2021 C L C 684
Qanun-e-Shahadat (10 of 1984)---
----Art.150---Question by party to his own witness---Scope---Sine qua non for the beneficiary to examine the concerned person to prove construction of the document and the moment he makes an adverse statement, request for declaring him hostile can be made to illustrate/dig out truth through art of cross examination---Requirement of law cannot be excused.
-Courts to dispense with justice while performing within the parameters of the law and law alone.
----Decree against dead person is nullity in the eyes of law.
ORDER
CH. MUHAMMAD MASOOD JEHANGIR, J.----The concurrent orders dated 20.11.2012 and 07.03.2019 of the two Courts below are the subject of petition in hand, whereby while allowing application under section 12(2) read with Order IX, Rule 13 of the Code, 1908 decree dated 21.01.2007 passed in suit for specific performance instituted by the petitioner was set aside.
2. The facts of the case are already enumerated in the order, however, to better understand, precisely, respondent No.1 being Overseas Pakistani had been residing in USA for the last more than three decades and the suit area vested to him through inheritance. He was in abroad, when an unregistered power of attorney was maneuvered in favour of one Rana Abdul Ghafoor, who allegedly sold out land to present petitioner vide agreement to sell dated 17.07.2000. The latter on its basis filed the suit for specific performance against respondent No.1 & others before Civil Court, Lahore. As a matter of fact and record, respondent No.1 or his alleged attorney Rana Abdul Ghafoor (who died before institution of suit, but even then added in the suit as defendant No.4) were never served. Although process through ordinary modes issued, yet learned Civil Judge without recording statement of process server to satisfy that respondent No.1 had deliberately avoided to receive the same, ordered for effecting his service through citation in the newspaper. After its publication, one Ijaz Ahmad Khan, Advocate while submitting unsigned Memo. of Appearance, marked his presence on behalf of respondent No.1, who subsequently disappeared resulting into ex parte proceedings against him and the decree in absentia of respondent No.1 qua his valuable property passed. The latter when returned to Pakistan for a short period, the said proceedings and decree faced to him, who tabled application for its setting aside asserting that Rana Abdul Ghafoor was not his agent, that agency in between them had never constituted, that on the basis of forged, fictitious and unregistered power of attorney, the questioned agreement to sell was managed, that in the suit correct/current address of respondent No.1 was not mentioned, that neither his service was effected nor he ever directed any Advocate to represent him in the suit filed by petitioner and that ex parte decree dated 21.01.2007 was earned by use of fraud and misrepresentation.
Obviously, being beneficiary, the stance of respondent No.1 was forcefully defended by the petitioner through written reply with specific stance that respondent No.1 for the last more than ten years had already permanently shifted to Pakistan, who required Ijaz Ahmad Khan, Advocate to represent him in the suit and its proceedings were in his complete knowledge.
The learned Civil Court having such pleadings, formulated issues and out of those, Issue No.1 being important for ready reference is given below:-
Whether the impugned judgment and decree dated 21.01.2007 has been obtained through fraud and misrepresentation as the service of the petitioner has not been effected in accordance with law and the address of the petitioner has wrongly been mentioned. Hence the same is liable to be set aside: OPA
After receiving evidence in pros and cons, the Courts below unanimously set aside the ex parte proceedings and the decree through orders referred in para 1 ante, which being injurious to the petitioner, compelled him to prefer petition in hand.
3. M/s. Jahangir A. Jhojha, ASC assisted by Iftikhar Ahmed Chohan, Advocate took their maximum time to argue the case and record consulted as well with their able assistance.
4. Undeniably, the basic onus probandi of the above-noted issue was upon respondent No.1. To discharge it, on his behalf special attorney, Muhammad Boota (AW1) appeared and stated in line of the facts detailed in application for setting aside of decree. He also tendered copy of CNIC and Passport of the respondent No.1, which provided enough proof that his address mentioned in the plaint was absolutely diverse/different to that mentioned in the public record issued/prepared much prior to filing of suit. The said evidence was enough to shift the onus towards petitioner/beneficiary of the ex parte decree to rebut the same. He himself did not appear, rather on his behalf his attorney (RW1) mainly stated that respondent No.1 was in complete knowledge of the proceedings of the suit and that he authorized an Advocate to represent him. The said witness (RW1), however, was not found to be credible to stick firmly that address of respondent No.1 mentioned in plaint was correct one or that mentioned in CNIC as well as Passport was incorrect/false.
Admittedly not a single process was issued on the address of respondent No.1 given in said documents, which under the law bear presumption of regularity and correctness. Moreover, the process server or any private person of the vicinity was not summoned to explore that respondent No.1 had been residing at the abode, which was mentioned in the plaint. The emphasis of Mr. Jhojha that after submitting Memo. of Appearance on behalf of petitioner by his authorized counsel, there left nothing to prove that his service was not effected is not well founded for the counts; firstly, there is no backing of law that an Advocate can represent a litigant by submitting such memo; secondly, it was never signed by respondent No.1, thus he could not be bound by it; and thirdly Mr. Ijaz Ahmed Khan, Advocate was the best person to be summoned to confirm that respondent No.1 being in knowledge of the suit proceedings had directed him to appear on his behalf. His deliberate withholding by the beneficiary of the decree was sufficient for the Courts to draw hostile inference under Article 129 illustration (g) of the Qanun-e-Shahadat Order, 1984, that had he been examined, he might have gone adverse to the stance of the petitioner. Mere bringing on record copies of some other Memos of Appearance of said Advocate to say that he was regularly representing respondent No.1 in some other cases was not enough to protect the ex parte proceedings and decree passed in the case in hand. The production of document and proof of its contents are two different subjects and, indeed, latter aspect is the crucial to be proved. When Mr. Jhojha was asked why the Advocate, who filed the Memo. was not summoned, he submitted that he was the counsel of the adversary and his examination might have become risky was fallacious. It is well established by now that sine qua non for the beneficiary to examine the concerned person to prove the construction of document and the moment he made an adverse statement, request for declaring him hostile could be made to illustrate/dig out truth through art of cross-examination. For any risk, the requirement of law cannot be excused. Assuming, without conceding, that Memo. of Appearance was genuinely executed by respondent No.1, even then it was not an authorization under the law to represent a litigant, which at the most could be treated as an intimation that the Advocate/Agent, who filed it would furnish proper power of attorney on the coming date of hearing. In absence thereof, imperative for the Court to at least issue notice pervi to the litigant on whose behalf it purportedly submitted. The foremost duty of the Courts is to dispense with justice while performing within the parameters of the law and law alone. For their any omission or act alien to law, the case of either side cannot be prejudiced.
5. The Court is conscious that nowadays, the properties of the absentees, especially overseas Pakistanis are at the mercy of looters, grabbers or snatchers, therefore, the such like cases are to be dealt with extra care. The case in hand could be an example of those wherein, the alleged agreement to sell might have not been executed by the titleholder nor by his agent having registered power of attorney. The respondent No.1 was sued while giving a fake address. Moreover, the institution of suit against purported agent of respondent No.1 Rana Abdul Ghafoor, who had already passed away, was not proceedable until and unless his LRS were impleaded. It is well established by now that decree against dead person is, otherwise nullity in the eye of law. These all questions are yet to be decided and the suit of the petitioner is only revived through the impugned orders. If there is a genuine case, the petitioner should not be worry. Nothing serious prejudice is caused to him, who can still prove his agreement to sell through proper trial while providing chance to the alleged vendor as well.
6. Mr. Jahangir A. Jhojha, who is a keen professional, although put his best, but failed to persuade that either the impugned orders are coram non judice/ultra vires or suffering from jurisdictional defect. The Courts below after appreciating each and every aspect of the case and considering available evidence as per its pith and substance passed exhaustive impugned orders, which being perfect and having been passed in exercise of lawful authority are confirmed by dismissing this petition in limine subject to cost of Rs.50,000/-to be deposited in the welfare account of the Lahore High Court Bar Association Dispensary.
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