AMIN-UD-DIN KHAN, J. - Through this civil revision, the petitioners (legal heirs of plaintiff-Mst. Zahida Sabir) have challenged the judgment & decree dated 04.11.2008 passed by learned Addl. District Judge, Lahore, whereby the appeal filed by respondent No. 1 to the extent of plaintiff No. 2 was accepted, in result of which, judgment & decree dated 26.03.1992 passed by learned Civil Judge 1st Class, Lahore decreeing the suit were set aside to that extent.
2. The facts of this case are that the petitioner, who is one of the plaintiffs, along with Mst. Abida Azam filed a suit on 22.05.1980 for administration of estate and rendition of accounts of the properties mentioned in the plaint left by Mirza Sultan Baig, father of plaintiffs as well as defendants No. 1, 3 to 5 and husband of defendant No. 2, who died on 22.03.1975.
The written statement was filed by defendant No. 1 (Mirza Abid Baig) and suit was contested. The case of Mirza Abid Baig was that he is real owner of the properties and his father was Benamidar and it was also denied that Mirza Sultan Baig was predecessor-in-interest of plaintiffs. Whereas defendants No. 2 to 5 filed written statement with the prayer that suit of the plaintiffs be dismissed.
Issues were framed and parties were directed to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the closing of trial, vide judgment & decree dated 26.03.1992 passed by learned Trial Court suit was partially decreed. Two appeals were filed before learned first Appellate Court, one by defendant No. 1 (Mirza Abid Baig) and the other by defendants No. 2 to 5. Both the appeals were dismissed vide judgment & decrees dated 03.01.1995 passed by learned first Appellate Court. Against the dismissal of his appeal, civil revision No. 1672 of 1995 was filed by Mirza Abid Baig before this Court. On 22.11.1995 this Court was informed that there was contest between the petitioner and respondent No. 1 only and the same has also been settled. The civil revision was dismissed with the following order:- AMIR ALAM KHAN, J. - Parties have reached a compromise whereby the petitioner has offered to pay Rs. 14,00,000/- (fourteeh lacs) in full and final settlement of the claim of the respondent No. 1 in regard lo her claim of inheritance from the estate left by the deceased predecessor-in-interest of the parties. This offer of the petitioner is accepted by respondent No. 1 and it is agreed that the petitioner shall pay the above-said amount in four instalments in the manner provided hereunder:-
1. First instalment of Rs. 500,000/- shall be paid on 05.12.1995.
2. Second instalment of Rs. 300,000/- shall be paid on 05.01.1996.
3. Third instalment of Rs. 300,000/- shall be paid on 05.02.1996.
4. Fourth and final instalment of Rs. 300,000/- shall be paid on 05.03.1996.
2. The above-said instalments are agreed to be paid through four post dated cheques which have been presently issued by the petitioner and handed over to Respondent No. 1 in the presence of the Court.
3. It is submitted that respondent No. 1 is the only contesting party and respondents No. 2 to 6 have no claim against the petitioner.
4. In view of the compromise noted above, this civil revision is dismissed and the suit of respondent No. 1 is decreed to the extent of recovery of Rs. 1400,000/-, which shall be paid by the petitioner to the respondent No. 1 in the mode and manner mentioned herein above. In case of all or any of the cheques referred to above is dis-honoured, the respondent No.1 shall be entitled to recover the amount or amounts thereof through execution of the decree passed in her favour. There shall be no order as to costs."
3. Thereafter two applications under Section 12 (2) of the CPC were filed before this Court in civil revision No. 1672 of 1995, one by Mirza Imran Baig and the other by Mst. Zahida Sabir etc. Issues were framed and the matter was sent for recording of evidence before learned District Judge, who after recording the evidence upon both the applications sent the same before this Court. Vide order dated 09.05.2003 both the applications were accepted and the civil revision was restored to its original number.
4. While hearing the arguments of civil revision No. 1672 of 1995 after its revival, it came to the surface that during the pendency of appeal before learned first Appellate Court, an application under Order XXIII, Rule 1 of the CPC for permission to withdraw the suit or acceptance of appeal was filed, which remained undecided by the lower Appellate Court. Though the filing of application was denied by Mst. Zahida Sabir, therefore this Court with the consensus of the parties accepted the civil revision on 28.03.2006 and remanded the matter to learned District Judge. The operative Para of the judgment is as follows:- "This Court finds the joint request of the, learned counsel for the parties as reasonable in the above explained circumstances. The learned first Appellate Court was legally obliged to decide the above-referred application under Order XXIII, Rule 1, CPC statedly filed by Mst. Zahida or on her behalf before passing the impugned judgment and decree dated 03.01.1995. The decision of this application had direct, effect on the appeals as well as the suit. Non-decision of the said application amounts to non-exercise, of the jurisdiction vesting in the first Appellate Court. The impugned judgment and decree dated 03.01.1995 was passed by the learned Addl. District Judge, Lahore in exercise of jurisdiction not vesting in him. Accordingly, the judgment and decree dated 03.01.1995 for the above reasons and also on the joint request of the learned counsel for the parties is set aside. The learned first Appellate Court shall decide the above-said application under Order XXIII, Rule 1, CPC in accordance with law before proceeding with the appeals. The parties shall be allowed full opportunity of further evidence, if they so request, to the extent of the said application.
The parties shall also be entitled to refer to and rely upon the evidence already recorded by the learned Trial Court and the evidence recorded under order dated 09.05.2003 of this Court. The appeals shall be deemed to be pending and shall be re-decided by the learned first Appellate Court after decision on the said application. The parties shall have the right to refer to in accordance with law any documents filed before this Court including the applications under Section 12(2), CPC and replies thereto. The issues and the evidence as recorded under the above order of this Court on the applications under Section 12(2), CPC shall be remitted to the learned first Appellate Court per the prescribed procedure."
5. After the remand it is on the record that through an application moved on 11.07.2008 by the successors of Mst. Zahida Sabir, it was prayed that they be permitted to withdraw the previously filed application under Order XXIII, Rule 1 of the CPC. Learned first Appellate Court vide order dated 27.08.2008 accepted the application and the application u/O. XXIII, Rule 1 of the CPC was dismissed as withdrawn. The record shows that the appellant moved an application under Order 41, Rule 27 of the CPC on 30.07.2008 for permission to produce an agreement of settlement dated 16.10.1993 between the appellant and Mst. Zahida Sabir, as an additional evidence. The said application was accepted on 05.09.2008 subject to payment of cost of Rs. 3000/-. It is also on the i.e that, on the subsequent date i. e. 13.09.2008 the cost was offered to learned counsel of Mst. Zahida Sabir, who did not receive the cost. The evidence was recorded to prove the agreement dated 16.10.1993, which was produced as Ex.AW-1 and the statements of AW-1 to AW-3 on the side of appellant/Mirza Abid Baig were recorded. On behalf of respondents in the appeal i.e. Legal heirs of Mst. Zahida Sabir, statements of RW-1 and RW-2 were recorded, it is on the i.e that this order for grant of permission to produce additional evidence was not challenged during the pendency of appeal before any forum.' Learned first Appellate Court vide judgment & decree dated 04.11.2008 accepted the appeal against Mst. Zahida Sabir on the basis of Ex.AW-1, finding that she has received her share. Though the parties were declared to be the legal heirs of Mirza Sultan Baig deceased and the judgment & decree passed by learned Trial Court was maintained to the extent of Mirza Imran Baig (respondent), son of the deceased, Mst. Naveeda Pasha and Mst. Fakhra Tariq, the daughters.
On the basis of that Mst. Fakhra Tariq has received her share in shape of Rs. 1400,000/-, as per judgment of this Court dated 22.11.1995 passed in civil revision No. 1672 of 1995 and it was declared that she has no share in the property. Against this judgment & decree passed by first Appellate Court dated 04.11.2008 two revisions have been filed, one by the petitioners (legaj\l heirs of Mst.
Zahida Sabir) civil revision No. 489 of 2009 and the other was filed by Mirza Abid Baig/defendant No. 1 civil revision No. 593 of 2009, which has been withdrawn on the basis of compromise.
6. Learned counsel for the petitioners argues that in the order sheet dated 20.10.1993 it is visible that the application u/O. XXIII, Rule 1 of the CPC has been mentioned at the margin of page, in the regular interim order there is no mention of that application; that the order mentioning of filing of application visibly is in another handwriting than the regular order dated 20.10.1993; that this application is not mentioned in any of the subsequent orders; that after the remand of case by this Court, an application was filed by the legal heirs of Mst. Zahida Sabir on 11.07.2008 to the effect that the application allegedly moved by their mother u/O. XXIII, Rule 1 of the CPC on 20.10.1993 be dismissed as withdrawn. Learned counsel has referred to the order dated 27.08.2008 whereby the permission was granted and application u/O. XXIII, Rule 1 of the CPC allegedly moved by Mst.
Zahida Sabir was dismissed as withdrawn; that this order of dismissal of aforementioned application was never challenged the respondents-defendants on 30.07.2008 moved an application under Order 41, Rule 27 of the CPC for permission to produce additional evidence, which was accepted on 05.09.2008 subject to payment of Rs. 3000A as i.e, which was not received by learned counsel for the petitioner Mst. Zahida Sabir; that the respondents- defendants produced an agreement dated 16.10.1993 as Ex.AW-1 and also produced witnesses AW-1 to AW-3; that the petitioners produced their witnesses as RW-1 and RW-2. Learned counsel states that the permission for production of additional evidence granted by learned first Appellate Court was in dear violation of remand order passed by this Court dated 28.03.2006, whereas learned first Appellate Court was bound to proceed with the appeal in accordance with remand order and that learned Addl. District Judge was not competent to travel beyond the remand order. In this context, learned counsel relies upon "2009 M LD 106 (Masood Rahim and 7 others v. Abdul Majeed. And 9 others)". It has been further argued that even the additional evidence led by the respondents-defendants with regard to a document prepared during the pendency of appeal is forged and fictitious one, as the alleged agreement dated 16.10.1993 was first time introduced in the Court through the application dated 30.07.2008; that the alleged agreement dated 16,10.1993 is void, against the provision of law and dictate of consideration, and, also against the public policy; that the respondents-defendants are estopped, to deny, the claim of petitioners; that the alleged payment recorded in the agreement does not relate to the inheritance of father of Mst. Zahida Sabir, predecessor of petitioners that while considering the application under Order 41, Rule 27 of the CPC, learned first Appellate Court was bound to see that whether the appeal can be decided without allowing this application, however, this absent has been totally ignored by the Court, therefore the order passed by learned first Appellate Court allowing the additional evidence was against the law. Further states that the agreement came up on the i.e after the death of Mst. Zahida Sabir and that no independent advice was available to Mst. Zahida Sabir at the time of alleged agreement when she was having her children and husfand. In this regard, learned counsel has relied upon the judgment reported as "2010 SCM R 1116 (Muhammad Ashraf Khan v. Khan Siddique and others) and 2004 SCM R 1259 (Khawas Khan through Legal Heirs v. Sabir Hussain Shah and others)". Further states that the evidence produced by the respondents-defendants is not only self contradictory but also against their case. Learned counsel has referred to the portion of statement of defendant that at some place he says that there was no share of deceased lady in the suit property and at another place he says that the payment was made to the lady for withdrawal of her claim; that no witness has deposed that Mst. Zahida Sabir has signed the agreement in their presence. While relying upon "PLD 1990 Supreme Court 1 (Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi)" learned counsel argues that it being a matter of inheritance the petitioner cannot be nonsuited on the basis of forged document. Learned counsel lastly argued with grief that the respondent has denied from the relationship with the petitioner-plaintiff, Mst. Zahida Sabir to be his sister; that it is a Tuhmat'
(urdu) on the mother and for grabbing the property of father of parties the defendant has gone to this extent, which is not only shameful but also a 'Tuhmat1 (urdu) upon his own mother.
7. On the other hand, learned counsel for the respondents-defendants argues that the predecessor of petitioners, Mst. Zahida Sabir, was compensated, therefore an application under Order XXIII, Rule 1 of the CPC was moved by her to withdraw the suit or acceptance of appeal; that the respondents-defendants filed application for permission to produce the additional evidence, which was produced and proved on the i.e; that the judgment & decree passed by learned first Appellate Court are in accordance with law. Further states that there is contradiction between the pleading and evidence led by the petitioners with regard to the agreement of compromise produced by the respondents-defendants as additional evidence; that even in the remand order there is mention of additional evidence, as such, learned first Appellate Court has rightly granted the application moved by the respondents-defendants.
8. I have heard the learned counsel for the parties at full length and also gone through the voluminous record with their able assistance.
9. Lam Clear in my mind that when the matter was remanded by this Court to lower Appellate Court with the direction to decide the same afresh, therefore learned lower Appellate Court was bound to confine itself within the limits of remand order passed by this Court, to adjudicate upon the matter. In this case, the matter was remanded with the consent of learned counsel for the parties to learned first Appellate Court, where allegedly according to the appellant (Mirza Abid Baig) an application was moved by one of the plaintiffs Mst. Zahida Sabir, which was not decided before the decision of appeal. It is on the record that as Mst. Zahida Sal?Ir died before the remand of case, therefore her legal heirs filed the application before the learned first Appellate Court alleging therein that they be permitted to withdraw the application allegedly filed by their predecessor under Order XXII, Rule 1 of the CPC. The permission was granted by learned first Appellate Court and the application allegedly filed by Mst. Zahida Sabir was withdrawn on 27.08.2008. The said order was never challenged before this Court, therefore the same had attained finality. Meaning thereby, the respondent-appellant in the appeal accepted that order of permission to withdraw the application allegedly filed under Order XXIII, Rule 1 of the CPC by Mst.
Zahida Sabir. Furthermore, I have noticed that the interim order dated 20.10.1993 was passed and after that at the margin of interim order sheet there is mention of filing of application under Order XXIII, Rule 1 of the CPC by Mst. Zahida Sabir. This order is visibly by a different handwriting than the regular interim order of that date and even the figures of date are different, which shows that the filing of application on 20.10.1993 was later on mentioned at the margin of this order sheet. The other fact is that this application was never mentioned in any subsequent order till the decision of appeal. In the remand order learned first Appellate Court was directed to decide the application under Order XXIII, Rule 1 of the CPC in accordance with law before further proceeding with the appeal. The parties were also granted full opportunity for further evidence if required to the extent of said application and when learned first Appellate Court allowed the petitioners to withdraw this application, which was not challenged before this Court, therefore learned first Appellate Court was bound to decide the appeal on merits. The allowing additional evidence ignoring the law with regard to the grant of permission to produce additional evidence was further illegality committed by the Court. Further, on the basis of additional evidence ignoring all other evidence available on the i.e and deciding the appeal by learned first Appellate Court was absolutely without jurisdiction and against the settled principles of his sister, can go to any extent to save the property and disinherit Mst. Zahida Sabir. Besides, the relationship of deceased lady, Mst. Zahida Sabir (predecessor of petitioners), has been' established and proved with the propositus, namely Mirza Sultan Baig. Moreover, the document sought to produce as additional evidence was dated 16.10.1993L that too, during the pendency of appeal, and further when the appeal was pending adjudication and the relationship of sister and brother was denied in the written statement, therefore what was the fun not to compromise the matter before the Court. All these circumstances and the evidence available on the i.e go against the defendants-respondents, who were appellants before the lower Appellate Court. In this view of the matter, I am clear in my mind that learned first Appellate Court has travelled beyond its jurisdiction by ignoring the remand order passed by this Court in civil revision No. 1672 of 199j, dated 28.03.2006.
10. I have noticed that in the application under Order Xxiii 1 of the CPC allegedly moved by Mst.
Zahida Sabir before the first Appellate Court on 20.10.1993, there is no mention of the, agreement produced as additional evidence as Ex.AW-1. The application was moved allegedly on 20.10.1993, whereas this agreement (Ex.AW-1) is dated 16.10.1993, which never came to the. Surface before 30.07.2008, when the application for additional evidence was moved. The Para 4 of the (sic).
"That the applicant has settled her disputes with the appellant outside the Court and now she admitted that she had filed a suit which was not well-founded and was misguided in this regard.
She admits that she has no claim whatsoever in the estate allegedly left by late Mirza Sultan Baig as claimed in the plaint. Consequently the applicant seeks the indulgence of this Honourable Court to withdraw her suit under the provisions of Order 23 Rule 1 and to abandon her claim as propounded by her. She has no objection if the decree passed by the lamed Civil Judge dated 26.3.19 is set aside as prayed for by the appellant namely Mirza Abid Baig."
In this way, the agreement (Ex.AW-1) claimed by the appellant/defendant No. 1 before the lower Appellate Court is in contradiction with the application to have been moved by Mst. Zahida Sabir.
Furthermore, the document was not proved without any shadow of doubt and also no direct evidence required the law for proof of a document was produced. None of the witnesses deposed that Mst. Zahida Sabir signed the document in their presence. Para 3 of the alleged agreement is reproduced as follows:- "3. Mst. Zahida Sabir has already moved an application to the Court of Additional District Jadge where an appeal is ending titled Mirza Abid Baig and Mst. Abida Azam and in that application she has abandoned her claim and has requested the Court to allow the withdrawal of her suit under Oder 23, rule 1 C.P.C. She has also prayed to the Court that she has no objection if the appeal f Mirza Abid Baig is. Accepted as prayed for and the judgment and decree of the Court below is set aside."
This document is dated 16.10.1993, whereas the alleged application under Order XXIII, Rule 1 of the CPC allegedly moved by Mst. Zahida Sabir is having no date in it but moved before the Court on 20.10.1993, which fact is against the factual position mentioned in Para 3 of the alleged agreement, as before 16.10.1993 no application was moved before the first Appellate Court. Neither the same has been proved in accordance with law nor this document is binding upon the legal heirs of Mst.
Zahida Sabir, it being against the public policy in the light of pronouncement of august Supreme Court of Pakistan "PLD 1990 Supreme Court 1."
11. The other relevant fact is that according to the defendant/respondent No. 1, he paid Rs.
1400000/-to one of the plaintiffs Mst. Abida Azam and according to this document Rs. 700000/- has been shown to have been paid to Mst. Zahida Sabir. In this way, the entire stand taken by defendant No. 1 is self-contradictory, therefore the same is neither permissible nor sustainable under the lay/. Therefore, the findings recorded by the first Appellate Court in these circumstances are absolutely against the law. '
12. In the light of what has been discussed above, this civil revision is allowed. The impugned judgment & decree dated 04.11.2008 passed by learned Add). District Judge, Lahore are set aside and that of learned Civil Judge 1st Class, Lahore dated 26.3.1992 are restored.