Said Ali Vs Noor Ali

Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Writ Petition No.1613-P/2014 Said Ali & others vs. Noor Ali & others Date of hearing. 14.10.2020

Mr. Muhammad Ijaz Khan Sabi, Advocate for the petitioners.

Mr. Abdul Hafeez, Advocate for respondents.

JUDGMENT

MUHAMMAD NAEEM ANWAR, J. Through the petition in hand, the petitioners have assailed the order dated 23.04.2014 of the learned Additional District Judge, Takht Bhai, by which, the revision petition, filed by the respondents No.1 & 2, was accepted and the order of the executing court dated 26.11.2012, was set aside, consequently the objection petition was dismissed.

2.Succinctly facts of the matter are that respondent No.1, filed a suit No.285/1 against the petitioners No.1 to 4 and respondent No.2, for recovery of possession of the house, which, was properly described in heading of the plaint, on the plea that he is owner of the house in question. The petitioners No.1 to 4 and respondent No.2 are the

sons of respondent No.1 / plaintiff. They were charged by the respondent No.1 / plaintiff for committing the offence under Section 324 /34 PPC for which an FIR No.105 dated 06.02.2006, was lodged in Police Station, Lond Khwar, in which, a compromise was effected on 25.02.2006 whereby it was settled that the petitioners and respondent No.2 would pay the monthly rent of the house to respondent No.1, at the rate of Rs.5000/- per month and their possession would be that of tenant, however, in case of default of payment of monthly rent, they would be liable for ejectment, allegedly the petitioners and respondent No.2 have committed default, hence, they were sued. The suit was contested by the petitioners No.1 & 2 through their separate written statements. Later-on, the petitioners absented themselves and exparte proceedings were initiated against them. It was 26.11.2018, when Wahid Ali, petitioner No.2 in person and as attorney for rest of the petitioners, appeared before the learned Trial Court, where his statement was recorded, vide which, he produced the compromise deed (Ex.PB) and shown his no objection on decreeing the suit in favour of plaintiff / respondent No.2. After conclusion of exparte trial and recording

of the statement of PW-2, an exparte decree, as per compromise and exparte evidence was passed in favour of respondent No.1 on 07.07.2009.

3.In pursuance of decree, respondent No.1 has filed an application for execution of the decree, in which, the petitioners have submitted a objection petition, by contending therein that the suit was decreed on the basis of Ex.PB wherein it was settled that respondent No.1 would transfer 05-Jerib property to the mother and sisters of the objector but the said condition was not fulfilled by him. With a further assertion that suit being decreed on the basis of Ex.PB, as such, the decree holder is not entitled for recovery of possession. The objection petition was resisted through written reply however, the same was accepted on 26.11.2012.

4.The order of the learned executing Court was assailed before the revisional Court, through civil appeal No.5/CR, which was allowed and objection petition of the petitioners No.1 & 2 was turned down, hence, this petition.

5.In essence, the grievance of the petitioners / objectors was that the suit of respondent No.1 was decreed, on the basis of Ex.PB, and the decree shall be executed to the extent of terms and conditions

settled therein, however, by no stretch of imagination, decree could be extended to recovery of possession. It was also embedded in the objection petition that 05-Jerib property would be given to the mother and sisters of the petitioners, which was yet to be executed.

6.The only question requiring determination from this Court was as to whether there is a decree for possession or not ? Perusal of record reveals that the statement of Wahid Ali, petitioner No.2 was recorded before the learned Trial Court on 16.11.2008, which for the ready reference is reproduced as under: -

“Stated that I am attorney for the deft No.1 and 3 and my power of attorney is Ex.PA. We have patched with the pltff and we have got no objection, if the Hon’ble Court passed decree in favour of the pltff against the present defdts. The compromise deed is Ex.PB. I am also attorney for defdt No.1 and my power of attorney is Ex.PC. The photo copy is Ex.PD”.

7.It was 07.07.2009 when the suit of respondent No.1 was decreed, the operative part of the order, is reproduced as under: - “As such pltffs proved their case successfully, so the suit of pltff is hereby ex-parte decree in favour of the pltff against the defdts as per compromise and ex-parte evidence.

File be consigned to SRR, Mardan.

Announced.

-sd- (Abid Zaman) Civil Judge-I, Takht Bhai

8.The order of the learned Trial Court is open only to one interpretation, self speaking, lucid in manner, manifesting that the suit pending before the learned Trial Court was decreed, for recovery of possession of the house in question alongwith settlement (Ex.PB). Had the suit been decreed on the basis of (EX.PB) only, the same would have been reflected in the order but, as, the suit was decreed as per compromise and exparte evidence, therefore, the prayer of the plaint would be the paramount consideration, wherein, the recovery of possession was sought. The contention of the petitioners that decree confines only to (Ex.PB), carries no weight The petitioners questioned that the learned executing Court could not issue warrant of possession, as, no decree was passed in favour of decree holder, for the recovery of possession of the house, as the same was not embedded in (Ex.PB).

9.No doubt, the executing Court would follow the decree and in no circumstance the learned executing Court could go beyond the decree, likewise, decree cannot be interpreted as per the whims and wishes of the decree holder or judgment debtor. The term judgment and decree has properly been demonstrated / explained by the Hon’ble

Lahore High Court in case titled “Abdul Hameed and 7 others versus Abdul Razzaq and 3 others” reported in (PLD 2008 Lahore 1), wherein it was held that: - “A judgment is not a jigsaw puzzle or a guessing game or a riddle to be solved by mind joggling exercises. Standard judgments are error free, concise, consistent, coherent and comprehensible irrespective of the stylistic differences. Principles, parameters and requirements of a judgment are:

(i)judgment should' contain a concise statement of case, points for determination, decision thereon and reasons for such decision manifesting application of mind by the Judge to resolve the issues involved;

(ii)it ought to be self-contained, unambiguous, easily intelligible, lucid, open only to one interpretation and thus leaving nothing to guess work or probabilities on matters under determination;

(iii)it should be self-speaking, well-reasoned and analytical reflecting due consideration of facts, law and contentions of the parties;

(iv)it should be founded on legal grounds and the evidence on record”.

10.The powers of the executing Court have been settled down by the Apex Court in case titled “Chaudry Ahmad Nawaz versus Province of Punjab & others” (2015 SCMR 873), wherein it was observed that the executing Court would have to execute the decree and cannot go beyond that.

Similarly, Irshad Masih’s case (2014 SCMR 1481) wherein it was held that:

“For this purpose, there is plethora of case-law on the legal point that the executing Court, under no circumstances can go beyond the decree. In the instant case, as discussed

above, the execution application was filed by the petitioners on 15-6-1998 in terms of the prayer reproduced above, in respect of the judgment dated 20-1-1969, wherein the claim of the petitioners predecessor was firstly turned down by the Civil Court and finally maintained by this Court in terms of paragraph No.9 of its judgment dated 18-6-1995, and their appeal was accordingly dismissed, being devoid of merits”.

Reliance can also be placed on 2004 CLC 1449, PLD 2005 Lahore 209, 2000 YLR 1798, 1994 MLD 1877, 1989 MLD 3602, PLD 1968 Lahore 144, 2012

CLC 241.

11.In addition to the above, Ex.PB, statement of petitioner No.2, the contents of the plaint and the order of the learned Trial Court, if seen in juxtaposition, would lead to a definite conclusion that the learned Trial Court has passed a decree not only to the extent of Ex.PB but also recovery of possession. The order of the learned executing Court is consonance with the judgment / order of the learned Trial Court dated 07.07.2009. The learned executing Court has rightly issued warrant of possession against the judgment debtor.

12.Needless to mention that the terms and conditions of Ex.PB could be got executed in whose favour it may be, amongst the parties, the same shall be executed in its letter and spirit, which could be

pressed into service by the decree holder or by the judgment debtor.

13.For the reasons stated above, the instant petition stands dismissed leaving the parties to bear their own costs.

Announced:

JUDGE

Himayat, CS