Sheikh MUHAMMAD SADIQ vs ELAHI BAKHSH and 2 otherss

' MUHAMMAD NAWAZ ABBASI, J.--- This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan has been directed against the judgment, dated 1-2-2005 passed by a learned judge in Chambers of Lahore High Court, Multan Bench, in a constitutional petition.

2. The facts in small compass giving rise to this petition, in the background are that Elahi Bakhsh, respondent No,1 in the present petition, owned 190 Kanals in Chak No,310/TDA and engaged the services of present petitioner who was a practicing lawyer at Layyah to represent him in a civil dispute with Thal Development Authority (TDA), in respect of the land in question. The petitioner on 5-1-1971, filed a suit for declaration in the Civil Court at Layyah against the respondent wherein he on the basis of an agreement of purchase of above land from respondent for a consideration of Rs,50,000, sought a decree for specific performance. The summon for appearance of the respondent were issued for 11-3-1971 but as per record respondent while appearing before the Court on 27-2-1971, filed written statement wherein he conceded the claim of petitioner and in consequence thereto, a consent decree was passed on the same day in the suit. Subsequently, respondent moved an application under section 12(2), C.P.C. For setting aside the decree on the ground that it was obtained by way of fraud and misrepresentation. The petitioner in reply to the application denied the allegation and pleaded that decree was passed with consent of respondent and the application was hopelessly barred by time. The learned trial Judge in the light of pleading of parties, having adjudicated the application on merits, ultimately dismissed the same vide order, dated 11-3-1972. The revision filed by the petitioner in the matter was also dismissed by the learned District Judge, Layyah, vide judgment, dated 14-11-1995 whereupon, he filed a constitutional petition in the Lahore High Court, Multan Bench, and a learned Judge in Chambers, vide impugned judgment, allowed the writ petition, set aside the order of dismissal of application under section 12(2), C.P.C. As well as the consent decree, dated 27-2-1971 passed in the suit and also rejected the plaint in the suit.

3. Learned counsel for the petitioner has contended that respondent in the proceedings under section 12(2), C.P.C. Having admitted his signatures on the written statement could not deny his appearance in Court or that he had not engaged Sh. Muhammad Latif, Advocate, who represented him as counsel in the suit and added that the claim of respondent was also falsified by the statement made by the learned Civil Judge, who passed the decree in the suit. Learned counsel forcefully argued that the Court of first instance as well as the revisional Court having considered the matter in detail, have concurrently held that the consent decree was free from any element of fraud or misrepresentation, therefore, the High Court was not justified to interfere in the concurrent findings of fact in its constitutional jurisdiction and set aside the decree. Learned counsel has also questioned the legality of the order of rejection of plaint under Order VII, rule 11, C.P.C. As in the writ petition only the order of dismissal of application under section 12(2), C.P.C. Was challenged.

4. We have heard the learned counsel for the petitioner at length and also perused the record with his assistance. This is an admitted fact that the suit for declaration was filed on the basis of oral agreement and no documentary evidence in proof of existence of an agreement of sale was brought on record. The respondent has denied that he while appearing in Court in person sought permission for filing written statement on a date which was not actually fixed in the suit or that he was known to Sh. Muhammad Latif, Advocate who appeared on his behalf in the Court. Learned counsel has not been able to bring to our notice any evidence on record to show that Noor Elahi, respondent, was personally known by Sh. Muhammad Latif, Advocate, a close relative of the petitioner or by the Presiding Officer to suggest that his identification in the Court was free of any doubt. The learned Judge in the High Court having examined the evidence in detail came to the conclusion that the decree was obtained through fraud and misrepresentation. We agree with the learned counsel that in the normal circumstances, the High Court in exercise of its constitutional jurisdiction is not supposed to dilate upon the controversial questions of facts and interfere in the A concurrent findings on such question in the writ jurisdiction but it is settled law that if findings of fact are based on misreading or non-reading of evidence or are not supported by any evidence, the High Court without any hesitation can interfere in the matter in its constitutional jurisdiction.

5. We having considered the contention of learned counsel and gone through the impugned judgment have not been able to find out any defect in the exercise of constitutional jurisdiction by the High Court in the matter. The factual controversy regarding the genuineness of the transaction would give rise to a mixed question of law and facts but the question regarding the validity of decree would be purely a question of law. The respondent has categorically denied his appearance in the Court on the date on which decree was passed and thus, in that the burden of proving the fact that the respondent was properly identified through reliable evidence in Court was on the petitioner but he failed to discharge his burden. The mere admission of respondent that his signatures on the written statement were in his hand, would not be sufficient to draw an adverse inference in view of his explanation that Sh. Muhammad Sadiq petitioner herein, was a practicing lawyer at Layyah and being his counsel in another case, obtained his signatures on a plain paper for use of the same in case of urgency. The explanation appears to be plausible as it is usual practice of the Advocates in the subordinate Courts that they keep blank paper with signature of their clients in their brief for emergent use, therefore, the mere fact that the signatures of respondent appeared on written statement filed in the Court would not be sufficient to prove his personal appearance without his proper identification in Court. The respondent was identified in Court by a counsel who was closely related to the petitioner and was not personally known to him, therefore, the doubt arising qua the identification of respondent and the genuineness of the transaction would reasonably suggest that the written statement was prepared on the paper bearing signatures of respondent without his consent and knowledge. The learned Civil Judge who passed the decree in the suit, has categorically stated in his statement before the learned Judge, seized of the application under section 12(2), C.P.C. That respondent was not personally known to him rather he was identified by Sh. Muhammad Latif, his counsel and further stated that suit was fixed for 11-3-1971 but on the request of parties, date was changed to 27-2-1971 and the decree in the suit was passed on the same day.

6. We having gone through the record, find that a gross error of misreading of evidence was committed by the Court of first instance as well as the revisional Court and this is settled proposition of law that a jurisdictional error committed in the judicial or quasi-judicial proceedings by a Court or Tribunal, as the case may be, can be corrected by the High Court in its constitutional jurisdiction. The strict application of the general rule in the present case that concurrent finding of fact even if erroneous, cannot be interfered in the constitutional jurisdiction, would amount to protect the fraud and deprive the respondent from his valuable property by defeating the cause of justice. The contention of the learned counsel that the application under section 12(2), C.P.C. Was barred by time and no plausible explanation was offered by the respondent for not filing the same within the prescribed period has no substance. This is settled law that limitation for setting aside an order obtained through fraud or misrepresentation, would start from the date of knowledge and in the present case, the respondent has categorically stated that he filed application under section 12(2), C.P.C. Immediately on coming to know about the decree in 1986, therefore, in absence of any evidence to the contrary, the presumption would be that respondent had no knowledge of decree, before 1986 and consequently, we would take no exception to the verdict given by the High Court on the question of limitation. The contention of learned counsel regarding rejection of plaint has also no force as the suit for declaration was filed taking the plea of part performance of the agreement of sale but there was no proof of existence of such an agreement therefore, despite there being no bar for conversion of a suit for declaration filed on the basis of an agreement into a suit for specific performance in an appropriate case, no such permission could be given in the facts of the present case.

7. This is correct that in the normal circumstances if a decree is set aside under section 12(2), C.P.C., the case is remanded to the trial Court for decision of the suit on merits in accordance with law but in the facts and circumstances of the present case and the evidence brought on record by the parties in the proceedings under section 12(2), C.P.C., no useful purpose would be served in remanding the case to the trial Court.

8. In the light of foregoing discussion we without taking any exception to the judgment of the High Court dismiss this petition and refuse the leave.