TASSADAQ HUSSAIN Versus AFZAL MUMTAZ

1. The brief facts out of which the present writ petition arises are that petitioners purchased the land measuring 13 Kanals, 13 Marlas situated in village Karian from the original owner through General Attorney,. Abdur Rashid, father of the petitioners for the consideration of Rs.30,000 on 21‑9‑‑1980. Respondent No. l filed a suit for pre‑emption before the Civil Judge First Class, Gujrat against the petitioners, through their father on 21‑9‑1981 on the ground that the petitioners are not owners in the village whereas respondent No. l is owner in the village where the land in question is situated. The notices were sent to the petitioners/defendants through their father. The Court appointed Reader of the Court as guardian of suit on 23‑1‑1982. The Reader of the Court filed written statement controverted the allegations levelled in the plaint. Out of the pleadings of the parties the learned trial Court framed the issues after some proceedings. The Reader on 23‑5‑1984 sought adjournment for producing evidence. He further stated that he wanted short adjournment for making his own statement instead of producing evidence to finish the case, The case was adjourned to 24‑5‑1984. The Reader of the Court made statement in Court on 24‑5‑1984 that if respondent No.1 agreed to pay Rs.3,000 then he (Guardian of suit) would have no objection to passing of decree in favour of respondent No.1. The offer of the Guardian of suit was accepted by the learned counsel of the respondent No. 1. The suit was decreed in terms of compromise arrived at between the parties on 24‑5‑1984. The petitioner filed application before the trial Court on 8‑10‑1984 for setting aside the decree on the ground that the appointment of the Reader as a guardian of suit was not in accordance with the mandatory provisions of the Civil Procedure Code. The petitioners came to know about the said decree that respondent No.1 started harassing the tenants of the petitioner on the land in question. The respondent No.1 filed reply of the application controverted the allegations levelled in the plaint. Out of the pleadings of the parties the trial Court framed the following:

(1) Whether the application is within time? OPA

(2) Whether the decree dated 24‑5‑1984 is based on fraud and misrepresentation and is liable to be set aside? OPD

(3) Relief.

2. The trial Court accepted the application vide order dated 6‑10-1988. The respondent No. l being aggrieved filed revision petition before Additional District Judge, Gujrat who accepted same vide order dated 28‑2‑1989, hence the present writ petition. .

2. The learned counsel of the petitioners submits that appointment of I the Reader as guardian of suit is in violation of mandatory provisions of Order 32, Rules 3 and 4, C.P.C.. He further submits that the learned trial Court was not justified to appoint Reader as Guardian of a suit without adopting prescribed procedure in the Order 32, Rules 3, 4 and 7. He further' submits that service of the petitioners was not effected as well as service of the father of the petitioners was also not effected. The trial Court has given finding after proper appreciation of evidence that service of the petitioners was not effected either directly or through their father as is evident from the summons attached with the writ petition as Annexures K and L. He further submits that the service was not effected, therefore, basic order is void. In support of his contention he relied upon the following judgments:

3. Mst. Sarel Bibi etc. v. Shamsul Din Khan others.PLD 1956 Kar. 150 and Rashid Ahmad v. The State PLD 1972 SC 271.

4. He further submits that order of the revisional Court is in violation of the law laid down by the superior Court. In support of his contention he relied upon the following judgments:‑‑

5. Mansab Ali v. Amir and 3 others PLD 1971 SC 124; Syed Muhammad Anwar, Advocate v. Sh.' Abdul Haq 1985 SCMR 1228; Muhammad Alamgir v. Muhammad Iqbal 1985 CLC 2919; Col. Attaur Rehman v. Ahmad Yar Khan and others PLD 1980 Lah. 181.

6. He further submits that revisional Court has wrongly accepted the revision of respondent No. l that the application of the petitioners was time‑barred; the Courts have ample power .to treat the application of the petitioners under section 151, C.P.C. or under section 12(2), C.P.C. In support of his contention he relied on 1994 SCMR 1555 (Jane Margrete William v. Abdul Hamid Mian).

3. The learned counsel of the respondents, submits that the petitioners have challenged the vires of the order of revisional Court in Constitutional jurisdiction and the writ petition is not maintainable as the law laid down by the superior Courts in the following judgments:‑‑

7. Muhammad Khan and others v. Mst. Ghulam Fatima and others 1991 SCMR 970; Muhammad Zahoor v. Lal Muhammad and others 1988 SCMR 322; Muhammad Sharif and another v. Muhammad Afzal and others PLD 1981 SC 246; Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131 and Mst. Sattan v. Waryam etc. 1998 CLJ 59.

8. He further submits that in case the appointment of guardian was made in violation of the provisions of the C.P.C. then it can be cured at any stage. In support of his contention he relied upon the following judgments‑‑

9. Nazir Dad Khan v. Qamar Aftab and others 1985 CLC 1122 and Ghulam Muhammad Khan v. Allah Ditta 1986 MLD 682.

10. He further submits that once the guardian has been appointed the petitioners have no right to file this writ petition unless and until the guardian has been removed by the order of the Court. In support of his contention he relied upon the following judgments:‑‑

11. Mst. Afzal Begum and others v. YMCA PLD 1979 SC 18; Muhammad Din v. Sarfraz 1988 CLC 768.

12. He further submits that learned counsel of the petitioners failed to point out that the statement of the Reader was not in the interest of the minor, therefore, writ petition is not maintainable. In support of his contention he relied upon the following judgments: ‑‑

13. Iftikhar Hussain Khan v. Bleant Singh AIR 1946 Lah. 232; Nazir v. Dharam Pal and others AIR 1941 Lah. 47; Mst. Bishan Devi and others v. Jagat Singh and others AIR 1937 Lah. 353.

14. The learned counsel of the petitioners in rebuttal submits that this Court has ample power to entertain the writ petition in case the revisional Court has passed the order in violation of the law laid down by the superior Courts. He further submits that petitioners' father appeared in the witness‑box and the respondent No. l did not cross‑examine qua the registered A.D. The registered A.D. was not exhibited but the learned Additional District Judge decided the case by placing reliance on registered A.D. which was not produced in the evidence whereas the trial Court decided the case on the basis of the summons issued to the petitioners through their father which reveal that service of the petitioners was not effected.

3. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is better and appropriate to reproduce the basic order dated 24‑5‑1984 to resolve the, controversy between the parties:‑‑

15. The aforesaid order reveals that the trial Court accepted the statement of the Reader without applying its judicial mind whether the question of compromise would be for the benefit of the Government or not, therefore, the same is not in accordance with the mandatory provisions of Order 32, C.P.C. In arriving to this conclusion I am fortified by the following judgments:

16. Chand v. Lala Shanti Lal AIR 1942. Allahabad 85; Auodhesh v. Widow of Tribani Prasad and others AIR 1940 Pat. 663; Virji Kallionji v. Emperor AIR 1953 Sindh 95; Bishundeo Narain etc. v. Seogani Rai and ethers AIR 1951 SC 280; Sh. Shukrullah and others v. Mst. Zohra Bibi and others AIR 1937 Privy Council 35; Mir Ata Ullah Khan v. Sardar Mahboob Ali Khan and others PLD 1965 Kar. 341 and Missal Khan v. Fazal Karim PLD 1963 Pesh.93.

17. The petitioners filed application for setting aside the order dated 24‑5‑1984 before the Civil Court who has given finding against respondent No.1 on issues Nos.1 and 2 after appreciation of evidence that service of the petitioners was not effected upon the petitioners as is evident from summons attached with the writ petition Annexures K and L. The finding of the trial Court was reversed by the revisional Court without adverting to the reasoning of the trial. Court, in the impugned judgment. The reader of the Court (guardian of a suit) has got recorded his statement without leave of the Court, therefore, same is in violation of Order 32, Rule 7, C.P.C. as per principle laid down by the Hon'ble Supreme Court in Jaffar Abbas and others v. Ahmad and another PLD 1991 SC 131.

18. This Court has ample power under Article 199 read with Article 203 of the Constitution where the revisional Court has passed the order in violation of the law laid down by the superior Courts or by misreading the record as per principle laid down by the Hon'ble Supreme Court in the following judgments:‑‑

19. Muhammad Sharif and others v. Muhammad Afzal etc. PLD 1981 SC 246 and Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522.

20. The learned Additional District Judge passed the order by misreading of evidence on record and did not appreciate the evidence on record and did not pass the order after appreciation of evidence and without adverting to the reasoning of the trial Court, therefore, the impugned judgment is not sustainable in the eyes of law. The judgments cited by the learned counsel of the respondents are distinguished on facts and law as respondent No. l did not raise such pleas in the memorandum of revision petition before the Additional District Judge, therefore, the judgments cited by the learned counsel of the respondents' counsel are not applicable in the present case. The writ petition is accepted and the case is remanded to the Additional District Judge, Gujrat to decide the case afresh after proper appreciation of evidence without being influenced by the observations of this Court in accordance with law. Since the matter is old, the learned Additional District Judge is directed to decide the same as expeditiously as possible. The parties are directed to appear before the District Judge, Gujrat on 28‑11‑2000.

21. H.B.T./T‑17/L Petition' accepted.