' MUHAMMAD NOOR MESKANZAI, J.--- Instant revision petition is directed against the order dated 23rd December, 2009 passed by the Majlis-e-Shoora, Jhalawan, Khuzdar whereby the judgment/decree dated 7th August, 2008 passed by the learned Qazi Jhalawan Khuzdar was maintained and appeal filed by the petitioner was dismissed.
2. Facts relevant for disposal of instant petition are that the respondent instituted a suit for Specific Performance of Agreement dated 30th September, 2004 against the petitioners in the Court of Qazi Jhalawan Khuzdar. It was averred in the plaint that the respondent contracted marriage with the sister of petitioner No,2. Thereafter, with the intervention of Sardarzada Mir Mehrullah Zehri, the marriage was dissolved on the basis of `Khula' vide agreement dated 30th September, 2003.
According to the plaintiff/respondent by means of above referred agreement the petitioner No,2 agreed to pay Rs,225,000/- to the respondent in instalments. The first instalment was payable on 1st February, 2004 and 2nd instalment on 20th May, 2004. It was further averred in the plaint that petitioner No,1 also stood surety for the petitioner No,
2. Initially the petitioners postponed the payment on one or the other pretext, however, later on flatly refused to pay the amount, hence the suit.
3. The suit was contested by the petitioners by way of filing written statement whereby besides raising certain preliminary legal objections, claim of the respondent was repudiated on merits as well.
4. The learned trial Court, our of the pleadings of parties framed following issues for determination::--- {{Urdu Text}}
5. Thereafter the parties were directed to adduce evidence in support of their respective claim, whereupon, the plaintiff produced three P.Ws. And not recorded his statement through attorney. In rebuttal, the petitioners produced one DW and got recorded their statements through attorney. The learned trial Court after hearing the parties and evaluating the evidence, vide judgment/decree dated 7th August, 2008 dismissed the suit filed by the respondent. The latter feeling arrrieved of the above referred judgment-decree preferred an appeal before the learned Majlise-Shoora Jhalawan at Khuzdar. The appellate Court vide judgment-decree dated 27th February, 2009 accepted the appeal and passed ex parte judgment-decree against the petitioners. After passing of impugned judgment-decree, during execution proceedings, the petitioners came to know that ex parte judgment-decree has been passed against them, as such; they filed an application against the ex parte judgment-decree dated 7th August, 2008 but the learned appellate Court vide judgment dated 23rd December, 2009 also dismissed the appeal, hence instant revision petition.
6. The learned counsel for the petitioners argued that the appellate Court committed material irregularity by passing the ex parte judgment-decree. Similarly, thereafter, the application for setting aside the ex parte judgment was illegally dismissed because no publication was made by the appellate Court before passing the ex parte judgment-decree. There was no proper service upon petitioners. Learned counsel for the petitioners further submitted that the suit filed by the respondent could not have been decreed because the same was hopelessly barred by time but the appellate court illegally, unlawfully and without any rhyme or reason passed ex parte judgment-decree against the petitioners.
7. Despite service, the respondent did not attend the court, as such; he was proceeded against ex parte vide order dated 10th October, 2012.
8. I have considered the arguments put forth by learned counsel for the petitioners and perused record of the case. Admittedly, the service upon petitioner was improper and legally there was no occasion for the appellate Court to have proceeded against ex parte. From one angle it was a case of remand but since the appellate Court has decided the case on merits, therefore, the remand would be a futile exercise, hence I propose to decide the fate of matter. The perusal of record reflects that the appellate Court proceeded with the matter in a mechanical manner and passed the impugned judgment and decree by overlooking the material available on record and by misappreciating the facts of the case. Initially, the respondent filed a suit for Specific Performance of an agreement dated 30th September, 2003 with the assertion that the sister of petitioner No,2 was married with the respondent. After solemnization of marriage the relation between the spouses became strained, with the result, the petitioner No,2 took his sister to his house. After some time on the intervention of one Mir Mehrullah Zehri, the marriage was dissolved on the basis of 'Khula' against an amount of Rs,225,000/- (Rupees two lacs and twenty five thousand). According to terms of agreement the first instalment was due on first February, 2004 and the second on 20th May, 2004. Along with the plaint the alleged agreement was annexed and in support of the claim the petitioners produced three P.Ws., out of whom, P.W.1 is a marginal witness. The witness has admitted that the signatures of Yar Muhammad are not available on the agreement. P.W.1 is the sole witness who has been examined, whereas rest of the witnesses i,e, ascribe/author and marginal witnesses were not produced. The trial Court after taking into consideration the legal aspect and the proof of document within the framework of order Qanun-eShahadat observed that the document has not been proved. Since the respondent seeks the performance of the document, therefore, it was the bounden duty of the respondent/plaintiff to have proved the contents of the document by producing author and the marginal witnesses. Admittedly, the author and rest of the marginal witnesses were not produced and the clear requirements of Article 79 of the Qanun- eShahadat Order, has not been satisfied. The plaintiff failed to prove the contents of documents as required by Article 79 of Qanun-e-Shahadat Order. The appellate court while dilating upon this issue misread the evidence, misconstrued the documents, misappreciated the facts and, thus, the findings are based on no evidence. Contrary to the findings of the appellate court, the learned trial Court after proper appraisal of the material available on record by applying judicial mind rightly resolved the issues. From another angle the so-called agreement is illegal, void, against the public policy and, therefore, absolutely unenforceable. The plaintiff seeks enforcement of agreement and claims for recovery of Rs,2,25,000/-, whereas the agreement besides Rs,2,25,000/- also contains Rs,75,000/- to be paid as Sardari Tax. Though the said amount has been waived but indicative of the fact that still the Sardari system survives and a Sardari Tax is imposed which is in utter violation and contrary to the provisions of Balochistan System of Sardari (Abolition) Ordinance, 1978. For the sake of convenience, the relevant provision of said Ordinance is reproduced:- "Abolition of system of Sardari.--- Notwithstanding any custom or usage, as from the commencement of Ordinance, the system of Sardari shall stands abolished and no person shall,
(a) exercise any judicial powers not expressly conferred on him by or under any law for the time being in force ; or
(b) maintain any private jail; or
(c) save as provided in the Court of Criminal Procedure, 1898 (Act V of 1898), or any other law for the time being in force, arrest or kept in custody any person; or
(d) takes free labour from any person or compel any person to labour against his will; or
(e) demand or receive, by reason of being or having been a Sardar, any tribute or any other payment, whether in cash or in kind."
' Above all, such an agreement for all intents and purposes is a void and unenforceable agreement within the meaning of provisions of Contract Act.
' So the findings on Issue No,1 are hereby reversed and the findings of the trial Court are maintained and upheld.
9. Adverting to Issue No,2 the claim of the petitioner was refuted and denied on a viable and legal ground i,e, since the marriage of respondent No,1 with the sister of petitioner No,2 stood dissolved consequent upon a decree passed by the Additional District Judge, Khuzdar vide judgment and decree 31st March, 2001. The decree has been passed as far back as in the year 2001, thereafter, what was the occasion for the parties to have another meeting and to dissolve a marriage through `khula' which does not exist at all. Admittedly, the respondent No,1 did not challenge the findings of Additional District Judge, Khuzdar before the higher courts and the findings are occupying the field till date. In such circumstances, it is beyond comprehension .That what compelled the petitioners to convene a meeting and dissolve a marriage on the basis of `Khula' which has already been dissolved by the court of competent jurisdiction. The appellate court failed to take into consideration the nature of the claim which was/is not legal, acceptable as the question of `khula' arises where the marriage subsists. It is quite strange how the appellate court over looked the judgment passed by the Additional District Judge, Khuzdar whereby the marriage tie between the spouse had already been dissolved. Besides, the observations of the appellate court regarding the proof of contents of document are contrary to law. For the sake of convenience relevant observations are reproduced:- {{Urdu Text}}
10. It is not known how the appellate court took such view and from where such observations find support. The findings being contrary to law, result of misreading of evidence, misappreciation of fact are hereby reversed and that of trial Court are maintained. Moreover, while dilating upon Issue No,1, the appellate court did not opt to use proper language. For the sake of convenience, relevant partition of the judgment is reproduced herein below:- {{urdu Text}}
11. The word (4....) is an improper language and not desirable to be used by a Presiding Officer particularly while discussing or setting aside the reasons of the lower forums. It is an unofficial and non-parliamentary language, as such, contrary to judicial ethics and norms, and suggestive of a pre-judicial approach towards the fate of case. The said word i,e, (..-sa){{urdu Word}} from the judgment is hereby expunged. There is another glaring irregularity in the judgment i,e, appeal was filed without affixation of court-fee, nor any application under sections 148/149, C.P.C. Was filed along with appeal, as no such application was referred to by the appellate Court. In view of such legal infirmity, the appeal was not entertainable but a valid decree passed by the trial Court was set aside on the basis of an incompetent appeal. In this regard, the observations of the appellate court are reproduced herein below:--- {{Urdu Text}}
12. The appellate court misapplied the law by entertaining an appeal without court-fee muchless without an application under sections 148/149, C.P.C. For extension of time for affixation of court-fee.
While filing this revision petition the petitioner also did not affix court-fee. This point did not surface during course of arguments, nor the office took notice when the petition was presented, nevertheless, the parties cannot escape their legal obligation and avoid the payment of court-fee.
The petitioner is bound to affix court-fee on the memo of petition, therefore, I direct the Collector Khuzdar, to recover court-fee in the sum of Rs,15,000/- from petitioners as well as court-fee in sum of Rs,15,000/- from respondent under intimation to the Registrar of this Court.
' In the light of above discussion, I am inclined to accept this petition, set aside the impugned judgment and decree followed by order dated 23rd December, 2009 passed by the appellate Court. The judgment and decree dated 7th August, 2008 passed by the learned trial Court are upheld with cost throughout.