Mst. Nusrat Bibi Versus Defence Housing Authority

Ch. Muhammad Iqbal, J .--- Through this civil revision, the petitioner has challenged the legality of judgment dated 27.01.2020, passed by the learned Addl. District Judge, Lahore who accepted the appeal of respondent No.1/DHA and remanded the matter to the trial court and gave permission to DHA to cross-examine upon the witnesses PW1 to PW7.

2. Brief facts of the case as contended by the learned counsel for the petitioner are that the petitioner/plaintiff filed a suit for declaration, cancellation of documents, possession, mandatory and permanent injunction contending therein that plaintiff purchased agricultural land measuring 22-Kanals 03-Marlas comprising Khasra Nos.764, 765/2, 771/2, 774, Khewat No.23/1, Khatooni No.72 situated in village Jalalabad, Tehsil Cantt. District Lahore from defendant No.6 through registered sale deed No.94 dated 26.11.1999 against consideration of Rs.5,00,000/- and obtained possession of this land from Muhammad Tariq-respondent/defendant No.6. The sale deed was finalized between the parties 26.11.1999 but it was entered on 06.01.2003. In the month of February, 2003, plaintiff approached the concerned revenue officials from where it revealed that respondent No.5 being attorney of respondent No.6 had sold out the property through sale deeds No.14140 dated 09.09.2000 and also got sanctioned mutation No.266 dated 26.09.2000 in favour of defendants Nos.1 and 2, who further alienated the land through sale deed No.16027 dated 14.10.2000 and mutation No.276 dated 19.10.2000 in favour of defendant No.3, who also alienated the said land through sale deed No.13177 dated 17.09.2002 and mutation No.458 in favour of defendant No.4. That plaintiff became absolute owner in possession of the suit property after payment of consideration amount to defendant No.6. The general power of attorney executed by defendant No.6 in favour of defendant No.5 was of no legal effect as with the alienation of suit property the general power of attorney issued by the ex-owner stand automatically terminated. The subsequent sale deeds allegedly executed by defendant No.5 in favour of defendants Nos.1 and 2 and sale deed executed by defendants Nos.1 and 2 in favour of defendant No.3 and sale deed executed by defendant No.3 in favour of respondent No.1/defendant No.4/DHA have no legal footing in the eyes of law.

Respondents Nos.2, 3,4 and 5 filed separate contesting written statements whereas respondent/defendant No.6 filed consenting written statement while remaining defendants were proceeded against ex-parte. Out of divergent pleadings of the parties, issues were framed, pro and contra evidence was recorded. The trial court vide judgment and decree dated 08.05.2018 decreed the suit of the petitioner. Respondent No.1/DHA challenged the said judgment and decree through an appeal which was accepted by the appellate court vide impugned judgment dated 27.01.2020 and remanded the matter to the trial court and gave permission to DHA to cross-examine upon the witnesses PWI to PW7. Hence, this civil revision.

3. Arguments heard. Record perused.

4. As per available record after framing of the issues the statement of three witness P.W1 to P.W3 of the plaintiff were recorded on 14.07.2011 and right of defendant No.8 to cross-examine the said witness was closed whereas ex-parte proceedings were initiated against defendants Nos.2,3,5,6 and 7. Thereafter, on 07.09.2011 in the presence of learned counsel for plaintiff and respondent No.1/defendant No.4/DHA as well as 6 the case was adjourned for 17.09.2011 for recording of remaining evidence of the plaintiff. On the date fixed, counsel of defendant No.4/DHA was present and the case was adjourned for 15.10.2011. On the said date, in presence of the counsel for respondent No.1/defendant No.4 the statements of three PWs were recorded but no opportunity was given to respondent No.1/DHA for cross-examination upon the witness of the plaintiff whereas neither any ex-parte order was passed against it nor penal provision under Order XVII Rule 3 of C.P.C was invoked against respondent No.1/DHA and case was adjourned for 24.10.2011. The trial court has not passed any order for closing the right for cross-examination on PW1 to PW7 of DHA rather the trial Court was under obligation to require the adverse party to cross-examine the witness but this was not done which show existence of a serious flaw in trial proceeding as the right of cross-examination on the witnesses of adverse party is a kind of fundamental right which could not be frustrated on the basis of mere technicalities rather fair opportunity should have been afforded but this fundamental right have been circumvented without any justiciable reason which render the order of this trial court as illegal and erroneous in nature, which has rightly be reversed by the lower appellate court.

5. Even otherwise, the instant Civil Revision is instituted against a remand judgment whereas ordinarily, civil revision is not maintainable against a remand order. Reliance in this regard is placed on the cases titled as Abdul Majid and another v. Muhammad Hanif (2008 SCMR 335), Noor Ahmad through L.Rs and others v. Province of Punjab and others (2016 SCMR 2174) and Phool Zeb Khan and another v. Additional Deputy Commissioner/Collector Mansehra and others (2017 YER Note 152).

6. Learned counsel for the petitioner has neither pointed out any illegality or material irregularity, in the impugned judgment passed by the lower appellate Court nor identified any jurisdictional defect.

7. In view of above, this civil revision is dismissed being devoid of any force with no order as to cost.

MQ/N-6/L Revision dismissed.