1997 PLP 956 (SCMR)

Date of hearing: 2nd August, 1995. MUHAMMAD MUNIR KHAN, J.‑‑‑This petition for leave to appeal directed against the judgment of Lahore High Court, Multan Bench, Multan, arises from the facts that on 12‑5‑1977 Lakhoo filed suit for the cancellation of rdgistered Tamleeknama of 8 Kanals dated 15‑9‑1976 in favour of Makhay Khan and Asghar Hussain and for the cancellation of Gift Deed of 59 Kanals 10 Marlas of land in favour of his wife and sons dated 21‑9‑1976, on the ground of fraud and misrepresentation, against Makhay Khan and others, in the Court of Senior Civil Judge, Vehari. Lakhoo plaintiff was father of Kallu, Allah Bakhsh, Nawab, Fateh Muhammad, Muhammad Ali petitioners and of Makhay Khan, Asghar Hussain, Mst. Dani Bibi and Mst. Makhan Bibi respondents. It was averred in the plaint that he was old, blind and sick person. His two sons deceitfully took him to the office of Tehsildar arid‑‑fraudulently secured his thumb‑impression ‑on Gift ‑Deed and Tamleeknama in their favour. The possession of the land, however, remained with him and was not delivered to them. So the gift was illegal, void and ineffective against his rights. The suit was resisted. Following issues were framed:‑‑ "(1) Whether the "Tamleek" dated 15‑9‑1976 and Gift Deeds Nos.415 to 417 dated 21‑9‑1976 are the result of fraud and misrepresentation, if so, its effect? (2) Whether the Court has no jurisdiction to entertain this suit? (3) Whether the suit is collusive and mala fide? (4) Relief. "

2. The parties produced evidence. The trial Court dismissed the suit on 24‑2‑1980 on the ground that the plaintiff failed to prove fraud or misrepresentation on the part of the defendants. On appeal filed by Lakhoo, Additional District Judge, Vehari, agreeing with the findings of the trial Court on Issue No.1 partially allowed the appeal against Nawab, Allah Bakhsh, Kallu, Ahmed Ali, Muhammad Ali, Fateh Muhammad, Fazal Muhammad, Sadiq Ali and Niamat Ali defendants/petitioners on the basis of their admission made in the Written Statement. The judgment of the trial Court in favour of Makhay Khan, Asghar Hussain, Mst. Dani Bibi and Mst. Makhan Bibi was upheld. The revision filed by Kallu and 8 others/petitioners against the respondents has been dismissed by the Lahore High Court, Multan Bench, Multan, vide the impugned order/judgment. Hence this petition.

3. Learned counsel for the petitioners has argued that since some of the defendants had not filed appeal before the District Judge, the Appellate Court could not give any relief to them; that the High Court could not have partly accepted the appeal against Nawab, Allah Bakhsh, Kallu, Ahmed Ali, Muhammad Ali, Fateh Muhammad, Fazal Muhammad, Sadiq Ali and Niamat Ali; that the judgment of the Additional District Judge dated 1‑6‑1982 being violative of the Martial Law Regulation 115 is illegal. 3‑A. We have considered the submissions made by the learned counsel for the petitioners with care. We do not agree with him. We find that Nawab, Allah Bakhsh, Kallu, Ahmed Ali, Muhammad Ali, Fateh Muhammad, Fazal Muhammad, Sadiq Ali and Niamat Ali‑‑petitioners, had not denied the important averments in the plaint and had made admission in their Written Statement, so in view of the admissions made by the petitioners' in their written statement, the High Court had no alternative but to accept the appeal to their extent. The question of fraud and misrepresentation is a question of fact. The Courts below have rightly dealt with this issue. Learned counsel has failed to point out non- reading or misreading of any material evidence. The petitioners have filed conceding written statement. They cannot and should not be allowed to resile therefrom. Under Order 41, Rule 33, C. P. C. the High Court have power to pass any decree and make any order which ought to have been passed and this power may be exercised notwithstanding that appeal/revision is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties A although such respondent or parties may not have filed any appeal or objection. The counsel has also failed to satisfy us that the transaction was in any manner hit by the Martial Law Regulation 115.

4. Leave to appeal is, therefore, refused and the petition is dismissed. A.A/K.288/S Leave refused