. Lever Brothers, PLD 2006 SC 169 • Pakistan Steel Mills v. Mustafa Sons, PLD 2003 SC 301 • JV K.G/RIST v. Federation, PLD 1996 SC 108 • NHA v. Lilley Intl., 2020 CLC 608 Islamabad • Sh. Muhammad Saleem v. Saadat Enterprises, 2009 CLD 390 LHR (b) Arbitration Act, 1940 (X of 1940): ----S. 30---Judicial interference in arbitration proceedings---Scope---Parties bound by selected forum---Where parties voluntarily incorporate arbitration clause, Court’s interference is limited to grounds provided in S.30---High Court emphasized that objections raised after consent to Arbitrator’s procedural decisions could not be termed misconduct---Courts not to disturb factual or legal findings of Arbitrator absent jurisdictional error or fraud---Objections based on non-reading, misreading or "perverse verdict" must reflect a manifest error on face of award to justify intervention---No such grounds established in present case. (c) Arbitration Act, 1940 (X of 1940): ----S. 16---Remission of award---Grounds---Award found to be neither indefinite nor incapable of execution---Objections were vague, not meeting threshold for remission under S.16---Court declined to remit matter for fresh arbitration as no error of jurisdiction or unresolved material issues were demonstrated. (d) Limitation Act (IX of 1908): ----Art. 158---Objections to arbitration award---Limitation period---Award dated 10.04.2010---No application filed within 30 days of notice of filing award in court---No application for condonation of delay filed---Objection held time-barred---Court relied on precedents to hold that condonation requires specific justification for each day of delay---Purpose of arbitration frustrated where party refuses to honor agreed dispute resolution mechanism. ----Cited Cases: • Airports Development Agency Ltd. v. M.Y Corporation, PLD 2001 Kar 158 • Shahin Shah v. Govt. of KPK, 2022 SCMR 1810 • LDA v. Khalid Javed Co., 1983 SCMR 718 ----Disposition: Appeal dismissed---Findings of Sole Arbitrator upheld---No illegality or jurisdictional error found in the impugned Order and Decree.

Summary: (a) Civil Procedure Code (V of 1908), S. 12(2)—Specific Relief Act (I of 1877), S. 12—Constitution of Pakistan, Art. 199—Consent Decree—Fraud—Misrepresentation—Want of JurisdictionConsent decree obtained in suit for specific performance—Application under S. 12(2), C.P.C. filed by third party alleging fraud and misrepresentation—Attorney (respondent No.2) had no legal authority to execute agreement to sell or record statement on behalf of petitioner or respondent No.4-Society—Power of attorney relied upon by respondent No.2 had become ineffective upon death of one of the joint executants—Decree passed based on unauthorized statement and compromise—Held, authority to enter into agreement to sell must stem from valid power of attorney; agency terminated upon death of joint principal as per S. 201 of Contract Act, 1872—Lower courts failed to appreciate misrepresentation and dismissed application under S. 12(2), C.P.C. without properly addressing jurisdictional defect—Such decree liable to be annulled.----Cited Cases:Imamn Din v. Bashir Ahmad (PLD 2005 SC 418)Sitara v. Sohrab (PLD 2014 Lahore 179)(b) Contract Act (IX of 1872), S. 201—Termination of agency—Effect of death of principal on power of attorneyWhere power of attorney is jointly executed and one of the principals dies, agency stands terminated unless contrary intention is evident—Subsequent actions of attorney, including execution of agreement or giving statement in court, are without legal effect—Held, joint agency cannot survive death of any principal unless instrument expressly provides otherwise—Execution of agreement and consent statement after death of co-executant held to be void.(c) Constitutional Jurisdiction—Art. 199—Concurrent findings of fact—Scope of interference:Though courts ordinarily refrain from interfering with concurrent findings, constitutional jurisdiction can be invoked where such findings are perverse, based on misreading of record or tainted with illegality—Held, courts cannot perpetuate illegality under guise of respecting concurrent findings—Findings based on patent illegality or fraud are liable to be set aside.(d) Civil Procedure Code (V of 1908), S. 12(2), S. 141—Remedy for judgment obtained by fraud or misrepresentation:S. 12(2), C.P.C. introduced to provide remedy for annulment of judgments/decrees obtained through fraud, misrepresentation or lack of jurisdiction—Application under S. 12(2) to be decided in accordance with suit procedure per S. 141, C.P.C.—Court empowered to review and annul its own decree tainted with illegality—Held, decree in question was obtained by unauthorized person through misrepresentation and was thus void.----Disposition:Writ petition allowed—Impugned judgments of Civil Judge and Additional District Judge set aside—Application under S. 12(2), C.P.C. accepted—Consent decree declared illegal and without lawful authority.

Summary: (a) Civil Procedure Code (V of 1908)----S. 34---Discretion of the Court in awarding interest---Scope---Distinction between interest under S.34, C.P.C. and compensatory increase on equitable grounds---Principles of unjust enrichment and restitutio in integrum---Petitioner, as general attorney of vendors, executed sale deed in favor of respondent but concealed the fact that one vendor had passed away prior to execution---Legal heirs of deceased vendor successfully challenged the transaction, compelling the respondent to pay additional consideration to perfect title---Trial Court awarded Rs.5,766,000/- to respondent with 5% annual increase from the date of sale deed (11.08.2005)---Held, that interest under S.34, C.P.C. is compensatory and generally applies to an ascertained debt or delayed obligation---However, the 5% increase granted by the Courts below was not in the nature of interest under S.34, C.P.C., but rather a compensatory adjustment based on equitable grounds to neutralize inflation and depreciation suffered by respondent due to petitioner’s fraudulent conduct---Doctrine of restitutio in integrum required restoration of respondent’s financial position as if the wrongful act had not occurred---However, applying the increase from 11.08.2005 constituted unjust enrichment---Modification made to calculate the increase from 28.02.2018, the date of compromise with legal heirs of the deceased vendor.Cited Cases:• Raja Muhammad Sadiq v. WAPDA PLD 2003 SC 290• Ghulam Abbas v. Trustee of Port of Karachi PLD 1987 SC 393• Terni S.P.A v. PECO Ltd. 1992 SCMR 2238• Sui Northern Gas Pipelines v. Deputy Commissioner Inland Revenue 2014 PTD 1939(b) Contract Law---Agency----Fiduciary duty of an agent---Breach of duty by concealment of material facts---Effect---Petitioner, acting as attorney of multiple vendors, failed to disclose the prior demise of one vendor, rendering power of attorney void ab initio---Sale transaction held fraudulent due to non-disclosure, leading to cancellation by Court---Agent’s conduct found to be in breach of fiduciary obligations owed to principal and vendee, resulting in liability for consequential losses suffered by respondent---Petitioner’s failure to contest adverse findings in previous litigation amounted to implicit admission of liability.Cited Cases:• Ghulam Abbas v. Trustee of Port of Karachi PLD 1987 SC 393(c) Civil Procedure---Approbation and Reprobation----Doctrine of approbation and reprobation---Scope---Principle not applicable where change in stance is necessitated by judicial findings---Respondent initially supported petitioner’s claim that deceased vendor had received his share but later sought recovery after judicial determination to the contrary---Held, that respondent’s change in position was not a case of approbation and reprobation but a necessary correction in light of subsequent findings---Doctrine does not apply where a party’s adjustment is based on adjudicated facts rather than self-contradictory assertions.Disposition: Revision petition dismissed with modification; 5% annual increase to be calculated from 28.02.2018 instead of 11.08.2005.

Summary: (a) Civil Procedure Code (V of 1908) ---- S. 47 --- Arbitration Act (X of 1940), Ss. 8 & 17 --- Decree based on arbitral award --- Executing Court's jurisdiction --- Scope. The decree in question arose from an arbitral award rendered under Section 8 of the Arbitration Act, 1940 and made rule of court under Section 17. The decree directed the appellant, National Highway Authority (NHA), to pay the respondent a principal sum along with financing charges at a rate defined in clause 14.8 of the contract, calculated from a specific date until actual payment. The appellant contested the Executing Court’s direction to compute financing charges on a compound basis, asserting that such calculation exceeded the terms of the decree and that simple interest should apply. Held, where a decree is founded on an arbitral award, the Executing Court is bound to execute the decree in strict accordance with the award and cannot reframe or reinterpret the terms. The award, read as a whole, clearly referenced clause 14.8 of the contract, which mandated monthly compounding of financing charges. Thus, the Executing Court's interpretation did not alter the decree but rather enforced its express terms. Cited cases: Jajodia (Overseas) (Pvt.) Ltd. v. Industrial Development Corporation of Orissa Ltd. (1993 (2) SCC 106) Azad Government of the State of Jammu and Kashmir v. Muhammad Aslam Khan (1990 MLD 2333) Bhavan Vaja v. Solanki Hanuji Khodaji Mansang (AIR 1972 SC 1371) Topanmal Chhotamal v. M/s. Kundomal Gangaram (AIR 1960 SC 388) (b) Contract Act (IX of 1872) ---- Construction contracts --- Payment delays --- Entitlement to financing charges on compound basis under contractual terms. Under clause 14.8 of the contract, if payment is delayed beyond the period stipulated in clause 14.7, the contractor is entitled to receive financing charges compounded monthly at a rate three percentage points above the State Bank of Pakistan’s discount rate. Held, the arbitrator explicitly enforced clause 14.8 while awarding financing charges and did not deviate from the contract. Arguments suggesting application of simple interest were contrary to the award and to the clear language of the contractual clause. Arbitrators cannot re-write contracts; conversely, they must interpret and apply contractual provisions faithfully. Therefore, the use of compound interest was not only permitted but mandated under the contract, and was correctly upheld by the Executing Court. (c) Arbitration Act (X of 1940) ---- S. 29 --- Arbitrator’s power to award interest --- Scope and limitations. While Section 29 restricts arbitrators from awarding interest prior to a decree absent agreement between the parties, the present case fell within the exception due to clause 14.8 of the contract, which expressly provided for financing charges in the event of delayed payment. Held, this clause amounted to an implied agreement, thus validating the arbitrator’s award of compound interest from the date of default till actual payment. (d) Execution proceedings --- Payment by way of bank guarantee --- Effect on accrual of interest. Held, mere furnishing of a bank guarantee does not amount to actual payment within the meaning of a decree unless the amount is encashed and received by the decree holder. Interest or financing charges continue to accrue until such encashment. In the instant case, although NHA furnished a bank guarantee in September 2022, actual payment was not made until March 2023. Therefore, financing charges rightly continued to accumulate until the date of payment. Cited case: Syed Waqar-ul-Hassan Shah Bukhari v. Small Business Finance Corporation (2024 CLD 1481) (e) Evidence --- Reports from neutral banking institutions --- Evidentiary value in quantifying decretal amounts. The Executing Court sought independent calculations from HBL and JS Bank Ltd. regarding financing charges under clause 14.8. Held, the reports submitted by both institutions were consistent with each other and in conformity with the decree and the arbitral award, and thus formed a valid basis for directing the respondent to calculate the outstanding decretal amount accordingly. There was no legal infirmity in the Executing Court's reliance on such neutral expert evidence. (f) Decree execution --- Finality of arbitral award and decree --- Respondent’s entitlement to remaining decretal amount calculated on compound basis --- Validity. The appellant's plea that payment of Rs.103,424,206/- discharged the decree was based on an incorrect assumption of simple interest application. Held, the award and decree clearly required financing charges to be compounded monthly; the actual remaining amount, as of January 2024, was Rs.38,067,928/-, which continued to increase due to delay. The Executing Court's direction to provide accurate calculations based on clause 14.8 of the contract was legally sound, and the appeal against the said order was without merit. Disposition: Appeal dismissed. No costs.

Summary: Execution Petition. Filed in ICA 325/14 in Writ 2260-13 (a) Constitution of Pakistan –– ---- Art. 187(2) – Execution of Supreme Court orders – Regularization of contractual employees – Petitioners, regular employees of National Highway Authority (NHA), sought execution of Supreme Court's order dated 02.06.2016 regarding the regularization process for contractual employees – Held, the Supreme Court had directed the competent authority to oversee regularization in accordance with applicable laws – NHA’s Executive Board and National Highway Council, as the competent authorities under the National Highway Authority Act, 1991, undertook a structured scrutiny process, leading to the creation of a National Highway Special Services Cadre (NSSC) – Supreme Court’s directives were duly implemented – Execution petitions disposed of. (b) National Highway Authority Act, 1991 –– ---- Ss. 5, 6, 7, 13 & 14 – Statutory authority for appointments – NHA operates under a two-tier structure: National Highway Council (policy-making) and Executive Board (administration and appointments) – Regularization of employees falls within NHA's statutory discretion – Cabinet Sub-Committee lacked jurisdiction to direct regularization of employees, as held in Syed Mubashir Raza Jaffri v. EOBI (2014 SCMR 949) – Regularization must comply with NHA’s statutory framework. (c) Administrative Law –– ---- Policy discretion in employment matters – Petitioners contended that regularization of contractual employees without a written test violated NHA Service Rules, 1995 – Held, while recruitment rules mandate written tests, contractual employees had served for over a decade and were assessed through their service records – NHA’s decision to regularize them without retrospective application of the testing requirement was neither illegal nor irrational – Courts afford latitude to administrative authorities in employment policies unless malafide or discrimination is shown. (d) Employment Law –– ---- Regularization of contractual employees – Government employment is not a matter of right – Employees appointed without competitive selection cannot claim vested rights to regularization – Held, creation of the NSSC as a “dying cadre” ensured no adverse impact on seniority of regular employees – NHA balanced competing interests through a legally sound policy – No interference warranted. (e) Judicial Review –– ---- Scope of interference in policy decisions – Courts do not substitute policy choices made by competent statutory bodies unless violation of law or irrationality is shown – Decisions of the National Highway Council in its 38th and 40th meetings, which structured a lawful regularization process, did not violate any legal provisions – Writ petitions challenging NHA’s decision were rendered infructuous as the contractual employees had been regularized within a legally created cadre. Disposition: ---- Execution petitions dismissed as Supreme Court’s order was duly implemented – Writ petitions infructuous due to creation of NSSC and setting aside of the impugned notification dated 26.09.2018 – Regularization process upheld as lawful and policy-driven.

Summary: Background: The appellant challenged an arbitration award rendered on 03.06.2020, which the learned civil Court upheld in its order dated 22.09.2021, dismissing the appellant's objections and confirming the award as the rule of the Court. The dispute concerned payment obligations under a contract for architectural and design consultancy services for a 5-star hotel project in Islamabad. The appellant, identified as the "Employer," terminated the contract on 15.06.2017. The respondent, referred to as the "Consultant," claimed unpaid dues and initiated arbitration. The arbitrator awarded the Consultant $358,815 and PKR 3.5 million for reimbursable expenses. ----Issues: 1- Whether the termination notice indicated a default or was for convenience, impacting the Consultant's claim for unpaid dues. -----2- Whether the Consultant, a foreign entity, was legally authorized to initiate proceedings in Pakistan. -----3- Validity of the Employer’s counterclaim regarding payments made to rectify alleged deficiencies. -----4- Justification for the award of reimbursable expenses despite insufficient evidence. -----5- Sufficiency of reasons provided by the arbitrator for awarding phase (d)(iii) fees without Employer approval of final drawings. ----Holding/Reasoning/Outcome: --Termination for Convenience: The arbitrator found the termination was explicitly for convenience as per the contract. The Employer could not later assert termination due to default. --Company Law Compliance: The civil Court found that the Consultant was not barred from proceeding, as they had not established a business presence in Pakistan, negating the need for local registration. --Counterclaim: The counterclaim was dismissed. The Court noted that a termination for convenience precluded any compensation for alleged deficiencies. --Reimbursable Expenses: The civil Court upheld the arbitrator’s award of PKR 3.5 million, deeming it reasonable based on partial evidence of travel and visa costs. Sufficiency of Reasons for Phase (d)(iii): The Court partially upheld the appeal, finding that the arbitrator did not adequately justify the decision to award phase (d)(iii) fees without evidence of the Employer's final approval. This aspect of the award was remitted to the arbitrator for further clarification within 30 days. ----Citations/Precedents: Gerry’s International (Private) Limited vs Aeroflot Russian International Airlines - 2018 SCMR 662 Hodgkinson v. Fernie - [(1857) 3 C.B. (N.S.) 189] Bhagawati Oxygen Ltd. v. Hindustan Copper Ltd - [2005 (6) SCC 462] Abdul Ghani and Inayat Karim - PLD 1960 Supreme Court (Pak) 98 A. Qutubuddin Khan v. CHEC Mill Wala Dredging Co. Pvt. Ltd. - 2014 SCMR 1268 National Highway Authority vs Sambu Construction Co. Ltd - 2023 SCMR 1103 Injum Aqeel vs Latif Muhammad Chaudhry - 2023 SCMR 1361 Shahin Shah vs Government of Khyber Pakhtunkhwa - 2022 SCMR 1810 Rashida Begum vs Ch. Muhammad Anwar - PLD 2003 Lahore 522