PLJ 2006 SC (AJK) 81
[Appellate Jurisdiction]
Present: Khawaja Muhammad Saeed, C.J & Khawaja Shahad
Ahmad, J.
Raja MUHAMMAD AKRAM KHAN--Petitioner
versus
AZAD GOVERNMENT and others--Respondents
C. Misc. No. 52 of 2002, decided on 25.11.2005.
(Application under Order XLIII Rules 4 & 5 of the
Supreme Court Rules, 1978).
(i)
Azad Jammu and
----O. XLIII, Rr. 4 & 5--Judgment of
Supreme Court assailed under inherent powers of the Court--Impugned judgment
was passed on 25.6.1998 and application under inherent powers to assail the
same has been filed on 22.8.2002 after about four years--Law lulls a person who
sleeps over his right--Courts must not exercise their inherent power in favour
of such person--Present petition can only be allowed if present bench differs
with finding of facts recorded by the Supreme Court in impugned judgment--Fact
that relevant lady died in 1990 and not in 1978, cannot be considered on basis
of document which have been attached with present application as such documents
could be produced in Supreme Court when matter was pending before the Court but
the same were not produced--Judgment of Supreme Court cannot be altered on the
ground that certain new documents have been placed with present application to
dispute date of death of relevant lady--Same is the case of other
facts--Petitioner in fact desires Court to consider fresh evidence about
contain points of facts which cannot be allowed. [P. 86] A
(ii)
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Azad Jammu and Kashmir Supreme
Court Rules 1978, O. XLIII, Rr. 4 & 5--Petitioner's remedy available in
another forum--Remedy--Petitioner pleads his right on basis of agreement to
sell which does not create complete ownership for purchase and remains subject
to some further performance under Transfer of Property Act, 1882 read with
Specific Relief Act, 1877--Petitioner has remedy to sue person concerned and
get back consideration amount which he alleges to have paid to his
vendor--Petitioner's application to alter judgment in question was thus, not maintainable
and while dismissing the same, impugned judgment of Supreme Court, was declared
to be based on facts and no justification was pointed out to allow petitioner's
application for alteration of the same. [P.
87] B
2005 SCMR 134; 1992 SCR 94; 1995 SCR 216 &
PLD 1990 SC (AJ&K) 23, ref.
Mr. Bastan Chaudhry, Advocate for
Petitioner.
Mr. Muhammad Yasin Tahir & Mian
Muhammad Saeed, Advocates for Respondents.
Date of hearing : 28.10.2005.
Order
Khawaja Shahad Ahmed, J.--The instant
application under Order XLIII Rules 4 and 5 of the Supreme Court Rules, 1978
has been filed by Raja Muhammad Akram Khan petitioner herein through his
counsel, wherein he has prayed that the observations made by this Court in
respect of ownership of Respondent No. 7 be omitted and in the alternate the
petitioner be allowed to seek the requisite relief from the High Court. The
learned counsel for the parties addressed their respective arguments on
28.10.2005 and in view of the fact that the record of this Court and the lower
Courts in the case titled Ch. Talib Hussain and others v. Azad Government and
others (Writ Petition No. 66/2002 decided on 4.10.2002), Mehboob Alam v. MDA
and others (Writ Petition No. 112/1995 decided on 18.11.1997) and Allah Ditta
v. Mehboob Alam (Civil Appeal No. 11 of 1998 decided on 25.6.1998) were to be
examined it was felt proper to reserve the judgment.
2.
The facts of the case, as have been placed before this Court in writing
by the petitioner and addressed at bar by his counsel, are that Plot No. 32-H
measuring 4 marlas 214 sq. ft, situated in Sector C-1, Mirpur city was allotted
to one Mst. Zainab Bibi in lieu of Plot No. 157-J, Sector C-4 Mirpur on
12.1.1975 by the Mirpur Development Authority. This plot was transferred to
Saeed Ahmed proforma-respondent by one Fazal Karim as attorney of Mst. Zainab
Bibi. Saeed Ahmad also sold this plot to proforma-respondent Riaz Qureshi who
also sold it to late Allah Ditta. Since Allah Ditta has died, his legal
representatives have been arrayed as proforma-respondents Nos. 13 to 20. It is
alleged by the petitioner that deceased Allah Ditta during his life time
transferred the said Plot No. 32-H to the petitioner for a consideration of
rupees three lac through an agreement-to-sell dated 29.12.1996 which was
registered on the same day and the possession of the plot was also transferred
to the petitioner who alleges to be in continuous possession of the said plot.
It has been contended that Mst. Zainab Bibi, the original allottee, died on
30.7.1991. It has also been alleged in the application that Mehboob Alam who
has been arrayed as Respondent No. 7 is claiming the ownership of this Plot No.
32-H and has collected some material for construction over the said plot. The
petitioner filed a writ petition in the High Court on 30.7.2002 alongwith an
application for grant of stay order which was allowed.
3.
This Court by its judgment dated 25.6.1998 in Civil Appeal No. 11 of
1998 titled Allah Ditta and 5 others vs. Mehboob Alam dismissed the appeal of
Allah Ditta deceased and approved the judgment of the High Court dated
18.11.1997. In that case respondent Mehboob Alam filed a writ Petition No. 12
of 1995 claiming therein that he was allottee of land measuring 10 marlas
comprising Survey No. 1184 on the ground that the said land was in his
possession which was illegally allotted to Mst. Zainab Bibi as the said land
was never acquired by the Mirpur Development Authority. He also pleaded that
the allotment made in favour of Mst. Zainab Bibi was ordered by the Allotment
Committee in the year 1975 which allotment, alongwith many other allotments,
was cancelled by a Government Notification and the Revising Authority did not
restore the allotment of Mst. Zainab Bibi and his case was dismissed in
default, therefore, the fact that the said land under Survey No. 1184 which was
illegally marked as Plot No. 32-H is incorrect narration and Fazal Karim the
attorney of Mst. Zainab Bibi could not transfer the said plot to Saeed Ahmed
who further transferred the said plot in favour of Riaz Qureshi who is
Respondent No. 12 before this Court in the instant case. The writ petition was
accepted and an appeal to this Court was dismissed. The argument which mainly
prevailed with this Court was that according to the record Mst. Zainab Bibi had
died on 27.7.1978, therefore, transfer of plot to Saeed Ahmad by Fazal Karim
attorney on 5.9.1987 was fictitious and even if the power of attorney had been
validly executed by Mst. Zainab Bibi the same stood revoked after her death in
the year 1978, therefore, on 5.9.1987 when the plot was transferred to Saeed
Ahmad, Fazal Karim had ceased to be the attorney of Mst. Zainab Bibi deceased.
It was also held by this Court that the High Court had rightly relied on a
judgment of Sub-Judge Mirpur that allotment of Mst. Zainab Bibi was not
restored by the Revising Authority and that the disputed land or plot was not
acquired by the Mirpur Development Authority. The allotment and transfers
affected subsequently were of no legal consequence. A further contention of
Allah Ditta that he purchased this land from Riaz Qureshi for a consideration
of rupees three lac was also repelled by relying on the argument of Ch.
Muhammad Reaz Alam, who represented Mehboob Alam Respondent No. 1 in the
previous round of litigation in this Court, on the ground that the suit land
which was initially gifted to Saeed Ahmad by Fazal Karim was executed by the
said Fazal Karim as attorney of Mst. Zainab Bibi deceased who had died on
27.7.1978. In this respect reliance was also placed on the evidence which was
produced in a civil suit filed by Fazal Karim in the year 1990 long after the
death of Mst. Zainab Bibi. The judgment of this Court reveals that a decree was
also passed in favour of Mehboob Alam Respondent No. 7. Precisely the finding
recorded by this Court in the last para of the judgment dated 25.8.1998 is that
"Mst. Zainab Bibi died in the year 1978 whereas the land/plot was gifted
away to Saeed Ahmad by Fazal Karim as attorney of Mst. Zainab Bibi in the year
1990 which was declared as illegal in the eye of law. The decree of the
4.
The finding recorded by this Court has been challenged by the petitioner
herein on the ground that he was never arrayed as a party in the High Court or
in this Court in previous round of proceedings. He also submitted, as has
earlier been mentioned, that he purchased this land from late Allah Ditta
through an agreement-to-sell and has arrayed Mehboob Alam as a party in the
writ petition filed in the High Court. The said Mehboob Alam was fully aware of
the fact that the plot in dispute was sold out to the petitioner but in his
writ petition he deliberately did not array the present petitioner as a party.
He has contended that there is sufficient documentary record which proves that
the land measuring 10 marlas under Survey No. 1184-min was acquired by the
Mirpur Development Authority and converted into a plot. In the estimation of
the petitioner and his counsel Respondent No. 7 by keeping away the petitioner
has manoeuvred the judgment in his favour. In his estimation the judgment of
the Supreme Court is against the record and documentary evidence. He seeks
relief under inherent powers of this Court as he being bonafide purchaser of
the disputed plot, has a palpable right to invoke the inherent powers of this
Court.
5.
On the other hand, the learned counsel appearing for the respondents
have repeated almost the same arguments which were addressed by them in the
previous round of litigation. The written objections which have been filed by
them in this Court contain legal objections as well which precisely are that
the instant application is not maintainable and that the judgment of this Court
dated 25.6.1998 cannot be amended or altered under inherent powers of this
Court. On facts they have referred to certain parts of the judgment of the High
Court and this Court wherein it has been held that the land under Plot No. 32-H
was never acquired by the Government/Mirpur Development Authority and whole
story of transfer through power of attorney is based on no evidence. They have
also disputed the execution of power of attorney by Mst. Zainab Bibi and more
particularly her right to transfer the land. An important objection which
directly relates to the present controversy has also been taken whereby it has
been contended that the present petitioner also filed a writ petition about the
same plot before the High Court which was dismissed in limine and the learned
Judge in the High Court while dismissing the writ petition ordered for the
initiation of the contempt proceedings against the present petitioner which are
still pending in the High Court and no appeal has been filed by the petitioner
against the dismissal order of his writ petition.
6.
We have heard the learned counsel for the parties and have gone through
the record of the case. The learned counsel for the petitioner has referred to
the cases reported as Fateh Khan and others v. Sultan Khan [2005 SCMR 134],
Mirza Muhammad Aslam Beg v. Dr. Saghir Iqbal [1992 SCR 94], Muhammad Sultan v.
Sardar Begum & 6 others [1995 SCR 216], and Sardar Muhammad Ibrahim Khan v.
Azad Jammu & Kashmir Government [PLD 1990 SC (AJ&K) 23] to substantiate
the argument that this Court under its inherent powers could recall any
judgment or order which is patently illegal. We need not discuss the facts and
findings recorded in the precedent cases as we have no doubt in our mind above
powers and inherent powers of this Court to do complete justice because the
superior Courts are judges of their own jurisdiction. This right has
consistently been claimed and exercised by the Superior Courts of the
sub-continent. We fully own the finding of this Court recorded in a case
reported as Mirza Muhammad Aslam Beg v. Dr. Saghir Iqbal [1992 SCR 94] that
this Court for doing complete justice can exercise its powers under Section
42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974 read with
Order XLIII Rule 5 of the Supreme Court Rules if a proper case is made out the
Supreme Court can recall an order or to re-hear a cause or can even treat a judgment
as nullity.
7.
Keeping in view this legal position we have minutely gone through the
facts pleaded by the parties and relied upon by the High Court and the Supreme
Court. The judgment of the Supreme Court which has been assailed through the
instant petition for exercise of inherent powers has been passed mainly on the
following grounds:--
(a) That
the suit land was never acquired by the competent authority to be converted
into plot;
(b) that
even if the suit land was allotted to Mst. Zainab Bibi as a plot the same
alongwith many other plots were cancelled by the Government and the Revising
Authority did not restore the same in favour of Mst. Zainab Bibi; and
(c) that
Mst. Zainab Bibi died in the year 1978, therefore, if she had executed any
power of attorney to transfer the said plot, the disputed power of attorney
stood revoked by fiction of law on her death.
The learned counsel for the petitioner
disputes these findings of the Supreme Court.
8.
As against it, the respondents pleaded that the petitioner filed a writ
petition in the High Court which has been dismissed and no further appeal has
been filed against the said judgment and in that case petitioner Raja Muhammad
Akram Khan was Respondent No. 2. When Raja Muhammad Akram Khan disputed this fact
and categorically denied that he did not file Writ Petition No. 66 of 2002,
this Court on application of the respondents, ordered the summoning of Mr.
Liaquat Ali Khan Advocate who in his statement before the Court has
categorically stated that he was engaged as a counsel by Raja Muhammad Akram
Khan in the appeal which was filed by Allah Ditta and others against Mehboob
Alam in the year 1997. He also admitted that he was engaged as a counsel by
Raja Muhammad Akram Khan in the second writ petition filed in the year 2002.
Again he has admitted that he was engaged as a counsel in a contempt case by
Raja Muhammad Akram Khan, petitioner. Nothing has been brought on record to
rebut the statement of this officer of the Court and we are of the considered
opinion that the present petitioner was very much aware of the appeal filed by
Allah Ditta and others. If he had any right or interest in the property, he
could put his case before the Supreme Court. It is a settled principle of law
that law lulls a person who sleeps over his right and the Courts must not
exercise their inherent power in favour of such a person. The impugned judgment
was passed on 25.6.1998 and the application under inherent powers of this Court
has been filed on 22.8.2002 after about four years.
9.
Examined from another angle, we find that the instant petition can only
be allowed if we differ with the finding of the facts recorded by this Court in
the impugned judgment. The fact that Mst. Zainab Bibi died in 1990 and not in
1978 cannot be considered on the basis of the documents which have been
attached with the instant application as the said documents could be produced
in the Supreme Court when the matter was pending before it but the same were
not produced. We cannot alter the judgment of the Supreme
Court on the
ground that certain new documents
have been placed with the instant application to dispute the date of death of
Mst. Zainab Bibi. Same is the case of other facts. The petitioner in fact
desires us to consider the fresh evidence about certain points of facts which
cannot be allowed. The precedent case law on the subject in hand reveals that
the inherent powers can be exercised where judgment or order of the Court is
patently illegal, for instance the judgment is against a dead person or a
patent illegality apparent on the face of the record which is not the case
before us.
10.
There is another aspect of the case which needs consideration. Raja
Muhammad Akram Khan, petitioner, pleads his right on the basis of an
agreement-to-sell which does not create complete ownership for the purchaser
and remains subject to some further performance under the Transfer of Property
Act read with the Specific Relief Act. He has a remedy to sue the person and
get back the consideration amount which he alleges to have paid to Allah Ditta
deceased. While dismissing the petition, we hold that the judgment of this
Court recorded on 25.6.1998 is based on facts and there is no legal
justification to allow the application filed by Raja Muhammad Akram Khan, petitioner.
We must, however, record our appreciation for the assistance rendered by the
learned counsel for therefore. The petition is, therefore, dismissed.
(Aziz Ahmad Tarar) Petition dismissed.