M.Afzal etc Vs Haq Nawaz etc

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JUDGMENT SHEET

PESHAWAR HIGH COURT ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

C. R. No.239-Al2008.

JUDG MENT

Date of hearing 27.09.2017.

Appellant / petitioner (Muhammad Afzal and others) by Haji Ghulam Basit, Advocate.

Respondent (Haq Nawaz and others) by Mr. Abdul Haleem Awan, Advocate.

SYED ARSHAD ALI. J.- Mst. Razia Be gum (deceased) plaintiff filed a suit for declaration that she is owner in possession of the suit property vide unregistered deed dated 21.09.1944. Defendants contested the suit by filing their written statements. Defendant No.1, not only denied the existence/validity of the aforesaid deed but has further claimed that his father Muhammad Asghar Khan has gifted him 2f3'd share in the suit property vide gift deed dated 25.07.1979. He further stated that his deceased father has distributed all his property among his legal heirs. The facts of the case are that Muhammad / Asghar Khan had two wives first namely Mst. Razia

Begum and second namely Mst. Afsar Jan. Mst. Razia Begum has three sons namely Muhammad Afzal Khan, Muhammad Nawaz Khan, Rabnawaz Khan and one daughter Zakia Begum, whereas Mst. Afsar Jan had seven offspring Tahira, Yasmin Bibi, Shahida Bibi, Rashida Bibi, Shamim Akhtar, Sarfaraz Khan and Haqnawaz Khan. From the divergent pleadings of the parties, the learned trial Court had framed the following rssues:-

t. Whether the plaintiff has got a cause of action?

2.Whether plaintiff is stopped to sue?

3.Whether suit is incompetent in its present form?

4.Whether the suit is bad for mis-joinder and non-jonider of parties?

5.Whether suit is frivolous and vexatious, hence, based on malafide?

6.Whether plaint is liable to be rejected U/O Vll Rule 11 CPC?

7.Whether the suit is within time?

8.Whether deceased Muhammad Asghar Khan was owner of the entire suit property in the year 1944?

9.Whether deceased Muhammad Asghar Khan sold the entire suit house to plaintiff vide sale deed dated 27.9.44?

10.Whether suit house was transferred by deceased Muhammad Asghar Khan to defendant No.1 2/3'd share and Mst. Afsar Jan predecessor in interest of defendants 1/3'd share vide transfer deeds both dated 1.1. Relief.

2 Both the parties produced their respective evidence in support of their contentiog After recording evidence of the parties, the learned trial Court upheld the deed dated 21.09.1944 whereby Mst. Razia Begym (plaintiff) had purchased the suit property from her husband in lieu of Rs.99/-. The learned trial Court, however, disbelieved the gift deed dated 21 .07.!979 in favour of Haq Nawaz defendant No.j.. Accordingly the learned trial Court was pleased to decree the suit in favour of plaintiff against the defendants vide judgment and decree dated 28.09.2007. The defendants preferred an appeal before learned appellate Court. The learned appellate Court while reversing the judgment and decree of learned trial Court has held that since the attorney of plaintiff did not record his statement on Oath, therefore, has rejected the deed dated 2L.09.1944 vide judgment and decree dated 25.08.2008.

3 Arguments heard and record perused.

4 Perusal of record reveals that learned 4' appellate Court while discarding the evidence of attorney of plaintiff not being recorded on Oath has

relied upon of the judgment of Honourable Lahore Court titled r Ah ed rsus s trict Cou thro uoh trmo Dis Coun 5o dho YL tn

the said judgment the Honourable High Court has held that in Para 7 as under:-

"7. Without odverting to the contentions of the learned counsel of the porties, I intend to decide the oppeol on the ground that the evidence of the porties wos not recorded by the triol Court on oath os prescribed by this Court, therefore, evidence recorded by the trial Court is irrelevont and is not odmissible in evidence. ln arriving to this conclusion, I om fortified by the law loid down by this Court in Jaffor Ali v. Muhommad Tufail (L991 MLD 4B). The relevont observotion is os follows:-

"l hove considered the motter carefully. I feel persuoded to ogree with the learned counsel for the petitioner. I find thot the judgment ond decree dqted 15-10-1989 of the Appellote Court is solely bosed on the stotement of Muhommod Amin recorded by it on solemn offirmotion on L5-L0-1989. Since not only the omendment hod already been mode in the relevont provisions of Ooths Act but oath hod olso been prescribed by the High Court, therefore, the leorned District Judge could not hove /" recorded the statement of Muhommod Amin on solemn affirmotion. There remoins no doubt

thot the stotement of Muhammad Amin recorded by the learned District Judge on 15-10-1989 is irrelevant ond inodmissible and os such could not have been mode bosis of the impugned judgment ond decree.

Pursuont to the obove discussion, the revision is occepted. The judgment ond decree of the leorned District Judge doted 15-10-1989 is set aside ond the cose is sent bock to him for fresh decision of appeol in occordonce with low ofter providing the parties opportunity of being heard, leoving the porties to beor their own costs. " The oforesoid, proposition of low is olso supported by the following judgments:--

Michael Maseeh's cose (1993 MLD s2s).

Tariq Parvez's cose (1992 PCr.U 955).

Muhommod Bakhsh's cose (PLD 7956 sc 420).

Abdul Rehmon's cose (1988 PCr.U 5 However, the learned appellate Court has given no findings regarding the validity of the gift deed dated 25.07.1979. The learned appellate Court was under obligation to render findings after determination y'' of important points involved in the case. Hence, material

issue regarding the validity of the gift deed has remained unattended before the learned appellate Court.

6 ln the circumstances when the learned appellate Court has failed to formulate points of determination regarding all issues arising out of the impugned judgment and decree before him. The law mandates that case be remanded to the appellate Court for decision afresh. However, in the present case when the learned appellate Court has disbelieved the statement of attorney of plaintiff for the reasons that he was not administered Oath in such circumstances the best way is to remand the case to the learned trial Court for recording the evidence of attorney of plaintiff on Oath.

7 lndeed it is certain principle of law that no one should be prejudiced for the acts and omissions of the Court. lt is the Presiding Officer of the Court to administer Oath to the witness. The learned appellate Court while relying on the judgment supra had disbelieved the evidence of attorney of plaintiff and /o dismissed the suit whereas ratio of the Nazir case is as stated above to remand the case to the learned trial

Court after recording statement of witness on Oath.

Similarly in Obaidullah Khon Versus umer Hovot Khqn ond others 2077 YLR 7237 peshawort in para I has held that:-

"7. I would confine to the second point roised by counsel for the petitioner i.e. administering Oath to the defendants witnesses. lt is an odmitted foct thqt the stotements of defendants witnesses hove been recorded without Ooth. As per counsel of the petitioner the entire proceedings ore not in qccordonce with law, therefore, the case is lioble to be remonded bock to the triol Court to record the defence evidence on Ooth. The issue is covered under section 5 of Oaths Act, 1873 which is reproduced below:- "(S)Ooths or offirmotion to be mode by witnesses interpreters; jurors. Oath or affirmation sholl be mode by the following persons:-

(o)all witnesses, thot is to say, all persons who mqy lowfully be exomined, or give, or be required to give, evidence by or before ony Court or persons hoving by law or consent of porties authority to exomine such persons or to receive evidence;"

8 Hence in view of the above, remanding the /, case to the learned appellate Court would serve no useful purpose as ultimately the case is to be remanded

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to the learned trial Court for recording evidence of attorney of plaintiff on Oath.

9 ln view of the above, this revision petition is accepted and the impugned judgment and decree is set and the case is remanded to the learned trial Court with direction to administer Oath to the attorney of plaintiff and record his statement and the case shall be decided on its merits. This being old case, therefore, the learned trial Court shall preferably decide the case within a period of three months from the receipt of this judgment.

ANNOUNCED

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JT'DGE

Aftab P.S/* Justice Syed Arshad Ali