P L D 1999 Peshawar 52 (PLP)

Having been aggrieved of the orders of the learned Additional District Judge/Izafi Zilla Qazi, Dir Bala dated 28‑9‑1998 and the order of the learned Civil Judge/Illaqa Qazi, Dir Bala dated 20‑6‑1997, the petitioner hereinafter defendant namely, Muhammad Rahim brought the present revision petition against Abdul Baqi hereinafter respondent‑plaintiff with a prayer for setting aside both the aforementioned orders of the two Courts below.

2. The facts of the case briefly stated are that respondent‑plaintiff Abdul Baqi instituted a suit for the recovery of Rs.19,000 against the petitioner-- defendant Muhammad Rahim in connection with the outstanding sale price of a shop situate in Main Bazar, Dir. The suit was contested by the petitioner- defendant before the Civil Judge in which he submitted the written statement alleging therein that the suit shop was sold to him by the two sons of the respondent‑plaintiff through unregistered sale‑deed Exh. (1/1 and that the respondent‑plaintiff had no locus standi and cause of action to bring the present suit. 3 The learned counsel for the petitioner contended that the trial Court had failed to frame issues in accordance with the pleadings of the parties and. no sufficient opportunity was given to the parties to adduce their evidence. He further contended that the sale‑deed Exh. ‑‑J5,_J1 / 1 reflects that the respondent‑plaintiff was a marginal witness to the said deed. A perusal of the record would suggest that the, trial Court had taken pains in recording evidence of both the parties on the issues framed in accordance with the pleadings of the parties before him. So much so that the petitioner defendant according to the 'Riwaj' refused to take oath on the 'Holy Qur'an' in respect to the claim of the plaintiff‑respondent. P.W.6 Gulzada has also admitted that the petitioner defendant had issued a cheque of Rs.19,000 in favour of the plaintiff‑respondent which he had refused to accept. Besides, the record suggests that there was an unregistered agreement entered into between the parties dated 1‑8‑1994 signed by Muhammad Rahim in presence of marginal witnesses in which he had accepted the liability of Rs.19,000 which he owed to the plaintiff‑respondent. This receipt/agreement is available at page 46 of the instant file. Besides, the petitioner‑defendant during the trial had not taken any objection with regard to the non‑impleadment of the two sons of plaintiff‑respondent on the strength of his claim vide Exh.

4. In a case where a party who ought to have been joined and in whose absence effective decree cannot be passed such suit always fails. The petitioner defendant had, therefore, not seriously contested his claim before the proper forum. Keeping in view the strength of the record already available before me I feel that there is no illegality or irregularity committed by the two forums. As such the revision petition has no substance and is dismissed in limine alongwith C. M. C.M.A./M.A.K./339/P Revision dismissed