Q:- PROVISIONAL CONSTITUTION ORDER (PCO) 1980.

Q:- provisional constitution order (PCO) 1980.

1. Introduction:-

      Provisional Constitution Order (PCO) was enforced on the night between 24^th and 25^th  March 1981 by General Zia-ul-Haq which was to serve as the constitution of Pakistan for years to come. It was the CMLA (Chief Martial law Administrative) Order means to make adequate provisions for governing Pakistan and for effectively meeting the threat to the integrity and sovereignty of Pakistan and its Islamic ideology.

2. Origin of PCO 1981       

            Provisional Constitution Order 1981 was originated from the Article 138 of the Constitution of 1973. These Articles related to the daily working of Government both Federal and Provincial.     

3. Salient Features of PCO 1981.

            There are some main and important basic features of Provincial Constitution Order 1981.

a.    Fundamental Rights.

            All fundamental rights under the Constitution of 1973 the provisions of their enforceability were taken out.

b.    Vice President.

            The office of Vice President was created, the CMLA could appoint one or more Vice Presidents of Pakistan who would serve at the pleasure of the CMLA and would perform functions assigned by the CMLA.   

c.    Federal Council (Majlis-e-Shoora).

            A Federal Council would be set up consisting of people selected by the President. The council would perform functions as specified in an order make by the President.      

4   Provisions relating to Judiciary.

A number of provisions relating to judiciary were excluded from PCO and they were replaced by new provisions, the important ones being.    

(i)            Transfer of case.

The Supreme Court could transfer any case from one High Court to another High Court.

(ii)          Principle Seats of High Court.

Principle seats and Permanent benches of High Courts were determined and the permanent benches that have been formed under Provisional Laws were made part of the Constitutional document.

(iii)         Authority to appoint Judge.

President has power to appoint the judge whether High Court or Supreme Court in the absence of Chief Justice or when the seat of Chief Justice is vacant.        

(iv)         Transferring of Judge

A High Court judge could be transferred from One High Court to another for a period of upto Two Years.

(v)          Restriction on retired Judge      

A retired judge was not to hold any office of profit in the service of Pakistan within two years of his retirement.

(vi)         Barred of Jurisdiction in whose case

Jurisdiction of the Supreme Court, the High Courts or any other court or tribunal was barred in the cases of those civil servants who had been retired after completion of 25 yeas of service.     

5.    Political Parties.

Only those political parties would be allowed to function, which had registered themselves with the Election Commission by 11 October 1979. All other parties stood dissolved and their funds forfeited to the Federal Government. No new political party could be formed with except with the previous permission in writing of the Chief Election Commissioner.       

6.    Power to amend the Constitution

The President and CMLA would have and would be deemed always to have the power to amend the constitution.    

7.    Courts were barred

The courts were barred from granting any injunction against the acts and orders of any Martial Law Authority or a Military Court or Tribunal. Furthermore, all Martial Law regulations act all other Laws made on or after 5^th July 1977 were declared valid.

8.    oath under PCO.

All judges of Supreme Court, the High Courts and the Federal Shariat Court including the Chief Justices were required to take an oath under the PCO. Those judges who did not take oath under the PCO were to cease to hold office.

9.    Effect of take oath under PCO

Judges, who took the oath under the PCO, were to be bound by the provisions of the PCO and could not call into question of even permit to be called into question the validity of its provisions.          

10. why provisional constitution order (PCO) failed

It did not take along for the judiciary to up held the PCO as valid. In keeping with its dubious tradition, the Lahore High Court applied its seal of approval of the PCO soon thereafter. A retired Army General who was convicted and sentenced by a Field General court martial challenged the PCO on the ground that during the subsistence of Constitution of 1973 give such a provisional constitution in its supersession. These contentions were repelled by a Divisional Bench of the Lahore High Court as under:-

1.    PCO is not compact document.         

2.    Supreme Court has power to amend the constitution.      

3.    The judges had never criticized only law on the ground of it being harsh or unjust.

4.    Its effect was to curtail the powers of the Higher Court.    

11. Conclusion

In the above discussion it can be said the Provisional Constitution Order (PCO) 1981, was enforced on the night between 24^th and 25^th August. It is originated from 138 Articles of the Constitution of 1973. It has also some main basic and important features it did not take long for the judiciary to uphold the PCO as valid.   

Sale Deed

Sale Deed

Important points

1.     Format - A sale deed contains matter under the following headings:
Description, Date, Parties
Recitals, Testatum, Operative Words
Parcel, Exceptions & Reservation, Habendum
Covenant, Testmonium, Execution, Attestation

2.     Should mention how did the vendor get his title - self earned/inherited, bought from ...

3.     Should mention the need of the vendor

---

Sale Deed of House/Residential Plot

THIS SALE DEED is executed BETWEEN
Shri _____________ Son of Shri ________________age ___ years, occupation  ____ ___ , resident of  hereinafter called the vendor, (which expression shall, unless repugnant to the context, mean and include his heirs, executors, administrators and assigns) of the One Part
AND
Shri _____________ Son of Shri ________________age ___ years, occupation  ____ ___ , resident of  hereinafter called the PURCHASER, (which expression shall, unless repugnant to the context, mean and include his heirs, executors, administrators and assigns) of the Other Part on this____ DAY of ______ AT _____.                

WHEREAS the vendor had purchased from Shri _____ a piece of residential plot bearing no 123 and measuring 2000 Sq Ft on the basis of Sale Deed vide document no____ and registered on in the office of the Sub Registrar ______ 
AND WHEREAS the property is self acquired by the vendor;
AND WHEREAS the vendor  is the lawfully owned and possessed of the dwelling house being premises No ....... in town, described in further details in the schedule here under; 
AND WHEREAS the seller is in need of money for his daughter's marriage;
AND WHEREAS the vendor has agreed to sell, transfer, and convey the said property unto the purchaser for the price of Rs ______/- (in words) Only;                                                 

NOW, THIS SALE DEED WITNESSES as follows :                                     

1.   In consideration of the sum of Rs ..... (  ) only paid by the purchaser to the vendor by account payee cheque (Cheque No. 123456)  with the execution of these presents the receipts whereof the vendor admits and acknowledges, the said vendor does hereby grant, convey, sell, transfer, and assign into and to the use of the said purchases fee from all encumbrances.

2.   All that house with compound wall, kitchen, and garden belonging thereto commonly called premises No._____ and as described in the schedule here under.

3.   And all rights, title, interest, claim and demand whatsoever of the vendor into or upon same and every part thereof to have and to hold the same unto and to use of the purchaser, his heirs, executors, administrators, assigns, absolutely and for ever together with title deed and any other evidences of title.

4. And that the house is not mortgaged or has no encumbrance of any kind.

5. And that nobody has right to any kind of claim on this house

6. And there no kind of tax is due on this house property

THE SCHEDULE OF THE PROPERTY ABOVE REFERRED TO :

All that piece and parcel of land situate within the Registration Division & District Sub-Division & Taluka within the local limits of the Indore Municipal Corporation,  revenue village bearing Plot No.  ___, out of Survey No.  ____, and measuring _____ sqft or   
thereabouts, and bounded by as follows :                                                
On or towards the East              _    
On or towards the South            _   
On or towards the West             _    
On or towards the North            _   

IN WITNESS WHEREOF the parties hereto have signed here under at INDORE the date first above mentioned.
                                                       
(Signature) 
VENDOR    


(Signature) 
PURCHASER   

Memo of Consideration

Received of and from the within named purchase the sum of Rs. _______ ( ____ Only) being the full consideration within name was to be paid by the purchaser to us.

We say received.

(Signature of Vendor)
VENDOR

Witnesses:

1. (Signature)
 Name and Address

2.(Signature)
Name and Address

Sample Notice in case of Cheque Bouncing

Sample Notice in case of Cheque Bouncing

Important points

1.     Cheque Bouncing is a quasi criminal matter covered under Sec. 138 of Negotiable Instruments Act.

2.     Conviction under this section may incurr prison sentence.

3.     However, before a law suit can be filed, the receiver of the cheque must send a notice to the cheque issuer demanding money. The demand should clearly mention the details of the transaction that obligated the issuer to issue the cheque and the request that the money should be paid within 15 days.

4.     The notice must be sent within 30 days of receiving information from the bank that the cheque has been dishonoured.

5.     If the payment is not received within 15 days after sending the notice, a law suit can be filed within the next 30 days.

6.     For example:

o    Cheque given on 1/1/2010

o    Cheque put up in the bank on 5/1/2010 (cheque must be put up within six months of the date on the cheque).

o    Bank dishonours the check on 10/1/2010.

o    Notice demanding money sent on 15/1/2010.(Notice must be sent within 30 days i.e. before 9/2/2010).

o    Need to wait for payment for 15 days i.e. 30/1/2010

o    Law suit may be filed between next 30 days i.e. 1/2/2010 and 2/3/2010.

---

Notice

DATE: 25/10/2010

To,

Mr. A. B, General Manager,

FGH Pvt. Ltd.,

Indore, MP 452001

Dear Mr. A. B.,

As per the agreement that we entered with your firm on 10/10/2010, we were to deliver 1000 Kg wheat on or before 20/10/2010 at your warehouse located at 123 MG Road, Indore and you were to pay us Rs 20,000/- at the time of delivery. A copy of the agreement is attached.

Persuant to the said agreement, we delivered the goods at your warehouse on 20/10/2010, which were accepted by you (copy of delivery challan is attached) and you gave us a Cheque for Rs 20000/- (Cheque No. 123456, drawn on ICICI Bank, Indore Branch).

Unfortunately, your cheque has been dishonoured by the bank with the reason of insufficient funds. A copy of the receipt provided by the bank is attached.

We thereby request you to pay us the said amount of Rs 20,000/- within 15 days, failing which we would be forced to take legal action for the recovery of the dues.

thank you,

X. Y. for

M/s MNO Pvt. Ltd.

456 ABC Nagar,

Indore.

Note: Attaching a copy of all the referred documents is not necessary.

SECOND APPEAL AGAINST THE IMPUGNED JUDGEMENT AND DECREE PASSED BY LOWER

IN THE LAHORE HIGH COURT, LAHORE

R.S.A NO­­­­_______________________/2014

M.FAROOQ-E-AZAM etc....Vs....KHURMAT KHAN

I     N     D    E     X

SR# DESCRIPTION OF DOCUMENTS       DATED     PAGES

1.      OPENING SHEET-------------------E

1.       .                                                                      05.02.2014    01

2.      SECOND APPEAL                                                                        05.02.2014   O1A-15

3.      MEMO OF PARTIES.                                                                  05.02.2014     16

4.      AFFIDAVIT.                                                                                 05.02.2014    17

5.      ANNEXURE-A,PLAINT.                                                                                      18-21

6.      ANNEXURE-B,WRITTEN STATEMENT.                                                             22-24

7.      ANNEXURE-C,ORAL EVIDENCE                                                                        25-36

8.      ANNEXURE-D,DOCUMENTARY EVIDENCE                                                      37-63

9.      ANNEXURE-E,IMPUGNED JUDGEMENT& DECREE 20-12-2012                      64-72

10.  ANNEXURE-F,APPEAL                                                                                       73-78

11.  ANNEXURE-G,JUDGEMENT& DECREE 05.09.2013                                          79-91

12.  APPLICATION FOR CONDONATION OF DELAY                         05.02.2014     92-93

13.  AFFIDAVIT.                                                                                 05.02.2014    94-95

14.  STAY APPLICATION                                                                    05.02.2014     96-97

15.  AFFIDAVIT.                                                                                 05.02.2014     98-99

16.  POWER OF ATTORNEY.

APPELLANTS

THROUGH COUNSELS:

1.            

2.                                                           DATED: 05 .02.2014

                                       

IN THE LAHORE HIGH COURT ,LAHORE

R.S.A NO­­­­_______________________/2014

1. MUHAMMAD FAROOQ-E-AZAM S/O HASHMAL KHAN (Deceased)

2. TANVIR AHMAD (MINOR) S/O HASHMAL KHAN through his real brother MUHAMMAD FAROOQ-E-AZAM  

3.NUSRAT BIBI                            ]

4.RAZIA BIBI                                ] Daughters of Hashmal      

5.NASREEN BIBI                          ] khan

6.NASEEM BIBI                           ]

7.SHAMIM BIBI (MINOR)          [ Daughters of

8.RUQAYYA BIBI(MINOR)            HASHMAL KHAN]

Through their real brother Muhammad Farooq-e-Azam

9.FAJRO KHAN                            ]

10.MAHMOOD AHMAD KHAN] SONS OF KHAIRATI

11.IQBAL                                      ] KHAN

12.SHER MUHAMMAD              ]

13.UMAR DIN                              ]

14.RAQM-UD-DIN                       ] SONS OF CHANDAR

15.MUHAMMAD ARSHAD        ]KHAN

16.DIN MUHAAMMAD              ]

17ABDUL RAZZAQ                      ]

All by caste Meo,residents of sarhali kalan.Tehsil & District Kasur.

APPELLANTS

VERSUS

KHURMAT KHAN SON OF GHUMAN KHAN (S/O Mst.CHANDO) CASTE MEO, R/O KHARA TEHSIL & DISTRICT, KASUR.

RESPONDENT

SECOND APPEAL AGAINST THE IMPUGNED JUDGEMENT AND DECREE PASSED BY LOWER LEARNED APPELLATE COURT DATED 05-09-2013.

RESPECTFULLY SHEWETH,

1.                That the concise facts giving rise to the filing of the instant R.S.A. are that the appellants/plaintiffs filed a suit for possession through specific performance of Agreement to sell dated 12-08-2003 regarding the land measuring 02-kanals, 15 Marlas,being Khata no.42 Khatoni nos.89 to 91and 05-kanals, 03 Marlas being Khewat No.430,Khatoni Nos.687-686(total measuring 07 kanals, 18 Marlas),situated in Mouza Bhuja, Tehsil & District Kasur, in which,the plaintiffs/appellants contended thst the plaintiffs No.6 to 17 alongwith Hashmal khan entered into contract with Hashmal Khan on 12-08-2003 and paid earnest money of Rs.1,35,000/-as mentioned above.one week prior to filing of the suit, the plaintiffs asked the defendant that they had managed the remaining amount and they should got registered the deed in favour of the plaintiffs/appellants before Sub-Registrar, but the defendant refused to admit the same and stated that due to enhancement of price, he would not complete the agreement to sell for which he was time and again asked the defendant to fulfil his obligation but he denied to pay any heed on the request of the plaintiffs/appellants. Copy of plaint is attached herewith as ANNEXURE-A  

2.                That the defendant/respondent contested the suit by filing the written statement, wherein,he raised preliminary objections that the plaintiffs have no cause of action to file the suit and controverted the facts of the plaint and prayed for dismissal of the suit. Copy of written statement is attached as ANNEXURE-B

3.                That out divergent pleadings of the parties ,the learned trial court framed the following issues:

1.    Whether plaintiffs are entitled to possession through specific performance of agreement to sell dated 12-08-2003 in respect of land measuring 05-Kanal 03-Marla in Khata no.42,Khatoni no.89 to 91 total land measuring 07 Kanals,18 Marlas to the extent of transferred share, situated in Mouza Sirhali Kalan,Tehsil & district Kasur? OPP

2.    Whether sale consideration was Rs,1,40,000/-out of which Rs.1,355,000/- has been paid to defendant Rs.5000/- is to be paid? OPP

3.    Whether plaintiffs have no cause of action to file this suit? OPD        

4.    Whether impugned agreement to sell is fake forged and suit is, therefore, not maintainable? OPD

5.    Relief .

4.    That after framing the aforesaid issues, the learned trial court directed of both parties to adduce their oral as well as documentary evidence in order to prove their respective contentions. The plaintiff/appellant no. 12 appeared as PW-1,and produced Muhammad Tayyab as PW-2,Muhammad Asghar as PW-3.In the documentary evidence plaintiffs placed on record original agreement to sell as Ex.P1 and copy of Mutation No.1961 as Ex.P/2,Fard Jamabandi as Ex.P/3.The defendant/respondent himself appeared as DW-1 and produced Muhammad Islam as DW-2, Muhammad Rafique as DW-3.In documentary evidence,he produced attested copy of proceedings for redemption of mortgage evidence,Kasur as Ex.D.1,attested copy of record of rights for the year 2008-09 as Ex.D.2.Copies of evidence (Oral and Documentary) of both the parties are attached as ANNEXURE-C & D

5.    That the learned trial court without perusing the record of the case and without applying his judicious and independet mind.dismissed the suit of the plaintiffs/appellants vide Judgement & Decree dated 15-12-2012. Copy of Judgement & Decree dated 15-12-2012 is attached as ANNEXURE-E.

6.    That the plaintiffs/appellants preferred an appeal against the Judgement & Decree dated 15-12-2012,which was illegally and without giving any cogent reasons has been dismissed by learned Addl.District Judge,Kasur vide Judgement & Decree dated 05-09-2013 as attached herewith as ANNEXURE-F.

7.    That the impugned Judgement & Decree dated 5.09.2013  and 25-12-2012 are illegal, suffers with material illegalities and irregularities, based upon jurisdictional defect, and are liable to be interfered with to the Appellate jurisdiction of this honourable court, inter-alia on the following :-

G   R   O   U   N   D   S

a.     That the impugned Judgements & Decrees of both the courts below are against the law, facts and circumstances of the case on record.

b.    That both the courts below did not consider the case of the appellants/plaintiffs in its true perspective and mis-read and mis-interpreted the material on record and illegally passed the impugned Judgements & Decrees.

c.     That the evidence produced by the appellants/plaintiffs were also ignored by the learned courts below,who fully supported the version of the appellants/plaintiffs but the learned trial court,on the basis of minor discrepencies,dismissed the suit of the plaintiffs.

d.     That while passing the impugned Judgement & Decree the learned courts below failed to appreciate that the respondant hasmiserable failed to produce cogent and worthy reliance evidence in order to prove his case.

e.     That the Judgements & Decrees, are erroneous, illegal, unlawful, null and void, without any cogent reason, arbitrary, against the facts and circumstances of the case and has not met of the principle laid down for providing of substantial justice.

f.       That plaintiffs have produced sufficient evidence and witnesses in order to prove the Agreement to sell dated 12-08-2003,  which were ignored by the learned courts below.

g.       That while passing the impugned Judgements & Decrees, the Learned Lower Courts below committed an error in appreciating that the possession of the land in question is with the appellants and respondent failed to prove that in what manner, the possession of the land is with the appellants and if the appellants snatched the same forcibly, then why he did not file the suit for possession against the appellants, which clearly proved that the appellants waere in possession on the basis of Agreement to sell.

h.     That while passing the impugned Judgements & Decrees, the Learned Courts below failed to appreciate that the Agreement to sell is a legal and genuine document which has been endorsed by the Notary Public and marginal witness are shown, who fully supported the version of appellants regarding execution of Agreement to sell and receiving of earnest money by the respondent.

i.        That it is a routine matter that while executing the agreement to sell, the purchasing party is endorsed his own witnesses but the Learned Courts below under the impression that no witness of respondent’s to sell, which is totally wrong.

j.        That both the learned courts below have committed material irregularities and have decided the suit and appeal with illegality and irregularities and has caused a great loss to the appellants/plaintiffs.

k.     That the learned court below has committed material irregularities and has decided the suit and appeal with illegally and irregularities and has caused a great loss to the appellants.

l.       That both the courts below have passed their respective Judgements & Decrees without proper application of mind and without proper appreciable of the record placed on the file; rather the same was passed in slipshod and hasty manner.

m. That both the courts below mis-interpreted and misconstrued the provisions of law and also failed to follow the dictums of Superior Courts and illegally passed their impugned Judgements & Decree against the plaintiffs/appellants.

n.    That the mis-interpretation of law and failure to follow the dictums of the Superior

 Courts, tantamount to exercise of     jurisdiction illegally, with material illegality, so the interference of this Honourable Court is called for.

o.    That if the impugned Judgements & Decrees are not set-aside, the appellants shall suffer an irreparable loss and injury.

p.     That the impugned Judgements & Decrees are contrary to provisions of law, as well as canons and principles of justice, so the same is no order in the eyes of law.

P   R   A   Y   E   R

It is therefore, most respectfully prayed that the instant second appeal may kindly be accepted and the impugned Judgements & Decrees passed by learned Courts below dated 5.09.2013 and 15-12-2012 may kindly be set-aside, in the interest of justice. It is further prayed that during the pendency of the titled second appeal, the operation of impugned Judgements & Decrees passed by learned  lower Courts below dated 5.09.2013 and 15-12-2012  may kindly be suspended and the possession of the appellants over the suit land may not be disturbed. Any other appropriate relief which this honourable court deem fit and proper in the circumstances of the case may also be awarded.

APPELLANTS

THROUGH COUNSELS,

1.

2.

CERTIFICATE

Certified as per instructions that this is the first R.S.A on the subject in this honourable court.

ADVOCATES

IN THE LAHORE HIGH COURT ,LAHORE

R.S.A NO­­­­_______________________/2014

MEMO OF PARTIES

1. MUHAMMAD FAROOQ-E-AZAM S/O HASHMAL KHAN (Deceased)

2. TANVIR AHMAD (MINOR) S/O HASHMAL KHAN through his real brother MUHAMMAD FAROOQ-E-AZAM  

3.NUSRAT BIBI                            ]

4.RAZIA BIBI                                ] Daughters of Hashmal      

5.NASREEN BIBI                          ] khan

6.NASEEM BIBI                           ]

7.SHAMIM BIBI (MINOR)          [ Daughters of

8.RUQAYYA BIBI(MINOR)            HASHMAL KHAN]

Through their real brother Muhammad Farooq-e-Azam

9.FAJRO KHAN                            ]

10.MAHMOOD AHMAD KHAN] SONS OF KHAIRATI

11.IQBAL                                      ] KHAN

12.SHER MUHAMMAD              ]

13.UMAR DIN                              ]

14.RAQM-UD-DIN                       ] SONS OF CHANDAR

15.MUHAMMAD ARSHAD        ]KHAN

16.DIN MUHAAMMAD              ]

17.ABDUL RAZZAQ                      ]

All by caste Meo,residents of sarhali kalan.Tehsil & District Kasur.

APPELLANTS

VERSUS

KHURMAT KHAN SON OF GHUMAN KHAN (S/O Mst.CHANDO) CASTE MEO, R/O KHARA TEHSIL & DISTRICT, KASUR.

RESPONDENT

APPELLANTS THROUGH COUNSELS

IN THE LAHORE HIGH COURT ,LAHORE

R.S.A NO­­­­_______________________/2014

M. FAROOQ-E-AZAM ETC....VS....KHURMAT KHAN

 SECOND APPEAL AGAINST THE IMPUGNED JUDGEMENT AND DECREE PASSED BY LOWER LEARNED APPELLATE COURT DATED 05-09-2013

AFFIDAVIT

OF MUHAMMAD FAROOQ-E-AZAM S/O HASHMAL KHAN, CASTE MEO,R/O RESIDENT OF SARHALI KALAN,TEHSIL & DISTRICT KASUR.

RESPECTFULLY SHEWETH,

1.     That the above named deponent do hereby solemnly declare and affirm as under:

That the averments as contained in the accompaying R.S.A are correct and true to the best of my knowledge and belief.

                                                                                                                      DEPONENT

VERIFICATION

Verified on oath at Lahore on 05-02-2014 that the contents of above affidavit are correct to the best of my knowledge and belief.

                                                                                                                         DEPONENT

IN THE LAHORE HIGH COURT ,LAHORE

C.M_________________________/2014

R.S.A NO­­­­_______________________/2014

M. FAROOQ-E-AZAM ETC....VS....KHURMAT KHAN

SECOND APPEAL AGAINST THE IMPUGNED JUDGEMENT AND DECREE PASSED BY LOWER LEARNED APPELLATE COURT DATED 05-09-2013

APPLICATIONUNDER SECTION 5 OF LIMITATION ACT FOR CONDONATION OF DELAY IN FILING THE TITLED R.S.A

RESPECTFULLY SHEWETH,

1.    That the petitioners have filed the above titled R.S.A today in this honourable court in which, no date of hearing has yet been fixed.

2.    That after passing the above said Judgement & Decree dated 05-09-2013, the petitioners got the certified copy of the same and engaged a counsel for the filling of the titled R.S.A, who demanded huge professional fee for the preparation and filing the titled R.S.A which was not available with the petitioners,therefore,the petitioners, after a great strugle, arranged the said fee by borrowing money from their relatives, therefore, the R.S.A. could not be filed within the stipulated period of limitation.

3.    That the delay in filing the R.S.A. neither intentional nor wilful but was on account of facts and circumstances beyond the control of the petitioners.

4.    That the delay, if any ,in filing the R.S.A. is not condoned and the same is not decided on merits, the petitioners shall suffer irreparable loss and injury.                                 

                                                It is therefore, most humbly prayed that the instant application may kindly be accepted and the delay in filing the R.S.A. may kindly be ordered to be condoned and the same be decided on merits, in the interest of justice.

                                                                                                                               PETITIONERS

THROUGH COUNSELS,

1.

2,    

               DATED: 05-02-2014

IN THE LAHORE HIGH COURT, LAHORE.

C.M_________________________/2014

R.S.A NO­­­­_______________________/2014

M. FAROOQ-E-AZAM ETC....VS....KHURMAT KHAN

SECOND APPEAL AGAINST THE IMPUGNED JUDGEMENT AND DECREE PASSED BY LOWER LEARNED APPELLATE COURT DATED 05-09-2013

APPLICATIONUNDER SECTION 5 OF LIMITATION ACT FOR CONDONATION OF DELAY IN  FILING THE TITLED R.S.A

AFFIDAVIT

OF MUHAMMAD FAROOQ-E-AZAM S/O HASHMAL KHAN, CASTE MEO,R/O RESIDENT OF SARHALI KALAN,TEHSIL & DISTRICT KASUR.

                        RESPECTFULLY SHEWETH,

1.    That I, the above named deponent do hereby solemnly declare and affirm as under:

2.    That the petitioners have filed the above titled R.S.A. today in this honourable court, in which, no date of hearing has yet been fixed.

3.    That after passing the above said Judgement & Decree dated 5-09-2013, the petitioners got the certified copy of the same and engaged a counsel for the filling of the titled R.S.A, who demanded huge professional fee for the preparation and filing the titled R.S.A which was not available with the petitioners, therefore, the petitioners, after a great struggle, arranged the said fee by borrowing money from his relatives, therefore, the

R.S.A. could not filed within the stipulated period of limitation.

4.       That the delay in filing the R.S.A. neither intentional nor wilful but was on account of facts and circumstances beyond the control of the petitioners.

5.    That the delay, if any, in filing the R.S.A. is not condoned and the same is not decided on merits, the petitioners shall suffer irreparable loss and injury.

                                                                                                                                      DEPONENT

VERIFICATION

Verified on oath at Lahore on 05- 02-2014 that the contents of the above affidavit are true and correct to the best of my knowledge and belief.

                                                                                                                                                                 DEPONENT

IN THE LAHORE HIGH COURT, LAHORE.

C.M_________________________/2014

R.S.A NO­­­­_______________________/2014

M. FAROOQ-E-AZAM ETC....VS....KHURMAT KHAN

SECOND APPEAL AGAINST THE IMPUGNED JUDGEMENT AND DECREE PASSED BY LOWER LEARNED APPELLATE COURT DATED 05-09-2013

APPLICATIONUNDER SECTION 5 OF LIMITATION ACT FOR CONDONATION OF DELAY IN  FILING THE TITLED R.S.A.

APPLICATION

UNDER SWECTION 151 C.P.C FOR SUSPENSION OF THE OPERATION OF IMPUGNED JUDGEMENT & DECREE DATED 05-09-2013.

RESPECTFULLY SHEWETH,

1.    That the petitioners have filed the above titled R.S.A. with an aforesaid application u/s 5 of Limitation Act today in this honourable court in which no date of hearing has yet been fixed.

2.    That the contents of the main titled R.S.A. may kindly be read as an integral part of this application.

3.    That there is every likelihood of the success of main R.S.A. on the final date of hearing.

4.    That the balance of convenience also lies in favour of the petitioners.

5.    That if the operation of the impugned Judgement & Decree are not suspended, the petitioners shall suffer an irreparable loss and injury and titled main R.S.A. would also become in fructuous.

                                         It is most respectfully prayed that till the final decision of the titled R.S.A. the operation of the impugned judgement & Decree dated 5-9-2013 may kindly be suspended and the possession of the appellants over the suit land may not be disturbed.

                                                                                                                            

PETITIONERS

THROUGH COUNSELS,

1.

2.

DATED: 0   - 02-2014

    

IN THE LAHORE HIGH COURT, LAHORE.

    C.M_________________________ ___/2014

   R.S.A NO­­­­_______________________/2014

M. FAROOQ-E-AZAM ETC....VS....KHURMAT KHAN

SECOND APPEAL AGAINST THE IMPUGNED JUDGEMENT AND DECREE PASSED BY LOWER LEARNED APPELLATE COURT DATED 05-09-2013

APPLICATIONUNDER SECTION 5 OF LIMITATION ACT FOR CONDONATION OF DELAY IN  FILING THE TITLED R.S.A.

APPLICATIONUNDER SWECTION 151 C.P.C FOR SUSPENSION OF THE OPERATION OF IMPUGNED JUDGEMENT & DECREE DATED 05-09-2013.

AFFIDAVIT

OF MUHAMMAD FAROOQ-E-AZAM S/O HASHMAL KHAN, CASTE MEO,R/O RESIDENT OF SARHALI KALAN,TEHSIL & DISTRICT KASUR.

RESPECTFULLY SHEWETH,

1.    That the above named deponent do hereby solemnly declare and affirm as under:

2.    That the appellants/petitioners have filed the above titled R.S.A. with tow aforesaid applications i.e. U/S 5 of Limitation Act & U/S151 C.P.C today in this honourable court in which no date of hearing has yet been fixed.

3.    That the contents of the main titled R.S.A. and both titled applications may kindly be read as an integral part of this/my aforesaid sworn affidavit.

That the averments as contained in the accompanying R.S.A  and both titled applications are correct and true to the best of my knowledge and belief.

                                                                                                                      DEPONENT

VERIFICATION

Verified on oath at Lahore on 05-02-2014 that the contents of above affidavit are correct to the best of my knowledge and belief.

                                                                                                                         DEPONENT

                                                        

    

IN THE LAHORE HIGH COURT ,LAHORE

R.S.A NO­­­­_______________________/2014

MEMO OF PARTIES

1. MUHAMMAD FAROOQ-E-AZAM S/O HASHMAL KHAN (Deceased)

2. TANVIR AHMAD (MINOR) S/O HASHMAL KHAN through his real brother MUHAMMAD FAROOQ-E-AZAM  

3.NUSRAT BIBI                            ]

4.RAZIA BIBI                                ] Daughters of Hashmal      

5.NASREEN BIBI                          ] khan

6.NASEEM BIBI                           ]

7.SHAMIM BIBI (MINOR)          [ Daughters of

8.RUQAYYA BIBI(MINOR)            HASHMAL KHAN]

Through their real brother Muhammad Farooq-e-Azam

9.FAJRO KHAN                            ]

10.MAHMOOD AHMAD KHAN] SONS OF KHAIRATI

11.IQBAL                                      ] KHAN

12.SHER MUHAMMAD              ]

13.UMAR DIN                              ]

14.RAQM-UD-DIN                       ] SONS OF CHANDAR

15.MUHAMMAD ARSHAD        ]KHAN

16.DIN MUHAAMMAD              ]

17ABDUL RAZZAQ                      ]

All by caste Meo,residents of sarhali kalan.Tehsil & District Kasur.

APPELLANTS

VERSUS

KHURMAT KHAN SON OF GHUMAN KHAN (S/O Mst.CHANDO) CASTE MEO, R/O KHARA TEHSIL & DISTRICT, KASUR.

RESPONDENT

SECOND APPEAL AGAINST THE IMPUGNED JUDGEMENT AND DECREE PASSED BY LOWER LEARNED APPELLATE COURT DATED 05-09-2013.

RESPECTFULLY SHEWETH,

1.    That the concise facts giving rise to the filing of the instant R.S.A. are that the appellants/plaintiffs filed a suit for possession through specific performance of Agreement to sell dated 12-08-2003 regarding the land measuring 02-kanals, 15 Marlas,being Khata no.42 Khatoni nos.89 to 91and 05-kanals, 03 Marlas being Khewat No.430,Khatoni Nos.687-686(total measuring 07 kanals, 18 Marlas),situated in Mouza Bhuja, Tehsil & District Kasur, in which,the plaintiffs/appellants contended thst the plaintiffs No.6 to 17 alongwith Hashmal khan entered into contract with Hashmal Khan on 12-08-2003 and paid earnest money of Rs.1,35,000/-as mentioned above.one week prior to filing of the suit, the plaintiffs asked the defendant that they had managed the remaining amount and they should got registered the deed in favour of the plaintiffs/appellants before Sub-Registrar, but the defendant refused to admit the same and stated that due to enhancement of price, he would not complete the agreement to sell for which he was time and again asked the defendant to fulfil his obligation but he denied to pay any heed on the request of the plaintiffs/appellants. Copy of plaint is attached herewith as ANNEXURE-A 

2.    That the defendant/respondent contested the suit by filing the written statement, wherein,he raised preliminary objections that the plaintiffs have no cause of action to file the suit and controverted the facts of the plaint and prayed for dismissal of the suit. Copy of written statement is attached as ANNEXURE-B

3.    That out divergent pleadings of the parties ,the learned trial court framed the following issues:

1.    Whether plaintiffs are entitled to possession through specific performance of agreement to sell dated 12-08-2003 in respect of land measuring 05-Kanal 03-Marla in Khata no.42,Khatoni no.89 to 91 total land measuring 07 Kanals,18 Marlas to the extent of transferred share, situated in Mouza Sirhali Kalan,Tehsil & district Kasur? OPP

2.    Whether sale consideration was Rs,1,40,000/-out of which Rs.1,355,000/- has been paid to defendant Rs.5000/- is to be paid? OPP

3.    Whether plaintiffs have no cause of action to file this suit? OPD        

4.    Whether impugned agreement to sell is fake forged and suit is, therefore, not maintainable? OPD

5.    Relief .

4.    That after framing the aforesaid issues, the learned trial court directed of both parties to adduce their oral as well as documentary evidence in order to prove their respective contentions. The plaintiff/appellant no. 12 appeared as PW-1,and produced Muhammad Tayyab as PW-2,Muhammad Asghar as PW-3.In the documentary evidence plaintiffs placed on record original agreement to sell as Ex.P1 and copy of Mutation No.1961 as Ex.P/2,Fard Jamabandi as Ex.P/3.The defendant/respondent himself appeared as DW-1 and produced Muhammad Islam as DW-2, Muhammad Rafique as DW-3.In documentary evidence,he produced attested copy of proceedings for redemption of mortgage evidence,Kasur as Ex.D.1,attested copy of record of rights for the year 2008-09 as Ex.D.2.Copies of evidence (Oral and Documentary) of both the parties are attached as ANNEXURE-C & D

5.    That the learned trial court without perusing the record of the case and without applying his judicious and independet mind.dismissed the suit of the plaintiffs/appellants vide Judgement & Decree dated 15-12-2012. Copy of Judgement & Decree dated 15-12-2012 is attached as ANNEXURE-E.

6.    That the plaintiffs/appellants preferred an appeal against the Judgement & Decree dated 15-12-2012,which was illegally and without giving any cogent reasons has been dismissed by learned Addl.District Judge,Kasur vide Judgement & Decree dated 05-09-2013 as attached herewith as ANNEXURE-F.

7.    That the impugned Judgement & Decree dated 5.09.2013  and 25-12-2012 are illegal, suffers with material illegalities and irregularities, based upon jurisdictional defect, and are liable to be interfered with to the Appellate jurisdiction of this honourable court, inter-alia on the following :-

G   R   O   U   N   D   S

a.     That the impugned Judgements & Decrees of both the courts below are against the law, facts and circumstances of the case on record.

b.    That both the courts below did not consider the case of the appellants/plaintiffs in its true perspective and mis-read and mis-interpreted the material on record and illegally passed the impugned Judgements & Decrees.

c.     That the evidence produced by the appellants/plaintiffs were also ignored by the learned courts below,who fully supported the version of the appellants/plaintiffs but the learned trial court,on the basis of minor discrepencies,dismissed the suit of the plaintiffs.

d.     That while passing the impugned Judgement & Decree the learned courts below failed to appreciate that the respondant hasmiserable failed to produce cogent and worthy reliance evidence in order to prove his case.

e.     That the Judgements & Decrees, are erroneous, illegal, unlawful, null and void, without any cogent reason, arbitrary, against the facts and circumstances of the case and has not met of the principle laid down for providing of substantial justice.

f.       That plaintiffs have produced sufficient evidence and witnesses in order to prove the Agreement to sell dated 12-08-2003,  which were ignored by the learned courts below.

g.       That while passing the impugned Judgements & Decrees, the Learned Lower Courts below committed an error in appreciating that the possession of the land in question is with the appellants and respondent failed to prove that in what manner, the possession of the land is with the appellants and if the appellants snatched the same forcibly, then why he did not file the suit for possession against the appellants, which clearly proved that the appellants waere in possession on the basis of Agreement to sell.

h.     That while passing the impugned Judgements & Decrees, the Learned Courts below failed to appreciate that the Agreement to sell is a legal and genuine document which has been endorsed by the Notary Public and marginal witness are shown, who fully supported the version of appellants regarding execution of Agreement to sell and receiving of earnest money by the respondent.

i.        That it is a routine matter that while executing the agreement to sell, the purchasing party is endorsed his own witnesses but the Learned Courts below under the impression that no witness of respondent’s to sell, which is totally wrong.

J.       That both the learned courts below have committed material irregularities and have decided the suit and appeal with illegality and irregularities and has caused a great loss to the appellants/plaintiffs.

K.    That the learned court below has committed material irregularities and has decided the suit and appeal with illegally and irregularities and has caused a great loss to the appellants.

L.     That both the courts below have passed their respective Judgements & Decrees without proper application of mind and without proper appreciable of the record placed on the file; rather the same was passed in slipshod and hasty manner.

M. That both the courts below mis-interpreted and misconstrued the provisions of law and also failed to follow the dictums of Superior Courts and illegally passed their impugned Judgements & Decree against the plaintiffs/appellants.

N.   That the mis-interpretation of law and failure to follow the dictums of the Superior

 Courts, tantamount to exercise of     jurisdiction illegally, with material illegality, so the interference of this Honourable Court is called for.

O.   That if the impugned Judgements & Decrees are not set-aside, the appellants shall suffer an irreparable loss and injury.

P.     That the impugned Judgements & Decrees are contrary to provisions of law, as well as canons and principles of justice, so the same is no order in the eyes of law.

P   R   A   Y   E   R

It is therefore, most respectfully prayed that the instant second appeal may kindly be accepted and the impugned Judgements & Decrees passed by learned Courts below dated 5.09.2013 and 15-12-2012 may kindly be set-aside, in the interest of justice. It is further prayed that during the pendency of the titled second appeal, the operation of impugned Judgements & Decrees passed by learned  lower Courts below dated 5.09.2013 and 15-12-2012  may kindly be suspended and the possession of the appellants over the suit land may not be disturbed. Any other appropriate relief which this honourable court deem fit and proper in the circumstances of the case may also be awarded.

APPELLANTS

THROUGH COUNSELS,

1.

2.

CERTIFICATE

Certified as per instructions that this is the first R.S.A on the subject in this honourable court.

ADVOCATES