The brief facts out of which present revision petition arises are that the plot in-question No.161-15/B- I situated in Township Scheme was allotted to Abdur Rashid son of Noor Din, whose allotment was cancelled by the petitioners due to non-payment of dues. Subsequently, the plot in-question was allotted to the respondent vide allotment order dated 31.12.1970. The respondent was required to pay dues within a period of one month, but the respondent failed to pay his .Dues and did not inform the petitioners of his intention, whether or not he is willing to occupy the quarter, which was allotted to him. The petitioners cancelled the allotment order of respondent vide order dated 09.12.1971. The respondent being aggrieved filed a suit for possession through specific performance of the agreement to sell and mandatory injunction in the Court of Civil Judge 1st Class, Lahore.
2. The contents of the plaint reveal that the. petitioner and the respondent executed an agreement to sell in consideration of Rs.3,009.60. The respondent after execution of the agreement to sell, prepared possession slip supplied four photographs according to the allotment order dated 31.12.1970. The possession was not delivered to the respondent -plaintiff. The suit property in the meantime, was tress-passed by Master Muhammad Bashir in collusion with Ghulam Afzal Khan. D.H.O. Township Scheme, Lahore and other.
The respondent in order to take over the possession according to the possession slip dated 31.12.1970, requested to deposit the price, but the petitioner did not take any action on his request and also did not dispossess the tress-passer. The petitioner informed the respondent-plaintiff on 17.7.1984 that the allotment of the disputed quarter, had been cancelled on 9.12.1970, but the respondent-plaintiff received no notice, therefore, the cancellation of the disputed quarter is the result of mala fide intention of the petitioners. The petitioners filed written statement controverting the allegations levelled in the plaint. Out of pleadings of the parties, the learned trial Court framed the following issues:- Issues.
1. Whether the plaintiff has not come to this Court with clean hands? OPD
2. Whether the plaintiff has got no cause of action. And locus standi to file this suit? OPD
3. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction?
OPD
4. Whether the plaintiff is entitled to decree for possession through specific performance of the agreement as prayed for? OPD
5. Relief.
The learned trial Court decreed the suit vide judgment and decree dated 1.11.2000. The petitioners being aggrieved filed an appeal before the learned Addi: District Judge, Lahore, who dismissed the same vide judgment and decree dated 20.3.2001, hence, the present revision petition.
3. The learned counsel of the petitioners submits that an agreement was executed between the petitioners and the respondent and agreement contains arbitration clause , therefore, the suit of the respondent plaintiff was not maintainable without invoking the arbitration clause before filing of the suit before Trial Court. He further submits that the respondent-plaintiff did not implead Master Bashir Ahmad, tress-passer as defendant in the suit. Admittedly, the quarter in-question was in his possession, therefore, the suit cannot proceed and the same is liable to be dismissed. He further submits that both the Courts below did not consider this aspect of the case. He further submits that. Judgments of both the Courts below are the result of misreading and non-reading of the record. He further submits that judgments of both the Courts below are the result of mis- reading and non-reading of the record. He further submits that it is the duty and obligation of both the Courts below to consider this aspect of this case that the suit was not filed by the respondent within time by virtue of Section 3 of the Limitation Act, without raising objection by the petitioners- defendants. He further submits that the respondent did not approach the Court with clean hands as the plot in-question was cancelled from the name of the respondent-plaintiff on account of non-payment of the dues in terms of the agreement.
4. The learned counsel of the respondent submits that Master Bashir Ahmad is not necessary and proper party to resolve the controversy between the petitioners and the respondent qua cancellation of plot in-question from the name of respondent-plaintiff. He further submits that the petitioners did not raise any question of maintainability of the. Suit in view of arbitration clause mentioned in the agreement, by filing of written statement before the learned trial Court at proper time, therefore, the petitioners are not allowed to raise objection qua the maintainability of the suit before this Court in view of section 34 of the Arbitration Act. He further submits that both the Courts below have given concurrent findings of facts against the petitioners, therefore, the revision petition is not maintainable, as the learned counsel of the petitioners has not pointed out any piece of evidence which was the result of mis-reading and non-reading of the record by the Courts below.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
6. It is admitted fact that the petitioners have not raised objection qua the maintainability of the suit in the presence of arbitration clause and participated in the proceedings without any objection, therefore, the contention of learned counsel of the petitioners in this regard, has no force in view of law laid down by the Honourable Supreme Court in "Pakistan International Airlines Corporation. Vs. M/s Pak Saaf Dry Cleaners." (PLD 1981 S.C. 553). It is also admitted fact that master Bashir Ahmad is not necessary and proper party to resolve the dispute in-question qua cancellation of the plot in-question from the name of the respondent-plaintiff, therefore, contention of the learned counsel of the petitioners, has no force that the suit is liable to be dismissed due to non-pleading of said Master Bashir Ahmad in view of law laid down by the Honourable Supreme Court in "Islamic Republic of Pakistan. Vs. Abdul Wali Khan" (PLD 1975 S.C. 463).
Both the Courts have given concurrent finding of facts and this fact was not denied even by the petitioners that Master Bashir Ahmad is tress-passer over the plot in-question, therefore,. He was not necessary and proper party and has no right over the .Plot in-question being tress-passer as per principle laid down by the Honourable Supreme Court in "Anjuman-Araian Behra, Vs. Abdul Rashid and others" (PLD 1982 S.C.308). It is pertinent to mention here that the petitioners have passed the impugned order for cancellation of plot in-question without notice to the respondent- plaintiff, therefore, the impugned order is hit by the principle of natural justice, as per principle laid down by the Honourable Supreme Court in the following judgments:-
1. "University of Dhacca. Vs. Zakir Ahmad" (PLD 1965 S.C. 90)
2. "Pakistan Chrome Mines Ltd. Vs. The lnquiry Officer."
(1983 S.C.M.R. 1208)
3. "Pakistan and others. Vs. Public-at-large" (PLD 1987 S.C.304)
It is also settled principle of law that principle of natural justice must be read in each and every statute until and unless it is prohibited by wording of statute itself as per law laid down by the Honourable Supreme Court . In "Commissioner of Income Tax Vs. Fazal-ur-Rehman." (PLD 1964 S.C.
410). It is also settled principle of the law that when the basic order is without lawful authority, then super structure shall have to fall on the ground automatically, as per principle laid down by the Honourable Supreme Court in "Yousaf Ali. Vs Muhammad Aslam Zia" (PLD 1958 S.C. 104) and by the Division Bench of this Court in "Crescent Sugar Mills. Vs. Central Board of Revenue" (PLD 1982 Lahore 1). It, is pertinent to mention here that both the Courts have given concurrent findings of facts against the petitioners and that the impugned order was passed by the petitioners without notice to the respondent-plaintiff and intimation was given to the respondent first time in the year 1984, therefore the suit of the respondent was within-time. The learned counsel of the petitioners failed to point out any piece of evidence; which was the result of mis-reading and non-reading of the record by the Courts below.
7. This Courts has very limited jurisdiction to disturb the findings of facts against the petitioners under Section 115 of CPC, as per principle laid down by the Privy Council in "N.S. Vankatagiri Ayyangar and another. Vs. The Hindu Religious Endowments Board Madras" (PLD 1949 P.C. 26). The relevant observation is as follow:- `This is section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise' jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has not power to interfere because it differs, however profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
The judgment of the Privy Council is followed by this Court-in "Board of Intermediate & Secondary Education, Lahore. Vs. Syed Khalid Mehmood" (NLR 1985 Civil 114). It is pertinent' to mention here that the judgment of this. Court was up-held by the Honourable Supreme Court. The learned counsel of the petitioner failed to bring the case within the principle prescribed by Privy Council in the aforesaid judgments, therefore, I do not find any infirmity and illegality in the judgments of both the Courts below.
In view of what has been discussed above, this revision petition has no merit and the same is dismissed.