2019 C L C 138
[Balochistan]
Before Abdullah Baloch, J
LASBELLA INDUSTRIAL ESTATE DEVELOPMENT AUTHORITY through
Managing Director---- Petitioner
Versus
GUL HASSAN BHOOTANI and others ----Respondents
Civil Revision No.16 of 2013, decided on 17th September, 2018.
Civil Procedure Code (V of 1908) ---
----O. XLI, R. 31--- Constitution of Pakistan, Art. 10- A---Suit for declaration and
cancellation of revenue entries ---Sale mutation ---Judgment in appeal ---Points for
determination, non- framing of---Effect ---Right of fair trial--- Scope ---Contention of
plaintiff was that impugned sale mutation was based on fraud and collusion with the revenue officer ---Suit was dismissed concurrently ---Validity ---Issues framed, evidence
recorded and written statement filed b y the defendants had not been taken into
consideration ---Neither deposition of witnesses had been discussed nor findings on issues
had been recorded in accordance with law on its true perspective ---Appellate Court had
recorded its findings in a cursory manner ---Impugned judgment passed by the Appellate
Court was non- speaking in circumstances ---Appellate Court had failed to decide appeal as
per provisions of O. XLI, R. 31, C.P.C., 1908--- Documents available on record were not
considered properly by the Court s below ---Parties to the suit had not been afforded fair
opportunity by the Trial Court ---No one could be condemned unheard---Impugned
judgments and decrees passed by the Courts below were result of mis -reading and non-
reading of evidence which were set as ide---Matter was remanded to the Trial Court with
the direction to provide full and fair opportunity to the parties to defend their claim and decide the same afresh in accordance with law ---Revision was allowed accordingly.
Sarwar Khan Awan for Petitioner .
M. Aslam Chishti and Pervez Tanoli for Respondents.
Saifullah Sanjrani, Assistant Advocate -General for Official Respondents.
Date of hearing: 3rd September, 2018.
JUDGMENT
ABDULLAH BALOCH, J .----This judgment disposes of Civil Revision Petition
No.16 of 2013 filed by petitioner against the judgment and decree dated 20- 10-2010
passed by Senior Civil Judge, Hub (hereinafter referred as "the trial Court") and judgment and decree dated. 19 -10-2012 passed by learned District Judge, Lasbella at Hub
(hereinafter referred as "the appellate Court"), respectively; whereby the suit and appeal
filed by the petitioner were dismissed.
2. Brief facts arising from the instant petition are that the petitioner filed a suit for
declaration, cancellation, rejection of Revenue entries and permanent injunction in the
Court of Senior Civil Judge, Hub against the respondents with the averments that the plaintiff is an authority for promotion and development of Industrial Estate District Lasbella, governed by the Lasbella Industrial Estate Development Authority Ordinance, 1984 (hereinafter referred as "LIEDA").
3. It is further submitted by the petitioner that they have purchased a land bearing
Khasras Nos.24 and 36, measuring 6- 0-0 acres including other lands, s ituated at Mouza
and Mohal Kathore, Tehsil Sonmiani (Winder) District Lasbella Balochistan from the brother of respondent No.1, namely; (late) Majeedullah Bohtani son of Noor Muhammad on consideration of Rs.210000/ - and the same was got mutated in the name of
plaintiff/petitioner vide Mutation No.809. It is further submitted by the petitioner that the
land in question was subsequently transferred in the name of defendant No.2 in the
revenue record with collusion of defendant No.5 fraudulently behind the bac k of plaintiff.
In the first round of litigation the suit of plaintiff was decreed vide judgment and decree, dated 03 -03-2006 passed by Senior Civil Judge, Hub; thereafter, respondent No.5 Malik
Abdul Samad filed an application under section 12(2) of C.P.C . against aforesaid decree,
which was also contested by the petitioner and others, however, after hearing the parties the earlier decree dated 03 -03-2006 was re -called and as a result whereof the amended
suit was filed by impleading respondent No.5 as part y to the Suit.
4. The suit was contested by the respondents Nos. 1, 2, 4 and 5 by means of filing
written statements, however, respondents Nos. 2, 3 and 5 were proceeded against ex -
parte.
5. Out of the pleadings of the parties learned trial Court has frame d the following
issues:
"1. Whether plaintiff purchased land bearing Khasra Nos.24 and 36 measuring 6- 0-0
acres against the consideration of Rs.2,10,000/ - bearing mutation Nos.809 and
1043 from defendant No.1?
2. Whether the land in question was transferre d on the name of defendant No.3
fraudulently and malafidely by the defendant No.4?
3. Whether legal notice was served upon the defendant No.1 for rectification of record of rights.
4. Whether the possession of the land in question was handed over to the pl aintiff by
the defendant No.1?
5. Relief?"
6. In support of their claims the parties produced their relevant evidence pro and
contra and after hearing the parties, the suit of plaintiff /petitioner was dismissed while the impugned order dated 20- 10-2011.
7. Being aggrieved the petitioner filed an appeal against the said order before
appellate Court, which also received the same fate vide order dated 19 -10-2012 of District
Judge, Hub.
8. Learned counsel for petitioner contended that the impugned judgment and decrees
passed by Courts below suffers from mis -reading, non -reading and misappreciation of
evidence; that the petitioner proved its case through oral as well as documentary evidence
and mainly relied upon the revenue record produced by the representative of the Revenue
Authorities of the local area that the respondents have failed to rebut the evidence so produced by the petitioner, but both Courts below have failed to appreciate the evidence and decided the issues in its true perspective, hence committed material illegality and
irregularity, while recording the impugned judgments, both the Courts below committed material illegalities hence the judgments passed by Court below are not sustainable liable to set aside.
9. On the other hand, respondent No.1 wa s proceeded against ex -parte, while learned
counsel for respondent No.2 vehemently opposed the contentions so advanced by learned
counsel for the petitioner and claimed to be the real owner of the land in question. The
respondent No.3 also proceeded agains t ex-parte while counsel for respondent No.4 as
well as learned Additional Advocate General appearing on behalf of the official respondent have strongly opposed the arguments so advanced by learned counsel for the petitioner and contended that Courts below after proper appreciation of evidence had
rightly dismissed the suit and appeal of the petitioner.
10. Heard learned counsel for the parties and perused record minutely with their
valuable assistance, which reveals that the plaintiff filed an amended suit for declaration,
cancellation, rectification of entries and permanent injunctions in the Court of Civil
Judge, Hub against the respondents with the averments that the plaintiff is an authority for promotion and development of Industrial Estates in Distric t Lasbella, Balochistan
governed by LIEDA Ordinance, 1984 and purchased a land bearing Khasra No.24/36, measuring 6 -0-0 acres from the predecessor of respondent No.1 on consideration of
Rs.210000/ - and the same was got mutated and transferred in the name of
petitioner/plaintiff vide mutation No.809, but subsequently, the same was transferred in the name of defendant/respondent No.2 in the record of right with collusion of defendant No.5 vide mutation No.1043, fraudulently without the knowledge and consent of the petitioner/plaintiff; thereafter transferred in the name of respondent No.3 vide Inteqal No.1068 and subsequently same was transferred in the name of respondent No.4 vide Intheqal No.1251 with the collusion of respondent No.5. In support of its claim the
petitioner/plaintiff produced four PWs and also got recorded statement of his representative.
11. Record transpired that the suit was initially contested by the respondent No.1 by
means of filing written statement wherein in para No.2 admitted the sal e consideration
with the petitioner/plaintiff and subsequently rights of transfer.
12. The written statement filed by respondent No.2/defendant Messrs Agro
Management Services reflects that they have adversely claimed to be the real owner of the said prope rty, which was purchased by them through open auction by the orders of
Hon'ble Sindh High Court. They flatly refused the sale of property in question and also agitated cancellation of subsequent mutation entries carried out by revenue authorities and also raised objection on jurisdiction of the Court. The respondent No.4/defendant in its written statement claimed that though the property in question initially was purchased
by the respondent/defendant No.2 on open auction by orders of Hon'ble Sindh High
Cour t, but the same was thereafter purchased by the respondent/defendant No.3, namely;
Muhammad Idrees Memon, resident of Karachi and later on the same was purchased by the respondent/defendant No.4 from the respondent/defendant No.3 Muhammad Idress Memon.
13. It is worth to mention here that no sale consideration was mentioned in their
written statements while DW -1 Haji Muhammad Usman of respondent No.4 in his cross
examination stated that:
While D.W.1 in examination in chief stated that:
He did not mention the description of the land and the name of that Memon, who
sold out the land in question on his behalf neither it came on record that said Memon appeared before Revenue Authorities to verify the sale transactions nor any document was produced, the rest of the D.Ws. got recorded their statements on the same line, the
written statement filed by the official respondent No.5 Tehsildar Somiani (Winder) reflects that at para No.1 of written statement as under:
In the concluding para of its written stat ement it was mentioned by respondent
No.5 that since subsequent revenue entries have been carried out in compliance of orders of Hon'ble Sindh High Court, Karachi, as such, the plaintiff has no case, which is liable to be dismissed.
14. The perusal of impugned judgment passed by learned trial Court reflects that
though the respondents Nos. 1, 2 and 5 have contested the suit by means of filing written statements; however, respondents Nos. 2, 3 and 5 have failed to appear, as such, they were proceeded against ex-parte. The judgment of trial Court further reflects that the
issues so framed and evidence so brought on record and the written statements filed by respondents/defendants were not taken into consideration neither the deposition of the witnesses have be en discussed in the judgments nor findings of issues were given in
accordance with law on its true perspective.
15. Most astonishingly it was observed that the learned appellate Court while dealing
with Civil Appeals Nos. 14 and 15 of 2011 filed by the pet itioner and respondent No.2/
M/S Agro Management Services has entirely formed a different opinion from the merits of the case and summarily comes to a conclusion that:
"I have heard both the parties and gone through the entire record of the case. Without touching the merits of the case while case of the appellants was
examined, it has come on record that on the property in question which is subject matter of the case in hand, Hon'ble Sindh High Court has passed Order which not only attain finality but has since been executed and property in question has been transferred in the name of one of the respondents and such Order has attained finality and still in field. In the existence of one Order in field on a property
passing another Order/judgment may lead to a conflicting order, besides this suit
once decided can not be reopened in another court and the proper course avail was
an application under section 12(2) Cr.P.C. It may be pointed out that the Order and its execution by the Hon'ble High Court of Sindh i s admitted fact as the
plaintiff/appellant and his witness P.W.4 admitted the passing of Order and in execution of the said order transfer of property in question has been effected 'in the name of one of the respondent under such circumstance the instituti on of
subsequent suit is not the proper remedy. The appellant should have approached Hon'ble Sindh High Court for setting aside of Order passed by it as he being claimer of property in question was not made party to the said subject matter.
As far as appeal of defendant No.2/appellant is concerned since Civil Court at Hub has no jurisdiction to try the suit under section 11 of C.P.C. therefore the question of setting aside ex -parte orders can also not be decided Civil Court, the defendant
No.2/appellant can approach the proper forum for redressal of his grievance."
16. The bare perusal of above findings of the appellate Court reflects that appellate
Court either did not understand the case or deliberately recorded its findings in such a cursory manner, which resulted the impugned judgment as non- speaking and the appellate
Court had failed to decide the appeal as per provisions of Order XLI Rule 31, C.P.C. on the basis of available record on its own merits in accordance with law.
17. The main controversy between the parties is that the property in question was
mortgaged by its real owner against the loan of Rs.720000/ - availed from Industrial
Development Bank of Pakistan by M/S Uthal Ice and Cold Storage and in default of payment the property in question w as attached by the Hon'ble Sindh High Court vide
order dated 22- 08-1989 and ordered to be sold, consequently respondent No.2/ M/S Agro
Management Services claimed to be the purchaser of the said property through open auction and certificate whereof is also available on record duly verified by the Nazir of
Hon'ble Sindh High Court. It is pertinent to mention here that such annexed documents are available on record filed in the plaint of petitioner, but the same were not given due consideration by the Courts below in a proper manner.
18. The respondents Nos. 2, 3 and 5 were admittedly proceeded against ex -parte, but
their written statements are available on record and the respondent No.2 appeared in person before this Court and also was, represented by Mr. Per vez Tanoli, Advocate,
agitated that the property in question was purchased by them on open auction on the orders of Hon'ble Sindh High Court Karachi and they are still owner of the said property and the all proceedings carried behind the back of respondent No.2 are illegal and
unlawful by the revenue authorities and due to unavoidable circumstances the respondent No.2 left the country and proceeded to abroad and remained there for considerable time and could not be able to appear before learned Courts below and to defend the case. They
further contended that they have never sold the property in question to respondent No.3 Muhammad Idrees and parties failed to produce the said Muhammad Idrees in support of their claims he further contended that respondent No. 3 is a stranger and no sale
consideration was carried out between the respondents Nos.3 and 4. Hence all the proceedings of sale and subsequent transfer of mutation entries from the name of respondents Nos.2, 3 and 4 and petitioner are false, fabricated and concocted; he further contended that valuable rights of respondent No.2 are involved in disputed property, as such, they have been condemned un- heard and no fair opportunity was afforded to the
respondent No.2 to produce its evidence in the trial Court.
19. On the other hand, learned Additional Advocate General also supported the
version of respondent No.2 and also contended that the official respondent was not
provided opportunity to defend their case and to produce relevant record, but erroneously were proceeded against ex -parte.
20. Keeping in view the above submissions of the learned counsel for the parties
prima facie it appears that the necessary parties to the suit were not afforded fair opportunity by learned trial Court as envisaged under Article 10 of Constitution of
Islamic Republic of Pakistan, 1973 that no one can be condemned un- teard, but in
contrary the matter, was decided in a cursory manner by the Courts below, hence the judgments & decrees passed by Courts below suffers from mis -reading, non- reading,
misappreciation of evidence and also misappreciation of law being not sustainable.
For the foregoing reasons, petition is partly allowed and the judgment and decree
passed by Courts below are set aside and matter is remanded to learned trial Court with
direction that suit filed by the petitioner deemed to be pending with further direction to provide full and fair opportunity to the parties to defend their claims, if desired to lead evidence and thereafter; decide the matter afresh in accordance with the law and also call for the original record of the disputed property for perusal of the Court (trial Court) within a period of four months, positively. Parties are directed to bear their own cost.
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