MIAN SAQIB NISAR, J.--- The suit for the declaration etc., filed by the respondent against the appellants was dismissed by the learned trial Court vide judgment and decree dated 27-2-2001.
However, on appeal by the respondent, which was accepted on 22-7-2004, the judgment and decree of the learned trial Court has been set aside and the suit stands decreed.
2. Briefly, the facts of the case are that appellant No.1 and the respondent are the real brothers. The dispute between them relates to a Shop bearing No.1472/H, situated inside Akbari Gate Lahore. It is the case of the respondent/plaintiff that the said shop is owned by both the brothers in equal share, and this has been so resolved and agreed between them vide Ex.P.1, the agreement, dated 20-8-1991. It is further the case of the respondent/plaintiff that he had equally contributed towards the transfer price of the property and, therefore, the property was owned by him to the extent of one half share, whereas the other half belongs to appellant No.1. And it is in order to settle the dispute in this behalf that the parties through the mediation of the respectables and the Office Bearer of Akbari Mandi, Lahore, entered into the agreement dated 20-8-1991, through which, it was acknowledged that the respondent is the owner of one half share of the shop, which shall be disposed of in the manner provided in the agreement and the sale proceeds shall be distributed between the parties accordingly. It is further the case of the respondent that after the execution of the agreement, he left for abroad and when he came back, appellant No.1 refused to abide by the agreement and intended to sell the property, therefore, the respondent/plaintiff was constrained to file a civil suit for permanent injunction; it is in this suit that appellant No.1 disclosed that he has already obtained an order from the Civil Court dated 17-5-1992 in the proceedings under section 33 of the Arbitration Act, 1940, whereby the agreement, dated 20-8-1991 has been annulled, therefore, the suit for permanent injunction was though dismissed on 12-6-1993, but in order to challenge the order, dated 17-5-1992, which was ex parte procured by appellant No.1 against the respondent, under the provisions of section 33 of the Arbitration Act, as mentioned above; the respondent on 14-6-1993, filed an application under Order IX, rule 13 and section 12(2), C.P.C. Which application was accepted on 28-5-1997 and the order, dated 17-5-1992 passed in favour of appellant No.1, annulling the agreement dated 20-8-1991 was set aside. But on 2-6-1997, appellant No.1, instead of pursuing the matter further, withdrew his application filed under the Arbitration Act.
3. In the above background, the respondent thereafter brought the present suit on, 17-6-1997 asserting that he is the owner to the extent of one half share of the property along with appellant No.1; he is entitled for the compensation of the use and occupation of the property to the extent of the half share; the sale-deed of the shop dated 14-1-1994, which in the meanwhile had been executed by appellant No.1 in favour of appellant No.2, was also challenged. The suit was contested by appellants and the following issues were framed:--
(1) Whether the suit is not maintainable under section 42 of Specific Relief Act? OPD
(2) Whether the plaintiff lacks cause of action? OPD-1
(3) Whether the agreement dated 20-8-1991 is outcome of coercion and is thus not binding upon the defendant? OPD-1
(4) Whether the suit is barred by limitation? OPD-1
(5) Whether the suit is false and frivolous, as such, the defendants are entitled to special costs under section 35-A of C.P.C.? OPD
(6) Whether the plaintiff has not come to the Court with clean hands? OPD-1
(7) Whether the plaintiff is owner of half portion of the suit shop, hence the sale-deed executed by defendant No.1 in favour of defendant No.2 to the extent of half share is illegal, void and ineffective on his rights? OPP
(8) If issue No.7 is proved in affirmative, whether the plaintiff is entitled to a decree for declaration, partition, separate possession, rendition of accounts and for permanent" injunction? OPP
(9) Relief.
4. The parties were put to trial. The respondent/plaintiff examined Muhammad Saleem as P.W.1, Bashir Ahmad as P.W.2, who are the marginal witnesses of the agreement dated 20-8-1991, which was produced as Exh.P. 1; P.W.3 Salah-ud-Din is the brother of one marginal witness and is a "Beyopari" of Akbari Mandi, Lahore, whereas the plaintiff himself appeared as P.W.4. In the documentary evidence, the respondent/plaintiff has produced the agreement, dated 20-8-1991 (Exh.P.1); the entire proceedings of the application under section 33 of the Arbitration Act with various orders and the final outcome, were also produced in evidence; the proceedings in the earlier suit for permanent injunction filed by the respondent against appellant No.1 were also brought on the record; besides, Exh.D.W./P-1 is a document dated 5-1-1987, which was brought on the record by the respondent/plaintiff while confronting it to Ala-ud-Din Butt, the appellant No.1, when he appeared as D.W.I; this is the original relinquishment deed executed by Nazeer Hussain in favour of Alla-ud-Din Butt. As against the above, appellant No.1 examined himself as D.W.1 and appellant No.2 examined his son as D. W.2, who appeared as his attorney; besides, certain documents have also been brought on the record. It may be pertinent to state here that the defendant/appellant No.1 has not denied the affixation of his signatures upon Exh.P.1, the agreement, dated 20-8-1991, but has taken up the plea that the execution of this agreement has been procured from him through coercion; to be more precise, it is stated that it is on pistol point that his signatures were obtained on the document.
5. As has been mentioned above, the learned Civil Judge dismissed the suit holding that the respondent/plaintiff has failed to prove the agreement (Exh.P.1) for the reason that the marginal witnesses of the document, who have been examined as P.W.1 and P.W.2 have categorically stated that the signatures upon the document by the parties were not affixed in their presence. Certain other minor discrepancies were also noticed and highlighted. On appeal, however, the .Learned appellate Court has reappraised the evidence on the record and came to the conclusion that the agreement (Exh.P.1) stands proved, because appellant No.1 has admitted his signatures upon the document, but has failed to prove the defence of coercion set out by him; further reasons have also been given for upsetting the judgment and decree of the trial Court.
6. Learned counsel for the appellants, at the very outset, states that the agreement (Exh.P.1) is only an agreement for the appointment of the Arbitrators, but the Arbitrators have never delivered any award and, therefore, the respondent/plaintiff could not claim his ownership to the extent of one half share in the property on the basis of said document, which otherwise is bad for the reason that the signatures of appellant No.1 on the agreement have been procured under coercion i.e. On the pistol point. It is also submitted that in the suit, the respondent has not challenged the sale-deed executed by appellant No.1 in favour of appellant No.2, because no details and particulars of the documents have been given and it is not ascertainable, as to which document they are seeking the cancellation of. It is also submitted that the Court of appeal has only decided issues Nos.3, 7 and 8 and there is no decision given on the other issues, which were very material in the matter; that the learned trial Court has given plausible and cogent reasons in arriving at the conclusion to dismiss the suit of the respondent, but the learned Court of appeal has not met those reasons, rather for flimsy and unfounded grounds has accepted the appeal of the respondent, which otherwise is against the evidence on the record. He has also argued that from the statements of P.W. 1 and P.W.2, who are the key and primary witnesses of the respondent, it stands established that the document Exh.P.1 was not signed by appellant No.1 in their presence and that they were making statements on the basis of surmises and conjectures; that in the cross-examination, conducted by the appellant upon the testimonies of the P.Ws., it stands proved that the appellant was put under restraint and was compelled to sign Exh.P.1, which is not an execution out of his free consent, which should be binding upon him. It is further argued that the suit was bad for the misjoinder of the causes of action, because in one suit, the declaration about the title; the cancellation of some document; the relief of rendition of accounts and also permanent injunction etc., could not have been sought, which are distinct causes of action. He has further submitted that the respondent was estopped by his own conduct to file the present suit for the reason that his suit for the permanent injunction filed by him earlier, has been dismissed by the Court on 12-5-1993 and this precludes him to file the fresh suit.
7. Conversely, the learned counsel for the respondent has argued that Exh.P.1/Exh.P.2, the agreement dated 20-8-1991, is not an arbitration agreement or an agreement for reference to the Arbitrators, but it is on account of the mediation of the respectables of the locality that the parties themselves arrived at an agreement between them through which, they resolved their dispute regarding the shop in question; it is unequivocally and categorically stated in the agreement Exh.P.1 that the shop in question is owned in equal share by both the parties and that they have also contributed to the price of the property in equal share; this constituted a binding agreement upon appellant No.1 about his admission of the co-ownership of the property and recognition of the respondent's right as an equal co-owner thereof, resultantly, to submit that the agreement Exh.P.1 is an arbitration agreement is misconceived. It is also submitted that at the best the case of appellant No.1 is that the said agreement is the result of coercion, but he never got any criminal case registered on account of the said coercion, which allegedly was applied upon him and allegedly his signatures were obtained on pistol point. Learned counsel submits that appellant No.1 remained mum for a period of about eight months after the execution of the agreement Exh.P.1 and for the first time filed a misconceived and ill-founded application under section 33 of the Arbitration Act, seeking the annulment of Exh.P.1; in this application, none of the mediators was arrayed as a party, but some strangers were impleaded as the respondents; the present respondent, who admittedly at that time was in Saudi Arabia, was made respondent No.4 and again sued through some unknown person, who had no connection with the issue; strangely, respondents Nos.1 to 3 in their written reply, conceded the application of appellant No.1 under section 33 of the Arbitration Act, and thus, by practising fraud upon the respondent, an order, dated 17-5-1992 was obtained by appellant No.1. Learned counsel for the respondent has further argued that on his return to Pakistan, the respondent/plaintiff filed a suit for the permanent injunction seeking the restraint against appellant No.1 for selling the property in breach of the agreement Exh.P.1, when for the first time, it was disclosed to him that appellant No.1 has obtained some order, dated 17-5-1992, through which the agreement Exh.P.1 has been annulled; on attaining the knowledge of fraud, the respondent/ plaintiff accordingly filed an application under Order IX, rule 1 and section 12(2), C.P.C. And in that application, issues were framed and the trial was conducted; appellant No.1, in these proceedings, at both the stages, i.e. Before obtaining the order, dated 17-5- 1992 and also during the proceedings in the application under section 12(2), C.P.C., took up a specific stance that his signatures upon Exh.P.1 were procured on pistol point; however, in his statement made in the application under section 33 of the Arbitration Act before the order, dated 17-5-2002, his case was that it was done at the shop in question, whereas while appearing as R.W. 1 in the proceedings under section 12(2) application, he mentioned that the signatures were affixed at the shop of Zia-ud-Din Butt, one of the mediators; this contradiction in the statement has also been confronted to appellant No.1 when he appeared in this case as D.W.1 and he failed to explain the position. On the basis of above, it is submitted that it has never- been proved by appellant No.1 that the agreement Exh.P.1 is the result of any coercion as alleged, because at different points of time, appellant No.1 has been taking different stances. Lastly, it is submitted that the coercion is a question of fact, which has to be proved by the person, who alleges the same, and in support of his plea, the learned counsel has relied upon the following judgments:-- Kanbi Bhagwan Pancha of Gondal v. A.S. Nayankunvarba, Yuvrani Saheba of Gondal AIR 1953 Saurashtra 53, Purushottam Daji Mandalik v. Pandurang Chintaman Biwalkar AIR 1915 Born. 68, Amber Ahmad Khan v. Pakistan International Airlines Corporation, Karachi Airport, Karachi PLD 2003 Kar. 405, Barkat Ali and others v. Sakhi Muhammad and others 2005 YLR 2689, Messrs Dadabhoy Cement Industries Ltd. And 6 others v. National Development Finance Corporation, Karachi 2002 SCM R 1761; Mst. Rehmat Bibi and 4 others v. Naazir Hussain 1996 SCM R 1246 and Dilber Hussain Hashmi and another v. Muslim Commercial Bank, Shahra-e-Iqbal Branch, Quetta 2001 SCM R 265.
8. I have heard the learned counsel for the parties. As regards the question that what is the nature of the document Exh.P.1, I am of the considered view that it is neither an arbitration agreement nor an award, rather it is on the basis of the intervention of certain respectables of the locality, who acted as the mediators, that the parties were able to resolve their dispute and had agreed in terms of agreement Exh.P.1, that the shop in question belongs to both the brothers in equal share.
Appellant No.1 has admitted his signatures on the agreement and also the signatures of the other witnesses and the mediators, when he appeared as R.W.1, in the proceedings under section 12(2), C.P.C., which statement he has admitted when .Confronted to him in the present proceedings as well, when he appeared as D'.W.1. So in the circumstances, heavy burden was upon the shoulders of appellant No.1 to have proved that any coercion was applied upon him while seeking the signatures upon Exh.P.1. But from the evidence on the record, as has also been A concluded' by the learned Additional District Judge, appellant No. l has failed to discharge this burden; his stance has been vague throughout; in the application under section 33 of the Arbitration Act, he has not given the full particulars of coercion i.e. About the pistol point, and has only mentioned that it was under the threat of dire consequences, but when he led the evidence in the proceedings of the application under section 33 of the Arbitration Act, the pistol point element was introduced for the first point and that too the plea has not been proved through any independent evidence, rather there are contradictions in this behalf in the statement of appellant No.1 e.g. It is specifically stated by him initially, that the execution of Exh.P.1. Was procured from him at the shop in question, but while appearing as R.W.1 in the proceedings of the application under section 12(2), C.P.C. Etc., he conceded that it was at the shop of Zia-ud-Din Butt, but on this occasion, there are no allegations that the signatures were obtained on the pistol point. The evidence of appellant No.1, upon whom the burden of coercion was heavily placed, when taken in totality, shows that he has clearly admitted the execution of the agreement and has miserably failed to prove his sole and specific defence of coercion applied upon him in this behalf. Therefore, the law enunciated in the judgment reported as Barkat Ali and others v. Sakhil Muhammad and others 2005 YLR 2689 is squarely attracted to his case. Besides, I do not find that any misreading and non-reading of the record has been committed by the learned first appellate Court in determining the issue No.3, which is the key issue in the matter.
9. There is another important feature of the case, that instead of pursuing the application under section 33 of the Arbitration Act, after the order, dated 17-5-1992 was set aside by the Court upon the application of the respondent, appellant No.1 withdrew the same; this has serious reflection upon the claim and the conduct of appellant No.1 on the plea of the coercion, which has been his pivotal point throughout. But he himself withdrew the application under section 33 and admitted the validity of the Exh.P. 1 in this manner.
10. As regards the question of estoppel is concerned, suffice it to say that no element of estoppel is involved in the matter, because after coming from Saudi Arabia, the respondent tiled the suit for the permanent injunction asking for the restraint against appellant No.1 for the sale of the shop, which according to the agreement Exh.P.1 was equally owned by the parties and in these proceedings, when for the first time, it was disclosed that the agreement has been got annulled in the proceedings under section 33 of the Arbitration Act, the respondent had to first bring the application under section 12(2), C.P.C. For the setting aside of the order, dated 17-5-1992 and thereafter, filed the present suit.
11. I am also not convinced, as mentioned earlier, that the agreement Exh.P.1 is an arbitration agreement and, therefore, the same C could only be enforced through arbitration. The pleas raised regarding the misjoinder of causes of action maintainability of the suit, that in the suit the sale- deed in favour of appellant No.2 has not been challenged, the non-disposal of certain issues, and the other pleas which were propounded before this Court in attacking the impugned judgment and decree and are noted in one of the preceding para., have no substance, which are hereby specifically repelled.