Gul Nawab Khan, etc Vs Police Khan, etc.

JUDGMENT SIIEET

IN THE PESHAWARHIGH CO[]RT,

BAI\INUBENCH

(Judicial Departlent)

Gul Nawab Khan, etc.

Ys Police Khan, etc.

Date of hearing: 01.12.245

For petitione(s):

Advocate

'lr++**** MUHAMMAD TARIO AFRIDI. J.- This civil revision petition, filed under Section ll5 ofthe Code of Civil Procedure, 1908 ("CPC'), calls into question the legality and propriety of the judgment and order dated 13.08.2025 passed by the leamed Additional District Judge, Takht-e-Nasrati, District Karak, whereby the appeal prefened by the petitioners was dismissed, and the judgment and order dated 29.04.2025 rendered by the leamed Civil Iudge-III, Takht-e-Nasrati was affirmed, through which the respondents' application under Section 144 CPC had been accepted and Mutation No.l674 dated 20.05.1997 was cancelled, while Tamleek Mutation No.1049 dated 04.08.1988 was restored.

2, Brieffacts ofthe case are that the respondents filed an application under Section 144 CPC seeking restitution on the ground that Mutation No.l674 datd 20.05.1997 had been attested on the strength of a decree dated 07.04.1996 passed in Civil Suit No.339/l of 1995, which

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decree was subsequently reversed in appeal on 15.05.1998. It was averred that once the decree was set aside, the mutation based upon it could not survive, and restitution was necessary to restore the parties to the position they occupied prior to the elroneous decree.

3.The petitioners contested the application, raising legal and factual objections.

4.The leamed Trial Court, upon appraisal of the record and hearing the parties, accepted the application under Section 144 CPC vide order dated 29.04.2025, cancelled Mutation No.l674 dated 20.05.1997, and restored Tamleek Mutation No.l049 dated 04.08.1988. The appeal preferred by the petitioners before the leamed Additional District Judge, Takht-e-Nasrati was dismissed on 13.08.2025, affmrring the Trial Court's order. Hence, this revision petition.

5.Arguments heard. Record perused.

6.The instant case has a chequered history, and the genesis whereof dates back to the year 1995, when the petitioners No.2, Mr. Abdul Qayyum, acting on behalf of his predecessor, Mir Ahmad Khan, instituted Application No.339/l of 1995, under Section 17 of the Arbitration Act, 1940, against the respondents' predecessor, Mst. Samana, seeking to have an arbinal award made as rule of the Court in respect of the suit property. The said application was decreed by the learned Civil Judge on 07.04.1996. The respondents' predecessor assailed the decree in Appeal No.70/13 of 1996, which was accepted by the learned District Judge on 15.05.1998, and the decree dated 07.04.1996 was set aside. The decision of

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the appellate :court i' Wd 'flnthe1 challenged in, Givil Revision No,2S5lt998i before,this Cou{t, whigh was dismissed vide judgment dated '16;fi42004. It is significant to note that during the pendency of Appeal No.70l13 of 1996, Mutation No.1674 dated 20.05.1997 was attested on the sftength of the decree dated 07.04.1996. Equally significant is the fact that, despite the reversal of the decree dated 07.04.1996 and the judgment of this Court dated 16.04.2004 having attained finality, the impugned Mutation No.1674 dated 20.05.1997 continued to subsist on the record.

7.Thereafter, the petitioner No.2 (Abdul Qayyum) as attorney for Mir Ahmad Khan, the predecessor of the 4 petitioners filed yet another application, being Suit No.1/6 of 2004, under Section 17 of the Arbitration Act, lg4}, founded on a subsequent arbitral award dated 29.02.2004. The said claim was decreed by the leamed Civil Judge on 19.05.2005, however, in Appeal No.167l13 of 2005, the learned District Judge set aside the decree and remanded the matter vide judgment dated 12.05.2006. The remand order was challenged but was upheld up to the august Supreme Court of Pakistan. Upon remand, the application was dismissed by the Trial Court on 23.02.2010, which dismissal was assailed in Appeal No.47l13. The learned Additional District Judge once again remanded the matter on 09.06.2016. After the second remand, the application was dismissed by the Trial Court on 10.05.2017, however, this decision too was set aside, and the matter was once more remanded by the Appellate Court vide judgment dated 06.02.20t8. Finally, the application was dismissed vide order dated

a\ 04.04.2018, and that dismissal was maintained ug to the Supreme:Court bf p' stao, culmihatrng

in judgment

ii, :gpI.A No.336/2023,'titled "Gul

dated 11.02.2025 NaWab Khan and others v. Mst. lz'zat Y:'hana (deceased) .t..

8.In the meantime, the respondents filed an application under Section 144 CPC before the learned Civil Iudge-III, Takht-e-Nasrati, seeking restitution of the suit property. It was averred that in the aforementioned litigations, the petitioners' predecessor had first procured the decree dated 07.04.1996 on the basis of a fabricated arbitration award, and thereafter a secured attestation of impugned Mutation No.l674 dated 20.05.1997 on the strength of the said decree. It was furttrer averred that the petitioners' succeeded in obtaining injunctive relief during the pendency of subsequent proceedings, and continued to derive benefit from a decree which had already been set aside in appeal and affrrmed in revision. As such, the respondents prayed that the impugned mutation, being founded upon a decree that no longer subsisted, be cancelled, and that the parties be restored to their original position by way of restitution under Section 144 CPC.

9.The Trial Court, upon appraisal of the record, accepted the application under Section 144 CPC vide order dated 29.04.2025, cancelled Mutation No.l674 dated 20.05.1997, and restored Tamleek Mutation No.l049 dated 04.08.1988. The Appellate Court affirmed this decision and dismissed the petitioners' appeal vide judgment dated 13.08.2025.

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10.The principle underlying Section 144 CPC is that no party should suffer due to an act of the Court. Where a decree or order is varied or reversed, the Court of first instance is duty-bound to restore the parties to the position they would have occupied but for such decree or order. Restitution under Section 144 CPC is mandatory, flowing from the maxim 'oacfus curiae neminem gravabit" signi$ing that an act of the Court shall prejudice no one. Its object is to undo any benefit obtained under a decree that has subsequently been set aside.

11.In the present case, the decree dated 07.04.1996, which formed the foundation of Mutation No.1674 dated e 20.05.1997, was set aside in appeal on 15.05.1998, and the decision of the appellate court was affirmed by this Court in Civil Revision No.285/1998 vide judgment dated 16.04.2004, which attained finality. Once the decree was reversed, the mutation entered on its strength could not lawfufly subsist and was rightly cancelled, with Tamleek Mutation No.l049 dated 04.08.1988 restored under Section 144 CPC.

12.The objection raised by the petitioners regarding limitation under Anicle l8l of the Limitation Act, 1908 is misconceived. Restitution under Section 144 CPC is not a fresh cause of action but a statutory obligation arising automatically upon reversal of a decree. The impugned mutation, being a continuing and subsisting entry, perpetuated the benefit of a decree that had already been set aside. A technical plea of limitation cannot be permitted to override or defeat the mandatory and

statutory command of Section 144 CPC.

13.The Supreme Court in Abid Jan u Ministrv of Defence throush Seqetarv and otherc (2023 SCMR 1451) held that restitution is a matter ofright, ex debito justitiae, and that no litigant should suffer due to the act or enor of the Court. This principle squarely applies to the present case, as the respondents' entitlement to restitution persisted so long as the mutation remained operative, and limitation could not shield an unlawful benefit derived from a decree already reversed.

14, Similarly, rn Homoeo Dr. Asma Noreen Sved v.

Deoailmcnt and others (2022 SCMR 1546), it was observed that no person should suffer because of delay or fault of the Court, and parties must be restored to the position they would have occupied had the mistake not occurred. The impugned mutation, having been founded solely upon a decree reversed in appeal and affirmed in revision, is precisely such a wrong that must be undone.

15.The principle was reiterated in Abdul Oudoos v. Comnandanl Frontiet Constabulan. Khtber Pakhlwkhwa. Peshawar ond another (2023 SCMR 334) and Governmcnt oflhe Puniab throush Secretarv.

Abdur Rehmm and otherc (2022 SCMR 25), wherein it was emphasized that restitution is a mandatory duty and not a matter of indulgence, and that remedies ex debito justitiae must be granted to prevent injustice.

16.Applying these principles, once the decree dated 07.04.1996 was reversed in appeal and affirmed in

a revision, the impugned mutation could not lawfully remain operative. Consequently, the Courts below were right in cancelling Mutation No.1674 dated 20.05.1997 and restoring Mutation No. I 0 49 dated 04. 0 8. I 9 8 8.

17.For the foregoing reasons, I am of the considered view that both the Courts below properly examined the record and returned findings supported by evidence and settled principles of law. Revisional jurisdiction under Section 115 CPC is supervisory in nature and does not extend to re-appraisal or re-assessment of evidence unless the findings are shown to be perverse, arbitrary, or the result of misreading or non-reading of evidence. In the present case, the petitioners have failed to demonstrate any such infirmity &trd, therefore, the concurrent findings of the Courts below do not warrant interference.

18.Consequently, this petition, being devoid of merit, is dismissed in limine.

Announced

(Ghafoor Zaman)

JUDGE

6l l{' (S.B.) Hon'bte Mr. Justicc Muhammrd Tariq Afridi