' This revision petition is directed against the judgments and decrees dated 17.4.2010 and 18.11.2013 passed by learned Civil Judge, Vehari and an Additional District Judge, Vehari, respectively, whereby the suit of the petitioner for declaration was dismissed and an appeal preferred thereagainst also met the same fate.
2. The plain and unvarnished facts are that Muhammad Sajjad Khan, the petitioner and his four brothers, Muhammad Waiid Khan, Zulfiqir Ali Khan. Muhammad Raza Khalid Khan and Muhammad Abid Khan instituted a suit far declaration in respect .Of a house bearing No, F/171, Block, Vehari measuring 8 marlas and 7 sarsahis, situated in the revenue estate Vehari. Shorn of unnecessary details, the plaintiffs had challenged a registered sale-deed No, 460/1 dated 8.3.2006 executed in favour of Defendants/Respondents Nos. 1 to 3, followed by Mutation No, 6902 attested on 30.5.2006 on the ground that the same were the outcome of fraud, deception and misrepresentation. It was alleged in the plaint that Muhammad Khalid Khan, predecessor-in-interest of the petitioners had lost senses a few months prior to his death, and that he was not in a position to travel to the office of Sub-Registrar to execute and get the sale-deed in question registered. It was further maintained that no consideration was received by the deceased. Even otherwise, the suit property was worth not less than Rs, 50,00,000/-, while the same was shown to have been sold for Rs, 5,00,000/-, which by itself was a pointer in the direction of the fraud perpetrated by Respondents Nos. 1 to 3 herein.
3. The averments made by the plaintiffs were strongly controverted, refuted and denied by the defendants, who maintained that Muhammad Khalid Khan, their predecessor-in-interest had duly executed a sale-deed in their favour and that no deception was carried out. It was also controverted by them that Muhammad Sajjad Khan, the petitioner herein was in possession of the suit property. On the contrary, it was claimed by the vendees/defendants that they had been in possession thereof ever since the transfer of the suit property made to them.
4. As the suit got under way, two of the plaintiffs, namely, Muhammad Raza Khalid Khan and Muhammad Abid Khan moved an application before the learned trial Court on 24.03.2008.
Thereupon, the file was sent for, and their statement was recorded. They disassociated and distanced themselves from the institution of the suit. On the other hand, they expressly stated that the suit property was duly transferred to the defendants by their father, Muhammad Khalid Khan As a result, the suit was held to have been dismissed to their extent. In yet another development, on 20.6.2008 Defendants Nos. 2 and 3 (Muhammad Wajid Khan and Zulfiqar Ali Khan) were required to be summoned in person.
5. Learned counsel for the petitioner herein undertook to produce them. But when despite availing of several opportunities, he failed to ensure their presence, it was held on 21.11.2008 by the learned trial Court seized with the suit that the suit would be deemed to have been dismissed to their extent as well. In this respect, the provisions contained in Order IX. Rule 12, CPC were pressed into service.
6. It goes without saying that in the wake of the pleadings of the parties, following issues were struck: Issues.
1. Whether the plaintiff is entitled to the declaratory decree along with perpetual injunction and registered Sale-Deed No, 460/1 dated 08.03.2006, Mutation No, 6902. Illegal against law and facts, hence, liable to be set aside? OPP
2. Whether the plaintiff has no cause of action to file this suit? OPD
3. Whether the plaintiff is estopped by his words and conduct? OPD
4. Whether the suit of the plaintiff is false, frivolous, based on mala fide and plaintiff is not come to this Court with clean hand and defendant is entitled to special costs u/S. 35-A, CPC? OPD
5. Relief.
7. The petitioner herein, who was left to fend for himself and the defendants led pro and contra evidence in support of their respective pleas. The petitioner appeared as PW-1 and did not feel called upon to produce any other witness. However, he tendered in evidence copy of Mutation No, 6902 dated 30.5.2006 as (Exh.P-1), an extract from the Register of Deaths as (Exh.P-2). And a certified copy of the disputed sale-deed as (Exh.P-3). In rebuttal, one of the defendants, Muhammad Sajid Khan appeared as DW-1, besides examining Khurshid Ahmad (D.W.2). Arshad Hussain (D.W.3), Zafar Iqbal (D.W.4), Nazir Ahmad. Registry Moharrir (D.W.5), Ch. Muhammad Ashraf, Sub-Registrar, Vehari (D.W.6) and Zulfiqar Ali. Stamp Vendor as (D.W.7). In documentary evidence, the defendants produced copies of Exh.D-1 to Exh.D-10, including the ones relating to disputed mutation and the disputed sale-deed. The rest of the documents pertained to property tax receipts, income certificate, Jamanbandi etc.
8. Having listened to the arguments of the learned counsel for the parties, examining the record and appraising the evidence produced by the parties, the learned trial Court non-suited the petitioner/ plaintiff vide judgment and decree dated 17.4.2010. As stated above, the petitioner herein instituted an appeal, which was also dismissed by an Additional District Judge, Vehari vide judgment and decree dated 18.11.2013.
9. In bears repeating that the aforesaid judgments and decrees passed by the learned Courts below have been assailed before this Court by filing the instant revision petition. The foremost grounds urged by the learned counsel for the petitioner in support of the petition are two folds: one, that two of the co-plaintiffs were not to be 'allowed to withdraw the suit without the consent and concurrence of the rest of the plaintiffs; two, the provisions under Order IX, Rule 12, CPC had no application to the case of the petitioner, and they were wrongly invoked with respect to two of the plaintiffs. Apart from these legal arguments, arguments of generalized nature were also advanced.
It was submitted that it was incumbent upon the beneficiaries to prove the transaction in question.
He wondered why the defendants should have purchased the suit property from their own father, who was on the verge of death. Contradictions and discrepancies in the evidence of the witnesses were also pointed out to urge that the petitioner had succeeded to prove the fraud committed by the Defendant/Respondents Nos. 1 to 3.
10. I have heard the arguments made by the learned counsel for the petitioner and gone through the record appended to the revision petition with his assistance.
11. With utmost respect to the learned counsel for the petitioner that I can not subscribe to the argument made by him that two of the co-plaintiffs, namely, Muhammad Raza Khan and Muhammad Abid Khan could not be allowed to disassociate themselves from the suit and repudiate the claim put forward in the plaint for the simple reason that there is nothing in Order XXIII, barring a plaintiff or a co-plaintiff from withdrawing the suit. Again, it is not imperative or mandatory for a co-plaintiff to first seek approval of his co-plaintiff(s) before withdrawing from the suit. The question of withdrawal of a suit has been left by the legislature at the sweet will and discretion of the plaintiff or plaintiff(s) for that matter. The Court of law has no or little role to play in such matters. In this case, the withdrawal of two of the plaintiffs from the suit had grave implications for the claim made by the petitioner herein. Practically, it was confirmed by Defendants Nos. 4 and 5 that the sale-deed made in favour of defendants/Respondents Nos. 1 to 3 was a valid one and that it suffered from no infirmity. It can hardly be overemphasized that for all intents and purposes, they were causing incalculable loss to their own perceived rights and interests, which they could have but for the sale-deed in question.
' As for the second argument deployed by the learned counsel for the petitioner that the provisions contained in Order IX, Rule 12, CPC had no application, the mere perusal of the afore-quoted provisions of law negates and refutes this sophisticated argument. It would not be inapt to reproduce Rule 12 of Order IX, CPC.
"Consequence of non-attendance, . Without sufficient cause shown, of party, ordered to appear in person. Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the Court for failing so to appear, he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants. Respectively, who do not appear."
12. As a matter of fact it was the stance of the defendants that Plaintiffs Nos. 2 to 5 had not .Instituted the suit and that it was Plaintiff No, 1 only, who had been pulling the strings in the name of other plaintiffs. When two of the defendants withdrew from the suit voluntarily and, the other two did not turn up despite asking by the Court, the mind of the learned Court seized with the suit would definitely have been influenced.
13. I do not find that the learned trial Court committed any material irregularity either in following Order XXIII or Order IX, CPC. But I am struck by the fact that the grounds relating to the effects and implications of Orders XXIII and IX C.P.C. Urged before this Court by the petitioner were not raised in the grounds of appeal. The law is well-established that if a ground is not raised in the appeal, the same can not be urged at the time of filing the revision petition.
14. Since the perceived irregularities related to the procedure adopted by the Court, it was incumbent upon the petitioner to show that those irregularities caused prejudice to him, affecting the overall result. But he has failed to show any prejudice to have occasioned to him due to non- association of two of the plaintiffs and the dismissal of the suit to the extent of two other plaintiffs.
Even otherwise, the plaintiff was to stand on his own legs to prove the case instituted by him.
15. I have gone through the impugned judgments. It was rightly held by them that the plaintiff had failed to substantiate his claim that the sale-deed in question was the handiwork of the defendants. The defendants examined the marginal witnesses to the sale-deed, besides examining the Stamp Vendor. They also examined the Sub-Registrar, who stated categorically that the deceased had himself appeared before him and admitted to have transferred the suit property to the defendants after receiving the sale consideration mentioned in the sale-deed.
' In my view, the plaintiff failed to prove his case. His solitary statement in support of his claim cannot take precedence over the cogent, convincing and trustworthy evidence produced by the defendants. The very fact that four of his brothers refused to support his claim is a strong circumstance to belief the claim set up by him in the plaint.
16. The law is well-settled that civil suits are to be decided on the basis of preponderance of evidence and that onus of an issue continues to shift from one party to another. It never remains static. In this respect, reference may be made to the judgment of the Supreme Court of Pakistan .Reported as "Muhammad Amir v. Khan Bahadur and another" (PLD 1996 SC 267 at 273).
17. The disconnect of petitioner may be the Judged from the fact that he stated on oath that his father was suffering from the malady of cancer, but he himself produced an extract from the Death. Register (Exh.P.2), a perusal whereof shows that Muhammad Khalid Khan was recorded to be suffering from asthma, which resulted in his death. Incidentally, this report was made by none other than the petitioner himself. To put it simply, the document produced by him contradicted him on a material point. That is why both the Courts took his claim with a pinch of salt, and felt contented to non-suit him.
18. Since the petitioner has failed to point out any misreading and non-reading of evidence on the part of the learned Courts below nor has the learned counsel representing him been successful in showing that the impugned judgments suffer from excess of jurisdiction or lack of jurisdiction or that the Courts below committed any material irregularity, the interference with them is not called for. This revision petition, therefore, fails and is hereby dismissed in limine.