2014 C L C 410
[High Court
(AJ&K)]
Before Sardar Abdul Hameed Khan, J
Ch. MUHAMMAD YOUNAS ARVI and 3 others----Petitioners
Versus
MUSHTAQ AHMED and 6 others----Respondents
Revision Petition No.46 of 2008, decided on 9th April, 2013.
(a) Civil Procedure
Code (V of 1908)---
----O. IX, R. 13 & O. I, R. 10---Ex parte decree, setting
aside of---Non-joinder of necessary party---Scope---Application for setting
aside ex parte decree was filed which was accepted---Validity---Evidence had
not been legally appreciated---Petitioners were in possession of suit land but
they were not arrayed as party in the original suit and consent decree was
passed which was not binding upon them---Sale-deed executed on the basis of
consent decree was not legal and was non-existent---Judgment and decree were
passed in legal fashion and in accordance with law---Application was liable to
be dismissed on the point of limitation, for want of proof and for not
impleading the petitioners as party and the alienation of Shamlat Deh land by
way of compromise decree---Negligent attitude of the respondents in pursuing
their case was neither a case for condonation of delay nor a case of sufficient
cause---Revision was accepted and impugned order was set aside.
2008 SCR
207; 2008 SCR 223; 2000 MLD 1305 and PLD 1970 SC 196 rel.
(b) Civil Procedure
Code (V of 1908)---
----O. IX, R. 13---Ex parte decree---Remedies available
against---Remedies available against ex parte decree were: an application under
O.IX, R.13, C.P.C.; review application under S.114(f) read with O.XLVII, R.1,
C.P.C.; appeal under S.96, C.P.C.; application under S.12, C.P.C. and
application for re-hearing the matter on the ground of violation of principles
of natural justice and inherent powers of court might also be attracted or writ
petition might lie.
Muhammad
Younas Arvi in person and for Petitioners.
Muhammad
Reaz Tabassum for Respondents Nos.1 and 2.
ORDER
SARDAR
ABDUL HAMEED KHAN, J.--- This revision petition has been filed against the
order of Senior Civil Judge Mirpur dated 30-6-2008, whereby the respondents
Nos.1 and 2 moved an application for setting aside the ex parte decree dated
16-4-1998 and the said Court allowed the same.
The precise
facts giving rise to the instant revision petition are that the present
respondents Nos.1 and 2 have filed an application for setting aside the ex
parte decree titled "Zubair Akhtar and others v. Muhammad Bostan and
others" dated 16-4-1998 in the Court of Senior Civil Judge Mirpur
regarding land measuring 19 kanals, 11 marlas comprising Khasra No.626/1 old,
and Khasra No.1 new (Shamlat Deh) situated at Mauza Kaskalyal Tehsil and
District Mirpur. It is alleged in the application that the respondents Nos.1
and 2 have filed a declaratory suit on 31-3-1997 against the pro forma
respondents Nos.3 to 5 for setting aside the "Consent Decree" dated
27-12-1990 passed by Additional Sub-Judge, Mirpur. It is also alleged that the
applicants are owners in possession of the suit-land purchased through
sale-deed dated 3-8-1991. The applicants stated that the suit was filed against
respondents Nos.3 to 5, while it was in the knowledge of respondents Nos.1 and
2, that the entries have been made it the Revenue Record and Mutation No.65 has
also been attested. The respondents Nos.1 and 2 deliberately did not array the
applicants as a party. The applicants prayed that the ex parte decree dated
16-4-1998 may kindly be set aside.
After
hearing the parties, the learned Senior Civil Judge Mirpur vide its judgment
dated 30-6-2008, set aside the ex parte decree dated 16-4-1998, hence this
revision petition.
Mr.
Muhammad Younas Arvi, the learned counsel for petitioners argued that for
setting aside the ex parte decree application was not maintainab1e rather a
suit could lie, because the respondents were party in the previous litigation.
It was further pointed out by the learned counsel that a suit titled Muhammad
Bostan v. Zubair Ahmed for setting aside the ex parte decree was filed by pro
forma respondent No.5 Muhammad Bostan which had been dismissed for want of
prosecution on 10-10-2002 by Civil Judge Mirpur. It is agitated that the
petitioners are in possession and a copy of Jamabandi 2005-06 is on the record,
according to which the petitioners Nos.1, 3 and 4 are in possession of the suit
land including some other piece of land. He further argued that the case of
respondent was not falling under Article 181 of Limitation Act. Ch. Muhammad
Younis Arvi, the learned counsel for petitioners vehemently argued that the
consent decree is not binding on others, who were not party before the trial
Court. Moreover, the respondents were properly served and without sufficient
cause, decree could not be set aside, thus, the impugned order of learned Senor
Civil Judge is bad in law. He referred the following case-law and prayed for
setting aside the impugned order:---
(1) PLD
1992 AJK 29; (2) 2008 SCR 207; (3) 2000 MLD 1305 and (4) Unreported case titled
Bostan v. Ghulam Hussain decided by apex Court on 10-12-1998.
Mr.
Muhammad Reaz Tabassum, the learned Advocate for the respondents Nos.1 and 2,
while controverting the arguments advanced by learned counsel for petitioners,
argued and defended the impugned order on all four corners and agitated that
the petitioner No. 1 as counsel of petitioner Zubair Akhtar (respondent No.3 in
the instant petition) filed the suit and pleaded the case and now he cannot
plead otherwise. He further argued that Mr. Mushtaq Ahmed respondent was
necessary party by virtue of sale deed Exhibit "PE" and lastly prayed
for the dismissal of revision petition being without any legal substance.
After
hearing the learned counsel for the parties, going through the case-law
referred and after thorough perusal of record of the case, it reveals, that in
beginning of this episode, one Muhammad Bostan (now respondent No. 5) brought a
suit against Abdul Rasheed and Munawar Hussain (now respondents Nos.6 and 7) in
the Court of Additional Sub-Judge Mirpur on 17-12-1990 and just after 10 days
on 27-12-1990 a consent decree was passed on the admission of defendants
(respondents Nos.6 and 7) regarding land measuring 20 Kanals, 11 marlas Field
No.1 Village Kaskalyal. Later on respondents Nos.3 and 4 herein filed a suit on
16-2-1998 for setting aside the above captioned consent decree, which was set
aside on 16-4-1998 by Sub-Judge Mirpur.
That after
about 4 years M. Bostan Khan (respondent No.5 herein) brought a suit on
9-2-2002 for setting aside the decree and order dated 16-4-1998,
however, this suit
was dismissed in
default on 10-10-2002 and lastly an application for
setting aside the decree and order dated 16-4-1998 was filed by real
respondents Nos.1 and 2 titled Mushtaq and others v. Zubair Akhtar and others
against pro forma-respondents Nos.3 to 7 on 19-12-2002 in the Court of Senior
Civil Judge Mirpur which was decided after about six years on 30-6-2008. It is
pertinent to note that during the pendency of the said application, the present
petitioner i.e. Ch. Muhammad Younis Arvi and three others filed an application
for impleading them in the line of defendants/respondents as they are the land
owners of Village Kaskalyal and the subject land is Shamlat Deh, which is in
their possession. The same was allowed by the trial Court vide an interim order
dated 27-3-2006, whereupon the present petitioners filed their detailed
objections and contested that the application of the respondents merits
rejection for non-availability of cause of action. Sale-deed on the basis of
consent decree of Shamlat land is ill-gotten gain which is nullity in the eyes
of law, moreover, on the point of limitation, non-impleading the necessary
party, and on ground of non-possession of respondents etc. It is
worth-mentioning that the respondents Nos.1 to 5 were proceeded ex parte in the
trial Court and only contesting respondents were the present petitioners and
pro forma-respondents Nos.6 and 7. That after completion of summoning process
and objections etc. the learned Senior Civil Judge On 19-6-2006 framed the
following 7 issues:---
The onus to
prove the Issues Nos.4 and 5 was on the respondents (petitioners herein) and
other all issues were to be proved by the petitioners (respondents herein).
After recording the evidence of parties the learned Civil Judge accepted the application
and set aside the ex parte decree and order dated 16-4-1998.
In the
instant revision petition, Mr. Reaz Tabassum is representing real respondents
Nos.1 and 2, whereas vide interim order dated 11-5-2009, the learned counsel
for petitioners stated that the pro forma respondent need not to be summoned.
Moreover, vide order dated 11-3-2011, my learned brother Mr. Justice Tabassum
Aftab Alvi in the light of statements of the learned counsel of parties at bar
formulated a point, "whether ex parte decree can be passed in favour of
the petitioners without impleading contesting respondents as a party in the
line of respondents or not? The respondents produced Mushtaq Ahmed respondent
No.1, Muhammad Bostan and Muhammad Ayyub Process Server as witnesses and
exhibited the summon Exh.P.G. and report of process server as Exh.P.G./2.
While
examining the evidence of these above said witnesses, it transpired that while
passing resolution on Issue No.1, the portion of statements of these witnesses
as stated in examination-in-chief, was reproduced in impugned judgment of the
learned trial court, but no mention of deposition made during the
cross-examination, wherefrom, it reveals that the evidence has not been legally
appreciated.
On the other hand, while resolving
the Issues Nos.4 and 5, the documentary evidence in shape of periodical record
of revenue for the year 2005-06, Exh.D.A., court statement of witness Patwari
Farman have not been read and appreciated by the trial Court and the statement
of one of the petitioner Muhammad Younis Arvi, has been misread, whereas it is
evident that 3 out of 4 petitioners were in possession of suit land and they
were not arrayed as party in the original suit, wherein a consent decree was
passed, which is the root cause of the dispute and prolonged litigation
spreading over two decades. Petitioners were necessary party and without
impleading the person in possession as party, consent decree between the other
parties was not binding upon the petitioners, hence the resolution passed by
the learned Senior Civil Judge on Issues Nos.4 and 5 is not sustainable. Thus,
Issues Nos.4 and 5 are decided in favour of petitioners and against the
respondents.
It also
transpired from the
record of the
case that on
27-12-1990. After passing of the consent decree a sale-deed was executed
against a sale consideration Rs.8,00,000/- (rupees eight lacs) after 8/9 months
of the order dated 27-12-1990 and sale-deed of Shamlat which is not legal and
specially when the decree is not in field, thus, the sale deed is non-existent.
In view of
above, the judgment and decree passed by the Additional Sub Judge Mirpur on
16-4-1998 was passed in lawful manner, whereby the ex parte decree dated
27-12-1990 regarding the land measuring 20 Kanals, 11 Marlas Khasra
No.626/1-old and No.1-new, Khewet No.95/84, Khata No.271/203 situated in
Village Kaskalyal Tehsil Mirpur and mutation attested on the basis of this
decree were set-aside. Hence the impugned order dated 16-4-1998 passed by the
trial Court was passed in legal fashion and in accordance with the law. The
application for setting aside the above said judgment and decree filed by
respondents Nos.1 and 2 titled Mushtaq Ahmed and Inayat Hussain v. Zubair
Akhtar and others' merits dismissal on the point of limitation, for want of
proof and for malafidely not impleading the petitioners in the line of
respondents and the alienation of Shamlat Deh land by way of compromise
decree/sale-deed etc.
These above
findings are fortified by (1) 2008 SCR 207, (2). 2008 SCR 223 and (3).2000 MLD
1305, the relevant portions of which are reproduced, which read as:---
2008 SCR 207.
"Not
only that, even otherwise the legal position time and again approved by this
Court is that Shamlat Deh land cannot be alienated through affidavit,
agreement-to-sell or through a compromise-decree nor can a declaration be made
in respect of an owner for share in the Shamlat Deh by the civil Court. The
proposition was settled, among others, in Civil Appeal No.791998 titled
Muhammad Bostan v. Ghulam Hussain and 3 others wherein a division bench of this
Court clearly held so. The facts which culminated into filing of that appeal
were that a declaratory suit in respect of Shamlat Deh land was filed in the
Court of Additional Sub-Judge Mirpur challenging the compromise-decree dated
12-5-1987.'
The civil
Courts are bound to dive deep into and be careful while deciding such like
cases in which the parties by compromise, evasive denials and through
unregistered deeds and documents attempt to get declaration of title or
ownership, through a judgment or decree of the civil Court to the detriment of
other owners or parties having a legal right or claim. Similarly the Courts
should avoid to grant a declaration in respect of possession of Crown-land and
Shamlat Deh without first determining the title of the owner to transfer and
the exclusive possession.'
2008 SCR-223.
`Although
the gift-deed is a registered document, still the same cannot create a right
unless Shamlat Deh land is partitioned by metes and bounds and a specific
certificate by the Collector is not granted. Permission by Tehsildar or
certificate by the Collector referred to, a photocopy of which is attached with
the file of the trial Court, is fake on the ground that the file of the case
was ablazed.
2000 MLD 1305.
It is
well-settled principle of law that when the basic order is illegal the
structure based on it also falls to the ground. Therefore, when the allotment
also had no sanctity in the eye of law. This principle equally applies to the
subsequent transfer in favour of respondent-Ratasib'.
It is
further added that the remedies available against an ex parte decree are:---
O An
application under Order IX, rule 13.
O A review
application under section 114f read with Order XLVII, Rule 1.
O An appeal under section 96.
O A proceeding
to set aside the decree on the ground that it was obtained by fraud etc. under
section 12 of the Code. Previously a suit could be filed.
O An
application for re-hearing of the matter on the ground of violation of the
principles of natural justice.
O A revision
may also lie
O In
appropriate cases the inherent powers of a court may also be attracted or a
writ may lie.
The above
remedies are concurrent and initially not exclusive of each other. It is
pertinent to mention that time spent in availing of one of remedy is not
deductible for another remedy (as held in PLD 1970 SC 196). But the conduct of
respondents in filing suit and application one after another and negligent
attitude of the respondents in pursuing their case is neither a case for
condonation of delay nor a case of sufficient cause by which they were
prevented from appearing before the Court. While keeping in view, the
provisions of Rule 13, Order IX, C.P.C., the impugned order merits interference by his Court.
In the
light of above findings and after appreciating the evidence of the parties,
which is in my estimation is sufficient evidence to decide the matter instead
of remanding the case under Order XLI, Rule 25, C.P.C. The overall
records/evidence of the case is suggestive of decision of the case under Order
XLI, Rule 24 of the Code.
The nub of
the above discussion is that this petition succeeds, hence by accepting he
revision petition of petitioners the impugned order dated 30-6-2008 passed by
the learned Senior Civil Judge Mirpur is hereby set aside with no order as to
costs.
AG/60/HC(AJ&K) Petition
accepted.
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