Meher Ali Vs The Additional District Judge Nupur Thal District Khushab

Stereo.HCJDA-38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

W.P. No.172434 of 2018 Meher Ali Vs The Additional District Judge etc.

JUDGMENT

Date of Hearing 22.01.2026 The Petitioner by M/s. Malik Muhammad Salik Awan and Javed Rasheed Mahboobi, Advocates Respondents No.2 & 3 by M/s. Mushtaq Ahmad Mohal and Sadia Kanwal, Advocates

Malik Waqar Haider Awan, J. Through this constitutional petition, the petitioner has assailed the judgment dated 18.01.2018 passed by the learned Addl. District Judge, Noorpur Thal, Khushab, whereby the learned court, while accepting the revision petition filed by respondents No.2 and 3, set aside the order dated 20.05.2014 passed by the learned trial court and remanded the case with a direction to decide the application under section 12(2) CPC, on merits as per evidence of both the parties and in accordance with law.

2.Shorn of unnecessary detail, deceased Allah Bakhsh son of Shera, caste Klyrra, was owner of land measuring 986-Kanals 08- Marlas. Out of the said holding, he alienated land measuring 586- Kanals 11-Marlas through a decree dated 07.04.1987 passed by the learned Civil Judge 1st Class, Jauharabad, by way of Hiba in favour of his only son Meher Ali, the present petitioner. The said decree was incorporated in the revenue record vide mutation No.79 dated 26.11.1987. Subsequently, the deceased transferred his remaining land measuring 400-Kanals to the petitioner through another Hiba, which was entered in the revenue record vide mutations No.535 and 537 dated 29.05.1989.

During the lifetime of Allah Bakhsh, the petitioner transferred land measuring 600-Kanals in favour of his sons Khidmat Ali and Karam Ali through mutations No.1698 dated 18.06.1998, No.1702 dated 25.06.1998 and No.1706 dated 29.06.1998. Allah Bakhsh passed away on 18.04.2002, leaving behind one son, Meher Ali (petitioner), four daughters namely Allah Wasai (respondent No.2), Mst. Maqboolan (respondent No.3), Mst. Azmat Bibi and Kalsoom Bibi, and his widow Sardaran Bibi. No mutation of inheritance was sanctioned, as no land stood in the name of the deceased at the time of his demise. Mst. Allah Wasai and Mst. Maqboolan, respondents No.2 and 3 respectively filed an application under section 12(2), CPC, on 06.08.2010, seeking to set aside the judgment and decree dated 07.04.1987 with the allegation that the same had been obtained through fraud. Their evidence was recorded and partial evidence of the respondent (present petitioner) was also recorded by the learned trial court. On 29.04.2014, respondents No.2 and 3, through separate statements on oath made in the presence of their learned counsel and affixed their thumb impressions on the margin of order sheet, offered that Abdul Waheed son of Abdul Ghafoor, Pir Sahab of Janjoon Sharif, Tehsil Mankera, District Bhakkar, be appointed as referee and that they would be bound by his decision. On the same day, the petitioner also made a similar statement on oath, agreeing to the appointment of the said person as referee and undertaking to abide by his decision.

Pursuant to the aforesaid statements, on 20.05.2014, Abdul Waheed son of Abdul Ghafoor, caste Jaat, resident of Murshidabad Janjoon Sharif, Tehsil Mankera, District Bhakkar, recorded his statement on oath before the learned trial court, in the presence of learned counsel for the parties, stating that the application be dismissed. In the light of this statement, the learned Civil Judge 1st Class dismissed the application under section 12(2), CPC, vide order dated 20.05.2014.

Respondents No.2 and 3 challenged the said order through a revision petition, which was accepted by the learned revisional court vide order dated 18.01.2018 which is impugned herein. The order of the learned trial court was set aside and the matter was remanded with a direction to decide the case on merits as per evidence of both the parties. Being aggrieved, the petitioner has filed the present constitutional petition.

3.Learned counsel for the petitioner contends that once respondents No.2 and 3 made statements on oath for appointment of a referee, they could not wriggle out from the same nor from the statement made under oath by the referee. Further pleads that there is a clear distinction between an arbitrator and a referee as an arbitrator decides a dispute after holding an inquiry and his decision is termed an award, whereas a referee is a person whose opinion or knowledge is relied upon without conducting a formal inquiry. Further maintains that respondents No.2 and 3 neither denied making statements under oath nor sought revocation of the referee’s appointment and are merely confusing the role of a referee with that of an arbitrator. Reliance has been placed upon judgments reported as “Sher Zaman Khan Vs. Noor Zaman Khan and another” (PLD 1977 Lahore 672), “Maqbool, Vs. Tahir Naeem and 10 others” {PLJ 2001 Lahore 245 (DB)}, “Zulfiqar Ali Shah and 5 others Vs. Muhammad Hussain and 6 others” (PLJ 2002 Lahore 1095), “Qamar-Ud-Din Vs. Abdul Latif etc.” (PLJ 2009 Lahore 791) and “Sher Muhammad and others Vs. Muhammad AFzal and others” (PLD 2011 Lahore 412).

4.Conversely, learned counsel for respondents No.2 and 3 submits that the impugned order passed by the learned revisional court suffers from no illegality. Avers that the referee was required to give a detailed statement supported by reasons and to specify which party was truthful. Further contends that a religious leader has no authority in law to decide disputes between parties and that the statement of the referee was neither proper nor fair. Reliance is placed on “Province of Punjab through Collector, Bahawalpur Vs.

Sufi Habib Ullah” (1982 SCMR 243) “Muhammad Khan and 6 others Vs. Mst. Ghulam Fatima and 12 others” (1991 SCMR 970) and “Naveed Aziz and another Vs. Rauf Ali Syed” (1996 CLC

5.Arguments heard and record perused.

6.The pivotal question before this Court is whether a party, after voluntarily appointing a referee and undertaking to abide by his decision, can subsequently challenge the outcome on the ground that the referee failed to record reasons.

7.For the sake of clarity and proper appreciation of the matter, it is necessary at the outset to reproduce the statements made by the respective parties before the learned trial court in connection with the appointment of a referee as well as the statement of the referee, which are set out hereunder:- Statement of Mst. Allah Wasai, respondent No.2. “برحلف

بیان کیا کہ مقدمہ ہذا میه عبدالوحید ولد عبدالغفور پیر راحب داکن جنجو ذر یف تحصیل منكیرہ زلع بھكر کو ر یفری مقرر کیا ہے جو ”فیصلہ وہ کرے گا ادكی پابند ہوں ر یفری مقرر فرمایا جائے۔ ”دنكر دردت تسلیم کیا۔

Statement of Mst. Maqboolan, respondent No.3. “برحلف

بیان کیا عبدالوحید ولد عبدالغفور پیر راحب داکن جنجو ذر یف تحصیل منكیرہ زلع بھكر کو ر یفری مقرر کیا ہے جو وہ فیصلہ کرے گا ”میه پابند ہوں گی ر یفری مقرر فرمایا جائے۔

”دنكر دردت تسلیم کیا

Statement of Meher Ali, petitioner.

“برحلف

بیان کیا کہ عبدالوحید ولد عبدالغفور پیر راحب داکن جنجو ذر یف تحصیل منكیرہ زلع بھكر کو ر یفری مقرر کیا جا ئے وہ جو بھی فیصلہ کرے ”گا میه پابند ہوں گا۔

”دنكر دردت تسلیم کیا

Statement of Abdul Waheed son of Abdul Ghafoor, caste Jaat, resident of Murshidabad Janjoon Sharif, Tehsil Mankera, District Bhakkar, referee.

بیان کیا کہ درخوادت ہذا خارج فرمائی جائے۔

دنكر دردت تسلیم کیا

8.It is evident from the record and arguments of learned counsel for respondent No.2 & 3 that there is no dispute between the parties regarding the making of statements under oath before the learned trial court for appointment of the referee. The only objection raised by respondents No.2 and 3 is that the referee ought to have recorded a detailed statement supported by reasons. Learned counsel for respondents goes to the extent that the referee acted under influence and in collusion with the petitioner.

9.To appreciate the legal position, it is necessary to reproduce Article 33 of the Qanun-e-Shahadat Order, 1984 (hereinafter shall be referred to as “the Order, 1984”) which deals with the term “referee” reads as under:-

“33. Admission by persons expressly referred to by party to suit.-Statement made by persons to whom a party to the suit has expressly referred for information in reference to matter in dispute are admissions.

Illustrations

The question is, whether a horse sold by A to B is sound. A says to B. “Go and ask C: C knows all about it”.‖ C“s statement is an admission.”

From the plain language of Article 33 of the Order, 1984, it is evident that there is no requirement for the referee to conduct a detailed inquiry, record evidence or assign reasons. The statement made by such a referee is treated as an admission on behalf of the party who expressly referred the matter to him. Once such an admission is made, the party appointing the referee cannot assail his statement, as the principle of estoppel comes into play. Even otherwise, after making an admission before the Court, a party

cannot further litigate or turnaround from such admission, as doing so would be wholly against the purpose and object of Article 33 of the Order, 1984, as well as the language employed therein.

10.Article 114 of the Order, 1984 defines estoppel as follows:- “114. Estoppel. When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.”

A bare reading of Article 114 of the Order, 1984 makes it manifest that the doctrine of estoppel is founded on the principle that a party cannot be permitted to approbate and reprobate. Where, by a clear declaration made on oath, a party induces the Court and the opposite side to act upon a particular belief, such party is barred from resiling therefrom to the prejudice of the other. In the present case, respondents No.2 and 3, by voluntarily consenting to the appointment of a referee and undertaking to be bound by his decision, are legally estopped from challenging the consequences of the referee’s statement. The learned revisional court, without assigning any valid or cogent reasons, ignored this settled legal position and erroneously interfered with the lawful order of the learned trial court merely because the outcome had proved unfavourable to the respondents.

11.Once the statement of the referee is recorded on the basis of the consent of the parties, the provisions of Order XXIII Rule 3, CPC, come into operation and by necessary implication, Section 96(3), CPC also becomes applicable, which provides that no appeal lies against a decree passed with the consent of the parties. For the sake of convenience, the relevant provisions are reproduced as under:- Order XXIII Rule 3 CPC:-

“3. Compromise of suit. Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of

the suit, the Court shall order such agreement compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit.”

Section 96(3) CPC:-

“No appeal shall lie from a decree passed by the Court with the consent of parties.”

A conjoint reading of Order XXIII Rule 3 CPC and Section 96(3) CPC shows that where a dispute is settled through a lawful agreement or compromise with the consent of the parties, the Court is bound to record the same and pass a decree accordingly. Such a consent decree attains finality and is immune from challenge in appeal, as the law does not permit a party to resile from a voluntary settlement merely because the result is unfavourable.

12.Furthermore, the terms “Referee” and “Arbitrator” are distinct and have different legal connotations with regard to their authority, procedure, applicability and consequences; hence, they are not synonymous. An arbitrator adjudicates a dispute after holding an inquiry, following the prescribed judicial procedure and observing the principles of natural justice and applicable law, and his decision is termed as an “award”. Conversely, a referee is not vested with such authority and under Article 33 of the Order, 1984 is only required to make a statement based on his knowledge, information or belief.

13.In view of the foregoing discussion, it stands established that the parties, of their own free will and with full consciousness of the legal consequences, agreed to the appointment of a referee, made binding statements on oath before the Court and unequivocally undertook to abide by his decision. The statement of the referee, having been recorded in pursuance of such consent, constituted a valid admission attracting the doctrine of estoppel and bringing into play the provisions of Order XXIII Rule 3 and Section 96(3), CPC. The learned trial court, therefore, rightly dismissed the application under Section 12(2), CPC and no illegality or material irregularity was attached to its order. The learned revisional court

clearly exceeded its jurisdiction by interfering with a lawful and final order and by reopening a matter already concluded through a binding and voluntary settlement.

14.The judgments relied upon by learned counsel for respondents No.2 and 3 are distinguishable on facts and are not applicable to the present case, whereas the authorities cited by learned counsel for the petitioner squarely cover the controversy in hand.

15.For the foregoing reasons, this constitutional petition is allowed and the impugned judgment dated 18.01.2018 passed by the learned Addl. District Judge, Noorpur Thal, is hereby set aside. The order dated 20.05.2014 passed by the learned trial court is restored.

(MALIK WAQAR HAIDER AWAN)

JUDGE

Signed

*Sadheer Ahmad*

Approved for reporting

Judge