PLJ 2008 SC 243

[Appellate Jurisdiction]

Present: Sardar Muhammad Raza Khan & Falak Sher, JJ.

Mrs. ANIS HAIDER and others--Petitioners

versus

S. AMIR HAIDER & others--Respondents

Civil Petition No. 844 of 2007, decided on 22.10.2007.

(On appeal from the judgment dated 29.6.2007 of Lahore High Court, Lahore passed in Writ Petition No. 5439/2006).

Civil Procedure Code, 1908 (V of 1908)--

----S. 12(2)--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Suit for administration of property--Agreement for arbitration--Gift on ground of fraud--Gift was forged and fictitious and so award--Allegation of forgery and fraud could never have been decided without recording of evidence--Motivating factor for rejection of application was written statement of arbitrator--Mere written statement has not at all been valid ground for guillotining a serious application--Validity--Trial Court did not exhibit a judicial behaviour and higher Courts endorsed it with no application of mind--Held: Order can be attracted only when a plaint by itself does not disclosed any cause of action--It cannot be rejected on the basis of written statement because the initial burden remains on the plaintiff to prove his case on the basis of assertions made in the pleadings--Further held: If principle adopted by Courts below is endorsed, it would be the easiest thing to dismiss any civil suit simply and merely on the basis of written statement--Petition after conversion into appeal was accepted and case was remanded to trial Court. [P. 246] A

Mr. M. Ramzan Ch. ASC with Raja Abdul Ghafoor, AOR for Petitioners.

Mr. Hamid Khan, Sr. ASC with Mr. M.S. Khattak, AOR for Respondent No. 1.

Mr. Amir Alam Khan, ASC, Mr. Jehanzeb Khan Bharwana, ASC and Mr. Ahmed Waheed Khan, ASC for Respondents No. 2 to 4.

Mr. Ali Akbar Qureshi, ASC for Respondent No. 5.

Mr. Arshad Ali Ch., AOR (absent) for Respondents No. 2-5.

Date of hearing: 22.10.2007.

Judgment

Sardar Muhammad Raza Khan, J.--Mrs. Anis Haider and her three sisters seek leave to appeal from the judgment dated 29.6.2007 of learned Lahore High Court, whereby, their writ petition against the judgment dated 27.4.2006 of Additional District Judge, Lahore was dismissed. Initially it was an application under Section 12(2) CPC filed by the petitioners which stood dismissed in the two Courts below under Order VII, Rule 11 CPC.

2. Dr. S. Bahadur Ali Shah was the original owner of the disputed property who died on 1.4.1998. His four daughters namely Mrs. Anis Haider, Mrs. Tahira Bokhari, Mrs. Kausar Haider and Mrs. Samana Ali, only three months and twenty seven days after the death of their father and on 28.7.1998, filed a suit for the administration of property against their real brothers S. Amir Haider, Dr. S. Agha Haider and two sisters Mrs. Saeed Khalid and Mrs. Shabi Kausar. The brothers aforesaid filed written statement on 3.10.1998 taking the plea that the subject-matter of dispute had been gifted away to the two brothers by the father through an oral gift on 7.7.1978 and an award dated 7.10.1978, made rule of the Court vide judgment dated 6.11.1979.

3. From record it appears that an agreement for arbitration was entered into on 1.11.1977 on the pretext that the two sons aforesaid etcetera and Dr. S. Bahadur Ali Shah had a dispute over the property. Such dispute, on the basis of arbitration agreement was referred to S. Afzal Haider, a learned counsel of the Supreme Court as an arbitrator. The arbitrator filed his award on 7.10.1978 declaring that the property stood transferred in the name of S.Amir Haider and Dr. S.Agha Haider by their father on the basis of oral gift.

4. Dr. S. Bahadur Ali Shah on 25.3.1979 filed an application before Court for making the award a rule of the Court. Such award was made rule of the Court and a decree accordingly granted on 6.11.1979. Nobody challenged such rule and the matter, for the said purpose, became final.

5. When the sisters, through pleadings, got knowledge of all that had happened earlier, they on 26.11.1998, within one month and twenty three days of the written statement of their brothers, filed an application under Section 12(2) CPC challenging the decree dated 6.11.1979 and the gift etcetera on ground of fraud. They claimed that all the proceedings aforesaid had been taken without their knowledge. That the gift was forged and fictitious and so the award, where, their father had never appeared before the arbitrator. That the entire fictitious proceedings had been resorted to in order only to deprive the daughters from their shari share in the disputed property.

6. The respondents/defendants in suit for administration filed an application under Order VII, Rule 11 CPC on 17.2.2002 seeking rejection of application under Section 12(2) CPC. The trial Court dismissed such application, framed issues and fixed the case for recording of evidence. The Additional District Judge Lahore accepted the revision and rejected the application of Section 12(2) CPC under Order VII, Rule 11 CPC. The petitioners filed a writ petition and vide judgment dated 14.11.2002 succeeded in getting the order of the trial Court restored.

7. The respondents thereafter filed a civil petition for leave to appeal before the Supreme Court. Vide order dated 10.4.2003, this Court, on the basis of compromise between the parties, remanded the case back to the trial Court in the following terms:--

(i) Let application under Section 12(2) CPC filed by respondents-applicants Mrs. Anis Haider and three other daughters of Dr. S.Bahadur Ali shah dated 18.11.1998, be decided by the trial Court expeditiously as far as possible within a period of one year from the date of receipt of this order.

(ii) After final decision on the application under Section 12(2) CPC suit for administration of property, filed by the respondents, shall be taken up for hearing if need be.

(iii) The trial Court seized with matters shall decide application under Section 12(2) CPC and the administration suit independently without being influenced in any manner from the impugned judgment dated 14.11.2002, passed by the Lahore High Court, Lahore".

8. The first round having ended, after remand, the arbitrator Syed Afzal Haider Advocate was arrayed as respondent who filed his reply/written statement. On the basis of such written statement and most probably on his solitary and uncrossed earlier statement dated 1.7.1979, the application under Section 12(2) CPC of the petitioners was rejected once again under Order VII, Rule 11 CPC. This rejection was maintained up to High Court and hence this petition.

9. It requires no lengthy discussion and there cannot be two opinions about the fact that the matter had already been remanded to the trial Court by this Court on 10.4.2003 for settling the above narrated points and for deciding application under Section 12(2) CPC. Obviously, an application containing serious allegations of forgery and fraud could never have been decided without recording of evidence. It is for this purpose that the Supreme Court had allowed and fixed a period of one year for the decision involved. Despite orders of the Supreme Court, the trial Court never proceeded to record evidence of the parties about their assertions and counter assertions involving serious questions of fact to be settled on both sides. The only motivating factor for rejection of application was the reply/written statement of the arbitrator and his earlier statement dated 1.7.1979. This was a novel procedure adopted by the trial Court and endorsed by the higher Courts, in that, the pleadings of parties could never be taken as an evidence particularly when the arbitrator was not even examined in Court in support of his written statement much-less his cross-examination by the party desiring so to do. A mere written statement by a respondent has not at all been a valid ground for guillotining a serious application filed by the ladies and by-passing the order dated 10.4.2003 of the Supreme Court. The trial Court did not exhibit a judicial behaviour and the higher Courts endorsed it with no application of mind.

10. The very terminology used in Order VII, Rule 11 CPC is indicative of the fact that it pertains to suits and plaints in particular. The Court should have realized the difference between a regular suit and an application. Section 141 CPC cannot be attracted as it pertains to the ordinary procedure laid down in Civil Procedure Code that may be followed in deciding an application but a substantial requirement of recording of evidence on pure and serious question of fact could not be by-passed by unjustifiable invoking of Order VII, Rule 11 CPC. It appears that even the implications of Order VII, Rule 11 CPC were not properly appreciated and applied. The order can be attracted only when a plaint by itself does not disclosed any cause of action. It cannot be rejected on the basis of written statement because the initial burden remains on the plaintiff/petitioner to prove his case on the basis of assertions made in the pleadings. If the principle in hand adopted by the Courts below is endorsed, it would be the easiest thing to dismiss any civil suit simply and merely on the basis of written statement.

11. Consequent upon what has been discussed above, the petition after conversion into appeal is accepted and the case is remanded to trial Court with direction to decide the application under Section 12(2) CPC after recording evidence of both the parties and in the light of this Court previous order dated 10.4.2003. The entire exercise shall be completed and the matter shall be decided within six months.

(R.A.) Case remanded.

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