2013 C L C 1757
[Balochistan]
Before Muhammad Noor Meskenzai, J
MUHAMMAD ARIF and another ----Petitioners
Versus
YAR MUHAMMAD ----Respondent
Civil Revision No.61 of 2010, decided on 28th June, 2013.
Specific Relief Act (I of 1877) ---
----S. 12 ---Suit for specific performance of agreement ---Void agreement ---Court -fee, non -
deposit of ---Effect ---Sister of defendant was ex -wife of plaintiff and marriage was dissolved on
the basis of Khula ---Plaintiff claimed that his ex -wife agreed to pay a sum of Rs.225,000/ - as
consideration of Khula and defendant stood surety for the payment ---Trial Court dismissed the
suit filed by plaintiff but Lower Appellate Court allowed appeal and decreed the suit in favour of
plaintiff ---Validity ---Lower Appellate Court failed to take into consideration nature of claim
which was not legal, as question of Khula could arise where marriage subsisted ---Lower
Appellate Court could not have overlooked the judgment passed by Court earlier whereby
marriage tie between the spouses had already been dissolved ---Lower Appellate Court
misapplied law by entertaining appeal without court -fee much less without application under
Ss.148/149, C.P.C. for extension of time for affixation of court -fee---Petitioner also did not affix
court-fee at the time of filing of civil revision before High Court ---Such point of Court -fee was
not raised before High Court, nor the office took notice when the petition was presented,
nevertheless, the parties could not escape their legal obligation and av oid payment of court -fee---
Defendant was bound to affix court -fee on memo of petition, therefore, High Court directed the
Collector to recover court -fee from defendants as well as court -fee from plaintiff ---High Court
set aside judgment and decree passed b y Lower Appellate Court and restored that of Trial Court -
--Revision was allowed in circumstances.
Ewaz Zehri for Petitioner.
Nemo for Respondent.
Date of hearing: 27th May, 2013.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. --- Instant revision petition is directed against
the order dated 23rd December, 2009 passed by the Majlis -e-Shoora, Jhalawan, Khuzdar
whereby the judgment/decree dated 7th August, 2008 passed by the learned Qazi Jhalawan
Khuzdar was maintained and appeal fil ed by the petitioner was dismissed.
2. Facts relevant for disposal of instant petition are that the respondent instituted a suit for
Specific Performance of Agreement dated 30th September, 2004 against the petitioners in the
Court of Qazi Jhalawan Khuzda r. It was averred in the plaint that the respondent contracted
marriage with the sister of petitioner No.2. Thereafter, with the intervention of Sardarzada Mir
Mehrullah Zehri, the marriage was dissolved on the basis of 'Khula' vide agreement dated 30th
September, 2003. According to the plaintiff/respondent by means of above referred agreement
the petitioner No.2 agreed to pay Rs.225,000/ - to the respondent in instalments. The first
instalment was payable on 1st February, 2004 and 2nd instalment on 20th May , 2004. It was
further averred in the plaint that petitioner No.1 also stood surety for the petitioner No. 2.
Initially the petitioners postponed the payment on one or the other pretext, however, later on
flatly refused to pay the amount, hence the suit.
3. The suit was contested by the petitioners by way of filing written statement whereby
besides raising certain preliminary legal objections, claim of the respondent was repudiated on
merits as well.
4. The learned trial Court, out of the pleadings of p arties framed following issues for
determination:: ---
5. Thereafter the parties were directed to adduce evidence in support of their respective
claim, whereupon, the plaintiff produced three P.Ws. and got recorded his statement through
attorney. In rebut tal, the petitioners produced one DW and got recorded their statements through
attorney. The learned trial Court after hearing the parties and evaluating the evidence, vide
judgment/decree dated 7th August, 2008 dismissed the suit filed by the respondent. The latter
feeling aggrieved of the above referred judgment -decree preferred an appeal before the learned
Majlis -e-Shoora Jhalawan at Khuzdar. The appellate Court vide judgment -decree dated 27th
February, 2009 accepted the appeal and passed ex parte judgme nt-decree against the petitioners.
After passing of impugned judgment -decree, during execution proceedings, the petitioners came
to know that ex parte judgment -decree has been passed against them, as such; they filed an
application against the ex parte jud gment -decree dated 7th August, 2008 but the learned
appellate Court vide judgment dated 23rd December, 2009 also dismissed the appeal, hence
instant revision petition.
6. The learned counsel for the petitioners argued that the appellate Court committed
material irregularity by passing the ex parte judgment -decree. Similarly, thereafter, the
application for setting aside the ex parte judgment was illegally dismissed because no publication
was made by the appellate Court before passing the ex parte judgment -decree. There was no
proper service upon petitioners. Learned counsel for the petitioners further submitted that the suit
filed by the respondent could not have been decreed because the same was hopelessly barred by
time but the appellate court illegally, unlawfully and without any rhyme or reason passed ex
parte judgment -decree against the petitioners.
7. Despite service, the respondent did not attend the court, as such; he was proceeded
against ex parte vide order dated 10th October, 2012.
8. I have considered the arguments put forth by learned counsel for the petitioners and
perused record of the case. Admittedly, the service upon petitioner was improper and legally
there was no occasion for the appellate Court to have proceeded against ex parte. Fro m one angle
it was a case of remand but since the appellate Court has decided the case on merits, therefore,
the remand would be a futile exercise, hence I propose to decide the fate of matter. The perusal
of record reflects that the appellate Court procee ded with the matter in a mechanical manner and
passed the impugned judgment and decree by overlooking the material available on record and
by misappreciating the facts of the case. Initially, the respondent filed a suit for Specific
Performance of an agree ment dated 30th September, 2003 with the assertion that the sister of
petitioner No.2 was married with the respondent. After solemnization of marriage the relation
between the spouses became strained, with the result, the petitioner No.2 took his sister to his
house. After some time on the intervention of one Mir Mehrullah Zehri, the marriage was
dissolved on the basis of 'Khula' against an amount of Rs.225,000/ - (Rupees two lacs and twenty
five thousand). According to terms of agreement the first instalmen t was due on first February,
2004 and the second on 20th May, 2004. Along with the plaint the alleged agreement was
annexed and in support of the claim the petitioners produced three P.Ws., out of whom, P.W.1 is
a marginal witness. The witness has admitted that the signatures of Yar Muhammad are not
available on the agreement. P.W.1 is the sole witness who has been examined, whereas rest of
the witnesses i.e. ascribe/author and marginal witnesses were not produced. The trial Court after
taking into consider ation the legal aspect and the proof of document within the framework of
order Qanun -e-Shahadat observed that the document has not been proved. Since the respondent
seeks the performance of the document, therefore, it was the bounden duty of the
respondent /plaintiff to have proved the contents of the document by producing author and the
marginal witnesses. Admittedly, the author and rest of the marginal witnesses were not produced
and the clear requirements of Article 79 of the Qanun -e-Shahadat Order, has n ot been satisfied.
The plaintiff failed to prove the contents of documents as required by Article 79 of Qanun -e-
Shahadat Order. The appellate court while dilating upon this issue misread the evidence,
misconstrued the documents, misappreciated the facts an d, thus, the findings are based on no
evidence. Contrary to the findings of the appellate court, the learned trial Court after proper
appraisal of the material available on record by applying judicial mind rightly resolved the
issues. From another angle th e so-called agreement is illegal, void, against the public policy and,
therefore, absolutely unenforceable. The plaintiff seeks enforcement of agreement and claims for
recovery of Rs.2,25,000/ -, whereas the agreement besides Rs.2,25,000/ - also contains
Rs.75,000/ - to be paid as Sardari Tax. Though the said amount has been waived but indicative of
the fact that still the Sardari system survives and a Sardari Tax is imposed which is in utter
violation and contrary to the provisions of Balochistan System of Sa rdari (Abolition) Ordinance,
1978. For the sake of convenience, the relevant provision of said Ordinance is reproduced: ---
"Abolition of system of Sardari. --- Notwithstanding any custom or usage, as from the
commencement of Ordinance, the system of Sard ari shall stands abolished and no person shall,
(a) exercise any judicial powers not expressly conferred on him by or under any law for the
time being in force ; or
(b) maintain any private jail; or
(c) save as provided in the Court of Criminal Proce dure, 1898 (Act V of 1898), or any other
law for the time being in force, arrest or kept in custody any person; or
(d) takes free labour from any person or compel any person to labour against his will; or
(e) demand or receive, by reason of being or having been a Sardar, any tribute or any other
payment, whether in cash or in kind."
Above all, such an agreement for all intents and purposes is a void and unenforceable
agreement within the meaning of provisions of Contract Act.
So the findings on Issue No.1 are hereby reversed and the findings of the trial Court are
maintained and upheld.
9. Adverting to Issue No.2 the claim of the petitioner was refuted and denied on a viable
and legal ground i.e. since the ma rriage of respondent No.1 with the sister of petitioner No.2
stood dissolved consequent upon a decree passed by the Additional District Judge, Khuzdar vide
judgment and decree 31st March, 2001. The decree has been passed as far back as in the year
2001, th ereafter, what was the occasion for the parties to have another meeting and to dissolve a
marriage through 'khula' which does not exist at all. Admittedly, the respondent No.1 did not
challenge the findings of Additional District Judge, Khuzdar before the higher courts and the
findings are occupying the field till date. In such circumstances, it is beyond comprehension that
what compelled the petitioners to convene a meeting and dissolve a marriage on the basis of
'khula' which has already been dissolved by the court of competent jurisdiction. The appellate
court failed to take into consideration the nature of the claim which was/is not legal, acceptable
as the question of 'khula' arises where the marriage subsists. It is quite strange how the appellate
court over looked the judgment passed by the Additional District Judge, Khuzdar whereby the
marriage tie between the spouse had already been dissolved. Besides, the observations of the
appellate court regarding the proof of contents of document are contrary to law. For the sake of
convenience relevant observations are reproduced: ---
10. It is not known how the appellate court took such view and from where such observations
find support. The findings being contrary to law, result of misreading of evidence,
misappreciation of fact are hereby reversed and that of trial Court are maintained. Moreover,
while dilating upon Issue No.1, the appellate court did not opt to use proper language. For the
sake of convenience, relevant partition of the judgment is reproduced herein below: ---
11. The word ( ) is an improper language and not desirable to be used by a Presiding Officer
particularly while discussing or setting aside the reasons of the lower forums. It is an unofficial
and non -parliamentary language, as such, contrary to judicial ethics and norms, and suggestive of
a pre -judicial approach towards the fate of case. The said word i.e. from the judgment is hereby
expunged. There is another glaring irregularity in the judgment i.e. appeal was filed without
affixation of court -fee, nor any application under sections 148/149, C.P.C. was filed along with
appeal, as no such application was referred to by the appellate Court. In view of such legal
infirmity, the appeal was not entertainable but a valid decree passe d by the trial Court was set
aside on the basis of an incompetent appeal. In this regard, the observations of the appellate court
are reproduced hereinbelow: ---
12. The appellate court misapplied the law by entertaining an appeal without court -fee
muchle ss without an application under sections 148/149, C.P.C. for extension of time for
affixation of court -fee. While filing this revision petition the petitioner also did not affix court -
fee. This point did not surface during course of arguments, nor the offi ce took notice when the
petition was presented, nevertheless, the parties cannot escape their legal obligation and avoid
the payment of court -fee. The petitioner is bound to affix court -fee on the memo of petition,
therefore, I direct the Collector Khuzdar , to recover court -fee in the sum of Rs.15,000/ - from
petitioners as well as court -fee in sum of Rs.15,000/ - from respondent under intimation to the
Registrar of this Court.
In the light of above discussion, I am inclined to accept this petition, set as ide the
impugned judgment and decree followed by order dated 23rd December, 2009 passed by the
appellate Court. The judgment and decree dated 7th August, 2008 passed by the learned trial
Court are upheld with cost throughout.
MH/69/Bal. Revision a llowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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