The Lahore High Court (LHC) set aside a court order on Tuesday over due process of property auction not being followed, disallowing a property transfer in a mother’s name as adjustment of maintenance amount of her minors from her ex-husband.
“Particularly, this leaves the minors with no maintenance again,” the high court maintained. “Hence, it is the minors who are on the losing side,” Justice Anwaar Hussain observed in his judgment.
The respondent (mother) had instituted a suit for dissolution of marriage and recovery of her dowry articles as well as the maintenance of her minor children, also respondents, from petitioner Muhammad Waqas.
The former husband’s property was transferred in the mother’s name by adjusting the amount of maintenance, which was calculated by the executing court considering the maintenance amount that the father has to pay for the minors till 2032.
“This court while exercising parental jurisdiction is perturbed from such state of affairs that on failure of the petitioner (father) to maintain the minors, on the one hand, the former has been deprived of his property, which may form the inheritance of the minors in future, and on the other hand, the same has not been transferred in the names of the minors, rather admittedly, sale deed in favour of respondent (mother) has been executed. Hence, it is the minors who are on the losing side in both eventualities,” Justice Anwaar observed.
The suit was decreed in favor of the mother on April 3, 2018 through an ex-parte judgment. Later, execution proceedings were initiated to which the petitioner did make some payments. On February 13, 2019, the matter was consigned to record room after the respondent (mother) in her statement claimed that she does not want to proceed with the execution petition.
However, in May, 2019, the execution proceedings were restored on the respondent’s application. Thereafter, on June 21, 2019, after issuing the warrant of attachment of the property of the petitioner (father) an auction schedule was chalked out on July 20, 2019 while calculating the decretal amount till the year 2035. Thereafter, the property was auctioned.
The mother purchased the said property by adjusting the amount of maintenance, which was calculated by considering the future maintenance amount of the minors till 2032.
However, the father later challenged the auction schedule passed by the district court. The petitioner’s appeal was dismissed and the matter was taken to the LHC.
The petitioner’s counsel Chaudhry Mahmood-ur-Rehman contended to the court that no notice was issued to his client when the execution petition was restored. It was mandatory on part of the executing court that notices under Order XXI Rule 66 of the CPC should have been issued before putting the property of the petitioner to auction, the entire execution proceedings stand nullified in the eyes of the law.
Moreover, the court auctioneer, instead of acting as per the auction schedule chalked out by the executing court. He himself opted to postpone the auction – later held on October 23, 2019 instead of September 18, 2019 – as ordered by the executing court.
He argued that that petitioner’s property was attached without adopting legal formalities, adding that the decretal amount was also wrongly assessed, which is also impermissible under the law. He questioned that if, unfortunately, one minor dies a natural death would the petitioner continue paying maintenance till 2032 even after the demise of the minor.
On the other hand, the counsel for the respondents argued that if there were irregularities in the auction proceedings, the petitioner was obligated to deposit 20% of the decretal amount in compliance of Order XXI Rule 90 of the CPC, which he failed to, despite being directed by the executing court to do so. Hence, the learned court has rightly passed the impugned order and in compliance of the same, the sale deed has been executed in favour of the respondent (mother). The matter is now in the past and the transaction closed.
Justice Anwaar observed that there was nothing available on record to substantiate that the court auctioneer sought the permission of the executing court to reschedule the auction for any future date. This fact alone indicates that the auction proceedings were not carried out in accordance with the law and as per the schedule chalked out by the executing court.
There is no cavil to the proposition that the petitioner, as father of the minors, is obligated to maintain the latter and the arrears of maintenance once recovered during the execution proceedings are to be used for the benefits of the minors by fulfilling necessities of life. However, in the instant case, the future maintenance has been calculated till year 2032 and respondent (mother) has adjusted the said amount against purchase price of the property belonging to the petitioner in her own name. This leaves the minors with no maintenance.
Justice Anwaar set aside the sale of the disputed property with further direction to the petitioner to make payment of an amount of Rs1,000,000 (Rupees One Million), with the learned executing court, within 30 days from the date of receipt of certified copy of this order.
The said amount shall be adjusted against the arrears of decretal amount including monthly maintenance due till that date. Failing which, this order shall be deemed to be recalled and the present petition shall be deemed to have been dismissed.
Ahad Cheema acquitted in NAB reference
An accountability court on Friday acquitted Ahad Cheema, the special assistant to the caretaker prime minister, in assets beyond means reference filed by the National Accountability Bureau (NAB).
Accountability Judge Ali Zulqarnain had reserved the ruling on the acquittal plea after hearing arguments of the NAB prosecutor and the defence counsel earlier in the day. Cheema also appeared before the court during the proceedings.
On Nov 27, in a supplementary report, NAB informed the court that Cheema’s assets were consistent with his known income, asserting that properties held by alleged benamidars/relatives were not his. Based on evidence, the case under NAO, 1999, was not substantiated, it added.
Cheema had served as the Lahore Development Authority (LDA) director general during the PML-N government in Punjab. The bureau had arrested Cheema in 2018 when he appeared before a joint investigation team in connection with the Ashiana-e-Iqbal Housing Scheme case.
Later, NAB initiated assets beyond means and other inquiries against him. However, Cheema obtained bail in three cases, including assets beyond means case in 2021.
Bilawal consults legal minds on ZAB reference
Pakistan Peoples Party (PPP) Chairman Bilawal Bhutto Zardari on Friday consulted legal minds of his party on the presidential reference case of his late grandfather, Zulfikar Ali Bhutto.
The development came during a meeting of central and provincial officials as well as legal experts of the Peoples Lawyers Forum (PLF) at Zardari House here. Bilawal chaired the meeting.
During the meeting, the PLF officials briefed Bilawal on the presidential reference case of ZAB. Farooq H Naik and Shahadat Awan participated in the meeting through video link while Qazi Bashir, Bahram Khan Tareen, Raheel Kamran Cheema, Sajid Tanoli, Gohar Rehman Khattak, Ghiyasul Haque and Asrar Abbasi were present.
Syed Nayyar Hussain Bokhari, Faisal Karim Kundi, Raza Rabbani and Amna Paracha were also present in the meeting.
Meanwhile, a civil society delegation also met with Bilawal and discussed the challenges faced by the masses and their solutions.
Bilawal appreciated the delegation for their services and performance in their respective fields.
Ahmed Faraz Khan Advocate, Barrister Saifullah Ghori, Bilal Tariq Khan, Dr Abdul Mohiman, Dr Maria Hamid, Dr Salma Malik, Faheem Sardar, Hafiz Muhammad Tahir, Huma Fawad, Jahanzeb Durrani and Kanwal Malik were among those who met the PPP chairman.
Lubna Bhayat, SM Tariq, Javed Akhtar, Pir Mohammad Anwar, Junaid, Raja Mohammad Khan, Sania Kamran, Shehbaz Zaheer, Shamamata Al Ambararbab, Buland Sohail, Kashaf Ahmed, Talha Rahmani, Osama Malik, Usman Iqbal Bandal and Yusuf Masih were part of the delegation. PPP Information Secretary Faisal Karim Kundi was also present on this occasion.
SC to take up appeals against military trial verdict on Dec 13
The Supreme Court is set to take up high-profile cases in the coming week, including the appeals against its verdict in the trial of civilians in military courts and pleas filed by Justice Sayyed Mazahar Ali Akbar Naqvi.
A Supreme Court larger bench will hear on Dec 13 the intra-court appeals against its judgment in the case of civilians being tried in military courts. The appeals have been filed by the caretaker governments and the defence ministry.
On Oct 23, a five-judge bench of the SC unanimously declared the trial of civilians in military courts as null and void and ordered that the 103 accused in cases relating to the violence on May 9 and 10 be tried under ordinary criminal laws.
Moreover, Justice Naqvi, who is facing complaints of misconduct, recently wrote a letter to the top court’s three senior-most judges’ panel to point out the silence over his petitions challenging the issuance of a show-cause notice to him by the Supreme Judicial Council (SJC) despite the lapse of time as stipulated in the SC (Practice & Procedure) Act, 2023.
A three-judge bench, comprising Justice Aminuddin Khan, Justice Jamal Khan Mandokhail and Justice Musarrat Hilali, will hear his petitions on December 15.
A nine-member larger bench of the apex court led by Chief Justice of Pakistan Qazi Faez Isa will take up a presidential reference for revisiting the judgment wherein the death sentence of PPP founder and former premier Zulfikar Ali Bhutto was endorsed.
The bench will conduct its proceedings in courtroom No. 1 on December 12. These decisions were made by the SC three-member committee comprising CJP Isa, Justice Sardar Tariq Masood and Justice Ijazul Ahsan.
The other high-profile cases that will be tackled by the SC in the coming week include the evacuation of illegal Afghan residents, reclassification of commercial land in Karachi, and reinstatement of the FIR against PTI leader Moonis Elahi.
The top court has scheduled the hearing for petitions challenging the evacuation of foreign nationals, especially Afghan citizens, residing unlawfully in the country.
A three-judge bench, comprising Justice Masood, Justice Yahya Afridi and Justice Ayesha Malik, will hear these pleas on December 12.
Farhatullah Babar, Mushtaq Ahmed, Amina Masood Janjua, Mohsin Dawar, Jibran Nasir, Syed Muaz Shah, Pastor Ghazala Parveen, Imaan Zainab Mazari, Ahmad Shabbar, Advocate Imran Shafiq, Luke Victor, Sijal Shafiq, and Rohail Kasi are contesting the evacuation orders.
In a separate case, the dismissal of a Federal Investigation Agency (FIA) case against PTI’s Moonis by a special judge in Lahore and then the upholding of that decision by the Lahore High Court, has been challenged in the SC.
The FIA has filed an appeal against the dismissal, leading to a review in the apex court.
Moreover, the SC, previously deliberating on the powers of the caretaker government, directed the attorney general for Pakistan (AGP) to assist the court in forming a larger bench to interpret its authority.
In addition, review petitions challenging the decision on the reclassification of land in Karachi to commercial status will be heard in the coming week as well. A three-judge bench, led by Justice Ahsan, is scheduled to hear the matter on December 11.
The court has issued notices to all relevant parties, including the Sindh government, following its earlier ruling invalidating the conversion of public land into residential and commercial categories.
These petitions stem from a challenge initiated in 2010 by former Karachi nazim Niamatullah Khan against the alteration of public land’s categorisation.
A five-judge bench, led by CJP Isa, will also take up on December 14 former Islamabad High Court judge Shaukat Aziz Siddiqui’s petition against his removal.
It is expected that the proceedings of both Bhutto and the ex-IHC judge’s cases will be available on the SC website.
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