1988 PLP 514 (CLC)

(3) M.B.R. (Residual Properties), Rehabilitation and Settlement Wing, Board of Revenue, Punjab, Lahore.. .(Appellants). v. (1) Muhammad Hussain (Plaintiff). (2) Government of Pakistan, Islamabad, through Secretary Ministry of Law, Islamabad. (3) The Collector, Lahore, District Lahore. (4) The Deputy Custodian, Punjab, Lahore (Respondents). (iii) In the High Court:‑ (a) Civil Revision No.1919/D of 1980:‑ (1) The Collector, Lahore. (2) Province of Punjab .... (Petitioners). v. (1) Muhammad Hussain (Plaintiff). (2) Government of Pakistan, Islamabad through Secretary Law. (3) Deputy Custodian, Punjab, Lahore. (4) Province of the Punjab, through M.B.R. (Residual Properties), Lahore. (5) Government of the Province of Punjab through M. B. R. (Residual Properties), Lahore. (6) Member Board of Revenue (Residual Properties), Lahore. (7) Rehabilitation and Settlement Wing of the Board of Revenue, Punjab, Lahore. (8) Telegraph and Telephone Department Government of Pakistan through General Manager, Lahore Telephone Region Lahore ..... (Respondents). (b) Civil Revison No.1828/D of 1980:‑ (1) Province of the Punjab, through M.B.R. (Residual Properties), Lahore. (2) Government of the Province of Punjab through M.B.R. (Residual Properties), Lahore. (3) Member Board of Revenue (Residual Properties), Rehabilitation and Settlement Wing of the Board of Revenue, Punjab, Lahore... (Petitioners). v. (1) Muhammad Hussain (Plaintiff). (2) Government of Pakistan, Islamabad through Secretary Ministry of Law. (3) The Collector, Lahore District, Lahore. (4) The Deputy Custodian, Punjab, Lahore. (5) Telegraph and Telephone Department Government of Pakistan through General Manager Lahore Telephone Region, Lahore. (Respondents). Telegraph and Telephone Department was impleaded in the respective Civil Revisions as respondents Nos. 8 and 5 on the basis of the orders dated 29‑3‑1983 passed by my learned brother Mahboob Ahmad, J. on its own applications bearing Civil Miscellaneous Nos.151/C of 1983 and 127/C of 1982 filed under Order I, Rule 10 of the C . P. C . Moreover, in Civil Revision No.1919/ D of 1980 petitioners' Counsel got the order dated 28‑10‑1984 passed to have the names of respondents Nos., 5 to 7 deleted. Thus, there are five respondents in each Civil Revision. A close study of the above set‑out array of parties would reveal: ‑ (i) that in the District Court, Appeal No.260 of 1979 was in order in mush as it was maintained by defendant No.l by impleading the plaintiff as respondent No.1 and the other two defendants as respondents Nos.2 and 3 respectively; (ii) that the other Civil Appeal bearing No. 121 of 1980 was purported to be maintained there by three persons described respectively as the Province of the Punjab, Government of the Province of Punjab (both being shown as represented by the M.B.R. Residual Properties) and the M.B.R. was himself again shown also as petitioner No.3 but neither of them was a party as such in the suit. Therein the plaintiff was impleaded as respondent No.l and all the three defendants in the suit were arrayed as respondents Nos.2 to

4. Since neither of the three appellants there was himself a party in the suit, therefore; for the purposes of maintaining the appeal they had to ask for leave of the Court as envisaged in H . M . Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 S C 65 but none was ever claimed or granted for this purpose. (iii) that although the Collector, Lahore, also being an ex officio representative of the Province of Punjab, had been impleaded as defendant No.2 in the suit, there was no appeal at all maintained by him against the trial Court's decree and still he was joined as a petitioner in Civil Revision No.1919/ D of 1980 alongwith the Province of Punjab who itself was not a party in the suit and the Province of Punjab stands impleaded again as respondent No.4 also in the same Civil Revision. It is beyond comprehension as to how may the same person become a petitioner and also a respondent at one and the same time in the same case? (iv) that the Province of the Punjab had already maintained Civil Revision No.1919/ D of 1980 and yet the other Civil Revision No.1828/ D of 1980 was also maintained in its name by also indicating two others as petitioners, the identity of one of whom, namely, the Government of the Province of Punjab is difficult to be conceived as being different from the Province of the Punjab itself, in the context of the right to sue and the third one, namely, the M.B.R., was shown in the appeals below as representing the two Governments and was also shown to be suing in his own name but while so representing in the Civil Revisions, he has again been cited as an independent petitioner and even as a respondent; (v) that whereas the Collector had not filed any appeal below and had been cited as a respondent therein as also herein, still he is mentioned to even be a petitioner, yet none of the other two judgment‑debtors in the suit has come up in revision so that the Government of Pakistan appears satisfied with the ex parte decree passed and upheld against it. It has not been explained as to how and why has all the above mess been made.

5. Before proceeding further, it seems desirable to briefly reproduce here the date‑wise proceedings held in the suit. Trial Court's record shows that the defendants were ordered to be summoned for 10‑4‑1979,‑ on which date the Presiding Officer happened to be on leave and the file was put off to 5‑5‑1979 when an order was again passed for summoning the defendants for 11‑6‑1979, for which date the defendants were served and although Mr. Walayat Muhammad Khan, Clerk of Court of the Chief Settlement Commissioner put in appearance in the trial Court on 11‑6‑1979 to represent defendant No.l, yet, defendants Nos.2 and 3 remained absent in spite of service and still learned trial Judge did not proceed ex parte against them and directed publication of proclamation in the Daily Maghribi Pakistan for the presence of defendants Nos.2 and 3 on 23‑6‑1979. The citation was published accordingly and the case was called thrice on 23‑6‑1979 when Mr. Walayat Muhammad Khan appeared for defendant No.l but none appeared for the other two defendants who were ordered to be proceeded ex parte and written statement for defendant No. 1 was called for 5‑7‑1979, on which date the Presiding Officer again happened to be on leave and the said representative of defendant No. 1 was in attendance when the case ‑was put off to 11‑7‑1979. On this date the said representative of defendant No. 1 was present but was not ready with the written statement, therefore, he was once again directed to file the written statement on 22‑7‑1979, without fail. Upon the case being called on 22‑7‑1979 at 8‑30 a.m. the representative of defendant No.l did' not appear and the case was kept in waiting to be called again at 10‑30 a.m. and once more at 12‑30 p.m. but he did not appear even on the second and third occasions with the result that defendant No. 1 was also ordered to be proceeded ex parte on account of continued default of its representation and since the other two defendants were also not represented and were ex parte already, therefore, the suit was set down for recording of ex parte evidence of the plaintiff on 29‑7‑1979. Learned Presiding Officer again happened to be on leave on 29‑7‑1979 and the duty‑Judge fixed the suit for 31‑7‑1979 for recording of ex parte evidence. In this way, on 31‑7‑1979 plaintiff's ex parte evidence comprising of his own statement as P . W.1, fully supporting his case, was recorded wherein he also produced a certified copy of his registered sale‑deed as Ex.P.l along with a copy (Ex.P.2) of the order of the Deputy Custodian refusing to entertain an application filed by the plaintiff under section 22 of the Pakistan Administration of Evacuee Property Act, 1957 due to repeal of the Act and consequent lack in him of the jurisdiction. Thereafter, learned trial Judge preferred not to decide the suit forthwith and put it off for hearing of ex parte arguments on 29‑9‑1979 when, adjournment was made to 16‑10‑1979 at the instance of the plaintiff's counsel who was not ready with his 'arguments which were actually heard on 16‑10‑1979 and the suit was directed to be posted for order on 18‑10‑1979. But since, in the meanwhile, on 17‑10‑1979. Mr. Muhammad Ashraf, Special Government Pleader had put in an application for grant to him of an opportunity of addressing arguments on behalf of defendant No.l, wherein without offering any explanation about the default committed all along by the then Special Government Pleader Mr. Hafeez Tariq who had been deputed to conduct this case on .behalf of defendant No.l, it was stated merely that he had left the case and he himself had been appointed in his stead with a direction issued to the former by the Solicitor's Department to hand over the file to him today and hence he may be given seven days' adjournment to prepare the arguments. In this situation, learned trial Judge did not announce the order on 18‑10‑1979 and provided opportunity to Mr. Muhammad Ashraf to address arguments on 21‑10‑1979 in the earlier part of the day because he had also stated that he does not want to apply for setting aside of the order about ex parte proceedings and the plaintiff's counsel had to leave for Haj on that date and a longer adjournment was not possible to be granted. The relevant interim order was signed by Mr. Muhammad Ashraf and still he did not adhere to his undertaking and failed to attend the Court on 21‑10‑1979 despite repeated calls and in the exigency already manifested on the record plaintiff's counsel alone was heard again and the suit was decreed ex parte against the defendants by the trial Court by its judgment dated 21‑10‑1979.

6. There against two appeals, as described earlier in this judgment, bearing Civil Appeals Nos.260 of 1979 and 121 of 1980, were filed in the District Court respectively on 12‑11‑1979 and 27‑5‑1980 with the array of parties already detailed above which would show that whereas the former appeal was maintained by defendant No.l described as Government of Pakistan through the Chief Settlement Commissioner, Board of Revenue, Lahore and the plaintiff as well as the remaining two defendants were arrayed therein as the only three respondents, yet, the other appeal (bearing Civil Appeal No.121 of 1980) was filed on 28‑5‑1980 by three appellants described as (1) Province of Punjab, (2) Government of the Province of Punjab, both suing through the Member, Board of Revenue (Residual Properties), Lahore and the M.B.R. was again cited separately also as appellant No.3. Thus, virtually the M.B.R. was the appellant therein despite the fact that neither he himself nor even the Province or the Government of the Punjab was a party to the suit. Moreover, in this appeal the plaintiff was arrayed as respondent No.l with all the three defendants arrayed as respondents Nos.2 to

4. Furthermore, this appeal was not accompanied by a certified copy either of the judgment or decree of the trial Court and a petition was filed therein described as being under Order XLI, Rule 1 of the C.P.C. for dispensation of certified copies of the trial Court's judgment and decree. The appeal was put up before the learned Additional District Judge on the same day with the office‑objection noted thereon with regard to the want of certified copy and bar of limitation but was admitted to regular hearing subject to consideration of the question of limitation, for the condonation whereof a separate application had also been filed under section 5 of the Limitation Act. Certified copies of the trial Court's judgment and) decree appear to have been subsequently placed on the record of the appeal with the court‑fee stamps affixed thereon bearing the date 11‑6‑1980 and the stamps of the Copying Agency appearing on those copies show that application for their supply was made at serial No.9169 on 28‑5‑1980 and the copies were prepared on 9‑6‑1980 to be delivered on 11‑6‑1980 and hence this appeal against the trial Court's decree dated 21‑10‑1979 could be considered to have been instituted, at best, only on 11‑6‑1980 against the limitation of 30 days provided by Article 152 of the First Schedule of the Limitation Act and was hopelessly barred by time because whereas a certified copy of the decree under appeal is not capable of being dispensed with, there was never passed any order to dispense with the production of certified copy of the judgment on which it was founded. Thus, the only appeal maintained in the District Court on behalf of the Province of Punjab, namely, Civil Appeal No.121 of 1980, was barred by time by almost seven months. Be the above as it may, both the appeals were taken up for hearing together by the learned Additional District Judge who, after elaborately dealing with all the pleas urged at the Bar, regardless of the fact that some of them had not even been taken in the memo of appeal, repelled them on sound reasons to dismiss both the appeals by means of his exhaustive consolidated judgment dated 9‑8‑1980.

7. These two Civil Revisions have now been maintained by the petitioners fully described in the opening part hereof by arraying the plaintiff and the three defendants of the suit as respondents. In addition, three appellants of Civil Appeal No.121 of 1980, namely, the Province of the Punjab, Government of the Province of the Punjab and the Member Board of Revenue had been arrayed respectively as respondents Nos.4 to 6 in Civil Revision No.1919/D of 1980 alongwith the Rehabilitation and Settlement. Wing‑ of the Board of Revenue, Punjab, Lahore separately shown as respondent No.7. But respondents Nos.5 to 7 were got deleted by the petitioner's counsel on the basis of the order dated 28‑10‑1984 and thus the name of the Province of the Punjab, a non‑party to the suit, continue to be borne on the record also as respondent No.4. During the pendency hereof, Civil Miscellaneous No.127/C of 1982 was‑filed in Civil Revision No.1828/D of 1980 and Civil Miscellaneous No.151/C of 1983 was filed in Civil Revision No.1919/D of 1980 by the Telephone and Telegraph Department, Government of Pakistan, through the General Manager, Lahore Telephone Region, Lahore for its impleadment as a petitioner in the respective Civil Revisions under order 1, Rule 10 of the C . P. C . Both the applications were accepted on 29‑3‑1983 by allowing the Department to be impleaded as respondent in each case and the needful has been done.

8. Learned counsel appearing in support of these Civil Revisions have, apart from arguing that the case of the plaintiff‑respondent on merits is untenable in law and fact, have also challenged the propriety of the ex parte decree passed by the trial Court with the submissions that it is not justified in fact and law inasmuch as the proper party, which in this case would be the Government of the Punjab, was not impleaded as a party in the suit so that the decree therein would not have been capable of binding it and hence none should have been passed, more so because of the transfer of some of the suit land made by that Government in favour of various Departments including the Telephone and Telegraph Department and the P.W.D. who had even paid considerable amounts for this purpose but were not joined in the suit. It is also urged with some vehemence that the trial Court had acted with undue haste in decreeing the suit ex parte against the desirability of adopting the safer course of dismissing the suit on a note of caution struck by the involvement of huge area of valuable land.

9. It may straightaway be observed that the scales of justice cannot be deemed liable to be regulated by the value of the subject‑matter in litigation and every case has to be decided in accordance with the law, uninfluenced by the value thereof. In his 20‑page judgment, learned Additional District Judge has elaborately dealt with the contentions raised before him. The view expressed by him is based on sound reasons and happens to be unexceptionable. Even otherwise, the mere fact that the view of a lower Court may by some stretch be capable of being called incorrect, does not give rise', to a case for exercise of revisional jurisdiction which has the limited scope of correcting the errors of jurisdiction of the Courts below butt none has been pointed out by the learned counsel for the petitioners.' There was never entered any contest in the trial Court with regard, to the merits of the claim of the plaintiff which is duly supported by~ a certified copy of the registered sale‑deed (EX.P.1) brought on the record with the explanation that the original had been destroyed during the communal disturbances of 1947 and in absence of anything adduced to rebut it, learned Judges in the two Courts below have' rightly decided the claim of the plaintiff in his favour on the basis of uncontroverted evidence led by him. The concurrent findings of fact recorded by the two Courts below in favour of the plaintiff are correct and remain sacrosanct for the purposes hereof.

10. Actually, the fault squarely lies with the defendants arrayed in the suit, one of whom is the Collector of Lahore who happened to also be an ex officio representative of the Province of Punjab. There is no explanation even worth the name furnished until today about the Collecort's failure to contest the suit in spite of service and his remaining absent all through the period of more than one year that the suit remained pending in the trial Court. There obviously was no alternate with the trial Court than proceeding ex parte against the served defendants who had elected to stay away from the Court. Resume of the trial Court's proceedings given above manifests that learned trial Judge made his best efforts to secure the presence of the defendants and he went to the extent even of postponing the proceedings on a number of dates with the obvious purpose of that the defendants may be able to participate in the suit. In the above‑detailed circumstances, .it is clearly uncharitable to assert that learned trial Judge had acted hastily. Representative of defendant No.1 who had been attending the Court after service of summons had not only failed to file a written statement despite various opportunity made available to him for the purpose but also ultimately disappeared. Even Mr. Hafeez Tariq Special Government Pleader who had been originally deputed for this case had not cared to attend on any date and there is no explanation available in that behalf so much so that such an unjustifiable default stands admitted by the succeeding counsel Mr. Muhammad Ashraf in his application dated 17‑10‑1979 wherein no attempt was made to even faintly explain away the earlier default. He desired to simply address arguments on the existing record and, after stating on 18‑10‑1979 that he did not want to apply for setting aside of ex parte proceedings, he himself got the date 21‑10‑1979 for addressing arguments and even signed the relevant interim order but failed to turn up on the date fixed with his consent. The grievance sought to be urged in these Civil Revisions is altogether unfounded and wholly unjustified. Learned trial Judge has at occasions repeatedly kept the file in waiting through the day by taking it up after intervals of hours each but to no avail. Despite the belated excuse of having fallen ill made by Mr. Muhammad Ahsraf, Special Government Pleader, after the passing of the ex parte decree and even supporting it with a spurious medical certificate, he personally attended the trial Court in the later part of the same day to file an application with a view to having the case re‑opened without a good cause. His conduct does not at all commend itself to me and an impression is unavoidable that the defendants as also their legal advisers, have all along been deliberately playing the game of hide and seek. There is the proviso added in the year 1972 to rule 13(1) of Order IX of the C . P . C . to the effect that ex parte decree will not be set aside in those cases where defendant has the knowledge of date of hearing and has sufficient time to appear and answer the claim. Circumstances of this case fully attract its application. In the above view of the matter, I do not find any substance in the contention that the ex parte decree was unjustly or hurriedly passed and the same is accordingly repelled. As envisaged in Order I, rule 9 of the C.P.C., a suit cannot fail for the reason of misjoinder and non‑joinder of parties. The ex parte decree is eminently justified on the record and since there is no foundation available therein to sustain the contentions raised with regard to the merits of the plaintiff's claim or against the ex partel decree passed in his favour, therefore, nothing more need be said too repel the contentions as being simply untenable.

11. Civil Miscellaneous No.1667/C of 1985 was filed in this Civil Revision for placing on record certain documents with reference to the provisions of Order XLI, Rule 27 of the C.P.C. read with section 151 thereof and, by the order dated 9‑4‑1985, its consideration was put off until after the hearing was completed. Although this application is accompanied by certain irrelevant and inadmissible documents which are, excepting one, the photostat of certain record/copies and do not themselves qualify to be called certified copies under the law, yet, taking of additional evidence appears to be irreconcilable and completely foreign to the exercise of revisional jurisdiction the scope whereof is limited to correcting the errors of jurisdiction committed by the Courts below and, by its very nature, it has to be exercised essentially with reference to the record as it existed before those Courts because it cannot be urged with any amount of reason that a certain Court may have committed such an error with reference to a .l certain document never placed before it. Hence, in my view, there can be no scope of taking additional evidence in revision petitions. The Civil Miscellaneous is accordingly rejected.

12. Next comes the question relating to the array of defendants in the suit and the effect of the ex parte decree passed therein. Although the plaintiff cannot be said to have anywise erred in impleading the Government of Pakistan as a defendant because it was the source of the alleged right of the Provincial Government which is admitted to be only derivative in its nature inasmuch as the Central Government has not come up in revision to agitate against the trial Court's decree passed against it. It is obvious that if the Central Government was not possessed of any right or title in the land belonging to the plaintiff since before the Partition of the Sub‑Continent then nothing can be deemed to have passed on to the Provincial Government whose representative, namely, the Collector was defendant No.2 in the suit but he never contested the suit nor applied ever to have the ex parte decree set aside. Muchless did he file any appeal there against. Hence, the result of the suit has to equally bind the Central and Provincial Governments. Moreover, the Provincial Government has also joined the litigation at its own initiative by filing an appeal wherein trial Court's decree has come to be upheld even against it, therefore, there is no discoverable reason as to why the Provincial Government may not be bound by the trial Court's decree like its predecessor, the Government of Pakistan, and even the transferees from the Provincial Government, namely, the departments of Telephone and Telegraph and Public Works (P.W.D.) may not be bound by the trial Court's decree dated 21‑10‑1979.

13. As regards the amounts deposited by the said Departments for acquiring some of the lands adjudged to have ever since belonged to the plaintiff, it is a matter between them and the relevant Government to, if so may be necessary recompense them by either paying to them the equivalent amounts or area but the plaintiff cannot be allowed to suffer for the unauthorised acts of other. The rule of law propounded in Joydeb Agarwala v. Baitulmal Karkhana Ltd. PLD 1965 S C 37 at page 40 to the effect that compensation paid fort acquisition of land has to go to the rightful person, gets attracted in this case and it remains the choice of the plaintiff to either get back his land so prejudicially dealt with or to get the money assessed and charged thereabout by the relevant Government a decade before in the course whereof he may have been deprived of the use and benefit of both the lapid and the money and he may have resort to the appropriate remedy for grant of suitable relief upon proof of his losses. The trial ‑Court's decree dated 21‑10‑1979 has come to bind the petitioners at least per invitem inasmuch as they have themselves joined in the litigation to face its consequences wherefrom there does not appear to be any escape for them.

14. Upshot of the foregoing is that none of the pleas raised for the petitioners can be sustained and there is no case made out for exercise of revisional jurisdiction and, hence, both the Civil Revisions are dismissed. The parties are, however, left to bear their own costs. A . A . /P‑30/ L Revisions dismissed.