2017 PLP 86 (YLRN)

CH. MUHAMMAD MASOOD JAHANGIR, J.

By this single judgment I intend to dispose of the above C.Ms. which have been filed under section 12(2) of the Civil Procedure Code, 1908 against the order dated 24-5-1995, whereby, main Civil Revisions were accepted and the suits were decreed on account of the alleged compromise arrived at between the parties, as commons questions of facts and law are involved in the same.

2. Precisely, the facts of the lis are that on the basis of an agreement to sell dated 9.10.1985, which was allegedly executed between Naurang, Ahmad Yar, Muhammad Nawaz, Sarfraz, Muhammad Yar and Noor Ahmed sons of Fazil and Muhammad Nawaz, six civil suits for specific performance thereof to the extent of their respective share were independently filed by said six sons of Fazil (hereinafter to be referred as plaintiffs) against the legal heirs of Muhammad Nawaz (hereinafter to be referred as defendants) in the year, 1990. After conducting full-fledged trial, all the six suits were dismissed by the learned trial Court vide separate judgments and decrees dated 3.5.1992. The plaintiffs being aggrieved filed six separate appeals before the learned lower appellate Court, which came up for hearing before the learned Addl. District Judge, Sahiwal who vide consolidated judgment and decrees dated 9.2.1994 dismissed the said appeals. Being dissatisfied, the plaintiffs brought six independent Civil Revisions Nos.474-D to 479-D-1994 before this Court and vide orders dated 10.4.1994 pre-admission notices were ordered to be issued to the defendants. The perusal of files reveals that no notice was over issued to the defendants by the Office of this Court. In all the above civil revision, on 24.4.1995 six C.Ms. bearing Nos.332 to 337/1995 under Order XXIII, Rules 1 and 2 read with sections 107/151 of the Civil Procedure Code, 1908 for effecting compromise were separately filed in each Civil Revision respectively, which were endorsed to be heard on 25.4.1995 but files reveal that these C.Ms. were taken up by this Court on 24.5.1995, that too without any prior notice and on the said date, vide separate orders the civil revisions filed by the plaintiffs were accepted and their suits were decreed on the basis of compromise. For ready reference, the order dated 24.5.1995 is reproduced hereunder:-- "24.5.1995. Mian Habib-ur-Rehman Ansari, Advocate for the Petitioner. Nusrat Hayat, Spl. Attorney of the Respondents. Mian Ashiq M. Jamal, Advocate for the Respondents. The special power of attorney executed by respondents Nos.2 to 7 in favour of respondent No.1 has been filed. Both the learned counsel for the parties state that the parties have reached a compromise whereby it has been agreed that the suit of the petitioner/plaintiff may be decreed as prayed for. Since the revision petition is still at motion stage and the same is to be accepted in view of the terms of the compromise reached between the parties, therefore, the revision petition is admitted to regular hearing.

2. Notice.

3. Mr. Ashiq M. Jamal, Advocate accepts notice on behalf of the respondents. Let the main case be heard. Main Case.

4. Both the learned counsel for the parties state that the parties have reached a compromise whereby it is agreed that the suit of the petition/plaintiff may be decreed as prayed for. It is added that the respondents have already received the total consideration and that nothing is outstanding against the petitioner.

5. In view of the matter, the revision petition is accepted with the result that the suit of the petitioner/plaintiff is hereby decreed as prayed for."

3. Thereafter, titled C.Ms. bearing Nos.656-C to 659-C-1995 and 662-C-1995 under section 12(2) of the Civil Procedure Code, 1908 were filed by the defendants for setting aside the order as well as proceedings dated 24.5.1995 with the following prayer:

"It is, therefore, respectfully prayed that this petition may kindly be accepted, the judgment and decree fraudulently obtained by the plaintiff / respondent / revision petitioner of this Hon'ble Court dated 24.5.1995 may be set aside and the revision petition may be dismissed in consequence, with special costs all throughout. It is further prayed that the respondents may be convicted and sentenced under section 476, P.P.C. besides as also under the Contempt of Court Act. It is also prayed that criminal prosecution of the respondents may also be directed under sections 419, 420, 467, 468 and 471, P.P.C. In the meanwhile the operation of the impugned judgment and decree of this Hon'ble Court dated 24.5.95 may please be held in abeyance as the respondents are trying to enforce the same through the Revenue Officer."

4. The said C.Ms. were contested by the plaintiffs and this Court vide order dated 5.6.2003 transmitted the instant applications under section 12(2) of the Civil Procedure Code, 1908 filed by the defendants along with the main cases to the learned District Judge, Sahiwal with a direction to obtain reply from the plaintiffs on the above referred applications and after framing necessary issues arising out of the pleadings of the parties to record evidence and transmit the files to this Court within a period of eight months. In compliance of order of this Court, the learned District Judge obtained replies and on 18.11.2003 framed the following issues:

1. Whether the judgment and decree dated 24.5.1995 is result of fraud and misrepresentation of facts? If so, its effect? OPA

2. Whether Nusrat Hayat petitioner No.2 was validly appointed as Special Attorney by the other petitioners? OPR

3. Whether the petitioner No.5 Sajjad and petitioner No.6 Mst. Noor Mahal were minors at the time of execution of Special Power of Attorney dated 4.5.1996? OPA

4. Relief.

5. The learned District Judge after recording evidence of the parties transmitted the original proceedings to this Court along with forwarding letter dated 4.5.2006.

6. The defendants produced Dr. Mehmood Afzal, Addl. Superintendent (A.W.1), Dr. Tariq Mehmood, Radiologist (A.W.2), Allah Yar, teacher (AW.3) and Nusrat Hayat (AW.4) besides the documentary evidence ranging from Exh.A1 to Exh.A

13. Conversely, the plaintiffs produced Muhammad Iqbal Naeemi, stamp vendor, (RW.1) Ch. Muhammad Nawaz, Advocate/Notary Public (RW.2), Mian Ashiq Muhammad Ashiq Jamal, Advocate (RW.3) and one of the plaintiffs namely Muhammad Yar (RW.4).

7. Arguments heard and record perused.

8. My issue-wise findings are as under:-- ISSUE NO. 2

9. The case of the defendants in their applications under section 12(2) of the Civil Procedure Code, 1908 is very simple and straight, who alleged in their petitions that they had neither appointed Mian Ashiq M. Jamal, Advocate as their counsel nor he or any other person was authorized to appear and make conceding statements on their behalf whereas so-called special power of attorneys executed on their behalf in favour of Nusrat Hayat were absolutely forged and fabricated documents; that Nusrat Hayat, who is one of the defendants, had neither signed the said special power of attorneys nor had he appeared before this Court and the conceding statements had never been made by him, but while practicing fraud, misrepresentation and through impersonation, the alleged conceding statements were engineered before this Court by the plaintiffs for their benefit; that defendants Nos.5 and 6 namely Sajjad and Mst. Noor Mahal were minors at the time of alleged compromise and on behalf of the said minors neither special power of attorney could be executed nor it had any legal sanctity; that the defendants contested the suits as well as appeals with full force before the courts below and the plaintiffs remained unable to prove the execution of the alleged agreement to sell dated 9.10.85 but to usurp the property of the defendants after having been confident that they could not succeed, they malafidely engineered the forged device/execution of special power of attorney as well as appointment of counsel and got decreed their suits by practicing fraud and misrepresentation, hence, these petitions are liable to be accepted and the main Civil Revisions be decided on merits.

10. Conversely, the plaintiffs brought a defence that Nusrat Hayat had duly been appointed as Special Attorney on behalf of rest of the defendants, who further appointed Mian Ashiq Muhammad Jamal, Advocate, as a counsel for the defendants; that Nusrat Hayat, Special Attorney through the counsel for the defendants along with the plaintiffs presented joint applications for the disposal of civil revisions as per compromise and this Court after having been satisfied with the genuineness of the alleged compromise arrived at between arrived at between the parties rightly passed the impugned order and there being no element of fraud and misrepresentation, these applications are liable to be dismissed, which have been filed with the ulterior motive and gain undue benefit while putting the plaintiffs under pressure.

11. The defendants have categorically denied the execution of special power of attorneys in favour of Nusrat Hayat and appointment of Mian Ashiq M. Jamal, Advocate by the said Special Attorney as their counsel. Six special power of attorneys (Exh.RW-3 to Exh. RW8) in original are available on the file, the perusal whereof reveals that the stamp papers for reducing into writing said power of attorneys were not purchased by all the defendants rather the same were shown to have been purchased only by Umar Draz, one of the defendants. The original I.D. Card of said Umar Draz was brought on record as (Exh.RW.7) and its perusal reveals that his correct I.D. Card No.335-59-309118 was not written over the sale writing of said stamp papers which reads 335-59-309218 and this fact has been conceded by the stamp vendor while appearing as RW.1. It is settled law that when the execution of a documents is denied, then the burden to prove it shifts on the shoulders of the party who got benefit out of the said document and in this case, the beneficiaries of power of attorneys are the plaintiffs. No doubt, the plaintiffs produced Muhammad Iqbal Naeemi, stamp vendor, as RW.1, but he got recorded his statement without bringing the Register of Stamp vending, who deposed in his statement that he had not only issued the stamp papers for executing special power of attorneys, but he also scribed the same on the demand of the parties. Admittedly, RW.1 was not a license holder deed writer, which fact was conceded by him at the beginning of this cross-examination. It is noteworthy that licenses are issued by the competent authority to the skilled deed writers so that the interest and rights of the parties could be secured as the license holder deed writers are required to maintain the Registers to make entry of the document and also to obtain signatures/thumb impressions of the executants against the said entry in the Registers to cross-check the authenticity of the signatures/thumb impressions of the executants found to have been affixed on the relevant instruments. In the present case, no such documentary evidence of corroborative nature in the shape of Registers of deed writer is available on the record to support the version of the plaintiffs and due to non-production of Register of stamp vending despite availability, the inference has to be drawn against the plaintiffs.

12. The plaintiffs also failed to produce the attesting witness namely Sarfraz as well as Abbas to prove the valid execution of Special Power of Attorneys, which was mandatory under Article 79 of the Qanun-e-Shahadat, 1984 and for ready reference the same is reproduced below:

"

79. Proof of execution of document required by law to be attested.

If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." The above referred provision provides procedure to prove the execution of the documents required by law to be attested. The non-examination of attesting witnesses has provided justification for holding that valid execution of the Special Power of Attorneys could not be proved. No reason has been assigned for withholding the said star witnesses despite their availability and inference has to be drawn against the petitioners under Article 129(g) of the Qanun-e-Shahadat, 1984. The argument of learned counsel for the plaintiffs that the producing stamp vendor, deed writer and a Notary Public, the contents and execution of power of attorneys have been proved, is devoid of force. An attesting witness is the person, who happens to see the process of a document being executed and also puts his name as well as signature at the end of document. Obviously it is not shown with reference to the questioned documents that scribe, in addition to the writing of document, had also acted as an attesting witness, who cannot be treated as such and his examination at trial as a scribe will not be sufficient compliance of the requirement contained in the Qanun-e-Shahadat, 1984. From the perusal of Special Power of Attorneys it is further borne out that Muhammad Iqbal Naeemi (RW.1), the stamp vendor and alleged scribe did not sign the said documents being scribe of the same and mere signatures of Ch. Muhammad Nawaz, Advocate (RW.2) as Notary Public on the Power of Attorneys, who never signed the said documents in the capacity of attesting witness cannot declare to be sufficient compliance of the requirement contained in Article 79 of the Qanun-e-Shahadat, 1984. Mere signature of a person without witnessing the actual execution of the deed cannot be treated as attestation of the document. The plaintiffs were under legal obligation to get examined, at least, two witnesses as required under the provisions of Article 79 of the Qanun-e-Shahadat, 1984 to prove the execution of Power of Attorneys. Admittedly, both the attesting witnesses of Special Power of Attorney being alive were subject to the process of the Court and capable of giving evidence, hence no such document can be used in evidence until the attesting witnesses were got examined in proof thereof. The non-production of said witnesses is fatal to the admissibility of the said documents. The plaintiffs, no doubt, produced Mian Ashiq Jamal Muhammad, Advocate, as RW.3, who deposed that Nusrat Hayat had approached him, executed Wakalatnamas in his favour and on his instructions he (RW.3) filed applications under Order XXXIII, Rules 1 and 2 read with sections 107/151 of the Civil Procedure Code, 1908 for effecting compromise. The said Wakalatnamas in original are also available on file as Exh.RW.3/1 to Exh.RW.3/6, the perusal of which reveals that the said Wakalatnamas were not only signed by Nusrat Hayat, the alleged attorney, but the same also bore signatures of Fakhar Abbas and Umar Draz, some of the defendants, who had allegedly executed power of attorneys in favour of Nusrat Hayat as well. The said aspect has also made execution of those Wakalatnamas highly doubtful because when Nusrat Hayat was attorney of the defendants along with Fakhar Abbas and Umar Draz, then there was no fun to obtain the signatures of Umar Draz and Fakhar Abbas, defendants. It is pertinent to note that the applications for compromise were not got signed from those defendants, which makes it clear that at the time of any agreement, the said defendants were not available as Wakalatnamas were executed on 23.4.1995 and applications under Order XXIII, Rules 1 and 2 read with sections 107/151 of the Civil Procedure Code, 1908 were also drafted on the same day. If Nusrat Hayat was accompanied by the defendants, namely, Fakhar Abbas and Umar Draz, then their signatures could also be obtained on the said petitions for effecting compromise along with signatures of Nusrat Hayat to authenticate the same. The Wakalatnamas were also attested by one Muhammad Nawaz, being identifier. The statement of Mian Ashiq Muhammad Jamal, Advocate (RW.3) that Nusrat Hayat was known to him prior to the execution of Wakalatnamas, stood falsified due to such identification. If Nusrat Hayat was known to the said counsel, then there was no need to obtain the signatures of Muhammad Nawaz being identifier of Nusrat Hayat etc., the executants of Wakalatnamas. It is also noteworthy that neither Muhammad Nawaz, the alleged identifier, was produced by the plaintiffs during the trial nor these Wakalatnamas or the signatures appearing on the same were confronted to Nusrat Hayat (AW.4), the alleged Special Attorney, whose signatures are available on the said Wakalatnamas. The said aspect has also made the execution of Wakalatnamas suspicious. By referring the judgments reported as Answ Enterprises and 2 others v. Askari Commercial Bank Ltd., Lahore through Head Office, Rawalpindi (PLD 2001 SC 107), Muhammad Humayun Khan v. Akber Jan (1972 SCMR 567), Dr. Ansar Hassan Rizvi v. Syed Mazhir Hussain Zaidi and 3 others 1971 SCMR 634, Noor Muhammad and others v. Muhammad Siddique and others (1994 SCMR 1248), Muhammad Bakhsh and 15 others v. Allah Wasayia and 2 others (PLD 2007 Lah. 380) and Messrs Gul Ahmed Textil Mills Ltd. through Authorized Signatory v. Shakoor and 4 others (2010 CLC 1272), the contention of learned counsel for the plaintiffs that Mian Ashiq Muhammad Jamal was a senior Advocate, whose statement being AW.3 was of much importance and, therefore, the same should be considered as sacred, is misconceived. When the appointment of said counsel could not be proved, then his statement is of no value. The defendants had leveled allegations against the said counsel, so, merely on the ground that he was a Senior Advocate, his statement could not be given preference over the direct evidence available on the file. The case law referred to by the learned counsel for the plaintiffs is not applicable to the facts and circumstances of the instant case, which also runs on different footings. On the touchstone of the above discussion and appreciation of evidence, it is established that the defendants fully discharged the onus of this issue, which is answered against the plaintiffs and in favour of the defendants. ISSUE NO. 3.

13. The defendants got examined Mehmood Afzal, Additional Medical Superintendent (AW.1) and Dr. Tariq Mehmood Radiologist (RW.2), who stated that according to their examination conducted on 27.10.2003, the age of Sajjad Ahmad son of Muhammad Nawaz was determined approximately around 23 years and that of Mst. Noor Mahal to be approximately around 24 years. In this view of the matter, in the year 1995, when the disputed compromise was allegedly affected, their ages were to be 15 and 16 years respectively. Nothing adverse could be gathered by the plaintiffs from the cross-examination over AW.1 and AW.2, who being independent witnesses made their testimony on the basis of medical examination and reports of the said defendants. The argument of learned counsel for the defendants that the said defendants were not declared minors by the Dentist, is without any force. AW.1 categorically deposed in his examination-in-chief that the Dental Specialist failed to give correct findings due to the age factor of the said defendants. Even otherwise, the minority of above said defendants has also been proved by producing Allah Yar, Teacher, (AW.3) who brought the school record and produced school record and verified the entries of school leaving certificate (Exh.AW.3) of Sajjad Ahmad, defendant, the perusal of which reveals that Sajjad Ahmad was born on 4.4.1980. It also affirms that in the year 1995, the said defendant was attaining the age of 15 years. This document (Exh.AW.3) which was duly proved by AW.3, also corroborates the medical evidence produced through AW.1 and AW.2. Even otherwise, in the plaint as well as memorandum of appeal filed by the plaintiffs before the learned trial Court as well as learned lower appellate Court, they themselves had arrayed the said defendants as minors. Furthermore, out of six revision petitions, in the memo of parties of five revision petitions, the words of their minority and their representation through guardian at litem were scored out. The said cutting on five revision petitions is also without any signatures and initials of the counsel, which also proves the stance of the above said defendants that they were minors even on the day of filing of civil revisions. No evidence in rebuttal could be brought on record by the plaintiffs, so, the minority of Sajjad Ahmad and Mst. Noor Mahal, defendants was fully proved by the defendants by producing cogent, convincing, strong and reliable evidence, therefore, this issue is decided in favour of the defendants and against the plaintiffs. ISSUE NO. 1

14. In view of my findings on Issues Nos.2 and 3, it is fully proved on record that neither Nusrat Hayat had been appointed as their Special Attorney by the other defendants nor Nusrat Hayat had appointed Mian Ashiq Muhammad Jamal, Advocate as counsel, therefore, the proceedings conducted before this Court on 24.5.95 for effecting compromise on the basis of said Special Powers of Attorneys and Wakalatnamas have become doubtful. I have yet come across another angle of the case that the plaintiffs asserted in their application filed for compromise that after the receipt of Rs.20,000 the defendants had arrived at a compromise and were ready to make a statement for the acceptance of civil revisions filed by them. Neither any receipt of payment of Rs.20,000 was executed between the parties nor any independent witness was produced, who could depose that in his presence the compromise was effected between the parties. Even if any compromise had been affected between the parties, then the plaintiffs by producing the defendants before the Patwari could have got entered mutation in their favour or when the Special Power of Attorneys by producing all the defendants before the deed writer were got executed, then why the sale-deed was not got executed to bury the litigation. There seems no fun that despite the availability of the defendants and compromise the Special Power of Attorneys were executed at Tehsil Chechawatni and thereafter counsel at Multan was engaged, who submitted applications for compromise and after recording of statements of counsel for the parties the suit for special performance was got decreed in consequence whereof the plaintiffs were obliged to file an execution petition to seek implementation of the decree by attestation of sale-deed. This all exercise could be saved by entry of mutation or attestation of sale-deed at the local level if really a compromise had been effected in between the parties.

15. In the above facts and circumstances, I have no hesitation to hold that the orders and decrees dated 24.5.1995 in favour of the plaintiffs were result of fraud and misrepresentation of facts, which cannot be sustained in the eye of law and are liable to be struck off while exercising the jurisdiction under section 12(2) of the Civil Procedure Code, 1908. So, this issue is answered in the affirmative. RELIEF

16. In view of my findings on the above issues, the instant C.Ms. are accepted, the orders and decrees dated 24.5.1995 along with the proceedings respecting the alleged compromise are hereby set aside and Civil Revisions Nos.474-D to 479-D-1979 filed by the plaintiffs are restored to its original numbers for disposal on merits. The office is directed to fix the same in routine in the cause list as the same pertain to the oldest category. ZC/U-9/L Applications accepted.