P L D 1980 Supreme Court 146 (PLP)

MUHAMMAD AFZAL ZULLAH, J.-This appeal through special leave is from the judgment dated 20th January 1971 of the Lahore High Court, whereby the appellant's review petition arising out of a regular second appeal, was dismissed as time barred and the appellant was directed to deliver vacant possesssion of the land regarding which he had earlier obtained stay order against his eviction (from the High Court to the respondents). He was also directed to "account for the, profits of the land unless of course he gives the customary share of the produce to the respondents in their capacity as landlords". Leave to appeal was granted only to consider the question whether the appellant had given any undertaking for the delivery of the possession of the land as ultimately directed by the High Court and whether on the basis of that undertaking the High Court could direct the appellant to deliver the possession. The dismissal of the review petition by the High Court was however, considered as unexceptionable. Learned counsel for the appellant, while giving the facts relating to the various questions involved in this appeal with regard to delivery of possession of the property, stated that the original suit instituted by the appellant in 1956, was only for a declaration that he was the son of Nawab Din and that the only consequential relief sought was that the respondents should not call him as illegitimate son of Nawab Din. It did not relate to any, property. The appellant failed in the first appeal (1963) and the second appeal (1964). He sought a certificate for filing a L. P. A. which was withdrawn (1965) by the appellant on the assertion that there was a verbal compromise between the parties as a result of which the appellant was allowed certain share in the property left by Nawab Pi'n. However, it appears, the appellant, not being satisfied with the alleged compromise and/or its implementation filed a review application in the High Court on 12-2-1970. He also filed an application with the review petition for maintenance of status quo: with regard to the land now in question; which was allowed on 26-5-1970. subject to the appellant's furnishing security in the sum of Rs. 5,000 for mesne profits. The respondents moved two successive applications in the same year for vacation of the stay. On 27-10-1970, the High Court while accepting the request of the appellant for adjournment so that he . may produce evidence with regard to his claim noted the undertaking given from the appellants side that in the event of failure of the review petition, the appellant shall deliver the possession without the other party having resort to formal proceedings. The .review petition was ultimately dismissed, as noted above, on 20th January 1971 with the direction for delivery of the possession of the land which is now impugned in this appeal. Learned counsel for the appellant has contended : (1) that the land was not in dispute in the suit originally filed by the appellant, therefore, the provisions of Order XXXIX, rule 1, C. P. C. were not attracted-that being so the orders dated 26-5-1970 and 27-10-1970 for the maintenance of the status quo_by the High Court relating to the property even if passed on the request of the appellant were without jurisdiction; (2) that the second appeal before the High Court had arisen out of the suit and the review petition had also to be corel4ted to the subject-matter of the suit, therefore, the land was not the subject-matter of the appeal and/or the review petition and that being so, it could not be made the subject-matter of the order for maintenance of status quo ; (3) that in the alternative even if the matter fell within Order XXXIX, rule 1, the application for vacation of the order passed by tide High Court was made only by Mst. Hafiz Begum, respondent No. 3, therefore, the direction for delivery of possession of the land, if at all, could be made regarding part of the property representing her share only; (4) that the High Court had in the impugned order left the question relating to genuineness/validity of the compromise relied upon by the appellant to be decided by a civil Court the impugned order would prejudice the case of the appellant in the civil Court; (5) that the appellant's counsel had no authority legal or factual from the appellant to give an undertaking before the High Court, therefore, there was no basis for the orders dated 27-10-1970 and 20th January 1971 ; (6) that in any cases the original conditional order for maintenance of status quo dated 26-5-1970, if it were to be treated under Order XXXIX, rule 1, C. P. C. stood complied with by furnishing of the security-there was no other condition attached to it, therefore, the impugned direction for delivery of possession could not be given by the High Court ; and lastly (7) that it was a question of suitable relief and the High Court acted harshly in directing the delivery of the possession of valuable property by the appellant to the other party without recourse to legal proceedings, particularly, when the appellant's review petition was being dismissed as time barred without the appellant having even the satisfaction of getting the controversy on merits decided by the High Court. Learned counsel for the respondent relied on the provisions contained in Order XXXIX, rule 1, Order XLI, rule 5, Order XVII, rule 3 and Order XXIII, rule 3, C. P. C. read with section 107, C. P. C. to contend that the principles underlying the said provisions could be pressed in support of the High Court having exercised its inherit jurisdiction (under section 151, C. P. C.) when accepting the appellant's request for maintenance of status quo and subsequently maintaining the same on his giving an undertaking. He has emphasised that if the said specific provisions were not applicable, the High Court had ample power to deal with the matter under section 151, C. P. C. He also relied on various elements in the conduct of the appellant, particularly, his having obtained the initial order from the High Court on an application submitted under section 151, C. P. C. and the subsequent order on giving solemn undertaking to the High Court 'so as to contend that he was not entitled to any relief either in law or in equity. Learned counsel for the respondents further pointed out that the appellant had himself introduced the subject of property in the proceedings and had also included it in the review petition with an attempt to enlarge scope of the suit and the review, he could not therefore, be permitted to urge that the land in dispute was neither the subject-matter of the suit nor of the review petition. Both the learned counsel cited case-law to support their point of view with particular reference to the facts as visualised by such one of them. A critical scrutiny of the factual aspects of the controversy agitated before this Court would reveal that certain factual assumptions made by the learned counsel for the appellant were not justified, and that being so, some of the arguments were misdirected and misconceived. The reading of the plaint in the original suit has revealed that it was not for a declaration merely that the appellant was the legitimate son of Nawab Din but in the heading of the suit and in paragraphs Nos. 1, 3, 4 and the prayer paragraph specific mention was made of the property . of Nawab Din and the alleged right of the appellant on his claim of being a legitimate son of Nawab Din to inherit the same. The prayer made also included a part that he be declared as heir of the deceased. Succession as an heir to nothing less obviously was unimaginable. That is why the references were made to the property of Nawab Din and the right to inherit the same. In the written statement, again a specific reference was made in paragraph 3 thereof denying the appellant's claim regarding his being heir of Nawab Din or being in possession of property. Reference was also made to previous proceedings before a civil Court for obtaining succession certificate, of course, relating to the property of Nawab Din wherein the appellant had also made a claim but he was advised to get his right declared through other regular proceedings. Further when appearing as his own witness the appellant had made an assertion that he was entitled to inherit the property of Nawab Din. Thus it cannot be said that the land in question was in reality not in dispute as property to inherit which the declaratory suit was filed by the appellant. Be that as it may, he himself specifically and in very clear terms introduced the subject-matter of property as a controversy involved in the review petition filed by him. In paragraph 4 thereof, he asserted "that the dispute relates to thousands of canals of land and residential houses and the petitioner would be deprived of his legitimate share". In addition to this direct interjection of land and houses as, property "in dispute", the appellant asserted in paragraph 5 that "he was in possession of the property which is itself a good evidence that he get the property as the legitimate son of Cbaudhry Nawab Din", and that as stated in paragraph 6, the appellant further claimed, the house in which Nawab Din died was in his possession. Obviously when asserting that the possession of the property in dispute of Nawab Din should be treated as evidence of his legitimacy, he was referring to the grounds on which his claim to legitimacy had been rejected by all the three Courts. Thus, the question of property, its inheritance and possession were directly in dispute between the parties in the review proceedings before the High. Court, which according to he learned counsel fox the appellant, were in continuance of the suit. It was probably in that view of the matter, that the only relief claimed in the review petition was that the suit may be "remanded for further evidence in Court". Learned counsel has himself explained that the possession of the land by the appellant in addition to its being relatable to the alleged compromise was also the evidence of his having inherited property from Nawab Din. Therefore, as argued, he must have done so, as a son. It would be too late now to. assert that the property and/or its possession was not in dispute. This aspect of the matter is clinched by the admission of the appellant himself in his very application made on 25th of May 1970 for maintenance of status quo. The provision mentioned in the heading of this application under which it was made is section 151, C. P. C. It was asserted in paragraph 2 thereof that the respondents having become aware of the issuance of notice by the High Court in the review application had made applications to the Authorities for delivery of possession of the property. It is further asserted therein that "the move for this action by the respondents is that if the petitioner is ejected from the land in dispute, the whole of the action and litigation would come to an end". The Court was further informed that the . respondents had moved application under section 144, Cr. P. C. so that the police could deliver possession of the land "in dispute". In paragraph 4 of the - application the appellant again asserted that he was "in possession of the land in dispute for a considerable time". It was in the above factual background that the appellant requested on 25-5-1970 that "a status quo order may be granted during the pendency of the case in the High Court" whereupon the High Court on 26-5-1970 ordered that "the petitioner's possession shall not be disturbed during the pendency of the review application" subject to the furnishing of the security., The. respondents contested the appellant's right . to. obtain an order for maintenance of status quo as to the poss6ssion of the property-on factual as also legal basis in two miscellaneous applications for vacation of the stay order. Both of them are almost verbatem copies of each other. Although in the first it is mentioned that it was being filed on behalf of respondent No. 3, in the second one the respondent is mentioned simpliciter but without specification as to which of them. It cannot be said that it related to respondent No.

3. However, there appears to be some typing/grammatical errors because in the purview of paragraph 6 while the respondent was mentioned in the singular, the word "pray" was used for the plural. This point was not raised before the High Court. It is not necessary to make a , fresh enquiry in this behalf: The applications were obviously being made on behalf of all the respondents who were contesting the appellant's review petition as also the prayer for maintenance of the status quo. The application for vacation of the status quo order would also have to be treated on behalf of all of them. It would not be correct to say that the counsel for the appellant was not authorised by him to give an undertaking on his behalf or that in fact no undertaking was given in the High -Court. He had himself appeared in the High Court when the impugned order was passed and a finding of fact was rendered that the undertaking was given in Court in the. presence of both the learned counsel as also the appellant. The High courts refused to, accept the statement of the learned counsel that "the petitioner did not understand the full purport of this commitment. The petitioner has been attending the proceedings in any "Court at every hearing and it. is, therefore, impossible to believe that the learned counsel did not have fihlf consultations with, or instructions from his client In these circumstances it would be an impossible situation to. allow the petitioner to wriggle-''out ' of the commitment solemnly given before this Court". Besides,, there being' no material to upset. this finding; the order passed on 27-10-1970 which was. not challenged in any independent proceedings clearly .shows that the undertaking was in fact given by the appellant as a condition for obtaining further adjournment and consequently extension of the status quo order. The counsel for the appellant had then prayed for an adjournment to enable him to procure certain documents including one from India. This adjournment was opposed from the respondent's side on the ground- "that already sufficient time had been utilised by the petitioner for this very purposes and he had waited for nearly six years since the order under review was passed. It was further stated that it may not be possible for the respondent -to eject the petitioner in case of delay in the decision of the present proceedings". It was on account of the afore-noted resistance from the respondents' side, it is not denied, that an occasion had arisen in which an undertaking from the appellant's side to neutralise the said resistance was highly probable and in that context for the benefit of one party . (the appellant) one last adjournment for a month was granted to him and for the benefit of the other appellant had given an undertaking that "as regards the question of petitioner's ejectment in the event of failure of his review application, the learned counsel for the petitioner states that the petitioner gives an undertaking that he shall - vacate the land without the respondents having resort to any formal proceedings in this behalf". Thus the occasion for the undertaking in the form it was given becomes clearly, namely; that the respondents were opposing the grant of further adjournment because this would frustrate the -effort to 'achieve the ejectment of the appellant which according to them had already been delayed for near six years. In order to alley their suspicions and to secure acceptance of his plea for adjournment, the appellant, it is clear, did give the undertaking that he shall vacate the land without insisting upon any further formal proceedings. He made the statement with full understanding of the implications and while doing so he was not only assisted by his counsel, he must also have been conscious of his alleged rights and liabilities. He cannot now be permitted to withdraw from the same. If the case is looked at in the aforegoing factual perspective it would become clear that: it is not entirely correct to say that the property, its inheritance and possession thereof was never the subject matter of dispute between the parties; although it was not directly made the subject-matter of prayer in the declaratory suit, the right to inherit the same and the' question of possession were subject matter of dispute in the suit; the property and its inheritance as also possession thereof not only became again subject-matter of dispute between the parties in review petition, but also gave rise to a crucial question regarding evidence in case it was to be remanded the appellant claimed that the possession of the property was proof of his being legitimate son of Nawab Din; 'and further it was asserted in the application for maintenance of status quo that the subject matter of dispute and proof of legitimacy through possession was sought to be destroyed by other party through proceedings under section 144.1` ,Cr. P. C. Even if stricto senso the land (property) was not the subject matter of the suit originally filed, it cannot be denied that it had become a major controvercial issue between the parties in review proceedings : which as claimed by the appellant were in continuation of the suit and on that realisation the appellant wanted the entire case to be remanded. In these circumstances, the question of application of one or the other specific provision of the Civil Procedure Code would not arise and it was amply a fit case for exercise of jurisdiction under section 151; C. P. C. The appellant had himself invoked that jurisdiction. The relevant orders of the High Court were within it jurisdiction. The first argument of the learned counsel accordingly is repelled. In view of the real factual picture of the case being different from what was represented by the . learned counsel for the appellant, the case-law cited loses all relevance and is not necessary to be noticed and dismissed. The second and .third arguments of the learned counsel have already been dealt with and the fourth one is based on misreading of the last but one paragraph of the impugned order passed by the High Court. It was noted therein that -the learned counsel for the appellant had stated that he "would like to institute a civil suit against the respondents on the basis of the oral compromise which led to the withdrawal of the petitioner's application for filing an appeal under clause 10 of the Letters Patent. That is a matter entirely for the petitioner and his counsel to decide and I am not called upon to express any opinion in this behalf". Obviously the High Court only noted a statement made by the appellant's counsel. There is nothing therein as a result of which the appellant could claim that the controversy involved in this appeal should not have beep properly resolved by the High Court when the same was presented before it. We asked the learned counsel whether a civil suit has in fact been filed to which he stated that as far. as he knew no such suit has been filed. The question of prejudice or otherwise does not arise: With regard to the argument relating to the undertaking it has already been held that it was in fact given by the appellant and in the context of the situation that had then arisen as also in the circumstances - of the case, the undertaking was neither illegal nor even was it improper for the, appellant go give the same. The situation then was composite one. On the one hand the appellant sought an adjournment when the case had lingered on for several years on the other he needed protection against ejectment upon which the respondents were insisting and further they had also resisted the grant of the adjournment. Thus there was nothing either in law or in fact to nullify the undertaking of the appellant and its effect. The next, argument of the appellant's counsel is also without an substance. Even if the condition imposed by the High Court on 26-5-1970 for grant of an order for maintenance of status quo stood satisfied by furnishing of the security, the second condition willingly offered and accepted by the appellant for delivery of possession without further proceedings as condition of further adjournment and continuance of the original order for maintenance of status quo the vacation of which the respondents had sought through specific applications, was also to be satisfied. The order impugned 1n this appeal contains a direction for the satisfaction of that condition. The last argument of the learned counsel relates to the exercise of equitable jurisdiction, the only basis in that behalf is the so-called harshness of the order. The appellant had enjoyed the usufruct of the property for a long time. He had through the orders C of ~ the Court deprived the respondents of the benefit for a considerable time. Having obtained a benefit on his own asking and insistence, the appellant) cannot now turn round and rely on the so-called harshness. If he sought equity he must be prepared to respond positively. Even if the review petition was dismissed as time-barred and the merits were not discussed that would not make any difference. It only means that the order passed by the High Court in second appeal, which was dismissed on merits in limine remained intact. None of the arguments raised from the appellant's side has any merit. This appeal fails and is accordingly dismissed. In the circumstances of the case there shall be no order as to costs. S. A. H. Appeal? Dismissed