1998 PLP 1591 (CLC)

"(1) For a declaration that the plaintiff is the real allottee of Quarter bearing No.N‑79, Korangi Township and the plaintiff's deceased wife namely Mst. Siddiqan was only an ostensible allottee during the absence of the plaintiff from Karachi. (2) For a declaration that all acts, deeds and things of the defendants Nos. l and 2 in respect of plaintiff's Quarter bearing No.N‑79 Korangi Township, Karachi with the help of defendant No.3 for the transfer of aforesaid quarter and its subsequent lease in the name of the defendant No.2 are bad, illegal malicious and of no legal effect and consequence being based on fraud and misrepresentation of facts and without any consideration. (3) For a permanent injunction restraining the defendants their servants men and agents from dealing in any manner. Selling, alienating and/or transferring the said quarter to anybody else. " The suit was dismissed by the learned VIth Senior Civil Judge vide judgment, dated 4‑7‑1987. Respondent No. l filed Civil Appeal No.85 of 1987 which was dismissed by the then learned III‑Additional District Judge, Karachi East on 11‑8‑1988. The respondent No.l preferred Civil Revision No.262 of 1988, against the impugned judgment on 14‑3‑1991 which was allowed and the matter was remanded by this Court. The operative part of the judgment reads as under: "The oral move for amendment to insert the bare prayer of possession, being free of any technicalities or complications, is, therefore, taken up in the interest of justice and allowed by consent. Amended plaint to be submitted before the learned lower Appellate Court within one month with a right to the responding parties to submit adequate written statement(s) all of which being done additional evidence, slight, if any, as it should be, may be recorded from the side of such party, as chooses to adduce it. The option to remand the case to the learned Appellate Court has been exercised so as to avoid unnecessary delays, since this is an old controversy and requires to be sorted out expeditiously. Accordingly and by consent the above revision application is disposed of in terms foregoing. " After remand the matter was heard and this time appeal of respondent No. l (Appeal No.85 of 1987) was allowed on 31‑5‑1993 by the then learned III- Additional District Judge, Karachi East (Ms. Sofia Latif) and the suit was decreed. Thereafter, in execution proceedings (Application No. 11 of 1993) writ of possession was issued against respondents Nos. 2, 3, and 4 (J.Ds) on 29‑8‑1994 which resulted in dispossession of the applicants. Both the applicants filed application under Order 12(2) read with section 151, C.P.C., in October 1994 but that was dismissed by the learned III A.D.J. vide the impugned judgment which is subject‑matter of the instant revision. Since the points urged in the revision require consideration, therefore, it is admitted for regular hearing. I have heard Mr. Hussain Shaikh learned counsel for the applicants and Mr. Jamil Ahmed learned counsel for respondents Nos. l to 3 at length. They have submitted detailed written arguments as well as the case‑law in support of their respective submissions which are summarised as follows: Learned counsel for the applicants submitted that the learned Additional District Judge exercised jurisdiction illegally and with material irregularity in asmuch as the impugned order is not based on any evidence admissible in law and is based on inadmissible evidence. He also submitted that the impugned order being fanciful and perverse has resulted in miscarriage of justice. Learned counsel for respondent No. l while supporting the impugned judgment/order submitted, inter alia, that no fraud, misrepresentation and/or want of jurisdiction has been claimed or asserted by the parties in the original suit as well as in appeal, therefore, the judgment/decree as well as the impugned order have attained finality. Furthermore, the applicants have no legal character whatsoever and no application was ever filed by them under Order 1, Rule 10 C. P. C. Learned counsel for the respondent No.4 submitted that essentially the dispute is between the applicant and the respondents Nos.l to

3. Therefore, respondent No.4 has nothing to do with the said dispute. Keeping in view the order which I propose to pass it would not be just and proper to make any comment on the merits of the controversy between the parties. In the impugned order the learned Appellate Court has observed, inter alia, as follows: "Learned counsel appearing on behalf of both the intervenors has argued that actually the possession of the suit quarter was with intervenors and they were residing in the said quarter and they have no intimation of any litigation in‑between the appellant and respondent. It is further added that the intervenors came to know about litigation in-between the appellant and respondents when they were ejected from the said premises then they have filed their present applications under section 12(2) read with section 151, C.P.C. The learned counsel appearing on behalf of intervenors has relied upon various rulings with regard to limitation, infructuous and being not party to the suit jurisdiction, fraud etc. But the learned counsel for the intervenors has failed to produce photo copies of the above citations or books for the study of same. The intervenors abovenamed have not filed any cogent or independent evidence to believe that they were in possession of the portion of disputed quarter except photo copy of sale‑deed and General Power of Attorney. It is not believable that during the long period of litigation, which is in respect of property in question intervenors remained unaware. The intervenors have also not discussed about their relationship with each other. The property in question now has been sold out and possession has also been handed over to the new purchaser. The intervenors also remained silent during the execution proceedings, if at any instance they are in possession of the suit property, they had to approach to the Court during the course of execution proceedings but on this aspect both the intervenors remained silent, hence these applications under section 12(2), C.P.C. filed after about 2 years. Further the intervenors have also not filed any General Power of Attorney of Mr.S Ikhlaque Ali, nor they have filed any legal proceedings against Muhammad Jamil from whom 60 sq. yards of the said quarter said to be purchased by the intervenor Mst. Jamila Begum. Likewise another sale‑deed is also there dated 23‑5‑1991 which also speaks the same fact. Except abovesaid documents no other proof is placed on record to prove that actually the intervenors remained in possession of the disputed property. From the documents placed on record, it appears that no fraud has been committed by the plaintiff/appellant and whatever has been weighted in due course of law and in the light of evidence which was placed on record. Further, the possession of the suit property is with another person whose name had not been discussed here. However, it is not proved that Muhammad Siddiq has committed any fraud or obtained judgment, dated 31‑5‑1995 by playing fraud or misrepresentation of facts. Therefore, in view of my above discussion I see no merits in the application under section 12(2) read with section 151, C.P.C. filed by intervenors Mst. Jameela Begum w/o Iqbal Ahmed and Mst. Nasreen Begum w/o Laiq Ahmed and consequently both applications stand dismissed with no orders as to costs." In my humble opinion the learned Additional District Judge has materially erred in failing to cite and consider the case‑law relied upon by the learned counsel for the intervenors on the ground that photo copies of such citations were not given by the counsel. The objections raised by the learned counsel pertained to jurisdiction, limitation and fraud which the learned Appellate Court could not dismiss in such a slipshod manner. To start with the counsel was under no obligation to supply photo copies of the case‑law. Once particular citations were referred to, an onerous duty was cast upon the Judge to have taken the pain to scrutinize such case‑law and discuss the same in the order In fact, the law on his score is very stringent. Even if the counsel does not cite the relevant provisions of the statute and the case‑law on the subject, it is the duty of the Judge to decide the matter justly by applying the correct law. Since the Hon'ble Supreme Court in Board of Intermediate and Secondary Education, Lahore v. Mst. Salina Afroze PLD 1992 SC 263 has categorically held that although failure of the counsel to bring to the notice of the Court the law laid down was not a good service rendered by the counsel to the client, the Judge was supposed to wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advise the Judge was not a complete excuse in the matter. The Hon'ble Supreme Court while deciding this case placed reliance upon its earlier decision in Muhammad Sarwar v. The State PLD 1969 SC 278 wherein Muhammad Yaqoob Ali, J (as he then was) had observed: "It appears that the learned Judges were not properly advised, but it falls to be said that there is a well‑known adage that a Judge must wear all the laws of the country on the sleeve of his robe." (At page 292). Comparable views were earlier expressed by the Hon'ble Supreme Court in Haji Abdullah Khan v. Nisar Muhammad Khan PLD 1965 SC 690 (at page 696) wherein it was held that it was the duty of the Court itself to apply the law; a party was not bound to engage a counsel; and whatever law became applicable on the admitted or proved facts law has to be given effect to whether or not it had been relied upon by a party. Recently the Hon'ble Supreme Court in Ali Khan & Co. v. Allied Bank of‑Pakistan, PLD 1995 SC 362 had gone to the extent of holding that the Court has to apply its mind before passing any order or judgment notwithstanding the factum that no person appeared before it to oppose such an order or that the person who wanted to oppose was not allowed to oppose because he failed to fulfil the requirements of law. In the ultimate analysis it is the duty of the Judge to apply the correct provisions of the statute and the case‑law to the facts of the case. In view of the above, this revision is allowed to the extent that the impugned order is set aside and the case is remanded back to the learned Appellate Court with directions to decide the matter afresh according to law after scrutinising the case‑law cited, discussing the same in the order and apply the correct law on the facts of the case. The parties and their learned counsel should also be given fair and reasonable chance of hearing. Since this is an old matter, the learned Appellate Court is directed to dispose of expeditiously preferably by 30th June, 1998. A A./J‑31/K Revision accepted