MISLEADING HEAD NOTES AND MISCONSTRUCTION OF LAW REPORTS ON THE ISSUE
OF ESTOPPEL
By:
MUHAMMAD IKRAM
Advocate
149 District Courts,
Persons having no knowledge in depth
particularly the new entrants in the field of law , need to know that decree
sheet is not only to be drawn in cases in which the suit is decreed but it is
mandatory when the suit is dismissed ( 61 CWM 789). It is a matter of no latest
information that in some cases decree sheet remains unprepared or undrawn on
account of rush of judicial work or inadvertently but question of connivance
also comes under discussion. If the court fails to draw up a decree the legal
remedy available is by preferring a revision petition (2001 CLC 1847); 1955
V.P. 39.
Writing of judgment and its announcement is
part and parcel. The latest trend in modern legislation is specification of
times being the hallmark of conduct of judicial work particular illustration is
of family matters. The schedule to Family Courts Act 1964 gives a description
of nine types of cases and similar number of appeals. Time specification both
for the disposal of the suit and in case of preference of appeal has been given
respectively in CPC 1908 and yearly National Judicial Policies apart from
making a mention of conclusions of trails and appeals like suit of civil nature
particular instances are that of Rent Matters and suits coming within the ambit
of Order 37 of CPC. Directions by the High Court Inspection Team to decide the
suit by a specified date are of an administrative nature and cannot absolve the
court of its duty to proceed and decide in accordance with law ( PLD 2003
Statutory Provision, sometimes are also
detailed in particular laws. Both civil and criminal statutes provide their own
rules to regulate this aspect of the litigation. Judgment in appeal may be
dealt with a slight difference of guidance as prescribed. Judgment report
mentions the name of the judge by whom it is either written or dictated,
agreeing or disagreeing. It also
mentions the title of the case and the date/dates of hearing of the matter. It
also contains the names of the advocates by whom the parties are represented.
The judgment also contains a gist of the arguments addressed from each side. Lastly the Judge by whom the judgment is supposed to be delivered
details out his determination.
Law permits that a judgment may be pronounced
after he has been transferred, by his successor-in office successfully. This
way, the process of one way or the other is completed so far as delivery of
judgment by a court of competent jurisdiction is concerned. The law report of a
particular case is released. The parties are entitled to have a certified copy
of it on submission of a copying form to the concerned branch popularly known
as copying branch on payment of prescribed charges according to the number of
pages it contains. This way, it becomes a public property and open to comments
or to be used for the purpose of filling an appeal against it or preferring a
review petition as advised.
It becomes a precedent to be used for future
reference in case of similarity of facts. Under Article 201 of the Constitution
of Islamic Republic of Pakistan, 1973, “Decision of High Court is binding on
subordinate courts”. For facility of reference the full text of article 201 is
reproduced below:-
“Subject to Article 189 any decision of a High
court shall to the extent it decides a question of law or is based upon or
enunciates a principle of law be binding on all courts subordinate to it”
Similarly under article 189, the title of which is Decision of Supreme Court
binding on other courts. The full text of the article is reproduced below:-“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 be binding on all other
courts in Pakistan” It may be added that the Supreme Court decision in Constitution
petition no 59 of 2011 titled Mohammad.Ashraf Tiwana etc. Verses
Various Law journals containing the said
judgments and law reports of superior judiciary and relevant superior forums
dealing with service matters or corporate affairs are in the field by
permission of the Federal Government or the Provincial Government. The said law journals are either published on monthly or yearly basis
are put to marketing. These are not on no loss no profit basis except PLJ but
are sold as per printed price mentioned on its copy. The number of law Journals
has tremendously increased thus making it impossible to read each and every law
report contained in it. Commercialism has either prevailed or prevailing
amongst different publishers. No doubt certain websites have also been
introduced under Modern technology but those do not provide, sometimes, the
full detail of the judgment.
The senior lawyers are of the view that
instead of going through the available material on websites it is better to
pick up only the reference, slight sensation of the judgment but it is
advisable to refer to the original which source is only the law publications. From where the original text of the judgment is reachable.
The sorrowful aspect of the matter is that in
some important cases laying down a heavy principle of law, while drafting Head
Notes, due to lack of attention or being not a practising advocate, the act of
missing of a few words or a line may give totally a different meaning to a
particular point not necessarily the whole judgment.
The most intelligent part of human body
(mind) would be suggestive of the fact that like interpretation of statutes,
interpretation of a judgment is also not an ordinary exercise of reading of
English paragraphs, particularly in view of the Head Notes or titles of the
sections or even may be side notes.
The heading prefix to articles or sets of articles
or sections or paragraphs in modern statutes is regarded as preambles to those
articles (Maxwell interpretation of statutes 8th edition page 46).
It is an established fact and even commentary
writers of Al-Qanun publishers and esteemed PLD publishers cannot deny this
fact that while preparing their books based on commentary lean against Head
Notes only which result in difference of opinion at the time of citing till the
matter is resolved after recourse to the original text.
Justice Munir’s principles
and digest of the Qanun-e- Shahadat published by PLD publishers while dealing
with the question of Estoppel has mentioned.
“Question
of Estoppel is a question of fact” whereas similar reporting
based on head note has been found in a book the Qanun-e-Shahadat order, 1984 by
M. Mahmood published by Al-Qanun publishers, 2 Mazang road Lahore. The
principle was laid down in Miss Razia Sultana Vs Government of
In the case, Pakistan through Ministry of
Finance, Economic affairs and another versus Fecto Belarus tractors limited
reported in PLD 2002, Supreme Court 208 again a misleading Head Note has been
prepared, vide Head Note G “Estoppel”. In the last four lines the Head Note is,
Promissory Estoppel is an equitable principle evolved by the courts for doing
justice and the same should be given only a limited application by way of
defense, further more the principle is available as a cause of Action. The resort
to the original text of the above judgment by a full bench comprising
Mr.justiceSheikh Riaz Ahmad,Mr.justice Rana Bhagwan
Das and Mr.justice Mian Muhammad Ajmal at page 221 (H) vide para 23 in the last
six lines it has been laid down, “The doctrine of promissory Estoppel need not
be inhabited by the same limitation as Estoppel in the strict sense of the
term. It is an equitable principle evolved by the courts for doing justice and
there is no reason why it should be given only a limited application by way of
defense. There is no reason in logic or principle why promissory Estoppel
should also not be available as a cause of Action. This optimistic view of
August Supreme Court of Pakistan has opened a new vista as a measure of remedy
as well.
It may be noted with pride that it is not the
English Law of Evidence which contains the concept of Doctrine of Estoppel but
the Islamic concept of Estoppel is also backed by historical illustrations. The
corresponding provision of English Law of Estoppel in Islamic Law is Bayanu’d Drurat( The Principles of Muhammadan Jurisprudence by Abdul
Rahim M.A. page 382 PLD Publications).
The law sometimes does not allow evidence
being given of a certain fact having regard to the conduct of the party
desiring to adduce such evidence. This, as I have stated elsewhere
, is called Bayanu’d Drurat , which corresponds to Estoppel of the
English Law. For instance , if the owner of a certain
property sees another person selling it and keeps quiet , he will not be
allowed to prove that the man who purported to sell was not authorized by him
to do so.
Coke who is considered to be an authority on
the subject of Estoppel seems to be quite in agreement with Islamic Law when he
says “ my word is my bond.” On the other hand Quranic
injunction is that ‘’ fulfill your promise in every case ‘’.It is added without
religious spirit that Islamic concept of Estoppel is wider in scope and
application. Justice Administering Authorities should take immediate notice of
the above highlighted fact in order to meet the requirements of preamble to
Qanun – e – Shahadat Order 1984 and to bring it in line with article 37 of the
constitution of the Islamic Republic of Pakistan 1973.
The issue of Estoppel with particular
reference to Res Judicata has been con sidered to be multi – dimensional. The
judicial consensus without least difference of opinion is that any order passed
by a statutory or Quisi - judicial even attaining finality was assailable
before civil court, being a court of ultimate and plenary jurisdiction.
In Arshad Ali and six others Vs Muhammad
Tufail through L.rs and others as reported in 2013 CLC 632 the law on the
subject has undergone a significant interpretation.The development in judicial
process appears to be understandable that when an order / decision / finding
rendered by an executive is upheld by superior judiciary, then the jurisdiction
of civil court is ousted thus precluding to take cognizance of the matter on
the same issue between the same parties.
The marginal notes to the section of an Act
cannot be referred to for the purpose of construing (Rudolf Stallman, 39 C 164:
page 185; Bain Vs Whitchavan Ry. Co., 3 HLC 1, 19).Head Notes preceding law
reports were not part of judgment but were merely edit out of and on basis of
judgment by editors of law reports, to facilities quick scanning---Head Notes
at times were misleading and contrary to text of judgment---To cite any dictum
merely by reference to Head Notes was neither safe nor desirable (PLD 1995
Lahore. 385, Lt.-Col. Mohsin Shah Vs Mst. Qaseema Wahid and four others).
The word “Law” means not only the statutory law and the delegated
legislation but also adjudicative , decisional and the
judge made law. It is pertinent to note that a lawyer’s prime responsibility is
to act fairly and assist court in reaching a just and equitable conclusion as
is in consonance with law. This observation was given in (PLD 1997 Karachi;
Page 204, by his lordship Mushtaq Ahmad Mamen J, while dealing with a
constitutional petitions tilted Mst. Farhat Nasreen Vs Muhammad Hussain and 2
others).Both the above views find support in the judgment reported in (PLD 1988
Supreme Court 221, where the Head Note of a case approved for reporting was
found to be incorrect.
Comparative view and conclusion is that principle of estoppel is not
being treated in
Bayan‘ud drurat which is Islamic law of estoppel needs to have full
application in the administration of justice. It also demands further
conceptual clarity and development through the medium of ijthehad and court
interpretation, thus ensuring its admission as evidence.
The base of maximum violations is the act or omission and its
cumulative effect in the form of behavior. By the true operation and
application of law of estoppel, apart from other expectedly visible
improvements, purity and effective functioning of mind would definitely result
in, decreasing civil and criminal violations, wrongdoings and shortcomings thus
bringing far reaching effects in interse human relationship development.
ABSTRACT
The issue of estoppel is core issue so far as
civil administration of justice is concerned. There is no denying the fact that
as per necessity, it is also gaining slow access in criminal administration of
justice as well. Principle of law ‘’res ipsa liquiture’’ was uptill being
applied in the diposal of civil matters only but Indian supreme court has
extended its application in criminal matters as well(2013 SCMR, Supreme Court
of India 480).
English law of estoppel corresponds to
Islamic law of estoppel known as Bayan‘ud Dururat .This correspondence we come
to know through “The principles of Muhammadan jurisprudence by Sir Abdul-Raheem
M.A Pg382 PLD publications.
There is a general misconception in judicial
circle except those who know that question of estoppel is a question of fact
.It is a wrong view. The correct legal view has been laid down vide Para 6 of
the judgment reported as Miss Razia Sultana vs. Government of Punjab reported in SUPREME court monthly review
pg 715 wherein it has been held “As regards the principles of estoppel is a
question of fact in a given situation”. Correct interpretation thus is that
issue of estoppel is not merely a question of fact only but it is a question of
law as well.
The first view remained impressive due to
defective headnotes by the editors of various law journals who without reading
the full text of the sentence mentioned that question of estoppel is a question
of fact and omitted to mention the “words in a given situation”.
It is because of this bad exercise by the
editors, it was held in PLD1995 Lah 385 that Headnotes preceding law Reports
were not part of judgment.
Judicial consensus is that misprinting in any
form results in misinterpretation.
REFERENCES
1. 2013
SCMR (SC
2. 2013
CLC 632.
3. 2001
CLC 1847.
4. 61 CWM
789.
5. 1955
V.P. 39.
6. PLD
2003
7. SCMR
1981 715.
8. PLD
2002 SC 208.
9. The
Principles of Muhammadan Jurisprudence by Sir Abdur Rahim M A page 382, PLD
Publishers.
10. PLD
1995
11. PLD
1997
12. PLD
1988 SC 221.
13. Maxwell
Interpretation of Statutes, 8th edition page 46.
14. Rudolf
Stallman 39 C 164, page 185.
15. Ry.
16. Qanun-e-Shahadat
Order, 1984 by M. Mahmood, Published by Al-Qanun Publishers,