2004 PLP 269 (CLC)

The learned counsel of the respondent did not get the case adjusted in the terms of aforesaid note. The learned counsel of respondent should have courtesy to inform the Reader of this Court that he would not be available today to argue the case.

2. The revision petition was admitted for regular hearing on 15-1-1992. Thereafter, the case was fixed for various dates, but could not proceed on account of non-cooperation of respective Advocates of the parties. The case was fixed on 1-1-2002 and was adjourned on the request of learned counsel of respondent. Office was directed to fix this case after notice to the respondent, who was directed either to procure the presence of his counsel on the next date of hearing or to appear in person and argue his case himself. Thereafter the case was fixed on 27-3-2002 but the case could not proceed on account of non-availability of the learned counsel of the parties, thereafter the case was fixed on 7-6-2002 and the case was adjourned on account of non availability of learned counsel of the respondent. Office then, was directed to fix this case after notice to the respondent, who was directed either to procure the presence of his counsel on the next date of hearing or to appear in person and argue his case himself, otherwise law will take its own course. Thereafter the case was fixed on 9-9-2003. On the said date, the case could not proceed due to securing general adjournment by the learned counsel of the respondent and then the case was fixed on 29-9-2903. On the said date, despite repeated calls, no body entered appearance on behalf of the parties. Office was directed to fix this case, after notices to the parties directly as well as through the agency of Senior Civil Judge concerned for 28-10-2003 (today). Parties were directed either to procure the presence of their counsel for the said date or to appear in person and argue their case themselves, otherwise law would take its own course.

3. Office sent notices to the parties on 4-10-2003 for 28-10-2003. The petitioner appeared along with his counsel, but the resp9udent did not enter appearance. The associate Mr. Tahir Mehmood Qureshi, Advocate, appeared on behalf of original counsel. He requests for an adjournment on the ground that the original counsel is out of Lahore in view of his professional' engagement. In view of the aforesaid circumstances, I am not inclined to adjourn the case. As mentioned above, the revision petition is pending adjudication since 1992, therefore, I intend to decide this revision petition on merit as per principle laid down by the Honourable Supreme Court in Muhammad Haleem and others v. H. Muhammad Naim and others PLD 1969 SC 270.

4. Brief facts out of which present revision arises are that the petitioner filed a suit before the Civil Judge 1st Class, Samundri, District Faisalabad to the effect that he was owner in possession of I 1 shoos and Mutation No. 100, which was attested by the Revenue Officer on 29-7-1956 in favour of respondent-defendant, wherein respondent- defendant has been shown to be owner half and half of the suit property which is illegal, void ineffective upon his right. .

5. The contents of the plaint reveal that the petitioner and the respondent are real brothers. The petitioner-plaintiff alleged that he purchased the property from one Bakhsha son of Shah Muhammad for consideration of Rs.1,915-through oral sale-deed. The petitioner-plaintiff constructed the shops over the disputed property. He rented out two shops to respondent-defendant who had been paying rent to the petitioner-plaintiff. Now he has refused to pay the rent on the plea that through impugned mutation, he is also owner of the said property. The petitioner being aggrieved by the attitude of the respondent-defendant challenged the vires of aforesaid mutation on the ground of fraud and misrepresentation. The respondent filed written statement controverting the allegations levelled in the plaint. Out of pleadings of the parties, the learned trial Court framed the following issues:-- (1) Whether the suit is within period of limitation? OPD (2) Whether the plaintiff is sole owner of property suit? OPP (3) Whether the plaintiff and defendant constructed the shops and Ihatas jointly?. OPD (4) Whether the suit is false and vexatious? OPD (5) In case, the Suit No.353 fails whether the plaintiff (Suit No. 180) is entitled to recover Rs.8,640 as arrears of rent of property in suit from the defendant in (Suit No. 180)? OPD (6) Relief. The learned trial Court decreed the suit vide judgment and decree, dated 15-10-1986. The respondent being aggrieved filed appeal before the learned Additional District Judge, Faisalabad, who accepted the same vide impugned, judgment and decree, dated 2-11-1991. Hence, the present revision petition.

6. The learned counsel of the petitioner submits that judgments of both the Courts below are at variance. He further submits that the First Appellate Court reversed the findings of the learned trial Court without adverting to the reasoning of the learned trial Court. He further submits that the parties agreed to settle the dispute through an Arbitrator. The Arbitrator had given award in favour of the petitioner, but this fact was not considered by the First Appellate Court in its true perspective. He further submits that First Appellate Court erred in law to non-suit the petitioner on the ground of limitation; whereas, the petitioner has categorically mentioned in para. No.3 of the plaint that the petitioner came to know about impugned mutation three months prior to file the suit, therefore, the suit of the petitioner-plaintiff was within time. He further submits that First Appellate Court erred in law to discard the finding given by the Arbitrator in its award, merely on the ground that the petitioner failed to file an application to make the award as rule of the Court. He further submits that it is the duty and obligation of First Appellate Court to construe the document on record in its true perspective. He summed-up his argument that the judgment of the First Appellate Court is the result of misreading and non-reading of the record.

7. I have given my anxious consideration to the contentions of the learned counsel of petitioner and perused the record.

8. The impugned Mutation No.100 was sanctioned by the Revenue Officer in favour of respondent-defendant on 29-7-1956; whereas the petitioner had filed his suit on 6-4-1982. In case, both the dates are put in juxtaposition, then the petitioner-plaintiff filed his suit round about 6 years after sanctioning of mutation in favour of respondent-defendant. It is better and appropriate to reproduce para. No.3 of the plaint and written statement of para. No.3:-- Mere reading of aforesaid paras. of the plaint as well as the written statement, it clearly ' reveals that the petitioner did not mention the particular date' in para. No.3, therefore, the First Appellate Court was justified to non-suit the petitioner-plaintiff on the ground that the suit of the petitioner-plaintiff was time-barred. It is the duty and obligation of l the Court to see whether the suit is barred by time or not even without raising objection by any of the parties in view of section 3 of the Limitation Act, as per law laid down by this Court in Sh. Allah Rakha's case 1993 MLD 21.26 and Ali Hassan and another's case 1997 CLC

268. The First Appellate Court after proper appreciation of evidence has reversed the findings of the learned trial Court after adverting to the reasons of the learned trial Court in his judgment of para. No. 10 in the following terms:- "From the evidence discussed above, it is proved that the impugned mutation which has been produced by the defendant appellant as Exh.D.2 clearly shows that the property was mutated in the name of Nawab Din and Muhammad Hussain in equal shares by one Bakhshoo, who received the consideration of Rs. l ,

925. Muhammad Hussain has also produced copy of Jainabandi for the .year 1979-79 Exh.D.1 where both Nawab Din and Muhammad Hussain have been shown as owners in equal shares. Nawab Din .did not examine Bakhshoo or any other person before whom he purchased the property as sole owner from Bakhshoo. therefore the presumption is attached to the impugned mutation and the copy of Jamabandi produced by the defendant-appellant."

9. The First Appellate Court is well within its right to reappraisal the evidence and reverse the findings of the learned trial Court. The Privy Council has also laid down parameters to interfere in the findings of the Courts below while exercising power under section 115 of C.P.C. in N:S._ Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1949 PC

26. The relevant observation is as follow:-- "This section empowers High Court to satisfy itself upon three matters: (ay that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to have; exercised jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of sortie provision of -law or with material irregularity, that is, by committing some error of procedure in the course of the trial, which is material in that it may have, affected the ultimate decision. If the High Court is satisfied upon those three matters;' it has no power to interfere because it differs, however, profoundly, from the conclusion of subordinate Court upon questions of fact or law." The judgment of the Privy Council is followed by this Court in Board of intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood 1985 CLC

657. It is pertinent to mention here that the judgment of this Court was upheld by the Honourable Supreme Court. The learned counsel of the petitioner failed to bring the case within the principle prescribed by Privy Council in the aforesaid judgment. The learned counsel of the petitioner failed to bring on record any piece of evidence, which was non-read and misread by both the Courts below, therefore, I do not find any infirmity and illegality in the judgment of First Appellate Court. In view of what has been discussed above, this revision petition has no merit and the same is dismissed. S.A.K./N-364/L Revision dismissed.