2022 SCMR 584
PLJ 2023 Peshawar 44
Civil Procedure Code, 1908 (V of 1908)--
----O.IX R. 13--Constitution of Pakistan, 1973, Art. 199--Suit for dissolution of marriage recovery of dower and maintenance allowance--Ex-parte decreed--Application for setting aside ex-parte decree--Dismissed--Time-barred--Application for setting aside ex-parte decree was filed after getting knowledge of ex-parte decree--Question of whether time limitation for filing application was to be reckoned from date of ex-parte proceedings so initiated or from date of receipt of notice of ex-parte decree--The main claim of petitioner is that his application for setting aside exparte decree is within time for good reason that he received notice of exparte decree on 30.5.2019 and on same day he applied for obtaining attested copies of order while on next day he filed subject application--Record reveals after getting knowledge of ex parte decree, application filed by petitioner is well within time--Counsel for Respondent No. 1 has not been able to show any law to rebut contention of petitioner regarding getting knowledge of exparte decree from date of receipt of notice--Lis should not be knocked out on technical grounds but endeavour of Courts should be to decide matters, involving valuable rights of parties, on merits and party to litigation should not be non-suited on mere technical grounds--ADJ was wrong in his findings through judgment impugned herein--Petition accepted.
[Pp. 46, 47 & 48] A, C, D, G & H
Ref. 2006 SCMR 631, 2008 SCMR 287, PLD 2015 Pesh. 59.
Limitation Act, 1908 (IX of 1908)--
----Art. 164--Ex-parte decree--Article 164 of Limitation Act, 1908 is applicable to an application by a defendant for an order to set aside a decree passed exparte and prescribed period of limitation of 30 days starts running from date of decree, where summons is not duly served, when applicant has knowledge of decree. [P. 46] B
Family Courts Act, 1964 (XXXV of 1964)--
----S. 9(6)(7)--Ex-parte decree--It is imperative upon Family Court to send notice to defendant regarding grant of an exparte decree passed against him through process server or by registered post, acknowledgment due or through courier service or any other mode or manner as it deems fit--In view of section 9(7) of Family Courts Act, 1964, thus, onus was shifted to petitioner/defendant to prove that copy of exparte decree has been sent to him that, in turn, he has proved through producing sufficient record. [P. 48] E & F
PLJ 2017 Pesh. 1.
Mr. Muhammad Mohsin Ali, Advocate for Petitioner.
Mr. Shakil Ahmad Katikhel, Advocate and Mr. Muhammad Kamran Baloch, Advocate for Respondents.
Date of hearing 22.9.2022.
Judgment
Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner Muhammad Jalil has called in question the judgment dated 28.2.2022 rendered by learned District Judge-II, D.I.Khan, whereby his appeal against the order dated 25.11.2021 of learned Civil Judge-1/Judge Family Court-I, D.I.Khan was dismissed being time barred.
2. Precise summary of the case is that the Respondent No. 1 filed a suit for recovery for dissolution of marriage, dower, maintenance, dowry and gold ornaments etc against the present petitioner before learned Civil Judge-IX/Judge Family Court, D.I.Khan. When put on notice by the Court, the petitioner/defendant appeared and contested the suit by filing his written statement but later on remained absent before the Court, thus was placed and proceeded exparte. After recording exparte evidence of plaintiff/respondent, partial exparte decree was passed in favour of Respondent No. I vide order dated 24.4.2019. Not contended with the same, the petitioner filed an application for setting aside ex-parte decree, which was dismissed by the learned trial Court on 25.11.2021. Feeling disgruntled from the said order, the petitioner preferred an appeal before learned appeal Court, which was also dismissed vide judgment dated 28.02.2022, hence the instant writ petition.
3. I have considered the arguments of learned counsel for the parties and perused the record with their valuable assistance.
4. Perusal of the record manifestly shows that impugned judgment and decree was passed on 24.4.2019 by learned trial Court while the application for setting aside exparte decree was filed on 31.5.2019 with a delay of more than 09 days. The main claim of the petitioner is that his application for setting aside exparte decree is within time for the good reason that he received notice of the exparte decree on 30.5.2019 and on the same day he applied for obtaining attested copies of the order while on next day i.e 31.5.2019, he filed the subject application. Admittedly, the petitioner had participated in trial before the learned Family Court and thereafter due to his absence, he was placed exparte which culminated into exparte decree in favour of the Respondent No. 1. In the instant case, the attitude and conduct of the petitioner is not a question but this Court has to consider the law point involved in it i.e whether the time limitation for filing application was to be reckoned from the date of exparte proceedings so initiated or from the date of receipt of notice of exparte decree?
5. After delving into the record, it is manifestly clear that petitioner has established his plea that he got knowledge when he received notice of exparte decree i.e on 30.5.2019. In legal parlance, Article 164 of the Limitation Act, 1908 is applicable to an application. by a defendant for an order to set aside a decree passed exparte and the prescribed period of limitation of 30 days starts running from the date of the decree, where the summons is not duly served, when the applicant has knowledge of the decree. The record reveals after getting knowledge of exparte decree, the application filed by the petitioner is well within time. The apex Court, while placing reliance on case Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen (2006 SCMR 631), has also held a similar view in case Secretary Education Department, Government of N.W.F.P., Peshawar and others v. Asfandyar Khan (2008 SCMR 287) as:
“Article 164 of Limitation Act provides 30 days to file application for setting aside ex-parte decree because petitioner/defendant had participated in the proceeding before the trial.”
6. This Court, in case of Khayal Badshah v. Afzal Khan and 4 others (PLD 2015 Peshawar 59) has held the same view that if summons were served upon the defendant, period to set aside ex-parte decree would be governed under Article 164 of the Limitation Act which would be reckoned from the date of decree and if the summons was not served, the period for moving the application under Order IX Rule 13 C.P.C. would be reckoned from the date of acquiring knowledge of the ex-parte decree, in both the cases, it would be thirty (30) days as prescribed under Article 164 of the Limitation Act.
7. Learned counsel for the Respondent No. 1 has not been able to show any law to rebut the contention of petitioner regarding getting knowledge of exparte decree from the date of receipt of notice despite being given an opportunity to produce dictums of the Hon’ble Supreme Court of Pakistan in relation to section 9(7) of Family Courts Act, 1964. For ready reference, the sections 9(6) and 9(7) of Family Courts Act, 1964 are reproduced as under:
Sections 9(6) and 9(7) of Family Courts Act 1964
(6) In any case in which a decree is passed ex-parte against a defendant under this Act, he may apply within [32][thirty days of the service of notice under subsection (7) of the passing of the decree] to the Family Court by which the decree was passed for an order to set it aside, and if he satisfies the Family Court that he was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was heard or called for hearing, the Family Court shall, after service of notice on the plaintiff, and on such terms as to costs as it deems fit, make an order for setting aside the decree as against him, and shall appoint a day for proceeding with the suit; provided that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside against all or any of the other defendants also.
(7) The notice of passing of the ex-parte decree referred to in sub-section (6) shall be sent to the defendant by the Family Court together with a certified copy of the decree within three days of the passing of the decree, through process server or by registered post, acknowledgement due, or through courier service or any other mode or manner as it may deem fit.
8. It is worth mentioning that it is imperative upon the Family Court to send notice to the defendant regarding the grant of an exparte decree passed against him through process server or by registered post, acknowledgment due or through courier service or any other mode or manner as it deems fit. In the instant case, it is apparent from the perusal of the exparte order dated 24.4.2019, wherein it is mentioned that certified copy of this order/judgment alongwith certified copy of decree sheet be sent to the defendant and concerned Union Council within three days positively through registered posts upon the expenses of plaintiff. In this respect, the petitioner stated that copy of exparte decree has been delivered to him on 30.5.2019 in view of section 9(7) of Family Courts Act, 1964, thus, onus was shifted to the petitioner/defendant to prove that copy of exparte decree has been sent to him that, in turn, he has proved through producing sufficient record. In holding this view, I am also fortified by the judgment laid down by this Court in the case titled Syed Agha Hussain Shah and others vs. Mst. Deena Bibi and others (PLJ 2017 Peshawar D.I.Khan Bench). Therefore, it is held that the application for setting aside the ex-parte decree was filed within a reasonable time. Even otherwise it has been observed in the numerous authorities laid down by the supenor Courts that lis should not be knocked out on technical grounds but endeavour of the Courts should be to decide the matters, involving valuable rights of the parties, on merits and party to the litigation should not be non-suited on mere technical grounds.
9. Relying upon the dictum laid down by the apex Court as well as section 9(7) of the Family Courts Act, 1964, I am of the considered view that the learned Additional District Judge-II, D.I.Khan was wrong in his findings through the judgment impugned herein. Therefore, this writ petition is accepted, the impugned order dated 24.4.2019 and judgment dated 28.2.2022 are set aside and the application of the petitioner for setting aside the judgment and decree dated 24.4.2019 is allowed. The case is remanded to the learned Judge Family Court-I, D.I.Khan with the direction to decide the suit filed by Respondent No. 1 Mst. Nageena Bibi on merits within a period of four months expeditiously.
(Y.A.) Petition accepted
PLJ 2023 Peshawar 16
Family Courts Act, 1964 (XXXV of 1967)--
----S. 5 r/w entry 5 Part-I of schedule--Constitution of Pakistan, 1973, Art. 199--Suit for grant of visitation rights--Application for recording of statement of minor to her willingness--Dismissal of suit on ground of maintainability--Inherent right of parents--It is inherent right of parents to have visitation rights with their children and depriving any of spouce of such visitation right, will certainly have an effect on personality of minor--High Court is not appreciating order of Judge, Family Court, whereby, even gift, given by petitioner, was returned--Both the orders of Courts below are against law and cannot be sustained--Petition allowed.
[Pp. 19 & 20] A & B
2020 CLC 1353, 2020 YLR 401 and 2019 MLD 804 ref.
Mr. Muhammad Tariq Afridi, Advocate for Petitioner.
Mr. Iftikhar Ahmad Siddiqui, Advocate for Respondents.
Date of hearing: 21.3.2022.
Judgment
This writ petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:-
"It is, therefore, most humbly prayed that on acceptance of this writ petition, this Hon'hie Court may graciously be pleased to:-
1. Declare the impugned orders of the Respondents No. 3 and 4 as illegal, without lawful authority, ultra-vires and of no legal effect and claim of the petitioner may kindly be declared with cost throughout".
2. Facts leading to the institution of this writ petition are that initially petitioner has filed a suit family suit alongwith an application for interim relief against the Respondent No. 1 for visitation with his daughter/Respondent No. 2 before the learned Judge, Family Court, Peshawar. Respondent No. 1 was summoned by the learned Family Court who appeared and contested the suit and application by filing written statement and written reply, besides, also submitted an application for recording the statement of Respondent No. 2/minor with regard to her willingness or otherwise for meeting with the petitioner. The aforesaid application was replied by the petitioner, however, vide order dated 30.06.2021, the learned Trial Court issued direction for the production of minor. On 03.07.2021, the learned Family Court recorded the statement of the minor in Chamber and dismissed the suit of the petitioner on the ground of maintainability. Being aggrieved, petitioner filed appeal before the learned District Judge, Peshawar who entrusted the same to the learned Additional District Judge III, Peshawar for its disposal and vide the impugned judgment dated 06.10.2021, the same was also dismissed. Hence, this writ petition.
3. Arguments heard and record perused.
4. Perusal of the record reveals that petitioner has filed a suit for the grant of decree for visitation rights in respect of Respondent No. 2/minor, being his real daughter before the learned Judge, Family Court, Peshawar in terms of Section 5 of the Family Courts Act read with Entry 5 of the Part-I of the Schedule. Interestingly, when an application was filed for the dismissal of suit of the petitioner on the ground of maintainability, the learned Judge, Family Court vide order dated 19.05.2021 dismissed the same and held the suit as maintainable under the Family Courts Act, 1964, however, again, on interviewing the minor namely Malalai aged about 14 years in the chamber, dismissed the suit of the petitioner holding that allowing visitation to the petitioner is not in the welfare of the minor. Appeal filed there against was also dismissed by the learned Additional District Judge-III, Peshawar vide judgment dated 06.10.2021.
5. This Court considered the orders of the learned Courts below as unprecedented and infact against the interest of minor.
6. The Hon'ble Sindh High Court, in the case of Mst. Abeera Khan, held that "real parents have an inherent right to meet and visit their children".[1]
7. The apex Court, in the case,[2] has given a comprehensive plan, though with the consent of parties, with regard to custody, visitation rights, maintenance of minors and obligations of both parents.
8. The Single Judge of the Hon'ble Sindh High Court, in Mst. Muneeba Raheel's case, while commenting upon the rights of a father to visit his minor children, held that "real father could not be deprived of his right to meet his daughter and/or spend time with her--Such restraint would lead to/cause emotional deprivation of the minor daughter on both sides--Child not only needs love, affection, care and attention of a mother but also that of a father'.[3]
9. The Hon'ble Lahore High Court (Multan Bench), in Mst. Ayesha Abdul Maleek's case, has held that "intelligence preferences of a minor can be looked into in cases of custody of minor. Though. the minor has shown her aversion towards the petitioner but the petitioner cannot be denied to have company of her minor daughter. because the same cannot be denied to a mother/father vice versa'.[4]
10. The Hon'ble Sindh High Court (Hyderabad Bench), in the case of Mst. Hira, held that "Muhammad Arif is real father of minors namely Dua and Muhammad Ashir and his visitation rights involving the rights of minors/awards towards their father. whose fatherly supervision, channelizing their activities. which would be beneficial for the welfare of the minors/wards, cannot be denied'.[5]
11. The Hon'ble Lahore High Court, in the case of Shaukat Khalid, held that "it may be mentioned that although preference of the minor may. in such cases, be taken into consideration but it is not always relevant because the minor is not the best Judge as to where his (or her) welfare lies. We have noticed generally that a child is apt to prefer to continue living with the parents or relative with whom he/she has been allowed to live for sometime as such person is in a position, be it the father or the mother, to brainwash the child against the other claimant to the child's custody".
The learned Court in case of Shaukat Khalid supra further held that the preference expert doubt, relevant, but not final or binding on the Courts. It has to be judged with reference to the welfare of the minor. The minor being under the direct influence of the petitioner and apparently tutored rather brainwashed by her, has levelled wild allegations against her own parents and even stated that she would die rather than go to her parents. Immature as she is she cannot visualise the hazards of life and exercise sound discretion qua her welfare. It is the duty of the Court while exercising its parental jurisdiction, to judge the welfare of the minor in the context of the facts and circumstances of each case".[6]
12. Same view was further expressed by the Hon'ble Islamabad High Court in the case titled "Mst. Isbah Rashif vs. Additional District Judge, Islamabad-West and others (2021 CLC 1089)".[7]
13. The Hon'ble Lahore High Court (Rawalpindi Bench), in the case of Mst. Shahida Adnan, held that "as regard chalking of meeting schedule of minor with the Respondent No. 3 is concerned, the learned Guardian Judge has rightly passed the judgment because the father could not be denied right of access to his minor daughter nor would he be considered an alien enemy to her. The minor/daughter would not only need love, affection, care and attention of her mother but also the company and guiding hand of father. Therefore, negating father of his right to meet his daughter would lead to emotional deprivation. Hence, the learned Courts below have rightly chalked out reasonable visitation/meeting schedule of the minor with the father in light of the dictum laid down by the Hon’ble Supreme Court of Pakistan in the judgment cited as "Mst. Madiha Younus v. Imran Ahmed" (2018 SCMR 1991).[8]
14. This Court also subscribes to the above and is also of the view that it is the inherent right of the parents to have visitation rights with his/her children and depriving any of the spouce of such visitation right, will certainly have an effect on the personality of the
child/minor. Admittedly, the minor shall carry the parentage with her throughout her life and such relation shall remain throughout as neither Islam nor the land laws allow such renunciation.
15. This Court is not appreciating the order of the learned Judge, Family Court, whereby, even the gift, given by the petitioner, was returned. Both the orders of the learned Courts below are against the law and cannot be sustained. Accordingly, they are struck down and the case is remanded to the learned Judge, Family Court, Peshawar to first pass an interim order allowing the visitation rights to the petitioner and thereafter in accordance with the judgment of the Hon'ble Supreme Court of Pakistan in the case of Mst. Madeeha Younus (supra) to chalk out a comprehensive plan pertaining to the visitation rights and other obligations of both parents.
16. This writ petition is allowed in the above terms.
(Y.A.) Petition allowed
[1]. Mst. Abeera Khan vs. Adnan Jamel and another (2019 CLC 1478).
[2]. Mst. Madeeha Younus vs. Imran Ahmed (2018 SCMR 1991).
[3]. Mst. Muneeba Raheel vs. Raheel Taufiq Feroz and another (2020 CLC 1353).
[4]. Mst. Ayesha Abdul Maleek vs. Additional District Judge, Sahiwal and 2 others (2020 YLR401).
[5]. Mst. Hira vs. 7th Additional Sessions Judge, Hyderabad and another (2019 MLD 804).
[6]. Mrs. Shaukat Khalid vs. Additional District Judge, Rawalpindi (1989 CLC 1377).
[7]. Jehangir Siraj Dogar vs. District Judge and another (2021 YLR 1299).
[8]. Shahida Adnan vs. Additional District Judge and others (2021 YLR 1915).
PLJ 2023 Peshawar 11
Specific Relief Act, 1877 (I of 1877)--
----Ss. 39, 42, 54 & 55--Suit for declaration, cancellation of mutations, permanent and mandatory injunction--Dismissal of suit and appeal--Gift mutations by petitioner’s father in favour of respondent--Gift mutations were never challenged by donor in his life time--Limitation--Petitioner was remained silent after death of his father--Petitioner challenged authenticity of gift Mutations executed by his father in favour of brother of petitioner Defendant No. 1, by contending that both said mutations are based on fraud--Donor was a man of prudent mind and he, during his life time, did not raise objection over alienation of suit property by Respondent No. 1--Documentary evidence not only portrays knowledge of petitioner about suit transactions but' also that he remained silent, and after death of his father, he filed present suit--This fact not only constitutes estoppel and never on part of petitioner but also exposes him before law of limitation--As far proof of execution of impugned gift mutations is concerned, suffice it to say that petitioner, during his evidence, categorically admitted same. PW-3 admitted that (father) had given his property to Respondent No. 1--Where petitioner failed to prove his initial burden and his claim too is hit by law of limitation, whereas, respondent produced all alive witnesses who supported suit mutations coupled with fact that conduct of petitioner by itself goes in line with proof of execution of mutations in question--Revision petition dismissed.
[Pp. 13, 14, 15 & 16] A, B, C, D & E
2002 SCMR 1330, PLD 2014 SC 167 and 2007 SCMR 1446 ref.
Mr. Ahmad Ali Advocate for Petitioner
Mr. Arif Raheem Ustarana Advocate for Respondents.
Date of hearing: 21.6.2022.
Judgment
Petitioner has filed this petition within the contemplation of Section 115 of the Code of Civil Procedure (Act-V) 1908 calling in question the vires of Judgment & Decree dated 19.11.2015 passed by the learned Additional District Judge-I, D.I.Khan, whereby appeal of petitioner, filed against dismissal of his suit vide Judgment & Decree dated 23.04.2014 rendered by learned civil Judge-VI D.I.Khan, stood dismissed.
2. Facts forming factual canvas of the instant petition are that the petitioner filed a declaratory suit seeking therein cancellation of Mutations No. 62 dated 21.12.1974 and No. l40 dated 13.05.1978, pertaining to the land described in the head-note of plaint, executed in favour of Respondent No. 1 by the father of parties namely Shah Muhammad on the ground that sale were based on fraud; and therefore, revenue record to this extent is liable for correction. He also prayed for issuance of permanent prohibitory and mandatory injunction, restraining Respondent No. 1 from claiming his rights on the basis of suit mutations and to get correct entries entered in the record of rights. Besides, he prayed for decree of possession.
3. The Respondent No. 1 contested the suit, filed his written statement; whereafter the learned trial Court framed issues and recorded pro & contra evidence per choice of the parties. Finally, upon hearing arguments, the suit stood dismissed vide Judgment & Decree dated 23.04.2014 rendered by learned Civil Judge-VI, D.I.Khan. The Petitioner preferred an appeal against the dismissal of his suit, which too was dismissed by the learned Additional District Judge-I D.I.Khan, vide Judgment & Decree dated 19.11.2015; hence, the petitioner/plaintiff filed instant petition before this Court.
4. Arguments of the learned counsel for parties heard at length and record gone through with their valuable assistance but for the sake of brevity, without reproducing the arguments of the counsels, same will be adequately dealt with at appropriate stages in this judgment.
5. According to record, the petitioner challenged the authenticity of gift Mutations No. 62 attested on 21.12.1974 and No. 140 attested on 13.05.1978, executed by his father Shah Muhammad in favour of brother of petitioner namely Tahir Sherani, the Defendant No. 1, by contending that both the said mutations are based on fraud. There can be no denial of the fact that Shah Muhammad Sherani, father of parties, was serving as Divisional Engineer in PTCL and he remained alive for 30 years after the execution of impugned gift mutations and died somewhere in 2003. In this case though the beneficiary of Defendant No. 1, Tahir Sherani, he is under the legal obligation to prove the execution of both the gift mutations, but as the petitioner alleged fraud, therefore, initial burden lies upon the petitioner to prove that how, when and who committed the fraud and under what mode and manner. Rule 4 of Order VI, CPC provides
that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful or undue influence, and in all other cases in which particulars may be necessary beyond such as are in the form exemplified aforesaid, particulars with dates and items, if necessary, shall be stated in the pleadings. In case of Bal Gangadhar Tilk and others vs. Shrinivas Pandi and others (AIR 1915 Privy Council 7), it was held by the Privy Council that general allegations in pleadings, however strong may the words in which they are stated to be, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. In view of the dictum laid down by the Honourable Supreme Court in the case of Messrs, SAZCO (Pvt.) Ltd. vs. Askari Commercial Bank Limited (2021 SCMR 558), it can be safely concluded that the plaint of this Suit and the claim made thereunder, which are based solely on the allegations of fraud, are not compliant of the mandatory requirement of Rule 4 of Order VI, CPC.
6. As mentioned above, the donor of the impugned gift mutations was a literate person who remained posted as Divisional Engineer in PTCL and remained alive till the year 2003. Therefore, the donor was a man of prudent mind and he, during his life time, did not raise objection over the alienation of suit property by Respondent No. 1 through Mutations No. 2333, 2355, 2370, 2666 etc during the period 1999 to 2000 as referred in Ex.P.W.1/5 and even mortgage of some of the land in favour of Zarai Taraqiati Bank Ltd and Habib Bank Limited, by the Respondent No. 1, has also been referred in the Ex.P.W.l/6. Silence of father over sale and mortgage of property by the son (Respondent No. 1) amount to recognition of the fact that father deliberately transferred the property in favour of his elder son; and therefore, the petitioner being another son cannot challenge the impugned mutations. Worthy Supreme Court in a number of cases has held that if a transaction was not challenged by the father, then his son, after his death, will lack locus standi to challenge the same. Reliance in this regard is placed on the case of Abdul Haq and another vs. Mst. Surrya Begum and others (2002 SCMR 1330) wherein it was held:
"11. Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late in 1979 about nine years after the sanction of mutation which had already been given effect to in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently, for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his lifetime."
Same view was reiterated in the case of "Mst. Grana through Legal Heirs and others vs. Sahib Kamala Bibi and others" (PLD 2014 Supreme Court 167). Hence, in view of the guidance derived from the above verdict of the worthy Apex Court, the petitioner has no locus standi to challenge the suit mutations as same were not challenged by his father.
7.Besides, it is evident from the record that after attestation of impugned Mutation No. 140 dated 13.05.1978, the Respondent No. 1 transferred an area measuring 10 Kanals in favour of the petitioner through Mutation No. 141 dated 13.05.1978. Thereafter, petitioner himself sold the said landed property through various, mutations available on the file as Ex.P.W.2/D-4 to Ex.P.W.2/D-7; and out of these mutations, vide Mutation No. 1675 dated 27.03.1990 (Ex.P.W.2/D-5) petitioner sold an area measuring 01 Kanal to the Respondent No. 1. This documentary evidence not only portrays the knowledge of petitioner about the suit transactions but' also that he remained silent, and after the death of his father, he filed present suit on 29.03.2011. This fact not only constitutes estoppel and waiver on the part of petitioner but also exposes him before law of limitation. In the case of "Atta Muhammad vs. Maula Bakhsh and others" (2007 SCMR 1446) august Supreme Court of Pakistan held:
"Findings of the learned two Courts is that the plaintiffs were out of possession and they have not been able to establish receipt of rent and profits from the land, although the appellant claimed to the contrary. This was the second misrepresentation which disentitled the plaintiffs to any relief in equitable jurisdiction. The learned two Courts held that the suit was barred by time but the learned High Court, by making a sweeping statement, that there is no limitation in the cases of inheritance has, in fact, rewritten the law of limitation. "
8. In this view of the matter, two aspects which constitute knowledge of petitioner are, first, the date of attestation of Mutation No. 141 in favour of petitioner i.e. 13.05.1978, and second, the date of attestation of Mutation No. 1675 by petitioner in favour of respondent No. 1 i.e. 27.03.1990; whereas, the suit in hand was instituted before the Civil Court on 29.03.2011, and as such, the suit is badly and hopelessly time-barred. Thus, a stale claim under the law of limitation cannot be enforced legally as the passage of time sets the law of limitation in operation and there can be no exception unless the relaxation is granted by the Limitation Act 1908 by itself. Reliance is placed on the case of “Umer Baz Khan through L.Hrs vs. Syed Jehanzeb & others" (PLD 2013 S.C. 268), “Mst. Grana through Legal Heirs and others vs. Sahib Kamala Bibi and others" (PLD 2014 Supreme Court 167).
9. As far the proof of the execution of impugned gift mutations is concerned, suffice it to say that petitioner, during his evidence, categorically admitted the same. PW-3 admitted that Shah Muhammad (father) had given his property to Respondent No. 1. Likewise, petitioner in his statement recorded as PW-8 stated that
"جب والد صاحب سے کہتے کہ رقبہ ہمیں بھی دو تو والد صاحب یہ کہتے تھے کہ طاہر شیرانی آپ کو رقبہ دے دے گا۔"
This portion of the cross-examination of PW-8/petitioner affirms that petitioner was in the knowledge of gift mutations. Respondent No. 1 produced and examined the alive witnesses of the suit mutations, whereas, some of the witnesses are dead, whose testimony went in line with the claim of Respondent No. 1.
10. As such, in the attending circumstances, where petitioner/ plaintiff failed to prove his initial burden and his claim too is hit by the law of limitation, whereas, respondent/beneficiary produced all the alive witnesses who supported the suit mutations coupled with the fact that conduct of petitioner by itself goes in line with the proof of execution of mutations in question, both learned Courts below have rightly non-suited the petitioner. The decision so arrived at by the two learned Courts below is unexceptional and need not to be interfered with by this Court in its limited revisional jurisdiction. Consequently, this revision petition fails which stands dismissed with no order as to cost.
(Y.A.) Petition dismissed
2022 SCMR 2040
2023 MLD 47
PLJ 2023 Peshawar 6 (DB)
West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----S. 175--Constitution of Pakistan, 1973, Art. 199--Civil Procedure Code, (V of 1908), O.XXIX, Rr. 1 & 2--Rejection of application for interim relief--Application before D.C. for possession of suit property--Property was handed over to respondents--Co-owners--Shamilat-e-deh--Mala fide--Collusion of revenue officials with private respondents--Nature of property is shamilat-e-deh--Both parties are admittedly co-owners--Section 175 of act has no application in matter when there is dispute between two co-owners in respect of property which has not been reserved for any purpose rather is either agriculture or non-agriculture property being enjoyed by person in possession--Revenue official have not only acted without any jurisdiction but mala-fide and collusion of revenue officials as well as private respondents is evident from record--It is a classic example of misuse of authority by revenue officials which in our humble view can be corrected by High Court while exercising constitutional jurisdiction despite availability of remedies available to aggrieved person--Petition allowed.
[Pp. 8, 9 & 10 ] A, B, D & E
2009 SCMR 688, 1999 SCMR 2325, 2004 YLR 322 &
2014 YLR 2046 ref.
Constitution of Pakistan, 1973--
----Art. 199--Remedy of appeal/revision--High Court can only in its constitutional jurisdiction rectify and amend a wrong order or a mistaken conclusion of lower appellate Courts while exercising its jurisdiction under article 199 of the Constitution of Islamic Republic of Pakistan. [P. 10] F
1999 SCMR 1072.
Constitution of Pakistan, 1973--
----Art. 199--Exercising of jurisdiction--Where an order is attacked on ground that it was wholly without authority, whereas, statutory functionary acts mala-fide or in a partial, unjust and oppressive manner, High Court in exercise of its jurisdiction has power to grant relief to aggrieved party. [Pp. 10 & 11] G
2007 SCMR 1357, PLD 2008 SC 135 & PLD 2006 SC 697 ref.
Specific Relief Act, 1877 (I of 1877)--
----S. 9--Remedy for aggrieved person----In case where a co-sharer in possession on a portion of joint property is dispossessed by another co-sharer, remedy for aggrieved person is either to bring a suit for possession under Section 9 of Specific Relief Act 1877 or possession through partition before appropriate forum. [P. 10] C
Mr. Tariq Kamal, Advocate for Petitioners.
Mr. Rab Nawaz Khan, AAG, alongwith Waqif Khan, Tehsildar Pabbi, District Nowshera.
Mr. Muneer-ud-Din Ghori, Advocate for Respondents No. 3
to 7.
Date of hearing: 13.5.2022.
Judgment
Syed Arshad Ali, J.--Fazal Khan and six others who are co-owners in the disputed property comprised of Khasra No. 275 situated at Village Dag Ismail Khel, Tehsil Pabbi District Nowshera; through the instant constitutional petition have challenged the order of Additional Deputy Commissioner, Nowshera dated 07.03.2022 whereby; the possession of the suit property was handed over to the private Respondents No. 3 to 7.
2. Arguments heard and record of the case was perused.
3. It is evident from record that Respondent No. 3 and 7 and one Akhtar Ali son of Janz Ali; on 13.11.2018 had filed a civil suit before the civil Court at Nowshera; seeking a decree for perpetual injunction/mandatory injunction against the present petitioners claiming that their predecessor in interest are in possession of the suit property bearing Khasra No. 275 measuring 179 kanals and 5 marlas to the extent of more than 40 kanals and the entries in the names of the present petitioners (defendants) in the column of cultivation in the respective jamabandi relating to the suit property are wrong and incorrect on their rights.
4. The suit was contested by the present petitioners through their written statement. The learned trial Court vide order dated 14.11.2019 had dismissed the application of the Plaintiff for temporary injunction and asked the parties to argue the case on the maintainability of the suit.
5. The said order was challenged by the Plaintiffs/Respondents through civil miscellaneous appeal No. 94/14 of 2019 before the learned appeal Court. The learned appeal Court vide judgment dated 05.12.2019 dismissed the appeal. The Respondents had then filed a civil revision against the concurrent findings of both the Courts below before this Court which too met the same fate and was dismissed by this Court vide judgment dated 28.09.2020.
6. On 18.11.2021, the Private Respondents had filed an application before the Deputy Commissioner Nowshera for possession of the suit property through their attorney, purportedly under Section 175 of the West Pakistan Land Revenue Act, 1967 (“Act of 1967”). It is averred in the said application that the said attorney namely Weseem-ur-Rehman has also purchased land measuring 33 kanals from the Private Respondents. The application was marked by the Deputy Commissioner to the tehsildar concerned; who had allegedly inspected the spot and handed over the disputed property to the respondents vide impugned order dated 22.03.2022.
7. It is evident from record that the nature of the property is shamilat-e-deh which is comprised of Khasra No. 275 total measuring 179 kanals and 5 marlas. Both the parties are admittedly co-owners in the said Khasra number. The Respondent No. 1 has allegedly exercised jurisdiction under Section 175 of the Act of 1967. The main assertion of the learned counsel for the petitioners was that Section 175 of the Act of 1967 is not applicable to the present case, therefore, in order to resolve this issue, let us go through Section 175 of the Act of 1967 which reads as under:-
“175. Prevention of encroachment upon common lands.--(1) Where land which has been reserved for the common purposes of the persons residing in the estate in which such land is situate has been encroached upon by any person, and the land has been shown encroachment as so reserved, a Revenue Officer may, on the application of a land-owner in the estate, and after giving an opportunity to the person alleged to have encroached upon it to appear before him and show-cause against the proposed action--
(a) eject from the land the person who has encroached thereupon; and
(b) by order proclaimed in the manner provided in section 26, forbid repetition of the encroachment;
Explanation.--An edition of the record-of-rights made before the coming into force of this Act, under the provisions of section 33 of the Punjab Land Revenue Act, or under the provisions of any other law repealed by this Act, shall be deemed to be a periodical record for the purposes of this section.
(2) The proceedings of the Revenue Officer under sub-section (1) shall be subject to any decree or order which may be subsequently passed by any Court of competent jurisdiction.
8. In order to understand the application of Section 175 of the Act of 1967 ibid, we have to break Section 175 of the Act of 1967 as following:
i. that a particular land has been reserved by the proprietary body of the village for a common purpose;
ii. the said land has been encroached by any person;
iii. the revenue officer; on the application of any land owner in the estate may proceed in the matter and after serving upon the alleged encroacher, a show-cause notice and if not satisfied with the explanation of the alleged encroacher, if any, may pass an order for ejectment of encroacher in order to preserve/restore the property for the purpose for which it was reserved.
9. The bare perusal of the aforesaid provision would show that the revenue officer can assume jurisdiction in the circumstances for example; when a particular property is commonly reserved by a proprietary body of a village for the purpose of pasture, graveyard or other similar propose and in case any person either belonging to the proprietary body or stranger has encroached upon the said property, the revenue officer has the jurisdiction to intervene in the matter and recover the possession of the property from the encroacher by restoring it for the purpose for which it was reserved. This section has no application in the matter when there is dispute between two co-owners in respect of the property which has not been reserved for any purpose rather is either agriculture or non-agriculture property being enjoyed by the person in possession.
10. The law is by now settled that in case where a co-sharer in possession on a portion of joint property is dispossessed by another co-sharer, the remedy for the aggrieved person is either to bring a suit for possession under Section 9 of the Specific Relief Act 1877 or possession through partition before the appropriate forum. “Contractor Haji Muhammad Alam (deceased) through Legal Heirs vs. Shaukat Sultan and others (2009 SCMR 688), Mst. Resham Bibi and others vs. Lal Din and other (1999 SCMR 2325), Nazar Hussain vs. Additional District Judge, Chakwal and 4 others (2004 YLR 322), Mahmood Ahmad vs. Abdul Ghafoor and others (2014 YLR 2046).”
It is for the obvious reasons that when a particular land which is jointly owned by co-owners, the revenue authorities do not maintain record in respect of each holding of co-share in a particular Khasra number by meets and bounds.
In the present case, the Revenue official as evident from the record have not only acted without any jurisdiction but the mala-fide and collusion of the revenue officials as well as the private respondents is evident from record.
11. Indeed, it is a classic example of misuse of authority by the revenue officials which in our humble view can be corrected by the High Court while exercising constitutional jurisdiction despite the availability of remedies available to the aggrieved person under the hierarchy established under the Act of 1967.
12. Indeed, it is by now settled that the rule about invoking the constitutional jurisdiction of a High Court only after exhausting all other remedies, is a rule of convenience and discretion by which the Courts regulate its proceedings and it is not a rule of law affecting the jurisdiction. A constitutional petition can be entertained against an order passed by a Court or authority established under any law, by exceeding its jurisdiction; even if the remedy of appeal/revision against such order is available, depending upon the facts and circumstances of each case. “Gatron (Industries) Ltd vs. Government of Pakistan and others (1999 SCMR 1072).” Similarly, in the case of “The Murree Brewery Co.Ltd vs. Pakistan Through the Secretary to Government of Pakistan, Works Division and 02 others”, the Hon’ble Apex Court has held, “the rule that the High Court will not entertain a writ petition when other appropriate remedy is available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. One of the well-recognized exception to the general rule is a case where an order is attacked on the ground that it was wholly without
authority, whereas, statutory functionary acts mala-fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its jurisdiction has power to grant relief to the aggrieved party”. Similar view has been reaffirmed by the Apex Court in the case of “Collector Customs (Valuation) and another vs. Karachi Bulk Storage and Terminal Ltd (2007 SCMR 1357), Muslimabad Cooperative Housing Society through Secretary vs. Mrs. Siddiqa Fiaz and others (PLD 2008 SC 135), Wattan Party through President vs. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others (PLD 2006 SC 697).”
13. In view of the above, we admit and allow this petition by setting aside the impugned judgment and order dated 07.03.2022 passed by the respondents and direct the respondents to restore possession of the property to the present petitioners within a period of one month.
(Y.A.) Petition allowed
