2018 PLP 1981 (CLC)

MIRZA VIQAS RAUF, J.

This petition in terms of section 115 of The Code of Civil Procedure (V of 1908) (hereinafter referred as "C.P.C.") assails the judgment and decree dated 30th November, 2016, whereby the learned Additional District Judge, Talagang, District Chakwal, while dismissing the appeal preferred by the petitioners, affirmed the judgment and decree dated 14th July, 2015 passed by the learned Civil Judge Class-II, Talagang.

2. Precisely, the facts necessary for adjudication of instant petition are that the petitioners instituted a suit for declaration and permanent injunction against the respondents averring therein that Mst. Mumtaz Begum i.e. mother of the petitioners, was owner of land bearing Khewats Nos.70 to 83, 85, 107, 108 and 119 measuring 57 Kanals 8 Marlas and land bearing Khewat Nos.20, 24, 1039, 1089, 1145 and 1147 measuring 31-Kanals 5-Marla situated in revenue estates of Moorat and Talla Sharaq respectively and urban land subject matter of registered sale deed No.962 dated 7th August, 1984, sale deed No.453 dated 18th November, 1999 and sale deed No.1286 dated 11th December, 1979 situated within the limits of Municipal Committee, Talagang, who died on 10th August, 2009. As per averments contained in the plaint, the petitioners as well as respondents belong to "Shia" faith. It is averred that respondent No.1 is father of the petitioners Nos.1 to 4 whereas petitioners Nos.5 to 6 are daughters of one Ahmed Khan. It is claim of the petitioners that respondent No.1 entered in "Muta Marriage" with Mumtaz Begum with consideration of amount of Rs.50,000/- for a period of 35 years and on 15th May, 2006, a notice was issued with regard to expiry of period of said marriage. Mst. Mumtaz Begum died on 10th August, 2009 and after her death, the petitioners became her legal heirs and as per law, they are entitled to get share in her legacy but they have been deprived from the same illegally and unlawfully. The suit was contested by respondent No.1, who submitted his written statement, controverting the assertions contained in the plaint. From the divergent pleadings of the parties, initially following issues were framed:-

1. Whether the suit of the plaintiffs is hit by section 42 of Specific Relief Act, if so, whether the suit is not maintainable? OPD

2. Whether the description of the disputed property has not correctly been given, if so, its effect? OPD

3. Whether the suit is false, frivolous and vexatious, if so, whether the defendant is entitled to special costs under section 35-A of C.P.C.? OPD

4. Whether the notice dated 15.05.2006 is result fraud? OPD

5. Whether the plaintiffs are entitled to the decree for declaration to the effect that they are owners of the disputed property, marriage of the defendant and mother of the plaintiffs was contracted according to Isna Ashria Sect and being so defendant has no concern with the disputed property? OPP

6. Relief. However, as the respondent No.1 sold out some land out of the suit land to respondents Nos.3 to 7 so being subsequent vendees, they were also impleaded as party and additional issues to the following effect were framed:-

6. Whether the inheritance mutation No.6698 of the mother of plaintiffs, namely Mumtaz Begum has been illegally attested in favour of and to the extent of the defendant No.1, namely Malik Ishtiaq Hussain? OPP

7. Whether the defendant No.1 was not entitled to alienate the property in favour of the defendant No.2 and the consequent HIBBA Mutation No.7515 is illegal and liable to cancellation? OPP

8. Whether defendant No.1 was not entitled to alienate the property, in favour of defendants Nos.3 to 5 and in consequence thereof Mutation No.1853 dated 15.01.2013 to the extent of land measuring 06 Kanals and 11 Marlas is illegal, void and ineffective upon the rights of the plaintiffs, hence liable to cancellation? OPP

9. Whether defendant No.2 was not entitled to alienate the property in favour of defendants Nos. 6 and 7 and in consequence thereof Mutation Nos.7582 and 8702 are illegal, void and ineffective upon the rights of the plaintiffs, hence liable cancellation? OPP

10. Whether the plaintiffs have no cause of action to file instant suit? OPD # 6 and 7

11. Whether the suit is hit by limitation? OPD # 6 and 7

12. Whether the suit has been filed just to harass and blackmail the defendants, hence the same is liable to be dismissed with special costs under section 35-A of CPC? OPD # 6 and 7

13. Relief.

3. After capsulating the matter in controversy in the above referred issues, both the sides were directed to produce the evidence. On completion of the evidence, the suit was dismissed vide judgment and decree dated 14th July, 2015. The petitioners, feeling, aggrieved from the said judgment, though preferred an appeal before the learned Additional District Judge, Talagang, District Chakwal, but the same was also dismissed vide judgment and decree dated 30th November, 2016.

4. Learned counsel for the petitioners, while questioning the validity of judgments of both the learned Courts below, confined his submissions only to the ground (b) of the instant petition. While referring to the same, learned counsel contended that the petitioners were not afforded any opportunity to argue their case and the suit was dismissed in their absence, after hearing learned counsel for the respondents. Learned counsel, though has been asked about the submission with regard to the other merits of the case, but he remained adamant that this sole ground is sufficient for setting aside the concurrent findings of both the learned Courts below and for remanding the case to the learned Civil Judge.

5. Conversely, learned counsel for the respondents submitted that ample opportunity was afforded to the petitioners for addressing their arguments but on their failure, learned Trial Court proceeded with the suit. Learned counsel, while referring to section 99 of "C.P.C.", contended that judgment under assailance cannot be set at naught only on the ground that the petitioners were not afforded an opportunity of hearing by the learned Civil Judge. Learned counsel maintained that the judgments are based on proper appraisal of evidence and no exception can be drawn to the same.

6. After having heard learned counsels for both the sides, I have perused the record in order to appreciate their respective contentions in a beneficent manner.

7. Though concurrent findings of the learned Courts below have been questioned by the petitioners only on the ground that the learned Civil Judge deprived them from the right of hearing but while exercising the revisional jurisdiction, I am cognizant of the fact that this Court, in terms of section 115 of "C.P.C.", is bound to examine the proprietary of the judgments on the touchstone of said provision for the advancement of ends of justice.

8. Before coming to the said aspect of the case, it would be fair to first of all address the question raised by the learned counsel for the petitioners. There is no cavil that on completion of evidence, the trial Court is obliged to fix a date for haring of arguments of the parties by virtue of Order XX Rule 1 (1) of "C.P.C.". Record reveals that evidence in this case was completed on 4th July, 2015 whereafter the case was fixed for final arguments on 6th July, 2015, and so on. On failure of the petitioners' counsel to address the arguments; despite availing number of opportunities, the learned Trial Court finally adjourned the matter for 14th July, 2015 but on the said date, the petitioners have failed to arrange their representation. In this background, the learned Trial Court after hearing arguments of learned counsel of the respondents, proceeded with the matter and after perusing the evidence available on the record, dismissed the suit by way of judgment and decree dated 14th July, 2015. The petitioners, thereafter, challenged the said judgment and decree through an appeal before the learned Additional District Judge. Perusal of said judgment reveals that despite taking this point as one of the grounds of appeal, this aspect was not agitated by the learned counsel for the petitioner, while addressing his arguments.

9. Leaving aside above aspect, it is noticed that learned Civil Judge has provided ample opportunities to the petitioners to arrange representation and to address the arguments as is provided under Order XX Rule 1(1) of "C.P.C." but despite the fact, unnecessary adjournments were sought for the said purpose. It is the bounden duty of an Advocate to appear in the Court and represent his client whenever is called for the said purpose. There is no cavil that each and every party has a right to be heard and represented by a counsel but at the same time it could, not be permitted to defeat the cause of justice by indefinite procrastination. The litigant (s) or counsel (s) cannot be allowed to regulate the proceedings of Court by their own choice and whims. Rights of each of the parties are equally protected under the law and none of the parties are permitted to stifle and prolong the proceedings without any sufficient and just cause. Guidance in this respect if needed can be sought from "Anti-Corruption Establishment, Punjab through DG v. National Accountability Bureau through Chairman NAB and others" (2016 SCMR 92) and "Zafar Iqbal v. The STATE" (PLD 2015 Supreme Court 307).

10. After having gone through the relevant material, I am of the considered view that due compliance was made to the provisions of Order XX Rule 1(1) of "C.P.C". Furthermore, it is evident from the record that on 30th March, 2017, learned counsel for the petitioners, when emphasized this point, same was turned down and he was directed to address the issue on merits. Though said order was passed in presence of counsels of both the sides but the same has not been challenged so far and attained finality. In case any reference to this effect needed, judgment of the Hon'ble Supreme Court of Pakistan in the following cases are sufficient to clarify the preposition in hand:- 1. "Mst. Zohra Begum and 6 others v. Muhammad Ismail" (2008 SCMR 143), 2. "Mst. Shahida Zareen v. Iqrar Ahmed Siddiqui" (2010 SCMR 1119), 3. "Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others" (2011 SCMR 408) and 4. "Juma Khan and others v. Mst. Bibi Zenaba and others" (PLD 2002 SC 823).

11. While adverting to the merits of the case, though not questioned by learned counsel for the petitioners, it is observed that the petitioners have claimed the share in the legacy of Mst. Mumtaz Begum on the ground that she contracted "Muta Marriage" with respondent No.1 but no cogent evidence was led to this effect. Only a notice for termination i.e. Exh.P1 was brought on record without any formal proof of the same as is required under Article 79 of The Qanun-e-Shahadat Order, 1984. The petitioners, even otherwise, have failed to point out any error, defect or irregularity justifying reversal of concurrent findings of both the learned Courts below.

12. The analytical view of impugned judgments leads this Court to an irresistible conclusion that none of the said judgments suffer from any such legal error or material irregularity, justifying interference by this Court in exercise of revision jurisdiction. This petition, resultantly, fails and is dismissed in limine. MWA/F-5/L Petition dismissed.