2003 PLP 1559 (CLC)

Being aggrieved of and dissatisfied with the judgment and decree, dated 28-2-2001 and 17-3-2001 respectively passed by the learned Vth Senior Civil Judge, Karachi-West, decreeing suit No.223 of 1995 filed by respondent/plaintiff Mst. Khalida Parveen for possession, mesne profits and injunction in respect of Bungalow No.B-648, Haji Fazal Town Sector 1, Sultanabad Society, Mangopir Road, Karachi, and the judgment/order dated 13-11--2001 passed in Civil Appeal No.62 of 2001 by the learned IVth Additional District Judge, Karachi-West, dismissing the same (decree not filed with revision or thereafter); the applicant/defendant has filed this revision application under section 115, C.P.C. in order to assail the findings of the two Courts below.

2. The facts in brief relevant for the disposal of this revision application as pleaded by the parties appear to be that a suit for possession, mesne profits and injunction was filed by respondent/ plaintiff Mst. Khalida Parveen stating therein that Bungalow No.B-648, Haji Fazal Town, Sector 1, Sultanabad Society, Mangopir Road, Karachi, (hereinafter referred as "suit property") was purchased by her from Messrs M.Y. Corporation (Pvt.) Limited for a total sale consideration of Rs.1,50,000 plus Rs.60,000 being loan of House Building Finance Cbrporation and, as such, all the original title documents were lying deposited with the HBFC. Possession was delivered by the builder company to the plaintiff on 5-6-1993. According to the plaint, the parties to the suit viz. the plaintiff and the defendant had cordial relations being friends since their school days. Since the marriage of defendant was going to be performed with one Muhammad Farooq Khan hence she requested the plaintiff to allow her to reside in the suit property temporarily for some time which was lying vacant with an undertaking to vacate the same as and when desired and asked by the plaintiff. In view of such request and the longstanding friendly relations, defendant was allowed to occupy the suit property as a licensee. However, after some time on 27-1-1995 when plaintiff requested the defendant to vacate the suit property, the defendant became dishonest and refused to vacate the same. On 9-4-1995 plaintiff's husband made an application to the S.H.O. Mangopir who after necessary enquiry initiated proceedings under sections 107/117, Cr.P.C. against the defendant. However, since the defendant did not vacate the suit property hence the plaintiff filed Suit No.223 of 1995 for the reliefs as mentioned in the plaint.

3. Written-statement was filed by the defendant denying the case of the plaintiff and stating therein that she has already filed Civil Suit No.52 of 1995 in the Court of 1st Senior Civil Judge, Karachi-West, for declaration and permanent injunction hence the matter was subjudice and the, suit filed by the present plaintiff could not proceed. Pleas regarding maintainability of suit and the same being bad for non joinder of necessary parties were also raised. It was also pleaded that actual value of the suit property was Rs.2,10,000 hence the suit being valued at Rs.1,60,000 was undervalued and proper court-fee was not paid. Relations between the plaintiff and defendant as pleaded in the plaint were, however, not denied. Another plea was taken that plaintiff has already sold suit property to Muhammad Farooq Khan husband of the defendant through a sale agreement dated 31-5-1993 for a total sale consideration of Rs.1,50,000 plus House Building loan amounting to Rs.60,000 out of which Muhammad Farooq Khan has paid Rs.40,000 to the plaintiff and he was put in possession in part performance of the contract. The balance of the sale consideration amounting to Rs.1,10,000 was to be recovered by the plaintiff from Farooq Khan in twenty-two (22) equal installments of Rs.5,000 each. It was further pleaded that copy of the provisional possession letter issued by the builders to the plaintiff was also handed over to Farooq Khan by her and as per agreement, the plaintiff had recorded her no objection if the suit property was transferred/mutated/gifted in the name of any other person by Farooq Khan. It is also the case of the defendant that Farooq Khan spent Rs.48,000 on paints, electrical installations, sanitary works and other maintenance works and has orally gifted the suit property to defendant and such confirmation of oral gift though a declaration in writing was made on 7-6-1993 in presence of two witnesses. The defendant further pleaded that on 10-10-1993 and 7-1-1994 Farooq Khan has paid two installments of Rs.25,000 and Rs.15,000 each respectively to the plaintiff. Subsequently, Rs.10,000 were demanded by the plaintiff in the month of August, 1994, but Farooq Khan could not arrange such payment in time due to an accident. However, when on 15-8-1994 defendant went to make such payment, plaintiff refused to receive the same and filed criminal proceedings against the applicant/defendant followed by, above referred, suit.

4. In view of the pleadings of the parties the learned trial Court framed the following six issues: . (1) Whether the defendant is the licensee of the plaintiff? (2) Whether the plaintiff is entitled for possession of the Bungalow No.648, Haji Fazal-Town, Sector 1, Sultanabad Society, Manghopir Road, Karachi? . (3) Whether the plaintiff is entitled to recover mesne profit at the rate of Rs.2,000 per month from the defendant? (4) Whether the plaintiff has sold out the suit property to the husband of the defendant? (5) Whether the defendant is the owner of the suit property vide declaration and confirmation of oral gift dated 7-6-1993? (6) What should the decree be?

5. In support of her case plaintiff examined herself and produced lease deed in her favour showing her title as Exh.P.2, original letter of possession Exh.P.3 and its acceptance Exh.P.4, acknowledgment of possession Exh.P.5, F.I.R. Exh.P.6 and statements Exhs.P.7 and 8, whereafter she closed her side. In rebuttal defendant examined herself and produced sale agreement in favour of Farooq Khan as Exh.P.11, copy of possession letter in favour of plaintiff Exh.P.12, an application allegedly made by Muhammad Qasim, husband of plaintiff, to Mr. Munawar Suharwardy as Exh.P.13. She also examined her husband D.Ws. Muhammad Farooq Khan and one Fakharuddin and thereafter closed her side.

6. After hearing the learned counsel for the parties learned trial Court decided Issues Nos. l, 2 and 3 in "affirmative", Issues Nos.4 and 5 as "not proved" while deciding Issue No.6 suit was decreed in favour of the plaintiff. Appeal No.62 of 2001 was filed by defendant in the Court of learned District Judge, Karachi-West, which was heard and dismissed on 13-11-2001 by the learned IVth Additional District Judge, Karachi West, hence this revision.

7. In support of this revision application Mr. S. Abdul Waheed, learned counsel for the applicant/defendant, has argued that the two Courts below have not appreciated the evidence of the parties in accordance with the well-settled principles of law as laid down under the Qanun-e-Shahadat. The two Courts below have failed to appreciate that respondent/plaintiff did not examine any witness and, as such, there is no corroboration of her evidence. Learned counsel further argued that Muhammad Farooq, who is husband of the applicant/defendant, and the House Building Finance Corporation were not joined as defendants in the suit though Muhammad Farooq Khan has purchased the suit property from the respondent/plaintiff through a sale agreement executed in his favour by the respondent/plaintiff and that the suit property is admittedly mortgaged with HBFC, hence both were necessary parties and, as such, the suit was bad for non-joinder of proper and necessary parties. The main thrust of the arguments of learned counsel is that issues regarding maintainability of the suit, the suit being undervalued, non-payment of proper. court-fee, the suit being bad for misjoinder and non-joinder of necessary parties were also not framed by the learned trial Court though the said issues were necessary and essential for the purpose of decision of the suit on merits. Lastly it was argued that the findings of the two Courts below are based on misreading and non-reading of the evidence hence liable to be set aside. In support of his contentions, learned counsel has placed reliance on the cases of (1) Muslim Commercial Bank Ltd. and 2 others v. Muhammad Umar Malik PLD 1993 Lah. 281 and (2) Gul Muhammad Shah and another v. Shahak Dad 1993 CLC Quetta 1547 to show the revisional scope of this Court.

8. Mr. S. Muhammad Haider, learned counsel for the respondent/ plaintiff, has argued that there are concurrent findings of the two Courts same cannot be called in question through a revision application unless it is shown that the two Courts below either had jurisdiction or failed to exercise the jurisdiction vested in them, committed some illegality and material irregularity resulting in gross injustice while deciding the suit and the appeal. The fact that a different view of the evidence could be taken by the two Courts below is no ground for setting aside such findings in exercise of its revisional jurisdiction by this Court, unless the said findings are shown to be perverse, which according to the learned counsel is not the case here. On the point of non-joinder of proper or necessary parties learned counsel has argued that even otherwise neither any relief was claimed against HBFC nor Farooq Khan hence they cannot be deemed to be necessary parties. Moreover, he has referred to Order 1, Rule 9, C.P.C. which says that no suit shall be defeated for non-joinder of necessary parties. So far non-framing of issues, the learned counsel has argued that no such issue was suggested by the applicant/defendant in proposed issues filed before the trial Court. It is too late in the day to raise this ground in this revision application. Order XIV, Rule 5, C.P.C. is a complete reply to such type of objections as it is the duty of the concerned party to apply to the trial Court at the relevant time for recasting, reframing, addition or deletion of the issues. Even at the appellate stage no such attempt was made by the applicant/defendant and, as such, this plea cannot be taken at such belated stage. Learned counsel has referred to the evidence of the parties in order to show that evidence led by the respondent/plaintiff is natural and inspires confidence whereas the evidence adduced on behalf of the applicant/defendant is irrelevant and worth no credence. In support of his contentions he has relied upon the cases of (1) Muhammad Amin v. Muhammad Yasin and another 2002 CLC 231 to show that unless some illegality, infirmity or material irregularity is pointed out, concurrent judgments of the two Courts below are not to be disturbed, (2) Sana Ullah SC 256 wherein the necessity of the calling of the two attesting witnesses in order to prove a document was under consideration and it was that when both attesting witnesses of document in question were alive and were available but were not produced, in such case the two Courts below could not hold on the basis of evidence on record that execution of document in question was proved, and (3)Tanveer Mahboob v. Haroon and 12 others 2002 MLD 1901 where a Division Bench of this Court of which I was a member has held that non-examination of attesting witnesses or notary public before whom the two agreements were said to have been executed was fatal to the case of the party relying upon such documents and, as such, conclusion of Single Judge o this Court on original side to the effect that the two agreements relied upon by the appellant were collusive and fraudulent, was found unexceptionable.

9. I have heard the learned counsel for the parties and examined the martial placed on record as well as the cases cited by them. In order to appreciate the respective contentions of the learned counsel for the parties I had also sent for the R & P of the appeal and the civil suit from the two Courts below and have examined the same.

10. At the very outset I may observe that certified copy of the decree in appeal has not been filed alongwith this revision application and no reason has been shown in the memo. of revision application for not filing the same at the relevant time, or seeking exemption or extension of time, if the same was not prepared by the B Appellate Court at the relevant time. A decree is the operative part of al judgment in a civil suit or civil appeal. Section 96, C.P.C. also provides that an appeal is to be filed against the decree. A revision application under section 115, C.P.C. calling in question the judgment and decree Passed in appeal without filing a copy of decree is a legal defect which may result in dismissal of the revision application unless exempted by the revisional Court or time extended to file the same under the circumstances of a particular case.

11. There is another important point fatal to this revision application which cannot be ignored. From the perusal of the appeal file called from the Court of learned IVth Additional District Judge, Karachi-West, court -fee on appeal does not appear to have been paid by the defendant/ applicant. What I further find that this revision application even before this Court was filed on 15-12-2001 without affixing any court-fee and such objection was taken by the office whereafter court-fee amounting to Rs.4,800 which does not appear to be proper court-fee, was paid D on 16-1-2002 whereas the actual court-fee paid by the plaintiff before the learned trial Court in view of the objection taken by applicant/defendant and order of the Court for making up the deficiency appears to be Rs.7,

580. This revision therefore, appears to have been filed with deficient court-fee as such on this score as well it is not maintainable according to law having not been filed with proper court-fee during the specified time of 90 days.

12. Coming to the merits of the case a careful scrutiny of the evidence adduced by the parties before the learned trial Court shows that admittedly the respondent/plaintiff has purchased the suit property from Messrs M.Y. Corporation and, as such, her ownership to that extent is not disputed. Even the defendant/applicant is also claiming the suit property through the respondent/plaintiff who has allegedly sold the same to Muhammad Farooq Khan husband of the defendant/applicant through an agreement to sell and Muhammad Farooq Khan on his part has gifted the same to the applicant/defendant being his wife. However, the moot point to be considered in view of the denial of execution of any such agreement by the plaintiff/respondent and admittedly non-filing a suit for specific performance of the contract by Farooq Khan so far, would be whether any such agreement was executed by the respondent/plaintiff in favour of Muhammad Farooq Khan. In view of the denial by the plaintiff/respondent the burden lies upon the applicant/defendant who has miserably failed to discharge the same. In the first instance the applicant/defendant is not a party to such agreement and she is not even an attesting witness of the same. Muhammad Farooq Khan who was examined as a witness in his evidence has admitted that he has not filed a suit for specific performance of the contract against the plaintiff/ respondent. Furthermore, in order to prove the execution of the said document, even the attesting witnesses of the said agreement were not examined. Under these circumstances, the alleged sale agreement remained unproved and, as such, the view taken by the two Courts below that the alleged agreement of sale is not proved to have been executed by rule 6(2), C.P.C. and Order XLI, rule 35(3), C.P.C. are reproduced below for ready reference:-- "Order XX, rule 6(2).

The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid. Order XLI, rule 35(3).

The decree shall also state the amount of costs .incurred in the appeal, and by whom, or out of what property, and in what proportions such costs and the costs in the suit are to be paid."

16. Rule 188, Chapter XII of the Sindh Civil Courts Rules 1947 also does not appear to have been followed. All concerned are expected to be careful and vigilant enough in future while performing their duties. The learned IVth Additional District Judge, Karachi-West, is directed to examine and check the office record and if it is found that no court-fee at all or deficient court-fee was paid on appeal by the applicant/defendant K provisions of section 12 of the Court Fees Act should be invoked and disciplinary action against the concerned officials should also be taken as per rules under intimation to the Registrar of this Court. Deputy Registrar of this Court should also be careful in future to see that proper court-fee has been calculated and affixed by the appellants/applicants on memorandum of appeals, revisions, etc. as the case may be. S.A.K./S-298/K Petition dismissed.