Application for Impleadment in Appeal

 PLJ 2022 Lahore 437

[Multan Bench, Multan]

Present: Sultan Tanvir Ahmad, J.

Mst. SHAHNAZ PARVEEN--Petitioner

versus

Mst. ASMA KALSOOM & 20 others--Respondents

C.R. No. 113 of 2018 & C.R. No. 1674 of 2017, decided on 13.9.2021.

Civil Procedure Code, 1908 (V of 1908)--

----S. 42--Suit for declaration--Decreed--Appeal Filing of application
for impleadment as party during pendency of appeal--Accepted--Matter was remanded--Producing of documents at appeal stage
by respondent--Determination of documents--Challenge to--Admissibility of documents cannot be determined without giving chance to parties to exhibit same and or chance to produce makers and witnesses of documents--Any ruling as to authenticity of documents without proper examination can result into miscarriage of justice and at same time shall prejudice trial and/or appeals-- Order of remand by Appellate Court is simply a matter sent to trial Court for re-examination and this order is not final determination of rights of parties--Discretion exercise by Appellate Court is neither unwarranted nor unjust in circumstances--Counsel of petitioner has failed to make out any case of material irregularity or illegality, requiring interference in revisional jurisdiction--Revision petition dismissed.       [Pp. 439 & 441] A, C & D

PLD 1962 SC 291 ref.

Power of Court--

----Court is empowered, at all stages of proceedings, to add any party or parties whose presence before Court is necessary to adjudicate upon real matter in dispute or when presence of parties is necessary to enable Court to effectually and completely adjudicate upon matter.

                                                                                              [P. 439] B

Malik Muhammad Tariq Nonari, Advocate for Petitioner (in Revision Petition No. 113-2018).

Mr. Iqbal Hussain Jafri, Advocate for Respondents.

Mr. Iqbal Hussain Jafri, Advocate for Petitioner (in Revision Petition No. 1674-2017).

Malik Muhammad Tariq Nonari, Advocate for Respondents.

Date of hearing: 13.9.2021.

Judgment

Through this single judgment, the captioned revision petitions being outcome of same order, alongwith all the civil miscellaneous applications, shall be decided together.

2. The present revision petitions are arising out of the consolidated order dated 23.10.2017 passed by learned Additional District Judge, Khanewal in civil appeals.

3. The facts, necessary for the decision of these civil revisions, are that Mst. Shahnaz Parveen (the 'Petitioner') obtained a judgment and decree dated 22.02.2016 in civil suits No. 59 of 1997, whereby she was declared as lawful daughter of Hussain Ahmad Khan and Mst. Khursheed Jahan and Mutation No. 183 dated 19.01.1972 was cancelled. The Petitioner was held entitled to inherit the estate of her parents alongwith sisters namely Mst. Munawar Jahan and Mst. Raees Jahan and brother Sarwar Ali Khan. Appeals were filed by unsatisfied defendants.

4. Mst. Asma Kalsoom (the 'Respondent No. 1') filed applications under Order 1, Rule 10 of the Code of Civil Procedure Act, 1908 in the referred appeals. Learned Additional District Judge, Khanewal on 23.10.2017 while accepting the applications, ordered to implead her as party in the suits as defendants. The entire matter was remanded to the learned trial Court with the direction to obtain the written statement of Respondent No. 1, frame proper issues and to decide the matter after recording evidence, if any produced. Said order has been challenged by way of present revision petitions.

5. Malik Muhammad Tariq Nonari, learned counsel for the Petitioner, while arguing the case submitted that the documents relied by the learned Appellate Court are fake and forged; that Madrasah/School certificate is inadmissible as the certificate produced contains a stamp which say "copy to copy is not admissible in Court" and further contended that the relevant school has refused to recognized the document; that similarly Marriage Certificate issued by Government of Punjab having entry dated 06.04.2016 is bogus; that Family Certificate has been ignored by the learned Appellate Court. Learned counsel for the Petitioner has argued that suit titled "Mst. Kalsoom v. Manager NADRA" was filed on 16.06.2016 for correction of the name of father which was dismissed, likewise, some other suits for correction of the names were also dismissed. It has been further argued that the order of remand by the learned Appellate Court is illegal and the learned Appellate Court should have obtained the evidence itself instead of making the order of remand.

6. Conversely, Mr. Iqbal Hussain Jafri, learned counsel for the Respondents, has opposed this revision petition and submitted that the documents produced with this revision were never produced before the learned Appellate Court and the same were obtained after the decision of remand by influencing the authorized person.

7. I have heard the arguments and with the able assistance of the learned counsel for the parties record is perused.

8. Respondent No. 1 at the appeal stage produced the certificate, which shows her name as Mst. Asma Kalsoom, daughter of Muhammad Sarwar Ali Khan. Her Marriage Certificate with one Malik Irshad Hussain, which was issued on 06.04.2016, is reflecting the same. Divorce Deed dated 30.06.1998 is produced before learned Appellate Court, whereby Muhammad Sarwar Ali Khan has allegedly divorced the mother (Mst. Khalida Parveen) of Respondent No. 1. Though, the learned counsel for petitioner has countered these documents by placing on record certificate issued by the school and a marriage certificate dated 27.05.2016 which contains name of one Abdullah in column of the father's name and other documents have also been relied upon, which contradict the stance taken by the Respondent No. 1.

9. The admissibility of aforementioned documents cannot be determined without giving chance to the parties to exhibit the same and/or the chance to produce the makers and witnesses of these documents. Any ruling as to the authenticity of these documents without proper examination can result into miscarriage of justice and at the same time shall prejudice the trial and/or appeals.

10. It is settled law that the Court is empowered, at all stages of the proceedings, to add any party or parties whose presence before the Court is necessary to adjudicate upon the real matter in dispute or when presence of the parties is necessary to enable the Court to effectually and completely adjudicate upon the matter. The person, who is claiming to own share in the suit for administration or inheritance, certainly falls in the category of persons, who are likely to be adversely affected by the adjudication.

11. It will be beneficial to reproduce the relevant part of the judgment of the Honourable Supreme Court in case titled "Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi and others" (PLD 1962 Supreme Court 291):

".... According to Order I, rule 10, of the Civil Procedure Code any persons whose presence is "necessary in order to enable the Court effectively and completely to adjudicate upon and settle all questions involved in the suit" may be added as a party to the suit. There should be no objection to a plaintiff joining in an administration suit all those who claim to be entitled to a share in the property of the deceased and whose claim he wants to be adjudicated upon. To refuse the plaintiff to implead such persons will lead to an almost intolerable situation. Suppose there are ten claimants to an estate of the deceased and the plaintiff who sues for administration admits the claim of only one of them. If he is allowed to implead only the one whose claim he admits the decree passed in the administration suit distributing the estate may be nullified by one of the remaining claimants filing a suit and serving a declaration that he is entitled to a share in the estate of the deceased. The heir who has already got a decree in the administration suit will, if he still desires distribution of the estate, have to file a second suit for administration impleading also the heir who has secured a declaration, but the decree in this second suit too may be nullified by another claimant filing a suit and getting a declaration that he is entitled to a share in the estate of the deceased. It seems clear therefore that an acceptance of the contention of learned counsel for the appellant may lead to a hopeless multiplicity of suits. Great stress is laid by learned counsel on the fact that the plaintiff will by an administration suit be getting possession from persons who are in fact only trespassers and this is outside the scope of an administration suit. But the plaintiff will be getting possession only from persons who claim to be entitled to a share in the property of the deceased and who claim no independent right in themselves. While an administration suit is not a remedy for getting possession from those who claim the property in their possession in their own right and adversely to the deceased there does not appear to be any valid objection to their dispossession if they claim only as heirs or under a will from the deceased and their claim is

negatived. The question as to whether a person is entitled to a share in the property of the deceased is a fit subject of decision in an administration suit and in fact learned counsel for the appellant does not contended to the contrary his plea being that a defendant in an administration suit can raise a question as to whether the plaintiff or another defendant is entitled to a share but that the plaintiff cannot raise such a plea as to a defendant. We see no good reason for this distinction. "

(Emphasis supplied)

12. Furthermore, order of remand by the learned Appellate Court is simply a matter sent to the learned trial Court for re-examination and this order is not final determination of rights of the parties. I am of the considered view that discretion exercise by the learned Appellate Court is neither unwarranted nor unjust in the circumstances. It cannot be said that while passing order of remand to re-examine the matter in the light of fresh facts, documents and parties, learned appellate Court has acted arbitrarily or without jurisdiction.

13. Learned Counsel of the petitioner has failed to make out any case of material irregularity or illegality, requiring interference in the revisional jurisdiction. The instant revision petition is, therefore, dismissed, with no order as to costs.

14. For reasons recorded above, the Revision Petition No. 1674 of 2017 having no substance is also dismissed.

15. C.M. No. 2970-C of 2018 in Civil Revision No. 1674 of 2017 for impleading Applicants as necessary party is disposed of, as the same can be filed before the learned Court, where the trial is pending, if permissible by law.

(Y.A.)  Petition dismissed

Non Production of Second Marginal Witness

 PLJ 2020 Lahore 386

Present: Muhammad Ameer Bhatti, J.

MUHAMMAD TUFAIL etc.--Appellants

versus

MUHAMMAD ASHIQ--Respondent

R.S.A. No. 163 of 2011, heard on 20.11.2019.

Civil Procedure Code, 1908 (V of 1908)--

----S. 100 & O.XLI R. 27(1)(b)--Specific Relief Act, (I of 1877), S. 12--Suit for specific performance--Dismissed--Appeal--Dismissed--Agreement to sell--Non-production of second marginal witness--Legal obligation--Deficiency in evidence--Challenge to--Production of less number of marginal witnesses of oral/written agreement is fatal--To produce required number of witnesses in evidence to prove verbal/written agreement for financial liability or further obligation is legal obligation and mandate of law whereas non-fulfilment thereof has obvious result of claim submitted by party because deficiency in this regard on part of one party creates a reasonable right in favour of other side, which cannot be taken away by providing opportunity to indolent at subsequent stage of suit proceedings i.e. appellate stage to fill-up lacuna in their evidence as it is not meant for removing deficiency in evidence of any party--It is not case of appellants that their second marginal witness was not available at time of trial of suit but it was alleged in their application filed first time before first appellate Court that at trial stage witness on account of threat extended by other side refused to appear/give evidence but this stance carries no weight being not plausible as required by law--Record of trial Court is also silent qua efforts made by appellants for production of that witness during trial--Obviously, it was a sheer negligence, inadvertence and mistaken legal advice or act and omission on part of appellants, thus, said lacuna could not be allowed to be filled in by invoking provisions of Order XLI Rule 27(1)(b), C.P.C.--I do not find any reason to permit appellants to produce second marginal witness at this stage, therefore, considering this deficiency sufficiently fatal to their case, this second appeal is dismissed being devoid of merit considering judgments impugned passed by Courts below inconsonance with law and facts--No order as to costs--Appeal was dismissed.            [Pp. 391 & 392] B, C, D & E

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Arts. 17 & 79--Financial liability--Missing of any condition mentioned in Article 17 of Order, 1984, excludes instrument from purview of “within meaning of law” and likewise production of less number of marginal witness eliminates document from sanction of proved document as envisaged by Article 79 of Order, 1984, which forces production of at least two witnesses to prove existence and contents of verbal/written agreement in wake of fact that matter creating financial liability or future obligation requires to be attested by at least two witnesses and producing of them to record their testimony is mandatory otherwise exclusion from consideration is obvious.    [P. 391] A

Mian Shahid Mahmood, Advocate for Appellants.

Ms. Kishwar Naheed and Malik Saqib Sarfraz, Advocates for Respondent.

Date of hearing: 20.11.2019.

Judgment

Suit for specific performance regarding agreement to sell on account of its non-fulfilment in terms mentioned therein, instituted by the appellants, was dismissed by the learned trial Court vide judgment and decree dated 25.09.2010 and appeal whereof along with application under Order XLI rule 27, C.P.C. for production of additional evidence was dismissed by the learned first appellate Court vide impugned judgment & decree dated 19.07.2011; hence, this second appeal.

2. Suffice to mention that the suit for specific performance of agreement to sell purportedly executed between the parties regarding the land measuring 04-kanals 09-marlas on account of its non-performance constrained the present appellants to bring a suit for its enforcement, which was contested by the respondent and considering the divergent pleadings necessary issues were condensed enabling the parties to lead their evidence to substantiate their contents of pleadings.

3. The learned trial Court concluded the proceedings into dismissal of suit holding that non-production of second marginal witness mandatory to prove the factum of agreement to sell was incurable defect in evidence of the plaintiffs necessitating to dismiss the suit. Appeal was preferred, however, during pendency thereof, an application for production of second marginal witness was also filed, which was discouraged by the learned first appellate Court in its impugned judgment declaring the same result as concluded by the learned trial Court.

4. It is admitted by the learned counsel for the appellants that there is no cavil to the settled principle of law that production of two marginal witnesses to prove the factum of agreement to sell was mandatory and deficiency in this regard left no room for the plaintiffs-appellants to think about any success. Therefore, they at the appellate stage filed the application for production of the said second marginal witness of the purported agreement to sell but same was rejected despite the fact that clause (b) of sub-rule (1) of Rule 27 of Order XLI, C.P.C. does permit the learned first appellate Court to grant this permission in order to reach on just conclusion. Non-exercise of that provided power is a material illegality and irregularity permitting this Court to interfere while exercising the power provided under Section 100, C.P.C. He also contended that if his application is allowed, in that eventuality his case could have been considered on merits because the Courts below have dismissed appellants’ suit and appeal on account of deficiency of evidence/non-production of second marginal witness. To substantiate his contention that the permission for production of evidence at appellate stage was within the domain of the appellate Court, the learned counsel has placed reliance on law laid down by Hon’ble Supreme Court in the cases reported as Ghulam Ahmad Chaudhry v. Akbar Hussain through Legal Heirs and another (PLD 2002 Supreme Court 615), Ghulam Zohra and 8 others v. Nazar Hussain through Legal Heirs (2007 SCMR 1117), Syed Muhammad Hassan Shah and others v. Mst. Binat-e-Fatima and another (PLD 2008 Supreme Court 564), Muhammad Azam v. Muhammad Abdullah through L.Rs. (2009 SCMR 326), Syed Sharif ul Hassan through L.Rs. v. Hafiz Muhammad Amin and others (2012 SCMR 1258) and Commissioner Multan Division, Multan and others v. Muhammad Hussain and others (2015 SCMR 58).

5. On the other hand the learned counsels for the respondent contend that the additional evidence cannot be allowed to be produced in routine to remove the lacunas and deficiency in evidence. Aforesaid provision of law also imposes a condition of recording of reasons for grant of permission for production of additional evidence and there is no plausible, substantial cause explained by the appellants for non-production of the second marginal witness at the time of recording of evidence before the learned trial Court. It is further contended that list of witnesses presented by the appellants-plaintiffs after framing the issues does not contain the name of second marginal witness and missing of name of second marginal witness from list of witnesses submitted, by the plaintiffs during trial proceedings makes it clear that till completion of trial plaintiffs did not have any intention to produce him and reason created for non-production of second witness during trial alleged in application for additional evidence has no value and substance because they never claimed intervention/help of the Court during trial proceedings for production of the second marginal witness to prove contents of agreement to sell as required by law. While relying on the judgments reported in Rana Abdul Aleem Khan v. Idara national Industrial Cooperative Finance Corporation Defunct through Chairman Punjab Cooperative Board for Liquidation, Lahore and another (2016 SCMR 2067), Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044), Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others (PLD 2011 Supreme Court 241), Faiz Bukhsh v. Rabnawaz and others (2017 YLR Note 352), Government of Khyber, Pakhtunkhwa through Secretary, Forest Department v. Devli Kund Forest and others (2011 MLD 1511) and Abdul Aziz v. Meehan Khan (PLD 1979 Baghdad-ul-Jadid 38) it is contended that it is not a fit case for allowing the appellants to fill-up the lacuna in their evidence, therefore, there is no infirmity in the judgment of the learned first appellate Court for its rectification; hence, second appeal is liable to be dismissed.

6. I have heard the learned counsels for the parties and gone through record of the case.

7. In order to appreciate the contentions raised by learned counsels for the parties, reproduction of rule 27 Order XLI, CP.C. is essential as the case revolves around this provision, which is as under:

“27. Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if--

(a)      the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(b)      the Appellate Court requires any document to be produced or any witness to be examined to . enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2)  Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”

First part of this rule (a) relates to grant of permission to those documents or evidence, which were not permitted by learned trial Court despite availing opportunity before it and this clause does not attract here as appellants did not apply/approach the learned trial Court for production of second marginal witness during trial proceedings and missing of name of the second witness from list of witnesses submitted by the plaintiffs/appellants also had significant bearing upon merits of the case which the plaintiffs/appellants faced dismissal of their suit on account of this deficiency in evidence.

The second part of rule 27(b) enables the appellate Court to entertain the application for production of additional evidence directly/ first time applied for its production provided some substantial cause for its earlier non-production is explained/alleged, meaning thereby that there must be reasonable excuse for non-production of that evidence at the trial stage, additionally that evidence must have been necessary to do the complete justice but it does not mean to permit any party to remove any deficiency in his evidence. This provision does not command to exercise this power for the benefit of a party which has not vigilantly produced the evidence to prove the case inasmuch as it cannot be exercised to remove the weaknesses in evidence of any party.

8. Undeniably the power provided under Order XLI Rule 27, C.P.C. is not unfettered power. The appellate Court should have exercised this discretionary power within the parameters of law enunciated in the said provision of law. Accordingly there is no bar for exercising this power provided circumstances of case do not permit the Court to decide the matter justly and fairly without receiving that evidence which is not the position here in this case.

9. Mandate of law regarding instrument of future obligation is to be attested in terms of Article 17 of the Qanum-e-Shahadat Order, 1984 and for its proof Article 79 ibid mandates the production of two attesting witnesses, therefore, it is held that attestation by two witnesses of instrument regarding future obligation was absolute and imperative and to prove production of at least two attesting witnesses to testify its contents was also mandatory/compulsory as per requirement of Article 79 of the “Order, 1984. Therefore, it is held that missing of any condition mentioned in Article 17 of the Order, 1984, excludes the instrument from the purview of “within the meaning of law” and likewise production of less number of marginal witness eliminates the document from sanction of proved document as envisaged by Article 79 of the Order, 1984, which forces production of at least two witnesses to prove the existence and contents of the verbal/written agreement in the wake of the fact that the matter creating financial liability or future obligation requires to be attested by at least two witnesses and producing of them to record their testimony is mandatory otherwise exclusion from consideration is obvious.

10. Production of the less number of marginal witnesses of the oral/written agreement is fatal. To produce required number of witnesses in evidence to prove the verbal/written agreement for financial liability or further obligation is legal obligation and mandate of law whereas non-fulfilment thereof has obvious result , of the claim submitted by the party because deficiency in this regard on the part of one party creates a reasonable right in favour of other side, which cannot be taken away by providing the opportunity to the indolent at subsequent stage of suit proceedings i.e. appellate stage to fill-up the lacuna in their evidence as it is not meant for removing the deficiency in the evidence of any party.

Since trial of case moves forward and reaches its conclusion following the procedure provided in Civil Procedure Code deviation whereof stipulates obvious results, hence, parties have to move/ perform their duty/obligation accordingly and any of the parties if performs its duty/obligation negligently, it would obviously face the consequences and in such eventuality he cannot be allowed to take advantage of any beneficial provision introduced by law at subsequent stage, which has to be exercised reasonably. Inclusion of this provision extending power to appellate Court under sub-rule (l)(b) of rule 27 of Order XLI, C.P.C. significantly enables the appellate Court to grant permission to produce that piece of evidence which is discovered subsequently or created after completion of trial or was not in possession/reach or available or in [ knowledge despite best effort.

11. It is not the case of appellants that their second marginal witness was not available at the time of trial of suit but it was alleged in their application filed first time before first appellate Court that at trial stage the witness on account of threat extended by the other side refused to appear/give evidence but this stance carries no weight being not plausible as required by law. Significance of non-inclusion of name of the said witness in the list of witnesses cannot be ignored while considering the prayer of production of second marginal witness at appellate stage. Record of the learned trial Court is also silent qua efforts made by appellants for production of that witness during the trial. Obviously, it was a sheer negligence, inadvertence and mistaken legal advice or act and omission on the part of the appellants, thus, the said lacuna could not be allowed to be filled-in by invoking the provisions of Order XLI Rule 27(1)(b), C.P.C.

12. Omission to cite second marginal witness to prove the contents of purported agreement to sell and missing of explanation, on behalf of the plaintiffs/appellants at trial level for non- production of that witness is enough to draw the inference against the appellants that if said second marginal witness was produced at the relevant time in the witness box, he would have deposed against appellants’ version as envisaged under Article 129(g) of Qanun-e-Shahadat Order, 1984.

13. In view of the above, I do not find any reason to permit the appellants to produce the second marginal witness at this stage, therefore, considering this deficiency sufficiently fatal to their case, this second appeal is dismissed being devoid of merit considering the judgments impugned passed by learned Courts below inconsonance with the law and facts. No order as to costs.

(Y.A.)  Appeal dismissed

Contents of Plaint are important for Rejection of Plaint

PLJ 2009 Karachi 205

Present: Gulzar Ahmed, J.

Messrs SUNLEY DEVELOPERS PRIVATE LIMITED through Authorised Officer, Karachi--Plaintiff

versus

Messrs MUMAIR ASSOCIATES through Attorney

and others--Defendants

Suit No. 9 and C.Ms. Nos.53 and 2790 of 2008, decided on 31.12.2008.

Limitation Act, 1908 (IX of 1908)--

----Art. 113--Civil Procedure Code, (V of 1908), O. VII, R. 11--Specific Relief Act (I of 1877), S. 12--Suit for specific performance of contract--Limitation--Rejection of plaint--Scope--While dealing with the question of rejection of plaint under O.VII, R. 11, C.P.C. the contents of the plaint were to be assumed to be correct and same would be rejected if it was shown that the plaint on its face was barred by law of limitation--Where the plaint on its face did not show that same was barred by limitation, its rejection would not be justified.      [P. 209] A

Specific Relief Act, 1877 (I of 1877)--

----S. 12--Civil Procedure Code, (V of 1908), O. VII, R. 11--Suit for specific performance of agreement to sell--Rejection of plaint--Scope--All the items on which grievances had been raised by the plaintiff were to be undertaken by the plaintiff itself and none by the defendant--Heading of the agreement though mentioned same to be an "agreement to sell" but its reading showed that it was not so but was a complete conveyance of the land by defendant to the plaintiff with giving of irrevocable general power of attorney for selling of the plots and recovery of sales proceeds and making of sub--leases in favour of prospective purchasers--Held, to the extent what was read from the agreement itself and complaints made in the plaint, there seemed to be no cause of action for filing of the suit by the plaintiff--Application for rejection of plaint was allowed.     [Pp. 211 & 212] B & D

1986 SCMR 497; PLD 1987 Kar. 132; PLD 1985 SC 153; PLD 1987 Kar. 292; 2001 CLC 946 and 1988 CLC 722 ref.

Specific Relief Act, 1877 (I of 1877)--

----S. 12--Civil Procedure Code, (V of 1908), O. VII, R. 11--Suit for specific performance of agreement--Lease--Rejection of plaint--Scope--Agreement, though showed selling of 950 residential plots but their exact location was mentioned to be partly in specified survey numbers and as to where the remaining part of the land was situated, the agreement was altogether silent--Except for there being a covenant from the side of the defendant that it had a subsisting lease of land, no particulars or details were given about purported lease as to from whom it was obtained, what was its date, its nature, right given under it and to what specific land it related; agreement and plaint were altogether silent on this aspect of the matter--Where a document which, in the present case, was agreement to sell purported to have conveyed the land of 950 plots by the defendant to the plaintiff, it had to mention full particulars and details of the lease--Even the copy of purported lease was not attached with the plaint nor was available on record which would lead to the only inference that there was no existence of lease of the suit land--Application was allowed.  [Pp. 211 & 212] C & D

Mr. Muhammad Sadiq Hidayatullah, Advocate for Plaintiff.

Mr. Nazar Akbar, Advocate for Defendant No. 1.

Nemo for Defendants Nos. 2, 3 and 5.

Date of hearing: 31.12.2008.

Order

(1) & (2) These are the two applications one is under Order XXXIX, Rule 1 & 2, C.P.C. filed by plaintiff and the other is under Order VII, Rule 11, C.P.C. filed by Defendant No. 1. The Defendant No. 1 has filed counter affidavit to the first mentioned application while the plaintiff has filed objections to the second application to which rejoinder has been filed by Defendant No. 1. Both the counsel for the parties have made extensive submissions.

Learned counsel for Defendant No. 1 has contended that no notice was given by the plaintiff to Defendant No. 1 and that the suit is time barred and even otherwise plaintiff has no cause of action for filing of the suit. In support of his submissions he has relied upon the cases reported in 1986 SCMR 497. PLD 1987 Karachi 132. PLD 1985 SC 153, PLD 1987 Karachi 292 and 2001 CLC 946.

On the other hand learned counsel for plaintiff has submitted that the plaintiff has made full payment of the consideration amount to the Defendant No. 1 and was put in possession of the property and that Defendant No. 1 was required to demolish the boundary wall and the agreement is irrevocable. He has finally contended that plaintiff's right is protected under Section 53-A Transfer of Property Act and has relied upon the case reported in 1988 CLC 722.

I have considered the submissions made by learned counsel and have gone through the record.

The suit has been filed for specific performance of contract, declaration and injunction. It is alleged in the plaint that plaintiff has entered into an Agreement to Sell dated 30-4-1998 with the Defendant No. 1 for purchase from Defendant No. 1 housing scheme by the name of Gulshan-e-Rumi upon besides other survey numbers including Survey Nos. 108, 109 and 110 situated in Deh Safooran, Tapo Gadap, Taluka & District East, Karachi on which 950 residential plots of 120 and 133 square yards have to be constructed and the plaintiff has agreed to purchase these plots. The consideration of Rs.750 per square yard including all outer and internal development charges together will all rights, title and interest with full vacant possession and free from encumbrances, charges and disputes. It is alleged that on the signing of the Agreement Rs. 100,00,000 was paid and further Rs.50,00,000 was also paid as per the schedule of the Agreement. It is alleged that on signing of the sale agreement and payment of Rs. 150,00,000 the defendant handed over actual vacant possession of the property to the plaintiff. Plaintiff got the lay out plan approved for 685 units/bungalows and obtained N.O.C. for sale of 218 units/bungalow, through its sister concern M/s. Sobia Enterprises from the Cantonment Board. The construction and development work was stopped because of the notice of Defendant No. 4 namely Cantonment Board who asked for obtaining of N.O.C. from Civil Aviation Authority. It is alleged that as per agreement the Defendant No. 1 had to obtain N.O.C. from competent authority and that the defendant failed to get demarcation of boundary wall of the said housing scheme. Defendant also failed to make internal development as per agreement of laying carpeting of roads and separate approval of the residential plots. It is alleged that plaintiff pressed the Defendant No. 1 to honour the terms of the agreement who kept the plaintiff on false promises and ultimately in March 2007 defendant failed to provide all the required N.O.C. and approval of residential status of housing scheme and construction and carpeting of road was not done. It is alleged that the defendant has threatened to dispossess the plaintiff and refused to honour the terms of the agreement. It is alleged that the cause of action for the suit accrued to the plaintiff in March 1997 when the plaintiff paid and defendant received a sum of Rs. 100,00,000 and handed over the vacant possession of the suit property and thereafter when plaintiff paid further sum of Rs.50,00,000 to the defendants and ultimately in March 2007 when the defendant failed to honour the commitment made in the agreement.

So far the first submission of the learned counsel for the plaintiff that no notice was given by the plaintiff to the defendant for seeking compliance of the said agreement and to show its own willingness to perform the agreement, it may be noted that no specific provisions of law was cited by the learned counsel to show that giving of a notice for filing of suit for specific performance is mandatory and without it the suit will not be maintainable. It appears to me that there is no legal requirement for giving of a notice before filing of a suit for specific performance of contract but prudency requires that giving of notice be adverted to before entering upon costly and time consuming affair of litigation. The exchange of notice and reply, in many cases may bring parties to some agreeable solution of the dispute or at least narrow down contentious issues between them and also crystallize their respective stand on point or points on which disagreement exist. This facilitates Court proceeding as it will only address to the narrowed controversy and answer to it. Since no specific law has been cited for giving of a notice before filing of the suit for specific performance of contract, therefore, this question cannot be considered for rejection of the plaint under Order VII, Rule 11, C.P.C.

As regards the second submission of the learned counsel that the suit is time barred, Defendant No. 1 counsel has contended that even if the plea of the plaintiff that it has paid the amount of Rs. 15,000,000 is accepted in accordance with the schedule provided in clause (2) of the agreement still the suit will be time barred, as it has not been filed within 3 years from the last payment shown in the schedule. The schedule shows that a sum of Rs. 10,000,000 was paid on the date of agreement i.e. 30-4-1998, Rs.2,500,000 within 30 days of the signing of the agreement and further Rs.2,500,000 on expiry of 60 days from the date of agreement. Thus the last payment would be around 29-6-1998.

Article 113 of the Schedule to the Limitation Act, 1908 provides limitation period for filing of suit for specific performance of contract that of 3 years from the date fixed for the performance and if no such date is fixed then from the date the plaintiff has notice that performance is refused. Admittedly, no date is fixed in the agreement for the performance, therefore, the second part of the provision will apply where limitation has to run from the date of refusal to perform the agreement. Plaintiff in the plaint has pleaded that refusal to perform the agreement has been made by the Defendant No. 1 in March 2007. The Defendant No. 1 has not shown any document that there was refusal on its part to perform the agreement prior to the date which is alleged in the plaint. In the absence of any such prior refusal, the question as to whether there was a refusal to perform the agreement by the Defendant No. 1 in March 2007 is a question of fact which can only be determined after evidence is recorded by the parties. After all while dealing with the question of rejection of plaint under Order VII, Rule 11, C.P.C, the contents of plaint are assumed to be correct and it will be rejected if it is shown that the plaint on its face is barred by the law of limitation. The plaint, on its face does not show that it is barred by limitation law.

As regards the last arguments of the learned counsel for the Defendant No. 1 that the plaintiff has no cause of action for the suit, it may be noted that the Agreement to Sell was made between the plaintiff and Defendant No. 1 in respect of housing scheme of Gulshan-e-Rumi on land besides other survey numbers including survey Nos. 108, 109 and 110 in Deh Safooran, Taluka and District Karachi East. Second recital of the agreements provide that the Defendant No. 1 has agreed to sell, transfer, convey and assign to the plaintiff a total area of 115975 square yards partly from the said survey numbers for development and construction of approximately 950 residential plots of 120 and 133 square yards at an agreed sale consideration to be calculated at the rate of Rs.750 per square yard each inclusive of all development charges together with tight, title and interest with full vacant possession, free from all encumbrances. Developing charges is defined in clause (b) of this recital with is as follows :--

(b) The agreed Sale consideration to be calculated at the rate of Rs.750 per each square yard of the said Land shall also be inclusive of all the internal development charges such as construction and carpeting of Roads as per approved Layout Plan, separate approved Plans from the concerned authorities with all required N.O.C.'s together with approval of their Residential status under the said Housing Scheme, permission/N.O.C. for sale and allotment of the said plots to the individual allottees including the permission/N.O.C. for construction in respect of the plots involved in the said Land from the concerned authorities of the Cantonment Board and from all other concerned Governmental Authorities."

Clause (2) of the agreement shows payment of Rs. 10,000,000 as partial payment towards consideration and further two payments of Rs.2,500,000 in two instalments of 30 days and 60 days respectively from the date of agreement. Clause-3 contains schedule on earn and pay basis and it provides that 65 % out of the amount to be recovered by the plaintiff on account of sale proceeds of 950 residential plots from prospective purchasers shall be invested by the plaintiff upon construction of model bungalows, bungalows on account of development and on other construction work and payment to the Defendant No. 1 of 25% out of the amount recovered by the plaintiff from the perspective purchaser for adjustment of full and final consideration of the land and the rest 10% will be retained by the plaintiff against investment in the housing scheme. By clause-4 Defendant No. 1 covenants with the plaintiff that the lease in respect of the land of 950 residential plots under sale is in full force, valid and subsisting and that the Defendant No. 1 has full power and lawful authority to sell, transfer, convey and assign the said land to the plaintiff in the manner done by the agreement. By clause-5 Defendant No. 1 covenants with the plaintiff that it has paid all assessment, taxes, cesses and development charges, ground rents etc, till the delivery of vacant possession. By clause-7 defendant covenants with the plaintiff that it shall do or cause to be done all lawful acts, deeds and things for better selling and perfectly assigning the said land unto the plaintiff free from all encumbrances and that the Defendant No. 1 shall execute an Irrevocable General Power of Attorney in favour of the plaintiff or his nominee containing all the powers and authorities for booking and selling of the said plots to individual sub-lessees, to handover sub leases, to get publication or advertisement for sale, recover sale proceeds, to get construct house on 950 plots, to deliver physical possession thereof to perspective purchaser, to sign, execute and admit execution of sublease deeds of the said plots in favour of individual allottees and sub-lessees. By clause-8 Defendant No. 1 has delivered full vacant possession of the land to the plaintiff with stipulation that now the plaintiff is fully and legally entitled to get the plots  sold to the perspective purchase of its own choice either under old or new name of housing scheme and to recover sale proceeds there-from without any concern whatsoever of the Defendant No. 1. By clause (9) the Defendant No. 1 has covenanted with the plaintiff that it shall sign, execute and issue allotment letters and possession letters of 950 residential plots of the said land in favour of the newly established partnership firm namely Messrs G.M. Developers Karachi. In clause (10) the Defendant No. 1 covenanted that it will demolish the entire boundary wall at their own cost and expenses and by Clause-11, the agreement has been made irrevocable and binding upon the parties, their heirs, successors, executors, administrators and assignees.

The grievance of the plaintiff is that the obligation of obtaining approval of lay out plan of 685 units/bungalow, N.O.C. for sale of 218 units/bungalows was of the Defendant No. 1. It is also complained that the Defendant No. 1 failed to get demarcation of the boundary wall and internal development as per agreement that of laying carpeting of roads and separate approved plan of residential plots. On the perusal of the agreement as noted above, all the items on which grievance has been raised by the plaintiff were to be undertaken by the plaintiff itself and none by the Defendant No. 1. This is clear from reading of second recital and moreso by its sub-para, (b) and clause (3) of the agreement. Although heading of the agreement mentions it to be an Agreement to Sell but its reading shows that it is not so but is a complete conveyance of the land by the Defendant No. 1 to the plaintiff with giving of Irrevocable General Power Attorney for selling of the plots and recovery of sale proceeds and making of sub leases in favour of the prospective purchaser. To the extent what is read from the agreement itself and complaints made in the plaint, there seems to be no cause of action for filing of the suit by the plaintiff.

The other very interesting feature of the case is that though the agreement shows selling of 950 residential plots but their exact location is mentioned to be partly on survey Nos.108, 109 and 110 in Deh Safooran, Taluka & District East, Karachi. Where the remaining part of the land is situated, the agreement is altogether silent. Except for there being a covenant from the side of the Defendant No. 1 that it has a subsisting lease of the land, no particulars or details are given about purported lease as to from whom it is obtained, what is its date, its nature, right given under it and to what specific land it relates. The agreement and the plaint are altogether silent on this aspect of the matter. Where a document which in the present case is Agreement to Sell  purports  to have conveyed the land of 950 plots by these Defendant No. 1 to the plaintiff, it has to mention full particulars and details of the lease. Even copy of purported lease is not attached with the plaint nor is available on record which will lead to only inference that there is no existence of lease of the suit land.

Despite above failings patent on the record, the defendants Nos.3 & 5 who are respectively Mukhtiarkar, District Malir and Province of Sindh through Secretary Land Utilization have filed written statement, which is signed and verified by one Iqbal Ahmed son of Muhammad Umar without mentioning his designation and in para, (e) under the heading of preliminary objection it contains as follows:

"(e) That entries in favour of defendants Nos. 1 and 2 were kept on the basis of registered sale deed but so far no proof is filed to establish that the sellers and defendants Nos. 1 and 2 possessed any marketable title."

Now, what one can make out of what is purported to be pleaded in this paragraph of the written statement. In the first place it says that entries in favour of defendants Nos. 1 & 2 were kept on the basis of registered sale deed and in the second place it says that no proof is filed to establish that sellers and defendants Nos. 1 & 2 possessed any marketable title. These are totally destructive and inconsistent pleas, which are irreconcilable and seem to have been made only to facilitate wrong doing by defendants Nos.3 & 5. It has introduced facts which are altogether not pleaded in the plaint nor mentioned in the agreement itself. This appears to be totally dubious plea. The Secretary Land Utilization Department, Government of Sindh is directed to enquire into and file complaint against the said Iqbal Ahmed son of Muhammad Umar in the Anti Corruption Court and at the same time take disciplinary action and suspend him. A report of action taken be transmitted to MIT of this Court within a period of two months. A copy of this order be sent to Secretary Land Utilization Department, Government of Sindh for making compliance. A copy of this order be also transmitted to MIT for keeping track of the matter and in case its compliance is not made, he is directed to put up his reference to Court for taking of further action in there matter.

Resultantly, application under Order VII, Rule 11, C.P.C. is allowed. Plant is rejected and all other applications are disposed of.

(R.A.)      Order accordingly.

Local Commission after Preliminary Decree

PLJ 2012 Lahore 511

Present: Muhammad Khalid Mehmood Khan, J.

REHMAT ALI--Appellant

versus

Mst. RABIA BEGUM and 10 others--Respondents

R.S.A. No. 89 of 2000, heard on 28.4.2010.

Rendition of Account--

----Local commission was appointed in terms of preliminary decree--Objections against but withdrew--Blunt statement of counsel for accepting report of local commission--No objection against the final decree according to report of local commission be passed--Question of--Whether counsel was authorized to record statement--Fresh instructions for challenging the report were issued--Terms and conditions of Wakalat Nama--Validity--When local commissioner submitted the report, appellant must have consulted the same with counsel and appellant might be under his legal advise has decided to raise objections against report of local commission--Withdrawal of objection mean the appellant is taking liability of loss suffered after death of predeceased was admittedly for the period when respondents were conducting the business--Not given instructions to his counsel to withdraw the objections against report of local commissioner and the appellate Court has declined to interfere on the ground that there is no specific allegation of lack of authority on part of appellant against counsel--Withdrawal of objections is collusive malafide and without authority--Case was remanded to trial Court with direction to file an application challenging authority of statement of counsel in light of grounds of appeal.       [Pp. 515 & 516] A, C, D & F

Relationship of Counsel and Client--

----Recording of statement the counsel under instructions of appellant--Validity--Relationship of counsel and client is a privileged relationship and counsel is morally and legally bound to act on instructions of his or her client.    [P. 515] B

Non-existent Partnership--

----Partnership on day of death and suffered loss--Partnership on day of death become non-existent and trial Court come to conclusion that there was no partnership between the parties and dismissed suit to that extent--Validity--After finding of trial Court that no partnership exist between the parties, trial Court was bound to adjudicate issue of liability of loss recoverable from estate of deceased occurred after his death. [P. 516] E

1994 SCMR 1248, rel.

Mr. Tariq Masood, Advocate for Appellant.

Mian Abdul Hayee, Advocate for Respondents.

Date of hearing: 28.4.2010.

Judgment

This second appeal has been preferred against judgment and decree passed by the learned Addl. District Judge Sialkot on 11.4.2000 and judgment and decree dated 11.2.1999 passed by learned Civil Judge Sialkot.

2.  Briefly stated the facts of the case are that on 2.7.1995, the appellant filed a suit for rendition of accounts claiming that he and his brother Muhammad Ali (since deceased) were doing business in partnership jointly of Iron Rods and T.R. Their share of profit and loss was equal. The investment of both the partners in the business was Rs. 5,00,000/-. His brother Muhammad Ali died on 9.4.1993 and after his death the Respondents No. 1 and 2 took over the charge of business. He further claimed that after the death of Muhammad Ali the Respondents No. 1 to 3 and appellant are his legal heirs. He adds that he is not responsible for the loss caused by the respondents after the death of Muhammad Ali. The Respondents No. 1 and 2 have refused to render the accounts and as such a decree of rendition of accounts be passed.

3.  The Respondents No. 1 and 2 contested the suit and the learned trial Court framed the following issues:--

"ISSUES.

1.         Whether the plaintiffs have got no cause of action and locus standi to file the present suit?OPD

2.         Whether the suit is bad for mis-joinder of parties?OPD

3.         Whether the Plaintiff No. 2 is not widow of Muhammad Ali as Muhammad Ali deceased has already divorced to Plaintiff No. 2 during his life time?OPD

4.         Whether the plaintiffs have estopped by their words and conduct to file the present suit?OPD

5.         Whether the plaint is liable to be rejected U/S. 7 Rule 11 CPC? OPD

6.         Whether the suit is false, frivolous and base less and the defendants are entitled to special costs U/S. 35-A CPC? OPD

7.         Whether the plaintiffs are entitled to decree of rendition of accounts as prayed for? OPP

8.         Relief.

4.  After recording evidence of both the parties the learned Civil Court passed preliminary decree on 10.5.1999 and appointed Rao Muhammad Pervaiz Advocate Sialkot as local commission with the direction to take possession of the books of accounts and submit detailed report about the assets, liability, profit and loss of the business. However, the suit to the extent of claim of partnership was dismissed. The preliminary decree dated 19.5.1997 was assailed through an appeal which was dismissed on 6.12.1997. The local commission submitted his report on 21.1.1998. The appellant filed objections to the report of local commission and finally on 7.2.1998 the learned counsel for the appellant recorded his statement and accepted the report of local commission. In terms of statement of learned counsel for the appellant dated 7.2.1998, the learned trial Court passed final decree vide judgment and decree dated 11.2.1999.

5.  The appellant assailed the judgment and decree through an appeal which was dismissed on 11.4.2000.

6.  Learned counsel for the appellants submits that their counsel was not authorized to withdraw the objections raised against the report of local commission. His authority was restricted to the extent that he has to prosecute the objections filed against the report of local commission, he was never authorized nor any instructions were passed on to him for the withdrawal of objections and as such the preliminary and final decrees dated 11.2.1999 and 11.4.2000 are against law and facts. He further submits that learned Courts below have wrongly accepted the report of local commission to the effect that after the death of Muhammad Ali Respondents No. 1 and 2 have illegally conducted the business and loss caused by these respondents cannot be charged against the estate of deceased.

7.  Learned counsel for the respondents submits that the local commission has submitted his report in terms of his reference. The withdrawal of the objections raised by the appellant by his counsel is binding on the appellant, the final decree was passed by the learned Courts bellow is perfectly in accordance with law, the case was adjourned six times after the withdrawal of objections against the report of local commission but the appellant never objected about the statement recorded on 7.12.1998. He submits that if the appellant is dis-satisfied that his counsel has not acted under his instructions, he has the right to sue his counsel and to recover damages if any. He relied onNoor Muhammad and others Vs. Muhammad Siddique and others (1994 SCMR 1248).

8.  Arguments heard. Record perused.

9.  It is a matter of record that Rao Muhammad Pervaiz Advocate was appointed a local commission in terms of preliminary decree dated 10.6.1997 passed by the learned Civil Court. The learned local commission submitted his report on 21.1.1998. Appellants raised objections there against but withdrew the same vide statement dated 17.12.1998, it is also a matter of record that after recording the statement of appellant's counsel the case continued to adjourn from 7.12.1998 to 11.2.1999 but the appellant has not objected the statement of his counsel. The argument of learned counsel for the respondent that counsel of appellant has recorded the statement under his instructions is concerned, the record shows that on the day when the counsel of the appellant made statement appellant was not present in Court. Learned counsel while recording his statement has not mentioned that he is recording the statement under instructions of appellant. On 7.12.1998 appellant learned counsel made the following statement:--

10.  Perusal of statement of learned counsel shows that it is no where mentioned that he is recording statement under the instructions of the appellant, rather, it is a blunt statement of learned counsel for the appellant, whereby he frankly conceded that he accepts the report of local commission dated 21.1.1998. He has no objection there against and the final decree according to the report of local commission be passed. The question arose whether the counsel for the appellant was authorized to record this statement or not? The appellant has executed power of attorney in favour of his counsel. A preliminary decree was passed and local commission was appointed, the local commission submitted his report,   the   counsel   for   the   appellant   filed   objections   under   the instructions of appellant as the appellants were not satisfied about the report of local commission. This means that appellant issued fresh instructions to his counsel for challenging the report and objections were filed and as such these objections were under the specific instructions of the appellant. If the counsel for the appellant wants to withdraw the objections, he was bound to obtain fresh instructions from the appellant, as this was not a routine matter covered under the terms and conditions of power of attorney (Wakalat Nama). When the local commission submitted the report, the appellant must have consulted the same with their counsel and the appellant may be under his legal advise has decided to raise objections against the report of local commission. The withdrawal of objection mean the appellant is taking a liability of loss suffered after the death of Muhammad Ali, which was admittedly for the period when Respondents No. 1 and 2 were conducting the business. The other possibility may be that parties were agreed to settle the dispute as is argued by learned counsel of the respondents. The statement recorded by the counsel for the appellant shows that appellant was not present in Court. Further while recording the statement the counsel of the appellant has not mentioned that he is recording the statement under the instructions of appellant. The relationship of counsel and client is a privileged relationship and the counsel is morally and legally bound to act on the instructions of his or her client. In this case the matter is otherwise. The appellant is claiming that he has not given instructions to his counsel to withdraw the objections against the report of local commission and the appellate Court has declined to interfere on the ground there is no specific allegation of lack of authority on the part of appellant against the counsel. The grounds of appeal before the first appellate Court shows that appellant has specifically alleged against his counsel that withdrawal of objections is collusive, malafide and without authority. As far as the objections of respondent that after recording the statement of their counsel the case remained pending upto 11.2.1999 but no objection was raised by the appellant is concerned, nothing is available on record showing that the statement of withdrawal was in the knowledge of the appellant. The allegation of appellants against his counsel required to be proved on record, it is factual controversy whether the appellant has passed on instructions to his counsel authorizing him to withdraw the objections, in these circumstances learned appellate Court was bound to probe the actual facts either himself or through learned trial Court.

11.  Other argument of learned counsel for the appellant is also convincing when he submits that even if for the sake of arguments if it is admitted that counsel for the appellant has withdrawn the objections against the report of local commission even then the Court was bound to pass a decree according to the report of local commission. The report of local commission shows that Respondents No. 1 and 2 were conducting the business after the death of Muhammad Ali and suffered loss, the learned trial Court was bound to give verdict that the said loss is payable by whom. The partnership on the day of death of Muhammad Ali become non-existent and the learned trial Court further itself come to the conclusion that there was no partnership between the parties and dismissed the suit to that extent. After the finding of learned trial Court that no partnership exist between the parties the learned trial Court was bound to adjudicate the issue of liability of loss recoverable from the estate of deceased occurred after his death. The learned Courts below have not examined this aspect of the case and passed the decree without deciding the controversy between the parties. Learned counsel for the respondent has placed reliance on Noor Muhammad and others Vs. Muhammad Siddique and others (1994 SCMR 1248). The facts of this case are different from the present case. In this case the defendant made an offer to plaintiff in a suit for pre-emption that if plaintiff pays the amount mentioned in the sale deed, he has no objection for passing a decree. There was a dispute between the parties about the sale price, the plaintiff was claiming sale price Rs.27,420/- and the defendant was claiming Rs.38,125/- meaning thereby the defendant was gaining some thing out of his statement, but in the present case the appellant is losing every right and is accepting liability. So the facts of this judgment are distinguishable.

12.  As there was serious allegation of appellant against his counsel it was obligatory on the Court below to call reply of learned counsel for the appellant and to record his statement to confirm or deny the allegations of appellant, but the learned Courts below has not examined this legal aspect of the case.

13.  In view of above, I have no hesitation to hold that the allegations of appellant have not been redressed or attended to by the learned Courts below while deciding the appeal and suit. In view of the above, I hereby set aside the judgment and decree of the learned appellate Court as well as the learned trial Court and remand the case to the learned trial Court with the direction that he will frame the issue on their allegations against their counsel and will record the evidence of the parties and will decide the case on merits. The trial Court will allow the appellant to file an application challenging the authority of statement of their counsel in the light of the grounds of appeal and will call reply from the respondent. This is an old case, the learned trial Court will decide the suit within six months from the date of receipt of this order.

(R.A.)  Case remanded