MUHAMMAD LATIF through Legal Heirs vs FAYYAZ AHMAD and others
This matter concerns a petition for leave to appeal against the dismissal of a review application by the Lahore High Court. The original writ petition was disposed of based on an alleged concession made by the counsel for the respondent, which resulted in the impugned order being declared without lawful authority. Subsequently, the petitioners filed a review application, asserting that their counsel had never made such a concession and that the court's reliance on it was erroneous. The High Court dismissed the review application, accusing the applicant of perjury for misstating facts regarding the counsel's conduct and the withdrawal of an affidavit. The Supreme Court granted leave to appeal to determine whether the High Court erred in disposing of the writ petition based on an alleged concession without resolving the lis on merits, whether the impugned orders failed to address allegations of fraud and misrepresentation in the underlying settlement proceedings, and whether the High Court misconstrued the withdrawal of the counsel's affidavit as a withdrawal of the review application itself. The Court maintained an interim arrangement regarding property possession pending final adjudication.
- Whether a court can dispose of a writ petition based on an alleged concession by counsel when the party disputes that such a concession was ever made?
- Does the withdrawal of an affidavit by a counsel in a review application equate to the withdrawal of the review application itself?
- Is a court justified in dismissing a review application on the basis of alleged perjury without a formal inquiry?
ORDER
' CH. MUHAMMAD ARIF, J.---Writ Petition No.354/R of 1986 filed by private respondents herein against the petitioners was disposed of by a learned Judge in Chambers of the Lahore High Court, Lahore as below:--- "After arguing the matter at great length, learned counsel for respondent No.4 concedes that this writ petition merits acceptance. He states that he would have no objection in case the order impugned herein is declared to be without lawful authority and of no legal effect. He however states that respondent No.4 would pursue the suit already filed by him before the Civil Court qua his alleged rights in the disputed property.
' In view of the foregoing, this writ petition is accepted and the impugned order dated 13-9-1986 passed by respondent No.1 is declared to be without lawful authority and of no legal effect. No costs."
' This happened on 24-4-1998.
2. The petitioners (legal representatives of Muhammad Latif Bhatti) made Review Application No.57 of 1998 in Writ Petition No.354-R of 1986 pleading that their learned counsel was surprised when he came to know about the contents of order dated 24-4-1998 and in fact assured the petitioners that he never conceded or made any statement that he would have no objection if the order impugned in writ petition is declared to be without lawful authority and that writ petition was liable to be dismissed. The learned Judge in Chamber dismissed R.A. No.57 of 1998 as below:-- "Mr A.R. Shaukat, Advocate while vehemently opposing this review application has contended that the impugned judgment was passed after hearing the learned counsel for the respondent No.4 at great length and on his specific concession the same was accepted.
"2. Mr. R. A. Zafar, Advocate had filed his affidavit in support of the review application but it was withdrawn by him on 6-6-1998.
' It is unfortunate that the applicant with a view to seek review of the judgment has indulged in perjury and thus rendered himself liable to be prosecuted for the same. However, taking lenient view, no positive action is being taken against him. He is warned to be careful in future.
"This review petition being wholly devoid of force and based on mis-statement of facts, is dismissed."
3. After hearing the learned counsel for the parties at this stages are inclined to grant leave to consider the following questions:--
(i) Whether the learned Judge in Chambers was not in error in passing orders dated 24-4-1998 and 20-6-1998 which have resulted in non-resolution of the lis on merits?
(ii) Whether orders dated 24-4-1998 and 20-6-1998 are not tantamount to sanctifying orders passed by the Settlement Authorities which, in their own turn, are not justified in that they failed to set aside orders obtained through fraud, misrepresentation and concealment of facts?
(iii) Whether the affidavit of Mr. R. A. Zafar, Advocate in support of Review Application No.57 of 1998 was not sufficient in itself to order re-hearing of Writ Petition No.334-R of 1986 because he, in fact, had not withdrawn the said affidavit as mentioned in para. 2 of order dated 20-6-1998, but withdrawn himself from the case i.e. R. A. No.57 of 1998.
4. Interim order dated 23-9-1999 shall remain in the field subject to the petitioners continuing deposit of Rs.5,000 per month with the Senior Civil Judge, Gujranwala as security in the case. It is further directed that rent-matter shall proceed according to law but order of ejectment, if passed, shall not be given effect to, meanwhile.