Summary: The judgment had decreed in favor of the respondent, Ibrar Ali, who had filed a suit for possession through specific performance of an agreement to sell concerning certain properties.Ibrar Ali claimed that he had paid the entire consideration and obtained possession of the properties mentioned in the agreement, and after the death of the property owner, he requested the appellants (legal heirs of the deceased) to execute the sale deed but they refused. Consequently, he filed a lawsuit. The trial court framed several issues, including whether the plaintiff had purchased the properties, whether the plaintiff was entitled to specific performance, and whether the agreement was fraudulent. After considering the evidence presented by both parties, the trial court decreed the suit in favor of the plaintiff. The appellants challenged this decision in the Lahore High Court, arguing that the agreement was forged, and the evidence was insufficient. The respondents, on the other hand, argued that the appeal was filed by an unauthorized person. The court examined the evidence and found discrepancies in the plaintiff's testimony and the lack of a signed agreement by the plaintiff. As a result, the Lahore High Court allowed the appeal, setting aside the judgment and decree of the trial court and dismissing the plaintiff's suit.

Summary: Arbitration Act (X of 1940)--- ----Ss. 30 & 33---Contract for supply of vehicles---Arbitration award in favour of defendant was remitted by the court with directions to the arbitrator to state reasons for the award, which direction was not complied with by the arbitrator---Defendant, during pendency of said arbitration proceedings, appropriated an amount lying with it, which amount was in consideration for another later contract between the parties---Plaintiff's present suit for recovery sought recovery of the said amount---Held, that the defendant's act of appropriation of amount in respect of the earlier contract from amount lying with the defendant under a contract was not justified nor lawful---Failure of defendant to pursue legal remedy for recovery of said amount once arbitration award was set aside by the court rendered the defendant liable to refund the said amount forthwith---Suit was decreed accordingly.

Summary: Muhammad Mansha filed a suit for Declaration and Cancellation of the same document (agreement to sell) on the grounds that he never executed such an agreement and that it was fabricated to take over his property. After consolidating both suits, the trial court decreed the suit for Specific Performance and Permanent Injunction in favor of (appellant), and dismissed the suit for Declaration and Cancellation of the document filed by (respondent). However, the Lahore High Court, in this judgment, held that the appellant failed to prove the agreement to sell as per the legal requirements. The appellant produced only one marginal witness instead of the required two witnesses, which was mandatory under Article 17 of the Qanun-e-Shahadat Order 1984. Moreover, the consideration mentioned in the agreement was not sufficiently proved. Lahore High Court dismissed (appellant), upholding the trial court's decision. Simultaneously, (respondent) was allowed, resulting in the dismissal of the Suit for Specific Performance of the agreement to sell.

Summary: (a) Specific Relief Act (I of 1877)-------S. 12---Civil Procedure Code (V of 1908), O. XXIII, R. 3 & O. VII, R. 11---Suit for specific performance of agreement to sell---Compromise---Cause of action---Power-of-attorney---Rejection of plaint---Scope---Executant of power of attorney died prior to the execution of agreement to sell---Effect---Agreement was not validly entered into by and between the parties after the death of principal---Said agreement to sell was not enforceable at law even if contesting parties were ready and willing to abide by its terms---Sub-attorney who claimed to have entered into an agreement of sell with the attorney had not invited objections on entering into agreement of sale of suit property---Even (present) plaintiff after entering into agreement of sale with the sub-attorney had not issued any public notice in newspapers for inviting any objection from public-at-large for transfer of title of suit property---Had such effort been made, legal heirs of the deceased executant of power-of-attorney could have warned the plaintiff before making any further payment of suit property---Search certificate of suit property was not obtained from the office of Sub-Registrar of the properties concerned---Defendant had already breached promise with the plaintiff---Broken promise by the compromising parties could not be endorsed by the court---Application for compromise of suit was liable to be dismissed---No cause of action existed for filing of suit against the defendant---Cause of action shown in the plaint was a false and collusive statement of plaintiff and defendant---Plaintiff had attempted to obtain a compromise decree from the court---Defendant had never refused to perform her part of contract---When cause of action had ceased to exist, provisions of O. VII, R. 11, C.P.C. would attract and plaint was liable to be rejected---Suit for specific performance was liable to be rejected once defendant had conceded that he was ready and willing to perform his part of contract---Nazir of the court could not be allowed to perform part of contract under circumstances---Suit had become infructuous and plaint was liable to be rejected---Both the suit and compromise application were dismissed with cost of Rs. 100,000/- to be jointly and severally borne by the plaintiff and defendant---Said cost should be paid within specified period and if the same was not paid, Nazir of the court should take step for recovery of cost including attachment of movable and immovable properties of plaintiff and defendant---Member Inspection Team of High Court was directed to examine the record and if any criminal case was made out, he should initiate or cause to initiate criminal proceedings against plaintiff and defendant in accordance with law. Specific Performance of Contract (Transfer of Property -Suit Dismissed ) Diamond Rubber Mills v. Pakistan Television Corporation Ltd. and 2 others 1989 CLC 1989 rel.(b) Civil Procedure Code (V of 1908)-------O. VII, R. 11---Rejection of plaint---Scope---Jurisdiction of civil court to exercise its authority to adjudicate between the parties would co-exist with the "cause of action" to settle the grievance of plaintiff against the defendant on his/her denial to accept/acknowledge certain rights of plaintiff---No suit could be filed without a "cause of action" and if at all such suit was filed, plaint should be rejected for want of cause of action---If cause of action had ceased to continue after filing of suit, nothing was left for the court to exercise its authority.

Summary: (a) Civil Procedure Code (V of 1908) ---- S. 12(2) --- Suit for specific performance --- Consolidation of suits --- Effect of lis pendens --- Appellants filed a suit for specific performance, claiming an agreement to sell dated 18-6-1988, while respondent No.1 claimed a prior agreement dated 7-6-1988 --- During pendency of the litigation, the vendors executed a compromise with the respondent, leading to a consent decree and subsequent sale deed in his favor --- Appellants challenged the decree under S. 12(2), C.P.C., leading to consolidation of suits --- Held, that the sale deed in favor of respondent No.1, executed during the pendency of the suit, was subject to the principle of lis pendens and its validity depended on the final adjudication of the case --- However, the appellants failed to prove their own agreement and readiness to perform, making the principle of lis pendens inapplicable in their favor --- Appeal dismissed. Cited Cases: Muhammad Ashraf Butt v. Muhammad Asif Bhatti (PLD 2011 SC 905) (b) Specific Relief Act (I of 1877) ---- S. 22 --- Discretionary relief --- Grant of specific performance not a matter of right --- Appellants sought specific performance of an agreement that was neither signed by them nor proved in accordance with law --- Vendors initially admitted the agreement but later changed their stance, alleging appellants' failure to fulfill their obligations --- Supreme Court held that specific performance is a discretionary relief and courts are not bound to grant it merely because it is lawful to do so --- Conduct of the parties, readiness and willingness to perform, and totality of circumstances must be considered --- Given the appellants' failure to demonstrate good faith and lack of proactive steps to complete the transaction, the court declined to exercise discretion in their favor. Cited Cases: Liaqat Ali Khan v. Falak Sher (PLD 2014 SC 506) Mst. Mehmooda Begum v. Syed Hassan Sajjad (PLD 2010 SC 952) Shakeel Ahmed v. Mst. Shaheen Kousar (2010 SCMR 1507) (c) Qanun-e-Shahadat Order, 1984 ---- Arts. 17 & 79 --- Proof of agreement to sell --- Attesting witnesses --- Admissibility of evidence --- Appellants relied on an agreement to sell that was not signed by them --- Held, that an agreement to sell immovable property requires attestation by two witnesses under Article 17(2), Q.S.O., 1984, and must be proved in accordance with Article 79 --- Appellants examined only one attesting witness, failing to meet the evidentiary requirement --- Furthermore, a scribe of the document is not a substitute for an attesting witness --- Given that the respondent had denied the execution of the agreement, the burden was on the appellants to prove it through proper attestation, which they failed to do. Cited Cases: Hafiz Tassaduq Hussain v. Muhammad Din (PLD 2011 SC 241) Mst. Gulshan Hamid v. Kh. Abdul Rehman (2010 SCMR 334) (d) Civil Procedure Code (V of 1908) ---- S. 115 --- Revision petition against a deceased person --- Effect --- Maintainability --- Respondent No.1 filed a civil revision before the High Court, but one of the respondents (Shaukat Ali) was deceased at the time of its institution --- Appellants contended that the revision was a nullity in law --- Supreme Court held that failure to implead legal heirs of a deceased party does not automatically render proceedings void, as such defects are curable --- Since Shaukat Ali’s legal heirs were already involved in the litigation and had full opportunity to present their case, the objection was technical and lacked merit. Cited Cases: Malik Bashir Ahmed Khan v. Qasim Ali (PLD 2003 Lah 615) Muhammad Yar v. Muhammad Amin (2013 SCMR 464) (e) Administration of Justice ---- Discretionary powers of the court --- Balancing competing claims --- Rival claims of specific performance were made by appellants and respondent No.1 regarding the same property --- Supreme Court held that courts must assess competing interests based on conduct, equities, and readiness to perform contractual obligations --- Appellants' lack of proactive efforts, failure to prove their agreement, and inability to demonstrate readiness to perform were key factors in denying them relief --- Appeal dismissed. Disposition: Appeal dismissed. Judgment of the High Court upholding the dismissal of the appellants' suit for specific performance was maintained.

Summary: ----Background: Defence Housing Authority (DHA), Islamabad and Multi-National Venture Development Pvt. Ltd. (MVD) entered into a Joint Venture Agreement (JV Agreement) on 09-12-2006 for marketing, designing, financing, construction, commissioning, management, operation, and maintenance of DHA-1 Phase-II Extension Overseas Sector. The JV Agreement was terminated on 27-03-2008 by mutual consent, and a new agreement was executed on 06-06-2008 for marketing, pre-selling, designing, constructing, commissioning, and financing a project comprising commercial shops and offices. Disputes arose between the parties, leading to arbitration proceedings under clause 22.1 of the Agreement. The respondent (MVD) initiated arbitration by appointing its arbitrator, Lt. General (Rtd) Syed Abdul Ahad Najmi, and invited DHA to appoint its arbitrator. DHA failed to appoint an arbitrator within the stipulated time, resulting in MVD seeking the court's intervention under Section 20 of the Arbitration Act, 1940. ----Issues: Whether DHA could appoint its employee, Col. (Retd.) Ijaz Hussain, who had already represented it during conciliatory proceedings under clause 22.1, as its arbitrator. Whether the court had the power to appoint a sole arbitrator in the circumstances where DHA failed to appoint an independent arbitrator. ----Holding/Reasoning/Outcome: Independence and Impartiality of Arbitrator: The court emphasized that an arbitrator must be independent, impartial, and neutral. DHA's appointment of Col. (Retd.) Ijaz Hussain, an employee, was inappropriate as it violated the principle that an arbitrator must not have any interest in the dispute. The appointment of an employee who had already represented DHA in conciliatory proceedings was deemed biased and unacceptable. Court's Power to Appoint Arbitrator: The court held that under Section 9(b) of the Arbitration Act, 1940, it had the authority to appoint a sole arbitrator when one party fails to appoint its arbitrator within the specified time. Given DHA's unreasonable stance and failure to appoint an independent arbitrator, the court appointed Justice (Rtd.) Munir A. Sheikh as the sole arbitrator to ensure a fair resolution of the dispute. -----Citations/Precedents: Crescent Steel and Allied Products Limited vs. Sui Northern Gas Pipeline Limited (2013 CLD 1110) Federation of Pakistan vs. Muhammad Akram Sheikh (PLD 1989 S.C. 689) Muhammad Farooq Shah vs. Shakirullah (2006 SCMR 1657) State of Andhra Pradesh vs. I. Chandrasekhara Reddy and Others (AIR 1998 SC 3311) Lahore Development Authority vs. Khalid Javed Co. (1983 SCMR 718) ----Conclusion: The appeal was dismissed, and the court's appointment of Justice (Rtd.) Munir A. Sheikh as the sole arbitrator was upheld. The court reiterated the importance of appointing independent and impartial arbitrators to uphold the integrity and purpose of arbitration agreements.

Summary: Background: This case involves an appeal filed by a design and architectural firm challenging a civil court’s decision denying their request to prevent the encashment of a Mobilization Advance Guarantee. The firm entered into an agreement with a foreign entity to design an embassy complex. Under the contract, the firm was paid a portion of the total fee as an advance, which was secured by a guarantee from an insurance company. The firm claimed substantial completion of the contracted work and argued that non-cooperation from the foreign entity hindered the remaining work. However, the foreign entity requested encashment of the guarantee, prompting the appellant to seek an injunction. -----Issues: 1- Is the Mobilization Advance Guarantee conditional or unconditional? -----2- Can an injunctive order be issued to restrain the encashment of an unconditional guarantee, and under what circumstances? -----Holding/Reasoning/Outcome: --Nature of Guarantee: The court found that the Mobilization Advance Guarantee was unconditional and irrevocable. It required the insurer to pay upon demand by the foreign entity without reference to the appellant. As such, the guarantee’s terms made the foreign entity the “sole and final judge” of any default. --Injunctive Relief on Unconditional Guarantee: The court ruled against granting an injunction, emphasizing that courts generally uphold the autonomy of an unconditional guarantee. Injunctions restraining encashment are issued only in cases involving fraud or irretrievable harm. The appellant failed to establish fraud or irretrievable injury that would justify court intervention. The court dismissed the appeal, underscoring that unconditional guarantees, once issued, impose absolute obligations, and interference by the courts is limited to extraordinary circumstances. -----Citations/Precedents: Standard Construction Company (Pvt) Limited vs Pakistan [2010 SCMR 524] Anwarul Haq vs Federation of Pakistan [1995 SCMR 1505] Messrs Continental Cable (Pvt) Ltd. Vs Messrs China Harbor Engineering Co. Ltd [2011 CLD 1625] Sandoz Limited and another vs Federation of Pakistan [1995 SCMR 1431] Province of West Pakistan vs Messrs Mistri Patel & Co. [PLD 1969 S.C. 80] Messrs Jamia Industries Ltd vs Messrs Pakistan Refinery Ltd [PLD 1976 Karachi 644] Saudi-Pak Industrial and Agricultural Investment Company vs Messrs Allied Bank of Pakistan [2003 CLD 596] Messrs Strong Built Enterprises vs Fauji Fertilizer Company [1998 MLD 1628] Hyundai-Hidco-Hakas Joint Venture vs WAPDA [PLD 2003 Lahore 714] Messrs Syed Bhais (Pvt) Ltd. vs Government of Punjab [2012 CLD 298] Shipyard K. Damen International vs Karachi Shipyard and Engineering Works Ltd [PLD 2003 S.C. 191] Messrs National Construction Ltd vs Aiwan-e-Iqbal Authority [PLD 1994 SC 311] Pak Consulting & Engineering (Pvt) Ltd. vs Pakistan Steel Mills [2002 SCMR 1781] Bolivinter Oil SA v. Chase Manhattan Bank [1984 1 All ER 351]

Summary: (a) Civil Procedure Code (V of 1908) ----O. XXXVII—Suit for recovery based on promissory note and mortgage deed—Execution of documents denied—Burden of proof—Scope—Plaintiff filed summary suit for recovery of Rs.12,00,000/- with 1% monthly markup on basis of alleged promissory note, receipt, and mortgage deed—Defendants pleaded fraud and claimed no money was ever received—Plaintiff failed to produce scribe or key marginal witnesses to support execution of documents—Receipt was never exhibited, and documents were on unstandardized blank papers—Trial Court decreed suit without fulfillment of evidentiary standards—Held, in the absence of due proof and identification of signatures/thumb impressions, plaintiff had failed to discharge burden of proof—Appeal allowed and suit dismissed. (b) Negotiable Instruments Act (XXVI of 1881) ----Ss. 4 & 118—Promissory note—Requirements—Presumption—Scope—Alleged promissory note did not meet criteria of a negotiable instrument—Document lacked unconditional promise and bore extraneous stipulations—Plaintiff claimed it to be a negotiable instrument but failed to rebut the presumption of invalidity arising from its conditional terms and atypical format—Held, document did not fall within definition of promissory note under S.4 of the Act and could not attract presumption under S.118—Support drawn from superior courts’ precedents excluding such documents from negotiable instruments. (c) Evidence Act (I of 1872) ----Proof of execution—Non-production of scribe or attesting witnesses—Effect—Plaintiff failed to produce attesting witnesses to the impugned documents—One marginal witness was given up and another never produced—Witnesses produced did not corroborate execution—Held, absence of formal proof in accordance with law, particularly where execution was denied, rendered the documents unproven—Mere marking of documents on file without proper exhibition or identification was insufficient. (d) Contract Act (IX of 1872) ----Agreement inferred from conditional instrument—Legal status—Promissory note with conditions—Held, when promissory note contains clauses beyond mere payment, such as property transfer or other undertakings, it ceases to be a promissory note and becomes a contractual agreement governed under the Contract Act—Such documents cannot be enforced through summary procedure under O. XXXVII, C.P.C. (e) Civil trial—Failure to cross-examine on material points ----Effect—Defendants categorically denied receiving any money and asserted fraud in procuring signatures—Plaintiff did not confront them during cross-examination on these key assertions—Held, uncontroverted testimony stood unrebutted and had to be accepted—Plaintiff’s failure to rebut denial of liability further weakened his case. Cited Cases: • Liaqat Ali Khan v. Mst. Shafaq Urooj 2017 CLD 35 • Rasheed Ur Rehman Khan v. Mian Iqbal Hussain PLD 2006 SC 418 • Shehzad Akhtar v. Muhammad Saleem Shad Qureshi 2018 CLD 28 • Pandit Sushil Chander Chaturvedi v. Wali Ullah AIR 1941 All. 158 • Sarju Sahu v. Sukhi Lal AIR 1924 Pat. 96 Disposition: R.F.A. No. 53 of 2013 allowed—Impugned judgment and decree set aside—Suit dismissed with costs throughout. R.F.A. No. 121 of 2013 (filed by plaintiff for profit) dismissed.

Summary: Civil Procedure Code (V of 1908)--- Order Vii, Rule 11 C.P.C----O. VII, R. 11---Specific Relief Act (I of 1877), S. 42---Limitation Act (IX of 1908), S. 3---Export Processing Zones Authority Ordinance (IV of 1980), S. 24---Suit for declaration---Plaint, rejection of---Scope---Contention of defendant was that plaint did not disclose cause of action and plaintiff had no locus standi to institute the present suit---Validity---Existence of "cause of action" to raise the "dispute" before a legal forum could not be denied when parties through their pleadings had directly or indirectly confirmed that they had a dispute between them---Contract between the parties with the title of "general agreement" was on record---Defendant had right to invoke arbitration clause under the said agreement---Dispute between the parties could not be decided without recording of evidence---Section 24 of Export Processing Zones Authority Ordinance, 1980 did not bar jurisdiction of civil court in deciding dispute with regard to declaration of right acquired under general agreement and lease deed---Question of point of time or computation of period of limitation to take the benefit of S.3 of Limitation Act, 1908 did not arise as long as the "cause of action" continued---Application for rejection of plaint was dismissed in circumstances.

Summary: (a) Civil Procedure Code (V of 1908)-------O. XXIII, R. 1, O. II, R. 2, O. IX, R. 9, O. XXI, R. 10, O.XXII, R.9 & S.12---Qanun-eShahadat (10 of 1984), Arts.75 & 76---Specific Relief Act (I of 1877), S.12---Suit for specificperformance of contract---Cause of action, omission of---Fresh suit, institution of---Bar---Powerof attorney---Scope---Plaintiffs filed fresh suit after withdrawal of previous one which wasdismissed---Contention of plaintiffs was that both the parties entered into a compromise outsidethe court---Validity---Plaintiffs filed an application for withdrawal of their previous suit whichwas accepted---Plaintiffs would have either settled the previous suit on the basis of compromiseif same was in existence or even mentioned the said settlement in their application forwithdrawal of suit---Cause of action arising from the purported agreement was very muchavailable to the plaintiffs when same was arrived as on the said date previous suit was pendingbut they omitted to claim the said relief---Bar of O. II, R.2, C.P.C. was attracted in the presentcase---Omission of cause of action and omission of portion of claim with regard to such agreement would bar a fresh suit in respect of a portion so omitted---Where a plaintiff had beenprecluded from instituting a further suit with regard to any particular cause of action then heshould not be entitled to institute a fresh suit---Plaintiffs had withdrawn their previous suitsimpliciter within the meaning of O.XXIII, R.1, C.P.C. which would amount to dismissal aswithdrawn and finally disposed of the suit---Such withdrawal would bring an end to the litigationand fresh suit was barred---Attorney was not authorized by the defendants to decide the fate oftheir right in the property in dispute---Special permission from the principal for the proposedobject should have been obtained by the attorney---Plaintiffs were bound to prove the authorityof attorney with regard to purported agreement but they had failed to prove the same---Plaintiffscould not prove the impugned agreement copy of which was tendered on record which was notonly inadmissible but same did not confer any right, title or interest in their favour---Copy ofpurported agreement could not be taken into consideration---Mere tendering document inevidence had no evidentiary value unless proved in accordance with law---Present suit was notmaintainable in circumstances---Appeal was dismissed accordingly.Hashim Khan v. National Bank of Pakistan PLD 2001 SC 325; Fida Muhammad v. PirMuhammad Khan PLD 1985 SC 341 and Haiderabad Development Authority v. Abdul MajeedPLD 2002 SC 84 rel.(b) Civil Procedure Code (V of 1908)-------O. XXIII, R.1---Fresh suit after withdrawal of previous one---Bar---Scope---Fresh suit afterwithdrawal of previous would be barred.(c) Contract Act (IX of 1872)-------S. 2---Agreement---Scope---Agreement to sell did not create any right, title or interest infavour of any person.