2017 PLP 385 (SCMR)

SH. AZMAT SAEED, J.

This Civil Appeal by leave of the Court is directed against the Order dated 25.05.2004, whereby Constitutional Petition i.e. Writ Petition bearing No.6731 of 2004, filed by the present Appellant, was dismissed.

2. The brief facts necessary for adjudication of the lis at hand are that the Appellant filed an application under section 12(2), C.P.C., to call into question the judgment and decree dated 09.01.1979 making an Award, the Rule of the Court. The proceedings, in this behalf, for making an Award, the Rule of the Court, were initiated by Respondent No.3 against Muhammad Nawaz, the father of the Appellant and Respondent No.3. By way of the said Award, Respondent No.3 was held to be the owner of the property in dispute on the basis of a gift in his favour by his father (Muhammad Nawaz). When the application under section 12(2), C.P.C. was filed (amended application filed on 20.12.1994) by the Appellant, the father Muhammad Nawaz had already died on 11.10.1990.

3. The said application under section 12(2), C.P.C. was contested by Respondent No.3. On the divergent pleadings of the parties, issues were framed and evidence was recorded. Whereafter, the learned Trial Court dismissed the said application vide judgment dated 02.08.2002. Aggrieved, the Appellant filed a Civil Revision bearing No.49 of 2003, which was dismissed by the learned Additional District Judge, Khushab, vide judgment dated 06.01.2004. Whereafter, the Appellant invoked the Constitutional jurisdiction of the learned Lahore High Court through Writ Petition No.6731 of 2004, which has been dismissed vide impugned Order dated 25.05.2004.

4. The Appellant filed Civil Petition for Leave to Appeal No.2841-L of 2004, wherein Leave to Appeal was granted by this Court vide Order dated 13.05.2009. Hence, this Civil Appeal.

5. It is contended by the learned counsel for the Appellant that in the instant case the Arbitration Agreement and the Award are of the same date. The Arbitrator was the clerk of the counsel. It is added that the Award was made Rule of the Court on the basis of the alleged conceding statement of Muhammad Nawaz (father) who in fact never appeared in the Court. It is further added that it was never proved in evidence that Muhammad Nawaz (father) signed the Arbitration Agreement or appointed an Arbitrator. Furthermore, the ingredients of the gift were also not independently proved in evidence. It is added that by way of the alleged gift a legal heir has been discriminated without any acceptable reason. Thus, the judgment and decree making the Award, the Rule of the Court, has been obtained fraudulently and through misrepresentation, which was liable to be set aside. In support of his contentions, the learned counsel for the Appellant relied upon the judgments of this Court, reported as Abdul Rasheed through L.Rs. and others v. Manzoor Ahmad and others (PLD 2007 SC 287), Habib and 8 others v. Haji Muhammad and 3 others (PLD 1970 Karachi 495), Peer Baksh through LRs and others v. Mst. Khanzadi and others (2016 SCMR 1417), Muhammad Iqbal and others v. Khair Din through L.Rs and others (2014 SCMR 33) and Mst. Fateh Bevi and others v. Additional District Judge, Khushab and others (2008 SCMR 1262).

6. The learned counsel for the Contesting Respondent i.e. Respondent No.3 controverted the contentions raised on behalf of the Appellant by contending that the Appellant had failed to prove that the judgment and decree had been obtained by fraud or misrepresentation. No cogent evidence, in this behalf, was brought on the record and there are concurrent findings of fact to the contrary, which are not liable to be disturbed by this Court in its instant jurisdiction. It is further contended that the Appellant had been involved in a murder case and the father (Muhammad Nawaz) and the son (Appellant) were estranged, hence, the property was gifted to Respondent No.3.

7. Heard and the available record perused.

8. In the instant case, an Award was filed by Respondent No.3 for making it the Rule of the Court and passing of a decree on the basis thereof. Such Award was made the Rule of the Court and the judgment and decree was passed on the basis of a conceding statement by the opposite side i.e. Muhammad Nawaz (father). The critical issue requiring adjudication whether such judgment and decree was obtained fraudulently would depend primarily upon the fact whether the said Muhammad Nawaz actually appeared in Court and conceded the case of Respondent No.3 of making the Award, the Rule of the Court.

9. The judgment and decree sought to be set aside through the application under section 12(2), C.P.C. was passed on 09.01.1979 against Muhammad Nawaz (father) who died on 11.10.1990. On the basis of the said judgment and decree, a mutation had also been effected. During his lifetime, Muhammad Nawaz (father) never challenged the said judgment and decree. As per the record, the Award was filed in Court where Muhammad Nawaz (father) entered appearance and stated that he had no objection if the Award was made, the Rule of the Court. His statement was recorded and thumb impression was obtained. The record of the proceedings has been produced in evidence. The Appellant was unable to bring any evidence on record to disprove the thumb impression of Muhammad Nawaz (father). There is no evidence on record to suggest that Muhammad Nawaz (father) did not appear and concede the case of Respondent No.3. The Appellant in his own statement did not specifically spell out that fraud had been allegedly committed or that Muhammad Nawaz (father) did not appear in Court. His entire evidence was based on hearsay. The Stamp Vendor from whom the Stamp Paper for the Arbitration Agreement was purchased, also entered the witness box along with his Register. The counsel who represented Muhammad Nawaz (father) also appeared as a witness and supported the case of Respondent No.3. It was also conceded by the Appellant in his cross-examination that Respondent No.3 was in possession and cultivated the part of the land in dispute. It was also in evidence that the Appellant had been involved in a murder case. On the basis of the aforesaid evidence, the learned Trial Court seized of the matter, concluded that the Appellant had been unable to prove that the judgment and decree dated 09.01.1979 had been obtained by fraud and misrepresentation nor had the Appellant succeeded in discharging the onus placed on him, in this behalf, especially when there is a presumption in favour of regularity of judicial proceedings. Such finding of fact has been upheld by the Revisional Court through a detailed judgment. The learned High Court in its Constitutional jurisdiction also declined to interfere with the findings of the two Courts below. Upon hearing the learned counsel for the Appellant, we are also unable to persuade ourselves to interfere with the concurrent and consistent findings of fact especially as no misreading or non-reading of evidence has been pointed out at the bar. Furthermore, the learned counsel for the Appellant has been unable to establish that Muhammad Nawaz (father) did not appear in Court and expressed his consent to making the Award, the Rule of the Court. The judgments cited by the learned counsel are not applicable to the facts of the instant case.

10. In this view of the matter, there is no justification for interfering with the impugned Order of the learned Lahore High Court dated 25.05.2004, which is in accordance with the law and does not suffer from any illegality.

11. Consequently, this Civil Appeal being without merit is dismissed with no order as to costs. MWA/K-13/SC Appeal dismissed.