Negative Declaration

Section 42 specific relief act 1877..

Suit for negative declaration seeing only the disentitlement of defendants in suit property—maintainability – interpretation of section 42—plaintiff sought declaration to the effect that the defendants had no interest in the suit property and were no entitled to sell or dispose of, the same— question before the high court was whether plaintiff could seek such negative declaration in relation to the disentitlement of the defendants without claiming in ownership, interest or legal character for themselves in relations to the suit property — held that plaintiffs had to sought relief in respect of property in question for themselves nor any legal character had been attributed to suit property, hence no entitlement in terms of section 42 of specific relief act was available to the plaintiffs – plaintiff had sought declaration to the effect that defendants has no locus standi or right in relations to the suit property, however such prayer would not entitle the plaintiff to file suit for declaration when they were not claiming any interest title or legal character in the property and especially when defendants has established their interest in the property by placing a registered sale deed…suit for negative declaration was only maintainable in certain exceptional cases – when a plaintiff demonstrated some interest in the property to which some legal sanctity could be attached only then plaintiffs could seek some legal character in terms of section 42 of the specific relief act 1877.. suit for declaration in the present case sought declaration to the disentitlement of the defendants and was not maintainable. suit was dismissed.

2016 CLC  Note 10 page 13

Bail cancellation

Section 497(5) Criminal Procedure Code 1898,

CANCELLATION OF Bail —- Grounds — Abscondance of accused—bail could not be cancelled merely on ground of abscondence – Abscondence by itself could not be substitute of evidence. it was a circumstance which was always taken in criminal case as corroboration towards the guild and not as proof of the guilt.

2016 SCMR 676

Bar on Declaration

BAR ON DECLARATION

Section 42 specific relief act… Suit for declaration .. Bar… Mere Declaration could not be granted where plaintiff was able to seek further relief.

2015 CLC 794

Interim custody of minor to father in summer vacation

section 12 and 25 of Guardian and ward act– welfare of minor– interim custody of minor– fathe filed application for custody of minor gilr wherein temporary custody during summer vacations was urged which ws dismissed by the family court — father was lawful guardian of his minor child and was ordinarily entitled to his custody proced such was for the welfare of the minor– RIght of fathe to claim custody of minor ws not an absolute right and he might disentitle himself to custody on account of his conduct– custody of minor child in the present case was given to the applicant time and again but no complaint was available on record regarding misbehaviour or taken undue advantages of the court's orders — father and mother both were working paretns, therefore had equal right to have temporary cutosy of minor– applicant was depositing maintenance of the child regularly fixed by the trail court — minor daughter ws in her tender age and she required love and care of both the parents — father was entitled to spend some time with her daughter at his house during summer vacations– applicant had contracted second marriage, however his wife had filed her affidavit to the effect that she had love and affection for minor and would not cause harm to her– father sought interim custody of minor during wnter cacations which was granted but same was refused for summer vacations– family court by refusing the temporary custody misconstrued the application of father– petition was allowed.

2015 CLC 1209

Immovable property gifted to wife entered in Nikahnama

section 5 family court act 1964

pronouncment of talaq- mode and proof -immoveable property gifted to wife and entered in Nikah nama–jurisdiction of family court -wife filed suit for maintenance and dower amount –family court decreed the suits allowing maintenance to both wife and mnor with annual increase, alongwith recovery of properyt gifted by husband — appellant court dismissed the appeal of parties except disallowing annual increase in maintenance of minor and enhacning maintenance of the wife — contentions raised by husband were that wife having been divorced was not entitled to any maintenance and that the property gifted to wife could only be claimed through civil suits… validity– suits for recoery of dower as well as persoanl property and belongings of wife came within domain of family court under schedule Part I of Family courts Act 1964– property gidted to wife had come within definiaiton of personal property and belonging of wife — husband and his father has admitted to have the property gifted to wife and entered the decroption of khasra numbers in Nikkah Nama which was sufficient to negated their contention that family court was not competent to dcree the suit — husband had alledged to have divorced the wife in presence of witnesses in jurge meeting but he falied to mention date of divorce and holding of said jirga but ehe wife had admitted that matter of divorce had been put beofre Mufti Sahib who had given Fatwa that divorce had taken place, which was sufficient to establish talaq between parties — Talaq could be announced orally and could be in wirtten form but when husband has taken specific stance thwn it ws his duy to prove the same — date of sending of notice to chairman of union council could be proved– dated of prounucement of talaq could be taken when written statment had been filed— wife was entitled to maintenance till completion of iddat period — NO illegality, irregularity misreading and non reading of evidence could be pointed out.. CP was dismissed..

2016 YLR 765