MUHAMMAD SHAN GUL, J :- Through this judgment the titled civil revision is sought to be decided.
2. Through the present civil revision the petitioner has raised a challenge to an order dated 06.10.2015 passed by a learned Addl. District Judge whereby in an appeal filed by the petitioner , his application under Order XXIII, Rule 1 CPC for withdrawal of appeal and the suit with permission to file the suit afresh was refused and the application dismissed.
3. The present matter has a chequered history and is in its second round. Initially , the petitioner , Muhammad Iqbal (now deceased and through his legal representatives) filed a suit for specific performance of an agreement to sell against respondent Jalal Din (now deceased and through his legal representatives) and others including the Province of Punjab. While the suit land belonged to and vested in the Provincial Government it was allotted to the predecessor of Jalal Din, i.e. Faiz Muhammad in terms of the Tubewell Sinking Scheme.
4. A brief history of the matter may now be in order . The petitioner instituted his first civil suit for specific performance of an agreement to sell on 24.4.2006. This suit was dismissed on 18.6.201 1. The petitioner filed an appeal against dismissal of the suit and during the hearing of the appeal, vide order dated 07.11.2012, upon an application filed by the petitioner for producing additional evidence, the matter was remanded to the civil court for a decision afresh on the basis of additional evidence to be produced by the petitioner . After a full length hearing the suit was again dismissed on 29.3.2013. An appeal was filed in the matter thereafter by the petitioner and during the course of hearing of the appeal he moved an application under Order XXIII, Rule 1 CPC read with Section 151 CPC to withdraw the appeal and the suit with the permission to file the suit afresh on the ground that he had recovered the original agreement to sell along with the original receipt of payment on 20.6.2014 and, therefore, he be allowed to withdraw the appeal and the suit and file the suit afresh. This applica tion was filed at a time when the appeal was ripe for final arguments and subsequent order . The petitioner took up the plea that there were certain formal defects in his plaint and that he had also stumbled upon the original agreem ent to sell on 20.6.2014 as also the original receipt of payment and, therefore, he be allowed to file the suit afresh since there was sufficient cause available in his favour .
5. The respondents herein resisted the application and argued that the time for filing this application was of the essence because arguments in appeal had been completed and the matter was ripe for passing of an order and that this was the second round of litigation after the suit had been dismissed twice after a full-fledged trial and after the petitioner had been allowed to produce additional evidence by the appellate court but that the petitioner had failed to do so and merely wanted to prolong the matter and allow it to linger on. They also argued that the stage was not appropriate for such an application to be filed because the same could have been filed before the trial court in the second round and prayed for the dismissal of such an application.
6. The appellate court noted that the suit was initially instituted by the petitioner on 24.4.2006 and the said suit was decided in the first round after a full length hearing on 18.6.201 1 whereafter the matter was challenged in appeal where an application for additional evidence was moved by the petitioner which was accepted, the judgment and decree was set aside by the learned appellate court vide judgment dated 07.11.2012 and the matter was sent to the trial court for a second round of litigation. The learned appellate court noted that this time too, the suit was dismissed vide judgment and decree dated 29.3.2013. The learned appellate court noted with concern the fact that the petitioner was playing hide and seek with the Court and was dilly-dallying the matter merely to maintain a foothold in the matter and that he had ample opportunity to seek withdrawal of the suit before the trial court even in the second round and after a period of nearly 11/2 year since the instant appeal had been filed the petitioner had woken up from his slumber and preferred an application based on his sweet will. The learned appellate court dismissed the application. The petitioner has now approached this Court through the present civil revision and which is sought to be decided through the present judgment.
7. It may be noted that it was on 24.4.2006 that the petitioner filed a civil suit for specific performance of an agreement to sell in respect of suit property measuring 25 acres situated in Khewat No.115, Khatooni No.690/647, Chak No.42, Tehsil and District Khanewal. The petitioner also prayed for cancellation of mutation No.1396 effectuated on 29.9.2004 in favour of Jalal Din and others. It is on record that the suit land belonged to the Provincial Government and the same was allotted to the predecessor-in-interest of defendant-Jalal Din for a period of 20 years. According to the petitioner , the predecessor-in-interest of defendants nominated one Muhammad Ibrahim (defendant No.4 in the suit) as his General Attorney on 14.10.1975 who vide agreement dated 25.12.1975 agreed to sell out the suit land for a sum of Rs.40,000/- and that the entire sale consideration was paid at the same time and registration of formal sale deed was postponed till conferment of proprietary rights on the original allottee.
The petitioner alleged that the defendant-Jalal Din and his brother in connivance with the revenue officials maneuvered the impugned mutation in their names for the cancellation of which he had approached the relevant revenue hierarchy . The defendants contested the suit and controverted the stance of the petitioner . Issues were framed, evidence was led and the learned trial court vide judgment and decree dated 18.6.201 1 dismissed the suit of the petitioner on the ground that Muhammad Ibrahim, defendant No.4 in the suit from whom the petitioner allegedly bought the suit property and with whom the petitioner entered into an agreement to sell was the real biological brother of the petitioner who never entered the witness box himself and who was represented through his Special Attorney i.e. DW-2 who neither produced the original power of attorney and who failed to disclose the names of the witnesses of the agreement to sell as well as its scribe. That, likewise, the non-examination of marginal witnesses who witnessed the alleged agreement to sell but who were not produced either violated Article 79 of Qanun-e-Shahadat Order , 1984 raising question marks over the veracity of the case of the petitioner . It was the petitioner on whom the onus to prove the execution of power of attorney in favour of defendant No.4 as also for proving transaction leading to the alleged agreement to sell was placed since the petitioner was the beneficiary but the petitioner failed to discharge the onus in this respect. The petitioners' witnesses contradicted each other , failed to disclose as to when the transaction took place with PW-2 Abdul Latif contradic ting PW-1 (the petitioner) about the material point of receiving of consideration. The learned trial court also noted with concern the fact that the petitioner alleged that the transaction was made by defendant No.4 in his capacity as Attorney and defendant No.4 was the real biological brother of the petitioner . The learned trial court alluded to a precedent case decided by the Hon'ble Supreme Court of Pakistan according to which when an Attorney intends to exercise right of sale in favour of his siblings then the postulates of sections 214 and 215 of the Contract Act, 1872 had to be followed and since the Attorney had not obtained the consent and approval of the principal (predecessor-in-interest of defendants i.e. Faiz Muhammad) after acquainting him with all circumstances and since there had been no special communication, no evidence could wash this stain and this weakness was reinforced by the fact that DW-2 (Special Attorney of Muhammad Ibrahim) categorically depose d that the sale consideration was never passed on to the predecessor-in- interest of the defendants. Likewise, DW-2 also deposed that his principal Muhammad Ibrahim never went to Sargodha to see Faiz Muhammad, the predecessor-in-interest of the defendants. The learned trial court ruled that the petitioner along with his brother , defendant No.4, were tenants at will over the suit land and there was nothing on record to establish that the petitioner had ever taken possession of the suit land as a sequel to the alleged agreement to sell because according to the documents obtained from the Board of Revenue as also on account of the decision of the DDO (R), Khanewal, the petitioner was a co-sharer as also a tenant at will. The suit was, therefore, dismissed on 18.6.201 1.
8. Thereafter , an appeal was filed in the matter on 30.6.201 1 and vide judgmen t dated 07.11.2012 the learned appellate court allowed the appeal and remanded the matter to the learned trial court on account of an application for additional evidence filed by the petitioner . The petitioners' application for additional evidence was based on producing the original power of attorney as also some witnesses whose testimonies were necessary to establish the appointment of General Power of Attorney . The learned appellate court allowe d the application and remanded the matter to the learned trial court.
9. Thereafter , the learned trial court again took up the suit of the petitioner and vide judgment dated 29.3.2013 dismissed the suit again. This time too, the learned trial court noted the violation of Article 79 of Qanun-e-Shahadat Order , 1984 and that the petitioner had failed to prove the execution of General Power of Attorney because the petitioner had failed to prove it even through one attesting witness and had also not bothered to produce any document to prove that the witnesses had either passed away or were unavailable for the purpose of testimony .
10. This time round, the petitioner also backtracked from his earlier stance taken in the first round of the suit about defendant No.4, Muhammad Ibrahim (his real biological brother) having the status of General Attorney of the predecessor-in-interest of the defendants and who allegedly executed the alleged agreement to sell and while taking a nose-dive, he deposed that actually Faiz Muhammad sold out his property to Muhammad Ibrahim and then Muhammad Ibrahim agreed to sell the suit property to the petitioner . While this statement was in clear contradiction of his earlier statement, the same also caused offence to the pleadings of the petitioner . To add oil to the fire the petitioner during his cross-examination conceded that his earlier statement was not correct. What he failed to note was that his second subsequent statement offended and compromised his pleadings and shattered his veracity as a witness, so to speak. The learned trial court noted with concern the fact that it was not understandable why Faiz Muhammad who was alleged to have appointed Muhammad Ibrahim as his General Attorney had sold the property to him and then signed a Power of Attorney authorizing Muhammad Ibrahim to sell the property in issue. This time round, Muhammad Ibrahim (the real biological brother of the petitioner) appeared as PW-8 in favour of the petitioner and supported the deposition of the petitioner which he made the second time round and which compromised his pleadings. Muhammad Ibrahim also did not realize that it is squarely mentioned in the Power of Attorney Exh.P/42 that the Attorney shall have the authority to transfer the property to Muhammad Iqbal, the petitioner . There is no gainsaying that had Faiz Muhammad appointed Muhammad Ibrahim as his Attorney there would have been no need for him to prepare a Power of Attorney in order for there to be a sale in favour of Muhammad Iqbal especially since the petitioner alleged that Faiz Muhammad had already sold the property to Muhammad Ibrahim. The learned trial court noted that the divergent and absolutely irreconcilable stances pursued by the petitioner put paid his case and destroyed his veracity as a witness. The learned court also noted that there was a clear contradiction between the statements of the petitioner and the attesting witness of alleged agreement to sell with reference to the passing of consideration and this, therefore, in any case destroyed the case of the petitioner . The suit was dismissed again.
11. The petitioner filed an appeal again on 06.2.2014 and during the pendency thereof the petitioner filed an application for withdrawing the appeal and the suit with the permission to file the suit yet again on account of the alleged fact that he had tumbled upon the original agreement to sell along with the original receipt of payment on 20.6.2014 which needed to be proved in evidence and that he had also unnecessarily impleaded Muhammad Ibrahim as a defendant and that he be allowed to rectify the defect and that in any case there was sufficient cause available with him to file and pursue the application successfully . The petitioners' application under Order XXIII, Rule 1 CPC reads as follows: {{URDU TEXT}}
12. After the learned appellate court refused permission and dismissed the application filed by the petitioner , the petitioner has approached this Court through the present civil revision.
13. Heard. Record perused.
14. The ludicrousness and absurdity of the claim of the petitioner in filing an application under Order XXIII, Rule 1 CPC and the eventual futility in allowing such application in question is evident from the following:- a). Even if the petitioners' application were to be allowed there are certain permanent stains on his capacity as a witness and on the merits of the suit that cannot be washed away irrespective of the kind of evidence sought to be produced by the petitioner . For starters the law laid down by the Hon'ble Supreme Court of Pakistan in"Muhammad Ashraf and 2 others v. Muhammad Malik and 2 others"( PLD 2008 SC 389) stares the petitioner in the face and the postulates and require ments of sections 214 and 215 of the Contract Act, 1872 having not been met there is little mileage that the petitioner can draw from withdrawing the suit and filing it afresh because nothing can change this element of collusion which is not only conspicuous but also runs like a thread through the entire proceedings and is hence fatal to the case of the petitioner . b). That, likewise, the violation of Article 79 of the Qanun-e-Shahadat Order , 1984 remains in place regardless of whatever evidence is sought to be produced by the petitioner this time round. Since the petitioner failed to produce attesting witnesses or even marginal witnesses of the alleged Power of Attorney in both rounds, nothing can wash away this blemish either . c). Likewise, the conspicuous contradiction between the statements of the petitioner and his own PW-2 on the material point of passing of consideration has also not been reconciled even in the second round and, therefore, stays put. d). Alarmingly even in the second round the petitioner failed to produce any evidence on record about the attesting witnesses or marginal witnesses having passed away or being unavailable for some reason to be brought to the Court and, therefore, reinforced his disregard for the requirements of Article 79 of the Qanun-e-Shahadat Order , 1984. e). Most alarmingly no evidence, no witnesses and no documents can even remotely lessen the effect of the falsity of the statement of the petitioner in the second round where he disowned his earlier statement that he himself gave and did a volte-face without having regard to his pleadings which were evidently compromised on account of the fresh stance taken by the petitioner about the property being sold to Muhammad Ibrahim, the same person i.e. his real biological brother in whose favour the petitioner had earlier alleged that there was a Special Power of Attorney to part with the suit land.
15. In this view of the matter , no fresh evidence, no additional evidence, no new documents nay there is nothing in law that can deviate from the fact that the evidence of the petitioner while appearing as PW-13 in the second round not only clearly contradicted his pleading s and compromised such pleadings but is also diametrically opposed to his earlier statement. Likewise, there is no evidence that can fill up lacunae with reference to requirements of Article 79 of the Qanun-e-Shahadat Order , 1984. Similarly , the inherent and apparent contradiction between his own witnesses with reference to the passing of consideration and the stark violation of the requirements of sections 214 and 215 of the Contract Act, 1872 can never be cured. In this view of the matter, the learned appellate court has not committed any illegality in refusing the application filed by the petitioner and viewing it as a dilatory tactic.
Having noted the factual matrix and having dealt with the issues involved it is now time to take a look at precedent cases that may have a bearing on the present civil revision.
16. In "Muhammad Ashraf and 2 others v. Muhammad Malik and 2 others" (PLD 2008 SC 389), it has been lucidly held at page 391-A that, "if an Attorney intends to exercise right of sale in favour of his siblings, he had to consult the principal before exercising such a right and that obtaining of consent and approval of the principal after acquainting him by way of special communication was absolutely necessary and without which the transaction could never be legally valid."
17. In "Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others"
(PLD 2003 SC 979 ), it has been held at page 993 that:- "... a party after having joined upon an issue and having failed to produce evidence which he was bound to produce on such an issue could not be allowed to file a second suit on the same subject.
The Judicial Committee of the Privy Council, while upholding the determination of the High Court of Bengal, in a case reported as Robert Watson & Co. v. The Collector of Zillah Rajshahye, Dost Mahomed Khan Chowdhry , Ranee Anundomoye, and Horace John Abbot (1869) Vol. 13 M.I.A. (Moore's Indian Appeals) 160, held that permission could only be granted to litigate the matter afresh and that was limited to certain circumstances/conditions which are as under:-- "There is a proceeding in those Courts (Courts of India) called a non-suit, which operates as a dismissal of the suit without barring the right of the party to litigate the matter in a fresh suit; but that seems to be limited to cases of misjoinder either of parties or of the matters in contest in the suit; to cases in which a material document h has been rejected because it has not borne the proper stamp, and to cases in which there has been an erroneous valuation of the subject of the suit. In all those cases the suit fails by reason of some point of form, but their Lordships are aware of no case in which, upon an issue joined, and the party having failed to produce the evidence which he was bound to produce in support of that issue, liberty has been given to him to bring a second suit, except in the particular instance that is now before them."
Patna High Court in a case reported as Debendra Chandra Ghosh Bahadur and others v. Chaudhuri Bandhu Sahu and others ((LXI) 1.C.831) disallowed withdrawal of the suits out of which they arose by making reference to the case of Robert Watson & Co. v. The Collector of Zillah Rajshahye . Dost Mahomed Khan Chowdhry , Ranee Anundomoye, and Horace John Abbot (supra). The learned Judge of the Patna High Court observed as under:-- "I think that the contention must clearly succeed. Where evidence to meet the issues framed has been adduced by both parties and on these issues a decision has been arrived at and a decree has been passed, and that decree has been upheld-on appeal, this Court on second appeal has no power to allow withdrawal of the suit to deprive the defendant of the advantage he has gained from the decision of the issues in his favour , Order XXIII, rule 1, will not give such power where once the suit has been decided and a decree has been passed. "
18. In "Sardar Muhammad Kazim Ziauddin Durrani and others v. Sardar Muhammad Asim Fakhuruddin Durrani and others" (2001 SCMR 148), it has been held at page 153-B that, "permission under order XXIII, Rule 1 CPC can only be granted in respect of a formal defect and where the defect is latent and touches merits of the case then permission to withdraw the suit on this score cannot be granted ."
19. But the most important judgment in the present context which has a great bearing on the present issue is the one reported as "Muhammad Yar (deceased) through L.Rs and others v. Muhammad Amin (deceased) through L.Rs and others" (2013 SCMR 464), in which the Hon'ble Supreme Court of Pakistan has held at page 471 that, "an application under Order XXIII, Rule 1 CPC can only be allowed upon showing sufficient cause that satisfies judicial conscience and that there was an objective satisfaction in respect of sufficient cause that had to be met as also that the application was not tainted with oblique or malafide motives and was not aimed at abusing the process of law .
20. In "Ramuz-uddin Chowkidar v. Babar Ali" (1971 DLC 806), it has been held that, "an application under Order XXIII, Rule 1 CPC based on sufficient cause must be filed at the earliest opportunity and the grounds taken therein must be cogent and not fanciful ."
21. When the facts of the present civil revision are measured in the context of these reported cases it becomes clear that the petitioner is only trying to abuse the process of law by employing dilatory tactics to maintain a foothold in the matter and which foothold is bereft of any legal or for that matter any foundational basis and suggestive of the fact that the petitioner wants to have his way come what may!
22. At this stage, learned counsel for the petitioners, Syed Muhammad Ali Gillani, has prayed to the Court that he may be allowed to withdraw this petition. I am afraid that it is too late for that now and, therefore, this petition cannot be allowed to be withdrawn after having been argued. However , learned counsel for the petitioners insists that he may be allowed to avail the alternative remedy of filing an application for producing additional evidence in the course of appellate proceedings which are still pending. If there is no legal bar in this respect then the petitioners may move such an application which shall, of course, be decided in its own merits.
23. Seen from all angles, the present civil revision is meritless and is, accordingly , dismissed .