JAWWAD S. KHAWAJA, J.--- Learned counsel appearing for the respondents states that a long time back the respondents had taken away the brief and have not given any instructions. He requested that fresh notice, in the circumstances, be issued to the respondents. I do not see any reason to accept this request. It was for the respondents to ensure their representation through some other counsel if they so desired. They have not done so. I have examined the record of the case myself with the assistance of learned counsel for the appellants and propose to decide the appeal as it is mature for final disposal.
2. The appellants/plaintiffs filed a suit seeking specific performance of an agreement dated 9.8.1977. The land in dispute measuring 12 acres was originally owned by Abdul Jabbar Khan, father of Haider Khan (respondent No. 1) and his sister Mst. Daryai (respondent No. 4). The suit land devolved on the aforesaid respondents Nos. 1 and 4 on the death of their father, as his only heirs.
Mst. Daryai, vide general power-of-attorney (Ex. P-3), constituted her brOther Haider Khan as her general attorney, interalia, authorizing him to sell her share in the suit land which was 1/3rd of the same.
3. The case set up by the appellants/plaintiffs was that Haider Khan, in his own right and also as attorney of his sister Mst. Daryai (respondent No. 4), had executed the agreement (Ex. P-1) in favour of the appellants and the respondents Nos. 2 and 3 jointly. According to the contents of the plaint, the appellants and/or their predecessors-ininterest alongwith respondents Nos. 2 and 3 were the tenants cultivating the land. The appellants claimed 3/4th of the land while the remaining 1/4th, according to them, was claimable by respondents Nos. 2 and 3. However, mutation No. 631, dated 29.5.1991 showing alienation of 1/3rd of the suit land belonging to Mst.' Daryai (respondent No. 4) in favour of Mst. Waziran Bibi (respondent No. 5) wife of respondent No. 2 namely, Muhammad Yar, was entered in the revenue record.
4. The appellants sought specific performance of the agreement (Ex. P-1) and also assailed mutation No. 631 on the basis that the same was fraudulent and inoperative against the rights of the plaintiffs. A written statement was filed on behalf of the respondents/defendants raising objections, inter-alia, under Section 19 of the Colonization of Government Lands Act. It was also alleged that Mst. Daryai was not a necessary party as she had not entered into the agreement (Ex.
P-1).
5. As many as six issues were framed on which the parties led evidence. The agreement (Ex. P-1) has been proved through the testimony of four witnesses produced by the appellants/plaintiffs and the documentary evidence to support their case. The fact that the agreement (Ex. P-1) was duly executed by Haider Khan, has been proved on record. On this score, the judgments of the Courts below are concurrent. The only issue in contention is as to whether Mst. Daryai was one of the vendors and was bound by the agreement (Ex. P-1). This question arose only because the agreement (Ex. P-1) does not specifically mentioned the name of Mst. Daryai as a vendor. The power-of-attorney (Ex. P-3), however, has been duly exhibited whereby Mst. Daryai and appointed her brother Haider Khan as her attorney and had authorized him to sell her share in the suit land.
The "agreement relates to the entire suit land. Furthermore, the testimony of witnesses coupled with the power-of-attorney (Ex. P-3) was sufficient to prove that the entire suit land including the share of Mst. Daryai was covered in the agreement (Ex. P-1). Mst. Daryai and Haider Khan did not enter the witness-box to rebut the aforesaid testimony. The learned Trial Court thus was fully justified in holding that the entire suit land had been agreed to be sold by Haider Khan and Mst.
Daryai in favour of the appellants and respondents Nos. 2 and 3.
6. The learned Appellate Court has, however, held that since the name .Of Mst. Daryai has not been mentioned in the agreement (Ex. P-1), her 1/3rd share in the suit land could not be conveyed to the appellants and respondents Nos. 2 and 3 by way of specific performance. It is for this reason that the decree of the learned Trial Court has been modified and the 1/3rd share of Mst. Daryai has been excluded from the decree passed in the favour of the appellants. The modification of the decree is not based on, the available evidence and is not warranted. The learned Appellate Court has not met the reasoning of the learned Trial Court. In particular, oral and documentary evidence led by the appellants, has been ignored when there was no rebuttal on the part of Haider Khan and Mst.
Daryai who, as noted above, had failed to appear as witnesses. It is obvious to me, considering the evidence on record, that want of a reference to Mst. Daryai in the agreement (Ex. P-1) was only an accidental omission. The agreement is in respect of the entire suit land including the 1/3rd share therein of Mst. Daryai. It has been executed by Haider Khan who, admittedly, was the general attorney of Mst. Daryai and had the authority to sell her share also. The learned Appellate Court has acted in a manner which is mechanical and has lost sight of the fact that the witnesses who could have testified to rebut the case of the appellants, namely Haider Khan and Mst. Daryai had not taken the witness stand.
7. In the foregoing circumstances, the appellate decree dated 18.5.1999 modifying the decree of the learned Trial Court dated 20.1.1995, is not legally sustainable. The said modification is, therefore, set aside. As a consequence, the decree of the learned Trial Court dated 20.12.1995 stands restored.
RSA Allowed Accordingly.
Writ Petition No. 14116 of 2004, decided on 6th September, 2004.
(a) Constitution of Pakistan (1973)--- ---Art. 199---General Clauses Act, 1897, S. 24-A---Public functionaries of---Delay of---Writ petition seeking relief from High Court qn account of inaction on part of respondents-functionaries to provide `Fard' to petitioner---Validity---Copy of said writ petition along with application in question were transmitted to Chief Secretary and DCO concerned for issuing necessary instruction and compliance of order of High Court---Order accordingly. Paras 5,7)
(b) Public functionaries---
(c) ---Duty of---Highlighted=--It is the duty and obligation of public functionaries to decide the applications of the citizens without fear, favour, nepotism with reasons and within
(d) reasonable time. Para 5)
(e) For the Petitioner: Syed Anwar-ul-Haq Gillani, Advocate. For the Respondents: Muhammad Hanif Khatana A.A.-G,
(f) ORDER
(g) CH. IJAZ AHMAD, J.--- The sole grievance of the petitioner is that the petitioner approached respondents No. 2 and 3 to secure Fard for the record of land in question. Respondents No. 2 and 3 failed to decide the application of the petitioner. The petitioner being aggrieved filed an application before respondent No .1, who also did not decide the same till date. The petitioner being aggrieved filed this writ petition.
2. The learned counsel of the petitioner submits that it is the duty and obligation of public functionaries to decide, the applications of the citizens without fear, favour, nepotism, with reasons and within reasonable time.
3. Mr. Muhammad Hanif Khatana, Addl. Advocate-General entered appearance on Court's Cell, he submits that writ petition is not maintainable.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. It is settled principal of law that is the duty and obligation of public functionaries to decide the application of the citizens without fear, favour, nepotism, with reasons and within reasonable time as is envisaged by Article 4 of the Constitution read with Section 24-A of the General Clauses Act as per law laid down by the Honble Supreme Court in M/s Airport Support Service Vs. The Airport Manager, Karachi (1998 SCMR 2268). It is also settled principle of law that nobody should be penalized by the inaction of the public functionaries as per law laid down by the Hon'ble Supreme Court in Ahmad Lateef Qureshi Vs. Controller of Examination, Board of Intermediate and Secondary Education, Lahore (PLD 1994 Lahore 3). In this view of the matter, let a copy of writ petition be sent to respondent No. 1, who is directed to decide the application of the petitioner strictly in accordance with law after providing proper hearing to all the concerned including the petitioner and any other person, who would be aggrieved by his order, preferably within one month after receiving the order of this Court, in case the petitioner have already filed application before respondent No. 1 and he has not decided the same till date and the petitioner has also not availed any other remedy against the grievance before nay higher forum till date. The petitioner is directed to appear before respondent No. 1 in the office at 11-00 a.m. On 14.9.2004, who is directed to decide the application of the petitioner strictly in accordance with law preferably within one month till 14.10.2004 either himself or send the same to competent authority for its decision, who is also directed to decide the application of the petitioner in terms of aforesaid direction of this Court preferably within one month till 14.10.2004. He is further directed to submit his report to the Deputy Registrar (J) of this Court within stipulated period.
6. The learned counsel of the petitioner is directed to hand over copy of the writ petition along with all the annexures to Mr. Muhammad Hanif Khatana, Addl. Advocate General, who is directed to send the same to respondent No. 1 for necessary action and compliance. Office is directed to provide copy of this order to the aforesaid law officer, for onward transmission to respondent No. 1 for necessary action and compliance. Keeping in view the allegation leveled by the petitioner in the contents of the petition, the learned law officer is directed to send copy of this order and the Constitutional petition to the Chief Secretary and the D.C.O. Concerned, who are directed to look into the matter and issue necessary instructions to all the concerned to decide the applications of the citizens without fear, favour and nepotism within reasonable time. It is settled principle of law that nobody is above the law as per law laid down by the Hon'ble Supreme Court in Ch. Zahoor Elahi's case (PLD 1975 SC 383). On account of he inaction of the public functionaries the workload of this Court is increasing day by day, therefore, the aforesaid authorities are directed to issue necessary instructions to all the concerned to decide the application of the citizens within reasonable time, which is their paramount duty by virtue of Section 24-A of the General Clauses Act and by virtue of the mandate of the Constitution.
7. With these observations, the writ petition is disposed of. Copy "Dasti" on payment of usual charge.