1992 PLP 1 (CLC)

Through this Constitutional petition, Shah Nawaz, petitioner, seeks declaration to the effect that the order dated 4‑9‑1990 of Civil Judge, Rahimyar Khan and order dated 5‑11‑1990 passed by the learned Additional District Judge, Rahimyar Khan are illegal without lawful authority and of no legal effect.

2. The facts leading to this petition briefly are that Shah Nawaz, petitioner, filed a suit for the Specific Performance of Contract against Mst. Sat Bhari and Muhammad Azam, respondents, in the Court of Senior Civil Judge, Rahimyar Khan, which was entrusted to Civil Judge Rahimyar Khan. On 29‑4 1989 written statement was filed in Court on behalf of Mst. Sat Bhari respondent No.1. In the written statement she admitted the suit/claim of the petitioner. On 28‑2‑1990 an application thumb‑marked by her was filed in the Court by Khadim Hussain Khan, Advocate under section 151, C.P.C. In this application she disowned the written statement dated 29‑4‑1989 stating that fraud and misrepresentation had been committed by the petitioner. So, the proceedings with regard to the filing of earlier written statement on her behalf may be set aside and she may be allowed to contest the suit. This application was resisted by the petitioner. The trial Court framed following issues: (1) What is the effect of application of Mst. Sat Bhari dated 28‑2‑1990? OPP (2) Relief. The parties produced evidence. Mst. Sat Bhari appeared as A.W.1. She produced Muhammad Ismail, A.W.2 and Jam Gaila A.W.3. In rebuttal the petitioner produced nine witnesses namely Muhammad Mustafa R.W.1, Muhammad Ashraf, Advocate R.W.2, Mirza Muhammad Saleem Advocate R.W.3, Abdul Qadir, Advocate R.W.4, Rana Muhammad Akram petition writer R.W.5, Munir Ahmad R.W.6, Mushtaq Ahmad Clerk of Advocate R.W.7, Arshad Mehmood, Advocate R.W. 8 and Shah Nawaz, petitioner, appeared as R.W.9.

3. Believing the plea of Mst. Sat Bhari and the evidence produced by her and disbelieving the evidence produced by the respondent against petitioner/plaintiff the trial Court accepted the application on 4‑9‑1990, allowing Mst. Sat Bhari to file fresh written statement and to withdraw the previous written statement dated 29‑4‑1989 and special power of attorney dated 10‑12‑1989. Feeling aggrieved thereby, the petitioner filed revision which was dismissed by the learned District Judge, Rahimyar Khan on 5‑11‑1990. Hence this revision. 4 Learned counsel for the petitioner contended that after having filed written statement on 29‑4‑1989 and also having appeared in the Court through attorney on 13‑1‑1990, Mst. Sat Bhari was estopped from denying the correctness of earlier written statement so he could not be alloweu to change the written statement; that the application of Mst. Sat Bhari was not maintainable under section 151, C.P.C. and as such the impugned order passed by the trial Court was without jurisdiction.

5. I have considered the submissions made by the learned counsel with care. I find that the question in dispute was/is more or less a question of fact. The parties led evidence in support and in rebuttal on issue No.1. The Courts below have concurrently found issue N6.1 in favour of Mst. Sat Bhari and against the petitioner. Since both the Courts have come to the conclusion that the earlier written statement dated 29‑4‑1989 was not filed by Mst. Sat Bhari, therefore, the order allowing her to file fresh written statement would not mean that she has been allowed to file additional/second written statement. So, written statement which will be filed by her under the impugned order will be the first written statement. This being the position, the question of changing the averments in second written statement does not arise. The learned Courts below have not flouted the provision of relevant law. They have also not violated any case‑law laid down by the Superior Courts on this point. I do not see any misreading/non‑reading of evidence on the part of the Courts below. The judgments of the Courts below do not suffer from legal infirmities.

6. Pursuant to the above discussion, I dd not see any justification to interfere, in exercise of the Constitutional powers of this Court, with the well reasoned judgments of the Courts below. So, this petition is accordingly dismissed. AA./S‑29/L Petition dismissed.