MUHAMMAD NAEEM ANWAR, J.-Through instant petition filed u/s 115 of the Code of Civil Procedure, 1908 (C.P.C), the petitioner has impugned the order of the learned Additional District Judge-III, Peshawar dated 08.04.2019, whereby on acceptance of the application of respondent No.20 (Mst.
Nasra Parveen), filed u/s 144 & 151 C.P.C, the mutation No.3933 dated 13.06.2014 was ordered to be rectified.
2. Epigrammatic facts of the instant petition are that Mst. Meher Bibi, the present petitioner, has filed Civil Suit No.415/1 neem on 16.08.2008 seeking therein declaration that she is owner in possession of the property bearing khasra No. 514 of the revenue estate of Samarbagh Budhu, house No.181 and khasra No.185 of the same revenue estate on the strength of deed No.110 dated 05.05.1978, with which, the defendants had got no concern/ interest whatsoever. Reliefs for perpetual and mandatory injunctions were also sought. The suit was resisted by defendant No.1 Aman Ullah Jan, defendants No. 7 to 10, 11 & 12 through their separate written statements on different preliminary & factual objections. After completion of evidence of the parties, suit of the petitioner/ plaintiff was dismissed by the learned Civil Judge-X, Peshawar on 28.10.2011. Issue No.5 of the suit was as to whether deed No.110 dated 05.05.1978 is wrong, collusive and fraudulent and no such deed was executed in favour of the plaintiff? This issue was decided by the learned trial Court against the plaintiff Mst. Meher Bibi. Being aggrieved, she filed an appeal wherein, on 26.02.2014, respondents No. 8 to 12 and Syed Munawar Shah, the attorney for respondent No.3 appeared, they have submitted a compromise deed that they have got no objection if the suit of the petitioner/ plaintiff is decreed in her favour. The joint statement of Syed Munawar Shah (the attorney for respondent No.3) and Saeed Ullah Jan (special attorney for respondents No.8 to 12) was recorded on 26.02.2014. The compromise was placed on file as Ex.PA, the power of attorney on behalf of respondent No.3 in favour of Syed Munawar Shah was placed on file as Ex. PB while that of respondents No.8 to 12 in favour of their attorney was placed on file as Ex. PC besides copies of their CNICs were also placed on file and consequent thereto, the appeal was disposed of by the learned appellate Court on 26.02.2014 in favour of the petitioner in view of the compromise deed (Ex.PA). Because of judgment in Civil Appeal No.5/13, a mutation bearing No.3933 was entered in favour of the petitioner/ plaintiff, Mst. Meher Bibi from khasra Nos.514, 894/185 and it was attested on 13.06.2014. While attesting the said mutation, shares of respondent No. 20 namely Mst. Nasira Parveen in the suit property were also transferred in favour of Mst. Meher Bibi. The plaintiff Mst.
Meher Bibi was the daughter in law of Allah Bakhsh while Mst. Nasira Parveen was the daughter in law of Muhammad Zaman. In favour of the latter, mutation No.1262 dated 18.03.1971 was attested from khasra Nos. 514, 635 & 636 to the extent of 3/5th shares out of all three khasra numbers.
Khasra No.514 measuring 15-kanal was transferred to the extent of 09- kanal and 04-marla i.e. 3/4th shares in favour of Mst. Nasira Parveen. The grievance of Mst. Nasira Parveen was that no decree was passed against her rather suit of Mst. Meher Bibi was dismissed, and issue No.5 was decided against her. Neither she appeared before the learned appellate Court nor any statement on her behalf was recorded. Her claim that the decree could be executed only to the extent of the respondents who have appeared before the learned appellate Court and alienation of the property could only be made to the extent of the shares of those respondents/ defendants who have compromised the matter with Mst. Meher Bibi, the plaintiff/ petitioner. As against that, Mst. Meher Bibi was claiming her share in the property on the strength of deed No.110 dated 05.05.1978. The attestation of mutation No. 3933 dated 13.06.2014 constrained Mst. Nasira Parveen to file an application under sections 144 & 151 C.P.0 before the learned appellate Court wherefrom the suit of Mst. Meher Bibi was decreed in civil appeal. Her application was resisted by Mst. Meher Bibi but it was allowed by the learned appellate Court through impugned order dated 08.04.2019, hence, this petition.
3. C.M No.857-P of 2020: Through this application, respondent No. 2 Mst. Nasira Parveen seeks permission of the Court to place on file the documents annexed therewith i.e., copy of CNIC of Mst.
Nasir Yahya, copy of this memorandum of C.R, order sheet dated 15.09.2020, copy of suit titled "Mst.
Nasira Parveen Vs. Muhammad Zaman", copy of mutation No. 1262 dated 18.03.1971 and some other documents. As the contents of the application have been duly verified through an affidavit of the deponent besides same has not been opposed by the petitioner, thus, this C.M is allowed, and the documents appended therewith are hereby read as part and parcel of the instant petition.
4. Mr. Malik Zaib Khan, Advocate representing the petitioner contended that it was an unpartitioned property amongst the owners and as per the entries of Jamabandi for the year 2010-11 from the revenue estate of Samarbagh Budhu. He also contended that Mst. Meher Bibi was the owner of the property and being so, when her right was infringed rather resisted by Mst. Nasira Parveen and others, she filed a suit wherein Mst. Nasira Parveen has never ever appeared before the learned trial Court, as such, she was proceeded ex-parte. According to him, before the learned trial Court though some of the respondents appeared and have submitted a compromise, however, decree to the extent of the right of Mst. Meher Bibi passed in her favour; thus, the mutation was rightly attested. He added that since it was an ex-parte decree against Mst. Nasira Bibi, as such, the legal remedy was available to her either to file an application under order IX rule 13 C.P.C or a review application before the learned appellate Court but in no case, the application u/s 144 or 151 C.P.C could not be entertained. In support of his submissions, he placed reliance on the case of "Sohail Maabool Awan Vs. Fahad Idrees" (2021 MLD 556).
5. As against that Mr. Adnan Khattak and Ms. Zara Ishtiaq, Advocates representing the respondents contended that though there was a suit of Mst. Meher Bibi against the defendants including Mst.
Nasira Parveen but she (Mst. Nasira Parveen) never resisted the suit rather she was placed ex- parte. According to them, the decree could be executed only to the extent of the respondents/ defendants, who have appeared before the learned appellate Court and submitted a compromise in favour of the plaintiff Mst. Meher Bibi, on the basis whereof, the learned appellate Court has disposed of the appeal of the petitioner, therefore, alienation of the property in favour of the petitioner/ plaintiff to the extent of the shares of Mst. Nasira Parveen on the strength mutation No. 3933 was wrong, illegal, against the law, for which, the only remedy available to Mst. Nasira Parveen was to file an application u/s 144 read with section 151 C.P.C. They requested for dismissal of the instant petition while supporting the impugned order.
6. Arguments heard and record perused.
7. Undoubtedly, the petitioner Mst. Meher Bibi was the daughter-in-law of Allah Bakhsh while Mst.
Nasira Parveen was the daughter-in-law of Muhammad Zaman. The transferors of both the ladies were co-owners in the property including khasra No.514, as such, khasra No.514 was the joint ownership of Allah Bakhsh and Muhammad Zaman. Mutation No. 1262 was attested on 18.03.1971 in favour of Mst. Nasira Parveen from Muhammad Zaman, her father-in-law. It is also not disputed that Muhammad Zaman was the owner to the extent of 3/5 shares and he had transferred said 3/5 share in favour of Mst. Nasira Parveen. It is pertinent to mention here that Mst. Nasira Parveen was the party in civil suit, but she was proceeded ex-parte. The significant aspect of the matter was issue No.5 framed by the learned trial Court in view of the divergent pleadings of the parties to the effect that 'whether deed No.110 dated 05.05.1978 is wrong, collusive and fraudulent and no such deed was executed in favour of the plaintiff? This issue was decided in favour of the then defendants and against the plaintiff Mst. Meher Bibi. Admittedly, in appeal some of the respondents (respondent No. 3 & respondents No. 8 to 12) appeared before the learned appellate Court through their respective attorneys and recorded their joint statement in favour of the petitioner, Mst. Meher Bibi, and on the basis of the statement, a decree was granted in favour of Mst. Meher Bibi by the learned appellate Court but to the extent of shares of the transferors (respondent No.3 and respondents No.8 to 12, as then they were). It is an established principle of law that no one can transfer the better title than his own. Reliance may be placed on the cases of "Itbar Shah and others vs. Ahmad Shah and others" (2001 CLC 1021), "Abdul Hameed through legal heirs and others Vs. Shamssuddin and others" (PLD 2008 SC 140). This Court in case titled "Sued Azhar Hussain shah Vs. Member Board of Revenue Khyber Pakhtunkhwa and others" (2016 YLR 1849), has observed that: "6. It is by now established that vendor cannot transfer a better title than that he possesses at the time of transfer. Mere fact that mutation has been attested in favour of some of co-sharers would not extinguish title of other co-sharers. Section 42 of the Land Revenue Act, 1967 provides the mechanism for transfer of rights in periodical records. The word "purchase" used in subsection (1) of section 42 would oust the attestation of mutation in exclusive Hissadari mutation in possession. Ownership has been defined by "Salmond on jurisprudence" that it is relationship between a person and any right that may be vested in him. According to Austin "ownership" is a right over a determinate thing, indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration. Holland defines ownership "as plenary control over an object." According to him ownership is exercise in its primacy and fullest sense over physical objects only."
8. Furthermore, it is strange enough that Mst. Nasira Parveen had never appeared before the Court of appeal either in person or through her attorney, as such, there was no decree against her, then how her shares could be alienated in favour of the petitioner through mutation No.3933, as such, the provisions of sections 144 & 151 C.P.0 were invoked by Mst. Nasira Parveen and in that respect, her application was allowed by the learned appellate Court to the extent of alienation of her property and that too without any justification, the order of the Court of competent jurisdiction or any decree against her. Section 144 of Civil Procedure Code, 1908, embodies the principle that nobody shall be prejudiced by the act of the Court; that the foremost duty of the Court is to take care that the act of Court does no injury to the suitor or who was sued and when such injury was found by the Court on the event of variation or reversal of the decree the grievance of the aggrieved is redressed. The basic object of section 144 C.P.C is that where and insofar as a decree is varied or reversed, the Court of first instance shall, on the application of any party entitled to the benefit by way of restitution or otherwise, cause such restitution to be made as well, so far as may be, place the parties in the position which they have been occupied but for such decree or such part thereof; sub-section 2 of section 144 C.P.0 bars institution of suit for the purpose of obtaining any restoration or other relief, which are obtainable by application under subsection 1 of section 144 C.P.C. Intrinsically, section 144 C.P.C shows the principle of restitution based on the analogy, one of the first and highest duties of the Court is to take care that from any act of any Court no suiter or the one sued should be injured, therefore, any such benefit which is refundable and returnable to a party entitled to such benefit through restitution upon the variation or reversal of a decree to take the benefit on principle of restitution. Since, in this matter the rights of Mst. Nasira Parveen has been affected through attestation of mutation based on wrong interpretation of the judgement and application of law, passed in favour of Mst. Meher Bibi through attestation of mutation No. 3933, as such, the learned appellate Court, which has earlier passed a decree in favour of Mst. Meher Bibi has rightly invoked the provisions of sections 144 & 151 C.P.C and remedied the injury of the respondent No.20 namely Mst. Nasira Parveen. Insofar as the reliance of learned counsel for the petitioner on Sohail Maabool Awan (supra) case is concerned, said principle in view of the facts of the instant case, being distinguishable, cannot be applied in the instant petition.
9. It is significant to note two aspects of the grievance of Mst. Nasira Parveen firstly, that the judgement and decree of the trial Court was reversed and the suit of Mst. Meher Bibi was decreed, though the appellate Court has disposed of the appeal however, the rights of those respondents, who were not before the Court, have not been specifically protected from the operation of the decree; secondly, there was no decree against Mst. Nasira Parveen, as such, the attestation of mutation to the extent of alienation of her shares, she filed the application under sections 151 & 144 CPC for correction of wrong implementation & interpretation of the decree, which could be filed by her in terms of her grievance. Section 151 C.P.C deals with "Saving of inherent powers of Court."
Which states that 'Nothing in Civil Procedure Code 1908 shall be considered to restrict or otherwise affect the inherent power of the Court to make such orders as may be important for the ends of justice or to limit abuse of the method of the Court. The scope of exercising of Section 151 of C.P.C may be extended into the matters i.e., subsequent events in the case can be taken into consideration by the Court; power of Court to continue trial 'in camera' or prevent disclosure of its proceedings. Section 151 of the C.P.C provides for the exercise of inherent powers to check the infringement of the process of the Court. Abuse of the powers of the court which happens in unfairness to party needs to get relief on the ground that the act of a court shall not prejudice anyone. When a party practices fraud on the Court or on a party to a proceeding, the remedies have to be provided on the basis of inherent power. The word 'abuse' is said to occur when a Court uses a method in doing something that it is never expected to do is the perpetrator of the said abuse and there is a failure of justice. The injustice so done to the party must be given relief on the basis of the doctrine of actus curiae neminem gravabit (an act of the court shall prejudice no one ). A party to a case will become the perpetrator of the abuse in cases when the said party does acts like obtaining benefits by functioning fraud on the Court or a party to the proceedings, prompting the multiplicity of proceedings, etc. the object of inherent powers of the Court is to; i) reducing litigation; ii) evade multiplicity of proceedings; and to supply full and complete justice between the parties. Ref: PLD 2012 Lah. 12, 2010 CLC 380, 1989 CLC 1949, 1980 CLC 930, PLD 1995 Karachi
282. Recently, the Supreme Court in the case of "Hall Musharraf Mahmood Khan (deceased) through his legal heirs vs. Sardarzada Zafar Abbas (deceased) through his L.Rs., etc." in CIVIL PETITION No.423-L of 2018 decided on 26.01.2024, has observed that "To overcome such a situation, the inherent jurisdiction of the Court could be invoked which had been conferred upon the trial, appellate and revisional courts in terms of Section 151, C.P.C., subject to the condition that no other specific provision to deal with the issue was available under the C.P.C."
10. In the "North-West Frontier Province Government, Peshawar through Collector, Abbottabad and another vs. Abdul Ghafoor Khan through legal heirs and 2 others" (PLD 1993 SC 418), it was held that section 151 of C.P.C is an enabling provision and cater for an ostensible impossible situation where no express provision of law is attracted and since there is no prohibition for exercising such jurisdiction, thus, mere absence of provision does not curtail or abridge the jurisdiction of a court from passing an order so as to advance and meet the ends of justice.
11. At this moment, learned counsel for the petitioner contended that there is a suit filed by the petitioner Mst. Meher Bibi, which is still pending adjudication in respect of the property bearing khasra Nos. 514, 636 & 635 on the strength of deed No.494 dated 22.02.1943 and the fate of the shares transferred from khasra No.514 shall be taken into consideration by the Court. Be that as it may, this is not the dispute before this Court in the instant petition, which shall be adjudged/decided in view of the evidence of the parties including the defendants of that suit, wherein respondent No.20 Mst. Nasira Parveen is also a party. In this view of the matter, there is no relevancy of the pending adjudication of the said suit with the instant petition. Learned counsel for the petitioner has not been able to point out any illegality, irregularity or jurisdictional defect in the impugned order of the learned appellate Court.
12. Thus, for the reasons discussed above, the instant petition, being devoid of merits, is hereby dismissed, with no order as to cost.