1985 PLP 148 (MLD)

(e) Civil Procedure Code (V of 1908)

S.115--Contention that without getting alleged forged sale-deed cancelled suit did not lie--Held, forged documents might not be got cancelled as such cancellation was a mere formality as claim of both parties had been adjudged on comparative merits. Muhammad Akbar Shah v. Muhammad Yousuf Shah P L D 1964 SC 329 rel. Malik Noor Muhammad Awan for Petitioner. Jehangir A. Jhoja for Respondents. Dates of hearing 22nd, 25th, 26th, 28th, 29th May and 1st June, 1985. This judgment will also dispose of Revision Petitions Nos. 454/ D-82, 455/D-82, 503/D-85, 504/D-82, 505/D-82, 506/D-82, 507/D-82, 508/D-82 and 568/D-82 as almost the same questions of law and fact seem to arise in all of them. 2. The present petition disputes the correctness of the judgment/ decree dated 28-2-1982 of the learned Additional District Judge, Lahore, whereby he dismissed the first appeal of the petitioner-defendant brought against the decree dated 30-11-1981 of the trial Court. 3. It was a suit for possession brought by the respondents-plaintiffs against the petitioner-defendant in regard to the plot in dispute as transferees from the Settlement Department vide Transfer Order dated 24-6-1977 after having associated themselves with the original transferee Ali Hussain. Their version was that the petitioner-defendant occupied it illegally and was liable not only to vacate it but also pay mesne profits at the rate of Rs.150 per month ever since the transfer order was passed. 4. The petitioner-defendant resisted the suit by objecting to the valuation, joinder, maintainability, jurisdiction and pleading res judicata, absence of cause of action, locus standi and what not. tie invoked sections 10, 11 and Order VII, rule 11, C.P.C., either to ask for staying the suit or its dismissal on the ground that already two suits brought by the respondents' predecessor about the impugned house had been dismissed respectively on 4-12-1975 and 14-10-1978. He maintained that it was "Muslim property" purchased by him through a registered sale-deed, dated 11-12-1972 from one Din Muhammad who in turn had inherited it from his father Khuda Bakhsh deceased, and observed that he got not only the ejectment orders against the occupants Bashir etc. fr6m the Court of the Rent Controller, Lahore, but also took possession from them in execution thereof. 5. During the trial two orders claimed to have been passed by the Deputy Custodian respectively on 30-4-1968 (Exh.D.1) and 14-10-1970 (Exh.P.16) were brought on the record seemingly to show that a sale dated 17-5-1946 of the plot in question made by its non-Muslim owner in favour of Khuda Bakhsh had been confirmed under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957, and that those orders will prevail against any transfer of the plot made by the Rehabilitation Authorities in favour of the respondents-plaintiffs treating it as evacuee property. On this premise section 41 of the said Act was invoked to oust the jurisdiction of the civil Court. Secondly a serious prejudice was claimed against tendering documents P.8 to P.24 on 26-10-1981 by the respondents-plaintiffs after they had closed- their affirmative evidence on 19-4-1981. A month later, that is on 26-11-1981 a miscellaneous application was made by the petitioner for allowing him the right of rebuttal against these document, but to no avail. 6. The Courts below found, inter alia, that the so-called orders of the Custodian were bogus and decreed the suit of course repelling all other objections as to its maintainability etc. Learned counsel claimed preference for the sale made by the non-Muslim evacuee in 1946, but the finding of fact that the relevant orders of the Custodian were forged cannot be easily disturbed, No such plea was taken up in the written statement, nor was any reason as to this omission advanced. The order dated 10-4-1970 of the Deputy Custodian P.16 was found to have been passed by such an officer (Mr. Imran Khan) who had died a couple of years earlier i.e. on 4-7-1968. It tended to support the petitioner's plea but even he had to admit that it was fake and spurious. No better was the other order D.1 either, though it appeared to have been passed on 30-4-1968 i.e. during Mr. Imran Khan's life. No reliance was placed on it either in written statement or the list of reliances or even in the sale-deed D.2 by which the petitioner purchased it. If really it had been obtained by Khuda Bakhsh in 1968, he as well as his son Din Muhammad failed to show it the light of the day till 1974 when for the first time the latter placed it before Revenue Authorities in getting mutation Exh. P.4 attested about his sale, and there too tie bungled in getting it introduced only in Parat Patwar Exh.P.5 rather than Parat Sarkar which had to be corrected through application Exh.P.7. The track record shows that the house was first allotted to Ali Hussain as evacuee property in 1963. Why the petitioner failed to set up such a confirmed sale before the Rehabilitation Authorities for almost a decade was indicative of its doubtful nature. Besides all else, it was sought to be proved through a copy of a copy as the original was no more available. Such a mode of proof was not permissible as per Mst. Chuni Begum v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore and others P L D 1965 (W.P.) Pesh. 112. It had to l be ruled out. 7. There was nothing much in the other pleas particularly the res judicata etc. The plaints of the previous suits were not produced to see what relief on what title was claimed. The order of dismissal of the suit at page 75 of the original record did not reveal if it was passed in presence of the parties or their counsel. It was claimed to be covered by Order XVII, rule 2 read with Order IX, rule 8, C.P.C., creating a bar to this suit under Order IX, rule 9, C.P.C. Reliance C was placed on Muhammad Haleem and others v. H.H. Muhammad Naim and others P L D 1969 S C 270 in this behalf. As already remarked, the order more appropriately falls under Order IX, rule 3, C . P . C . , as it was passed in the absence of parties. It could not be one on merits, as the plaintiffs were absent and there was no option except to dismiss the suit in default. Evidently it could not bar a new suit on the same cause of action. 8. Considerable argument was raised against tendering Exhs. P.8 to P.24 as affirmative evidence, much after it had been closed by the respondents' statement dated 19-4-1981. The record discloses that no such objection was raised at the proper time perhaps because the petitioner was not then so minded. A month later, however, an application was made but that was too late. The rule is that once a document is allowed it may not be subsequently objected to it at least for want of reliance etc. Even if all these documents are excluded on this ground, A,, there was no reason to ignore the T.O. Exh. P.1 made in favour of ` the respondents-plaintiffs by the Rehabilitation Authorities, who in their exclusive jurisdiction treated the premises to be evacuee property. This order was acted upon in the Revenue record as Jamabandi Exh. P.3 incorporated it through mutation P.2. Conversely the petitioner's attempt to get it introduced in the Revenue record through a clandestine entry made in the Parat Patwar of mutation Exh. P.5 was foiled. Lastly it was argued that without getting the sale-deed D.2 cancelled, the present suit did not lie. Muhammad Akbar Shah v. Muhammad Yousuf Shah P I. D 1964 S C 329 laid down the rule that a forged document may not be got cancelled. It is only a formality as the respective claims of both the parties have been adjudged on comparative merits. Any such determination will ipso facto involve if not the cancellation at least the supersession of the petitioner's claim. Any such event will afford a complete clearance of the title of the respondents and that was enough to give him the relief. 9. The above analysis pre-eminently persuades ono to agree with the conclusions drawn by the Courts below. There is no merit in the Revision petition and the same is dismissed with costs throughout. H . B . T .???????????????????????????????????????????????????????????????????????????????? Petition dismissed.