FARAZA Versus KHANDI
ORDER
The events and circumstances giving rise to this petition for restoration of the appeal (R.S.A. No. 844 of 1964), which was dismissed as withdrawn on the 5th June, 1974, may be shortly stated. The appellant‑petitioner, the late Faraza, purchased 82 Kanals 17 Marlas of land, without corresponding share of Shamilat, situate in the area of Biti‑estate, Tehsil Bhakkar (now Tehsil Kalurkot), District Mianwali (now District B hakkar) , from one Gorah and mutation of sale bearing No. 346 was attested on the 27th November, 1937. Faraza's name was duly entered as owner of the said land in the Jamabandi of 1939‑40 and the entry was repeated in the Jamabandi of 1943‑44, Missal Haqiat of 1951‑52 and Jamabandi of 1954‑55. During the course of consolidation of holdings proceedings, which started some time after the preparation of the Jamabandi of 1954‑55, Faraza's name disappeared from the papers which the consolidation staff drew up and in his place Mst. Jantan, widow of Gorah (who had by then died), was entered as owner of the land once owned by Gorah. Faraza, during the course of inquiry which the Consolidation Officer conducted in 1966, blamed one Ghulam Qadir, Consolidation Girdawar, posted at the time of inquiry as Patwari at Adhikot, Tehsil and District Khushab, who, he said, had become annoyed with him, for committing the mischief of ignoring his ownership of the land while preparing consolidation scheme.
2. Mst. Jantan sold the above referred to 82 Kanals 17 Marlas of land (which Gorah had sold to Faraza in 1937), alongwith the share of Shamilat equivalent to 18 Kanals 10 Marlas of land, to Naza, whose legal representatives the respondents are, by means of a deed of sale which was registered on the 30th August, 1961. For the aforesaid 82 Kanals 17 Marlas of land the consolidation authorities gave 81 Kanals 2 Marlas of land which is the subject‑matter of dispute and litigation.
3. On the 27th September, 1962, Faraz instituted suit in the Civil Court for a declaration that he was owner and in possession of 81 Kanals 2 Marlas of the land in question. He impleaded all the co‑owners as defendants. Only Naza contested the suit. The learned trial Court accepted Faraza's acquisition of ownership of land by its purchase from Gorah yet it non‑suited him on the ground that Naza was a bona fide purchaser without notice of Faraza's ownership. The appeal preferred by Faraza against the decision of the learned trial Court was dismissed by the learned District Judge, Mianwali, on merits as well as for being time‑barred. Feeling aggrieved Faraza approached this Court in further appeal (R.S.A. No. 844 of 1964).
4. During the pendency of appeal Faraza moved the consolidation authorities for correction of the record. After inquiry the Consolidation Officer concluded that the land once sold by Gorah to Faraza could not have been re‑sold by Mst. Jantan to Naza. By his order of the 27th May, 1966, he recognized Faraza as owner of the land and rectified the error of omission of his name. Naza's appeal against the order of the Consolidation Officer was dismissed by the Collector on the 15th February, 1967.
5. On the 5th June, 1974, when R.S.A. No. 844 of 1964, came up for heairng, Faraza gave statement that since the land in question had been given to him during the consolidation proceedings, therefore, he did not press the appeal and that it might be dismissed as withdrawn. Thereupon, this Court passed the following order:‑
"In view of the statement of the appellant and the fact that no objection to withdrawal of the appeal has been raised by the learned counsel for the respondent the same is hereby dismissed as withdrawn without any order as to costs. It is, however, clarified that this order will not have any bearing on the validity or otherwise of the consolidation proceedings."
6. After the dismissal of appeal Naza filed a suit in the Civil Court, Bhakkar, on the 17th June, 1974, challenging the correction made by the Consolidation authorities in their papers by accepting Faraza to be the owner of the land in dispute. Simultaneously he made application to the Consolidation authorities stating that since the judgments of the trial and District Courts were in his favour and since Faraza's appeal had been dismissed as withdrawn by the High Court, his name should be entered in place of Faraza as owner of the land in question. Accepting his plea the Consolidation authorities sanctioned Mutation No. 1215 on the 19th December, 1974, substituted him for Faraza as owner of the land.
7. On the 31st January, 1975, Faraza brought a suit in Civil Court, Bhakkar, to assail the validity of the order of the 19th December, 1974, passed by the Consolidation authorities. In view of the earlier decision of the suit between the parties touching the same subject‑matter, the suit was dismsissed on the 15th June, 1978. The appeal filed by Faraza was withdrawn on the 25th October, 1984, as he says, on the advice of the learned District Court that remedy lay with this Court. On the 14th November, 1984, Faraza moved the present application for restoration of the appeal.
8. The appellant‑petitioner contended that he had withdrawn the appeal as the original cause of action had vanished due to correction of the entries of the revenue record in his favour. He averred that the withdrawal of the appeal, as was apparent from the order of this Court reproduced above, was not to affect the order passed in the consolidation proceedings and that Naza had, without disclosing the true situation in which the appeal had been withdrawn, exploited the order of dismissal of the appeal to his undue advantage before the consolidation authorities. He maintained that as withdrawal of appeal was based on the desired correction of the entries in the revenue record and since the correction again had been set at nought on account of misuse of withdrawal by Naza, his‑rights could only be saved with the restoration and decision of the appeal. He invoked the inherent powers of this Court for revival of the appeal in the interests of justice and decision of the lies between the parties on merits.
9. The respondents did not seriously contest the application. The day the application was heard the learned counsel for the respondents simply stated that he had no instructions from his clients.
10. The learned counsel for the petitioner, canvassing for the restoration of appeal, sought the aid of the rule laid down in Kalyan Singh v . Ramgolam Singh A I R 1920 Cal. 399, Mohammad Shafi v . Chedu A I R 1930 All. 100 and Ganesh Balkrishna A I R 1965 Madh. Pra. 21, in support of his arguments. In Kalyan Singh's case A I R 1920 Cal. 399, the judgment‑debtors had approached the High Court in appeal against the order of the executing Court overruling their objection to the grant of restitution in execution proceedings. As suggested by the High Court the appeal was withdrawn and the judgment‑debtors were to bring a suit to recover possession of the property in dispute, the decree‑holders undertaking that neither the proceedings for restitution nor the fact that the previous suit brought by the judgment‑debtors had been dismissed for non‑prosecution would in any sense be treated as a bar to any fresh suit which the judgment‑debtors were to institute in relation to the disputed property. The suit brought by the judgment‑debtors was dismissed on merits by the learned trial Court. In appeal the High Court, of its own motion, raised question whether the suit could be maintained in view of the dismissal for non‑prosecution of the earlier suit. Notwithstanding the terms of the order of the Court concluding the previous appeal by withdrawal, the Court proceeded to deal with the question of maintainability of the suit and came to the conclusion that it was barred and dismissed it on that ground. The judgment‑debtors, thus baffled in their search for justice, applied for the rescision of the order disposing of the appeal through withdrawal and for its restoration and hearing on merits. The Court noticed that the appeal had not been heard on merits as it had been agreed that the matter in dispute would be investigated in a separate suit which course had been accepted by both the parties but that anticipation had not been realized. The Court observed that in such circumstances it had inherent powers to order restoration to enable it to discharge the duty cast upon it as a Court of justice to determine the controversy between the parties. Quoting the maxim acts curiae neminem gravabit (an act of the Court shall prejudice no man), it remarked that failure of the Court to decide a case after submission could not be permitted to defeat the substantial rights of the litigants. The appeal was restored and was directed to be heard on merits.
11. In Mohammad Shaft v. Chedu A I R 1930 All. 100, the suit was dismissed under Order XVII, Rule 3 of the Code of Civil Procedure. One of the plaintiffs applied to the trial Court for restoration of the suit after setting aside the order of its dismissal. Two of the plaintiffs filed appeal against the decree. While the appeal was pending the application of one of the plaintiffs for restoration of the suit was allowed. The defendants impugned the order of restoration in revision before the High Court. While the revision petition was still pending a statement was made to the appellate Court that the trial Court had set aside the decree against which appeal had been preferred. As the decree was no longer subsisting the appeal could not be maintained and was dismsissed. Thereafter, the High Court, in the exercise of revisional jurisdiction, set aside the order of the trial Court by which the suit had been restored. Within a few days of the passing of the last mentioned order two of the plaintiffs, who had gone in for appeal against the decree, made an application to the appellate Court for revival of the appeal which had been dismissed on the ground that the decree appealed against' had been set aside. The application having been granted the defendants went in appeal to the High Court. The High Court was of the view that there was ample ground on which the appellate Court could exercise its inherent jurisdiction to restore the appeal and hear it.
12. The facts of Ganesh Balkrishan v. Goverdhandas A I R 1965 Madh. Pra. 21 were somewhat similar. The suit was dismissed under Order XVII, Rule 3 of the Code. The plaintiff's application under Order IX, Rule 9 of the Code for restoration of the suit was also dismissed by the trial Court on the assumption that the dismissal of the suit being under Order XVII, Rule 3, Order IX, Rule 9 was not attracted and the remedy of the plaintiff lay in going in for appeal against the order of dismissal of the suit. In appeal against the order of rejection of his application the appellate Court formed the view that the dismissal of the suit was under Order XVII, Rule 2 and not under Order. XVII, Rule 3; it accepted the appeal and restored the suit.
13. It may be mentioned that in the meantime the plaintiff also filed an appeal against the order of dismissal of the suit. However, after the restoration of his suit in consequence of the decision of the other appeal, he made application stating that as his suit had been restored he did not wish to continue with the appeal which was accordingly dismissed.
14. It so happened that the High Court allowed the revision petition moved by the defendants to assail the validity of the order of restoration of the suit on the ground which prevailed with the trial Court for rejecting the plaintiff's application under Order IX, Rule 9. Thereafter, the plaintiff applied for the restoration of the appeal which he had chosen not to pursue. His application was dismissed by the appellate Courts and, therefore, he invoked the revisional jurisdiction of the High Court. The question whether the appeal should be revived under the inherent powers of Court was answered by the High Court in the affirmative. It expressed the view that the plaintiff could not be denied both the remedies merely because the trial and two appellate Court had taken different views of the matter.
15. The order of this Court, dated the 5th June, 1974, dismissing the appeal as withdrawn on account of Faraza's having obtained the relief which would have been given to him in consequence of his success in appeal was not intended to serve the purpose for which it was used by Naza and the consolidation authorities. By producing this order Naza stole a march upon Faraza by creating a false impression upon the mind of the consolidation authorities that Faraza's appeal had been dismissed on merits and, therefore, action should be taken on the decisions of the learned Courts below. This was a clear abuse of the process of the Court to prevent which this Court must exercise its inherent powers so as to secure the ends of justice. Fresh suit A by Faraza would not have succeeded in face of the result of previous litigation. Hence it is meet and proper that the dispute between the parties should be settled by deciding the appeal (R.S.A. No. 844 of 1964) on merits. The appeal is accordingly restored to its original number. The office will take necessary steps to get the service of the respondents completed within the shortest possible time and fix the appeal for hearing within three months.
A . A . /F‑49/L Appeal restored.