2001 PLP 948 (MLD)

‑‑‑‑O.XIV, R.1, O.VI. R.5 & S.35‑A‑‑‑Trial Court dealing with the original matter ought to examine the pleadings while framing issues and should not hesitate to resorting to obtain better statement if such need arose‑‑‑Where the defendant in the course of evidence, proceeded to set up the case which had no nexus with the plaintiff and the matter remained in Courts for more than quarter of a century, process of law and process of Court having been abused, such was the fit case for imposition of special costs. In the present case the process of law and. t a process of Court had been abused by the party. In the state of pleadings not only a trial was conducted but the matter remained in Courts for more than quarter of century. The Courts dealing with the original matters ought to examine the pleadings while framing issues and should not hesitate in resorting to obtain better statement if such need arose. I am certain that in the present case had the pleadings been adverted to at the relevant time even the need for trial was not to arise. It was in the course of evidence that the defendant proceeded to set up the case that the plaintiff lady had been given her share in the suit land which plea had no nexus with the plaint. This was a fit case for imposition of special costs. Muhammad Noman for Petitioner. Nemo for Respondents. Date of hearing: 19th January, 2001. On 1‑4‑1974 respondent No.1 filed a suit against the petitioner and the other respondents. In the plaint it was stated that the suit land measuring 16 Kanals, 3 Marlas comprising Khasras Nos.188, 189 and 190 was purchased by Haji Ahmad Din who was father of respondents Nos. l and 2 as also Haji Barkat Ail, the predecessor‑in‑interest of respondents Nos. 3 to 7; that on the death of Ahmad Din the land devolved‑upon the said heirs alongwith the widow of said Ahmad Din, the widow died and her share also devolved upon her children. She claimed 1/4 share in the suit land. The grievance expressed was that her brother Barkat Ali has transferred the entire land to his son i.e. the petitioner vide Mutation No. 1798 attested on 26‑2‑1972. She sought a declaration accordingly that she is owner of 1/4 share in the suit land and the said mutation is illegal and void as against her. The petitioner and his father Barkat Ali filed a written statement. It is rather amazing that the written statement clearly depicts that it was admitted without any demur that the land belonged to the father and that respondent No. l was the sister of. Barkat. Ali still it was insisted that the gift by Barkat Ali of the entire land in favour of the petitioner is valid. Be that as it may, issues were framed in the suit. Evidence of the parties was recorded. The suit was decreed by the learned trial Court vide judgment and decree dated 17‑2‑1979. A first appeal filed by the petitioner was dismissed by a learned Additional District Judge, Lahore on 5‑3‑1980. Regular Second Appeal No.285 of 1980 was filed in this Court which was later converted into a Civil Revision and allowed on 28‑6‑1989 an d the case was remanded back to the learned Additional District Judge for a fresh decision after hearing the parties. The first appeal was heard by a learned Additional District Judge, Lahore who dismissed the same on 27‑7‑1989.

2. Learned counsel for the petitioner contends that the evidence has been misread by the learned Courts below. According to the learned counsel it was proved on record that the parties had entered into a compromise and that the share of respondent No. l was delivered to her. No one has turned up for the respondents.

3. I have gone through the copies of the record appended with this Civil Revision. Learned counsel brings to my attention document Exh.D.3 available at page 67 of the paper book as Annexure Q. This is a statement made by one Munir Ahmad before Assistant Commissioner, Lahore to proceedings wherein inter alia respondent No. l was arrayed as a plaintiff while Barkat Ali was one of the defendants. According to this statement the attorney of respondent No.1 stated that the case is not to be proceeded with and be dismissed. Next, the learned counsel refers to Exh.D.4 which is a compromise application before the said Assistant Commissioner. It is stated that the parties have compromised and that respondent No.1 had been given land measuring 53 Kanals, 7 Marlas by the brothers of the lady and she is satisfied. Incidentally the suit land measuring 53 Kanals 7 Marlas is described in the said compromise application to be compromised in Khasras Nos.99, 126, 1115, 1650, 1651, 1659 and 2012. I confronted the learned counsel with the land so described in Exh.D.4 and the land described in the plaint. Learned counsel submits that it was a package settlement and that the suit land was included in the same. However, I find that the matter stands explained in the very statement of Haji Barkat Ali, P.W.5 himself. In the course of his cross‑examination he admitted that out of the suit land comprising Khasras Nos.188, 189 and 190 he had not given 1/4 share to Zainab Bibi, respondent No.

1. The reason stated by him was that this land had in fact been purchased by his father for him. In fact he proceeded to state that his father had transferred this land in his favour.

4. The said statement of Barkat Ali, D.W.5 completely negates the said contention of learned counsel for the petitioner. He admitted that out of the suit land the share of respondent. No. l had not been given to her. So far as the said reason is concerned, suffice it to say that he had admitted in the written statement itself that the land did belong to his father Ahmad Din .and there is no evidence on record that the land belonged to him. Matters are further brought home when he states that he admits that Zainab is entitled to 1/4 share in the property of his father.

5. No defect whatsoever, therefore, stands pointed out in the impugned judgments and decrees. Before parting with this judgment I am constrained to observe that how in the present case the process of law and the process of Court has been abused by the petitioner and his father. It is amazing that in the state of pleadings referred to by him above not only a trial was conducted but the matter remained in Courts for more than quarter of a century. The learned Courts dealing with the original matters ought to examine the pleadings while framing issues and should not hesitate in resorting to obtain better statement if such need arises. I am certain that in the present case had the pleadings been adverted to at the relevant time even the need for trial was not to arise. It was in the course of evidence that the petitioner and his father proceeded to set up, the case that the plaintiff lady had been given her share in the suit land. This plea has no nexus with the plaint. This Civil Revision has no force and is accordingly dismissed. This is a fit case for imposition of special costs but since the respondents have not turned up I am leaving the parties to bear their own costs. H.B.T./M‑469/L ???????????????????????????????????????????????????????????????????????????????? Revision dismissed.