MUHAMMAD NAWAZ Versus GHULAM FATIMA

The last male owner of the suit land was Dildar son of Ramzan. He died on 20‑5‑1978. He had two brothers, namely, Yaroo and Ghulam Rasool and a sister, namely Ghulam Fatima. His brother Yaroo was married to another Ghulam Fatima who bore him a son namely, Allah Bakhsh. After the death of Yazoo the said Ghulam Fatima married Dildar and bore three daughters who are respondents Nos. 10 to 12. The petitioners are the sons of said Allah Bakhsh son of Yaroo. The present suit was filed on 17‑12‑1979 by the said Ghulam Rasool, his sister Ghulam Fatima and respondents Nos. 10 to 12. In the plaint it was stated that the petitioners have managed to get the and transferred in their favour by arbitration proceedings vide an arbitration agreement, dated 7‑1‑1978, award, dated 8‑1‑1978 and then filed proceedings in the Court and got a decree, dated 12‑2‑1978 in terms of the said award. It was alleged that the said Dildar never joined any arbitration proceedings, did not execute any arbitration agreement or any other document; that a power of attorney was fabricated in favour of the person who made statement before the Court admitting the application of the petitioners. It was also alleged in the plaint that there was no dispute between Dildar on the one hand and the petitioner on the other and there was no question of any arbitration. It was also specifically denied in the plaint that Dildar made any gift of the suit land in favour of the petitioners. Thereafter it was stated that Dildar at the relevant time was seriously ill and could not even get up from the bed and died in the same condition. The petitioners in their written statement objected that respondents Nos. 10 to 12 have not filed the suit. It was positively asserted that Dildar made a gift of the land in your of the petitioners through the said arbitration proceedings and thumb trked all the documents including the power of attorney. At later stage respondents Nos. 10 to 12 were transposed as defendants in the suit. That left only Ghulam Rasool and Ghulam Fatima in the array of the plaintiffs. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree, dated 21‑11‑1983. Feeling aggrieved the plaintiffs/respondents filed a first appeal which was heard by a learned Additional District Judge, Khushab who allowed the same and decreed the suit of the plaintiffs/respondents on 14‑11‑1984.

2. Learned counsel for the petitioners contends that evidence has not been read properly by the learned Additional District Judge while reversing the judgment and decree of the learned trial Court. Complains that since the plaintiffs had come to the Court the onus was upon them and the learned Additional District Judge committed an error in holding that a valid gift has not been proved by his clients. Argues that the arbitration agreement and award and further proceedings even if not properly constituted according to the provisions of Arbitration Act, 1940 still constitute evidence of gift. Finally argues that the first appeal before the learned Additional District Judge was not competent inasmuch as the L.Rs. of Ghulam Rasool who had died during the pendency of the suit had not been impleaded in the appeal. Learned counsel for the respondents, on the other hand, supports the impugned judgment and decree of the learned Additional District Judge.

3. I have gone through the records of the learned trial Court, with the assistance of the learned counsel for the petitioners. Before I proceed to discuss the evidence on record I may state that all the substantive and procedural provisions of Arbitration Act, 1940 provided for resolution of "dispute" through the arbitration procedure as laid down in the said Act. Therefore, there has to be a dispute which needs resolution through arbitration and which needs to be referred to an Arbitrator which needs to be decided by an Arbitrator and it is a dispute so resolved is an award which if otherwise found to be in order is made rule of the Court and a decree is passed thereon. There is no concept of any arbitration without there being a dispute to be referred to Arbitrators.

4. The arbitration agreement is on record as Exh.D.W.2/2. It states that there is a dispute regarding the suit land between Dildar and the petitioners and that the parties have decided to get the same resolved through Alam Sher, Arbitrator. The award, dated 8‑1‑1978 is Exh.D.6. This award narrates that there is a dispute regarding the gift of the suit land and the parties have appointed an Arbitrator to give his decision. He states that he had made some inquiries and inspected the suit land and thereafter he was appointed as Arbitrator on 7‑1‑1978 and that he declares that the petitioners are the owners in possession of the suit land on the basis of a gift from Dildar. To my mind the award again is silent as to what was the dispute i.e. what one party was alleging and what the other party was replying and what is required by the Arbitrator, to be decided. This Arbitrator entered the witness‑box as D.W.5. He was confronted with a question as to what was the dispute before him. He stated in reply that the parties had given some statements regarding the dispute which statements he had not filed alongwith the award. Then he stated that he was told that he should decide the matter in the light of the said statements. Now there is no reference to any such statement in the award which fails to show as to what dispute was decided by the Arbitrator. D.W.11 is Muhammad Nawaz one of the petitioners. In his entire statement he has not stated as to what was the dispute between the petitioner and Dildar which was referred to the Arbitrator. On the other hand, he says that they got the land decreed in their favour and the Dildar himself got the land decreed in their, favour.

5. An examination of the evidence thus shows that there was no dispute between Dildar on the one hand and the petitioners on the other which could have been referred to arbitrator and consequently decided by the Arbitrator. The entire proceedings are, therefore, sham and have been rightly held to be so by the learned Additional District Judge.

6. Coming to the conduct of the proceedings in Court. In order to prove that Dildar was personally served the petitioners have produced Muhammad Akbar bailiff as D.W. He states that he personally served the notice upon Dildar and got the signatures of two witnesses, namely, Falik Sher and Bakhtawar. In his cross‑examination he states that he did not know Dildar and neither does he know the witnesses. Under Order V, Rule 16, C.P.C. where the defendant is delivered a copy of the summons personally then the serving officer is required to get the signatures of the defendant by way of acknowledgement of service endorsed on the original summons. There is no requirement to get the signatures attested from the witness. However, where a defendant refuses to accept signatures and the serving officer proceeds in accordance with the provisions of Order V of Rule 17, C.P.C. then if a witness is available he is required to state the name and address of the person by whom the house was identified and in whose presence the copy of summons was affixed on the outer door of the house of the addressee. This extraordinary procedure adopted by the serving officer per se speaks for the manner in which the proceedings were conducted by the petitioners and the fact that they were making preparation to meet any challenge to their handiwork. The power of attorney executed in favour of Hafiz Muhammad Hayat by Dildar is Exh.D.1. `This document purports to have been executed on 2‑2‑1978. It states that a civil suit pending and the attorney is being appointed to file a consenting written statement and to appoint Advocate and to make statement. This is an unregistered power of attorney and otherwise does not confer any power of alienation upon the attorney. I find that the amended petition was filed in the Court on 12‑2‑1978 (Exh.D.2). On the same date the attorney filed the consenting written statement (Exh.D.4) and on the same date the attorney got recorded a statement accepting the application (Exh.D.3) and on the same date decree (Exh.P.2) was passed.

7. The learned Additional District Judge has very correctly expressed doubts on the said flurry of activity. The petitioner must have realised that the said sham proceedings got conducted by them would not be as much help to them. They sought to prove the alleged gift by producing Muhammad Sher D.W.8 who stated that Dildar has given away his land to the petitioners and that Malik Alam Sher was appointed as an Arbitrator. He stated that he had signed the arbitration agreement which was thumb‑marked by Dildar. In his cross‑examination he stated that the other witness of the agreement is Bakhtawar who is D.W.7. Now this Bakhtawar happens to be same person who witnessed the notice referred to by the serving officer D.W.4. He states in his cross‑examination that he does not know whether there was any dispute between the parties when they entered into the arbitration agreement. Finally they produced Karim Bakhsh, D.W.9. This witness of course made a statement which was not even made by Muhammad Nawaz, petitioner D.W.11. He proceeded to state that it was in view of services rendered by the petitioners that Dildar gave his land to the petitioners in his presence by way of gift. I deem it proper to reproduce his answer to the only relevant question in the cross‑examination which is as under:‑‑

This is entire evidence on record. To my mind there is no evidence worth its name on the file that Dildar ever made a gift of the land in favour of the petitioners complete either under the Muslim Law or the provisions of the Transfer of Property Act. The record, on the other hand, reveals the fraud resorted to by the petitioners to grab the suit land and in the process they grossly abused the process of the Court as well.

8. Coming to the said legal objections of the learned counsel. According to him, the first appeal before the learned Additional District Judge was incompetent as the daughters of Ghulam Rasool deceased plaintiff had not been impleaded as party to the appeal. I confronted the learned counsel with his own proposition that he has not impeladed the said daughters of Ghulam Rasool even in the present Civil Revision. Be that as it may, the said argument of the learned counsel does not carry much force and after the decision of the Supreme Court of Pakistan in the case of Said Muhammad and others v. M. Sardar and others (PI,D 1989 SC 532) and Punjab Road Transport Board through its Chairman, Lahore v. Abdul Ghafoor and 6 others (PLD 1989 SC 541), the said objection stands reduced to just a technicality. I may reproduce here observations of Chief Justice Muhammad Haleem (as his Lordship then was) in the said case of Said Muhammad, appearing at pages 539 and 540:‑‑

"From the above discussion, the statement of law in V.P.R. v. Chchkalingam Chetty's case stands explained and the preponderance of opinion is against the rigid view taken in Labhuram's case.

The Legislature in its wisdom by enacting. Order 41, Rule 20, C.P.C. empowered the Court to allow a party to be added in an appeal already filed when none could be added after the limitation had run out. The purpose more or less is the same as that with investing the Court with the powers to condone the delay under section 5 of the Limitation Act which is not in terms applicable. The purpose is not, far to seek as the Legislature must be presumed to have visualized situations where there could be an omission to implead the necessary parties either as a result of bona fide mistake or on account of no mistake of a party seeking addition of the necessary party or for some other justifiable reason.

The rigidity in the application of Order 41, Rule 20, C.P.C., as concluded in Lbhuram's case that where party is not impleaded in appeal within they period of limitation he can never be deemed to be an interested party in the result of the appeal, is no longer an inviolable rule. In this milieu, this Court in Muhammad Jamil's case examined the question of negligence but did not implead the necessary party in the exercise of its discretion irrespective of the fact that the limitation had run out. This confirms the legislative intent in enacting Order 41, Rule 20, C.P.C.

Further as to the reasons that although the Court can exercise such powers suo motu yet it is deprived from exercising such powers at the instance of the party is also of no substance for it would make no difference even if it is initiated by the party whose move for the addition of a party is necessitated by the circumstances of the case as in that event too it will be an exercise of suo motu power. This will be in consonance with the principle that the Court will ordinarily exercise power because technicalities notwithstanding laws or procedure are meant for the advancement of justice and not for denying it."

I, therefore, find that the said alleged defect in the first appeal or in the present Civil Revision does not constitute a hurdle in the way of doing complete justice by the Court of first appeal as also in the present revision. I hereby direct the petitioners to implead the said daughters of Ghulam Rasool (plaintiffs Nos.11 to 15) as also in the present Civil Revision and the plaintiffs/respondents to file an amended memo, of appeal to be added to the record of the first Appellate Court impleading the said person as respondents in the first appeal. For all that has been discussed above, this Civil Revision is found to be without force as also frivolous and is dismissed with costs throughout. The counsel fee is fixed at Rs.20,000. In term of order, dated 18‑6‑1985 passed by this Court while deciding C.M. No.5755‑C/84 of the petitioner securing payment of mesne profits by the petitioners to the plaintiffs/respondents, the plaintiffs/respondents shall file an application before the learned trial Court/Executing Court who shall determine the amount of mesne profits w.e.f 18‑6‑1985 till date, recover the amount from the petitioners and to pay the same to the plaintiffs/respondents.

Q.M.H./M.A.K./M‑374/L Revision dismissed.