Wednesday, 31 October 2012

Petition of leave to Appeal

Citation Name  : 2012  SCMR  1292     SUPREME-COURT
  Side Opponent : FEDERATION OF PAKISTAN through Secretary Ministry of Overseas Pakistanis, Islamabad

Art. 185(3)---Law Reforms Ordinance (XII of 1972), S. 3---Petition for leave to appeal ---Conversion of such a petition into an Intra Court appeal to be decided by High Court---Scope---Petitions for leave to appeal were filed against the impugned judgment of the High Court by which writ petitions of the petitioners were dismissed---Respondent contended that where an Intra Court appeal was provided by law against the impugned judgment, a petition for leave to appeal would not be maintainable and same had to be dismissed as such the petitioners might file separate Intra Court appeal s before the High Court---Validity---First petition for leave to appeal (first petition) was filed on the 20th day of the announcement of the impugned judgment and an Intra Court appeal as such would not be out of time, while the second petition for leave to appeal (second petition) was filed on the 58th day of the announcement of the impugned judgment and as such an Intra Court appeal would be out of time---Filing of petitions for leave to appeal by the petitioners was apparently an innocent mistake based upon the wrong advice of the counsel and of misunderstanding of the petitioner of the second petition, who perhaps might have followed the petitioner of the first petition in availing the remedy against the impugned judgment, which remedy although might not be maintainable but by dismissing the same and allowing the petitioners to file an Intra Court appeal would only be ministerial work which could appropriately be cut short by allowing the present petitions to be treated as Intra Court appeal s to be decided by the High Court---Question of limitation arising in the Intra Court appeal s would be dealt by the High Court in accordance with the law---Present cases provided enough justification, where technicalities of procedure could be overcome by converting petition for leave to appeal into appeal or remanding the case from one court to another court/Tribunal by making the very same case by changing its character, nature or name and decided accordingly---Petitions for leave to appeal were disposed of by treating the same as Intra Court appeal s, which were to be decided by the High Court in accordance with the law.

Oral Gift by the Plaintiff

Citation Name  : 2012  SCMR  1373     SUPREME-COURT
  Side Appellant : NOOR MUHAMMAD
  Side Opponent : Mst. AZMAT-E-BIBI

S. 42---Civil Procedure Code (V of 1908), S.115---Suit for declaration---Alleged oral gift deed by plaintiff in favour of her step-brothers---Plaintiff having no knowledge of the relevant mutation of gift---Beneficiaries (defendants) failing to prove genuineness of said mutation of gift through credible evidence---Effect---High Court interfering with concurrent judgments and findings of courts below in revisional jurisdiction---Scope---Plaintiff (respondent) had inherited the suit property from her father---Defendants (appellants), who were step-brothers of the plaintiff, got mutated the suit land in their favour on the basis of an oral gift vide the impugned mutation---Plaintiff challenged the impugned mutation by way of declaratory suit, which was dismissed by the Trial Court and appeal filed thereagainst was also dismissed by the First Appellate Court---High Court in its revisional jurisdiction reversed the concurrent judgments and decrees of both the courts below on the ground that impugned mutation was not a bona fide transaction; that there was no report in "Roznamcha Waqiati" about the transaction; that the report made by the plaintiff's step-father regarding the oral gift in favour of the defendants was not credible; that onus was on the defendants to prove that there was a valid gift, and that there being no sanctity attached to such a fraudulent transaction, the limitation would not come in the way of justice---Contentions of the defendants were that the High Court had interfered with concurrent judgments and findings of fact in revisional jurisdiction which was not tenable in law and was beyond the parameters laid down under S.115, C.P.C.; that the High Court had ignored the other relevant entries in "Roznamcha Waqiati" and the statement of the revenue patwari; that the plaintiff herself was present at the time of the impugned mutation; that the impugned mutation stood incorporated in the subsequent "Jamabandies"/Record of Rights and a presumption of truth was attached to such entries; that a "Punchayat" was conveyed by the elders of the family where the plaintiff was told that she had made the oral gift and impugned mutation was genuine and that she should withdraw the suit, but the plaintiff resiled, and that the High Court had incorrectly decided the question of limitation by observing that the transaction in question was a fraudulent and void transaction---Validity---High Court had interfered with concurrent findings of fact because it found that those findings not only reflected misreading of evidence but also were against the law, and that the report purportedly made by the plaintiff's step-father to the effect that she wanted to give her land to her step-brothers (defendants) had not been proved by leading credible evidence---Plaintiff had allegedly given valuable agricultural land to her step-brothers vide the impugned mutation of gift without any ostensible reason and notwithstanding the fact that she had her own children to look after---Person who had purportedly identified the plaintiff at the time of the attestation of the impugned mutation was never examined---Plaintiff shifted to a different city after her marriage and she kept receiving her share of the produce from the suit land, which was being cultivated by the defendants---Explanation regarding knowledge of impugned mutation, given by the plaintiff in her cross-examination was sufficient to prove that she had no prior knowledge of the impugned mutation and further that the entries of "Jamabandies" were not challenged earlier because she was not aware of them---No unimpeachable evidence was led by the defendants to prove that the plaintiff was present at the time of the attestation of the impugned mutation or that she had instructed her step-father to make a gift in favour of her step-brothers (defendants)---Statement of "Naib Tehsildar" who attested the impugned mutation would be of no avail as he had admitted in his cross-examination that he neither knew the parties personally nor the persons who allegedly identified the donor (plaintiff)---Endorsement of the fact that impugned mutation was attested in a public gathering (Jalsa-e-Aam) did not exist on record---Contention of the defendants that the "Panchayet" decided the matter in their favour was not borne out either from the pleadings or the evidence led as firstly, there was no specific plea in the written statement regarding the same; second ly there was nothing in evidence to indicate that those who constituted the "Panchayet' were consensually agreed upon and gave a verdict to the effect that the impugned gift mutation was voluntarily made by the plaintiff---One of participants of the "Panchayet" had stated in his examination-in-chief that the plaintiff was asked to take oath on the Holy Quran as to whether she had consented to the gift or not, but she refused to do so---Such an argument was not tenable because bringing the Holy Quran in such matters was alien to the law and could not be a substitute for leading positive evidence on the point in issue---Contention of defendants that impugned mutation was reflected in subsequent "Jamabandies", therefore, presumption of truth is attached to it, was not tenable as presumption so attached stood rebutted in the present case since defendants failed to lead positive evidence that plaintiff herself appeared to make the gift; since there was evidence to the effect that the plaintiff had been getting her share of produce from the suit land, and since she had moved to another city and only filed the suit when the dispute arose and she checked the revenue record to find out that she had been deprived of her land fraudulently---appeal was dismissed, in circumstances.

Judgment must discuss each and every issue in evidence

Citation Name  : 2012  CLC  1274     SUPREME-COURT-AZAD-KASHMIR
  Side Appellant : ALLAH DITTA
  Side Opponent : MUHAMMAD SHARIF

O. XLI, R. 31---Specific Relief Act (I of 1877), S.8---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Suit for possession---Contents of judgment---Scope---Suit was dismissed by Trial Court and Appellate Court below, but on second appeal , High Court remanded case to Appellate Court for decision afresh---Validity---Provisions of R.31 of O.XLI, C.P.C., relating to contents of judgment of Appellate Court, were mandatory---First Appellate Court was also a court of facts, and it was enjoined upon the said court to decide each and every issue after discussing the evidence---If decision of appeal was possible after recording the finding on one or more issues, then it was not necessary to record finding of all the issues---In the present case Appellate Court below had not recorded findings issue-wise, but only resolved the question of limitation and question as to whether suit was hit by O.II, R.2, C.P.C., was not resolved---No issue was framed whether the suit was hit by O.II, R.2, C.P.C.---Appellate Court below delivered the judgment in a telegraphic manner without discussing the facts or evidence on record---Appellate Court was obliged to record findings on each and every issue when the decision on the basis of findings on one issue was not possible---Two issues were crucial in the suit and without deciding said issues, appeal could not be decided---High Court, in circumstances, had correctly remanded the case to Appellate Court below for resolving of issues.

Can list of witnesses be changed?

Citation Name  : 2012  YLR  2231     SUPREME-COURT-AZAD-KASHMIR
  Side Appellant : FIRDOS BAKHAT
  Side Opponent : JAVED KHAN

S. 5, Sched. & S.14(1)---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Suit for dissolution of marriage---Application for production of list of witnesses---Plaintiff who filed suit for dissolution of marriage against defendant also appended a list of witnesses---Plaintiff who could not produce witnesses mentioned in the list, filed another list of witnesses, which was finally allowed and the Trial Court recorded statements of said witnesses and only the statement of plaintiff was yet to be recorded in the suit---Said order of Family Court allowing the second list was challenged by the defendant in the Shariat Court through an appeal ---Shariat Court accepted the appeal and set aside the order of Family Court---Contention of counsel for the plaintiff was that impugned order of Family Court being interlocutory order and not a final judgment, appeal filed by the defendant before Shariat Court, was liable to be dismissed, because no appeal lay against an interlocutory order---Contention of counsel for defendant was that order passed by the Family Court was final order and appeal before Supreme Court was competent---Validity---Application filed by the plaintiff for allowing her to produce some other witnesses was accepted by the Family Court; and that order was an interlocutory order and could not be a final judgment---appeal against said order was not maintainable before the Shariat Court---Under provisions of S.14(1) of Azad Jammu and Kashmir Family Courts Act, 1993, only decision or decree of Family Court was appeal able before the Shariat Court---Findings of Shariat Court that application filed by the plaintiff before the Family Court was a review application; and that Family Court had no jurisdiction to entertain such application, was contrary to record---Application filed by the plaintiff for summoning witnesses, was not a review application, but was an application for production of witnesses---After acceptance of said application, statements of witnesses summoned, had already been recorded by the Trial Court---After said development, whole subsequent practice had become futile and academic; even on merit---Judgment of Shariat Court, was set aside by Supreme Court in circumstances.

Personal Injury Case Azad Kashmir

Citation Name  : 2012  SCMR  1298     SUPREME-COURT-OF-UK
  Side Appellant : JONES
  Side Opponent : KANEY

Expert witness---Immunity from suit for breach of duty---Extent and scope---Duty of care owed by an expert witness to his client---Scope---Personal injury action---Preparation of a joint statement/report by expert witness for purposes of settlement---Negligence by expert witness---Claimant having to settle for significantly lesser settlement as a consequence---Effect---Claimant (appellant) was involved in a road traffic accident---Claimant's solicitors instructed the defendant (respondent), who was a consultant clinical psychologist, to examine the claimant and prepare a report for the purposes of personal injury proceedings---Defendant prepared her first report in which she expressed the view that the claimant was at that time suffering from post traumatic stress disorder (PTSD)---Defendant subsequently prepared a second report stating that the claimant did not have all the symptoms to warrant a diagnosis of post-traumatic stress disorder (PTSD), but was still suffering from depression and some of the symptoms of PTSD---Consultant psychiatrist instructed by the relevant insurer prepared her own report, wherein it was stated that the claimant was exaggerating his physical symptom---District Judge ordered the two experts to hold discussions and to prepare a joint statement---Consultant psychiatrist for the relevant insurer prepared a draft joint statement, which the defendant (expert) signed without amendment or comment---Said joint statement was damaging to the claimant's claim as it recorded agreement that his psychological reaction to the accident was no more than an adjustment reaction that did not reach the level of a depressive disorder of post-traumatic stress disorder (PTSD); that the defendant had found the claimant to be deceptive and deceitful in his reporting, and that the experts agreed that his behaviour was suggestive of 'conscious mechanisms' that raised doubts as to whether his subjective reporting was genuine---Claimant, as a consequence, had to settle his claim for significantly less than the settlement that would have been achieved had not the defendant (expert) signed the joint statement in the terms in which she did---Contentions of the defendant were that immunity to expert witnesses was necessary to ensure that they would be prepared to give evidence at all, and that expert witnesses would be reluctant to give evidence against their client's interests if there was a risk that they would be sued---Validity---Expert witness must give his evidence honestly, even if it involved concessions that were contrary to his client's interests---No conflict existed between the duty that the expert owed to his client and the duty that he owed to the court---All who provided professional services which involved a duty of care were at risk of being sued for breach of that duty---Expert would be well aware of his duty to the court and where he frankly accepted that he had changed his view it would be apparent that he was performing that duty---Postulating that in order to persuade an expert to perform the duty that he had undertaken to his client it was necessary to give him immunity from liability for breach of that duty, would be paradoxical---Rational expert witness who had performed his duty was unlikely to fear being sued by the rational client---Unsuccessful litigant could easily allege, if permitted, that a witness of fact who had given evidence against him was guilty of defamatory mendacity but it was far less easy for a lay litigant to mount a credible case that his expert witness had been negligent---Defendant (expert witness), in the present case, had admitted to putting her signature to a joint report that did not express her views, therefore, there is nothing vexatious about the claimant's claim---Contention that removal of expert witness immunity would lead to a proliferation of vexatious claims was doubtful---No justification had been shown for continuing to hold expert witnesses immune from suit in relation to the evidence they gave in court or for the views they expressed in anticipation of court proceedings---Immunity from suit for breach of duty that expert witnesses had enjoyed in relation to their participation in legal proceedings should be abolished, however such abolition of immunity did not extend to the absolute privilege enjoyed by expert witnesses in respect of claims in defamation---appeal was allowed, accordingly.

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