2010 PLP 1018 (CLC)

CH. NAEEM MASOOD, J.- The revision was dismissed for non-prosecution on 18-5-2009. Anyhow for the reasons stated in Civil Miscellaneous No.524-C of 2009 coupled with affidavit and in the interest of justice to decide the case on merits, the instant civil revision is restored to its original number. MAIN CASE

2. The revision petition is directed against the judgment and decree dated 30-9-2000 passed by the learned Additional District Judge Ferozewala, who while accepting the appeal, decreed the suit in favour of the respondents and set aside the judgment and decree dated 16-4-1995 passed by the Civil Judge Ferozewala.

3. The facts, in brief, are that Mian Muhammad Amin Naurang died leaving his children at litigation drawn through Suit No.18/1/90 titled "Fazal Elahi etc. v. Nazar etc." with regard to the property in dispute measuring 6/1-2 Marlas. It was asserted by Fazal Elahi respondent/plaintiff that the property in question is a joint property, whereas the appellants/defendants resisted it to have been allocated to them. The suit was contested and on the pleadings of the parties the following issues were framed:--

1. Whether the plaintiffs have been estopped by their words and conduct to file this suit? OPD.

2. Whether the suit has been filed with ulterior motive? OPD.

3. Whether the suit is not maintainable in its present form? OPD.

4. Whether the suit is bad for misjoinder of necessary parties? OPD.

5. Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction? OPD.

6. Whether the suit is liable to be dismissed under Order VII, rule 11 of C.P.C.? OPD.

7. Whether the suit is not proceedable under section 34 of Arbitration Act? OPD.

8. Whether the plaintiffs have not come to the Court with clean hands? OPD

9. Whether the suit is barred under Limitation Act? OPD.

10. Whether the plaintiffs are entitled to the decree as prayed for in the plaint? OPP.

11. Relief. 3-A. The parties led their respective evidence and the learned trial Court vide its judgment and decree dated 16-4-1995 found all the issues against the plaintiffs, and the suit was accordingly dismissed. The appeal against the said judgment and decree was accepted vide judgment and decree dated 30-9-2000 passed by the learned Additional District Judge.

4. It may be observed at the out set that the order of this Court to the effect that the learned Additional District Judge should also give his findings on issue No.9, regarding limitation, has also been complied with and the said issue has been decided by the learned Additional District Judge vide order dated 19-10-2005.

5. The petitioners in their revision petition have contended that the document Exh.D/1 has been misread and that the said decision of the Arbitrator has been acted upon and that evidence of the parties to that effect has not properly been appreciated by the learned Appellate Court.

6. I have perused the record minutely. The sheet anchor of the defence of the petitioners/defendants in the trial and continued to be so till today is Exh.D/1, which is the decision of the Arbitrators dated 6-9-1978. This document as asserted by the petitioners determines the fate of the case. I have glanced through the document. It has not clinched the issue finally as asserted by the petitioners. The note on this document clearly shows that the property has yet to be transferred respectively to the sharers, and the documents have to be got registered and the payment of expenses has to be made from the joint Khata at that time. It has been asserted by the respondents/plaintiffs and has been admitted in evidence of the petitioners/defendants that no further active proceedings were taken in consequence of the said document.

7. Besides Exh.D/1 is the photocopy which is not admissible in evidence. No permission was sought to file the photocopy of this document. This Arbitration decision incorporated as Exh.D/1 was never made a rule of the Court. Hence, also it loses its credence. It appears from the evidence that the property was not partitioned physically as dictated by this document. Therefore, the so-called Arbitration Award, photo copy of which was placed on record does not appear to have been acted upon by the authorities in letter and spirit as well as in its true perspective.

8. Therefore, no exception can be made to the impugned judgment and decree passed by the learned lower Appellate Court. Moreover, no jurisdictional error or gross misreading of evidence or any gross illegality has been demonstrated to invite the revisional jurisdiction of this Court.

9. In sequel thereof, the revision petition is dismissed leaving the parties to bear their own expenses. M.U.Y./N-85/L Petition dismissed.