2024 S C M R 1390
[Supreme Court of Pakistan]
Present: Qazi Faez Isa, CJ, Irfan Saadat Khan and Naeem Akhtar Afghan, JJ
MUHAMMAD ASLAM (deceased) through L.Rs. and another---Appellants
Versus
Molvi MUHAMMAD ISHAQ (deceased) through L.Rs. and others---Respondents
Civil Appeals Nos. 1429 to 1433 of 2014, decided on 3rd June, 2024.
(Against the judgment dated 27.3.2014 passed by the Peshawar High Court, Abbottabad Bench in C. Rs. Nos. 342-A, 341-A of 2009 and C.M. Petition No.234-A of 2014).
(a) Qanun-e-Shahadat (10 of 1984)---
----Art. 91---Judicial proceedings---Presumption as to documents produced as record of evidence---Scope---Possession of land delivered after parties entering into a compromise before the High Court---Compromise, legitimacy of---Assertion of attorney of the (late) defendant that he had neither entered into a compromise nor had appeared before a Court of law was nothing but an after thought on his part---Said attorney had admitted that it was he who had been hiring the counsel right from the Trial Court to the Supreme Court, as an attorney on behalf of the defendant, but stated that he had never asked from those counsel, appointed by him, about the fate of those matters, which appeared to be an unbelievable story---When the attorney was asked by the Trial Court regarding the whereabouts of the original Power of Attorney, he stated that he had no knowledge about the same but strangely enough submitted that the signatures on the photocopy of the Power of Attorney, produced as secondary evidence before the trial Court, were not his, which, created heavy doubts about the veracity of the statements made by him---It was also strange to note that the defendant passed away in the year 1988, whereas the compromise was entered in the year 1979, and he never uttered a single word during his lifetime either with regard to the veracity of the compromise entered by his attorney before the Court or with regard to the genuineness of the Power of Attorney given by him in his lifetime to the attorney and it was only after his death that his legal heirs filed the applications under section 12(2), C.P.C. questioning the compromise or lesser payment of Zar-e-Shufa by agitating that the decree obtained by the (late) appellant/plaintiff was by way of fraud or misrepresentation---It was also strange on the part of the legal heirs of the defendant or for that matter his brother, that they kept mum for a number of years i.e. 1979 to 1987 and, thereafter, agitated the matter either by filing of a suit for possession or through applications under section 12(2), C.P.C. claiming possession over suit land without realizing that the matter with regard to possession and ownership of the land comprising part of the suit land had already been laid to rest in an earlier round of litigation---Appellants were successful in showing that the findings arrived at by the fora below were erroneous, especially in view of the sanctity attached to the compromise entered before a Judge of the High Court---Appeals were allowed and respondents were restrained from interfering and dispossessing the appellants from the suit land or any building constructed by them on such land.
Muhammad Ramzan v. Lahore Development Authority, Lahore 2002 SCMR 1336; Fayyaz Hussain v. Akbar Hussain 2004 SCMR 964; Waqar Jalal Ansari v. National Bank of Pakistan 2008 SCMR 1611 and Abdul Aziz v. Abdul Hameed 2022 SCMR 482 ref.
(b) Appeal---
----If an Order of the lower Court merges in the order of the higher Court, the order of the lower Court is to be deemed as an order of the higher Court.
Sahabzadi Maharunisa v. Ghulam Sughran PLD 2016 SC 358 and Bashir Ahmed Badini v. Chairman and Member of Administration Committee and Promotion Committee of High Court of Balochistan 2022 SCMR 448 ref.
(c) Civil Procedure Code (V of 1908)---
----S. 12(2)---Limitation Act (IX of 1908), First Sched., Art. 181---Application under section 12(2), C.P.C., filing of---Limitation---In the present case applications under section 12(2), C.P.C. were filed in the year 1990, i.e. after almost 11 years of the compromise between the parties before the Court---Though it was averred that these applications were filed after the entries of jamabandi made in 1987 and hence were in time, but it was equally true that in those applications the main question agitated on behalf of the respondents was with regard to the entering into the compromise in a defective manner and thereafter, obtaining the decree by way of fraud or misrepresentation by the present appellants---Under the provisions of the Limitation Act, 1908 no specific time has been prescribed for filing of application under section 12(2), C.P.C., therefore, Article 181 of Limitation Act, 1908 being residuary will govern such proceedings according to which maximum period of three years has been prescribed for filing the application under section 12(2), C.P.C.---Therefore, even in a hypothetical sense, if one were to count the period of limitation from the year 1987, the applications under section 12(2), C.P.C. were time-barred---In the instant matter, the respondents were fully aware about the date and facts of the compromise entered between the parties in 1979 but filed the applications under section 12(2), C.P.C. only in the year 1990---Appeals were allowed and the applications under section 12(2), C.P.C. against the appellants were found to be bereft of any merits.
Sarfraz v. Muhammad Aslam Khan 2001 SCMR 1062 and Bashir Ahmed v. Muhammad Hussain PLD 2019 SC 504 ref.
(d) Administration of justice---
----No one should suffer on account of a lapse on the part of a Court.
Abid Jan v. Ministry of Defence 2023 SCMR 1451; General Retd. Pervez Musharraf v. Federation of Pakistan 2024 SCMR 60 and Faqir Muhammad v. Khursheed Bibi 2024 SCMR 107 ref.
(e) Constitution of Pakistan---
----Art. 185---Appeal before the Supreme Court---Concurrent findings of lower courts, interference in---Scope---Usually concurrent findings of the lower Courts are not to be disturbed and interfered with, but in cases where such findings are found to be erroneous and perverse, they are liable to be struck down if based on misreading or non-reading of the material available on the record or the evidence and are a result of miscarriage of justice.
Sardar Ali Khan v. State Bank of Pakistan 2022 SCMR 1454; Muhammad Rashid Ahmed v. Muhammad Siddique PLD 2002 SC 293; Abdul Sattar v. Mst. Anar Bibi 2007 SC 609; United Bank Limited v. Tamil Ahmed 2024 SCMR 164; Brig. R Sher Afghan v. Mst. Sheeren Tahira 2010 SCMR 786; Nabi Bakhsh v. Fazal Hussain 2008 SCMR 1454 and Mst. Kulsoom Bibi v. Muhammad Arif 2005 SCMR 135 ref.
Saad Umar Buttar, Advocate Supreme Court and Sh. Mahmood Ahmad, Advocate-on-Record for Appellants (in all cases)
Barrister Umer Aslam Khan, Advocate Supreme Court for Respondents (in all cases).
Thank you
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