Ms. FARZANA SHAHEEN Versus ABDULLAH

This judgment shall dispose of Civil Revision No.437‑D of 1997 as well as Civil Revision No.421‑D of 1997 as both have nexus with each other.

2. The facts leading to the institution of these civil revisions are that the petitioners/plaintiffs in Civil Revision No.437‑D of 1997 filed a declaratory suit to the effect that they are owners in possession of the suit‑land (measuring 146 Kanals) on the basis of two registered gift- deeds dated 20‑6‑1988 and 3‑7‑1988 executed by their grandfather Abdullah and that the respondents be restrained from, interfering into their possession. The afore‑referred Abdullah also filed a declaratory suit on 13‑3‑1995 disowning having made any gift and sought a declaration that he is still owner in possession of the suit‑land. On 9‑6‑1996 counsel for the petitioners/plaintiffs made a statement that if any of the six persons namely Basharat, Yasin, Nawaz, Anwar, Ali Hussain or Bashir Ahmad took oath on Holy Qur'an about the gift made in favour of the petitioners/plaintiffs the suit be decided in terms of the statement to be made by him. The case was adjourned to 11‑6‑1996 on which date counsel for respondents/defendants produced Muhammad Anwar one of the afore‑referred persons who took oath on Holy Qur'an that Abdullah had made no gift of the suit‑land, where after, the petitioners/plaintiffs' suit was dismissed and the suit filed by respondent Abdullah was decreed. This judgment and decree dated 11‑6‑1996 was challenged in appeal which was dismissed by the learned Additional District Judge vide impugned judgment dated 11‑3‑1997, hence this petition.

3. The learned counsel for the petitioners in support of this petition has made the following submissions:‑‑

(i) That on 9‑6‑1996 the case was adjourned to 11‑6‑1996 to enable the petitioners/plaintiffs to name a person for appointment as a referee and the said date was not fixed for recording statement of the referee and the procedure adopted by the learned trial Court is against law declared;

(ii) That Muhammad Anwar who was nominated by the respondents/defendants to act as a referee is brother‑in‑law of Abdullah, the petitioners had serious reservations about him that the same was objected to but the learned trial Court without adverting to the objections made recorded the statement of the so‑called referee and dismissed petitioners' suit;

(iii) That petitioners are Pardanasheen ladies, that admittedly none was present either on 22‑5‑1996 or 9‑6‑1996 when the counsel for the petitioner/plaintiff No.1 agreed for appointment of referee out of the six persons named; that the said counsel had no authority to do so and in any case the petitioners had a right to object to appointment of Muhammad Anwar as referee and the learned trial Court could not have acted upon his statement without considering the objections raised;

(iv) That the learned counsel for petitioners/plaintiffs placed on record of the Appellate Court an affidavit to the effect that the learned trial Court instead of passing an order for appointment of referee proceeded to record statement of Muhammad Anwar the so‑called referee which was objected to and it was specifically stated that petitioners/plaintiffs do not accept his statement on oath and would not be bound by the decision given by the so‑called referee but even then the learned trial Court recorded the statement and dismissed the suit accordingly.

In support of the submissions learned counsel relied upon PLD 1970 SC 245, PLD 1978 Lah. 31, PLJ 2002 Lah. 731 and 2000 CLC 29.

4. Learned counsel for the respondents/defendants defended the concurrent judgments and decrees on the ground that petitioners/plaintiffs are bound by their statement; that the procedure adopted by the learned trial Court is backed by law; that having adjourned the case in terms of the statement made by the counsel for the parties on 9‑6‑1996 the learned trial Court was left with no option but to decide the suit in terms of the statement made by the referee Muhammad Anwar. In support of his submissions the learned counsel has relied on 1981 SCMR 162.

5. Heard.

6. A bare reading of the order dated 9‑6‑1996 indicates that counsel for the parties had agreed that respondents/defendants may name anyone of persons out of the six persons mentioned in the said order as referee to make a statement about gift in question and that the suit be decree accordingly. It was further agreed that the concerned suit bearing No. 138/1 may also be decided in those terms. The case on the said date was adjourned to 11‑6‑1996 to enable the respondents/defendants to name the person for appointment as a referee. The operative part of the said order reads as under:‑‑

On the next date i.e. 11‑6‑1996 the respondent/defendant was to name one of the afore‑referred persons as a referee then the appointment was to be made by the learned trial Court and thereafter, his statement was to he recorded on oath to be of any legal consequence. The learned trial Court instead acted in haste and recorded that respondent/defendant had produced Muhammad Anwar as a referee who wants to make a statement, his statement was recorded on oath, which was to the effect that Abdullah had not gifted the suit‑land in favour of petitioners/plaintiffs where-after the suit was dismissed the came day. The procedure adopted and the naming of Muhammad Anwar by respondents/defendants as a referee was objected to by the learned counsel for petitioners/plaintiffs but the objections remained unheeded by the Court. The fact that objection were raised is borne out from the affidavit of the learned counsel which was placed before the learned Additional District Judge which has not been rebutted by any counter- affidavit till today. Both the Courts below have failed to appreciate that petitioners/plaintiff were ladies, that they were not present on any of the dates when their counsel agreed to have the matter decided through referee; that they had a right to raise objections before the statement of the referee was recorded or his statement was given effect to and that the learned trial Court should have allowed the parties to resile and should have decided the objections at the first instance. The agreement entered into between the counsel for the parties on 9‑6‑1996 could at best be a contract and if a party seeks its specific performance this is a discretion of the Court to allow or, refuse. This is the rationale by the law laid down in Muhammad Akbar and another v. Muhammad Aslam and another (PLD 1970 SC 241) which is approval of the law laid down in Dilawar Khan v. Tikka Khan and others (PLD 1954 Lah. 290), wherein it was held as under:‑‑

"Specific performance is an equitable relief which a party cannot claim as a matter of right. The Court has a discretion in the matter and if the particular circumstances of a case, the conscience of the Court is not satisfied that it is necessary to hold the parties to such an agreement, it will not direct its performance. That seems to me to be the correct principle to be applied to such cases. I am in respectful agreement with the view taken in some of the reported cases that such an agreement, does not constitute an adjustment of the suit within the meaning of order XXIII, rule 3, of the Code of Civil Procedure. Such an agreement per se does not amount to an adjustment but if it is carried out, it may eventually lead to an adjustment."

A similar view was taken by a Division Bench of this Court in "Rao Inayat Ali v. Diwan Ali" (2000 CLC 27) wherein at page 29 it was held s under:

"We have considered the submissions made by the learned counsel for the parties. Decision to be bound by the statement of the referee is outcome of a contract and the parties will be at liberty to revoke it before it is acted upon. The contention of the learned counsel for the appellant is fully supported by the judgment in case of Sher Zaman Khan (supra)".

7. For what has been discussed above, I am of the view that both the learned Courts below in misreading and non‑reading the import of the orders dated 22‑5‑1996 and 9‑6‑1996 have acted with material irregularity warranting interference in revisional jurisdiction of this Court. Resultantly, this petition is allowed both the impugned judgments and decrees are set aside, the parties are directed to appear before the learned trial Court on 2‑9‑2002 which shall consider the objections of the petitioners/plaintiffs with regard to the appointment of the referee in the first instance within a period of six weeks of the afore‑referred date and, thereafter, proceed as mandated in law.

H.B.T./F‑138/L Petition allowed.