Summary: ----Rr.2(aa) & 56---Tender for civil works---Lowest bid---Vested right---Responsive bid---Object, purpose and scope---Security of different nomenclature---Excluding security from insurance companies---Petitioners/bidders claimed to be the lowest bidders who were aggrieved of demand of authorities to furnish "Quality Assurance Security" or "Quality Control Guarantee"---Validity---Lowest quoted bid per se did not make bidder successful and eligible for award of contract, when quoted price was lower than estimated cost---Such bid was not responsive in the first place---Bidder with lowest quote was directed to provide security for covering differential and at such point of time there was no relevance of performance guarantee---If bidder had met the contingency and furnished requisite security, in the kind as directed, only then bid could be classified as "lowest evaluated bid"---Unless contingency was met, no occasion for acceptance of bid had arisen, notwithstanding howsoever low the quote was---Once such condition was fulfilled, the bid was accepted and contract was awarded, then status of the bidder was elevated to the contractor, who was then obligated to provide performance guarantee---Bid was to be accepted only once it was found responsive, and it could not be treated as responsive unless the security demanded, for difference between quoted price and estimated cost, was provided---Only upon acceptance of the lowest evaluated bid the adjective "successful" was added to the credit of bidder---Division Bench of High Court endorsed findings recorded in clause (i) of operative part of decision in case titled as A.M. Construction Company (Private) Limited v. Province of Punjab, reported as 2023 CLC 616---Demand for arranging "Quality Assurance Security" or for that matter "Quality Control Guarantee", where applicable and subject to the amount ascertained, did not conflict with the requirement of procuring performance guarantee, in terms of R. 56 of Punjab Procurement Rules, 2014---Furnishing of additional security did not absolve the lowest evaluated bidder, identified as successful bidder in common parlance, from provisioning of performance guarantee---Exclusion of arranging security from insurance companies was a policy matter decision---Such exclusion did not violate mandate of public procurement regime, prevalent in the province of Punjab---Division Bench of High Court also endorsed decision passed in case titled Messrs Jalal Construction Company v. Secretary C & W Department of Government of Punjab and others, reported as 2024 LHC 329, to the extent of the findings recorded and conclusions reached therein regarding prevalent provincial procurement regime---Constitutional petition was disposed of accordingly. A.M. Construction Company (Private) Limited v. Province of Punjab through Secretary Communication and Works Department and others 2023 CLC 616; Messrs Jalal Construction Company v. The Secretary C&W Department, Government of Punjab and 3 others W.P. No. 23988 of 2022 and Messers Ghulam Muhammad & Sons v. Water and Sanitation Agency (WASA) Faisalabad through Director General and others 2022 MLD 1216 rel. Peshawar Electric Supply Company Ltd (PESCO) and another v. SS Polypropylene (Pvt.) Ltd., Peshawar and others PLD 2023 SC 316 ref. (b) Punjab Procurement Regulatory Authority Act (VIII of 2009)--- ----S. 29---Punjab Procurement Rules, 2014, R. 25 (5)---Constitution of Pakistan, Art. 143---Procurement---Provincial subject---Standard Bidding Document---Scope---Instructions by Executive Committee of the National Economic Council (ECNEC)---Validity---Instructions of ECNEC for extending preference to standard bidding documents drafted by Pakistan Engineering Council is not biding and can not claim superiority vis-?-vis the prevalent procurement regime---Such instructions do not restrict or impede enforcement of public procurement regime envisaged under Punjab Procurement Regulatory Authority Act, 2009 and Punjab Procurement Rules, 2014---Instructions, having advisory status cannot be construed to undermine provincial autonomy and effective enforcement of procurement regime in Punjab---Government of Punjab has introduced contract form for the guidance of bidders and for regulating procurement matters---Violation of any provision of Punjab Procurement Regulatory Authority Act, 2009, the Punjab Procurement Rules, 2014, and regulations, orders or instructions made thereunder, attracts mis-procurement. Constructors Association of Pakistan through Secretary General and 4 others v. Government of Balochistan through Secretary, Communication Department, Quetta and 8 others PLD 2024 Bal. 23 and Messrs Saad Ullah Khan and Brothers v. The Secretary Irrigation Department Government of Balochistan and another Constitution Petition No.1185 of 2022 distinguished. Abdul Samad Ali for Petitioner. Mehar Muhammad Bashir, Nadira Noor, Mehar Muhammad Ilyas Wasli, Haji Tariq Aziz Khokhar, Rana Muhammad Asif Saeed, Mehar Irshad Ahmad Arain, Sajid Hussain Qureshi, Muhammad Akmal Khan Sial, Malik Muhammad Tariq Rajwana, Mirza Muhammad Idrees Khan, Muhammad Saleem Bashir, Malik Sohail Ashiq Shujra, Muhammad Shahbaz Mughal, Ch. Muhammad Saeed Machra, Kanwar Wajih-ud-Din, Najia Noreen Maitla, Rana Muhammad Shakeel, Tariq Murtaz Khan Mallezai, Muhammad Usman Jameel, Mehar Adnan Ahmad Maken and Sajjad Hussain Khan Butta for Petitioners (in connected Petitions). Imran Khan, Assistant Advocate General and Bilal Amin, Advocate/Legal Advisor for Respondents. Zain Rashid, SDO Highway Lodhran, Muhammad Nasrullah SDO, Jam Pur and Muhammad Asif SDO Taunsa Barrage Division, Kot Addu for Respondents. Date of hearing: 5th March, 2024.

Summary: ----S. 48(1) & O.XXI, R.35---Limitation Act (IX of 1908), First Sched., Art. 181 & S. 15---Execution of a decree for possession and sanctioning of mutation---Computation of period of limitation---Exclusion of time during which proceedings were suspended---Revival of earlier executions petitions not decided through final order being continuation of proceedings---Scope---First and second execution petitions, which were filed within time, were consigned to record due to misunderstanding that the decree had been satisfied and for non-deposit of cost of warrant of Dakhal---Upon filing of third execution petition objection petition was filed by the petitioner raising objection as to its maintainability being barred by time, which was dismissed by the executing and appellate Courts---Validity--- Words 'fresh application' had been used in S. 48(1), C.P.C., therefore, what was contemplated under this section by the words 'fresh application', was a substantive merely ancillary or incidental to a previous application, that was to say if the decree holder sought to set the Court into motion to take further proceedings in respect of an application already pending or where the application had been recorded or where the execution proceedings had been suspended by reasons of appeal or other proceedings, it would not be regarded as fresh application---Execution application was deemed to be pending so long as no final order disposing it judicially had been passed thereon---Subsequent application in such a case for execution would be deemed to be one merely for the continuation of the original proceedings---Where final judicial order terminating the execution petition had been passed on the application, such execution proceedings could not be revived and the subsequent application for execution would be regarded as fresh application and not one for revival and continuation of the original proceedings---Mere reports, in the 'Warrant Dakhal' and 'Rapt Roznamcha Waqiati', that possession was given to the decree holders could not be taken as conclusive proof of the fact that the decree holders were put into physical possession of the suit land decreed in their favour till the decree holders admitted the said fact---Decree holders had not come to the court for some new or fresh relief rather they approached the executing court to get the relief given by High Court, thus, their third execution petition was just revival of their earlier execution petitions which were filed within time and consigned to record without satisfaction of the decree passed in their favour and the decree holders were pursuing their case since long and their decree was still unsatisfied---Civil revision was dismissed, in circumstances. Rana Kent Malaviya and another v. Satya Narain Malaviya AIR 1938 Allahabad 552; Krishnamachari v. Chengalraya Naidu AIR 1940 Madras 281; Venlappa and others v. Lakshmi Kant Rao AIR 1956 Hyderabad 7; Muhammad Umer Khan v. Muqarrab Khan and another PLD 1976 Pesh. 43 and United Bank Limited v. Fateh Hayat Khan Tawana and others 2015 SCMR 1335 rel. Raja Abdul Rehman for Petitioner. Muhammad Ghafoor Malik for Respondents Nos. 1 to 6. Ms. Samia Khalid, Additional Advocate General for Respondent No. 7. Date of hearing: 24th April, 2024.

Summary: (b) Supreme Court (Practice and Procedure) Act (XVII of 2023)--- ----S. 2---Constitution of Pakistan, Art. 191A---Judicial and administrative orders---Scope---No administrative authority, including Committees constituted under section 2 of Supreme Court (Practice and Procedure) Act, 2023 and Article 191A of the Constitution, can by administrative order, undo the effect of a judicial order. (c) Supreme Court (Practice and Procedure) Act (XVII of 2023)--- ----S. 2---Constitution of Pakistan, Arts. 191A & 204---Contempt proceedings---Non-fixation of case---Executive and judicial order---Supreme Court initiated contempt proceedings against contemner/ officer of Supreme Court office who fixed case in question before Constitutional Bench of Supreme Court on the basis of order passed by Committee of Supreme Court constituted under section 2 of Supreme Court (Practice and Procedure) Act, 2023---Validity---Contemner/ officer of Supreme Court office did not deliberately avoid fixation of cases before the Bench as directed in the Court order---There was no evidence to suggest that contemner/officer of Supreme Court office had any personal interest in the matter or had connived with any of the parties to the case nor did he act with intention of causing damage to any of the parties to the case---There was no indication of mala fide intent in the actions of contemner/officer of Supreme Court office---In absence of any such factors or elements of contumacy, conduct of contemner/officer of Supreme Court office could not be considered contumacious nor it suffered from mala fides requiring contempt proceedings against him---Supreme Court withdrew show cause notice issued against contemner/officer of Supreme Court office---Contempt proceedings were withdrawn. In attendance: Mansoor Usman Awan, AGP. Hamid Khan, Sr. Advocate Supreme Court, Amicus curiae. Munir A. Malik, Sr. Advocate Supreme Court, Amicus Curiae (Through Video Link from Karachi) Kh. Haris Ahmad, Advocate Supreme Court - Amicus curiae. Muhammad Ahsan Bhoon, Advocate Supreme Court, Amicus curiae Salahuddin Ahmed, Advocate Supreme Court, Shahid Jamil, Khan, Advocate Supreme Court, Counsel for Respondents (in CPLA 836-K of 2020, etc.) Nazar Abbas, Addl. Reg. (J), SCP. (The respondent/accused in person) Dates of hearing: 21st, 22nd and 23rd January, 2025.

Summary: ----Ss. 5, 6, 30, 72, 73 & 84---Civil Procedure Code (V of 1908), O. XXXVII---Suit for recovery on the basis of negotiable instruments (nine cheques)---Pre-requisites---Presentment of cheque before the bank---Seven out of nine claimed cheques (cheques-in-question) not having been presented before the bank, were produced by the respondent/plaintiff in his statement recorded before the Trial Court--- Trial Court decreed recovery of whole amount regarding nine cheques-- -Validity---Record reveals that appellant/defendant in his written statement denied the factum of outstanding amount, and that the respondent/plaintiff through a representative of concerned branch of the Bank, being one of his (plaintiff's) witnesses, only succeeded to produce(get exhibited) two cheques (amounting to Rs. 5 lac each) issued by the appellant/respondent which were dishonored; the remaining seven cheques (cheques-in-question) were produced by the respondent/plaintiff in his statement recorded before the Trial Court---Admittedly, there was no evidence on record produced by the plaintiff for presentment of the cheques-in-question to the concerned branch of the Bank---Section 5 of the Negotiable Instruments Act, 1881, ('the Act 1881') defines "bill of exchange" and section 6 of the Act 1881 defines "cheque" as a bill of exchange drawn on specified banker and not expressed to be payable otherwise than on demand---It appears that dishonor by non-acceptance or non-payment gives rise to an immediate right to recourse against the drawer of the bill of exchange---Section 68 of the Act 1881 deals with all negotiable instruments including cheques while S. 73 of the Act 1881deals with the cheque and provides the time of presentment and its consequence; this section further provides that a cheque must be presented for payment within reasonable time after its delivery to the holder---It is the mandate of the Act 1881 that all negotiable instrument should be presented for payment within a reasonable time---According to section 72 of the Act 1881, the drawer of the cheque is the principle debtor and he cannot avoid his liability towards the holder except in case of non-presentment of a cheque within a reasonable time---Sections 72 & 84 of the Act 1881 stipulate that unless a cheque is presented for payment within a reasonable time of its issue no right to recover the amount would accrue---Presentment of a cheque, being a bill of exchange, is a condition precedent in order for a payee to charge the drawer/maker of a cheque; thus, for filing suit under O. XXXVII, C.P.C. based on a cheque, it is necessary to present the said cheque to the bank, as presentment under the provisions of the Act 1881 is the cause of action, in a suit based upon such an instrument---In the present case, admittedly there was no evidence of presentment of the seven cheques (in-question) having been exhibited/produced by the plaintiff in his statement before the Trial Court to the concerned branch of the Bank, therefore, to the said extent suit of the respondent/plaintiff under O. XXXVII, C.P.C., was not maintainable, however to the extent of two cheques duly exhibited [total amount of Rs.10,00,000/- (ten lac only)], the impugned judgment was maintained---High Court set-aside impugned judgment/ decree to the extent of said seven cheques and suit to that extent filed by the respondent/plaintiff was dismissed---However, impugned judgment/ decree to the extent of two duly exhibited cheques was maintained---Appeal filed by the defendant, was partly allowed. National Bank of Pakistan v. Shahyar Textile Mills Ltd. 2003 CLD 1370; Al-Hamd Edible Oil Industries (Pvt.) Limited through Chief Executive v. Syed Waseem Hyder 2008 CLC 1578 and Khalifa Azhar Mumtaz v. Ghulam Akbar 2014 CLC 1448 ref. Rehmatullah Barech for Appellant. Mian Badar Munir for Respondent. Date of hearing: 18th October, 2023.

Summary: ----Ss. 5, 6, 30, 72, 73 & 84---Civil Procedure Code (V of 1908), O. XXXVII---Suit for recovery on the basis of negotiable instruments (nine cheques)---Pre-requisites---Presentment of cheque before the bank---Seven out of nine claimed cheques (cheques-in-question) not having been presented before the bank, were produced by the respondent/plaintiff in his statement recorded before the Trial Court--- Trial Court decreed recovery of whole amount regarding nine cheques-- -Validity---Record reveals that appellant/defendant in his written statement denied the factum of outstanding amount, and that the respondent/plaintiff through a representative of concerned branch of the Bank, being one of his (plaintiff's) witnesses, only succeeded to produce(get exhibited) two cheques (amounting to Rs. 5 lac each) issued by the appellant/respondent which were dishonored; the remaining seven cheques (cheques-in-question) were produced by the respondent/plaintiff in his statement recorded before the Trial Court---Admittedly, there was no evidence on record produced by the plaintiff for presentment of the cheques-in-question to the concerned branch of the Bank---Section 5 of the Negotiable Instruments Act, 1881, ('the Act 1881') defines "bill of exchange" and section 6 of the Act 1881 defines "cheque" as a bill of exchange drawn on specified banker and not expressed to be payable otherwise than on demand---It appears that dishonor by non-acceptance or non-payment gives rise to an immediate right to recourse against the drawer of the bill of exchange---Section 68 of the Act 1881 deals with all negotiable instruments including cheques while S. 73 of the Act 1881deals with the cheque and provides the time of presentment and its consequence; this section further provides that a cheque must be presented for payment within reasonable time after its delivery to the holder---It is the mandate of the Act 1881 that all negotiable instrument should be presented for payment within a reasonable time---According to section 72 of the Act 1881, the drawer of the cheque is the principle debtor and he cannot avoid his liability towards the holder except in case of non-presentment of a cheque within a reasonable time---Sections 72 & 84 of the Act 1881 stipulate that unless a cheque is presented for payment within a reasonable time of its issue no right to recover the amount would accrue---Presentment of a cheque, being a bill of exchange, is a condition precedent in order for a payee to charge the drawer/maker of a cheque; thus, for filing suit under O. XXXVII, C.P.C. based on a cheque, it is necessary to present the said cheque to the bank, as presentment under the provisions of the Act 1881 is the cause of action, in a suit based upon such an instrument---In the present case, admittedly there was no evidence of presentment of the seven cheques (in-question) having been exhibited/produced by the plaintiff in his statement before the Trial Court to the concerned branch of the Bank, therefore, to the said extent suit of the respondent/plaintiff under O. XXXVII, C.P.C., was not maintainable, however to the extent of two cheques duly exhibited [total amount of Rs.10,00,000/- (ten lac only)], the impugned judgment was maintained---High Court set-aside impugned judgment/ decree to the extent of said seven cheques and suit to that extent filed by the respondent/plaintiff was dismissed---However, impugned judgment/ decree to the extent of two duly exhibited cheques was maintained---Appeal filed by the defendant, was partly allowed. National Bank of Pakistan v. Shahyar Textile Mills Ltd. 2003 CLD 1370; Al-Hamd Edible Oil Industries (Pvt.) Limited through Chief Executive v. Syed Waseem Hyder 2008 CLC 1578 and Khalifa Azhar Mumtaz v. Ghulam Akbar 2014 CLC 1448 ref. Rehmatullah Barech for Appellant. Mian Badar Munir for Respondent. Date of hearing: 18th October, 2023.

Summary: ----Ss. 8 & 19---Civil Procedure Code (V of 1908), O. VII, R.11---Constitution of Pakistan, Art. 199---Constitutional petition---Rejection of proceedings---Custody of minor---Ordinary place of residence of minor outside Pakistan---Jurisdiction of Court in Pakistan---Scope---Petitioner/father of minor assailed guardian proceedings before Guardian Court on the plea that ordinary place of residence of minor was abroad and not in Pakistan---Trial Court declined to reject the proceedings---Validity---At the time when dispute relating to custody of minor arose and guardian application was filed at Karachi by respondent/mother of minor, the home state/ordinary residence of minor was State of Washington, USA and not Karachi---Minor was not illegally or improperly removed or taken away from the custody of respondent at Karachi nor were the minor or parties residing or last resided at Karachi---Cause of action alleged by respondent/mother of minor had not arisen at Karachi---Guardian Court at Karachi did not have territorial jurisdiction to entertain application of respondent/ mother of minor seeking orders relating to custody of minor---High Court set aside order passed by Guardian Judge and application under O. VII, R. 11, C.P.C., filed by petitioner/father of minor was allowed-- -Minor could not be deprived of love, affection, care, presence and company of her father under any circumstances; and the respondent/ mother could not be the sole judge to decide when the minor should see or meet her father and grandparents and for how long or how frequently---Such right of petitioner/father and the minor, under Shariah and law in Pakistan, could not be denied or even curtailed---High Court settled schedule of meeting of petitioner/father with his daughter---Constitutional petition was allowed accordingly. Louise Anne Fairley v. Sajjad Ahmed Rana PLD 2007 Lah. 300; Major Muhammad Khalid Karim v. Mst. Saadia Yaqub and others PLD 2012 SC 66 and Muhammad Iqbal through Special Attorney Faiz Sultan v. Parveen Iqbal PLD 2005 SC 22 rel. Abid Hussain v. Rukhsana Munir and others 2020 YLR 1533; Peggy Collin v. Muhammad Ishfaque Malik PLD 2010 Lah. 48; Surya Vadanan v. State of Tamil Nadu and others (2015) 5 Supreme Court cases 450; All England Law Reports (1966) 1 All E.R. page 889; Shilpa Aghgarwal (Ms) v. Aviral Mittal and another (2010) 1 Supreme Court Cases 591; Muhammad Khalil-ur-Rehan v. Shabana Rehan and another PLD 1996 SC 633; Nisar Muhammad v. Sultan Zarin PLD 1997 SC 852; Mirjam Aberras Lehdeaho v. SHO Police Station Ghung, Lahore and others 2018 SCMR 427; Roshni Desai v. Jahanzeb Niazi PLD 2011 Lah. 423; Josip Stimac and others v. Melitta Syed Shah and others PLD 2009 Lah. 393; Mariam Khan v. Mehryar Salim and another 2008 YLR 2647; Surinder Kaur v. Harbax Singh AIR 1984 SC 1224; Elizabeth Dinshaw v. Arvand M. Dinshaw AIR 1987 SC 3; McKEE v. McKEE (1951) 1 All. E.R. 942; V. Ravi Chandran (Dr.)(2) v. Union of India and others (2010) 1 SCC 174; Faraz Alamgir v. Additional District and Sessions Judge VIII and 2 others 2017 YLR 994; Malik Gul Raiz Awan v. Mst. Asma Gul Raiz and others 2009 MLD 1274; Ejaz Naseem v. Fareeha Ahmad and others 2009 SCMR 484; Mst. Nasreen and another v. Raja Muhammad Shahid Bashir and others 2019 CLC 1213; Rafiq Ahmad v. Judge Family Court, Khanewal and another 1996 CLC 1820; Mst. Aneeta Tanveer v. Muhammad Younus and others 2010 YLR 513 and Malik Khizar Hayat Khan Tiwana and Malik Ghulam Muhammad Khan v. Mst. Zainab Begum, Ch. Aziz Ahmad Waraich, District Judge, Lahore and Qazi Muhammad Dastgir, Guardian Judge, Lahore PLD 1967 SC 402 ref. (b) Guardians and Wards Act (VIII of 1890)--- ----Ss. 8 & 19---Custody of minor---Determining factor---Welfare of minor---Parental jurisdiction of Court---Paramount consideration in cases of custody and guardianship of minors is their welfare---Welfare of minors is the sole consideration as they are not in a position to decide about their welfare and as such their welfare is decided by their parents and in their absence or in case of any dispute between them, it becomes duty of Court to make a decision regarding their welfare by exercising parental jurisdiction. Faisal Siddiqui for Petitioner. Farooq H. Naek for Respondent. Dates of hearing: 16th, 23rd, 30th September, 1st November, 16th December, 2021, 2nd June, 15th August, 2nd September, 6th October, 2022, 31st May, 2023 and 6th February, 2024.

Summary: In attendance: Muhammad Salim Khan, Registrar, SCP. Zulifqar Ahmed, D.R. (Judl.), SCP. Aamir Rehman, Addl. A.G.P. Salahuddin Ahmed, Advocate Supreme Court. Shahid Jamil Khan, Advocate Supreme Court. Hamid Khan, Senior Advocate Supreme Court. Date of hearing: 21st January, 2025.

Summary: ----S. 114 & O. XLVII, R. 1---Limitation Act (IX of 1908), S.14---Law Reforms Ordinance (XII of 1972), S.3---Intra Court Appeal---Review---Doctrine of election---Applicability---Plea of wrong forum---Extending of period of limitation---Scope---Appellants were aggrieved of dismissal of their application filed under O. XLVII, R. 1, C.P.C. seeking review of basic order---Appellants assailed the order passed in review and also the basic order to be reviewed---Held, that principles of doctrine of election denote that election to commence and follow available course, from concurrent avenues, vests with suitor---Once an option is exercised then the suitor is precluded from re-agitating the same lis in other realms of competent jurisdiction---Appeal, to the extent of order against which review was sought was time barred and could not be maintained---Period spent in pursuing review was not liable to be excluded while reckoning period of limitation for assailing basic or original order as in essence the intent was to call in question the correctness and validity of initial order of which the review was sought which had attained finality creating valuable rights in favor of the other party which could not be disturbed so lightly---Appeal against order refusing a review was in fact seeking vacation of previous order which by efflux of time had become final, whereas, refusal to review could not give a fresh period of limitation---Not availing remedy of appeal as provided under law against a basic order and instead prosecuting a review before same Court, did not allow appellants to benefit from S. 14 of Limitation Act, 1908 as the time spent could not be excluded in computing period of limitation---Appellant only intended to drag the matter; whereas, offer of respondent already stood accepted way back in year, 2021 and appellant intended to avail benefit of increase in price---High Court declined to interfere in basic order as well as order dismissing review---Intra Court Appeal was dismissed, in circumstances. Trading Corporation of Pakistan v. Dewan Sugar Mills Limited PLD 2018 SC 828; Collector of Sales Tax v. Customs Appellate Tribunal 2008 SCMR 435; Ghulam Hussain v. Kanwar Ashiq Ali Khan PLD 1980 SC 198; Mumtaz Baig v. Jamal Din 2009 SCMR 1364; Ghulam Nabi v Rashid PLD 2000 SC 63; Mahadeolal Jalan v. Messrs Hardeodas Iswardas AIR 1992 Gauhati 78; Madan Mohanji Maharaj v. Sunder Lal AIR 1953 All. 554; Ram Lal v. Ratan Lal ILR 26 Allahabad 572; Shanker Motiram v. Shiolalsing Gannusing Rajput (1994) 2 SCC 753; Lahore Development Authority v. Fahmeeda Khatoon 1986 SCMR 1478; The Military Estate Officer v. Ardeshir Cowasjee 2017 MLD 22; Ahmed Ali v. Noor Muhammad 1987 CLC 1575 and Muhammad Din v. Ilahi Noor PLD 1975 Lah. 1393 rel. Muhammad Zubair Hashmi for Appellant No. 1. Adeel Mahmood Shah for Appellant No. 2. Mansoor-ul-Arfin for Respondent No. 1. Date of hearing: 8th November, 2023.

Summary: ----S.9---Suit for recovery of finance---Entries of statement of account-- -Proof---Parties prove facts stated in pleadings---Statement of account is simply the ledger maintained by bank reflecting outstanding amount of a finance facility but its entries are required to be proved by underlying documents by evidence led by the plaintiff. (b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--- ----S. 9---Suit for recovery of finance against surety---Maintainability---Pre-condition---Existence of a debt is a sine qua non for an action against surety even if it is separately and independently brought against it---Foundation or basis of claim even in suit against surety is liability of principal debtor. (c) Civil Procedure Code (V of 1908)--- ----S. 45---Execution proceedings---Several co-defendants---Principle---Plaintiff who has obtained judgment against several co-defendants who are jointly and severally liable, can take execution proceedings against any one of the co-defendants, or any combination of them or all of them. (d) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--- ----S. 9---Suit for recovery of finance---Debtor and guarantor, joining of---Principle---Even if contract of guarantee by its terms makes guarantor not jointly liable and cause can be said to be separate, the creditor can bring an action by joining principal debtor and surety as defendants. Bank of Bihar Ltd. v. Damodar Prasad and another [1969] 1 SCR 620 rel. (e) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--- ----S. 9---Civil Procedure Code (V of 1908), O.II, R.2---Contract Act (IX of 1872), S. 128---Suit for recovery of finance---Liability of surety- --Joint cause of action---Plaintiff/bank filed suit against principal borrowers and surety for failure to repay finance facilities---Validity---Plaintiff/bank by provisions of O. II, R. 2, C.P.C. was precluded from splitting claim which had its foundation in joint cause of action against all defendants---Provision of Explanation to O. II, R. 2, C.P.C. supported case of plaintiff/bank in treating cause of action against all defendants as unified and joint---Plaintiff/bank proved its case against defendants for recovery of amounts under finance facilities in question and mark-up under Running Finance facility in addition to preliminary decree that was passed earlier---High Court decreed the suit in favour of plaintiff/bank and against defendants, jointly and severally---Suit was decreed accordingly. Saudi Pak Industrial and Agricultural Investment Limited v. B.A Rajput Steel and Re-rolling Mills (Pvt.) Limited and others 2016 CLD 465; Sri Sri Raja Lakshmi Narayan Jew and others v. The Province of East Pakistan 1969 SCMR 898; Mst. Bakht Bibi v. Muhammad Aslam Khan and others 2016 MLD 1411; Loo Chay Sit v. Estate of Loo Chay Loo (2010) 1 SLR 286; Muhammad Luqman v. The State PLD 1969 Lah. 257; High Noon Textile Limited and others v. Saudi Pak Industrial and Agricultural Investment Company (Pvt.) Limited and 4 others 2010 CLD 567; State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCMR 393; Messrs Kadir Motors (Regd). Rawalpindi v. Messrs National Motors Ltd., Karachi and 3 others 1992 SCMR 1174; National Construction Limited v. Standard Insurance Co. Limited 1984 CLC 286 and Kamila Aamir and another v. Additional District and Sessions Judge and others PLD 2023 Lah. 601 ref. (f) Contract Act (IX of 1872)--- ----S. 128---Word "coextensive"---Scope---Word "coextensive" in S. 128 of Contract Act, 1872 refers to the extent to which surety is liable towards creditor---Surety is not liable for more than what is due from principal debtor---Surety, under S. 128 Contract Act, 1872 may impose limits on restricting its liability by entering into a special contract. Ashar Elahi and Syed Majid Ali Bukhari for Plaintiff. Haq Nawaz Chattha for Defendants Nos.1 to 8. Zaki ur Rehman for Defendant No.9. Date of hearing: 18th March, 2024.

Summary: (a) Interpretation of contract--- ----It is a settled principle of interpreting a contract that a court cannot imply something that is inconsistent with the express terms, and a stipulation not expressed in the written contract can also not be applied merely because it appears to be reasonable to the court. Housing Building Finance Corporation v. Shahinshah Humayun Cooperative House Building Society and others 1992 SCMR 19 ref. (b) Dissolution of Muslim Marriages Act (VIII of 1939)--- ----S. 2(iia)---Muslim Family Laws Ordinance (VIII of 1961), S. 6---Grounds for decree for dissolution of marriage---Taking additional wife in contravention of the provisions of the Dissolution of Muslim Marriages Act, 1939---Repeal of section 13 of Muslim Family Laws Ordinance (VIII of 1961) through the Federal Laws (Revision and Declaration) Ordinance, 1981 did not affect the validity and enforcement of the insertion made in the Dissolution of Muslim Marriages Act, 1939---Therefore, clause (iia) of section 2 of the Dissolution of Muslim Marriages Act, 1939 continues to be one of the valid, effective and subsisting grounds for dissolution of marriage. (c) Family Courts Act (XXXV of 1964)--- ----S.5, Sched.---Khula through judicial order---Scope---Khula through judicial order is dissolution of marriage by the court/Qazi on the demand of the wife---It authorises the court to dissolve the marriage in an appropriate case against the will or consent of the husband -- However, a court on its own cannot order dissolution of the marriage on the basis of Khula when it has not been sought by the wife either expressly or impliedly. Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97 ref. (d) Dissolution of Muslim Marriages Act (VIII of 1939)--- ----S. 2(iia)---Muslim Family Laws Ordinance (VIII of 1961), S. 6---Family Courts Act (XXXV of 1964), S.5, Sched.---Grounds for decree for dissolution of marriage---Taking additional wife in contravention of the provisions of the Dissolution of Muslim Marriages Act, 1939---Khula---Scope---In the present case when the husband (defendant) took a second wife, he contravened the provisions of the Muslim Family Laws Ordinance, 1961 (Ordinance of 1961) since neither any application was filed nor the permission of the Arbitration Council was sought in accordance with the requirements set out under section 6 of Ordinance of 1961---However, instead of adjudicating this ground, the appellate court had ordered the dissolution of the marriage on the basis of Khula---Appellate court, therefore, fell in error by granting a decree for the dissolution of marriage on the basis of Khula when it was not sought by the wife (plaintiff) nor had she given express or implied consent thereto---High Court had also not recorded any reasons in support of its conclusion to order dissolution of marriage on the ground of cruelty---Appellate court and the High Court fell in error by ordering the dissolution of the marriage between the husband and the wife on the ground of Khula and cruelty respectively---Supreme Court held that the dissolution of the marriage between the husband and the wife was on the basis of the ground described under clause (iia) of section 2 of the Dissolution of Muslim Marriages Act, 1939---Supreme Court declared that the decree of the trial court to the extent of restitution of conjugal rights was not sustainable; that the judgments and decrees to the extent of restitution of conjugal rights and dissolution of the marriage on the ground of Khula or cruelty were illegal and accordingly set aside; that the decrees granted by the Trial Court regarding dower, dowry articles, maintenance and visitation schedule shall, therefore, sustain and were accordingly upheld. Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97 ref. (e) Dissolution of Muslim Marriages Act (VIII of 1939)--- ----S. 2---Grounds for decree for dissolution of marriage---Cruelty by husband---Cruelty may be mental or physical. Mst. Tayyeba Ambareen v. Shafqat Ali Kiyani 2023 SCMR 246 ref. Waseem ud Din Khattak, Advocate Supreme Court (Through Video link Peshawar) for Petitioners (in C. P. No. 308-P of 2019). Barrister Umer Aslam, Advocate Supreme Court and Ch.Akhtar Ali, Advocate-on-Record for Respondent No. 1 (in C. P. No. 308-P of 2019). Barrister Umer Aslam, Advocate Supreme Court and Ch.Akhtar Ali, Advocate-on-Record for Petitioners (in C.P. No. 1388 of 2019). Waseem ud Din Khattak, Advocate Supreme Court (through Video link Peshawar) for Respondent No. 1 (in C.P. No. 1388 of 2019). Date of hearing: 03rd May, 2024.