1994 PLP 2007 (MLD)

This petition by Mst. Hayat Bibi/defendant under Article 199 of the Constitution of Pakistan (1973) is directed against the order dated 4-1-1993 whereby the learned District Judge, Khushab dismissed the revision application filed by the petitioner and upheld the order passed by the learned Senior Civil Judge, Khushab dated 13-10-1992 rejecting the application for framing additional issue.

2. A few facts necessary, for the disposal of this petition are. that the respondent No.3 and another instituted a suit under section 42 of the Specific Relief Act (I of 1877) for seeking declaration to the effect that Mutation bearing No.100, dated 1-4-1977 and decree, dated 27-4-1975 were based upon fraud and misrepresentation, were, therefore, of no legal consequence on the right of the petitioner. On the pleadings of the parties, following issues were framed:

(1) Whether the plaintiff has no cause of action and locus standi to file this suit? OPD. (2) Whether the plaintiffs are estopped by their own work and conduct to bring this suit? OPD. (3) Whether suit is not within the time of limitation? OPD. (4) Whether the suit is not maintainable in its present form? OPD. (5) Whether the mutation in question dated 18 6-1972 is based on fraud, misrepresentation, unlawful and inoperative qua the rights of the plaintiffs? OPP. (6) Relief.

3. The parties led their oral as well as documentary evidence in support of their respective pleas. When the case was ripe for decision, the petitioner submitted an application under Order XIV, Rule 5, C.P.C. on 1-9-1992, alleging therein that the trial Court had not framed a specific issue with respect to averments embodied in para. No.3 (a) and (b), according to which it was pleaded that Fateh Muhammad had neither executed any agreement to refer the matter for arbitration; that Fateh Muhammad had not made the sale of the land in dispute in favour of the petitioner; that judgment and decree, dated 7-4-1975 rendered by the Civil Court was null and void and of no legal consequence. This application was contested. The learned Court of trial vide order dated 13-10-1992 rejected the application. Feeling aggrieved with the above decision, the petitioner preferred civil revision which too, was dismissed by impugned decision on the ground that the application has been filed with inordinate delay that the parties had led their evidence in support of their respective pleas; that issue No.5 was comprehensive and embraced the pleas of the parties.

4. On behalf of the petitioner, Malik Noor Muhammad Awan, Advocate, strenuously contended that the petitioner/defendant had specifically alleged that Fateh Muhammad had made the sale of the suit land in her favour; thatthe matter was referred to the arbitration; that the trial Court had rendered decree in accordance with the award of the arbitrator; that the ease of respondents was that aforesaid transactions were sham, deceitful and of no legal consequence; that the learned trial Court was bound under Order XIV Rule 1, C.P.C. to frame specific and distinct issue with respect to the pleas of the petitioner. Reliance was placed on Mst. Hafizan v. Muhammad Yasin and 2 others 1985 CLC 1488, Barkat Zamin v. Said Majid 1989 SCMR 1719 and Bashir Ahmad and others v. Ch. Nawab-ud-Din and others 1990 SCMR 1229.

5. After hearing the learned counsel for the petitioner at a considerable length, I am afraid, I do not subscribe to him. The respondents had challenged the validity of the sale and the decree of the Civil Court with particularity in the plaint. The correctness of sale and the decree of the Civil Court was pleaded in the written statement by the petitioner. On these pleas, the issues were framed in the presence of the parties. The evidence was led and closed in 1992 in suit which was instituted in 1984. The petitioner had remained quiet and silent for a period of more than eight years and did not claim specific issue. He had led evidence. When confronted with the position "as to whether any prejudice had been caused to him and whether he will lead any additional evidence in support of this plea" he persistently eluded the question. From the above, it is clear to me that the application, in fact, was lodged with an object to delay the decision of the suit; that the parties were fully alive of the question of making of sale in favour of the petitioner, the execution of agreement to refer the dispute to arbitration and about the decree of the Civil Court. Seen from this background, it is clear to me that the petitioner had lodged application for framing additional issue on the question of validity of sale with ulterior purposes. The authorities cited by the learned counsel for the petitioner proceed on distinguishable facts and are not applicable to the instant case.

6. Even otherwise, issue No.5 is a comprehensive issue and includes the pleas of the parties. For the reasons stated above, I have no hesitation in coming to the conclusion that the decisions rendered by the two Courts below are eminently correct and congruent with law. These decisions are neither arbitrary nor suffer from any jurisdictional defect or error of law apparent on the face of record, calling for interference in the Constitutional jurisdiction of this court (see Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139). In the light of foregoing analysis, this Constitution petition is found to be without merit and is accordingly dismissed in limine. AA./H-129/L?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.