' The petitioner appeared in B.A. Examination 2003 held in December, 2003/January, 2004. She was declared pass and result card was issued on 1-4-2004. According to this result statement she had obtained second division having bagged 442 out of 800 marks. She was, however, dismayed upon finding that she had got 63/200 in Economics and had failed. She accordingly filed regular form disclosing that she wants to appear in Economic and she paid the admission fee and was allocated a roll number and she in fact appeared and admittedly was declared passed with 103/200 marks enabling her to be placed in -first division. The result, however, was not declared and she was asked to surrender her result card. Now dilemma being faced by the lady is that under University Rules, the said result cards has been cancelled and her result is also proposed to be quashed on the ground that she had declared that she wants to improve her division and for that purpose she had to appear in all the subjects.
2. Learned counsel for the petitioner contends that no misrepresentation is attributed to the petitioner lady who had duly disclosed in her form that she wants to appear in Economic paper only and admittedly she was declared pass with the said marks and now the respondents cannot bank upon the rule to do away with the entire result of the lady.
3. Malik Muhammad Tariq, Advocate, learned counsel for the respondent-University relying on the applicable University Regulations and further on the case of Muhammad Rizwan Fayyaz v. Lahore Board of Intermediate and Secondary Education, (2000 M LD 108), contends that for improvement of marks, the petitioner had to appear in all the papers and not only in Economics.
4. I have gone though the relevant Rules. I do agree with the learned counsel for the respondent- University that the petitioner in order to improve her division was required to appear in all the subjects. However, there are some admitted facts. These are that the petitioner in fact was declared passed in the said B.A. Examination originally undertake by her. Although she had mentioned in the form that she wants to improve her division but at the same time she had duly stated that she would be appearing only in the paper of Economics. It is but obvious that the permission was granted to her to appear by the University Authorities which was through some inadvertent error. The fact remains that she was issued a roll number and allowed to appear and was declared admittedly as successful of obtaining the said marks in the said subject. However, the petitioner being a bona fide student should have the knowledge of the said. Rules' governing her studies in the respondent-University, which are of course applicable to all the students and out of the way benefit cannot be, conferred upon the petitioner.
5. Writ petition accordingly is disposed of with the direction that the result card already issued to the petitioner declaring her pass in the original B.A. Examination undertaken by her in all the subjects be released to her. She intends to file an application for admission to the higher class in Economics subject. It is hoped that the said application shall be considered in the light of circumstances of this case by the competent Authorities. No orders as to costs.
Order accordingly.
1305 MLD 1586 [Supreme Court (AJ&K)] Present: Khawaja Muhammad Saeed, CJ and Chaudhary Muhammad Taj, J Civil Appeal No.168 of 2004.
MASHKOOR HUSSAIN SHAH and 3 others---Appellants versus MUNAWAR SHAH and others---Respondents (On appeal from the judgment and decree of the High Court dated 9-9-2003 in Civil Appeals Nos.93 and 100 of 2003).
Civil Appeal No.169 of 2004.
ARSHAD AHMAD---Appellant versus Syed MUNAWAR HUSSAIN SHAH and 2 others---Respondents (On appeal from the judgment and decree of the High Court dated 9-9-2003 in Civil Appeals Nos.93 and 100 of 2003).
Civil Appeals Nos.168 and 169 of 2004, decided on 9th May, 2005. Specific Relief Act (I of 1877)- ----Ss.42 & 54---Suit for declaration and permanent injunction---Pleadings of the parties showed that no dispute existed about specific Survey number and all the Courts also had found no controversy in that regard---Courts, including the High Court had found that parties were owners in equal shares so far as said Survey number was concerned-=-Controversy in the case was confined to another Survey. Number---Respondents had claimed that by virtue of an agreement they were the owners in possession of suit-land while appellants had claimed its ownership to the extent of one half of share in respect of said suit-land---Prima facie, no agreement was available in respect of said another Survey number---Decree for permanent injunction passed in favour of respondents in respect of said another Survey number was not maintainable-Courts below and High Court were under mistaken impression that a compromise was effected in respect of the said Survey number during the earlier litigation---Order of High Court was set aside by the Supreme Court and matter was remanded to the Trial Court which would proceed in accordance with law.
[pp. 1591, 1592, 1593] A, B, C, D & E Mir. Sharafat Hussain, Advocate for Appellant (in Civil Appeal No. 168 of 2004).
Imdad Ali Mallick and JO. Shahad Ahmed, Advocate for Respondents (in Civil Appeal No. 168 of 2004).
Kh. Shahad Ahmad for Appellant (in Civil Appeal No.169 of 2004).
Imdad Ali Mallick and Mir Sharafat Hussain for Respondents (in Civil Appeal No.169 of 2004).
Date of hearing: 25th October, 2004.
' CHAUDHARY MUHAMMAD TAJ, J.---The above captioned two appeals, by leave have been filed against the common judgment and decree passed by the High Court on 9-9-2003, whereby the appeals against the judgment and decree of the District Judge, Muzaffarabad were dismissed.
2. The facts are that two civil suits titled Ghulam Hussain Shah and others v. Munawar Shah and others (Suit No.235 of 1995) and a cross-suit titled Syed Munawar Hussain Shah and others v. Mst.
Khatoon and others ($uit No.132 of 1997) were, filed in the Court of Sub-Judge, Muzaffarabad. Both the suits were consolidated. After their conclusion, the suit filed on behalf of Munawar Hussain Shah (No.132 of 1997) was decreed while that of Ghulam Hussain, Shah and others (No. 235 of 1995) was dismissed. Two appeals, one on behalf of Ghulam Hussain Shah and others, plaintiff-appellants, and the other by Arshad Ahmed, defendant-appellant, were filed with the District Judge, Muzaffarabad, challenging the judgment and decree passed by the Sub-Judge. The appeals were dismissed. Two further appeai.. Were preferred before the High Court which were also rejected.
Hence, these appeals by way of leave.
3. Mir Sharafat Hussain, the learned counsel representing appellants Ghulam Hussain Shah and others (Civil Appeal No.168 of 2004), raised following points in support of the appeal:--
(i) That the judgment and decree passed by the High Court are illegal as such not maintainable;
(ii) that the findings recorded by the High Court and the Courts below suffer from misreading and non-reading of the evidence. It was argued that the learned Judge in the High Court also the subordinate Court were misled that any compromise in respect of Survey No.143, (the suit-land) was effected between the parties. There was no such compromise between the parties either before the Court or outside the Court. It was neither proved nor produced before any Court including the proceedings in hand. The learned counsel, however, accepted that a compromise in respect of. Survey No.137 was effected between the parties;
(iii) that the learned Judge in the High Court failed to appreciate that commission was appointed which gave its report but the same was not taken into consideration; and
(iv) that one of the defendant-respondents namely Tasweer Hussain Shah admitted the claim who filed an application for unconditional withdrawal of the suit to his extent along with an affidavit alleging therein that the suit was filed by defendant-respondent. Munawar Hussain Shah with mala fide intention and no compromise regarding Survey No.143 was ever made between the parties but the Court did not consider the aforesaid important facts.
4. Kh. Shahad Ahmad, the counsel representing Arshad Ahmad appellant in Civil Appeal No.169 of 2005, who was arrayed as defendant in civil suit titled Munawar Hussain Shah v. Mst. Khatoon and another (No.132 of 1997), addressed following arguments:--
(i) That no notice was ever issued to the defendant-appellant nor any service was effected upon him. The notice placed on the record was against the mandatory provisions governing the procedure for service;
(ii) that a valid sale-deed was executed in the name of the appellant by the owners as such the appellant' s'rights are covered under section 141 of the Transfer of Property Act; and
(iii) that the learned Judge in the High Court and the subordinate Courts under a wrong assumption of facts arrived at a wrong conclusion that there was any compromise in respect of Survey No.143 for the suit-land between the parties whereby the said survey number was given in the ownership of the respondents. It was forcefully argued that no such compromise was ever effected nor placed before the Court and thus the decree passed in favour of the respondents in refation to aforesaid survey number was without any jurisdiction, therefore, a decree passed against the appellant was also of no validity in eye of law.
5. Mr. Imdad Ali Mallick, Advocate, who represented the respondents in both the appeals, opposed the contentions of the learned counsel for the appellants on the grounds that all the Courts below including the High Court concurrently arrived at a conclusion that a compromise was effected between the parties during the earlier round of litigation which ultimately ended the litigation between the parties in respect of suit-land including Survey No.143, therefore, the concurrent findings recorded by the Courts below cannot be disturbed at this stage of the proceedings where only a substantial legal point warranting interference would be required which is not fond in the, present case. It was also argued that in addition to the above point, the legal evidence which consisted upon oral as well as documentary, was produced in support of the claim put forward by the respondents. It was also argued that appellant Arshad Ahmad was duly served through a notice who in spite of service did not appear as such was proceeded ex parte, therefore, a decree was passed against him on the basis of evidence which could only be set aside through an application filed under Order IX, rule 13, C.P.C. And he could not file an appeal before the District Judge and thereafter before this Court after availing the opportunity before the High Court.
6. We have heard the learned counsel for the parties and also gone through the record carefully. It would be much relevant to refer the concise claim of the parties in their respective suits. The suit titled Ghulam Hussain Shah v. Munawar Shah and others (No.235 of 1995) was filed for a decree of permanent injunction in respect of land measuring 3 Kanals, 17 Marlas out of the land measuring 7 Kanals, 14 Marlas comprising Survey No.137 and land measuring 3 Kanals 8-1/2 Marlas out, of the land measuring 6 Kanals; 17 Marlas comprising Survey No.143, situate in Bela Noor Shah, Tehsil Muzaffarabad on the basis of their ownership and also claimed that the defendant-respondents may be restrained to make any interference, transfer or alienate in any form. The other suit titled Syed Munawar Hussain Shah v. Mst. Khatoon and others (No.132 of 1997) was also filed for a declaration and perpetual injunction in respect of land measuring 6 Kanals, 17 Marlas comprising Survey' No.143 that the said survey number was in the ownership of plaintiff-respondents and the defendants-appellants were not entitled to alienate or transfer in any manner as such also challenged the sale-deed executed in favour of Arshad Ahmad, appellant, as being illegal and inoperative against their rights. In the body of the plaint it was admitted that Survey No.137 was in the ownership of the parties in equal share and Survey No.143 came in their ownership through a compromise effected between them in the earlier round of litigation.
7. The trial Court consolidated both the suits and proceedings continued in the suit titled Ghulam Hussain Shah and others v. Munawar Shah and others (Suit No.235 of 1995). The following issues were framed:-- {{URDU TEXT}} 8.
9. #TBS
10. A
11. B
12. #TBE
13. All the Courts, including the High Court, held that the parties -were owners in equal share so far as Survey No.137 is concerned while Survey No.143, is' owned by Munawar Hussain Shah and others (Suit No.132 of 1997), the respondents herein through a compromise effected between the parties in the earlier round of litigation.
14. According to the pleadings of the parties there is no dispute about Survey No.137 and the same is also held by all the Courts though there was no, controversy in this regard which was confined only to Survey No.143. It was claimed by Munawar Hussain Shah and others, respondents, that by virtue of an agreement they were owners in possession of the suit-land while the appellants in Civil Appeal No. 168 of 2004 claimed its ownership to the extent of one half of the share.
15. The first question requiring resolution is whether a compromise was effected between the parties in the earlier round of litigation and if so, what is its effect on the present proceedings. The learned Judge in the High Court has held that a compromise deed was presemed before the Court duly signed by the parties and the same showed that Survey No.137 was in equal share, one half of each party and Survey No.143 was also accepted to be the ownership of Syed Munawar Hussain Shah and others. However, a decree was passed in respect of Survey No.137 but no decree could be passed in respect of Survey No.143 for not being a subject of litigation in those proceedings. The relevant observations are reproduced:-
5. ............................... The parties are found to be in agreement that there was a previous round of litigation between appellants Syed Ghulam Hussain Shah and ' others and respondents Munawar Hussain Shah and others about Survey No.137 situate in Bela-Noor Shah. They are also in agreement that they Compromised and compromise-deed was presented before the competent Court on 23-11-1985. This compromise-deed was duly signed by the respective parties and the statements of their counsel were also recorded on 7-12-1985. A certified copy of this compromise deed Exh.P.D. Is on record. Through this compromise deed, the parties are shown to have admitted the claim of each other over Survey No.137 measuring 7 Kanals, 14 Marlas in equal share (1/2 of each party). Apart from this, it is evident from this compromise deed that Survey Nos.119 and 101 were also accepted to be the ownership of respective parties in equal shares (1/2 to each party) whereas Survey No.143 measuring 6 Kanals, 17 , Marlas was accepted to be the ownership of Syed Munawar Shah and others (successor-ininterest of Syed Ali Akbar Shah). Consequently, a compromise decree regarding' Survey No.137 was recorded in favour of respective parties in the light of compromise however, there was no suit for Survey No.143 at the relevant time therefore, no decree could be recorded in absence of a regular suit. The compromise deed Exh.P.D. Whose certified copy is on record is found to be part of original' file pertaining to previous litigation.
11. The respondents brought on record a certified copy of an application moved to Sub-Judge, Muzaffarabad on 3-2-1985 for effecting compromise between the parties and a compromise decree along with orders of the Sub-Judge, Muzaffarabad dated 17-3-1986, Exh.P.A., P.B., D.A., D.B.
And agreement Exh.P.C. Dated 23-11-1985. All these documents, the application filed for compromise, orders passed by the Sub-Judge in two cross-suits filed by the parties and a decree issued in this regard in previous litigation show that the compromise was effected in respect of Survey No.137 for which a decree in equal share for the parties herein was passed. The other document Exh.P.C. The agreement/compromise deed dated 23-11-1985 in respect of Survey No.143 was produced before the 'trial Court in the present proceedings by one Munawar Hussain Shah.
This document was not produced during the earlier litigation, therefore, no compromise of any kind was ever made in the earlier round of litigation in respect of Survey No.143. The learned Judge in the High Court was under mistaken impression that a compromise was also effected in respect of the aforesaid survey number during the earlier litigation but due to the fact that aforesaid Survey number was not included in the litigation, therefore, a decree could not be passed. We are afraid we cannot agree: Had there been any agreement in respect of the aforesaid survey number this document would have been plaCed on record in the earlier proceedings and not in the present proceedings which was brought on record by the respondents. Therefore, prima facie, there was no agreement in respect of Survey No.143 as such decree for permanent injunction passed in favour of the respondents in respect of Survey No.143 situate in Bela Noor Shah is not maintainable.
12. So far as the other appeal titled Arshad Ahmad v. Syed Munawar Hussain Shah and others (Civil Appeal No.169 of 2004) is-concerned, the appellant was arrayed as defendant in Suit No.132 of 1997 and was proceeded ex parte. A perusal of the record shows that the trial Court in File No.132 of 1997 issued a notice on 18-6-1997 to the said defendant appellant for 23-7-1997 but no ex parte proceedings were taken against the said party. However, these proceedings were ordered on 22- 10-1998 on a notice claimed to have served upon him.
13. Record shows that the notice was not legally served keeping in view, the mandatory procedure maintained under order C.P.C. Particularly is rule 18.
14. In view of the above discussion, the order of the High Court is set aside by accepting both the appeals and the matter is remanded to the trial Court which shall proceeded in accordance with law keeping in view the observations made above.