Section 8 & 11
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Valuation for the purpose of court’s jurisdiction in a partition Suit
where plaintiff is in possession is determinable by the value of the
plaintiffs share in the entire property.
[Held by the majority, accepting AR Cornelius, CJ, disagreeing.] In a suit
for partition of joint property by a person, claiming to be in joint
possession, the valuation for purposes of jurisdiction is determined by the
value of the share of the plaintiff in the property and not by the value of
the whole property.
In a suit for partition, where the plaintiff is excluded from possession,
the plaintiff has to pay ad-valorem court-fees on the market value of the
share claimed by him and that value also determines the forum of the trial
or appeal. It is difficult to appreciate why in a case for partition, where
the plaintiff is in joint possession he must be given the benefit of having
his suit tried or his appeal heard by a higher tribunal by valuing his suit
according to the value of the entire property sought to be partitioned.
Ajizuddin V. Rahman Fakir (1961)13 DLR SC) 191.
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Ajizuddin V. Rahman Fakir |
13 DLR SC) 191 |
Section 11
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(Per Cornelius, CJ)—As the point of valuation for purpose of jurisdiction
was not taken in the Court of first instance, under s. 11 of the SV Act no
omission on the ground of over-valuation or under valuation should have
been entertained by the appellate Court, i.e. the High Court, even if that
Court were of the opinion that ‘the over-valuation or under-valuation
thereof has prejudicially affected the disposal of the suit or appeal on
its merits”.
Azizuddin Vs. Rahman Fakir. (1961) 13 DLR (SC) 191.
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Azizuddin Vs. Rahman Fakir |
13 DLR (SC) 191 |
Section 11
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Supreme Court
Appeal to the Supreme Court competent, being an order against the Collector
even though a departmental appeals, against the Collector’s order, has
already been preferred and disposed of by the Board of Revenue.
Messers S. A. Haroon Vs. Collector of Customs, Karachi (1967) 19 DLR (SC)
472.
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Messers S. A. Haroon Vs. Collector of Customs, Karachi |
19 DLR (SC) 472 |
Section 11
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—Person appearing before the Supreme Court being an advocate has to make
submission in English language.
Shamsuddin Ahmed Vs. Registrar, High Court of E. Pak. (1967) 19 DLR (SC)
483.
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Shamsuddin Ahmed Vs. Registrar, High Court of E. Pak. |
19 DLR (SC) 483 |
Section 11
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—Question of fact—Interference by the Supreme Court on question of fact
is permissible not only when apparent blunder or error committed by lower
Court but also when the finding is patently absurd and also it is
physically impossible.
The Privy Council itself recognized that it would not hesitate to review
the evidence in spite of a concurrent finding of the Courts below if “it
be shown with absolute clearness that some blunder or error is apparent in
the way in which the learned Judges below have dealt with the facts” or
“if there had been any principle of evidence not properly applied.” But
this at best is a rule of practice only which has gradually developed as a
result of the decisions of the Board which are merely illustrative and by
no means exhaustive.
Federation of Pakistan Vs. Ali Ihsan (1967) 19 DLR (SC) 251.
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Federation of Pakistan Vs. Ali Ihsan |
19 DLR (SC) 251 |
Appeal to the Supreme Court—
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—Appeal to the Supreme Court— Point involving inquiry into facts cannot
generally be allowed to be raised for the 1st time.
Points involving inquiry into facts or as to which there could have been an
answer on facts, if they were raised in the trial Court, cannot in the
absence of strong reasons justifying such a course, be allowed to be raised
for the first time in appeal.
Whether both parties were ignorant of the law on a particular date is a
question of fact which could only be decided after an investigation and
there was no good ground for its being allowed to be raised as an
additional ground of appeal.
Haji Abdullah Khaiz Vs. Niso Mohammad Khan (1965) 17 DLR (SC) 481.
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Haji Abdullah Khaiz Vs. Niso Mohammad Khan |
17 DLR (SC) 481 |
Appeal by special leave to Supreme Court—
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—Appeal by special leave to Supreme Court— Maintainability of
objection—Objection not mentioned in the concise statement cannot be
raised for the first time at the time of argument.
Taj Din Vs. Mrs. Razia Begum (1973) 25 DLR (SC) 13
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Taj Din Vs. Mrs. Razia Begum |
25 DLR (SC) 13 |
Concurrent finding of fact—
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Concurrent finding of fact—When it does and when does not interfere.
The Supreme Court does not interfere with concurrent findings of fact in
civil matters, unless that finding is shown to be based on no evidence or
upon mis-reading of the evidence. No such error has been pointed out to us.
It cannot, therefore, be accepted that the finding as to the incomplete
nature of the gift was open to any challenge at this stage.
Abdullah Vs. Abdul Karim (1968) 20 DLR (SC) 205.
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Abdullah Vs. Abdul Karim |
20 DLR (SC) 205 |
Reversal of findings of fact-
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—Reversal of findings of fact. Supreme Court sets aside findings of fact
arrived at by the High Court.
The High Court in setting aside the finding with regard to collusion
arrived at by the Trial Court has not taken into account the following
circumstances: It has not considered the finding by the Trial Court that it
could not be believed that the defendant No. 1 would allow a property worth
Rs. 15,000/- to be sold for Rs. 3,700/- for his failure to pay the paltry
sum of Rs. 300/-which was due on account of municipal Lax. The Trial Court
observed that “the PWs appeared to be more reliable than the DWs and I
accept the evidence of PWs that the defendant No. 1 is still in possession
and the defendant No. 4 has no possession”. This finding has also been
reversed without giving any cogent reasons thereof. Regard being had to
these facts we are unable to sustain the finding of the High Court.
Tripura Modern Bank Ltd. Vs. Khan Bahadur Khalilur Rahman (1973) 25 DLR
(SC) 34.
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Tripura Modern Bank Ltd. Vs. Khan Bahadur Khalilur Rahman |
25 DLR (SC) 34 |
Supreme Court’s decision—
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Supreme Court’s decision—Binding on all courts, including the High
Courts.
It is necessary to point out to the learned Judges of the High Court the
constitutional duty that any decision of the Supreme Court shall to the
extent that it decides a question of law or is based upon or enunciates a
principle of law is binding on all other Courts in Pakistan and that all
judicial authorities throughout Pakistan shall act in aid of the Supreme
Court.
Chowdhury Muhammad Khan Vs. Sanaullah, (1973) 25 DLR (SC) 45.
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Chowdhury Muhammad Khan Vs. Sanaullah |
25 DLR (SC) 45 |
Application for special leave to appeal—
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—Application for special leave to appeal— Objection that the appeal did
not lie before the High Court was not taken before the High Court—This
fact was not brought to the notice of the Supreme Court dealing with the
application for special leave to appeal—Had it been so brought to its
notice special leave would not have been granted.
M/s. Shirkag-i-Ahbab Vs. National Bank of Pakistan (1969) 21 DLR (SC) 275.
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M/s. Shirkag-i-Ahbab Vs. National Bank of Pakistan |
21 DLR (SC) 275 |
Jurisdiction—
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Jurisdiction—Matters which lie within the jurisdiction of the Appellate
Division of Supreme Court cannot under a misapprehension be usurped by a
High Court Divisions.
When the matter ultimately came before the Appellate Division of the
Supreme Court regarding the question of attachment of four Trawlers
(belonging to the defendant) the Appellate Division passed an order to the
effect that three Trawlers should be released from attachment order and
only one will remain under attachment under Or. 38, r. 5, CP Code. It
however appears that certain officer of the Government. allowed the 4th
Trawler to go. Thereupon when the matter came before the High Court
Division is proceeded to take certain penal action against the offending
officer for violation of the Court order regarding the Trawler which has
been allowed to go. The matter again came up before the Appellate Division
on being moved by the officer concerned. Held: The High Court Division was
under a clear misapprehension. If the party concerned violated the order
regarding the attachment of the Trawler concerned it is the order of the
Appellate Division which has been violated and therefore the High Court
Division acted without jurisdiction in proceeding to take action against
the offending officer. In these circumstances High Court Division’s order
is infructuous.
Md. Muzaffar Hossain Vs. King Fishers Industries Ltd. (1984) 36DLR (AD)
102.
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Md. Muzaffar Hossain Vs. King Fishers Industries Ltd. |
36 DLR (AD) 102 |
Fresh point involving investigation
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—Fresh point involving investigation into facts disallowed in appeal
The point that appointment in Class I post by the Postmaster-General
without the approval of the President was itself bad, was not raised before
the High Court. This point when raised before the Supreme Court was
disallowed since investigation into facts may be necessary to find out
whether approval of the President was or was not obtained.
The Postmaster-General, Eastern Circle (EP) Vs. Muhammad Hashim (1971) 23
DLR (SC) 49.
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The Postmaster-General, Eastern Circle (EP) Vs. Muhammad Hashim |
23 DLR (SC) 49 |