Muhammad Akram vs Adj etc.

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

W.P.No.6029 of 2018

Muhammad Akram. Vs. Addl. District Judge, Ali Pur, etc.

Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary proceedings 23.04.2018. Mr. Muhammad Rafi Raza Khadal, Advocate for petitioner.

Through this constitutional petition, the petitioner has called in question the judgments dated 01.03.2018 passed by Addl. District Judge, Alipur and 28.04.2017 passed by Family Court, Alipur, respectively, whereby the courts refused to set-aside the judgment dated 12.06.2016 passed in favour of respondents No. 3 and 4 and against the petitioner on the basis of statements got recorded by both the parties on 02.06.2012 in the light of compromise deed Exh.C1 entered into between the parties and on the same day the court decided the matter in terms of the said compromise deed. Subsequently, the petitioner challenged the afore-referred order on the ground that the same is based on fraud and misrepresentation. The learned Judge Family Court dismissed the said application vide judgment dated 28.04.2017, which judgment was challenged through revision petition

W.P.No.6029 of 2018

and his application met the same fate. Both the afore- referred judgments are under challenge through this constitutional petition.

2.Learned counsel for the petitioner has argued that as earlier suit on the same subject matter had been decreed between the parties, therefore, there was no cause of action to file a fresh suit, which could not have been decreed again as in earlier round of litigation, the petitioner had satisfied the decree by performing its terms and conditions. Besides, both the courts below passed the impugned judgments in a hasty manner and the same are based on mis-reading and non-reading of facts and the record.

3.Heard. Record perused.

4.In the earlier round of litigation, an application filed by the petitioner for setting-aside decree dated 12.06.2012 passed in a suit for recovery of dower was dismissed by the learned trial court vide order dated 06.06.2013, however, the learned Addl.

District Judge, Alipur vide order dated 13.10.2014 accepted the appeal filed by the petitioner and remanded the matter for deciding the same afresh after recording of evidence of both the parties. Where after, issues were framed by the trial court and both the parties appeared in evidence and recorded their

W.P.No.6029 of 2018

respective stances. The learned trial court again dismissed the application vide order dated 28.04.2017.

5.The main issue that require determination is issue No.1, “Whether the judgment and decree dated 12.06.2012 was based on fraud, malafide and collusiveness hence, the same is liable to be set aside?

OPA”. The compromise deed Exh.C1 was placed before the court, wherein statement of both the parties were recorded and the matter was decided in terms of the that compromise deed on 02.06.2012. The petitioner put his signatures and thumb impression over the margin of the order sheet and was identified by his counsel. Later on, the petitioner claimed that neither he appeared and nor got his statement recorded, however, it was observed that the petitioner filed an application on 14.11.2012 (after five months of passing of the order) to challenge the order of the afore-referred compromise entered on his behalf, wherein the courts below in order to verify the thumb impression of compromise deed and court proceedings obtained report from Finger Print Bureau, Punjab, which is as under:-

“The impression marked as Q on the Application (Razinama) and Q/1 on the Court Proceedings dated 02.06.2012 are identical with the left thumb impression (A/L) of Muhammad Akram on his sample paper. Nine characteristic points of identity have been charted and illustrated in detail by means of descriptive symbols in

W.P.No.6029 of 2018

enclosed set of photographic enlargements marked as

Q/Q... A/L/L”.

On perusal of the afore-referred opinion, it is crystal clear that the ground taken by the petitioner that he neither appeared in the court nor the afore-referred compromise deed entered into by him is not established on the record and appears to have been raised as an after-thought. Moreover, presumption of truth is attached to judicial proceedings. The petitioner is trying to establish his case by raising plea of fraud and misrepresentation, which is not established on the record, therefore, no ground to interfere in the concurrent findings of the courts below is made out. Resultantly, this petition being devoid of any merits stands dismissed in limine.

(Muzamil Akhtar Shabir) Judge Zeeshan Khan