Permanent Injuction

Citation Name: PLJ 2009 Peshawar High Court 18
Appelant Side: Maulana MUHAMMAD IDREES
V e r s u s
Opponent Side: FAZAL SAID KHATTAK etc
Judge Name: Syed Yahya Zahid Gillani
Judgment Result:Petition accepted
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----art. 163--decision on oath--suit for declaration and permanent injunction--decreed in favour of plaintiff on taking oath by him as offered by defendant moving an application--defendant challenged decision--appeals were accepted and suits were remanded for trial and decision on merits--revision petition--oath offered and taken falls under which category--application of respondent/defendant clearly indicates that it does not fall under art. 163 of qanun-e-shahadat, 1984 because under art. 163 of qanun-e-shahadat, plaintiff himself takes oath and then opposite party is asked by court to rebut claim with a counter oath--whether requisite conditions pertaining to oath were fulfilled or not and oaths taken by petitioner/plaintiff and his son are in consonance with offer--question of--comparison of statements can easily show that oath was taken exactly in accordance with offer made and explained in statement of defendant--trial court has properly performed duty of recording their statements necessity of which has been over emphasized in case law--parties also, during period intervening between application for oath and actual oath taken, had sufficient opportunity to cool mindedly contemplate over offer and acceptance--now none of them can resile from their considered decision to get case decided on oath.

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Citation Name: PLJ 2009 Cr.C 592
Appelant Side: MUMTAZ HUSSAIN
V e r s u s
Opponent Side: Dr. NASIR KARIM and 2 others
Judge Name: Arshad Noor Khan
Judgment Result:Petition dismissed
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----s. 4--criminal procedure code, (v of 1898), ss. 435 & 439--dismissal of complaint--revision against--adjudication before civil court--legality--held: admittedly a civil suit for injunction, filed by applicant was pending adjudication whereas another suit for declaration, injunction, cancellation & permanent injunction, filed by respondents was also pending regarding the disputed property--parties were required to establish their claims through evidence and unless the titles of parties were cleared by civil court, criminal proceedings under act, 2005 could not be initiated--revision dismissed.

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Citation Name: PLJ 2009 Lahore High Court 221
Appelant Side: MUHAMMAD RAFIQUE
V e r s u s
Opponent Side: Mst. MUMTAZ AKHTAR alias ALLAH RAKHI & 2 others
Judge Name: Ali Akbar Qureshi
Judgment Result:Revision dismissed.
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----s. 115--majmooa-e-qawaneen-e-islam, edited by dr. tazel-ur-rehman--civil revision--suit for declaration & permanent injunction--dismissal of--appeal was also dismissed--assailed--determination of legitimacy of child--paternity of a child born out of lawful wedlock invariably carries presumption of truth in its favour and mere simple denial can hardly take away status of legitimacy--according to muhammadan law "child follows the bed"--every presumption is made in favor of legitimacy of child, is presumed to be an issue of his parents without acknowledgement or affirmation of parentage on part of father, child follows bed (firash)--children/respondents were born after divorce, nor any evidence exits on record that mother/respondent had been living in adultary--apparently, children were being disowned and harassed by petitioner who unfortunately happens to be their real paternal uncle with an object and intention to deprive them of their legitimacy and legacy from their father--revision dismissed.

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Citation Name: PLJ 2008 Cr.C 123
Appelant Side: LIAQAT ALI, etc
V e r s u s
Opponent Side: STATE
Judge Name: Kh. Muhammad Sharif and Hasnat Ahmad Khan
Judgment Result:Order accordingly
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----ss. 302--conviction and sentence--challenge to--right of defence of property--defence plea--auqaf of property--possession of accused--deceased tried to dispossess the accused--documentary evidence--on day of occurrence co-accused was in possession of disputed property and deceased was trying to disposses him--co-accused had filed a suit for permanent injunction against auqaf department as well as deceased--during pendency of the suit co-accused submitted an application for temporary injunction and status quo order was issued in his favour--stay was not specifically extended but it was not vacated--on the date of occurrence co-accused was armed with a stay order regarding the land in-question--defending the property, accused had caused a single fire-arm injury to the deceased--after considering pros and cons, the defence version was more probable than the prosecution--held: prosecution has laboured in vain to prove the case in the manner as alleged by it and while extending the benefit of doubt to co-accused and holding that murder of deceased was committed by accused in exercise of right of defence of property--order accordingly.

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Citation Name: PLJ 2008 Karachi High Court 138
Appelant Side: PAK AMERICAN COMMERCIAL (PVT.) LTD. through Director
V e r s u s
Opponent Side: HUMAYOUN LATIF and 7 others
Judge Name: Arshad Noor Khan
Judgment Result:Plaint rejected
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----o.xxix, r.i--suit for declaration, cancellation, damages and permanent injunction against defendants by corporation--non-filing of resolution of board of directors--effect--plaint filed by or on behalf of plaintiff company, did not show that its director had filed any resolution passed by its board of directors authorizing him to sign, verify and present the plaint--such plaint was without lawful authority as plaint had not been presented properly. [p. 148] c

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Citation Name: PLJ 2008 Peshawar High Court 208
Appelant Side: Haji MUHAMMAD HUSSAIN and another
V e r s u s
Opponent Side: D.C.O., DIR UPPER and another
Judge Name: Muhammad Raza Khan
Judgment Result:Petition allowed
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----o. vii, r. 11 & oxxxix, rr. 1 & 2--pakistan environment protection act, 1997, s. 21(9)--suit for permanent injunction--rejection of plaint--bar of jurisdiction--petitioner was aggrieved mainly of the noise produced by stone crushing process, but the local inspectors were merely satisfied that at the time of inspection, the dust was still, due to the use of sprinkler on the conveyor belt but they had not been able to confirm that the use of the sprinkler would be automatic with the running of crushing plant--there was also no indication that the dust should not be emitted in the case when sprinkler was out of order--allegation of unbearable noise, late at night by the unloading and reloading of bolders had not been noticed--the prayers of prohibitory & mandatory injunctions, cancellation of licence for installation of stone crushing plant and the recovery of damages were certainly the exclusive jurisdiction of civil court--case remanded to the trial court for adjudication on merits.

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Citation Name: PLJ 2008 Supreme Court 985
Appelant Side: SALEEM MALIK
V e r s u s
Opponent Side: PAKISTAN CRICKET BOARD (PCB) and 2 others
Judge Name: Muhammad Nawaz Abbasi, Zia Perwez & Syed Zawwar Hussain Jafery
Judgment Result:Appeal allow.
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----s. 9--civil procedure code, (v of 1908), o. vii r. 11--constitution of pakistan, 1973, art. 185(3)--leave to appeal--rejection of plaint--no suit or proceeding lie against federal government--concurrent finding--appellant was professional cricketer--involvement in betting and match fixing--inquiry commission was constituted--proposed for appropriate action--recommendation for imposition of penalty of life on his playing cricket--appellant challenged through suit for declaration and permanent injunction--rejection of plaint--question of--what is the status and sanction of the rules and bye-laws of icc--assailed--appellant was non suited on the ground that action taken against him has immunity from challenge before the court of law--validity--held: plaint in the suit cannot be rejected on the basis of defence plea or material supplied by the opposite party in case of controversial questions of fact or law--provisions of o.vii, r. 11 of cpc cannot be invoked rather the proper course for the court in such cases is to frame issue on such question and decide the same on merits in the light of evidence in accordance with law.

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Citation Name: PLJ 2008 AJ&K Court 81
Appelant Side: MUHAMMAD SIDDIQUE & 10 others
V e r s u s
Opponent Side: RAJ BEGUM (WIDOW) & 39 others
Judge Name: Rafiullah Sultani
Judgment Result:Appeal accepted
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----s. 3 & art. 120--delay of 103 days--hopelessly time barred--suit for possession and permanent injunction--trial court decreed the suit in favour of respondent--assailed--courts below have ignored the documentary evidence--suit by respondents is hopelessly time barred--principle--no limitation in inheritance cases is not applicable--plea of limitation is specifically pleaded and point of issue is also framed--respondents filed the suit, after the period of more than 60 years, which is barred by time--due to such reason, the suit brought by respondents/plaintiff beyond the period of six years was barred by law of limitation and principle that there is no limitation in inheritance cases is not applicable on such case because it is suit of declaration for correction of entries of revenue record--judgments and decrees of the courts below are set-aside and appeal was accepted

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Citation Name: PLJ 2007 Karachi High Court 26
Appelant Side: KHURSHEED AHMED
V e r s u s
Opponent Side: FAYYAZ AHMAD and 7 others
Judge Name: Gulzar Ahmad
Judgment Result:Petitions disposed of
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----s. 11--resjudicata--suit for administration, partition and permanent injunction--letter of administration in respect of the subject matter had already been granted by the district judge against which an appeal was still pending--held: suit was hit by resjudicata.

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Citation Name: PLJ 2007 Peshawar High Court 88
Appelant Side: SHAH WAZIR KHAN
V e r s u s
Opponent Side: TAHOOR-UL-ISLAM
Judge Name: Ijaz-ul-Hassan
Judgment Result:Revision dismissed
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----s. 115--revisional jurisdiction--suit for permanent injunction--suit was dismissed--appeal was accepted--appreciation of evidence--controversial pleadings--held: sufficient material was available on the record to substantiate the claim of the plaintiff and the same has not been properly appreciated by the trial court--land in-question was "shamlat deh" owned by plaintiff and defendant, therefore defendant/petitioner had no justification to construct water channel without consent and permission of the plaintiff--appellate court rightly upset the findings of the trial court--revision was dismissed.
Citation Name: PLJ 2007 Karachi High Court 207
Appelant Side: Messrs TIME N VISIONS INTERNATIONAL (PVT.) LTD.
V e r s u s
Opponent Side: DUBAI ISLAMIC BANK PAKISTAN LIMITED
Judge Name: Maqbool Baqar
Judgment Result:Order accordingly
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----s. 20--contract act, (ix of 1872), s. 202--agency of agreement--termination of agency--premature termination--compensated in money terms--financial liabilities--multifarious litigation--misconception of agreement--validity--agent can tie down his principal into an eternal bond by making investments when partner contributing a major part of capital of a firm and tying down his assets cannot do so--held: even if there has been premature or illegal termination of contract of agency, it can be compensated in money term--if such notice was not given, at the most plaintiff firm could claim damages from defendants and that by seeking declaration and permanent injunction, the plaintiff was in fact seeking specific performance of dealership which agreement was not an agreement which could be got specifically enforced through the court and that if at all there was unlawful termination of sales/dealership agreement, the plaintiff firm could have only asked for damages--termination of the agency at this stage would lend them into multifarious litigation is wholly un-founded and based on misconception--in event of termination of the agency the contract already made by plaintiff with third parties on behalf of plaintiff and in respect of all contracts that are on the books on the date of such termination of an agreement parties shall perform the duties and observe the covenant to be performed and absolved by them--termination of the agency would be bound to perform their obligations in terms of agreement provided the same have been entered into with consent of the defendant and in conformity with various provisions of agreement in-question--petition allowed.

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Citation Name: PLJ 2007 Karachi High Court 207
Appelant Side: Messrs TIME N VISIONS INTERNATIONAL (PVT.) LTD.
V e r s u s
Opponent Side: DUBAI ISLAMIC BANK PAKISTAN LIMITED
Judge Name: Maqbool Baqar
Judgment Result:Order accordingly
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----ss. 201 & 202--arbitration act, (x of 1940)--s. 20--agency agreement--termination of agency--notice--damages--validity-where termination notice is not given as provided in the agreement, the plaintiff could only ask for damages and not for declaration and permanent injunction as such an agreement cannot be specifically enforced.

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Citation Name: PLJ 2007 Quetta High Court 41
Appelant Side: PANDOK and others
V e r s u s
Opponent Side: KOHDA IQBAL and others
Judge Name: Ahmed Khan Lashari
Judgment Result:Order accordingly
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----s. 115--balochistan tenancy ordinance, 1978, ss. 63 & 64--revisional jurisdiction--concurrent findings--without considering the legal proposition of law, illegally proceeded with case--failed to pay haq-e-malqana--suit for declaration and permanent injunction--high court while exercising revisional jurisdiction can interfere in concurrent findings based on erroneous assumption of facts patent error of law and arbitrary exercise of powers--held: high court inclined to set aside the impugned judgments and directed to respondents for presentation of same be revenue court having jurisdiction over the matter.

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Citation Name: PLJ 2007 Quetta High Court 41
Appelant Side: PANDOK and others
V e r s u s
Opponent Side: KOHDA IQBAL and others
Judge Name: Ahmed Khan Lashari
Judgment Result:Order accordingly
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----s. 64(3)--suit for declaration and permanent injunction of landed property--maintainability of suit--failed to pay haq-e-malqana--determination--being tenants used to pay haq-e-malqana--not denied ownership rights but also refused to pay haq-e-malkana--jurisdiction of revenue court--suits shall be instituted heard and determined by revenue court and no other court shall take cognizance of any dispute or matter with respect to which any suit might be instituted--tenants were not paying haq-e-malqana and sought their eviction from land on the ground which exclusively falls within jurisdiction of revenue court constituted under balochistan tenancy ordinance, 1978.

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Citation Name: PLJ 2007 Peshawar High Court 149
Appelant Side: NAWAB ALI etc
V e r s u s
Opponent Side: SARDAR ALI etc
Judge Name: Ijaz-ul-Hassan
Judgment Result:Revision dismissed
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----s. 115 & o. xxxix, rr. 1 & 2--suit for declaration with pray for granting of permanent injunction--determination--question of--ingredients--existence of a prima facie--irreparable damage or injury will accrue to applicant if injunction is not granted and that the inconvenience which the applicant will undergo from withholding the injunction will be comparatively greater than that, which is likely to arise from granting it, or in other words the balance of inconvenience should be in favour of applicant--held: court need not closely examine the merits of the case nor is the applicant to be required to establish his legal title--it is sufficient if the applicant is able to establish an arguable case.

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Citation Name: PLJ 2007 Peshawar High Court 198
Appelant Side: ROOH-UL-AMIN etc
V e r s u s
Opponent Side: GUL AHMAD alias JAM KHAN and others
Judge Name: Ijaz-ul-Hassan
Judgment Result:Revision dismissed
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----s. 115--limitation act (ix of 1908) s. 5--suit for declaration with permanent injunction--alternative--possession of suit property--claim of plaintiffs was denied--barred by time--civil revision--evidence do not suffer from any misreading--trial court has exercised jurisdiction which is upheld by the first appellate court high court seldom interferes unless and until the discretion is exercised arbitrarily--courts below are based on elaborate, careful and correct appraisal of evidence which do not suffer from any misreading, as such cannot be legally interfered with u/s. 115 cpc--revision dismissed.

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Citation Name: PLJ 2007 Supreme Court 862
Appelant Side: RAJA ALI SHAN
V e r s u s
Opponent Side: M/s. ESSEM HOTEL LIMITED and others
Judge Name: Javed Iqbal & Ch. Ijaz Ahmed
Judgment Result:Leave refused.
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----o. i, r. 8--constitution of pakistan, 1973, art. 185(3)--suit for declaration and permanent injunction--rights in shamilat deh--defend on behalf of all interest--claim of--general principle--exception--leave to appeal--suit was filed without fulfilling requirement prescribed--petitioner has filed suit in a representative capacity and not in his individual capacity--respondents/plaintiffs had filed suit in representative capacity under o. i, r. 8 but procedure laid down therein as not followed, therefore, suit should be deemed to be on behalf of respondents/plaintiffs in his individual capacity cannot be accepted.

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Citation Name: PLJ 2007 Lahore High Court 395
Appelant Side: ANJUMAN ISLAMIA (REGISTERED), SIALKOT
V e r s u s
Opponent Side: JAWAD and others
Judge Name: Syed Hamid Ali Shah
Judgment Result:Petition allowed
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----s. 199--civil procedure code, (v of 1908), s. 115--wakf by user--wakf property--determination of question of-when express dedication is not available, the decision can be based on the evidence, how public regarded such property-suit for permanent injunction filed by the petitioner and decreed by trial court, but appellate court while accepting the appeal reversed the finding of trial court--assailed--there is no evidence on record to show whether property in dispute came under the management of anjuman-e-islamia nor any proof on record to show that how such property came under the management of anjuman-e-islamia--respondents have not brought on record any evidence to the effect that the property in dispute forms part of shamlat-e-deh and the respondents are its lawful claimants-there is no evidence qua the land holding of the respondents and of other land owners of the village and their share in shamilat--in absence of necessary evidence or proof qua the land in dispute, its nature can only be determined by it's use and purpose-property held and utilized for a religious purpose, from time immemorial, has been treated as "wakf by user"--held--a property, though not dedicated expressly for charitable purpose can be treated as wakf property, on the basis of it's use for immemorial period for that purpose.

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Citation Name: PLJ 2007 Lahore High Court 1185
Appelant Side: MAHBOOB ALAM and 2 others
V e r s u s
Opponent Side: PROVINCE OF THE PUNJAB, through Secretary Education, Civil Secretariat, Lahore
Judge Name: Fazal-e-Miran Chauhan and Mian Saqib Nisar
Judgment Result:Appeal accepted
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----s. 42--suit for declaration--mutation of inheritance--ancestral property of appellants--land of appellants was adjacent to school--owner of the school encroached upon the land--suit for declaration along with permanent injunction was filed by appellants/ex-owner of the school be restrained from raising any construction over the land--during pendency of civil suit, the school in-question was taken over by government of the punjab by mlr--suit was decreed ex-parte--executing court refused to execute the decree against government of punjab--mutation was recorded behind the back of the appellants and the basis for change of ownership from the name of appellants to the government of punjab was not on record--land was owned by a hindu owner--evacuee land was transferred in the name of provincial government after repeal of settlement laws in 1975--no evidence on record that appellants were summoned by the revenue authorities at the time of attestation of mutation nor were put to notice that the land was cancelled from their names--entry of mutation was recorded without notice--only document was a letter of a.d.c. (g), but the same had not been produced by respondent, thus any mutation entered without complying with the mandatory requirements of s. 42 of the land revenue act, would be deemed to be invalid--no evidence had been produced by respondent to show that at the time of taking over of the schools under mlr, the land in dispute was owned by school--land, actual owned by father of the appellants and on his death, same was transferred by mutation of inheritance--land was wrongly mutated in the name of government of punjab, presuming the same to be the property of school or property of provincial government in the absence of any solid proof--appeal accepted.

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