2025 PLP 1144 (MLD)

Jawad Hassan, J.

Sher Muhammad has filed this Civil Revision under Section 115 of Civil Procedure Code, 1908 (the "CPC"), calling in question the judgment and decree dated 27.05.2016 passed by the learned Additional District Judge, Talagang whereby appeal of the Respondent/plaintiff against the judgment and decree dated 18.09.2013 of learned Civil Judge Class-II, Talagang was allowed.

2. Verily on 02.03.2009 a suit for permanent injunction was filed by the Respondent/plaintiff against the Petitioner/defendant however, during its pendency, the Petitioner/defendant got recorded his statement on 22.09.2010 to the effect that "he is ready to arrange for the flow of the water from the house of the plaintiffs at his own risk and costs and if he succeed both the parties will be equally responsible to the cost of such arrangement". Pursuant to aforesaid statement, the suit was dismissed being infructuous vide judgment and decree dated 15.01.2011 but said judgment and decree was assailed by the Respondent/plaintiff before the learned Additional District Judge, Talagang that was set aside vide judgement dated 13.05.2011 with direction to the Petitioner/defendant to abide by his statement recorded on 22.09.2010. Feeling aggrieved, the Petitioner/defendant filed Civil Revision No.823-D of 2011 before this Court which was disposed of vide order dated 20.10.2011. After passing aforesaid order by this Court, the trial Court proceeded to dismiss the suit of the Respondent/plaintiff vide judgment and decree dated 18.09.2013. The said judgment and decree was then assailed by the Respondent/plaintiff by filing appeal before the learned Additional District Judge, Talagang which was accepted vide judgment and decree dated 27.05.2016, hence this revision.

3. Learned counsel for the Petitioner has inter alia argued that the impugned judgment and decree is the result of misreading and non-reading of evidence; that though the trial court dismissed the suit of the Respondent/plaintiff yet his application (Mark-D) was not properly decided as per directions given by this Court in Civil Revision No.823-D of 2011.

4. Conversely, learned counsel for the Respondent supported the impugned judgment and decree and, while resisting the instant petition, submitted that this civil revision has only been filed just to linger on the matter which has already been decided through well-reasoned judgment and decree of the Court below.

5. I have heard learned counsel for both the sides at considerable length and also perused the record with their assistance.

6. The sole ground agitated by the Petitioner/defendant is that during the pendency of the suit, he moved an application for settlement of expenses, but the trial Court instead of deciding it, proceeded to dismiss the suit of the Respondent/plaintiff. It is evident from record that the Respondent namely Karam Hussain breathed his last during the pendency of the suit that was earlier decreed against which appeal filed by the Petitioner/defendant was allowed and matter was remanded on 05.10.2010 regarding appointment of fresh referee/commission for resolving the issue and during pendency of the suit the Petitioner/defendant recorded his statement on 22.09.2010. For reiteration, suit filed by the Respondent/plaintiff was dismissed as infructuous vide judgment and decree dated 15.01.2011 on the statement of both the parties made before the Court due to agreement arrived at between them that was especially backed by the statement of the Petitioner/defendant recorded on 22.09.2010. The judgment and decree dated 15.01.2011 was assailed by the Respondent/plaintiff that was dismissed by way of judgment and decree dated 13.05.2011 solely on the ground of adjourning the case for many dates for effecting compromise between the parties and it was observed in aforesaid judgment and decree that the Petitioner/defendant was bound to abide by his statement recorded on 22.09.2010. Being dissatisfied, the Petitioner/defendant then assailed the judgment and decree dated 13.05.2011 through Civil Revision 823-D of 2011 seeking direction to the Court below for decision of his application for settlement of dues which was disposed of vide order dated 20.10.2011 with the following directions: "Submits that the petitioner would be satisfied if a direction is issued to the trial Court to decide and application which he moved with the trial Court for redressal of his grievance. The request appears to be reasonable. Accordingly, the trial Court is directed to decide the application of the petitioner, if he moves, after hearing the petitioner and all other concerned parties in accordance with law through a reasoned order".

7. Pertinently, above said civil revision was disposed of with direction to the trial Court to decide the application of the Petitioner/defendant that was moved by him on 17.02.2012 and reply thereto was also filed on 01.03.2012. It is noticed that the said application dated 17.02.2012 was produced in documentary evidence by the Petitioner/defendant as Mark-D in view of his request made in above mentioned order passed in Civil Revision with the averments that on 22.09.2010 in presence of counsels for parties the Petitioner/defendant would construct a drain for ejection of water and expenses would be born equally; the Petitioner/defendant paved a drain from his own pocket with the expenditures of Rs 20,200/ and he was entitled to recover the Rs.10,100/. This whole episode indicated that Petitioner/defendant had conceded the cause of action and legal right of drainage of sewerage water from which he could not deviate and Civil Court not only ignored this fact while passing the judgment and decree but also not followed the spirit of order dated 20.10.2011 passed in Civil Revision 823-D of 2011. It is observed that although the Civil Court has dismissed the suit of the Respondent/plaintiff on merit, but it has failed to adjudicate upon the application which was duly brought on record and referred to in the documentary evidence. It evinces from the impugned judgment and decree dated 27.05.2016 that at the one hand, Additional District Judge, Talagang, admitted the stance of the Petitioner/defendant and observed that "the trial court instead of deciding the application of the respondent/defendant through a reasoned order passed the impugned judgment and decree which is not sustainable in the eye of law as the same was not passed in the light of the above referred order of Hon'ble High Court" but on the other hand, has observed that "the judgment and decree passed by the then learned Additional District Judge, Talagang dated 13.05.2011 had attained finality and the learned trial Court did not take into consideration this aspect of the matter and passed the impugned judgment and decree dated 18.09.2013 in a haste". If this was the actual situation, then the best course available to the Additional District Judge, Talagang was to judiciously consider this aspect as violation of this Court's order was apparent and application of the Petitioner/defendant was admittedly disregarded meaning thereby record produced before the lower Court was not properly perused and observations were given merely relying on this Court's order for its disobeyance. The Additional District Judge, while passing the impugned judgment and decree, has not properly perused the record of the case viz. material aspects of the pleadings and evidence placed on file appear to have been overlooked, resulting in an erroneous appreciation of facts and law. It is settled law that a judicial determination must rest on a thorough consideration of the record, which, in the present case, is conspicuously absent. The impugned order reflects a mechanical approach and lacks the application of judicial mind on crucial issues germane to the dispute. It is evident from the judgment and decree dated 18.09.2013 that the suit of the Respondent/plaintiff was dismissed on merits after recording of evidence of both the parties with the following observations: "The plaintiff in his cross-examination has admitted that defendant has installed 160-feet pipe of his own expenditure for the disposal of wastage of water of his house. The defendant while appearing as DW-1 deposed that after completion of work both the learned counsel for the parties visited the spot and appeared before the Court and verbally stated that defendant has fulfilled his undertaking and there is no hindrance in the disposal of wastage water of plaintiff's house". Underlining for emphases

8. Scanning of record attached with this revision petition reveals that examination in chief of PW-1 and PW-2 was recorded on 30.04.2012 while they were cross-examined on 13.09.2012. Both the PWs admitted the installation of pipe by the Petitioner/defendant which reads as under: PW-1 namely Muhammad Farooq deposed that PW-2 namely Ali Muhammad deposed that

9. The above said testimony of the PWs reveal that they have, in unequivocal terms, admitted the stance of the Petitioner/defendant regarding installation of pipe for the disposal of wastage water of the house of the Respondent/plaintiff. Despite such clear admissions on record, the Additional District Judge instead of dismissing the appeal of the Respondent/plaintiff allowed it merely on the basis that the judgment passed by the then Additional District Judge, Talagang dated 13.05.2011 had attained finality whereas in the said judgment only directions were given to the Petitioner/defendant to abide by his statement recorded on 22.09.2010 which he complied with as is evident from the judgment and decree dated 18.09.2013. The enforceability of an undertaking given by a party before a Court is well-established in law, and such undertakings can be executed by the Executing Court as if they were formal decrees. In "Mst. Kishwar Sultan Jehan Begum v. Aslam Awais and 3 others" (PLD 1976 Lahore 580), the Full Bench of the Lahore High Court held that "an undertaking given to a court has the same binding effect as an injunction or court order, and its breach amounts to contempt". The Court further clarified that once a party submits to an undertaking, the Executing Court is empowered to enforce compliance, even in the absence of a formal decree. This principle was reinforced in the case of "Ghulam Sarwar and others v. Allah Wasaya and another" (2005 MLD 1552), wherein the Executing Court directed the removal of an encroachment in violation of an earlier undertaking, holding that such commitments are enforceable under the court's inherent powers. Similarly, in "Bakhtawar and others v. Amin and others" (1980 SCMR 89), the Hon'ble Supreme Court of Pakistan ruled that "a party's deliberate breach of an undertaking could be remedied through execution proceedings, including coercive measures such as attachment of property or detention". Additionally, in "Muhammad Ashiq Alias Ashiq Ali v. Razia Begum and others" (PLD 1982) Lahore 459) affirmed that "an undertaking not to interfere with possession operates as a perpetual injunction, enforceable in execution without requiring a fresh suit". Moreover, in "Muhammad Aslam v. Province of Sindh" (2020 MLD 308) it has been held that "substantial compliance with court orders including those based on undertakings is mandatory, and wilful defiance attracts contempt proceedings". This the consistent judicial view is that an undertaking given before a Court is enforceable in execution proceedings and the Executing Court may employ all permissible means including coercive measures to ensure compliance. This ensures that solemn commitments made before judicial forums are honored, upholding the sanctity of court proceedings and preventing abuse of process. Since the Petitioner/defendant himself admitted the undertaking given before the Court on 22.09.2011 and fulfilled the same by installation of 160-feet pipe, that too, was admitted by the PWs of the Respondent/plaintiff. Reliance is also placed on "Mushtaq Ahmad v. Mohsin Iqbal" (2022 CLC 1461) wherein the Court aptly discussed that "an admission, even implied, by a party, before the court during the judicial proceedings has to be given sanctity while applying the principle of estoppel as well as to respect moral and ethical rules and if retraction therefrom is allowed as a matter of right, then it will definitely result into distrust of the public litigants over the Judiciary and would damage the sacred image of the Courts that they are not capable to implement the orders passed by them in the judicial proceedings. Any such admission even implied or statement given before the court of law will operate as legal estoppel (words used by the Hon'ble Supreme Court of Pakistan in number of cases) and estoppel by conduct against a party making such admission or giving such a statement or understanding. The doctrine of estoppel enacted in Art. 114 of Qanun-e-Shahadat Order, 1984 is, in fact, an equitable doctrine, a rule of exclusion, which implies that if a person has by act or omission altered his position, he will be estopped and be precluded or debarred from denying it or take a position so as to alter his position to the determinant of the other person/the opposite party and prevents the litigant from raising inconsistent plea(s) in judicial proceedings by disallowing the litigant from blowing hot and cold at the same time".

10. In view thereof, the Additional District Judge, Talagang has misread certain crucial pieces of evidence that goes to the root of the matter and such misreading and non-reading of material evidence has led to an erroneous appreciation of facts and consequently, a miscarriage of justice which could be corrected by exercising visitorial powers as held by the Hon'ble Supreme Court of Pakistan in the case of "Haji Musharraf Mahmood Khan (deceased) through L.Rs. v. Sardarzada Zafar Abbas (deceased) through L.Rs. and others" (PLD 2024 SC 588), holding that "the Revisional Court can even exercise its suo motu jurisdiction to ensure effective superintendence and visitorial powers to make sure, by all means, the strict adherence to the safe administration of justice, and may correct any error unhindered by technicalities."

11. For the foregoing reasons, the instant Civil Revision stands allowed and impugned judgment and decree is set aside. It is however, observed that the claim of the Respondent/plaintiff has already been dismissed by the trial Court vide judgment and decree dated 18.09.2013 admitting the claim of the Petitioner/defendant qua settlement of expenses for installation of pipe established through evidence that has been overlooked by the lower Court as a consequence thereof, the application of the Petitioner/defendant stands accepted which shall be executed by the Executing Court. MQ/S-29/L Revision allowed.