Family Law Firm of Pakistan

03/10/2025

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09/10/2024

Muhammad Anwar v. Nasreen Bibi (2020): In this case, the Lahore High Court upheld the right of a woman to seek khula without needing her husband’s consent. The court emphasized that a woman's right to terminate a marriage is protected under Islamic law.

Farah Naz v. Azhar Khan (2021): The court reiterated the principles surrounding khula, affirming that delays in the process should not hinder a woman’s right to seek divorce. The judgment reinforced the necessity for courts to address khula cases expeditiously.

Sadia Ali v. Abdul Rehman (2022): This judgment highlighted the importance of considering the mental and emotional well-being of women seeking khula. The court noted that prolonged marital discord justifies the grant of khula.

Razia Bibi v. Muhammad Akram (2023): The Lahore High Court ruled in favor of a woman’s request for khula, stating that a woman should not be compelled to remain in a relationship that she finds unbearable.

06/10/2024

2023 LHC 6415
ٹیگ لائن: محمڈن لاء از D.F. ملا نہ تو کوئی قانون ہے اور نہ ہی رواج یا استعمال، اس لیے عدالتوں کا پابند نہیں۔ دادا اور چچا سے کفالت کا دعویٰ اسلامی فقہ کے مختلف اصولوں پر ہے، اس لیے چچا، دادا کی موت کے بعد مدعا علیہ کی حیثیت سے ان کی جگہ نہیں لے سکتے تھے۔
2023 LHC 6415
teg lin: muhammatan la az D.F. mala na to koi qaanon hay or na hi rawaj yaa istamal, is liye adalton ka paband nihen. dada or chcha se kafalt ka dawa islami faqah ke mukhtalf asilon par hay, is liye chcha, dada ki mot ke bad madua aliya ki heesiyat se an ki jagah nihen le sakte the.

06/10/2024

2023 LHC 5329
واحد سوال جس کے لیے اس عدالت کی رائے درکار ہے وہ یہ ہے کہ سرپرست کی عرضی سے نکلنے والی فہرست کے زیر التوا ہونے کے دوران نابالغ کے بالغ ہونے کے اثرات کا جائزہ لیا جائے اور کیا ایسی صورت میں، اس عدالت کو کسی کو منظور کرنے کا اختیار حاصل ہے۔ سمت نابالغ کو مدعا سے ملنے پر مجبور کرتی ہے۔ اس نے کہا کہ: سرپرست کے مقدمے میں کارروائی کے کسی بھی مرحلے پر، نابالغ بالغ ہونے کی عمر کو پہنچ جاتا ہے، یہ فہرست بے اثر ہو جاتی ہے کیونکہ عدالتوں کا دائرہ اختیار ختم ہو جاتا ہے، ایکٹ کے تحت اور وہ کوئی ہدایات نہیں دے سکتیں۔ ایک فطری نتیجہ کے طور پر، اس عدالت کی طرف سے کوئی بھی مزید کارروائی غیر عدالتی ہوگی۔
2023 LHC 5329
teg lin: wahad swal jas ke liye is adalt ki raaye darkar hay wah ya hay kah sarparist ki arzi se nikalane wali faharist ke zir altawa hone ke duran naabalgh ke balgh hone ke asarat ka jaizah liya jaye or kiya esi surt min, is adalt ko kasi ko manzur karne ka akhtyar haasil hay. samat naabalgh ko madua se malne par mujabur karti hay. is ne kaha kah: sarparist ke maqdame min karwai ke kasi bhi marhale par, naabalgh balgh hone ki amar ko pohch jata hay, ya faharist be asar ho jati hay cunkah adalton ka dairah akhtyar khtam ho jata hay, act ke taht or wah koi hidayat nihen de saktin. ek fatari natijah ke tur par, is adalt ki taraf se koi bhi mazid karwai ghair adalti hogi.

06/10/2024

نابالغ کی فلاح و بہبود کے اصول کو قطعی طور پر نہیں سمجھا جا سکتا ہے بلکہ یہ ایک رشتہ دارانہ غور و فکر ہے اور بعض اوقات، اسی کو اس پرزم کے ذریعے دیکھا اور غور کرنا پڑتا ہے جو نابالغ کے لیے کم سے کم نقصان دہ ہے۔ ، جس کا مطلب ہے کہ عدالت کو حریف مدمقابل میں سے ایک سرپرست کا انتخاب کرنا پڑ سکتا ہے جو نابالغ کی پرورش اور بہبود کے لیے کم سے کم نقصان دہ ہو۔ موجودہ کیس میں، بنیادی سوال جس کے لیے اس عدالت کی طرف سے فیصلے کی ضرورت ہے وہ ہے ایک ماں کے درمیان ایک نابالغ کے سرپرست کی تقرری کا تعین کرنا جس پر اس کے شوہر اور نابالغ کے والد کے قتل کا الزام ہے، اور نابالغ لڑکے کی نانی جو نابالغوں کی جائیداد کے ساتھ اس کا سرپرست مقرر کیے بغیر معاملہ کر رہا ہے۔ گارڈین جج کے حکم کو بحال کرتے ہوئے درخواست گزار کی ماں کو درخواست گزار کی تحویل میں دی گئی تھی کہ ریکارڈ پر موجود تمام حالات پر غور کیا جائے۔ اگر مدعا علیہ کی دادی جو ذیل میں اپیلٹ کورٹ کی طرف سے سرپرست کے طور پر مقرر کی گئی تھی، عمومی طور پر اور خاص طور پر تقرری کے بعد، اس معاملے میں، اس عدالت کی طرف سے درخواست گزار پر مقدمے کے وقت تک ترجیح دی جا سکتی تھی۔ اس کے خلاف لگائے گئے الزام سے بری ہو جاتی ہے، تاہم، حقیقت یہ ہے کہ نابالغ کے فرد کا سرپرست مقرر ہونے کے بعد، مدعا علیہ-دادی نابالغ کے ساتھ عدالت سے بھاگ گئی اور بغیر اختیار کے، نابالغ کی جائیداد کا لین دین شروع کر دیا۔ ایک مادی حقیقت جسے نظر انداز نہیں کیا جا سکتا۔ مزید برآں، نابالغ لڑکا، جو پہلے ہی اپنے والد کو کھو چکا ہے، اپنی ماں کی محبت سے محروم ہو جائے گا جبکہ وہ مدعا علیہ-دادی کی تحویل میں ہو گا جو فوری طور پر نابالغ کی جائیداد کا بغیر کسی اختیار کے لین دین کر رہا ہے۔ خفیہ اور مشکوک انداز.
teg lin: manaqad: naabalgh ki filah w bahabud ke asul ko qatyi tur par nihen samja ja sakta hay balkah ya ek rashtah darana ghor w fikar hay or baz awaqat, isi ko is parzam ke zariye dekha or ghor karna padta hay jo naabalgh ke liye kam se kam naqsan dah hay. , jas ka mutalab hay kah adalt ko harif madmaqabl min se ek sarparist ka antakhab karna pad sakta hay jo naabalgh ki parorsh or bahabud ke liye kam se kam naqsan dah ho. mojudah kis min, baniyadi swal jas ke liye is adalt ki taraf se fisale ki zarort hay wah hay ek man ke darmiyan ek naabalgh ke sarparist ki takhari ka tayin karna jas par is ke shohar or naabalgh ke wald ke qatal ka alzaam hay, or naabalgh larke ki naani jo naabalghon ki jayidad ke sath is ka sarparist mokhar kiye baghair mamlah kar raha hay. garden jaj ke hakam ko bahal karte huvay darkhwast guzar ki man ko darkhwast guzar ki tahwel min di gayi thi kah rikard par mojud tamam haalat par ghor kiya jaye. agar madua aliya ki dadi jo zeel min apelt kort ki taraf se sarparist ke tur par mokhar ki gayi thi, amomi tur par or khaas tur par takhari ke bad, is mamle min, is adalt ki taraf se darkhwast guzar par maqdame ke waqat tak tarjeeh di ja sakti thi. is ke khalaf lagaye gaye alzaam se bari ho jati hay, taaham, haqeeqat ya hay kah naabalgh ke fard ka sarparist mokhar hone ke bad, madua aliya-dadi naabalgh ke sath adalt se bhag gayi or baghair akhtyar ke, naabalgh ki jayidad ka lin din sharo kar diya. ek madi haqeeqat jase nazar andaz nihen kiya ja sakta. mazid baran, naabalgh larka, jo pehle hi apane wald ko kho chka hay, apani man ki muhabbat se muharom ho jaye ga jabakah wah madua aliya-dadi ki tahwel min ho ga jo fori tur par naabalgh ki jayidad ka baghair kasi akhtyar ke lin din kar raha hay. khofiya or mashkok andaz.

18/05/2024

With ISPR Pakistan – I just got recognized as one of their top fans! 🎉

12/05/2024

09/04/2024

09/04/2024

03/07/2023

Law of Interim Injunction in Family/Custody Cases

Scores of appeals against visitation orders passed by Guardian Courts are pending settlement in practically each appellate court in Lahore and several such appeals have been pending mediation throughout the region of Punjab in Guardian Appellate Courts for over 2-3 years. There is just one explanation for this: the learned appellate courts have allowed stay orders/interim injunctions simply on the basis of an introduction of affirmation by the appellant. In practically all such appeals, various dates have additionally been given to the appellants and various applications for excursions of stay/interim injunctions have been documented — though without results.

This article highlights the law of interim injunction in family jurisprudence. It is an issue which has not yet been tended to by any of the courts of suitable locale despite repeated requests. The appellate courts in Lahore have disappointed in guaranteeing consistencies in their orders thereby causing inequity towards non-custodial parents and neglect towards minor children who are expected to bear the brunt of careless laws.

As most readers may know, an order is a legitimate cure which is forced by a court. In basic terms, a directive implies that a specific activity should either accomplish something or abstain from accomplishing something. When the court settles on a choice, the parties must submit to that decision. In the event that a party neglects to stick to the order, there can be monetary punishments and even detainment in specific instances.

Having practised child custody litigation for over a decade, I am familiar with the structure of family jurisprudence and the loco parentis limit. Before a temporary directive can be awarded in an appeal based on an affidavit of the appellant, the appellate court must acknowledge the typical practice among couples to use children as pawns. In cases of such flippant behaviour, youngsters are often left severely scarred post separation. A court’s powers, with regard to visitation rights and the custody of minors, come within the nature parental jurisdiction, therefore, the court must act in a way that a wise parent would. The expression “welfare of minor” is to be construed in a way so as to encompass all the dominant factors essential for determining the actual welfare of the minor. Technicalities of law should not be adhered to in such type of cases and used to suspend visitation rights of non-custodial parents. Reliance is placed on 2002 PLD 267 Supreme Court.

An order by the appellate court allowing the suspension of visitation rights based on an affidavit presented by the appellant on the day of the hearing and without issuing prior notices to the non-custodial parent appears to encroach upon visitation privileges which are already confined to meeting minors on court premises, for two hours and two times a month (PLD 1958 SC 41).

When the lis/suit is pending between guardians, there are three fundamental characters of the situation: mother, father and child — and in specific cases the siblings of the minor. The feelings and sentiments of all those involved ought to be taken into consideration whilst addressing the main issues, in addition to considering the welfare of the minor as referenced before.

All those appearing and assembling for the proceedings should consider that the mother should not be denied complete custody of the minor, nor should the father be discouraged from meeting and seeing his children (2009 CLC 1443 Lahore). The third significant character is simply the child, who under the law of nature ought to receive the warmth of both guardians (2019 MLD 804 Karachi).

For the sake of welfare of the minor, genuine efforts should be made by legal executives to put a stop to the misuse of legal procedures. Specialized curriculum and workshops are also required for Guardian Judges who ought to keep in mind that restricting the civil rights of non-custodial parents (generally the fathers) should be justifiable with substantive reasons. It is further proposed that the learned judges serving as Guardian Judges be provided with guidelines on the standards of natural justice appropriate in guardianship proceedings, as well as awareness of the constitutional guarantees which non-custodial parents are entitled to, such as the right to a fair trial and the right to privacy and dignity.

03/07/2023

FORM No. HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT,
LAHORE
JUDICIAL DEPARTMENT
C.R.No. 47469 of 2022
Ameer Ali. Versus. S.E. West Circles Motor
Canal, etc.
Sr. No. of
order/
Proceedings
Date of order/
Proceeding
Order with signature of Judge, and that of
Parties‟ counsel, where necessary
04.08.2022 Mr. Ansar Ali Sidhu, Advocate for petitioner.
Barrister Hassan Khalid Ranjha, Assistant Advocate
General Punjab.
Ms. Zarish Fatima, Assistant Attorney General for
Pakistan.
Through this revision petition, the petitioner has
called in question order dated 31.03.2021 passed by
learned Civil Judge/Administrative Judge, Faisalabad and
judgment dated 25.06.2022 passed by learned Additional
District Judge, Faisalabad, whereby in a suit for
declaration with permanent injunctions filed by the
present petitioner alongwith respondent No. 7
(„plaintiffs‟) against the respondents No. 1 to 6
(„defendants‟), their application for grant of interim relief
has been dismissed by the trial court on the ground that
order of temporary injunctions has ceased to have its
effect after expiry of one year in terms of Order ###IX
Rule 2B CPC and the appeal filed by the petitioner has
also been dismissed by upholding the said order.
2. Learned counsel for the petitioner contends that
the learned courts below have not considered the merits
C.R. No. 47469 of 2022 2
of the case while passing the impugned orders dismissing
the petitioner‟s application for grant of interim relief,
which are not sustainable being based on jurisdictional
defect of misreading and non-reading of the relevant
record and misapplication of law, hence, are liable to be
set aside and prays that by setting the same aside the
application for interim relief filed by the petitioner be
allowed.
3. Heard. Record perused.
4. The petitioner and respondent No. 7 („plaintiffs‟)
filed a suit for declaration and permanent injunctions
against the official respondents No. 1 to 4, in which the
plaintiffs claimed that their agricultural land is being
irrigated through Canal Outlet/Moga No. 142435/L of
Rajbah Shahkot, whereas official respondents no. 1 to 4
along with some other persons have collusively got
prepared new schedule for supply of water („Warabandi‟)
against the rights of the plaintiffs, without notice to any
landholder of the locality through order dated 02.01.2016
passed by the Deputy Administrator Sub-Division
Safdarabad and got approved a new water outlet
(„nakka‟) in Killa number 25/16 of Square no. 22 despite
availability of previously existing outlet in Killa Number
5/6 in the same square and new outlet were also approved
in Square no. 40 despite existence of previous outlet in
the said square for irrigation of land of private
respondents resulting in reduction of supply of water to
C.R. No. 47469 of 2022 3
the lands of the plaintiffs. The appeal filed by the
petitioner to challenge the same before the canal
authorities was dismissed on 16.06.2016 by Chief
Executive Area Water Board Faisalabad. Where after the
plaintiffs challenged the said orders before the Civil
Court through suit for declaration along with which an
application for interim relief was also filed to restrain the
respondents to implement the new irrigation
schedule/Warabandi. The official respondents No. 1 to 4
were proceeded against ex-parte as despite service none
appeared on their behalf, however, it is pertinent to note
here that even prior to proceeding ex-parte against the
afore-said respondents, the request of the plaintiffs for
interim relief was declined on 08.08.2016. The operative
portion of the order dated 08.08.2016 is reproduced
below:-
“The petitioners moved application under O.###IX
R. 1 & 2 CPC alongwith the main suit for
declaration for grant of ad-interim injunction
against the respondents/defendants on grounds that
respondents/defendants be restrained to satisfy the
orders dated 02.01.2016 and 16.06.2016 passed by
the Deputy Administrator Sub-Division Safdarabad
and Chief Executive Area Water Board Faisalabad
and the orders above mentioned are against the law
& facts and liable to be set-aside. It is evident from
copy of orders dated 16.06.2016 passed by Chief
Executive Area Water Board, Faisalabad it reflects
that the petitioners have filed an appeal against
order dated 25.09.2003 and the same appeal of the
petitioners was dismissed on grounds that the
petitioner challenged the above mentioned order
after a period of thirteen years. It is also evident
from record that the petitioners have not assailed
the impugned orders before the Competent
hierarchy according to Canal & Drainage Act.
Further petitioner did not annex any document by
which it may be drawn reference of the mala fide of
the respondents/defendants. Further petitioners/
C.R. No. 47469 of 2022 4
plaintiffs have not impleaded the beneficiary as
party of the suit. So, keeping in view the available
documents as well as record and above facts, I am
not inclined to grant ad-interim injunction and same
request of the petitioner/plaintiff is hereby turned
down.”
(emphasis supplied).
It is pertinent to note here that the appellate court
vide its order dated 17.02.2017 directed the trial court to
decide the application for interim relief afresh, however,
the said order has not been placed on the record,
therefore, the terms and conditions mentioned in the said
order are not before this court to further comment upon
the same.
5. The private respondents No. 5 and 6, who were the
beneficiaries of the orders of Canal Authorities
challenged in the suit had not been initially impleaded as
parties, whereas they were impleaded as parties later on
when the learned Revisional Court allowed their
application under Order I Rule 10 CPC which had earlier
been dismissed by the trial court on 05.09.2019.
Thereafter, the respondents No. 5 and 6 submitted their
written statement and reply to application under Order
###IX Rules 1 and 2 CPC. The application for interim
relief was declined by the learned trial court on
31.03.2021 and appeal filed by the petitioner against the
said order was dismissed on 25.06.2022 and resultantly
the order dated 31.03.2021 was upheld, necessitating in
filing of the instant civil revision. For the purpose of
better understanding the real controversy in issue, the
C.R. No. 47469 of 2022 5
relevant portion of order dated 31.03.2021 is reproduced
below:
“5. Contention of plaintiff is that fresh
Warabandi has been illegally passed and
operation of the same be suspended, whereas
defendants have categorically stated that not only
the Warabandi has been passed it has also been
implemented. During argument they produced the
copies of record of implementation of fresh
Warabandi. Moreover, perusal of record shows
that ad-interim order was passed in the suit on
08.08.2016. Order ###IX rule 2-B provides that:
“The order of injunction made under
rule 1 or 2 after hearing the parties or
after notice to the defendant shall cease
to have effect on the expiration of six
months unless extended by the court
after hearing the parties again and for
reasons to be recorded for such
extension.”
In the present case period of more than 1-
year has been passed and nothing in available on
record to show that plaintiff had moved an
application in terms of rule 2.B of order ###IX
Code of Civil Procedure, 1908 for extension of
order of temporary injunction granted in his favour.
Hence, the order of temporary injunction has ceased
to have effect after expiration of period of one year
as envisaged by order ###IX rule 2.B. In these
circumstances, application for temporary injunction
has become infructuous and same is dismissed being
infructuous. This order be annexed with main file.”
(emphasis supplied)
6. For the purpose of further clarity the perusal of the
admitting order and final Judgment of the appellate
Court is also necessary. The appellate Court admitted the
appeal filed by the petitioner against order dated
31.03.2021 to regular hearing vide order dated
19.04.2021. The operative part is reproduced below:
“2. Learned counsel for the respondent No. 5
and 6 have appeared in response to the notice
issued u/o 43 Rule 3 C.P.C. He has opposed this
appeal with the contention that warabandi has
already been implemented. Whether the Canal
department committed an illegality is a matter of
C.R. No. 47469 of 2022 6
evidence. At present appellant has no locus
standi and is not going to suffer inconvenience
or irreparable loss.
3. The contention raised by the both the
learned counsel for the parties need
consideration. Appeal is admitted for regular
hearing. Whether warabandi in dispute has
already been implemented or not will come on
surface after the appearance of the respondents
No. 1 to 4/Canal Authorities. Let a notice
subject to process fee and registered A.D.
envelope etc. for the summoning of respondent
No. 1 to 4 be issued for 29.04.2021. In the
meanwhile, operation of impugned order is
suspended till next date.”
(emphasis supplied)
The perusal of the afore-referred order shows that
the learned Addl. District Judge suspended the order
dated 31.03.2021 passed by the learned trial court till the
next date, however, did not comment upon the
Warabandi in dispute having been implemented or not as
the said aspect of the matter according to the said court
would surface after appearance of Canal Authorities/
respondents No. 1 to 4, hence, the situation pertaining at
the site does not appear to have been interfered with by
the appellate court at the date of passing of its order.
7. The operative portion of the final judgment of the
appellate court dated 25.06.2022, whereby appeal has
been dismissed and order of trial court has been upheld,
is reproduced below:
“6. Rule 2-(b) of Order ###IX of the Code of
Civil Procedure (V of 1908) is a valid
legislation and decision of the Court in
accordance with relevant law cannot be
considered as decision on technicalities rather
the same shall be considered the order in
accordance with law. Therefore, firstly I am not
inclined to accept the version of the
C.R. No. 47469 of 2022 7
appellant/plaintiff that learned trial Court did
not decide the application on merit. Secondly,
learned appellate Court directed the trial Court
to decide the main application of temporary
injunction on merit vide order dated 17.02.2017,
thereafter even elapse of four years, appellant
failed to argue the application for temporary
injunction. Therefore, it was not possible for the
learned trial Court to decide the same on merit
however, after hearing the arguments, the
learned trial Court applied the provision of Rule
2-(b) of Order ###IX of the Code of Civil
Procedure (V of 1908) which is a valid
provision. Consequently, this appeal is hereby
dismissed being devoid of merit. Memo of cost
be prepared. Copy of this judgment be remitted
immediately and File of this Court be consigned
to record room after due completion.”
(emphasis supplied)
It is noticed that the appellate court has perhaps
through clerical mistake inadvertently referred to Rule 2-B
as 2-(b).
8. The perusal of the said orders shows that the
learned trial court dismissed the application for interim
relief / injunction as having become infructuous vide
impugned order dated 31.03.2021, whereby it refused to
extend the order of interim injunction earlier passed by it
on 08.08.2016, on the ground that it has ceased to have
its effect after expiry of one year as envisaged by Order
###IX Rule 2B CPC, whereas the perusal of the order
dated 08.08.2016 shows that through said order actually
the interim injunctions had been declined and had not
been granted, therefore, the said observations of the trial
court were not based on proper appreciation of record of
the case. The learned judge while doing so through the
impugned order was persuaded by the fact that the
C.R. No. 47469 of 2022 8
petitioner had not moved an application in terms of Rule
2B of Order ###IX CPC for extension of order of
temporary injunction granted in his favour. Although
there was no bar against the petitioner to file application
for extension of order of interim injuntion, it has not been
mentioned that under what provision law filing of such
an application was necessary as the Rule 2-B prima facie
does not make the same as a mandatory requirement and
court could hear the parties without any application to
decide whether the interim relief should be extended or
not in the given circumstances of the case. The afore-said
legal position coupled with the fact that interim
injunction/stay had not been granted on 08.08.2016, the
said observation regarding non-filing of application for
extension of stay is based on misreading and non-reading
of record and misapplication of law and hence the
learned trial court does not appear to have properly
exercised the jurisdiction vested in it.
The learned appellate court while upholding the
order passed by the learned trial court observed that it
was not possible for the learned trial court to decide the
application on merits as the petitioner had not appeared
to argue the matter for four years and in the said scenario
the trial court in the opinion of the appellate court had
rightly applied provision of Rule 2B of Order ###IX
CPC, which according to the appellate Court was a valid
provision.
C.R. No. 47469 of 2022 9
Both the learned courts below have not taken into
consideration the fact that Rule 2B, as amended through
Notification No. 65/Legislation/XI-Y-26 dated
25.03.2007 by the Lahore High Court under Section 122
CPC, by substituting validity period of interim injunction
as one year instead of six months, had been omitted by
Lahore High Court vide Notification No. 237/Legis/XIY-260 dated 15.08.2018, w.e.f. 01.11.2020 vide another
Notification No. 259/Legal/XI-Y-26 dated 23.10.2020
i.e., much prior to passing of the order dated 31.03.2021
and judgment dated 25.06.2022. Hence, the reference to a
provision of law which no longer existed on the statute
book was misplaced and the said reference instead of
advancing the cause of justice prima facie appears to
have hampered the same. Besides the observation of the
learned trial court that separate application was required
to be filed for extension of injunctive order, in the given
circumstances of this case was not in accordance with
law as the same was alien, although not absolutely, to the
provision of erstwhile Rule 2B of Order ###IX CPC
reproduced below wherein the court was only required to
rehear the matter before allowing or refusing to extend
the interim injunction any further with or without
application filed by the plaintiffs, hence, the impugned
order suffers from erroneous exercise of jurisdiction and
is not sustainable.
C.R. No. 47469 of 2022 10
“(2-B) The order of injunction made under rule 1
or 2 after hearing the parties or after notice to
the defendant shall cease to have effect on the
expiration of one year unless extended by the
court after hearing the parties again and for
reasons to be recorded for such extension:
Provided that report of such extension
shall be submitted to the High Court.”
9. Both the Notifications dated 15.08.2018 and
23.10.2010, whereby the said Rule had been omitted
with effect from 01.11.2010, are reproduced below:
“No. 250/Legis/XI-Y-26
Dated 23.10.2020
NOTIFICATION
In exercise of the powers conferred under
paragraph 2 of the Notification No. 237/Legis/XI-Y26 dated 15th August, 2018 published in the Punjab
Gazette No. 08 dated 22nd August, 2018 and
addendum thereto No. 18 dated 31st October, 2018,
the Hon‟ble Chief Justice and Judges are pleased to
direct that the provisions of Civil Procedure Code
(Amendment of First Schedule) 2018, made under
section 122 of the Code of Civil Procedure (Act No.
V of 1908) shall come into force on the first day of
November, 2020 within the local limits of jurisdiction
of the Lahore High Court, Lahore.”
(Emphasis supplied)
“NOTIFICATION
No. 237/Legis/XI-Y-26 Dated 15.08.2018
The following amendments in Rules and
Orders of the First Schedule to the Code of Civil
Procedure, (Act of 1908), made under section 122 of
the Code, by Lahore High Court, Lahore, after
previous approval of the Govt. of the Punjab are
hereby published in the official Gazette under section
127 of the Code.
2. These shall come into force, within the local
limits of jurisdiction of Lahore High Court, Lahore
on such dates and in such District or Districts of the
Punjab as Lahore High Court, Lahore may
determine by Notification.
AMENDMENTS
C.R. No. 47469 of 2022 11
1. This Notification may be cited as the Civil
Procedure Code (Amendment of First Schedule)
2018.
2. It shall come into force in such district or
districts of the Punjab as Lahore High Court
Lahore may, by notification, determine and
different dates may be so determined for different
districts.
“In the Code of Civil Procedure, 1908, in the
First Schedule:
1. In Order I, for rule 11, the following shall be
substituted:-
……………………………………………………
……………………………………………………
……………………………………………………
………………………………….
20. In order ###IX, rule 2B shall be omitted.”
(Emphasis supplied)
10. Apparently, both the courts below were not
cognizant of the fact that Rule 2B supra had been
omitted through the afore-referred amendment
Notifications made by the Lahore High Court and the
impugned orders having been passed in ignorance of the
said legal position cannot be said to be based on proper
appreciation of law and where observations are recorded
through lack of care or due regard to the law or facts of
the case, the same have to be declared as per incuriam in
view of the principles laid down in judgments of the
Honourable Supreme Court of Pakistan discussed below:
i. In the case titled Member Board of
Revenue/Chief Settlement Commissioner,
Punjab, Lahore versus Abdul Majeed and
another (PLD 2015 SC 166) it has been held
that where a direction has been given by the
court on a mistaken view of law as party had
failed to assist the court on factual and legal
points in the case and had also not filed para
wise comments, such direction was per
incuriam and once the court has come to the
conclusion that judgment was delivered per
incuriam then Court is not bound to follow
C.R. No. 47469 of 2022 12
such decision on the well known principle that
judgment itself is without jurisdiction and per
incuriam, therefore, it deserves to be overruled at the earliest opportunity.
The said principle has reiterated earlier view
rendered by the Supreme Court in case titled
as Regarding Pensionary benefits of the
Judges of the Superior Courts from the date of
their respective retirements, irrespective of
their length of service as such judges (PLD
2013 SC 829) wherein it has been held that
where a judgment was set aside as being per
incuriam, the rule of locus poenitentiae, along
with its exception, shall not be applicable,
because the said doctrine primarily belonged
to the domain of the State and was to be
restricted to administrative orders/actions
alone.
ii. In the case titled Sindh High Court Bar
Association its Secretary and another versus
Federation of Pakistan through Secretary,
Ministry of Law and Justice, Islamabad and
others (PLD 2009 SC 879) it has been held that
“(37) „Incuria‟ literally means
“carelessness”. In practice per incuriam
is taken to mean per ignoratium and
ignored if it is rendered in ignoratium of
a statute or other binding authority.
(38) What is meant by giving a decision
per incuriam is giving a decision when a
case of a statute has not been brought to
the attention of the court and they have
given the decision in ignorance or
forgetfulness of the existence of that case
of that statute or forgetfulness of some
inconsistent statutory provision or of
some authority binding on the court, so
that in such cases some part of the
decision or some step in the reasoning on
which it was based was on that account
demonstrably wrong, so that in such like
cases, some part of the decision, or some
step in the reasoning on which it is
based, if found, on that account to be
demonstrably wrong.”
The same principle has been reiterated in cases titled
as Fasih-ud-Din Khan and others versus Government of the
Punjab and others (2010 SCMR 1778) and Gulshan Ara
versus The State (2010 SCMR 1162). The same principles
were also laid down in a previous case titled as The State
C.R. No. 47469 of 2022 13
through National Accountability Bureau, Islamabad versus
Haji Nasim-ur-Rehman (PLD 2005 SC 270).
iii. In the case titled Syed Shabbar Raza Rizvi and
others versus Federation of Pakistan, Ministry of
Law and Justice Division through Secretary,
Islamabad and others (2018 SCMR 514) it has been
held that any judgment could be considered to be per
incuriam but it was for the judges to revisit any such
judgment, and when pointed out by any person
during course of hearing of any other case and such
finding would be premised on the Court finding the
same judgment to be against any provision of the
Constitution or the law, or the principles already
settled by a larger Bench of the Court.
11. In the present case, as the impugned orders have
been passed in ignorance of fact that Rule 2B of Order
###IX CPC had been omitted, therefore, the order and
judgment passed by both the courts below are per
incuriam and as court with reference to afore-referred
non-existence provision of law reached conclusion that
application for interim injunction has become
infructuous due to lapse of time provided by the said
provision, therefore, prima farcie prejudice has been
caused to the rights of the petitioners/plaintiffs to have
their application decided on its own merits in accordance
with law, hence, the impugned orders are not sustainable
and liable to be set-aside. The learned trial court was
required to decide the pending application for interim
relief/ injunction on the basis of its own merits, which
was also the mandate of order of the appellate court
dated 17.02.2017 and dismissal on technical ground of
the said application was not justified. It is settled
C.R. No. 47469 of 2022 14
principle of law that where a statute/law described or
required a thing to be done in a particular manner, it
should be done in that manner or not at all, otherwise it
would be non-compliance with the legislative intent.
Reliance in this regard is placed on 2021 SCMR 1979
(Attaullah Khan versus Ali Azam Afridi and others),
PLD 2018 SC 189 (Muhammad Hanif Abbasi versus
Imran Khan Niazi), 2017 SCMR 1427 (The Collector of
Sales Tax, Gujranwala versus Super Asia Mohammad
Din and Sons), PLD 2016 SC 995 (Shahida Bibi and
others versus Habib Bank Limited and others), 2014
SCMR 1015 (Zia Ur Rehman versus Syed Ahmed
Hussain and others) and PLD 2013 SC 255 (Muhammad
Anwar and others versus Mst. Ilyas Begum and others).
12. Before parting with this order, it is observed that
this order has been passed in the interest of justice only
on legal and jurisdictional aspect of the matter in the
absence of the respondents as summoning them would
have incurred some expenses and inconvenience to them
and would have delayed that decision of matter at this
interlocutory stage, hence, their presence has been
dispensed with and as the order has been passed in the
absence of the respondents, they, if aggrieved, may file
an application for rehearing of the matter for its decision
afresh.
13. In view of the foregoing, this revision petition is
allowed, with the result that both the impugned order
C.R. No. 47469 of 2022 15
dated 31.03.2021 and judgment dated 25.06.2022 are
set-aside and the matter relating to application for
interim injunction filed by the petitioner/plaintiffs is
remanded back to the learned trial court, where the said
application shall be deemed to be pending, which shall
be decided afresh on its own merits in accordance with
law after hearing all the concerned, expeditiously,
preferably within next 60-days. The parties shall ensure
that they assist the court in carrying out the directions
issued by this Court, however, if any party does not
appear, the court shall be at liberty to proceed further
with the matter on its own merits as per law.
(MUZAMIL AKHTAR SHABIR)
JUDGE
*Zeeshan Khan*
A