PLJ 2013 Lahore 601
[Multan Bench Multan
[
Present: Abid Aziz Sheikh, J.
WAHID BAKHSH--Petitioner
versus
ADDL. DISTRICT JUDGE, KOT ADU, DISTRICT MUZAFFARGARH and 5 others--Respondents
W.P. No. 9930 of 2011, decided on 24.6.2013.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 84--Thumb impression--Impersonation --Comparing documents through expert--Application for cancellation of written statement and power of attorney was dismissed--Documents were part of judicial proceedings--Presumption of truth--Validity--Neither any issue had been framed nor any evidence had been recorded to determine whether written statement and power of attorney which was challenged being forged and fabricated document was genuine document--Dispute regardinggenuiness of these documents could also be resolved by referring matter to expert or Courts below under Art. 84 of Order,, 1984 could compare admitted thumb impressions with alleged forged thumb impression of these documents to come to fair conclusion regarding genuiness or otherwise of these documents--Mere mentioning of CNIC number on Court file without his proper identification in Court is not sufficient to discard that thumb impressions were not genuine and was result of fraud and impersonation--Courts below were required to at least compare admitted thumb impression with alleged disputed thumb impression itself or through expert--Where it is alleged that fraud had been committed and consenting written statement had been filed due to collusion and impersonation, Court itself can look into allegation and if need, be decided matter by framing issues. [Pp. 603 & 605] A, B & D
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 12(2) & 151--Cancellation of written statement--Suit for specific performance of contract on basis of agreement allegedly executed consenting written statement and fake and fabricated power of attorney and thumb impressions on documents were absolutely forged--Documents were not genuine--Suit was decreed on basis of consenting statement which was assailed on ground of fraud and misrepresentation--Validity--Petitioner denied written statement on ground that signatures were taken by counsel on blank paper fraudulently--Application u/S. 12(2), CPC was dismissed--Subsequently, an application u/S. 151, CPC was filed by defendant in which she disowned written statement and stated that fraud and misrepresentation had been committed by plaintiff and proceedings with regard to filing of written statement be set aside and be allowed to contest the suit--Petition was allowed. [Pp. 604 & 605] C & E
1992 CLC 1 (Lah.), 2001 SCMR 761 & 2006 SCMR 12, ref. 1994 SCMR 1709 & PLD 1990 SC (AJ&K) 13, rel.
Malik Ahmad Shehzad, Advocate, for Petitioner.
Syed Niaz Rasul Shah Bukhari, Advocate for Respondents No. 3 and 4.
Rana Muhammad Hussain, AAG.
Date of hearing: 24.6.2013.
Order
This writ petition has been filed against the impugned order dated 24th of May 2011 passed by trial Court whereby the application of the petitioner for cancellation of written statement dated 13th of October 2010 alongwith power of attorney on behalf of petitioner/defendant in favour of Malik Farooq Akhtar Angra Advocate, has been dismissed and the revision petition of the petitioner before the learned Additional District Judge, Muzaffargarh was also dismissed vide impugned order dated 06th of June 2011.
2. Briefly the facts in this case are that the Respondents No. 3 and 4 filed a suit for specific performance of a contract pertaining to the land mentioned in head note of the plaint on the basis of agreement allegedly executed on 18th of January 2010. During the pendency of the suit, the petitioner/ defendant moved an application dated 11.12.2010 for cancellation of written statement filed in the suit as well as the power of attorney executed in favour of Malik Farooq Akhtar Angra Advocate on the ground that both the documents are forged and fabricated. After hearing the parties, the aforesaid application was dismissed by the trial Court on 24th of May 2011 which order was upheld by the Additional District Judge by dismissing the revision of the petitioner on 06th of June, 2011.
3. Learned counsel for the petitioner argued that the impugned orders are illegal as the Respondents No. 3 and 4 / plaintiffs managed to prepare a consenting written statement and fake and fabricated power of attorney on behalf of petitioner through Malik Farooq Akhtar Agra Advocate and the thumb impressions of the petitioner on both these documents were absolutely forged. Further submit that mere comparison of these thumb impressions with admitted thumb impression shows that documents are not genuine and therefore, fraud has been perpetrated on the Court. The learned counsel further submits that the petitioner was never served with any notice nor he appeared on 27th of September, 2010 and that the thumb impressions of the petitioner on the Court file is also result of impersonation. Submit that this aspect of the matter has not even considered by both the Courts below and without recording evidence or even comparing the documents through expert or itself by learned Court, the application of the petitioner was dismissed. Reliance is placed on case titled Ghulam Nabi and others Vs. Ashraf Ali (1994 SCMR 1709) and Muhammad Riaz Khan Vs. Sardar Rahim Dad and 12 others (PLD 1990 SC (AJ & K) 13).
4. Conversely the learned counsel for the respondents argued that the order passed by trial Court is in accordance with law which was upheld by the revisional Court and the constitutional petition is not maintainable against the interim order passed by the trial Court and upheld by the revisional Court. Reliance is placed on case titled Muhammad Khan and 6 others Vs. Mst. Ghulam Fatima and 12 others (1991 SCMR 970), Noor Muhammad Vs. Sarwar Khan and 2 others (PLD 1985 SC 131) and MuhammadSamiullah Khan Versus Additional District Judge, Sargodha (PLD 2002 Lahore 56).
5. Arguments heard. Record perused.
6. The perusal of impugned orders shows that the application of the petitioner for cancellation of written statement and the power of attorney was dismissed primarily on the ground that these documents are part of judicial proceedings and therefore, presumption of truth is attached to them. Admittedly, neither any issue has been framed nor any evidence has been recorded to determine whether the written statement and power of attorney which was challenged being forged and fabricated document was a genuine document. The dispute regarding the genuineness of these documents could also be resolved by referring the matter to expert or the Courts below themselves under Article 84 of Qanun-e-Shahadat Order, 1984 could compare the admitted thumb impressions of the petitioner with the alleged forged thumb impressions on these documents to come to a fair conclusion regarding the genuineness or otherwise of these documents. No such exercise was done by the trial Court as well as the revisional Court. Mere mentioning of CNIC number of the petitioner on the Court file without his proper identification in Court is not sufficient to discard the contention of the petitioner that he did not appear before the Court on 27th of September, 2010 and his thumb impressions were not genuine and was the result of fraud and impersonation. The Courts below were required to at least compare the admitted thumb impression of the petitioner with the alleged disputed thumb impression itself or through expert.
7. In such circumstances, this Court in constitutional jurisdiction can interfere and set aside the impugned orders. In this regard, reference is made to law laid down by August Supreme Court in case titled Sh. Muhammad Sadiq Vs. Elahi Bakhsh and 2 others (2006 SCMR 12). In the aforesaid case, suit for specific performance was decreed on the basis of consenting written statement which was assailed on ground of fraud and misrepresentation. In the said case, the petitioner denied the written statement on the ground that the signatures were taken by his counsel on a blank paper fraudulently. His application under Section 12(2), CPC was dismissed by the trial Court as well as by the appellate Court, however, the High Court in constitutional jurisdiction, set aside the decree and August Supreme Court declined to interfere and following observation was made:--
"We having gone through the record, find that a gross error of misreading of evidence was committed by the Court of first instance as well as the revisional Court and this is settled proposition of law that a jurisdictional error committed in the judicial or quasi-judicial proceedings by a Court or Tribunal, as the case may be, can be corrected by the High Court in its constitutional jurisdiction. The strict application of the general rule in the present case that concurrent finding of fact even if erroneous, cannot be interfered in the constitutional jurisdiction, would amount to protect the fraud and deprive the respondent from his valuable property by defeating the cause of justice."
8. It is also the duty of the Court that real defence from the side of the defendant be reflected in the proceedings. In this contest, reference is made to case titled Dara and 4 others Vs. Khurshid Ali and 4 others (2001 SCMR 761 (SC), where earlier written statement filed by the attorney of the defendant was disowned by the defendant and the trial Court ordered for the return of the same, however, subsequently written statement submitted by the defendants was retained by the trial Court on the file of the case which order was upheld by the High Court and August Supreme Court refused to grant leave and made the following observation:--
"The High Court, per order dated 22.01.1999, has upheld in revision an order dated 10.09.1995, passed by the learned Civil Judge, Bhakkar, in Suit No. 195 of 1990, whereby a written statement filed on behalf of the respondents, purportedly through the respondents' attorney, was ordered to be returned and another written statement submitted on 13.02.1991 by the Respondent No. 1 himself was retained on the file. It has been noted in the relevant orders that the purported attorney did not even submit his power of attorney alongwith the written statement presented on 09.02.1991 and that such written statement having been disowned by the respondents-defendants could not, in the circumstances, be given any credence. Besides, real defence from the side of the defendants was required to be reflected in the proceedings. We find no merit in this petition directed against revisional order of the High Court and dismiss it".
9. Where it is alleged that fraud has been committed and consenting written statement has been filed due to collusion and impersonation, the Court itself can look into the allegation and if need, be decide the matter by framing issues. In this context, reference is made to case titled Shah Nawaz Vs. Civil Judge, Rahim Yar Khan and 03 others (1992 CLC 1 (Lahore
"Since both the Courts have come to the conclusion that the earlier written statement dated 29.04.1989 was not filed by Mst. Sat Bhari, therefore, the order allowing her to file fresh written statement would not mean that she has been allowed to file additional second written statement. So, written statement which will be filed by her under the impugned order will be the first written statement. This being the position, the question of changing the averments in second written statement does not arise. The learned Courts below have not flouted the provision of relevant law. They have also not violated any case law laid down by the Superior Courts on this point. I do not see any misreading/non-reading of evidence on the part of the Courts blow. The judgments of the Courts below do not suffer from legal infirmities."
The aforesaid principle of law was also followed by this Court in case titled Ilahi Bakhsh Vs. Ilahi Bakhsh (2005 CLC 1704 (Lahore
10. The case law cited by the learned counsel for the respondent has no help to his case as it proceeds on a different set of facts and circumstances.
11. In view of above law laid down by the August Supreme Court and this Court, the impugned orders are the result of patent illegality and jurisdictional error and non-interference by this Court in constitutional jurisdiction would amount to protect fraud and depriving the petitioner from his valuable rights by defeating the cause of justice. In the circumstances, the impugned orders are set aside and the case is remanded to the trial Court to decide the matter afresh after comparing the alleged forged documents with the admitted documents by itself or through expert and if so required also frame issue and record evidence to determine the genuineness of documents.
12. With the aforesaid observation, this writ petition is allowed.
(R.A.) Petition allowed
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