CH. IJAZ AHMED, J.--- We intend to decide the captioned petitions by one consolidated order having similar facts and law arising out of the consolidated judgment dated 4-7-2001 passed by the Lahore High Court in Revision Petition No,985-D of 1991 (corrected vide order dated 16-11-2006) wherein the revision petitions were accepted and the judgment of the First Appellate Court was set aside and judgment of trial Court was restored.
2. Brief facts out of which the aforesaid petitions arise are that the respondent filed suits for possession through Specific Performance in the Court of Civil Judge, Faisalabad against the predecessor-in-interest of the petitioners Raja Hamayun Sarfraz Khan. The contents of plaints reveal that the agreements were executed between the parties qua the land in question with regard to the Plots Nos.217 to 220 measuring 20 Marlas, According to the terms of the aforesaid agreement, predecessorin-interest of the petitioners agreed to sell plots in question to the respondent and received the total price of the plots amounting to Rs,16,000 and the respondent could get the sale-deed attested in his name at any time. The respondent served the notice to the predecessorin-interest of the petitioners on 21-9-1987 that he should get the said plots transferred through registered sale-deed but the predecessor-ininterest of the petitioners through his reply of the notice refused to do so.
' The predecessor-in-interest of the petitioners filed written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties the trials Court framed the issues and after recording the evidence of the parties decreed the suit vide judgment and decree, dated 30-5-1988.
Predecessor-in-interest of the petitioners being aggrieved filed appeal in the Court of Additional District Judge, Faisalabad who accepted the same vide judgment and decree, dated 14-11-1990.
Respondent being aggrieved filed civil revision in the Lahore High Court. The learned High Court accepted the same and set aside the judgment of the First Appellate Court and restored the judgment of the trial Court and also made observations in para.2 of the impugned judgment against the Presiding Officer/Additional District Judge concerned. Hence, these petitions.
3. The learned counsel for the petitioners submits that the learned High Court had held that the learned Presiding Officer acted dishonestly in disposing of the appeal; therefore, the learned High Court erred in law to decide the revision petition instead remanding the case to the first Appellate Court. He further maintains that execution petition also shows that the case was not decided after judicial application of mind especially the learned High Court had erred in law to ignore the entries at Column No,iv of the execution petition. He further maintains that learned First Appellate Court had reversed the judgment of the trial Court with cogent reasons whereas the trial Court had decided the case without judicial application of mind. The same was approved by the learned High Court in the impugned judgment without reappraisal of evidence on record.
4. The learned counsel for the petitioner (in Civil Petition No,3009-L of 2001) submits that learned High Court had erred in law to make remarks against the petitioner in violation of principle of natural justice. He further maintains that the learned High Court had erred in law to pass remarks against the petitioner without any justification in derogation of law laid down by the superior Courts.
5. We have considered the submissions made by the learned counsel for the petitioners and perused the record. It is better and appropriate to reproduce the operative part of the impugned judgment to resolve the controversy between the parties:-- "I have examined the original record of the appellate Court. The order-sheet shows that the appeal was heard on 14-11-1990 and is recorded to have been allowed by a separate order passed in English. There are good reasons to agree with Mr. Naqvi on the first submission. Normally, the subordinate Courts after hearing arguments, reserve the judgment and give a date for announcement. This is particularly so when the judgment is of variance as in this case. Further, in this case the decree has been shown to have been executed. The respondent was duly served in execution and he did not appear to inform the executing Court that his appeal had been accepted and there is no decree, which can be executed. Still further nobody has appeared on behalf of the respondent to contest the revision or to dispute the correctness of the affidavit of Malik Muhammad Yousaf, Advocate. In view of the present record and in the circumstances, the affidavit of the learned counsel has to be accepted. I, therefore, hold that the learned Presiding Officer did not act honestly and properly in disposing of the appeal.
' In spite of the above finding I am not proposing to remand the case as this revision is coming up for hearing after ten years and remand only means prolong the agonies of the litigants. Further, there' is sufficient material for disposal of this revision on merits.
' The case on merits is simple. Respondent admits the execution of the agreement and states that the same was impliedly cancelled when the petitioner accepted back the sum of Rs,16,000. In view of this plea, the onus clearly shifted to the respondent to prove the payment. No credible evidence like receipt or agreement has been placed on record. The oral plea is of no avail in view of the written agreement showing receipt of the consideration amount. Furthermore, after examining the two judgments in juxta position, I am inclined to agree with the trial Court.
' This revision is accepted with costs. Copy of this judgment is directed to be placed on the service record of Kh. Aurangzeb, the then Additional District and Sessions Judge, Faisalabad.
6. The learned High Court had observed in para.2 reproduced hereinabove that the First Appellate Court had decided the case in violation of the mandatory provisions of Civil Procedure Code. The provisions as contained in Order XX, rules 1 and 3 and Order XLI, rule 31, C.P.C. Which deals with the judgments are applicable. Relevant provisions of C.P.C. Which deal with the judgments are reproduced hereunder:-- "0. XX, rule 1.--- The Court after the case has been heard, shall pronounce judgment in open Court, either at once or on some future day of which due notice shall be given to the parties or their pleaders.
' Rule 2.--- A Judge may pronounce a judgment written but not pronounced by his predecessor.
"O.XLI, rule 31. The judgment of the Appellate Court shall be in writing and shall state---
(a) the points for determination;
(b) the decision thereof;
(c) the reasons for the decision; and,
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
' The provision of O.XLI, rule 31, thus, leave no doubt that the judgment of the appellate Court shall be in writing and shall include various matters as mentioned therein. It has to be pronounced and signed at the same time and has to be dated."
' The word "judgment" is defined in S.2(9), C.P.C.
7. The following are the ingredients of the aforesaid provisions of law:-- "(a) Must be in writing.
(b) must be a statement given by the Judge of the grounds of the decree of order;
(c) should state points for determination and decision thereon with reasons;
(d) must be announced in open Court after notice to the parties, signed and dated by the Judge at the time of pronouncement."
8. The examination of the above provisions of law and ingredients show that where a law provides for writing, announcing and signing a A judgment, all that must be done in a way, to give validity to the judgment. It is pertinent to mention here that the appeal was heard on 14-11-1990 and was recorded to have been allowed by a separate order passed in English as observed by the Lahore High Court after examining the original record of the Appellate Court. The decree was executed in spite of the fact that judgment of the trial Court was no more in the field and this fact was not brought into the notice of the executing Court. It is a settled law that when a thing is to be done in a particular manner, it must be done in that way and not otherwise as the law laid down by this B Court in Atta Muhammad Qureshi's case PLD 1971 SC 61. It is also a settled maxim that manner of exercising power is also termed as mala fide as law laid down by this Court in Agha Shorish Kashmiri's case PLD 1969 SC 14. It is a settled law that High Court had vast powers under section 115 of C.P.C. As observed by this Court in C Muhammad Mian's case 1995 SCM R 69. The relevant observation is as follows:-- "It should not be forgotten that the scope of the revisional powers, though hedged by conditions, is nevertheless vast and corresponds to a remedy of certiorari and the supervisory jurisdiction can be invoked by the Court suo motu and the Court can also make "such order in the case as it thinks fit."
9. The learned High Court was justified to examine the original record in view of the allegations levelled by the learned counsel for the respondent. After examining the original record , the learned High Court had given remarks against the petitioner Aurang Zeb/Presiding Officer in para.2 reproduced hereinabove. We do not find any substance qua the contention of the learned counsel for the petitioner that the aforesaid observations were given in violation of the principles of natural justice. As mentioned above the aforesaid remarks were given after perusing the original record, therefore, no prejudice was caused to the petitioner Aurang Zeb. The learned Single Judge hearing revision no doubt had power to make fair comment on the mode adopted by the Appellate Judge or on any irregularity that might have been committed therein, so far as it was relevant or necessary for the disposal of the revision or even in the larger interest of justice. It is a general principle that when a Judge decides to condemn a man whether a party or witness, the facts on which condemnation is intended to be based must be put to him so as to give him an opportunity to explain the condemnatory facts and thus, to remove the Judge's suspicion about his conduct. In case of making remarks about conduct of Judicial Officer, then the learned Single Judge in chambers was of the opinion to pass any order for initiating action against the Judicial Officer, at least, his comments should have been called for. In the present case, however, we find that the basis of the learned Judge criticism was extremely substantial as the First Appellate Court had decided the appeal in violation of mandatory provisions of C.P.C. And remarks were recorded after summoning and perusing original record. The petitioner has failed to point out any material to show that finding on fact and law were not correct or based on irrelevant fact. As mentioned above, the remarks on facts and law were found correct. In such situation aforesaid principle of natural justice is not attracted. It is a settled law that a Judge must wear all the laws of the country on the sleeve of his robe. Failure of the counsel to properly advice him is not a complete excuse in the matter as law laid down by this Court in Muhammad Sarwar's case PLD 1969 SC 278. In the case in hand, the case was decided without adverting to the aforesaid provisions of laws. It is settled principle of law that constitutional jurisdiction is discretionary in character, keeping in view the aforesaid circumstances, we are not inclined to exercise our discretion. Even otherwise, the petitioner has compulsorily retired as stated by the counsel for the petitioner. We have given ample opportunity to the petitioner's counsel to show any infirmity or illegality in para.2 of the impugned judgment who failed to point out the same. The petitioner had failed to bring on record any evidence/document that the finding of the High Court was not in consonance with the original record. It is pertinent to mention here that the offending remarks to form an independent portion not affecting findings in operative part of the impugned judgment and have no direct hearing on the merits of the case meaning thereby it would be sufficient to say that the offending remarks in the impugned judgment can be severed from it without injuring the integrity were unnecessary for the disposal of the main case, therefore, contention of learned counsel for the petitioner that the learned High Court had to remand the case to the trial Court to decide the case afresh in view of remarks recorded against the Judicial Officer. The learned High Court had taken a lot of pain to examine the case keeping in view the peculiar circumstances of the case and that the matter was pending between the parties since long as is evident from para.3 of the impugned judgment and the learned High Court was justified not to remand the case to the first Appellate Court. We do not find any infirmity or illegality in the impugned judgment. The learned High Court had given solid reasons and reversed the finding of F the first Appellate Court as is evident from para.4 of the impugned judgment. The learned trial Court had decided the case in favor of the respondent after judicial application of mind whereas the learned first Appellate Court had reversed the same without meeting the reasoning of the trial Court as law laid down by this Court in Madan Gopal's case PLD 1969 SC 617. The learned High Court had restored the reasoned judgment which was delivered by the trial Court in accordance with law.
10. In view of what has been discussed above, these petitions have no merit and the same are dismissed. Leave refused.
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