2001 SCMR 1647 (PLP)

JAVED IQBAL, J.‑‑‑The civil petition for leave to appeal has been preferred on behalf of Mst. Mussarat Ara Khanum (petitioner) under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973, whereby the judgment dated 29‑10‑1998 passed by a learned Division Bench of the High Court of Balochistan, Quetta, has been assailed whereby the revision petition filed on behalf of petitioner has been dismissed.

2. Briefly stated the facts of the case are that on 14th May, 4. 1989 Amaid Ali (respondent No.l) filed a suit against petitioner and Ghai Khan (respondent No.2) in the Court of Civil Judge, Quetta, with the averment that a parcel of land measuring 25 acres, description mentioned in the plaint, was purchased from Ghai Khan attorney of the petitioner by means o1 agreement dated 11‑11989 in the sum of Rs.1,18,75,000 out of which Rs.1,00,00,000 was paid to Ghai Khan and remaining amount was agreed to be paid after the transfer of land. The attorney of petitioner did not honour his obligation and showed reluctance to perform his part of obligation and meanwhile the petitioner also revoked the power of attorney. It was prayed in the suit that petitioner and her attorney be directed to transfer the disputed property in his name as he was willing to pay the balance amount of Rs.18,75,

000. The subject‑matter of the suit for payment of court‑fee and jurisdiction was valued as Rs.110. The petitioner/defendant filed written statement by controverting the assertions made in the plaint with the specific, denial of the execution of power of attorney dated 13‑8‑1998 in favour of Ghai Khan. In view of the pleadings of the parties, issues struck thereon and evidence led by them. The learned Civil Judge vide judgment dated 17th September, 1992 decreed the suit. Being aggrieved an appeal bearing No.42 of 1992 was preferred by the petitioner on 10th November, 1992 and court fee of Rs.15,000 was affixed on it .which was admitted on 12th November, 1992. An objection was raised regarding its maintainability on behalf of ' respondent and resultantly the appeal was withdrawn with permission of the Court to present the same before the learned District Judge. The counsel for the petitioner obtained the memo. of appeal on 3rd May, 1994 which was presented on the same day in the Court of learned District Judge, Quetta, along with application under section 5 read with section 14 of the Limitation Act The appeal was rejected by the learned Additional District Judge‑I, Quetta, being time‑barred by means of judgment dated 13‑6‑1995. The petitioner assailed the said order before the learned High Court by means of revision petition (C.P. 216 of 1995) which has been dismissed vide impugned judgment hence this petition.

3. Heard at length Mr. Mumtaz Hussain Baqsi, learned Advocate Supreme Court on behalf of petitioner and Messrs Maqbool Elahi Malik and Ihsanul Haq learned Advocates Supreme Courts for the caveators. After having gone through the entire record and the contentions as adduced on behalf of the parties we are inclined to grant leave to consider the following points arising out in the case:‑‑ (i) Whether the impugned judgment has been passed on wrong premises of law and facts and the same is an outcome of non‑reading and misreading of the material pieces of evidence substantiating the assertion of the petitioner? (ii) Whether the permission to withdraw the appeal bearing No.42 of 1992 duly admitted on 12th November, 1992 subsequent entertainment of revision petition was illegal in view of valuation of the suit amounting to Rs.18,75,000 duly supported by order dated 26‑11 1996 and consequently the impugned judgment was without jurisdiction and lawful authority having‑ no legal effect at all? (iii) Whether after holding that petitioner and, respondents both were required to pay court‑fee on the value of the suit i.e. Rs.18,75,000, the appeal could have been treated as time‑barred? ' (iv) Whether in view of the chequered history of the case, it was a fit case for condonation of delay which mainly occurred due to bona fide impression and belief that appeal was to be filed before the (v) Whether the evidence which has come on record has been appreciated in its true perspective by the learned High Court while deciding the revision petition on merits when the appeal was dismissed by the learned Additional District Judge on the sole ground of limitation? (vi) Whether the agreement of sale can be enforced in absence of any consideration and this implications which aspect of the matter escaped notice from the learned High Court? (vii) Whether the calculations regarding time‑ as made by the learned Appellate Court and relied upon by the learned High Court are contrary to record and petitioner could not justify the consumption of time between 18‑9‑1992 to 13‑10‑1992, 14‑10‑1992 A to 10‑11‑1992, 14‑12‑1993 to 6‑4‑1994 and 6‑4‑1994 to 3‑5‑1994? (viii) Whether, the decree of trial Court in view of valuation of the suit is patently without lawful authority and has been passed in exercise of jurisdiction which was never conferred upon it, therefore, the same being void is liable to be struck down as against such void decree no period of limitation would run? (ix) Whether the petitioner could have been non‑suited only on the basis of Exh.P./3 implications whereof were never discussed by the learned trial and Appellate Courts in accordance with law and settled principles of justice? (x) Whether the statement of Gul Jan (P.W.4) representative of Sub -Registrar would be sufficient to prove the authenticity and genuineness of power of attorney (Exh.2‑A) allegedly executed by the petitioner in favour of Ghai Khan when Gul Jan (P.W.4) was neither a marginal witness nor it was executed in his presence? (xi) Whether the learned High Court has examined the statements of Syed Temur Shah (P.W.2) and Akhtar Muhammad (P.W.3) in depth to appreciate the real controversy while deciding the revision petition on merits? (xii) Whether the impugned judgment of the High Court of Balochistan is in conflict with the dictum as laid down in cases titled Fida v. Gulzar Begum and 3 others 1994 SCMR 818 and Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811? (xiii) Whether Exh.2‑A was got registered before Sub‑Registrar by the petitioner herself and the question of her identification has been dealt with properly by the learned High Court and while deciding the revision petition? (xiv) Whether all the points as agitated in the revision petition were dilated upon, discussed and decided by the learned High Court while deciding the revision petition?

4. Since the matter is an old one, therefore, the appeal arising out of this petition may be fixed at the earliest after having approval of his Lordship the Hon'ble Chief Justice preferably in the second week of September, 2001. M.B.A./M‑268/S Leave granted.