2015 PLP 107 (CLC)

MUHAMMAD EJAZ SWATI, J.

This Regular First Appeal is directed against the judgment and decree dated 18th January, 2011 (hereinafter referred as to "the impugned judgment and decree") passed by the Senior Civil Judge, Gawadar (hereinafter referred as to "the trial Court") in Civil Suit No.33 of 2009, whereby, the suit filed by the appellants was dismissed.

2. The brief facts of the case are that the appellants (plaintiffs) through their attorney, i.e. appellant No.1 Dad Karim, on 3rd February 2006, had initially filed a suit No.10 of 2006 for declaration, permanent injunction and correction of mutation entries in respect of shares of land in Khewat and Khatoni Nos.14/14, Khasra No.71, Mosooma Gandani situated at Gurandani Tehsil Gawadar before the Senior Civil Judge, Gawadar, against the respondents (defendants), wherein, it was alleged that the aforesaid property was owned by one Aboo, who had three sons, namely, Ismail, Washdil, Abdul Rahim and one daughter, namely, Shamsatoon. It was further alleged that the appellants (plaintiffs) are the legal heirs of Washdil and the respondents (defendants) are the legal heirs of Abdul Rahim. The property in dispute is consisting of 35 shares (354 acres), 10 shares (100 acres) belongs to legal heirs of Ismail, 10 shares (100 acres) for legal heirs of Washdil, 10 shares (100 acres) for legal heirs of Abdul Rahim and 5 shares (50 acres) for legal heirs of Mst. Shamsatoon. It was the case of the appellants that during the settlement the legal heirs of Washdil were recorded only 7 shares (70 acres) instead of 10 shares (100 acres) and for correction of above 3 shares (30 acres), Civil Suit No.10 of 2006 was filed. The record of the case transpires that during the pendency of that suit on 10th May, 2007, the appellants (plaintiffs) through their attorney filed an application under Order XXIII, Rule 1, C.P.C. for simpliciter withdrawal of the suit with the following prayer. "It is respectfully prayed that this Hon'ble Court may kindly be pleased to allow the application and give permission to applicant for withdrawal of the above titled suit, in the interest of justice." The trial Court, vide order dated 12th May, 2007, while accepting the application and dismissing the suit passed the following order: After dismissal of the above suit, the appellants (plaintiffs) on 5th September, 2009 filed the instant suit (2nd suit) for specific performance of an agreement/compromise dated 10th May, 2007 and recovery of compensation amounting to Rs.5707500 (fifty seven lac seven thousand five hundred) of land property Khatoni No.14/14, Khasra No.71, measuring 30 acres, situated at Mouza Gurandani Gawadar (hereinafter referred to as the property in dispute), with the averments that on 10th May, 2007, the appellants (plaintiffs) and the respondents (defendants) through their attorney respectively, entered into a compromise outside the Court, whereby, the respondent No.1 (defendant) agreed to transfer and handover 3 shares (30 acres) of the land in dispute to the appellants (plaintiffs). It was further averred that after compromise between the parties, the Government acquired the suit property for the purpose of Cantonment Board and the respondents (defendants) besides their shares had also received the shares of the appellants (plaintiffs) in respect of their 3 shares and received amount of Rs.5707500, whereas, according to the agreement/compromise dated 10th May, 2007, the respondents (defendants) were under legal obligation to make payment of the aforesaid amount to the appellants (plaintiffs).

3. The respondents No.1 to 19 (defendants) while filing their written statements contested the suit by raising certain preliminary legal objections as well as on merits and strongly repudiated the execution of aforesaid agreement, while the respondent Nos.20 and 21 were proceeded against ex parte.

4. The divergent pleadings of the parties necessitated the following issues:

"(1) Whether suit of plaintiffs is not maintainable in view of preliminary legal objection raised in the written statement? (2) Whether suit lands are the ancestral properties of the parties? (3) Whether on 10-5-2007 a compromise/agreement has been effected between the parties? (4) Whether during settlement father of the defendants Nos.1 and 2 inadvertently deprived from his legal share? (5) Whether plaintiffs are entitled for the relief claimed for? (6) Relief?"

5. The appellants (plaintiffs) produced PW-1 Attaullah, PW-2 Muhammad Qasim, PW-3 Taj-ul-Din, PW-4 Manzoor Ahmed Patwari and thereafter the appellants (plaintiffs) got recorded their statement through attorney, i.e. appellant No.1. In rebuttal, the respondents (defendants) did not produce any witness, however, they got recorded their statement through their attorney i.e. respondent No.1.

6. On conclusion of the evidence by the both sides, the trial Court after hearing the arguments, vide impugned judgment and decree, dismissed the suit.

7. The learned counsel for the appellants contended that entitlement of the appellants' shares i.e. 100 acres of land, out of holding of late Aboo was not under cloud, but the revenue authorities mistakenly entered 70 acres instead of 100 acres and thus, 30 acres land were to be recorded on the name of the appellants; that during the pendency of the first suit, the respondents vide agreement/compromise dated 10th May, 2007, accepted the right of appellants in the property which culminated into withdrawal of the first suit on 12th May, 2007; that after withdrawal of the suit Government acquired the suit property for Cantonment Board and awarded compensation to the land owners according to their record of right. Since the 30 acres of land, belonging to the appellants, were mistakenly recorded in the name of respondents and they have received compensation of Rs.5707500 of that share of the appellants, however, according to the learned counsel that in view of the agreement dated 10th May, 2007, the respondents were under legal obligation to make payment of the said amount to the appellants; that after execution of the agreement and non-performance on the part of the respondents, fresh cause of action accrued to the appellants against the respondents, therefore, the present (2nd suit) for specific performance was filed which was competent to be proceeded in accordance with law; that the agreement arrived at between the parties was proved by producing marginal witnesses in accordance with law, but the trial Court has failed to consider the evidence produced by the appellants in its true perspective, which requires re-appraisal of the evidence; that the evidence produced by the appellants remained un-rebutted, as the respondents did not produce a single witness; that findings rendered by the Court below suffer from misinterpretation and misconception of the law and same are liable to be set aside.

8. As against this, the learned counsel for the respondent Nos.1 to 19 argued that the suit filed by the appellants was hit under section 11, Order XXIII, Rule 1, C.P.C. and Articles 54 and 114 of the Qanun-e-Shahadat Order, 1984 and suit was also barred by time; that the respondents had neither entered into any agreement/compromise with the appellants nor given any such authority to the so-called attorney to exercise his agency over the right of the respondents in the property; that the previous suit was withdrawn by the appellants on 12th May, 2007, had an agreement dated 10th May, 2007 was in existence the appellants would have/had mentioned the same in the application under Order XXIII, Rule 1, C.P.C., or settled the suit on the basis of compromise; that the conduct of the appellants itself indicates that the alleged agreement was fabricated one and had no legal sanctity; that the photocopy of the purported agreement was produced, which is contrary to the provisions of Qanun-e-Shahadat and production of secondary evidence without leave of the Court is not admissible; that the impugned judgment neither reflects non-reading nor misreading of the evidence, therefore, the same is liable to be sustained.

9. The learned Assistant Advocate-General contended that due compensation has been awarded to the concerned parties on the basis of record of rights and after making payment, the process of acquisition had already been completed and the parties in the appeal have raised no dispute in this respect. Since the dispute relates between the private parties, therefore, no Government interest is involved.

10. Having heard the learned counsel for the parties and their able assistance have gone through the record of the case. The suit of the appellants is based on agreement which according to the appellants (plaintiffs) purportedly arrived at between the parties on 10th May, 2007 i.e. prior to withdrawal of the previous Suit No.10 of 2006. The appellants in their previous suit claimed that instead of their 10 shares (100 acres) in the property in dispute, the revenue authorities mistakenly recorded 7 shares (70 acres) in their names and they prayed that the remaining 3 shares (30 acres) require to be corrected and recorded in their names, but the previous suit was withdrawn simpliciter by the appellants (plaintiffs) which was dismissed by the trial Court on 12th May, 2007. In the present case, the suit of the appellants also pertains to the said 3 shares (30 acres) which were claimed by them in the previous Suit No.10 of 2006, but now the appellants based their claim on an agreement which according to the appellants (plaintiffs) purportedly arrived at between the parties on 10th May, 2007 i.e. prior to withdrawal of the previous Suit No.10 of 2006. The record of the case reveals that the appellants on 10th May, 2007 filed an application under Order XXIII, Rule 1, C.P.C. for simpliciter withdrawal of their suit, which was accepted on 12th May, 2007 by the trial Court. If any such purported agreement was in existence, then, the appellants would have either settled the previous suit on the basis of compromise or even mentioned about the said settlement in their application for withdrawal of the suit. The cause of action arising from the purported agreement within the meaning of Order II, Rule 2, C.P.C. was very much available to the appellants on 10th May, 2007 when purported agreement was arrived, as on the said date the previous Suit No.10 of 2006 was pending before the trial Court, but they omitted to claim said relief, therefore, bar of Order II, Rule 2, C.P.C. was very much attracted in the present case, thus, the omission of cause of action and omission of portion of claim related to the agreement dated 10th May, 2007 will bar a fresh suit in respect of a portion so omitted and present suit for specific performance was also hit under Order II, Rule 2, C.P.C.. In the case of Hashim Khan v. National Bank of Pakistan, PLD 2001 SC 325, wherein the Hon'ble Supreme Court in the principle of above provision of law, observed as under:

"We now refer to the provisions of Order II, rule 2, C.P.C. The reading of the said provisions in very clear terms discloses that omission or failure to include any of the reliefs operates as relinquishment of such claim, it is essential that party instituting proceedings should include all reliefs flowing out of main grievance, otherwise omission would be fatal, as such, it would be essential for the plaintiff to assert claimable reliefs concerning the grievance of cause of action. However, if any such relief which flows out of basic grievance is not claimed or omitted, then such party stands precluded from agitating those reliefs subsequently. The main object of the above provisions is to avoid splitting of claim and restrict multiplicity of litigation in the matter." Besides above, section 12, C.P.C. also precludes institution of fresh suit which reads as under:

"Bar to further suit.

(1) Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which the Code applies." Section 12(1), C.P.C. provides that where a plaintiff precluded by Rules in the first schedule for instituting a further suit in respect of any particular cause of cause of action, he shall not be entitled to institute a fresh suit. The Rules contemplated by section include Rule 2 of Order II, Rule 9 of Order IX, Rule 10 of Order XXI, Rule 9 of Order XXII and Rule 1 of Order XXIII, C.P.C. In view of the above provisions of law, in the instant case, the appellants had withdrawn their previous suit simpliciter within the meaning of Order XXIII, Rule 1, C.P.C., which says that, "At any time after institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of the claim." Order XXIII, Rule 1, C.P.C. provides that when there is total withdrawal of the suit, the suit is dismissed as withdrawn and finally disposed of the suit, it brings an end to the litigation by sub-Rule (3) of Rule 1, a fresh suit is barred. The documentary evidence in respect of withdrawal of previous suit produced by the PW-2 Muhammad Qasim, as Exh.P/2, makes it clear that as per order dated 12th May, 2007, passed by the Senior Civil Judge, Gawadar, the appellants in respect of same cause of action had simpliciter withdrawn the previous suit, therefore, the subsequent suit for specific performance filed by the appellants was also hit under sub-Rule (3) of Rule 1 of Order XXIII, C.P.C. In the case of Hashim Khan v. National Bank of Pakistan, PLD 2001 SC 325, the apex Court in a similar proposition observed as under:

"It may also be observed that during previous suit payment was made to the appellant subject to conditions contained in letter dated 10-10-1991, referred to hereinabove. The appellant also submitted reply with willingness for unconditional withdrawal of the suit subject to payment of Rs.24,40,110 towards full satisfaction of his claim. The withdrawal order passed by the Court mentioned hereinabove further shows that withdrawal simpliciter was without granting permission to file fresh suit. Under the circumstances, such withdrawal under abovementioned orders debars institution of any fresh proceedings concerning such matter or part thereof. It is borne out from the record that payment of Rs.24,40,110 was made in full and final settlement of the total liabilities accruing in connection with deposit made by the appellant with the respondent-bank. Admittedly, originally compensation or interest was not claimed. Moreover, while compromising with the respondent-bank outside the Court, whereby such settlement was effected, no such demand was putforth by the appellant towards the payment of compensation or interest. Under these circumstances, the subsequent suit for compensation regarding blockage of money or interest with regard to original amount, in our considered view, is not based on sound reasons, which cannot be accepted."

11. The suit of the appellants (plaintiffs) was not maintainable in view of the preliminary legal objections raised in the written statement and the trial Court rightly attended the issue No.1.

12. As far as the issue No.2 is concerned, the appellants through evidence have not substantiated their claim and in this regard, they have produced no documentary evidence to highlight their contention, therefore, the findings of the trial Court in respect of issue No.2 is in consonance with the evidence on record. The real controversy between the parties hinges upon issue No.3 that as to whether on 10th May, 2007, a compromise/agreement had been arrived at between the parties? The appellants alleged that respondent No.1 being attorney executed an agreement on behalf of the remaining respondents, but they have failed to produce any such power of attorney, whereby, the respondent No.1 was duly authorized by the remaining respondents to decide the fate of their right in the property in dispute. In absence of any such covenant of specific stipulation, the so called attorney could not be assumed; that power to dispose of the right of the private respondents in the property in dispute, as his own act required that he should have some special permission from the principal for the proposed object, while dilating upon the conception and recital of general power of attorney, the Hon'ble apex Court in case of Fida Muhammad v. Pir Muhammad Khan (PLD 1985 SC 341) held as under:

"It is wrong to assume that every "general" Power-of- Attorney on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object." The respondents particularly respondent No.1 specifically denied the execution of agreement dated 10th May, 2007, the burden of proving the agreement was on the appellants, therefore, the appellants were required to first prove the agency of the respondent No.1 related to purported agreement, which they have failed to produce. The appellants have also failed to prove the admissibility of agreement. It is also to be noted that the agreement dated 10th May 2007, was tendered in evidence by the PW-1 Attaullah and photocopy of the document was taken on record without carrying to ask for and directing provision of original documents. There can be no cavil to the proposition that this agreement is not only inadmissible in evidence, it does not confer any right, title or interest in favour of the appellants. The statement of PW-3 and attorney for the appellants also incorporate that a photocopy had been retained, in as much as later on no steps were taken by the appellants to prove the contents of the agreement by leading primary or secondary evidence in terms of Articles 75 and 76 of Qanun-e-Shahadat Order, 1984, therefore, the photocopy of purported agreement cannot be taken into consideration and thus, Issue No.3 is decided accordingly. It is also to be noted that merely tendering the document in evidence has no evidentiary value unless proved according to law. Reliance is place to the case titled Haiderabad Development Authority v. Abdul Majeed (PLD 2002 SC 84), wherein it was observed as under:-- "As far as sale deed dated 31st January, 1981 Exh.P-31 is concerned, learned Additional District Judge has discarded it. Besides adopting the reasons for not accepting this document in evidence, we further added that as per the statement of Mushtaq Ahmed, this conveyance was taken on record subject to its admissibility because the witness tendered its photocopy. Inasmuch as later on no steps were taken by the respondents to prove the contents of this document by leading primary or secondary evidence in terms of Articles 75 and 76 of Qanun-e-Shahadat Order, 1984. Therefore, this document also cannot be taken into consideration." In view of the above, the instant Regular First Appeal is hereby dismissed. The parties are left to bear their own costs. Decree sheet be drawn, accordingly. AG/76/Bal. Appeal dismissed.