' NISAR MUHAMMAD SHAIKH, J. The applicant seeks review of the order dated 12-2-2009 (16-2-2009) passed by learned single Judge of this Court Mr. Justice Abdul Rasheed Kalwar, who is no more available on the Bench, whereby this Civil Revision was dismissed in limine. Applicant has prayed for recalling/ setting aside the said order and also reversal of the impugned judgment dated 8-2- 2008 passed by learned IIIrd Additional District Judge, Malir, Karachi, whereby Civil Appeal No,23/2005 of the applicant was dismissed.
2.Relevant facts of the case, in brief, are that initially the Suit No,974/1988 was filed by plaintiff Shaikh Muhammad Hussain Qureshi (respondent No,1 herein) against the defendant/present applicant Mst.Sanjida Nuzhat and 3 others, claiming to have had purchased Plot No,17, measuring 833 square yards in Defence Officers' Housing Scheme No,II, Malir Cantonment, Karachi, from defendant No,3, Brig. (Rtd) Ziaur-Rehman (respondent No,3 herein) who, for the purpose of completion of necessary formalities, executed a general power of attorney in the name of defendant No,2 Shaikh Muhammad Afzal (respondent No,2 herein) being son of respondent No,
1. It was further stated in the plaint that subsequently respondent No,2 executed a registered sale deed dated 22-6-1987 in favour of his father, the respondent No,l. It was alleged that the respondent No,2 then illegally and unauthorizedly executed another sale deed on 3-8-1988 registered on 8-8-1988 in the office of defendant No,4 District Registrar (respondent No,4 herein) in favour of the applicant Mst. Sanjida Nuzhat for Rs,5,42,100. The respondent No,1 (plaintiff) therefore prayed in his plaint for cancellation of subsequent sale deed dated 8-8-1988 along with registered general power of attorney dated 4-8-1985 and for possession of disputed property and also for injunction restraining defendants Nos.1 and 2 from using such documents for further sale etc.
3. The applicant Mst. Sanjida Nuzhat being defendant No,1 in the suit, filed her written statement claiming that she purchased the disputed property from respondent No,3 through his attorney the respondent No,2 who initially entered into sale agreement on 3-5-1987 and on the same day he handed over the possession of disputed property to her and then, after obtaining necessary permission from Director Military Lands and Cantonments, a sale deed was executed in her favour on 3-8-1988 by the respondent No,2 who at the same time, also delivered all original title documents of such property to her in presence of his father the respondent No,
1. She alleged that she was never informed about the collusive, illegal and void sale deed dated 22-6-1987 by the respondent No,1 or his son (respondent No,2). She also stated that she is a purchaser for consideration in good faith and without any knowledge of the dispute between the family of respondent No,1 on whose instructions the sale deed was executed by respondent No,2 in her favour and she was never informed of the existence of any other sale deed. She also stated that after taking possession of disputed plot she has converted it into a full-fledged palatial house by investing about Rs,10,00,000/-.
4. Whereas the defendant No,2/ respondent No,2 Shaikh Muhammad Afzal submitted in his written statement that his father i,e, plaintiff/ respondent No,1 did not purchase disputed plot with his own money but he obtained Rs,200,000/- as loan from mother of respondent No,2 and as a security of such amount a general power of attorney was got executed by respondent No,1 from respondent No,3 in the name of respondent No,2. But since the respondent No,1 was unable to return the said loan amount therefore as per his direction the respondent No,2 entered into sale agreement with applicant on 3-5-1987 against sale consideration of Rs,5,42,100/- and handed over possession of disputed property to applicant on that very day. The respondent No,2 further stated that he as per direction of his father (respondent No,1) then executed sale deed in favour of his father and such fact was not disclosed to the applicant in whose favour the agreement of sale was already executed and subsequently the sale deed was also executed by him in her favour without disclosing her the earlier sale made by him in favour of his father.
5. The above Suit No,974/1988 which was filed in original side jurisdiction of this Court had reached up to the stage of final arguments after recording evidence of the parties but on account of enhancement of pecuniary jurisdiction of the Civil Courts of Karachi, this Suit was transferred for disposal according to law to the Court of learned Senior Civil Judge, Malir, Karachi, where it was re- numbered as Suit No,19/2003. The same was then decreed vide judgment dated 29-9-2004 and Decree dated 19-10-2004. The applicant/defendant No,1 through her application under Order IX, Rule 13 read with section 151, C.P.C. Sought for setting aside of the said judgment and decree on the ground that the same were passed ex parte without hearing her as no Court motion notice was served upon her after transfer of the case from this Court to Civil Court. After hearing the parties, the said application was dismissed vide order dated 23-2-2005 passed by learned Senior Civil Judge, Malir, holding that the Court motion notice was served by way of pasting on the outer door of her house and that the suit was disposed of on merits and not ex parte. This order was impugned by applicant through Civil Appeal No,23/2005 which was allowed vide judgment dated 27-10-2005 passed by learned 3rd Additional District Judge Malir, holding that the trial Court has passed impugned judgment and decree without hearing the applicant as she was not served with Court motion notice. Thus the impugned judgment and decree were set aside and the case was remanded to the trial Court with directions to decide the suit afresh after hearing final arguments of the parties. This judgment of 1st Appellate Court was challenged by the plaintiff/respondent No,1 through IInd Appeal No, 42/2005 which was disposed of vide order dated 7-3-2006 passed by a single Bench of this Court observing as under:-- "Since the sole grievance raised by the respondent/defendant No,1 before 1st Appellate Court was that she was deprived of the opportunity of hearing, the 1st Appellate Court could have disposed of the appeal on merits after affording opportunity to the parties."
Thus the impugned order of remand of the case passed by 3rd Additional District Judge was set aside with direction to him to hear the parties and dispose of the appeal on merits. Accordingly after hearing the arguments, Appeal No,23/2005 of applicant Mst. Sanjida Nuzhat was dismissed vide judgment dated 8-2-1988 passed by learned 3rd Additional District Judge Malir which was assailed by the applicant in this Civil Revision and the same was also dismissed by a single Bench of this Court vide order dated 12-2-2009 (16-2-2009) which is sought to be reviewed through present application.
6. We have heard learned counsel for the contesting parties and perused relevant record.
7. The contention of learned counsel for the applicant is that the order dated 12-2-2009 is liable to be recalled and reviewed being unsustainable in law and this Civil Revision also deserves to be allowed at the same time as gross illegality and material irregularities were committed by the Appellate Court through the impugned judgment dated 8-2-2008. He submitted that this Civil Revision was argued at length by the applicant's counsel on many important questions with sound and reasonable grounds but the same were totally ignored except one relating to the plea of non- hearing of applicant's advocate by the Court below.
According to him, such ground only was taken into consideration while brushing aside the remaining grounds raised by applicant's counsel resulting in grave injustice. He further contended that if such error which is so manifest that it could not be permitted to remain on record, is not rectified the same will perpetuate injustice to the applicant whose Civil Revision itself was fit one to be allowed as prayed for.
8. The learned counsel for contesting respondent No,1 on the other hand, contended that the scope of review is very limited and the Civil Revision already decided by this Court finally, cannot be reopened at this stage. He further submits that even otherwise this review application is not maintainable as there is no error in the order of this Court dated 12-2-2009 so as to justify for its review when no valid ground is available to the applicant whose review application is therefore liable to be dismissed like her civil revision.
9. The perusal of record shows that the applicant has raised various grounds in her Civil Revision filed under section 115, C.P.C. But the order dated 12-2-2009 which is sought to be reviewed deals with the ground of non-hearing of applicants counsel by the Court below while B other points/grounds. Agitated by applicant were not discussed and therefore, such error is self-evident from the order itself requiring no elaborate discussion. In this regard a decision of Honourable Supreme Court made in the case of Land Acquisition Officer and A.C. Hyderabad v. Gul Muhammad reported in PLD 2005 SC 311 also provides in connection with, a review matter that misconstruction of law and misreading of evidence and also non-consideration of pleas raised before a Court, would amount to an error floating on the surface of record. Thus, a valid ground providing a legal basis for review is prima facie made out in the circumstances of this case and accordingly, this Review Application under section 114. C.P.C. Is very much competent and maintainable. Consequently, Civil Revision deserves consideration on merits on other grounds except one already discussed in the order dated 12-2-2009.
10. Adverting to main Civil Revision filed against impugned judgment dated 8-2-2008, learned counsel for applicant argued that the case of applicant was based on the sale agreement dated 3-5-1987 admittedly executed along with other documents by respondent No,2 as a general attorney of respondent No,3 for a valuable consideration and in part performance of such contract the applicant was put in possession of the property and thus she was also entitled to the protection of section 53-A of the Transfer of Property Act and accordingly the respondents Nos.2 and 3 were debarred under law from enforcing any other right except by virtue of the contract already entered into with applicant. He further argued that after observing necessary formalities and receiving sale permission dated 29-5-1988 duly issued by Director Military Lands and Cantonments, Ministry of Defence, the respondent No,2 also executed a. Final sale deed on 3-8- 1988 in favour of applicant which was duly registered on 8-8-1988 in which it was clearly mentioned that the property is free from all encumbrances and the said letter of permission for sale dated 29-5-1988 was also specifically mentioned in it therefore she cannot be deprived of her property on no fault of whatsoever nature on her part. He further argued that such facts were never denied by respondent No,3 and on the contrary the same were clearly admitted by respondent No,2 in his very written statement, the contents of which were also affirmed by him during his evidence and such undisputed and admitted facts needed no further proof, yet the applicant established such facts by adducing evidence and producing relevant documents but the Court below ignored such documents and misconstrued the evidence through impugned judgment which suffers from misreading and non-reading of material evidence. He also contended that after entering into the contract of sale agreement dated 3-5-1987 and before execution of final sale deed dated 3-8-1988 in favour of applicant, another sale deed was allegedly executed by respondent No,2 on 22-6-1987 in favour of his father/respondent No,1, which by itself is of no legal effect being collusive, invalid and void specially when it was without any consideration as well as without specific permission of the owner i,e, respondent No,3, who had also executed his affidavit on 8-5-1988 to the effect that he has not entered into any contract with respondent No,
1. Learned counsel also contended that even otherwise the applicant was a bona fide purchaser for value in good faith and without any notice of alleged sale dated 22-6-1987 which was also concealed by both these respondents Nos.1 and 2 being father and son inter se and this material fact is also admitted in the written statement of respondent No,2 whose obliging reply, subsequently given by him in favour of his father during cross examination, cannot change the earlier admitted position.
He also submitted that the applicant has continuously been in possession of the disputed property as its lawful owner and she has spent a huge amount on its construction and has also raised a double story building while mortgaging this property with a bank against loan facility but the Appellate Court failed to consider and appreciate such material evidence available on record in its true perspective which goes to the very root of the case and thus committed gross illegality and material irregularities causing grave injustice to the applicant.
11. On the other hand, the contention of learned counsel for respondent No,1 is that this being a Civil Revision and not regular appeal, does not empower this Court to take contrary view and reverse the concurrent findings of the two Courts below on the issues decided in favour of respondent No,1 on the factual aspect of the case. He further contended that even otherwise the sale deed executed in favour of respondent No,1 is earlier in time and no suit for its cancellation has been filed by the applicant therefore such sale deed cannot be presumed to have been cancelled in absence of such a decree of the competent Court. He therefore submitted that this Civil Revision deserves no merit.
12. We have considered the above submissions. It is an admitted position that the respondent No,3 was owner of disputed property and he had appointed respondent No,2 as his attorney. It is also a matter of record that this attorney executed two sale deeds, both were duly registered, one in favour of his father the respondent No,1 and the other in favour of the applicant in respect of the same property. The claim of applicant is that her contract i,e, sale agreement dated 3-5-1987 was earlier and the right of her possession over the disputed property being in part performance of the contract was protected under section 53-A of Transfer of Property Act and that the final sale deed executed by respondent No,2 in her favor on 3-8-1988 was as per the instructions of his father the respondent No,
1. While the claim of respondent No,1 is that the sale deed executed by his son, the respondent No,2 in his favour on 22-6-1987 was earlier in time to that of the sale deed executed on 3-8-1988 in favour of the applicant. In this connection it appears that the material evidence in respect of the possession over the property in question was not discussed or considered by the learned Appellate Court and on the contrary the same has been ignored though it was interconnected to other points/issues and thus, it was necessary to ascertain as to how the applicant who was not alleged to have got such possession by force, came into possession of disputed property if the same was not under the contract in question. Moreover, the Appellate Court also seems to have dealt with the material issues regarding bona fide purchase for value, in good faith and without notice of earlier transaction, in a casual and perfunctory manner, which also required to be adhered to judiciously.
13. The contention of learned counsel for the applicant which needed due consideration of learned Appellate Court was also to the effect that the claim of applicant was admitted by respondent No,2 in his very written statement the contents of which were also affirmed by the respondent No,2 through his evidence but legal effect of such admission of respondent No,2 which goes to the very root of the case, has been ignored from consideration in its true perspective. On the contrary the issues Nos.8, 9 and 11 jointly decided by learned Appellate Court also appear to have not been dealt with properly while observing that the evidence of defendant No,2 was very confusing in nature and therefore the same cannot be considered in this judgment. This type of observation amounts to decline to exercise the jurisdiction vested under law in the Appellate Court which appears to have adopted such a way the result of which has put a party in advantageous position as against the other. While the issues Nos.6, 7 and 10 were declared as redundant. No doubt the issues in the suit were not properly framed and the Appellate Court was also not bound to give findings issue-wise, yet the relevant points of E determination were required to be formulated in terms of Order XLI, Rule 31, C.P.C. But same were not made therefore the material piece of evidence seems to have been misdirected and misconstrued while recording findings by the Appellate Court in its judgment which of course suffers from misreading and non-reading of material evidence apparent on the face of record, hence the Appellate Court fell in grave error of law in deciding the case in a manner which has resulted in miscarriage of justice and thus the impugned judgment also suffers from material irregularities and illegalities.
14. In the circumstances, we find that the impugned judgment calls for interference in revisional jurisdiction of this Court as the Appellate Court needs to give a proper judgment afresh while recording its findings on the points for determination to be formulated by it after re-hearing the contesting parties in accordance with law. It was for these reasons that we had allowed the Review Application as well as Civil Revision vide a short order dated 29-1-2013. Consequently, the impugned judgment dated 8-2-2008 stands set aside and accordingly the case is remanded to the learned Appellate Court for compliance as above. There is however no order as to the cost.