P L D 1998 Lahore 503
(a) Civil Procedure Code (V of 1908)--
----S. 106 & O.XLIII, R.1(i)---Value of the suit was Rs.21,00,000---Order of the Executing Court being appealable in view of provision of O.XLIII, RA(i); appeal against the order of Executing Court was to be filed in the High Court and not in the District Court in view of 5.106, C.P.C.
(b) Civil Procedure Code (V of 1908)--
----S. 115---Revision---Suo motu revisional jurisdiction, exercise of---Litigation was going on for the last 10 years and litigation was of the type which could give bad name to the judicial system---High Court, in circumstances, set aside the order of the Additional District Judge in exercise of suo motu revisional jurisdiction and treated the appeal before it as an appeal against the order of Executing Court wherein application under O.XXI, R.34, C.P.C. was rejected.
Manzoor-ul-Haq and 3 others v. Mst. Kaneez Begum 1993 CLC 109 ref,
(c) Limitation Act (IX of 1908)--
----S. 14---Both the parties had been labouring under a wrong impression that appeal before the District Judge was competent---Appellant, in circumstances, would be entitled to benefit of S.14, Limitation Act, 1908.
Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 rel.
(d) Administration of justice--
----Technicalities---Impact---All laws and procedures are aimed at just decisions of the disputes of litigants---Technicalities unless unsurmountable should not be a stumbling block in the administration of justice.
Civil Revision No.474 of 1995, decided on 6th July, 1995 ref.
(e) Civil Procedure Code (V of 1908)--
----S. 2(2) & O.XXIII, R.3---Decree---Compromise decree---Execution---Locus standi to file application for execution of decree---Neither appellant nor one of the respondents came forward in terms of the compromise to get the sale-deed executed and registered, therefore, they had no locus standi to file application for execution.
(f) Limitation Act (IX of 1908)--
----Art. 181---Execution of decree---Limitation---Decree was passed on 24-11-1990 while the execution petition was filed on 19-1-1994---Limitation under Art.181, Limitation Act, 1908 being three years, even if there was a subsisting decree the same was not executable on account of bar of limitation.
(g) Civil Procedure Code (V of 1908)--
----S. 2(2) & O.XXIII, R.3---Decree---Compromise decree ---Limitation--Compromise decree had the clause to the effect that one of the respondents was to make the payment within three months of the decree and on failure of said respondent to make the payment, his nominees were allowed a period of another three months to have the sale-deed of respective property and registered in their favour---Appellant or their predecessor never invoked the said clause of decree---Held, decree being a conditional decree, after expiry of prescribed period the same became unexecutable.
Synthetic Chemicals Company Ltd.'s case PLD 1988 Kar. 429 ref.
(h) Civil Procedure Code (V of 1908)--
----S. 2(2) & O.XXIII, R.3---Decree---Consent decree---Such decree cannot be changed or altered unilaterally and without the consent of the other side, particularly when same relates to material consideration and conditions.
Civil Appeal No.385 of 1992, decided on 20th October, 1993 fol.
Province of the Punjab v. Ch. Nazir Hussain PLD 1956 (W.P.) Lah. 556; Hedayatullah and others v. Ghulam Sarwar and others 1993 CLC 1524; Synthetic Chemicals Company Ltd. PLD 1988 Kar. 429; Ali Muhammad Brohi v. Haji Muhammad Hashim PLD 1983 Kar. 527; Saat Malook v. Rozi Khan 1979 SCMR 593; Shamasuddin and others v. The Rainbow Dyeing and Printing 1986 SCMR 295; Sh. Fazal Elahi & Co. v. Abdul Haleem Khan 1988 SCMR 16; Manzoor-ul-Haq and 3 others v. Mst. Kaneez Begum 1993 CLC 109; Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 and C.R. No.474 of 1995, decided on 6-7-1995 ref.
Taki Ahmad Khan for Appellant.
M.A. Hayee Khan for Respondents
P L D 1998 Lahore 503
Before Ihsan-ul-Haq Chaudhry, J
Begum RASHIDA NAWAZ---Appellant
versus
Ch. MUHAMMAD AMIN and 3 others -Respondents
First Appeal from Order No.90 of 1997, decided on 6th April, 1998
ORDER
This case has chequered history. The facts relevant for the decision of the present appeal are that respondent No.2 was owner of land 223 Kanals and 6 Marlas. He agreed to sell the same to respondent No. l through agreement dated 28-3-1984. The said respondent in his turn agreed to sell part of the aforementioned land measuring 13 Kanals, 10 Marlas vide agreement dated 6-4-1985 in favour of one Aslam Cheema, who further agreed through agreement to sell the land to respondent No.3. The agreement did not. mature, therefore, respondent No.3 filed a suit for specific performance. This suit was contested by respondents No. l and 2. The trial Court ultimately dismissed the same vide judgment and decree dated 28-1-1990. Respondent No.3 filed R.F.A. No.70 of 1990 in this Court. The appellant made a statement on oath on 24-11-1990, according to which he claimed only land measuring 4 Kanals, 2 Marlas, 64 square feet, the site of 22 Flats being constructed by him. The appellant was to make the payment of this piece of the land at the rate of Rs.1,30,000 within three months and get sale-deed executed and registered in his favour. This also included 12 Marlas, 40 square feet under the roads and in case of his failure the sites were to be sold in favour of his nominees within next three months and in case of their failure also respondents Nos. l and 2 were at liberty to deal with it. The respondents Nos. l and 2 accepted. The order was assailed through appeal in the Court of District Judge. The same was, however, dismissed vide order dated 12-12-1996 for failure of the appellant to furnish process fee. Thereafter the appellant moved application under Order XLI, Rule 19, C.P.C., which was dismissed by the learned Addl. District Judge vide order dated 8-4-1997 which was assailed through the present appeal. The same came up for limine hearing on 19-5-1997 before my learned brother Saeed-urRehman Farrukh, J. when the learned counsel sought adjournment to produce further documents. The appeal was then listed on 29-5-1997 when preadmission notice was issued to the respondents. The appeal then came up for hearing on 6-2-1998 when it was noticed that my learned brother Saeed-urRehman Farrukh, J. had remained counsel of Muhammad Nawaz in R.F.A. No.70 of 1990, therefore, it was ordered to be placed before another Bench. Thereafter, it was fixed before me.
2. The learned counsel for the appellant argued that the appeal was earlier fixed for 24-11-1996 before Additional District Judge when it was adjourned to 12-12-1996 but no time was fixed in the order for furnishing of process fee, therefore, the appeal could not be dismissed on 12-12-1996 for failure of the appellant to furnish costs. In this behalf, the learned counsel has referred to Order XLI, Rule 18, C.P.C. and relied on the judgments in the cases of The
Province of the Punjab v. Ch. Nazir Hussain (PLD 1956 (W.P.) Lahore 556) and Hedayatullah and others v. Ghulam Sarwar and others (1993 CLC 1524). It was added that earlier process fee had not been consumed, therefore, the process should have been issued against the same and non-furnishing of process fee for 12-12-1996 was of no legal consequence. In the alternate it was argued that- the learned Additional District Judge while rejecting the application of the appellant under Order, XLI, Rule 19, C.P.C. seems to be not conscious that he has discretion in the matter, therefore, order dated 8-4-1997 is bad in law.
3. On the other hand, Mr.M.A. Hayee Khan, Advocate appearing for respondents Nos.l and 2 argued that appeal was filed on 30-10-1995 and there were fourteen adjournments out of which on 10 dates process fee was not furnished. The purpose was just to delay the adjudication of the appeal. It was argued that the learned Appellate Court has not dismissed the appeal on the ground that process fee was not deposited by a particular date but for the reason that the process fee was not furnished at all. It was added that for exercise of discretion under Rule 19 of Order XLI, C.P.C., the appellant has to show ,sufficient cause, which was altogether lacking in the present case, therefore, the order of the learned Additional District Judge dismissing the application under Order XLI, Rule 19 was fully justified.
On merits it was argued that the appellant has no locus standi to file application under Order XXI, Rule 34, .C.P.C. before the executing Court because she was neither decree-holder nor his nominee. She is simply claiming through Yasmin Shahid, who was also not nominee of Muhammad Nawaz. It was added that she in fact only claiming on behalf of Muhammad Nawaz respondent No.3. The said Nawaz has the option to pay the price as per compromise decree dated 24-11-1990 by 23-2-1991 but failed to pay the price within time, therefore, his right came to an end and thereafter his nominees who could exercise the same option within next three months, also failed. It was argued that there is no privity of contract between the appellant and respondents Nos. l and 2, therefore, neither she was entitled to benefit of the compromise decree nor had locus standi to make application for its execution. It was argued that in any case application dated 19-1-1994 for execution of decree dated 24-11-1990 was barred by limitation in view of the provisions of Article 181 of Limitation Act. The legal argument was that the time fixed in a decree for the purpose of its performance cannot be extended. In this behalf, reference is made to Synthetic Chemicals Company Ltd. (PLD 1988 Karachi 429), Ali Muhammad Brohi v. Haji Muhammad Hashim (PLD 1983 Karachi 527), Saat Malook v. Rozi Khan (1979 SCMR 593) and Shamasuddin and others v. The Rainbow Dyeing and Printing'(1986 SCMR 295).
?4. The learned counsel for the appellant while summing up the arguments argued that neither the appellant nor Mst. Yasmin Shahid, her predecessor, were party to the suit for specific performance and other litigation following from that suit. Therefore, the appellant was not at all aware of the compromise and there was no question of her coming forward, making the payment, getting sale-deed executed and registered by respondents Nos. l and 2. It was argued that since the nominees were not taken into confidence by Muhammad Nawaz, therefore, they remained ignorant. The appellant being not party to earlier litigation, therefore, not bound by the judgment. In this behalf, reference is made to Sh.Fazal Elati & Co. v. Abdul Haleem Khan (1988 SCMR 16). It was argued that the application in the executing Court was competent and was wrongly and illegally dismissed. It was, however, admitted that list of nominees was to be provided within a fortnight and the same was not furnished by respondent No. 3, Muhammad Nawaz.
5. I have given my anxious consideration to the arguments, gone through the record, relevant provisions of law and precedents. While going through the record it transpired that the value of the original suit, as evident from file of R.F.A. No.70 of 1990, was Rs.21,00,000. The order of the executing Court was appealable in view of the provisions of Order XLIII, Rule 1(i), C.P.C., therefore, in view of the provisions of section 106, C.P.C. the appeal against the order dated 27-6-1995 was to be filed in this Court and not in the District Court. The appeal so filed was incompetent. At this juncture I decided to hear the learned counsel for the parties on this point, therefore, the appeal was relisted. The learned counsel have appeared when they were confronted with the legal position, they candidly and frankly conceded that the appeal before the Additional District Judge was not competent. This litigation is going on for the last 10 years as noted in the opening paragraph of this judgment and it is this type of litigation which brings a bad name to the judicial system. In this background, it was proposed to set aside the order of Additional District Judge in exercise of suo motu revisional jurisdiction and to treat the present appeal against the order dated 27-6-1995 passed by the executing Court. This is permissible and in this behalf reference can be made to Manzoor-ul-Haq and 3 others v. Mst.Kaneez Begum (1993 CLC 109). The learned counsel for the appellant had no objection while the learned counsel for the respondents tried to argue that this appeal would be hopelessly time-barred but when he was confronted with the fact that both the parties were labouring under the impression that the appeal before the District Judge was competent, therefore, the appellant would be entitled to benefit of section 14 of.the Limitation Act. The learned counsel then candidly submitted that he has no objection to the appeal being treated as direct against the order of executing Court especially in view of the fact, that the arguments have already been heard on merits. He referred to Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 584).
All laws and procedures are aimed at just decisions of the disputes of the litigants. The technicalities until surmountable should not be a stumbling block in the administration of justice, suffice it is to refer hereto the judgment in Criminal Revision 474 of 1995 decided on 6-7-1995. The relevant para. reads as under: -
?"6 . The object of the codified law is that a cunning and influential litigant should not be allowed to get away with illegal gains. It is the cardinal principle of interpretation of statutes that it shall advance remedy and suppress mischief. Conversely speaking, rules and procedures are not to be used as stumbling blocks in the process of justice. In this behalf reference can be made to Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678), M.Shahid Saigol and 16 others v. M/s. Kohinoor Mills Ltd. and 7 others (PLD 1995 Lahore 264), Fisher v. Hervey (9 Colo. 16); Backer v. Amos (Fla) 141 So. 136); Haskel v. Burlington, (30 Lowa 232); Shea v. Peters (230 Mass. 197, 119 N.E. 746); State v. Pubic Service Commission (Mo.) 34 S.W. (2) 27); Carley v. Liberty Hat Mfg. Co. (81 N.J.L. 502, 79 Atl. 447); State v. Lipkin (169 N.C. 265, 84 S.E. 340); Wright v. Barber (270 Pa. 186, 113 Atl. 200) State v. Pullen (R.1) 192 Atl. 473); Baumann v. West Allis, (187 Wis. 506, 264 N.W: 907); Amos v. Conkling 99 Fla. 206, 126 So. 283); Inabinet v. Royal Exchange Assur. Co. (SC) 162 S.E. 599); and Kitts v. Kitts
?(136 Tenn, 314, 189 SW 375)? "
6. The appellant moved this application under Order XXI, Rule 34, C. P. C. The same was resisted by the respondents Nos. l and 2. The Executing Court after hearing the arguments dismissed the same vide order dated 27-6-1995. The foremost question for decision is whether there was an executable decree in favour of the appellant. The admitted position is that the litigation in the suit for specific performance came to an end. with the compromise dated 24-11-1990 recorded in R.F.A. No.70 of 1990 filed by Muhammad Nawaz, respondent No.3. The appeal was disposed of in the following terms:
"(1) the appellant undertook to supply full particulars of his nominees to? Ch.Muhammad Amin in writing within a fortnight of the order;
(2) to pay the price of 4 Kanals, 2 Marlas and 64 square feet of land to Ch.Muhammad Amin at the rate of Rs.1,30,000 per Kanal within a period of three months. This area included an area of 12 marlas and 40 square feet utilized for the roads. However, the sale deed was to be executed by Ch.Rehmat Ali and Ch. Muhammad Amin ,and registered in respect of 3 Kanals, 10 Marlas and 24 square feet only;
(3) , the sale deed was to be executed by then in favour of the appellant or his nominees within the specified period of three months;
(4) in case appellant failed to pay the price of these plots to Ch.Muhammad Amin- within the specified period his nominees would have a right to have the sale-deeds of their respective plots executed and registered in their favour within a further period of three months; and
(5) in case the appellant or his nominee failed to have the sale deed executed within the above period of six months, the appellant and his nominee will lose all rights in that nominee's land."
It is relevant to record here that respondent No.3 without securing an agreement to sell from respondents Nos. l and 2 and before the sale in his favour proceeded to start construction of flats on area of about 4 Kanals, 2 Marlas and 64 square feet. He pleaded that he had already further agreed to sell these flats to different persons, therefore, it was agreed that he would supply full particulars of his nominees. This was admittedly not done by him. The appellant or others have no privity of contract or independent right or connection with respondents Nos. l and 2. It seems that the respondents Nos. l and 2 in order to cut-short the litigation agreed to accommodate them otherwise neither they were under any legal obligation nor respondents Nos. l and 2 had any dealing with respondent No.3, even otherwise the persons having agreed with respondent No.3 to purchase flats were not entitled to any relief because they entered into such agreement with respondent No.3 knowing that he was not the owner of the site. Be that as it may, it is clear from the file of R.F.A. No.70 of 1990 that some of the persons were pursuing litigation between respondent No.3 and respondents Nos. l and 2. The result was that they got the sale-deeds executed by respondents Nos. l and 2 and registered in their favour in terms of the compromise decree. Neither the appellant nor respondent No.3 came forward in terms of the compromise to get the sale deed executed and registered, therefore, they had no locus standi to file application for execution.
7. Now coming to the limitation. The decree is dated 24-11-1990. The execution petition was filed on 19-1-1994 while the limitation under Article 181 of the Limitation Act is three years, therefore, even if there was a subsisting decree the same was not executable on account of bar of limitation
8. Mr. M.A. Hayee Khan, Advocate argued that the time legally fixed in the compromise decree could not be extended by implication even. It is clear from the compromise decree that respondent No.3 was to make the payment at the rate of Rs.1,30,000 per Kanal within three months of the decree and get the sale-deed executed and registered in respect of 3 Kanals, 10 Marlas and 24 square feet. On failure of respondent No.3 to make the payment, as mentioned above, his nominees were to be allowed a period of another three months to have the sale deed of respective plots executed and registered in their favour. The appellant or predecessor never invoked this clause, therefore, this being a conditional decree after the expiry of period the same became unexecutable. The learned counsel for the contesting respondents has rightly referred to the judgments in the cases of Synthetic Chemicals Company Ltd., Ali Muhammad Brohi, Saat Malook and Sharnasuddin and others (supra)
This is made clear in clause (5) of the compromise recorded by this Court and noted above. This is not all. There is nothing on record to show that respondent No.3 ever nominated the appellant. The argument advanced on behalf of the appellant that since neither the appellant nor her predecessor were party to the suit, therefore, they were not bound by the compromise between respondent No. 3 and respondents Nos. l and 2. This argument is directly in conflict with the right claimed in this appeal and it directly lends support to my findings recorded in the middle of para. 6 of this judgment.
9. The controversy is fully covered by the judgment of the Hon'ble Supreme Court in Civil Appeal No.385 of 1992 decided on 20th October, 1993. The relevant portion of the same reads as under:-
?"4? A perusal of the entire record shows that the appellant was seeking to execute a consent decree in which all particulars and details including the rate at which land was to be sold, the area of the land and the time for payment of price as well as for execution of sale-deed were provided. In spite of such clear and unambiguous terms recorded the appellant submitted a sale deed which was completely contrary to the agreement. Furthermore, the payment made by the appellant was also not in accordance with the agreement as it ought to have been made to Ch. Muhammad Amin.
At the end it was held as under:-
"4 . ... ... ... A consent decree cannot be changed or altered unilaterally and without the consent of the other side, particularly when it relates to material consideration and conditions. Both the Courts below were therefore justified in refusing -to grant execution of the decree."
The order of the learned executing Court is legally sound and fully justified by the facts on record. The appellant has failed to make out a case for interference.
10. The upshot of the above discussion is that there is no merit in this appeal. The same is dismissed in limine.
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