-O.XII, R. 6--Specific Relief Act, (I of 1877), Ss. 9, 42 & 54--Suit for declaration, permanent injunction, possession of property-............

 PLJ 2022 Peshawar (Note) 133

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

----O.XII, R. 6--Specific Relief Act, (I of 1877), Ss. 9, 42 & 54--Suit for declaration, permanent injunction, possession of property--Application for deletion of mutations from heading and prayer clause of plaint--Accepted--Dismissal of revision petition--Pendency of suit--Challenge to--Admissions made therein have wrongly been treated by civil Court to be unqualified and absolute admissions sufficient to provide basis for giving judgment at such a preliminary stage--Court can even require evidence regarding admission, in its discretion as provided by Article 113 of Qanun-e-Shahadat Order, 1984--Even an appropriate judgment has not been pronounced as envisaged by Order XII, Rule 6, C.P.C--No decree has been passed in case--Suit of petitioner has not even been dismissed in respect of said mutations--Only deletion of certain mutations has been made from prayer clause as well as heading of plaint, which procedure of such deletion or powers of Court for such deletion in pleadings of parties, without their request, is also alien to law of procedure--Procedure adopted by civil Court was not at all according to law, and same warrants interference of this Court for its rectification--Order Civil Court, where it had ordered deletion of mutation, from heading and prayer clause of plaint, is declared to have been passed without lawful authority and of no legal effect--Petition partially allowed.                                                 [Para 6, 8 & 9] A, B, C & D

PLD 1989 SC 294 ref.

Mr. Mohsin Ali Khan, Advocate for Petitioner.

Mr. Adil Khan Tahirkheli, Advocate for Respondents Nos. 1
to 4.

Date of hearing: 27.1.2022.


 PLJ 2022 Peshawar (Note) 133
[Mingora Bench (Dar-ul-Qaza) Swat]
Present: Wiqar Ahmad, J.
MUHAMMAD ZARIN--Petitioner
versus
AMIR DIL KHAN and 5 others--Respondents
W.P. No. 381-M of 2020 with Interim Relief (N), decided on 27.1.2022.


Judgment

Plaintiff (petitioner herein) filed a suit against defendants (respondents) for declaration, permanent injunction as well as possession of the property in dispute (described fully in heading of the plaint). Defendants in the suit were summoned by the learned civil Court, out of whom Defendants Nos.1 to 4 appeared and contested the suit by filing their separate written statements. From divergent pleadings of the parties, issues were framed and the case was thereafter posted for evidence. Partial evidence in the suit was also recorded. During proceedings, Defendants Nos.1 to 3 filed an application before civil Court for deletion of Mutation No. 2318 attested on 28.04.2011, Mutation No. 2350 attested on 22.07.2011, Mutation No. 2404 attested on 30.04.2012 and Mutation No. 2456 attested on 24.09.2012 (all entered in Moza Karapa Tehsil Daggar District Buner), from heading of the plaint for the reason that plaintiff had earlier filed an application on 07.07.2017 before the civil Court, wherein he had admitted that plaintiff had rightly entered and attested the abovementioned mutations in favour of Defendants Nos.1 to 3. Said application was duly replied by the petitioner but after hearing arguments of learned counsel for the parties, the learned civil Court accepted such application vide its order dated 22.01.2018 and ordered deletion of the above-referred mutations from heading of the plaint. Feeling aggrieved there-from, petitioner filed civil revision before learned revisional Court, which was dismissed vide impugned judgment dated 07.10.2019 by learned District Judge Buner at Daggar. He thereafter filed the instant writ petition with the following prayer:

"It is therefore, humbly prayed that on acceptance of this writ petition, the impugned order dated 07.10.2019 of respondent No. 6 and order dated 22.01.2018 of respondent No. 5 be declared as illegal, without lawful authority, without jurisdiction, null and void and application of the respondents for deletion of certain mutations in the case titled "Muhammad Zarin v. Amir Dil Khan" be dismissed.

Any other remedy which is efficacious and appropriate in peculiar circumstances of the case, may please be graciously granted, though not specifically prayed for."

2.  I have heard arguments of learned counsel for the parties and perused the record.

3.  Perusal of record reveals that petitioner is aggrieved of order dated 22.01.2018 of the learned civil Court, whereby the civil Court has ordered deletion of Mutation No. 2318 attested on 28.04.2011, Mutation No. 2350 attested on 22.07.2011, Mutation No. 2404 attested on 30.04.2012 and Mutation No. 2456 attested on 24.09.2012 (all entered in Moza Karapa Tehsil Daggar District Buner), from heading of the plaint as well as the prayer clause, on acceptance of application filed by Defendants Nos. 1 to 3/Respondents Nos. 1 to 3. The suit was however kept pending for further proceedings before the civil Court. Background leading to the final development was that petitioner who was plaintiff before the learned civil Court had filed an application for deciding suit pending before the civil Court on basis of special oath of the parties. Paras-2 and 3 of said application are relevant, which are reproduced hereunder for ready reference:

"2۔ یہ کہ من مدعی نے انتقالات نمبرز 2318 مورخہ 28.04.2011، 2350 مورخہ 22.07.2011 ، 2404 مورخہ 30،04،2012 ، 2456 مورخہ 24.09.2012 بحق مد عاعلیہ نمبر 2،1 ، 3 درست اور صحیح درج و تصدیق کئے ہیں ۔ جس کو میں درست تسلیم کر تا ہوں

3۔  یہ کہ انتقالات نمبرز 2358 مورخہ 14.09.2011 ، 2359 مورخہ 14.09.2011 ، 2365 مورخہ 14.09.2011 ، 2372 مورخہ 28.09.2011 ، 2434 مورخہ 26.06.2012 ، 2435 مورخہ 26.06.2012 ، 2467 مورخہ 24.12.2012 ، 2475 مورخہ 14.12.2012 ، 2479 مورخہ 23.01.2013 ، 2480 مورخہ 23.01.2013 جعلی فرضی اور خود ساختہ ہے ۔ جس کے نسبت میں حلف باالقرآن اٹھانے کو تیار ہوں کہ میں نے یہ انتقالات درج و تصدیق نہیں کئےہیں۔"

Said application was taken up for hearing on 26.09.2017 and was dismissed same day. Later, on 02.11.2017, respondents Nos. 1 to 3 filed an application for deletion of the abovementioned mutations from heading and prayer of the suit as according to them, petitioner/ plaintiff had conceded in the earlier application filed by him that he had duly entered and attested these mutations in favour of Defendants Nos. 1 to 3. Reply to this application was also obtained and thereafter the learned civil Court allowed application for deletion of the mentioned mutations, on the basis of admissions made by the petitioner in his earlier application.

4. Learned counsel for petitioner contended in his arguments that petitioner had in-fact not moved such an application and that same had in-fact been substituted on record of the Court. He also placed reliance on judgments of the Hon'ble Supreme Court of Pakistan given in the case of Zafar Ali v. Allah Bachayo reported as PLD 1989 Supreme Court 294, case of Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another reported as 2020 SCMR 171, case of Abdul Razaq v. Abdul Gahffar and others reported as 2020 SCMR 202 as well as judgment of the Hon'ble Sindh High Court given in the case of Mirza Naseem Baig v. K.E.S.C. Employees Cooperative Housing Society Ltd. and others reported as 2019 YLR 2609.

5.  Learned counsel for Respondents Nos. 1 to 4 on the other hand stated that in reply to their application filed for deletion of the mutations from plaint, petitioner had not disowned filing of the earlier application and that this was a new plea crafted by learned counsel for petitioner so as to bolster his case before this Court. He placed reliance on judgments reported as 2002 SCMR 1173, 2000 YLR 1449 and 2008 CLC 645.

6.  Order XII, Rule 6 C.P.C. no doubt provides for powers of the Court to pass judgment on admissions but for returning such a judgment, the admission has to be clear, unambiguous, unqualified and unequivocal as held by the Hon'ble Supreme Court of Pakistan while giving its judgment in the case of Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another reported as 2020 SCMR 171. Such admissions are also supposed to be read as a whole and not in piecemeal. The situation in this case as it has emerged was not such that should have resulted into passing of the judgment and deletion of the prayer clause in respect of the mentioned mutations, at the given stage. It is important to be noted that in the pleadings i.e. plaint, petitioner/plaintiff had not made admissions rather he had raised a challenge to the mutations mentioned therein. The application for deciding the matter on special oath had not been filed in pursuance to any agreement between the parties. It had been filed with a different intention i.e. to get the matter decided on special oath. The admissions made therein have therefore wrongly been treated by the learned civil Court to be unqualified and absolute admissions sufficient to provide basis for giving judgment at such a preliminary stage. The Court can even require evidence regarding admission, in its discretion as provided by Article 113 of the Qanun-e-Shahadat Order, 1984. Hon'ble Supreme Court of Pakistan while giving its judgment in the case of Zafar Ali v. Allah Bachayo reported as PLD 1989 Supreme Court 294, has held in this respect:

"It is also not incumbent upon the Court to decide an issue on admission as according to the proviso of section 58 of the Evidence Act, the Court is empowered to require the proof of facts which are admitted, by evidence otherwise than by such admissions."

7.  This issue of admission in the application should have been read along with other evidence that is to be recorded in the case and at the time of final conclusion of proceedings, the learned civil Court should have considered its effect vis-a-vis the entire controversy in hand. That would have been a better course but same has not been followed.

8.  Another aspect of the case is that even an appropriate judgment has not been pronounced as envisaged by Order XII, Rule 6, C.P.C. No decree has been passed in the case. Suit of the plaintiff/ petitioner has not even been dismissed in respect of said mutations. Only deletion of certain mutations has been made from prayer clause as well as heading of the plaint, which procedure of such deletion or powers of the Court for such deletion in pleadings of the parties, without their request, is also alien to the law of procedure. Had the judgment been pronounced and an order for dismissal of the suit in respect of even the mentioned mutations been passed, it would have its own consequences different from the order impugned in the case in hand. In such a situation, the procedure adopted by learned civil Court was not at all according to law, and therefore same warrants interference of this Court for its rectification.

9.  In light of what has been discussed above, instant writ petition is partially allowed to the effect that order dated 22.01.2018 of the learned civil Court, where it had ordered deletion of Mutation No. 2318 attested on 28.04.2011, Mutation No. 2350 attested on 22.07.2011, Mutation No. 2404 attested on 30.04.2012 and Mutation No. 2456 attested on 24.09.2012 (all entered in Moza Karapa Tehsil Daggar District Buner), from heading and prayer clause of the plaint, is declared to have been passed without lawful authority and of no legal effect. Order of the learned revisional Court dated 07.10.2019 is also set aside. The matter is ordered to be deemed pending before the learned civil Court, which shall be decided along with other matters in the suit at time of final conclusion of suit, wherein the learned civil Court may also consider plea of respondents Nos. 1 to 3 relating to admissions statedly made by the petitioner/plaintiff in his application filed before the civil Court on 26.09.2017.

(Y.A.)  Petition allowed

The term “formal defect” used in the rule ibid is of significant importance. Formal defect is a defect which may be of technical nature..........

 The term “formal defect” used in the rule ibid is of significant importance. Formal defect is a defect which may be of technical nature. Law does not permit the knocking out the parties on the basis of technicalities. The object of sub-rule (2) of Order XXIII of “CPC” is to prevent the defeating of ends of justice on account of technicalities.

In order to further elaborate the term it can be said that following may be the most relevant instances of formal defect :-
(a) Mis-joinder of parties or causes of action which will result in the failure of the suit.
(b) erroneous valuation of the subject matter.
(c) Insufficient description of the property involved in the suit.
(d) Failure to disclose a cause of action.
(e) Material document is not properly stamped.
(f) Non-impleading of necessary party.
(g) Form of suit etc.
It is also pertinent to mention here that the expression formal defect must be given a liberal meaning and should be of a nature as to entail dismissal of the suit but every kind of defect not going to the root of the case or not affecting the merits of the case.

WRIT PETITION No.1645 of 2021
M/S BEST WAY CEMENT LTD VS YASIR SALEEM ETC
Mr. Justice Mirza Viqas Rauf
 08-09-2022
2022 LHC 7165









-Ss. 16 & 17---Suit relating to an immoveable property---Principles relating to territorial jurisdiction of courts in relation to suits concerning immoveable property . The words "any portion of the property".........

 2022 S C M R 1846

Civil Procedure Code (V of 1908)---
----Ss. 16 & 17---Suit relating to an immoveable property---Territorial jurisdiction of Courts---Principles relating to territorial jurisdiction of courts in relation to suits concerning immoveable property .
The words "any portion of the property" occurring in sections 16 and 17 of the C.P.C., cannot be limited to only one property. It may be a single immoveable property and may also include more than one property of different descriptions. In case, a person wants to obtain a relief through a suit, in respect of immoveable properties, situated within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction, any one of the immovable properties or a portion thereof is situated, provided that the cause of action in respect of the properties must be one and the same.
Suit relating to an immoveable property---Territorial jurisdiction of Courts---Purpose of section 17, C.P.C.---Purpose of section 17 of the C.P.C. is to avoid conflicting decisions, multiplicity of litigation and to give option to the parties to choose the court for adjudication of their disputes according to their convenience, in order to facilitate them.

Judgment

JAMAL KHAN MANDOKHAIL, J.---Facts in brief are that the respondents filed an application before the revenue authorities Quetta, alleging therein that the parties are the legal heirs of late Abdul Hameed, who owned House No. 4-12/27, bearing mutation No. 125, Khasra Nos. 1749, 450, 2470, 1459, two Qitas situated in Ward No. 4, Tappa Urban Tehsil and District Quetta. The respondents alleged that after the death of their predecessor, the house devolved upon his legal heirs i.e., the parties to the petitions, but the petitioners mutated it in their names fraudulently, depriving the respondents from their share of inheritance. Through the application, the respondents sought cancellation of the mutation, which was accepted on 22nd September 2007. Consequently, the mutation was cancelled from the names of the petitioners and it was recorded as joint property of all the legal heirs of late Abdul Hameed.
2. The petitioners feeling aggrieved, filed a suit for declaration, cancellation of the order dated 22.09.2007 and injunction against the respondents in the Court of Civil Judge-II, Quetta. The petitioners in their plaint alleged that the predecessor of the parties owned properties (a) House No. 4-12/27 having mutation No. 125, Khasra Nos. 1749, 450 2470, 1459, two Qitas, situated in Ward No. 4, Tappa Urban Tehsil and District Quetta; (b) House No. 1197, situated in Galli Khushi Muhammad Chaman; and (c) a plot situated at Nawa Killi Quetta. According to the petitioners, the parties entered into a written agreement to privately partition the left-over properties, as a result whereof, the house situated at Quetta (a) came into their share, whereas, the house situated at Chaman (b) came into the share of the respondents and since then, both the parties are in possession of the properties respectively. It is important to mention here that the learned counsel for the petitioners did not press the claim of the petitioners to the extent of the plot (c) situated at Nawa Killi Quetta. The respondents through their written statement denied the contention of the petitioners with regard to the alleged private partition. They, however, conceded the fact that though both the houses belonged to their predecessor, but the house at Chaman was given by the father in his life time to the respondent No.8, who sold it to pay off the bank loan, therefore, it is not the left-over property. The respondents contended that the house situated at Quetta was the only property, which was inherited by the parties being the legal heirs, as such, the record was rightly corrected by the revenue authorities. Subsequently, the respondents also filed a suit for partitioning of the house situated at Quetta, in the same Court at Quetta. The petitioners then filed an amended plaint with permission of the Court, wherein, the transfer of the house (b) situated at Chaman, in the name of the respondent No.8, was also challenged.
3. The trial court consolidated both the suits and upon conclusion of the trial through the consolidated judgment and decree, dismissed the suit filed by the petitioners and decreed that of the respondents, declaring that the only property left by late Abdul Hameed was the house (a) situated at Quetta, which devolved upon his legal heirs according to their share and directed its partition. The petitioners filed appeals against the judgment and decree. The appellate court through consolidated judgment and decree, maintained the judgment and decree of the trial court to the extent of the property at Quetta, whereas, modified the judgment and decree of the trial court to the extent of the property at Chaman (b), declaring it too as joint amongst the legal heirs. Feeling aggrieved, the respondents filed a civil revision petition before the learned High Court of Balochistan, which was accepted, in result whereof, the appellate court's judgment and decree to the extent of the modification were set aside and the judgment and decree of the trial court were maintained. However, the learned High Court in Paragraph No. 68 of its judgment has held that the house at Chaman is situated beyond the territorial jurisdiction of the courts at Quetta, therefore, it cannot be made a subject matter of the suit filed at Quetta. The petitioners being aggrieved, filed these petitions for leave to appeal.
4. Arguments heard and have perused the record in the first instance, we would like to dilate upon the findings of the learned High Court with regard to the jurisdiction of the Court at Quetta in respect of the property situated at Chaman. Sections 16 and 17 of the Code of Civil Procedure (the C.P.C.) regulate the territorial jurisdiction, which are reproduced herein below:
16. Suits to be instituted where subject matter situate.---Subject to the pecuniary or other limitations prescribed by any law, suits--... ...shall be instituted in the Court within the local limits of whose jurisdiction the property is situate, or in case of suits referred to in clause (c) at the place where the cause of action has wholly or partly arisen.
17. Suits for immovable property situate within jurisdiction of different Courts.---Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate:
Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such Court.
The words "any portion of the property" occurring in sections 16 and 17 of the C.P.C., cannot be limited to only one property. It may he a single immoveable property and may also include more than one property of different descriptions in case, a person wants to obtain a relief through a suit, in respect of immoveable properties, situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction, any one of the immovable properties or a portion thereof is situated, provided that the cause of action in respect of the properties must be one and the same. The issue of territorial jurisdiction came up before the Supreme Court of India in Shivnarayan (D) by LRs. v. Manikial (0) through LRs and others1 wherein it was held as under:
28. Sections 16 and 17 of the C.P.C. are part of the one statutory scheme. Section 16 contains general principle that suits are to be instituted where subject-matter is situate whereas section 17 engrafts an exception to the general rule as occurring in section 16. From the foregoing discussions, we arrive at following conclusions with regard to ambit and, scope of section 17 of C.P.C.
(i) The word 'property' occurring in section 17 although has been used in 'singular' but by virtue of section 13 of the General Clauses Act it may also be read as 'plural', i.e., "properties".
(ii) The expression any portion of the property can be read as portion of one or more properties situated in jurisdiction of different courts and can be also read as portion of several properties situated in jurisdiction of different courts.
(iii) A suit in respect to immovable property or properties situate in jurisdiction of different courts may be instituted in any court within whose local limits of jurisdiction, any portion of the property or one or more properties may be situated.
(iv) A suit in respect to more than one property situated in jurisdiction of different courts can be instituted in a court within local limits of jurisdiction where one or more properties are situated provided suit is based on same cause of action with respect to the properties situated in jurisdiction of different courts.
The purpose of section 17 of the C.P.C. is to avoid conflicting decisions, multiplicity of litigation and to give option to the parties to choose the court for adjudication of their disputes according to their convenience, in order to facilitate them.
5. In the case in hand, the subject matter of both the suits is respecting the left-over properties of the predecessor of the parties, situated within the jurisdiction of two courts. Their claim includes the relief of partition amongst them as well. Under such circumstances, the cause of action of both the suits is one and the same, therefore, both the Courts at Quetta and Chaman had the jurisdiction to adjudicate the suits in respect of the left-over properties of the predecessor of the parties. The parties opted to file their suits at Quetta. The trial court after taking cognizance of the matter, consolidated both the suits and decided them through the common judgment and decree. The trial court did not exclude its jurisdiction with regard to the property at Chaman and assumed the jurisdiction. The learned High Court though upheld the findings of the trial court, but at the same time, it was observed that the suit in respect of the house at Chaman was not competent before the civil court at Quetta. Such findings of the learned High Court are contrary to the basic structure of section 17 of the C.P.C., hence are not sustainable.
6. As far as merits of the case are concerned, it is a fact that the house situated at Quetta was an evacuee property. The father of the parties applied for its allotment, but the process could not be matured in his life time. The matter was pursued by the petitioners, who finally succeeded in getting its allotment in their names, after deposition of the consideration amount themselves. Despite the fact that the house at Quetta never entered in the name of the predecessor of the parties, but still, the petitioners considered it to be one of the left-over properties of their predecessor. The petitioners are though claiming private partition amongst the legal heirs, respecting both the houses, but all the three fora concurrently did not agree with their contention. The claim of the respondents as set out in their written statement, respecting the house at Chaman is that it was transferred/disposed of by their father to the respondent No.8, whereas, the petitioners are denying their contention. Admittedly, the land underneath of the house at Chaman belonged to the Municipal Corporation Chaman (the MCC), which was leased out to one Sayed Ghafoor Shah (the lessee), and the Patta (the lease document), was issued in his name. The predecessor of the parties purchased its lease-hold rights from the lessee through a registered lease deed, in the name of the petitioner No.1, who was minor at that time. It is a fact that the lease-hold right of the said property never transferred in the name of their predecessor in the record of the MCC. The record of the MCC in respect of the house in question produced before the trial court reveals that the lease-hold right of the said property was subsequently transferred in the name of the respondent No.8 from the name of its previous lessee, simply on the instructions of their predecessor. However, the record of the MCC reflects that it was sold out by the father to the respondent No.8. The respondents in their plaint, did not disclose the basis of the transfer. The respondent No.10 appeared as attorney for the respondents, but he in his statement too, did not explain about the transfer of the house at Chaman in the name of the respondent No. 8. The respondents have failed to produce any evidence to prove an offer by the donor and its acceptance by the donee. They did not disclose the amount of the sale consideration, the date of the alleged transaction and the amount if any paid.
7. Besides, as per the record, the house has directly been transferred from the name of the previous lessee Sayed Ghafoor Shah in the name of the respondent No.8. The registered lease deed executed in the year 1952 between the previous lessee and the predecessor of the parties is still intact, which reflects that the lease-hold right of the house was purchased by the predecessor in the name of the petitioner No. 1, but in the record of the MCC, it remained in the name of the previous lessee. Here a question arises as to how the leasehold rights of the property were transferred from the name of its previous lease holder in the name of the respondent No.8, without the consent and knowledge of the petitioner No.1? Even there is no evidence to prove the fact that the predecessor of the parties and the previous lessee ever appeared before the MCC authorities for transferring the lease-hold rights respecting the property in the name of the respondent No.8. Moreover, the respondents in their written statement contended that after the transfer of the property to the respondent No.8, it was sold in order to clear the outstanding amount of loan. The respondents did not produce any document to prove the transaction with any bank and the payment of the outstanding amount of loan. Even, the respondent No. 10, who appeared as attorney for the respondents did not utter a single word in this behalf, which negates their contention raised in the written statement. The respondents have failed to establish the valid transfer of the leasehold rights of the house at Chaman in the name of the respondent No. 8 by the predecessor and its disposal during the lifetime of the predecessor. In the given circumstances, the transfer of the lease-hold right in the record of the MCC, regarding the house at Chaman in the name of the respondent No.8 is illegal and unlawful. Under such circumstances, the house at Chaman is also one of the left-over properties of the late Abdul Hameed, which devolved upon his legal heirs accordingly.
Thus, for the foregoing reasons, the petitions are converted into appeals and are allowed. It is declared that both the houses are left-over properties of late Abdul Hameed, which devolved upon his legal heirs according to their share of inheritance. The judgments and decrees of the learned High Court and the trial court to the extent of the house at Chaman are not based on law and facts, hence, are not sustainable. According to the learned counsel for the parties, the house at Quetta has already been partitioned amongst the legal heirs as per their right of inheritance. The house at Chaman is ordered to be partitioned amongst the legal heirs of late Abdul Hameed, according to their respective shares. In case, for any reason, the house at Chaman could not be partitioned, the respondents should compensate the petitioners accordingly.

--Suit for recovery---Cheque dishonoured on ground of insufficient balance--

 2022 C L C 1815

Civil Procedure Code (V of 1908)---
----O.XXXVII, Rr. 2 & 3---Qanun-e-Shahadat (10 of 1984), Arts. 21 & 113---Suit for recovery---Cheque dishonoured on ground of insufficient balance---Respondent launched FIR which was cancelled by the Police---Respondent/plaintiff claimed that appellant demanded and received an amount of Rs.18,00,000/- and issued a cheque which was dishonoured---Appellant's application for leave to defend was accepted and he failed to comply with the Trial Court's direction to deposit surety bond equivalent to the amount mentioned in the cheque---Trial Court recalled its order due to non-compliance and decreed the suit---Appellant contended that witnesses had not proved execution of the cheque; that cheque was not produced through Bank employees and had not been exhibited in the statement of respondent as witness; that FIR lodged by respondent was cancelled by the police after due investigation as cheque was issued by the appellant in lieu of the alleged amount; that the appellant was a wealthy person, settled abroad since long and had no need to borrow said amount; that without framing the issues ex-parte evidence was recorded by the learned trial Court; that due to "Corona" virus crises and strike of revenue officials the appellant could not deposit the surety bond within time; that the appellant was not present in the Trial Court; that Trial Court took harsh step under O.XVII, R.3, C.P.C. instead of the initiation of the proceedings under O.XVII, R.2, C.P.C.; on the date of hearing for recording of evidence, but on that date evidence was recorded, the suit was decreed and the suit was converted into execution proceedings and Court issued the show-cause notice to appellant/judgment debtor---Validity---Appellant was given by the trial Court three opportunities to deposit the surety bond but he failed to deposit the same---Trial Court adjourned the case for recording of the ex-parte evidence and on the next hearing evidence of the respondent was recorded and the suit was decreed---Appellant did not file any application to get set aside the order of Trial Court, nor any application for extension of time for deposit surety bond---Appellant, after initiation of execution proceedings, did not appear before the Court rather he filed present appeal and did not comply with its direction to deposit 50% of the decretal amount within 15 days---Appellant's conduct/attitude reflected that he was not entitled for any relief---Appellant, in his application for leave to defend, admitted that the cheque was issued by him, therefore, Trial Court had no need to record any evidence to prove such admitted fact---No plausible explanation was tendered by the appellant for non-depositing of the surety bond during the trial and non-depositing of the 50% decretal amount in execution proceedings---Record showed that, appellant's counsel was present but order of the Court was not complied with nor any application for extension of time was submitted---Appeal was dismissed accordingly.
Civil Procedure Code (V of 1908)---
----O.XXXVII, Rr. 2 & 3---Summary procedure---Judicial wisdom---Procedure for suit founded on the special documents was that defendant was not, as in ordinary suit, entitled as of right to defend the suit---Object underlying such procedure was to prevent unreasonable obstruction by defendant who had no good defence to put up---When it was a suit upon a bill of exchange/Hundi/Promissory note and the plaint/summonses were in the prescribed form, the defendant would not be allowed to appear/defend the suit unless he obtains leave from the Court.


Judgment

SAFDAR SALEEM SHAHID, J.----Through instant RFA, the appellant has challenged the validity of judgment and decree dated 26.01.2021 passed by learned Additional District Judge, Fort Abbas, whereby suit filed by Riaz Mahmood respondent.
2. Brief facts for disposal of instant appeal are that parties had relationship of trust inter se and on 01.08.2019 appellant/defendant came to respondent/plaintiff in presence of witnesses and demanded Rs.18,00,000/- for personal need with promise to return the same on 15.05.2020. On account of above said relations, respondent handed over the said amount to the appellant and the appellant issued a cheque No. 15016255 dated 15.05.2020 of Meezan Bank Fort Abbas Branch. On the said date when respondent demanded the amount mentioned above, appellant sought some more time and afterwards refused to pay the said amount to the respondent. Upon which respondent presented the cheque in the bank for encashment which was dishonoured due to insufficient funds. Respondent also lodged FIR No. 531/2020, offence under Section 489-F, PPC, against the appellant at P.S. Fort Abbas but the local police recommended the case for cancellation. Respondent demanded the amount time and again from the appellant but in vain so respondent filed a suit for recovery of said amount before learned trial Court on 30.11.2020.
3. The appellant appeared before the Court and filed application for leave to defend on various grounds but on the statement of learned counsel for respondent dated 18.12.2020 application for leave to defend was accepted and appellant was directed to deposit surety bond equivalent to the amount mentioned in the cheque but after that learned trial Court recalled the order dated 18.12.2020 due to non-compliance vide order dated 18.01.2021 and on 26.01.2021 decreed the suit vide impugned judgment and decree of even date.
4. Learned counsel for the appellant has argued that impugned judgment and decree has been passed by the learned trial Court while ignoring the relevant law and facts of the case, therefore, same is not sustainable; witnesses have not proved execution of cheque in question in lieu of the payment of the amount as alleged by the respondent; cheque in question was not produced through bank employees and it has not been exhibited in the statement of PW-1/respondent which is violation of Qanun-e-Shahadat Ordinance, 1984; respondent also lodged FIR against the appellant which was cancelled by the police after due investigation as no such amount was given to the appellant and no cheque was issued by the appellant in lieu of amount mentioned therein; the appellant was a wealthy person and was settled in Canada for the last 30 years, therefore, there was no need to borrow said amount from the respondent; without framing the issues ex-parte evidence was recorded by the learned trial Court which is nullity in the eyes of law; in fact due to Corona virus crises and strike of revenue officials the appellant could not deposit the surety bond as directed by the Court; order of the Court recalling the order dated 18.12.2020 is totally against the law as the appellant did not appear on the said date; proceedings under Order XVII, Rule 2, C.P.C. could have been initiated but Court took harsh step and proceeded under Order XVII, Rule 3, C.P.C.; the case was fixed for evidence on 26.01.2021 and on that date not only evidence was recorded but also the case was decreed and it was directed by the Court through same order that under amended Rule 10 of Order XXI of C.P.C., the suit is converted into execution proceedings and show-cause notice is issued to the judgment debtor that as to why decretal amount may not be recovered from him.
5. Learned counsel for the respondent argued that conduct of the appellant is obvious from the order sheet; on 18.12.2020 learned counsel for respondent made consenting statement that leave to defend application be allowed in the interest of justice and for speedy trial and to secure the Court time upon which said application of the appellant was allowed and direction was issued to him to deposit surety bond in the sum of Rs.18,00,000/- but appellant after obtaining three adjournments did not deposit the same; on 18.01.2021 he even did not himself appeared in the Court and the Court then struck of his defence and withdrew the order dated 18.12.2020 whereby application for leave to defend was allowed; after recording of the evidence the Court decreed the suit, therefore, there was no question of mis-reading and non-reading of evidence; even after withdrawal of the order dated 18.12.2020 the appellant did not file application for recalling the order and for extension of time for submitting surety bond under Section 148, C.P.C.; the appellant filed instant appeal but did not comply with the order of this Court pertaining to deposit of 50% of the decretal amount with learned Executing Court within 15 days and when his warrants of arrest were issued by the said Court then he made payment in the Court on 03.04.2021; all the proceedings were conducted by the learned trial Court strictly in accordance with law and cases Under XXXVII, Rules 1 and 2, C.P.C. are to be tried summarily; sufficient time was granted by the learned trial Court to the appellant to deposit the surety bond but he did not comply with the order of the Court, therefore, the Court rightly decreed the suit. Reliance in this regard is placed on the case of Happy Family Associate through Chief Executive v. Messrs Pakistan International Trading Company (PLD 2006 Supreme Court 226) and Col. (R) Ashfaq Ahmed and others v. Sh. Muhammad Wasim (1999 SCMR 2832).
6. Arguments heard. Record perused.
7. It has been noticed that conduct of the appellant is to be considered that he appeared before the learned trial court on 07.12.2020 and also submitted an application for leave to defend which was allowed by the Court on the consenting statement of learned counsel for respondent with the direction to submit surety bond in the sum of Rs.18,00,000/- but thereafter the appellant did not deposit the same and got three opportunities. The learned trial Court withdrew the order dated 18.12.2020 through which application of the appellant for leave to defend was allowed. Thereafter, the Court did not straight away decree the suit but adjourned the same for recording of the evidence and on the next date evidence of the respondent was recorded and the suit was decreed. The appellant did not bother to file any application to get set aside the order of that very Court. He also did not file any application under Order 148, C.P.C. for extension of time in order to deposit surety bond and even when the execution proceedings were initiated he did not appear before the Court rather he filed instant RFA. On 08.02.2021 this Court directed that "subject to deposit of 50% of the decretal amount with learned Executing Court within 15 days no coercive measures shall be adopted against the appellant" but he did not deposit the said amount and when his warrants of arrest were issued by the said Court then he deposited the said amount in the learned Executing Court on 03.04.2021 and thereafter filed an application with the prayer that deposit of aforesaid amount i.e. 50% of the decretal amount be considered within time. Such attitude reflects that appellant was not entitled for any relief as he failed to fulfill the conditions specified in the conditional order granted by the Courts firstly by the learned trial Court for depositing of the surety bond and then by this Court for depositing of 50% of the decretal amount. Issuance of cheque is admitted one. In the application filed by the appellant for leave to defend, he himself mentioned that he issued the cheque and the reason for issuing the cheque, he could not defend the same as he failed to deposit surety bond, therefore, to this extent that the cheque was issued by him was an admitted fact then there was no need for the learned trial Court to record any evidence to prove the same. The grounds taken by the appellant in the application for leave to defend are contrary to what he has shown during the proceedings of the suit before the learned trial Court as well as before this Court. No plausible explanation was tendered by the appellant for non-depositing of the surety bond in compliance of order of the learned trial Court dated 18.12.2020. Even otherwise, the appellant also remained unable to explain that why he has not followed the order of this Court dated 08.02.2021 and did not deposit the 50% of the decretal amount in time whereas his claim was that he is a wealthy man and he was not in need to borrow any amount from the respondent. Leave to defend was rightly refused by the Court and admission of the appellant is there regarding issuance of the cheque and the learned trial Court rightly decreed the suit. So-far-as the contention of the appellant counsel regarding this legal aspect of the proposition that the Court should have proceeded under Order 17(2), C.P.C. instead of struck off the defence of the appellant under Order 17(3), C.P.C. is concerned, the record shows that on 18.01.2021, learned counsel for the appellant was present but order of the Court was not complied with. No application for extension of time was submitted by the appellant or on his behalf by his learned counsel, therefore, order passed by the learned trial Court for refusing leave to defend was justified and it was within the ambit of law. The essence of summary procedure for suits founded on the special documents as prescribed by Order XXXVII, C.P.C. is that defendant is not, as in ordinary suit, entitled as of right to defend the suit, the object underlying this procedure being prevent unreasonable obstruction by a defendant who has no good defence to put up. Therefore, when it is a suit upon a bill of exchange, Hundi or promissory note and the plaint and summonses are in the prescribed form, the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so as to appear and defend the suit under Rule 2, sub-rule (2) of the Order. The words "as hereinafter provided" are plain and referred to Rule 3. So, Rules 2 and 3 must be read together. Rule 3 sub-rule (1), provides for the grounds on which the Court shall give leave to appear and defend. The defendant must make an application with affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts the Court may deem sufficient to support the application. The Court allowed the appellant to defend the suit but the appellant did not comply with the order of the Court so he was not entitled for any relief from the learned trial Court who rightly recalled the order for granting leave to defend. In this regard, reliance is placed on the case of Haji Ali Khan and company Abbottabad and 8 others v. M/s Allied Bank of Pakistan Limited Abbottabad (PLD 1995 Supreme Court 362). The appellant has failed to point out any illegality or irregularity in the impugned judgment and decree passed by learned trial Court calling for interference by this Court.

Perusal of rule 11 reveals that it envisages and records 4 categories where the Court could reject a plaint and the first 3 are where the deficiencies in the plaint could be redressed.

 PLD 2022 SC 716

Perusal of rule 11 reveals that it envisages and records 4 categories where the Court could reject a plaint and the first 3 are where the deficiencies in the plaint could be redressed. For instance, under clause (a) where the plaint is rejected on the ground that it does not disclose a cause of action, subject to law of limitation, a fresh plaint could be presented by overcoming the defect and disclosing the cause of action. Likewise, under clause (b) where the plaint is rejected on failures of plaintiff to correct the valuation, again subject to law of limitation, the defect could be removed and a fresh plaint could be presented. In the same manner, under clause (c) if the plaint is rejected on failure of the plaintiff to supply the requisite stamp paper, subject to law of limitation, such defect could be remedied by supplying the court fees. However, where the plaint under clause (d) of Rule 11 is rejected on the ground that the suit is barred by any law, the filing of fresh plaint is not envisaged unless the findings declaring the suit to be barred by any law are reversed and, therefore, the withdrawal of the suit could not be allowed with the permission to file a fresh. It would of course be unlawful to revive a dead cause without bringing back the suit to life. For this very reason the Lahore High Court substituted rule 13 as reproduced above to the effect that the rejection of plaint on any of the grounds given in clause (a) to (c) in Order 11 shall not on its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. The exclusion of clause (d) appears to be well considered.
In the like manner, Order XXIII Rule 1 CPC, which allows the plaintiff to withdraw his suit or abandon part of his claim, empowers the Court to allow such withdrawal with permission to file a fresh suit. However, such permission is to be granted by the Court after satisfying itself and recording reasons that unless such permission is allowed, the suit would fail by reason of some formal defect. The Court can also allow such withdrawal with permission to file a fresh suit in case where the Court is of the view that there are other sufficient grounds for allowing plaintiff to withdraw his suit with the permission to file a fresh suit. A case law study shows that the suit may be allowed to be withdrawn in a case where the plaintiff fails to implead necessary party or where the suit as framed does not lie or the suit would fail on account of misjoinder of parties or causes of action or where the material document is not stamped or where prayer for necessary relief has been omitted or where the suit has been erroneously valued and cases of like nature. It is always to be kept in mind that where such defect could be remedied by allowing amendments, the Court should liberally exercise such powers but within the parameters prescribed by Order VI Rule 17 CPC. Besides while exercising powers under this provision the Court must identify the defect and record its satisfaction that the defect is formal and does not go to the root of the case. It is also to be kept in mind that such withdrawal would not automatically set-aside the judgment and decree which has come against the plaintiff unless such judgment and decree is set-aside by the Court after due application of mind. In the instant case, the suit was concurrently dismissed by the Courts after having been found barred by law/ time, therefore, the High Court had no power to allow withdrawal of the suit with the permission to file a fresh unless it had reversed the concurrent findings on the question of limitation. Even otherwise, if permission is granted for filing a fresh suit under Order XXIII Rule I CPC, then, pursuant to Order XXIII Rule 2, the plaintiff is bound by the law of limitation in the same manner as if the first suit had not been filed, therefore, no fresh cause of action would accrue from the date when such permission was granted by the Court.
plaintiff unless such judgment and decree is set-aside by the Court after due application of mind. In the instant case, the suit was concurrently dismissed by the Courts after having been found barred by law/ time, therefore, the High Court had no power to allow withdrawal of the suit with the permission to file a fresh unless it had reversed the concurrent findings on the question of limitation. Even otherwise, if permission is granted for filing a fresh suit under Order XXIII Rule I CPC, then, pursuant to Order XXIII Rule 2, the plaintiff is bound by the law of limitation in the same manner as if the first suit had not been filed, therefore, no fresh cause of action would accrue from the date when such permission was granted by the Court.
To cases falling in the first category; Section 5 of the Limitation Act, 1908 (hereinafter referred to as the "Act") is applicable which vests the Court with vast discretion of condoning delay in cases where the Court is satisfied that the application seeking condonation of delay discloses "sufficient cause" by accounting for each day of delay occasioned in filing the application, appeal, review or revision. On the other hand, the Courts on the original side while trying a suit as required under Section 3 of the Act are bound to dismiss the suit if it is found to be barred by time notwithstanding that the limitation has not been set up as defense. The Court has no power to condone the delay in filing the suit but could exclude time the concession whereof is provided in Section 4 to 25 of the Act only in cases where the plaintiff has set up in the plaint one of such grounds available in the Act such as disability, minority, insanity, proceedings bona fide before a Court without jurisdiction etc. and not otherwise. In fact, the language used in Section 3 of the Act is mandatory in nature and imposes a duty upon the Court to dismiss the suit instituted after the expiry of period provided,unless the plaintiff seeks exclusion of time by pleading in the plaint one of the grounds provided in Sections 4 to 25 of the Act.

Correction of date of birth in Matriculation Certificate was declined as suit was barred by time and evidence on record was grossly misread.

 Correction of date of birth in Matriculation Certificate was declined as suit was barred by time and evidence on record was grossly misread.

Civil Revision-Civil Revision (Against Decree)
50-22
BISE MULTAN VS
MUHAMMAD AFZAL
Mr. Justice Abid Hussain Chattha
19-10-2022
2022 LHC 7195








It is a settled principle of law that mere agreement does not create a title, unless it is acted upon either by its execUtant or by way of a decree from a competent Court of law.

 2022 SCMR 1857

It is a settled principle of law that mere agreement does not create a title, unless it is acted upon either by its execUtant or by way of a decree from a competent Court of law. It is a fact that the property has not been transferred to the respondent by the alleged executant of the agreement during his life time, therefore after his death, his property automatically devolved upon his legal heirs. Under such circumstances, the respondent cannot be considered as owner of the house in question on the basis of the unperformed agreement. Hencc, without gaining the status of an owner, the respondent cannot enter into any transaction in respect of the house in question. The subsequent agreement to sell arrived at between the respondents No.1 and 2 with regard to the house in question is therefore invalid, as such is unenforceable.

If a Court considers any document to be of thirty years or more old and presumes that the signature and every other part thereof, is in the handwriting of a particular person, even then, it must be taken into a consideration that whether the document so presumed, can legally be acted upon or can it create any right, title or interest?.

Article 100 of the Qanun-c-Shahadat Order 1984 describes parameters and condition for considering the evidentiary, value of thirty years old document. According to the said provisions of law, before arriving at any conclusion with regard to a presumption in respect of a document, the Court must sauSb itself about its originality, age, production from proper custody, unsuspicious character and other circumstances. The Court may make some presumption that the signature, handwriting and every other pad of such document, which purports to he in the handwriting of any particular person, is in that person's handwriting, and in the case or a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested, provided that the original is before the Court, without which no such observations can he made. The presumption of genuineness with regard to 30 years old document is discretionary. therefore, the Court generally arrives at its conclusion oil the document, after the evidence of both sides has been given. The Court is not supposed to presume every document and signature upon it as genuine, of a particular person, without considering the relevant factors, necessary to bring the document within the parameter of Article IOU of the Qanun-e-Shahadat Order, 1984.

Order XXI, Rule 1(1)(b) of the Code permits out of Court payment by the judgment-debtor through (i) bank or (ii) postal money order or (iii) payment which is evidenced in writing and signed by the decree-holder or his authorized agent.

 Order XXI, Rule 1(1)(b) of the Code permits out of Court payment by the judgment-debtor through (i) bank or (ii) postal money order or (iii) payment which is evidenced in writing and signed by the decree-holder or his authorized agent. Order XXI, Rule 2(1) of the Code makes it obligatory upon the decree holder to certify such payment or adjustment before the learned Court whose duty it is to execute the decree. However, under Order XXI, Rule 2(2) of the Code judgment debtor can also inform the Court and apply the learned Court to issue notice to the decree-holder as to show cause as to why such payment or adjustment should not be recorded as certified.

There is no requirement in Order XXI, Rule 1(1)(b) of the Code that the acknowledgment must bear the revenue stamps. In this regard aforesaid rule merely requires that the this out of Court payment should be evidenced in writing and signed by the decree-holder or his authorised agent. Furthermore, the legislature has used the word ‘may’ in Rule 2(2) ibid, when allowing the judgment-debtor to apply or inform the Court regarding out of Court payment made to decree-holder. The relevant provisions do not provide any consequence for not informing or applying the concerned learned Court after such payment through permissible mode, either.

Writ Petition No.3377 of 2022/BWP
Muhammad Abbas versus Additional District Judge & 2 others
Date of hearing 03.08.2022











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