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Understanding the Illegal Dispossession Act, 2005

(Compiled by our fellows namely: Samia Tehreem and Ali Zaib, students of Faculty of Law, University of Central Punjab, Lahore.)

The Act imposes punishment i.e., imprisonment, and fine,on the person who illegally dispossesses a person from his immovable property. The offender may also be arrested after obtaining an arrest warrant. In addition to this, the victim is also entitled to compensation under the Act.

The Illegal Dispossession Act, 2005 (the “Act”), protects the right of possession of lawful occupiers and owners of immovable property by preventing its illegal dispossession by property grabbers and Qabza groups. An occupier is the person who has possession of the immovable property, whereas an owner is the person who owns the immovable property, as defined by the Act. The Court of Sessions has got the exclusive jurisdiction pertaining to cases under the Act.

The speedy and simple procedure for disposal of the case has been provided in the Act. Proceedings are initiated by filing a complaint before the Court of Sessions. Upon instructions, the SHO, after investigation, submits the report thereof. Besides, the Court may also require a report after local inquiry from a Magistrate or a Revenue officer. Under the Act, the case must be concluded within 60 days without unnecessary adjournments, however, in the interest of justice an adjournment for not more than seven days may be granted. Further, in case of dismissal of complaint being false or frivolous, the complainant may also be burdened with compensatory cost up to five lac rupees.

The Court may evict the illegal possessor and restorethe possession of occupier/owner during the pendency of the case on temporary basis.The Court may implement its orders through officials/officers and even through police force. If the Court concludes that an offence has been committed, the final order may also be implemented in the same manner. An appeal lies against orders within 30 days in the Honorable High Court.

The question now is why such legislation was needed when laws on the same subject already exist. A person who has been illegally evicted from his land may also initiate a claim under Section 9 of the Specific Relief Act of 1877. The leading judgement of the Full Bench of the High Court, titled Zahoor Ahmad vs Stated, reported as PLD 2007 LHR 231, demonstrates the significance of this Act, in which the Lahore High Court has drawn the yardstick vis-à-vis application of the Act.

According to this judgment, the complaint under this Act can only be filed against persons involved in previous activity connected with illegal dispossession or some persons who made organized or calculated effort individually or in groups to illegally dispossess someone of their property. It cannot be filed against ordinary persons who are not property grabbers or when the matter of possession of the relevant property is being regulated by a civil or revenue court.

The same principle was upheld by Supreme Court in a case titled Bashir Ahmad vs Additional Sessions Judge, Faisalabad, reported as PLD 2010 SC 661, where it was stated that when no material is available as to show that accused person belongs to a Qabza group, the complainant cannot attempt to transfer a civil dispute into a criminal case as same will amount to the abuse of the process of law.

The term “property grabbers” is used in the Act’s Preamble but is not defined anywhere in the Act. Members of the National Assembly and Senate unanimously agreed that this term is synonymous with Qabza Mafia. As a result, any other application of the Act would be contrary to its spirit. The scope of the Act is limited to cases related to Qabza Mafia.

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West Pakistan Family Courts Act 1964 – A Comprehensive Summary

(Compiled by our fellows namely: Mariah Khurshid, Raja Shoaib Wali, Ibrar Ahmad Khan and Fawad Khan. All students of Faculty of Law, University of Central Punjab, Lahore.)

The preamble of the West Pakistan Family Courts Act, 1964 (the “Act) states its purpose as settlement of the disputes in regards to marriage and family affairs.

The Act extends to the whole of Pakistan except the tribal areas. Section 5 provides for the Jurisdiction of the Family Court (the “Court”). Generally, the court will have special jurisdiction over the family matters including dissolution of marriage, dower, maintenance, restitution of conjugal rights, custody of children, guardianship, jactitation of marriage, etc. in addition to a few offenses of hurt, etc. arising out of family disputes. The Court is not bound to adopt ordinary and lengthy procedures of trial and evidence like ordinary Civil Courts to curtail the period.

The Court is also empowered to pass an interim order for the protection and preservation of property in dispute.

As per the Rules of 1965 under the Act, the plaint can be filed in the District where the cause of action wholly or in part has arisen or where the parties reside or last resided together. In suits for dissolution of marriage or dower, plaint can also be filed in the District, where the wife ordinarily resides.

The judge of the Court (the “Judge”) has to have the qualification to be appointed as District Judge or an Additional District Judge. The judges are to be appointed by the Government in every district including at least one women Judge. The Judges are also equipped with the power of the Judicial Magistrate’s 1st class.

For the Act, Family Court is deemed to be District Court, whereas, District Judge or Government may determine the place of sitting of the Court.

According to the Act, every suit is to be initiated by filing a plaint containing material facts along with a schedule stating the particulars of witnesses intended to be a procedure in support. Also, the parties may call any witness at any later stage if the Court deems it necessary in the interest of justice. It is also mandatory to file the list of documents that are attached with the plaint as well as the documents to be produced later.

After receiving the plaint, the Court fixes a date within the next 30 days for the appearance of the defendant by serving the summons. The Court also sends notice of the suit to the defendant and to the chairman of the union council within whose jurisdiction the defendant resides, by registered post along with a copy of the plaint. On the date fixed the parties may make their appearance before the Court. 

A distinctive feature of the Act is that if the defendant (husband) is desirous of filing a suit for restitution of conjugal rights, he, instead of doing so, may claim this relief in the written statement of the plaint of dissolution of marriage, filed against him. By this, he does not need to file a separate suit, and his written statement, to the extent of claim of restitution of conjugal rights shall be treated as his plaint. Likewise, a defendant (wife) may also claim dissolution of marriage through her written statement of plaint claiming restitution of conjugal rights instead of a separate suit.

Further, if a defendant does not appear on the fixed date the court will proceed ex-Parte which the defendant may challenge within 30 days of the service of notice of passing out the decree.

Another weighty feature of the Act is the statutory obligation of the Court to make an active effort for reconciliation of the parties twice. Firstly, before proceeding with the formal trial once a written statement from the defendant is filed, and secondly, before pronouncement of judgment after the conclusion of the trial.

If after pre-trial conciliation efforts, no compromise is reached, the court shall frame the issues and fix the date for recording of evidence. Nevertheless, in a suit for dissolution of marriage, if such effort for compromise fails, the Court shall pass a decree for dissolution of marriage (if on ground of Khula) immediately and the husband will be entitled to restoration of a portion of dower (haq-mehr) if already paid or waiver thereof. Likewise after the recording of evidence of both parties the Court will make another attempt to affect a compromise between the parties, and in case of failure, the judgment will be announced.

The Court is bound to dispose of the case within 6 months from the date of the institution. If the case is not decided within this stipulation, either party may approach the High Court for appropriate order/direction.

Generally, the decree passed by the court is appealable. However, no appeal lies in the case of dissolution of marriage (except in few cases), for dower/dowry not exceeding Rs. 30,000 and for maintenance of Rs. 1,000 or less. Also, no right of appeal and revision against an interim order passed by the court exists. The appellate court is also to dispose of the appeal within 4 months.

If a person insults the Court, causes impediment in the work of the court, misbehaves with any person in court, refuses to answer any question put by the court, or refuses to take an oath he can also be held responsible for contempt of court.

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ALS SIGNED MOU WITH TOP RANKED UNIVERSITY

It is delightfully announced that ‘Ahsan Legal Services’ has entered into a Memorandum of Understanding with Faculty of Law, University of Central Punjab.

The MoU sets sight on formal academic internships in summers for Law students to observe and learn the practical application of legal knowledge and theories which they have acquire during their studies at campus.

ALS is a unique organization consisting a bouquet of professional and academia lawyers and former judges having command in their respective fields including litigation, transactional tasks, opinions and customized trainings.

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REJECTION OF PLAINT UNDER RULE 11, ORDER VII, CPC — GROUND OF LIMITATION.

As per rule 6 of Order VII, Code of Civil Procedure, 1908, where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed. And as per section 3 of the Limitation Act 1908, every suit instituted after the period of limitation shall be dismissed, although limitation has not been set up as a defence.In general, matter of limitation is treated as mixed question of law and facts to be decided after recording of evidence, however, in cases, where there is no FACTUAL controversy to the extent of matter of limitation, this question can be decided from bare perusal of plaint and annexed documents. And if suit appears to be hopelessly time barred after relevant law is applied on the facts/assertions mentioned in the plaint, the same can be rejected under rule 11, order VII, CPC. In a case reported as 2015 CLC 708, the Hon’ble Court has rejected the plaint under rule 11, order VII, CPC being barred by time.