2008 SCMR 1259 (PLP)

SHEIKH HAKIM ALI, J.

Mst. Imtiaz Begum, the present appellant had filed a suit against Qamar Zaman and Mst. Sultan Jan son and daughter of Abdul Qadir, brother and sister of plaintiff, with regard to Plot No.37, situated in Sector No.1, Kalabat Township, Tehsil and District Haripur, measuring 10 Marlas put of which 9/10 shares claimed, with the prayer to obtain declaration that it was owned and possessed by her on the basis of an agreement to sell dated 22-12-1987, having been purchased by her after payment of Rs.18,000 from the above noted vendors. It was alleged in the plaint that the above noted defendants had got no concernment with the plot in dispute. Further prayer for specific performance of the above noted agreement was also made. The suit was contested by raising a plea in the written statement that there was no bargain of sale entered into between the parties. If there was any such agreement that was forged, fictitious, illegal and against the provision of law. The suit was contested as parties had produced their evidence. After appreciation of evidence, the learned Civil Judge decreed the suit in favour of plaintiff on 3-11-1994. Appeal preferred against the aforementioned judgment and decree was dismissed by Additional District Judge, Haripur on 28-11-1995. Dissatisfied with the judgment and decree of the learned Additional District Judge, Haripur, Civil Revision No.14 of 1996 was filed in the learned Peshawar High Court, Circuit Bench, Abbottabad, wherefrom the Civil Revision No.14 was accepted and the suit of Mst. Imtiaz Begum was dismissed on 3-3-2003. Hence this civil appeal after grant of leave.

2. Learned counsel submits that Qamar Zaman, who had filed revision petition along with Mst. Sultan Jan had filed a Civil Miscellaneous Application No.22 of 1996 before the High Court for withdrawal of his revision on the basis of compromise, having been entered into by him with respondents but that application was not decided by the learned Court. On the other hand, on 11-12-1996, the learned Judge in Chamber of the Peshawar High Court, Abbottabad Bench had kept this application pending to be decided at the time of final decision of the revision. As per learned counsel, the aforementioned application was not decided, while deciding the civil revision on 3-3-2003. The learned counsel has also assailed the impugned judgment by stating that in fact the impugned judgment was delivered with regard to another suit instituted to get a decree for pre-emption filed by Mst. Sultan Jan, against the present appellant. Learned counsel submits that upon these facts and law on the subject learned High Court, had failed to advert. He has, therefore, prayed for reversal of the impugned judgment.

3. Learned counsel for respondents has opposed the contention of the learned counsel for the appellant. As per learned counsel, Mst. Sultan Jan was an illiterate Pardanasheen lady, therefore, the alleged agreement to sell was not proved by the plaintiff on the. record in accordance with the rules governing for the case of such lady. The alleged agreement to sell was a fake document, having no validity in the eye of law and the suit was rightly dismissed by the learned High Court after reversal of the judgment and decree of the learned First Appellate Court.

4. We have examined the record and have analyzed the arguments of the learned counsel. Respondent's learned counsel had not been able to controvert the fact, as to why the application of Qamar Zaman for withdrawal of civil revision was not decided at the final stage and by the learned High Court. In the trial Court as well as from the learned Appellate Court, Mst. Imtiaz Begum was granted decree in her favour, as against Qamar Zaman also, who had filed Civil Miscellaneous Application No.22 of 1996 before the learned High Court for withdrawal of revision to his extent, which was kept pending with an order to be decided at the stage of final decision of the civil revision. We have found that no order was passed upon this application in the final impugned judgment, which was too delivered in another Civil Revision No.13 of 1996 and only passing reference was made for the decision of this Civil Revision Petition No.14 of 1996, in the impugned judgment, and no independent/supportive order/decision was passed in Civil Revision No.14 of 1996.

5. Accordingly, we do not consider it a complete and full adjudication of the disputatious questions of law and facts involved in Civil Revision No.14 of 1996. So, the impugned judgment with regard to Civil Revision Petition No.14 of 1996, delivered by the learned Peshawar High Court, Abbottabad Bench is set aside and the case is remanded to the aforementioned learned High Court, considering Civil Revision No.14 of 1996 to be pending before it, with direction to decide the application Civil Miscellaneous bearing No.22 of 1996 filed by Qamar Zaman as well as the civil revision afresh after grant of opportunity of hearing to the parties to the above noted revision. M.B.A./I-8/SC Case remanded.