2016 PLP 62 (CLCN)

CH. MUHAMMAD MASOOD JAHANGIR, J.

By filing the instant writ petition the petitioners have assailed the judgment dated 12.4.2010 passed by the learned Additional District Judge-II, Pakpattan whereby civil revision filed by the respondents was accepted and the application under section 12(2), C.P.C. filed by the present petitioners was dismissed.

2. The facts germane for the disposal of the instant writ petition are that plaintiff/respondents Nos.1 to 3 brought a suit for specific performance of an agreement to sell dated 08.11.1989 before the learned trial court, which was decreed vide judgment and decreed dated 12.1.1993 on the submission of alleged conceding written statement by Muhammad Nawaz predecessor in interest as well as general attorney of the petitioners Nos. 1A to 1B. The said judgment and decree was assailed by the present petitioners and said Muhammad Nawaz by filing an application under section 12(2), C.P.C. before the court of first instance with the assertion that neither Muhammad Nawaz had submitted his consenting written statement nor the petitioners were ever served with any summonses/notices in the said suit and all the proceedings culminating in the judgment and decree dated 12.1.1993 were result of fraud and misrepresentation. It was further averred in the said petition under section 12(2), C.P.C. that when the alleged statement of Muhammad Nawaz General Attorney was got recorded at that time Mst. Nawab Begum as well as Mst Sardar Begum defendants Nos.6 and 8 had already died. The said application was resisted by the respondents by filing their contesting reply.

3. The learned trial court captured the disputed area of facts by striking issues, recorded the evidence led by the parties and thereafter the application under section 12(2), C.P.C. was accepted vide order dated 11.4.2008 and the decree dated 12.1.1993 was set aside and the suit for specific performance was revived to be tried on merits. The respondent No.3/plaintiffs being dissatisfied preferred a civil revision before the learned lower revisional court, which came up for hearing before a learned Additional District Judge, who vide impugned judgment dated 12.4.2010 accepted the same and set aside the order dated 11.4.2008 passed by the learned Civil Judge as a consequence whereof application under section 12(2), C.P.C. was also dismissed. Being aggrieved the petitioners have filed the instant writ petition.

4. Arguments heard and record perused.

5. It is admitted fact that the plaintiffs/respondents Nos.1 to 3 earlier filed a suit No.110 on 3.6.1992 for specific performance of the similar agreement before the learned trial court and in the said suit an alleged conceding written statement was also filed on 12.9.1992 before the said court and thereafter the learned trial court directed the plaintiffs to affix the court fee on the plaint but the plaintiffs/respondents Nos.1 to 3 failed to comply with the said direction of the court and the plaint of the suit for specific performance filed by the plaintiffs/respondents Nos.1 to 3 was rejected vide order dated 23.9.1992, copy of which is appended at page 22 of the instant file. Thereafter the plaintiffs/respondents Nos.1 to 3 again filed instant suit bearing No.201/1992 on 7.11.1992 for specific performance of same agreement to sell before the Civil Court. It is pertinent to note that the rejection of the plaint in the earlier suit was concealed by the plaintiffs/respondents Nos.1 to 3 in their second suit, wherein again the alleged conceding written statement was filed on 2.1.1993 and on the basis thereof the learned trial court decreed the said suit filed by the plaintiffs vide order dated 12.1.1993, which is reproduced hereunder:- "The learned counsel for the plaintiffs present. Muhammad Nawaz defendant who is general attorney on behalf of rest of the defendants has submitted written statement in which he has been admitted. Certified copy of the power-of-attorney has been put on record. Hence, a decree for specific performance of the contract to the effect that the defendants should get the sale registered in favour of the plaintiffs after receiving Rs.2,00,000-00 is granted in favour of the plaintiffs against the defendants."

6. The petitioners by filing application under section 12(2), C.P.C. against the above referred order asserted that neither Muhammad Nawaz, the alleged General Attorney of the other petitioners had ever appeared before the learned trial court, who neither engaged any counsel nor submitted the alleged conceding written statement and the aforesaid order was a product of fraud while practicing misrepresentation and that at the time of submission of written statement i.e. 2.1.1993 two of the defendants/petitioners Mst. Sardar Begum and Mst. Nawab Begum were already dead. The petitioners produced copies of death certificates (Exh.A1 and A2) regarding the death of said two defendants/petitioners during the course of recording of evidence through Islam Hussain Shah, Secretary, Union Council, AW

1. The perusal whereof as well as statement of AW1 Secretary, Union Council reveals that Mst. Sardar Begum died on 13.4.1991 whereas Mst. Nawab Begum died on 28.11.1989. The disputed decree was passed after the death of said defendants on 12.1.1993 and soon thereafter the petitioners filed application under section 12(2), C.P.C. before the learned trial court on 27.4.1993 within a period of almost 3-1/4 months wherein the above referred defendants (Mst. Sardar Begum and Mst. Nawab Begum) were impleaded through their LRs, but while written reply the said issue regarding the death of said defendants/petitioners was not challenged by the respondents/plaintiffs except that their death entries on the relevant dates were manipulated.

7. No doubt the death entry of Mst. Nawab Begum was got recorded before the Secretary, Union Council on 4.11.1998 after an elapse of nine years from the death of Mst. Nawab Begum and the said delay might haye led to some doubts, but the death entry of Mst. Sardar Begum had been made within a period of 2 months on 15.6.1991 from the death of said lady. The copies of death register of the above referred were duly proved by the petitioners through the concerned Secretary, Union Council, AW1, who also brought the record from the proper custody and the copy of death register especially Exh.A1 is of nature of public document which attained strong presumption of truth. Reliance in this respect is placed upon the judgment reported as Muhammad Aslam and another v. Mst. Sardar Begum alias Noor Nishan (1989 SCMR 704) where in it was held as under:- "All the submissions are devoid of any legal force. Taking up the first submission it may be stated that the municipal registers of births and deaths are a public record within the meaning of section 74 of the Evidence Act, 1877 (Article 85 of Qanun-e-Shahadat Order 1984); and therefore certified copies of entries in them are admissible in evidence. (See Anis-ur-Rehman v. Bent Ram I (59 P.R. 1901) and Principles and Digest of the Law of Evidence by M. Monti, page 786 (Pakistan Edition). See also Jai Bhagwan v. Gutto and others (AIR 1934 Oudh 167) and Mst. Anwari Jan v. Baldua and another (AIR 1936 Allahabad 218). Therefore, appellants could prove her age by production of certified copy of the relevant entries of the register of births and deaths and the Court was bound under section 79 of the Evidence Act to presume that the certified copy was genuine. It was, however, submitted that there is no presumption as to correctness of the entries in the register therefore, the certified copy could not prove that respondent's date of birth was 14th September, 1963. This date of birth was recorded on 20th September, 1903, within six days of the birth. At that time there could be no need or reason to give a wrong date of birth. Therefore, this must be her real date of birth and would and should prevail over the oral evidence in this case".

8. The said documentary evidence could not be rebutted by the plaintiffs/respondents Nos.1 to

3. No doubt in their oral assertion the RWs deposed that Mst. Nawab Begum and Mst. Sardar Begum were alive at the time of passing of impugned decree dated 12.1.1993 but it is settled principle of law that documentary evidence excludes the oral evidence. It is also strange that neither the agreement to sell nor any title document regarding the disputed property showing ownership of the defendants was produced during the proceedings of the suit and the learned trial court without taking into consideration the said relevant document in a summary and hasty manner decreed the suit filed by the plaintiffs/respondents Nos.1 to 3 which act of learned trial court was also bad for want of jurisdiction.

9. The learned trial court while relying upon the statement of AWl and especially Exh.A1 had rightly concluded that at the time of passing the disputed decree one of the defendants Mst. Sardar Begum was found dead and with the death of the principal, the agency stood automatically terminated and general attorney was not competent to file the alleged conceding written statement on behalf of dead executant of power of attorney. The learned lower appellate court captured the minor discrepancies in the statement of AW1, Secretary, Union Council and ignored the veracity of Exh.Al. It is settled principle of law that on the death of one of the executants, the general power of attorney also ceases to have its effect on behalf of other surviving executants. In arriving at this view, I am fortified by the judgments reported as Mst. Nazeer Begum v. Syed Abid Hussain Shah and others (PLD 2005 Lahore 419) and Sitara and others v. Sohran and others (PLD 2014 Lahore 179) wherein it has been held that "..... Power-of-attorney should be construed according to recitals of the documents on the basis whereof he was exercising his right and any act of the attorney done beyond the power vested with him could not be let go unnoticed and principal was not bound for said act

One of the principals died but the attorney knowing said fact that after his death he was no more his attorney, proceeded to collude with the respondents and filed consenting written statement on behalf of a dead person while showing himself as his attorney which was an example of fraud not only with the parties but also with the court".

10. As it has been observed above that the decree was passed on submission of conceding written statement by the alleged General Attorney on behalf of a person who was not alive at the relevant time and a decree against a dead person is nullity in the eye of law. The petitioners fully proved the fact regarding the death of one of the defendants. The other aspect of the case is also relevant that in an earlier suit No.110 for specific performance of the similar agreement as well alleged conceding written statement was also filed by the General Attorney of the defendants on 12.9.1992. It also creates doubt that why the said power of attorney was not produced before the Sub Registrar or concerned Revenue Officer for attestation of sale deed/mutation if the principals were willing to honour the alleged agreement to sell in favour of the plaintiffs/respondents Nos.1 to

3. It is also worthwhile that the plaint in an earlier suit filed by the plaintiffs/respondents Nos.1 to 3 of the similar nature was rejected on the basis of non-affixation of court fee and thereafter second suit was filed by concealing the fate of the earlier suit filed by the plaintiffs and such concealment may arise to mala fide on the part of respondents Nos.1 to

3. Even otherwise, in the judgment reported as Umar Bakhsh and 2 others v. Azim Khan and 12 others (1993 SCMR 374) the august Supreme Court of Pakistan has already provided a guideline to be kept in mind by the courts while deciding the cases on compromise basis in the manner that the compromise would be completed only when it is accepted by the Court and orders are passed by the Court as desired by the parties whereas the Court would consider the document to be compromised when both the parties signing it agree and reiterate the contents before the Court, but before the Court if one party to the document resiles from it, then the document can be called anything but an agreement of compromise.

11. Neither the parties to the agreement were summoned by the learned trial court nor they appeared before the same, whose statements were also not got recorded and only on the strength of alleged conceding written statement the impugned decree was passed by the learned trial court without recording any separate statement of the defendants or their alleged attorney Muhammad Nawaz. The last contention of the learned counsel for the respondents that this court while sitting in writ jurisdiction cannot interfere in the judgment passed in revision petition is misconceived.

12. The powers vested to this Court under Article 199 of the Constitution of Islamic Republic of Pakistan could not be taken away on the basis of technicality, especially when the order passed by the revisional court was" illegal. The said principle has been affirmed in the judgment reported as Qamar ud Din v. Muhammad Din and others (PLD 2001 SC 518). The learned trial court also answered issues Nos.1 and 2 in favour of the petitioners while analyzing the evidence of RW 1 and observed that the process was not duly served upon the defendants for procuring their services. The case law cited by the learned counsel for the respondents PLD 1988 SC 522, PLD 1985 SC 1925, 2012 CLC 386, 2006 YLR 697 and 2011 CLC 1342 runs on different lines and are not applicable to the facts and circumstances of the instant case.

13. Sequel of the above discussion is that the instant writ petition is accepted, the impugned judgment dated 12.4.2010 passed by the learned Additional District Judge is set aside and the order dated 11.4.2008 passed by the learned Civil Judge is restored. ZC/M-381/L Petition allowed.