2017 PLP 190 (CLCN)

ALI AKBAR QURESHI, J.

Through this single judgment, I intend to dispose of this appeal along with: i. Crl. Org. No.62-C/2007 titled M/s. Asif Knitwear (Pvt.) Ltd. v. Mst. Farkhanda Anwar etc. ii. Crl. Org. No.59-02010 titled M/s. Asif Knitwear (Pvt.) Ltd. v. Mst. Farkhanda Anwar etc. iii. Crl. Org. No.115-C/2013 titled M/s. Asif Knitwear (Pvt.) Ltd. v. Mst. Farkhanda Anwar etc. iv. Crl. Org. No.116-C/2013 titled M/s. Asif Knitwear (Pvt.) Ltd. v. Mst. Farkhanda Anwar etc. v. C.R. No. 643/2009 titled Mian Muhammad Asif etc. v. Mst. Farkhanda Anwar etc. vi. W.P. No. 2989/2009 titled Mian Muhammad Asif Shakoor v. Justice of Peace/Additional Session Judge, Tehsil Ferozwala District Sheikhupura etc. vii. W.P. No.14239/2009 titled Mian Muhammad Asif v. Justice of Peace/Additional Session Judge, Tehsil Ferozwala District Sheikhupura etc. viii. F.A.O No.417/2012 titled Farkhanda Anwar v. Mian Muhammad Asif etc. and ix. C.R No.2887/2012 titled Farkhanda Anwar v. Mian Muhammad Asif etc. arisen out of the same transaction between the same parties and judgment and decree dated 18.02.2000, passed by learned executing court, dismissing the objection petition filed by the appellant.

2. This first appeal is directed against the order dated 31.07.2007, passed by the learned executing court, whereby the objection petition under Order XXI, rules 97 to 103 read with section 151, C.P.C., filed by the appellant (M/s. Asif Knitwear (Pvt.) Ltd.), in an execution petition filed by the respondent to execute the judgment and decree dated 26.04.2004, was dismissed.

3. This case has a long history which revolves around the distribution of legacy among the legal heirs of Mian Muhammad Sharif who died on 17.06.1988 and presently the dispute is between the real brother and sister, who are also legal heirs of deceased, Mian Muhammad Sharif, predecessor to the parties to the suit. After the demise of Mian Muhammad Sharif, the legacy, through a registered family settlement dated 03.08.1991, was distributed by the legal heirs; the judgment debtor/appellant Mian Muhammad Asif got land measuring 7 Kanal 10 Marla situated in Sharaqpur Sharif through the family settlement and subsequently sold the same to M/s. Asif Knitwear (Pvt.) Ltd., a company registered under the Companies Ordinance, 1984, owned by the judgment debtor Mian Muhammad Asif; that one of the legal heirs and real sister of the judgment debtor, Mst. Farkhanda Anwar, challenged the validity of family settlement through three civil suits which were consolidated and during the currency of the civil suits, parties to the case entered into a compromise by which the property was re-distributed with the consent of the parties and finally on the basis of the compromise, a consent decree was passed on 18.02.2000.

4. Thereafter the decree holder Mst. Farkhanda Anwar filed an execution petition, whereupon M/s. Asif Knitwear (Pvt.) Ltd. through Mian Muhammad Asif, the managing director and owner of the company, filed an objection petition under Order XXI, rules 97 to 103 read with section 151, C.P.C. on the allegation, that the decree holder, by playing fraud and misrepresentation and with the connivance of Revenue staff, got sanctioned mutation No.7889 regarding the property in question; that the objection petitioner namely M/s. Asif Knitwear (Pvt.) Ltd. is lawful owner in possession of the suit property and the executing court has no authority to execute the judgment and decree dated 18.02.2000 upon the company. Lastly prayed, that the order dated 26.07.2001 and mutation No.7889 sanctioned on 28.08.2004 be set aside being not sustainable in law.

5. The objection petition filed by M/s. Asif Knitwear (Pvt.) Ltd., through Mian Muhammad Asif/judgment debtor, was vehemently contested by the decree holder raising serious preliminary objections i.e. the objection petition has been filed with mala fide intention, the objection petition is hopelessly barred by time and the matter had already been settled and attained finality, therefore, the objection petitioner namely, Mian Muhammad Asif estopped by his own conduct from filing the objection petition through a same company namely, M/s. Asif Knitwear (Pvt.) Ltd. which is totally owned and possessed by Mian Muhammad Asif/judgment debtor No.

1. Along with the reply of the objection petition, the respondent/decree holder also filed an application under section 151, C.P.C. for issuance of Robkar to the learned Senior Civil Judge, Sheikhupura, to deliver the possession of the suit property to the decree holder with the aid of the police. The said application was also contested by the appellant by controverting the contents of the application. The learned executing court/Civil Judge Class-I, Lahore, after hearing the arguments of the parties, dismissed the application vide order dated 31.07.2007, hence, this appeal.

6. It would be appropriate firstly to record the admitted facts between the parties who are not only decree holder and judgment debtor but also real sister and brother: i. The suit property was left by the predecessor namely, Mian Muhammad Sharif (real father of the parties). ii. The legacy of deceased was firstly distributed among the legal heirs of Mian Muhammad Sharif through family settlement dated 03.08.1991. iii. One of the legal heirs/decree holder Mst. Farkhanda Anwar, by way of three civil suits, questioned the validity of the family settlement dated 03.08.1991. iv. All the three suits were consolidated and during the currency of suits, the parties to the case entered into a compromise and finally the three consolidated suits were put to an end on the basis of the compromise decree dated 18.02.2000. v. Record reveals, the judgment debtor namely, Mian Muhammad Asif, chief executive of M/s. Asif Knitwear (Pvt.) Ltd. (appellant herein), in his personal capacity, filed an application under section 144, C.P.C. read with section 151, C.P.C. for recalling/setting aside the order dated 26.07.2004 and cancellation of the mutation No.7889 dated 28.08.2004 (whereby the mutation was entered of the suit land in favour of the decree holder). vi. The aforesaid applications were dismissed vide order dated 22.02.2007 and the dismissal orders, as admitted by the learned counsel for the appellant, were not challenged before any higher forum.

7. The judgment debtor Mian Muhammad Asif, after exhausting his remedy by filing application for recalling of the afore-referred orders, filed another objection petition under Order XXI, rules 97 to 103, C.P.C. not in his personal capacity but through his company namely, M/s. Asif Knitwear (Pvt.) Ltd. which is owned, controlled and managed by the judgment debtor, on the same grounds/objections but slightly in a different form. In fact, the appellant used this device obviously with ulterior motive to grab the land of his sister/decree holder, for which, Mian Muhammad Asif, chief executive of the company, himself given his consent at the time of effecting the compromise.

8. From the record of the instant case it can safely be held, that the judgment debtor namely, Mian Muhammad Asif, who did not question the compromise effected between the parties and the consent decree dated 18.02.2000 in any manner whatsoever, cannot be permitted to re-open the case which is past and closed transaction. The conduct of the judgment debtor namely, Mian Muhammad Asif, who claims himself the chief executive of M/s. Asif Knitwear (Pvt.) Ltd. (appellant herein) is very material, who in the earlier round of litigation through his own name, filed an application under section 144, C.P.C. to question the execution proceedings, which was dismissed by the learned executing court and no further remedy was availed but the said judgment debtor, in a different form and through a different name, again filed objection petition obviously to frustrate the execution proceedings.

9. Learned counsel for the appellant argued the case at length and during his course of arguments, repeatedly referred the terms of the compromise decree passed on the basis of the compromise deed and also the statements of the parties to the case. Learned counsel for the appellant submits, that it is very much mentioned in clause IV of the compromise decree, that the decree holder/plaintiff shall be entitled to the property measuring 5 Marla situated in Moza Sharaqpur Khurd free of any encumbrance or bar thereon out of the land detailed in aforesaid family settlement deed.

10. As regard the encumbrance etc. upon the land in question, as argued by learned counsel for the appellant, the learned counsel for the respondent has pointed out, that the judgment debtor, during the pendency of interim injunctive order granted by the learned Civil Court in favour of the decree holder/Mst. Farkhanda Anwar in a suit filed by her, transferred the suit land in favour of M/s. Asif Knitwear (Pvt.) Ltd., being the chief executive and owner of the company. The sale deed, through which the judgment debtor namely, Mian Muhammad Asif transferred the suit land in favour of the appellant M/s. Asif Knitwear (Pvt.) Ltd., speaks volume about the dubious conduct of judgment debtor Mian Muhammad Asif. The said sale deed dated 02.11.1995 has been executed by the judgment debtor in favour of M/s. Asif Knitwear (Pvt.) Ltd., appellant herein, which is without any marginal witnesses as required under Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984. Even otherwise, it is very interesting to note here, that the aforesaid sale deed mainly bears only one signature i.e. of the judgment debtor, being the vendor and the vendee.

11. The learned counsel for the appellant by referring Mansoor Textile Mills Limited, Shorkot through Syed Jamaat Ali Shah, Managing Director and another v. Jamail Akhtar Naseeb, Textile Consultant, Faisalabad (2001 CLC 1065), has submitted, that judgment debtor Mian Muhammad Asif and M/s. Asif Knitwear (Pvt.) Ltd. are two independent entities, therefore, the learned executing court seriously erred in law not to attend this aspect of the case in a manner as required by law.

12. I am afraid, that the law referred by the learned counsel for the appellant is not helpful to the appellant and applicable on the facts of the instant case, wherein the judgment debtor Mian Muhammad Asif, who is also chief executive of the appellant, all the time tried to play havoc fraud with his sister simply to grab a small piece of land measuring 05 Kanal which otherwise is priceless keeping in view the relationship of the parties.

13. Even otherwise, the principle of res judicata is squarely applicable in this case and Mian Muhammad Asif/judgment debtor, who is chief executive of M/s. Asif Knitwear (Pvt.) Limited, is precluded by law to challenge the consent decree passed on the basis of compromise, duly signed by the judgment debtor. Reliance is placed on Mustafa Kamal and others v. Daud Khan and others (PLD 2004 Supreme Court 178). Relevant part of the esteemed judgment is reproduced as under: "

17. Res judicata, it is observed in Corpus Juris Secundum "is a rule of universal law pervading every well-regulated system of jurisprudence, and is put upon two grounds, embodied in various maxims of the common law; the one of public policy and necessity, which makes it in the interest of the State that there should be an end to litigation-interest republicae ut sit finis litium; the other, the hardship on the individual that he should be vexed twice for the same cause." In a judgment titled Arshad Ali and 6 others v. Muhammad Tufail through L.Rs. and others (2013 CLC 632), it is observed, that: "

6. The question raised and argued before me with considerable emphasis is that the learned courts below have erred in holding that the general principles of res judicata are applicable to the case. It is well-known that the doctrtne of res judicata is codified in section 11 of the Code of Civil Procedure. Section 11 generally comes into play in relation to civil suits but apart from the codified law, the doctrine of res judicata has been applied since long in various kinds of other proceedings and situation by the superior courts. The rule of constructive res judicata is engrafted in Explanation IV of section 11 of the C.P.C. and in many other situations also the principles not only of direct res judicata but of constructive res judicata are also applied, if by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceedings between same parties. The principle of res judicata comes into play when by judgment/order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication event then the principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceedings but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided. The object and purpose of the principle of res judicata is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of the fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject-matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequently litigation. Such a rule was brought into the statute book with a view to bring the litigation to an end so that the other side may not be put to harassment." Reliance is also placed on Hoshiar Ali v. Ghulam Sabir (1993 CLC 2476), Swamy Atmananda and others v. Sri Ramakrishna Tapovanam and others (AIR 2005 Supreme Court 2392), Muhammad Akram v. Additional District Judge and others (PLD 2008 Lahore 560), Messrs Ilyas Marine and Associates Ltd. through Managing Director and another v. Muhammad Amin Lasania (2009 MLD 1246), Muhammad Mazhar Iqbal and 8 others v. VIth Additional District Judge and 5 others (2010 MLD 436).

14. Resultantly, this first appeal being devoid of any force is dismissed. Since, the matter is between the real brother and sister, therefore, taking a lenient view, this case is dismissed without any cost.

15. Parting with the judgment, the learned executing court is directed to complete the process of execution of the judgment and decree dated 18.02.2000 positively within a period of 45 days. The compliance report be submitted to the Additional Registrar (Judicial) of this Court. MH/A-111/L Appeal dismissed.