---Art. 185(2)--Appeal before DDOR for cancellation of sale-deed--Allowed--Order for cancellation of sale-deed--

 PLJ 2021 SC 233

Constitution of Pakistan, 1973--

----Art. 185(2)--Appeal before DDOR for cancellation of sale-deed--Allowed--Order for cancellation of sale-deed--Appeal--Rejected--Suit against order for cancellation of sale-deed--Decreed--Appeal--Dismissed--Revision petition--Allowed--Concurrent findings were reversed--Powers of revenue authorities--Bona fide purchaser--Producing of witnesses by appellant--Proceedings before Revenue Officer or before Revenue Courts are summary in nature and, therefore, complicated questions of law and disputed question of fact are not to be adjudicated in hierarchy--DDO (R) transgressed his limits by declaring Mutation No. 4855 as having been obtained through fraud and misrepresentation--Two concurrent findings of fact not only negate facts on basis whereof DDO (R) had cancelled subject mutation but also destroyed plea of respondents that they were bona fide purchasers for valuable consideration without notice--Appellant, though it was not required of him, had not only produced one of witnesses of sale mutation but also produced Patwaris who had not only supported sale but also deposed that at relevant time Imam Bakhsh was perfectly in good physical and mental health--Once appellants have successfully proved that sale mutation in their favour was struck off by DDO (R) illegally without jurisdiction and that Respondents Nos. 2 to 9 had notice of such fact, then sale deed in their favour automatically has to give way to subject mutation--Appeal allowed.

                                                           [Pp. 235, 236 & 337] A, B, C & D

Mr. Ghulam Nabi, ASC for Appellants.

Malik Javed Akhtar Wains, ASC for Respondents Nos. 3-9.

Ex-Parte for LRs of Respondents Nos. 1 and 2.

Date of hearing: 15.12.2020.

 PLJ 2021 SC 233
[Appellate Jurisdiction]
Present: Umar Ata Bandial, Sajjad Ali Shah and Sayyed Mazahar Ali Akbar Naqvi, JJ
SARDAR MUHAMMAD and others--Appellants
versus
IMAM BAKHSH (DECEASED) through LRs and others--Respondents
C.A. No. 346 of 2020, decided on 15.12.2020.
(Against the judgment dated 14.1.2020 passed by the Lahore High Court, Multan Bench in C.R. No. 903-D of 2009)

Judgment

Sajjad Ali Shah, J.--This appeal arises from the judgment of the Lahore High Court whereby the said Court while reversing the concurrent findings of the Courts below, dismissed the suit filed by
the appellant against the respondents seeking setting aside of orders dated 26.3.2002 and 19.8.2003 passed by the Deputy District Officer (DDO) and Executive District Offer (Revenue) (EDO) respectively. Cancellation of registered sale deed dated 29.3.2002 executed by one Imam Bakhsh predecessor in interest of Respondent No. 1, in favour of predecessor in interest of Respondents Nos. 2 to 9 was also sought.

2. We are informed that the legal heirs of Respondent No. 1 and Respondent No. 2, in person, have refused to receive the notices. As a result, they are proceeded against ex parte.

3. Briefly, on 8.3.2002 Imam Bakhsh filed an appeal before the Deputy District Officer (Revenue) Lodhran seeking cancellation of sale Mutation No. 4855 dated 28.2.2002 effected in favour of appellants on the ground that it was procured through misrepresentation and fraud. The DDO (R) Lodhran, after hearing the parties, vide order dated 26.3.2002 cancelled the mutation by holding that Imam Bakhsh was an old and sick man from whom lying was not expected and, therefore, his contention that the mutation was obtained through misrepresentation and fraud is to be given due weight. The record further reflects that on 29.3.2002, merely three days after the cancellation of sale mutation in favour of appellant, the said Imam Bakhsh, through registered sale deed, conveyed the same property to Respondents Nos. 2 to 9. The appellant on 30.3.2002, challenged the said order of the DDO (R) before the Executive District Officer (Revenue) who vide order dated 19.8.2003 rejected the appeal on the ground that a registered sale deed could only be cancelled by a Court of competent jurisdiction. This gave rise to the present appellant to file a suit against the respondents challenging the order dated 26.3.2002 of DDO (R) and order dated 19.8.2003 of the EDO (R) along with seeking cancellation of the registered sale deed. The trial Court on 28.10.2008 decreed the suit as prayed for. Respondents Nos. 2 to 9 filed appeal which did not find favour with the appellate Court and was dismissed on 4.9.2009. The respondents thereafter filed a revision petition before the Lahore High Court which after hearing the parties, was allowed through the impugned judgment by setting aside the concurrent findings of the Courts below.

4. Learned counsel for the appellants while inviting our attention to Mutation No. 4855 (at page 83) contended that the said mutation was carried out in jalsa-e-aam in presence of two witnesses viz, Muhammad Akmal and Muhammad Nawaz which records unequivocal sale of the subject land in favour of the appellant by the respondent Imam Bakhsh against the sale consideration of
Rs. 1,20,000/- and such mutation could not have been cancelled by the DDO(R) on assumptions and presumptions. Per counsel since the record did not require any rectification, therefore, the jurisdiction, of the DDO (R) was not attracted. It was contended that the plea of fraud requires adjudication through evidence, a process which could not be adopted by the DDO (R) as proceedings before him are summary in nature. It was next contended that the findings of the learned High Court that the mutation was not effected in jalsa-e-aam are contrary to record. It was further contended that Imam Bakhsh never disputed the mutation entry but challenged it on the ground of fraud, therefore, the burden was upon Imam Bakhsh to prove the fraud, consequently, the appellants could not be non-suited by placing burden to prove the sale mutation. It was also contended that it is a settled law that the concurrent findings of fact are not to be interfered with by the High Court while exercising revisional jurisdiction and such principle was totally ignored.

5. On the other hand, learned. counsel for the respondents contends that the findings of the DDO (R) declaring the mutation Entry No. 4855 as procured through fraud and misrepresentation has attained finality and, therefore, at this juncture could not be interfered with. It was next contended that the respondents have purchased the subject land with clear title through a registered conveyance deed after the earlier sale mutation was cancelled and being bona fide purchasers, their sale deed was rightly restored by the High Court and such findings do not require any interference. It was lastly contended that the appellants have totally failed to prove the oral sale agreement which resulted Mutation No. 4855 and has further failed to bring into the witness box one of the attesting witness and the concerned Tehsildar who recorded the mutation entry.

6. We have heard the learned counsel for the respective parties and have minutely perused the record. The primary question which requires our attention is as to whether the DDO (R) had the power to strike off a sale mutation carried out in a jalsa-e-aam in the presence of witnesses on the ground that such sale was procured through misrepresentation and fraud and if the answer is in the negative, whether the subsequent sale deed in the peculiar circumstances of this case would fall to the ground. It has been repeatedly held, and the law itself provides that the proceedings before the Revenue Officer or before the Revenue Courts are summary in nature and, therefore, complicated questions of law and disputed question of fact are not to be adjudicated in the hierarchy. The determination of complicated questions of law and disputed questions of fact fall within the sole domain of the civil Court. The plea of the respondents that the mutation Entry No. 4855 was procured through fraud, in our opinion, could not have been decided in proceedings which are summary in nature as such controversy requires adjudication by allowing the parties to adduce evidence in support of their respective claims. There is no doubt in our minds that the DDO (R) transgressed his limits by declaring Mutation No. 4855 as having been obtained through fraud and misrepresentation.

7. The provisions of Section 172 of the West Pakistan Land Revenue Act, 1967 allocate certain matters to the sole competence of the Revenue authorities, to the exclusion of civil Courts. However, it must be noted that Section 172 only empowers Revenue authorities to exercise administrative powers; the raison d'etre for the same is that the proceedings conducted by a Revenue Officer or a Revenue Court are summary in nature; they possess a limited scope of enquiry and do not possess the characteristics of a civil suit that necessitates framing of the issues or recording evidence of the parties, as such matters fall within the sole domain of the civil Courts. Besides, section 172(2)(xvi) of the Act, 1967 leaves the adjudication of plea of fraud to the competence of the civil Courts. Resultantly, once the appellants have successfully proved that the sale mutation in their favour was struck off by DDO (R) illegally without jurisdiction and that the Respondents Nos. 2 to 9 before purchasing the subject property had notice of such fact, then the sale deed in their favour automatically has to give way to the subject mutation no sooner it is revived. Reference can be made to the case of Noor Muhammad v. Allah Ditta (PLD 2009 Supreme Court 198), Fida Hussain v. Abdul Aziz (PLD 2005 Supreme Court 343), Abad Muhammad (through LRs) v. Mst. Sakina and another (PLD 1987 Rev. 25) and Mst. Surraiya Bano v. Nazia Bano (1996 CLC 1690).

8. Additionally, the High Court against all the settled principles of law, has very lightly brushed aside the concurrent findings of the Courts below where it was specifically taken note of the fact that after three days of the cancellation of such mutation, the respondent Imam Bakhsh has sold out the property to the respondents coupled with the statement of DW-1 who categorically stated that when they purchased the subject land from Imam Bakhsh on 29.3.2002 through sale deed, he was hardly of 65 years, mentally fit, with the addition that his father in whose name the sale deed was executed by Imam Bakhsh had helped Imam Bakhsh in pursuing the appeal before the DDO (R) seeking cancellation of subject mutations in favour of appellants. Thus, the two concurrent findings of fact not only negate the facts on the basis whereof DDO (R) had cancelled the subject mutation but also destroyed the plea of the respondents that they were

bona fide purchasers for valuable consideration without notice. Our perusal of the record further clearly demonstrates that the appellant, though it was not required of him, had not only produced one of the witnesses of the sale mutation but also produced Muhammad Ajmal and Wahid Bakhsh Patwaris who had not only supported the sale but also deposed that at the relevant time Imam Bakhsh was perfectly in good physical and mental health. Consequently, once the appellants have successfully proved that the sale mutation in their favour was struck off by DDO (R) illegally without jurisdiction and that the Respondents Nos. 2 to 9 had notice of such fact, then the sale deed in their favour automatically has to give way to the subject mutation. However, it was open for Imam Bakhsh to question such mutation on the stated ground before a Court of original civil jurisdiction which could have competently decided such lis.

9. For what has been discussed above, this appeal is allowed by setting aside the impugned judgment of the High Court and restoring the judgments of the Courts below. No orders as to costs.

(Y.A.)  Appeal allowed

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Civil Revision is not maintainable after the amendment made in Section 115 CPC by the Province of Punjab by means of adding sub clause 5 to the section.

This amendment was inserted in the Code of Civil Procedure through the Punjab Amendment Act XIV of 2018 dated 20.03.2018, therefore, a constitutional petition, if at all, should have been filed in the matter and not a Civil Revision.

High Court has the power to convert one type of proceedings into another kind and therefore, subject to the petitioners depositing requisite court fee (Rs. 1500/- since there are three petitioners), the present Civil Revision is converted into a constitutional petition and office is directed to allot a number to this writ petition today.

It has been noted that the Civil Revision was filed within thirty four days of the impugned judgment passed by the appellate court and therefore, is not hit by limitation or for that matter by the doctrine of laches.

It may be necessary to recapitulate here that grant of temporary injunction is an equitable relief depending upon the circumstances of each individual case. In order to ascertain existence of a prima facie case all pleadings and materials before the court had to be considered. A prima facie case only means an arguable case and does not necessarily mean a prima facie title in the property (even the entitlement in the present case is beyond question and stands established by virtue of operation of law). It may also be noted that the pleadings and materials on record indicated a strong possibility of existence of a right in favour of the party seeking injunction and breach of such right being admitted by the opposing party, temporary injunction for the preservation of the threatened right ought to have been granted.

It may be reiterated that the phrase ‘prima facie case’ in its plain language signifies a triable case where some substantial question is to be investigated and this phrase should not be confused with ‘prima facie title’. Also in order to make out a prima facie case the plaintiff need not establish its title. It is enough if the plaintiff can show that he has raised a fair question as to the existence of right in the property in dispute and which should be preserved until such question is determined.

Civil Revision No.955 of 2019 converted into Writ Petition No. 2570 of 2022
Abdul Rauf etc. Versus Muhammad Mushtaq etc.

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The “fraud” envisaged in section 18 only relates to concealing, not creating, the right to sue, and thus affects only the limitation period, and has nothing to do with the cause of action and the relief prayed.

 Section 18 of the Limitation Act, 1908 (“Limitation Act”) is the most pivotal provision providing relief in computing the limitation period, applicable to a person who claims to be deprived of the knowledge of his right to sue based on the fraud of the other party.

In essence, this provision postpones the commencement of the limitation period in cases where a person is by means of fraud kept from the knowledge of his right to institute a suit. In such circumstances, the period of limitation commences from the date when the fraud first became known to the “person injuriously affected”. Such injuriously affected person can, therefore, institute a suit within the limitation period specified for such suit in the First Schedule (“Schedule”) to the Limitation Act, but computing it from the date when he first had knowledge of the fraud, whereby he was kept from knowledge of his right to institute the suit. Thus, section 18 of Limitation Act is an umbrella provision that makes the limitation period mentioned in the Articles of the Schedule, begin to run from the time different from that specified therein.

It is but fundamental to appreciate that the “fraud” stated in section 18 of the Limitation Act must not be confused with the fraud that constitutes cause of action, and creates a right to institute the suit for the relief prayed therein. The “fraud” envisaged in section 18 only relates to concealing, not creating, the right to sue, and thus affects only the limitation period, and has nothing to do with the cause of action and the relief prayed.

It would, thus, be safe to hold that, when despite obtaining knowledge of such fraud and his right to sue, as mentioned in section 18, the injuriously affected person does not institute the suit within the prescribed limitation period, no fresh period of limitation can be available to his legal heir(s) or any other person who derives his right to sue from or through him (the injuriously affected person); for once the limitation period begins to run, it does not stop as per section 9 of the Limitation Act.

Further, the definition of the term “plaintiff”, as given in section 2(of the Limitation Act also has the effect of barring the fresh start of the limitation period for the legal heir(s) or any other person, who derives his right to sue from or through such injuriously affected person, as it provides that “plaintiff” includes any person from or through whom a plaintiff derives his right to sue.

Therefore, it is the date of knowledge of the “person injuriously affected” of the fraud mentioned in section 18, and of his right to sue that is relevant for computing the limitation period, not of his legal heir(s), unless he asserts and prove that his predecessor (the person injuriously affected) never came to know of the fraud, whereby his right to institute the suit was concealed, in his lifetime; in the latter eventuality, it is, of course, the knowledge of the present plaintiff (his successor) that would be the starting point for the limitation to run.

Needless to mention that, a plaintiff who wants to avail the benefit of section 18 of the Limitation Act must assert the commission of such fraud by the defendant, in the plaint, and should also give the particulars thereof, and the date of knowledge, as required under Rule 4 of Order VI of the Code of Civil Procedure 1908, and then prove the same through positive evidence.

A suit for declaration of any right, as to any property is filed under section 42 of the Specific Relief Act

It becomes evident by reading the above provisions that the right to sue accrues to a person against the other for declaration of his right, as to any property, when the latter denies or is interested to deny his such right. It thus postulates two actions that cause the accrual of right to sue, to an aggrieved person:

(i) actual denial of his right or

(ii) apprehended or threatened denial of his right.

Now, what “actions” can be termed as an “actual denial of right”, and what a mere “apprehended or threatened denial of right”, in the context of adverse entries recorded in the revenue record. It is important to note that a person may ignore an “apprehended or threatened denial” of his right taking it not too serious to dispel that by seeking a declaration of his right through instituting a suit, and may exercise his option to institute the suit, when he feels it necessary to do so, to protect his right. For this reason, every “apprehended or threatened denial” of right gives a fresh cause of action and right to sue to the person aggrieved of such apprehension or threat. However, this option to delay the filing of the suit is not available to him in case of “actual denial” of his right; where if he does not challenge the action of actual denial of his right, despite having knowledge thereof, by seeking declaration of his right within the limitation period provided in the Limitation Act, then his right to do so becomes barred by law of limitation.

Admittedly, entries in the revenue record do not create or extinguish proprietary rights. Such an entry may at most be termed as a mere “apprehended or threatened denial” of right, and not an “actual denial” of right. Accordingly, every new adverse entry in the revenue record relating to proprietary rights of a person in possession (actual or constructive) of the land regarding which the wrong entry is made, gives to such person, a fresh cause of action to institute the suit for declaration.

The situation is, however, different in a case where the beneficiary of an entry in the revenue record also takes over the possession of the land on the basis of sale or gift transaction, as the case may be, recorded in that entry. His action of taking over possession of the land in pursuance of the purported sale or gift is certainly an “actual denial” of the proprietary rights of the purported seller or donor. Therefore, in such a case, if the purported seller or donor does not challenge that action of “actual denial” of his right, within the prescribed limitation period, despite having knowledge thereof, then his right to do so becomes barred by law of limitation.

Civil Appeal No. 139-P of 2013
Mst. Rabia Gula, etc. Vs Muhammad Janan, etc.

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"Defence struck off' or "defence struck out" is not unknown in the sphere of civil law and ..............

 The phrase "defence struck off' or "defence struck out" is not unknown in the sphere of civil law and indeed it finds a place in Order XI Rule 21 of the Code of Civil Procedure. However, this concept is alien to the proceedings under the Code of Criminal Procedure. However, at this stage, we do not want to delve into detail of this aspect of the matter as to whether the proceedings under the Illegal Dispossession Act, 2005 are in the nature of a complaint and are different from the proceedings carried out pursuant to registration of FIR. Article 10A of the Constitution of Islamic Republic of Pakistan, 1973 speaks about right of fair trial and due process both in civil as also in criminal proceedings. Thus the right to fair trial is a fundamental and Constitutional right belonging to every citizen of Pakistan. While deciding a criminal lis, the recording of evidence including the right of cross-examination of the witnesses, hearing of arguments and a reasoned judgment are the essential attributes of criminal justice system based on the Constitutional command. According to Merriam-Webster, the word ‘evidence’ means “material that is presented to a court of law to help find the truth about something”. The statements of witnesses and cross-examination is a vital part of that material, which form part of evidence, therefore, in absence of such an important piece of evidence, the Court could not come to a just and fair conclusion. Criminal trial of an accused must be conducted with utmost fairness. Fundamental right of fair trial which the Constitution guaranteed is violated if any accused is deprived of the opportunity to cross-examine a witness deposing against him.” Even if we deny the right of cross-examination to the petitioners, in appeal the matter would again be remanded and, therefore, would further linger on the proceedings. It would, therefore, be in the interest of justice, if the petitioners are given the opportunity to cross-examine PWs and by doing this no prejudice would be caused to the respondents. Consequently, we convert this petition into appeal, allow it and set aside the impugned judgment.

Criminal Petition No.1091/2021

Sher Hassan and others vs Gul Hassan Khan and others

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-Inheritance---Sect of deceased---Principles and presumption as to the sect of a deceased Muslim stated.

 2022 S C M R 399

(a) Islamic law---

----Inheritance---Sect of deceased---Principles and presumption as to the sect of a deceased Muslim stated.

Every Muslim in the sub-continent was presumed to belong to Sunni sect, unless "good evidence" to the contrary is produced by the party contesting the same. The judicial determination of whether the said presumption of faith of a party, holds or positively stands rebutted, would be adjudged on the principle of preponderance of evidence produced by the parties. No strict criteria can be set to determine the faith of a person, and thus, to pass any finding thereon, the Courts are to consider the surrounding circumstances; way of life, parental faith and faith of other close relatives.

(b) Islamic law---

----Inheritance---Dispute between sisters and mother of deceased over his faith/sect---When the impugned inheritance mutation was initially entered and sanctioned (in favour of the deceased's mother), she did not claim that her son (deceased-son) was a Shia Muslim; it was only after the impugned inheritance mutation was set aside, and the matter was remanded by the Collector for afresh decision that she, for the first time, took the stance that her son, belonged to Shia sect---Moreover, the mother was not a credible witness, as her deposition that her husband, father of deceased, was a Shia Muslim was belied by the inheritance mutation of her husband---Under the said mutation, the estate of her husband was divided amongst his legal heirs in accordance with the Hanfi Sunni law of inheritance, and not Shia law---Preponderance of evidence supported the assertion of the sisters, that their deceased brother was of Sunni sect, resultantly, the mother was unable to positively discharge the burden of proof that lay on her and rebut the initial presumption that the deceased belonged to Sunni sect---Appeal was allowed, and suit for declaration filed by the sister/plaintiff was decreed.

(c) Limitation Act (IX of 1908)---

----S. 3, First Sched. & Art. 120---Specific Relief Act (I of 1877), S. 42---Inheritance---Co-sharer---Suit for declaration seeking share in inheritance---Limitation---Six-year period of limitation provided by Art. 120 of First Schedule to the Limitation Act, 1908 was to be counted from the time when the right to sue accrues, and the right to sue accrues to a co-sharer against the other co-sharer, when the latter denies the rights of the former in the joint property or ousts him/her from the co-ownership of the joint property---Wrong entry as to one's inheritance rights in the revenue record (i.e., inheritance mutation) is not, to be taken as an ouster of a co-heir from the co-ownership of the joint property---Indeed, the devolution of the ownership of the property on the legal heirs takes place, under the Islamic law, through inheritance immediately, and that too without intervention of anyone---Treating a wrong inheritance mutation, as an ouster of a co-sharer from the co-ownership of the joint property, and treating the six-year limitation period under Art. 120 of the Limitation Act, 1908 to start from the date of sanction of the inheritance mutation, is not legally correct.

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عطائی ڈاکٹروں کا خلاف لاہور ہائیکورٹ کا تاریخی فیصلہ

 The terms “quackery” is entirely different from “malpractice” with regards to its definition, implications and legal consequences. Quackery is defined as, “the promotion of fraudulent or ignorant medical practices”. A “quack” is an individual who practices quackery. In other words, a quack is someone who is involved in medical malpractice without possessing required qualifications, professional authority and legal right to undertake such activities in first place.

Quackery is not only leading to avoidable deaths, it is also one of the leading causes of increasing morbidities in Pakistan. Be it delayed patient presentation to a professionally trained doctors, progression of existing disease or complications of the treatment provided by quack, the final outcome is that it is the patients and their families who bear the brunt of someone else’s mistakes.

Every year thousands of people either lose their lives or suffer significant harm at the hands of quacks in Pakistan. Unfortunately, there are no reliable data sources and official figures on the number of people affected annually. However, the national newspapers and other media channels are full of such reports on almost daily basis. In spite of growing reports, the fact of the matter is that it is only a tip of the iceberg and the reality is much more painful than what is highlighted.

It is morally and ethically incorrect and socially unacceptable to perform an action which is beyond ones professional capabilities. By losing this insight and the sense of “patient care by a trained professional”, the quacks have also deprived themselves of a sense of empathy and honesty. A lack of understanding of differences between a “qualified doctor” and a “quack” has also contributed in spreading of this problem. Often, patients and their cares do not question the treating person’s qualification and competencies. This attitude of general public encourages malpractice and quackery.

Bail refused.

Crl.Misc.No.64960-B of 2021 Zahid Mehmood Versus The State, etc

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--O.I Rr. 1, 10--Hostility of claim Hostile plaintiff--All the persons who have common cause of action against the defendant, they can sue jointly. However, in event of hostility of claim between plaintiffs during proceeding, hostile plaintiff may be transposed to panel of defendant.

 PLJ 2022 Peshawar 6

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

----O.I R. 1--Rejection of application for transposition from panel
of plaintiffs as defendants--Hostile plaintiff conflict between plaintiffs--Challenge to--Plaintiffs can remain joint only when they are commonly pursuing their relief and once there is conflict/hostility between plaintiffs regarding nature of relief then obviously conflicting/hostile plaintiffs should be transposed in array of defendants--Plaintiffs No. 4 to 6 be transposed from panel of plaintiffs to panel of defendants as proforma defendants--Plaintiffs are not required to amend plaint and necessary entries be made by office of trial Court--Revision petition allowed.     

                                                                             [Pp. 8 & 9] A, C & D

PLD 1962 (W.P.) Lahore 114 ref.

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

----O.I Rr. 1, 10--Hostility of claim Hostile plaintiff--All the persons who have common cause of action against the defendant, they can sue jointly. However, in event of hostility of claim between plaintiffs during proceeding, hostile plaintiff may be transposed to panel of defendant.               [P. 8] B

PLD 1962 (W.P.) Lahore 114.

M/s. Shah Faisal Utmankhel and Fayaz Ahmad, Advocates for Petitioners.

M/s. Muhammad Saddique Haider Qureshi, Iftikhar Ahmad and Hamza Bangash, Advocates for Respondents.

Date of hearing: 30.09.2021.

 PLJ 2022 Peshawar 6
Present: Syed Arshad Ali, J.
JUNAID KHAN BABAR and 2 others--Petitioners
versus
Mst. FARHAD BEGUM and 3 others--Respondents
C.R. No. 789-P with C.M No. 1139-P of 2021, decided on 12.10.2021.

Judgment

The petitioners who are Plaintiffs No. 1 to 3 before the learned trial Court, have collectively challenged the orders of both the Courts below, rejecting their application for transposition of the Plaintiffs No. 4 to 6 in the array of defendants.

2. Arguments heard and record of the case was perused.

3. It is evident from record that the matter relates to legacy of Jehangir Khan Babar, the predecessor of the plaintiffs. It is the precise claim of all the Plaintiffs No. 1 to 6 in their plaint that Defendants No. 1 and 2 should not inherit the legacy of Jehangir Khan Babar as Defendant No. 1 was divorced by him in his life time and Defendant No. 2 was never married to Jehangir Khan Babar.

4. The suit is being contested by the defendants. On 27.07.2021, Kamran Babar the special attorney on behalf of the legal heirs of Plaintiff No. 4 recorded his statement wherein he has confirmed in his examination-in-chief that Defendants No. 1 and 2 are the legal heirs of Jehangir Khan Babar and thus has supported the claim of Defendants No. 1 and 2. When the said Kamran Babar recorded his statement as PW-5 which was also adopted by Plaintiffs No. 5 and 6, the present petitioners moved an application to the trial Court for their transposition to the array of the defendants. The defendants as well as Plaintiffs No. 4 to 6 contested the said application. The learned trial Court as well as the learned Appeal Court dismissed the said application.

5. Granted that a party cannot be transposed from a panel to another panel without his/their counsel, however, keeping in view the scheme of Order 1 of the Civil Procedure Code, 1908, it appears that the plaintiffs can remain joint only when they are commonly pursuing their relief and once there is conflict/hostility between the plaintiffs regarding the nature of the relief then obviously the conflicting/hostile plaintiffs should be transposed in the array of defendants. In this regard I may refer to Order I, Rule 1 and Rule 10 of the Civil Procedure Code, 1908, which reads as under;

“Order-I Rule 1. Who may joined as plaintiff.--All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where if such persons brought separate suits, any common question of law or fact would arise”

Rule 10. Suit in name of wrong plaintiff.--Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

Court may strike out or add parties.--(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit, be added.”

6. The bare reading of the above provisions it manifests that scheme of Order I which envisages that all the persons who have common cause of action against the defendant, they can sue jointly. However, in event of hostility of claim between the plaintiffs during

the proceeding, the hostile plaintiff may be transposed to the panel of defendant.

The same is also the view of the learned Lahore High Court in the case of “Mian Abdul Waheed versus Mst. Amtul Hamid etc.” (PLD 1962 (W.P) Lahore 114), wherein it is held that:

“On going through these cases one thing is clear that whenever the ends of justice require, the Court has power to order the transposition and this power can be exercised irrespective of the consent of the party. In fact it would be wrong to permit a plaintiff to continue as such when he takes up a completely hostile attitude to the other plaintiffs and takes upon himself to support the case f the defendant”

7. In view of the above, this petition is allowed and the impugned order dated 09.09.2021 is set aside and accordingly the Plaintiffs No. 4 to 6 be transposed from the panel of the plaintiffs to the panel of defendants as proforma defendants. However, since it is an old case, the plaintiffs are not required to amend the plaint and necessary entries be made by the office of the learned trial Court. The evidence so recorded by PW-5 shall be deemed to be defence witness and the plaintiff would be accordingly provided an opportunity to cross examine him after closing his evidence.

(Y.A.)  Petition allowed

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