Muhammad Hamayub etc Vs Ajlal Saeed Khan etc

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JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT

ABBOTTABAD BEI{CH

(ludicial Department) C. R No. 522- N20ll

Muhummad Hamayun & others, (Petitioner/s)

VS

Ajlal Soeed Khan & others.

(Respondent)

Present Mr. Zahid Mehmood Qureshi, Advocate, for the petitioners.

Qazi Uboid-ur-Rehman, Advocate, for respondents.

Dates of hearing: 11.09.2023

JUDGMENT

MUHAMMAD IJAZ KHAN. J.- Through the instant civil revision petition, petitioners have challenged the judgment 8. decree dated 04.06.2011 of learned Additional District Judge-V, Abbottabad, who vide the salre has accepted appeal of respondents No. I to 4 and decreed their suit and thereby set aside the judgment and decree of learned trial court dated 15.12.2010, who vide the o\t same had dismissed the suit of re spondents/p lainti ffs

2.Precisely the facts of the case leading to the filing of the instant civil revision petition are 'Iahir Saleem (S.B.) Hon'ble Mr. Justice Muhammad Ijaz Khan

that respondents No. I to 4 filed a suit for declaration to the effect they are owner of suit property the detail of which is fully mentioned in the heading of the plaint and that defendants No. I to t have no right to interfere with the same. They have also challenged the authenticity and genuineness of a power of attorney dated 07.08.2008 allegedly executed on their behalf in favour of defendant No. I namely Qazi Jamil Ahmad being a fake and fictitious and thus all the registered deeds as mentioned in the heading of the plaint which were executed on the basis of aforesaid power of attorney are also ineffective upon their rights.

3.The petitioners along with other defendants were summoned and thereby defendant No. 1 and defendants No. 2 to 9 submitted their written statements in two sets. Another suit was also filed by defendant No. 1, Qazi Jamil Ahmad against the respondent No. I to 4, however, the ,,Y present petitioners were not party in the subsequent suit but these suits were consolidated and as many as six consolidated issues were framed and thereafter the respondents/plaintiffs produced their Tahir Saleern (S.8.) Hon'ble Mr. Justice Muhammad Ijaz Khan

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witnesses, whereas, petitioners/defendants did not produce their evidence as in the middle of plaintiffs' evidence their counsel withdrew his power of attorney and the learned trial court neither personally summon them nor placed them ex-parte and on the available evidence dismissed the suit of respondents/plaintiffs vide judgment and decree dated 12.05.2010. The respondents/plaintiffs being aggrieved of the aforesaid judgment and decree preferred an appeal before the learned Additional District Judge-V, Abbottabad, who vide the impugned judgment and decree dated 04.06.2011 accepted the same and thereby decreed the suit of respondents/plaintiffs which judgement and decree has now been challenged by the petitioners before this court.

4.Arguments of learned counsel for both the parties were heard in considerable detail and the record perused with their able assistance.

V 5. The record would indicate that the present petitioners, who were defendants No. 3 to 6 in the main suit along with respondents No. 5 to 9 had filed a joint written statement through their duly engaged counsel. The record further indicates Tahir Saleem (S.8.) Hon'ble Mr. Justice Ntuhammad Ijaz Khan

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that they were duly represented by the said counsel, however, it was on 10.07.2010 when the learned counsel representing them withdrew his power of attorney and thereafter the leamed trial court has not bothered to issue notices to the petitioners for their personal appearance and has proceeded with the trial and has also finally decided the said lis which act and omission on the part of learned trial court goes along way to deprive the present petitioners of their fundamental right of the due process of law.

6.The record further indicates that respondents/plaintiffs have produced as many as six witnesses as PW-01 to PW-06 and the learned counsel of the petitioner when by then he has not withdrawn his power of attorney has also cross examined four plaintiffs' witnesses i.e. PW-O1 to PW-04, however, no opportunity of cross fr/ examination has been provided to the petitioners for the cross examination of PW-05 Petvez Iqbal Patwari Halqa and PW-06 Ahmad Masood Khan as the cross examination of these witnesses has been shown as "relgfysd"

Tahir Saleent (S.8.) Hon'ble Mr. Justice Muhammad Ijaz Khan

7 During the course of arguments learned counsel for respondents/plaintiffs was confronted time and again that as to whether the learned trial court after withdrawal of the power of attomey of petitioners' counsel has personally summon the petitioners or not and as to when the learned trial court has placed them ex-parte, however, he was unable to pin point any such order sheet where the learned trial court has issued any notice for the personal attendance of the petitioners after withdrawal of power of attomey by their counsel on 10.07.2010. Similarly, he also failed to show any order after 10.07.2010 whereby they have been placed as ex-parte, therefore, in such state of affairs an illegality committed by the leamed trial court goes along way to defeat the concept of due process of law as guaranteed under Article l0-A of the Constitution of Pakistan and other laws of the land. It is settled since long that where once counsel v representing the party withdraw his power of attorney then in such state of affairs the court has to personally summon the party who is represented by that counsel and failure on the part of the court would be fatal. In case titled "United Bank Limited vs. Mian ul Hussuin" reported as !22!! Tahir Saleem (S.8.) Hon'ble NIr, Justicc Muhamnrad Ijaz Khan

CLC 179 wherein it has been held that where a counsel withdrew his power of attorney then a proper course for the court of law is to inform the party to make arrangement for engaging another counsel and in case of absence of any such order, the ex-parte judgment could not legally sustain.

8.As far as the judgment of the appellate court dated 04.06.2011 is concerned the same too is completely silent about the aforesaid illegality committed by the learned trial court as he without touching this aspect of the case has drawn his own presumption and has decided the appeal in a routine manner without caring that the present petitioners were not provided an opportunity to cross examine the remaining witnesses of the respondents/ plaintiffs and also to produce their own evidence, therefore, the judgment and decree of the appellate court too is not legally sustainable.

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g. The aforesaid admitted aspect of this case would show that the petitioners have suffered because of the apparent omission of the learned trial court which omission has seriously caused prejudice to their case. It is settled since long that no person shall be suffered for the act or omission Tahir Saleem (S.8.) Hon'ble Mr' Justice Muhammad Ijaz Khan

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of the Courl or public functionaries. In the case of "Mian Muhammad a Adil v/s Mian

Muhsmmod Lutfi" reported as 2005 SCMR 720 tl was held by the Apex Court that in the present case, trial Court acting in good faith and being unmindful of the provisions of law proceeded to concede to the prayer of the respondent and allowed him to invest the amount in the purchase of a Defence Savings Certificate and to deposit the same in Court before the last date fixed by the Court.

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may not be sustainable but be

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Court. Indeed, he cannot be saddled with the responsibility of passing of a defective or erroneous order on the part of the trial Court, as it is well- settled that no son shall er for the act or om$s of the and the of Court s I not

hfl pre-iudice aryt one. SimilarlY, in the case of "Mst' Ruzia lafar & others v/s Govt: of Baluchistan & others" reported as 2007 SCMR 1256 it was held by held by the Hon'ble Apex Court that it is the duty and obligation of the public functionaries to decide the controversy between the parties after application of mind. It is a settled maxim that Tahir Saleem (S.B.) Hon'ble Mr. Justice Muhammad Ijaz Khan

nobody shall be prejudiced by the act of the Court or act of the public functionaries. In the case titled (( an and Khan vs. Akram

14 others" reoorted as 1993 SCMR 434 the Hon'ble Apex Court has held that acts or omissions of courl do not injure a litigant.

10.Even otherwise it is also settled law since long that the court of law shall decide the lis on merit by providing a level field to both the parties for a conclusive adjudication of the dispute between the parties and the court must avoid to adjudicate the causes on technicalities by adopting shortcut ways and they should always go to decide the case on merit so that the controversy between the parties is decided once for all. In the case of "Zoho or Ahmed vs. ru thro Lesal effs and o thers" reported as 1999 SCMR 105, the Apex Court has held that law favours decision on merits rather than on technicalities unless the party is guilty of gross negligence.

11.ln view of the above discussion and exposition of law on the subject, the judgements and decrees of both the two courts below respectively dated 04.06.2011 and 15'12'2010 are Tahir Saleem (S'B') Hon'ble Mr' Justice Muhammad ljaz Khan

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set aside and this case is remanded back to the learned trial court who shall provide an opportunity to the respondents/plaintiffs to complete their evidence as well as to provide an opportunity to the petitioners/defendants to cross examine the remaining witnesses and it shall also provide an opportunity to the petitioners to produce their evidence in support of their written statement and thereafter the learned trial court shall pass an appropriate judgment and decree keeping in view the evidence so adduced by the parties.

Announced t1 tt.09.2023

JUDGE

Tahir Saleem (S.8.) Hon'ble Mr. Justice Nluhammad ljaz Khan